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TRUST AGREEMENT
BETWEEN
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
SELLER
AND
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
OWNER TRUSTEE
DATED AS OF APRIL 27, 2001
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS ....................................................................................... 1
1.1 Definitions........................................................................... 1
ARTICLE II
ORGANIZATION....................................................................................... 1
2.1 Name.................................................................................. 1
2.2 Office................................................................................ 1
2.3 Purposes and Powers................................................................... 1
2.4 Appointment of Owner Trustee.......................................................... 2
2.5 Initial Capital Contribution of Owner Trust Estate.................................... 2
2.6 Declaration of Trust.................................................................. 2
2.7 Liability of the Certificateholders................................................... 3
2.8 Title to Trust Property............................................................... 3
2.9 Situs of Trust........................................................................ 3
2.10 Representations and Warranties of the Seller.......................................... 3
ARTICLE III
THE CERTIFICATES................................................................................... 5
3.1 Initial Certificate Ownership......................................................... 5
3.2 Form of the Certificates.............................................................. 5
3.3 Execution, Authentication and Delivery................................................ 5
3.4 Registration; Registration of Transfer and Exchange of Certificates................... 5
3.5 Mutilated, Destroyed, Lost or Stolen Certificates..................................... 7
3.6 Persons Deemed Certificateholders..................................................... 8
3.7 Access to List of Certificateholders' Names and Addresses............................. 8
3.8 Maintenance of Corporate Trust Office................................................. 8
3.9 Appointment of Paying Agent........................................................... 8
3.10 Seller as Certificateholder........................................................... 9
ARTICLE IV
ACTIONS BY OWNER TRUSTEE........................................................................... 9
4.1 Prior Notice to Certificateholders with Respect to Certain Matters.................... 9
4.2 Action by Certificateholders with Respect to Certain Matters.......................... 10
4.3 Action by Certificateholders with Respect to Bankruptcy............................... 10
4.4 Restrictions on Certificateholders' Power............................................. 10
4.5 Majority Control...................................................................... 10
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES......................................................... 10
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5.1 Establishment of Certificate Distribution Account.......................................... 10
5.2 Application of Trust Funds................................................................. 11
5.3 Method of Payment.......................................................................... 12
5.4 Accounting and Reports to the Certificateholders, the Internal Revenue Service and Others.. 12
5.5 Signature on Returns....................................................................... 12
ARTICLE VI
THE OWNER TRUSTEE....................................................................................... 12
6.1 Duties of Owner Trustee.................................................................... 12
6.2 Rights of Owner Trustee.................................................................... 13
6.3 Acceptance of Trusts and Duties............................................................ 14
6.4 Action upon Instruction by Certificateholders.............................................. 15
6.5 Furnishing of Documents.................................................................... 16
6.6 Representations and Warranties of Owner Trustee............................................ 16
6.7 Reliance; Advice of Counsel................................................................ 17
6.8 Owner Trustee May Own Certificates and Notes............................................... 17
6.9 Compensation and Indemnity................................................................. 17
6.10 Replacement of Owner Trustee............................................................... 18
6.11 Merger or Consolidation of Owner Trustee................................................... 19
6.12 Appointment of Co-Trustee or Separate Trustee.............................................. 19
6.13 Eligibility Requirements for Owner Trustee................................................. 20
ARTICLE VII
TERMINATION OF TRUST AGREEMENT.......................................................................... 21
7.1 Termination of Trust Agreement............................................................. 21
ARTICLE VIII
AMENDMENTS.............................................................................................. 22
8.1 Amendments Without Consent of Certificateholders or Noteholders............................ 22
8.2 Amendments With Consent of Certificateholders and Noteholders.............................. 23
8.3 Form of Amendments......................................................................... 23
ARTICLE IX
MISCELLANEOUS........................................................................................... 24
9.1 No Legal Title to Owner Trust Estate....................................................... 24
9.2 Limitations on Rights of Others............................................................ 24
9.3 Notices.................................................................................... 24
9.4 Severability............................................................................... 24
9.5 Counterparts............................................................................... 24
9.6 Successors and Assigns..................................................................... 24
9.7 No Petition Covenant....................................................................... 25
9.8 No Recourse................................................................................ 25
9.9 Headings................................................................................... 25
9.10 Governing Law.............................................................................. 25
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9.11 Certificate Transfer Restrictions.......................................................... 25
9.12 Administrator.............................................................................. 26
9.13 Amended and Restated Trust Agreement....................................................... 26
EXHIBITS
Exhibit A Form of Certificate
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TRUST AGREEMENT, dated as of April 27, 2001 between Navistar Financial
Retail Receivables Corporation, a Delaware corporation, as Seller, and Chase
Manhattan Bank USA, National Association, a national banking association, as
Owner Trustee.
The Seller and the Owner Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. Certain capitalized terms used in this
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Agreement shall have the respective meanings assigned to them in Part I of
Appendix A to the Pooling and Servicing Agreement of even date herewith, among
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the Seller, the Servicer and Chase Manhattan Bank USA, National Association,
acting as Owner Trustee of the Navistar Financial 2001-A Owner Trust (as it may
be amended and supplemented from time to time, the "Pooling and Servicing
Agreement"). All references herein to "the Agreement" or "this Agreement" are to
this Trust Agreement as it may be amended and supplemented from time to time,
the Exhibits hereto and the capitalized terms used herein which are defined in
such Appendix A, and all references herein to Articles, Sections and subsections
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are to Articles, Sections and subsections of this Agreement unless otherwise
specified. The rules of construction set forth in Part II of such Appendix A
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shall be applicable to this Agreement.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name. The Trust created hereby shall be known as
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"Navistar Financial 2001-A Owner Trust."
SECTION 2.2 Office. The office of the Trust shall be in care of
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the Owner Trustee at the Corporate Trust Office or at such other address in
Delaware as the Owner Trustee may designate by written notice to the
Certificateholders and the Seller.
SECTION 2.3 Purposes and Powers. (a) The purpose of the Trust is
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to engage in the following activities:
(i) to acquire, manage and hold the Receivables;
(ii) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement, and to sell, transfer or exchange
the Notes and to transfer and exchange the Certificates;
(iii) to acquire property and assets from the Seller pursuant to the
Pooling and Servicing Agreement, to make payments or distributions on the
Securities to the Securityholders, to make deposits into and withdrawals
from the Reserve Account, the Pre-
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Funding Account, the Negative Carry Account and other accounts established
pursuant to the Basic Documents and to pay the organizational, start-up and
transactional expenses of the Trust;
(iv) to assign, grant, transfer, pledge, mortgage and convey the
Trust Estate pursuant to the terms of the Indenture and to hold, manage and
distribute to the Certificateholders pursuant to the terms of this
Agreement and the Pooling and Servicing Agreement any portion of the Trust
Estate released from the lien of, and remitted to the Trust pursuant to,
the Indenture;
(v) to have the Owner Trustee enter into and perform obligations
and exercise rights on behalf of the Trust under the Basic Documents to
which it is to be a party;
(vi) to engage in those activities, including having the Owner
Trustee enter into agreements, that are necessary, suitable, desirable or
convenient to accomplish the foregoing or are incidental thereto or
connected therewith; and
(vii) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation of
the Owner Trust Estate and the making of payments or distributions to the
Securityholders;
provided, however, that the Owner Trustee may only enter into derivatives, only
if such derivatives are passive and entered into at the time the beneficial
interest in the Owner Trust Estate is created.
The Owner Trustee, on behalf of the Trust, shall not engage in any activity
other than in connection with the foregoing or other than as required or
authorized by the terms of this Agreement or the Basic Documents.
SECTION 2.4 Appointment of Owner Trustee. The Seller hereby appoints
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Chase Manhattan Bank USA, National Association as trustee of the Trust (the
"Owner Trustee") effective as of the date hereof, to have all the rights, powers
and duties set forth herein.
SECTION 2.5 Initial Capital Contribution of Owner Trust Estate. The
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Seller hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, on behalf of the Trust, as of the date hereof, the sum of $1. The Owner
Trustee hereby acknowledges receipt in trust from the Seller, as of the date
hereof, of the foregoing contribution, which shall constitute the initial Owner
Trust Estate and shall be deposited in the Certificate Distribution Account. The
Seller shall pay organizational expenses of the Trust as they may arise or
shall, upon the request of the Owner Trustee, promptly reimburse the Owner
Trustee for any such expenses paid by the Owner Trustee.
