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Exhibit
10.6
EXECUTION
COPY
SERVICING
AGREEMENT
AMONG
NAVISTAR FINANCIAL RETAIL
RECEIVABLES CORPORATION,
THE BANK OF NEW
YORK
AS INDENTURE
TRUSTEE,
NAVISTAR FINANCIAL 2007-C
OWNER TRUST,
AS ISSUER
AND
NAVISTAR FINANCIAL
CORPORATION,
AS SERVICER
DATED AS OF NOVEMBER 28,
2007
TABLE OF
CONTENTS
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Page |
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ARTICLE I DEFINITIONS
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1 |
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SECTION 1.01
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Certain Defined Terms
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1 |
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ARTICLE II ADMINISTRATION AND
SERVICING OF RECEIVABLES
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2 |
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SECTION 2.01
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Duties of the Servicer
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2 |
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SECTION 2.02
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Establishment of Accounts
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3 |
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SECTION 2.03
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Collection of Receivables
Payments
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6 |
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SECTION 2.04
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Realization Upon Liquidating
Receivables
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6 |
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SECTION 2.05
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Maintenance of Insurance
Policies
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7 |
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SECTION 2.06
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Maintenance of Security Interests in
Vehicles
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7 |
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SECTION 2.07
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Covenants of the Servicer
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7 |
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SECTION 2.08
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Purchase of Receivables Upon Breach of
Covenant
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8 |
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SECTION 2.09
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Servicing Fee
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9 |
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SECTION 2.10
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Servicer Expenses
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9 |
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SECTION 2.11
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Deposits to Collection
Account
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9 |
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SECTION 2.12
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Collections
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9 |
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SECTION 2.13
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Application of Collections
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10 |
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SECTION 2.14
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Monthly Advances
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10 |
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SECTION 2.15
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Additional Deposits
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11 |
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SECTION 2.16
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Net Deposits
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11 |
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SECTION 2.17
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Servicer’s Certificate
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11 |
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ARTICLE III STATEMENTS AND
REPORTS
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12 |
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SECTION 3.01
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Annual Statement as to Compliance;
Notice of Servicer Default; Tax Reports
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12 |
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SECTION 3.02
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Annual Accountants’
Report
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12 |
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SECTION 3.03
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Access to Certain Documentation and
Information Regarding Receivables
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13 |
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SECTION 3.04
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Maintenance of Composite Schedule of
Retail Notes
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13 |
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SECTION 3.05
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Amendments to Composite Schedule of
Retail Notes
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13 |
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SECTION 3.06
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Maintenance of Systems and Receivables
List
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14 |
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ARTICLE IV THE
CUSTODIAN
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15 |
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SECTION 4.01
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Custody of Receivable Files
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15 |
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SECTION 4.02
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Duties of Servicer as
Custodian
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16 |
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SECTION 4.03
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Custodian’s
Indemnification
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16 |
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SECTION 4.04
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Effective Period and
Termination
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17 |
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ARTICLE V REPRESENTATIONS AND
WARRANTIES OF THE SERVICER
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17 |
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SECTION 5.01
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Representations and Warranties of the
Servicer
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17 |
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ARTICLE VI THE
SERVICER
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18 |
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SECTION 6.01
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Merger or Consolidation of, or
Assumption of the Obligations of, the Servicer
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18 |
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SECTION 6.02
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Limitation on Liability of Servicer and
Others
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18 |
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SECTION 6.03
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Delegation of Duties
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19 |
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SECTION 6.04
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Servicer not to Resign
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SECTION 6.05
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Servicer Indemnification
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SECTION 6.06
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Backup Servicer
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20 |
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ARTICLE VII DEFAULT
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21 |
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SECTION 7.01
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Servicer Defaults
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21 |
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SECTION 7.02
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Consequences of a Servicer
Default
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22 |
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SECTION 7.03
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Indenture Trustee to Act; Appointment of
Successor
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22 |
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SECTION 7.04
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Notification to
Securityholders
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23 |
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SECTION 7.05
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Repayment of Advances
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SECTION 7.06
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Waiver of Past Defaults
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ARTICLE VIII
MISCELLANEOUS
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24 |
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SECTION 8.01
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Amendment
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24 |
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SECTION 8.02
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Termination
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24 |
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SECTION 8.03
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Notices
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25 |
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SECTION 8.04
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Governing Law
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25 |
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SECTION 8.05
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Severability
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25 |
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SECTION 8.06
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Assignment; Third-Party
Beneficiaries
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25 |
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SECTION 8.07
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Successors and Assigns
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25 |
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SECTION 8.08
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Counterparts
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26 |
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SECTION 8.09
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Headings and Cross-References
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26 |
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SECTION 8.10
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No Petition Covenants
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26 |
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SECTION 8.11
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Limitation of Liability of the
Trustees.
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26 |
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SECTION 8.12
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MUTUAL WAIVER OF JURY TRIAL
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27 |
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| APPENDICES |
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Appendix A -
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Minimum
Servicing Standards |
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Appendix B -
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Form of
Servicer’s Certificate |
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- ii -
SERVICING
AGREEMENT
SERVICING AGREEMENT, dated as
of November 28, 2007 (as it may be further amended,
supplemented or modified, this “ Agreement ”),
among Navistar Financial Retail Receivables Corporation, a Delaware
corporation (“ NFRRC ”), Navistar Financial
2007-C Owner Trust, a Delaware statutory trust (the “
Issuer ”), Navistar Financial Corporation, a Delaware
corporation (hereinafter, together with its successors and assigns,
“ NFC ” or, in its capacity as servicer
hereunder, the “ Servicer ”), and The Bank of
New York, a New York banking corporation, acting in its capacity as
Indenture Trustee pursuant to the Indenture (the “
Indenture Trustee ”).
RECITALS :
WHEREAS, NFRRC and NFC are
parties to the Purchase Agreement, pursuant to which NFRRC will
purchase the Receivables and the Related Security with respect
thereto from NFC;
WHEREAS, the Issuer will
issue Notes pursuant to the Indenture between the Issuer and the
Indenture Trustee, and exchange the Notes and the Certificates for
the Receivables and the Related Security with respect thereto
transferred from NFRRC pursuant to the Pooling
Agreement;
WHEREAS, the Servicer desires
to perform the servicing obligations set forth herein relating to
the Receivables and the Related Security owned by the Issuer for
and in consideration of the fees and other benefits set forth in
this Agreement; and
WHEREAS, the parties wish to
set forth the terms and conditions upon which the Receivables are
to be serviced by the Servicer.
