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EXHIBIT 10.44

 

 

 

 

 

 

 

 

 

 

 

 

 

Irrevocable Trust Agreement Number F/00098

 

 

 

between

 

 

 

Servicios Financieros Navistar, S.A. de C.V.,

Sociedad Financiera de Objeto Limitado

 

as the Trustor

 

 

 

and

 

 

 

Banco J.P. Morgan S.A., Institucion de Banca Multiple,

J.P. Morgan Grupo Financiero, Division Fiduciaria

 

as the Trustee

 

 

 

 

 

 

 

November 30, 2004

 

 

 

 

 

 

 

 

 

 

 

 

 

 

E-14

 

 

 

 

 


 

 

 

 

EXHIBIT 10.44 (continued)

 

CONTENTS

BACKGROUND

DECLARATIONS

 

CLAUSES

 

 

 

FIRST. Defined Terms

E-18

 

 

SECOND. Constitution

E-28

 

 

THIRD. Parties and Beneficiaries of the Trust

E-28

 

 

FOURTH. Purposes of the Trust

E-30

 

 

FIFTH. Acceptance

E-32

 

 

SIXTH. Trust Assets

E-32

 

 

SEVENTH. Operation of the Trust

E-32

 

 

EIGHTH. Transfers of Loans

E-34

 

 

NINTH. Substitution, Repurchase or Acquisition of Loans

E-36

 

 

TENTH. Issuance and Placement of Securities

E-38

 

 

ELEVENTH. Proceeds from Securities Certificates Placements

E-39

 

 

TWELFTH. Administration of Loans; Deposit of Loan Documents

E-40

 

 

THIRTEENTH. Opening of Collection Accounts

E-41

 

 

FOURTEENTH. Collection Accounts

E-42

 

 

FIFTEENTH. Establishment of Common Funds

E-43

 

 

SIXTEENTH. Opening of Operative Accounts

E-43

 

 

SEVENTEENTH. Initial Funding of Operative Accounts

E-44

 

 

EIGHTEENTH. General Account

E-44

 

 

NINETEENTH. Administration of Operative Accounts

E-45

 

 

TWENTIETH. Issue Maintenance Expense Account

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TWENTY-FIRST. Interest Payment Account

E-48

 

 

TWENTY-SECOND. Principal Payment Account

E-49

 

 

TWENTY-THIRD. Reserve Account "A"

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TWENTY-FOURTH. Reserve Account "B"

E-51

 

 

TWENTY-FIFTH. Subordinate Payment Account

E-51

 

 

TWENTY-SIXTH. Revolving Account

E-52

 

 

TWENTY-SEVENTH. Deposit Account

E-53

 

 

TWENTY-EIGHTH. Holders of Securities; Guarantor

E-54

 

 

TWENTY-NINTH. Powers and Obligations of the Trustee; Defense of Trust Assets

E-54

 

 

THIRTIETH. Trustee’s Obligations to Report; Access to Information

E-56

 

 

THIRTY-FIRST. Loan Reviews

E-59

 

 

THIRTY-SECOND. Powers and Obligations of the Common Representative

E-59

 

 

THIRTY-THIRD. The Technical Committee

E-59

 

 

THIRTY-FOURTH. Appraisal

E-61

 

 

THIRTY-FIFTH. Fees

E-61

 

 

THIRTY-SIXTH. Expenses

E-62

 

 

THIRTY-SEVENTH. Indemnity

E-62

 

 

THIRTY-EIGHTH. Amendments

E-63

 

 

THIRTY-NINTH. Notices

E-63

 

 

FORTIETH. Duration, Irrevocability and Termination

E-65

 

 

FORTY-FIRST. Loan Repurchase and Reversion

E-65

 

 

FORTY-SECOND. Assignment

E-65

 

 

FORTY-THIRD. Dismissal and Resignation of the Trustee

E-66

 

 

FORTY-FOURTH. Fiscal Responsibility

E-67

 

 

FORTY-FIFTH. Nature of the Trust

E-67

 

 

FORTY-SIXTH. Clause Titles

E-67

 

 

FORTY-SEVENTH. Applicable Law; Jurisdiction

E-67

 

ANNEXES

E-68

 

 

 

 

 

 

E-15

 

 

 

 

 


 

 

 

 

EXHIBIT 10.44 (continued)

 

IRREVOCABLE TRUST AGREEMENT NUMBER F/00098 EXECUTED BY AND BETWEEN SERVICIOS FINANCIEROS NAVISTAR, S.A. DE C.V., SOCIEDAD FINANCIERA DE OBJETO LIMITADO, AS THE TRUSTOR, (THE "TRUSTOR" ) REPRESENTED BY JANET LYNN FILIPIAK AND JOSÉ ALFREDO CHACON PEREZ, AND BANCO J.P. MORGAN S.A., INSTITUCION DE BANCA MULTIPLE, J.P. MORGAN GRUPO FINANCIERO, DIVISION FIDUCIARIA, AS THE TRUSTEE (THE "TRUSTEE" ), REPRESENTED BY HECTOR LOYO URRETA, PURSUANT TO THE FOLLOWING BACKGROUND, DECLARATIONS AND CLAUSES.

 

BACKGROUND

 

I.

The parties wish to implement a securitization mechanism for Loans (as said item is defined below), by a fiduciary assignment by the Trustor in favor of the Trustee of the rights and obligations under the corresponding Loan Agreements and, if applicable, Insurance Policies (as defined below) and the endorsement of the respective Notes (as defined below) subject to the terms and conditions established in this Agreement and in the respective Trust Transfer Agreements (as defined below).

