EXHIBIT 10.64
TRUST AGREEMENT
BY AND BETWEEN
TRUCK ENGINE RECEIVABLES FINANCING CO.
(TRANSFEROR)
AND
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
(OWNER TRUSTEE)
DATED AS OF NOVEMBER 21, 2000
TABLE OF CONTENTS
Page
ARTICLE IDEFINITIONS..............................................1
SECTION 1.1 Definitions..................................1
ARTICLE IIORGANIZATION............................................1
SECTION 2.1 Name.........................................1
SECTION 2.2 Office.......................................1
SECTION 2.3 Purposes and Powers..........................1
SECTION 2.4 Appointment of Owner Trustee.................2
SECTION 2.5 Initial Capital Contribution of Trust Assets.2
SECTION 2.6 Declaration of Trust.........................3
SECTION 2.7 Liability of the Certificate Owners..........3
SECTION 2.8 Title to Trust Property......................3
SECTION 2.9 Situs of Trust...............................3
SECTION 2.10Representations and Warranties of the Seller.3
SECTION 2.11Tax Treatment................................4
ARTICLE IIITHE CERTIFICATES.......................................5
SECTION 3.1 Initial Certificate Ownership................5
SECTION 3.2 Form of Certificates.........................5
SECTION 3.3 Execution, Authentication and Delivery.......5
SECTION 3.4 New Issuances................................6
SECTION 3.5 Registration; Registration of Transfer;
Exchange of Certificates.....................6
SECTION 3.6 Mutilated, Destroyed, Lost or Stolen
Certificates.................................8
SECTION 3.7 Persons Deemed Certificateholders............9
SECTION 3.8 Access to List of Certificateholders' Names
and Addresses................................9
SECTION 3.9 Maintenance of Corporate Trust Office........9
SECTION 3.10Appointment of Paying Agent..................9
SECTION 3.11Seller as Certificateholder.................10
ARTICLE IVACTIONS BY OWNER TRUSTEE...............................10
SECTION 4.1 Notice to Certificateholders with Respect to
Certain Matters............................ 10
SECTION 4.2 Action by Certificateholders with Respect to
Certain Matters............................ 11
SECTION 4.3 Action by Certificateholders with Respect to
Bankruptcy................................. 11
SECTION 4.4 Restrictions on Certificateholders' Power. 11
SECTION 4.5 Majority Control............................11
ARTICLE VAPPLICATION OF TRUST FUNDS; CERTAIN DUTIES..............12
SECTION 5.1 Establishment of Certificate Distribution
Account.....................................12
SECTION 5.2 Application of Trust Funds..................12
SECTION 5.3 Method of Payment...........................13
SECTION 5.4 Accounting; Reports to Certificateholders and
Others......................................13
SECTION 5.5 Signature on Returns; Tax Matters Partner...14
ARTICLE VITHE OWNER TRUSTEE......................................14
SECTION 6.1 Duties of Owner Trustee.....................14
SECTION 6.2 Rights of Owner Trustee. ..................15
SECTION 6.3 Acceptance of Trusts and Duties.............15
SECTION 6.4 Action upon Instruction by Certificateholders17
SECTION 6.5 Furnishing of Documents.....................17
SECTION 6.6 Representations and Warranties of Owner
Trustee.....................................17
SECTION 6.7 Reliance; Advice of Counsel.................18
SECTION 6.8 Owner Trustee May Own Certificates and Notes19
SECTION 6.9 Compensation and Indemnity..................19
SECTION 6.10Replacement of Owner Trustee................20
SECTION 6.11Merger or Consolidation of Owner Trustee....21
SECTION 6.12Appointment of Co-Trustee or Separate Trustee21
SECTION 6.13Eligibility Requirements for Owner Trustee..22
ARTICLE VIITERMINATION OF TRUST AGREEMENT........................23
SECTION 7.1 Termination of Trust Agreement..............23
ARTICLE VIIIAMENDMENTS...........................................24
ARTICLE IXMISCELLANEOUS..........................................24
SECTION 9.1 No Legal Title to Trust Assets. ...........24
SECTION 9.2 Limitations on Rights of Others.............25
SECTION 9.3 Notices.....................................25
SECTION 9.4 Severability of Provisions..................25
SECTION 9.5 Counterparts................................25
SECTION 9.6 Successors and Assigns......................25
SECTION 9.7 No Petition Covenant........................25
SECTION 9.8 No Recourse.................................26
SECTION 9.9 Headings....................................26
SECTION 9.10GOVERNING LAW...............................26
SECTION 9.11Certificate Transfer Restrictions...........26
SECTION 9.12Administrator...............................26
SECTION 9.13Third-Party Beneficiaries...................27
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Certificate of Trust
TRUST AGREEMENT
THIS TRUST AGREEMENT (this "Agreement") is made as of
November 21, 2000, by and between TRUCK ENGINE RECEIVABLES
FINANCING CO., a Delaware corporation, as Seller (the "Seller"),
and CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION, a national
banking association, as Owner Trustee (not in its individual
capacity but solely as Owner Trustee, the "Owner Trustee").
In consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION I.1 Definitions. Unless otherwise defined
herein, capitalized terms used in this Agreement shall have the
respective meanings assigned to them in Part I of Appendix A to
the Trust Sale and Servicing Agreement, dated as of the date
hereof, by and among the Seller, the Servicer and the Trust (the
"Trust Sale 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, 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 Appendix A to the Trust Sale and Servicing Agreement shall
be applicable to this Agreement.
ARTICLE II
ORGANIZATION
SECTION II.1 Name. The Trust created hereby shall be
known as Truck Engine Receivables Master Trust in which name the
Owner Trustee may conduct the business of the Trust, make and
execute contracts and other instruments on behalf of the Trust
and ▇▇▇ and be sued on behalf of the Trust.
SECTION II.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 II.3 Purposes and Powers. The purpose of the
Trust is, and the Trust shall have the power and authority, to
engage in the following activities:
(a) to acquire, manage and hold the Receivables to be
transferred to the Trust from time to time pursuant to the Trust
Sale and Servicing Agreement;
(b) to issue and sell the Notes pursuant to the
Indenture or to another indenture, note purchase agreement or
similar agreement and the Certificates pursuant to this
Agreement, and to sell, transfer or exchange the Notes and the
Certificates;
(c) to acquire property and assets from the Seller
pursuant to the Trust Sale and Servicing Agreement, to make
payments or distributions on the Securities to the
Securityholders, to make withdrawals from the accounts
established pursuant to the Basic Documents and to pay the
organizational, start-up and transactional expenses of the Trust;
(d) to establish, acquire, hold and terminate
liquidity, credit and other enhancement arrangements, and perform
its obligations thereunder;
(e) to assign, grant, transfer, pledge, mortgage and
convey the Trust Assets pursuant to the terms of the Indenture
and to hold, manage such Trust Assets and distribute funds to the
Certificateholders pursuant to the terms of this Agreement and
the Trust Sale and Servicing Agreement, any portion of the Trust
Assets released from the lien of, and remitted to the Trust
pursuant to, the Indenture;
(f) to enter into and perform its obligations and
exercise its rights under the Basic Documents to which it is to
be a party;
(g) to engage in those activities, including entering
into agreements, that are necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto or connected
therewith; and
(h) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection
with conservation of the Trust Assets and the making of
distributions to the Securityholders.
