Exhibit 99.2
ADMINISTRATION AGREEMENT
AMONG
NAVISTAR FINANCIAL 2003-B OWNER TRUST
ISSUER
AND
NAVISTAR FINANCIAL CORPORATION
ADMINISTRATOR
AND
THE BANK OF NEW YORK
INDENTURE TRUSTEE
DATED AS OF OCTOBER 31, 2003
ADMINISTRATION AGREEMENT, dated as of October 31, 2003 among NAVISTAR
FINANCIAL 2003-B OWNER TRUST, a Delaware statutory trust ("Issuer"), NAVISTAR
FINANCIAL CORPORATION, a Delaware corporation, as administrator (the
"Administrator"), and THE BANK OF NEW YORK, a New York banking corporation, not
in its individual capacity but solely as Indenture Trustee (the "Indenture
Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer is issuing Notes pursuant to an Indenture, dated as
of October 31, 2003 (as amended and supplemented from time to time, the
"Indenture"), between the Issuer and the Indenture Trustee;
WHEREAS, the Issuer has entered into (or assumed) certain agreements in
connection with the issuance of the Notes and the Certificates, including (i)
the Pooling Agreement, (ii) the Servicing Agreement, (iii) the Interest Rate
Swap, (iv) the Swap Counterparty Rights Agreement, (v) the Note Depository
Agreement and (vi) the Indenture (collectively, the "Issuer Documents");
WHEREAS, pursuant to the Basic Documents, the Issuer and Chase
Manhattan Bank USA, National Association, as Owner Trustee, are required to
perform certain duties in connection with (a) the Notes and the Collateral and
(b) the Certificates;
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the Owner Trustee
referred to in the preceding clause, and to provide such additional services
consistent with the terms of this Agreement and the Basic Documents as the
Issuer and the Owner Trustee may from time to time request;
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties agree as follows:
1. Certain Definitions. Capitalized terms used but not otherwise
defined herein shall have the respective meanings assigned them in Part I of
Appendix A to the Pooling Agreement of even date herewith between the Issuer and
Navistar Financial Retail Receivables Corporation (as it may be amended,
supplemented or modified from time to time, the "Pooling Agreement"). All
references herein to "the Agreement" or "this Agreement" are to this
Administration Agreement as it may be amended, supplemented or modified 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 Sections and
subsections are to Sections and subsections of this Agreement unless otherwise
specified. The rules of construction set forth in Part II of such Appendix A
shall be applicable to this Agreement.
2. Duties of the Administrator.
(a) Duties with Respect to the Issuer Documents.
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(i) The Administrator agrees to perform all its duties as
Administrator and the duties of the Issuer and the Owner Trustee under the
Issuer Documents. In addition, the Administrator shall consult with the Owner
Trustee regarding the duties of the Issuer and the Owner Trustee under the
Issuer Documents. The Administrator shall monitor the performance of the Issuer
and the Owner Trustee and shall advise the Owner Trustee when action is
necessary to comply with the duties of the Issuer and the Owner Trustee under
the Issuer Documents. The Administrator shall prepare for execution by the
Issuer or the Owner Trustee or shall cause the preparation by other appropriate
Persons of all such documents, reports, filings, instruments, certificates,
notices and opinions as it shall be the duty of the Issuer or the Owner Trustee
to prepare, file or deliver pursuant to the Issuer Documents. In furtherance of
the foregoing, the Administrator shall take all appropriate action that it is
the duty of the Issuer or the Owner Trustee to take pursuant to the Issuer
Documents, including such of the foregoing as are required with respect to the
following matters under the Issuer Documents (unless otherwise specified,
references are to sections of the Indenture):
(A) the preparation of or obtaining of the documents and instruments
required for authentication of the Notes and delivery of the same to the
Indenture Trustee (Section 2.2);
(B) causing the Note Register to be kept and giving the Indenture
Trustee notice of any appointment of a new Note Registrar and the location, or
change in location, of the Note Register (Section 2.4);
(C) the notification of Noteholders of the final principal payment on
their Notes (Section 2.7(e));
(D) the preparation, obtaining or filing of the instruments, opinions
and certificates and other documents required for the release of collateral
(Section 2.9);
(E) the preparation of Definitive Notes and arranging the delivery
thereof (Section 2.12);
(F) the maintenance of an office in the Borough of Manhattan, the City
of New York, for registration of transfer or exchange of Notes (Section 3.2);
(G) causing newly appointed Paying Agents, if any, to deliver to the
Indenture Trustee the instrument specified in the Indenture regarding funds held
in trust (Section 3.3(c));
(H) the direction to the Indenture Trustee to deposit monies with
Paying Agents, if any, other than the Indenture Trustee (Section 3.3(b));
(I) the obtaining and preservation of the Issuer's qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of the Indenture, the
