EXHIBIT 10.4
================================================================================
ADMINISTRATION AGREEMENT
AMONG
NAVISTAR FINANCIAL 1995-B OWNER TRUST
ISSUER
AND
NAVISTAR FINANCIAL CORPORATION
ADMINISTRATOR
AND
THE BANK OF NEW YORK
INDENTURE TRUSTEE
DATED AS OF NOVEMBER 1, 1995
================================================================================
ADMINISTRATION AGREEMENT, dated as of November 1, 1995 among NAVISTAR
FINANCIAL 1995-B OWNER TRUST, a Delaware business trust (the "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 November 1, 1995 (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 and Servicing Agreement, (ii) the Note Depository Agreement, (iii)
the Certificate Depository Agreement and (iv) the Indenture;
WHEREAS, pursuant to the Basic Documents, the Issuer and Chemical Bank
Delaware, 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 and Servicing Agreement of even date herewith among
----------
the Issuer, Navistar Financial Retail Receivables Corporation 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
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.
--------------------------
-1-
(a) Duties with Respect to the Depository Agreements and the
--------------------------------------------------------
Indenture. (i) The Administrator agrees to perform all its duties as
Administrator and the duties of the Issuer and the Owner Trustee under the
Indenture and the Depository Agreements. In addition, the Administrator shall
consult with the Owner Trustee regarding the duties of the Issuer and the Owner
Trustee under the Indenture and the Depository Agreements. The Administrator
shall monitor the performance of the Issuer and shall advise the Owner Trustee
when action is necessary to comply with the duties of the Issuer and the Owner
Trustee under the Indenture and the Depository Agreements. 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, as applicable, to prepare, file or deliver
pursuant to the Indenture and the Depository Agreements. 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 Indenture
including such of the foregoing as are required with respect to the following
matters under the Indenture (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
Trust Estate (Section 3.4);
-2-
(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 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 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 Pooling and Servicing Agreement and, if
such Servicer Default arises from the failure of the Servicer to perform any of
its duties under the Pooling and 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, any Insolvency Event with
respect to the Seller, each default by the Seller under the Pooling and
Servicing Agreement and each default by NFC under the 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 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 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);
-3-
(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 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);
(X) the execution and delivery of new Notes conforming to any
supplemental indenture (Section 9.6);
(Y) 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);
(Z) 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));
(AA) 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));
(BB) 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);
(CC) the preparation and delivery to Noteholders and the Indenture
Trustee of any agreements with respect to alternate payment and notice
provisions (Section 11.6); and
(DD) the recording of the Indenture, if applicable (Section 11.15).
(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 negligence 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
-4-
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 Trust's payments 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 Owner Trustee set forth in Sections 5.2(d),
5.4(a), (b), (c) and (d) and the last two sentences of Section 5.4, and Section
5.5 of the Trust Agreement with respect to, among other things, accounting and
reports to Certificateholders; provided, however, that the Owner Trustee shall
-------- -------
retain responsibility for the distribution to the Certificateholders of the
Schedule K-1's necessary to enable each Certificateholder to prepare its federal
and state income tax returns.
(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. Such accountants or the Administrator shall provide
the Owner Trustee on or before November 15, 1995 with a letter specifying
whether any withholding tax specified in the preceding clause (ii) is then
required and, if required, specifying the procedures to be followed to comply
with the Code. 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
-5-
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 Issuer or the Owner Trustee to prepare,
file or deliver pursuant to the Basic Documents.
(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
(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 Issuer 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 8.02 of the
Pooling and Servicing Agreement, to enforce the provisions of Sections 8.02,
8.03 and 8.04 of the Pooling and 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.
-6-
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 of the Issuer or the Owner Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be con strued 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.
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) Subject to Section 10(e), the Administrator may resign its duties
hereunder by providing the Issuer with at least 60 days' prior written notice.
(c) Subject to Section 10(e), the Issuer may remove the Administrator
without cause by providing the Administrator with at least 60 days' prior
written notice.
(d) Subject to Section 10(e), 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 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);
-7-
(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 and the Indenture Trustee within seven days after
the happening of such event.
(e) 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, either Trustee, the Administrator or the Rating Agencies under this
Agreement shall be delivered as specified in Appendix B to the Pooling and
----------
Servicing 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:
-8-
(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.
(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 in the Outstanding Amount of the Notes as of the
close of the immediately preceding Distribution Date and the holders of
Certificates evidencing at least a majority of the Voting Interests 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.
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
-9-
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.
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 Chemical Bank Delaware, not in its
individual capacity but solely as Owner Trustee on behalf of the Trust and in no
event shall Chemical Bank Delaware 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.
-10-
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.
* * * * *
-11-
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 1995-B OWNER TRUST
By: CHEMICAL BANK DELAWARE, not in
its individual capacity, but
solely as Owner Trustee on
behalf of the Trust
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Trust Officer
THE BANK OF NEW YORK, as Indenture Trustee
By: /s/ Xxxxxxxx X.X. Xxxxx
------------------------------------
Name: Xxxxxxxx X.X. Xxxxx
Title: Assistant Treasurer
NAVISTAR FINANCIAL CORPORATION, as
Administrator
By: /s/ R. Xxxxx Xxxx
------------------------------------
Name: R. Xxxxx Xxxx
Title: Vice President
-12-