The Trust shall not engage in any activity other than in
connection with the foregoing or other than as required or
authorized by the terms of this Agreement or the Basic Documents.
SECTION II.4 Appointment of Owner Trustee. The Seller
hereby appoints the Owner Trustee as trustee of the Trust
effective as of the date hereof, to have all the rights, powers
and duties set forth herein.
SECTION II.5 Initial Capital Contribution of Trust
Assets. Pursuant to the Trust Sale and Servicing Agreement, on
the date hereof, the Seller will sell, assign, transfer, convey
and set over to the Owner Trustee, the assets specified in the
Trust Sale and Servicing Agreement. 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 Trust Assets. 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 II.6 Declaration of Trust. The Owner Trustee
hereby declares that it shall hold the Trust Assets in trust upon
and subject to the conditions and obligations set forth herein
and in the Trust Sale and Servicing Agreement. It is the
intention of the parties hereto that the Trust constitute a
business trust under the Business Trust Statute, that this
Agreement constitute the governing instrument of such business
trust and that the Certificates represent the equity interests
therein. The rights of the Certificateholders shall be
determined as set forth herein and in the Business Trust Statute
and the relationship between the parties created by this
Agreement shall not constitute indebtedness. The parties hereto
agree that, unless otherwise required by appropriate taxing
authorities, the Trust shall file or cause to be filed annual or
other necessary returns, reports and other forms consistent with
the characterization of the Trust as a partnership for such tax
purposes. Effective as of the date hereof, the Owner Trustee
shall have all rights, powers and duties set forth in this
Agreement, the Trust Sale and Servicing Agreement and the
Business Trust Statute with respect to accomplishing the purposes
of the Trust. The Owner Trustee agrees to file the certificate
of trust required underss. 3810 et seq. of the Business Trust
Statute in the form of Exhibit B hereto (the "Certificate of
Trust") in connection with the formation of the Trust as a
business trust under the Business Trust Statute.
SECTION II.7 Liability of the Certificate Owners.
Certificateholders and holders of beneficial interests therein
shall be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit
organized under the Delaware General Corporation Law.
SECTION II.8 Title to Trust Property. Legal title to
all the Trust Assets shall be vested at all times in the Trust as
a separate legal entity except where applicable law in any
jurisdiction requires title to any part of the Trust Assets to be
vested in a trustee or trustees, in which case title shall be
deemed to be vested in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be.
SECTION II.9 Situs of Trust. The Trust shall be
located and administered in the State of Delaware. All bank
accounts maintained by the Owner Trustee on behalf of the Trust
shall be located in the State of Delaware or the State of New
York. The Trust shall not have any employees in any state other
than Delaware; provided, however, that nothing herein shall
restrict or prohibit the Owner Trustee from having employees
within or without the State of Delaware. Payments shall be
received by the Trust only in Delaware or New York, and payments
and distributions shall be made by the Trust only from Delaware
or New York. The only office of the Trust shall be the Corporate
Trust Office in Delaware.
SECTION II.10 Representations and
Warranties of the Seller. The Seller hereby represents and
warrants to the Owner Trustee and the Indenture 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 and all Related Security
contemplated to be transferred to the Trust pursuant to the Trust
Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and,
where necessary is in good standing (or is exempt from such
requirement), 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, except where the failure to so qualify or obtain
licenses or approvals would not have a material adverse effect on
its ability to perform its obligations under the Basic Documents
to which it is a party.
(c) The Seller has the power and authority to execute
and deliver this Agreement, to carry out its terms and to
consummate the transactions contemplated herein; and the
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein have been
duly authorized by the Seller by all necessary corporate action.
(d) The execution of this Agreement and the
consummation of the transactions contemplated herein by the
Seller and the fulfillment of the terms of this Agreement by the
Seller shall 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 bylaws of the Seller, or any indenture,
agreement, mortgage, deed of trust 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, mortgage,
deed of trust or other instrument (other than pursuant to the
Basic Documents), or violate any law or, to the best of the
Seller's knowledge, any order, rule or regulation applicable to
the Seller of any Governmental Authority having jurisdiction over
the Seller or any of its properties.
SECTION II.11 Tax Treatment. As long as
the Seller is the sole owner of the Certificates, the Seller and
Owner Trustee, by entering into this Agreement, (i) express their
intention that the Trust will be disregarded for federal income
tax purposes and will be treated as a division or branch of the
Seller and (ii) agree that Section 5.5 of this Agreement will not
be applicable, and for so long as the Seller remains the sole
record Certificateholder, the Owner Trustee shall not sign tax
returns. If the Seller is not the sole owner of the
Certificates, through sale of Certificates, issuance by the Trust
of additional Certificates to a Person other than the Seller, or
otherwise, the Seller and Owner Trustee, by entering into this
Agreement, and the Certificateholders, by acquiring any
Certificate or interest in the Trust, (i) express their intention
that the Certificates shall qualify under applicable tax law as
partnership interests in a partnership, with the assets of the
partnership held by the Trust, (ii) unless otherwise required by
appropriate taxing authorities, agree to treat the Certificates
as partnership interests for purposes of federal, state and local
income and franchise taxes, single business tax and any other
taxes imposed upon, measured by or based upon gross or net
income, and (iii) agree that immediately upon there being more
than one owner of Certificates, Section 5.5 of this Agreement
will become applicable. Notwithstanding anything herein to the
contrary, the Owner Trustee shall have no duty to take any action
pursuant to Section 5.5 or execute tax returns until it has
actual knowledge that the Seller is not the sole
Certificateholder.
ARTICLE III
THE CERTIFICATES
SECTION III.1 Initial Certificate
Ownership. Upon the formation of the Trust by the contribution by
the Seller pursuant to Section 2.5 and until the issuance of the
Certificates, the Seller shall be the sole beneficiary of the
Trust.
SECTION III.2 Form of Certificates.