Notes, the Collateral and each other instrument and agreement included in the
Owner Trust Estate (Section 3.4);
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(J) the preparation of all supplements, amendments, financing
statements, continuation statements, instruments of further assurance and other
instruments, in accordance with Section 3.5 of the Indenture, necessary to
protect the Owner Trust Estate (Section 3.5);
(K) the delivery of the Opinion of Counsel on the Closing Date, in
accordance with Section 3.6(a) of the Indenture, as to the Owner Trust Estate,
and the annual delivery of the Opinion of Counsel, the Officers' Certificate and
certain other statements, in accordance with Sections 3.6(b) and 3.9 of the
Indenture, as to compliance with the Indenture (Sections 3.6 and 3.9);
(L) the identification to the Indenture Trustee in an Officers'
Certificate of a Person with whom the Issuer has contracted to perform its
duties under the Indenture (Section 3.7(b));
(M) the notification of the Indenture Trustee and the Rating Agencies
of a Servicer Default pursuant to the Servicing Agreement and, if such Servicer
Default arises from the failure of the Servicer to perform any of its duties
under the Servicing Agreement, the taking of all reasonable steps available to
remedy such failure (Section 3.7(d));
(N) the preparation and obtaining of documents and instruments
required for the release of the Issuer from its obligations under the Indenture
(Section 3.11(b));
(O) the delivery of notice to the Indenture Trustee of each Event of
Default under the Indenture, each Servicer Default under the Servicing
Agreement, each default by the Seller under the Pooling Agreement, each default
by NFC under the Purchase Agreement and each default by Harco Leasing under the
Lease Purchase Agreement (Section 3.19);
(P) the monitoring of the Issuer's obligations as to the satisfaction
and discharge of the Indenture and the preparation of an Officers' Certificate
and the obtaining of the Opinion of Counsel and the Independent Certificate
relating thereto (Section 4.1);
(Q) the compliance with any written directive of the Indenture Trustee
with respect to the sale of the Owner Trust Estate in a commercially reasonable
manner if an Event of Default shall have occurred and be continuing (Section
5.4);
(R) the preparation and delivery of notice to Noteholders and Swap
Counterparty of the removal of the Indenture Trustee and the appointment of a
successor Indenture Trustee (Section 6.8);
(S) the preparation of any written instruments required to confirm
more fully the authority of any co-trustee or separate trustee and any written
instruments necessary in connection with the resignation or removal of any
co-trustee or separate trustee (Sections 6.8 and 6.10);
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(T) the furnishing of the Indenture Trustee with the names and
addresses of Noteholders during any period when the Indenture Trustee is not the
Note Registrar (Section 7.1);
(U) the preparation and, after execution by the Issuer, the filing
with the Commission, any applicable state agencies and the Indenture Trustee of
documents required to be filed on a periodic basis with, and summaries thereof
as may be required by rules and regulations prescribed by, the Commission and
any applicable state agencies and the transmission of such summaries, as
necessary, to the Noteholders (Section 7.3);
(V) the preparation of an Issuer Request and Officer's Certificate
and the obtaining of an Opinion of Counsel and Independent Certificates, if
necessary, for the release of the Trust Estate (Sections 8.4 and 8.5);
(W) the preparation of the statements to Securityholders in
accordance with Section 8.8(a) of the Indenture (Section 8.8(a));
(X) the preparation of Issuer Orders and the obtaining of Opinions of
Counsel with respect to the execution of supplemental indentures and the mailing
to the Noteholders of notices with respect to such supplemental indentures
(Sections 9.1, 9.2 and 9.3);
(Y) the execution and delivery of new Notes conforming to any
supplemental indenture (Section 9.6);
(Z) the notification of Noteholders and the Rating Agencies of
redemption of the Notes or the duty to cause the Indenture Trustee to provide
such notification (Sections 10.1 and 10.2);
(AA) the preparation of all Officer's Certificates, Opinions of
Counsel and Independent Certificates with respect to any requests by the Issuer
to the Indenture Trustee to take any action under the Indenture (Section
11.1(a));
(BB) the preparation and delivery of Officers' Certificates and the
obtaining of Independent Certificates, if necessary, for the release of property
from the lien of the Indenture (Section 11.1(b));
(CC) the notice or other communication to the Rating Agencies, upon
the failure of the Indenture Trustee to give such notice or other communication
pursuant to Section 11.4 (Section 11.4);
(DD) the preparation and delivery to Noteholders and the Indenture
Trustee of any agreements with respect to alternate payment and notice
provisions (Section 11.6);
(EE) the recording of the Indenture, if applicable (Section 11.15);
(FF) the delivery to the Indenture Trustee of an Officer's Certificate
and an Opinion of Counsel addressed to the Issuer, each stating that any
