Exhibit 99.12
LEASE PURCHASE AGREEMENT
BETWEEN
HARCO LEASING COMPANY, INC.
AND
NAVISTAR FINANCIAL CORPORATION
DATED AS OF , 200
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS........................................................................................1
SECTION 1.01. Certain Defined Terms...........................................................1
ARTICLE II
PURCHASE AND SALE OF SERIES 200 PORTFOLIO INTEREST AND
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LEASES; SECURITY INTEREST IN LEASED VEHICLES.......................................................2
SECTION 2.01. Initial Transfer................................................................2
SECTION 2.02. Subsequent Transfers............................................................2
SECTION 2.03. The Closings....................................................................2
ARTICLE III
REPRESENTATIONS AND WARRANTIES.....................................................................3
SECTION 3.01. Representations and Warranties Regarding Lease Receivables......................3
SECTION 3.02. Representations and Warranties Regarding Harco Leasing..........................4
SECTION 3.03. Representations and Warranties Regarding Titling Trust..........................6
SECTION 3.04. Representations and Warranties of NFC...........................................8
ARTICLE IV
CONDITIONS.........................................................................................9
SECTION 4.01. Conditions Precedent to NFC's Initial Purchase of Lease Receivables.............9
SECTION 4.02. Conditions Precedent to NFC's Purchase of Sold Retail Lease Property............9
SECTION 4.03. Conditions To Obligation of Harco Leasing......................................10
ARTICLE V
ADDITIONAL AGREEMENTS.............................................................................10
SECTION 5.01. Initial UCC Filings............................................................10
SECTION 5.02. Computer Files Marked..........................................................10
SECTION 5.03. Protection of Title............................................................10
SECTION 5.04. Other Liens or Interests.......................................................11
SECTION 5.05. Indemnification................................................................11
SECTION 5.06. Reserved.......................................................................11
SECTION 5.07. Repurchase Events..............................................................11
SECTION 5.08. Further Assignments............................................................12
SECTION 5.09. Pre-Closing Collections........................................................13
SECTION 5.10. Limitation on Transfer of International Purchase Obligations...................13
SECTION 5.11. Bankruptcy Proceeding..........................................................13
SECTION 5.12. Sale Treatment.................................................................13
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ARTICLE VI
MISCELLANEOUS PROVISIONS..........................................................................14
SECTION 6.01. Amendment......................................................................14
SECTION 6.02. Survival.......................................................................14
SECTION 6.03. Notices........................................................................14
SECTION 6.04. Governing Law..................................................................14
SECTION 6.05. Waivers........................................................................14
SECTION 6.06. Costs and Expenses.............................................................14
SECTION 6.07. Headings.......................................................................14
SECTION 6.08. Counterparts...................................................................14
SECTION 6.09. Severability of Provisions.....................................................15
SECTION 6.10. Further Assurances.............................................................15
SECTION 6.11. No Third-Party Beneficiaries...................................................15
SECTION 6.12. Merger and Integration.........................................................15
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LEASE PURCHASE AGREEMENT
THIS LEASE PURCHASE AGREEMENT (this "Agreement") is made as of ,
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200 by and between Harco Leasing Company, Inc., a Delaware corporation ("Harco
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Leasing"), and Navistar Financial Corporation, a Delaware corporation ("NFC").
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R E C I T A L S:
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WHEREAS, Harco Leasing, as Grantor and Initial Beneficiary, the
General Interest Trustee and the Delaware Trustee have entered into the Titling
Trust Agreement, pursuant to which the Titling Trust was formed for the purpose
of acquiring, holding and dealing in Titling Trust Assets;
WHEREAS, Harco Leasing holds the General Interest in the Titling
Trust, representing the beneficial ownership interest in the General Titling
Trust Assets;
WHEREAS, pursuant to Section 3.2 of the Titling Trust Agreement a
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portion of the General Interest Trust Assets have been allocated to the Series
200 Portfolio Interest and additional General Titling Trust Assets are expected
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to be allocated to the Series 200 Portfolio Interest from time to time during
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the Funding Period;
WHEREAS, NFC desires to purchase the Series 200 Portfolio Interest
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from Harco Leasing;
WHEREAS, Harco Leasing is willing, on the terms and subject to the
conditions set forth herein, to sell the Series 200 Portfolio Interest to NFC.
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NOW, THEREFORE, in consideration of the foregoing, the other good and
valuable consideration and the mutual terms and covenants herein contained, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. Capitalized terms used and not
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otherwise defined in the above recitals and in this Agreement shall have the
respective meanings assigned them in Appendix A to the Pooling Agreement dated
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as of the date hereof between Navistar Financial Retail Receivables Corporation
and Navistar Financial 200_ Owner Trust.
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ARTICLE II
PURCHASE AND SALE OF SERIES 200 PORTFOLIO INTEREST AND
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LEASES; SECURITY INTEREST IN LEASED VEHICLES
SECTION 2.01. Initial Transfer. On the date hereof, Harco Leasing hereby:
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(a) sells, transfers, assigns, delivers and conveys to NFC, and NFC hereby
purchases from Harco Leasing, all of Harco Leasing's right, title and interest
in and to the Series 200 Portfolio Interest, the Series 200 Portfolio
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Certificate and the beneficial interest in the Series 200 Portfolio Assets
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represented thereby; and
(b) directs the General Interest Trustee and the Servicer to identify from
the General Titling Trust Assets allocable to the General Interest, and to
allocate to the Series 200 Portfolio Interest, all of the right, title and
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interest of Harco Leasing and the Titling Trust in and to the Retail Leases
identified on the Schedule of Retail Leases attached to the Initial PA
Assignment dated the date hereof and the Related Titling Trust Assets with
respect to such Retail Leases.
