EXHIBIT 10.3
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CUSTODIAN AGREEMENT
BETWEEN
NAVISTAR FINANCIAL CORPORATION
CUSTODIAN
AND
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
SELLER
DATED AS OF NOVEMBER 1, 1995
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THIS CUSTODIAN AGREEMENT, dated as of November 1, 1995 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 from time to time without
recourse all of its right, title and interest in and to 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
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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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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
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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; Acknowledgement 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 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
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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 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
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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 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
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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
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
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have received proper instructions from the Issuer with respect to the Receivable
Files described herein
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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
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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
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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
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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
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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
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,
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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.
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.
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11. Binding Effect. This Agreement shall be binding upon and shall
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inure to the benefit of the Seller, the Issuer, the Custodian and their
respective successors and assigns, including the Issuer.
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12. Severability of Provisions. If any one or more of the covenants,
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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.
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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: /s/ R. Xxxxx Xxxx
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Name: R. Xxxxx Xxxx
Title: Vice President
NAVISTAR FINANCIAL CORPORATION,
as Custodian
By: /s/ R. Xxxxx Xxxx
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Name: R. Xxxxx Xxxx
Title: Vice President
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