 

 

II.

The principal purpose of the Trust (as defined below) will be, following an acquisition by the Trustee of Loan Packages (as defined below), (i) to issue Securities (as defined below) with the characteristics indicated in this Agreement, and which will be indicated in the respective Characteristics Letters (as defined below) in one or various issues (as defined below), (ii) to deliver to the Trustor all or part of the proceeds from the placement of the Securities and/or any other consideration agreed on in exchange for the Loan Package assigned by the Trustor to the Trustee, (iii) in the event that the respective Characteristics Letter so stipulates, the acquisition of Additional Loans (as defined below) during the respective Revolving Period (as defined below), and (iv) to pay with any funds that form part of the Trust Assets (as defined below) and that correspond to the Securitization Transaction (as defined below) the interest and principal and any other amounts payable under the Securities issued.

 

 

III.

This Trust may carry out one or more Securitization Transactions, that is, it may acquire one or more Loan Packages and on the basis of each one of said Loan Packages, may issue Securities in one or several issues. For this purpose the Trust Assets will be divided in as many Common Funds (as defined below) as Loan Packages are pledged in Trust. With respect to the foregoing, a Common Fund as specified below will correspond to each Issue.

 

 

DECLARATIONS

 

I.

The Trustor, through its representative, declares that:

 

 

(a)

It is a variable capital stock company legally incorporated under the laws of the United Mexican States ("Mexico") and empowered to enter into this Agreement. Copies of the official document containing the articles of incorporation of the Trustor and its current by-laws are attached to this Agreement as Annex "A" ;

 

 

(b)

It has been authorized by the Ministry of Finance and Public Credit to incorporate and operate as a limited purpose financial company. A copy of the official action, which evidences said authorization is attached to this Agreement as Annex "B" ,

 

 

(c)

It wishes to constitute this Trust in order to implement a securitization mechanism for Loans;

 

 

(d)

In addition to executing this Trust Agreement, and in order to implement the above-mentioned securitization mechanism, to carry out each Securitization Transaction under this Trust it will execute with the Trustee, (i) one or more Trust Transfer Agreements, according to which it will pledge a Loan Package to the Trust and (ii) in the event that in accordance with the terms of said Securitization Transaction it will take on the administration of the corresponding Loans, an Administration Agreement, (as defined below) according to the terms of which it will assume the Administration of the Loans corresponding to said Securitization Transaction. Said agreements will be executed substantially in the same terms and with the

 

E-16

 

 

 

 

 


 

 

 

 

EXHIBIT 10.44 (continued)

 

 

same background data, declarations and clauses as contained in the samples of a Trust Transfer Agreement and Administration Agreement which are attached hereto as Annex "C" and Annex "D" respectively.

 

 

(e)

Each Securitization Transaction and the respective Issue of Securities effected under this Trust will have the characteristics established in this Trust, as well as those described in a Characteristics Letter in which the Trustor, with the support of an Underwriter (as defined below) establish the respective terms and conditions. Said document will contain such information and will be drawn up in accordance with the sample which is attached hereto as Annex "E ", without prejudice, in such case, to including additional information or omitting certain information required in said Annex when so required by the particular Securitization Transaction;

 

 

(f)

The signing of this Agreement and fulfillment of the obligations hereunder do not constitute a default on the part of the Trustor, nor do they contravene the terms of (i) its by-laws, (ii) any agreement, contract, instrument, security or certificate executed or subscribed by the Trustor, including obligations to forbear contained in credit agreements to which it is a party, (iii) any law, regulation, circular or rule applicable to the Trustor or to its assets; or (iv) any judicial, arbitration or administrative resolution applicable to the Trustor.

 

 

(g)

It has obtained and they continue in force, all the consents, permits and authorizations, both from the government and of any other type, that are required according to applicable laws, in order to execute this Agreement and comply with the obligations hereunder, and it agrees to participate as the Trustor and Beneficiary under the terms of this Agreement;

 

 

(h)

This Agreement constitutes a valid and demandable obligation against the Trustor, in accordance with its terms; and

 

 

(i)

Its representative has sufficient powers to execute this Agreement on its behalf and in its representation, and said powers have not been modified, revoked or limited in any manner, and he is fully qualified in accordance with the laws to undertake it under the terms of this Agreement. A copy of the official document that contains the powers granted to its representative is attached hereto as Annex "F".

 

 

II.

The Trustee through its representative declares that:

 

 

(a)

It is a full-service banking institution legally incorporated under the laws of Mexico, empowered to execute this Agreement and assume obligations in accordance with Agreement terms. A copy of the official document that contains the articles of incorporation of the Trustee and its current by-laws are attached hereto as Annex "G"

 

 

(b)

It has been authorized by the Ministry of Finance and Public Credit to incorporate and operate as a multiple banking institution and to execute trust transactions as Trustee;

 

 

(c)

It wishes to enter into this Agreement and accept its designation as trustee to carry out each and every one of the acts necessary or appropriate to accomplish the purposes of this Trust and fulfill its obligations under its terms; and

 

 

(d)

The signing of this Agreement and fulfillment of the obligations hereunder do not constitute a default on the part of the Trustee to comply with nor do they contravene the terms of (i) its by-laws, (ii) any agreement, contract, instrument, security or certificate executed or subscribed by the Trustee, (iii) any law, regulation, circular or rule applicable to the Trustee; or (iv) any judicial, arbitration or administrative resolution applicable to the Trustee.