consolidation or merger
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of the Issuer and any related supplemental indenture shall have no material
adverse tax consequence to the Swap Counterparty, as required pursuant to
Section 2.01(a) of the Swap Counterparty Rights Agreement;
(GG) the delivery to the Indenture Trustee of an Officer's Certificate
and an Opinion of Counsel addressed to the Issuer, each stating that any sale,
conveyance, exchange, transfer or disposition of property or assets of the
Issuer shall have no material adverse tax consequence to the Swap Counterparty,
as required pursuant to Section 2.01(b) of the Swap Counterparty Rights
Agreement;
(HH) the delivery of a copy to the Swap Counterparty of any notice it
shall deliver pursuant to Section 3.7(d) of the Indenture in respect of the
occurrence of a Servicer Default under the Servicing Agreement (Section 4.02(b)
of the Swap Counterparty Rights Agreement);
(II) the delivery of prompt written notice to the Swap Counterparty of
each Event of Default under the Indenture, each Servicer Default, each default
on the part of the Seller of its obligations under the Servicing Agreement and
each default on the part of NFC of its obligations under the Pooling and
Servicing Agreement (Section 4.02(c) of the Swap Counterparty Rights Agreement);
(JJ) the delivery to the Swap Counterparty promptly of a copy of the
written notice in the form of an Officer's Certificate delivered to the
Indenture Trustee, of any event which with the giving of notice and the lapse of
time would become an Event of Default under Section 5.1(d) of the Indenture, its
status and what action the Issuer is taking or proposes to take with respect
thereto (Section 4.02(d) of the Swap Counterparty Rights Agreement);
(KK) the delivery of written notice to the Swap Counterparty at least
60 days prior to the removal of the Administrator without cause pursuant to
Section 10(c) of the Administration Agreement (Section 4.10(a) of the Swap
Counterparty Rights Agreement);
(LL) the delivery to the Swap Counterparty of a copy of any written
notice from the Issuer to the Administrator effecting the immediate removal of
the Administrator pursuant to Section 10(d) of the Administration Agreement
(Section 4.10(b) of the Swap Counterparty Rights Agreement);
(MM) the prompt transmittal to the Swap Counterparty of any notice
received by the Issuer from the Noteholders (Section 4.12 of the Swap
Counterparty Rights Agreement);
(NN) the delivery to the Swap Counterparty of summaries of any
information, documents or reports required to be filed by the Issuer pursuant to
Sections 7.3(a)(i) and 7.3(a)(ii) of the Indenture (Section 4.13 of the Swap
Counterparty Rights Agreement); and
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(OO) the delivery to the Swap Counterparty of a copy of the
Officer's Certificate required by Section 3.9 of the Indenture (Section 4.13(c)
of the Swap Counterparty Rights Agreement).
(ii) In addition, the Administrator will indemnify the Owner Trustee
and its agents for, and hold them harmless against, any losses, liability or
expense incurred without gross negligence, willful misconduct or bad faith on
their part, arising out of or in connection with the acceptance or
administration of the transactions contemplated by the Trust Agreement,
including the reasonable costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of any of
their powers or duties under the Trust Agreement.
(b) Additional Duties.
(i) In addition to the duties of the Administrator set forth above,
the Administrator shall perform such calculations and shall prepare for
execution by the Issuer or the Owner Trustee or shall cause the preparation by
other appropriate Persons of all such documents, reports, filings, instruments,
certificates, notices and opinions as it shall be the duty of the Issuer or the
Owner Trustee to prepare, file or deliver pursuant to the Basic Documents, and
at the request of the Owner Trustee shall take all appropriate action that it is
the duty of the Issuer or the Owner Trustee to take pursuant to the Basic
Documents. Subject to Section 7 of this Agreement, and in accordance with the
directions of the Owner Trustee, the Administrator shall administer, perform or
supervise the performance of such other activities in connection with the
Collateral (including the Basic Documents) as are not covered by any of the
foregoing provisions and as are expressly requested by the Owner Trustee and are
reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Basic
Documents to the contrary, the Administrator shall be responsible for promptly
notifying the Owner Trustee if any withholding tax is imposed on the payments
from the Trust to a Certificateholder as contemplated in Section 5.2(c) of the
Trust Agreement. Any such notice shall specify the amount of any withholding tax
required to be withheld by the Owner Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Basic
Documents to the contrary, the Administrator shall be responsible for
performance of the duties of the Issuer or the Owner Trustee set forth in
Sections 5.2(d), 5.4 and 5.5 of the Trust Agreement with respect to, among other
things, accounting and reports to Certificateholders.