SECTION 2.6 Declaration of Trust. The Owner Trustee hereby declares
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that it shall hold the Owner Trust Estate in trust upon and subject to the
conditions and obligations set forth herein and in the Pooling and Servicing
Agreement for the use and benefit of the Certificateholders, subject to the
obligations of the Owner Trustee, on behalf of the Trust, under the Basic
Documents. It is the intention of the parties hereto that the Trust constitute a
common law trust duly organized
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under the laws of the State of Delaware, that this Agreement constitute the
governing instrument of such trust and that the Certificates represent the
equity interests therein. The rights of the Certificateholders shall be
determined as set forth herein and the relationship between the parties hereto
created by this Agreement shall not constitute indebtedness for any purpose. It
is the intention of the parties hereto that, solely for purposes of federal
income taxes, state and local income and franchise taxes, and any other taxes
imposed upon, measured by, or based upon gross or net income, the Trust shall be
treated as a division or branch of the Seller. The parties agree that, unless
otherwise required by appropriate tax authorities, the Owner Trustee shall file
or cause to be filed annual or other necessary returns, reports and other forms
consistent with the characterization of the Trust as a division or branch of the
Seller for such tax purposes; provided, however, that until the Seller receives
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a ruling from the Illinois Department of Revenue or an opinion of counsel
reasonably acceptable to the Owner Trustee that the Trust will be treated as a
branch or division of the Seller for purposes of the Illinois Income Tax Act and
the Illinois Personal Property Tax Replacement Tax Act, for purposes of the
Illinois Income Tax Act and the Illinois Personal Property Tax Replacement Tax
Act, the Seller will (i) include the taxable income of the Trust in the combined
tax return filed by the combined group that includes the Seller, (ii) take all
steps necessary to treat the Trust as a member of the same combined group of
which the Seller is a member and (iii) provide information to the Owner Trustee
to confirm that the actions required by clauses (i) and (ii) have been effected.
Effective as of the date hereof, the Owner Trustee shall have all rights, powers
and duties set forth in this Agreement and the Pooling and Servicing Agreement
with respect to accomplishing the purposes of the Trust.
SECTION 2.7 Liability of the Certificateholders. No
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Certificateholder shall have any personal liability for any liability or
obligation of the Trust.
SECTION 2.8 Title to Trust Property. Legal title to all the Owner
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Trust Estate shall be vested at all times in the Owner Trustee, on behalf of the
Trust, except where applicable law in any jurisdiction requires title to any
part of the Owner Trust Estate to be vested in a co-trustee or a separate
trustee, in which case title shall be deemed to be vested in a co-trustee and/or
a separate trustee, as the case may be.
SECTION 2.9 Situs of Trust. The Trust shall be located and
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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
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prohibit the Owner Trustee from having employees within or without the State of
Delaware. Payments shall be received by the Owner Trustee only in Delaware or
New York, and payments and distributions shall be made by the Owner Trustee only
from Delaware or New York. The only office of the Trust shall be the Corporate
Trust Office of the Owner Trustee in Delaware.
SECTION 2.10 Representations and Warranties of the Seller. The Seller
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hereby represents and warrants to the Owner Trustee that:
(a) The Seller has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with power
and authority to own its
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properties and to conduct its business as such properties are presently owned
and such business is presently conducted and had at all relevant times, and now
has, power, authority and legal right to acquire and own the Receivables.
(b) The Seller is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of property or
the conduct of its business requires such qualifications.
(c) The Seller has the power and authority to execute and deliver this
Agreement and to carry out its terms, the Seller has full power and authority to
sell and assign the property to be sold and assigned to and deposited with the
Owner Trustee on behalf of the Trust, and the Seller has duly authorized such
sale and assignment to the Owner Trustee, on behalf of the Trust, by all
necessary corporate action; and the execution, delivery and performance of this
Agreement have been duly authorized by the Seller by all necessary corporate
action.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms of this Agreement do not conflict
with, result in any breach of any of the terms and provisions of or constitute
(with or without notice or lapse of time) a default under, the certificate of
incorporation or by-laws of the Seller, or any indenture, agreement or other
instrument to which the Seller is a party or by which it is bound, or result in
the creation or imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement or other instrument (other than
pursuant to the Basic Documents), or violate any law or, to the Seller's
knowledge, any order, rule or regulation applicable to the Seller of any court
or of any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Seller or any of its
properties.
(e) This Agreement, when duly executed and delivered, shall constitute
a legal, valid and binding obligation of the Seller enforceable in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights in general and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or at law.
(f) There are no proceedings or, to the Seller's knowledge,
investigations pending or, to the Seller's knowledge, threatened before any
court, regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Seller or its properties (i)
asserting the invalidity of this Agreement or any Certificates issued pursuant
hereto or, (ii) seeking to prevent the issuance of such Certificates or the
consummation of any of the transactions contemplated by this Agreement or (iii)
seeking any determination or ruling that might materially and adversely affect
the performance by the Seller of its obligations under, or the validity or
enforceability of, such Certificates or this Agreement.
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ARTICLE III
THE CERTIFICATES
SECTION 3.1 Initial Certificate Ownership. Upon the formation of
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the Trust by the contribution by the Seller pursuant to Section 2.5 and until
the issuance of the Certificates, the Seller shall be the sole beneficiary of
the Trust.
SECTION 3.2 Form of the Certificates.
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(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
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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 Owner Trustee, shall be, when authenticated pursuant to Section
3.3, validly issued and entitled to the benefits of the Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the authentication and delivery of such Certificates or did
not hold such offices at the date of authentication and delivery of such
Certificates.
(b) The Certificates shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders) all as determined by the officers executing such Certificates,
as evidenced by their execution of such Certificates.
(c) The Certificates shall be issued in fully-registered form and
shall be in definitive form only. The terms of the Certificates set forth in
Exhibit A shall form part of this Agreement.
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SECTION 3.3 Execution, Authentication and Delivery. Concurrently
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with the sale of the Initial Receivables to the Owner Trustee, on behalf of the
Trust, pursuant to the Pooling and Servicing Agreement, the Owner Trustee shall
execute, authenticate and deliver the Certificates to or upon the written order
of the Seller, signed by its chairman of the board, its president or any vice
president, without further corporate action by the Seller, in authorized
denominations. No Certificate shall entitle its holder to any benefit under
this Agreement, or shall be valid for any purpose, unless there shall appear on
such Certificate a certificate of authentication substantially in the form set
forth in Exhibit A, executed by the Owner Trustee or The Chase Manhattan Bank,
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as the Owner Trustee's authenticating agent, by manual signature. Such
authentication shall constitute conclusive evidence that such Certificate shall
have been duly authenticated and delivered hereunder. All Certificates shall be
dated the date of their authentication.
SECTION 3.4 Registration; Registration of Transfer and Exchange of
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Certificates.
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(a) The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.8, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the Owner
Trustee shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as provided herein. The Chase Manhattan Bank shall
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be the initial Certificate Registrar. Upon any resignation of a Certificate
Registrar, the Owner Trustee shall promptly appoint a successor or, if it elects
not to make such an appointment, assume the duties of Certificate Registrar.
(b) The initial Certificateholders may at any time, without consent of
the Noteholders, sell, transfer, convey or assign in any manner its rights to
and interests in the Certificates (including its right to distributions from the
Reserve Account), provided that: (i) such action will not result in a reduction
or withdrawal of the rating of any class of Notes, (ii) the Certificateholders
provide to the Owner Trustee and the Indenture Trustee an opinion of independent
counsel that such action will not cause the Trust to be treated as an
association (or publicly traded partnership) taxable as a corporation for
Federal income tax purposes, (iii) such transferee or assignee agrees to take
positions for tax purposes consistent with the tax positions agreed to be taken
by the Certificateholders and (iv) the conditions set forth in Section 9.11 have
been satisfied. In addition, no transfer of a Certificate shall be registered
unless the transferee shall have provided to the Owner Trustee and the
Certificate Registrar an opinion of counsel that in connection with such
transfer no registration of the Certificates is required under the Securities
Act or applicable state law or that such transfer is otherwise being made in
accordance with all applicable federal and state securities laws.
(c) Subject to Section 3.4(b), upon surrender for registration of
transfer of any Certificate at the office or agency maintained pursuant to
Section 3.8, the Owner Trustee shall execute, authenticate and deliver (or shall
cause The Chase Manhattan Bank as its authenticating agent to authenticate and
deliver), in the name of the designated transferee or transferees, one or more
new Certificates in authorized denominations of a like aggregate amount dated
the date of authentication by the Owner Trustee or any authenticating agent.