 

 

(e)

It has obtained all the agreements, permits and authorizations, be they governmental or of any other kind, required by the terms of applicable laws to sign this Agreement and to fulfill its obligations hereunder;

 

 

(f)

This Agreement constitutes a valid and demandable obligation against the Trustee, in accordance with its terms;

 

 

 

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EXHIBIT 10.44 (continued)

 

(g)

Without detriment to the provisions of the preceding declaration, it has obtained authorization from Banco de Mexico in the terms of Circular 2019/95 of said institution for the signing of this Agreement, as recorded in the official letter attached to this Agreement as Annex "H" ; and

 

 

(h)

Its representative has sufficient powers to enter into this Agreement on its behalf and in its representation, and said powers have not been modified, revoked or limited in any way, and he has full legal capacity to undertake it under the terms of this Agreement. A copy of the official document containing the powers granted to its representative is attached to this Agreement as Annex "I" .

 

 

III.

Through their representatives, the parties declare that pursuant to the provisions of Article 106, Section XIX, subparagraph b) of the LIC, (as defined below), the Trustee unequivocally explained to the Trustor, and the Trustor acknowledges that the value and legal consequences of said precept were explained; said Article reads as follows:

 

Article 106.- Credit Institutions shall be prohibited from.XIX.- In carrying out the transactions referred to in Section XV of Article 46 of this Law...

 

(b)   Being responsible to trustors, mandate principals or commission principals for a default of debtors in relation to the loans granted, or of issuers in relation to the securities acquired, unless the credit institutions are at fault, as stipulated in the last part of Article 391 of the General Law of Negotiable Instruments and Credit Transactions, or they guarantee a yield from the funds which they have been requested to invest.

 

If at the conclusion of the Trust, mandate or commission constituted for the granting of loans, the loans have not been paid in full by the debtors, the institution shall transfer them to the Trustor or beneficiary, as the case may be, or to the principal, and shall refrain from paying them.

 

Trust, mandate or commission agreements shall include the provisions of this subparagraph, as well as a statement from the Trustee to the effect that it unequivocally informed the persons from whom it received assets or rights for contributions to the Trust of the content of said paragraphs.

 

 

 

On the basis of the above Background Data and Declarations, the parties hereto agree to be subject to the provisions to which they have mutually agreed, contained in the following:

 

 

CLAUSES

 

FIRST. Defined Terms.

As used herein, the terms set forth below will have the following meanings, (which will equally apply to the singular and plural of said terms):

 

"Administrator"

The company to which the administration of the Loans corresponding to a specific Securitization Transaction under the terms of an Administration Agreement is assigned, provided that unless something different is determined for a particular Securitization Transaction or so long as it is not substituted under the terms of an Administration Agreement, the Administrator of all the Securitization Transactions carried out under this Trust will be SFN.

 

 

"Substitute Administrator"

The company that assumes the administration of the Loans corresponding to a particular Securitization Transaction under the terms of the Administration Agreement corresponding to said Securitization Transaction, in the event that a Substitution Event has taken place (as defined below).

 

 

"Rating Agencies"

Standard & Poor’s S. A. de C. V. and/or Fitch Mexico S. A. de C. V. and/or Moody’s de Mexico, S. A. de C. V., their affiliates, successors or assigns, or any others that substitute for them.

 

 

E-18

 

 

 

 

 


 

 

 

 

EXHIBIT 10.44 (continued)

 

"Advances"

Amounts in cash that SFN may, but is not required, to pay on account of any Borrower under the respective Loan Agreement, which will be credited with respect to amounts owed by said Borrower (only for purposes of the respective Securitization Transaction and without affecting or redicomg the Borrower’s obligations), and which SFN may recover once the respective Borrower makes the payment previously paid in advance by SFN.

 

 

"Attorney-in-Fact"

Any third party to whom the Trustee grants a power of attorney to represent it, under the terms of clause 29 of this Agreement.

 

 

"External Credit Backing"

Regarding any Securitization Transaction, any real or personal guarantee, insurance policy, letter of credit or any similar obligation indicated in the Characteristics Letter and in the corresponding Issue Documents, contracted for the purpose of guaranteeing, assuring or increasing the probabilities of payment of interest, principal and any other amounts payable under the Securities Certificates.

 

 

"Internal Credit Support"

With regard to any Securitization Transaction, any characteristic of said Securitization Transaction intended to increase the probabilities of payment of interest, principal and any other amounts payable under the Securities Certificates, including the establishment of reserves, maintenance of income and subordinate series of Securities Certificates.

 

 

"Insurance Companies"

The insurance institutions with which the Borrower or the Trustor, as applicable, has contracted Insurance for a Loan.

 

 

"Auditor"

Galaz, Yamazaki, Ruiz Urquiza, S.C. (Deloitte & Touche), their successors, assignees or grantees, or any other firm of independent accountants that replaces them.

 

 

"Notice of Placement"

The notice of placement (or other similar notice) published in connection with the Securities Certificates issued under the Program.

 

 

"BMV"

La Bolsa Mexicana de Valores, S.A. de C.V. [The Mexican Stock Exchange]

 

 

"Characteristics Letter"

The document that contains, with respect to a Securitization Transaction, the terms and conditions of the Securitization Transaction and the issue of Securities Certificates effected thereunder in accordance with the provisions contained in the Seventh and Tenth Clauses, among others, hereof .

 

 

"Certification of Loans"

The certification that must accompany each notice of a transaction and which will contain the information mentioned in the Eighth Clause of this Agreement.

 

 

"Securities Certificates"

The Credit Instruments called Securities Certificates contemplated by the LMV which the Trustee will issue singly or in series as the case may be, according to each Issue, for Placement in compliance with the purposes of this Agreement.

