Exhibit 99.10
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COLLATERAL AGENCY AGREEMENT
AMONG
HARCO LEASING COMPANY, INC.,
NAVISTAR LEASING COMPANY,
THE SECURED PARTIES HERETO,
NAVISTAR FINANCIAL CORPORATION,
as SERVICER
and
XXXXXX TRUST AND SAVINGS BANK,
as COLLATERAL AGENT
Dated as of April 15, 1999
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS.......................................................................... 2
1.1 Definitions.......................................................... 2
ARTICLE II
THE SECURITY INTEREST................................................................ 2
2.1 Grant of Security Interest........................................... 2
2.2 Releases and Transfers of Security Interests......................... 4
2.3 Continuing Liability of Harco........................................ 6
2.4 Rights of Secured Parties under the Security Documents............... 6
2.5 Senior Liens......................................................... 6
2.6 Additional Secured Obligations....................................... 8
2.7 General Authority of the Servicer and Each Secured Party over the
Designated Collateral................................................ 8
2.8 Additional Beneficial Holders........................................ 9
2.9 Schedule of Leases and Leased Vehicles............................... 9
2.10 Collateral Supplements; Effectiveness of Articles V and VI........... 10
ARTICLE III
REPRESENTATIONS AND WARRANTIES....................................................... 10
3.1 Title to Designated Collateral; Validity of Security Interest........ 10
3.2 Power and Authority; Due Authorization Execution and Delivery........ 11
3.3 Enforceability ...................................................... 11
3.4 No Conflict ......................................................... 11
3.5 Places of Business .................................................. 11
3.6 No Tax or ERISA Liens ............................................... 12
3.7 Location of Collateral .............................................. 12
3.8 Fair Labor Standards Act ............................................ 12
ARTICLE IV
COVENANTS............................................................................ 12
4.1 Filings and Further Assurances....................................... 12
4.2 Liens on the Designated Collateral................................... 13
4.3 Place of Business and Designated Collateral; Books and Records....... 14
4.4 Insurance............................................................ 14
4.5 Delivery of Security Documents....................................... 15
4.6 Information as to Secured Parties.................................... 15
4.7 Filing Fees; Excise Taxes............................................ 15
ARTICLE V
ACCELERATION OF SECURED OBLIGATIONS; REMEDIES........................................ 15
5.1 Notice of Default.................................................... 15
5.2 General Authority of the Collateral Agent over the Affected
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Collateral .......................................................... 16
5.3 Remedies; Rights Upon Acceleration of Secured Obligations ........... 17
5.4 Right to Initiate Judicial Proceedings .............................. 19
5.5 Right to Appoint a Receiver ......................................... 19
5.6 Instructions of the Secured Party ................................... 20
5.7 Remedies Not Exclusive .............................................. 20
5.8 Waiver and Estoppel ................................................. 21
5.9 Limitation by Law ................................................... 21
ARTICLE VI
COLLATERAL ACCOUNT; DISTRIBUTIONS ................................................... 22
6.1 The Collateral Account .............................................. 22
6.2 Control of Collateral Account ....................................... 22
6.3 Investment of Funds Deposited in Collateral Account ................. 22
6.4 Application of Moneys ............................................... 23
6.5 Collateral Agent's Calculations ..................................... 24
ARTICLE VII
THE COLLATERAL AGENT ................................................................ 24
7.1 Acceptance of Trust ................................................. 24
7.2 Exculpatory Provisions .............................................. 24
7.3 Delegation of Duties ................................................ 25
7.4 Reliance; Advice of Counsel.......................................... 26
7.5 Limitations on Duties of Collateral Agent ........................... 27
7.6 Moneys to be Held in Trust .......................................... 27
7.7 Resignation and Removal of the Collateral Agent ..................... 28
7.8 Eligibility Requirements for the Collateral Agent ................... 29
7.9 Merger or Consolidation of the Collateral Agent ..................... 29
7.10 Appointment of Co-Agent; Separate Agents ............................ 29
7.11 Treatment of Payee or Indorsee by Collateral Agent; Representatives
of Secured Parties .................................................. 31
7.12 Compensation and Indemnities ........................................ 32
7.13 Doing Business in Other Jurisdictions ............................... 33
7.14 Confidentiality ..................................................... 33
7.15 Representations and Warranties of the Collateral Agent .............. 33
7.16 Covenant of the Collateral Agent .................................... 34
ARTICLE VIII
RELEASE OF COLLATERAL 35
8.1 Permitted Releases .................................................. 35
8.2 Conditions to Termination of Security Interest and Release of All
Collateral .......................................................... 35
8.3 Procedure for Termination and Release ............................... 35
8.4 Power of Attorney ................................................... 36
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ARTICLE IX
MISCELLANEOUS ....................................................................... 36
9.1 Notices ............................................................. 36
9.2 No Waivers .......................................................... 37
9.3 Amendments, Supplements and Waivers ................................. 37
9.4 Headings ............................................................ 37
9.5 Severability ........................................................ 37
9.6 Successors and Assigns .............................................. 38
9.7 No Petition Covenant ................................................ 38
9.8 Governing Law ....................................................... 38
9.9 Counterparts ........................................................ 38
9.10 Termination ......................................................... 38
9.11 Entire Agreement .................................................... 38
9.12 Series Liability .................................................... 39
9.13 Remedies Cumulative ................................................. 39
EXHIBIT
Exhibit A Form of Notice of Permitted Financing
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COLLATERAL AGENCY AGREEMENT (this "Agreement") dated as of
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April 15, 1999, among Harco Leasing Company, Inc., a Delaware corporation
("Harco"), Navistar Leasing Company, a Delaware business trust (the "Trust"),
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each other Person from time to time joining in this Agreement in the capacity of
a Secured Party, Navistar Financial Corporation, a Delaware corporation
("Navistar Financial"), in its capacity as servicer (the "Servicer") and Xxxxxx
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Trust and Savings Bank, an Illinois banking corporation, acting as collateral
agent for the Secured Parties (in such capacity, the "Collateral Agent").
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W I T N E S S E T H :
WHEREAS, Harco wishes to induce the Harco Secured Parties to
continue to loan moneys to Harco to enable Harco to make capital contributions
to the Trust to enable the Trust to finance the purchase of Vehicles from
Dealers which are in turn leased to third parties;
WHEREAS, each Holder of a Portfolio Interest wishes to obtain
a backup security interest in the Leased Vehicles and other Trust Assets
allocated to such Portfolio Interest, and the Collateral Agent will act
hereunder with respect to the Trust Assets comprising such Portfolio Interest on
behalf of such Holder and on behalf of any related Holder Secured Party
designated in a Collateral Supplement;
WHEREAS, each Harco Secured Party, each Holder of a Portfolio
Interest and each Holder Secured Party shall constitute a Secured Party for
purposes of this Agreement;
WHEREAS, the parties hereto (other than the Trust) entered
into a Collateral Agency Agreement dated as of October 1, 1997 (the "Original
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Collateral Agency Agreement"), and the parties hereto wish to amend and restate
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the Original Collateral Agency Agreement; and
WHEREAS, the parties hereto wish to provide for a means of
insuring that the rights of each Secured Party in respect of the Trust Assets in
which such Secured Party holds an interest shall in all circumstances be prior
to the claims of any other creditors of Harco or the Trust, including any liens
that might at any time be asserted by the Internal Revenue Service, the Pension
Benefit Guaranty Corporation, a trustee in bankruptcy or any lien creditor (so
that, even if the Intended Characterization of the conveyance of a Portfolio
Interest is not respected, the Collateral Agent on behalf of the Holder of such
Portfolio Interest and any Holder Secured Party will nonetheless have a
perfected security interest in the related Portfolio Assets).
DECLARATION OF TRUST:
NOW, THEREFORE, in order to secure the rights of each Secured
Party and the payment and performance of the respective Secured Obligations
owing to each such Secured Party
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to the extent provided in the applicable Security Documents and in consideration
of the premises and the mutual agreements set forth herein, the Collateral Agent
declares that it holds the Trust Estate as collateral agent under this
Agreement.
TO HAVE AND TO HOLD the Trust Estate unto the Collateral Agent
and its successors under this Agreement and its assigns and their assigns
forever.
IN TRUST NEVERTHELESS under and subject to the conditions set
forth herein and to hold its Security Interest in the Secured Party Designated
Collateral of each Secured Party for the benefit of such Secured Party, and for
the enforcement of the payment of such Secured Party's Secured Obligations to
the extent provided in the applicable Security Document, and as security for the
performance of and compliance with the covenants and conditions of this
Agreement.
PROVIDED, HOWEVER, that if each of the conditions set forth in
Article VIII for the release of any Secured Party Designated Collateral shall be
satisfied, then this Agreement with respect to all of such Secured Party
Designated Collateral, and the estates and rights hereby granted, shall cease,
determine and be void; otherwise they shall remain and be in full force and
effect.
IT IS HEREBY FURTHER COVENANTED AND DECLARED that the Trust
Estate is to be held and applied by the Collateral Agent, subject to the further
covenants, conditions and trusts hereinafter set forth.
ARTICLE I
DEFINITIONS
1.1 Definitions. Except as otherwise expressly defined herein, all
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capitalized terms shall have the respective meanings assigned to them in that
certain Trust Agreement dated as of April 15, 1999, among Harco, The First
National Bank of Chicago, as General Interest Trustee and First Chicago Delaware
Inc., as Delaware Trustee (as amended, restated and supplemented from time to
time, the "Trust Agreement"), and all of the rules of construction as set forth
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in Part II of Appendix A to the Trust Agreement shall be applicable to this
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Agreement.
ARTICLE II
THE SECURITY INTEREST
2.1 Grant of Security Interest.
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(a) Each of Harco and the Trust (to the full extent of its
respective legal or beneficial ownership) hereby assigns, conveys, Transfers,
delivers and sets over unto the Collateral Agent for the benefit of the Harco
Secured Parties and hereby grants to the Collateral Agent for the
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benefit of each Harco Secured Party (to the extent of such Secured Party's
security interest), a security interest in and to all of the General Trust
Assets;
(b) To the extent set forth in any Collateral Supplement, each
Holder (excluding Harco with respect to the General Trust Assets and General
Trust Accounts, but including Harco with respect to any Portfolio Interest of
which Harco is the Holder) hereby assigns, conveys, Transfers, delivers and sets
over unto the Collateral Agent for the benefit of its respective Holder Secured
Parties, if any (and only to the extent any such Holder Secured Party is granted
a security interest in any Designated Collateral pursuant to any Security
Document), and hereby grants to the Collateral Agent for the benefit of each
such Secured Party (to the extent of such Secured Party's security interest), a
security interest in and to all of such Designated Collateral;
(c) The Trust, to the full extent of its ownership interest in
any Portfolio Assets, hereby assigns, conveys, Transfers, delivers and sets over
unto the Collateral Agent, for the benefit of the Holder (including Harco with
respect to any Portfolio Interest of which Harco is the Holder) of such
Portfolio Interest (and, to the extent such Holder has granted a security
interest in any Designated Collateral to a Secured Party, also for the benefit
of such Secured Party), a security interest in and to all of the Trust's rights
in such Portfolio Assets;
(d) To the extent that the Intended Characterization with
respect to a transaction intended to constitute the sale of a Portfolio Interest
to a Holder is not respected, and such transaction is characterized instead as a
loan to Harco or the Trust secured by the Portfolio Assets comprising such
Portfolio Interest or by any other related Designated Collateral, Harco hereby
assigns, conveys, Transfers, delivers and sets over unto the Collateral Agent,
for the benefit of the purported Holder of such Portfolio Interest (and, to the
extent such Holder has granted a security interest in any Designated Collateral
to a Secured Party, also for the benefit of such Secured Party), a security
interest in and to all of Harco's rights in such Portfolio Assets and in any
other Designated Collateral; and
(e) In the event that Harco (a) enters into any sale-leaseback
transaction with respect to a Portfolio Interest, (b) pledges a Portfolio
Interest as collateral for its obligations under a sale-leaseback transaction,
or (c) uses assets allocated to a Portfolio Interest in connection with a
sale-leaseback transaction or as collateral for its obligations under such a
transaction, each of Harco and the Trust hereby assigns, conveys, Transfers,
delivers and sets over unto the Collateral Agent for the benefit of the Secured
Parties in such transaction, and hereby grants to the Collateral Agent for the
benefit of such Secured Parties, a security interest in and to all of Harco's
and the Trust's respective rights in the Designated Collateral with respect to
such transaction;
in every case, whether now owned or existing or hereafter acquired or arising
and regardless of where located; provided, however, that the Collateral Agent's
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Security Interest may be released from time to time after the Effective Date
with respect to certain General Trust Assets, General Trust
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Accounts or Designated Collateral as provided in Sections 2.2, 8.1 and 8.2. The
foregoing grant of a Security Interest shall not be effective at any time prior
to the Effective Date.
The grants contained in Sections 2.1(c) and (d) of this
Agreement are intended to (i) protect the Trust's interests in the event any
Lease is deemed a lease intended for security and (ii) to enable each Holder to
obtain a backup security interest, or to cause the Trust to grant a security
interest, in the Leased Vehicles and other Trust Assets allocated to such
Holder's Trust Interest.
2.2 Releases and Transfers of Security Interests.
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(a) Permitted Financings.
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(i) Harco may from time to time Transfer its
Designated Collateral (or any portion thereof) allocated to the General
Interest or other assets from time to time allocated to the General
Interest pursuant to Permitted Financings. A Permitted Financing may
provide for Transfers of Designated Collateral by Harco from the
General Interest or a Portfolio Interest on one or more specified dates
or from time to time. In the event that such Transfers are to occur on
more than a single date, the provisions of this Section 2.2 with
respect to the Collateral Agent's Security Interests shall take effect
on the date of the Transfer with respect to any Designated Collateral
which is so Transferred (unless otherwise provided in a Notice of
Permitted Financing or a Collateral Supplement). A Notice of Permitted
Financing shall not be required in connection with a Permitted
Financing if there is a Collateral Supplement relating to such
Permitted Financing.
(ii) This Section 2.2(a)(ii) applies to the transfer or
release of the Collateral Agent's security interests in connection with
an initial Transfer of Designated Collateral into a Portfolio Interest
(an "Initial Portfolio Allocation"), or any subsequent Transfer of
Designated Collateral (a "Subsequent Portfolio Allocation," and,
together with the Initial Portfolio Allocation, each a "Portfolio
Allocation") into such Portfolio Interest. If no Collateral Supplement
is executed in connection with an Initial Portfolio Allocation, the
Collateral Agent's Primary Security Interest in any Designated
Collateral which is expressly Transferred by Harco in a Portfolio
Allocation and in all proceeds thereof ("Transferred Portfolio
Collateral") shall, on the effectiveness of each such Portfolio
Allocation and without any further action on the part of the Collateral
Agent, be released. If a Collateral Supplement is executed in
connection with a Portfolio Supplement, then on the effectiveness of
each Portfolio Allocation made pursuant to the related Portfolio
Supplement and without any further action on the part of the Collateral
Agent, the Collateral Agent shall cease to hold its Security Interest
in the applicable Transferred Portfolio Collateral for the benefit of
the Harco Secured Parties and shall thereupon hold its Security
Interest in such Transferred Portfolio Collateral exclusively for the
benefit of the applicable Secured Parties specified in such Collateral
Supplement.
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(iii) If such Transfer from the General Interest will be
effected by removing any such Designated Collateral from the Trust (a
"Removal"), then Harco shall deliver to the Collateral Agent prior to
such Removal a Notice of Permitted Financing. On the effectiveness of
any Removal of Designated Collateral from the General Interest and
without any further action on the part of the Collateral Agent, the
Collateral Agent's Security Interests shall be released.
(b) Transfers. Harco may (in addition to its rights
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under Section 2.2(a)), (x) Transfer any of its Designated Collateral
(or any portion thereof) in the ordinary course of business if such
Transfer is not prohibited by any Security Document (including any
allocation of General Trust Assets into any Portfolio Interest pursuant
to the terms of any Permitted Financing in accordance with the related
Transaction Documents) or (y) Transfer any of its Designated Collateral
(or any portion thereof) subject to any Senior Lien in a Transfer as to
which the Collateral Agent shall have waived its rights in accordance
with Section 2.5; provided, however, that the Security Interest in any
Trust Assets allocated to a Portfolio Interest shall no longer be held
by the Collateral Agent for the benefit of Harco, any Harco Secured
Parties or any other Persons but instead shall be held by the
Collateral Agent exclusively for the benefit of the applicable Secured
Parties set forth in the Collateral Supplement relating to such
Portfolio Interest. Any Holder other than Harco may transfer its
Designated Collateral (or any portion thereof) at any time, unless (i)
the Collateral Agent has previously received written instructions from
a Secured Party with respect to such Designated Collateral specifically
restricting or prohibiting any such Transfer or (ii) the applicable
Collateral Supplement otherwise provides. In connection with any such
Transfer (other than an allocation of any Designated Collateral from
one Trust Interest to another Trust Interest):
(i) the Collateral Agent's Security Interest in such
Designated Collateral (but not in the proceeds arising from such
Transfer) shall cease immediately upon such Transfer without any
further action on the part of the Collateral Agent;
(ii) if such Designated Collateral is in the possession
of the Collateral Agent, any co-agent or any of their respective
agents, the Collateral Agent, such co-agent or such agent shall deliver
such Designated Collateral to the Holder promptly following receipt of
a certificate of a Responsible Officer of the Holder requesting such
delivery and certifying that such Transfer is permitted in accordance
with this Section 2.2(b); and
(iii) the Collateral Agent, any co-agent, the Servicer
and any of their respective agents are each hereby authorized and
instructed to deliver to the Transferee of such Designated Collateral a
certificate stating that the Collateral Agent no longer has any
Security Interest therein, and such Transferee shall be entitled to
rely conclusively on such certificate for any and all purposes;
provided that the Collateral Agent, such co-agent, such
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Servicer or such agent shall have received a certificate of a Responsible
Officer of the Holder requesting such delivery and certifying that such
Transfer is permitted in accordance with this Section 2.2(b).
Unless notified to the contrary by any Secured Party, the Collateral Agent and
the Servicer may assume that any Transfer of any Designated Collateral is not
prohibited by any Security Document and may so inform any of its agents and any
co-agent.
2.3 Continuing Liability of Harco. Notwithstanding any other provision of
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this Agreement, Harco and the Trust shall remain liable under each of their
respective contracts, agreements, interests and obligations included in its
Designated Collateral, to observe and perform all the conditions and obligations
to be observed and performed by them thereunder (including any undertaking to
maintain insurance), all in accordance with and pursuant to the terms and
provisions thereof, and shall do nothing to impair the Collateral Agent's
Security Interest in any Designated Collateral in which Harco or the Trust has
an interest. None of the Collateral Agent or any other Secured Party shall have
any obligation or liability under any such contract, agreement, interest or
obligation by reason of or arising out of this Agreement or the receipt by the
Collateral Agent or any other Secured Party of any payment relating to any such
contract, agreement, interest or obligation pursuant hereto. None of the
Collateral Agent or any Secured Party shall be required or obligated in any
manner to perform or fulfill any of the obligations of Harco or the Trust
thereunder or pursuant thereto, or to make any payment, or to make any inquiry
as to the nature or the sufficiency of any payment received by it or the
sufficiency of any performance by any party under any such contract, agreement,
interest or obligation, or to present or file any Claim, or to take any action
to collect or enforce any performance or the payment of any amount thereunder to
which it may be entitled at any time.
2.4 Rights of Secured Parties under the Security Documents.
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Notwithstanding any other provision of this Agreement, the right of each Secured
Party to receive payment of each Secured Obligation held by such Secured Party
when due (whether at the stated maturity thereof, by acceleration or otherwise)
expressed in the relevant Security Document or, subject to any limitations in
such Security Document or in any other agreement to which such Secured Party is
a party or by which such Secured Party is bound, to institute suit for the
enforcement of such payment on or after such due date, and the obligation of the
applicable Holder to pay such Secured Obligation when due, shall not be impaired
or affected without the consent of such Secured Party.
2.5 Senior Liens.
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(a) If at any time Harco desires to subordinate the Collateral
Agent's Security Interest in that portion of Harco's Designated Collateral
consisting of the General Interest or the General Trust Assets (or any portion
thereof) to a Lien (a "Senior Lien") on such Collateral that is
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not prohibited by any Security Document, Harco shall deliver to the Collateral
Agent a certificate of a Responsible Officer of Harco:
(i) describing the proposed Senior Lien, the Secured Parties
holding the Liens that are to be subordinated and the Designated Collateral
(or any portion thereof) subject thereto and certifying that the creation
and senior status thereof is not prohibited by any Security Document;
(ii) attaching a certificate executed by each Secured Party that
has an interest in such Designated Collateral (or any portion thereof)
which certifies that the creation of the Senior Lien in such Designated
Collateral is not prohibited by any Security Document to which such Secured
Party is a party;
(iii) requesting the subordination of the Collateral Agent's
Security Interest in such Designated Collateral (or any portion thereof) to
such Senior Lien;
(iv) stating whether any Designated Collateral is to be
delivered by the Collateral Agent to the holder of such Senior Lien or its
agent requesting such delivery (or Transfer) thereof;
(v) attaching a copy of any document to be executed by the
Collateral Agent and delivered by the Collateral Agent to the holder of
such Senior Lien or its agent pursuant to subsection (b) of this Section;
(vi) specifying the date on which Harco desires the Collateral
Agent to deliver said documents and deliver or Transfer, as the case may
be, any Designated Collateral referred to in clause (iii) above to the
holder of such Senior Lien or its agent; and
(vii) representing to the Collateral Agent that Harco and the
Trust, to the extent of its interest therein, are the sole and exclusive
owners of such Designated Collateral to be subject to the Senior Lien.
(b) If the requirements set forth in subsection (a) above have been
met with respect to any Senior Lien, the Collateral Agent and/or the Servicer,
as applicable, will, at Harco's expense, execute and deliver to the holder of
such Senior Lien or its agent as set forth in subsection (a) above such
documents as Harco shall reasonably request (copies of which documents shall
have been attached to the certificate delivered pursuant to subsection (a) above
in accordance with clause (v) thereof):
(i) evidencing the subordination of the Collateral Agent's
Security Interest in the relevant Designated Collateral to such Senior
Lien;
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(ii) waiving any objection the Collateral Agent may otherwise be
entitled to make under this Agreement or under applicable law to the
Transfer or other disposition of the Designated Collateral subject to such
Senior Lien or any exercise by the holder of such Senior Lien of remedies
permitted by applicable law or contract, provided that the Collateral
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Agent's Security Interest shall continue in any proceeds of such Designated
Collateral so sold or disposed of, subject in all respects to the rights of
the holder of such Senior Lien; and
(iii) waiving any right of the Collateral Agent under this
Agreement or under applicable law to sell, or require the holder of such
Senior Lien to sell, such Designated Collateral prior to the satisfaction
in full of the obligations secured by such Senior Lien.
(c) If the requirements set forth in subsection (a) above have been
met with respect to any Senior Lien and the certificate delivered pursuant to
such subsection requests the delivery and/or Transfer of any Designated
Collateral, then the Collateral Agent and/or the Servicer will make appropriate
arrangements for such delivery and/or Transfer.
2.6 Additional Secured Obligations. If at any time Harco, the applicable
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Secured Party and a Holder deliver a Collateral Supplement pursuant to Section
2.2(a) which expressly states that the applicable Secured Obligations are
Additional Harco Secured Obligations, the obligations specified therein shall be
Additional Harco Secured Obligations for purposes of this Agreement from and
after the later of (i) the date of the receipt of such Collateral Supplement by
the Collateral Agent and (ii) the incurrence of such obligation.
2.7 General Authority of the Servicer and Each Secured Party over the
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Designated Collateral.
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(a) With respect to any Designated Collateral, the Collateral Agent,
the Trust and each Secured Party hereby constitutes and appoints the Servicer
and any officer or agent thereof, with full power of substitution, as its true
and lawful attorney-in-fact with full power and authority in the name of the
Collateral Agent or in its own name, from time to time in the Servicer's
discretion, so long as no Notice of Default relating to such Designated
Collateral is in effect, to take any and all appropriate action and to execute
any and all documents and instruments which may be necessary or desirable to (a)
perfect the Collateral Agent's Security Interest in the Designated Collateral
and (b) remove the Collateral Agent's Lien from the Designated Collateral,
including from the Certificate of Title of any Leased Vehicle in connection with
a Transfer under Section 2.2(b) or a release of the Collateral Agent's Security
Interests under Sections 8.1 and 8.2. The foregoing shall in no way be construed
as (i) limiting such Secured Party's rights to deal with its respective
Designated Collateral so long as no Notice of Default relating to such
Designated Collateral is in effect or (ii) permitting any other Person that is
not a Secured Party of such Designated Collateral (other than the Collateral
Agent, the Servicer and the applicable Holder) to have any rights under this
Agreement with respect
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to such Designated Collateral. The Servicer is hereby authorized by the
Collateral Agent, the Trust and each Holder to hold each Certificate of Title
constituting part of a Holder's Designated Collateral; provided, however, that
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upon the delivery of a Notice of Default, such Servicer shall deliver to the
Collateral Agent each original Lease and each Certificate of Title for any
Vehicle included in the Designated Collateral.
(b) From and after the delivery to the Servicer of any notice that it
is terminated as Servicer with respect to any Secured Party Designated
Collateral in accordance with the applicable Security Documents for such Secured
Party Designated Collateral:
(i) the Servicer shall have no authority to, and shall not,
release the Collateral Agent's Security Interest in any of such Secured
Party Designated Collateral without the prior written consent of the
applicable Secured Party; and
(ii) the applicable Secured Party shall have the right to notify
the Collateral Agent to cease to follow the instructions of the Servicer
with respect to such Secured Party Designated Collateral and to follow only
the instructions of the applicable Secured Party and its designees
(including, without limitation, any successor Servicer designated by the
applicable Secured Party).
(c) From and after the delivery of a Notice of Default to the
Collateral Agent by any Secured Party with respect to such Secured Party's
Secured Obligations, the Collateral Agent shall follow the instructions of the
Secured Party and its designees (including, without limitation, any successor
Servicer designated by the applicable Secured Party) in connection with the
exercise of remedies under such Secured Party's Security Documents.
2.8 Additional Beneficial Holders. Harco was the only Holder and Navistar
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Financial was the only Secured Party as of the Effective Date. From time to time
hereafter, additional Persons may elect to be treated as Holders and Secured
Parties under this Agreement. Such election shall be deemed to be consummated
upon the execution and delivery of a Collateral Supplement. Each Holder shall
have rights under this Agreement only with respect to the Designated Collateral
specified in or described pursuant to its Collateral Supplement.
2.9 Schedule of Leases and Leased Vehicles. The Servicer shall deliver to
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the Collateral Agent a copy of each Schedule of Leases and Leased Vehicles which
the Servicer delivers to the General Interest Trustee or any Portfolio Trustee
pursuant to Section 3.1(c) of the Servicing Agreement. At any time, the
Collateral Agent shall be entitled to rely upon the most recent Schedule of
Leases and Leased Vehicles. In the event of any conflict between the Schedules
of Leases and Leased Vehicles and any listing or schedule of Transferred
Portfolio Collateral delivered by Harco or the Servicer in connection with any
Portfolio Allocation, such listing or schedule shall govern.
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2.10 Collateral Supplements; Effectiveness of Articles V and VI.
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(a) Any Holder (including Harco), the Trust, the Secured Parties of
such Holder, Harco, the Trust and the Collateral Agent may enter into any
supplement to this Agreement (each, a "Collateral Supplement") with respect to
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the Designated Collateral described therein as shall be mutually agreeable to
such parties; provided, however, that the Collateral Agent shall not hold its
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Security Interest in any Trust Assets for the benefit of any Holder or Secured
Party described in any Collateral Supplement or Notice of Permitted Financing
unless the Collateral Agent shall have received an Opinion of Counsel to the
effect that the execution, delivery and performance by Harco and the Servicer or
any of their Affiliates of such Collateral Supplement or Notice of Permitted
Financing and any Security Documents and Transaction Documents related thereto
(i) will not conflict with, breach or result in a violation or default under the
Security Documents and Transaction Documents of any existing Holder or Secured
Party, and (ii) will not adversely affect the rights or interests of any
existing Holder or Secured Party.
(b) Notwithstanding anything to the contrary herein, the provisions of
Articles V and VI of this Agreement shall be applicable with respect to any
Designated Collateral only to the extent specified in the related Collateral
Supplement. Each of Harco and, if set forth in the Collateral Supplement
relating to any Designated Collateral, the electing Holder therein shall be
referred to herein as an "Electing Holder."
---------------
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Title to Designated Collateral; Validity of Security Interest. In
-------------------------------------------------------------
respect of all of the Collateral, Harco represents, warrants and agrees that:
(a) The Trust owns all of the Collateral free and clear of any Lien of
any Person, except for Permitted Liens.
(b) The Collateral Agent will be or is named as first lienholder on
each Certificate of Title or similar document or instrument evidencing the
Trust's ownership from time to time of any Leased Vehicle constituting part of
the Collateral. The indication of the Collateral Agent on each Certificate of
Title as first lienholder shall appear as "Xxxxxx Bank, as Agent" or other
designation which shall clearly indicate the status of the Collateral Agent as
an agent on behalf of others (unless and to the extent that a Registrar of
Titles refuses to include any such reference to the "Collateral Agent's status,
in which case it shall be sufficient to indicate "Xxxxxx Bank").
(c) The Collateral Agent's Security Interest constitutes a valid first
priority perfected security interest in all of the Collateral.
10
(d) Other than the filing of financing statements previously filed in
the states of Delaware and Illinois with respect to the Collateral Agent's
Security Interest in the Collateral, and the recording of the Collateral Agent's
Security Interest on the Certificates of Title with respect to the Leased
Vehicles included in the Collateral, no registration, recordation or filing
with, or any consent or approval of, any governmental body, agency or official
is required in connection with the execution, delivery and performance of this
Agreement or necessary for the validity or enforcement hereof or for the
perfection or enforcement of the Collateral Agent's Security Interest. Neither
the Trust nor Harco has performed or will perform any act which might prevent
the Collateral Agent from enforcing any of the terms and conditions of this
Agreement or which would limit the Collateral Agent in any such enforcement.
3.2 Power and Authority; Due Authorization Execution and Delivery. Harco
-------------------------------------------------------------
represents and warrants that the execution and delivery by it of this Agreement
and each other Basic Document to which it is a party, and the performance of its
obligations hereunder and thereunder, are within its corporate powers and
authority and have been duly authorized by all necessary corporate action on its
part.
3.3 Enforceability. Harco represents and warrants that this Agreement and
--------------
each other Basic Documents to which it is a party constitute the legal, valid
and binding obligations of Harco enforceable against Harco in accordance with
their respective terms, except as such enforcement may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws relating to or
limiting creditors' rights generally and by general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law).
3.4 No Conflict. Harco represents and warrants that the execution and
-----------
delivery by it of this Agreement and each other Basic Document to which it is a
party, and the performance of its obligations hereunder and thereunder do not
contravene or violate (i) its certificate or articles of incorporation or
by-laws, (ii) any law, rule or regulation applicable to it, (iii) any
restrictions under any agreement, contract or instrument to which it is a party
or by which it or any of its property is bound, or (iv) any order, writ,
judgment, award, injunction or decree binding on or affecting it or its
property, and do not result in the creation or imposition of any adverse claim
on its assets or the Trust Assets (except as created hereunder), and no
transaction contemplated hereby requires compliance with any bulk sales act or
similar law.
3.5 Places of Business. Harco represents and warrants that its principal
------------------
places of business and chief executive office and the offices where it keeps all
of its Books and Records are located at 0000 X. Xxxx Xxxx, Xxxxxxx Xxxxxxx, XX
00000, or such other locations of which the Collateral Agent has been notified,
and that principal places of business and chief executive office of the General
Interest Trustee and the offices where it keeps all of its Books and Records are
located at 0 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx, XX 00000, or such other
locations of which the Collateral Agent has been notified.
11
3.6 No Tax or ERISA Liens. Harco represents and warrants that no notice of
---------------------
any Lien in respect of any unpaid taxes or assessments has been filed by any
taxing authority against, or otherwise affects Harco, any of its Affiliates, the
Trust or any of the Trust Assets. No notice of a Lien under Title I or Title IV
of ERISA has been filed against, or otherwise affecting Harco, any of its
Affiliates, the Trust or any of the Trust Assets
3.7 Location of Collateral. As of the Effective Date, Harco represents and
----------------------
warrants that the location of its chief executive office is at 0000 X. Xxxx
Xxxx, Xxxxxxx Xxxxxxx, XX 00000.
3.8 Fair Labor Standards Act. Harco hereby represents that all Leased
------------------------
Vehicles included in the Designated Collateral originally produced by any
Affiliate of Harco have or will have been produced in compliance with xx.xx. 6,
7 and 15 of the Fair Labor Standards Act of 1938, as amended.
ARTICLE IV
COVENANTS
4.1 Filings and Further Assurances.
------------------------------
(a) The Servicer will, at Harco's expense, unless otherwise provided in
the applicable Portfolio Supplement, take the following steps:
(i) cause UCC financing statements and continuation statements to
be filed in all applicable jurisdictions as required to perfect the
Collateral Agent's Security Interest in all of the Collateral to the extent
that applicable law permits perfection thereof by filing under the UCC and
make available to the Collateral Agent file-stamped copies of each such UCC
financing statement or continuation statement;
(ii) cause the Certificates of Title or other evidence of
ownership of the Leased Vehicles issued by the Registrar of Titles to
reflect the Collateral Agent as the first priority lienholder, and the
indication of the Collateral Agent on each Certificate of Title as first
lienholder shall appear as "Xxxxxx Bank, as Agent" or other designation
which shall clearly indicate the status of the Collateral Agent as an agent
on behalf of others (unless and to the extent that a Registrar of Titles
refuses to include any such reference to the "Collateral Agent's status ,
in which case it shall be sufficient to indicate "Xxxxxx Bank");
(iii) as to all proceeds, cause all UCC financing statements and
continuation statements filed in accordance with clause (i) above to
include a statement or a checked box indicating that proceeds of all items
of Collateral described therein are covered; and
12
(iv) as to Insurance Policies, comply with the provisions of
Section 4.4, or will cause the Servicer to so comply.
(b) Each Electing Holder (it being understood that Harco is an electing
Holder), the Servicer and the Trust will from time to time, at Harco's expense,
execute, deliver, file and record any other statement, assignment, instrument,
document, agreement or other paper and take any other action that from time to
time may be necessary, or that the Collateral Agent or any Secured Party may
reasonably request, in order to create, preserve, perfect, confirm or validate
(to the extent contemplated hereby) the Collateral Agent's Security Interest, or
to enable the Collateral Agent to obtain the full benefits of this Agreement, or
to exercise and enforce any of its rights, powers and remedies hereunder with
respect to any of the Designated Collateral.
(c) No Electing Holder or the Trust will change its name, identity or
corporate structure in any manner unless such Electing Holder or the Trust
shall, as the case may be, have given the Collateral Agent at least 30 days'
prior written notice thereof and shall have taken all action (or made
arrangements to take such action substantially simultaneously with such change
if it is impossible to take such action in advance) necessary or reasonably
requested by the Collateral Agent to amend all financing statements and
continuation statements so that they are not seriously misleading.
(d) To the fullest extent permitted by law, each Electing Holder and
the Trust authorizes the Collateral Agent, each of the Secured Parties and the
Servicer, or any of them, on behalf of the Collateral Agent, to sign and file
financing and continuation statements and amendments thereto with respect to the
Designated Collateral without its signature thereon. Each Electing Holder and
the Trust agrees that a carbon, photographic, photostatic or other reproduction
of this Agreement or of a financing statement is sufficient as a financing
statement.
(e) If a Notice of Default is in effect relating to any Designated
Collateral, Harco and the Servicer (or, if applicable, the applicable Electing
Holder) shall, subject to Section 2.5, immediately upon its receipt thereof,
deliver or cause to be delivered to the Collateral Agent for deposit in the
applicable Holder sub-account of the Collateral Account (or, if specified in the
applicable Collateral Supplement, the applicable Secured Party or Parties) all
proceeds of such Designated Collateral.
(f) Each Electing Holder and the Trust agrees not to Transfer or
otherwise dispose of or grant any option with respect to its Designated
Collateral, except as permitted by Section 2.2.
4.2 Liens on the Designated Collateral. Each Electing Holder, the Servicer
----------------------------------
and the Trust agrees not to create or suffer to exist any Lien on its Designated
Collateral other than Permitted Liens. Without limiting the generality of the
foregoing, if any Lien on all or any part of its Designated Collateral shall be
filed pursuant to ERISA or the Internal Revenue Code, such Electing
13
Holder, the Servicer and the Trust shall cause such Lien to be released within
30 days after receiving notice of such filing.
4.3 Place of Business and Designated Collateral; Books and Records.
--------------------------------------------------------------
Each Electing Holder, the Servicer and the Trust will not change the location of
any of (a) its places of business, (b) its chief executive office or (c) the
offices or other locations where it keeps or holds any of its Designated
Collateral or any records relating thereto (except to the extent temporary
location elsewhere is needed in connection with litigation, repossession or
other collection activities) unless such Electing Holder, the Servicer and the
Trust, prior to such change, notifies the Collateral Agent and the applicable
Secured Parties of such change, makes all UCC filings required by Section 4.1(a)
and takes all other action necessary, or that the Collateral Agent or any
applicable Secured Party may reasonably request, to preserve, perfect, confirm
and protect (to the extent contemplated hereby) the Collateral Agent's Security
Interest. Each Electing Holder, the Servicer and the Trust further agrees to not
in any event change the location of any of its Collateral if such change would
cause the Collateral Agent's Security Interest in such Collateral to lapse or
cease to be perfected. Each Electing Holder, the Servicer and the Trust will
permit the Collateral Agent, or any agent designated by it, at any time and from
time to time during normal business hours, to inspect, audit, check and make
abstracts and copies of its Books and Records. The Collateral Agent agrees to
permit any Secured Party, or any agent designated by it, at any time and from
time to time upon reasonable notice during normal business hours, to inspect,
audit, check and make abstracts and copies of its Books and Records relating to
such Secured Party's Secured Party Designated Collateral.
4.4 Insurance.
---------
(a) The Servicer will cause any group insurance policy maintained
by any lessee of a Leased Vehicle and any group physical damage insurance
maintained by it or any lessee of a Leased Vehicle to name the Trust, as
additional insured, beneficiary or otherwise, as appropriate and to the extent
its interest may appear, and to name the Collateral Agent as loss payee, as
appropriate and to the extent its interest may appear.
(b) The Servicer will cause any individual insurance policy
maintained by it or any lessee of a Leased Vehicle and any individual physical
damage insurance maintained by it or any lessee of a Leased Vehicle to name the
Trust, as an additional insured, beneficiary or otherwise, as appropriate and to
the extent its interest may appear, and to name the Collateral Agent as loss
payee, as appropriate and to the extent its interest may appear.
(c) Any insurance proceeds received by the Collateral Agent in
respect of any Designated Collateral or of any insurance referred to in this
Section shall be promptly paid over or endorsed, if necessary, by the Collateral
Agent to the applicable Holder, unless at the time a Notice of Default is in
effect relating to such Holder, in which case such proceeds shall be deposited
in the applicable Holder sub-account of the Collateral Account, or, if otherwise
specified in the applicable
14
Security Documents, as set forth in such Security Documents. Any such insurance
proceeds received by a Holder may be retained by such Holder unless at the time
a Notice of Default is in effect, in which case such proceeds shall be promptly
paid over to the Collateral Agent for deposit in the applicable Holder
sub-account of the Collateral Account (or to the applicable Secured Parties, as
set forth in the applicable Security Documents).
4.5 Delivery of Security Documents. Each Electing Holder (or, for
------------------------------
Secured Parties without an Electing Holder, Harco) will deliver to the
Collateral Agent and the Servicer, promptly upon the execution thereof, a true
and complete copy of (a) each Security Document entered into after the Effective
Date to which it is a party and (b) each amendment, modification or supplement
to any Security Document.
4.6 Information as to Secured Parties. From time to time upon request
---------------------------------
of the Collateral Agent or the Servicer, each Electing Holder shall deliver a
list setting forth as of a date not more than 30 days prior to the date of such
delivery, (a) for each Security Document to which it is a party, to the extent
known, the names of the holders of Secured Obligations outstanding thereunder
and the unpaid principal amount or face amount thereof owing to each such
holder, and (b) the name and address of any duly authorized representative of
the Secured Parties holding such Secured Obligations designated in accordance
with Section 7.11(b). Each Electing Holder shall furnish to the Collateral Agent
within 30 days after the Effective Date a list setting forth the name and
address of each party to whom notices must be sent under each Security Document
in effect on the Effective Date to which it is a party and each Electing Holder
shall furnish promptly to the Collateral Agent any changes or additions to such
list of which it receives notice. The Collateral Agent shall provide a copy of
such list to any Servicer and any Secured Party requesting it.
4.7 Filing Fees; Excise Taxes. The Servicer shall pay any and all
-------------------------
payments in respect of all search, filing, recording and registration fees,
taxes, excise taxes and other similar imposts which may be payable or determined
to be payable in respect of the execution, delivery and performance of this
Agreement.
ARTICLE V
ACCELERATION OF SECURED OBLIGATIONS; REMEDIES
5.1 Notice of Default. Unless otherwise provided in a Notice of
-----------------
Permitted Financing:
(a) Upon receipt of a Notice of Default with respect to any Secured
Party Designated Collateral, the Collateral Agent shall immediately notify the
Servicer, Harco, the Trust, each Electing Holder of Affected Collateral, any
co-agent, each insurance company that has issued an Insurance Policy naming the
Collateral Agent as a named insured, loss payee, beneficiary or otherwise in
accordance with Section 4.4(a) with respect to the Affected Collateral (provided
--------
that Harco shall have notified, and hereby agrees to notify, the Collateral
Agent of the proper address,
15
telex or facsimile number for each such notice) and each Secured Party thereof.
So long as such Notice of Default is in effect, the Collateral Agent shall
exercise the rights and remedies provided in this Article with respect to the
Electing Holder and the Secured Party Designated Collateral specified in such
Notice of Default (the "Affected Collateral"). The Collateral Agent is not
-------------------
empowered to exercise any remedy hereunder unless a Notice of Default is in
effect and no remedy may be exercised against any Secured Party Designated
Collateral or any Electing Holder unless such Electing Holder and such Secured
Party Designated Collateral is identified in the Notice of Default.
(b) A Notice of Default shall become effective with respect to
the Affected Collateral upon receipt thereof by the Collateral Agent. A Notice
of Default, once effective, shall remain in effect with respect to the Affected
Collateral unless and until it is canceled as provided in Section 5.1(c).
(c) The Secured Party or Secured Parties giving a Notice of
Default shall be entitled to cancel it by delivering a written notice of
cancellation to the Collateral Agent (i) before the Collateral Agent takes any
action to exercise any remedy with respect to the Affected Collateral or (ii)
thereafter, if the Collateral Agent believes that all actions it has taken to
exercise any remedy or remedies with respect to the Affected Collateral can be
reversed without undue difficulty. The Collateral Agent shall immediately notify
the Servicer and the Electing Holder of the Affected Collateral as to the
receipt and contents of any such notice of cancellation and shall promptly
notify the Servicer, the Electing Holder of the Affected Collateral, any
co-agent, each insurance company that has received notice of the relevant Notice
of Default in accordance with Section 5.1(a), and each applicable Secured Party
as to the cancellation of any Notice of Default.
5.2 General Authority of the Collateral Agent over the Affected
-----------------------------------------------------------
Collateral. Each Electing Holder and the Trust hereby irrevocably
----------
constitutes and appoints the Collateral Agent and any officer or agent thereof,
with full power of substitution, as its true and lawful attorney-in-fact with
full power and authority in the name of such Electing Holder or in its own name,
from time to time in the Collateral Agent's discretion, so long as any Notice of
Default is in effect, to take any and all appropriate action and to execute any
and all documents and instruments which may be necessary or desirable to carry
out the terms of this Agreement and accomplish the purposes hereof and, without
limiting the generality of the foregoing, each Electing Holder hereby gives the
Collateral Agent the power and right on behalf of such Electing Holder, without
notice to or further assent by such Electing Holder, except as provided in
Section 5.3(b), to do the following:
(a) to ask for, demand, xxx for, collect, receive and give
acquittance for any and all moneys due or to become due upon, or in connection
with, the Affected Collateral;
(b) to receive, take, endorse, assign and deliver any and all
checks, notes, drafts, acceptances, documents, Certificates of Title and other
negotiable and non-negotiable instruments
16
and chattel paper taken or received by the Collateral Agent as, or in connection
with, the Affected Collateral;
(c) to commence, prosecute, defend, settle, compromise or
adjust any Claim, suit, action or proceeding with respect to, or in connection
with, the Affected Collateral;
(d) to sell, convey, assign or Transfer or otherwise deal
in or with the Affected Collateral or any part thereof or the proceeds thereof
as fully and effectively as if the Collateral Agent were the absolute owner
thereof;
(e) to extend the time of payment of any or all thereof
and to make any allowance and other adjustments with reference thereto; and
(f) to do, at its option and at the expense and for the
account of such Electing Holder, at any time or from time to time, all acts and
things which the Collateral Agent deems necessary to protect or preserve the
Affected Collateral and to realize upon the Affected Collateral.
5.3 Remedies; Rights Upon Acceleration of Secured Obligations.
---------------------------------------------------------
(a) If a Notice of Default is in effect and the related
30-day cancellation period referred to in the proviso to the first sentence of
Section 5.1(c) shall have expired:
(b) all payments received by an Electing Holder under or
in connection with the Affected Collateral shall be held by such Electing Holder
in trust for the Collateral Agent, shall be segregated from other funds of such
Electing Holder and shall, forthwith upon receipt by such Electing Holder, be
turned over to the Collateral Agent, in the same form as received by such
Electing Holder (duly endorsed to the Collateral Agent, if required) for deposit
in the Collateral Account; and
(c) any and all such payments so received by the
Collateral Agent (whether from such Electing Holder or otherwise) shall be
deposited by the Collateral Agent in the Collateral Account. Any proceeds,
whether consisting of cash, checks, notes, drafts, bills of exchange, money
orders or commercial paper of any kind whatsoever, shall be deposited or held in
the Collateral Account when received.
(d) If a Notice of Default is in effect, the Collateral
Agent may exercise, in addition to all other rights and remedies granted to it
in this Agreement, all rights and remedies of a secured party under the UCC
(whether or not in effect in the jurisdiction where such rights are exercised)
and, for the purpose of enforcing any and all rights and remedies of the
Collateral Agent under this Agreement, may (A) subject to the terms of any Lease
applicable to a Leased Vehicle, enter, with or without process of law and
without breach of the peace, any premises where any of
17
the Affected Collateral is or may be located, and without charge or liability to
the Collateral Agent seize and remove such Affected Collateral from such
premises and (B) have access to and use the applicable Electing Holder's Books
and Records relating to the Affected Collateral. Without limiting the generality
of the foregoing, each Electing Holder agrees that in any such event the
Collateral Agent, without demand of performance or other demand, advertisement
or notice of any kind (except the notice specified below of the time and place
of any public or private sale) to or upon such Electing Holder or any other
Person (all of which demands, advertisements and/or notices are hereby waived by
such Electing Holder), may forthwith withdraw all cash and investments in the
Electing Holder's sub-account of the Collateral Account derived from the
Affected Collateral and apply such cash and investments, if any, then held by it
as Affected Collateral as specified in Section 6.4, and otherwise collect,
receive, appropriate and realize upon the Affected Collateral or any part
thereof, and/or forthwith Transfer or give an option or options to purchase and
deliver the Affected Collateral (or contract to do so) or any part thereof at
public or private sale or at any office of the Collateral Agent or elsewhere in
such commercially reasonable manner as it may deem best, for cash or on credit
or for future delivery and at such price or prices as the Collateral Agent may
deem satisfactory. Upon any such Transfer the Collateral Agent shall have the
right to deliver, assign and Transfer to the purchaser thereof the Affected
Collateral so sold.
(e) Each purchaser at any such sale shall hold the
Affected Collateral so sold to it absolutely and free from any Claim or right of
whatsoever kind, including any equity or right of redemption of the applicable
Electing Holder which may be waived, and such Electing Holder, to the extent
permitted by law, hereby specifically waives all rights of redemption, stay or
appraisal which it has or may have under any law now existing or hereafter
adopted; provided, however, that any such purchaser takes the Affected
-------- -------
Collateral subject to any Lease that may be applicable to such Affected
Collateral.
(f) The Collateral Agent or any Secured Party shall have
the right upon any such public sale, and, to the extent permitted by law, upon
any such private sale or sales, to purchase the whole or any part of the
Affected Collateral so sold. Any such public sale shall be held at such time or
times within ordinary business hours and at such place or places as the
Collateral Agent may fix in the notice of such sale. The Collateral Agent shall
not be obligated to make any such sale pursuant to any such notice. The
Collateral Agent may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to time by announcement
at the time and place fixed for sale, and such sale may be made at any time or
place to which the same may be so adjourned.
(g) In the case of any sale of all or any part of the
Affected Collateral on credit or for future delivery, the Affected Collateral
sold may be retained by the Collateral Agent until the selling price is paid by
the purchaser thereof, but the Collateral Agent shall not incur any liability in
case of the failure of such purchaser to take up and pay for the Affected
Collateral so sold and, in case of any such failure, such Affected Collateral
may again be sold upon like notice.
18
(h) Each Electing Holder further agrees, subject to any
Lease relating to any Affected Collateral, at such Electing Holder's expense and
at the Collateral Agent's request, to assemble the Affected Collateral, and to
make it available to the Collateral Agent at places which the Collateral Agent
shall reasonably select, whether at Harco's premises or elsewhere. The
Collateral Agent shall deposit the net proceeds of any such collection,
recovery, receipt, appropriation, realization or sale in the Electing Holder's
sub-account of the Collateral Account.
(i) To the extent permitted by applicable law, each
Electing Holder waives all Claims, damages and demands against the Collateral
Agent or any other Secured Party arising out of the foreclosure, repossession,
retention or sale of the Affected Collateral. The Trustee shall give the
applicable Electing Holder not less than 10 days' notice (which notification
shall be deemed given when mailed, postage prepaid, addressed to such Electing
Holder at its address determined pursuant to Section 9.1) of the time and place
of any public sale or other Transfer or of the time after which a private sale
or other Transfer may take place and each Electing Holder agrees that such
notice is "reasonable notification" within the meaning of Section 9-504(3) of
the UCC; provided that no such notice shall be required in the case of the
--------
public or private sale or other Transfer of any Affected Collateral which is
perishable or threatens to decline speedily in value or is of a type customarily
sold on a recognized market. The Collateral Agent may also render any or all of
the Affected Collateral unusable at each Electing Holder's premises and may
dispose of such Affected Collateral on such premises without liability for rent
or costs.
(j) Notwithstanding any provision hereof to the contrary,
the rights and remedies of the Collateral Agent with respect to any Affected
Collateral shall be subject to the terms of the Security Documents and if the
Notice of Default so provides, the Collateral Agent shall deliver the Affected
Collateral to the Secured Party delivering the Notice of Default and the
Collateral Agent and/or the Servicer, as applicable, shall release any and all
interest in such Affected Collateral and shall no longer have any rights with
respect to such Affected Collateral pursuant to this Article V.
5.4 Right to Initiate Judicial Proceedings. If a Notice of
--------------------------------------
Default is in effect, the Collateral Agent (a) shall have the right and power to
institute and maintain such suits and proceedings as it may deem appropriate to
protect and enforce the rights vested in it by this Agreement and (b) may
proceed by suit or suits at law or in equity to enforce such rights and to
foreclose upon the Affected Collateral and to sell all or, from time to time,
any of the Affected Collateral under the judgment or decree of a court of
competent jurisdiction.
5.5 Right to Appoint a Receiver. If a Notice of Default is
---------------------------
in effect, upon the filing of a xxxx in equity or other commencement of judicial
proceedings to enforce the rights of the Collateral Agent or of the Secured
Parties under this Agreement, the Collateral Agent shall, to the extent
permitted by law, be entitled as a matter of right to the appointment of a
receiver or receivers (who may be the Collateral Agent) of the Affected
Collateral, or any part thereof, and of the profits, revenues and other income
thereof, pending such proceedings, with such powers as the court making
19
such appointment shall confer, and to the entry of an order directing that the
profits, revenues and other income of the property constituting the whole or any
part of the Affected Collateral be segregated, sequestered and impounded for the
benefit of the Collateral Agent and the Secured Party delivering the Notice of
Default, and each Electing Holder irrevocably consents to the appointment of
such receiver or receivers and to the entry of such order; provided that,
--------
notwithstanding the appointment of any receiver, the Collateral Agent shall be
entitled to retain possession and control of all cash held by or deposited with
it pursuant to this Agreement which relates to the Affected Collateral.
5.6 Instructions of the Secured Party. The Secured Party delivering
---------------------------------
the Notice of Default shall have the right, by one or more instruments in
writing executed and delivered to the Collateral Agent, to direct the time,
method and place of conducting any proceeding for any right or remedy available
to the Collateral Agent, or of exercising any trust or power conferred on the
Collateral Agent, or for the appointment of a receiver, or for the taking of any
action authorized by this Article; provided that (a) such direction shall not
--------
conflict with the provisions of law or of this Agreement, (b) such direction
shall only relate to and affect the Affected Collateral, and (c) the Collateral
Agent shall be indemnified as provided in Section 7.4(d). Nothing in this
Section shall impair the right of the Collateral Agent in its discretion to take
any action that it deems proper and that is not inconsistent with such direction
by the Secured Party delivering the Notice of Default. In the absence of such
direction, the Collateral Agent shall have no duty to take or refrain from
taking any action unless explicitly required herein (including any action which
is discretionary).
5.7 Remedies Not Exclusive.
----------------------
(a) No remedy conferred upon or reserved to the Collateral
Agent herein is intended to be exclusive of any other remedy or remedies, but
every such remedy shall be cumulative and shall be in addition to every other
remedy conferred herein or now or hereafter existing at law or in equity or by
statute.
(b) No delay or omission by the Collateral Agent to exercise
any right, remedy or power hereunder shall impair any such right, remedy or
power or shall be construed to be a waiver thereof, and every right, power and
remedy given under this Agreement to the Collateral Agent may be exercised from
time to time and as often as may be deemed expedient by the Collateral Agent.
(c) If the Collateral Agent shall have proceeded to enforce any
right, remedy or power under this Agreement and the proceeding for the
enforcement thereof shall have been discontinued or abandoned for any reason or
shall have been determined adversely to the Collateral Agent, then the
applicable Electing Holder, the Collateral Agent and the Secured Parties shall,
subject to any determination in such proceeding, severally and respectively be
restored to their former positions and rights hereunder with respect to the
Trust Estate and in all other respects, and
20
thereafter all rights, remedies and powers of the Collateral Agent shall
continue as though no such proceeding had been taken.
(d) All rights of action and of asserting Claims upon or under this
Agreement may be enforced by the Collateral Agent without the possession of any
Security Document or the production thereof in any trial or other proceeding
relative thereto, and any suit or proceeding instituted by the Collateral Agent
shall be brought in its name as Collateral Agent and any recovery of judgment
shall be held as part of the Trust Estate.
5.8 Waiver and Estoppel.
-------------------
(a) Each Electing Holder agrees, to the extent it may lawfully do so,
that it will not at any time in any manner whatsoever claim or take the benefit
or advantage of any appraisement, valuation, stay, extension, moratorium,
turnover or redemption law, or any law permitting it to direct the order in
which the Affected Collateral shall be sold, now or at any time hereafter in
force, which may delay, prevent or otherwise affect the performance or
enforcement of this Agreement and hereby waives all benefit or advantage of all
such laws and covenants that it will not hinder, delay or impede the execution
of any power granted to the Collateral Agent in this Agreement but will suffer
and permit the execution of every such power as though no such law were in
force; provided that this subsection (a) shall not be construed as a waiver of
any rights of such Electing Holder under any applicable federal bankruptcy law.
(b) Each Electing Holder, to the extent it may lawfully do so, on
behalf of itself and all who may claim through or under it, including any and
all subsequent creditors, vendees, assignees and lienors, waives and releases
all rights to demand or to have any marshaling of the Affected Collateral upon
any sale, whether made under any power of sale herein granted or pursuant to
judicial proceedings or upon any foreclosure or any enforcement of this
Agreement and consents and agrees that all the Affected Collateral may at any
such sale be offered and sold as an entirety.
(c)Each Electing Holder waives presentment, demand, protest and any
notice of any kind (except notices explicitly required hereunder) in connection
with this Agreement and any action taken by the Collateral Agent with respect to
the Affected Collateral.
5.9 Limitation by Law. All rights, remedies and powers provided by this
-----------------
Article and by Article VI may be exercised only to the extent that the exercise
thereof does not violate any applicable provision of law, and all the provisions
of this Article and Article VI are intended to be subject to all applicable
mandatory provisions of law which may be controlling and to be limited to the
extent necessary so that they will not render this Agreement invalid or
unenforceable in whole or in part.
21
ARTICLE VI
COLLATERAL ACCOUNT; DISTRIBUTIONS
6.1 The Collateral Account. On the Effective Date the Collateral Agent
----------------------
shall establish and, at all times thereafter until the trusts created by this
Agreement shall have terminated in accordance with the terms hereof, there shall
be maintained with the Collateral Agent at the office of the Collateral Agent's
corporate trust division an account which shall be entitled the "Navistar
Leasing Company Collateral Account" (the "Collateral Account"). The Collateral
------------------
Account shall be divided into various sub-accounts which shall correspond to
each Electing Holder hereunder. All moneys which are required by this Agreement
to be delivered to the Collateral Agent while a Notice of Default is in effect
or which are received by the Collateral Agent or any agent of the Collateral
Agent in respect of the Affected Collateral, whether in connection with the
exercise of the remedies provided in this Agreement or otherwise, while a Notice
of Default is in effect shall be deposited in the applicable Electing Holder's
sub-account of the Collateral Account and held by the Collateral Agent as part
of the Trust Estate and applied in accordance with the terms of this Agreement.
Upon the cancellation of any Notice of Default pursuant to Section 5.1(c), the
Collateral Agent shall cause all funds on deposit in the applicable Electing
Holder's sub-account of the Collateral Account to be paid over by the Collateral
Agent to the Electing Holder specified in the Notice of Default or as it may
direct.
6.2 Control of Collateral Account. All right, title and interest in and to
-----------------------------
the Collateral Account shall vest in the Collateral Agent, and funds on deposit
in the Collateral Account, or any sub-account thereof, shall constitute part of
the Trust Estate. The Collateral Account, or any sub-account thereof, shall be
subject to the exclusive dominion and control of the Collateral Agent.
6.3 Investment of Funds Deposited in Collateral Account. The Collateral
---------------------------------------------------
Agent shall invest and reinvest moneys on deposit in the Collateral Account, or
any sub-account thereof, at any time in the following investments (collectively,
the "Permitted Investments"):
---------------------
(a) such investments as may be specified by an Electing Holder with
respect to such Electing Holder's Designated Collateral, so long as no Notice of
Default is in effect with respect to such Electing Holder and such investments
are not prohibited under any of the Security Documents to which such Designated
Collateral is subject; and
(b) such other investments as may be permitted with respect to any
particular Designated Collateral under a Permitted Financing and specified in a
Notice of Permitted Financing.
If at any time Harco shall not have given the Collateral Agent a timely
investment directive with respect to Harco's sub-account of the Collateral
Account, the Collateral Agent shall invest and reinvest any monies in such
account in Eligible Investments. If at any time any other Electing Holder
shall not have given the Collateral Agent a timely investment directive with
respect to such Electing
22
Holder's sub-account of the Collateral Account, the Collateral Agent shall
invest and reinvest any monies in such account in securities issued by the
United States Treasury with maturities not longer than seven days. All such
investments and the interest and income received thereon and the net proceeds
realized on the sale or redemption thereof shall be held in the Collateral
Account or any appropriate sub-account as part of the Trust Estate.
6.4 Application of Moneys.
---------------------
(a) The Collateral Agent shall have the right at any time to apply
moneys of Harco held by it in the Harco sub-account of the Collateral Account to
the payment of due and unpaid Collateral Agent's fees and the reimbursement of
any Secured Party that has therefore advanced or paid any unpaid Collateral
Agent's fees. All remaining moneys held by the Collateral Agent in any other
Electing Holder's sub-account of the Collateral Account, while a Notice of
Default with respect to such Electing Holder's Designated Collateral is in
effect shall, to the extent available for distribution (it being understood that
the Collateral Agent may liquidate investments prior to maturity in order to
make a distribution pursuant to this Section), be distributed by the Collateral
Agent on dates fixed by the Collateral Agent (individually a "Distribution Date"
-----------------
and collectively "Distribution Dates") in the following order of priority:
------------------
First: to any Secured Party delivering a Notice of Default with respect
to such Electing Holder's Designated Collateral that has theretofore
advanced or paid any unpaid Collateral Agent's fees provided hereunder
constituting administrative expenses allowable under Section 503(b) of the
Bankruptcy Code, an amount equal to the amount thereof so advanced or paid
by such Secured Party;
Second: to any Secured Party delivering a Notice of Default with
respect to such Electing Holder's Designated Collateral that has
theretofore advanced or paid any unpaid Collateral Agent's fees provided
hereunder other than such administrative expenses, an amount equal to the
amount thereof so advanced or paid by such Secured Party;
Third: to the Secured Party delivering a Notice of Default, an amount
equal to the unpaid principal of, premium, if any, and interest on the
Secured Obligations then outstanding whether or not then due and payable;
provided, however, such Secured Party shall only be entitled to moneys on
-------- -------
deposit in the sub-account of the Collateral Account of the Electing Holder
of such Designated Collateral which are derived from Affected Collateral
specified in such Secured Party's Notice of Default.
Fourth: any surplus then remaining shall be paid to the Electing Holder
of such Designated Collateral or to whomsoever may be lawfully entitled to
receive the same or as a court of competent jurisdiction may direct.
23
(b) The term "unpaid" as used in clause Third of subsection (a) above,
with respect to any Secured Obligations, refers:
(c) in the absence of a bankruptcy proceeding with respect to an
Electing Holder, to all amounts of such Secured Obligations outstanding as of a
Distribution Date; and
(d) during the pendency of a bankruptcy proceeding with respect to an
Electing Holder, to all amounts which have not been disallowed by the bankruptcy
court in respect of such Secured Obligations as a basis for distribution
(including estimated amounts, if any, allowed in respect of contingent Claims),
to the extent that prior distributions have not been made in respect thereof.
6.5 Collateral Agent's Calculations. In making the determinations and
-------------------------------
allocations required by Section 6.4, the Collateral Agent may rely upon
information supplied by each Secured Party as to the amounts payable with
respect to Secured Obligations held by such Secured Party or as to the amounts
of unpaid principal outstanding under the Security Documents, premium, if any,
with respect thereto, and interest accrued thereon, as the case may be, and the
Collateral Agent shall have no liability to any of the other Secured Parties for
actions taken in reliance on such information. All distributions made by the
Collateral Agent pursuant to such Section shall be (subject to any decree of any
court of competent jurisdiction) final, and the Collateral Agent shall have no
duty to inquire as to the application by the Secured Parties of any amounts
distributed to them.
ARTICLE VII
THE COLLATERAL AGENT
7.1 Acceptance of Trust. The Collateral Agent, for itself and its
-------------------
successors, hereby accepts the trusts created by this Agreement upon the terms
and conditions hereof.
7.2 Exculpatory Provisions.
----------------------
(a) The Collateral Agent shall not be responsible in any manner
whatsoever for the correctness of any recitals, statements, representations or
warranties herein (other than Section 7.15), all of which are made solely by
Harco and, to the extent set forth in the applicable Collateral Supplement, the
applicable Holders. The Collateral Agent makes no representations as to the
value or condition of the Collateral or the Trust Estate or any part thereof, or
as to the title of the Trust or any Holder thereto or as to the security
afforded by this Agreement, or as to the validity, execution (except its own
execution), enforceability, legality or sufficiency of this Agreement or of the
Secured Obligations, and the Collateral Agent shall incur no liability or
responsibility in respect of any such matters. The Collateral Agent shall not be
responsible for insuring the Collateral or for the payment of taxes, charges or
assessments or otherwise as to the maintenance of the Collateral, except that if
24
the Collateral Agent takes possession of any Collateral, the Collateral Agent
shall preserve the Collateral in its possession.
(b) The Collateral Agent shall not be required to ascertain or inquire
as to the performance by a Holder of any of the covenants or agreements
contained herein or in the Harco Loan Agreement or any other Security Document.
Whenever it is necessary, or in the opinion of the Collateral Agent advisable,
for the Collateral Agent to ascertain the amount of Secured Obligations then
held by a Secured Party, the Collateral Agent may rely on a certificate of such
Secured Party as to such amount and, if specified in the related Collateral
Supplement, if such Secured Party shall not give such information to the
Collateral Agent, such Secured Party shall not be entitled to receive
distributions hereunder until it does so, in which case distributions shall be
calculated by the Collateral Agent based, with respect to such Secured Party, on
the list then most recently delivered by each Holder pursuant to Section 4.6 and
the amount so calculated to be distributable to such Secured Party shall be held
in trust for such Secured Party until such Secured Party has given such
information to the Collateral Agent, whereupon the amount distributable to such
Secured Party shall be recalculated on the basis of such information and
distributed to it.
(c) Notwithstanding any other provision of this Agreement, the
Collateral Agent, in its individual capacity, shall not be personally liable for
any action taken or omitted to be taken by it in accordance with this Agreement
except for its own negligence, willful misconduct or bad faith. Other than as
expressly set forth in this Agreement, nothing in this Agreement shall be
construed to require the Collateral Agent to take any action which would cause
it to become liable, in its individual capacity, to any Person.
(d) The Collateral Agent shall have the same rights under any Security
Document under which it is a party in its own right as any other Secured Party
thereunder and may exercise such rights as though it were not the Collateral
Agent hereunder, and may accept deposits from, lend money to, and generally
engage in any kind of banking or trust business with, Navistar Transportation
and any Holder and each of their respective Affiliates as if it were not the
Collateral Agent.
7.3 Delegation of Duties. The Collateral Agent may execute any of the
--------------------
trusts or powers hereof and perform any duty hereunder either directly or by or
through, agents or attorneys-in-fact, who may include officers and employees of
any Holder. The Collateral Agent shall be entitled to advice of counsel
concerning all matters pertaining to such trusts, powers and duties. The
Collateral Agent shall not be responsible for the negligence or misconduct of
the Servicer. The Collateral Agent shall not be responsible for the negligence
or misconduct of any of its agents or attorneys-in-fact unless the selection of
such agents or attorneys-in-fact was negligent or demonstrated willful
misconduct.
25
7.4 Reliance; Advice of Counsel.
---------------------------
(a) Whenever in the administration of this Agreement the
Collateral Agent shall deem it necessary or desirable that a factual matter be
proved or established in connection with the Collateral Agent taking, suffering
or omitting any action hereunder, such matter (unless other evidence in respect
thereof is herein specifically prescribed) may be deemed to be conclusively
proved or established by a certificate of a Responsible Officer of the
appropriate Person delivered to the Collateral Agent and such certificate shall
be full warrant to the Collateral Agent for any action taken, suffered or
omitted in reliance thereon, subject, however, to the provisions of Section 7.5.
(b) The Collateral Agent may consult with counsel and act in
accordance with written advice thereof, and such written advice shall be full
and complete authorization and protection in respect of any action taken or
suffered by it hereunder in accordance therewith. The Collateral Agent shall
have the right at any time to seek instructions concerning the administration of
this Agreement from any court of competent jurisdiction.
(c) The Collateral Agent may rely, and shall be fully protected
in acting, upon any resolution, statement, certificate, instrument, opinion,
report, notice, request, consent, order, bond or other paper or document which
it has no reason to believe to be other than genuine and to have been signed or
presented by the proper party or parties or, in the case of telex or facsimile
transmissions, to have been sent by the proper party or parties. Without
limiting the generality of the immediately preceding sentence, the Collateral
Agent may rely, and shall be fully protected in acting, upon the information
most recently delivered to the Collateral Agent by a Holder in accordance with
Section 4.6. In the absence of its bad faith, negligence or willful misconduct,
the Collateral Agent may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Collateral Agent and conforming to the requirements of
this Agreement.
(d) The Collateral Agent shall not be under any obligation to
exercise any of the rights or powers vested in the Collateral Agent by this
Agreement at the request or direction of any Secured Party pursuant to this
Agreement unless the Collateral Agent shall have been provided adequate security
and indemnity against the costs, expenses and liabilities which may be incurred
by it in compliance with such request or direction, including such reasonable
advances as may be requested by the Collateral Agent.
(e) Upon any application or demand by a Holder or Secured Party
to the Collateral Agent to take or permit any action under any of the provisions
of this Agreement, such Holder or Secured Party shall furnish to the Collateral
Agent a certificate of a Responsible Officer stating that all conditions
precedent, if any, provided for in this Agreement and any applicable Collateral
Supplement and Security Documents relating to the proposed action have been
complied with, and in the case of any such application or demand as to which the
furnishing of any document
26
is specifically required by any provision of this Agreement and any applicable
Collateral Supplement and Security Documents relating to such particular
application or demand, such additional document shall also be furnished.
(f) Any Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate of a Responsible Officer of a Holder or
Secured Party or representations made by a Responsible Officer of a Holder or
Secured Party in a writing filed with the Collateral Agent.
7.5 Limitations on Duties of Collateral Agent.
-----------------------------------------
(a) Unless a Notice of Default is in effect, the Collateral Agent
shall be obligated to perform such duties and only such duties as are
specifically set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Collateral Agent. If
and so long as a Notice of Default is in effect, the Collateral Agent shall
exercise the rights and powers vested in it by this Agreement, and shall not be
liable with respect to any action taken by it, or omitted to be taken by it, in
accordance with the direction of the applicable Secured Parties or directions
given to the Collateral Agent pursuant to Section 5.6.
(b) The Collateral Agent shall not be under any obligation to
take any action which is discretionary with the Collateral Agent under the
provisions hereof with respect to any Secured Party Designated Collateral except
upon, and shall be obligated to follow the reasonable instructions set forth in,
the written request of the Required Secured Parties with respect to such Secured
Party Designated Collateral.
(c) Beyond the exercise of reasonable care in the custody
thereof, the Collateral Agent shall have no duty as to any Collateral in its
possession or control or in the possession or control of any agent or bailee or
any income thereon or as to the preservation of rights against prior parties or
any other rights pertaining thereto. The Collateral Agent shall be deemed to
have exercised reasonable care in the custody of the Collateral in its
possession if such items are accorded treatment substantially equal to that
which it accords its own property, and shall not be liable or responsible for
any loss or damage thereto, or for any diminution in the value thereof, by
reason of the act or omission of any warehouseman, carrier, forwarding agency,
consignee or other agent or bailee selected by the Collateral Agent in good
faith.
7.6 Moneys to be Held in Trust. All moneys received by the Collateral
--------------------------
Agent under or pursuant to any provision of this Agreement shall be held in
trust for the purposes for which they were paid or are held.
27
7.7 Resignation and Removal of the Collateral Agent.
-----------------------------------------------
(a) The Collateral Agent may at any time, by giving written
notice to each Servicer, the Trust, the Holders and the Secured Parties, resign
and be discharged of the responsibilities hereby created, such resignation to
become effective upon (i) the appointment of a successor Collateral Agent
meeting the requirements of Section 7.8 hereof, (ii) the approval of such
successor Collateral Agent (evidenced in writing) by the Required Global Secured
Parties and (iii) the acceptance of such appointment by such successor
Collateral Agent (such acceptance not to be unreasonably withheld). If no
successor Collateral Agent shall be appointed and shall have accepted such
appointment within 60 days after the Collateral Agent gives the aforesaid notice
of resignation, the Collateral Agent shall, or any Secured Party may, apply to
any court of competent jurisdiction to appoint a successor Collateral Agent to
act until such time, if any, as a successor Collateral Agent shall have been
appointed as above provided. Any successor Collateral Agent so appointed by such
court shall immediately and without further act be superseded by any successor
Collateral Agent appointed by the Required Global Secured Parties as provided
above. The Required Global Secured Parties may at any time, upon at least ten
days' prior written notice, remove the Collateral Agent and appoint a successor
Collateral Agent, provided that such successor Collateral Agent shall have
--------
accepted such appointment. Any Collateral Agent shall be entitled to the
Collateral Agent's fees provided hereunder to the extent incurred or arising, or
relating to events occurring, before such resignation or removal.
(b) If at any time the Collateral Agent shall resign or be
removed or otherwise become incapable of acting, or if at any time a vacancy
shall occur in the office of the Collateral Agent for any other cause, a
successor Collateral Agent may be appointed by the Required Global Secured
Parties and the powers, duties, authority and title of the predecessor
Collateral Agent shall be terminated and canceled without procuring the
resignation of such predecessor Collateral Agent and without any formality
(except as may be required by applicable law) other than appointment and
designation of a successor Collateral Agent in writing duly acknowledged and
delivered to the predecessor Collateral Agent, the Trust, each Secured Party and
each Holder. Such appointment and designation shall be full evidence of the
right and authority to make the same and of all the facts therein recited, and
this Agreement shall vest in such successor Collateral Agent, without any
further act, deed or conveyance, all the estates, properties, rights, powers,
trusts, duties, authority and title of its predecessor Collateral Agent; but
such predecessor Collateral Agent shall, nevertheless, on the written request of
the Required Global Secured Parties, the Holders or the successor Collateral
Agent, execute and deliver an instrument transferring to such successor
Collateral Agent all the estates, properties, rights, powers, trusts, duties,
authority and title of such predecessor Collateral Agent hereunder and deliver
all Collateral held by it or its agents to such successor Collateral Agent.
Should any deed, conveyance or other instrument in writing from a Holder be
required to more fully and certainly vest in such successor Collateral Agent the
estates, properties, rights, powers, trusts, duties, authority and title vested
or intended to be vested in the predecessor Collateral Agent, any
28
and all such deeds, conveyances and other instruments in writing shall, on
request of such successor Collateral Agent, be executed, acknowledged and
delivered by such Holder.
7.8 Eligibility Requirements for the Collateral Agent. The Collateral
-------------------------------------------------
Agent shall at all times: (a) be a corporation or banking association organized
under the laws of the United States of America, or any one of the fifty states
of the United States, the District of Columbia or the Commonwealth of Puerto
Rico; (b) be authorized to exercise corporate trust powers and be qualified to
act as a collateral agent to hold the Designated Collateral located in those
states in which the Designated Collateral is located or have appointed a
co-agent or separate agent to hold the Designated Collateral in such states; and
(c) have a combined capital and surplus of at least $50,000,000 and be subject
to supervision or examination by federal or state authorities. If such
corporation shall publish reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining authority,
then for the purpose of this Section 7.8, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time the
Collateral Agent shall cease to be eligible in accordance with the provisions of
this Section 7.8, the Collateral Agent shall resign immediately in the manner
and with the effect specified in Section 7.7.
7.9 Merger or Consolidation of the Collateral Agent. Any Person into
-----------------------------------------------
which the Collateral Agent may be merged or converted, or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Collateral Agent shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Collateral Agent, shall be the successor of the Collateral Agent hereunder,
without the execution or filing of any instrument or any further act on the part
of the parties hereto, provided that such Person shall be eligible pursuant to
Section 7.8. If requested by any Secured Party or any Electing Holder, such
Person shall execute an agreement or assumption to perform every obligation of
the Collateral Agent under this Agreement and any applicable Collateral
Supplement.
7.10 Appointment of Co-Agent; Separate Agents.
----------------------------------------
(a) Notwithstanding any other provision of this Agreement, at any
time, if for the purpose of meeting any legal requirement of any jurisdiction in
which any of the Designated Collateral may at the time be located or if the
Collateral Agent shall be advised by counsel satisfactory to it that it is
necessary or prudent in the interest of one or more of the Secured Parties, or
the Required Secured Parties with respect to any Collateral Supplement and the
related Designated Collateral shall in writing so request, then the Collateral
Agent or any applicable Holder or Secured Party shall have the power to execute
and deliver all instruments to appoint one or more Persons approved by the
Collateral Agent and such Holder or Secured Party to act as co-agent or
co-agents of all or any of such Designated Collateral, jointly with the
Collateral Agent, or to act as separate agent or agents of all or any part of
any such Designated Collateral, and to vest in such Person, in such capacity and
for the benefit of the applicable Holder and related Secured Party and their
29
permitted assignee(s), such powers, duties, obligations, rights and trusts as
such Persons may consider necessary or desirable. If the applicable Holder shall
not have joined in such appointment within 15 days after its receipt of a
written request from the Collateral Agent to do so, or if a Notice of Default is
in effect, the Collateral Agent may act under the foregoing provisions of this
Section without the concurrence of such applicable Holder. Each Holder hereby
appoints the Collateral Agent as its agent and attorney to act for it under the
foregoing provisions of this Section in such connection in such contingency. No
co-agent or separate agent under this Agreement shall be required to meet the
terms of eligibility as a successor collateral agent pursuant to Section 7.8 and
no notice of the appointment of any co-agent or separate agent shall be required
hereunder.
(b) Each separate agent and co-agent shall, to the extent
permitted by law, be appointed and act, subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred
or imposed upon the Collateral Agent hereunder shall be conferred upon or
imposed and exercised or performed by the Collateral Agent and such
separate agent or separate agents or co-agent or co-agents jointly (it
being understood that such separate agent or co-agent is not authorized to
act separately without the Collateral Agent joining in such act), except to
the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed, the Collateral Agent shall be incompetent
or unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations shall be exercised and performed singly by
such separate agent or separate agents or co-agent or co-agents but solely
at the direction of the Collateral Agent;
(ii) no agent under this Agreement shall be personally
liable by reason of any act or omission of any other agent under this
Agreement;
(iii) except as the Required Secured Parties with respect to
any Collateral Supplement and the related Designated Collateral may
otherwise expressly direct in writing, all rights, powers, duties and
obligations conferred upon the Collateral Agent in respect of the custody
and management of moneys, marketable securities and other securities shall
be exercised solely by the Collateral Agent; and
(iv) The applicable Holder(s), Secured Party or the
Collateral Agent may at any time by an instrument in writing accept the
resignation of or remove any such separate agent or co-agent and, in that
case by an instrument in writing executed by them jointly, may appoint a
successor to such separate agent or co-agent, as the case may be, anything
contained herein to the contrary notwithstanding. If the applicable Holders
shall not have joined in the execution of any such instrument within 15
days after receiving a written request from the Collateral Agent to do so,
the Collateral Agent shall have the power to accept the resignation of or
remove any such separate agent or co-agent and to appoint a
30
successor without the concurrence of the applicable Holders; provided
--------
however that any defaulting Holder specified in a Notice of Default shall
-------
have no right to consent. Each Holder hereby appoints the Collateral Agent
its agent and attorney to act for it in such contingency. If the Collateral
Agent shall have appointed a separate agent or separate agents or co-agent
or co-agents as above provided, the Collateral Agent may at any time, by an
instrument in writing, accept the resignation of or remove any such
separate agent or co-agent and the successor to any such separate agent or
co-agent shall be appointed by the applicable Holder, Secured Party or the
Collateral Agent, or by the Collateral Agent alone pursuant to this
Section.
(c) Any notice, request or other writing given to the Collateral
Agent shall be deemed to have been given to each of the then separate agents and
co-agents, as effectively as if given to each of them. The Collateral Agent
shall deliver copies of all such notices, requests or other writings to the
Trust and to each Holder and Secured Party to which such notice, request or
writing relates. Every instrument appointing any separate agent or co-agent
shall refer to this Agreement and the conditions of this Article VII. Upon its
acceptance of the trusts conferred, each separate agent or co-agent shall be
vested with the estates or property specified in its instrument of appointment,
either jointly with Collateral Agent or separately, as may be provided therein,
subject to all the provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting the liability
of, or affording protection to, the Collateral Agent. Each such instrument shall
be filed with the Collateral Agent and a copy thereof given to each related
Holder and Secured Party.
(d) Any separate agent or co-agent may at any time appoint the
Collateral Agent as its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate agent or co-agent
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Collateral Agent, to the extent permitted by law, without the appointment of a
new or successor agent. Notwithstanding anything to the contrary in this
Agreement, the appointment of any separate agent or a co-agent shall not relieve
the Collateral Agent of its obligations and duties under this Agreement.
(e) Each separate agent or co-agent shall be entitled to the benefits
of Section 7.12 to the same extent as if such Person were the Collateral Agent
hereunder.
7.11 Treatment of Payee or Indorsee by Collateral Agent; Representatives of
----------------------------------------------------------------------
Secured Parties.
---------------
(a) The Collateral Agent may treat the registered holder or, if none,
the payee or indorsee of any promissory note or debenture referred to in any
Security Document as the absolute
31
owner thereof for all purposes and shall not be affected by any notice to the
contrary, whether such promissory note or debenture shall be past due or not.
(b) Any Person which shall be designated as the duly authorized
representative of one or more Secured Parties to act as such in connection with
any matters pertaining to this Agreement or the Collateral in which such Secured
Party has a security interest pursuant to its Security Documents shall present
to the Collateral Agent such documents, including opinions of counsel, as the
Collateral Agent may reasonably require, in order to demonstrate to the
Collateral Agent the authority of such Person to act as the representative of
such Secured Parties.
7.12 Compensation and Indemnities.
----------------------------
(a) Harco shall pay to the Collateral Agent, from time to time upon
demand, (i) reasonable compensation in the amounts agreed upon by Harco and the
Collateral Agent (which shall not be limited by any provision of law in regard
to compensation of a trustee of an express trust unless such provision may not
effectively be waived) for its services hereunder and for administering the
Trust Estate and (ii) all of the fees, costs and expenses incurred by the
Collateral Agent (including the reasonable fees and disbursements of its counsel
and such special counsel as the Collateral Agent elects to retain) (A) arising
in connection with the preparation, execution, delivery, modification, and
termination of this Agreement or the enforcement of any of the provisions hereof
or (B) incurred or required to be advanced in connection with the administration
of the Trust Estate, the Transfer of Designated Collateral hereunder and the
preservation, protection or defense of the Collateral Agent's rights hereunder
and in and to the Designated Collateral and the Trust Estate.
(b) Harco shall pay, and indemnify and hold harmless the Collateral
Agent from and against, any and all Claims arising out of or incurred in
connection with (i) any of the Trust Estate (including any Claims relating to
Leases, Leased Vehicles, consumer fraud, consumer leasing violations,
misrepresentations, deceptive and unfair trade practices, and any other Claims
arising in connection with any Lease, personal injury or personal damage Claims
arising with respect to any Leased Vehicle or any Claim with respect to any tax
arising with respect to the Trust Estate) or (ii) the Collateral Agent's
acceptance or performance of the trusts and duties contained in this Agreement;
provided, however, that the Collateral Agent shall not be indemnified or held
-------- -------
harmless as to any Claim incurred by reason of its bad faith, negligent action,
negligent failure to act or its own willful misconduct or misfeasance or similar
acts or omissions, incurred by reason of the inaccuracy of the Collateral
Agent's representations and warranties pursuant to Section 7.15 or incurred by
reason of the Collateral Agent's breach of its covenant set forth in Section
7.16. As security for such payment and for the payment of all other Collateral
Agent's fees, the Collateral Agent shall have a Lien upon all the Designated
Collateral; provided that the foregoing is not intended to relieve Harco of its
--------
obligation to pay the Collateral Agent's fees.
32
(c) In any suit, proceeding or action brought by the Collateral Agent
or any Servicer under or with respect to the Designated Collateral for any sum
owing hereunder or to enforce any provision hereof, Harco will save, indemnify
and hold harmless the Collateral Agent, its agents and employees and the holders
of Secured Obligations from and against all expense, loss or damage suffered by
reason of any defense, setoff, counterclaim, recoupment or reduction of
liability whatsoever of the obligor thereunder, arising out of a breach by Harco
of any obligation thereunder or arising out of any other agreement, indebtedness
or liability at any time owing to or in favor of such obligor or its successors
from Harco, and all such obligations of Harco shall be and remain enforceable
against and only against Harco and shall not be enforceable against the
Collateral Agent, its agents or employees or any Secured Party.
(d) The compensation and indemnities described in this Section 7.12
shall survive the resignation or termination of the Collateral Agent or the
termination of this Agreement.
7.13 Doing Business in Other Jurisdictions. Notwithstanding anything
-------------------------------------
contained herein to the contrary, the Collateral Agent shall not be required to
take any action in any jurisdiction other than in its States of Qualification if
the taking of such action may: (a) require the consent, approval, authorization
or order of or the giving of notice to, or the registration with or the taking
of any other action in respect of, any state or other governmental authority or
agency of any jurisdiction other than a State of Qualification; (b) result in
any fee, tax or other governmental charge under the laws of any jurisdiction or
any political subdivisions thereof (other than a State of Qualification) in
existence on the date hereof becoming payable by the Collateral Agent; or (c)
subject the Collateral Agent to personal jurisdiction in any jurisdiction other
than a State of Qualification for causes of action arising from acts unrelated
to the consummation of the transactions by the Collateral Agent, as the case may
be, contemplated hereby. In the event that the Collateral Agent does not take
any action because such action may result in the consequences described in the
preceding sentence, the Collateral Agent will appoint a co-agent or separate
agent pursuant to Section 7.10 to proceed with such action.
7.14 Confidentiality. All information obtained by the Collateral Agent as a
---------------
result of the exercise of its duties hereunder, whether upon the exercise of its
rights under this Agreement or otherwise, shall be maintained by the Collateral
Agent in confidence and shall not be disclosed to any other Person other than
the Holders (but solely to the extent relating to their interest in the Trust),
the Secured Parties (but solely to the extent relating to their Secured
Obligation) or any Servicer, and each of their employees, attorneys or agents,
unless such disclosure is permitted by this Agreement or any other agreement
contemplated hereby, is required by any applicable law or regulation or pursuant
to subpoena (and the Collateral Agent has provided notice thereof to the Holders
and the Secured Parties), or such information is already otherwise publicly
available.
7.15 Representations and Warranties of the Collateral Agent. The Collateral
------------------------------------------------------
Agent hereby makes the following representations and warranties as of the date
hereof:
33
(a) The Collateral Agent is a banking corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization; the eligibility requirements set forth in Section 7.8 are
satisfied with respect to it.
(b) It has full power, authority and legal right to execute, deliver
and perform its obligations under this Agreement, and has taken all necessary
action to authorize the execution, delivery and performance by it of this
Agreement.
(c) The execution, delivery and performance by it of this Agreement
(i) shall not violate any provision of any law or regulation governing the
banking and trust powers of it or any order, writ, judgment or decree of any
court, arbitrator or governmental authority applicable to it or any of its
assets, (ii) shall not violate any provision of the corporate charter or by-laws
of it, and (iii) shall not violate any provision of, or constitute, with or
without notice or lapse of time, a default under, or result in the creation or
imposition of any lien on the Collateral pursuant to the provisions of any
mortgage, indenture, contract, agreement or other undertaking to which it is a
party, which violation, default or lien could reasonably be expected to have a
materially adverse effect on its performance or ability to perform its duties as
Collateral Agent under this Agreement or on the transactions contemplated in
this Agreement.
(d) The execution, delivery and performance by the Collateral Agent
of this Agreement shall not require the authorization, consent or approval of,
the giving of notice to, the filing or registration with, or the taking of any
other action in respect of, any governmental authority or agency regulating the
corporate trust activities of the Collateral Agent.
(e) This Agreement has been duly executed and delivered by the
Collateral Agent and constitutes the legal, valid and binding agreement of the
Collateral Agent, enforceable in accordance with its terms, except as
enforceability may be limited by 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.
(f) The offices where the Collateral Agent keeps its records
concerning the transactions contemplated hereby are located at: 000 Xxxx Xxxxxx
Xxxxxx and 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Indenture
Trust Division.
7.16 Covenant of the Collateral Agent. The Collateral Agent, in its
--------------------------------
individual capacity, agrees that it will, at its own cost and expense (but
without any right of indemnity hereunder with respect to such cost or expense),
promptly take such action as may be necessary duly to discharge and satisfy in
full all liens or encumbrances on any part of the Collateral in its individual
capacity which result from Claims against the Collateral Agent as a debtor in
its individual capacity unrelated
34
to its duties as Collateral Agent or any other transaction pursuant to this
Agreement or any document included in the Collateral.
ARTICLE VIII
RELEASE OF COLLATERAL
8.1 Permitted Releases. The Collateral Agent may, at any time and from
------------------
time to time prior to the termination of the Collateral Agent's Security
Interest and release of all Collateral pursuant to Sections 8.2 and 8.3, release
any portion of the Designated Collateral with the prior consent of the Secured
Parties for whom the Collateral Agent holds its Security Interest therein
pursuant to their respective Security Documents. Upon any release in accordance
with this Section 8.1, the Collateral Agent will promptly, at the written
request of the Holder of the Designated Collateral being released (acknowledged
and approved in writing by the Required Secured Parties with respect to such
Designated Collateral) and at Harco's expense, execute and deliver to such
Holder and such Secured Parties such documents as such Holder shall reasonably
request to evidence such release.
8.2 Conditions to Termination of Security Interest and Release of All
-----------------------------------------------------------------
Collateral. The Collateral Agent's Security Interest shall terminate and all
----------
right, title and interest of the Collateral Agent in and to the applicable
Secured Party Designated Collateral shall terminate as provided in Section 8.3
if:
(a) no default, or event or condition which with notice or lapse
of time or both would constitute a default, exists or, immediately after such
termination, will exist with respect to any of the Secured Obligations relating
to such Secured Party; and
(b) all principal of and interest on the Secured Obligations
relating to such Holder and all other Secured Obligations under the Security
Documents relating to such Secured Party shall have been paid in full or shall
have been extended (or refinanced) on an unsecured basis.
8.3 Procedure for Termination and Release.
-------------------------------------
(a) Upon satisfaction of the conditions set forth in Section 8.2
necessary for terminating the Collateral Agent's Security Interest in any
Secured Party Designated Collateral, the appropriate Holder may request the
termination of such security interest and the release of its Secured Party
Designated Collateral by delivering to the Collateral Agent and the applicable
Secured Party written notice (a "Collateral Release Notice"), signed by a
-------------------------
Responsible Officer of such Holder. Such Collateral Release Notice shall certify
that the conditions for release set forth in Section 8.2 have been satisfied. If
the conditions set forth in Section 8.2 for the release of the applicable
Secured Party Designated Collateral shall have been satisfied, the applicable
Secured Party shall so notify the
35
Collateral Agent in writing within ten Business Days after the Secured Party's
receipt of the Collateral Release notice and, after the Collateral Agent's
receipt of the Secured Party's notification, the Collateral Agent shall take the
actions set forth in paragraph (b) below.
(b) Upon the termination of the Collateral Agent's Security Interest
and the release of the related Secured Party Designated Collateral, the
Collateral Agent will promptly, at Harco's written request and expense, (i)
execute and deliver to such Holder such documents as such Holder or its assigns
shall reasonably request to evidence the termination of such security interest
or the release of the related Designated Collateral and (ii) deliver or cause to
be delivered to such Holder, all property of such Holder then held by the
Collateral Agent, any co-agent or any of their respective agents, including the
Servicer. Any release of Designated Collateral shall be without prejudice to the
rights of the Collateral Agent, any successor Collateral Agent, any co-agent or
separate agent to charge and be reimbursed for any expenditures which it may
thereafter incur in connection herewith.
8.4 Power of Attorney. In order to facilitate the disposition of Leased
-----------------
Vehicles, the Collateral Agent shall grant to the Servicer the power of attorney
described in Section 3.5 of the Servicing Agreement. Such Power of Attorney
shall be deemed to be revoked with respect to any Secured Party Designated
Collateral, and shall not be used by the Servicer with respect to such Secured
Party Designated Collateral after any notice to the Servicer of the removal of
the Servicer with respect to such Secured Party Designated Collateral in
accordance with the applicable Security Documents.
ARTICLE IX
MISCELLANEOUS
9.1 Notices. Any party hereto that delivers a notice, request or other
-------
writing hereunder to the Trust, any Holder or any Secured Party shall also
deliver copies of such notice, request or other writing to each Holder and
Secured Party to which such notice, request or writing directly relates. Unless
otherwise specified in this Agreement, all notices, requests, demands, consents,
waivers or other communications given to any Servicer, any Holder, the
Collateral Agent or any Secured Party shall be in writing, personally delivered,
sent by facsimile with a copy to follow via first class mail or mailed by
certified mail-return receipt requested, and shall be deemed to have been duly
given upon receipt (i) if to any Holder, to such party at its address, telex or
telecopy number specified on the signature pages hereof or in a Collateral
Supplement or any other address, telex or telecopy number which such party shall
have specified for the purpose of communications hereunder, by notice in writing
to the party sending such communication, (ii) if to any Secured Party, to it at
its address, telex or telecopy number specified from time to time by it or in
the list provided by the relevant Holder to the Collateral Agent pursuant to
Section 4.6, (iii) if to the Collateral Agent, at its corporate trust office
specified on the acknowledgment page attached hereto (iv) if to the Servicer, at
its address specified on the signature page attached hereto or (v) if to the
Trust, at the Corporate Trust Office (with a copy to the Servicer).
36
9.2 No Waivers. No failure on the part of the Collateral Agent, any
----------
co-agent, any separate agent or any Secured Party to exercise, no course of
dealing with respect to, and no delay in exercising, any right, power or
privilege under this Agreement shall operate as a waiver thereof nor shall any
single or partial exercise of any such right, power or privilege preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege.
9.3 Amendments, Supplements and Waivers.
-----------------------------------
(a) Except as set forth in Section 9.3(b), the Collateral Agent, the
Trust and the Holders may not enter into written agreements supplemental hereto
for the purpose of adding any provisions to this Agreement, waiving any
provisions hereof or changing in any manner the rights of the Collateral Agent,
any Secured Parties or any Holders hereunder without the prior written consent
of such Secured Parties and Holders, which consent shall not be unreasonably
withheld or delayed. Any such supplemental agreement shall be binding upon the
Holders, the Secured Parties, the Collateral Agent and their respective
successors or assigns.
(b) Without the consent of any Secured Party, the Collateral Agent,
the Trust, Harco and any Holder may enter into one or more Collateral
Supplements or other agreements supplemental hereto, in form satisfactory to the
Collateral Agent, (i) to add to the covenants of Harco, the Trust or such Holder
for the benefit of the applicable Secured Parties, (ii) to surrender any right
or power herein conferred upon Harco, the Trust or such Holder, (iii) to
mortgage or pledge to the Collateral Agent, or grant a security interest in
favor of the Collateral Agent in, any property or assets as additional security
for the Secured Obligations, or (iv) to cure any ambiguity, to correct or
supplement any provision herein which may be defective or inconsistent with any
other provision herein, or to add any other provision with respect to matters or
questions arising hereunder which shall not be inconsistent with any provision
hereof; provided that any such action contemplated by this paragraph (b) shall
--------
not adversely affect the interests of any Secured Parties.
(c) Each Collateral Supplement entered into prior to April 15, 1999
shall constitute a valid and effective supplement to this amended and restated
Collateral Agency Agreement, and shall be subject to this Collateral Agency
Agreement as amended and restated as of April 15, 1999.
9.4 Headings. The headings of the various Articles and Sections herein are
--------
for purposes of reference only and shall not affect the meaning or
interpretation of any provision hereof.
9.5 Severability. If one or more of the covenants, agreements, provisions
------------
or terms of this Agreement shall be for any reason whatsoever 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
37
of this Agreement and shall in no way affect the validity or enforceability of
the other provisions of this Agreement.
9.6 Successors and Assigns. Subject to Section 2.10(b), all covenants and
----------------------
agreements contained herein shall be binding upon, and inure to the benefit of,
each of the parties hereto and shall inure to the benefit of each of the Secured
Parties and their respective successors and assigns and nothing herein is
intended or shall be construed to give any other Person any right, remedy or
Claim under, to or in respect of this Agreement or any Designated Collateral.
9.7 No Petition Covenant. Notwithstanding any prior termination of this
--------------------
Agreement, the Collateral Agent and each Secured Party 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 Trust or any Special
Purpose Entity, any proceeding in court or with any governmental authority for
the purpose of (a) commencing or sustaining a case against such Trust or Special
Purpose Entity under any federal or state bankruptcy, insolvency or similar law,
or (b) appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of all or any substantial part of the
respective property of such Trust or Special Purpose Entity, or (c) ordering the
winding up or liquidation of the affairs of such Trust or Special Purpose
Entity. This Section 9.7 shall survive the termination of this Agreement or the
resignation or any removal of the Collateral Agent under this Agreement.
9.8 Governing Law. This Agreement shall be construed in accordance with
-------------
the internal laws of the State of Illinois, except as otherwise required by
mandatory provisions of law without reference to its conflict of law provisions,
and the obligations, rights and remedies of the parties hereunder shall be
determined in accordance with such laws.
9.9 Counterparts. This Agreement may be executed by the parties hereto in
------------
separate counterparts (and by different parties on separate counterparts), each
of which when so executed and delivered shall be an original, but all of which
taken together shall constitute one and the same instrument.
9.10 Termination. This Agreement shall terminate when the Security Interest
-----------
granted hereunder has terminated and all the Designated Collateral has been
released; provided that the provisions of Sections 4.7, 7.12 and 9.7 shall not
--------
be affected by any such termination.
9.11 Entire Agreement. This Agreement and the other Basic Documents
----------------
constitute the entire agreement between the parties with respect to the subject
matter hereof and shall not be rescinded, amended or modified in any manner
except as expressly provided pursuant to Section 9.3.
38
9.12 Series Liability. Each Holder and Secured Party agrees (such
----------------
agreement to be evidenced by the acceptance by such Holder or Secured Party of
the benefits of the applicable Trust Interest or Security Interest) that: (a)
any respective Trust Interest in which such Holder holds a beneficial interest
or in the assets allocated to such trust interest to which such Secured Party
holds (through the Collateral Agent) a security interest is a separate series of
the Trust as provided in Section 3806(b)(2) of Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (S) 3801 et seq., (b) the debts, liabilities,
------- ------
obligations and expenses incurred, contracted for or otherwise existing with
respect to the assets allocated to such Trust Interest shall be enforceable
against such Trust Interest and the assets allocated to such Trust Interest
only, and not against any other assets of Trust Interests of the Trust, (c)
except to the extent required by law or specified in the Trust Agreement, assets
of the Trust allocated to any other Trust Interest shall not be subject to the
claims, debts, liabilities, expenses or obligations arising from or with respect
to such Trust Interest or the assets allocated thereto in respect of such claim,
(d) no creditor or holder of a claim relating to assets allocated to any Trust
Interest shall be entitled to maintain any action against or recover any assets
allocated to any other Trust Interest, and (e) any purchaser, assignee or
pledgee of an interest in any Trust Interest or the Certificate relating
thereto, and each Secured Party must, prior to or contemporaneously with such
purchase, the grant of any such assignment, pledge or security interest or the
execution and delivery of any Collateral Supplement, (i) give to the Trust a
non-petition covenant substantially similar to that set forth in Section 9.7,
and (ii) execute an agreement for the benefit of each holder, assignee or
pledgee from time to time of the other Trust Interests, to release all claims to
the assets of the Trust allocated to the other Trust Interests and in the event
that such release is not given effect, to fully subordinate all claims it may be
deemed to have against the assets of the Trust allocated to such Trust
Interests.
9.13 Remedies Cumulative. The remedies provided in this Agreement shall be
-------------------
cumulative and shall not preclude the assertion or exercise of any other rights
or remedies available at law, in equity or otherwise.
* * * * *
39
IN WITNESS WHEREOF, the parties hereto have caused this Collateral
Agency Agreement to be duly executed by their respective authorized officers as
of the day and year first written above.
HARCO LEASING COMPANY, INC.
By: /s/ R. Xxxxx Xxxx
--------------------------------------------
Title: Vice President and Treasurer
0000 Xxxx Xxxx Xxxx
Xxxxxxx Xxxxxxx, XX 00000
Telecopy number: (000) 000-0000
Attention: Treasurer
Copies of notices should be sent to:
Harco Leasing Company
0000 Xxxx Xxxx Xxxx
Xxxxxxx Xxxxxxx, XX 00000
Telecopy number: (000) 000-0000
Attention: General Counsel
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Title: Assistant Vice President
000 Xxxx Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy number: (000) 000-0000
Attention: Indenture Trust Administration
NAVISTAR LEASING COMPANY
The First National Bank of Chicago,
as General Interest Trustee
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Authorized Officer
Title: First Vice President
Xxx Xxxxx Xxxxxxxx Xxxxx,
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services
Division
Agreed and Accepted:
NAVISTAR FINANCIAL CORPORATION,
as Servicer and Harco Secured Party
By: /s/ R. Xxxxx Xxxx
--------------------------
R. Xxxxx Xxxx
Vice President
0000 Xxxx Xxxx Xxxx
Xxxxxxx Xxxxxxx, XX 00000
Telecopy Number: (000) 000-0000
Copies of notices should also be sent to:
Navistar Financial Corporation
0000 Xxxx Xxxx Xxxx
Xxxxxxx Xxxxxxx, XX 00000
Telecopy Number: (000) 000-0000
Attention: General Counsel
EXHIBIT A
TO
Collateral Agency Agreement
---------------------------
FORM OF NOTICE OF PERMITTED FINANCING
Xxxxxx Trust and Savings Bank,
as Collateral Agent
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Re: Notice of Permitted Financing
Ladies and Gentlemen:
This Notice of Permitted Financing is being delivered to you pursuant
to that certain Collateral Agency Agreement dated as of October 1, 1997 and as
amended and restated as of April 15, 1999 (the "Collateral Agency Agreement"),
---------------------------
by and among Harco Leasing Company, Inc., the other Holders (as defined
therein), Navistar Financial Corporation, Navistar Leasing Company and Xxxxxx
Trust and Savings Bank, as Collateral Agent. Capitalized terms used herein and
not otherwise defined shall have their respective meanings ascribed to such
terms in the Collateral Agency Agreement.
The undersigned certify to you as follows: [Include only pertinent
paragraphs]
(1) ____________________, a Holder under the Collateral Agency
Agreement, has sold, assigned or conveyed its rights with respect to the
Collateral listed on Exhibit A attached hereto (the "Assigned Designated
--------- -------------------
Collateral") to ________ (the "Purchaser"). [Except as provided in paragraph __
---------- ---------
below,] ______________ (the "Transferor") hereby agrees that it no longer shall
----------
be deemed the "Holder" with respect to the Designated Collateral specified on
Exhibit A attached hereto.
---------
(2) _____________________, a Secured Party under the Collateral
Agency Agreement which holds a security interest in such Assigned Designated
Collateral has sold, assigned or conveyed its rights as a secured party under
its Security Document and under the Collateral Agency Agreement with respect to
such Assigned Designated Collateral to _____________ (the "Purchaser").
---------
C-1
(3) [Alternative #1: Purchaser elects to be treated as a Secured
Party under the Collateral Agency Agreement with respect to the Assigned
Designated Collateral (the "Secured Party Designated Collateral"). The parties
-----------------------------------
hereto acknowledge that the document pursuant to which the sale, conveyance or
assignment was consummated shall be deemed a Security Document for purposes of
the Collateral Agency Agreement and that the transaction shall be deemed a
Permitted Financing for purposes of the Collateral Agency Agreement.]
(4) [Alternative #2: Purchaser desires to be treated as a Holder
under the Collateral Agency Agreement with respect to the Assigned Designated
Collateral. Purchaser certifies that it has granted a security interest in the
Assigned Designated Collateral to ________________ ("Purchaser's Secured
-------------------
Party"). Purchaser's Secured Party by execution below simultaneously herewith
-----
elects to be a Secured Party under the Collateral Agency Agreement with respect
to the Assigned Designated Collateral (the "Secured Party Designated
------------------------
Collateral"). The parties hereto acknowledge that the [describe security
----------
documents] shall be deemed a Security Document for purposes of the Collateral
Agency Agreement.]
(5) [Alternative #3: It is the intention of the Transferor and the
Purchaser that the sale, conveyance and assignment of the Assigned Designated
Collateral constitute a sale from Transferor to Purchaser. Transferor and
Purchaser intend to treat such sale, conveyance and assignment as a sale for
accounting and tax purposes. Notwithstanding the foregoing, in the event a court
of competent jurisdiction determines that such sale, conveyance and assignment
did not constitute a sale, Transferor shall be deemed to have granted Purchaser
a first priority security interest in all of Transferor's right, title and
interest in, to and under the Assigned Designated Collateral. In the event of a
recharacterization of the transaction by a court, the Transferor shall continue
to be deemed the Holder of such Assigned Designated Collateral and Purchaser
shall be deemed a Secured Party.]
(6) [Alternative #4: Purchaser hereby requests that the Assigned
Designated Collateral be released from the Collateral Agent's Security Interest
in accordance with Section 2.2 of the Collateral Agency Agreement.]
(7) Set forth below each parties signature is the address to which
notices under the Collateral Agency Agreement should be sent until you are
notified otherwise.
(8) Pursuant to Section 6.3 of the Collateral Agency Agreement,
Exhibit B sets forth additional Permitted Investments.
---------
* * * * *
C-2
[NAME OF HOLDER]
By: ________________________
Name:
Title:
Address:
[NAME OF SECURED PARTY]
By: ________________________
Name:
Title:
Address:
[NAME OF PURCHASER]
By: ________________________
Name:
Title:
Address:
[NAME OF PURCHASER'S SECURED
PARTY]
By: ________________________
Name:
Title:
Address:
Acknowledged and Agreed:
XXXXXX TRUST AND SAVINGS BANK
By: ______________________
Name:
Title:
A-1