(d) At the option of a Holder, Certificates may be exchanged for other
Certificates of a like aggregate percentage interest upon surrender of the
Certificates to be exchanged at the Corporate Trust Office maintained pursuant
to Section 3.8. Whenever any Certificates are so surrendered for exchange, the
Owner Trustee shall execute, authenticate and deliver (or shall cause The Chase
Manhattan Bank as its authenticating agent to authenticate and deliver) one or
more Certificates dated the date of authentication by the Owner Trustee or any
authenticating agent. Such Certificates shall be delivered to the Holder making
the exchange.
(e) Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the Holder or his attorney duly authorized in writing. Each
Certificate surrendered for registration of transfer or exchange shall be
canceled and subsequently destroyed or otherwise disposed of by the Owner
Trustee or Certificate Registrar in accordance with its customary practice.
(f) No service charge shall be made for any registration of transfer
or exchange of Certificates, but the Owner Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of Certificates.
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SECTION 3.5 Mutilated, Destroyed, Lost or Stolen Certificates.
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(a) If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Certificate Registrar, the Owner Trustee such security or indemnity as
may be required by it to hold it harmless, then, in the absence of notice to the
Certificate Registrar or the Owner Trustee that such Certificate has been
acquired by a protected purchaser, the Owner Trustee shall execute and the Owner
Trustee shall authenticate and deliver (or shall cause The Chase Manhattan Bank
as its authenticating agent to authenticate and deliver), in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a replacement
Certificate in authorized denominations of a like amount; provided, however,
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that if any such destroyed, lost or stolen Certificate, but not a mutilated
Certificate, shall have become or within seven days shall be due and payable,
then instead of issuing a replacement Certificate the Owner Trustee may pay such
destroyed, lost or stolen Certificate when so due or payable.
(b) If, after the delivery of a replacement Certificate or
distribution in respect of a destroyed, lost or stolen Certificate pursuant to
subsection 3.5(a), a bona fide purchaser of the original Certificate in lieu of
which such replacement Certificate was issued presents for payment such original
Certificate, the Owner Trustee shall be entitled to recover such replacement
Certificate (or such distribution) from the Person to whom it was delivered or
any Person taking such replacement Certificate from such Person to whom such
replacement Certificate was delivered or any assignee of such Person, except a
bona fide purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by the Owner Trustee in connection therewith.
(c) In connection with the issuance of any replacement Certificate
under this Section 3.5, the Owner Trustee may require the payment by the Holder
of such Certificate of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other reasonable expenses
(including the fees and expenses of the Owner Trustee and the Certificate
Registrar) connected therewith.
(d) Any duplicate Certificate issued pursuant to this Section 3.5 in
replacement of any mutilated, destroyed, lost or stolen Certificate shall
constitute an original additional contractual obligation under this Agreement ,
whether or not the mutilated, destroyed, lost or stolen Certificate shall be
found at any time or be enforced by anyone, and shall be entitled to all the
benefits of this Agreement equally and proportionately with any and all other
Certificates duly issued hereunder.
(e) The provisions of this Section 3.5 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Certificates.
SECTION 3.6 Persons Deemed Certificateholders. Prior to due
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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
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Certificateholder of such Certificate for the purpose of receiving distributions
pursuant to Article V and for all other purposes whatsoever, and neither the
Owner Trustee nor the Certificate Registrar shall be bound by any notice to the
contrary.
SECTION 3.7 Access to List of Certificateholders' Names and
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Addresses. The Owner Trustee shall furnish or cause to be furnished to the
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Servicer and the Seller, within 15 days after receipt by the Owner Trustee of a
request therefor from the Servicer or the Seller in writing, a list, in such
form as the Servicer or the Seller may reasonably require, of the names and
addresses of the Certificateholders as of the most recent Record Date. Each
Holder, by receiving and holding a Certificate, shall be deemed to have agreed
not to hold any of the Servicer, the Seller or the Owner Trustee accountable by
reason of the disclosure of its name and address, regardless of the source from
which such information was derived.
SECTION 3.8 Maintenance of Corporate Trust Office. The Owner
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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 3.9 Appointment of Paying Agent. The Paying Agent shall
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make distributions to Certificateholders from the Certificate Distribution
Account pursuant to Section 5.2 and shall report the amounts of such
distributions to the Owner Trustee. Any Paying Agent shall have the revocable
power to withdraw funds from the Certificate Distribution Account for the
purpose of making the distributions referred to above. The Owner Trustee may
revoke such power and remove the Paying Agent if the Owner Trustee determines in
its sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. The Paying Agent
shall initially be The Chase Manhattan Bank, and any co-paying agent chosen by
The Chase Manhattan Bank, and acceptable to the Owner Trustee. The Chase
Manhattan Bank shall be permitted to resign as Paying Agent upon 30 days'
written notice to the Owner Trustee. If The Chase Manhattan Bank shall no
longer be the Paying Agent, the Owner Trustee shall appoint a successor to act
as Paying Agent (which shall be a bank or trust company). The Owner Trustee
shall cause such successor Paying Agent or any additional Paying Agent appointed
by the Owner Trustee to execute and deliver to the Owner Trustee an instrument
in which such successor Paying Agent or additional Paying Agent shall agree with
the Owner Trustee that as Paying Agent, such successor Paying Agent or
additional Paying Agent shall hold all sums, if any, held by it for distribution
to the Certificateholders in trust for the benefit of the Certificateholders
entitled thereto until such sums shall be paid to such Certificateholders. The
Paying Agent shall return all unclaimed funds to the Owner Trustee and upon
removal of a Paying Agent such Paying Agent shall also return all funds in its
possession to the Owner Trustee. The provisions of Sections 6.3, 6.6, 6.7, 6.8
and 6.9 shall apply, mutatis mutandis, to the Owner Trustee also in its role as
Paying Agent, for so long as the Owner Trustee shall act as Paying Agent and, to
the extent applicable, to any other paying agent
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appointed hereunder. Any reference in this Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.
SECTION 3.10 Seller as Certificateholder. The Seller in its
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individual or any other capacity may become the owner or pledgee of Certificates
and may otherwise deal with the Owner Trustee or its Affiliates as if it were
not the Seller.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Certificateholders with Respect to
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Certain Matters. The Owner Trustee shall not take action with respect to the
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following matters, unless (i) the Owner Trustee shall have notified the
Certificateholders in writing of the proposed action at least 30 days before the
taking of such action, and (ii) the Certificateholders shall not have notified
the Owner Trustee in writing prior to the 30th day after such notice is given
that such Certificateholders have withheld consent or provided alternative
direction:
(a) the initiation of any claim or lawsuit on behalf of the Trust
(other than an action to collect on a Receivable or an action by the Indenture
Trustee pursuant to the Indenture) and the compromise of any action, claim or
lawsuit brought on behalf of or against the Trust or the Owner Trustee (other
than an action to collect on a Receivable or an action by the Indenture Trustee
pursuant to the Indenture);
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interests of the Certificateholders;
(d) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any provision
in a manner that would not materially adversely affect the interests of the
Certificateholders;
(e) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Agreement of a
successor Certificate Registrar, or the consent to the assignment by the Note
Registrar, Paying Agent or Indenture Trustee or Certificate Registrar of its
obligations under the Indenture or this Agreement, as applicable; or
(f) the amendment of the Pooling and Servicing Agreement in
circumstances where the consent of any Noteholder is required.
SECTION 4.2 Action by Certificateholders with Respect to Certain
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Matters. The Owner Trustee shall not have the power, except upon the written
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direction of the Certificateholders,
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to (a) remove the Administrator under the Administration Agreement pursuant to
Section 10 thereof, (b) appoint a successor Administrator pursuant to Section 10
of the Administration Agreement, (c) remove the Servicer under the Pooling and
Servicing Agreement pursuant to Section 8.02 thereof or (d) except as expressly
provided in the Basic Documents, sell the Receivables or any interest therein
after the termination of the Indenture. The Owner Trustee shall take the actions
referred to in the preceding sentence only upon written instructions signed by
the Certificateholders.
SECTION 4.3 Action by Certificateholders with Respect to Bankruptcy.
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The Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
Holders of Certificates (including the unanimous approval of the board of
directors of the Seller) unless the Owner Trustee reasonably believes that the
Trust is insolvent.