 

 

"Ordinary Securities Certificates"

In the event that an issue contemplates an ordinary series or class and a subordinate series of Securities Certificates (irrespective of the denomination given to said series), the Securities Certificates pertaining to the ordinary series of said Issue, which shall have preference as regards payment of interest, principal and any other amount payable under same over the Securities Certificates that compose the subordinate series.

 

 

 

 

E-19

 

 

 

 

 


 

 

 

 

EXHIBIT 10.44 (continued)

 

"Subordinate Securities Certificates"

In the event that an Issue contemplates an ordinary series of Securities Certificates (regardless of the denomination that is given to said series) and a subordinate series of title deeds or Certificates (whether or not they qualify as Securities Certificates and irrespective of the denomination that is given to said series), the title deeds or Certificates that make up the subordinate series of said Issue, which shall be subordinate as regards payment of interest, principal and any other amount payable under same to the Ordinary Securities Certificates.

 

 

"CNBV"

The National Banking and Securities Commission or any competent authority or authorities that may replace it.

 

 

"Underwriting"

The placement among public investors of the Securities Certificates issued by the Trustee under each Securitization Transaction .

 

 

"Technical Committee"

The technical committee that shall be established for each Securitization Transaction under the terms and conditions contained in the Thirty-Third Clause of this Agreement.

 

 

"Voucher"

The non-negotiable instrument which the Trustee will issue if so requested in writing by the Trustor, in favor of the Trustor, and which represents of Trustor’s rights (as the beneficiary) under the respective Securitazation Transaction.

 

 

"Administration Agreement"

With respect to a Securitization Transaction, the Collection and Administration Services Agreement whereby the Trustee will request the Administrator to administer the Loans corresponding to the respective Securitization Transaction

 

 

"Underwriting Agreement"

With regard to Securities Certificates issued under a Securitization Transaction, the underwriting agreement to be executed between the Trustee, the Underwriter and the Trustor, in order for the Underwriter to place the Securities Certificates.

 

 

"Loan Agreement"

The agreement for opening a fixed asset loan or any other loan agreement with similar collateral under the terms of which SFN has extended a Loan and which contemplates posting the corresponding Guarantee.

 

 

"Trust Contribution Agreement"

In relation to a Securitization Operation, the Trust Contribution Agreement whereby the Trustor shall transfer to the Trustee its rights derived from the Loans, the Additional Loans (if applicable), the Special Loans (if applicable), the Notes and the respective Insurance Policies (if applicable).

 

 

"Loans"

Any existing or future loans granted by the Trustor under Loan Agreements to natural persons who engage in business activity in Mexican territory or to corporate entities who operate in Mexican territory, for the acquisition of Transportation Equipment and any accessory rights of any kind related to said loans (including, if applicable) the respective insurance policies) which the Trustor pledges to the Trust in connection with a Securitization Transaction.

 

 

"Additional Loans"

In the event that a Securitization Transaction contemplates the existence of a Revolving Period, the Loans that are contributed by the Trustor during the Revolving Period.

 

 

"Special Loans"

The Loans contributed by the Trustor to the Trust in connection with a Securitization Transaction, in accordance with the provisions of subparagraph (i)(3) of the Eighth Clause.

 

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EXHIBIT 10.44 (continued)

 

"Eligibility Criteria"

Will have the meaning, with respect to the Loans pledged to this Trust in connection with a Securitization Transaction, given to such term in the respective ¨Trust Contribution Agreements.

 

 

"Deposit Accounts"

The account which, in relation to each Securitization Transaction, will be opened by the Trustee and which will be used, among others, to (i) receive from the Trustor the funds corresponding to each Loan that forms part of the respective Loan Package as a "guarantee deposit", and (ii) apply said funds to make payments owed under the respective Loans (pursuant to instructions from the Administrator) or to complete the funds that are to be kept in other Operating Accounts pursuant to the Twenty-seventh Clause of this Agreement.

 

 

"Issue Maintenance Expense Account"

The account which, in relation to each Securitization Transaction, the Trustee will open and which will be used, among others, to (i) receive funds from the General Account and (ii) apply said funds to the payment of Issue Maintenance Expenses as described in the Nineteenth and Twentieth Clauses of this Agreement.

 

 

"Interest Payment Account"

The account which, in relation to each Securitization Transaction, the Trustee will open and which will be used, among others, to (i) receive funds from the General Account, and in certain cases, other Operating Accounts and (ii) apply said funds to pay Interest due under the Securities Certificates, as described in the Nineteenth and Twenty-first Clauses of this Agreement.

 

 

"Principal Payment Account"

The account which, in relation to each Securitization Transaction, the Trustee will open and which will be used, among others, to (i) receive funds from the General Account, and in certain cases, from other Operating Accounts and (ii) apply said funds to payments of principal due under the Securities Certificates, as described in the Nineteenth and Twenty-Second Clauses of this Agreement

 

 

"Subordinate Payment Account"

The account which, in relation to each Securitization Transaction that contemplates Ordinary Security Certificates and Subordinate Certificates, the Trustee will open and which will be used, among others, to (i) receive funds from the General Account and (ii) apply said funds to payments due under the Subordinate Certificates and, if applicable, fund other Operating Accounts, as described in the Nineteenth and Twenty-Fifth Clauses of this Agreement

 

 

"Reserve Account "A"

The account which, in relation to each Securitization Transaction, the Trustee will open and which will be used, among others, to (i) receive funds from the General Account and (ii) keep said funds so that, if necessary, they may be applied to complete the funds that should be maintained in other Operating Accounts, as described in the Nineteenth and Twenty-Third Clauses of this Agreement.

