Exhibit 10.2
ACCOUNT CONTROL AGREEMENT
This Account Control Agreement,
dated as of October 24, 2008 (this “ Agreement
”), is among Truck Retail Accounts Corporation, as seller
(the “ Seller ”), Navistar Financial
Corporation, as servicer (the “ Servicer ”),
JPMorgan Chase Bank N.A., as successor to Bank One, NA (Main Office
Chicago), as agent (the “ Secured Party ”), and
The Bank of New York Mellon as successor to JPMorgan Chase Bank,
N.A., as securities intermediary (the “ Securities
Intermediary ”).
RECITALS
WHEREAS, pursuant to the Receivables
Purchase Agreement (hereinafter defined), the Seller has granted to
the Secured Party a security interest in investment property
consisting of the Securities Account, related Security Entitlements
and the Financial Assets and other investment property from time to
time included therein; and
WHEREAS, the parties hereto desire
that the security interest of the Secured Party in the Securities
Account be a first priority security interest perfected by
“control” pursuant to Articles Eight and Nine of
the UCC.
NOW, THEREFORE, in consideration of
the premises and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. General
Definitions . Except as otherwise specified herein or as the
context may otherwise require, the following terms have the
respective meanings set forth below for all purposes of this
Agreement.
“ Agreement ” has
the meaning set forth in the Preamble.
“ Business Day ”
means any day on which banks are not authorized or required to
close in New York, New York or Chicago, Illinois and The Depository
Trust Company of New York is open for business.
“ Blocked Account
” means a trust account number 232874 in the name
“Blocked Account for JPMorgan Chase Bank, N.A., as
Agent” established with the Securities Intermediary together
with any successor accounts established pursuant to the Receivables
Purchase Agreement.
“ Entitlement Holder
” means, with respect to any Financial Asset, a Person
identified in the records of the Securities Intermediary as the
Person having a Security Entitlement against the Securities
Intermediary with respect to such financial asset.
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“ Entitlement Order
” means a notification directing the Securities Intermediary
to transfer or redeem a financial asset.
“ Financial Asset
” has the meaning specified in Section 8-102(a)(9) of
the UCC.
“ Person ” means
any individual, corporation, estate, partnership, joint venture,
association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization or government or any agency
or political subdivision thereof.
“ Rating Agencies
” means Moody’s Investors Service, Inc. and Standard
and Poor’s Ratings Group.
“ Receivables Purchase
Agreement ” means the Receivables Purchase Agreement,
dated as of April 8, 2004 (as amended, supplemented, restated
or otherwise modified and in effect from time to time), among the
Seller, the Servicer, Jupiter Securitization Corporation, as
Conduit and JPMorgan Chase Bank, N.A., as successor to Bank One,
N.A., as Agent.
“ Secured Party ”
has the meaning set forth in the Preamble.
“ Securities Account
” means the Blocked Account.
“ Securities
Intermediary ” has the meaning set forth in the
Preamble.
“ Security Entitlement
” means the rights and property interest of an Entitlement
Holder with respect to a financial asset, as specified in
Part 5 of Article 8 of the UCC.
“ UCC ” means the
Uniform Commercial Code as in effect in the State of New York
on the date hereof or any successor statute, or any comparable law,
as the same may from time to time be amended, supplemented or
otherwise modified.
“ Weekly Settlement
Date ” means the third Business Day of each
week.
Section 1.02. Incorporation
of UCC by Reference . Except as otherwise specified herein or
as the context may otherwise require, all terms used in this
Agreement not otherwise defined herein which are defined in the UCC
shall have the meanings assigned to them in the UCC.
ARTICLE II
ESTABLISHMENT OF CONTROL OVER
SECURITIES ACCOUNT
Section 2.01. Establishment
of Securities Account . The Securities Intermediary hereby
confirms that (i) the Securities Intermediary has established
the Securities Account specifically referenced in the definition
thereof, (ii) the Securities Account is an account to which
Financial Assets are or may be credited, (iii) the Securities
Intermediary shall, subject to the terms of this Agreement, treat
the Secured Party as entitled to exercise the rights that comprise
any Financial Asset credited to the Securities Account,
(iv) all property delivered to the Securities Intermediary by
or on behalf of the Seller or the Secured Party for deposit to
the
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Securities Account will promptly be credited to
such Securities Account and (v) all securities or other
property underlying any Financial Assets credited to the Securities
Account shall be registered in the name of the Securities
Intermediary, endorsed to the Securities Intermediary or in blank
or credited to another securities account maintained in the name of
the Securities Intermediary and in no case will any Financial Asset
credited to the Securities Account be registered in the name of the
Seller, payable to the order of the Seller or specifically endorsed
to the Seller except to the extent the foregoing have been
specially endorsed to the Securities Intermediary or in
blank.
Section 2.02. “
Financial Assets” Election . The Securities
Intermediary and the other parties hereto hereby agree that each
item of property (whether investment property, financial asset,
security, instrument or cash) credited to the Securities Account
shall be treated as a “financial asset” within the
meaning of Section 8-102(a)(9) of the UCC.
Section 2.03. Entitlement
Orders . Unless and until the Securities Intermediary should
have received an Entitlement Order from the Secured Party, the
Seller or the Servicer may give instructions to the Securities
Intermediary relating to the redemption or transfer of Financial
Assets in the Securities Account. If at any time the Securities
Intermediary shall receive any Entitlement Order from the Secured
Party with respect to the Securities Account, the Securities
Intermediary shall comply with such Entitlement Order without
further consent by the Seller or any other Person. After receipt of
an Entitlement Order from the Secured Party, the Securities
Intermediary shall not comply with any Entitlement Order from the
Seller or the Servicer unless and until the Securities Intermediary
shall have received notice from the Secured Party authorizing the
Securities Intermediary to follow any subsequent Entitlement Order
delivered to the Securities Intermediary by the Seller or the
Servicer.
Section 2.04. Subordination
of Lien; Waiver of Set-Off . In the event that the Securities
Intermediary has or subsequently obtains by agreement, operation of
law or otherwise a security interest in the Securities Account or
any Security Entitlement credited thereto, the Securities
Intermediary hereby agrees that such security interest shall be
subordinate to the security interests of the Secured Party. The
Financial Assets and other items deposited to the Securities
Account will not be subject to deduction, set-off, banker’s
lien or any other right in favor of any Person or entity other than
the Secured Party (except that the Securities Intermediary may set
off against amounts on deposit in the Securities Account
(i) all amounts due to it in respect of its customary fees and
expenses for the routine maintenance and operation of such
Securities Account and (ii) the face amount of any checks
which have been credited to such Securities Account but are
subsequently returned unpaid because of uncollected or insufficient
funds).
Section 2.05. Notice of
Adverse Claims . Except for the claims and interests of the
Secured Party and the Seller in the Securities Account, the
Securities Intermediary does not know of any claim to, or interest
in, the Securitie