SECTION 4.4 Restrictions on Certificateholders' Power. The
-----------------------------------------
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Agreement or any of the Basic
Documents or would be contrary to Section 2.3, nor shall the Owner Trustee be
obligated to follow any such direction, if given.
SECTION 4.5 Majority Control. Except as expressly provided herein,
----------------
any action that may be taken or consent that may be given or withheld by the
Certificateholders under this Agreement shall be effective if such action is
taken or such consent is given or withheld by the Holders of a majority of the
ownership interest in the Trust outstanding as of the close of the preceding
Distribution Date. Except as expressly provided herein, any written notice,
instruction, direction or other document of the Certificateholders delivered
pursuant to this Agreement shall be effective if signed by Holders of
Certificates evidencing not less than a majority of the ownership interest in
the Trust at the time of the delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 Establishment of Certificate Distribution Account.
-------------------------------------------------
(a) The Servicer, for the benefit of the Certificateholders, shall
establish and maintain at The Chase Manhattan Bank in the name of the Owner
Trustee an Eligible Deposit Account known as the Navistar Financial 2001-A Owner
Trust Certificate Distribution Account (the "Certificate Distribution Account"),
bearing an additional designation clearly indicating that the funds deposited
therein are held for the benefit of the Certificateholders.
(b) The Owner Trustee shall possess all right, title and interest in
and to all funds on deposit from time to time in the Certificate Distribution
Account and in all proceeds thereof. Except as otherwise provided herein or in
the Pooling and Servicing Agreement, the Certificate Distribution Account shall
be under the sole dominion and control of the Owner Trustee for the benefit of
the Certificateholders. If, at any time, the Certificate Distribution Account
ceases to be
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an Eligible Deposit Account, the Servicer shall within 10 Business Days (or such
longer period, not to exceed 30 calendar days, as to which each Rating Agency
may consent) establish a new Certificate Distribution Account as an Eligible
Deposit Account and shall cause the Owner Trustee to transfer any cash and/or
any investments in the old Certificate Distribution Account to such new
Certificate Distribution Account.
SECTION 5.2 Application of Trust Funds.
--------------------------
(a) On each Distribution Date, the Owner Trustee shall (based on the
information contained in the Servicer's Certificate delivered on the related
Determination Date) distribute to the Certificateholders, on a pro rata basis,
amounts deposited in the Certificate Distribution Account pursuant to Sections
4.07(b), 5.01(b)(i), 5.03(b), 5.05, 9.02(a) and 9.02(d) of the Pooling and
Servicing Agreement.
(b) On each Distribution Date, the Owner Trustee shall send (or shall
cause to be sent) to each Certificateholder the statement described in Section
4.09(a) of the Pooling and Servicing Agreement.
(c) If any withholding tax is imposed on distributions of the Owner
Trust Estate (or allocations of income) to a Certificateholder, such tax shall
reduce the amount otherwise distributable to the Certificateholder in accordance
with this Section 5.2. The Owner Trustee is hereby authorized and directed to
retain from amounts otherwise distributable to the Certificateholders sufficient
funds for the payment of any tax that is legally required to be paid by the
Owner Trustee, on behalf of the Trust (but such authorization shall not prevent
the Owner Trustee from contesting any such tax in appropriate proceedings and
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings). The amount of any withholding tax imposed with respect to a
Certificateholder shall be treated as cash distributed to such Certificateholder
at the time it is withheld by the Owner Trustee and remitted to the appropriate
taxing authority. If there is a possibility that withholding tax is payable with
respect to a distribution (such as a distribution to a non-U.S.
Certificateholder), the Owner Trustee may in its sole discretion withhold such
amounts in accordance with this subsection 5.2(c). If a Certificateholder wishes
to apply for a refund of any such withholding tax, the Owner Trustee shall
reasonably cooperate with such Certificateholder in making such claim so long as
such Certificateholder agrees to reimburse the Owner Trustee for any out-of-
pocket expenses incurred.
(d) If the Indenture Trustee holds escheated funds for payment to the
Trust pursuant to Section 3.3(e) of the Indenture, the Owner Trustee shall, upon
notice from the Indenture Trustee that such funds exist, submit an Issuer Order
to the Indenture Trustee pursuant to Section 3.3(e) of the Indenture instructing
the Indenture Trustee to pay such funds to or at the order of the Seller.
SECTION 5.3 Method of Payment. Subject to Section 7.1(c),
-----------------
distributions required to be made to Certificateholders on any Distribution Date
shall be made to each Certificateholder of record on the related Record Date (i)
by wire transfer, in immediately available funds, to the account of such Holder
at a bank or other entity having appropriate facilities therefor or, where
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possible, by intra-bank book entry credit, if such Certificateholder shall have
provided to the Certificate Registrar appropriate written instructions at least
five Business Days prior to such Record Date and the distribution required to be
made to such Certificateholders exceeds $100,000 or (ii) by check mailed to such
Certificateholder at the address of such Holder appearing in the Certificate
Register.
SECTION 5.4 Accounting and Reports to the Certificateholders, the
-----------------------------------------------------
Internal Revenue Service and Others. The Owner Trustee shall (a) maintain (or
-----------------------------------
cause to be maintained) the books of the Trust on the basis of a fiscal year
ending October 31 on the accrual method of accounting, (b) deliver to each
Certificateholder, as may be required by the Code and applicable Treasury
Regulations or otherwise, such information as may be required to enable each
Certificateholder to prepare its federal income tax returns, (c) file such tax
returns relating to the Trust and make such elections as may from time to time
be required or appropriate under any applicable state or federal statute or rule
or regulation thereunder so as to maintain the Trust's characterization as a
division or branch of the Seller for federal income tax purposes, (d) cause such
tax returns to be signed in the manner required by law and (e) collect or cause
to be collected any withholding tax as described in and in accordance with
subsection 5.2(c) with respect to income or distributions to Certificateholders.
SECTION 5.5 Signature on Returns. The Owner Trustee shall sign on
--------------------
behalf of the Trust any and all tax returns of the Trust, unless applicable law
requires a Certificateholder to sign such documents, in which case such
documents shall be signed by the Seller.
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 Duties of Owner Trustee.
-----------------------
(a) The Owner Trustee undertakes to perform such duties, and only
such duties, as are specifically set forth in this Agreement, the Pooling and
Servicing Agreement and the other Basic Documents, including the administration
of the Trust in the interest of the Certificateholders, subject to the Basic
Documents and in accordance with the provisions of this Agreement and the
Pooling and Servicing Agreement. No implied covenants or obligations shall be
read into this Agreement, the Pooling and Servicing Agreement or any other Basic
Document against the Owner Trustee.
(b) Notwithstanding the foregoing, the Owner Trustee shall be deemed
to have discharged its duties and responsibilities hereunder and under the Basic
Documents to the extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Owner Trustee
hereunder or under any Basic Document, and the Owner Trustee shall not be liable
for the default or failure of the Administrator to carry out its obligations
under the Administration Agreement.
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(c) In the absence of bad faith on its part, the Owner Trustee may
conclusively rely upon certificates or opinions furnished to the Owner Trustee
and conforming to the requirements of this Agreement in determining the truth of
the statements and the correctness of the opinions contained therein; provided,
--------
however, that the Owner Trustee shall have examined such certificates or
-------
opinions so as to determine compliance of the same with the requirements of this
Agreement.
(d) The Owner Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this subsection 6.1(d) shall not limit the effect of
subsection 6.1(a) or (b);
(ii) the Owner Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is proved
that the Owner Trustee was negligent in ascertaining the pertinent facts;
and
(iii) the Owner Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 4.1, 4.2 or 6.4.
(e) Subject to Sections 5.1 and 5.2, monies received by the Owner
Trustee hereunder need not be segregated in any manner except to the extent
required by law or the Pooling and Servicing Agreement and may be deposited
under such general conditions as may be prescribed by law, and the Owner Trustee
shall not be liable for any interest thereon.
(f) The Owner Trustee shall not take any action that (i) is
inconsistent with the purposes of the Trust set forth in Section 2.3 or (ii)
would, to the actual knowledge of a Responsible Officer of the Owner Trustee,
result in the Trust's becoming taxable as a corporation for federal income tax
purposes.
(g) The Certificateholders shall not direct the Owner Trustee to take
action that would violate the provisions of this Section 6.1.