 

 

"Reserve Account "B"

The account which, in relation to each Securitization Transaction, the Trustee will open and which will be used, among others, to (i) receive, if said account must be funded (according to the terms of the corresponding Securitization Transaction), funds from the General Account and (ii) keep said funds so that, if necessary, they may be applied to complete the funds that must be maintained in other Operating Accounts, as described in the Nineteenth and Twenty-Fourth Clauses of this Agreement.

 

 

"Revolving Account"

The account which, in relation to each Securitization Transaction that contemplates a Revolving Period, the Trustee will open and which will be used, among others, to (i) receive funds from the General Account, and (ii) apply said

 

 

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EXHIBIT 10.44 (continued)

 

 

funds to pay the Trustor the price (which may be determined by an Appraiser) in relation to the contribution of Additional Loans during the Revolving Period, as described in the Twenty-sixth Clause of this Agreement.

 

 

"General Account"

The account which, in relation to each Securitization Transaction, the Trustee will open and which will be used, among others, to (i) receive, whether by transfer from Collection Accounts or directly, payments made under the Loans, payments made by the Insurance Companies under the Insurance Policies, advances made by SFN, payments made by the respective counterpart under any swap, option or other derived financial instrument and any other payments that must be made to said account and (ii) distribute funds to other Operating Accounts, as described in the Eighteenth and Nineteenth Clauses of this Agreement.

 

 

"Collection Accounts"

With respect to all Securitization Transactions carried out hereunder, the accounts opened by the Trustee and which will be used, among other things,, to i) receive payments made under the Loans and, if applicable, payments made by Insurance Companies under insurance policies, and (ii) distribute funds to the General Accounts of each Securitization Transaction, as described in the Thirteenth and Fourteenth Clauses hereof.

 

 

"Operating Accounts"

With respect to each Securitization Transaction, the General Account, the Issue Maintenance Expense Account, the Interest Payment Account, the Principal Payment Account, the Reserve "A" Account, the Reserve "B" Account, the Deposit Account and, if applicable, the respective Subordinate Payment Account and the Revolving Account, and such other accounts which, in the terms of each Securitization Transaction are necessary, whether in addition to or in substitution of the above mentioned accounts.

 

 

"Complaints"

Has the meaning given to it in the Thirty-seventh Clause hereof.

 

 

"Borrower"

Any borrower, whether a natural or corporate person of any kind constituted under the laws of any jurisdiction (if such be the case) under a Loan.

 

 

"Business Day"

Any day other than a Saturday, Sunday or a legal holiday, when the principal offices of banks in Mexico City, Federal District are open to the public for banking transactions and are not legally required or authorized to close.

 

 

"Credit Documents"

The Loan Agreements, the Notes, the Insurance policies (if applicable) and all other documents related to the Loans that are to be included in the respective file in accordance with sound financial and commercial practices.

 

 

"Issue Documents"

Documents that must be subscribed in connection with each Issue, including the one or more Certificates, any document that evidences External Credit Backing, the Notice of Placement, Program Prospectus and the respective Supplement, the Placement Agreement the one or more Trust Contribution Agreements and the Administration Agreement, and any swap, option or other derived financial instrument contracted in this respect.

 

 

"Issue"

Each issue of Securities Certificates effected by the Trustee under a Securitization Transaction, in accordance with the terms and conditions hereof, of the respective Characteristics Letter and the other Issue Documents.

 

 

"Transportation Equipment"

Trucks, tractor trucks, buses, chassis, bodywork and related equipment, whether new or used, (including, among others, satellite tracking equipment, trailer casings and dollies) and excluding spare parts.

 

E-22

 

 

 

 

 


 

 

 

 

EXHIBIT 10.44 (continued)

 

"Event of Substitution"

Those cases described in an Administration Agreement in which the respective Administrator may be replaced by the respective Substitute Administrator.

 

 

"Special Contribution Date"

Has the meaning given to it in the Eighth Clause of this Agreement.

 

 

"Transaction Date"

The date when the registration transaction (exchange) of Securities Certificates issued under a BMV Securitization Transaction is effected.

 

 

"Revolving Date"

Has the meaning given to it in the Eighth Clause of this Agreement

 

 

"Transfer Date"

For each Securitization Transaction, the day (or, if that day is not a Business Day, the Business Day immediately following) indicated in the respective Characteristics Letter for transfering funds from the General Account to the other Operating Accounts, as described in the Nineteenth Clause hereof.

 

 

"Fourth Beneficiary"

In regard to each Issue, if said Security Transaction has External Credit Backing, and according to the terms of said Securitization Transaction the Guarantor is a beneficiary of the Trust and the Securitization Transaction contemplates the issue of Subordinate Certificates whose holders are the Third Beneficiaries, the Trustor.

 

If the Trustor is a Second or Third Beneficiary, there will be no fourth Beneficiary.

 

 

"First Beneficiaries"

In regard to each Securitization Transaction and each one of the Holders of Securities Certificates if there are Ordinary Securities Certificates and Subordinate Certificates (that qualify as Securities Certificates) the First Beneficiaries will be the holders of Ordinary Securities Certificates, as indicated in the respective Characteristics Letter.

 

 

"Second Beneficiaries"

With respect to each Securitization Transaction, in the event that said Securitization Transaction (i) has External Credit Backing, and in accordance with the terms of said Securitization Transaction the Guarantor is a beneficiary of the Trust, the Guarantor, or (ii) does not have External Credit Backing, or having such External Credit Backing, the terms of the Securitization Transaction do not provide for the Guarantor being a beneficiary of the Trust, each one of the Holders of Subordinate Certificates, or, in the event that the Securitization Transaction does not contemplate the issue of Subordinate Certificates, the Trustor, as stipulated in the respective Characteristics Letter.