(iv) The Administrator may satisfy any obligations it may have with
respect to clauses (ii) and (iii) above by retaining, at the expense of the
Trust payable by the Administrator, a firm of independent public accountants
acceptable to the Owner Trustee which shall perform the obligations of the
Administrator thereunder. If a withholding tax specified in the previous clause
(ii) is due, such accountants or the Administrator shall provide the Owner
Trustee with a letter specifying which withholding tax specified in the
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preceding clause (ii) is then required and specifying the procedures to be
followed to comply with the Code (a) on or before November 17, 2003 if such
withholding tax is due in connection with a payment made on the first
Distribution Date or (b) in all other instances, thirty days before such tax is
to be withheld. Such accountants or the Administrator shall update such letter
if and to the extent it shall no longer be accurate.
(v) The Administrator shall perform the duties of the Administrator
specified in Section 6.10 of the Trust Agreement required to be performed in
connection with the resignation or removal of the Owner Trustee, and any other
duties expressly required to be performed by the Administrator under the Trust
Agreement.
(vi) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into transactions
with or otherwise deal with any of its Affiliates; provided, however, that the
terms of any such transactions or dealings shall be in accordance with any
directions received from the Issuer and shall be, in the Administrator's
opinion, no less favorable to the Issuer than would be available from Persons
that are not Affiliates of the Administrator.
(vii) The Administrator hereby agrees to execute on behalf of the
Issuer 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.
(viii) Notwithstanding anything in this Agreement or the Basic
Documents to the contrary, the Administrator shall be responsible for
performance of the duties of NFRRC set forth in Section 2.6(iii) of the Trust
Agreement.
(c) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable judgment of the
Administrator are non-ministerial, the Administrator shall not take any action
unless, within a reasonable time before the taking of such action, the
Administrator shall have notified the Owner Trustee of the proposed action and
the Owner Trustee shall not have withheld consent or provided an alternative
direction. For the purpose of the preceding sentence, "non-ministerial matters"
shall include:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer and the
compromise of any action, claim or lawsuit brought by or against the Issuer;
(C) the amendment, change or modification of any of the Basic
Documents;
(D) the appointment of successor Note Registrars, successor Paying
Agents and successor Indenture Trustees pursuant to the Indenture or the
appointment of successor Administrators or successor Servicers, or the consent
to the assignment by the Note Registrar, Paying Agent or Indenture Trustee of
its obligations under the Indenture; and
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(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this Agreement, the
Administrator shall not be obligated to, and shall not, (x) make any payments to
the Noteholders under the Basic Documents, (y) sell the Trust Estate pursuant to
Section 5.4 of the Indenture or (z) take any other action that the Issuer
directs the Administrator not to take on its behalf.
3. Successor Servicer and Administrator. The Indenture Trustee shall
undertake, as promptly as possible after the giving of notice of termination to
the Servicer of the Servicer's rights and powers pursuant to Section 7.02 of the
Servicing Agreement, to enforce the provisions of Sections 6.06, 7.02, 7.03 and
7.04 of the Servicing Agreement with respect to the appointment of a successor
Servicer. Such successor Servicer shall, upon compliance with Sections 10(e)(ii)
and (iii), become the successor Administrator hereunder.
4. Records. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer, the Owner
Trustee and the Seller at any time during normal business hours.
5. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Servicer shall pay the Administrator a monthly fee
in the amount of $1,500.
6. Additional Information To Be Furnished to the Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
7. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Issuer or the Owner Trustee with respect to
the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuer, the Administrator shall
have no authority to act for or represent the Issuer or the Owner Trustee in any
way and shall not otherwise be deemed an agent of the Issuer or the Owner
Trustee.