SECTION 6.2 Rights of Owner Trustee. The Owner Trustee is
-----------------------
authorized and directed to execute and deliver the Basic Documents and each
certificate or other document attached as an exhibit to or contemplated by the
Basic Documents to which it is to be a party, on behalf of the Trust, in such
form as the Seller shall approve as evidenced conclusively by the Owner
Trustee's execution thereof. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions required of it, on
behalf of the Trust, pursuant to the Basic Documents. The Owner Trustee is
further authorized from time to time to take such action as the Administrator
recommends with respect to the Basic Documents.
SECTION 6.3 Acceptance of Trusts and Duties. Except as otherwise
-------------------------------
provided in this Article VI, in accepting the trusts hereby created, Chase
Manhattan Bank USA, National Association acts solely as Owner Trustee hereunder
and not in its individual capacity and all Persons having any
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claim against the Owner Trustee by reason of the transactions contemplated by
this Agreement or any Basic Document shall look only to the Owner Trust Estate
for payment or satisfaction thereof. The Owner Trustee accepts the trusts hereby
created and agrees to perform its duties hereunder with respect to such trusts
but only upon the terms of this Agreement. The Owner Trustee also agrees to
disburse all monies actually received by it constituting part of the Owner Trust
Estate upon the terms of this Agreement. The Owner Trustee shall not be liable
or accountable hereunder or under any Basic Document under any circumstances,
except (i) for its own negligent action, its own negligent failure to act or its
own willful misconduct or (ii) in the case of the inaccuracy of any
representation or warranty contained in Section 6.6 and expressly made by the
Owner Trustee. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(b) the Owner Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Receivable or the perfection and priority of any security interest created
by any Receivable in any Financed Vehicle or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the Owner
Trust Estate or its ability to generate the distributions and payments to be
made to Certificate holders under this Agreement or to Noteholders under the
Indenture, including, without limitation: the existence, condition and ownership
of any Financed Vehicle; the existence and enforceability of any insurance
thereon; the existence and contents of any Receivable on any computer or other
record thereof; the validity of the assignment of any Receivable to the Owner
Trustee or of any intervening assignment; the completeness of any Receivable;
the performance or enforcement of any Receivable; the compliance by the Seller
or the Servicer with any warranty or representation made under any Basic
Document or in any related document or the accuracy of any such warranty or
representation or any action of the Administrator, the Trustee or the Servicer
or any subservicer taken in the name of the Owner Trustee;
(c) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of the
Administrator or any Certificate holder;
(d) 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;
(e) 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;
(f) the Owner Trustee shall not be responsible for or in respect of,
and makes no representation as to, the validity or sufficiency of any provision
of this Agreement or for the due execution hereof by the Seller or for the form,
character, genuineness, sufficiency, value or validity of any of the Owner Trust
Estate or for or in respect of the validity or sufficiency of the Basic
Documents, the Notes, the Certificates (other than the certificate of
authentication on the
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Certificates) or of any Receivables or any related documents, and the Owner
Trustee shall in no event assume or incur any liability, duty or obligation to
any Noteholder or to any Certificateholder, other than as expressly provided for
herein and in the Basic Documents;
(g) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Indenture Trustee, the Seller or the
Servicer under any of the Basic Documents or otherwise and the Owner Trustee
shall not have any obligation or liability to perform the obligations of the
Trust under this Agreement or the Basic Documents that are required to be
performed by the Administrator under the Administration Agreement, the Indenture
Trustee under the Indenture, the Servicer under the Pooling and Servicing
Agreement or NFC under the Purchase Agreement; and
(h) the Owner Trustee shall not be under any obligation to exercise
any of the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement or any Basic Document, at the request, order or
direction of any of the Certificateholders, unless such Certificateholders have
offered to the Owner Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities that may be incurred by the Owner Trustee
therein or thereby. The right of the Owner Trustee to perform any discretionary
act enumerated in this Agreement or in any Basic Document shall not be construed
as a duty, and the Owner Trustee shall not be answerable for other than its
negligence or willful misconduct in the performance of any such act.
SECTION 6.4 Action upon Instruction by Certificateholders.
---------------------------------------------
(a) Subject to Section 4.4 and Section 6.1(g), the Certificateholders
may by written instruction direct the Owner Trustee in the management of the
Trust. Such direction may be exercised at any time by written instruction of
the Certificateholders pursuant to Section 4.5.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be
required to take any action hereunder or under any Basic Document if the Owner
Trustee shall have reasonably determined, or shall have been advised by counsel,
that such action is likely to result in liability on the part of the Owner
Trustee or is contrary to the terms hereof or of any Basic Document or is
otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any Basic Document, or is unsure as to the application, intent,
interpretation or meaning of any provision of this Agreement or the Basic
Documents, the Owner Trustee shall promptly give notice (in such form as shall
be appropriate under the circumstances) to the Certificateholders requesting
instruction as to the course of action to be adopted, and, to the extent the
Owner Trustee acts in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable on account of such action to any
Person. If the Owner Trustee shall not have received appropriate instructions
within ten days of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action which is consistent, in its view, with this Agreement or the
Basic Documents, and as it
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shall deem to be in the best interests of the Certificateholders, and the Owner
Trustee shall have no liability to any Person for any such action or inaction.
SECTION 6.5 Furnishing of Documents. The Owner Trustee shall
-----------------------
furnish to the Certificateholders, promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Basic Documents.
SECTION 6.6 Representations and Warranties of Owner Trustee. The
-----------------------------------------------
Owner Trustee hereby represents and warrants to the Seller, for the benefit of
the Certificateholders, that:
(a) It is a national bank duly organized, validly existing and in
good standing under the federal laws of the United States of America. The
eligibility requirements set forth in Section 6.13 (a) - (c) are satisfied with
respect to it.
(b) It has full power, authority and legal right to execute, deliver
and perform this Agreement, and has taken all necessary action to authorize the
execution, delivery and performance by it of this Agreement.
(c) The execution, delivery and performance by it of this Agreement
(i) shall not violate any provision of any law or regulation governing the
banking and trust powers of the Owner Trustee or any order, writ, judgment or
decree of any court, arbitrator or governmental authority applicable to the
Owner Trustee or any of its assets, (ii) shall not violate any provision of the
charter or by-laws of the Owner Trustee, or (iii) shall not violate any
provision of, or constitute, with or without notice or lapse of time, a default
under, or result in the creation or imposition of any lien on any properties
included in the Owner Trust Estate pursuant to the provisions of any mortgage,
indenture, contract, agreement or other undertaking to which it is a party,
which violation, default or lien could reasonably be expected to have a
materially adverse effect on the Owner Trustee's performance or ability to
perform its duties as Owner Trustee under this Agreement or on the transactions
contemplated in this Agreement.
(d) The execution, delivery and performance by the Owner Trustee of
this Agreement shall not require the authorization, consent or approval of, the
giving of notice to, the filing or registration with, or the taking of any other
action in respect of, any governmental authority or agency regulating the
corporate trust activities of Chase Manhattan Bank USA, National Association.
(e) This Agreement has been duly executed and delivered by the Owner
Trustee and constitutes the legal, valid and binding agreement of the Owner
Trustee, enforceable in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights in general and by general
principles of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law.
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SECTION 6.7 Reliance; Advice of Counsel.
---------------------------
(a) The Owner Trustee shall incur no liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties and
need not investigate any fact or matter in any such document. The Owner Trustee
may accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the method of the determination of which is
not specifically prescribed herein, the Owner Trustee may for all purposes
hereof rely on a certificate, signed by the president or any vice president or
by the treasurer or other authorized officers of the relevant party, as to such
fact or matter, and such certificate shall constitute full protection to the
Owner Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the Basic
Documents, the Owner Trustee: (i) may act directly or through its agents,
attorneys, custodians or nominees pursuant to agreements entered into with any
of them, and the Owner Trustee shall not be liable for the conduct or misconduct
of such agents, attorneys, custodians or nominees if such agents, attorneys,
custodians or nominees shall have been selected by the Owner Trustee with
reasonable care; and (ii may consult with counsel, accountants and other skilled
professionals to be selected with reasonable care and employed by it. The Owner
Trustee shall not be liable for anything done, suffered or omitted in good faith
by it in accordance with the opinion or advice of any such counsel, accountants
or other such Persons and not contrary to this Agreement or any Basic Document.