SECTION 2.02. Subsequent Transfers. From time to time during the Funding
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Period, on such dates as are mutually agreeable to Harco Leasing and NFC (each,
a "Lease Purchase Date," which term includes the Closing Date), subject to the
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satisfaction of the conditions specified in Article IV, Harco Leasing shall
allocate to the Series 200 Portfolio Interest, and direct the General Interest
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Trustee and the Servicer to identify from the General Titling Trust Assets
allocable to the General Interest, and to allocate to the Series 200 Portfolio
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Interest, all of the right, title and interest of Harco Leasing and the Titling
Trust in and to the Retail Leases identified on the Schedule of Retail Leases
attached to the Subsequent PA Assignment dated as of such Lease Purchase Date
and the Related Titling Trust Assets with respect to such Retail Leases.
SECTION 2.03. The Closings. The consummation of each purchase and sale
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contemplated by Section 2.01 or Section 2.02 (each, a "Lease Purchase Closing")
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shall take place on the related Lease Purchase Date, and at such place and at
such time as Harco Leasing and NFC may agree upon. In consideration for the
Series 200 Portfolio Assets sold at each Lease Purchase Closing, NFC shall pay
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to Harco Leasing on such Lease Purchase Date an amount equal to the aggregate
Starting Receivable Balance as of the related Cutoff Date (the "Lease Purchase
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Price") of the Retail Leases being so allocated (the "Designated Retail Leases"
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for such Lease Purchase Date). The Lease Purchase Price shall be paid to Harco
Leasing in immediately available funds.
SECTION 2.04. Transfers Intended as a Sale. It is the express intent of
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Harco Leasing and NFC that the conveyances and allocations of the Series 200
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Portfolio Interest, the Series 200 Portfolio Certificate and the Series 200
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Portfolio Assets shall constitute sales of personal property which is absolute
and irrevocable and which is without recourse to Harco Leasing, except as
provided herein, and which provides NFC with the full benefits of exclusive
legal and beneficial ownership of the Series 200 Portfolio Interest and the
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Series 200 Portfolio Certificate and with exclusive beneficial ownership of the
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Series 200 Portfolio Assets allocated to the Series 200 Portfolio Interest
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(collectively, the "Sold Retail Lease Property"). It is, further, not the
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intention of either Harco Leasing or NFC that any such sale be deemed a grant of
a security interest in such Sold Retail Lease Property by Harco Leasing to NFC
to secure a debt or other obligation of Harco
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Leasing. However, in the event that, notwithstanding the intent of the parties,
such property is held by a court of law to continue to be property of Harco
Leasing, then (i) this Agreement shall be deemed to be a security agreement
within the meaning of the applicable UCC; and (ii) the transfers and allocations
by Harco Leasing provided for in this Agreement shall be deemed to be, and Harco
Leasing hereby grants to NFC, a security interest in and to all of Harco
Leasing's right, title and interest in and to such Sold Retail Lease Property
and all proceeds of such property. Notwithstanding anything else to the contrary
contained herein, Harco Leasing shall not be liable to NFC for any failure by
any Obligor to make payments owed in respect of Sold Retail Lease Property.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties Regarding Lease Receivables.
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As of each Lease Purchase Date, Harco Leasing represents and warrants to NFC as
follows with respect to the Designated Retail Leases and the other Sold Retail
Lease Property transferred on such date:
(a) Characteristics of Receivables. Each Designated Retail Lease:
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(i) was originated or acquired by Harco Leasing, the Titling Trust or
one or more of their Affiliates for the retail lease of one or more Financed
Vehicles acquired thereby [in the ordinary course of business in accordance with
NFC's underwriting standards] [and re-underwritten in accordance with NFC's
underwriting standards], and was fully and properly executed by the parties
thereto;
(ii) contains customary and enforceable provisions such as to render
the rights and remedies of the holder thereof adequate for realization against
the collateral of the benefits of the security;
(iii) [is a Finance Lease or a TRAC Lease and] (A) in the case of a
Finance Lease, provides for payments (including purchase option payments) that
fully amortize the Initial Capitalized Cost over its original term to maturity
and yields implicit interest at a fixed annual percentage rate, with a purchase
option price that does not exceed [$1,000 or such higher amount as the Rating
Agencies shall approve] and (B) in the case of a TRAC Lease, it provides for
payments that fully amortize the Initial Capitalized Cost to an amount equal to
the TRAC Payment, and, in the event of a termination of the TRAC Lease, the
amount payable thereunder by the Obligor is at least equal to the excess of the
Receivable Balance over the proceeds from the sale of the related Financed
Vehicle;
(iv) (A) is owned of record by the Titling Trust, (B) immediately
prior to the allocation of such Retail Lease to the Portfolio Interest, Harco
Leasing was the beneficial owner of such Retail Lease free of any Lien (except
for Permitted Liens and Liens that will be released as of such transfer), and
(C) upon execution and delivery of this Agreement and payment of the related
Lease Purchase Price, (1) all of Harco Leasing's right, title and interest in
such Retail Lease has been validly sold by Harco Leasing to NFC, and (2) NFC is
the owner of all right, title and interest in such Retail Lease (other than the
interest of the Titling Trust) free of any Lien (except for Permitted Liens)
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and the transfer of the Retail Lease to NFC has been perfected under the UCC;
(v) each Financed Vehicle related thereto is owned by the Titling
Trust (or its nominee) as record owner and upon issuance of the Series 200
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Portfolio Certificate, NFC will be the beneficial owner through its ownership of
the Series 200 Portfolio Interest of such Financed Vehicle and any certificate
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of title or other evidence of ownership of such Financed Vehicle issued by a
registrar of titles in the respective jurisdiction in which such Financed
Vehicle is registered relating to each such vehicle is registered in the name of
the Titling Trust (or its nominee) (or a properly completed application for such
title has been or will be submitted to the appropriate titling authority) with a
notation of Lien thereon in favor of the Collateral Agent; and
(vi) as of the Lease Purchase Date with respect to such Retail Lease,
such Retail Lease has been allocated to the Series 200 Portfolio Interest.
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(b) Schedule of Retail Leases. The information regarding such Designated
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Retail Leases set forth in the related Schedule of Retail Leases is true and
correct in all material respects.
(c) Title. The Titling Trust has good title to each such Designated Retail
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Lease free and clear of all Liens (other than Permitted Liens). On the date
hereof, good and valid title to the Series 200 Portfolio Interest and the
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Series 200 Portfolio Certificate and the exclusive beneficial interest in the
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Series 200 Portfolio Assets will be validly and effectively conveyed to, and
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vested in, NFC, free and clear of all Liens, other than Permitted Liens, and NFC
will be entitled to all of the rights and benefits of a holder of a Portfolio
Interest under the Titling Trust Agreements.
SECTION 3.02. Representations and Warranties Regarding Harco Leasing.
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Harco Leasing represents and warrants to NFC as of the date hereof and as of
each Lease Purchase Date (and, as applicable, with respect to the Designated
Retail Lease transferred on such date), that:
(a) Organization and Good Standing. Harco Leasing has been duly organized
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and is validly existing as a corporation and in good standing under the laws of
the State of Delaware, with power and authority to own its properties and to
conduct its business as such properties are presently owned and such business is
presently conducted, and had at all relevant times, and now has, power,
authority and legal right to acquire and own such Designated Retail Leases.
(b) Due Qualification. Harco Leasing is duly qualified to do business as a
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foreign corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease of property
or the conduct of its business requires such qualification.
(c) Power and Authority. Harco Leasing has the power and authority to
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execute and deliver this Agreement and to perform its obligations hereunder and
the execution, delivery and performance of this Agreement and the other Basic
Documents to which it is a party have been duly authorized by Harco Leasing by
all necessary corporate action on the part of Harco Leasing. Harco Leasing has
the corporate power and authority to sell and assign to NFC the Sold Retail
Lease Property and has duly authorized such transfers by all necessary corporate
action on the part of Harco Leasing.
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(d) Valid Sales; Binding Obligation. This Agreement, when duly executed and
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delivered, shall constitute a valid sale, transfer and assignment of the Series
200 Portfolio Interest, the Series 200 Portfolio Certificate and the
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beneficial interest in the Series 200 Portfolio Assets represented thereby,
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enforceable against creditors of Harco Leasing, and this Agreement constitutes a
legal, valid and binding obligation of Harco Leasing enforceable against Harco
Leasing in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights in general and by general
principles of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law.
(e) No Violation. The execution and delivery of this Agreement by Harco
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Leasing and the other Basic Documents to which it is a party and its performance
of its obligations hereunder and thereunder will not violate any Requirement of
Law or Contractual Obligation of Harco Leasing, and will not result in, or
require, the creation or imposition of any Lien upon any of its property or
assets pursuant to any such Requirement of Law or Contractual Obligation, other
than as contemplated by the Basic Documents.
(f) No Proceedings. There are no actions, proceedings or, to Harco
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Leasing's knowledge, investigations pending or, to Harco Leasing's knowledge,
threatened, before any Governmental Authority (i) asserting the invalidity of
this Agreement or any other Basic Document to which Harco Leasing is a party,
(ii) seeking to prevent the consummation of any of the transactions contemplated
by this Agreement or any other Basic Document to which Harco Leasing is a party,
or (iii) seeking any determination or ruling that would reasonably be expected
to have a Material Adverse Effect with respect to Harco Leasing.
(g) No Consent. Except as expressly contemplated by the Basic Documents, no
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consent or authorization of, filing with, or other act by or in respect of, any
Governmental Authority or any other Person is required in connection with the
execution, delivery, performance, validity or enforceability against Harco
Leasing of this Agreement or any other Basic Document to which Harco Leasing is
a party.
(h) No Default. Harco Leasing is not in default under or with respect to
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any of its Contractual Obligations which would have a Material Adverse Effect
with respect to it.