(a) The Certificates shall be substantially in the
form set forth in Exhibit A. The Certificates shall be executed
on behalf of the Trust by manual or facsimile signature of a
Responsible Officer of the Owner Trustee. Certificates bearing
the manual or facsimile signatures of individuals who were, at
the time when such signatures shall have been affixed, authorized
to sign on behalf of the Trust, shall be, when authorized
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 III.3 Execution, Authentication and
Delivery. Concurrently with the sale of the Receivables to the
Trust pursuant to the Trust Sale and Servicing Agreement, the
Owner Trustee shall cause the Certificates to be executed on
behalf of the Trust, authenticated and delivered to or upon the
written order of the Seller, signed by the chairman of the board,
the president, any vice president, the treasurer or any assistant
treasurer of the Seller without further 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 The Chase
Manhattan Bank as the Owner Trustee's authenticating agent, if
any, 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. The Owner Trustee may
appoint an agent to act as its authenticating agent for the
purpose of authenticating the Certificates (an "Authenticating
Agent") (who shall be a bank or trust company). Each holder of a
Certificate (who is an individual) shall provide the Owner
Trustee or the Certificate Registrar with a form W-9.
SECTION III.4 New Issuances.
(a) The Seller may surrender a portion of its
Certificate to the Owner Trustee in exchange for a newly issued
Certificate and one or more additional certificates (each a
"Supplemental Certificate"), the terms of which shall be defined
in a supplement to this Agreement (which supplement shall be
subject to Article VIII to the extent that it amends any of the
terms of this Agreement), to be delivered to or upon the order of
the Seller (or the holder of a Supplemental Certificate, in the
case of the registration of transfer and exchange thereof, as
provided below), upon satisfaction of the following conditions:
(i) the Seller shall have given the Rating
Agencies notice 5 days prior to such exchange (or
registration of transfer and exchange as provided below) and
the Rating Agency Condition shall have been satisfied with
respect to such exchange (or registration of transfer and
exchange as provided below); and
(ii) the Seller shall have delivered to the
Owner Trustee, the Indenture Trustee and the Rating Agencies
(A) a Tax Opinion dated the date of such exchange (or
registration of transfer and exchange as provided below) and
(B) an Officers' Certificate certifying that all conditions
precedent in this Agreement to such exchange (or
registration of transfer and exchange) have been satisfied.
Any Supplemental Certificate may be registered for transfer or
exchanged only upon satisfaction of the conditions set forth in
clauses (i) and (ii) above.
SECTION III.5 Registration; Registration of
Transfer; Exchange of Certificates.
(a) The Certificate Registrar shall keep or cause to
be kept, at the office or agency maintained pursuant to Section
3.9, a Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Owner Trustee shall provide
for the registration of Certificates and of transfers and
exchanges of Certificates as provided herein. The Certificate
Registrar shall give the Indenture Trustee written notice of any
transfer of any Certificate. The Chase Manhattan Bank shall be
the initial Certificate Registrar. The Owner Trustee may appoint
a successor to act as the Certificate Registrar (who shall be a
bank or trust company).
(b) Unless otherwise specified in a supplement to this
Agreement, a Certificateholder 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, provided
that certain conditions are satisfied including: (i) such action
will not result in a reduction or withdrawal of the rating of any
series or class of Notes; (ii) the Certificateholder provides 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 in writing to take positions
for tax purposes consistent with the tax positions agreed to be
taken by the initial Certificateholder; 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 3.5(b), upon surrender for
registration of transfer of any Certificate at the office or
agency maintained pursuant to Section 3.9, the Owner Trustee
shall execute on behalf of the Trust, authenticate and deliver
(or shall cause the Authenticating Agent, if any, to authenticate
and deliver), in the name of the designated transferee or
transferees, one or more new Certificates of the same class 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 Certificateholder, 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 3.9. Whenever any Certificates are so surrendered for
exchange, the Owner Trustee shall execute on behalf of the Trust,
authenticate and deliver (or shall cause the Authenticating
Agent, if any, 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 Certificateholder 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
Certificateholder or his attorney duly authorized in writing and
such other documents and instruments as may be required by
Section 3.5(b). 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.
(g) The Owner Trustee shall not permit the exchange of
the Certificates unless, in addition to the conditions contained
in this Agreement, the Rating Agency Condition shall have been
satisfied with respect to such exchange.
SECTION III.6 Mutilated, Destroyed, Lost or
Stolen Certificates.
(a) If (i) any mutilated Certificate is surrendered to
the Certificate Registrar, or the Certificate Registrar receives
evidence to its satisfaction of the destruction, loss or theft of
any Certificate and (ii) there is delivered to the Certificate
Registrar, the Owner Trustee and the Trust such security or
indemnity as may be required by them to hold each of them
harmless, then, in the absence of notice to the Certificate
Registrar or the Owner Trustee that such Certificate has been
acquired by a protected purchaser, the Owner Trustee shall
execute on behalf of the Trust and the Owner Trustee shall
authenticate and deliver (or shall cause the Authenticating
Agent, if any, to authenticate and deliver), in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen
Certificate, one or more replacement Certificates 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 distributions to the Certificateholder
of 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 Section 3.6(a), a protected
purchaser of the original Certificate, in lieu of which such
replacement Certificate was issued, presents for payment such
original Certificate, the Owner Trustee shall be entitled to
recover such replacement Certificate from the Person to whom it
was delivered or any Person taking such replacement Certificate
(or such distribution) 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 3.6, 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 3.6 in replacement of any mutilated, destroyed, lost or
stolen Certificate shall constitute an original additional
contractual obligation of the Trust, whether or not the
mutilated, destroyed, lost or stolen Certificate shall be found
at any time or be enforced by anyone, and shall be entitled to
all the benefits of this Agreement equally and proportionately
with any and all other Certificates duly issued hereunder.
(e) The provisions of this Section 3.6 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 III.7 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 III.8 Access to List of
Certificateholders' Names and Addresses. The Owner Trustee shall
furnish or cause to be furnished to the Servicer and the Seller,
within 15 days after receipt by the Owner Trustee of a request
therefor from the Servicer or the Seller in writing, a list, in
such form as the Servicer or the Seller may reasonably require,
of the names and addresses of the Certificateholders as of the
most recent Record Date. Each Holder, by receiving and holding a
Certificate, shall be deemed to have agreed not to hold any of
the Servicer, the Seller or the Owner Trustee accountable by
reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
SECTION III.9 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 The Chase Manhattan
Bank, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, 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 III.10 Appointment of Paying Agent.
The Owner Trustee may appoint a Paying Agent. If so appointed,
such 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 and the Servicer; provided that no such reports shall be
required so long as the Seller is the sole Certificateholder.