SECTION 6.8 Owner Trustee May Own Certificates and Notes. The
--------------------------------------------
Owner Trustee in its individual or any other capacity may become the owner or
pledgee of Certificates or Notes and may deal with the Seller, the
Administrator, the Indenture Trustee and the Servicer in transactions in the
same manner as it would have if it were not the Owner Trustee.
SECTION 6.9 Compensation and Indemnity. The Owner Trustee shall
--------------------------
receive as compensation from the Seller for its services hereunder such fees as
have been separately agreed upon before the date hereof between the Seller and
the Owner Trustee, and the Owner Trustee shall be entitled to be reimbursed by
the Servicer for its other reasonable expenses hereunder, including the
reasonable compensation, expenses and disbursements of such agents, custodians,
nominees, representatives, experts and counsel as it may employ in connection
with the exercise and performance of its rights and its duties hereunder. The
Servicer shall indemnify the Owner Trustee and its successors, assigns, agents
and servants in accordance with the provisions of Section 7.01 of the Pooling
and Servicing Agreement. The compensation and indemnities described in this
Section 6.9 shall survive the resignation or termination of the Owner Trustee or
the termination of this Agreement. Any amounts paid to the Owner Trustee
pursuant to this Article VI shall not be deemed to be a part of the Owner Trust
Estate immediately after such payment.
SECTION 6.10 Replacement of Owner Trustee.
----------------------------
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(a) The Owner Trustee may give notice of its intent to resign and
be discharged from the trusts hereby created by written notice thereof to the
Administrator; provided that no such resignation shall become effective, and the
Owner Trustee shall not resign, prior to the time set forth in Section 6.10(c).
The Administrator may appoint a successor Owner Trustee by delivering a written
instrument, in duplicate, to the resigning Owner Trustee and the successor Owner
Trustee. If no successor Owner Trustee shall have been appointed and have
accepted appointment within 30 days after the giving of such notice, the
resigning Owner Trustee giving such notice may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee. The Administrator
shall remove the Owner Trustee if:
(i) the Owner Trustee shall cease to be eligible in accordance with
the provisions of Section 6.13 and shall fail to resign after written
request therefor by the Administrator;
(ii) the Owner Trustee shall be adjudged bankrupt or insolvent;
(iii) a receiver or other public officer shall be appointed or take
charge or control of the Owner Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation; or
(iv) the Owner Trustee shall otherwise be incapable of acting.
(b) If the Owner Trustee gives notice of its intent to resign or is
removed or if a vacancy exists in the office of Owner Trustee for any reason,
the Administrator shall promptly appoint a successor Owner Trustee by written
instrument, in duplicate (one copy of which instrument shall be delivered to the
outgoing Owner Trustee so removed and one copy to the successor Owner Trustee)
and shall pay all fees owed to the outgoing Owner Trustee.
(c) Any resignation or removal of the Owner Trustee and appointment
of a successor Owner Trustee pursuant to any of the provisions of this Section
6.10 shall not become effective and no such resignation shall be deemed to have
occurred until a written acceptance of appointment is delivered by the successor
Owner Trustee to the outgoing Owner Trustee and the Administrator and all fees
and expenses due to the outgoing Owner Trustee are paid. Any successor Owner
Trustee appointed pursuant to this Section 6.10 shall be eligible to act in such
capacity in accordance with Section 6.13 and, following compliance with the
preceding sentence, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Agreement, with like
effect as if originally named as Owner Trustee. The Administrator shall provide
notice of such resignation or removal of the Owner Trustee to each of the Rating
Agencies.
(d) The predecessor Owner Trustee shall upon payment of its fees
and expenses deliver to the successor Owner Trustee all documents and statements
and monies held by it under this Agreement. The Administrator and the
predecessor Owner Trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for fully and certainly vesting and
confirming in the successor Owner Trustee all such rights, powers, duties and
obligations.
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(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 6.11 Merger or Consolidation of Owner Trustee. Any Person
----------------------------------------
into which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
such Person shall be eligible pursuant to Section 6.13, and without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto; provided, however, that the Owner Trustee shall mail notice
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of such merger or consolidation to the Rating Agencies.
SECTION 6.12 Appointment of Co-Trustee or Separate Trustee.
---------------------------------------------
(a) Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Owner Trust Estate or any Financed Vehicle may at the time
be located, the Administrator and the Owner Trustee acting jointly shall have
the power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Owner Trustee to act as co-trustee, jointly with the
Owner Trustee, or as separate trustee or trustees, of all or any part of the
Owner Trust Estate, and to vest in such Person, in such capacity, such title to
the Owner Trust Estate, or any part thereof, and, subject to the other
provisions of this Section 6.12, such powers, duties, obligations, rights and
trusts as the Administrator and the Owner Trustee may consider necessary or
desirable. If the Administrator shall not have joined in such appointment within
15 days after the receipt by it of a request to do so, the Owner Trustee alone
shall have the power to make such appointment. No co-trustee or separate trustee
under this Agreement shall be required to meet the terms of eligibility as a
successor trustee pursuant to Section 6.13 and no notice of the appointment of
any co-trustee or separate trustee shall be required pursuant to Section 6.10.
(b) Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed
by the Owner Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not authorized
to act separately without the Owner Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed, the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Owner
Trust Estate or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Owner Trustee;
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(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement
(unless such other trustee acts or fails to act at the direction of such
first trustee); and
(iii) the Administrator and the Owner Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or co-
trustee.
(c) Any notice, request or other writing given to the Owner Trustee
shall be deemed to have been given to each of the then separate trustees and co-
trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Administrator.
(d) Any separate trustee or co-trustee may at any time appoint the
Owner Trustee as its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or co-
trustee shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be exercised
by the Owner Trustee, to the extent permitted by law, without the appointment of
a new or successor trustee.
SECTION 6.13 Eligibility Requirements for Owner Trustee. The Owner
------------------------------------------
Trustee shall at all times: (a) be a corporation, a national banking association
or a bank; (b) be authorized to exercise corporate trust powers; (c) have a
combined capital and surplus of at least $50,000,000 and be subject to
supervision or examination by federal or state authorities; and (d) have a long-
term unsecured debt rating of at least Baa3 by ▇▇▇▇▇'▇ Investors Service, Inc.
or be otherwise satisfactory to ▇▇▇▇▇'▇ Investors Service, Inc. If such Person
or bank shall publish reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purpose of this Section 6.13, the combined capital and surplus of such
Person or bank shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time the
Owner Trustee shall cease to be eligible in accordance with the provisions of
this Section 6.13, the Owner Trustee shall resign immediately in the manner and
with the effect specified in Section 6.10.
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ARTICLE VII
TERMINATION OF TRUST AGREEMENT
SECTION 7.1 Termination of Trust Agreement.
------------------------------
(a) This Agreement (other than Section 6.9) and the Trust shall
terminate and be of no further force or effect on the final distribution by the
Owner Trustee of all monies or other property or proceeds of the Owner Trust
Estate in accordance with the terms of the Indenture, the Pooling and Servicing
Agreement (including the exercise by the Servicer of its option to purchase the
Receivables pursuant to Section 9.01 of the Pooling and Servicing Agreement) and
Article V; provided, however, that in no event shall the Trust created by this
Agreement continue beyond the expiration of 21 years from the date hereof. The
bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder shall not (x) operate to terminate this Agreement or the
Trust, nor (y) entitle such Certificateholder's legal representatives or heirs
to claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or the Owner Trust
Estate nor (z) otherwise affect the rights, obligations and liabilities of the
parties hereto.
(b) This Agreement shall be irrevocable. Except as provided in
Section 7.1(a) and in this Section 7.1(b), neither the Seller nor any
Certificateholder shall be entitled to revoke or terminate the Trust or this
Agreement. Each of the Seller and the Owner Trustee acknowledges that the
Indenture Trustee, on behalf of the Noteholders, is a third-party beneficiary of
this Agreement. For so long as the Notes are outstanding, neither the Trust nor
this Agreement shall be revoked without the consent of the Indenture Trustee.
Each of the Seller and the Owner Trustee acknowledges that the Indenture
Trustee, as an agent of the Noteholders, maintains a legitimate interest in
ensuring that the Trust is not revoked prior to the fulfillment of the Trust
objectives. In no event may this Agreement be amended without the consent of the
Indenture Trustee if the effect of such amendment is the revocation or
termination of this Trust other than in accordance with this Section 7.1.