8. No Joint Venture. Nothing contained in this Agreement (i) shall
constitute the Administrator and either the Issuer or the Owner Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
9. Other Activities of Administrator. Nothing herein shall prevent
the Administrator or its Affiliates from engaging in other businesses or, in its
sole discretion, from acting in a similar capacity as an administrator for any
other person or entity even though such person or entity may engage in business
activities similar to those of the Issuer, the Owner Trustee or the Indenture
Trustee.
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10. Term of Agreement; Resignation and Removal of Administrator.
(a) This Agreement shall continue in force until the dissolution of
the Issuer, upon which event this Agreement shall automatically terminate.
(b) The undersigned parties acknowledge that upon the appointment of a
successor Servicer pursuant to the Servicing Agreement, the Administrator
may immediately resign and such successor Servicer shall automatically
become the Administrator hereunder.
(c) Subject to Section 10(f), the Administrator may resign its duties
hereunder by providing the Issuer and the Owner Trustee with at least 60
days' prior written notice.
(d) Subject to Section 10(f), the Issuer may remove the Administrator
without cause by providing the Administrator with at least 60 days' prior
written notice.
(e) Subject to Section 10(f), at the sole option of the Issuer, the
Administrator may be removed immediately upon written notice of termination
from the Issuer to the Administrator if any of the following events shall
occur:
(i) the Administrator shall default in the performance of any of its
duties under this Agreement and, after notice from the Issuer or the Owner
Trustee of such default, shall not cure such default within ten days (or,
if such default cannot be cured in such time, shall not give within ten
days such assurance of cure as shall be reasonably satisfactory to the
Issuer and the Owner Trustee);
(ii) a court having jurisdiction in the premises shall enter a decree
or order for relief, and such decree or order shall not have been vacated
within 60 days, in respect of the Administrator in any involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect or appoint a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official for the Administrator or any
substantial part of its property or order the winding-up or liquidation of
its affairs; or
(iii) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary
case under any such law, or shall consent to the appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or similar official
for the Administrator or any substantial part of its property, shall
consent to the taking of possession by any such official of any substantial
part of its property, shall make any general assignment for the benefit of
creditors or shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in
clauses (ii) or (iii) of this Section 10(d) shall occur, it shall give written
notice thereof to the Issuer, the Owner Trustee, the Swap Counterparty and the
Indenture Trustee within seven days after the happening of such event.
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(f) No resignation or removal of the Administrator pursuant to this
Section 10 shall be effective until (i) a successor Administrator shall
have been appointed by the Issuer, (ii) such successor Administrator shall
have agreed in writing to be bound by the terms of this Agreement in the
same manner as the Administrator is bound hereunder, and (iii) the Rating
Agency Condition has been satisfied with respect to such proposed
appointment.
11. Action upon Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to Section 10(a) or the
resignation or removal of the Administrator pursuant to Section 10(b) or (c),
respectively, the Administrator shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the effective date of such termination,
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to Section 10(a) deliver to the Issuer all property and documents of or
relating to the Collateral then in the custody of the Administrator. In the
event of the resignation or removal of the Administrator pursuant to Section
10(b) or (c), respectively, the Administrator shall cooperate with the Issuer
and take all reasonable steps requested to assist the Issuer in making an
orderly transfer of the duties of the Administrator.
12. Notices. All demands, notices and communications upon or to the
Issuer, the Owner Trustee, the Indenture Trustee, the Administrator or the
Rating Agencies under this Agreement shall be delivered as specified in Appendix
B to the Pooling Agreement.
13. Amendments.
(a) This Agreement may be amended from time to time with prior notice
to the Rating Agencies by a written amendment duly executed and delivered by the
Issuer, the Administrator and the Indenture Trustee, with the written consent of
the Owner Trustee, without the consent of the Securityholders, for any of the
following purposes:
(i) to add provisions hereof for the benefit of the Securityholders or
to surrender any right or power herein conferred upon the Administrator;
(ii) to cure any ambiguity or to correct or supplement any provision
herein which may be inconsistent with any other provision herein or in any
other Basic Document;
(iii) to evidence and provide for the appointment of a successor
Administrator hereunder and to add to or change any of the provisions of
this Agreement as shall be necessary to facilitate such succession; and
(iv) to add any provisions to, or change in any manner or eliminate
any of the provisions of, this Agreement, or modify in any manner the
rights of the Securityholders; provided, however, that such amendment under
this Section 13(a)(iv) shall not, as evidenced by an Opinion of Counsel,
materially and adversely affect in any material respect the interest of any
Securityholder.
Prior to the execution of any amendment pursuant to this Section 13(a), the
Administrator shall furnish written notification of the substance of such
amendment to each of the Rating Agencies.