Pursuant to Section 8.2(g) of the Indenture, for so long as the
Indenture is in effect, notwithstanding anything in this
Agreement to the contrary, all amounts to be distributed by the
Indenture Trustee to the Certificateholders or the Certificate
Distribution Account shall be distributed to the Seller to the
account specified by the Seller. 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 any Paying Agent appointed by it. Any Paying Agent shall
be permitted to resign as Paying Agent upon 30 days' written
notice to the Owner Trustee, whereupon the Owner Trustee may
appoint a successor to act as the 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 initially be
The Chase Manhattan Bank and any co-paying agent chosen by the
Chase Manhattan Bank, and acceptable to the Owner Trustee. 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 and 6.9 shall
apply to The Chase Manhattan Bank also in its role as Paying
Agent, for so long as The Chase Manhattan Bank 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 III.11 Seller as Certificateholder.
The Seller in its individual or any other capacity may become the
owner or pledgee of Certificates and may otherwise deal with the
Owner Trustee or its Affiliates as if it were not the Seller.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION IV.1 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) a majority of the Certificateholders shall not
have notified the Owner Trustee in writing prior to the 30th day
after such notice is given that such Certificateholders have
withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the
Trust (other than an action to collect on a Receivable or an
action by the Indenture Trustee pursuant to the Indenture) and
the compromise of any action, claim or lawsuit brought by or
against the Trust (other than an action to collect on a
Receivable or an action by the Indenture Trustee pursuant to the
Indenture);
(b) the election by the Trust to file an amendment to
the Certificate of Trust;
(c) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder is
required;
(d) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder is
not required and such amendment materially adversely affects the
interest of the Certificateholders (it being understood that the
issuance of additional Certificates as contemplated by Section
3.4 shall be deemed to not materially adversely affect the
interests of the Certificateholders);
(e) the amendment, change or modification of the
Administration Agreement, except to cure any ambiguity or to
amend or supplement any provision in a manner that would not
materially adversely affect the interests of the
Certificateholders; or
(f) the appointment pursuant to the Indenture of a
successor Note Registrar, Paying Agent or Indenture Trustee or
pursuant to this Agreement of a successor Certificate Registrar,
or the consent to the assignment by the Note Registrar, Paying
Agent or Indenture Trustee or Certificate Registrar of its
obligations under the Indenture or this Agreement, as applicable.
SECTION IV.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, as
described in the last sentence of this Section 4.2, 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 Trust Sale and Servicing Agreement
pursuant to Section 7.2 thereof or (d) except as expressly
provided in the Basic Documents, sell the Receivables transferred
to the Trust pursuant to the Trust Sale and Servicing Agreement
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 the affirmative vote of, or a
written consent signed by, the holders of a majority of the
Voting Interests upon at least 30 days prior notice thereof.
SECTION IV.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 Seller) and the delivery to the Owner
Trustee by each such Certificateholder of a certificate
certifying that such Certificateholder reasonably believes that
the Trust is insolvent. By its acceptance of any Certificate
issued to it on the Closing Date, the Seller agrees that it, at
any time that it is the holder thereof, shall not approve or be
deemed to have approved the commencement of a voluntary
proceeding in bankruptcy relating to the Trust for purposes of
this Section 4.3 unless such commencement is approved by the
affirmative vote of all of the members of the Seller's board of
directors.
SECTION IV.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 IV.5 Majority Control. Except as expressly
provided herein, any action that may be taken or consent that may
be given or withheld by the Certificateholders under this
Agreement shall be effective if such action is taken or such
consent is given or withheld by the Holders of Certificates
evidencing not less than a majority of the Voting Interests
thereof. Except as expressly provided herein, any written notice
of the Certificateholders delivered pursuant to this Agreement
shall be effective if signed by Holders of Certificates
evidencing not less than a majority of the Voting Interests at
the time of the delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION V.1 Establishment of Certificate Distribution
Account.
(a) The Servicer shall cause to be established and
maintained in the name of the Owner Trustee an Eligible Deposit
Account known as the Truck Engine Receivables Master 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. The Certificate Distribution Account shall
initially be established with The Chase Manhattan Bank.
(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
for the benefit of the Certificateholders. Except as otherwise
provided herein or in the Trust Sale 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, any Certificate
Distribution Account ceases to be an Eligible Deposit Account,
the Servicer, within 10 days of determining that such Certificate
Distribution Account is no longer an Eligible Deposit Account,
shall establish a substitute Eligible Deposit Account as such
Certificate Distribution Account, instruct the Owner Trustee in
writing to transfer any cash to such new Certificate Distribution
Account and, from the date any such substitute account is
established, such account shall be the Certificate Distribution
Account.
SECTION V.2 Application of Trust Funds.
(a) On each Payment Date, the Owner Trustee shall
distribute, or cause the Paying Agent to distribute, to the
Certificateholders the amounts deposited in the Certificate
Distribution Account as set forth in the applicable Series
Supplement. Notwithstanding the foregoing or anything else to
the contrary in this Agreement or the other Basic Documents, so
long as Certificates representing in the aggregate a 100%
beneficial interest in the Trust are held by the Seller, (i) no
Certificate Distribution Account shall be required to be
established or maintained and (ii) all distributions and payments
on the Certificates (including the final distribution as
contemplated by Section 7.1(c) hereof) required hereunder or
under the Indenture or the applicable Series Supplement shall be
made directly to the Seller by the Indenture Trustee (whether or
not the Indenture or the applicable Series Supplement otherwise
contemplates deposit into the Certificate Distribution Account)
and the Owner Trustee shall have no duty or liability to see to
such distribution.
(b) On any Payment Date on which payments are
distributed from the Certificate Distribution Account, the Owner
Trustee shall send to each Certificateholder the statement
provided to the Owner Trustee by the Servicer pursuant to Section
3.4 of the Trust Sale and Servicing Agreement on such Payment
Date.
(c) If the Owner Trustee determines, whether as a
result of advice from the Administrator or otherwise, that any
withholding tax is imposed on the Trust's distribution (or
allocations of income) to a Certificateholder, such tax shall
reduce the amount otherwise distributable to the
Certificateholder in accordance with this Section 5.2; provided
that the Owner Trustee shall not have an obligation to withhold
any such amount so long as the Seller is the sole
Certificateholder. The Owner Trustee is hereby authorized and
directed to retain from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any tax
that is legally owed by the Trust (but such authorization shall
not prevent the Owner Trustee (without any obligation to do so)
from contesting any such tax in appropriate proceedings and
withholding payment of such tax, if permitted by law, pending the
outcome of such proceedings). The amount of any withholding tax
imposed with respect to a Certificateholder shall be treated as
cash distributed to such Certificateholder at the time it is
withheld by the Trust and remitted to the appropriate taxing
authority. If there is a possibility that withholding tax is
payable with respect to a distribution (such as a distribution to
a non-U.S. Certificateholder), the Owner Trustee may in its sole
discretion (but shall not be required to) withhold such amounts
in accordance with this Section 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.
