Exhibit 99.3
EXECUTION COPY
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SERVICING AGREEMENT
AMONG
NAVISTAR LEASING COMPANY,
HARCO LEASING COMPANY, INC.,
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION
THE BANK OF NEW YORK
AS COLLATERAL AGENT,
THE BANK OF NEW YORK
AS INDENTURE TRUSTEE,
BANK ONE, NATIONAL ASSOCIATION,
AS PORTFOLIO TRUSTEE
NAVISTAR FINANCIAL 2002-B OWNER TRUST,
AS ISSUER
AND
NAVISTAR FINANCIAL CORPORATION,
AS SERVICER
DATED AS OF NOVEMBER 19, 2002
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS; SERVICING SUPPLEMENT.........................................................2
SECTION 1.01 Certain Defined Terms.............................................................2
SECTION 1.02 Supplement to Titling Trust Servicing Agreement...................................2
ARTICLE II ADMINISTRATION AND SERVICING OF RECEIVABLES..............................................3
SECTION 2.01 Duties of the Servicer............................................................3
SECTION 2.02 Establishment of Accounts.........................................................4
SECTION 2.03 Collection of Receivables Payments................................................7
SECTION 2.04 Realization Upon Liquidating Receivables..........................................8
SECTION 2.05 Maintenance of Insurance Policies.................................................9
SECTION 2.06 Maintenance of Security Interests in Vehicles.....................................9
SECTION 2.07 Covenants of the Servicer.........................................................9
SECTION 2.08 Purchase of Receivables Upon Breach of Covenant..................................10
SECTION 2.09 Servicing Fee....................................................................10
SECTION 2.10 Servicer Expenses................................................................11
SECTION 2.11 Deposits to Collection Account...................................................11
SECTION 2.12 Collections......................................................................11
SECTION 2.13 Application of Collections.......................................................12
SECTION 2.14 Monthly Advances.................................................................12
SECTION 2.15 Additional Deposits..............................................................13
SECTION 2.16 Net Deposits.....................................................................13
SECTION 2.17 Servicer's Certificate...........................................................13
ARTICLE III STATEMENTS AND REPORTS.................................................................14
SECTION 3.01 Annual Statement as to Compliance; Notice of Servicer Default; Tax Reports.......14
SECTION 3.02 Annual Accountants' Report.......................................................15
SECTION 3.03 Access to Certain Documentation and Information Regarding Receivables............15
SECTION 3.04 Maintenance of Composite Schedule of Receivables.................................15
SECTION 3.05 Amendments to Composite Schedule of Receivables..................................16
SECTION 3.06 Maintenance of Systems and Receivables List......................................16
ARTICLE IV THE CUSTODIAN...........................................................................17
SECTION 4.01 Custody of Receivable Files......................................................17
SECTION 4.02 Duties of Servicer as Custodian..................................................17
SECTION 4.03 Custodian's Indemnification......................................................18
SECTION 4.04 Effective Period and Termination.................................................18
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE SERVICER...........................................19
SECTION 5.01 Representations and Warranties of the Servicer...................................19
ARTICLE VI THE SERVICER............................................................................20
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SECTION 6.01 Merger or Consolidation of, or Assumption of the Obligations of, the Servicer....20
SECTION 6.02 Limitation on Liability of Servicer and Others...................................20
SECTION 6.03 Delegation of Duties.............................................................21
SECTION 6.04 Servicer Not to Resign...........................................................21
SECTION 6.05 Servicer Indemnification of the Indenture Trustee and the Owner Trustee..........21
ARTICLE VII DEFAULT................................................................................23
SECTION 7.01 Servicer Defaults................................................................23
SECTION 7.02 Consequences of a Servicer Default...............................................23
SECTION 7.03 Indenture Trustee to Act; Appointment of Successor...............................24
SECTION 7.04 Notification to Securityholders..................................................25
SECTION 7.05 Repayment of Advances............................................................25
SECTION 7.06 Waiver of Past Defaults..........................................................25
ARTICLE VIII MISCELLANEOUS.........................................................................25
SECTION 8.01 Amendment........................................................................25
SECTION 8.02 Termination......................................................................25
SECTION 8.03 Notices..........................................................................25
SECTION 8.04 Governing Law....................................................................26
SECTION 8.05 Severability.....................................................................26
SECTION 8.06 Assignment.......................................................................26
SECTION 8.07 Successors and Assigns...........................................................26
SECTION 8.08 Counterparts.....................................................................26
SECTION 8.09 Headings and Cross-References....................................................26
SECTION 8.10 No Petition Covenants............................................................26
SECTION 8.11 Limitation of Liability of the Trustees..........................................27
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SERVICING AGREEMENT
SERVICING AGREEMENT, dated as of November 19, 2002 (as it may be
further amended, supplemented or modified, this "Agreement"), among Navistar
Financial Retail Receivables Corporation, a Delaware corporation ("NFRRC"),
Navistar Financial 2002-B Owner Trust, a Delaware statutory trust (the
"Issuer"), Navistar Leasing Company, a Delaware statutory trust (the "Titling
Trust"), Navistar Financial Corporation, a Delaware corporation (hereinafter,
together with its successors and assigns, "NFC" or, in its capacity as servicer
hereunder, the "Servicer"), The Bank of New York, a New York banking corporation
(the "Collateral Agent"), The Bank of New York, a New York banking corporation,
acting in its capacity as Indenture Trustee pursuant to the Indenture (the
"Indenture Trustee"), Bank One, National Association, a national banking
association, as Portfolio Trustee (the "Series 2002-B Portfolio Interest
Trustee") and Harco Leasing Company, Inc., a wholly owned subsidiary of NFC and
a Delaware corporation (hereinafter, together with its successors and assigns,
"Harco Leasing").
R E C I T A L S:
WHEREAS, NFC has been performing servicing obligations relating to the
Titling Trust Assets pursuant to the Titling Trust Servicing Agreement;
WHEREAS, pursuant to the Titling Trust Agreement a portion of the
General Trust Assets have been allocated to the Series 2002-B Portfolio
Interest;
WHEREAS, NFRRC and NFC are parties to the Purchase Agreement, pursuant
to which NFRRC will purchase the Series 2002-B Portfolio Interest and the Retail
Leases and other Titling Trust Assets allocated thereto and certain Retail Notes
and the Related Retail Note Assets with respect thereto from NFC;
WHEREAS, the Issuer will issue Notes pursuant to the Indenture between
the Issuer and The Bank of New York, a New York banking corporation, as
indenture trustee (the "Indenture Trustee"), and exchange the Notes and the
Certificates for the Series 2002-B Portfolio Interest (and the Retail Leases
allocated thereto) and certain Retail Notes and the Related Retail Note Assets
with respect thereto from NFRRC pursuant to the Pooling Agreement;
WHEREAS, the Servicer is willing to continue its servicing functions
as it relates to the Titling Trust Assets comprising the Series 2002-B Portfolio
Interest pursuant to the Titling Trust Servicing Agreement and this Agreement
for and in consideration of the fees and other benefits set forth in this
Agreement;
WHEREAS, the Servicer desires to perform the servicing obligations set
forth herein relating to the Retail Notes 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 (including the Retail Leases and Related Titling Trust
Assets allocated to the Series 2002-B Portfolio Interest) 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; SERVICING SUPPLEMENT
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 Appendix A to the Pooling Agreement dated as of the date hereof between the
Issuer and NFRRC, 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.
SECTION 1.02 Supplement to Titling Trust Servicing Agreement.
(a) Pursuant to Section 5.13 of the Titling Trust Agreement, each of
the Titling Trust, Harco Leasing, NFC, NFRRC and the Issuer hereby appoints NFC
as the Servicer with respect to the Series 2002-B Portfolio Interest and the
Series 2002-B Portfolio Assets, to serve in accordance with, and subject to, the
terms of the Titling Trust Servicing Agreement, this Agreement and the other
Basic Documents.
(b) The Servicer shall account to the Series 2002-B Portfolio Trustee,
the Issuer and the Indenture Trustee with respect to the Series 2002-B Portfolio
Interest separately from any other Portfolio Interests.
(c) This Agreement shall constitute a "Portfolio Servicing Agreement
Supplement" under the Titling Trust Servicing Agreement with respect to the
Series 2002-B Portfolio Interest and the Series 2002-B Portfolio Assets. Except
as otherwise specifically provided herein or in the other Basic Documents, the
parties to the Titling Trust Servicing Agreement shall continue to be bound by
all provisions of the Titling Trust Servicing Agreement with respect to the
Series 2002-B Portfolio Interest and the Series 2002-B Portfolio Assets,
including the provisions of Article III thereof relating to the administration
and servicing of the Retail Leases. To the extent that the provisions of the
Titling Trust Servicing Agreement (as expressly amended, supplemented or waived
by this Agreement) are not directly inconsistent with the provisions set forth
herein, the provisions of the Titling Trust Servicing Agreement shall be made a
part of this Agreement and shall govern the servicing of the Series 2002-B
Portfolio Interest and the Series 2002-B Portfolio Assets. However, in the event
of any conflict between the provisions of the Titling Trust Servicing Agreement
(as expressly amended, supplemented or waived by this Agreement) and the
provisions set forth herein or in any other Basic Document, the provisions set
forth herein or in such other Basic Document shall prevail.
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(d) For purposes of determining the Servicer's obligations with
respect to the servicing of the Series 2002-B Portfolio Interest and the Series
2002-B Portfolio Assets under this Agreement, general references in the Titling
Trust Servicing Agreement to: (i) a Portfolio Interest shall be deemed to refer
more specifically to the Series 2002-B Portfolio Interest; (ii) a Portfolio
Servicing Agreement Supplement shall be deemed to refer more specifically to
this Agreement; and (iii) a Portfolio Supplement shall be deemed to refer more
specifically to the Series 2002-B Portfolio Supplement.
(e) The Servicer shall perform the obligations specified for it in the
Series 2002-B Portfolio Supplement.
ARTICLE II
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 2.01 Duties of the Servicer. The Servicer is hereby appointed and
authorized to act as agent for the Owner 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. With respect to
Receivables which are Retail Leases and the related Financed Vehicles, the
Servicer's duties shall also include those matters specified in the Titling
Trust Servicing Agreement. 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 Collateral Agent 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 and the Collateral Trustee shall thereupon 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 and the Collateral
Trustee, 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
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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, each of
the Owner and the Collateral Trustee 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 and the Collateral Trustee, 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 and the Collateral Trustee.
SECTION 2.02 Establishment of Accounts.
(a) (i) 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 2002-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.
(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 2002-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 Owner Trustee an Eligible Deposit Account known as the Navistar Financial
2002-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,
shall establish and maintain in the name of the Indenture Trustee an Eligible
Deposit Account known as the Navistar Financial 2002-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 the
Financial Parties.
(v) 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 2002-B Owner Trust Pre-Funding Account
(the "Pre-Funding Account"), bearing an additional designation clearly
indicating that the funds deposited therein are held for the benefit of the
Noteholders.
(vi) 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
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Navistar 2002-B Owner Trust Negative Carry Account (the "Negative Carry
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 are
maintained in the corporate trust department of the Indenture Trustee. 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, the Negative Carry Account and the Pre-Funding
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 Rating Agency Condition is satisfied with respect thereto. 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, 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 the corporate trust department of the Indenture Trustee. Except with
respect to Investment Earnings on amounts on deposit in the Pre-Funding Account,
Investment Earnings on funds deposited in the Designated Accounts shall be
deposited into the Certificate Distribution Account for distribution to the
Certificateholders, except when the Indenture Trustee is acting as successor
Servicer in which case such Investment Earnings shall be payable to the
Indenture Trustee as successor Servicer. 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
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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 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
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Asset carried therein, the Securities Intermediary will promptly
notify the Indenture Trustee, the Servicer, 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 and the Indenture Trustee 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 Investment Earnings). 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 Securityholders.
(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 each Rating Agency 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
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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 lease assignments, 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.
(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.
(c) The second sentence of Section 3.5(b) of the Titling Trust
Servicing Agreement shall not be applicable to the Series 2002-B Portfolio
Assets.
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SECTION 2.05 Maintenance of Insurance Policies.
(a) The Servicer shall, in accordance with its customary servicing
procedures, require that each Obligor under a Retail Note shall have obtained
physical damage insurance covering each Financed Vehicle as of the execution of
such Retail Note, unless the Servicer has in accordance with its customary
procedures permitted an Obligor to self-insure the Financed Vehicle or Financed
Vehicles securing such Retail Note. 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.
(b) With respect to Retail Leases and the related Financed Vehicles,
the Servicer shall comply with the obligations specified in Section 3.8 of the
Titling Trust Servicing Agreement.
(c) With respect to Retail Leases, the Servicer shall maintain one or
more contingent and excess liability insurance policies (the "primary contingent
policies") naming the Titling Trust as the insured with at least a $1 million
limit for each accident and no annual or aggregate limit on the number of
accidents covered. The primary contingent policies will respond if, at the time
of an accident involving a vehicle owned by the Titling Trust that causes bodily
injury and property damages to a third person, the insurance required to be
provided by the Obligor in accordance with the related Retail Lease has not been
provided, is not collectible or has inadequate limits to protect the Titling
Trust. In addition, the Servicer shall maintain excess insurance coverage for
which the Titling Trust is an additional named insured, which coverage has a
deductible not greater than the amount of coverage provided by the primary
contingent policies, and which provides insurance coverage of more than $10
million per occurrence.
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 of the Seller created by a Retail Note in the related
Financed Vehicle or Financed Vehicles and of the first priority security
interest of the Collateral Agent in the Financed Vehicle or Financed Vehicles
related to any Retail Lease. 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 (including the
Titling Trust Servicing Agreement), 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;
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(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, 2009; and
(d) other than solely for the purpose of collecting or enforcing the
Receivables for the benefit of the Owner and the Collateral Agent, (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 a Responsible Officer of any of
the Interested Parties or the Collateral Agent 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 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 2.10.
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 or the
Collateral Agent for any such uncured breach.
(b) Upon receipt of the Administrative Purchase Payment with respect
to a Receivable which is an Administrative Receivable, the Owner and the
Collateral Agent shall each 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 Assets 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 Assets, free of any further obligations to such
Person with respect thereto. The Servicer shall contribute any Administrative
Receivable that is a Retail Lease and its Related Assets to the General Interest
in the Titling Trust (or to such other person as shall be designated by Harco
Leasing).
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 each calendar month in 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 such
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calendar month. 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 or the
Collateral Agent, 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
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 Xxxxx'x, 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), (each, a "Monthly Remittance
Condition")
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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 and Investment Earnings)
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, if such a Receivable is
a Retail Note, 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. With
respect to Retail Leases, Prepayments (not constituting Full Prepayments)
received in excess of Scheduled Payments will be held in the Collection Account
and applied as Collected Amount in the Monthly Period during which the
applicable prepaid Scheduled Payment is due.
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 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 Servicer, the Seller,
the Issuer, and each Trustee 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 applicable recipient 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 Rating Agencies a Servicer's Certificate with respect to
the immediately preceding Monthly Period 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, 8.10, 8.11 and 8.12 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 and by asset number with respect to Retail Leases (in each case, as
set forth in the Composite Schedule of Receivables). 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 Total Available Amount, Collected Amount, the Total Servicing Fee,
the Aggregate Class A Noteholders' Interest Distributable Amount, the Class B
Noteholders' Interest Distributable Amount, the Principal Payment Amount, the
Noteholders' Principal Distributable 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 non-termination payments) and all other
amounts required to determine the amounts to be deposited in or paid from each
of the Collection Account, the Pre-Funding Account, the Negative Carry 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 2002) 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 Swap Counterparty and the Collateral Agent, on or before February 1 of each
year, beginning with the first February 1 which is at least twelve months after
the Closing Date, 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
and the Titling Trust Servicing 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 and the Titling
Trust Servicing 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, the
Collateral Agent and each Rating Agency, 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 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 furnish to the Issuer, each Trustee and the
Rating Agencies, on or before February 1 of each year, beginning February 1,
2003, 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, that discloses the existence
of any vicarious tort liability claims relating to the Portfolio Assets on such
date, if any, and the estimated or actual costs of any such claims.
(d) 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.
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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, the Collateral Agent and each
Rating Agency, on or before February 1 of each year, beginning with February 1,
2004 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 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, (ii) included tests relating to Receivables serviced for
others in accordance with the requirements of the Uniform Single Audit Program
for Mortgage Bankers (the "Program"), to the extent the procedures in the
Program are applicable to the servicing obligations set forth in this Agreement
and the Titling Trust Servicing Agreement and (iii) except as described in the
report, disclosed no exceptions or errors in the records relating to the
Receivables serviced for others that, in the firm's opinion, paragraph four of
the Program requires such firm to report.
(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 and
Securityholders reasonable access to the Servicer's records regarding the
Receivables owned by the Issuer. The Servicer shall provide such access to any
Securityholder only in such cases where a Securityholder is required by
applicable statutes or regulations to review such documentation. 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.
SECTION 3.04 Maintenance of Composite Schedule of Receivables. The Servicer
shall maintain at all times a composite schedule (the "Composite Schedule of
Receivables") which shall list separately (i) all Retail Notes which are owned
by the Issuer and (ii) all Retail Leases which are allocated to the Series
2002-B Portfolio Interest. The Composite Schedule of Receivables shall be
updated to reflect all purchases of Receivables during the Funding Period by the
Issuer 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 Collateral Agent (provided
that the Servicer need deliver to the
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Collateral Agent just the portion of the Composite Schedule of Leases which
lists Retail Leases) an updated Composite Schedule of Receivables on or before
each Purchase Date and each Distribution Date.
SECTION 3.05 Amendments to Composite Schedule of Receivables. 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 Receivables, the Servicer shall amend the Composite
Schedule of Receivables to report the newly assigned account number. Each
Composite Schedule of Receivables 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
Receivables.
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
Navistar Financial, purchased by the Servicer or become a Liquidating
Receivable.
(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 and the Indenture Trustee
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 Receivables 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.
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(e) The Servicer shall file such financing statements and cause to be
executed 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 Series 2002-B Portfolio Interest and the Series 2002-B
Portfolio Certificate and the Indenture Trustee's security interest in the
Receivables, the Series 2002-B Portfolio Interest and the Portfolio Certificate
under the Indenture. The Servicer shall deliver (or cause to be delivered) to
the Indenture Trustee file-stamped copies of, or filing receipts for, any
document filed as provided above, as soon as available following such filing.
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 hereby appoints the Servicer, and the Servicer hereby accepts such
appointment, to act as agent of the Owner of each Receivable 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 or Retail Lease, as
the case may be;
(b) documents evidencing or related to any related Insurance Policy;
(c) if such Receivable is a Retail Note, 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;
(d) if such Receivable is a Retail Lease, the original Certificate of
Title and such other documents that NFC is required to maintain pursuant to
Section 3.6 of the Titling Trust Servicing Agreement; 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.
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 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
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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 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 0000 Xxxx Xxxx Xxxx, Xxxxxxx Xxxxxxx, Xxxxxxxx 00000, 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 Collateral Agent, and the
Noteholders 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 or the Indenture Trustee, any Noteholder 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 or the Indenture Trustee for any portion of any such amount
resulting from the willful misfeasance, bad faith or negligence of such Person.
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 any Servicer shall have been terminated under Article
VII the appointment of such Servicer as custodian shall be terminated. Upon (i)
the repurchase of a Warranty Receivable by NFC pursuant to the Purchase
Agreement, (ii) purchase of a Warranty Receivable by NFRRC pursuant to the
Pooling Agreement or (iii) purchase of an Administrative Receivable by the
Servicer pursuant to Section 2.08(a) of this Agreement, the Servicer shall
deliver the related Receivable File to or at the direction of the purchaser.
Upon delivery of such Receivable File, the Servicer's obligations with respect
to such Receivable File shall terminate.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF THE SERVICER
SECTION 5.01 Representations and Warranties of the Servicer. The Servicer
hereby represents and warrants to NFRRC and the Issuer that as of each Purchase
Date:
(a) Organization and Good Standing. The Servicer has been duly
organized and is validly existing as a corporation, and in good standing under
the laws of the State of Delaware, with power and authority to own its
properties and to conduct its business as such properties are presently owned
and such business is presently conducted, and had at all relevant times, and now
has, power, authority and legal right to service the Receivables as provided in
this Agreement and the Titling Trust Servicing Agreement.
(b) Due qualification. The Servicer is duly qualified to do business
as a foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or lease of
property or the conduct of its business (including the servicing of the
Receivables as required by this Agreement and the Titling Trust Servicing
Agreement) requires such qualification.
(c) Power and Authority. The Servicer has the power and authority to
execute and deliver this Agreement, the Titling Trust Servicing Agreement and to
perform its obligations hereunder and thereunder and the execution, delivery and
performance by the Servicer of this Agreement and the Titling Trust Servicing
Agreement have been duly authorized by all necessary corporate action on the
part of the Servicer. Except as expressly contemplated in the Basic Documents,
no consent or authorization of, filing with, or other act by or in respect of,
any Governmental Authority or other Person is required in connection with the
execution, delivery, performance, validity or enforceability against the
Servicer of this Agreement and the Titling Trust Servicing Agreement.
(d) Binding Obligation. This Agreement and the Titling Trust Servicing
Agreement each constitutes a legal, valid and binding obligation of the Servicer
enforceable against the Servicer in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights in general and by general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law.
(e) No Violation. The execution and delivery of this Agreement and the
Titling Trust Servicing Agreement by the Servicer and its performance of its
obligations hereunder and thereunder will not violate any Requirement of Law or
Contractual Obligation of the Servicer and will not result in, or require, the
creation or imposition of any Lien on any of its property or assets pursuant to
any such Requirement of Law or Contractual Obligation other than as contemplated
by the Basic Documents.
(f) No Proceedings. There are no actions, proceedings or, to the
Servicer's knowledge, investigations pending or, to the Servicer's knowledge,
threatened before any Governmental Authority (i) asserting the invalidity of
this Agreement or the Titling Trust
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Servicing Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or the Titling Trust Servicing
Agreement or the issuance of the Securities, or (iii) seeking any determination
or ruling that would reasonably be expected to have a Material Adverse Effect
with respect to the Servicer.
(g) No Consent. Except as expressly contemplated by the Basic
Documents, no consent or authorization of, filing with, or other act by or in
respect of, any Governmental Authority or any other Person is required in
connection with the execution, delivery, performance, validity or enforceability
by or against the Servicer of this Agreement or the Titling Trust Servicing
Agreement.
ARTICLE VI
THE SERVICER
SECTION 6.01 Merger or Consolidation of, or Assumption of the Obligations
of, the Servicer. Any Person (a) into which the Servicer may be merged or
consolidated, (b) resulting from any merger, conversion or consolidation to
which the Servicer shall be a party, (c) succeeding to the business of the
Servicer, or (d) more than 50% of the voting stock or other interest of which is
owned directly or indirectly by NIC and which is otherwise servicing NFC's
receivables, which Person in any of the foregoing cases executes an agreement of
assumption to perform every obligation of the Servicer under this Agreement
shall be the successor to the Servicer under this Agreement without the
execution or filing of any paper or any further act on the part of any of the
parties to this Agreement, notwithstanding anything in this Agreement to the
contrary. The Servicer shall provide notice of any merger, consolidation or
succession pursuant to this Section 6.01 to the Rating Agencies, the Owner
Trustee and the Indenture Trustee.
SECTION 6.02 Limitation on Liability of Servicer and Others.
(a) Neither the Servicer nor any of the directors or officers or
employees or agents of the Servicer shall be under any liability to the Issuer
or any Noteholder, except as specifically provided in this Agreement, for any
action taken or for refraining from the taking of any action pursuant to this
Agreement or any other Further Transfer and Servicing Agreement or for errors in
judgment; provided, however, that this provision shall not protect the Servicer
or any such Person against any liability that would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence (except errors in
judgment) in the performance of the Servicer's duties or by reason of reckless
disregard of obligations and duties under the Further Transfer and Servicing
Agreements. The Servicer and any director, officer or employee or agent of the
Servicer may rely in good faith on the advice of counsel or on any document of
any kind prima facie properly executed and submitted by any Person respecting
any matters arising under this Agreement.
(b) Except as provided in this Agreement, the Servicer shall not be
under any obligation to appear in, prosecute or defend any legal action that is
not incidental to its duties to service the Receivables in accordance with this
Agreement and that in its opinion may involve it in any expense or liability;
provided, however, that the Servicer may undertake any reasonable action that it
may deem necessary or desirable in respect of this Agreement and the rights and
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duties of the parties to this Agreement and the interests of the Securityholders
under this Agreement and the Noteholders and (to the extent expressly provided
therein) the Certificateholders under the Indenture and the interests of the
Certificateholders under the Trust Agreement. In such event, the legal expenses
and costs for such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Issuer and the Servicer shall be entitled
to be reimbursed therefor.
SECTION 6.03 Delegation of Duties. So long as NFC acts as Servicer, the
Servicer may, at any time without notice or consent, delegate any duties under
this Agreement to any Person more than 50% of the voting stock or other interest
of which is owned, directly or indirectly, by NIC. The Servicer may at any time
perform specific duties as Servicer through subservicers who are in the business
of servicing medium and heavy duty truck, truck chassis, bus and trailer
receivables; provided, however, that no such delegation shall relieve the
Servicer of its responsibility with respect to such duties.
SECTION 6.04 Servicer Not to Resign. Subject to the provisions of Section
7.02, the Servicer shall not resign from the obligations and duties imposed on
it by this Agreement or the Titling Trust Servicing Agreement as Servicer except
upon determination that the performance of its duties under this Agreement or
the Titling Trust Servicing Agreement is no longer permissible under applicable
law. Any such determination permitting the resignation of the Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Indenture
Trustee. No such resignation shall become effective until the Indenture Trustee
or a successor Servicer shall have assumed the responsibilities and obligations
of the Servicer in accordance with Section 7.02.
SECTION 6.05 Servicer Indemnification of the Indenture Trustee and the
Owner Trustee.
(a) The Servicer (other than the Indenture Trustee in its capacity as
successor Servicer pursuant to Section 7.03 hereof) shall be liable in
accordance with this Agreement only to the extent of the obligations in this
Agreement specifically undertaken by the Servicer. Such obligations shall
include the following:
(i) The Servicer (other than any successor Servicer who is not an
affiliate of the initial Servicer, including the Indenture Trustee in its
capacity as successor Servicer pursuant to Section 7.03 hereof it being
understood that the removed Servicer shall retain such liability) shall defend,
indemnify and hold harmless the Indenture Trustee, the Owner Trustee, the
Issuer, the Collateral Agent and the Interested Parties from and against any and
all costs, expenses, losses, damages, claims and liabilities arising out of or
resulting from the use, ownership or operation by the Servicer or any Affiliate
thereof of any Financed Vehicle;
(ii) The Servicer (other than any successor Servicer who is not
an affiliate of the initial Servicer, including the Indenture Trustee in its
capacity as successor Servicer pursuant to Section 7.03 hereof it being
understood that the removed Servicer shall retain such liability) shall
indemnify, defend and hold harmless the Issuer, the Owner Trustee and the
Indenture Trustee from and against any taxes that may at any time be asserted
against any such Person with respect to the transactions contemplated in this
Agreement and the Pooling
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Agreement, including any sales, gross receipts, general corporation, Illinois
corporate income, tangible personal property, privilege or license taxes (but
not including any taxes asserted with respect to, and as of the date of, the
sale of the Receivables to the Owner Trustee or the issuance and original sale
of the Securities, or asserted with respect to ownership of the Receivables, or
federal or other income taxes arising out of distributions on the Securities, or
any fees or other compensation payable to any such Person) and costs and
expenses in defending against the same;
(iii) The Servicer shall indemnify, defend and hold harmless the
Issuer, the Owner Trustee, the Indenture Trustee, the Collateral Agent and the
Interested Parties from and against any and all costs, expenses, losses, claims,
damages, and liabilities to the extent that such cost, expense, loss, claim,
damage, or liability arose out of, or was imposed upon such Person through the
negligence, willful misfeasance or bad faith of the Servicer in the performance
of its duties under this Agreement and any other Transfer and Servicing
Agreements or by reason of reckless disregard of its obligations and duties
under any of the Transfer and Servicing Agreements;
(iv) The Servicer (other than any successor Servicer who is not
an affiliate of the initial Servicer, including the Indenture Trustee in its
capacity as successor Servicer pursuant to Section 7.03 hereof it being
understood that the removed Servicer shall retain such liability) shall
indemnify, defend and hold harmless each Trustee and their respective agents,
officers, directors and servants, from and against all costs, expenses, losses,
claims, damages and liabilities arising out of or incurred in connection with
(x) in the case of the Owner Trustee, the Indenture Trustee's performance of its
duties under the Basic Documents, (y) in the case of the Indenture Trustee, the
Owner Trustee's performance of its duties under the Basic Documents or (z) the
acceptance, administration or performance by, or action or inaction of, the
applicable Trustee of the trusts and duties contained in this Agreement, the
Basic Documents, the Indenture (in the case of the Indenture Trustee), including
the administration of the Collateral, and the Trust Agreement (in the case of
the Owner Trustee), including the administration of the Owner Trust Estate,
except in each case to the extent that such cost, expense, loss, claim, damage
or liability: (A) is due to the willful misfeasance, bad faith or negligence
(except for errors in judgment) of the Person seeking to be indemnified, (B) to
the extent otherwise payable to the Indenture Trustee, arises from the Indenture
Trustee's breach of any of its representations or warranties in Section 6.13 of
the Indenture or (C) to the extent otherwise payable to the Owner Trustee,
arises from the Owner Trustee's breach of any of its representations or
warranties set forth in Section 6.6 of the Trust Agreement; and
(v) The Servicer (other than any successor Servicer who is not an
affiliate of the initial Servicer, including the Indenture Trustee in its
capacity as successor Servicer pursuant to Section 7.03 hereof it being
understood that the removed Servicer shall retain such liability) will indemnify
the Owner Trustee in accordance with the provisions specified in Section 6.9 of
the Trust Agreement.
(b) Indemnification under this Section 6.05 shall survive the
resignation or removal of the Owner Trustee or the Indenture Trustee or the
termination of this Agreement and shall include reasonable fees and expenses of
counsel and expenses of litigation. If the Servicer has made any indemnity
payments pursuant to this Section 6.05 and the recipient thereafter
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collects any of such amounts from others, the recipient shall promptly repay
such amounts collected to the Servicer, without interest.
ARTICLE VII
DEFAULT
SECTION 7.01 Servicer Defaults. Each of the following shall constitute a
"Servicer Default":
(a) any failure by the Servicer to deliver to the Indenture Trustee
for deposit in any of the Designated Accounts or to the Owner Trustee for
deposit in the Certificate Distribution Account any required payment or to
direct the Indenture Trustee to make any required distributions therefrom, in
each case which failure continues unremedied for five Business Days after the
earlier of (i) written notice is received by the Servicer from the applicable
Trustee or (ii) after discovery of such failure by an officer of the Servicer;
(b) any failure by the Servicer duly to observe or perform in any
material respect any other covenant or agreement of the Servicer set forth in
this Agreement, the Titling Trust Servicing Agreement or any other Basic
Documents which failure materially and adversely affects the rights of the
Securityholders and which continues unremedied for 60 days after the giving of
written notice of such failure (A) to the Servicer by either Trustee or (B) to
the Servicer and to either Trustee by the holders of not less than 25% of the
Outstanding Amount of the Controlling Class;
(c) any representation, warranty or certification made by the Servicer
pursuant to this Agreement, the Titling Trust Servicing Agreement or any other
Basic Documents shall prove to have been incorrect in any material respect when
made, and if the consequences of such representation, warranty or certification
being incorrect shall be susceptible of remedy in all material respects, such
consequences shall not be remedied in all material respects within 30 days after
the Servicer first becomes aware or is advised that such representation,
warranty or certification was incorrect in a material respect; and
(d) the occurrence of an Insolvency Event with respect to the
Servicer.
SECTION 7.02 Consequences of a Servicer Default. If a Servicer Default
shall occur and be continuing, the Indenture Trustee or holders of Securities
evidencing not less than a majority of the Outstanding Amount of the Controlling
Class may, in addition to other rights and remedies available in a court of law
or equity to damages, injunctive relief and specific performance, terminate all
the rights and obligations of the Servicer hereunder, under the Titling Trust
Servicing Agreement, and under all sub-servicing agreements whereupon the
Indenture Trustee will succeed to all the responsibilities, duties and
liabilities of the Servicer under this Agreement and the Titling Trust Servicing
Agreement and will be entitled to similar compensation arrangements. On or after
the receipt by the Servicer of such written notice, all authority and power of
the Servicer under this Agreement and the Titling Trust Servicing Agreement,
whether with respect to the Receivables or otherwise, shall pass to and be
vested in the Indenture Trustee pursuant to and under this Section 7.02. Upon
the receipt of such notice, the Servicer's appointment as custodian shall be
terminated and, upon instruction from the
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Indenture Trustee, the Servicer shall release any Receivable File to the
Indenture Trustee, or its respective agent or assignee, as the case may be, at
such place or places as the Indenture Trustee may designate, as soon as
practicable. The Servicer shall be deemed to have received proper instructions
with respect to the Receivable Files upon its receipt of written instructions
signed by an officer of the Indenture Trustee. The Indenture Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement of the Receivables and related documents, or otherwise. The
predecessor Servicer agrees to cooperate with either Trustee or the successor
Servicer in effecting the termination of the responsibilities and rights of the
Servicer under this Agreement and the Titling Trust Servicing Agreement,
including the transfer to either Trustee for administration by it of all cash
amounts that shall at the time be held by the Servicer for deposit, or that
shall have been deposited by the Servicer in the Collection Account, the
Negative Carry Account, the Pre-Funding Account, the Reserve Account, the Note
Distribution Account or the Certificate Distribution Account or thereafter
received that shall at any time be held with respect to the Receivables by the
Servicer.
SECTION 7.03 Indenture Trustee to Act; Appointment of Successor. On and
after the time the Servicer receives a notice of termination pursuant to Section
7.02, the Indenture Trustee shall be the successor in all respects to the
Servicer in its capacity as servicer under this Agreement and the Titling Trust
Servicing Agreement and the transactions set forth or provided for in this
Agreement and the Titling Trust Servicing Agreement, and shall be subject to all
the responsibilities, restrictions, duties and liabilities relating thereto
placed on the Servicer by the terms and provisions of this Agreement and the
Titling Trust Servicing Agreement; provided, however, that the predecessor
Servicer shall remain liable for, and the successor Servicer shall have no
liability for, any indemnification obligations of the Servicer arising as a
result of acts, omissions or occurrences during the period in which the
predecessor Servicer was the Servicer; and provided, further, that NFC shall
remain liable for all such indemnification obligations of the Servicer without
regard to whether it is still Servicer hereunder. As compensation therefor, the
Indenture Trustee shall be entitled to such compensation (whether payable out of
the Collection Account or otherwise) as the Servicer would have been entitled to
under this Agreement if no such notice of termination had been given including,
but not limited to, the Total Servicing Fee and Supplemental Servicing Fees and
shall be entitled to Investment Earnings as set forth in Section 2.02(b) hereof.
Notwithstanding the above, the Indenture Trustee may, if it shall be unwilling
to so act, or shall, if it is legally unable to so act, appoint, or petition a
court of competent jurisdiction to appoint, a successor (i) having a net worth
of not less than $100,000,000 and (ii) whose regular business includes the
servicing of receivables of the type included in the Collateral, as the
successor to the Servicer under this Agreement and the Titling Trust Servicing
Agreement in the assumption of all or any part of the responsibilities, duties
or liabilities of the Servicer under this Agreement and the Titling Trust
Servicing Agreement. In connection with such appointment and assumption, the
Indenture Trustee may make such arrangements for the compensation of such
successor out of payments on Receivables as it and such successor shall agree;
provided, however, that no such compensation shall be in excess of that
permitted the Servicer under this Agreement and the Titling Trust Servicing
Agreement. The Indenture Trustee and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession.
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SECTION 7.04 Notification to Securityholders. Upon any termination of, or
appointment of a successor to, the Servicer pursuant to this Article VII, the
Indenture Trustee shall give prompt written notice thereof to the Noteholders
and the Rating Agencies and the Owner Trustee shall give prompt written notice
thereof to the Certificateholders.
SECTION 7.05 Repayment of Advances. If a successor Servicer shall be
appointed, the predecessor Servicer shall be entitled to receive, to the extent
of available funds, reimbursement for Outstanding Monthly Advances pursuant to
Section 2.14 in the manner specified in Section 8.2 of the Indenture with
respect to all Monthly Advances made by such predecessor Servicer. The successor
Servicer shall not be entitled to reimbursement for Monthly Advances made by the
predecessor Servicer.
SECTION 7.06 Waiver of Past Defaults. The Indenture Trustee, at the
direction of the holders of not less than a majority of the Outstanding Amount
of the Controlling Class, may waive any default by the Servicer in the
performance of its obligations hereunder and its consequences, except a default
in making any required deposits to or payments from any of the Designated
Accounts in accordance with this Agreement. Upon any such waiver of a past
default, such default shall cease to exist, and any Servicer Default arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon. The Servicer shall give written notice of
each such waiver to the Rating Agencies.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Amendment. This Agreement may be amended from time to time
(subject to any expressly applicable amendment provision of the Further Transfer
and Servicing Agreements) by a written amendment duly executed and delivered by
the parties hereto; provided, however, that this Agreement may not be amended
unless such amendment is in accordance with the provisions of Section 5.01 of
the Pooling Agreement as if such Section 5.01 were contained herein and were
applicable to this Agreement. Prior to the execution of any such amendment, the
Servicer shall furnish written notification of the substance of such amendment
to each of the Rating Agencies. Notwithstanding any other provision of this
Agreement, if the consent of the Swap Counterparty is required pursuant to the
Swap Counterparty Rights Agreement, any such purported amendment shall be null
and void ab initio unless the Swap Counterparty consents in writing to such
amendment.
SECTION 8.02 Termination. The respective obligations and responsibilities
of the parties hereto pursuant to this Agreement shall terminate upon the
earlier of:
(a) the maturity or other liquidation of the last Receivable and the
disposition of any amounts received upon liquidation of any such remaining
Receivables or
(b) the termination of the Pooling Agreement pursuant to Section 4.02
thereof.
SECTION 8.03 Notices. All notices, requests and demands to NFRRC, the
Servicer, either Trustee or Rating Agencies under this Agreement shall be
delivered as specified in Appendix B to the Pooling Agreement.
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SECTION 8.04 Governing Law. All questions concerning the construction,
validity and interpretation of this Agreement shall be governed by and construed
and enforced in accordance with the internal laws of the State of Illinois,
without giving effect to any choice of law or conflict provision or rule
(whether of the State of Illinois or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Illinois.
SECTION 8.05 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 8.06 Assignment. Except to the extent permitted by Article VI or as
required by Article VII, the Servicer may not assign its rights or delegate its
obligations hereunder or under the Titling Trust Servicing Agreement. The
Servicer acknowledges that the Issuer shall assign all of its rights, title and
interest in this Agreement to the Indenture Trustee on behalf of the Noteholders
pursuant to the Indenture. The Servicer agrees that the Indenture Trustee, to
the extent provided in the Indenture, shall be entitled to enforce the terms of
this Agreement and the rights (including, without limitation, the right to grant
or withhold any consent or waiver) of Issuer directly against the Servicer.
Until the satisfaction and discharge of all obligations of the Issuer, the
Servicer further agrees that, in respect of its obligations hereunder, it will
act at the direction of and in accordance with all requests and instructions
from the Indenture Trustee given in accordance with the Indenture. The Indenture
Trustee shall have the rights of a third-party beneficiary under this Agreement.
The Servicer shall deliver copies of all statements, reports, Opinions of
Counsel, notices, requests, demands and other documents to be delivered by the
Servicer to Issuer pursuant to the terms hereof to the Indenture Trustee.
SECTION 8.07 Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, and their respective
successors and permitted assigns. Except as otherwise provided in Section 6.03
or in this Article VIII, no other Person shall have any right or obligation
hereunder.
SECTION 8.08 Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
SECTION 8.09 Headings and Cross-References. The various headings in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement.
SECTION 8.10 No Petition Covenants. Notwithstanding any prior termination
of this Agreement, the Servicer shall not, prior to the date which is one year
and one day after payment in full of all obligations and the final distribution
with respect to the Securities to the Note Distribution Account or the
Certificate Distribution Account, as applicable, acquiesce, petition or
otherwise invoke or cause the Issuer or NFRRC to invoke or join any other Person
in instituting the process of any court or government authority for the purpose
of commencing or sustaining a case against the Issuer or NFRRC any bankruptcy,
reorganization, arrangement,
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insolvency, liquidation proceeding, or similar law of the United States or any
state of the United States.
SECTION 8.11 Limitation of Liability of the Trustees.
(a) Notwithstanding anything contained herein to the contrary, this
Agreement has been acknowledged and accepted by The Bank of New York not in its
individual capacity but solely as Indenture Trustee and in no event shall The
Bank of New York have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder or in any of
the certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been executed by Chase Manhattan Bank USA, National Association
not in its individual capacity but solely in its capacity as Owner Trustee and
in no event shall Chase Manhattan Bank USA, National Association in its
individual capacity or, except as expressly provided in the Trust Agreement, as
Owner Trustee of the Issuer have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder
or in any of the certificates, notices or agreements delivered pursuant hereto,
as to all of which recourse shall be had solely to the assets of the Issuer. For
all purposes of this Agreement, in the performance of its duties or obligations
hereunder, or in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of Article VI of the Trust Agreement.
[END OF PAGE]
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Servicing
Agreement to be duly executed by their respective officers duly authorized as of
the day and year first above written.
NAVISTAR FINANCIAL CORPORATION,
as Servicer
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
NAVISTAR FINANCIAL RETAIL RECEIVABLES
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
HARCO LEASING COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
THE BANK OF NEW YORK
not in its individual capacity, but solely
as Collateral Agent
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title:
BANK ONE, NATIONAL ASSOCIATION
not in its individual capacity, but solely
as Portfolio Trustee
By: /s/ Xxxxxx Xxx Xxxxxxx
-----------------------------------------------
Name: Xxxxxx Xxx Xxxxxxx
Title:
NAVISTAR FINANCIAL 2002-B OWNER TRUST
By: Chase Manhattan Bank USA, National Association,
not in its individual capacity, but solely as Owner
Trustee
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
THE BANK OF NEW YORK,
not in its individual capacity, but solely as
Indenture Trustee
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Treasurer
The Indenture Trustee, in its role as Securities
Intermediary, hereby acknowledges its undertaking
as set forth in Section 2.02
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Treasurer
NAVISTAR LEASING COMPANY
By: Bank One, National Association, as General
Interest Trustee
By: /s/ Xxxxxx Xxx Xxxxxxx
-----------------------------------------------
Name: Xxxxxx Xxx Xxxxxxx
Title: Vice President