(i) Taxes. Harco Leasing has filed or caused to be filed all tax returns
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which are required to be filed by Harco Leasing (with respect to itself) and has
paid all taxes shown to be due and payable on said returns or on any assessments
made against it or any of its property and all other taxes, fees or other
charges imposed on it or any of its property by any Governmental Authority
(other than any amount the validity of which is currently being contested in
good faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of Harco Leasing). No
notice of any Lien in respect of unpaid taxes or assessments (other than a
Permitted Lien) has been filed by any taxing authority against, or otherwise
affecting the assets of, Harco Leasing and remains in effect.
(j) ERISA. No notice of a Lien arising under Title I or Title IV of ERISA
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has been filed under Section 6323 (a) of the Code (or any successor provision)
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against, or otherwise affecting the
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assets of Harco Leasing.
(k) Solvency. Harco Leasing is, and after giving effect to the transactions
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contemplated to occur on such date will be, solvent.
(l) Investment Company Act. Harco Leasing is not, and is not controlled by,
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an "investment company" within the meaning of, and is not required to register
as an "investment company" under, the Investment Company Act.
SECTION 3.03. Representations and Warranties Regarding Titling Trust.
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Harco Leasing represents and warrants to NFC as of the date hereof and as of
each Lease Purchase Date, that:
(a) Organization and Good Standing. The Titling Trust is a statutory
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business trust duly formed, validly existing and in good standing under the laws
of the State of Delaware, with power and authority to own its properties and to
conduct its business as such properties are presently owned and such business is
presently conducted, and had at all relevant times, and now has power, authority
and legal right to acquire and own the Retail Leases.
(b) Due Qualification. The Titling Trust is duly qualified to do business
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as a foreign business trust and in good standing under the laws of each
jurisdiction where the character of its property, the nature of its business or
the performance of its obligations make such qualification necessary and has all
powers and all governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted and for purposes of the
transactions contemplated by the Basic Documents, except to the extent that the
failure to have any such governmental licenses, authorizations, consents or
approvals would not, in the aggregate, have a Material Adverse Effect with
respect to the Titling Trust.
(c) Power and Authority. The Titling Trust has the power and authority to
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execute and deliver the Basic Documents to which it is a party and to perform
its obligations thereunder and the execution, delivery and performance of the
Basic Documents to which it is a party have been duly authorized by the Titling
Trust.
(d) Valid and Binding. Each of the Basic Documents to which the Titling
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Trust is a party has been duly executed and delivered by or on behalf of the
Titling Trust and constitutes a legal, valid and binding obligation of the
Titling Trust enforceable against the Titling Trust in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditor's rights in general and by general principles of equity
regardless of whether such enforcement is considered in a proceeding in equity
or at law.
(e) No Violation. The execution and delivery by the Titling Trust of the
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Basic Documents to which it is a party and its performance of its obligations
thereunder will not violate any Requirement of Law or Contractual Obligation of
the Titling Trust, and will not result in, or require, the creation or
imposition of any Lien upon any of its property or assets pursuant to any such
Requirement of Law or Contractual Obligation, other than as contemplated by the
Basic Documents.
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(f) No Proceedings. There are no actions or proceedings or, to Harco
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Leasing's knowledge, investigations pending or, to Harco Leasing's knowledge,
threatened before any Governmental Authority (i) asserting the invalidity of any
of the Basic Documents to which the Titling Trust is a party, (ii) seeking to
prevent the consummation of any of the transactions contemplated by any of the
Basic Documents to which the Titling Trust is a party or (iii) seeking any
determination or ruling that would reasonably be expected to have a Material
Adverse Effect with respect to the Titling Trust.
(g) No Consent. No consent or authorization of, or filing with, or other
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act by or in respect of, any Governmental Authority or any other Person is
required in connection with the execution, delivery, performance, validity or
enforceability against the Titling Trust of any of the Basic Documents to which
it is a party.
(h) Taxes. The Titling Trust has filed or caused to be filed all tax
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returns which are required to be filed by the Titling Trust (with respect to
itself) and has paid all taxes shown to be due and payable on said returns or on
any assessments made against it or any of its property by any Governmental
Authority (other than any amount the validity of which is being contested in
good faith by appropriate proceedings and with respect to which reserves in
accordance with GAAP have been provided on the books of the Titling Trust). No
notice of any Lien in respect of unpaid taxes or assessments (other than a
Permitted Lien) has been filed by any taxing authority against, or otherwise
affecting the assets of, the Titling Trust and remains in effect. The Titling
Trust has paid all fees and expenses required to be paid by it in connection
with the conduct of its business, the maintenance of its existence and its
qualification as a foreign business trust.
(i) ERISA. No notice of Lien arising under Title I or IV of ERISA has been
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filed under Section 6323(a) of the Code (or any successor provision) against, or
otherwise affecting the assets of the Titling Trust.
(j) Investment Company Act. The Titling Trust is not, and is not controlled
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by, an "investment company" within the meaning of, and is not required to
register as an "investment company" under, the Investment Company Act.
(k) Series 200 Portfolio Certificate. The Series 200 Portfolio
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Certificate has been duly executed and delivered by the General Interest Trustee
in accordance with the Titling Trust Agreement, has been duly issued in
accordance with the Titling Trust Agreement and is entitled to the benefits
afforded by the Titling Trust Agreement.