SECTION V.3 Method of Payment. Subject to Section
7.1(c), distributions required to be made to Certificateholders
on any Payment Date shall be made to each Certificateholder of
record on the related Record Date either by wire transfer, in
immediately available funds, to the account of such Holder at a
bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided to the Certificate
Registrar appropriate written instructions at least five Business
Days prior to such Record Date, or, if not, by check mailed to
such Certificateholder at the address of such Holder appearing in
the Certificate Register.
SECTION V.4 Accounting; Reports to Certificateholders
and Others. The Owner Trustee shall (a) maintain (or cause to be
maintained) the books of the Trust on an October 31 fiscal year
basis on the cash 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 return, (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, for so long as all of the
Certificates are owned by the Seller, a division or branch of the
Seller and, if not, as determined by the Seller for federal
income tax purposes, in all such cases on forms prepared by the
Administrator, (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 required to be withheld by the Owner Trustee
in accordance with Section 5.2(c) with respect to income or
distributions to Certificateholders.
SECTION V.5 Signature on Returns; Tax Matters
Partner. Subject to Section 2.11, the Owner Trustee shall sign on
behalf of the Trust any and all tax returns of the Trust that are
prepared and delivered to it for execution by the Administrator,
unless applicable law requires a Certificateholder to sign such
documents, in which case such documents shall be signed by the
Seller. The Seller shall be the "tax matters partner" of the
Trust pursuant to the Code.
ARTICLE VI
THE OWNER TRUSTEE
SECTION VI.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 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. No implied
covenants or obligations shall be read into this Agreement.
(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) The Owner Trustee may conclusively rely and shall
be fully protected in acting or refraining from acting on any
document believed by it to be genuine and to have been signed or
presented by the proper Person. The Owner Trustee shall not be
bound to make any investigation into any fact or matter stated in
any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or other
paper or document.
(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 Section 6.1(d) shall not limit the effect
of Section 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 Trust Sale 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
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 VI.2 Rights of Owner Trustee. The Owner
Trustee is authorized and directed to execute and deliver the
Basic Documents and each certificate or other document attached
as an exhibit to or contemplated by the Basic Documents to which
the Trust is to be a party, in such form as the Seller shall
approve as evidenced conclusively by the Owner Trustee's
execution thereof. In addition to the foregoing, the Owner
Trustee is authorized, but shall not be obligated, to take all
actions required of the Trust pursuant to the Basic Documents.
The Owner Trustee is further authorized from time to time to take
such action as the Administrator recommends with respect to the
Basic Documents.
SECTION VI.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 Trust
Assets 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 Trust Assets upon the terms of the Basic Documents and this
Agreement. The Owner Trustee shall not be liable or accountable
hereunder or under any Basic Document under any circumstances,
except (i) for its own negligent action, its own negligent
failure to act or its own wilful 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 held by the Trust,
or for or with respect to the sufficiency of the Trust Assets or
its ability to generate the distributions and payments to be made
to Certificateholders under this Agreement or to Noteholders
under the Indenture, including, without limitation: the existence
and contents of any such Receivable on any computer or other
record thereof; the validity of the assignment of any such
Receivable to the Trust or of any intervening assignment; the
completeness of any such Receivable; the performance or
enforcement of any such 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 Indenture Trustee or the Servicer or any
subservicer taken in the name of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in accordance
with the instructions of the Administrator or any
Certificateholder;
(c) no provision of this Agreement or any Basic
Document shall require the Owner Trustee to expend or risk funds
or otherwise incur any financial liability in the performance of
any of its rights or powers hereunder or under any Basic
Document, if the Owner Trustee shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured or
provided to it;
(d) under no circumstances shall the Owner Trustee be
liable for indebtedness evidenced by or arising under any of the
Basic Documents, including the principal of and interest on the
Notes or 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 Trust
Assets 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 held by the Trust or any related documents, and the
Owner Trustee shall in no event assume or incur any liability,
duty or obligation to any Noteholder or to any Certificateholder,
other than as expressly provided for herein and in the Basic
Documents;
(f) the Owner Trustee shall not be liable for the
default or misconduct of the Administrator, the Indenture
Trustee, the Seller or the Servicer under any of the Basic
Documents or otherwise, and the Owner Trustee shall have no
obligation or liability to perform the obligations of the Trust
under this Agreement or the Basic Documents that are required to
be performed by the Administrator under the Administration
Agreement, the Indenture Trustee under the Indenture or the
Servicer under the Trust Sale and Servicing Agreement; and
(g) the Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Agreement, or to institute, conduct or defend any litigation
under this Agreement or otherwise or in relation to this
Agreement or any Basic Document, at the request, order or
direction of any of the Certificateholders, unless such
Certificateholders have offered to the Owner Trustee security or
indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Owner Trustee therein or
thereby. The right of the Owner Trustee to perform any
discretionary act enumerated in this Agreement or in any Basic
Document shall not be construed as a duty, and the Owner Trustee
shall not be answerable for other than its negligence or wilful
misconduct in the performance of any such act.
SECTION VI.4 Action upon Instruction by
Certificateholders.
(a) Subject to Section 4.4 , the Certificateholders
may by written instruction direct the Owner Trustee in the
management of the Trust. Such direction may be exercised at any
time by written instruction of the Certificateholders pursuant to
Section 4.5.
(b) Notwithstanding the foregoing, the Owner Trustee
shall not be required to take any action hereunder or under any
Basic Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such
action is likely to result in liability on the part of the Owner
Trustee or is contrary to the terms hereof or of any Basic
Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide
between alternative courses of action permitted or required by
the terms of this Agreement or any Basic Document, or is unsure
as to the application, intent, interpretation or meaning of any
provision of this Agreement or the Basic Documents, the Owner
Trustee shall promptly give notice (in such form as shall be
appropriate under the circumstances) to the Certificateholders
requesting instruction as to the course of action to be adopted,
and, to the extent the Owner Trustee acts in good faith in
accordance with any such instruction received, the Owner Trustee
shall not be liable on account of such action to any Person. If
the Owner Trustee shall not have received appropriate
instructions within ten days of such notice (or within such
shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but
shall be under no duty to, take or refrain from taking such
action which is consistent, in its view, with this Agreement or
the Basic Documents, and as it shall deem to be in the best
interests of the Certificateholders, and the Owner Trustee shall
have no liability to any Person for any such action or inaction.