 

 

"Third Beneficiaries"

With respect to each Issue, in the event that said Securitization Transaction (i) has External Credit Backing and in keeping with the terms of said Securitization Transaction the Guarantor is a beneficiary of the Trust, each one of the Holders of Subordinate Certificates, or in the event that the Securitization Transaction does not contemplate the issue of Subordinate Certificates, the Trustor (ii) does not have External Credit Backing, or having such External Credit Backing, the terms of the Securitization Transaction do not provide for the Guarantor being a beneficiary of the Trust and the Securitization Transaction contemplates the issue of Subordinate Certificates whose Holders are Second Beneficiaries, the Trustor.

If the Trustor is a Second Beneficiary, there will be no Third Beneficiary.

 

 

"Trust"

This Trust Agreement.

 

 

"Trustor"

Has the meaning given to it in the preamble to this Agreement.

 

 

 

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EXHIBIT 10.44 (continued)

 

"Trustee"

Has the meaning given to it in the preamble to this Agreement.

 

 

"Common Fund"

The fund which, with respect to each Securitization Transaction, is to be constituted by the Trustee and which will be composed of (i) the rights stemming from the Loans corresponding to the Loan Package covered by said Securitization Transaction and its accessories (including Insurance Policies, if applicable), and (ii) the funds derived from them and which will serve as a backing and source of payment for the Securities issued under said Securitization Transaction. Each Common Fund will be composed of the Operating Accounts corresponding to said Securitization Transaction.

 

 

"Guarantor"

The person, company or entity that grants any type of External Credit Backing in connection with a Securitization Transaction effected under the Program.

"Issue Expenses"

For each Issue, the sum of the following items, as specified in the Underwriting Agreement or in the Characteristics Letter of each Issue or in any Issue Document or other related document (plus, if applicable, the respective taxes):

(i) the fees and expenses of the Underwriter for having structured the Securitization Transaction;

 

(ii) the commission and reasonable expenses of the Underwriter for the Placement;

 

(iii) the fees of the Common Representative and of the Trustee for acceptance of their respective designations;

 

(iv) the Appraiser’s fees charged for appraising the Loans initially transferred to the Trust, if applicable;

 

(v) the duties, fees and reasonable expenses derived from the respective Issue and Underwriting including, but not limited to, duties and reasonable expenses incurred in the registration of Securities Certificates in the National Securities Registry and their listing in the BMV, the deposit of the Instrument or Instruments with Indeval and, in such case, the printing of the Underwriting Prospectus or final supplement, and the publication of the Notice of Placement or any publication and/or advertising related to the Issue;

 

(vi) any commission or initial fee paid to the Guarantor, if applicable;

 

(vii) any commission or initial fee paid to the counterpart of any swap, option or other derived financial instrument contracted by the Trustee, if applicable;

 

(viii) the fees of the Rating Agencies for the granting of ratings for the Securities Certificates Issue;

 

(ix) the expenses and fees of lawyers, consultants and external auditors incurred in connection with the respective Issue and Placement;

 

(x) the sums advanced by the Trustor for opening the corresponding Operating Accounts in accordance with the Second and Sixteenth Clauses;

 

(xi) any other expense related to an Issue as previously agreed upon by the parties and established in the Underwriting Agreement, the Characteristics Letter or any Issue Document or related document.

 

 

 

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EXHIBIT 10.44 (continued)

 

"Maintenance Expenses of the Issue"

For each Issue, means the sum of (plus, if applicable, taxes):

(i) the fees of the Trustee;

 

(ii) the fees of the Administrator, which will include in such case, in accordance with the Administration Agreement, Collection Expenses, as this term is defined in the Administration Agreement, and/or of the Substitute Administrator;

 

(iii) the fees of the Common Representative;

 

(iv) the Appraiser’s fees, if applicable;

 

(v) the Auditor’s fees, including fees for any revision conducted under Clause Thirty-first hereof;

 

(vi) the cost of maintaining on deposit with Indeval the Instrument or Instruments that document the Securities Certificates of each Issue;

 

(vii) fees of the Rating Agencies for maintaining the rating of the Securities Certificates;

 

(viii) the direct, indispensable and necessary expenses to comply with applicable legal provisions, in order to maintain the registration of the Securities Certificates in the National Securities Registry under the CNBV and their listing on the BMV, and those derived from any publication related to each Issue is required under applicable laws;

 

(ix) any commission or fee paid to the Guarantor, if applicable;

 

(x) any commission, premium or other consideration or payment owed to counterpart of any swap, option or other derived financial instrument contracted by the Trustee, if applicable, including any settlement or payment required according to the terms of said swap, option or other derived financial instrument;

 

(xi) any duly documented expense derived from the modification of the Issue Documents.

 

(xii) any reasonable and duly documented expense stemming from the supervisory activities of the Administrator incurred by the Trustee, the Common Representative or the Members of the Technical Committee under the Administration Agreement; with the understanding that expenses corresponding to this suparagraph (xii) may not represent for any particular month more than 15% of the sum of all other Maintenance Expenses of the Issue unless any excess is approved by an assembly of holders of Securities Certificates; and

 

(xiii) any other expense related to a Securitization Transaction that must be paid in order to provide the proper fuctioning of same as established in the Characteristics Letter or in any Issue Document or other related document, as determined by the Technical Committee of the Securitization Transaction.

Maintenance Expenses of the Issue will never include Issue Expenses.