SECTION 3.04. Representations and Warranties of NFC. NFC hereby represents
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and warrants to Harco Leasing as of the date hereof and as of each Lease
Purchase Date (and, as applicable, with respect to the Designated Retail Leases
transferred on such date), that:
(a) Organization and Good Standing. NFC has been duly organized and is
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validly existing as a corporation and in good standing under the laws of the
State of Delaware, with power and authority to own its properties and to conduct
its business as such properties are presently owned and such business is
presently conducted, and had at all relevant times, and now has, power,
authority and legal right to acquire and own such Designated Retail Leases.
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(b) Due Qualification. NFC is duly qualified to do business as a foreign
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corporation in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions, in which the ownership or lease of property or
the conduct of its business requires such qualification.
(c) Power and Authority. NFC has the corporate power and authority to
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execute and deliver this Agreement and to perform its obligations hereunder and
the execution, delivery and performance of this Agreement have been duly
authorized by all necessary corporate action on the part of NFC.
(d) Binding Obligation. This Agreement constitutes a legal, valid and
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binding obligation of NFC enforceable against NFC in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of creditors'
rights in general and by general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law.
(e) No Violation. The execution and delivery of this Agreement by NFC and
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its performance of its obligations hereunder will not violate any Requirement of
Law or Contractual Obligation of NFC, and will not result in, or require, the
creation or imposition of any Lien upon any of its property or assets pursuant
to any such Requirement of Law or Contractual Obligation, other than as
contemplated by the Basic Documents.
(f) No Proceedings. There are no proceedings or, to NFC's knowledge,
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investigations pending or, to NFC's knowledge, threatened, before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over NFC or its properties (i) asserting the
invalidity of this Agreement, (ii) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement, or (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by NFC of its obligations under, or the validity or enforceability
of, this Agreement.
(g) No Consent. Except as expressly contemplated by the Basic Documents, no
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consent or authorization of, or filing with, or other act by or in respect of,
any Governmental Authority or any other Person is required in connection with
the execution, delivery, performance, validity or enforceability against NFC of
this Agreement.
ARTICLE IV
CONDITIONS
SECTION 4.01. Conditions Precedent to NFC's Initial Purchase of Lease
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Receivables. The obligation of NFC to purchase from Harco Leasing any Sold
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Retail Lease Property on the Closing Date is subject to the satisfaction of the
following conditions:
(a) Agreement. NFC shall have received this Agreement, duly executed and
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delivered by Harco Leasing. In addition, NFC shall have received the Series 200
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Portfolio Certificate registered in the name of the Indenture Trustee.
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(b) Certificate of Incorporation; By-laws. NFC shall have received a true
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and complete copy of the certificate of incorporation of Harco Leasing,
certified as a true and correct copy thereof by the Secretary of State of the
State of Delaware, and a true and complete copy of the by-laws of Harco Leasing,
certified as a true and correct copy thereof by the Secretary or an Assistant
Secretary of Harco Leasing.
(c) Resolutions. NFC shall have received copies of duly adopted resolutions
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of the Board of Directors of Harco Leasing as in effect on the Closing Date and
in form and substance reasonably satisfactory to NFC, authorizing the execution,
delivery and performance of this Agreement and the other Basic Documents to
which Harco Leasing is a party, the documents to be delivered by Harco Leasing
hereunder and the transactions contemplated hereby and thereby, certified by the
Secretary or an Assistant Secretary of Harco Leasing.
(d) Incumbency Certificate. NFC shall have received a certificate as to the
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incumbency and signature of the officers of Harco Leasing authorized to sign
this Agreement, on behalf of Harco Leasing, together with evidence of the
incumbency of such Secretary or Assistant Secretary, certified by the Secretary
or Assistant Secretary of Harco Leasing.
(e) Representations and Warranties. NFC shall have received a certificate
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of a Responsible Officer of Harco Leasing to the effect that all representations
and warranties of Harco Leasing contained in Sections 3.01, 3.02 and 3.03, or in
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any certificate delivered in connection with this Agreement (other than those
made as of a specified date specified therein) are true and correct and with the
same force and effect as though such representations and warranties had been
made as of such date.
SECTION 4.02. Conditions Precedent to NFCs Purchase of Sold Retail Lease
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Property. The obligation of NFC to purchase Sold Retail Lease Property to be
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purchased hereunder on any Lease Purchase Date is subject to the satisfaction of
the following conditions:
(a) Representations and Warranties True. The representations and warranties
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of Harco Leasing hereunder with respect to such Designated Retail Leases and in
Sections 3.02 and 3.03 shall be true and correct on and as of such Lease
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Purchase Date with the same effect as if then made, and Harco Leasing shall have
performed all obligations with respect to such Designated Retail Leases to be
performed by it hereunder on or prior to such date.
(b) Nonoccurrence of Certain Events. The Funding Period shall not have
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terminated.
(c) Documents to be Delivered By Harco Leasing at or prior to each Lease
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Receivable Closing.
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(i) Lease Purchase Date Schedule of Retail Leases. Harco Leasing shall
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have delivered to NFC and the Indenture Trustee the related Schedule of Retail
Leases related to that Lease Purchase Date.
(ii) Other Documents. Harco Leasing shall have provided such other
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documents as NFC may reasonably request.
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SECTION 4.03. Conditions To Obligation of Harco Leasing. The obligation of
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Harco Leasing to sell to NFC the Sold Retail Lease Property to be sold hereunder
on any Lease Purchase Date is subject to the satisfaction of the following
conditions:
(a) Representations and Warranties True. The representations and warranties
-----------------------------------
of NFC hereunder with respect to such Sold Retail Lease Property shall be true
and correct on such Lease Purchase Date with the same effect as if then made,
and NFC shall have performed all obligations with respect to such Sold Retail
Lease Property to be performed by it hereunder on or prior to such date.
(b) Lease Receivable Purchase Price. NFC shall have paid to Harco Leasing
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the related Lease Purchase Price as provided in Section 2.03 of this Agreement.
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ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01. Initial UCC Filings. On or prior to the Closing Date, Harco
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Leasing shall record and file, at its own expense, a UCC-l financing statement
in each jurisdiction in which required by applicable law, naming NFC as
purchaser or secured party, naming as collateral the Sold Retail Lease Property
to be purchased and sold hereunder from time to time, meeting the requirements
of the laws of each such jurisdiction and in such manner as is necessary to
perfect under the UCC the sale, transfer, assignment and conveyance to NFC of
such Sold Retail Lease Property (to the extent constituting UCC Collateral) and
hereby authorizes NFC to file any such financing statements relating to all or
any part thereof. Harco Leasing shall deliver a file-stamped copy, or other
evidence satisfactory to NFC of such filing, to NFC on or prior to the Closing
Date.
SECTION 5.02. Computer Files Marked. Harco Leasing shall, at its own
---------------------
expense, on or prior to each Lease Purchase Date, indicate in its computer files
that the beneficial interest in the Designated Retail Leases being allocated on
such date has been sold to NFC pursuant to this Agreement.
SECTION 5.03. Protection of Title. (a) Harco Leasing shall execute and
-------------------
file such financing statements, and cause to be executed and filed such
continuation and other statements, all in such manner and in such places as may
be required by law fully to perfect and preserve the sale hereunder to NFC of
the Sold Retail Lease Property, the Series 200 Portfolio Interest and the
-
Series 200 Portfolio Certificate, and hereby authorizes NFC to file financing
-
statements and amendments thereto and continuation statements relative to all or
any part thereof; provided however that, except as otherwise provided in the
----------------
Titling Trust Agreement, Harco Leasing shall not be obligated to transfer the
title to any Financed Vehicle. Harco Leasing shall deliver (or cause to be
delivered) to NFC file-stamped copies of, or filing receipts for, any document
filed as provided above, as soon as available following such filing.
(b) Harco Leasing shall not change its name, identity or corporate
structure in any manner that would, could or might make any financing statement
or continuation statement filed by Harco Leasing in accordance with Section 5.01
------------
or 5.03(a) seriously misleading within the meaning of
-------
10
Section 9-506 of the UCC, unless it shall have given NFC at least 60 days prior
-------------
written notice thereof and shall file such financing statements or amendments as
may be necessary to continue the perfection of NFC's interest in all Sold Retail
Lease Property sold hereunder, the Series 200 Portfolio Interest and the Series
-
200 Portfolio Certificate.
-
(c) Harco Leasing hereby represents and warrants that its jurisdiction of
formation is the State of Delaware, and the place where its principal records
pertaining to the Sold Retail Lease Property and the Series 200 Portfolio
-
Interest are kept, is located at 0000 Xxxx Xxxx Xxxx, Xxxxxxx Xxxxxxx, Xxxxxxxx
00000. Harco Leasing shall give NFC at least 60 days prior written notice of any
change in its jurisdiction of formation or place where such records are kept.
Harco Leasing shall at all times maintain each office where it keeps Retail
Leases and its jurisdiction of formation within the United States of America.
SECTION 5.04. Other Liens or Interests. Except for the conveyances
------------------------
hereunder and as contemplated by the Basic Documents, Harco Leasing shall not
sell, pledge, assign or transfer any Sold Retail Lease Property, the Series 200
-
Portfolio Interest or the Series 200 Portfolio Certificate to any other Person,
-
or grant, create, incur, assume or suffer to exist any Lien thereon (except
Permitted Liens) and Harco Leasing shall defend the right, title and interest of
NFC in, to and under all Sold Retail Lease Property sold hereunder, the Series
200 Portfolio Interest and the Series 200 Portfolio Certificate against all
- -
claims of third parties (other than Permitted Liens) claiming through or under
Harco Leasing.
SECTION 5.05. Indemnification. Harco Leasing shall indemnify NFC for any
---------------
liability as a result of the failure of a Designated Retail Lease transferred
hereunder to be originated in compliance with all Requirements of Law and for
any breach of any of its representations and warranties with respect thereto
contained herein unless such breach shall be cured in all material respects.
This indemnity obligation shall be in addition to any obligation that Harco
Leasing may otherwise have.
SECTION 5.06. Reserved.
--------
SECTION 5.07. Repurchase Events. (a) Harco Leasing hereby covenants and
-----------------
agrees with NFC for the benefit of NFC, NFRRC, the Issuer and the Indenture
Trustee that in the event of (i) a breach of any of Harco Leasing's
representations and warranties contained in Section 3.01 hereof with respect to
------------
any Designated Lease Receivable, or (ii) a breach by Harco Leasing of Section
-------
5.04 hereof with respect to any Designated Retail Lease, the Series 200
---- -
Portfolio Interest or the Series 200 Portfolio Certificate, which breach has a
-
material and adverse effect on NFC's interest in such Designated Retail Lease,
the Series 200 Portfolio Interest or the Series 200 Portfolio Certificate,
- -
Harco Leasing will, unless such breach shall have been cured in all material
respects, as of the Second Accounting Date (or at the option of Harco Leasing,
the first Accounting Date) after Harco Leasing discovered or received notice of
such breach, repurchase such Designated Retail Lease (or, in the case of the
Series 200 Portfolio Interest or the Series 200 Portfolio Certificate, all
- -
Designated Retail Leases which are then included in the Series 200 Portfolio
-
Interest), as applicable, from NFC, by delivering to the Indenture Trustee for
deposit in the Collection Account on the Business Day preceding the related
Distribution Date immediately following such Accounting Date an amount equal to
the Warranty Payment for any such Designated Retail Lease. It is
11
understood and agreed that the obligation of Harco Leasing to repurchase any
Designated Retail Lease as to which a breach has occurred and is continuing
shall, if such obligation is fulfilled, constitute the sole remedy against Harco
Leasing for such breach available to NFC or any of its assignees.
(b) Upon receipt of the Warranty Payment with respect to a Designated
Retail Lease which is a Warranty Receivable, NFC shall assign, without recourse,
representation or warranty, to Harco Leasing all of NFC's right, title and
interest in, to and under (i) such Warranty Receivable and the Related Titling
Trust Assets, such assignment being an assignment outright and not for security.
Upon the assignment of such Warranty Receivable and Related Titling Trust
Assets, Harco Leasing shall own such Warranty Receivable and all such Related
Titling Trust Assets, free of any further obligations to NFC with respect
thereto. If in any proceeding it is held that Harco Leasing may not enforce a
Warranty Receivable on the ground that it is not a real party in interest or a
holder entitled to enforce the Warranty Receivable, NFC shall, at Harco
Leasing's expense, take such steps as Harco Leasing deems necessary to enforce
the Warranty Receivable, including bringing suit in the name of such Person.
SECTION 5.08. Further Assignments. Harco Leasing acknowledges that (i) NFC
-------------------
shall sell, pledge, assign or transfer all of its right, title and interest in
the Designated Retail Leases, the Related Titling Trust Assets, the Series 200
-
Portfolio Interest, the Series 200 Portfolio Certificate and its rights
-
hereunder to NFRCC pursuant to the Purchase Agreement, (ii) NFRRC shall sell,
pledge, assign or transfer all of its right, title and interest in the
Designated Retail Leases, the Related Titling Trust Assets, the Series 200
-
Portfolio Interest, the Series 200 Portfolio Certificate and its rights
-
hereunder to the Issuer pursuant to the Pooling Agreement and (iii) that the
Issuer shall in turn further pledge, assign or transfer its rights in such
Designated Retail Leases, the Related Titling Trust Assets, the Series 200
-
Portfolio Interest, the Series 200 Portfolio Certificate and this Agreement to
-
the Indenture Trustee, on behalf of the Noteholders, pursuant to the Indenture.
Harco Leasing consents to such assignments and agrees that the Indenture
Trustee, to the extent provided in the Indenture, shall be entitled to enforce
the terms of this Agreement and the rights (including, the right to grant or
withhold any consent or waiver) of NFC directly against Harco Leasing. Harco
Leasing further agrees that, in respect of its obligations hereunder, it will
act at the direction of and in accordance with all requests and instructions
from the Indenture Trustee delivered pursuant to the Basic Documents until the
earlier of (i) the Notes are repaid in full and (ii) the Indenture shall cease
to be effective pursuant to Section 4.1 of the Indenture. Except as otherwise
contemplated by the Basic Documents, the Indenture Trustee shall have the rights
of a third-party beneficiary under this Agreement. Harco Leasing shall deliver
copies of all notices, requests, demands and other documents to be delivered by
it to NFC pursuant to the terms hereof to NFRRC, the Issuer and the Indenture
Trustee.
SECTION 5.09. Pre-Closing Collections. Within two Business Days after each
-----------------------
Lease Purchase Date, Harco Leasing shall transfer to the Indenture Trustee for
deposit in the Collection Account all collections (from whatever source) on or
with respect to the related Designated Retail Leases and Related Titling Trust
Assets held by Harco Leasing on such Lease Purchase Date and conveyed to NFC
pursuant to Section 2.01 or 2.02.
------------ ----
SECTION 5.10. Limitation on Transfer of International Purchase Obligations.
------------------------------------------------------------
NFC
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acknowledges and agrees that the rights pursuant to the International Purchase
Obligations are personal to Harco Leasing, and only the proceeds of such rights
have been assigned to NFC. NFC is not and is not intended to be a third-party
beneficiary of such rights and, accordingly, such rights will not be exercisable
by, enforceable by or for the benefit of, or preserved for the benefit of, NFC,
NFRRC, the Issuer or the Indenture Trustee.
SECTION 5.11. Bankruptcy Proceeding. (a) NFC by accepting the Series 200
--------------------- -
Portfolio Certificate, hereby covenants and agrees that it shall not, prior to
the date which is one year and a day after which all obligations under each
Permitted Financing have been paid in full, acquiesce, petition or otherwise
invoke, or join any other Person in acquiescing, petitioning or otherwise
invoking, against the Titling Trust or any special purpose entity, any
proceeding in court or with any governmental authority for the purpose of (i)
commencing or sustaining a case against the Titling Trust or special purpose
entity under any federal or state bankruptcy, insolvency or similar law, or (ii)
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of all or any substantial part of the respective property
of the Titling Trust or special purpose entity, or (iii) ordering the winding up
or liquidation of the affairs of the Titling Trust or special purpose entity.
(b) Except as otherwise provided in the Titling Trust Agreement, NFC, by
accepting the Series 200 Portfolio Certificate hereby releases all Claims to
-
the General Titling (other than Claims to other Portfolio Interests obtained
under other purchase agreements) Trust Assets and to each Portfolio Interest
other than the Series 200 Portfolio Interest whether then or thereafter created
-
and, in the event that such release is not given effect, to fully subordinate
all Claims it may be deemed to have against the General Titling (other than
Claims to other Portfolio Interests obtained under other purchase agreements)
Trust Assets and each Portfolio Interest other than the Series 200 Portfolio
-
Interest whether then or thereafter created.
SECTION 5.12. Sale Treatment. Harco Leasing intends to treat the transfer
--------------
and assignment described herein as a sale for accounting and tax purposes.
ARTICLE VI
MISCELLANEOUS PROVISIONS3.
SECTION 6.01. Amendment. This Agreement may be amended from time to time
---------
(subject to any expressly applicable amendment provision of the Further Transfer
and Servicing Agreements) by a written amendment duly executed and delivered by
Harco Leasing and NFC, provided, however that this Agreement may not be amended
unless such amendment is in accordance with the provisions of Section 5.01 of
the Pooling Agreement as if such Section 5.01 were contained herein and were
applicable to this Agreement. Prior to the execution of any such amendment, NFC
shall furnish written notification of the substance of such amendment to each of
the Rating Agencies.
SECTION 6.02. Survival. The representations, warranties and covenants of
--------
Harco Leasing set forth in this Agreement shall remain in full force and effect
and shall survive each Lease Purchase Closing under Section 2.03 hereof and any
------------
related transfer under the Further Transfer and Servicing Agreements.
13
SECTION 6.03. Notices. All demands, notices and communications upon or to
-------
Harco Leasing, NFC, the Servicer, the Indenture Trustee or the Rating Agencies
under this Agreement shall be delivered as specified in Appendix B to the
----------
Pooling Agreement.
SECTION 6.04. Governing Law. All questions concerning the construction,
-------------
validity and interpretation of this Agreement shall be governed by and construed
and enforced in accordance with the internal laws of the State of Illinois,
without giving effect to any choice of law or conflict provision or rule
(whether of the State of Illinois or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Illinois.
SECTION 6.05. Waivers. No failure or delay on the part of any party in
-------
exercising any power, right or remedy under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude any other or further exercise thereof or the exercise
of any other power, right or remedy.
SECTION 6.06. Costs and Expenses. Harco Leasing agrees to pay all
------------------
reasonable out-of-pocket costs and expenses of NFC, including fees and expenses
of counsel, in connection with the perfection as against third parties of NFC's
right, title and interest in, to and under the Series 200 Portfolio Interest,
-
the Series 200 Portfolio Certificate and all Sold Retail Lease Property a
-
security interest in which may be perfected under the UCC purchased hereunder
and the enforcement of any obligation of Harco Leasing hereunder.
SECTION 6.07. Headings. The various headings in this Agreement are for
--------
purposes of reference only and shall not affect the meaning or interpretation of
any provision of this Agreement.
SECTION 6.08. Counterparts. This Agreement may be executed in two or more
------------
counterparts, and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
SECTION 6.09. Severability of Provisions. If any one or more of the
--------------------------
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed enforceable to the fullest extent permitted, and if not
so permitted, shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement or of any
Basic Documents or rights of any party thereto.
SECTION 6.10. Further Assurances. Harco Leasing and NFC agree to do and
------------------
perform, from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by the other more fully to effect
the purposes of this Agreement, including the execution of any financing
statements or continuation statements relating to the Series 200 Portfolio
-
Interest, the Series 200 Portfolio Certificate and any Sold Retail Lease
-
Property purchased hereunder for filing under the provisions of the UCC of any
applicable jurisdiction.
SECTION 6.11. No Third-Party Beneficiaries. Except as specifically set
----------------------------
forth herein, this
14
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and permitted assigns. Except as otherwise
expressly provided in this Agreement, no other Person shall have any right or
obligation hereunder.
SECTION 6.12. Merger and Integration. Except as specifically stated
----------------------
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
* * * * *
15
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date and year first above written.
HARCO LEASING COMPANY, INC.
By:
--------------------------------
Name:
Title:
NAVISTAR FINANCIAL CORPORATION
By:
--------------------------------
Name:
Title:
16
