Exhibit 99.5
EXECUTION COPY
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NAVISTAR LEASING COMPANY
SERIES 2002-B SUPPLEMENT TO
COLLATERAL AGENCY AGREEMENT
AMONG
HARCO LEASING COMPANY, INC.,
NAVISTAR LEASING COMPANY,
THE SERIES 2002-B PORTFOLIO INTEREST
OBLIGORS IDENTIFIED HEREIN,
THE SERIES 2002-B SECURED PARTIES
IDENTIFIED HEREIN,
NAVISTAR FINANCIAL CORPORATION,
AS SERVICER,
NAVISTAR FINANCIAL RETAIL RECEIVABLES CORPORATION,
NAVISTAR FINANCIAL 2002-B OWNER TRUST,
THE BANK OF NEW YORK,
AS INDENTURE TRUSTEE,
AND
THE BANK OF NEW YORK,
AS COLLATERAL AGENT
DATED AS OF NOVEMBER 19, 2002
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TABLE OF CONTENTS
ARTICLE X
DEFINITIONS.................................................................2
SECTION 10.1 Definitions..................................................2
ARTICLE XI
GRANT OF SECURITY INTEREST OVER DESIGNATED COLLATERAL.......................3
SECTION 11.1 Grant of Security Interest...................................3
SECTION 11.2 Designation of Series 2002-B Portfolio Interest Collateral...3
SECTION 11.3 Delivery of Series 2002-B Portfolio Certificate..............3
SECTION 11.4 Perfection of Security Interest in Designated Collateral.....3
SECTION 11.5 Designation of Secured Parties...............................3
SECTION 11.6 Schedule of Retail Leases....................................4
SECTION 11.7 Statements; Further Assurances...............................4
SECTION 11.8 Remedies.....................................................4
SECTION 11.9 Re-allocation of Series 2002-B Portfolio Assets..............4
ARTICLE XII
MISCELLANEOUS PROVISIONS....................................................5
SECTION 12.1 Notices......................................................5
SECTION 12.2 Successors and Assigns.......................................5
SECTION 12.3 Severability.................................................5
SECTION 12.4 Governing Law................................................5
SECTION 12.5 Counterparts.................................................5
SECTION 12.6 Termination..................................................5
SECTION 12.7 Headings.....................................................5
SECTION 12.8 Effect of this Series 2002-B Collateral Supplement
on the Collateral Agency Agreement........................5
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SERIES 2002-B SUPPLEMENT TO
COLLATERAL AGENCY AGREEMENT
SERIES 2002-B SUPPLEMENT TO COLLATERAL AGENCY AGREEMENT (this "Series
2002-B Collateral Supplement"), dated and effective as of November 19, 2002,
among Harco Leasing Company, Inc., a Delaware corporation ("Harco Leasing"),
Navistar Leasing Company, a Delaware statutory trust (the "Titling Trust"), the
Series 2002-B Portfolio Interest Obligors identified herein, the Series 2002-B
Secured Parties identified herein, and each other person from time to time
joining in this Series 2002-B Collateral Supplement in the capacity of a Secured
Party, Navistar Financial Corporation, a Delaware corporation ("Navistar
Financial"), as Servicer, Navistar Financial Retail Receivables Corporation, a
Delaware corporation ("NFRRC"), Navistar Financial 2002-B Owner Trust, a
Delaware statutory trust (the "Issuer"), The Bank of New York, a New York
banking corporation ("BONY"), as successor-in-interest to Xxxxxx Trust and
Savings Bank, acting in its capacity as collateral agent for the holders of the
Secured Obligations (in such capacity, the "Collateral Agent"), and The Bank of
New York, a New York banking corporation, acting in its capacity as Indenture
Trustee pursuant to the Indenture (as defined below) (the "Indenture Trustee") .
RECITALS
A. Harco Leasing, the Titling Trust, each other Person from time to
time joining in this Series 2002-B Collateral Supplement in the capacity of a
Secured Party, Navistar Financial and the Collateral Agent have entered into
that certain Collateral Agency Agreement, dated as of April 15, 1999 (as
amended, the "Collateral Agency Agreement"), which provides, among other things,
for the grant of certain security interests over the Titling Trust Assets in
accordance with the Titling Trust Agreement.
B. Harco Leasing, the General Interest Trustee and the Delaware
Trustee have entered into the Titling Trust Agreement, pursuant to which the
Titling Trust has been formed for the purpose of taking assignments and
conveyances of, holding in trust and dealing in, various Titling Trust Assets.
C. Harco Leasing, the General Interest Trustee, the Delaware Trustee
and the Series 2002-B Portfolio Trustee have entered into the Series 2002-B
Portfolio Supplement for the purpose of designating and accounting for as
separate the Series 2002-B Portfolio Assets as a separate Portfolio Interest
known as the Series 2002-B Portfolio Interest, to be represented by the Series
2002-B Portfolio Certificate.
D. The Titling Trust, Harco Leasing, the Collateral Agent and the
Servicer have entered into the Titling Trust Servicing Agreement, which provides
for, among other things, the servicing of the Titling Trust Assets by the
Servicer.
E. Pursuant to the Collateral Agency Agreement, the Collateral Agent
holds the Titling Trust Estate as Collateral Agent in order to secure the
payment of the Secured Obligations.
F. The Collateral Agency Agreement contemplates that, from time to
time, a Titling Trust Interest Holder may desire to secure Secured Obligations
with the Designated Collateral identified in a Collateral Supplement.
G. In connection with the creation of the Series 2002-B Portfolio
Interest, Harco Leasing has transferred its interest therein and in the related
Series 2002-B Portfolio Certificate and Series 2002-B Portfolio Assets to
Navistar Financial pursuant to the Lease Purchase Agreement. Navistar Financial
has in turn transferred the Series 2002-B Portfolio Certificate and such other
collateral to NFRRC pursuant to the Purchase Agreement. NFRRC has in turn
transferred the Series 2002-B Portfolio Certificate and such other collateral to
the Issuer pursuant to the Pooling Agreement. The Issuer has in turn granted a
security interest in the Series 2002-B Portfolio Certificate and such other
collateral to the Indenture Trustee pursuant to the Indenture.
H. The parties hereto wish to supplement the terms of the Collateral
Agency Agreement (i) to cause the obligations of Harco Leasing under the Lease
Purchase Agreement, the obligations of Navistar Financial under the Purchase
Agreement, the obligations of NFRRC under the Pooling Agreement and the
obligations of the Issuer under the Indenture (each such Person in such
capacity, a "Series 2002-B Portfolio Interest Obligor"), in each case, to be
Secured Obligations, (ii) to establish that each of Navistar Financial under the
Lease Purchase Agreement, NFRRC under the Purchase Agreement, the Issuer under
the Pooling Agreement and the Indenture Trustee under the Indenture shall, in
such capacity, be a Secured Party under the Collateral Agency Agreement (each
such person in such capacity, a "Series 2002-B Secured Party") and (iii) to
establish the terms on which the Collateral Agent will act on behalf of such
Series 2002-B Secured Parties.
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein and in the Titling Trust Agreement, the parties
hereto agree to the following supplemental obligations and provisions with
regard to the Series 2002-B Portfolio Assets, the Series 2002-B Portfolio
Interest and the Series 2002-B Portfolio Certificate:
ARTICLE X
DEFINITIONS
SECTION 10.1 Definitions. For all purposes of this Series 2002-B Collateral
Supplement, except as otherwise expressly provided or unless the context
otherwise requires:
(a) unless otherwise defined herein, all capitalized terms used herein
shall have the meanings attributed to them by Appendix A to the Pooling
Agreement dated as of November 19, 2002 between Navistar Financial Retail
Receivables Corporation and Navistar Financial 2002-B Owner Trust (the "Pooling
Agreement"), or if not defined therein, then as defined in Appendix A to the
Titling Trust Agreement (as defined in the Pooling Agreement);
(b) the rules of construction set forth in Part II of Appendix A to
the Pooling Agreement shall be applicable to this Series 2002-B Collateral
Supplement; and
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(c) any reference herein to the "General Interest Trustee, acting on
behalf of the Titling Trust," or words of similar import, shall be deemed to
mean the General Interest Trustee, acting on behalf of the Titling Trust and all
beneficiaries thereof.
ARTICLE XI
GRANT OF SECURITY INTEREST OVER DESIGNATED COLLATERAL
SECTION 11.1 Grant of Security Interest. Pursuant to Section 2.1(b) of the
Collateral Agency Agreement, in order to secure the rights of each Series 2002-B
Secured Party and the payment and performance of the respective Secured
Obligations owing to each such Series 2002-B Secured Party, each Series 2002-B
Portfolio Interest Obligor hereby assigns, conveys, transfers, delivers and sets
over unto the Collateral Agent for the benefit of the applicable Series 2002-B
Secured Party, as a Secured Party, and hereby grants to the Collateral Agent for
the benefit of the applicable Series 2002-B Secured Party, as a Secured Party, a
Security Interest in and to the Series 2002-B Portfolio Interest Collateral. The
parties hereto acknowledge that this Series 2002-B Collateral Supplement shall
be deemed a "Security Document" for purpose of the Collateral Agency Agreement.
SECTION 11.2 Designation of Series 2002-B Portfolio Interest Collateral.
Each of the Series 2002-B Portfolio Interest Obligors hereby agrees that the
collateral over which the Security Interest is created pursuant to Section 11.1
above (the "Series 2002-B Portfolio Interest Collateral") consists of the
following:
(a) the Series 2002-B Portfolio Assets, the Series 2002-B Portfolio
Interest and the Series 2002-B Portfolio Certificate; and
(b) all proceeds of any of the foregoing, in each case, whether now
owned or existing or hereafter acquired or arising and regardless of where
located. All of the Series 2002-B Portfolio Interest Collateral shall constitute
"Designated Collateral" for purposes of the Collateral Agency Agreement.
SECTION 11.3 Delivery of Series 2002-B Portfolio Certificate. Harco Leasing
has agreed to deliver the Series 2002-B Portfolio Certificate to Navistar
Financial. Navistar Financial has agreed to deliver the Series 2002-B Portfolio
Certificate to NFRRC. NFRRC has agreed to deliver the Series 2002-B Portfolio
Certificate to the Issuer, and the Issuer has agreed to deliver the Series
2002-B Portfolio Certificate to the Indenture Trustee. The Indenture Trustee
will be the Holder of the Series 2002-B Portfolio Certificate (the "Series
2002-B Portfolio Interest Holder").
SECTION 11.4 Perfection of Security Interest in Designated Collateral. Each
of the Servicer, the Titling Trust and each Series 2002-B Portfolio Interest
Obligor hereby agrees to take such steps as are necessary to perfect the
Security Interest of the Collateral Agent, on behalf of the Series 2002-B
Secured Parties, over the Series 2002-B Portfolio Interest Collateral.
SECTION 11.5 Designation of Secured Parties. Each of Navistar Financial in
its capacity as purchaser under the Lease Purchase Agreement, NFRRC in its
capacity as purchaser under the Purchase Agreement, the Issuer in its capacity
as transferee under the Pooling
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Agreement and the Indenture Trustee in its capacity as Trustee under the
Indenture shall, in such capacity, be a Secured Party under the Collateral
Agency Agreement.
SECTION 11.6 Schedule of Retail Leases.
(a) On or before each Lease Purchase Date, the Servicer shall deliver
to each of the Collateral Agent and the Indenture Trustee a list of all Retail
Leases which shall be, effective as of the closing to occur on such date,
allocated to the Series 2002-B Portfolio Interest.
(b) The Collateral Agent shall maintain the current list of Retail
Leases described in this Section 11.6 for examination by the Series 2002-B
Secured Parties and their respective representatives during normal business
hours and upon prior written request at the address set forth on the signature
page hereof.
SECTION 11.7 Statements; Further Assurances. The Servicer agrees to execute
and record and file or cause to be recorded and filed financing statements (and
continuation and other statements with respect to such financing statements,
when appropriate) with respect to the Series 2002-B Portfolio Interest
Collateral (whether now existing or hereafter created) meeting the requirements
of applicable state or local law in such manner and in such jurisdictions as the
Series 2002-B Portfolio Interest Holder reasonably determines are necessary or
desirable to perfect, and to maintain perfection of (and the priority of), the
Series 2002-B Portfolio Interest Holder's Security Interest in the Series 2002-B
Portfolio Interest Collateral. The Servicer shall deliver (or cause to be
delivered) to the Series 2002-B Portfolio Interest Holder file-stamped copies
of, or filing receipts for, any document filed as provided above, as soon as
available following such filing. Subject to Section 11.6 hereof, at any time and
from time to time, upon the written request of the Series 2002-B Portfolio
Interest Holder, the Servicer will promptly and duly execute and deliver any and
all such further instruments and documents as the Series 2002-B Portfolio
Interest Holder may reasonably request to: (i) obtain the full benefit of the
Security Interest intended to be afforded hereby and of the rights and powers
herein granted (subject to the Servicer's rights under this Series 2002-B
Collateral Supplement), (ii) enforce the rights of the Series 2002-B Portfolio
Interest Holder in any of the Series 2002-B Portfolio Interest Collateral; or
(iii) preserve and defend the rights of the Series 2002-B Portfolio Interest
Holder in the Series 2002-B Portfolio Interest Collateral against the claims of
all Persons and parties.
SECTION 11.8 Remedies. Articles V and VI of the Collateral Agency Agreement
shall not be applicable with respect to the Series 2002-B Portfolio Interest
Collateral and neither Harco Leasing nor any Series 2002-B Portfolio Interest
Holder shall be deemed to be an Electing Holder thereunder. It is the intent of
the parties to this Series 2002-B Collateral Supplement that, upon the
occurrence of an Event of Default under the Indenture, the Collateral Agent will
act as the agent, and at the written direction, of the Indenture Trustee with
respect to the Series 2002-B Portfolio Interest Collateral, and the Indenture
Trustee may exercise all available remedies under the Indenture with respect to
the Series 2002-B Portfolio Interest Collateral by itself or through the
Collateral Agent.
SECTION 11.9 Re-allocation of Series 2002-B Portfolio Assets. If any Retail
Lease becomes a Warranty Receivable or an Administrative Receivable, the
repurchase by NFC or NFRRC or any other Person of such Retail Lease and the
Related Titling Trust Assets in
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accordance with the Basic Documents shall constitute a transfer thereof and of
any related Series 2002-B Portfolio Interest Collateral to which Section 2.2(b)
of the Collateral Agency Agreement shall be effective.
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.1 Notices. The notice provisions of Section 9.1 of the
Collateral Agency Agreement shall apply equally to this Series 2002-B Collateral
Supplement.
SECTION 12.2 Successors and Assigns. Whenever any of the parties hereto is
referred to such reference shall be deemed to include the successors and assigns
of such party; and all the covenants, promises and agreements in this Series
2002-B Collateral Supplement contained by or on behalf of the parties hereto
shall bind and inure to the benefit of the respective successors and assigns of
such parties whether so expressed or not.
SECTION 12.3 Severability. Any provision of this Series 2002-B Collateral
Supplement that is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 12.4 Governing Law. This Series 2002-B Collateral Supplement 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.
SECTION 12.5 Counterparts. This Series 2002-B Collateral Supplement 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 together shall constitute one and the
same instrument.
SECTION 12.6 Termination. This Series 2002-B Collateral Supplement shall
terminate when the Security Interest granted hereunder has terminated in
accordance with Section 8.2 of the Collateral Agency Agreement and all the
Series 2002-B Portfolio Interest Collateral has been released; provided that the
provisions of Section 7.12 of the Collateral Agency Agreement shall not be
affected by any such termination.
SECTION 12.7 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.
SECTION 12.8 Effect of this Series 2002-B Collateral Supplement on the
Collateral Agency Agreement. Except as otherwise specifically provided herein:
(i) the parties shall continue to be bound by all provisions of the Collateral
Agency Agreement; (ii) the provisions set forth herein shall operate either as
additions to or modifications of the obligations of the parties under the
Collateral Agency Agreement, as the context may require; and (iii) the
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Collateral Agent shall be afforded the same rights, protections, immunities and
indemnities as set forth in the Collateral Agency Agreement as if the same were
expressly set forth herein. In the event of any conflict between the provisions
of this Series 2002-B Collateral Supplement and the Collateral Agency Agreement
with respect to the Series 2002-B Portfolio Interest Collateral, the provisions
of this Series 2002-B Collateral Supplement shall prevail.
* * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Series 2002-B
Collateral Supplement to the Collateral Agency Agreement to be duly executed by
their respective officers as of the day and year first above written.
HARCO LEASING COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
NAVISTAR LEASING COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
NAVISTAR FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
NAVISTAR FINANCIAL RETAIL
RECEIVABLES CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
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NAVISTAR FINANCIAL 2002-B OWNER
TRUST
By: Chase Manhattan Bank USA, National
Association, not in its individual capacity, but
solely in its capacity as Owner Trustee
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
Address: 000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
THE BANK OF NEW YORK,
solely in its capacity as Indenture Trustee
By: /s/ Xxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Treasure
Address: 000 Xxxxxxx, 0X
Xxx Xxxx, XX 00000
THE BANK OF NEW YORK, solely in its
capacity as Collateral Agent
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title:
Address:
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