NOW, THEREFORE, in
consideration of the foregoing, the other good and valuable
consideration and the mutual terms and covenants contained herein,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Certain
Defined Terms . Capitalized terms used in the above recitals
and in this Agreement shall have the respective meanings assigned
them in Part I of Appendix A to the Pooling Agreement dated
as of the date hereof between the Issuer and NFRRC (as it may be
amended, supplemented or modified from time to time), unless
otherwise defined herein. The rules of construction set forth in
Part II of Appendix A to the Pooling Agreement shall be
applicable to this Agreement.
ARTICLE II
ADMINISTRATION AND
SERVICING OF RECEIVABLES
SECTION 2.01 Duties of the
Servicer . The Servicer is hereby appointed and authorized to
act as a contractor of the Owner and the Indenture Trustee with
respect to servicing the Receivables and in such capacity shall
manage, service, administer and make collections on the Receivables
with reasonable care, using that degree of skill and attention that
the Servicer exercises with respect to comparable medium and heavy
duty truck, truck chassis, bus and trailer receivables that it
services for itself or others. The Servicer hereby accepts such
appointment and authorization and agrees to perform the duties of
Servicer with respect to the Receivables set forth herein. The
Servicer’s duties with respect to all Receivables shall
include collection and posting of all payments, responding to
inquiries of Obligors on the Receivables, investigating
delinquencies, sending payment coupons to Obligors, reporting tax
information to Obligors, policing the collateral securing the
Receivables, accounting for collections with respect thereto and
performing the other duties specified herein. Subject to the
provisions of Section 2.02 , the Servicer shall follow
its customary standards, policies and procedures and shall have
full power and authority, acting alone, to do any and all things in
connection with such managing, servicing, administration and
collection that it may deem necessary or desirable.
Without limiting the
generality of the foregoing, the Servicer is hereby authorized and
empowered by the Owner and the Indenture Trustee pursuant to this
Section 2.01 , to execute and deliver any and all
instruments of satisfaction or cancellation, or of partial or full
release or discharge, and all other comparable instruments, with
respect to the Receivables and the related Financed Vehicles. The
Servicer is hereby authorized to commence in the name of the Owner
or, to the extent necessary, in its own name, a legal proceeding to
enforce a Liquidating Receivable as contemplated by
Section 2.04 , and to commence or participate in any
legal proceeding (including a bankruptcy proceeding) relating to or
involving a Receivable (including a Liquidating Receivable). If the
Servicer commences or participates in any such legal proceeding in
its own name, the Owner thereupon shall be deemed to have
automatically assigned such Receivable to the Servicer solely for
purposes of commencing and participating in any such proceeding as
a party or claimant, and the Servicer is hereby authorized and
empowered by the Owner, to execute and deliver in the
Servicer’s name any notices, demands, claims, complaints,
responses, affidavits or other documents or instruments in
connection with any such proceeding. If in any proceeding it is
held that the Servicer may not enforce a Receivable on the ground
that it is not a real party in interest or a holder entitled to
enforce the Receivable, the Owner shall, at the Servicer’s
expense and written directions, take such reasonable steps as the
Servicer reasonably deems necessary to enforce the Receivable,
including bringing suit in the name of such Person. The Owner, upon
the written request of the Servicer, shall furnish the Servicer
with any powers of attorney and other documents and take any other
steps which the Servicer may reasonably deem necessary or
appropriate to enable the Servicer to carry out its servicing and
administrative duties under this Agreement and the other Basic
Documents. Except to the extent required by the preceding three
sentences, the authority and rights granted to the Servicer in this
Section 2.01 shall be nonexclusive and shall not be
construed to be in derogation of any equivalent authority and
rights of the Owner.
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SECTION 2.02 Establishment
of Accounts .
(a) (i) The Servicer, for the
benefit of the Financial Parties (including the Swap Counterparty),
shall establish and maintain in the name of the Indenture Trustee
an Eligible Deposit Account known as the Navistar Financial 2007-C
Owner Trust Collection Account (the “ Collection
Account ”), bearing an additional designation clearly
indicating that the funds deposited therein are held for the
benefit of the Financial Parties.
(ii) The Servicer, for the
benefit of the Noteholders, shall establish and maintain in the
name of the Indenture Trustee an Eligible Deposit Account known as
the Navistar Financial 2007-C Owner Trust Note Distribution Account
(the “ Note Distribution Account ” ),
bearing an additional designation clearly indicating that the funds
deposited therein are held for the benefit of the
Noteholders.
(iii) Pursuant to the Trust
Agreement, the Servicer, for the benefit of the Certificateholders,
shall establish and maintain in the name of the Trust an Eligible
Deposit Account known as the Navistar Financial 2007-C Owner Trust
Certificate Distribution Account (the “ Certificate
Distribution Account ”), bearing an additional
designation clearly indicating that the funds deposited therein are
held for the benefit of the Certificateholders.
(iv) The Servicer, for the
benefit of the Financial Parties, shall establish and maintain in
the name of the Indenture Trustee an Eligible Deposit Account known
as the Navistar Financial 2007-C Owner Trust Reserve Account (the
“ Reserve Account ”), bearing an additional
designation clearly indicating that the funds deposited therein are
held for the benefit of the Financial Parties.
(b) (i) Each of the
Designated Accounts shall be initially established with the
Indenture Trustee and shall be maintained with the Indenture
Trustee so long as (A) the short-term unsecured debt
obligations of the Indenture Trustee have the Required Deposit
Rating or (B) each of the Designated Accounts qualifies as an
Eligible Deposit Account. All amounts held in such accounts
(including amounts, if any, which the Servicer is required to remit
daily to the Collection Account pursuant to
Section 2.11 ) shall, to the extent permitted by
applicable laws, rules and regulations, be invested, at the written
direction of the Servicer, by such bank or trust company in
Eligible Investments; provided, that funds in the Collection
Account in an amount not in excess of 20% of the Aggregate
Receivables Balance as of the preceding Accounting Date may be
invested in investments which have a rating from S&P of
“A-1” rather than “A-1+,” if such
investments otherwise constitute Eligible Investments. Such written
direction shall constitute certification by the Servicer that any
such investment is authorized by this Section 2.02 .
