Exhibit 99.3
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CUSTODIAN AGREEMENT
BETWEEN
NAVISTAR FINANCIAL CORPORATION
CUSTODIAN
AND
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
SELLER
DATED AS OF APRIL 30, 2002
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THIS CUSTODIAN AGREEMENT, dated as of April 30, 2002 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 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 Chase
Manhattan Bank USA, National Association, acting as Owner Trustee of the
Navistar Financial 2002-A 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
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; Acknowledgment 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 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, truck chassis, 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, 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.
(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 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
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 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 to
all non-discretionary details in connection with maintaining custody of the
Receivable Files described
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herein. In addition, the Custodian shall assist the Owner Trustee 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 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 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 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
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 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, 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
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 Owner Trustee, the Indenture Trustee, the
Custodian and their respective successors and assigns.
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.
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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
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Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
NAVISTAR FINANCIAL CORPORATION,
as Custodian
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