(c) Notice of any termination of the Trust specifying the
Distribution Date upon which the Certificateholders shall surrender their
Certificates to the Owner Trustee for payment of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to
Certificateholders mailed within five Business Days of receipt of notice of such
termination from the Servicer given pursuant to subsection 9.02(b) of the
Pooling and Servicing Agreement, stating: (i) the Distribution Date upon or with
respect to which the final distribution on the Certificates shall be made upon
presentation and surrender of the Certificates at the office of the Owner
Trustee; (ii) the amount of any such final distribution; and (iii) that the
Record Date otherwise applicable to such Distribution Date is not applicable,
distributions being made only upon presentation and surrender of the
Certificates at the office of the Owner Trustee therein specified. The Owner
Trustee shall give such notice to the Certificate Registrar (if other than the
Owner Trustee) and the Owner Trustee at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Certificates, the
Owner Trustee shall cause to be distributed to Certificateholders amounts
distributable on such Distribution Date pursuant to Section 5.2.
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(d) If all of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the date specified in the
written notice specified in Section 7.1(c), the Owner Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the Certificates shall
not have been surrendered for cancellation, the Owner Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their Certificates, and
the cost thereof shall be paid out of the funds and other assets that shall
remain subject to this Agreement. Subject to applicable laws with respect to
escheat of funds, any funds remaining in the Owner Trust Estate after exhaustion
of such remedies in the preceding sentence shall be deemed property of the
Seller and distributed by the Owner Trustee to the Seller.
(e) Within sixty days of the later of (i) the cancellation of all of
the Certificates pursuant to Section 7.1(c) or Section 7.1(d), or (ii) payment
to the Seller of funds remaining in the Owner Trust Estate pursuant to Section
7.1(d), the Owner Trustee shall provide each of the Rating Agencies with written
notice stating that all Certificates have been so canceled or such funds have
been so paid to the Seller.
ARTICLE VII
AMENDMENTS
SECTION 8.1 Amendments Without Consent of Certificateholders or
---------------------------------------------------
Noteholders. This Agreement may be amended by the Seller and the Owner Trustee
-----------
without the consent of any of the Securityholders (but with prior notice to each
of the Rating Agencies) to (i) cure any ambiguity, (ii) correct or supplement
any provision in this Agreement that may be defective or inconsistent with any
other provision in this Agreement or any other Basic Document, (iii) add or
supplement any credit enhancement for the benefit of the Securityholders
(provided that if any such addition shall affect any class of Securityholders
--------
differently than any other class of Securityholders, then such addition shall
not, as evidenced by an Opinion of Counsel, adversely affect in any material
respect the interests of any class of the Securityholders), (iv) add to the
covenants, restrictions or obligations of the Seller or the Owner Trustee for
the benefit of the Securityholders, (v) evidence and provide for the acceptance
of the appointment of a successor trustee with respect to the Owner Trust Estate
and add to or change any provisions as shall be necessary to facilitate the
administration of the trusts hereunder by more than one trustee pursuant to
Article VI, or (vi) add, change or eliminate any other provision of this
Agreement in any manner that shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of the Securityholders.
SECTION 8.2 Amendments With Consent of Certificateholders and
-------------------------------------------------
Noteholders. This Agreement may be amended from time to time by the Seller
and the Owner Trustee with the consent of Noteholders whose Notes evidence not
less than a majority of the Outstanding Amount of the Voting Notes as of the
close of business on the preceding Distribution Date and the consent of the
Holders of Certificates evidencing not less than a majority of the ownership
interests in the Owner Trust Estate as of the close of business on the preceding
Distribution Date (which consent, whether given pursuant to this Section 8.2 or
pursuant to any other provision of this Agreement, shall be conclusive and
binding on such Person and on all future holders of such Notes or Certificates
and
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of any Notes or Certificates issued upon the transfer thereof or in exchange
thereof or in lieu thereof whether or not notation of such consent is made upon
the Notes or Certificates) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement,
or of modifying in any manner the rights of the Noteholders or the
Certificateholders; provided, however, that no such amendment shall (a) increase
-------- -------
or reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on Receivables or distributions that shall be required
to be made on any Note or the Specified Reserve Account Balance, (b) reduce the
aforesaid percentage required to consent to any such amendment or (c) amend
Section 4.3, without the consent of the Holders of all of the Notes and the
Holders of all of the Certificates then outstanding. The Administrator shall
furnish notice of the substance of any proposed amendment, supplement or consent
under this Section 8.2 to each of the Rating Agencies prior to obtaining consent
thereto.
SECTION 8.3 Form of Amendments.
------------------
(a) Promptly after the execution of any amendment, supplement or
consent pursuant to Section 8.1 or 8.2, the Owner Trustee shall furnish written
notification of the substance of such amendment or consent to each
Certificateholder and the Indenture Trustee.
(b) It shall not be necessary for the consent of Certificateholders,
the Noteholders or the Indenture Trustee pursuant to Section 8.2 to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of Certificateholders provided for in this
Agreement or in any other Basic Document) and of evidencing the authorization of
the execution thereof by Certificateholders and Noteholders shall be subject to
such reasonable requirements as the Owner Trustee may prescribe.
(c) Prior to the execution of any amendment to this Agreement, the
Owner Trustee shall be entitled to receive and rely upon an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by this
Agreement and that all conditions precedent to such execution have been
satisfied. The Owner Trustee may, but shall not be obligated to, enter into any
such amendment which affects the Owner Trustee's own rights, duties or
immunities under this Agreement or otherwise.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 No Legal Title to Owner Trust Estate. The
------------------------------------
Certificateholders shall not have legal title to any part of the Owner Trust
Estate. The Certificateholders shall be entitled to receive distributions with
respect to their undivided ownership interest therein only in accordance with
Articles V and VII. No transfer, by operation of law or otherwise, of any right,
title, and interest of the Certificateholders to and in their ownership interest
in the Owner Trust Estate shall operate to terminate this Agreement or the
trusts hereunder or entitle any transferee to an accounting or to the transfer
to it of legal title to any part of the Owner Trust Estate.
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SECTION 9.2 Limitations on Rights of Others. Except for Section
-------------------------------
9.12, the provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Seller, the Certificateholders, the Administrator and, to the
extent expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Owner Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein. The Administrator shall be a third
party beneficiary with respect to the rights granted to it under Section
6.10(a).
SECTION 9.3 Notices. All demands, notices and communications upon
-------
or to the Seller, the Servicer, the Administrator, the Indenture Trustee, the
Owner Trustee, the Rating Agencies or any Certificateholder under this Agreement
shall be delivered as specified in Appendix B to the Pooling and Servicing
----------
Agreement.
SECTION 9.4 Severability. If any one or more of the covenants,
------------
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed enforceable to the fullest extent permitted, and if not so
permitted, shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
SECTION 9.5 Counterparts. This Agreement may be executed by the
------------
parties hereto in separate counterparts (and by different parties on separate
counterparts), each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument.
SECTION 9.6 Successors and Assigns. All covenants and agreements
----------------------
contained herein shall be binding upon, and inure to the benefit of, the Seller,
the Owner Trustee and each Certificateholder and their respective successors and
permitted assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by a Certificateholder shall bind
the successors and assigns of such Certificateholder.
SECTION 9.7 No Petition Covenant. Notwithstanding any prior
--------------------
termination of this Agreement, the Owner Trustee, on behalf of the Trust, and
each Certificateholder, by accepting a Certificate (or interest therein), hereby
covenant and agree that they shall not, prior to the date which is one year and
one day after the termination of this Agreement acquiesce, petition or otherwise
invoke or cause the Seller to invoke the process of any court or governmental
authority for the purpose of commencing or sustaining a case against the Seller
under any federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Seller or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Seller.
SECTION 9.8 No Recourse. Each Certificateholder by accepting a
-----------
Certificate (or interest therein) acknowledges that such Person's Certificate
(or interest therein) represents beneficial
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interests in the Trust only and does not represent interests in or obligations
of the Seller, the Servicer, the Administrator, the Owner Trustee, the Indenture
Trustee or any Affiliate thereof and no recourse, either directly or indirectly,
may be had against such parties or their assets, except as may be expressly set
forth or contemplated in this Agreement, the Certificates or the Basic
Documents. Except as expressly provided in the Basic Documents, neither the
Seller, the Servicer nor the Owner Trustee in their respective individual
capacities, nor any of their respective partners, beneficiaries, agents,
officers, directors, employees or successors or assigns, shall be personally
liable for, nor shall recourse be had to any of them for, the distribution of
any amount with respect to the Certificates, or the Owner Trustee's performance
of, or omission to perform, any of the covenants, obligations or
indemnifications contained in the Certificates or this Agreement, it being
expressly understood that said covenants and obligations have been made by the
Owner Trustee solely in its capacity as the Owner Trustee. Each
Certificateholder by the acceptance of a Certificate (or beneficial interest
therein) shall agree that, except as expressly provided in the Basic Documents,
in the case of nonpayment of any amounts with respect to the Certificates, it
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom.