Funds deposited in the Reserve Account shall be invested in
Eligible Investments which mature prior to the next Distribution
Date; provided , that such investments may mature on
a later date if the Agent consents. Investments in Eligible
Investments shall be made in the name of the Indenture Trustee or
its nominee, and such investments shall not be sold or disposed of
prior to their maturity. Should the short-term unsecured debt
obligations of the Indenture Trustee (or any other bank or trust
company with which the Designated Accounts are maintained) no
longer have the Required Deposit Rating, then the Servicer shall
within 10
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Business Days (or such longer period,
not to exceed 30 calendar days, without consent of the Agent with
respect thereto), with the Indenture Trustee’s assistance as
necessary, cause the Designated Accounts (A) to be moved to a
bank or trust company, the short-term unsecured debt obligations of
which shall have the Required Deposit Rating, or (B) to be
moved to an Eligible Deposit Account. Investment Earnings on funds
deposited in the Designated Accounts shall be deposited into the
Collection Account for distribution in accordance with
Section 8.2 of the Indenture. The Indenture Trustee or the
other Person holding the Designated Accounts as provided in this
Section 2.02(b)(i) shall be the “ Securities
Intermediary .” If the Securities Intermediary shall be a
Person other than the Indenture Trustee, the Servicer shall obtain
the express agreement of such Person to the obligations of the
Securities Intermediary set forth in this Section 2.02
.
(ii) With respect to the
Designated Account Property, the Securities Intermediary agrees, by
its acceptance hereof, that:
(A) The Designated Accounts
are accounts to which Financial Assets will be credited.
(B) All securities or other
property underlying any Financial Assets credited to the Designated
Accounts shall be registered in the name of the Securities
Intermediary, indorsed to the Securities Intermediary or in blank
or credited to another securities account maintained in the name of
the Securities Intermediary and in no case will any Financial Asset
credited to any of the Designated Accounts be registered in the
name of the Issuer, the Servicer or the Seller, payable to the
order of the Issuer, the Servicer or the Seller or specially
endorsed to the Issuer, the Servicer or the Seller except to the
extent the foregoing have been specially indorsed to the Securities
Intermediary or in blank.
(C) All property delivered to
the Securities Intermediary pursuant to this Agreement will be
promptly credited to the appropriate Designated Account.
(D) Each item of property
(whether investment property, Financial Asset, security, instrument
or cash) credited to a Designated Account shall be treated as a
“financial asset” within the meaning of
Section 8-102(a)(9) of the New York UCC.
(E) If at any time the
Securities Intermediary shall receive any order from the Indenture
Trustee directing transfer or redemption of any Financial Asset
relating to the Designated Accounts, the Securities Intermediary
shall comply with such entitlement order without further consent by
the Issuer, the Servicer, the Seller or any other
Person.
(F) The Designated Accounts
shall be governed by the laws of the State of New York, regardless
of any provision in any other agreement. For purposes of the UCC,
New York shall be deemed to be the Securities Intermediary’s
jurisdiction and the Designated Accounts (as well as the Securities
Entitlements related thereto) shall be governed by the laws of the
State of New York.
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(G) The Securities
Intermediary has not entered into, and until the termination of
this Agreement will not enter into, any agreement with any other
person relating to the Designated Accounts and/or any Financial
Assets credited thereto pursuant to which it has agreed to comply
with entitlement orders (as defined in Section 8-102(a)(8) of
the New York UCC) of such other person and the Securities
Intermediary has not entered into, and until the termination of
this Agreement will not enter into, any agreement with the Issuer,
the Seller, the Servicer, the Indenture Trustee or the Swap
Counterparty purporting to limit or condition the obligation of the
Securities Intermediary to comply with entitlement orders as set
forth in Section 2.02(b)(ii)(E) .
(H) Except for the claims and
interest of the Indenture Trustee and of the Issuer in the
Designated Accounts, the Securities Intermediary knows of no claim
to, or interest in, the Designated Accounts or in any Financial
Asset credited thereto. If any other person asserts any lien,
encumbrance or adverse claim (including any writ, garnishment,
judgment, warrant of attachment, execution or similar process)
against the Designated Accounts or in any Financial Asset carried
therein, the Securities Intermediary will promptly notify the
Indenture Trustee, the Servicer, the Agent, the Swap Counterparty
and the Issuer thereof.
(I) The Securities
Intermediary will promptly send copies of all statements,
confirmations and other correspondence concerning the Designated
Accounts and/or any Designated Account Property simultaneously to
each of the Servicer, the Indenture Trustee and the Agent at the
addresses set forth in Appendix B to the Pooling
Agreement.
(iii) The Servicer shall have
the power, revocable by the Indenture Trustee (or by the Issuer
with the consent of the Indenture Trustee) to instruct the
Indenture Trustee to make withdrawals and payments from the
Designated Accounts for the purpose of permitting the Servicer or
the Issuer to carry out its respective duties hereunder or
permitting the Indenture Trustee to carry out its duties under the
Indenture.
(iv) The Indenture Trustee
shall possess all right, title and interest in and to all funds on
deposit from time to time in the Designated Accounts and in all
proceeds thereof. Except as otherwise provided herein or in the
Indenture, the Designated Accounts shall be under the sole dominion
and control of the Indenture Trustee for the benefit of the
Financial Parties (including the Swap Counterparty).
(v) The Servicer shall not
direct the Indenture Trustee to make any investment of any funds or
to sell any investment held in any of the Designated Accounts
unless the security interest granted and perfected in such account
shall continue to be perfected in such investment or the proceeds
of such sale, in either case without any further action by any
Person, and, in connection with any direction to the Indenture
Trustee to make any such investment or sale, if requested by the
Indenture Trustee, the Servicer shall deliver to the Indenture
Trustee an Opinion of Counsel, acceptable to the Indenture Trustee,
to such effect.