 

 

 

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EXHIBIT 10.44 (continued)

 

"Indeval"

S.D. Indeval, S.A. de C.V., Institucion para el Deposito de Valores (an Institution for the Deposit of Securities).

 

 

"Authorized Institutions"

Credit institutions, brokerage firms and/or any other financial institution listed in Annex "J" of this Agreement, their assigns or successors in which the Collection Accounts and Operating and other Accounts which the Trustee is to open in the terms hereof, may be opened.

 

 

"Underwriter"

The brokerage firm contracted to perform structuring and brokerage functions in the Securitization Transaction and the Underwriting of the Securities Certificates under any Issue in accordance with the terms of an Underwriting Agreement, with the understanding that for any Issue, more than one brokerage firm may be contracted as an Underwriter.

 

 

"Permitted Investments"

Securities issued or guaranteed by the Mexican Federal government or securities issued or guaranteed by a Mexican multiple banking institution with a minimum rating of mxAAA or Aaa.mx or AAA(mex) or the equivalent and in repo transactions that involve any of said securities with an expiration date no less than 28 days.

 

 

"LGTOC"

The General Law of Credit Instruments and Transactions in force (or any substitute law then in force).

 

 

"LIC"

The Law of Credit Institutions in force (or any substitute law then in force).

 

 

"LMV"

The Securities Market Law in force (or any substitute law then in force).

 

 

"Member"

Any Permanent or Alternate Member of the Technical Committee.

 

 

"Permanent Member"

Any person designated as such to act as a member of a Technical Committee in accordance with the Thirty-third Clause hereof.

 

 

"Alternate Member"

Any person designated as such to act as a member of a Technical Committee in accordance with the Thirty-third Clause hereof.

 

 

"Reported Month"

Has the meaning given to it in the Thirtieth Clause of this Contract.

 

 

"Mexico"

Has the meaning given to it in Declaration I (a) of this Agreement.

 

 

"Transaction Notice"

The notice to be made by the Trustor to the Trustee related to a Securitization Transaction under this Trust and which will contain the information and be accompanied by the documents indicated in this Agreement.

 

 

"Securitization Transaction"

A securitization transaction of Loans effected pursuant to the terms of this Trust and the respective Issue Documents, with the understanding that the term "Securitization Transaction" shall include all acts necessary to implement it, including the Contribution of Loans, the Issue of Securities and the execution of transactions related to the administration of the Loans.

 

 

"Notes"

The promissory notes or similar credit instruments subscribed by the Borrowers under the Loan Agreements.

 

 

"Loan Packages"

The composite of Loans and, if applicable, Additional Loans and Special Loans that are pledged to the Trust by the Trustor, in connection with a Securitization

 

 

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EXHIBIT 10.44 (continued)

 

 

Transaction in particular, and which will serve to back up and will be a payment source for the Securities issued under said Securitization Transaction.

 

 

"Fiscal Liabilities"

Has the meaning given to it in the Forty-fifth Clause of this Agreement.

 

 

"Trust Assets"

The equity of this Trust, which will be composed of the properties described in the Sixth Clause hereof.

 

 

"Revolving Period"

If applicable, the period during which the Trustor will have the right to transfer Additional Loans to the Trust in connection with a specific Securitization Transaction, in accordance with the terms of that particular transaction and subject ot the guidelines established in the Eighth Clause of this Agreement.

 

 

"Indemnified Persons"

Has the meaning given to it in the Thirty-seventh Clause hereof.

 

 

"Program"

The program for the issuance of Securities Certificates of the Trustee authorized by the CNBV.

 

 

"Regulations"

The Bylaws of the BMV in force, or any other provision that replaces it.

 

 

"Common Representative"

For each Issue, the company contracted to perform the duties of the common representative of Holders of Securities Certificates corresponding to said Issue, which the Trustor designates and which is to subscribe the respective Instrument, with the understanding that one and the same common representative may represent the Holders of one or more Issues and any successor or assign thereof.

 

 

"Required Balance in Reserve Account "A"

In relation to each Securitization Transaction, the amount that must be maintained in Reserve Account "A" as indicated in the Characteristics Letter and in the corresponding Issue Documents.

 

 

"Required Balance in Reserve Account "B"

In relation to each Securitization Transaction, the amount that must be maintained in Reserve Account "B", if applicable, as indicated in the Characteristics Letter and in the corresponding Issue Documents.

 

 

"Insurance Policies"

Automobile insurance policies for a full or partial coverage that may be purchased for the unit, and Life-Borrower insurance policies that may be purchased for natural person Borrowers, by the Borrower or the Trustor, in the terms of any Loan Agreement.

 

 

"SFN"

Servicios Financieros Navistar, S.A. de C.V., Sociedad Financiera de Objeto Limitado.

 

 

"Request for Special Contribution"

Has the meaning given it in the Eighth Clause hereof.

 

 

"Request for Revolving Period"

Has the meaning given it in the Eighth Clause of this Agreement.

 

 

"Supplement"

The supplement corresponding to each Issue of Securities Certificates that establishes the terms and conditions thereof.

 

 

"Holder"

A corporate entity of any kind or a natural person who, at any time, is the legitimate owner or holder of one or more Securities.

 

 

"Instrument"

The document which, under the terms of Article 14 Bis 7 of the LMV, will cover one or more Securities Certificates of the same series and class.

 

 

"Unit"

The Transportation Equipment financed under a Loan Agreement.

 

 

 

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EXHIBIT 10.44 (continued)

 

"Securities"

The Securities Certificates and, if applicable, Subordinate Certificates issued by the Trustee in relation to a Securitization Transaction.

