Exhibit 99.3
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CUSTODIAN AGREEMENT
BETWEEN
NAVISTAR FINANCIAL CORPORATION
CUSTODIAN
AND
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
SELLER
DATED AS OF NOVEMBER 1, 2001
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THIS CUSTODIAN AGREEMENT, dated as of November 1, 2001 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 Owner Trustee,
pursuant to which the Seller shall sell, transfer and assign to the Owner
Trustee 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 Owner Trustee and the Indenture Trustee.
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
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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
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Chase Manhattan Bank USA, National Association, acting as Owner Trustee of the
Navistar Financial 2001-B Owner Trust, 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
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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.
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2. Appointment of Custodian; Acknowledgment of Receipt. Subject to
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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 Owner Trustee and
the Indenture Trustee 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 Owner Trustee and the
Indenture
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Trustee with respect to those Receivables of which from time to time the Owner
Trustee and the Indenture Trustee are Holders. 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
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Receivable File at its principal office at Navistar Financial Corporation, 0000
Xxxx Xxxx Xxxx, Xxxxxxx Xxxxxxx, Xxxxxxxx 00000, 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.
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(a) Safekeeping. The Custodian shall hold each Receivable File
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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 Owner Trustee and the Indenture Trustee 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 Owner Trustee
and the Indenture Trustee 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
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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
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(and its related Receivable File) in the Receivable Files described herein to
the Seller, the Servicer or the Owner Trustee and the Indenture Trustee, 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
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to all non-discretionary details in connection with maintaining custody of the
Receivable Files described herein. In addition, the Custodian shall assist the
Owner Trustee generally in the preparation of
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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
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have received proper instructions from the Owner Trustee 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 Owner Trustee may be received and
accepted by the Custodian as conclusive evidence of the authority of any such
Authorized 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
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indemnify the Owner Trust Estate 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 Owner Trust Estate 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 Owner Trust Estate or any such Trustee, respectively,
for any portion of any such amount resulting from the willful misfeasance, bad
faith or gross negligence of any such Trustee.
7. Advice of Counsel. The Custodian, the Seller and, upon execution
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of the Further Transfer and Servicing Agreements, the Owner Trustee further
agrees 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
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Additional Provisions. This Agreement shall become effective as of the date
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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 Owner
Trustee or by any Persons to whom the Owner Trustee 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 Owner
Trustee or the Owner Trustee's agent at such place or places as the Owner
Trustee may reasonably designate.
9. Governing Law. All questions concerning the construction,
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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.
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10. Notices. All demands, notices and communications upon or to the
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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
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inure to the benefit of the Seller, the Owner Trustee, the Indenture Trustee,
the Custodian and their respective successors and assigns.
12. Severability of Provisions. If any one or more of the
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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
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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
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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
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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
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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
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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. 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.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed 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: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
NAVISTAR FINANCIAL CORPORATION,
as Custodian
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