SECTION VI.5 Furnishing of Documents. The Owner
Trustee shall furnish (a) to the Certificateholders, promptly
upon receipt of a written request therefor, duplicates or copies
of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the
Owner Trustee under the Basic Documents and (b) to the
Noteholders and the Certificateholders, promptly upon receipt of
a written request therefor, copies of the Receivables Purchase
Agreement, the Trust Sale and Servicing Agreement, the
Administration Agreement and this Agreement.
SECTION VI.6 Representations and Warranties of Owner
Trustee. The Owner Trustee hereby represents and warrants to the
Seller that:
(a) It is a national banking association duly
organized, validly existing and in good standing under the laws
of the United States.
(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. The eligibility
requirements set forth in Section 6.13 are satisfied with respect
to it.
(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 and
(iii) shall not violate any provision of, or constitute, with or
without notice or lapse of time, a default under, or result in
the creation or imposition of any lien on any properties included
in the Trust pursuant to the provisions of any mortgage,
indenture, contract, agreement or other undertaking to which it
is a party, which violation, default or lien could reasonably be
expected to have a materially adverse effect on the Owner
Trustee's performance or ability to perform its duties as Owner
Trustee under this Agreement or on the transactions contemplated
in this Agreement.
(d) The execution, delivery and performance by the
Owner Trustee of this Agreement shall not require the
authorization, consent or approval of, the giving of notice to,
the filing or registration with, or the taking of any other
action in respect of, any Governmental Authority regulating the
banking and corporate trust activities of banks or trust
companies in the jurisdiction in which the Trust was formed.
(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 VI.7 Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to
anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report,
opinion, bond or other document or paper believed by it to be
genuine and believed by it to be signed by the proper party or
parties and need not investigate any fact or matter in any such
document. The Owner Trustee may accept a certified copy of a
resolution of the board of directors or other governing body of
any corporate party as conclusive evidence that such resolution
has been duly adopted by such body and that the same is in full
force and effect. As to any fact or matter the method of the
determination of which is not specifically prescribed herein, the
Owner Trustee may for all purposes hereof rely, without any
inquiry or investigation into the factual matters addressed
therein, 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 VI.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 VI.9 Compensation and Indemnity.
(a) The Owner Trustee shall receive from the Servicer
as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Seller
and the Owner Trustee, and the Owner Trustee shall be entitled to
be reimbursed by the Servicer for its other reasonable expenses
hereunder, including the reasonable compensation, expenses and
disbursements of such agents, custodians, nominees,
representatives, experts and counsel as the Owner Trustee may
employ in connection with the exercise and performance of its
rights and its duties hereunder. The Servicer shall indemnify
the Owner Trustee and its successors, assigns, agents and
servants in accordance with the provisions of Section 6.4 of the
Trust Sale and Servicing Agreement. The indemnities contained 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 Section 6.9
shall be deemed not to be a part of the Trust Assets immediately
after such payment.
(b) The Owner Trustee acknowledges and accepts the
conditions and limitations with respect to the Servicer's
obligation to indemnify, defend and hold the Owner Trustee
harmless as set forth in Section 6.4 of the Trust Sale and
Servicing Agreement.
SECTION VI.10 Replacement of Owner Trustee.
(a) The Owner Trustee may at any time give notice of
its intent to resign and be discharged from the trusts hereby
created by giving 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 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 resigns or is removed or if a
vacancy exists in the office of Owner Trustee for any reason the
Administrator shall promptly appoint a successor Owner Trustee by
written instrument, in duplicate (one copy of which instrument
shall be delivered to the outgoing Owner Trustee so removed and
one copy to the successor Owner Trustee) and shall pay all fees
owed to the outgoing Owner Trustee.
(c) Any resignation or removal of the Owner Trustee
and appointment of a successor Owner Trustee pursuant to any of
the provisions of this Section 6.10 shall not become effective,
and no such resignation shall be deemed to have occurred, until a
written acceptance of appointment is delivered by the successor
Owner Trustee to the outgoing Owner Trustee and the
Administrator, and all fees and expenses due to the outgoing
Owner Trustee are paid. Any successor Owner Trustee appointed
pursuant to this Section 6.10 shall be eligible to act in such
capacity in accordance with Section 6.13 and, following
compliance with the preceding sentence, shall become fully vested
with all the rights, powers, duties and obligations of its
predecessor under this Agreement, with like effect as if
originally named as Owner Trustee. The Administrator shall
provide notice of such resignation or removal of the Owner
Trustee to each of the Rating Agencies.
(d) The predecessor Owner Trustee shall upon payment
of its fees and expenses deliver to the successor Owner Trustee
all documents, computer files and statements and monies held by
it under this Agreement. The Administrator and the predecessor
Owner Trustee shall execute and deliver such instruments and do
such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor Owner Trustee
all such rights, powers, duties and obligations.
(e) Upon acceptance of appointment by a successor
Owner Trustee pursuant to this Section 6.10, the Administrator
shall mail notice of the successor of such Owner Trustee to all
Certificateholders, the Indenture Trustee, the Noteholders and
the Rating Agencies.
SECTION VI.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
corporation 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 VI.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 Trust
Assets or Ford 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 Trust Assets, and to vest in
such Person, in such capacity, such title to the Trust, or any
part thereof, and, subject to the other provisions of this
Section 6.12, such powers, duties, obligations, rights and trusts
as the Administrator and the Owner Trustee may consider necessary
or desirable. If the Administrator shall not have joined in such
appointment within 15 days after the receipt by it of a request
so to do, the Owner Trustee alone shall have the power to make
such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a
successor trustee pursuant to Section 6.13 and no notice of the
appointment of any co-trustee or separate trustee shall be
required pursuant to Section 6.10.
(b) Each separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the
following provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Owner Trustee shall be
conferred upon and exercised or performed by the Owner
Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is
not authorized to act separately without the Owner Trustee
joining in such act), except to the extent that under any
law of any jurisdiction in which any particular act or acts
are to be performed, the Owner Trustee shall be incompetent
or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the
holding of title to the Trust or any portion thereof in any
such jurisdiction) shall be exercised and performed singly
by such separate trustee or co-trustee, but solely at the
direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be
personally liable by reason of any act or omission of any
other trustee under this Agreement; and
(iii) the Administrator and the Owner Trustee
acting jointly may at any time accept the resignation of or
remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Owner Trustee shall be deemed to have been given to each of the
then separate trustees and co-trustees, as effectively as if
given to each of them. Every instrument appointing any separate
trustee or co-trustee shall refer to this Agreement and the
conditions of this Article. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument
of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting
the liability of, or affording protection to, the Owner Trustee.
Each such instrument shall be filed with the Owner Trustee and a
copy thereof given to the Administrator.