 

 

"Appraiser"

The person, company or entity that may be contracted to provide appraisal services in relation to the Loans, their successors, assigns or grantees.

 

 

SECOND. Constitution.

 

The Trustor hereby constitutes an irrevocable management trust with the Trustee through a $25,000.00 (Twenty-five thousand pesos 00/100 Mx.Cy.) contribution to the Trust, as per the terms and conditions of this Agreement.

 

The above sum shall be applied, as necessary, for the opening of Collection Accounts to be used in connection with the Securitization Operations and the Operating Accounts to be employed in connection with the first Securitization Operation carried out under this Trust. The funds applied towards the opening of the Operating Accounts mentioned hereinabove will be reimbursed to the Trustor in accordance with the contents of the Eleventh Clause hereinafter. Any surplus funds remaining after opening the accounts referred to above will be returned to the Trustor by the Trustee.

 

The execution of this Agreement by the Trustee shall constitute proof of receipt by the Trustee of the cash mentioned hereinabove, as per the terms hereof.

 

THIRD. Parties and Beneficiaries of the Trust.

 

The following persons are parties to or beneficiaries of this Agreement, as per the terms set out in front of their respective names:

 

TRUSTOR:

Servicios Financieros Navistar, S.A. de C.V., Sociedad Financiera de Objeto Limitado.

 

 

TRUSTEE:

Banco J.P. Morgan, S.A., Institucion de Banca Multiple, J.P. Morgan Grupo Financiero, Division Fiduciaria.

 

 

FIRST BENEFICIARIES:

All the Securities Certificate Holders of each Issue and, should there be any Ordinary Securities Certificates and Subordinate Certificates (that may qualify as securities certificates), the First Beneficiaries shall be the Holders of Ordinary Securities Certificates.

 

Holders of Securities Certificates (Ordinary Securities Certificates, if applicable) of each Issue will be First Beneficiaries regarding the right to receive payment of any amounts owed in connection with said Securities Certificates (including interest and principal) and, if applicable, regarding any other rights they may have in connection with the corresponding Issue.

 

Should an Issue provide for the issuing of Ordinary Securities Certificates and Subordinate Certificates (that may qualify as Securities Certificates), only the Holders of Ordinary Securities Certificates shall be First Beneficiaries, provided that the Holders of Subordinate Certificates shall be beneficiaries as per the provisions hereinafter.

 

 

SECOND BENEFICIARIES:

(ii)   Should the Securitization Operation have External Credit Backing and, as per the terms of said Securitization Operation, the Guarantor is a beneficiary of the Trust, the Guarantor

Will have the status of Second Beneficiary, if applicable, regarding its right to

 

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EXHIBIT 10.44 (continued)

 

 

receive payment of any amounts, paid under the Securities, of the funds that constitute the corresponding Common Fund. Said right shall be subject to the condition that the Operating Accounts corresponding to the relevant Securitization Operation must have been duly integrated as per the terms of this Agreement’s Nineteenth Clause.

(ii) Should the Securitization Operation not have an External Credit Backing or, having such External Credit Backing, the terms of the Securitization Operation do not provide for the Guarantor to be a beneficiary of the Trust and the Securitization Operation does not provide for the issuing of Subordinate Certificates, each of the Holders of Subordinate Certificates

of each Issue will be Second Beneficiaries regarding the right to receive payment of any amounts due under said Subordinate Certificates (including interest and principal) and, if applicable, regarding any other right granted as per the terms of the corresponding Issue

(iii) Should the Securitization Operation not have an External Credit Backing or, having such External Credit Backing, the terms of the Securitization Operation do not provide for the Guarantor to be a beneficiary of the Trust and the Securitization Operation does not provide for the issuing of Subordinate Certificates, the Trustor

will be Second Beneficiary regarding (a) the right to receive any surpluses corresponding to a Securitization Operation once the corresponding Operating Accounts have been integrated and (b) the right granted to it as per this Agreement’s Forty-First Clause for the reacquisition of the Loans corresponding to a Securitization Operation, once the corresponding Securities have been fully paid and, in the case of premature amortization of the Securities and, if applicable, regarding any other rights granted to it as per the terms of the corresponding Issue.

 

 

THIRD BENEFICIARIES:

(ii)   Should the Securitization Operation have External Credit Backing and, as per the terms of said Securitization Operation, the Guarantor is a beneficiary of the Trust and the Securitization Operation provides for the issuing of Subordinate Certificates.

Each of Holder of the Subordinate Certificates will be Third Beneficiaries regarding the rights mentioned hereinabove supposing they were Second Beneficiaries.

 

(ii) Should the Securitization Operation (1) have External Credit Backing and, as per the terms of said Securitization Operation, the Guarantor is a beneficiary of the Trust and the Securitization Operation does not provide for the issuing of Subordinate Certificates or (2) not have an External Credit Backing or, having such External Credit Backing, the terms of the Securitization Operation do not provide for the Guarantor to be a beneficiary of the Trust and the Securitization Operation provides for the issuing of Subordinate Certificates the Holders of which shall be Second Beneficiaries, the Trustor

 

Will be Third Beneficiary regarding the rights mentioned hereinabove provided they were Second Beneficiaries.

 

Were the Trustor Second Beneficiary, there would be no Third Beneficiary.

 

 

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EXHIBIT 10.44 (continued)

 

FOURTH BENEFICIARY

Should the Securitization Operation (1) have External Credit Backing and, as per the terms of said Securitization Operation, the Guarantor is a beneficiary of the Trust and the Securitization Operation provides for the issuing


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