Exhibit 99.6
EXECUTION COPY
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LEASE PURCHASE AGREEMENT
BETWEEN
HARCO LEASING COMPANY, INC.
AND
NAVISTAR FINANCIAL CORPORATION
DATED AS OF NOVEMBER 19, 2002
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS...............................................................1
SECTION 1.01 Certain Defined Terms...............................................1
ARTICLE II PURCHASE AND SALE OF SERIES 2002-B PORTFOLIO
INTEREST AND LEASES; SECURITY INTEREST IN LEASED VEHICLES........................2
SECTION 2.01 Initial Transfer....................................................2
SECTION 2.02 Subsequent Transfers................................................2
SECTION 2.03 The Closings........................................................2
SECTION 2.04 Transfers Intended as a Sale........................................2
ARTICLE III REPRESENTATIONS AND WARRANTIES..........................................3
SECTION 3.01 Representations and Warranties Regarding Lease Receivables..........3
SECTION 3.02 Representations and Warranties Regarding Harco Leasing..............4
SECTION 3.03 Representations and Warranties Regarding Titling Trust..............6
SECTION 3.04 Representations and Warranties of NFC...............................8
ARTICLE IV CONDITIONS...............................................................9
SECTION 4.01 Conditions Precedent to NFC's Initial Purchase of Lease
Receivables...................................................................9
SECTION 4.02 Conditions Precedent to NFC's Purchase of Sold Retail Lease
Property......................................................................9
SECTION 4.03 Conditions To Obligation of Harco Leasing..........................10
ARTICLE V ADDITIONAL AGREEMENTS....................................................10
SECTION 5.01 Initial UCC Filings................................................10
SECTION 5.02 Computer Files Marked..............................................10
SECTION 5.03 Protection of Title................................................10
SECTION 5.04 Other Liens or Interests...........................................11
SECTION 5.05 Indemnification....................................................11
SECTION 5.06 Reserved...........................................................11
SECTION 5.07 Repurchase Events..................................................11
SECTION 5.08 Further Assignments................................................12
SECTION 5.09 Pre-Closing Collections............................................13
SECTION 5.10 Limitation on Transfer of International Purchase Obligations.......13
SECTION 5.11 Bankruptcy Proceeding..............................................13
SECTION 5.12 Sale Treatment.....................................................13
ARTICLE VI MISCELLANEOUS PROVISIONS................................................13
SECTION 6.01 Amendment..........................................................13
SECTION 6.02 Survival...........................................................14
SECTION 6.03 Notices............................................................14
SECTION 6.04 Governing Law......................................................14
SECTION 6.05 Waivers............................................................14
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SECTION 6.06 Costs and Expenses.................................................14
SECTION 6.07 Headings...........................................................14
SECTION 6.08 Counterparts.......................................................14
SECTION 6.09 Severability of Provisions.........................................14
SECTION 6.10 Further Assurances.................................................15
SECTION 6.11 No Third-Party Beneficiaries.......................................15
SECTION 6.12 Merger and Integration.............................................15
Exhibit A Form of Initial LPA Assignment
Exhibit B Form of Subsequent LPA Assignment
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LEASE PURCHASE AGREEMENT
THIS LEASE PURCHASE AGREEMENT (this "Agreement") is made as of
November 19, 2002 by and between Harco Leasing Company, Inc., a Delaware
corporation ("Harco Leasing"), and Navistar Financial Corporation, a Delaware
corporation ("NFC").
R E C I T A L S:
WHEREAS, Harco Leasing, as Grantor and Initial Beneficiary, the
General Interest Trustee and the Delaware Trustee have entered into the Titling
Trust Agreement, pursuant to which the Titling Trust was formed for the purpose
of acquiring, holding and dealing in Titling Trust Assets;
WHEREAS, Harco Leasing holds the General Interest in the Titling
Trust, representing the beneficial ownership interest in the General Titling
Trust Assets;
WHEREAS, pursuant to Section 3.2 of the Titling Trust Agreement a
portion of the General Interest Trust Assets have been allocated to the Series
2002-B Portfolio Interest and additional General Titling Trust Assets are
expected to be allocated to the Series 2002-B Portfolio Interest from time to
time during the Funding Period;
WHEREAS, NFC desires to purchase the Series 2002-B Portfolio Interest
from Harco Leasing;
WHEREAS, Harco Leasing is willing, on the terms and subject to the
conditions set forth herein, to sell the Series 2002-B Portfolio Interest to
NFC.
NOW, THEREFORE, in consideration of the foregoing, the other good and
valuable consideration and the mutual terms and covenants herein contained, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Certain Defined Terms. Capitalized terms used and not
otherwise defined 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 Navistar Financial Retail Receivables Corporation
and Navistar Financial 2002-B Owner Trust.
ARTICLE II
PURCHASE AND SALE OF SERIES 2002-B PORTFOLIO INTEREST AND LEASES; SECURITY
INTEREST IN LEASED VEHICLES
SECTION 2.01 Initial Transfer. On the date hereof, Harco Leasing hereby:
(a) sells, transfers, assigns, delivers and conveys to NFC, and NFC
hereby purchases from Harco Leasing, all of Harco Leasing's right, title and
interest in and to the Series 2002-B Portfolio Interest, the Series 2002-B
Portfolio Certificate and the beneficial interest in the Series 2002-B Portfolio
Assets represented thereby; and
(b) directs the General Interest Trustee and the Servicer to identify
from the General Titling Trust Assets allocable to the General Interest, and to
allocate to the Series 2002-B Portfolio Interest, all of the right, title and
interest of Harco Leasing and the Titling Trust in and to the Retail Leases
identified on the Schedule of Retail Leases attached to the assignment, dated
the date hereof, and substantially in the form of Exhibit A (the "Initial LPA
Assignment"), and the Related Titling Trust Assets with respect to such Retail
Leases.
SECTION 2.02 Subsequent Transfers. From time to time during the Funding
Period, on such dates as are mutually agreeable to Harco Leasing and NFC (each,
a "Lease Purchase Date," which term includes the Closing Date), subject to the
satisfaction of the conditions specified in Article IV, Harco Leasing shall
allocate to the Series 2002-B Portfolio Interest, and direct the General
Interest Trustee and the Servicer to identify from the General Titling Trust
Assets allocable to the General Interest, and to allocate to the Series 2002-B
Portfolio Interest, all of the right, title and interest of Harco Leasing and
the Titling Trust in and to the Retail Leases identified on the Schedule of
Retail Leases attached to the assignment, dated as of such Lease Purchase Date,
and substantially in the form of Exhibit B (each, a "Subsequent LPA
Assignment"), and the Related Titling Trust Assets with respect to such Retail
Leases.
SECTION 2.03 The Closings. The consummation of each purchase and sale
contemplated by Section 2.01 or Section 2.02 (each, a "Lease Purchase Closing")
shall take place on the related Lease Purchase Date, and at such place and at
such time as Harco Leasing and NFC may agree upon. In consideration for the
Series 2002-B Portfolio Assets sold at each Lease Purchase Closing, NFC shall
pay to Harco Leasing on such Lease Purchase Date an amount equal to the
aggregate Starting Receivable Balance as of the related Cutoff Date (the "Lease
Purchase Price") of the Retail Leases being so sold (the "Designated Retail
Leases") on such Lease Purchase Date. The Lease Purchase Price shall be paid to
Harco Leasing in immediately available funds.
SECTION 2.04 Transfers Intended as a Sale. It is the express intent of
Harco Leasing and NFC that the conveyances and allocations of the Series 2002-B
Portfolio Interest, the Series 2002-B Portfolio Certificate and the Series
2002-B Portfolio Assets shall constitute sales of personal property which is
absolute and irrevocable and which is without recourse to Harco Leasing, except
as provided herein, and which provides NFC with the full benefits of exclusive
legal and beneficial ownership of the Series 2002-B Portfolio Interest and the
Series 2002-B Portfolio Certificate and with exclusive beneficial ownership of
the Series 2002-B Portfolio Assets allocated to the Series 2002-B Portfolio
Interest (collectively, the "Sold Retail Lease
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Property"). It is, further, not the intention of either Harco Leasing or NFC
that any such sale be deemed a grant of a security interest in such Sold Retail
Lease Property by Harco Leasing to NFC to secure a debt or other obligation of
Harco Leasing. However, in the event that, notwithstanding the intent of the
parties, such property is held by a court of law to continue to be property of
Harco Leasing, then (i) this Agreement shall be deemed to be a security
agreement within the meaning of the applicable UCC; and (ii) the transfers and
allocations by Harco Leasing provided for in this Agreement shall be deemed to
be, and Harco Leasing hereby grants to NFC, a security interest in and to all of
Harco Leasing's right, title and interest in and to such Sold Retail Lease
Property and all proceeds of such property. Notwithstanding anything else to the
contrary contained herein, Harco Leasing shall not be liable to NFC for any
failure by any Obligor to make payments owed in respect of Sold Retail Lease
Property.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Representations and Warranties Regarding Lease Receivables. As
of each Lease Purchase Date, Harco Leasing represents and warrants to NFC as
follows with respect to the Designated Retail Leases and the other Sold Retail
Lease Property transferred on such date:
(a) Characteristics of Receivables. Each Designated Retail Lease:
(i) was originated or acquired by Harco Leasing, the Titling
Trust or one or more of their Affiliates for the retail lease of one or
more Financed Vehicles acquired thereby in the ordinary course of business
in accordance with NFC's underwriting standards, and was fully and properly
executed by the parties thereto;
(ii) contains customary and enforceable provisions such as to
render the rights and remedies of the holder thereof adequate for
realization against the collateral and of the benefits of the security;
(iii) is a Finance Lease or a TRAC Lease and (A) in the case of a
Finance Lease, provides for payments (including purchase option payments)
that fully amortize the Initial Capitalized Cost over its original term to
maturity and yields implicit interest at a fixed annual percentage rate,
with a purchase option price that does not exceed $1,000 and (B) in the
case of a TRAC Lease, provides for payments that fully amortize the Initial
Capitalized Cost to an amount equal to the TRAC Payment, and, in the event
of a termination of the TRAC Lease, the amount payable thereunder by the
Obligor is at least equal to the excess of the Receivable Balance over the
proceeds from the sale of the related Financed Vehicle;
(iv) (A) is owned of record by the Titling Trust, (B) immediately
prior to the allocation of such Designated Retail Lease to the Series
2002-B Portfolio Interest, Harco Leasing was the beneficial owner of such
Retail Lease free of any Lien (except for Permitted Liens and Liens that
will be released as of such transfer), and (C) upon execution and delivery
of this Agreement and payment of the related Lease Purchase Price, (1) all
of Harco Leasing's right, title and interest in such
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Designated Retail Lease has been validly sold by Harco Leasing to NFC, and
(2) NFC is the owner of all right, title and interest in such Designated
Retail Lease (other than the interest of the Titling Trust) free of any
Lien (except for Permitted Liens) and the transfer of such Designated
Retail Lease to NFC has been perfected under the UCC;
(v) each Financed Vehicle related thereto is owned by the Titling
Trust (or its nominee) as record owner and upon issuance of the Series
2002-B Portfolio Certificate, NFC will be the beneficial owner through its
ownership of the Series 2002-B Portfolio Interest of such Financed Vehicle
and any certificate of title or other evidence of ownership of such
Financed Vehicle issued by a registrar of titles in the respective
jurisdiction in which such Financed Vehicle is registered relating to each
such vehicle is registered in the name of the Titling Trust (or its
nominee) (or a properly completed application for such title has been or
will be submitted to the appropriate titling authority) with a notation of
Lien thereon in favor of the Collateral Agent; and
(vi) as of the Lease Purchase Date with respect to such
Designated Retail Lease, such Designated Retail Lease has been allocated to
the Series 2002-B Portfolio Interest.
(b) Schedule of Retail Leases. The information regarding such
Designated Retail Leases set forth in the related Schedule of Retail Leases is
true and correct in all material respects.
(c) Title. The Titling Trust has good title to each such Designated
Retail Lease free and clear of all Liens (other than Permitted Liens). On the
date hereof, good and valid title to the Series 2002-B Portfolio Interest and
the Series 2002-B Portfolio Certificate and the exclusive beneficial interest in
the Series 2002-B Portfolio Assets will be validly and effectively conveyed to,
and vested in, NFC, free and clear of all Liens, other than Permitted Liens, and
NFC will be entitled to all of the rights and benefits of a holder of a
Portfolio Interest under the Titling Trust Agreements.
SECTION 3.02 Representations and Warranties Regarding Harco Leasing. Harco
Leasing represents and warrants to NFC as of the date hereof and as of each
Lease Purchase Date (and, as applicable, with respect to the Designated Retail
Leases being transferred on such date), that:
(a) Organization and Good Standing. Harco Leasing 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 acquire and own such Designated Retail
Leases.
(b) Due Qualification. Harco Leasing is duly qualified to do business
as a foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in
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all jurisdictions in which the ownership or lease of property or the conduct of
its business requires such qualification.
(c) Power and Authority. Harco Leasing has the power and authority to
execute and deliver this Agreement, the Initial LPA Assignment and each
Subsequent LPA Assignment and to perform its obligations hereunder and
thereunder and the execution, delivery and performance of this Agreement and the
other Basic Documents to which it is a party have been duly authorized by Harco
Leasing by all necessary corporate action on the part of Harco Leasing. Harco
Leasing has the corporate power and authority to sell and assign to NFC the Sold
Retail Lease Property and has duly authorized such transfers by all necessary
corporate action on the part of Harco Leasing.
(d) Valid Sales; Binding Obligation. This Agreement, together with the
Initial LPA Assignment or Subsequent LPA Assignment related to such Designated
Retail Leases and the Related Titling Trust Assets, when duly executed and
delivered, shall constitute a valid sale, transfer and assignment of the Series
2002-B Portfolio Interest, the Series 2002-B Portfolio Certificate and the
beneficial interest in the Series 2002-B Portfolio Assets represented thereby,
enforceable against creditors of Harco Leasing. Furthermore, this Agreement
constitutes, and such Initial LPA Assignment or Subsequent LPA Assignment, when
duly executed and delivered, shall constitute a legal, valid and binding
obligation of Harco Leasing enforceable against Harco Leasing in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium 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 by
Harco Leasing and the other Basic Documents to which it is a party and its
performance of its obligations hereunder and thereunder will not violate any
Requirement of Law or Contractual Obligation of Harco Leasing, and will not
result in, or require, the creation or imposition of any Lien upon 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 Harco
Leasing's knowledge, investigations pending or threatened, before any
Governmental Authority (i) asserting the invalidity of this Agreement or any
other Basic Document to which Harco Leasing is a party, (ii) seeking to prevent
the consummation of any of the transactions contemplated by this Agreement or
any other Basic Document to which Harco Leasing is a party, or (iii) seeking any
determination or ruling that would reasonably be expected to have a Material
Adverse Effect with respect to Harco Leasing.
(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
against Harco Leasing of this Agreement or any other Basic Document to which
Harco Leasing is a party.
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(h) No Default. Harco Leasing is not in default under or with respect
to any of its Contractual Obligations which would have a Material Adverse Effect
with respect to it.
(i) Taxes. Harco Leasing has filed or caused to be filed all tax
returns which are required to be filed by Harco Leasing (with respect to itself)
and has paid all taxes shown to be due and payable on said returns or on any
assessments made against it or any of its property and all other taxes, fees or
other charges imposed on it or any of its property by any Governmental Authority
(other than any amount the validity of which is currently being contested in
good faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of Harco Leasing). No
notice of any Lien in respect of unpaid taxes or assessments (other than a
Permitted Lien) has been filed by any taxing authority against, or otherwise
affecting the assets of, Harco Leasing and remains in effect.
(j) ERISA. No notice of a Lien arising under Title I or Title IV of
ERISA has been filed under Section 6323 (a) of the Code (or any successor
provision) against, or otherwise affecting the assets of Harco Leasing.
(k) Solvency. Harco Leasing is, and after giving effect to the
transactions contemplated to occur on such date will be, solvent.
(l) Investment Company Act. Harco Leasing is not, and is not
controlled by, an "investment company" within the meaning of, and is not
required to register as an "investment company" under, the Investment Company
Act.
SECTION 3.03 Representations and Warranties Regarding Titling Trust. Harco
Leasing represents and warrants to NFC as of the date hereof and as of each
Lease Purchase Date, that:
(a) Organization and Good Standing. The Titling Trust is a statutory
trust duly formed, validly existing 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 acquire and own the Retail Leases.
(b) Due Qualification. The Titling Trust is duly qualified to do
business as a foreign business trust and in good standing under the laws of each
jurisdiction where the character of its property, the nature of its business or
the performance of its obligations make such qualification necessary and has all
powers and all governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted and for purposes of the
transactions contemplated by the Basic Documents, except to the extent that the
failure to have any such governmental licenses, authorizations, consents or
approvals would not, in the aggregate, have a Material Adverse Effect with
respect to the Titling Trust.
(c) Power and Authority. The Titling Trust has the power and authority
to execute and deliver the Basic Documents to which it is a party and to perform
its obligations thereunder and the execution, delivery and performance of the
Basic Documents to which it is a party have been duly authorized by the Titling
Trust.
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(d) Valid and Binding. Each of the Basic Documents to which the
Titling Trust is a party has been duly executed and delivered by or on behalf of
the Titling Trust and constitutes a legal, valid and binding obligation of the
Titling Trust enforceable against the Titling Trust in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights in general and by general principles of equity
regardless of whether such enforcement is considered in a proceeding in equity
or at law.
(e) No Violation. The execution and delivery by the Titling Trust of
the Basic Documents to which it is a party and its performance of its
obligations thereunder will not violate any Requirement of Law or Contractual
Obligation of the Titling Trust, and will not result in, or require, the
creation or imposition of any Lien upon 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 or proceedings or, to Harco
Leasing's knowledge, investigations pending or threatened before any
Governmental Authority (i) asserting the invalidity of any of the Basic
Documents to which the Titling Trust is a party, (ii) seeking to prevent the
consummation of any of the transactions contemplated by any of the Basic
Documents to which the Titling Trust is a party or (iii) seeking any
determination or ruling that would reasonably be expected to have a Material
Adverse Effect with respect to the Titling Trust.
(g) No Consent. No consent or authorization of, or 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 against the Titling Trust of any of the Basic Documents to which
it is a party.
(h) Taxes. The Titling Trust has filed or caused to be filed all tax
returns which are required to be filed by the Titling Trust (with respect to
itself) and has paid all taxes shown to be due and payable on said returns or on
any assessments made against it or any of its property by any Governmental
Authority (other than any amount the validity of which is being contested in
good faith by appropriate proceedings and with respect to which reserves in
accordance with GAAP have been provided on the books of the Titling Trust). No
notice of any Lien in respect of unpaid taxes or assessments (other than a
Permitted Lien) has been filed by any taxing authority against, or otherwise
affecting the assets of, the Titling Trust and remains in effect. The Titling
Trust has paid all fees and expenses required to be paid by it in connection
with the conduct of its business, the maintenance of its existence and its
qualification as a foreign business trust.
(i) ERISA. No notice of Lien arising under Title I or IV of ERISA has
been filed under Section 6323(a) of the Code (or any successor provision)
against, or otherwise affecting the assets of the Titling Trust.
(j) Investment Company Act. The Titling Trust is not, and is not
controlled by, an "investment company" within the meaning of, and is not
required to register as an "investment company" under, the Investment Company
Act.
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(k) Series 2002-B Portfolio Certificate. The Series 2002-B Portfolio
Certificate has been duly executed and delivered by the General Interest Trustee
in accordance with the Titling Trust Agreement, has been duly issued in
accordance with the Titling Trust Agreement and is entitled to the benefits
afforded by the Titling Trust Agreement.
SECTION 3.04 Representations and Warranties of NFC. NFC hereby represents
and warrants to Harco Leasing as of the date hereof and as of each Lease
Purchase Date (and, as applicable, with respect to the Designated Retail Leases
transferred on such date), that:
(a) Organization and Good Standing. NFC 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 acquire and own such Designated Retail Leases.
(b) Due Qualification. NFC 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 requires such qualification.
(c) Power and Authority. NFC has the corporate power and authority to
execute and deliver this Agreement and to perform its obligations hereunder and
the execution, delivery and performance of this Agreement have been duly
authorized by all necessary corporate action on the part of NFC.
(d) Binding Obligation. This Agreement constitutes a legal, valid and
binding obligation of NFC enforceable against NFC 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 by NFC
and its performance of its obligations hereunder will not violate any
Requirement of Law or Contractual Obligation of NFC, and will not result in, or
require, the creation or imposition of any Lien upon 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 proceedings or, to NFC's knowledge,
investigations pending or threatened, before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality having
jurisdiction over NFC or its properties (i) asserting the invalidity of this
Agreement, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement, or (iii) seeking any determination or ruling
that might materially and adversely affect the performance by NFC of its
obligations under, or the validity or enforceability of, this Agreement.
(g) No Consent. Except as expressly contemplated by the Basic
Documents, no consent or authorization of, or filing with, or other act by or in
respect of, any Governmental
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Authority or any other Person is required in connection with the execution,
delivery, performance, validity or enforceability against NFC of this Agreement.
ARTICLE IV
CONDITIONS
SECTION 4.01 Conditions Precedent to NFC's Initial Purchase of Lease
Receivables. The obligation of NFC to purchase from Harco Leasing any Sold
Retail Lease Property on the Closing Date is subject to the satisfaction of the
following conditions:
(a) Agreement. NFC shall have received this Agreement, duly executed
and delivered by Harco Leasing. In addition, NFC shall have received the Series
2002-B Portfolio Certificate registered in the name of the Indenture Trustee.
(b) Certificate of Incorporation; By-laws. NFC shall have received a
true and complete copy of the certificate of incorporation of Harco Leasing,
certified as a true and correct copy thereof by the Secretary of State of the
State of Delaware, and a true and complete copy of the by-laws of Harco Leasing,
certified as a true and correct copy thereof by the Secretary or an Assistant
Secretary of Harco Leasing.
(c) Resolutions. NFC shall have received copies of duly adopted
resolutions of the Board of Directors of Harco Leasing as in effect on the
Closing Date and in form and substance reasonably satisfactory to NFC,
authorizing the execution, delivery and performance of this Agreement and the
other Basic Documents to which Harco Leasing is a party, the documents to be
delivered by Harco Leasing hereunder and the transactions contemplated hereby
and thereby, certified by the Secretary or an Assistant Secretary of Harco
Leasing.
(d) Incumbency Certificate. NFC shall have received a certificate as
to the incumbency and signature of the officers of Harco Leasing authorized to
sign this Agreement, on behalf of Harco Leasing, together with evidence of the
incumbency of such Secretary or Assistant Secretary, certified by the Secretary
or Assistant Secretary of Harco Leasing.
(e) Representations and Warranties. NFC shall have received a
certificate of a Responsible Officer of Harco Leasing to the effect that all
representations and warranties of Harco Leasing contained in Sections 3.01, 3.02
and 3.03, or in any certificate delivered in connection with this Agreement
(other than those made as of a specified date specified therein) are true and
correct and with the same force and effect as though such representations and
warranties had been made as of such date.
SECTION 4.02 Conditions Precedent to NFC's Purchase of Sold Retail
Lease Property. The obligation of NFC to purchase Sold Retail Lease Property to
be purchased hereunder on any Lease Purchase Date is subject to the satisfaction
of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of Harco Leasing hereunder with respect to such Designated Retail
Leases and in Sections 3.02 and 3.03 shall be true and correct on and as of such
Lease Purchase Date with the same effect as if then made, and Harco Leasing
shall have performed all obligations with respect to such Designated Retail
Leases to be performed by it hereunder on or prior to such date.
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(b) Nonoccurrence of Certain Events. The Funding Period shall not have
terminated.
(c) Documents to be Delivered By Harco Leasing at or prior to each
Lease Receivable Closing.
(i) Lease Purchase Date Schedule of Retail Leases. Harco Leasing
shall have delivered to NFC, the General Interest Trustee and the
Indenture Trustee the Initial LPA Assignment or Subsequent LPA
Assignment, as applicable, and the related Schedule of Retail Leases.
(ii) Other Documents. Harco Leasing shall have provided such
other documents as NFC may reasonably request.
SECTION 4.03 Conditions To Obligation of Harco Leasing. The obligation of
Harco Leasing to sell to NFC the Sold Retail Lease Property to be sold hereunder
on any Lease Purchase Date is subject to the satisfaction of the following
conditions:
(a) Representations and Warranties True. The representations and
warranties of NFC hereunder with respect to such Sold Retail Lease Property
shall be true and correct on such Lease Purchase Date with the same effect as if
then made, and NFC shall have performed all obligations with respect to such
Sold Retail Lease Property to be performed by it hereunder on or prior to such
date.
(b) Lease Receivable Purchase Price. NFC shall have paid to Harco
Leasing the related Lease Purchase Price as provided in Section 2.03 of this
Agreement.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01 Initial UCC Filings. On or prior to the Closing Date, Harco
Leasing shall record and file, at its own expense, a UCC-l financing statement
in each jurisdiction in which required by applicable law, naming NFC as
purchaser or secured party, naming as collateral the Sold Retail Lease Property
to be purchased and sold hereunder from time to time, meeting the requirements
of the laws of each such jurisdiction and in such manner as is necessary to
perfect under the UCC the sale, transfer, assignment and conveyance to NFC of
such Sold Retail Lease Property (to the extent constituting UCC Collateral) and
hereby authorizes NFC to file any such financing statements relating to all or
any part thereof. Harco Leasing shall deliver a file-stamped copy, or other
evidence satisfactory to NFC of such filing, to NFC on or prior to the Closing
Date.
SECTION 5.02 Computer Files Marked. Harco Leasing shall, at its own
expense, on or prior to each Lease Purchase Date, indicate in its computer files
that the beneficial interest in the Designated Retail Leases being allocated on
such date has been sold to NFC pursuant to this Agreement.
SECTION 5.03 Protection of Title. (a) Harco Leasing shall prepare and file
such financing statements, and cause to be prepared and filed such continuation
and other statements,
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all in such manner and in such places as may be required by law fully to perfect
and preserve the sale hereunder to NFC of the Sold Retail Lease Property, the
Series 2002-B Portfolio Interest and the Series 2002-B Portfolio Certificate,
and hereby authorizes NFC to file financing statements and amendments thereto
and continuation statements relative to all or any part thereof; provided
however that, except as otherwise provided in the Titling Trust Agreement, Harco
Leasing shall not be obligated to transfer the title to any Financed Vehicle.
Harco Leasing shall deliver (or cause to be delivered) to NFC file-stamped
copies of, or filing receipts for, any document filed as provided above, as soon
as available following such filing.
(b) Harco Leasing shall not change its name, identity or corporate
structure in any manner that would, could or might make any financing statement
or continuation statement filed by Harco Leasing in accordance with Section 5.01
or 5.03(a) seriously misleading within the meaning of Section 9-506 of the UCC,
unless it shall have given NFC at least 60 days prior written notice thereof and
shall file such financing statements or amendments as may be necessary to
continue the perfection of NFC's interest in all Sold Retail Lease Property sold
hereunder, the Series 2002-B Portfolio Interest and the Series 2002-B Portfolio
Certificate.
(c) Harco Leasing hereby represents and warrants that its jurisdiction
of formation is the State of Delaware, and the place where its principal records
pertaining to the Sold Retail Lease Property and the Series 2002-B Portfolio
Interest are kept, is located at 0000 Xxxx Xxxx Xxxx, Xxxxxxx Xxxxxxx, Xxxxxxxx
00000. Harco Leasing shall give NFC at least 60 days prior written notice of any
change in its jurisdiction of formation or place where such records are kept.
Harco Leasing shall at all times maintain each office where it keeps Retail
Leases and its jurisdiction of formation within the United States of America.
SECTION 5.04 Other Liens or Interests. Except for the conveyances hereunder
and as contemplated by the Basic Documents, Harco Leasing shall not sell,
pledge, assign or transfer any Sold Retail Lease Property, the Series 2002-B
Portfolio Interest or the Series 2002-B Portfolio Certificate to any other
Person, or grant, create, incur, assume or suffer to exist any Lien thereon
(except Permitted Liens) and Harco Leasing shall defend the right, title and
interest of NFC in, to and under all Sold Retail Lease Property sold hereunder,
the Series 2002-B Portfolio Interest and the Series 2002-B Portfolio Certificate
against all claims of third parties (other than Permitted Liens) claiming
through or under Harco Leasing.
SECTION 5.05 Indemnification. Harco Leasing shall indemnify NFC for any
liability as a result of the failure of a Designated Retail Lease transferred
hereunder to be originated in compliance with all Requirements of Law and for
any breach of any of its representations and warranties with respect thereto
contained herein unless such breach shall be cured in all material respects.
This indemnity obligation shall be in addition to any obligation that Harco
Leasing may otherwise have.
SECTION 5.06 Reserved.
SECTION 5.07 Repurchase Events. (a) Harco Leasing hereby covenants and
agrees with NFC for the benefit of NFC, NFRRC, the Issuer and the Indenture
Trustee that in the event of (i) a breach of any of Harco Leasing's
representations and warranties contained in Section 3.01 hereof with respect to
any Designated Lease Receivable, or (ii) a breach by Harco Leasing
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of Section 5.04 hereof with respect to any Designated Retail Lease, the Series
2002-B Portfolio Interest or the Series 2002-B Portfolio Certificate, which
breach has a material and adverse effect on NFC's interest in such Designated
Retail Lease, the Series 2002-B Portfolio Interest or the Series 2002-B
Portfolio Certificate, Harco Leasing will, unless such breach shall have been
cured in all material respects, as of the Second Accounting Date (or at the
option of Harco Leasing, the first Accounting Date) after Harco Leasing
discovered or received notice of such breach, repurchase such Designated Retail
Lease (or, in the case of the Series 2002-B Portfolio Interest or the Series
2002-B Portfolio Certificate, all Designated Retail Leases which are then
included in the Series 2002-B Portfolio Interest), as applicable, from NFC, by
delivering to the Indenture Trustee for deposit in the Collection Account on the
Business Day preceding the related Distribution Date immediately following such
Accounting Date an amount equal to the Warranty Payment for any such Designated
Retail Lease. It is understood and agreed that the obligation of Harco Leasing
to repurchase any Designated Retail Lease as to which a breach has occurred and
is continuing shall, if such obligation is fulfilled, constitute the sole remedy
against Harco Leasing for such breach available to NFC or any of its assignees.
(b) Upon receipt of the Warranty Payment with respect to a Designated
Retail Lease which is a Warranty Receivable, NFC shall assign, without recourse,
representation or warranty, to Harco Leasing all of NFC's right, title and
interest in, to and under (i) such Warranty Receivable and the Related Titling
Trust Assets, such assignment being an assignment outright and not for security.
Upon the assignment of such Warranty Receivable and Related Titling Trust
Assets, Harco Leasing shall own such Warranty Receivable and all such Related
Titling Trust Assets, free of any further obligations to NFC with respect
thereto. If in any proceeding it is held that Harco Leasing may not enforce a
Warranty Receivable on the ground that it is not a real party in interest or a
holder entitled to enforce the Warranty Receivable, NFC shall, at Harco
Leasing's expense, take such steps as Harco Leasing deems necessary to enforce
the Warranty Receivable, including bringing suit in the name of such Person.
SECTION 5.08 Further Assignments. Harco Leasing acknowledges that (i) NFC
shall sell, pledge, assign or transfer all of its right, title and interest in
the Designated Retail Leases, the Related Titling Trust Assets, the Series
2002-B Portfolio Interest, the Series 2002-B Portfolio Certificate and its
rights hereunder to NFRCC pursuant to the Purchase Agreement, (ii) NFRRC shall
sell, pledge, assign or transfer all of its right, title and interest in the
Designated Retail Leases, the Related Titling Trust Assets, the Series 2002-B
Portfolio Interest, the Series 2002-B Portfolio Certificate and its rights
hereunder to the Issuer pursuant to the Pooling Agreement and (iii) that the
Issuer shall in turn further pledge, assign or transfer its rights in such
Designated Retail Leases, the Related Titling Trust Assets, the Series 2002-B
Portfolio Interest, the Series 2002-B Portfolio Certificate and this Agreement
to the Indenture Trustee, on behalf of the Noteholders, pursuant to the
Indenture. Harco Leasing consents to such assignments and 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, the right to
grant or withhold any consent or waiver) of NFC directly against Harco Leasing.
Harco Leasing 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 delivered pursuant to the Basic
Documents until the earlier of (i) the Notes are repaid in full and (ii) the
Indenture shall cease to be effective pursuant to Section 4.1 of the Indenture.
Except as otherwise contemplated by the Basic Documents, the Indenture Trustee
shall have the rights of a third-party beneficiary under this Agreement. Harco
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Leasing shall deliver copies of all notices, requests, demands and other
documents to be delivered by it to NFC pursuant to the terms hereof to NFRRC,
the Issuer and the Indenture Trustee.
SECTION 5.09 Pre-Closing Collections. Within two Business Days after each
Lease Purchase Date, Harco Leasing shall transfer to the Indenture Trustee for
deposit in the Collection Account all collections (from whatever source) on or
with respect to the related Designated Retail Leases and Related Titling Trust
Assets held by Harco Leasing on such Lease Purchase Date and conveyed to NFC
pursuant to Section 2.01 or 2.02.
SECTION 5.10 Limitation on Transfer of International Purchase Obligations.
NFC acknowledges and agrees that the rights pursuant to the International
Purchase Obligations are personal to Harco Leasing, and only the proceeds of
such rights have been assigned to NFC. NFC is not and is not intended to be a
third-party beneficiary of such rights and, accordingly, such rights will not be
exercisable by, enforceable by or for the benefit of, or preserved for the
benefit of, NFC, NFRRC, the Issuer or the Indenture Trustee.
SECTION 5.11 Bankruptcy Proceeding. (a) NFC by accepting the Series 2002-B
Portfolio Certificate, hereby covenants and agrees that it shall not, prior to
the date which is one year and a day after which all obligations under each
Permitted Financing have been paid in full, acquiesce, petition or otherwise
invoke, or join any other Person in acquiescing, petitioning or otherwise
invoking, against the Titling Trust or any Special Purpose Entity, any
proceeding in court or with any governmental authority for the purpose of (i)
commencing or sustaining a case against the Titling Trust or Special Purpose
Entity under any federal or state bankruptcy, insolvency or similar law, or (ii)
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of all or any substantial part of the respective property
of the Titling Trust or Special Purpose Entity, or (iii) ordering the winding up
or liquidation of the affairs of the Titling Trust or Special Purpose Entity.
(b) Except as otherwise provided in the Titling Trust Agreement, NFC,
by accepting the Series 2002-B Portfolio Certificate hereby releases all Claims
to the General Titling Trust Assets (other than Claims to other Portfolio
Interests obtained under other purchase agreements) and to each Portfolio
Interest other than the Series 2002-B Portfolio Interest whether then or
thereafter created and, in the event that such release is not given effect, to
fully subordinate all Claims it may be deemed to have against the General
Titling Trust Assets (other than Claims to other Portfolio Interests obtained
under other purchase agreements) and each Portfolio Interest other than the
Series 2002-B Portfolio Interest whether then or thereafter created.
SECTION 5.12 Sale Treatment. Harco Leasing intends to treat the transfer
and assignment described herein as a sale for accounting and tax purposes.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.01 Amendment. This Agreement may be amended from time to time
(subject to any expressly applicable amendment provision of the Further Transfer
and Servicing
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Agreements) by a written amendment duly executed and delivered by
Harco Leasing and NFC, 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, NFC
shall furnish written notification of the substance of such amendment to each of
the Rating Agencies.
SECTION 6.02 Survival. The representations, warranties and covenants of
Harco Leasing set forth in this Agreement shall remain in full force and effect
and shall survive each Lease Purchase Closing under Section 2.03 hereof and any
related transfer under the Further Transfer and Servicing Agreements.
SECTION 6.03 Notices. All demands, notices and communications upon or to
Harco Leasing, NFC, the Servicer, the Indenture Trustee or the Rating Agencies
under this Agreement shall be delivered as specified in Appendix B to the
Pooling Agreement.
SECTION 6.04 Governing Law. All questions concerning the construction,
validity and interpretation of this Agreement, the Initial LPA Assignment and
any Subsequent LPA Assignment 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 6.05 Waivers. No failure or delay on the part of any party in
exercising any power, right or remedy under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude any other or further exercise thereof or the exercise
of any other power, right or remedy.
SECTION 6.06 Costs and Expenses. Harco Leasing agrees to pay all reasonable
out-of-pocket costs and expenses of NFC, including fees and expenses of counsel,
in connection with the perfection as against third parties of NFC's right, title
and interest in, to and under the Series 2002-B Portfolio Interest, the Series
2002-B Portfolio Certificate and all Sold Retail Lease Property a security
interest in which may be perfected under the UCC purchased hereunder and the
enforcement of any obligation of Harco Leasing hereunder.
SECTION 6.07 Headings. The various headings in this Agreement are for
purposes of reference only and shall not affect the meaning or interpretation of
any provision of this Agreement.
SECTION 6.08 Counterparts. This Agreement may be executed in two or more
counterparts, and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
SECTION 6.09 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed enforceable to the fullest extent permitted, and if not
so permitted, shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect the
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validity or enforceability of the other provisions of this Agreement or of any
Basic Documents or rights of any party thereto.
SECTION 6.10 Further Assurances. Harco Leasing and NFC agree to do and
perform, from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by the other more fully to effect
the purposes of this Agreement, including the preparation of any financing
statements or continuation statements relating to the Series 2002-B Portfolio
Interest, the Series 2002-B Portfolio Certificate and any Sold Retail Lease
Property purchased hereunder for filing under the provisions of the UCC of any
applicable jurisdiction.
SECTION 6.11 No Third-Party Beneficiaries. Except as specifically set forth
herein, 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 expressly provided in this Agreement, no other Person shall have any
right or obligation hereunder.
SECTION 6.12 Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date and year first above written.
HARCO LEASING COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
NAVISTAR FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
Exhibit A to
Lease Purchase Agreement
FORM OF INITIAL LPA ASSIGNMENT
Reference is hereby made to the Series 2002-B Portfolio Supplement to
the Titling Trust Agreement, dated as of November 19, 2002, among Harco Leasing
Company, Inc, a Delaware corporation ("Harco Leasing"), Bank One, National
Association, a national banking association, as General Interest Trustee
("General Interest Trustee") and as Series 2002-B Portfolio Trustee ("Series
2002-B Portfolio Trustee"), Bank One Delaware, Inc., a Delaware corporation, as
Delaware Trustee (the "Series 2002-B Portfolio Supplement"), pursuant to which
the General Interest Trustee has created a Portfolio Interest known as the
"Series 2002-B Portfolio Interest." Capitalized terms used herein but not
otherwise defined shall have the meaning attributed to them in the Lease
Purchase Agreement, dated as of November 19, 2002, between Navistar Financial
Corporation, a Delaware corporation ("NFC") and Harco Leasing (the "Lease
Purchase Agreement").
Pursuant to Section 10.1 of the Series 2002-B Portfolio Supplement,
Harco Leasing, as the Requisite GI Holder, hereby directs the General Interest
Trustee to designate the Retail Leases more particularly described on the
Schedule of Retail Leases attached hereto as Schedule I, along with the Related
Titling Trust Assets with respect to such Retail Leases (collectively, the
"Transferred Assets"), and account for the Transferred Assets as part of the
Series 2002-B Portfolio Interest. The Transferred Assets, together with all
other assets which constitute Series 2002-B Portfolio Assets, shall be
separately accounted for on the books and records of the Titling Trust and shall
be held in trust independently from all other Trust Assets.
For value received, in accordance with the Lease Purchase Agreement,
Harco Leasing does hereby sell, assign, transfer and otherwise convey unto NFC,
without recourse, all right, title and interest of Harco Leasing in, to and
under the Transferred Assets and all payments paid on and due under such Series
2002-B Portfolio Assets on or after the Initial Cutoff Date.
The foregoing sale does not constitute and is not intended to result
in any assumption by NFC of any obligation of the undersigned to the Obligors,
Dealers, insurers or any other Person in connection with the Transferred Assets
described above, the agreements with Dealers, any Insurance Policies or any
agreement or instrument relating to any of them.
It is the intention of Harco Leasing and NFC that the transfers and
assignments contemplated by this Initial LPA Assignment shall constitute a sale
from Harco Leasing to NFC of the property described herein and in Section 2.01
of the Lease Purchase Agreement and the beneficial interest in title to such
property shall not be part of Harco Leasing's estate in the event of the filing
of a bankruptcy petition by or against Harco Leasing under any bankruptcy law.
Harco Leasing and NFC intend to treat such transfer and assignment as a sale for
accounting and tax purposes. Notwithstanding the foregoing, in the event a court
of competent jurisdiction determines that such transfer and assignment did not
constitute such a sale or that such beneficial interest is a part of Harco
Leasing's estate, then Harco Leasing shall be deemed to have granted to NFC a
first priority perfected security interest in all of Harco Leasing's right title
and interest in, to and under the assets conveyed pursuant to this Initial LPA
Assignment, and Harco Leasing
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hereby grants such security interest. For purposes of such grant, this Initial
LPA Assignment Notice shall constitute a security agreement under the UCC.
This Initial LPA Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Lease Purchase Agreement and is to be governed by the Lease
Purchase Agreement.
* * * *
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IN WITNESS WHEREOF, the undersigned has caused this Initial LPA Assignment
to be duly executed as of November 19, 2002
HARCO LEASING COMPANY, INC.
By:
--------------------------
Name:
Title:
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Schedule I
to Initial LPA Assignment
SCHEDULE OF RETAIL LEASES
This Schedule of Retail Leases is made as of November 19, 2002 by HARCO
LEASING COMPANY, a Delaware corporation ("Harco Leasing"), as contemplated by
Section 10.01 of the Series 2002-B Portfolio Supplement to the Titling Trust
Agreement, dated as of November 19, 2002, among Harco Leasing, Bank One,
National Association, a national banking association, as General Interest
Trustee ("General Interest Trustee") and as Series 2002-B Portfolio Trustee
("Series 2002-B Portfolio Trustee"), Bank One Delaware, Inc., a Delaware
corporation, as Delaware Trustee (the "Series 2002-B Portfolio Supplement") and
by Harco Leasing and NAVISTAR FINANCIAL CORPORATION, a Delaware corporation
("NFC") as contemplated by Section 2.01 of the Lease Purchase Agreement, dated
as of November 19, 2002 ("Lease Purchase Agreement"), between Harco Leasing and
NFC. Capitalized terms used herein but not otherwise defined shall have the
meaning attributed to them in the Lease Purchase Agreement.
As contemplated by Section 10.01 of the Trust Supplement and Section 2 of
the Lease Purchase Agreement, NFC hereby directs the General Interest Trustee to
allocate the Retail Leases and Related Titling Trust Assets set forth on the
listing attached as Series 2002-B Portfolio Assets and Harco Leasing hereby
agrees to the following with respect to the Series 2002-B Portfolio Assets
purchased and sold on the date hereof:
1. A listing of such Retail Leases is attached hereto.
2. The Initial Cutoff Date with respect to such Retail Leases shall be
.
-----------------------
3. The aggregate Starting Receivables Balance of all such Retail Leases as
of the Initial Cutoff Date is $___________ (the "Lease Purchase Price").
* * * * *
Exhibit B to
Lease Purchase Agreement
FORM OF SUBSEQUENT LPA ASSIGNMENT
Reference is hereby made to the Series 2002-B Portfolio Supplement to
the Titling Trust Agreement, dated as of November 19, 2002, among Harco Leasing
Company, Inc, a Delaware corporation ("Harco Leasing"), Bank One, National
Association, a national banking association, as General Interest Trustee
("General Interest Trustee") and as Series 2002-B Portfolio Trustee ("Series
2002-B Portfolio Trustee"), Bank One Delaware, Inc., a Delaware corporation, as
Delaware Trustee (the "Series 2002-B Portfolio Supplement"), pursuant to which
the General Interest Trustee has created a Portfolio Interest known as the
"Series 2002-B Portfolio Interest." Capitalized terms used herein but not
otherwise defined shall have the meaning attributed to them in the Lease
Purchase Agreement, dated as of November 19, 2002, between Navistar Financial
Corporation, a Delaware corporation ("NFC"), and Harco Leasing (the "Lease
Purchase Agreement").
For value received, in accordance with the Lease Purchase Agreement,
Harco Leasing does hereby sell, assign, transfer and otherwise convey unto NFC,
without recourse, all right, title and interest of Harco Leasing in, to and
under the Retail Leases identified on the Schedule of Retail Leases attached
hereto as Schedule I and the Related Titling Trust Assets with respect to such
Retail Leases with a Cutoff Date of (collectively, the "Transferred
--------
Assets").
Pursuant to Section 10.1 of the Series 2002-B Portfolio Supplement,
Harco Leasing, as the Requisite GI Holder, hereby directs the General Interest
Trustee to designate, and account for the Transferred Assets as part of the
Series 2002-B Portfolio Interest. The Transferred Assets, together with all
other assets which constitute Series 2002-B Portfolio Assets, shall be
separately accounted for on the books and records of the Titling Trust and shall
be held in trust independently from all other Trust Assets.
The foregoing sale does not constitute and is not intended to result
in any assumption by NFC of any obligation of the undersigned to the Obligors,
Dealers, insurers or any other Person in connection with the Transferred Assets
described above, the agreements with Dealers, any Insurance Policies or any
agreement or instrument relating to any of them.
It is the intention of Harco Leasing and NFC that the transfers and
assignments contemplated by this Subsequent LPA Assignment shall constitute a
sale from Harco Leasing to NFC of the property described herein and in Section
2.02 of the Lease Purchase Agreement and the beneficial interest in title to
such property shall not be part of Harco Leasing's estate in the event of the
filing of a bankruptcy petition by or against Harco Leasing under any bankruptcy
law. Harco Leasing and NFC intend to treat such transfer and assignment as a
sale for accounting and tax purposes. Notwithstanding the foregoing, in the
event a court of competent jurisdiction determines that such transfer and
assignment did not constitute such a sale or that such beneficial interest is a
part of Harco Leasing's estate, then Harco Leasing shall be deemed to have
granted to NFC a first priority perfected security interest in all of Harco
Leasing's right title and interest in, to and under the assets conveyed pursuant
to this Subsequent LPA
Assignment, and Harco Leasing hereby grants such security interest. For purposes
of such grant, this Subsequent LPA Assignment Notice shall constitute a security
agreement under the UCC.
This Subsequent LPA Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Lease Purchase Agreement and is to be governed by the Lease
Purchase Agreement.
* * * *
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IN WITNESS WHEREOF, the undersigned has caused this Subsequent LPA
Assignment to be duly executed as of , 200
------ -- -
HARCO LEASING COMPANY, INC.
By:
--------------------------
Name:
Title:
-3-
Schedule I
to Subsequent LPA Assignment
SCHEDULE OF RETAIL LEASES
This Schedule of Retail Leases is made as of , 200 by HARCO
----- -- -
LEASING COMPANY, a Delaware corporation ("Harco Leasing"), as contemplated by
Section 10.01 of the Series 2002-B Portfolio Supplement to the Titling Trust
Agreement, dated as of November 19, 2002, among Harco Leasing, Bank One,
National Association, a national banking association, as General Interest
Trustee ("General Interest Trustee") and as Series 2002-B Portfolio Trustee
("Series 2002-B Portfolio Trustee"), Bank One Delaware, Inc., a Delaware
corporation, as Delaware Trustee (the "Series 2002-B Portfolio Supplement") and
by Harco Leasing and NAVISTAR FINANCIAL CORPORATION, a Delaware corporation
("Navistar Financial"), as contemplated by Section 2.02 of the Lease Purchase
Agreement, dated as of November 19, 2002 ("Lease Purchase Agreement"), between
Harco Leasing and Navistar Financial. Capitalized terms used herein but not
otherwise defined shall have the meaning attributed to them in the Lease
Purchase Agreement.
As contemplated by Section 10.01 of the Trust Supplement and Section 2 of
the Lease Purchase Agreement, Navistar Financial hereby directs the General
Interest Trustee to allocate the Retail Leases and Related Titling Trust Assets
set forth on the listing attached as Series 2002-B Portfolio Assets and Harco
Leasing hereby agrees to the following with respect to the additional Series
2002-B Portfolio Assets purchased and sold on the date hereof:
1. A listing of such Retail Leases is attached hereto.
2. The Subsequent Cutoff Date with respect to such Retail Leases shall be
.
-----------------------
3. The aggregate Starting Receivables Balance of all such Retail Leases as
of the Subsequent Cutoff Date is $__________________ (the "Lease Purchase
Price").
* * * * *