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(b) This Agreement may also be amended by the Issuer, the
Administrator and the Indenture Trustee with prior notice to the Rating
Agencies and with the written consent of the Owner Trustee and the holders
of Notes evidencing at least a majority of the Controlling Class as of the
close of the immediately preceding Distribution Date for the purpose of
adding any provisions to, changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of
Securityholders; provided, however, that no such amendment may (i) increase
or reduce in any manner the amount of, or accelerate or delay the timing
of, collections of payments on Receivables or distributions that are
required to be made for the benefit of the Securityholders, (ii) reduce the
percentage of the holders of Securities which are required to consent to
any amendment of this Agreement or (iii) modify or alter any provision of
this Section 13, except to provide that certain additional provisions of
this Agreement and the Basic Documents cannot be modified or waived without
the consent of each Securityholder affected thereby, without, in any such
case, the consent of the holders of all the outstanding Securities.
(c) Notwithstanding Sections 13(a) and (b), the Administrator may not
amend this Agreement without the permission of the Seller, which permission
shall not be unreasonably withheld.
(d) Notwithstanding any other provision of this Agreement, if the
consent of the Swap Counterparty is required pursuant to the Swap
Counterparty Rights Agreement to amend this Agreement, any such purported
amendment shall be null and void ab initio unless the Swap Counterparty
consents in writing to such amendment.
14. Successors and Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
the Issuer and the Owner Trustee and subject to the satisfaction of the Rating
Agency Condition in respect thereof. An assignment with such consent and
satisfaction, if accepted by the assignee, shall bind the assignee hereunder in
the same manner as the Administrator is bound hereunder. Notwithstanding the
foregoing, this Agreement may be assigned by the Administrator without the
consent of the Issuer or the Owner Trustee to a corporation or other
organization that is a successor (by merger, consolidation or purchase of
assets) to the Administrator, provided that such successor organization executes
and delivers to the Issuer, the Owner Trustee and the Indenture Trustee an
agreement in which such corporation or other organization agrees to be bound
hereunder by the terms of such assignment in the same manner as the
Administrator is bound hereunder. Subject to the foregoing, this Agreement shall
bind any successors or assigns of the parties hereto.
15. GOVERNING LAW. All questions concerning the construction, validity
and interpretation of this Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of Illinois, without
giving effect to any choice of law or conflict provision or rule (whether of the
State of Illinois or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of Illinois; provided however
that the obligations, rights and remedies of the Indenture Trustee hereunder
shall be governed by the internal laws of the State of New York.
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16. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
17. Separate Counterparts. This Agreement may be executed by the
parties in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
18. Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall for any reason
whatsoever be held invalid, then such covenants, agreements, provisions or terms
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.
19. Not Applicable to Navistar Financial Corporation in Other
Capacities. Nothing in this Agreement shall affect any obligation Navistar
Financial Corporation may have in any other capacity.
20. Limitation of Liability of Owner Trustee and Indenture Trustee.
(a) Notwithstanding anything contained herein to the contrary, this instrument
has been executed on behalf of the Issuer by Chase Manhattan Bank USA, National
Association, not in its individual capacity but solely as Owner Trustee on
behalf of the Trust and in no event shall Chase Manhattan Bank USA, National
Association in its individual capacity have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the assets
of the Issuer. For all purposes of this Agreement, in the performance of any
duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of Article
VI of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been executed by The Bank of New York, not in its individual
capacity but solely in its capacity as Indenture Trustee and in no event
shall The Bank of New York have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer
hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the
assets of the Issuer.
21. Third-Party Beneficiary. Each of the Seller, only to the extent
provided in Section 13(c), and the Owner Trustee is a third-party beneficiary to
this Agreement and is entitled to the rights and benefits hereunder and may
enforce the provisions hereof as if it were a party hereto.
22. Merger and Integration. Except as specifically stated otherwise
herein, this Agreement sets forth the entire understanding of the parties
relating to the subject matter hereof, and all prior understandings, written or
oral, are superseded by this Agreement. This Agreement may not be modified,
amended, waived, or supplemented except as provided herein.
12
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13
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed by their respective officers as of the day and year first above
written.
NAVISTAR FINANCIAL 2003-B OWNER TRUST
By: CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, not in its
individual capacity, but solely as Owner
Trustee on behalf of the Trust
By:___________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK, not in its individual
capacity but solely as Indenture Trustee
By:________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Treasurer
NAVISTAR FINANCIAL CORPORATION, as Administrator
By:________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer