EXHIBIT 10.3
CUSTODIAN AGREEMENT
BETWEEN
NAVISTAR FINANCIAL CORPORATION
CUSTODIAN
AND
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
SELLER
DATED AS OF AUGUST 3, 1994
THIS CUSTODIAN AGREEMENT, dated as of August 3, 1994 is
made between Navistar Financial Corporation, a Delaware
corporation, as Custodian (the "Custodian"), and Navistar
Financial Retail Receivables Corporation, a Delaware corporation
(the "Seller").
WHEREAS, simultaneously herewith Navistar Financial
Corporation (in its capacity as seller, "NFC") and the Seller are
entering into a Purchase Agreement of even date herewith (the
"Purchase Agreement"), pursuant to which NFC shall sell, transfer
and assign to the Seller without recourse all of its right, title
and interest in and to the Receivables and certain related rights
and interests therein;
WHEREAS, the Purchase Agreement contemplates that the
Seller may enter into the Further Transfer and Servicing
Agreements with the Issuer, pursuant to which the Seller shall
sell, transfer and assign to the Issuer without recourse, all of
the Seller's right, title and interest in, to and under, among
other things, (a) the Receivables and (b) the custodian agreement
to be entered into simultaneously with the Further Transfer and
Servicing Agreements, pursuant to which the Seller shall
revocably appoint the Custodian as custodian of the Receivables
Files pertaining to the Receivables; and
WHEREAS, in connection with any such sale, transfer and
assignment, the Seller desires for the Custodian to act as
custodian of the Receivables for the benefit of the Issuer.
NOW, THEREFORE, in consideration of the mutual
agreements herein contained and of other good and valuable
consideration the receipt and adequacy of which are hereby
acknowledged, 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 and
Servicing Agreement of even date herewith among the Issuer, the
Seller and Navistar Financial Corporation, as Servicer (as it may
be amended, supplemented or modified from time to time, the
"Pooling and Servicing Agreement"). All references herein to
"the Agreement" or "this Agreement" are to this Custodian
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. Appointment of Custodian; Acknowledgement of
Receipt. Subject to the terms and conditions hereof, the Seller
hereby appoints the Custodian, and the Custodian hereby accepts
such appointment, to act as agent of the Seller as Custodian to
maintain custody of the Receivable Files pertaining to the
Receivables for which from time to time the Seller is the Holder
thereof. The Custodian hereby acknowledges that the Seller may
sell, transfer and assign all of its right, title and interest
under this Agreement to the Issuer pursuant to the Further
Transfer and Servicing Agreements. The Custodian hereby agrees,
in connection with any such sale, transfer and assignment, to act
as Custodian for the benefit of the Issuer with respect to those
Receivables of which from time to time the Issuer is the Holder.
In performing its duties hereunder, the Custodian agrees to act
with reasonable care, using that degree of skill and attention
that the Custodian exercises with respect to receivable files
relating to comparable medium and heavy duty truck, bus and
trailer receivables that the Custodian services and holds for
itself or others. The Custodian hereby acknowledges receipt of
the Receivable File for each Receivable listed on the Schedule of
Receivables.
3. Maintenance at Office. The Custodian agrees to
maintain each Receivable File at its principal office at Navistar
Financial Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other office of the Custodian as shall
from time to time be identified to the Holder of the related
Receivable upon 30 days' prior written notice.
4. Duties of Custodian.
(a) Safekeeping. The Custodian shall hold each
Receivable File described herein on behalf of the Holder of the
related Receivable for the use and benefit of such Holder and, if
applicable, Interested Parties and shall maintain such accurate
and complete accounts, records and computer systems pertaining to
each Receivable File described herein as shall enable the Seller
and the Issuer to comply with their respective obligations under
the Purchase Agreement and the Further Transfer and Servicing
Agreements. Each Receivable shall be identified as such on the
books and records of the Custodian to the extent the Custodian
reasonably determines to be necessary to comply with the terms
and conditions of the Purchase Agreement and, if applicable, the
Further Transfer and Servicing Agreements. The Custodian shall
conduct, or cause to be conducted, periodic physical inspections
of the Receivable Files held by it under this Agreement, and of
the related accounts, records and computer systems, in such a
manner as shall enable the Issuer and the Custodian to verify the
accuracy of the Custodian's inventory and record keeping. The
Custodian shall promptly report to the Holder of a Receivable any
failure on its part to hold the related Receivable File described
herein and maintain its accounts, records and computer systems as
herein provided and promptly take appropriate action to remedy
any such failure.
(b) Access to Records. Subject only to the
Custodian's security requirements applicable to its own employees
having access to similar records held by the Custodian, the
Custodian shall permit the Holder of a Receivable or its duly
authorized representatives, attorneys or auditors to inspect the
related Receivable File described herein and the related
accounts, records and computer systems maintained by the
Custodian pursuant hereto at such times as such Holder may
reasonably request.
(c) Release of Documents. The Custodian shall release
any Receivable (and its related Receivable File) in the
Receivable Files described herein to the Seller, the Servicer or
the Issuer, as appropriate, under the circumstances provided in
the Purchase Agreement and the Further Transfer and Servicing
Agreements.
(d) Administration; Reports. In general, the
Custodian shall attend to all non-discretionary details in
connection with maintaining custody of the Receivable Files
described herein. In addition, the Custodian shall assist the
Issuer generally in the preparation of routine reports to the
holders of Securities, if any, or to regulatory bodies, to the
extent necessitated by the Custodian's custody of the Receivable
Files described herein.
5. Instructions; Authority to Act. The Custodian
shall be deemed to have received proper instructions from the
Issuer with respect to the Receivable Files described herein upon
its receipt of written instructions signed by an Authorized
Officer. A certified copy of a by-law or of a resolution of the
appropriate governing body of the Issuer (or, as appropriate, the
Owner Trustee on behalf of the Issuer) may be received and
accepted by the Custodian as conclusive evidence of the authority
of any such officer to act and may be considered as in full force
and effect until receipt of written notice to the contrary. Such
instructions may be general or specific in terms.
6. Indemnification By the Custodian. The Custodian
agrees to indemnify the Issuer and each Trustee with respect to
any Securities for any and all liabilities, obligations, losses,
damage, payments, costs or expenses of any kind whatsoever that
may be imposed on, incurred or asserted against the Issuer or any
such Trustee as the result of any act or omission in any way
relating to the maintenance and custody by the Custodian of the
Receivable Files described herein; provided, however, that the
Custodian shall not be liable to the Issuer or any such Trustee,
respectively, for any portion of any such amount resulting from
the willful misfeasance, bad faith or gross negligence of the
Issuer or any such Trustee, respectively.
7. Advice of Counsel. The Custodian, the Seller and,
upon execution of the Further Transfer and Servicing Agreements,
the Issuer further agree that the Custodian shall be entitled to
rely and act upon advice of counsel with respect to its
performance hereunder and shall be without liability for any
action reasonably
taken pursuant to such advice, provided that such action is not
in violation of applicable federal or state law.
8. Effective Period, Termination, and Amendment;
Interpretive and Additional Provisions. This Agreement shall
become effective as of the date hereof, shall continue in full
force and effect until terminated as hereinafter provided, may be
amended at any time by mutual agreement of the parties hereto and
may be terminated by either party by written notice to the other
party, such termination to take effect no sooner than sixty (60)
days after the date of such notice. Notwithstanding the
foregoing, if Navistar Financial Corporation resigns as Servicer
under the Further Transfer and Servicing Agreements or if all of
the rights and obligations of the Servicer have been terminated
under the Further Transfer and Servicing Agreements, this
Agreement may be terminated by the Issuer or by any Persons to
whom the Issuer has assigned its rights hereunder. As soon as
practicable after the termination of this Agreement, the
Custodian shall deliver the Receivable Files described herein to
the Issuer or the Issuer's agent at such place or places as the
Issuer may reasonably designate.
9. 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.
10. Notices. All demands, notices and communications
upon or to the Custodian or the Seller under this Agreement shall
be delivered as specified in Appendix B to the Pooling and
Servicing Agreement.
11. Binding Effect. This Agreement shall be binding
upon and shall inure to the benefit of the Seller, the Issuer,
the Custodian and their respective successors and assigns,
including the Issuer.
12. Severability of Provisions. If any one or more of
the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed
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.
13. Assignment. Notwithstanding anything to the
contrary contained in this Agreement, this Agreement may not be
assigned by the Custodian without the prior written consent of
the
Seller or any Persons to whom the Seller has assigned its rights
hereunder, as applicable.
14. Headings. The headings of the various Sections
herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
15. 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.
16. No Third-Party Beneficiaries. This Agreement
shall inure to the benefit of and be binding upon the parties
hereto, the Owners and their respective successors and permitted
assigns. Except as otherwise expressly provided in this
Agreement, no other Person shall have any right or obligation
hereunder.
17. 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.
* * * * *
IN WITNESS WHEREOF, each of the parties hereto has
caused this Agreement to be in its name and on its behalf by a
duly authorized officer as of the day and year first above
written.
NAVISTAR FINANCIAL RETAIL RECEIVABLES
CORPORATION
By: ______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
NAVISTAR FINANCIAL CORPORATION,
as Custodian
By: ______________________________
Name: R. ▇▇▇▇▇ ▇▇▇▇
Title: Vice President