SECTION 9.9 Headings. The headings of the various Articles and
--------
Sections herein are for purposes of reference only and shall not affect the
meaning or interpretation of any provision hereof.
SECTION 9.10 Governing Law. This Agreement shall be construed in
-------------
accordance with the internal laws of the State of Delaware, without reference to
its conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
SECTION 9.11 Certificate Transfer Restrictions. The Certificates may
---------------------------------
not be acquired by or for the account of (i) an employee benefit plan (as
defined in Section 3(3) of ERISA) that is subject to the provisions of Title I
of ERISA, (ii a plan described in Section 4975(e)(1) of the Code or (ii any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity (each, a "Benefit Plan"). By accepting and holding a
Certificate, the Holder thereof shall be deemed to have represented and
warranted that it is not a Benefit Plan.
SECTION 9.12 Administrator. The Administrator is authorized to
-------------
execute on behalf of the Owner Trustee all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the Owner
Trustee to prepare, file or deliver pursuant to the Basic Documents. Upon
request, the Owner Trustee shall execute and deliver to the Administrator a
power of attorney appointing the Administrator its agent and attorney-in-fact to
execute all such documents, reports, filings, instruments, certificates and
opinions.
SECTION 9.13 Amended and Restated Trust Agreement. This Trust
------------------------------------
Agreement is the amended and restated trust agreement contemplated by the Trust
Agreement dated as of April 12, 2001 between the Seller and the Owner Trustee.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION
as Owner Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
NAVISTAR FINANCIAL RETAIL RECEIVABLES
CORPORATION, as Seller
By: /s/ R. ▇▇▇▇▇ ▇▇▇▇
-------------------
Name: R. ▇▇▇▇▇ ▇▇▇▇
Title: Vice President and Treasurer
Acknowledged and Accepted:
NAVISTAR FINANCIAL CORPORATION,
as Servicer
By: /s/ R. ▇▇▇▇▇ ▇▇▇▇
-----------------------
Name: R. ▇▇▇▇▇ ▇▇▇▇
Title: Vice President and Treasurer
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EXHIBIT A
FORM OF CERTIFICATE
NUMBER
R-__
OWNERSHIP INTEREST: ___%
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT
OF (i) AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3)
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, ("ERISA")) THAT IS SUBJECT TO THE PROVISIONS OF TITLE
I OF ERISA, (ii) A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(iii) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY
REASON OF A PLAN'S INVESTMENT IN THE ENTITY. BY ACCEPTING AND
HOLDING THIS CERTIFICATE, THE HOLDER HEREOF AND THE CERTIFICATE
OWNER SHALL EACH BE DEEMED TO HAVE REPRESENTED AND WARRANTED
THAT IT IS NOT A BENEFIT PLAN.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE
ORIGINALLY ISSUED ON APRIL 27, 2001, HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND
MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION FROM
REGISTRATION THEREUNDER.
Navistar Financial 2001-A Owner Trust
CERTIFICATE
evidencing a fractional undivided interest in the Trust, as
defined below, the property of which includes a pool of retail
loans evidenced by notes secured by new and used medium and
heavy duty trucks, buses and trailers.
(This Certificate does not represent an interest in or
obligation of Navistar Financial Retail Receivables
Corporation, Navistar Financial Corporation, International
Truck and Engine Corporation, Navistar International
Corporation, the Owner Trustee or any of their respective
affiliates, except to the extent described below.)
-1-
THIS CERTIFIES THAT _________________________ is the registered owner
of a nonassessable, fully-paid, fractional undivided interest in Navistar
Financial 2001-A Owner Trust (the "Trust").
The Trust was created pursuant to a trust agreement, dated as of April
12, 2001 (as amended and restated as of April 27, 2001 and as further amended,
restated or supplemented from time to time, the "Trust Agreement"), between the
Seller and Chase Manhattan Bank USA, National Association, as owner trustee (the
"Owner Trustee"), a summary of certain of the pertinent provisions of which is
set forth below. To the extent not otherwise defined herein, the capitalized
terms used herein have the meanings assigned to them in the Trust Agreement.
This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, the terms of which are
incorporated herein by reference and made a part hereof, to which Trust
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
The Holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as and to the extent described in the Pooling and
Servicing Agreement and the Indenture.
Each Certificateholder with respect to a Certificate, by its
acceptance of a Certificate, covenants and agrees that such Certificateholder
with respect to a Certificate, shall not, prior to the date which is one year
and one day after the termination of the Trust Agreement, acquiesce, petition or
otherwise invoke or cause the Seller to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Seller under any federal or state bankruptcy, insolvency,
reorganization or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Seller or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Seller.
Distributions on this Certificate shall be made as provided in the
Trust Agreement by the Owner Trustee by wire transfer, check mailed or, where
possible, intra-bank book entry to the Certificateholder of record in the
Certificate Register without the presentation or surrender of this Certificate
or the making of any notation hereon. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the final distribution on this
Certificate shall be made after due notice by the Owner Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the office maintained for such purpose by the Owner Trustee in
the Borough of Manhattan, the City of New York.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee by manual signature, this
Certificate shall not entitle the
-2-
Holder hereof to any benefit under the Trust Agreement or the Pooling and
Servicing Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
-3-
IN WITNESS WHEREOF, the Owner Trustee, not in its individual capacity,
but solely as Owner Trustee, has caused this Certificate to be duly executed.
Dated: ______________, ____
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Owner
Trustee
By: ___________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Trust
Agreement.
-4-
CHASE MANHATTAN BANK USA, CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION NATIONAL ASSOCIATION,
not in its individual not in its individual
capacity but solely capacity but solely
as Owner Trustee OR as Owner Trustee
by The Chase Manhattan Bank,
as Authenticating Agent
By:_________________________
Authorized Officer By: _________________________
Authorized Officer
-5-
REVERSE OF CERTIFICATE
The Certificates do not represent an obligation of, or an interest in,
the Seller, the Servicer, International Truck and Engine Corporation, Navistar
International Corporation, the Indenture Trustee, the Owner Trustee or any
affiliates of any of them and no recourse may be had against such parties or
their assets, except as may be expressly set forth or contemplated herein or in
the Trust Agreement or the Basic Documents. In addition, this Certificate is not
guaranteed by any governmental agency or instrumentality and is limited in right
of payment to certain collections and recoveries with respect to the Receivables
(and certain other amounts), all as more specifically set forth herein and in
the Trust Agreement and the Pooling and Servicing Agreement. A copy of each of
the Pooling and Servicing Agreement and the Trust Agreement may be examined
during normal business hours at the principal office of the Seller, and at such
other places, if any, designated by the Seller, by any Certificateholder upon
written request.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Seller and the rights of the Certificateholders under the Trust Agreement at any
time by the Seller and the Owner Trustee with the consent of (i) the Holders of
the Notes evidencing not less than a majority of the Outstanding Amount of the
Voting Notes, and (ii) Certificateholders whose Certificates evidence not less
than a majority of the ownership interest in the Trust, each as of the close of
the preceding Distribution Date. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and on all future
Holders of this Certificate and of any Certificate issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Trust Agreement also
permits the amendment thereof, in certain circumstances, without the consent of
the Holders of any of the Certificates or the Notes.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Owner Trustee in the City of New York, accompanied by (i) a written
instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing and (ii) certain opinions required by
Section 3.4(b) of the Trust Agreement, and thereupon one or more new
Certificates of authorized denominations evidencing the same aggregate interest
in the Trust will be issued to the designated transferee. The initial
Certificate Registrar appointed under the Trust Agreement is The Chase Manhattan
Bank, New York, New York.
The Owner Trustee, the Certificate Registrar and any agent of the
Owner Trustee or the Certificate Registrar may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Owner Trustee, the Certificate Registrar or any such agent shall be affected
by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement
and the Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required
-6-
to be distributed to them pursuant to the Trust Agreement and the Pooling and
Servicing Agreement and the disposition of all property held as part of the
Trust.
-7-
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.