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(c) Pursuant to the Trust
Agreement, the Issuer shall possess all right, title and interest
in and to all funds on deposit from time to time in the Certificate
Distribution Account and in all proceeds thereof. Except as
otherwise provided herein or in the Trust Agreement, the
Certificate Distribution Account shall be under the sole dominion
and control of the Issuer for the benefit of the
Certificateholders. If, at any time, the Certificate Distribution
Account ceases to be an Eligible Deposit Account, the Servicer
shall within 10 Business Days (or such longer period, not to exceed
30 calendar days, as to which the Certificateholders may consent)
establish a new Certificate Distribution Account as an Eligible
Deposit Account and shall cause the Issuer to transfer any cash
and/or any investments in the old Certificate Distribution Account
to such new Certificate Distribution Account.
(d) The Indenture Trustee,
the Issuer, the Securities Intermediary and each other Eligible
Deposit Institution with whom a Designated Account or the
Certificate Distribution Account is maintained waives any right of
set-off, counterclaim, security interest or bankers’ lien to
which it might otherwise be entitled.
SECTION 2.03 Collection of
Receivables Payments . The Servicer shall make reasonable
efforts to collect all payments called for under the terms and
provisions of the Receivables as and when the same shall become
due, and shall follow such collection practices, policies and
procedures as it follows with respect to comparable medium and
heavy duty truck, truck chassis, bus and trailer receivables that
it services for itself or others. Except as provided in
Section 2.07(c) , the Servicer is hereby authorized to
grant extensions, rebates or adjustments on a Receivable without
the prior consent of the Owner of such Receivable and to rewrite,
in the ordinary course of its business, a Receivable to reflect the
Full Prepayment of a Receivable with respect to any related
Financed Vehicle without the prior consent of the Owner of such
Receivable. The Servicer is authorized in its discretion to waive
any prepayment charge, late payment charge or any other fees that
may be collected in the ordinary course of servicing such
Receivable. Subject to Section 2.13 of this Agreement,
the Servicer shall allocate payments on Receivables between
principal and interest in accordance with the customary servicing
procedures it follows with respect to all comparable medium and
heavy duty truck, truck chassis, bus and trailer receivables that
it services for itself or others.
SECTION 2.04 Realization
Upon Liquidating Receivables .
(a) The Servicer shall use
commercially reasonable efforts, consistent with its customary
servicing procedures, to repossess or otherwise comparably convert
the ownership or otherwise take possession of each Financed Vehicle
that it has reasonably determined should be repossessed or
otherwise converted following a default under the Receivable
secured by or relating to each such Financed Vehicle. The Servicer
is authorized to follow such practices, policies and procedures as
it shall deem necessary or advisable and as shall be customary and
usual in its servicing of medium and heavy duty truck, truck
chassis, bus and trailer receivables that it services for itself or
others, which practices, policies and procedures may include
reasonable efforts to realize upon or obtain benefits of any
proceeds from any Dealer Liability, proceeds from any International
Purchase Obligations, proceeds from any Insurance Policies
and
- 6 -
proceeds from any Guaranties, in each
case with respect to the Receivables, selling the related Financed
Vehicle or Vehicles at public or private sale or sales and other
actions by the Servicer in order to realize upon any Receivable.
The foregoing is subject to the provision that, in any case in
which the Financed Vehicle shall have suffered damage, the Servicer
shall not expend funds in connection with any repair or towards the
repossession of such Financed Vehicle unless it shall determine in
its discretion that such repair or repossession shall increase the
proceeds of liquidation of the related Receivable by an amount
greater than or equal to the amount of such expenses. The Servicer
shall be entitled to receive Liquidation Expenses with respect to
each Liquidating Receivable at such time as the Receivable becomes
a Liquidating Receivable in accordance with
Section 8.2(b)(i) of the Indenture.
(b) The Servicer shall pay
all costs, expenses and liabilities incurred by it in connection
with any action taken in respect of a Financed Vehicle;
provided , however , that it shall be entitled to
reimbursement of such costs and expenses to the extent they
constitute Liquidation Expenses or expenses recoverable under an
applicable Insurance Policy.
SECTION 2.05 Maintenance
of Insurance Policies . The Servicer shall, in accordance with
its customary servicing procedures, require that each Obligor under
a Receivable shall have obtained physical damage insurance covering
each Financed Vehicle as of the execution of such Receivable,
unless the Servicer has in accordance with its customary procedures
permitted an Obligor to self-insure the Financed Vehicle or
Financed Vehicles securing such Receivable. The Servicer shall, in
accordance with its customary servicing procedures, monitor such
physical damage insurance with respect to each Financed Vehicle
that secures or is related to each Receivable.
SECTION 2.06 Maintenance
of Security Interests in Vehicles . The Servicer shall, in
accordance with its customary servicing procedures and at its own
expense, take such steps as are necessary to maintain perfection of
the first priority security interest created by a Receivable in the
related Financed Vehicle or Financed Vehicles. The Owner of each
Receivable hereby authorizes the Servicer to re-perfect such
security interests as necessary because of the relocation of a
Financed Vehicle or for any other reason.
SECTION 2.07 Covenants of
the Servicer . The Servicer hereby makes the following
covenants on which the Issuer is relying in acquiring the
Receivables under the Pooling Agreement and issuing the Securities
under the Further Transfer and Servicing Agreements:
(a) except as contemplated by
the other Basic Documents, the Servicer shall not release any
Financed Vehicle from the security or ownership interest securing
the related Receivable;
(b) the Servicer shall do
nothing to impair the rights of NFRRC, the Issuer, the
Securityholders or the Indenture Trustee in and to such
Receivables;
(c) the Servicer shall not
amend or otherwise modify any Receivable such that the Starting
Receivable Balance, the Annual Percentage Rate or the total number
of Scheduled Payments is altered or such that the final scheduled
payment on such Receivable will be due any later than
February 28, 2015; and
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(d) other than solely for the
purpose of collecting or enforcing the Receivables for the benefit
of the Owner, (i) the Servicer shall not at any time have or
in any way attempt to assert any interest in any Receivables or
Related Assets or records related to the Collateral and
(ii) the entire legal and equitable interest of the Owner of a
Receivable in such Receivable and the Related Assets shall at all
times be vested in such Owner.
SECTION 2.08 Purchase of
Receivables Upon Breach of Covenant .
(a) Upon discovery by the
Servicer or any of the Interested Parties of a breach of any of the
covenants set forth in Sections 2.06 and 2.07 with
respect to any Receivable, the party discovering such breach shall
give prompt written notice thereof to the others. As of the second
Accounting Date (or, at the Servicer’s election, the first
Accounting Date) following notice to or discovery by the Servicer
of a breach of any covenant of the Servicer that materially and
adversely affects the value, validity, enforceability or
collectibility of any Receivable or the rights, remedies or
interests (including security interests) of the Financial Parties
in any Receivable, unless such breach is cured in all material
respects, the Servicer shall, with respect to such Receivable (an
“ Administrative Receivable ”) purchase such
Administrative Receivable from the Issuer at a price equal to the
Administrative Purchase Payment. The Servicer shall pay the
Administrative Purchase Payment as described in
Section 2.11 .
It is understood and agreed
that the obligation of the Servicer to purchase any Receivable with
respect to which such a breach has occurred and is continuing
shall, if such obligation is fulfilled, constitute the sole remedy
against the Servicer for such breach available to any Interested
Party for any such uncured breach.
(b) Upon receipt of the
Administrative Purchase Payment with respect to a Receivable which
is an Administrative Receivable, the applicable Owner shall assign,
without recourse, representation or warranty, to the Servicer (and
shall take such other actions as the Servicer may reasonably
request in writing to perfect or confirm such assignment) all of
such Person’s right, title and interest in, to and under
(i) such Administrative Receivable and all monies due thereon
and (ii) all Related Security with respect to such
Administrative Receivable, such assignment being an assignment
outright and not for security. Upon the assignment of such
Administrative Receivable described in the preceding sentence, the
Servicer shall own such Administrative Receivable, and all such
Related Security, free of any further obligations to such Person
with respect thereto.
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SECTION 2.09 Servicing
Fee . In consideration for its services hereunder and as
compensation for expenses paid as contemplated by
Section 2.10 , the Servicer shall be entitled to
receive on each Distribution Date a servicing fee (the “
Basic Servicing Fee ”) for the related Monthly Period
equal to one-twelfth of 1% (the “ Basic Servicing Fee
Rate ”) multiplied by the Aggregate Receivables Balance
as of the last day of the preceding Monthly Period. On each
Distribution Date, the Servicer will be paid the Basic Servicing
Fee and any unpaid Basic Servicing Fees from all prior Distribution
Dates (collectively, the “ Total Servicing Fee
”) pursuant to Section 8.2(c) of the Indenture to
the extent of funds available therefor. In addition, the Servicer
will be entitled to receive any late fees, prepayment charges or
certain similar fees and charges collected during a Monthly Period
(the “ Supplemental Servicing Fee ”). The
Servicer shall retain all Supplemental Servicing Fees and shall not
be obligated to deposit them into the Collection
Account.
SECTION 2.10 Servicer
Expenses . The Servicer shall be required to pay all expenses
incurred by it in connection with its activities hereunder,
including fees and disbursements of the Issuer, any trustees and
independent accountants, taxes imposed on the Servicer and expenses
incurred in connection with distributions and reports and all other
fees and expenses not expressly stated under this Agreement to be
for the account of the Interested Parties, but excluding federal,
state and local income taxes, if any, of the Issuer or any
Securityholder.
SECTION 2.11 Deposits to
Collection Account . The Servicer shall remit to the Indenture
Trustee for deposit to the Collection Account all Collections it
receives during each Monthly Period within two Business Days after
receipt and identification thereof, but in any event within fifteen
(15) Business Days after receipt thereof. However, Collections
received (i) during the period from the Initial Cutoff Date to
the Closing Date and (ii) during the period from the
Subsequent Cutoff Date to the Subsequent Transfer Date, shall be
deposited to the Collection Account within 48 hours after the
Closing Date or the Subsequent Transfer Date, as applicable. The
Servicer shall remit to the Indenture Trustee for deposit (in
immediately available funds) in the Collection Account the
aggregate Administrative Purchase Payments with respect to
Administrative Receivables to be purchased as of the last day of
any Monthly Period on the Business Day immediately preceding the
immediately succeeding Distribution Date.
SECTION 2.12
Collections . In the event that:
(a) NFC is the
Servicer,
(b) a Servicer Default shall
not have occurred and be continuing, and
(c) (i) the short-term
unsecured debt of the Servicer is rated at least A-1 by S&P and
P-1 by Moody’s, or
(ii) a standby letter of
credit has been issued by an Eligible Institution which, as of each
date during the period that the Servicer is making monthly
remittances of Collections, has an undrawn amount at least equal to
150% of all Scheduled Payments due in respect of the Receivables
for the latest Monthly Period ended prior to the next
succeeding
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Distribution Date (and the aggregate
amount of unremitted Collections does not at any time exceed 90% of
the undrawn amount of such letter of credit), (each, a “
Monthly Remittance Condition ”)
then, the Servicer shall not be required
to deposit Collections into the Collection Account until the
Business Day preceding the Distribution Date following the Monthly
Period during which such Collections were received. Pending deposit
into the Collection Account, Collections may be employed by the
Servicer at its own risk and for its own benefit and will not be
segregated from its own funds.
SECTION 2.13 Application
of Collections . For the purposes of this Agreement, all
Collections for the related Monthly Period with respect to each
Receivable shall be applied by the Servicer as follows:
(a) All payments by or on
behalf of the Obligor or other collections on a Receivable
(including Warranty Payments and Administrative Purchase Payments
but excluding Supplemental Servicing Fees) shall be applied
(i) first to reduce Outstanding Monthly Advances, if
any, with respect to such Receivable, (ii) second , to
the Scheduled Payment on such Receivable for such Monthly Period,
and (iii) third , the remainder shall constitute, with
respect to such Receivable, a Full Prepayment or Partial
Prepayment; and
(b) a Partial Prepayment made
on a Receivable is applied to reduce the final Scheduled Payment
and will thereafter, to the extent the Partial Prepayment exceeds
the final Scheduled Payment, reduce Scheduled Payments in reverse
chronological order beginning with the penultimate Scheduled
Payment. The Rebate related to such Partial Prepayment will reduce
the final Scheduled Payment and will thereafter, to the extent the
Rebate exceeds the final Scheduled Payment, reduce Scheduled
Payments in reverse chronological order beginning with the
penultimate Scheduled Payment.
SECTION 2.14 Monthly
Advances . Subject to the following sentence, as of each
Accounting Date, if the payments received by the Servicer during
the related Monthly Period by or on behalf of the Obligor on a
Receivable (other than an Administrative Receivable, a Warranty
Receivable or a Liquidating Receivable) after application of such
payments under Section 2.13(a) shall be less than the
Scheduled Payment on such Receivable for such Monthly Period,
whether as a result of any extension granted to the Obligor or
otherwise, then the Servicer shall advance any such shortfall (such
amount, a “ Monthly Advance ”). The Servicer
shall be obligated to make a Monthly Advance in respect of a
Receivable only to the extent that the Servicer, in its sole
discretion, shall determine that such advance shall be recoverable
(in accordance with the two immediately following sentences) from
subsequent collections or recoveries on such Receivable. Subject to
Section 8.2 of the Indenture, the Servicer shall be
reimbursed for unreimbursed Outstanding Monthly Advances with
respect to a Receivable from the following sources with respect to
such Receivable, in each case as set forth in this Agreement;
(i) subsequent payments by or on behalf of the Obligor,
(ii) Liquidation Proceeds, (iii) the Administrative
Purchase Payment, together with the amount of any Monthly Advance
released pursuant to the definition thereof, and (iv) the
Warranty Payment. At such time as the Servicer shall determine that
Outstanding Monthly Advances with respect to any Receivable shall
not be recoverable from payments with respect to such Receivable,
the Servicer shall be reimbursed from any Collections made on other
Receivables.
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SECTION 2.15 Additional
Deposits . The Servicer shall deposit in the Collection Account
the aggregate Monthly Advances pursuant to Section 2.14
. The Servicer and the Warranty Purchaser shall deposit in the
Collection Account the aggregate Administrative Purchase Payments
and Warranty Payments with respect to Administrative Receivables
and Warranty Receivables, respectively. All such deposits with
respect to a Monthly Period shall be made in immediately available
funds on the Transfer Date with respect to the Distribution Date
related to such Monthly Period.
SECTION 2.16 Net
Deposits . At any time that (i) NFC shall be the Servicer
and (ii) the Servicer shall be permitted by
Section 2.12 of this Agreement to remit collections on
a basis other than a daily basis, the Indenture Trustee at the
written request of the Servicer may make any remittances pursuant
to this Article II of this Agreement or Article VIII
of the Indenture net of amounts to be distributed by the Indenture
Trustee to such remitting party. Nonetheless, each such party shall
account for all of the above described remittances and
distributions as if the amounts were deposited and/or transferred
separately.
SECTION 2.17
Servicer’s Certificate
(a) Not later than 10:00 a.m.
(Chicago, Illinois time) on each Determination Date, the Servicer
shall deliver to each Trustee, the Swap Counterparty and the Agent
a Servicer’s Certificate with respect to the immediately
preceding Monthly Period in form as attached hereto as Appendix B
executed by the President or any Vice President of the Servicer
containing all information necessary to each such party for making
the calculations, withdrawals, deposits, transfers and
distributions required by Sections 8.2 and 8.10 of
the Indenture, and all information required to be provided to the
Interested Parties under Section 8.8 of the Indenture.
Receivables to be purchased by the Servicer under
Section 2.08 hereof, by NFC pursuant to
Section 5.04 of the Purchase Agreement or by NFRRC
under Section 2.06 of the Pooling Agreement as of the
last day of any Monthly Period shall be identified by Receivable
number with respect to Retail Notes (in each case, as set forth in
the Composite Schedule of Retail Notes). With respect to any
Receivables for which the Seller is the Owner, the Servicer shall
deliver to the Seller such accountings relating to such Receivables
and the actions of the Servicer with respect thereto as the Seller
may reasonably request.
(b) On or before each
Determination Date, with respect to the preceding Monthly Period
and the related Distribution Date, the Servicer shall calculate the
Collected Amount, the Total Available Amount, the Total Servicing
Fee, the Noteholders’ Interest Distributable Amount (based on
information provided by the Agent), the Reserve Account Deposit
Amount, the net amount, if any, payable by or to the Trust under
the Interest Rate Swap (including the amount of any termination
payments and the amount of any payments that are not termination
payments), the Principal Distribution Amount and all other amounts
required to determine the amounts to be deposited in or paid from
each of the Collection Account, the Note Distribution Account, the
Certificate Distribution Account and the Reserve Account on the
next succeeding Distribution Date (or, in the case of payments due
under the Interest Rate Swap, if any, on the Business Day preceding
the Distribution Date) and supply such information to the Issuer
and the Indenture Trustee.
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(c) On the Closing Date (with
respect to the remainder of calendar year 2007) and thereafter,
within 15 days prior to the end of each calendar year while this
Agreement remains in effect (with respect to the next succeeding
calendar year), the Servicer shall deliver to either the Indenture
Trustee or the Owner Trustee, following receipt of a written
request, an Officers’ Certificate specifying the days on
which banking institutions in Chicago, Illinois are authorized or
obligated by law or executive order to be closed.
ARTICLE III
STATEMENTS AND
REPORTS
SECTION 3.01 Annual
Statement as to Compliance; Notice of Servicer Default; Tax
Reports .
(a) The Servicer shall
deliver to the Issuer, the Indenture Trustee, the Agent and the
Swap Counterparty, on or before February 1 of each following
year, beginning February 1, 2009 an officer’s
certificate signed by the Chairman of the Board, Vice Chairman of
the Board, the President or any Vice President of the Servicer,
dated as of the immediately preceding October 31, stating that
(i) a review of the activities of the Servicer during the
Servicer’s immediately preceding fiscal year (or, with
respect to the first such certificate, such period as shall have
elapsed from the Closing Date to the last day of the
Servicer’s immediately preceding fiscal year) and of its
performance under this Agreement has been made under such
officer’s supervision, and (ii) to such officer’s
knowledge, based on such review, the Servicer has fulfilled all its
obligations under this Agreement throughout such period, or, if
there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature
and status thereof. A copy of such certificate may be obtained by
any Noteholder or Certificateholder by a request in writing to the
Indenture Trustee or Issuer, respectively, addressed to the
Corporate Trust Office of the Indenture Trustee or the Owner
Trustee, respectively.
(b) The Servicer shall
deliver to the Issuer, each Trustee, and the Agent, promptly after
having obtained knowledge thereof, but in no event later than five
Business Days thereafter, written notice in an Officer’s
Certificate of any Servicer Default under Section 7.01
or event which with the giving of notice or lapse of time, or both,
would become a Servicer Default under Section 7.01
.
(c) The Servicer shall
prepare and deliver to the Issuer and the Indenture Trustee the
annual report described in Section 8.8(b) of the
Indenture.
SECTION 3.02 Annual
Accountants’ Report .
(a) The Servicer shall cause
a firm of independent accountants, who may also render other
services to the Servicer or NFRRC, to deliver to the Issuer, the
Swap Counterparty, each Trustee and the Agent, on or before
November 30, 2008 (or, if earlier, the date determined
pursuant to the first parenthetical phrase in
Section 3.02(a) ), and February 1 of each
following
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year, beginning with February 1,
2009, with respect to the Servicer’s immediately preceding
fiscal year, (or, with respect to the first such report, such
period as shall have elapsed from the Closing Date to the last day
of the Servicer’s immediately preceding fiscal year), a copy
of the report (the “ Accountants’ Report
”) addressed to the board of directors of the Servicer, the
Issuer, and to each Trustee to the effect that such firm has
audited the financial statements of the Servicer and issued its
report thereon and that such audit (i) was made in accordance
with generally accepted auditing standards and (ii) included
tests relating to Receivables serviced for others in accordance
with the requirements of the Minimum Servicing Standards set forth
in Appendix A hereto.
(b) The Accountants’
Report shall also indicate that the firm is independent of NFRRC
and the Servicer within the meaning of the Code of Professional
Ethics of the American Institute of Certified Public
Accountants.
(c) A copy of the
Accountant’s Report may be obtained by any Noteholder or
Certificateholder by a request in writing to the Indenture Trustee
or the Issuer, addressed to the Corporate Trust Office of the
Indenture Trustee or the Owner Trustee, respectively.
SECTION 3.03 Access to
Certain Documentation and Information Regarding Receivables .
The Servicer shall provide to the Issuer, each Trustee, the Agent
and Securityholders reasonable access to the Servicer’s
records regarding the Receivables owned by the Issuer. In each
case, such access shall be afforded without charge but only upon
reasonable request and during normal business hours at offices of
the Servicer designated by the Servicer. Nothing in this
Section 3.03 shall derogate from the obligation of the
Servicer to observe any applicable law prohibiting disclosure of
information regarding Obligors, and the failure of the Servicer to
provide access as provided in this Section 3.03 as a
result of such obligation shall not constitute a breach of this
Section 3.03 ; provided , that, the Servicer
shall disclose such information if the Agent satisfies (or causes
to be satisfied) any necessary action pursuant to such applicable
law that allows the Servicer to disclose such information in
compliance with such applicable law.
SECTION 3.04 Maintenance
of Composite Schedule of Retail Notes . The Servicer shall
maintain at all times a composite schedule of Retail Notes (the
“ Composite Schedule of Retail Notes ”) which
shall list separately all Retail Notes which are owned by the
Issuer. The Composite Schedule of Retail Notes shall be updated to
reflect all purchases by the Issuer of Receivables during the
Funding Period and all sales of Receivables as a result of a
Receivable becoming a Warranty Receivable or an Administrative
Receivable. The Servicer shall deliver to the Owner Trustee, the
Indenture Trustee and the Agent an updated Composite Schedule of
Retail Notes on or before each Distribution Date.
SECTION 3.05 Amendments to
Composite Schedule of Retail Notes . If the Servicer, during a
Monthly Period, assigns to a Receivable an account number that
differs from the account number previously identifying such
Receivable on the Composite Schedule of Retail Notes, the Servicer
shall amend the Composite Schedule of Retail Notes to report the
newly assigned account number. Each Composite Schedule of Retail
Notes delivered on a Distribution Date pursuant to
Section 3.04 shall list all new account numbers
assigned to Receivables during such Monthly Period and shall show
by cross reference the prior account numbers identifying such
Receivables on the previously distributed Composite Schedule of
Retail Notes.
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SECTION 3.06 Maintenance
of Systems and Receivables List .
(a) The Servicer shall
maintain accounts and records as to each Receivable accurately and
in sufficient detail to permit (i) the reader thereof to know
the status of such Receivable, including payments and recoveries
made and payments owing (and the nature of each) and extensions of
any scheduled payments made not less than 45 days prior thereto,
and (ii) reconciliation between payments or recoveries on (or
with respect to) each Receivable and the amounts from time to time
deposited in the Collection Account with respect to such
Receivable.
(b) The Servicer shall
maintain its computer systems so that the Servicer’s master
computer records (including any backup archives) that refer to any
Receivable shall indicate clearly that the Receivable is owned by
the Issuer and that such Receivable has been pledged by the Issuer
to the Indenture Trustee. Indication of the Issuer’s and the
Indenture Trustee’s interest in a Receivable shall be deleted
from or modified on the Servicer’s computer systems when, and
only when, the Receivable shall have been paid in full, repurchased
by NFC, purchased by the Servicer or become a Liquidating
Receivable as to which the Servicer has discontinued pursuing
remedies with respect to collection in accordance with its
customary servicing procedures and such Receivable is deleted from
the Servicer’s computer systems.
(c) If at any time the
Servicer shall propose to sell, grant a security interest in, or
otherwise transfer any interest in truck, truck chassis, bus or
trailer receivables to any prospective purchaser, lender or other
transferee, the Servicer shall give to such prospective purchaser,
lender or other transferee, computer tapes, records or printouts
(including any of those restored from backup archives) that, if
they refer in any manner whatsoever to any Receivable, indicate
clearly that such Receivable has been sold and is owned by the
Issuer and has been pledged to the Indenture Trustee unless such
Receivable has been paid in full, repurchased by Navistar Financial
or purchased by the Servicer.
(d) The Servicer will furnish
to the Issuer, the Indenture Trustee and the Agent at any time upon
request a list of all Receivables then held as part of the Owner
Trust Estate, together with a reconciliation of such list to the
Composite Schedule of Retail Notes and to each of the
Servicer’s Certificates furnished before such request
indicating removal of Receivables from the Owner Trust Estate. Upon
request, the Servicer shall furnish a copy of any such list to the
Seller.
(e) The Servicer shall
prepare and file such financing statements and cause to be prepared
and filed such continuation and other statements, all in such
manner and in such places as may be required by law fully to
preserve, maintain and protect the interest of the Issuer under the
Pooling Agreement in the Receivables, the Related Security and
other property conveyed thereunder (to the extent such property
constitutes Code Collateral) and the Indenture Trustee’s
security interest in the Receivables, the Related Security and
other Collateral (to the extent such Collateral is Code
Collateral). The Servicer shall deliver (or cause to be delivered)
to the Indenture Trustee and the Agent file-stamped copies of, or
filing receipts for, any document filed as provided above, as soon
as available following such filing.
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ARTICLE IV
THE
CUSTODIAN
SECTION 4.01 Custody of
Receivable Files . To assure uniform quality in servicing the
Receivables and to reduce administrative costs, the Owner of each
Receivable and the Indenture Trustee hereby appoint the Servicer,
and the Servicer hereby accepts such appointment, to act as
contractor of the Owner of each Receivable and the Indenture
Trustee (for the benefit of the Financial Parties) as custodian to
maintain custody of the following documents or instruments with
respect to such Receivable (as to each Receivable, the “
Receivable File ”), which will be hereby
constructively delivered to the Owner of the related Receivable and
the Indenture Trustee:
(a) the fully executed
original of the Retail Note;
(b) documents evidencing or
related to any related Insurance Policy;
(c) a copy of the credit
application of each Obligor, fully executed by each such Obligor on
NFC’s customary form, or on a form approved by NFC, for such
application;
(d) where permitted by law,
the original Certificate of Title (when received) and otherwise
such documents, if any, that NFC keeps on file in accordance with
its customary procedures indicating that the Financed Vehicle is
owned by the Obligor and subject to the interest of NFC as first
lienholder or secured party; and
(e) any and all other
documents that NFC keeps on file in accordance with its customary
procedures relating to the individual Receivable, Obligor or
Financed Vehicle.
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SECTION 4.02 Duties of
Servicer as Custodian .
(a) The Servicer shall hold
each Receivable File for the benefit of the Owner of the related
Receivable and the Indenture Trustee (for the benefit of the
Financial Parties) and maintain such accurate and complete
accounts, records and computer systems pertaining to each
Receivable File as shall enable NFRRC, the Issuer 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 Servicer to the extent the Servicer
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. In performing its duties
as custodian, the Servicer shall act with reasonable care, using
that degree of skill and attention that the Servicer exercises with
respect to the receivable files relating to comparable truck, truck
chassis, bus and trailer receivables that the Servicer services and
holds for itself or others. The Servicer 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 manner as shall enable the
Owner Trustee and the Indenture Trustee to verify the accuracy of
the Servicer’s inventory and record keeping. The Servicer
shall promptly report to each Owner and the Indenture Trustee any
failure on its part to hold the Receivable Files and maintain its
accounts, records and computer systems as herein provided and
promptly take appropriate action to remedy any such
failure.
(b) The Servicer shall
maintain each Receivable File at its principal office at 425 N.
Martingale Road, Suite 1800, Schaumburg, Illinois, 60173, or at
such other office of the Servicer as shall from time to time be
identified to the Owners and the Indenture Trustee upon 60
days’ prior written notice. Subject only to the
Custodian’s security requirements applicable to its own
employees having access to similar records held by the Servicer and
the limitations set forth in Section 3.03 hereof and
otherwise in the Basic Documents, the Servicer shall permit the
Owners, the Indenture Trustee or their duly authorized
representatives, attorneys or auditors to inspect the Receivable
Files and the related accounts, records and computer systems
maintained by the Servicer pursuant hereto at such times as such
party may reasonably request.
(c) In general, the Servicer
shall attend to all nondiscretionary details in connection with
maintaining custody of the Receivable Files. In addition, the
Servicer shall assist the Owner Trustee generally in the
preparation of routine reports to Securityholders, if any, or to
regulatory bodies to the extent necessitated by the
Servicer’s custody of the Receivable Files.
SECTION 4.03
Custodian’s Indemnification . The Servicer as
custodian shall indemnify the Issuer, the Indenture Trustee, the
Owner Trustee and the Financial Parties and each of their officers,
directors and agents for any and all liabilities, obligations,
losses, compensatory damages, payments, costs or expenses of any
kind whatsoever that may be imposed on, incurred by or asserted
against the Issuer, the Indenture Trustee, the Owner Trustee, any
Financial Party or any of their officers, directors and agents as
the result of any improper act or omission in any way relating to
the maintenance and custody by the Servicer as custodian of the
Receivable Files; provided, however, that the Servicer shall not be
liable to the Issuer, the Indenture Trustee, the Owner Trustee or
the Financial Parties or any of their officers, directors or agents
for any portion of any such amount resulting from the willful
misfeasance, bad faith or negligence of such Person.
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SECTION 4.04 Effective
Period and Termination . The Servicer’s appointment as
Custodian with respect to a Receivable File hereunder shall become
effective as of the related Purchase Date and shall continue in
full force and effect until terminated pursuant to this
Section 4.04 . If the Servicer shall resign as Servicer
in accordance with the provisions of this Agreement or if all of
the rights and obligations of the Servicer shall have been
terminated under Article VII , the appointment of such
Servicer as custodian shall b
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