(d) Any separate trustee or co-trustee may at any time
appoint the Owner Trustee as its agent or attorney-in-fact with
full power and authority, to the extent not prohibited by law, to
do any lawful act under or in respect of this Agreement on its
behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Owner Trustee, to the extent
permitted by law, without the appointment of a new or successor
trustee.
SECTION VI.13 Eligibility Requirements for
Owner Trustee. The Owner Trustee shall at all times: (a) be a
corporation satisfying the provisions of Section 3807(a) of the
Business Trust Statute; (b) be authorized to exercise corporate
trust powers; (c) have an aggregate capital, surplus and
undivided profits of at least $50,000,000 and be subject to
supervision or examination by federal or state authorities; and
(d) have (or have a parent which has) a long-term unsecured debt
rating of at least BBB- by Standard & Poor's and at least Baa3 by
▇▇▇▇▇'▇. If such corporation shall publish reports of condition
at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the
purpose of this Section 6.13, the aggregate capital, surplus and
undivided profits of such corporation shall be deemed to be its
aggregate capital, surplus and undivided profits 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 VII.1 Termination of Trust
Agreement.
(a) The Trust shall dissolve and be wound up in
accordance with Section 3808 of the Business Trust Statute on the
date (the "Trust Termination Date") on which the first of the
following occurs: (i) if the Seller so elects, the day following
the Payment Date on which all amounts required to be paid to the
Securityholders pursuant to the Basic Documents have been paid
(or deposited in the Principal Funding Accounts, or the
Certificate Distribution Account) and the aggregate Outstanding
Amount of all Series of Notes is zero and (ii) the twenty-first
anniversary of the execution of this Agreement. This Agreement
and the obligations of the parties hereunder (other than Section
6.9 hereof and as otherwise expressly provided herein) shall
terminate and be of no further force or effect (i) if the Trust
Termination Date is determined pursuant to clause (i) above, on
the Trust Termination Date and (ii) if the Trust Termination Date
is determined pursuant to clause (ii) above, on the date
following the Payment Date on which the final payments to be made
to the Securityholders pursuant to the Basic Documents have been
paid (or deposited in the appropriate Trust Accounts or Group
Accounts).
(b) Except as provided in Section 7.1(a), neither the
Seller nor any Certificateholder shall be entitled to revoke or
terminate the Trust or this Agreement. 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 Trust Assets
nor (z) otherwise affect the rights, obligations and liabilities
of the parties hereto.
(c) Notice of any termination of the Trust specifying
the Payment Date upon which the Certificateholders shall
surrender their Certificates to the Paying Agent for payment of
the final distribution and cancellation, shall be given by the
Owner Trustee by letter to the Certificateholders mailed within
five Business Days of receipt of notice of such termination from
the Servicer, stating: (i) the Payment Date upon or with respect
to which the final distribution of the balance of the
Certificates shall be made upon presentation and surrender of the
Certificates at the office of the Paying Agent therein
designated; (ii) the amount of any such final distribution of the
balance of the Certificates; and (iii) that the Record Date
otherwise applicable to such Payment Date is not applicable,
distributions being made only upon presentation and surrender of
the Certificates at the office of the Paying Agent therein
specified. The Owner Trustee shall give such notice to the
Certificate Registrar (if other than the Owner Trustee) and the
Paying Agent at the time such notice is given to
Certificateholders. Upon presentation and surrender of the
Certificates, the Paying Agent shall cause to be distributed to
Certificateholders amounts distributable on such Payment Date
pursuant to Section 5.2.
(d) If all of the Certificateholders shall not
surrender their Certificates for cancellation within six months
after the date specified in the written notice specified in
Section 7.1(c), the Owner Trustee shall give a second written
notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution
with respect thereto. If within one year after the second notice
all the Certificates shall not have been surrendered for
cancellation, the Owner Trustee may take appropriate steps, or
may appoint an agent to take appropriate steps, to contact the
remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds
and other assets that shall remain subject to this Agreement.
Subject to applicable laws with respect to escheat of funds, any
funds remaining in the Trust after exhaustion of such remedies in
the preceding sentence shall be deemed property of the Seller and
distributed by the Owner Trustee to the Seller and the Owner
Trustee shall have no further liability to the Certificateholders
with respect thereto.
(e) Upon the winding up of the Trust and its
termination, the Owner Trustee shall cause the Certificate of
Trust to be canceled by filing a certificate of cancellation with
the Secretary of State of the State of Delaware in accordance
with the provisions of Section 3810 of the Business Trust Statute.
(f) Within sixty days of the later of (i) the
cancellation of all Certificates pursuant to Section 7.1(c) or
Section 7.1(d), or (ii) payment to the Seller of funds remaining
in the Trust pursuant to Section 7.1(d), the Owner Trustee shall
provide each of the Rating Agencies with written notice stating
that all Certificates have been so canceled or such funds have
been so paid to the Seller.
ARTICLE VIII
AMENDMENTS
Subject to the provisions of Section 8.1 of the Trust
Sale and Servicing Agreement, this Agreement may be amended from
time to time in a writing executed by each of the parties hereto.
ARTICLE IX
MISCELLANEOUS
SECTION IX.1 No Legal Title to Trust Assets. The
Certificateholders shall not have legal title to any part of the
Trust Assets. 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 Trust Assets 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 Trust Assets.
SECTION IX.2 Limitations on Rights of Others. Except
for Sections 2.7, 7.1(c), 7.1(f) and 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 Trust Assets or under
or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
SECTION IX.3 Notices. All demands, notices and
communications upon or to the Seller, the Servicer, the
Administrator, the Indenture Trustee, the Owner Trustee or the
Rating Agencies or any Certificateholder under this Agreement
shall be delivered as specified in Appendix B to the Trust Sale
and Servicing Agreement.
SECTION IX.4 Severability of Provisions. 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 IX.5 Counterparts. This Agreement may be
executed in two or more counterparts (and by different parties on
separate counterparts), each of which shall be an original, but
all of which together shall constitute one and the same
instrument.
SECTION IX.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 IX.7 No Petition Covenant. Notwithstanding any
prior termination of this Agreement, the Trust (or the Owner
Trustee on behalf of the Trust), and each Certificateholder, by
accepting a Certificate (or interest therein) issued hereunder,
hereby covenant and agree that they shall not, prior to the day
that is one year and one day after the termination of this
Agreement, acquiesce, petition or otherwise invoke or cause the
Seller or the Trust to invoke in any court or government
authority for the purpose of commencing or sustaining a case
against the Seller or the Trust 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 the Trust or any substantial
part of its property, or ordering the winding up or liquidation
of the affairs of the Seller or the Trust. The covenants set
forth in this Section 9.7 shall survive the termination of this
Agreement.
