Exhibit 10.6
EXECUTION COPY
SERVICING
AGREEMENT
AMONG
NAVISTAR FINANCIAL RETAIL
RECEIVABLES CORPORATION,
THE BANK OF NEW YORK
MELLON
AS INDENTURE
TRUSTEE,
NAVISTAR FINANCIAL 2008-B OWNER
TRUST,
AS ISSUER
AND
NAVISTAR FINANCIAL
CORPORATION,
AS SERVICER
DATED AS OF JULY 28,
2008
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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1
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SECTION 2.01
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Duties of the Servicer
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1
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SECTION 2.02
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Establishment of
Accounts
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2
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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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7
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SECTION 2.09
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Servicing Fee
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8
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SECTION 2.10
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Servicer Expenses
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8
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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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9
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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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10
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SECTION 2.16
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Net Deposits
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10
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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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11
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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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11
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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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13
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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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15
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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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16
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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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19
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SECTION 6.05
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Servicer
Indemnification
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19
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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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23
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SECTION 7.04
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Notification to
Securityholders
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24
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SECTION 7.05
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Repayment of Advances
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24
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SECTION 7.06
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Waiver of Past
Defaults
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24
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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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25
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SECTION 8.09
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Headings and
Cross-References
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25
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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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26
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EXHIBIT A:
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Minimum
Servicing Standards
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EXHIBIT
B:
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Form of
Servicer’s Certificate
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SERVICING
AGREEMENT
SERVICING AGREEMENT, dated as of
July 28, 2008 (as it may be further amended, supplemented or
modified, this “ Agreement ”), among Navistar
Financial Retail Receivables Corporation, a Delaware corporation
(“ NFRRC ”), Navistar Financial 2008-B 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 Mellon,
a New York banking corporation, acting in its capacity as Indenture
Trustee pursuant to the Indenture (the “ Indenture
Trustee ”).
R E C I T A
L S :
WHEREAS, NFRRC and NFC are parties
to the Purchase Agreement, pursuant to which NFRRC will purchase
from time to time the Designated 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 time to time by 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.
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 2008-B
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.
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(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 2008-B 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 2008-B 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 (including the Swap Counterparty), shall
establish and maintain in the name of the Indenture Trustee an
Eligible Deposit Account known as the Navistar Financial 2008-B
Owner Trust Reserve Account (the “ Reserve Account
”), bearing an additional designation clearly indicating that
the funds deposited therein are held for the benefit of such
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 or upon satisfaction of the Rating
Agency Condition. 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 Business
Days (or such longer period, not to exceed 30 calendar days, with
consent of the Agent or upon satisfaction of the Rating Agency
Condition 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,
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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.
(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
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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.
(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 in the case of
the Collection Account and the Reserve Account).
(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.
(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 or each Rating
Agency
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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
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.
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(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, promptly 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 from time
to time 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
September 30, 2015; and
(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
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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 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.
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.
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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 thereof; provided , however , that if the
Servicer receives Collections from an unidentified source, then the
Servicer shall remit such Collections within two Business Days
after identification 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 Servicer satisfies the
requirements for monthly remittances of Collections established by
each Rating Agency, and upon satisfaction of such requirements,
each Rating Agency reaffirms the rating of the Notes at the level
at which they would be rated if Collections were remitted within
two Business Days of receipt,
(ii) the short-term unsecured debt
of the Servicer is rated at least “A-1” by S&P and
“P-1” by Moody’s, or
(iii) 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 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),
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
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(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.
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 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.
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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 Rating Agencies (in the case of
S&P, via electronic mail transmitted to
servicing_reports@sandp.com), the Swap Counterparty and the Agent a
Servicer’s Certificate with respect to the immediately
preceding Monthly Period, in substantially the form attached hereto
as Exhibit 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 of this Agreement, 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.
(c) On the Closing Date (with
respect to the remainder of calendar year 2008) 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
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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 suc