SECTION IX.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 or obligations contained in the
Certificates or this Agreement, it being expressly understood
that said covenants and obligations have been made by the Owner
Trustee solely in its capacity as the Owner Trustee. Each
Certificateholder by the acceptance of a Certificate (or
beneficial interest therein) shall agree that, except as
expressly provided in the Basic Documents, in the case of
nonpayment of any amounts with respect to the Certificates, it
shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom.
SECTION IX.9 Headings. The headings herein are for
purposes of reference only and shall not affect the meaning or
interpretation of any provision hereof.
SECTION IX.10 GOVERNING LAW. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO
THE PRINCIPLES OF CONFLICTS OF LAW THEREOF OR OF ANY OTHER
JURISDICTION, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION IX.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 IX.12 Administrator. The
Administrator is authorized to execute on behalf of the Trust all
such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of the Trust to prepare, file or
deliver pursuant to the Basic Documents. Upon request, the Owner
Trustee shall execute and deliver to the Administrator a power of
attorney appointing the Administrator its agent and
attorney-in-fact to execute all such documents, reports, filings,
instruments, certificates and opinions.
SECTION IX.13 Third-Party Beneficiaries.
This Agreement will inure to the benefit of and be binding upon
the parties hereto, the Securityholders, the Indenture Trustee
and their respective successors and permitted assigns. Except as
otherwise expressly provided in this Agreement, no other Person
will have any right or obligation hereunder.
* * * * *
IN WITNESS WHEREOF, the undersigned have caused this
Trust Agreement to be duly executed and delivered by their
respective officers hereunto duly authorized, as of the day and
year first above written.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
not in its individual capacity, but
solely as
Owner Trustee
By:
Name:
Title:
TRUCK ENGINE RECEIVABLES FINANCING CO.,
Seller
By:
Name: R. ▇▇▇▇▇ ▇▇▇▇
Title: Vice President and Treasurer
Acknowledged and Accepted:
NAVISTAR FINANCIAL CORPORATION,
Servicer
By:
Name: R. ▇▇▇▇▇ ▇▇▇▇
Title: Vice President and Treasurer
--------------------------------------------------------------------------------
EXHIBIT A
NUMBER
R-1
OWNERSHIP INTEREST: 100%
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
, 2000. 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.
TRUCK ENGINE RECEIVABLES MASTER TRUST
CERTIFICATE
evidencing a fractional undivided interest in the
Trust, as defined below, the property of which includes
a pool of receivables generated from time to time by
indebtedness of Ford Motor Company ("Ford") arising
from the sale of diesel engines and engine service
parts to Ford.
(This Certificate does not represent an interest in or
obligation of Navistar Financial Corporation, Truck
Engine Receivables Financing Co., ("TERFCO"), Chase
Manhattan Bank USA, National Association, as owner
trustee (the "Owner Trustee") or any of their
respective affiliates, except to the extent described
below.)
THIS CERTIFIES THAT TERFCO is the registered owner of a
nonassessable, fully-paid, fractional undivided interest in Truck
Engine Receivables Master Trust (the "Trust").
The Trust was created pursuant to a trust agreement,
dated as of , 2000 (as amended restated or
supplemented from time to time, the "Trust Agreement"), between
Truck Engine Receivables Financing Co., as transferor (the
"Seller") and 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 Trust Sale 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 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 further provisions of this
Certificate set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon shall
have been executed by an authorized officer of the Owner Trustee
by manual signature, this Certificate shall not entitle the
Holder hereof to any benefit under the Trust Agreement or the
Trust Sale and Servicing Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS OR ANY OTHER JURISDICTION'S CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the
Trust and not in its individual capacity, has caused this
Certificate to be duly executed.
Dated: , 2000
TRUCK ENGINE RECEIVABLES MASTER TRUST
By: CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
not in its individual capacity but
solely as
Owner Trustee
By:
Name:
Title:
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the
within-mentioned Trust Agreement.
CHASE MANHATTAN BANK USA, OR CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, NATIONAL ASSOCIATION,
not in its individual capacity not in its individual capacity
but solely as Owner Trustee but
solely as Owner Trustee
By: THE CHASE MANHATTAN BANK
Authenticating Agent
By:
Authorized Officer By:
Authorized Officer
--------------------------------------------------------------------------------
REVERSE OF CERTIFICATE
The Certificates do not represent an obligation of, or
an interest in, the Seller, the Servicer, Navistar Financial
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, in the Trust Agreement and
the Trust Sale and Servicing Agreement. A copy of each of the
Trust Sale 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 Voting Interests, 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 Payment 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 State of Delaware, 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 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 The Chase Manhattan Bank.
The Owner Trustee, the Certificate Registrar and any
agent of the Owner Trustee or the Certificate Registrar may treat
the person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Owner Trustee, the
Certificate Registrar or any such agent shall be affected by any
notice to the contrary.
The obligations and responsibilities created by the
Trust Agreement and the Trust created thereby shall terminate
upon the distribution to Certificateholders of all amounts
required to be distributed to them pursuant to the Trust
Agreement and the Trust Sale and Servicing Agreement.
CERTIFICATE OF TRANSFER
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.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells,
assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
______________________________________________________________
(Please print or type name and address, including postal zip
code, of assignee
________________________________________________________________
the within Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
________________________________________________Attorney to
transfer said Certificate on the books of the Certificate
Registrar, with full power of substitution in the premises.
Dated:
_______________________________*
Signature Guaranteed:
_______________________________*
*NOTICE: The signature to this assignment must correspond with
the name as it appears upon the face of the within Certificate in
every particular, without alteration, enlargement or any change
whatever. Such signature must be guaranteed by a member firm of
the New York Stock Exchange or a commercial bank or trust company.
EXHIBIT B
CERTIFICATE OF TRUST OF
TRUCK ENGINE RECEIVABLES MASTER TRUST
THIS CERTIFICATE OF TRUST of Truck Engine Receivables
Master Trust (the "Trust"), dated as of
, 2000, is being duly executed and
filed by Chase Manhattan Bank USA, National Association, a
national banking association, as trustee, to form a business
trust under the Delaware Business Trust Act (12 Del. C.ss.3801 et
seq.).
1. Name. The name of the business trust formed
hereby is Truck Engine Receivables Master Trust.
2. Delaware Trustee. The name and business address
of the trustee of the Trust in the State of Delaware is Chase
Manhattan Bank USA, National Association, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ Trust, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
3. This Certificate of Trust shall be effective on
, 2000.
IN WITNESS WHEREOF, the undersigned, being the sole
trustee of the Trust, has executed this Certificate of Trust as
of the date first-above written.
Chase Manhattan Bank USA, National
Association, not in its individual capacity
but solely as Owner Trustee under a Trust
Agreement as of, 2000
By:
Name:
Title:
