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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported) September 19, 1996
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CASE RECEIVABLES II INC.
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(Exact Name of Registrant as Specified in its Charter)
Delaware
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(State or Other Jurisdiction of Incorporation)
33-99298 76-0439709
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(Commission File Number) (I.R.S. Employer Identification No.)
233 Lake Street, Racine, Wisconsin 53403
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(Address of Principal Executive Offices) (Zip Code)
(414) 636-6011
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(Registrant's Telephone Number, Including Area Code)
Not Applicable
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(Former Name or Former Address, if Changed Since Last Report)
Page 1 of _____.
Index to Exhibits appears at page 4.
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Item 5. Other Events.
The Registrant is filing final forms of the exhibits listed in Item
7(c) below.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
Exhibit
No. Document Description
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4.1 Indenture between Case Equipment Loan Trust 1996-B (the "Trust") and
Harris Trust and Savings Bank (the "Indenture Trustee"), dated as of
September 1, 1996.
4.2 Trust Agreement between Case Receivables II Inc. ("CRC") and Chase
Manhattan Bank Delaware (the "Trustee"), dated as of September 1,
1996.
4.3 Sale and Servicing Agreement between CRC, Case Credit Corporation and
the Trust, dated as of September 1, 1996.
4.4 The Purchase Agreement between Case Credit Corporation and CRC, dated
as of September 1, 1996.
4.5 The Administration Agreement among the Trust and Case Credit
Corporation, dated as of September 1, 1996.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
CASE RECEIVABLES II INC.
(Registrant)
Dated: September 19, 1996 By: /s/ Robert A. Wegner
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Robert A. Wegner
Vice President
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INDEX TO EXHIBITS
Exhibit Sequential
No. Document Description Page No.
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4.1 Indenture between Case Equipment Loan Trust 1996-B (the 5
"Trust") and Harris Trust and Savings Bank (the
"Indenture Trustee"), dated as of September 1, 1996.
4.2 Trust Agreement between Case Receivables II Inc. ("CRC") 105
and Chase Manhattan Bank Delaware (the "Trustee"), dated
as of September 1, 1996.
4.3 Sale and Servicing Agreement between CRC, Case Credit 155
Corporation and the Trust, dated as of September 1, 1996.
4.4 The Purchase Agreement between Case Credit Corporation 256
and CRC, dated as of September 1, 1996.
4.5 The Administration Agreement among the Trust and Case 288
Credit Corporation, dated as of September 1, 1996.
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CASE EQUIPMENT LOAN TRUST 1996-B
INDENTURE
between
CASE EQUIPMENT LOAN TRUST 1996-B
and
HARRIS TRUST AND SAVINGS BANK,
as Indenture Trustee.
Dated as of September 1, 1996
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Table of Contents
Page
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.1. Definitions............................................ 3
SECTION 1.2. Incorporation by Reference of Trust Indenture Act...... 11
SECTION 1.3. Rules of Construction.................................. 11
ARTICLE II
The Indenture Notes
SECTION 2.1. Form................................................... 12
SECTION 2.2. Execution, Authentication and Delivery................. 12
SECTION 2.3. Temporary Indenture Notes.............................. 13
SECTION 2.4. Registration; Registration of Transfer and Exchange.... 13
SECTION 2.5. Mutilated, Destroyed, Lost or Stolen Indenture Notes... 15
SECTION 2.6. Persons Deemed Owner................................... 16
SECTION 2.7. Payment of Principal and Interest; Defaulted Interest.. 16
SECTION 2.8. Cancellation........................................... 17
SECTION 2.9. Release of Collateral.................................. 18
SECTION 2.10. Book-Entry Notes...................................... 18
SECTION 2.11. Notices to Clearing Agency............................ 19
SECTION 2.12. Definitive Notes...................................... 19
ARTICLE III
Covenants
SECTION 3.1. Payment of Principal and Interest...................... 20
SECTION 3.2. Maintenance of Office or Agency........................ 20
SECTION 3.3. Money for Payments To Be Held in Trust................. 20
SECTION 3.4. Existence.............................................. 22
SECTION 3.5. Protection of the Collateral and the Trust Estate...... 22
SECTION 3.6. Opinions as to the Collateral and the Trust Estate..... 23
SECTION 3.7. Performance of Obligations; Servicing of Receivables... 24
SECTION 3.8. Negative Covenants..................................... 26
SECTION 3.9. Annual Statement as to Compliance...................... 27
SECTION 3.10. Issuer May Consolidate, etc., Only on Certain Terms... 27
SECTION 3.11. Successor or Transferee............................... 29
SECTION 3.12. No Other Business..................................... 29
SECTION 3.13. No Borrowing.......................................... 29
SECTION 3.14. Servicer's Obligations................................ 30
SECTION 3.15. Guarantees, Loans, Advances and Other Liabilities..... 30
SECTION 3.16. Capital Expenditures.................................. 30
SECTION 3.17. Removal of Administrator.............................. 30
SECTION 3.18. Restricted Payments................................... 30
SECTION 3.19. Notice of Events of Default........................... 31
SECTION 3.20. Further Instruments and Acts.......................... 31
ARTICLE IV
Satisfaction and Discharge
SECTION 4.1. Satisfaction and Discharge of Indenture................ 31
SECTION 4.2. Application of Trust Money............................. 32
SECTION 4.3. Repayment of Moneys Held by Paying Agent............... 33
ARTICLE V
Remedies
SECTION 5.1. Events of Default...................................... 33
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment..... 34
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee................................... 35
SECTION 5.4. Remedies; Priorities................................... 38
SECTION 5.5. Optional Preservation of the Receivables............... 40
SECTION 5.6. Limitation of Suits.................................... 40
SECTION 5.7. Unconditional Rights of Indenture Noteholders To Receive
Principal and Interest.............................. 41
SECTION 5.8. Restoration of Rights and Remedies..................... 41
SECTION 5.9. Rights and Remedies Cumulative......................... 41
SECTION 5.10. Delay or Omission Not a Waiver........................ 42
SECTION 5.11. Control by Indenture Noteholders...................... 42
SECTION 5.12. Waiver of Past Defaults............................... 42
SECTION 5.13. Undertaking for Costs................................. 43
SECTION 5.14. Waiver of Stay or Extension Laws...................... 43
SECTION 5.15. Action on Indenture Notes............................. 44
SECTION 5.16. Performance and Enforcement of Certain Obligations.... 44
ARTICLE VI
The Indenture Trustee
SECTION 6.1. Duties of the Indenture Trustee........................ 45
SECTION 6.2. Rights of Indenture Trustee............................ 47
SECTION 6.3. Individual Rights of the Indenture Trustee............. 48
SECTION 6.4. Indenture Trustee's Disclaimer......................... 48
SECTION 6.5. Notice of Defaults..................................... 48
SECTION 6.6. Reports by Indenture Trustee to the Holders............ 48
SECTION 6.7. Compensation and Indemnity............................. 48
SECTION 6.8. Replacement of the Indenture Trustee................... 49
SECTION 6.9. Successor Indenture Trustee by Merger.................. 50
SECTION 6.10. Appointment of Co-Trustee or Separate Trustee......... 51
SECTION 6.11. Eligibility; Disqualification......................... 52
SECTION 6.12. Preferential Collection of Claims Against the Issuer.. 52
ARTICLE VII
Indenture Noteholders' Lists and Reports
SECTION 7.1. Issuer To Furnish Indenture Trustee Names and Addresses
of Indenture Noteholders............................ 53
SECTION 7.2. Preservation of Information; Communications to
Indenture Noteholders............................... 53
SECTION 7.3. Reports by Issuer...................................... 53
ARTICLE VIII
Accounts, Disbursements and Releases
SECTION 8.1. Collection of Money.................................... 54
SECTION 8.2. Trust Accounts......................................... 54
SECTION 8.3. General Provisions Regarding Accounts.................. 56
SECTION 8.4. Release of Trust Estate................................ 57
SECTION 8.5. Opinion of Counsel..................................... 57
ARTICLE IX
Supplemental Indentures
SECTION 9.1. Supplemental Indentures Without Consent of Indenture
Noteholders.................................................... 58
SECTION 9.2. Supplemental Indentures With Consent of Indenture
Noteholders.................................................... 59
SECTION 9.3. Execution of Supplemental Indentures................... 61
SECTION 9.4. Effect of Supplemental Indenture....................... 61
SECTION 9.5. Conformity with Trust Indenture Act.................... 62
SECTION 9.6. Reference in Indenture Notes to Supplemental Indentures 62
ARTICLE X
Redemption of Indenture Notes
SECTION 10.1. Redemption............................................ 62
SECTION 10.2. Form of Redemption Notice............................. 63
SECTION 10.3. Indenture Notes Payable on Redemption Date............ 64
ARTICLE XI
Miscellaneous
SECTION 11.1. Compliance Certificates and Opinions, etc............. 64
SECTION 11.2. Form of Documents Delivered to Indenture Trustee...... 66
SECTION 11.3. Acts of Indenture Noteholders......................... 67
SECTION 11.4. Notices, etc., to the Indenture Trustee, Issuer
and Rating Agencies................................. 68
SECTION 11.5. Notices to Indenture Noteholders; Waiver.............. 69
SECTION 11.6. Alternate Payment and Notice Provisions............... 69
SECTION 11.7. Conflict with Trust Indenture Act..................... 70
SECTION 11.8. Effect of Headings and Table of Contents.............. 70
SECTION 11.9. Successors and Assigns................................ 70
SECTION 11.10. Severability......................................... 70
SECTION 11.11. Benefits of Indenture................................ 70
SECTION 11.12. Legal Holidays....................................... 70
SECTION 11.13. Governing Law........................................ 71
SECTION 11.14. Counterparts......................................... 71
SECTION 11.15. Recording of Indenture............................... 71
SECTION 11.16. Trust Obligation..................................... 71
SECTION 11.17. No Petition.......................................... 71
SECTION 11.18. Inspection........................................... 72
SECTION 11.19. Rights of Collateral Agent........................... 72
EXHIBITS
EXHIBIT A-1 Form of A-1 Notes
EXHIBIT A-2 Form of A-2 Notes
EXHIBIT A-3 Form of A-3 Notes
EXHIBIT B Form of Section 3.9 Officers' Certificate
INDENTURE, dated as of September 1, 1996, between CASE EQUIPMENT LOAN
TRUST 1996-B, a Delaware business trust (the "Issuer"), and HARRIS TRUST
AND SAVINGS BANK, an Illinois banking corporation ("Harris"), as trustee
and not in its individual capacity (the "Indenture Trustee").
Each party agrees as follows for the benefit of the other party, for
the equal and ratable benefit of the Holders of the Issuer's 5.5625% Class
A-1 Asset Backed Notes (each an "A-1 Note"), 6.25% Class A-2 Asset Backed
Notes (each an "A-2 Note") and 6.65% Class A-3 Asset Backed Notes (each an
"A-3 Note"; and together with the A-1 Notes and the A-2 Notes, the
"Indenture Notes") and solely to the extent expressly provided below, for
the equal and ratable benefit of the holders of the Issuer's Class B Asset
Backed Notes (each a "Class B Note").
GRANTING CLAUSE
The Issuer hereby Grants to Harris at the Closing Date, as Indenture
Trustee for the benefit of the Holders of the Indenture Notes and as
Collateral Agent for the benefit of the Class B Noteholders, all of the
Issuer's right, title and interest in, to and under the following, whether
now existing or hereafter arising or acquired (collectively, the
"Collateral"):
(a) the Receivables, including all documents constituting
chattel paper included therewith, and all obligations of the Obligors
thereunder, including all moneys paid thereunder on or after the
Initial Cutoff Date or the applicable Subsequent Cutoff Date;
(b) the security interests in the Financed Equipment granted by
Obligors pursuant to the Receivables and any other interest of the
Issuer in the Financed Equipment;
(c) any proceeds with respect to the Receivables from claims on
insurance policies covering Financed Equipment or Obligors;
(d) the Liquidity Receivables Purchase Agreement (only with
respect to Contracts included in the Receivables) and the Purchase
Agreement, including the right of the Issuer to cause Credit to
repurchase Receivables from the Seller under the circumstances
described therein;
(e) any proceeds from recourse to Dealers with respect to the
Receivables other than any interest in the Dealers' reserve accounts
maintained with Credit;
(f) any Financed Equipment that shall have secured a Receivable
and that shall have been acquired by or on behalf of the Trust;
(g) all funds on deposit from time to time in the Trust
Accounts, including the Spread Account Initial Deposit, the Negative
Carry Account Initial Deposit and the Pre-Funded Amount, and in all
investments and proceeds thereof (including all income thereon);
(h) the Sale and Servicing Agreement (including all rights of
the Seller under the Liquidity Receivables Purchase Agreement and the
Purchase Agreement assigned to the Issuer pursuant to the Sale and
Servicing Agreement); and
(i) all present and future claims, demands, causes and choses in
action in respect of any or all of the foregoing and all payments on
or under and all proceeds of every kind and nature whatsoever in
respect of any or all of the foregoing, including all proceeds of the
conversion, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, deposit accounts,
insurance proceeds, condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables,
instruments and other property that at any time constitute all or
part of or are included in the proceeds of any and all of the
foregoing.
The foregoing Grant is made in trust to secure (x) first, the payment
of principal of and interest on, and any other amounts owing in respect of,
the Indenture Notes, equally and ratably without prejudice, priority or
distinction, and to secure compliance with this Indenture, all as provided
in this Indenture and (y) second, the payment of principal of and interest
on, and any other amounts owing in respect of, the Class B Notes, equally
and ratably without prejudice, priority or distinction, and to secure
compliance with Class B Notes and the Class B Note Purchase Agreement.
(1) Harris, as Indenture Trustee on behalf of the Indenture
Noteholders, and the Indenture Trustee, as Collateral Agent on behalf of
the Class B Noteholders, acknowledges such Grant, and (2) as Indenture
Trustee on behalf of the Indenture Noteholders accepts the trusts under
this Indenture in accordance with this Indenture and agrees to perform its
duties required in this Indenture to the best of its ability to the end
that the interests of the Holders of the Indenture Notes may be adequately
and effectively protected. The Indenture Trustee is acting as Collateral
Agent for the Class B Noteholders solely for the purpose of perfecting and
maintaining the lien Granted for their benefit hereunder and shall not be
deemed to be a trustee or fiduciary for, or, except by perfecting and
maintaining such lien, otherwise required to protect the interests of, the
Class B Noteholders, except that nothing contained herein shall impair the
limited voting rights of the Class B Noteholders under this Indenture.
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.1. Definitions. (a) Except as otherwise specified herein
or as the context may otherwise require, the following terms have the
respective meanings set forth below for all purposes of this Indenture:
"A-1 Note" is defined in the recitals. Each A-1 Note shall be
substantially in the form of Exhibit A-1.
"A-1 Note Rate" means 5.5625% per annum, computed on the basis of a
360-day year of twelve 30-day months.
"A-2 Note" is defined in the recitals. Each A-2 Note shall be
substantially in the form of Exhibit A-2.
"A-2 Note Rate" means 6.25% per annum, computed on the basis of a
360-day year of twelve 30-day months.
"A-3 Note" is defined in the recitals. Each A-3 Note shall be
substantially in the form of Exhibit A-3.
"A-3 Note Rate" means 6.65% per annum, computed on the basis of a
360-day year of twelve 30-day months.
"Act" has the meaning specified in Section 11.3(a).
"Administration Agreement" means the Administration Agreement, dated
as of the date hereof, among the Administrator, the Issuer and the
Indenture Trustee.
"Administrator" means Case Credit Corporation, a Delaware
corporation, or any successor Administrator under the Administration
Agreement.
"Affiliate" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authorized Officer" means, with respect to the Issuer, any officer
of the Trustee who is authorized to act for the Trustee in matters relating
to the Issuer and who is identified on the list of Authorized Officers
delivered by the Trustee to the Indenture Trustee on the Closing Date (as
such list may be modified or supplemented from time to time thereafter)
and, so long as the Administration Agreement is in effect, any Vice
President or more senior officer of the Administrator who is authorized to
act for the Administrator in matters relating to the Issuer and to be acted
upon by the Administrator pursuant to the Administration Agreement and who
is identified on the list of Authorized Officers delivered by the
Administrator to the Indenture Trustee on the Closing Date (in each case as
such list may be modified or supplemented from time to time thereafter).
"Basic Documents" means the Certificate of Trust, the Trust
Agreement, the Purchase Agreement, the Sale and Servicing Agreement, the
Administration Agreement, the Class B Note Purchase Agreement, the Class B
Notes, the Depository Agreement and other documents and certificates
delivered in connection therewith.
"Book-Entry Notes" means a beneficial interest in the Indenture Notes
of a particular Class, ownership and transfers of which shall be made
through book entries by a Clearing Agency as described in Section 2.10.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions or trust companies in The City of New York
and The City of Chicago, Illinois are authorized or obligated by law,
regulation or executive order to remain closed.
"Certificate of Trust" means the certificate of trust of the Issuer
substantially in the form of Exhibit B to the Trust Agreement.
"Class" means any class of Notes.
"Class B Note" is defined in the recitals. Each Class B Note shall be
in the form set forth in the Class B Note Purchase Agreement.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act that has been
designated as the "Clearing Agency" for purposes of this Indenture.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Date" means September 19, 1996.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, and Treasury Regulations promulgated thereunder.
"Collateral" has the meaning specified in the Granting Clause of this
Indenture.
"Collateral Agent" means the Indenture Trustee, in its capacity as
collateral agent for the Class B Noteholders, together with any successor
in that capacity.
"Commission" shall mean the Securities and Exchange Commission.
"Corporate Trust Office" means the principal office of the Indenture
Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of the execution of this
Agreement is located at Harris Trust and Savings Bank, 311 West Monroe,
Chicago, Illinois 60606 (facsimile no. (312) 461-3525), Attention:
Indenture Trust Administration; or at such other address as the Indenture
Trustee may designate from time to time by notice to the Indenture
Noteholders and the Issuer, or the principal corporate trust office of any
successor Indenture Trustee (the address of which the successor Indenture
Trustee will notify the Indenture Noteholders and the Issuer).
"Default" means any occurrence that is, or with notice or the lapse
of time or both would become, an Event of Default.
"Definitive Notes" has the meaning specified in Section 2.10.
"Depository Agreement" has the meaning specified in the
Administration Agreement.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executive Officer" means, with respect to any corporation, the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer,
President, Executive Vice President, any Vice President, the Secretary or
the Treasurer of such corporation; and with respect to any partnership, any
general partner thereof.
"Grant" means mortgage, pledge, bargain, sell, warrant, alienate,
remise, release, convey, assign, transfer, create and grant a Lien upon and
a security interest in and right of set-off against, deposit, set over and
confirm pursuant to this Indenture, and other forms of the verb "to Grant"
shall have correlative meanings. A Grant of the Collateral or of any other
agreement or instrument shall include all rights, powers and options (but
none of the obligations) of the Granting party thereunder, including the
immediate and continuing right to claim for, collect, receive and give
receipt for principal and interest payments in respect of the Collateral
and all other moneys payable thereunder, to give and receive notices and
other communications, to make waivers or other agreements, to exercise all
rights and options, to bring Proceedings in the name of the Granting party
or otherwise and generally to do and receive anything that the Granting
party is or may be entitled to do or receive thereunder or with respect
thereto.
"Harris" means Harris Trust and Savings Bank, an Illinois banking
corporation.
"Holder" means the Person in whose name an Indenture Note is
registered on the Indenture Note Register.
"Indenture" means this Indenture as amended or supplemented from time
to time.
"Indenture Note Depository Agreement" means the agreement among the
Issuer, the Indenture Trustee, the Administrator and The Depository Trust
Company, as the initial Clearing Agency, dated as of the Closing Date.
"Indenture Noteholder" means a Holder.
"Indenture Note Register" and "Indenture Note Registrar" have the
respective meanings specified in Section 2.4.
"Indenture Notes" is defined in the introduction hereto.
"Indenture Trustee" means Harris Trust and Savings Bank, an Illinois
banking corporation, not in its individual capacity but solely as Indenture
Trustee under this Indenture, or any successor Indenture Trustee under this
Indenture.
"Independent" means, when used with respect to any specified Person,
that the Person: (a) is in fact independent of the Issuer, any other
obligor upon the Indenture Notes, the Seller and any Affiliate of any of
the foregoing Persons, (b) does not have any direct financial interest or
any material indirect financial interest in the Issuer, any such other
obligor, the Seller or any Affiliate of any of the foregoing Persons and
(c) is not connected with the Issuer, any such other obligor, the Seller or
any Affiliate of any of the foregoing Persons as an officer, employee,
promoter, underwriter, trustee, partner, director or Person performing
similar functions.
"Independent Certificate" means a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in,
and otherwise complying with, the applicable requirements of Section 11.1,
made by an Independent appraiser or other expert appointed by an Issuer
Order and approved by the Indenture Trustee in the exercise of reasonable
care, and such opinion or certificate shall state that the signer has read
the definition of "Independent" in this Indenture and that the signer is
Independent within the meaning thereof.
"Issuer" means Case Equipment Loan Trust 1996-B until a successor
replaces it and, thereafter, means the successor and, for purposes of any
provision contained herein and required by the TIA, each other obligor on
the Indenture Notes.
"Issuer Order" and "Issuer Request" means a written order or request,
respectively, signed in the name of the Issuer by any one of its Authorized
Officers and delivered to the Indenture Trustee.
"Note Owner" means, with respect to a Book-Entry Note, the Person who
is the owner of such Book-Entry Note, as reflected on the books of the
Clearing Agency, or on the books of a Person maintaining an account with
the Clearing Agency (directly as a Clearing Agency Participant or as an
indirect participant, in each case in accordance with the rules of the
Clearing Agency).
"Officers' Certificate" means a certificate signed by any two
Authorized Officers of the Issuer, under the circumstances described in,
and otherwise complying with, the applicable requirements of Section 11.1,
and delivered to the Indenture Trustee.
"Opinion of Counsel" means one or more written opinions of counsel
(who may, except as otherwise expressly provided in this Indenture, be
employees of or counsel to the Issuer), which counsel and opinion shall be
satisfactory to the Indenture Trustee, and which opinion(s) shall be
addressed to the Indenture Trustee as Indenture Trustee and shall comply
with any applicable requirements of Section 11.1 and shall be in form and
substance satisfactory to the Indenture Trustee.
"Outstanding" means, as of the date of determination, all Indenture
Notes theretofore authenticated and delivered under this Indenture except:
(i) Indenture Notes theretofore cancelled by the Indenture Note
Registrar or delivered to the Indenture Note Registrar for
cancellation;
(ii) Indenture Notes or portions thereof the payment for which
money in the necessary amount has been theretofore deposited with the
Indenture Trustee or any Paying Agent in trust for the Holders of
such Indenture Notes (provided, however, that if such Indenture Notes
are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture); and
(iii) Indenture Notes in exchange for or in lieu of other
Indenture Notes that have been authenticated and delivered pursuant
to this Indenture unless proof satisfactory to the Indenture Trustee
is presented that any such Indenture Notes are held by a bona fide
purchaser;
provided, that in determining whether the Holders of the requisite
Outstanding Amount of the Indenture Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or under any
Basic Document, Indenture Notes owned by the Issuer, any other obligor upon
the Indenture Notes, the Seller or any Affiliate of any of the foregoing
Persons shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Indenture Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Indenture Notes that a Responsible Officer of the Indenture
Trustee actually knows to be so owned shall be so disregarded. Indenture
Notes so owned that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Indenture
Trustee the pledgee's right so to act with respect to such Indenture Notes
and that the pledgee is not the Issuer, any other obligor upon the
Indenture Notes, the Seller or any Affiliate of any of the foregoing
Persons.
"Outstanding Amount" means the aggregate principal amount of all
Indenture Notes, or Class of Indenture Notes, as applicable, Outstanding at
the date of determination.
"Paying Agent" means the Indenture Trustee or any other Person that
meets the eligibility standards for the Indenture Trustee specified in
Section 6.11 and is authorized by the Issuer to make the payments to and
distributions from the Collection Account and the Note Distribution
Account, including payment of principal of or interest on the Indenture
Notes and the Class B Notes on behalf of the Issuer.
"Payment Date" has the meaning set forth in the Sale and Servicing
Agreement.
"Person" means any individual, corporation, limited liability
company, estate, partnership, joint venture, association, joint stock
company, trust (including any beneficiary thereof), unincorporated
organization or government or any agency or political subdivision thereof.
"Predecessor Indenture Note" means, with respect to any particular
Indenture Note, every previous Indenture Note evidencing all or a portion
of the same debt as that evidenced by such particular Indenture Note; and,
for the purpose of this definition, any Indenture Note authenticated and
delivered under Section 2.5 in lieu of a mutilated, lost, destroyed or
stolen Indenture Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Indenture Note.
"Proceeding" means any suit in equity, action at law or other
judicial or administrative proceeding.
"Rating Agency Condition" means, with respect to any action, that
each Rating Agency shall have been given 10 days prior notice thereof and
that each of the Rating Agencies shall have notified the Seller, the
Servicer and the Issuer in writing that such action will not result in a
reduction or withdrawal of the then current rating of any Class of the
Indenture Notes.
"Receivable" means any Contract listed on the Schedule of
Receivables.
"Record Date" means, with respect to a Payment Date or Redemption
Date, the close of business on the fourteenth day of the calendar month in
which such Payment Date or Redemption Date occurs, or, if Definitive Notes
are issued, the close of business on the last day of the calendar month
preceding the month of such Payment Date, whether or not such day is a
Business Day.
"Redemption Date" means: (i) the Payment Date specified by the
Servicer or the Issuer pursuant to Section 10.1(a) or (b), as applicable,
or (ii) in the case of a redemption of Indenture Notes pursuant to Section
10.1(c), the Payment Date specified in Section 5.7(b) of the Sale and
Servicing Agreement on which the Indenture Trustee shall withdraw the
Pre-Funded Percentage for the Indenture Notes of any amount remaining in
the Pre-Funding Account on such Payment Date and deposit such amount in the
Note Distribution Account.
"Redemption Price" means the unpaid principal amount of the Indenture
Notes redeemed, plus accrued and unpaid interest thereon at the applicable
interest rate to but excluding the Redemption Date.
"Registered Holder" means the Person in whose name an Indenture Note
is registered on the Indenture Note Register on the applicable Record Date.
"Responsible Officer" means, with respect to the Indenture Trustee,
any officer within the Corporate Trust Office of the Indenture Trustee,
including any Vice President, Assistant Vice President, Secretary or
Assistant Secretary, or any other officer of the Indenture Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Sale and Servicing Agreement" means the Sale and Servicing
Agreement, dated as of the date hereof, among the Issuer, the Seller and
the Servicer.
"Schedule of Receivables" means the listing of the Receivables set
forth on Schedule A to the Sale and Servicing Agreement, as supplemented as
of each Subsequent Transfer Date to reflect the sale to the Issuer of
Subsequent Receivables.
"State" means any one of the 50 states of the United States of
America or the District of Columbia.
"Successor Servicer" has the meaning specified in Section 3.7(e).
"TIA" means the Trust Indenture Act.
"Trust Estate" means all the money, instruments, rights and other
property that are subject or intended to be subject to the Lien and
security interest of this Indenture for the benefit of the Indenture
Noteholders (including all property and interests Granted to the Indenture
Trustee), including all proceeds thereof.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as in
force on the date hereof unless otherwise specifically provided.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code, as in effect in the relevant jurisdiction, as amended from
time to time.
(b) Except as otherwise specified herein or as the context may
otherwise require, the capitalized terms used herein but not defined have
the respective meanings set forth in the Sale and Servicing Agreement for
all purposes of this Indenture.
SECTION 1.2. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The
following terms, where used in the TIA, shall have the following meanings
for the purposes hereof:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Indenture Notes.
"indenture security holder" means an Indenture Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture
Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission
rule have the meaning assigned to them by such definitions.
SECTION 1.3. Rules of Construction. Unless the context otherwise
requires: (i) a term has the meaning assigned to it; (ii) an accounting
term not otherwise defined has the meaning assigned to it in accordance
with generally accepted accounting principles as in effect on the date
hereof; (iii) "or" is not exclusive; (iv) "including" means "including,
without limitation"; and (v) words in the singular include the plural and
words in the plural include the singular.
ARTICLE II
The Indenture Notes
SECTION 2.1. Form. The A-1 Notes, A-2 Notes and A-3 Notes, together
with the Indenture Trustee's certificate of authentication, shall be in
substantially the forms set forth in Exhibits A-1, A-2 and A-3,
respectively, with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and
may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon, as may, consistently herewith, be
determined by the officers executing such Indenture Notes, as evidenced by
their execution of the Indenture Notes. Any portion of the text of any
Indenture Note may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Indenture Note.
The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without
steel engraved borders), all as determined by the officers executing such
Indenture Notes, as evidenced by their execution of such Indenture Notes.
Each Indenture Note shall be dated the date of its authentication.
The terms of the Indenture Notes set forth in Exhibits A-1, A-2 and A-3 are
part of the terms of this Indenture.
SECTION 2.2. Execution, Authentication and Delivery. The Indenture
Notes shall be executed on behalf of the Issuer by any of its Authorized
Officers. The signature of any such Authorized Officer on the Indenture
Notes may be manual or facsimile.
Indenture Notes bearing the manual or facsimile signature of
individuals who were at the time of signature Authorized Officers of the
Issuer shall bind the Issuer, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Indenture Notes or did not hold such offices at the date
of such Indenture Notes.
The Indenture Trustee shall upon Issuer Order authenticate and
deliver A-1 Notes, A-2 Notes and A-3 Notes for original issue in an
aggregate principal amount of $125,000,000, $362,000,000 and $329,000,000,
respectively. The Outstanding Amount of A-1 Notes, A-2 Notes and A-3 Notes
at any time may not exceed such respective amounts except as provided in
Section 2.5.
Each Indenture Note shall be dated the date of its authentication.
The Indenture Notes shall be issuable as registered Indenture Notes in the
minimum denomination of $1,000 and in integral multiples of $1,000 in
excess thereof.
No Indenture Note shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless there appears
on such Indenture Note a certificate of authentication substantially in the
form provided for herein executed by the Indenture Trustee by the manual
signature of one of its authorized signatories, and such certificate of
authentication shall be conclusive evidence, and the only evidence, that
such Indenture Note has been duly authenticated and delivered hereunder.
SECTION 2.3. Temporary Indenture Notes. Pending the preparation of
Definitive Notes, the Issuer may execute, and upon receipt of an Issuer
Order, the Indenture Trustee shall authenticate and deliver, temporary
Indenture Notes that are printed, lithographed, typewritten, mimeographed
or otherwise produced, of the tenor of the Definitive Notes in lieu of
which they are issued and with such variations not inconsistent with this
Indenture as the officers executing such Indenture Notes may determine, as
evidenced by their execution of such Indenture Notes.
If temporary Indenture Notes are issued, the Issuer will cause
Definitive Notes to be prepared without unreasonable delay. After the
preparation of Definitive Notes, the temporary Indenture Notes shall be
exchangeable for Definitive Notes upon surrender of the temporary Indenture
Notes at the office or agency of the Issuer to be maintained as provided in
Section 3.2, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Indenture Notes, the Issuer shall execute and
the Indenture Trustee shall authenticate and deliver in exchange therefor a
like principal amount of Definitive Notes of authorized denominations.
Until so exchanged, the temporary Indenture Notes shall in all respects be
entitled to the same benefits under this Indenture as if they were
Definitive Notes.
SECTION 2.4. Registration; Registration of Transfer and Exchange.
The Issuer shall cause to be kept a register (the "Indenture Note
Register") in which, subject to such reasonable regulations as it may
prescribe, the Issuer shall provide for the registration of Indenture Notes
and the registration of transfers of Indenture Notes. The Indenture Trustee
shall be the "Indenture Note Registrar" for the purpose of registering
Indenture Notes and transfers of Indenture Notes as herein provided. Upon
any resignation of any Indenture Note Registrar, the Issuer shall promptly
appoint a successor or, if it elects not to make such an appointment,
assume the duties of the Indenture Note Registrar.
If a Person other than the Indenture Trustee is appointed by the
Issuer as the Indenture Note Registrar, the Issuer will give the Indenture
Trustee prompt written notice of the appointment of such Indenture Note
Registrar and of the location, and any change in the location, of the
Indenture Note Register, and the Indenture Trustee shall have the right to
inspect the Indenture Note Register at all reasonable times, to obtain
copies thereof and to rely upon a certificate executed on behalf of the
Indenture Note Registrar by an Executive Officer thereof as to the names
and addresses of the Holders of the Indenture Notes and the principal
amounts and number of such Indenture Notes.
Upon surrender for registration of transfer of any Indenture Note at
the office or agency of the Issuer to be maintained as provided in Section
3.2, if the requirements of Section 8-401(1) of the UCC are met, the Issuer
shall execute, the Indenture Trustee shall authenticate and the Indenture
Noteholder shall obtain from the Indenture Trustee, in the name of the
designated transferee or transferees, one or more new Indenture Notes in
any authorized denominations of a like aggregate principal amount.
At the option of the Holder, Indenture Notes may be exchanged for
other new Indenture Notes of the same Class in any authorized denominations
of a like aggregate principal amount, upon surrender of the Indenture Notes
to be exchanged at such office or agency. Whenever any Indenture Notes are
so surrendered for exchange, if the requirements of Section 8-401(1) of the
UCC are met, the Issuer shall execute, the Indenture Trustee shall
authenticate and the Indenture Noteholder shall obtain from the Indenture
Trustee, the Indenture Notes that the Indenture Noteholder making the
exchange is entitled to receive.
All Indenture Notes issued upon any registration of transfer or
exchange of Indenture Notes shall be the valid obligations of the Issuer,
evidencing the same debt and entitled to the same benefits under this
Indenture as the Indenture Notes surrendered upon such registration of
transfer or exchange.
Every Indenture Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed by, or be accompanied by a
written instrument of transfer in form satisfactory to the Indenture
Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing, with such signature guaranteed by an "eligible
guarantor institution" meeting the requirements of the Indenture Note
Registrar, which requirements include membership or participation in the
Securities Transfer Agent's Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the Indenture Note
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Exchange Act.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Indenture Notes, but the Issuer may require payment
of a sum sufficient to cover any tax or other governmental charge that may
be imposed in connection with any registration of transfer or exchange of
Indenture Notes, other than exchanges pursuant to Section 2.3 or 9.6 not
involving any transfer.
SECTION 2.5. Mutilated, Destroyed, Lost or Stolen Indenture Notes.
If: (i) any mutilated Indenture Note is surrendered to the Indenture
Trustee, or the Indenture Trustee receives evidence to its satisfaction of
the destruction, loss or theft of any Indenture Note, and (ii) there is
delivered to the Indenture Trustee such security or indemnity as may be
required by the Indenture Trustee and the Issuer to hold the Indenture
Trustee and the Issuer, respectively, harmless, then, in the absence of
notice to the Issuer, the Indenture Note Registrar or the Indenture Trustee
that such Indenture Note has been acquired by a bona fide purchaser, and
provided that the requirements of Section 8-405 of the UCC are met, the
Issuer shall execute, and upon its request the Indenture Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Indenture Note, a replacement Indenture Note of
the same Class; provided, however, that if any such destroyed, lost or
stolen Indenture Note, but not a mutilated Indenture Note, shall have
become, or within seven days shall be, due and payable, or shall have been
called for redemption, instead of issuing a replacement Indenture Note, the
Issuer may pay such destroyed, lost or stolen Indenture Note when so due or
payable or upon the Redemption Date without surrender thereof. If, after
the delivery of such replacement Indenture Note (or payment of a destroyed,
lost or stolen Indenture Note pursuant to the proviso to the preceding
sentence), a bona fide purchaser of the original Indenture Note in lieu of
which such replacement Indenture Note was issued presents for payment such
original Indenture Note, the Issuer and the Indenture Trustee shall be
entitled to recover such replacement Indenture Note (or such payment) from
the Person to whom it was delivered or any Person taking such replacement
Indenture Note from such Person to whom such replacement Indenture Note was
delivered (or payment made) or any assignee of such Person, except a bona
fide purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or
expense incurred by the Issuer or the Indenture Trustee in connection
therewith.
Upon the issuance of any replacement Indenture Note under this
Section, the Issuer may require the payment by the Holder of such Indenture
Note of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other reasonable expenses
(including the fees and expenses of the Indenture Trustee) connected
therewith.
Every replacement Indenture Note issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Indenture Note
shall constitute an original additional contractual obligation of the
Issuer, whether or not the mutilated, destroyed, lost or stolen Indenture
Note shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and
all other Indenture Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Indenture
Notes.
SECTION 2.6. Persons Deemed Owner. Prior to due presentment for
registration of transfer of any Indenture Note, the Issuer, the Indenture
Trustee and any agent of the Issuer or the Indenture Trustee may treat the
Person in whose name any Indenture Note is registered (as of the day of
determination) as the owner of such Indenture Note for the purpose of
receiving payments of principal of and interest, if any, on such Indenture
Note and for all other purposes whatsoever, whether or not such Indenture
Note be overdue, and neither the Issuer, the Indenture Trustee nor any
agent of the Issuer or the Indenture Trustee shall be affected by notice to
the contrary.
SECTION 2.7. Payment of Principal and Interest; Defaulted Interest.
(a) The A-1 Notes, A-2 Notes and A-3 Notes shall accrue interest at the A-1
Note Rate, the A-2 Note Rate and the A-3 Note Rate, respectively, and such
interest shall be payable on each Payment Date, subject to Section 3.1. Any
installment of interest or principal, if any, payable on any Indenture Note
that is punctually paid or duly provided for by the Issuer on the
applicable Payment Date shall be paid to the Person in whose name such
Indenture Note (or one or more Predecessor Indenture Notes) is registered
on the Record Date by check mailed first-class, postage prepaid, to such
Person's address as it appears on the Indenture Note Register on such
Record Date. However, unless Definitive Notes have been issued, with
respect to Indenture Notes registered on the Record Date in the name of the
nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payment will be made by wire transfer in immediately available funds to the
account designated by such nominee. Notwithstanding the above, the final
installment of principal payable with respect to such Indenture Note (and
except for the Redemption Price for any Indenture Note called for
redemption pursuant to Section 10.1(a)) shall be payable as provided in
clause (b)(ii). The funds represented by any such checks returned
undelivered shall be held in accordance with Section 3.3.
(b)(i) The principal of each Indenture Note shall be payable in
installments on each Payment Date as provided in this Indenture.
Notwithstanding the foregoing, the entire Outstanding Amount shall be due
and payable, ratably to all Indenture Noteholders, on: (A) the date on
which an Event of Default shall have occurred and be continuing if the
Indenture Trustee or the Holders of Indenture Notes representing not less
than a majority of the Outstanding Amount of the Indenture Notes have
declared the Indenture Notes to be immediately due and payable in the
manner provided in Section 5.2, and (B) if any Indenture Notes remain
Outstanding, on and after the September 2003 Payment Date. In all other
circumstances, all principal payments on each Class of Indenture Notes
shall be made pro rata to the Indenture Noteholders of such Class entitled
thereto.
(ii) The Indenture Trustee shall notify the Person in whose
name an Indenture Note is registered at the close of business on the
Record Date preceding the Payment Date on which the Issuer expects
that the final installment of principal of and interest on such
Indenture Note will be paid. Such notice shall be mailed no later
than five days prior to such final Payment Date and shall specify
that such final installment will be payable only upon presentation
and surrender of such Indenture Note and shall specify the place
where such Indenture Note may be presented and surrendered for
payment of such installment. Notices in connection with redemptions
of Indenture Notes shall be mailed to Indenture Noteholders as
provided in Section 10.2.
(c) If the Issuer defaults in a payment of interest on the Indenture
Notes, the Issuer shall pay, in any lawful manner, defaulted interest (plus
interest on such defaulted interest to the extent lawful) at the applicable
interest rate from the Payment Date for which such payment is in default.
The Issuer may pay such defaulted interest to the Persons who are Indenture
Noteholders on a subsequent special record date, which date shall be at
least five Business Days prior to the special payment date. The Issuer
shall fix or cause to be fixed any such special record date and special
payment date, and, at least 15 days before any such special record date,
shall mail to each Indenture Noteholder a notice that states the special
record date, the special payment date and the amount of defaulted interest
to be paid.
SECTION 2.8. Cancellation. All Indenture Notes surrendered for
payment, registration of transfer, exchange or redemption shall, if
surrendered to any Person other than the Indenture Trustee, be delivered to
the Indenture Trustee and shall be promptly cancelled by the Indenture
Trustee. The Issuer may at any time deliver to the Indenture Trustee for
cancellation any Indenture Notes previously authenticated and delivered
hereunder that the Issuer may have acquired in any manner whatsoever, and
all Indenture Notes so delivered shall be promptly cancelled by the
Indenture Trustee. No Indenture Notes shall be authenticated in lieu of or
in exchange for any Indenture Notes cancelled as provided in this Section
except as expressly permitted by this Indenture. All cancelled Indenture
Notes may be held or disposed of by the Indenture Trustee in accordance
with its standard retention or disposal policy as in effect at the time
unless the Issuer shall direct by an Issuer Order that they be returned to
it; provided, that such Issuer Order is timely and the Indenture Notes have
not been previously disposed of by the Indenture Trustee.
SECTION 2.9. Release of Collateral. Subject to Section 11.1 and the
Basic Documents, the Indenture Trustee shall release property from the Lien
of this Indenture only upon receipt of an Issuer Request accompanied by an
Officers' Certificate, an Opinion of Counsel and Independent Certificates
in accordance with TIA 314(c) and 314(d)(l), or an Opinion of Counsel in
lieu of such Independent Certificates to the effect that the TIA does not
require any such Independent Certificates.
SECTION 2.10. Book-Entry Notes. The A-1 Notes, the A-2 Notes and the
A-3 Notes, upon original issuance, will be issued in the form of
typewritten Indenture Notes representing the Book-Entry Notes, to be
delivered to The Depository Trust Company (the initial Clearing Agency), or
its custodian, by, or on behalf of, the Issuer. Such Indenture Notes shall
initially be registered on the Indenture Note Register in the name of Cede
& Co., the nominee of the initial Clearing Agency, and no Note Owner of
such Indenture Note will receive a Definitive Note representing such Note
Owner's interest in such Indenture Note, except as provided in Section
2.12. Unless and until definitive, fully registered Indenture Notes (the
"Definitive Notes") representing the A-1 Notes, the A-2 Notes and the A-3
Notes have been issued to Note Owners:
(i) this Section shall be in full force and effect;
(ii) the Indenture Note Registrar and the Indenture Trustee may
deal with the Clearing Agency for all purposes (including the payment
of principal of and interest on the Indenture Notes) as the
authorized representative of the Note Owners;
(iii) to the extent that this Section conflicts with any other
provisions of this Indenture, this Section shall control;
(iv) the rights of Note Owners shall be exercised only through
the Clearing Agency and shall be limited to those established by law
and agreements between such Note Owners and the Clearing Agency
and/or the Clearing Agency Participants pursuant to the Indenture
Note Depository Agreement. Unless and until Definitive Notes are
issued, the Clearing Agency will make book-entry transfers among the
Clearing Agency Participants and receive and transmit payments of
principal of and interest on the Indenture Notes to such Clearing
Agency Participants; and
(v) whenever this Indenture requires or permits actions to be
taken based upon instructions or directions of Holders of Indenture
Notes evidencing a specified percentage of the Outstanding Amount of
the Indenture Notes (or a Class of Indenture Notes), the Clearing
Agency shall be deemed to represent such percentage only to the
extent that it has received instructions to such effect from Note
Owners and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in
the Indenture Notes (or Class of Indenture Notes) and has delivered
such instructions to the Indenture Trustee.
SECTION 2.11. Notices to Clearing Agency. Whenever a notice or other
communication to the Indenture Noteholders is required under this
Indenture, unless and until Definitive Notes have been issued to Note
Owners, the Indenture Trustee shall give all such notices and
communications to the Clearing Agency.
SECTION 2.12. Definitive Notes. (a) If: (i) the Administrator
advises the Indenture Trustee in writing that the Clearing Agency is no
longer willing or able to properly discharge its responsibilities with
respect to the Indenture Notes, and the Administrator is unable to locate a
qualified successor, (ii) the Administrator at its option advises the
Indenture Trustee in writing that it elects to terminate the book-entry
system through the Clearing Agency or (iii) after the occurrence of an
Event of Default or a Servicer Default, Note Owners representing beneficial
interests aggregating at least a majority of the Outstanding Amount of the
Indenture Notes advise the Clearing Agency in writing that the continuation
of a book-entry system through the Clearing Agency is no longer in the best
interests of the Note Owners, then the Clearing Agency has undertaken to
notify all Note Owners and the Indenture Trustee of the occurrence of any
such event and of the availability of Definitive Notes to Note Owners
requesting the same. Upon surrender to the Indenture Trustee of the
typewritten Indenture Notes representing the Book-Entry Notes by the
Clearing Agency, accompanied by registration instructions, the Issuer shall
execute, and the Indenture Trustee shall authenticate, the Definitive Notes
in accordance with the instructions of the Clearing Agency. None of the
Issuer, the Indenture Note Registrar or the Indenture Trustee shall be
liable for any delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Notes, the Indenture Trustee shall recognize the
Holders of the Definitive Notes as Indenture Noteholders.
(b) Notwithstanding anything herein to the contrary, the Class B
Notes shall be issued as Definitive Notes in accordance with the applicable
Class B Note Purchase Agreement.
ARTICLE III
Covenants
SECTION 3.1. Payment of Principal and Interest. The Issuer will duly
and punctually pay the principal and interest, if any, on the Indenture
Notes in accordance with the terms of the Indenture Notes and this
Indenture. Without limiting the foregoing, subject to Section 8.2(c), the
Issuer will cause to be distributed all amounts on deposit in the Note
Distribution Account on a Payment Date deposited therein for the benefit of
the Indenture Notes pursuant to the Sale and Servicing Agreement to Holders
of the Indenture Notes. Amounts properly withheld under the Code or any
applicable State law by any Person from a payment to any Indenture
Noteholder of interest and/or principal shall be considered as having been
paid by the Issuer to such Indenture Noteholder for all purposes of this
Indenture.
SECTION 3.2. Maintenance of Office or Agency. The Issuer will
maintain in the Borough of Manhattan, The City of New York, an office or
agency where Indenture Notes may be surrendered for registration of
transfer or exchange, and where notices and demands to or upon the Issuer
in respect of the Indenture Notes and this Indenture may be served. The
Issuer hereby initially appoints the Indenture Trustee to serve as its
agent for the foregoing purposes. The Issuer will give prompt written
notice to the Indenture Trustee of the location, and of any change in the
location, of any such office or agency. If at any time the Issuer shall
fail to maintain any such office or agency or shall fail to furnish the
Indenture Trustee with the address thereof, such surrenders, notices and
demands may be made or served at the Corporate Trust Office, and the Issuer
hereby appoints the Indenture Trustee as its agent to receive all such
surrenders, notices and demands.
SECTION 3.3. Money for Payments To Be Held in Trust. As provided in
Section 8.2(a) and (b), all payments of amounts due and payable with
respect to any Indenture Notes that are to be made from amounts withdrawn
from the Collection Account and the Note Distribution Account pursuant to
Section 8.2(c) shall be made on behalf of the Issuer by the Indenture
Trustee or by another Paying Agent, and no amounts so withdrawn from the
Collection Account and the Note Distribution Account for payments of
Indenture Notes shall be paid over to the Issuer except as provided in this
Section.
On or before each Payment Date and Redemption Date, the Issuer shall
deposit or cause to be deposited in the Note Distribution Account an
aggregate sum sufficient to pay the amounts then becoming due under the
Indenture Notes, such sum to be held in trust for the benefit of the
Persons entitled thereto and (unless the Paying Agent is the Indenture
Trustee) shall promptly notify the Indenture Trustee of its action or
failure so to act.
The Issuer will cause each Paying Agent other than the Indenture
Trustee to execute and deliver to the Indenture Trustee an instrument in
which such Paying Agent shall agree with the Indenture Trustee (and if the
Indenture Trustee acts as Paying Agent, it hereby so agrees), subject to
the provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due with
respect to the Indenture Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and pay such sums
to such Persons as herein provided;
(ii) give the Indenture Trustee notice of any default by the
Issuer (or any other obligor upon the Indenture Notes) of which it
has actual knowledge in the making of any payment required to be made
with respect to the Indenture Notes;
(iii) at any time during the continuance of any such default,
upon the written request of the Indenture Trustee, forthwith pay to
the Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to
the Indenture Trustee all sums held by it in trust for the payment of
Indenture Notes if at any time it ceases to meet the standards
required to be met by a Paying Agent; and
(v) comply with all requirements of the Code and any applicable
State law with respect to the withholding from any payments made by
it on any Indenture Notes of any applicable withholding taxes imposed
thereon and with respect to any applicable reporting requirements in
connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by
Issuer Order, direct any Paying Agent to pay to the Indenture Trustee all
sums held in trust by such Paying Agent, such sums to be held by the
Indenture Trustee upon the same trusts as those upon which the sums were
held by such Paying Agent; and upon such payment by any Paying Agent to the
Indenture Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Subject to applicable laws with respect to escheat of funds, any
money held by the Indenture Trustee or any Paying Agent in trust for the
payment of any amount due with respect to any Indenture Note and remaining
unclaimed for two years after such amount has become due and payable shall
be discharged from such trust and be paid to the Issuer on Issuer Request;
and the Holder of such Indenture Note shall thereafter, as an unsecured
general creditor, look only to the Issuer for payment thereof (but only to
the extent of the amounts so paid to the Issuer), and all liability of the
Indenture Trustee or such Paying Agent with respect to such trust money
shall thereupon cease; provided, however, that the Indenture Trustee or
such Paying Agent, before being required to make any such repayment, shall
at the expense and direction of the Issuer cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in The City of New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the
Issuer. The Indenture Trustee shall also adopt and employ, at the expense
of the Issuer, any other reasonable means of notification of such repayment
(including mailing notice of such repayment to Holders whose Indenture
Notes have been called but have not been surrendered for redemption or
whose right to or interest in moneys due and payable but not claimed is
determinable from the records of the Indenture Trustee or of any Paying
Agent, at the last address of record for each such Holder).
SECTION 3.4. Existence. The Issuer will keep in full effect its
existence, rights and franchises as a business trust under the laws of the
jurisdiction of its organization and will obtain and preserve its
qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Indenture Notes, the Collateral and
each other instrument or agreement included in the Trust Estate.
SECTION 3.5. Protection of the Collateral and the Trust Estate. The
Issuer will from time to time execute and deliver all such supplements and
amendments hereto and all such financing statements, continuation
statements, instruments of further assurance and other instruments, and
will take such other action necessary or advisable to:
(i) maintain or preserve the Lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the
purposes hereof;
(ii) perfect, publish notice of or protect the validity of any
Grant made or to be made by this Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Collateral and the Trust
Estate and (A) the rights of the Indenture Trustee and the Indenture
Noteholders in such Collateral and Trust Estate and (B) the rights of
the Collateral Agent and the Class B Noteholders in such Collateral
against the claims of all Persons.
The Issuer hereby designates the Indenture Trustee and Collateral Agent as
its agent and attorney-in-fact to execute any financing statement,
continuation statement, instrument of further assurance or other instrument
required to be executed to accomplish the foregoing.
SECTION 3.6. Opinions as to the Collateral and the Trust Estate. (a)
On the Closing Date, the Issuer shall furnish to the Indenture Trustee and
Collateral Agent an Opinion of Counsel either stating that, in the opinion
of such counsel, such action has been taken with respect to the recording
and filing of this Indenture, any indentures supplemental hereto and any
other requisite documents, and with respect to the execution and filing of
any financing statements and continuation statements, as are necessary to
perfect and make effective the Lien and security interest created by this
Indenture and reciting the details of such action, or stating that, in the
opinion of such counsel, no such action is necessary to make such Lien and
security interest effective.
(b) On or before April 30 in each calendar year, the Issuer shall
furnish to the Indenture Trustee an Opinion of Counsel either stating that,
in the opinion of such counsel, such action has been taken with respect to
the recording, filing, re-recording and refiling of this Indenture, any
indentures supplemental hereto and any other requisite documents, and with
respect to the execution and filing of any financing statements and
continuation statements, as is necessary to maintain the Lien and security
interest of this Indenture and reciting the details of such action, or
stating that in the opinion of such counsel no such action is necessary to
maintain such Lien and security interest. Such Opinion of Counsel shall
also describe the recording, filing, re-recording and refiling of this
Indenture, any indentures supplemental hereto and any other requisite
documents, and the execution and filing of any financing statements and
continuation statements, that will, in the opinion of such counsel, be
required to maintain the Lien and security interest of this Indenture until
April 30 in the following calendar year.
SECTION 3.7. Performance of Obligations; Servicing of Receivables.
(a) The Issuer will not take any action and will use its best efforts not
to permit any action to be taken by others that would release any Person
from any material covenants or obligations under any instrument or
agreement included in the Collateral or the Trust Estate or that would
result in the amendment, hypothecation, subordination, termination or
discharge of, or impair the validity or effectiveness of, any such
instrument or agreement, except as expressly provided in this Indenture,
the Sale and Servicing Agreement or such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such
duties by a Person identified to the Indenture Trustee in an Officers'
Certificate of the Issuer shall be deemed to be action taken by the Issuer.
Initially, the Issuer has contracted with the Servicer and the
Administrator to assist the Issuer in performing its duties under this
Indenture.
(c) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Basic Documents
and in the instruments and agreements included in the Collateral and the
Trust Estate, including filing or causing to be filed all UCC financing
statements and continuation statements required to be filed by this
Indenture and the Sale and Servicing Agreement in accordance with and
within the time periods provided for herein and therein. Except as
otherwise expressly provided therein, the Issuer shall not waive, amend,
modify, supplement or terminate any Basic Document or any provision thereof
without the consent of the Indenture Trustee or the Holders of at least a
majority of the Outstanding Amount of the Indenture Notes.
(d) If the Issuer shall have knowledge of the occurrence of a
Servicer Default, the Issuer shall promptly notify the Indenture Trustee
and the Rating Agencies thereof, and shall specify in such notice the
action, if any, the Issuer is taking with respect to such default. If a
Servicer Default shall arise from the failure of the Servicer to perform
any of its duties or obligations under the Sale and Servicing Agreement
with respect to the Receivables, the Issuer shall take all reasonable steps
available to it to remedy such failure.
(e) As promptly as possible after the giving of notice of
termination to the Servicer of the Servicer's rights and powers pursuant to
Section 8.1 of the Sale and Servicing Agreement, the Issuer shall appoint a
successor servicer (the "Successor Servicer"), and such Successor Servicer
shall accept its appointment by a written assumption in a form acceptable
to the Indenture Trustee. In the event that a Successor Servicer has not
been appointed and accepted its appointment at the time when the previous
Servicer ceases to act as Servicer, the Indenture Trustee without further
action shall automatically be appointed the Successor Servicer. The
Indenture Trustee may resign as the Servicer by giving written notice of
such resignation to the Issuer and in such event will be released from such
duties and obligations, such release not to be effective until the date a
Successor Servicer enters into a servicing agreement with the Issuer as
provided below. Upon delivery of any such notice to the Issuer, the Issuer
shall obtain a new servicer as the Successor Servicer under the Sale and
Servicing Agreement. Any Successor Servicer other than the Indenture
Trustee shall: (i) be an established financial institution having a net
worth of not less than $50,000,000 and whose regular business includes the
servicing of receivables and (ii) enter into a servicing agreement with the
Issuer having substantially the same provisions as the provisions of the
Sale and Servicing Agreement applicable to the Servicer. If within 30 days
after the delivery of the notice referred to above, the Issuer shall not
have obtained such a Successor Servicer, the Indenture Trustee may appoint,
or may petition a court of competent jurisdiction to appoint, a Successor
Servicer. In connection with any such appointment, the Indenture Trustee
may make such arrangements for the compensation of such Successor Servicer
as it and such Successor Servicer shall agree, subject to the limitations
set forth below and in the Sale and Servicing Agreement, and in accordance
with Section 8.2 of the Sale and Servicing Agreement, the Issuer shall
enter into an agreement with such Successor Servicer for the servicing of
the Receivables (such agreement to be in form and substance satisfactory to
the Indenture Trustee). If the Indenture Trustee shall succeed to the
previous Servicer's duties as servicer of the Receivables as provided
herein, it shall do so in its individual capacity and not in its capacity
as Indenture Trustee and, accordingly, the provisions of Article VI shall
be inapplicable to the Indenture Trustee in its duties as the Successor
Servicer and the servicing of the Receivables. In case the Indenture
Trustee shall become the Successor Servicer under the Sale and Servicing
Agreement, the Indenture Trustee shall be entitled to appoint as Servicer
any one of its Affiliates; provided, that it shall be fully liable for the
actions and omissions of such Affiliate in its capacity as Successor
Servicer.
(f) Upon any termination of the Servicer's rights and powers
pursuant to the Sale and Servicing Agreement, the Issuer shall promptly
notify the Indenture Trustee. As soon as a Successor Servicer is appointed,
the Issuer shall notify the Indenture Trustee of such appointment,
specifying in such notice the name and address of such Successor Servicer.
(g) Without derogating from the absolute nature of the assignment
Granted to the Indenture Trustee under this Indenture or the rights of the
Indenture Trustee hereunder, the Issuer agrees that it will not, without
the prior written consent of the Indenture Trustee or the Holders of at
least a majority of the Outstanding Amount, amend, modify, waive,
supplement, terminate or surrender, or agree to any amendment,
modification, supplement, termination, waiver or surrender of, the terms of
any Collateral (except to the extent otherwise provided in the Sale and
Servicing Agreement) or the Basic Documents, or waive timely performance or
observance by the Servicer or the Seller under the Sale and Servicing
Agreement or Credit under the Purchase Agreement; provided, however, that
no such amendment shall: (i) increase or reduce in any manner the amount
of, or accelerate or delay the timing of, distributions that are required
to be made for the benefit of the Indenture Noteholders, or (ii) reduce the
aforesaid percentage of the Indenture Notes that are required to consent to
any such amendment, in either case without the consent of the Holders of
all the Outstanding Indenture Notes. If any such amendment, modification,
supplement or waiver shall be so consented to by the Indenture Trustee or
such Holders, the Issuer agrees, promptly following a request by the
Indenture Trustee to do so, to execute and deliver, in its own name and at
its own expense, such agreements, instruments, consents and other documents
as the Indenture Trustee may deem necessary or appropriate in the
circumstances.
SECTION 3.8. Negative Covenants. So long as any Indenture Notes are
Outstanding, the Issuer shall not:
(i) except as expressly permitted by this Indenture, the
Purchase Agreement or the Sale and Servicing Agreement, sell,
transfer, exchange or otherwise dispose of any of the properties or
assets of the Issuer, including those included in the Collateral and
the Trust Estate, unless directed to do so by the Indenture Trustee;
(ii) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Indenture Notes
(other than amounts properly withheld from such payments under the
Code or applicable State law) or assert any claim against any present
or former Indenture Noteholder by reason of the payment of the taxes
levied or assessed upon any part of the Collateral or the Trust
Estate; or
(iii)(A) permit the validity or effectiveness of this Indenture
to be impaired, or permit the Lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any
Person to be released from any covenants or obligations with respect
to the Indenture Notes under this Indenture except as may be
expressly permitted hereby, (B) permit any Lien (other than the Lien
of this Indenture) to be created on or extend to or otherwise arise
upon or burden the Collateral or the Trust Estate or any part thereof
or any interest therein or the proceeds thereof or (C) permit the
Lien of this Indenture not to constitute a valid first priority
(other than with respect to any tax lien, mechanics' lien or other
lien not considered a Lien) security interest in the Collateral or
the Trust Estate.
SECTION 3.9. Annual Statement as to Compliance. The Issuer will
deliver to the Indenture Trustee, within 120 days after the end of each
fiscal year of the Issuer (commencing with the fiscal year 1996), an
Officers' Certificate, substantially in the form of Exhibit B, stating
that:
(i) a review of the activities of the Issuer during such year
and of performance under this Indenture has been made under such
Authorized Officers' supervision; and
(ii) to the best of such Authorized Officers' knowledge, based
on such review, the Issuer has complied with all conditions and
covenants under this Indenture throughout such year or, if there has
been a default in the compliance of any such condition or covenant,
specifying each such default known to such Authorized Officers and
the nature and status thereof.
SECTION 3.10. Issuer May Consolidate, etc., Only on Certain Terms.
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless:
(i) the Person (if other than the Issuer) formed by or surviving
such consolidation or merger shall be a Person organized and existing
under the laws of the United States of America or any State and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Indenture Trustee, in form satisfactory to the
Indenture Trustee, the due and punctual payment of the principal of
and interest on all Indenture Notes and the performance or observance
of every agreement and covenant of this Indenture on the part of the
Issuer to be performed or observed, all as provided herein;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Indenture Trustee) to the
effect that such transaction will not have any material adverse tax
consequence to the Issuer, any Indenture Noteholder or any
Certificateholder;
(v) any action that is necessary to maintain the Lien and
security interest created by this Indenture shall have been taken;
and
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officers' Certificate and an Opinion of Counsel each stating that
such consolidation or merger and such supplemental indenture comply
with this Article III and that all conditions precedent herein
provided for relating to such transaction have been complied with
(including any filing required by the Exchange Act).
(b) The Issuer shall not convey or transfer any of its properties or
assets, including those included in the Collateral or the Trust Estate, to
any Person, unless:
(i) the Person that acquires by conveyance or transfer the
properties and assets of the Issuer the conveyance or transfer of
which is hereby restricted shall: (A) be a United States citizen or a
Person organized and existing under the laws of the United States of
America or any State, (B) expressly assumes, by an indenture
supplemental hereto, executed and delivered to the Indenture Trustee,
in form satisfactory to the Indenture Trustee, the due and punctual
payment of the principal of and interest on all Indenture Notes and
the performance or observance of every agreement and covenant of this
Indenture on the part of the Issuer to be performed or observed, all
as provided herein, (C) expressly agrees by means of such
supplemental indenture that all right, title and interest so conveyed
or transferred shall be subject and subordinate to the rights of
Holders of the Indenture Notes, (D) unless otherwise provided in such
supplemental indenture, expressly agrees to indemnify, defend and
hold harmless the Issuer against and from any loss, liability or
expense arising under or related to this Indenture and the Indenture
Notes and (E) expressly agrees by means of such supplemental
indenture that such Person (or if a group of Persons, then one
specified Person) shall make all filings with the Commission (and any
other appropriate Person) required by the Exchange Act in connection
with the Indenture Notes;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Indenture Trustee) to the
effect that such transaction will not have any material adverse tax
consequence to the Issuer, any Indenture Noteholder or any
Certificateholder;
(v) any action that is necessary to maintain the Lien and
security interest created by this Indenture shall have been taken;
and
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officers' Certificate and an Opinion of Counsel each stating that
such conveyance or transfer and such supplemental indenture comply
with this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with (including
any filing required by the Exchange Act).
SECTION 3.11. Successor or Transferee. (a) Upon any consolidation or
merger of the Issuer in accordance with Section 3.10(a), the Person formed
by or surviving such consolidation or merger (if other than the Issuer)
shall succeed to, and be substituted for, and may exercise every right and
power of, the Issuer under this Indenture with the same effect as if such
Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties
of the Issuer pursuant to Section 3.10(b), the Issuer will be released from
every covenant and agreement of this Indenture to be observed or performed
on the part of the Issuer with respect to the Indenture Notes immediately
upon the delivery of written notice to the Indenture Trustee stating that
the Issuer is to be so released.
SECTION 3.12. No Other Business. The Issuer shall not engage in any
business other than financing, purchasing, owning, selling and managing of
the Receivables in the manner contemplated by this Indenture and the Basic
Documents and activities incidental thereto.
SECTION 3.13. No Borrowing. The Issuer shall not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for
any indebtedness except for the Indenture Notes, the Initial Class B Notes
and Additional Class B Notes complying with the following sentence. The
Issuer shall not issue any Additional Class B Notes with an interest rate
exceeding the weighted average APR of all Receivables after giving effect
to all purchases of Subsequent Receivables on or prior to the date of
issuance of such Additional Class B Notes minus 1% unless the Rating Agency
Condition is satisfied as to any higher rate, nor will the Issuer increase
the interest rate on any outstanding Class B Notes to a rate exceeding the
weighted average APR of all Receivables after giving effect to all
purchases of Subsequent Receivables on or prior to the date of such
increase minus 1% unless the Rating Agency Condition is satisfied as to
such increase. Additional credit enhancement may be provided if necessary
to enable the Issuer to issue Additional Class B Notes (or increase the
interest rate on outstanding Class B Notes) bearing an interest rate in
excess of the rate that would otherwise be permitted by the preceding
sentence.
SECTION 3.14. Servicer's Obligations. The Issuer shall cause the
Servicer to comply with Sections 4.8, 4.9, 4.10, 4.11 and 5.9 of the Sale
and Servicing Agreement.
SECTION 3.15. Guarantees, Loans, Advances and Other Liabilities.
Except as contemplated by the Sale and Servicing Agreement or this
Indenture, the Issuer shall not make any loan or advance or credit to, or
guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance on any obligation or capability
of so doing or otherwise), endorse or otherwise become contingently liable,
directly or indirectly, in connection with the obligations, stocks or
dividends of, or own, purchase, repurchase or acquire (or agree
contingently to do so) any stock, obligations, assets or securities of, or
any other interest in, or make any capital contribution to, any other
Person.
SECTION 3.16. Capital Expenditures. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital
assets (either realty or personalty).
SECTION 3.17. Removal of Administrator. So long as any Indenture
Notes are Outstanding, the Issuer shall not remove the Administrator
without cause unless the Rating Agency Condition shall have been satisfied
in connection with such removal.
SECTION 3.18. Restricted Payments. The Issuer shall not, directly or
indirectly: (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a
combination thereof, to the Trustee or any owner of a beneficial interest
in the Issuer or otherwise with respect to any ownership or equity interest
or security in or of the Issuer or to the Servicer or the Administrator,
(ii) redeem, purchase, retire or otherwise acquire for value any such
ownership or equity interest or security or (iii) set aside or otherwise
segregate any amounts for any such purpose; provided, however, that the
Issuer may make, or cause to be made, distributions to the Servicer, the
Trustee, the Certificateholders and the Administrator as contemplated by,
and to the extent funds are available for such purpose under, the Sale and
Servicing Agreement. The Issuer will not, directly or indirectly, make
payments to or distributions from the Collection Account except in
accordance with this Indenture and the Basic Documents.
SECTION 3.19. Notice of Events of Default. The Issuer shall give the
Indenture Trustee and the Rating Agencies prompt written notice of each
Event of Default hereunder, each default on the part of the Servicer or the
Seller of its obligations under the Sale and Servicing Agreement and each
default on the part of Credit of its obligations under the Purchase
Agreement.
SECTION 3.20. Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuer will execute and deliver such further
instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purpose of this Indenture.
ARTICLE IV
Satisfaction and Discharge
SECTION 4.1. Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect with respect to the Indenture Notes
except as to: (i) rights of registration of transfer and exchange, (ii)
substitution of mutilated, destroyed, lost or stolen Indenture Notes, (iii)
rights of Indenture Noteholders to receive payments of principal thereof
and interest thereon, (iv) Sections 3.3, 3.4, 3.5, 3.8, 3.10, 3.12 and
3.13, (v) the rights, obligations and immunities of the Indenture Trustee
hereunder (including the rights of the Indenture Trustee under Section 6.7
and the obligations of the Indenture Trustee under Section 4.2) and (vi)
the rights of Indenture Noteholders as beneficiaries hereof with respect to
the property so deposited with the Indenture Trustee payable to all or any
of them, and the Indenture Trustee, on demand of and at the expense of the
Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to the Indenture Notes, when:
(A) either:
(1) all Indenture Notes theretofore authenticated and
delivered (other than: (i) Indenture Notes that have been
destroyed, lost or stolen and that have been replaced or paid as
provided in Section 2.5 and (ii) Indenture Notes for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Issuer and thereafter repaid
to the Issuer or discharged from such trust, as provided in
Section 3.3) have been delivered to the Indenture Trustee for
cancellation; or
(2) all Indenture Notes not theretofore delivered to the
Indenture Trustee for cancellation:
(i) have become due and payable,
(ii) will become due and payable on the Final
Scheduled Maturity Date within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Indenture Trustee
for the giving of notice of redemption by the Indenture
Trustee in the name, and at the expense, of the Issuer,
and the Issuer, in the case of clause (2)(i), (ii) or (iii), has
irrevocably deposited or caused to be irrevocably deposited with
the Indenture Trustee cash or direct obligations of or
obligations guaranteed by the United States of America (which
will mature prior to the date such amounts are payable), in
trust for such purpose, in an amount sufficient to pay and
discharge the entire indebtedness on such Indenture Notes not
theretofore delivered to the Indenture Trustee for cancellation
when due to the Final Scheduled Maturity Date or Redemption Date
(if Indenture Notes shall have been called for redemption
pursuant to Section 10.1(a)), as the case may be;
(B) the Issuer has paid or caused to be paid all other sums
payable hereunder by the Issuer; and
(C) the Issuer has delivered to the Indenture Trustee an
Officers' Certificate, an Opinion of Counsel and (if required by the
TIA or the Indenture Trustee) an Independent Certificate from a firm
of certified public accountants, each meeting the applicable
requirements of Section 11.1(a) and, subject to Section 11.2, each
stating that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture have been complied
with;
provided, that, if at any time when the conditions set forth above have
been satisfied the Class B Notes have not been repaid in full, then this
Indenture shall not be discharged but shall continue as a security
agreement for the benefit of the Class B Noteholders, and the Class B Agent
shall succeed to all of the rights of the Indenture Trustee relating to the
Collateral and remedies hereunder, for the benefit of the Class B
Noteholders.
SECTION 4.2. Application of Trust Money. All moneys deposited with
the Indenture Trustee pursuant to Section 4.1 shall be held in trust and
applied by it, in accordance with the provisions of the Indenture Notes and
this Indenture, to the payment, either directly or through any Paying
Agent, as the Indenture Trustee may determine, to the Holders of the
particular Indenture Notes for the payment or redemption of which such
moneys have been deposited with the Indenture Trustee, of all sums due and
to become due thereon for principal and interest; but such moneys need not
be segregated from other funds except to the extent required herein or in
the Sale and Servicing Agreement or as required by law.
SECTION 4.3. Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the
Indenture Notes, all moneys then held by any Paying Agent other than the
Indenture Trustee under this Indenture with respect to such Indenture Notes
shall, upon demand of the Issuer, be paid to the Indenture Trustee to be
held and applied according to Section 3.3, and thereupon such Paying Agent
shall be released from all further liability with respect to such moneys.
ARTICLE V
Remedies
SECTION 5.1. Events of Default. "Event of Default", wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body):
(i) default in the payment of any interest on any Indenture Note
when the same becomes due and payable, and such default shall
continue for a period of five days;
(ii) default in the payment of the principal of any Indenture
Note when the same becomes due and payable;
(iii) default in the observance or performance of any covenant
or agreement of the Issuer made in this Indenture (other than a
covenant or agreement a default in the observance or performance of
which is elsewhere in this Section specifically dealt with), or any
representation or warranty of the Issuer made in this Indenture or in
any certificate or other writing delivered pursuant hereto or in
connection herewith proving to have been incorrect in any material
respect as of the time when the same shall have been made, and such
default shall continue or not be cured, or the circumstance or
condition in respect of which such misrepresentation or warranty was
incorrect shall not have been eliminated or otherwise cured, for a
period of 30 days after there shall have been given, by registered or
certified mail, to the Issuer by the Indenture Trustee or to the
Issuer and the Indenture Trustee by the Holders of at least 25% of
the Outstanding Amount of the Indenture Notes, a written notice
specifying such default or incorrect representation or warranty and
requiring it to be remedied and stating that such notice is a notice
of Default hereunder;
(iv) the filing of a decree or order for relief by a court
having jurisdiction in the premises in respect of the Issuer or any
substantial part of the Collateral or the Trust Estate in an
involuntary case under any applicable Federal or State bankruptcy,
insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Issuer or for any substantial
part of the Collateral or the Trust Estate, or ordering the
winding-up or liquidation of the Issuer's affairs, and such decree or
order shall remain unstayed and in effect for a period of 60
consecutive days; or
(v) the commencement by the Issuer of a voluntary case under any
applicable Federal or State bankruptcy, insolvency or other similar
law now or hereafter in effect, or the consent by the Issuer to the
entry of an order for relief in an involuntary case under any such
law, or the consent by the Issuer to the appointment or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Issuer or for any substantial
part of the Collateral or the Trust Estate, or the making by the
Issuer of any general assignment for the benefit of creditors, or the
failure by the Issuer generally to pay its debts as such debts become
due, or the taking of action by the Issuer in furtherance of any of
the foregoing.
The Issuer shall deliver to the Indenture Trustee, within five days
after the Issuer or the Administrator obtains actual knowledge thereof,
written notice in the form of an Officers' Certificate of any event that,
with the giving of notice or the lapse of time or both, would become an
Event of Default under clause (iii), its status and what action the Issuer
is taking or proposes to take with respect thereto.
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment. If
an Event of Default should occur and be continuing, then and in every such
case the Indenture Trustee or the Holders of Indenture Notes representing
not less than a majority of the Outstanding Amount may declare all the
Indenture Notes to be immediately due and payable, by a notice in writing
to the Issuer (and to the Indenture Trustee if given by Indenture
Noteholders), and upon any such declaration the Outstanding Amount,
together with accrued and unpaid interest thereon through the date of
acceleration, shall become immediately due and payable.
At any time after such declaration of acceleration of maturity has
been made and before a judgment or decree for payment of the money due has
been obtained by the Indenture Trustee as hereinafter in this Article V
provided, the Holders of Indenture Notes representing not less than a
majority of the Outstanding Amount, by written notice to the Issuer and the
Indenture Trustee, may rescind and annul such declaration and its
consequences if:
(i) the Issuer has paid or deposited with the Indenture Trustee
a sum sufficient to pay:
(A) all payments of principal of and interest on all
Indenture Notes and all other amounts that would then be due
hereunder or upon such Indenture Notes if the Event of Default
giving rise to such acceleration had not occurred; and
(B) all sums paid or advanced by the Indenture Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its
agents and counsel; and
(ii) all Events of Default, other than the nonpayment of the
principal of the Indenture Notes that has become due solely by such
acceleration, have been cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any
right consequent thereto.
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee. (a) The Issuer covenants that if an Event of Default
described in Section 5.1(i) or (ii) occurs, the Issuer will, upon demand of
the Indenture Trustee, pay to it, for the benefit of the Holders of
Indenture Notes, the whole amount then due and payable on such Indenture
Notes for principal and interest, with interest upon the overdue principal
at the applicable interest rate, and, to the extent payment at such rate of
interest shall be legally enforceable, upon overdue installments of
interest, at the applicable interest rate, and in addition thereto such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and advances of the Indenture Trustee and its agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Indenture Trustee, in its own name and as trustee of an
express trust, may institute a Proceeding for the collection of the sums so
due and unpaid, and may prosecute such Proceeding to judgment or final
decree, and may enforce the same against the Issuer or other obligor upon
such Indenture Notes and collect in the manner provided by law out of the
property of the Issuer or other obligor upon such Indenture Notes, wherever
situated, the moneys adjudged or decreed to be payable.
(c) In case an Event of Default occurs and is continuing, the
Indenture Trustee may, as more particularly provided in Section 5.4, in its
discretion, proceed to protect and enforce its rights and the rights of the
Indenture Noteholders, by such appropriate Proceedings as the Indenture
Trustee shall deem most effective to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy or legal or equitable right vested in the
Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any
other obligor upon the Indenture Notes or any Person having or claiming an
ownership interest in the Collateral or the Trust Estate, Proceedings under
Title 11 of the United States Code or any other applicable Federal or State
bankruptcy, insolvency or other similar law, or in case a receiver,
assignee, trustee in bankruptcy or reorganization, liquidator, sequestrator
or similar official shall have been appointed for or taken possession of
the Issuer or its property or such other obligor or Person, or in case of
any other comparable judicial Proceedings relative to the Issuer or other
obligor upon the Indenture Notes, or to the creditors or property of the
Issuer or such other obligor, the Indenture Trustee, irrespective of
whether the principal of any Indenture Notes shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of
whether the Indenture Trustee shall have made any demand pursuant to this
Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Indenture
Notes and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Indenture Trustee
(including any claim for reasonable compensation to the Indenture
Trustee and each predecessor Indenture Trustee, and their respective
agents, attorneys and counsel, and for reimbursement of all expenses
and liabilities incurred, and all advances made, by the Indenture
Trustee and each predecessor Indenture Trustee, except as a result of
negligence or bad faith) and of the Indenture Noteholders allowed in
such Proceedings;
(ii) unless prohibited by applicable law or regulations, to vote
on behalf of the Holders of the Indenture Notes in any election of a
trustee, a standby trustee or any Person performing similar functions
in any such Proceedings;
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute all
amounts received with respect to the claims of the Indenture
Noteholders and of the Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the
Indenture Trustee or the Holders of Indenture Notes allowed in any
judicial Proceedings relative to the Issuer, its creditors and its
property;
and any trustee, receiver, liquidator, assignee, custodian, sequestrator or
other similar official in any such Proceeding is hereby authorized by each
of such Indenture Noteholders to make payments to the Indenture Trustee,
and, in the event that the Indenture Trustee shall consent to the making of
payments directly to such Indenture Noteholders, to pay to the Indenture
Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee
and their respective agents, attorneys and counsel, and all other expenses
and liabilities incurred, and all advances made, by the Indenture Trustee
and each predecessor Indenture Trustee except as a result of negligence or
bad faith.
(e) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt
on behalf of any Indenture Noteholder any plan of reorganization,
arrangement, adjustment or composition affecting the Indenture Notes or the
rights of any Holder thereof or to authorize the Indenture Trustee to vote
in respect of the claim of any Indenture Noteholder in any such proceeding
except, as aforesaid, to vote for the election of a trustee in bankruptcy
or similar Person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Indenture Notes, may be enforced by the
Indenture Trustee without the possession of any of the Indenture Notes or
the production thereof in any trial or other Proceedings relative thereto,
and any such action or Proceedings instituted by the Indenture Trustee
shall be brought in its own name and as trustee of an express trust, and
any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee, each predecessor
Indenture Trustee and their respective agents and attorneys, shall be for
the ratable benefit of the Holders of the Indenture Notes.
(g) In any Proceedings brought by the Indenture Trustee (and also
any Proceedings involving the interpretation of any provision of this
Indenture to which the Indenture Trustee shall be a party), the Indenture
Trustee shall be held to represent all the Holders of the Indenture Notes,
and it shall not be necessary to make any Indenture Noteholder a party to
any such Proceedings.
SECTION 5.4. Remedies; Priorities. (a) If an Event of Default shall
have occurred and be continuing, the Indenture Trustee may do one or more
of the following (subject to Section 5.5):
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the
Indenture Notes or under this Indenture with respect thereto, whether
by declaration or otherwise, enforce any judgment obtained, and
collect from the Issuer and any other obligor upon such Indenture
Notes moneys adjudged due;
(ii) institute Proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Collateral
or the Trust Estate;
(iii) exercise any remedies of a secured party under the UCC and
take any other appropriate action to protect and enforce the rights
and remedies of the Indenture Trustee and the Holders of the
Indenture Notes;
(iv) sell the Collateral or the Trust Estate, or any portion
thereof or rights or interest therein, at one or more public or
private sales called and conducted in any manner permitted by law;
and
(v) make demand upon the Servicer, by written notice, that the
Servicer deliver to the Indenture Trustee all Receivable Files;
provided, however, that the Indenture Trustee may not sell or otherwise
liquidate the Collateral or the Trust Estate following an Event of Default,
other than an Event of Default described in Section 5.1(i) or (ii), unless:
(A) all the Indenture Noteholders and the Class B Noteholders consent
thereto, (B) the proceeds of such sale or liquidation distributable to the
Indenture Noteholders and the Class B Noteholders are sufficient to
discharge in full all amounts then due and unpaid upon such Indenture Notes
and the Class B Notes for principal and interest or (C) the Indenture
Trustee determines that the Collateral and the Trust Estate will not
continue to provide sufficient funds for the payment of principal of and
interest on the Indenture Notes and the Class B Notes as they would have
become due if the Indenture Notes and the Class B Notes had not been
declared due and payable, and the Indenture Trustee obtains the consent of
Holders of 66-2/3% of the Outstanding Amount. In determining such
sufficiency or insufficiency with respect to clauses (B) and (C), the
Indenture Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as
to the feasibility of such proposed action and as to the sufficiency of the
Collateral and the Trust Estate for such purpose.
(b) If the Indenture Trustee collects any money or property pursuant
to this Article V, it shall pay out such money or property in the following
order:
FIRST: to the Indenture Trustee for amounts due under Section
6.7;
SECOND: to Indenture Noteholders for amounts due and unpaid on
the Indenture Notes for interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Indenture Notes for interest;
THIRD: to Holders of the Indenture Notes for amounts due and
unpaid on the Indenture Notes for principal, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Indenture Notes for principal;
FOURTH: to Class B Noteholders for amounts due and unpaid on the
Class B Notes for interest, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Class B
Notes for interest;
FIFTH: to Holders of the Class B Notes for amounts due and
unpaid on the Class B Notes for principal, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Class B Notes for principal; and
SIXTH: to the Issuer for distribution to the Certificateholders.
The Indenture Trustee may fix a special record date and special
payment date for any payment to Indenture Noteholders pursuant to this
Section. At least 15 days before such special record date, the Issuer shall
mail to each Indenture Noteholder and the Indenture Trustee a notice that
states the special record date, the special payment date and the amount to
be paid.
SECTION 5.5. Optional Preservation of the Receivables. If the
Indenture Notes have been declared to be due and payable under Section 5.2
following an Event of Default, and such declaration and its consequences
have not been rescinded and annulled, the Indenture Trustee may, but need
not, elect to maintain possession of the Collateral and the Trust Estate.
It is the desire of the parties hereto and the Indenture Noteholders that
there be at all times sufficient funds for the payment of principal of and
interest on the Indenture Notes, and the Indenture Trustee shall take such
desire into account when determining whether or not to maintain possession
of the Collateral and the Trust Estate. In determining whether to maintain
possession of the Collateral and the Trust Estate, the Indenture Trustee
may, but need not, obtain and rely upon an opinion of an Independent
investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the
Collateral and the Trust Estate for such purpose.
SECTION 5.6. Limitation of Suits. No Holder of any Indenture Note
shall have any right to institute any Proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(ii) the Holder(s) of not less than 25% of the Outstanding
Amount of the Indenture Notes have made written request to the
Indenture Trustee to institute such Proceeding in respect of such
Event of Default in its own name as Indenture Trustee hereunder;
(iii) such Holder(s) have offered to the Indenture Trustee
reasonable indemnity against the costs, expenses and liabilities to
be incurred in complying with such request;
(iv) the Indenture Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute such
Proceeding; and
(v) no direction inconsistent with such written request has been
given to the Indenture Trustee during such 60-day period by the
Holders of a majority of the Outstanding Amount of the Indenture
Notes;
it being understood and intended that no one or more Holder(s) of Indenture
Notes shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holder(s) of Indenture Notes or to obtain
or to seek to obtain priority or preference over any other Holder(s) or to
enforce any right under this Indenture, except in the manner herein
provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Indenture
Noteholders, each representing less than a majority of the Outstanding
Amount of the Indenture Notes, the Indenture Trustee in its sole discretion
may determine what action, if any, shall be taken, notwithstanding any
other provisions of this Indenture.
SECTION 5.7. Unconditional Rights of Indenture Noteholders To
Receive Principal and Interest. Notwithstanding any other provisions in
this Indenture, the Holder of any Indenture Note shall have the right,
which is absolute and unconditional, to receive payment of the principal of
and interest, if any, on such Indenture Note on or after the respective due
dates thereof expressed in such Indenture Note or in this Indenture (or, in
the case of redemption, on or after the Redemption Date) and to institute
suit for the enforcement of any such payment, and such right shall not be
impaired without the consent of such Holder.
SECTION 5.8. Restoration of Rights and Remedies. If the Indenture
Trustee or any Indenture Noteholder has instituted any Proceeding to
enforce any right or remedy under this Indenture and such Proceeding has
been discontinued or abandoned for any reason or has been determined
adversely to the Indenture Trustee or to such Indenture Noteholder, then
and in every such case the Issuer, the Indenture Trustee and the Indenture
Noteholders shall, subject to any determination in such Proceeding, be
restored severally and respectively to their former positions hereunder,
and thereafter all rights and remedies of the Indenture Trustee and the
Indenture Noteholders shall continue as though no such Proceeding had been
instituted.
SECTION 5.9. Rights and Remedies Cumulative. No right or remedy
herein conferred upon or reserved to the Indenture Trustee or to the
Indenture Noteholders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law,
be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 5.10. Delay or Omission Not a Waiver. No delay or omission
of the Indenture Trustee or any Holder of Indenture Notes to exercise any
right or remedy accruing upon any Default or Event of Default shall impair
any such right or remedy or constitute a waiver of any such Default or
Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Indenture Trustee or to the Indenture
Noteholders may be exercised from time to time, and as often as may be
deemed expedient, by the Indenture Trustee or by the Indenture Noteholders,
as the case may be.
SECTION 5.11. Control by Indenture Noteholders. The Holders of not
less than a majority of the Outstanding Amount of the Indenture Notes shall
have the right to direct the time, method and place of conducting any
Proceeding for any remedy available to the Indenture Trustee with respect
to the Indenture Notes or exercising any trust or power conferred on the
Indenture Trustee; provided, that:
(i) such direction shall not be in conflict with any rule of law
or with this Indenture;
(ii) subject to the express terms of Section 5.4, any direction
to the Indenture Trustee to sell or liquidate the Collateral and the
Trust Estate shall be by all the Indenture Noteholders and all the
Class B Noteholders;
(iii) if the conditions set forth in Section 5.5 have been
satisfied and the Indenture Trustee elects to retain the Collateral
and the Trust Estate pursuant to such Section, then any direction to
the Indenture Trustee by Holders of Indenture Notes representing less
than 100% of the Outstanding Amount of the Indenture Notes to sell or
liquidate the Collateral and the Trust Estate shall be of no force
and effect; and
(iv) the Indenture Trustee may take any other action deemed
proper by the Indenture Trustee that is not inconsistent with such
direction;
provided, however, that, subject to Section 6.1, the Indenture Trustee need
not take any action that it determines might involve it in liability or
might materially adversely affect the rights of any Indenture Noteholder(s)
not consenting to such action.
SECTION 5.12. Waiver of Past Defaults. Prior to the time a judgment
or decree for payment of money due has been obtained as described in
Section 5.3, the Holders of Indenture Notes of not less than a majority of
the Outstanding Amount of the Indenture Notes may waive any past Default or
Event of Default and its consequences except a Default: (a) in payment of
principal of or interest on any of the Indenture Notes or (b) in respect of
a covenant or provision hereof that cannot be modified or amended without
the consent of the Holder of each Indenture Note. In the case of any such
waiver, the Issuer, the Indenture Trustee and the Holders of the Indenture
Notes shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have
occurred, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereto.
SECTION 5.13. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Indenture Note by such Holder's acceptance
thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Indenture Trustee for any
action taken, suffered or omitted by it as Indenture Trustee, the filing by
any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorney's fees, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section
shall not apply to: (a) any suit instituted by the Indenture Trustee, (b)
any suit instituted by any Indenture Noteholder(s) holding in the aggregate
more than 10% of the Outstanding Amount of the Indenture Notes or (c) any
suit instituted by any Indenture Noteholder for the enforcement of the
payment of principal of or interest on any Indenture Note on or after the
respective due dates expressed in such Indenture Note and in this Indenture
(or, in the case of redemption, on or after the Redemption Date).
SECTION 5.14. Waiver of Stay or Extension Laws. The Issuer covenants
(to the extent that it may lawfully do so) that it will not at any time
insist upon, or plead or in any manner whatsoever, claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, that may affect the covenants or the
performance of this Indenture; and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Indenture Trustee, but will
suffer and permit the execution of every such power as though no such law
had been enacted.
SECTION 5.15. Action on Indenture Notes. The Indenture Trustee's
right to seek and recover judgment on the Indenture Notes or under this
Indenture shall not be affected by the seeking, obtaining or application of
any other relief under or with respect to this Indenture. Neither the Lien
of this Indenture nor any rights or remedies of the Indenture Trustee or
the Indenture Noteholders shall be impaired by the recovery of any judgment
by the Indenture Trustee against the Issuer or by the levy of any execution
under such judgment upon any portion of the Collateral and the Trust Estate
or upon any of the assets of the Issuer. Any money or property collected by
the Indenture Trustee shall be applied in accordance with Section 5.4(b).
SECTION 5.16. Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the Indenture Trustee to do so and at
the Administrator's expense, the Issuer shall take all such lawful action
as the Indenture Trustee may request to compel or secure the performance
and observance by the Seller and the Servicer, as applicable, of each of
their obligations to the Issuer under or in connection with the Sale and
Servicing Agreement or to the Seller under or in connection with the
Purchase Agreement in accordance with the terms thereof, and to exercise
any and all rights, remedies, powers and privileges lawfully available to
the Issuer under or in connection with the Sale and Servicing Agreement (or
the Seller under or in connection with the Purchase Agreement) to the
extent and in the manner directed by the Indenture Trustee, including the
transmission of notices of default on the part of the Seller or the
Servicer thereunder and the institution of legal or administrative actions
or proceedings to compel or secure performance by the Seller or the
Servicer of each of their obligations under the Sale and Servicing
Agreement or the Purchase Agreement.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and at the direction (which direction shall be in
writing) of the Holders of not less than 66-2/3% of the Outstanding Amount
of the Indenture Notes shall, exercise all rights, remedies, powers,
privileges and claims of the Issuer against the Seller or the Servicer
under or in connection with the Sale and Servicing Agreement, including the
right or power to take any action to compel or secure performance or
observance by the Seller or the Servicer of each of their obligations to
the Issuer thereunder and to give any consent, request, notice, direction,
approval, extension or waiver under the Sale and Servicing Agreement, and
any right of the Issuer to take such action shall be suspended.
(c) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and at the direction (which direction shall be in
writing) of the Holders of not less than 66-2/3% of the Outstanding Amount
of the Indenture Notes shall, exercise all rights, remedies, powers,
privileges and claims of the Seller against Credit under or in connection
with the Purchase Agreement, including the right or power to take any
action to compel or secure performance or observance by Credit of each of
its obligations to the Seller thereunder and to give any consent, request,
notice, direction, approval, extension or waiver under the Purchase
Agreement, and any right of the Seller to take such action shall be
suspended.
ARTICLE VI
The Indenture Trustee
SECTION 6.1. Duties of the Indenture Trustee. (a) If an Event of
Default has occurred and is continuing, the Indenture Trustee shall
exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default actually
known to a Responsible Officer:
(i) the Indenture Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture and
no implied covenants or obligations shall be read into this Indenture
against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; provided, however, in the case of any
such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Indenture Trustee, the
Indenture Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) The Indenture Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own wilful
misconduct, except that:
(i) this clause (c) does not limit the effect of clause (b) of
this Section;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is
proved that the Indenture Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Indenture Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with
a direction received by it pursuant to the Indenture;
(iv) the Indenture Trustee shall not be charged with knowledge
of an Event of Default or Servicer Default unless a Responsible
Officer obtains actual knowledge of such event or the Indenture
Trustee receives written notice of such event from the Seller,
Servicer or Note Owners owning Indenture Notes aggregating not less
than 10% of the Outstanding Amount of the Indenture Notes; and
(v) the Indenture Trustee shall have no duty to monitor the
performance of the Issuer, the Trustee, the Seller or the Servicer,
nor shall it have any liability in connection with malfeasance or
nonfeasance by the Issuer, the Trustee, the Seller or the Servicer.
The Indenture Trustee shall have no liability in connection with
compliance of the Issuer, the Trustee, the Seller or the Servicer
with statutory or regulatory requirements related to the Receivables.
The Indenture Trustee shall not make or be deemed to have made any
representations or warranties with respect to the Receivables or the
validity or sufficiency of any assignment of the Receivables to the
Trust Estate or the Indenture Trustee.
(d) Every provision of this Indenture that in any way relates to the
Indenture Trustee is subject to clauses (a), (b), (c) and (g).
(e) The Indenture Trustee shall not be liable for interest on any
money received by it except as the Indenture Trustee may agree in writing
with the Issuer.
(f) Money held in trust by the Indenture Trustee need not be
segregated from other funds except to the extent required by law, this
Indenture or the Sale and Servicing Agreement.
(g) No provision of this Indenture shall require the Indenture
Trustee to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers if it shall have reasonable grounds
to believe that repayments of such funds or adequate indemnity satisfactory
to it against any loss, liability or expense is not reasonably assured to
it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Indenture Trustee
shall be subject to this Section and the TIA.
SECTION 6.2. Rights of Indenture Trustee. (a) The Indenture Trustee
may conclusively rely and shall be fully protected in acting on any
document believed by it to be genuine and to have been signed or presented
by the proper Person. The Indenture Trustee need not investigate any fact
or matter stated in any such document.
(b) Before the Indenture Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel. The
Indenture Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on the Officers' Certificate or Opinion of
Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, attorneys, a custodian or a nominee, and the Indenture Trustee
shall not be responsible for any misconduct or negligence on the part of,
or for the supervision of, any such agent, attorney, custodian or nominee
appointed with due care by it.
(d) The Indenture Trustee shall not be liable for any action it
takes or omits to take in good faith that it believes to be authorized or
within its rights or powers; provided, however, that the Indenture
Trustee's conduct does not constitute wilful misconduct, negligence or bad
faith.
(e) The Indenture Trustee may consult with counsel, and the advice
or opinion of counsel with respect to legal matters relating to this
Indenture and the Indenture Notes shall be full and complete authorization
and protection from liability in respect to any action taken, omitted or
suffered by it hereunder in good faith and in accordance with the advice or
opinion of such counsel.
(f) The Indenture Trustee shall not be required to make any initial
or periodic examination of any files or records related to the Receivables
for the purpose of establishing the presence or absence of defects, the
compliance by the Issuer with its representations and warranties or for any
other purpose.
(g) In the event that the Indenture Trustee is also acting as Paying
Agent or Indenture Note Registrar hereunder, the rights and protections
afforded to the Indenture Trustee pursuant to this Article VI shall also be
afforded to the Indenture Trustee in its capacity as such Paying Agent or
Indenture Note Registrar.
SECTION 6.3. Individual Rights of the Indenture Trustee. The
Indenture Trustee shall not, in its individual capacity, but may in a
fiduciary capacity, become the owner of Indenture Notes or otherwise extend
credit to the Issuer. The Indenture Trustee may otherwise deal with the
Issuer or its Affiliates with the same rights it would have if it were not
the Indenture Trustee. Any Paying Agent, Indenture Note Registrar,
co-registrar or co-paying agent may do the same with like rights. However,
the Indenture Trustee must comply with Sections 6.11 and 6.12.
SECTION 6.4. Indenture Trustee's Disclaimer. The Indenture Trustee
shall not be responsible for, and makes no representation as to the
validity or adequacy of, this Indenture or the Indenture Notes; shall not
be accountable for the Issuer's use of the proceeds from the Indenture
Notes; and shall not be responsible for any statement of the Issuer in this
Indenture or in any document issued in connection with the sale of the
Indenture Notes or in the Indenture Notes other than the Indenture
Trustee's certificate of authentication.
SECTION 6.5. Notice of Defaults. If a Default occurs and is
continuing and is known to a Responsible Officer, the Indenture Trustee
shall mail to each Indenture Noteholder notice of the Default within 90
days after it occurs. Except in the case of a Default in payment of
principal of or interest on any Indenture Note (including payments pursuant
to the mandatory redemption provisions of such Indenture Note), the
Indenture Trustee may withhold the notice if and so long as a committee of
its Responsible Officers in good faith determines that withholding the
notice is in the interests of Indenture Noteholders.
SECTION 6.6. Reports by Indenture Trustee to the Holders. The
Indenture Trustee shall deliver to each Indenture Noteholder such
information as may be required to enable such Holder to prepare its
Federal, State and other income tax returns. Within 60 days after each
December 31, the Indenture Trustee shall mail to each Indenture Noteholder
a brief report as of such December 31 that complies with TIA 313(a) (if
required by said section).
SECTION 6.7. Compensation and Indemnity. The Issuer shall, or shall
cause the Servicer to, pay to the Indenture Trustee from time to time
reasonable compensation for its services. The Indenture Trustee's
compensation shall not be limited by any law on compensation of a trustee
of an express trust. The Issuer shall, or shall cause the Servicer to,
reimburse the Indenture Trustee for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Indenture
Trustee's agents, counsel, accountants and experts. The Issuer shall or
shall cause the Servicer to indemnify the Indenture Trustee and its
officers, directors, employees and agents against any and all loss,
liability or expense (including attorneys' fees) incurred by them in
connection with the administration of this trust and the performance of its
duties hereunder. The Indenture Trustee shall notify the Issuer and the
Servicer promptly of any claim for which it may seek indemnity. Failure by
the Indenture Trustee to so notify the Issuer and the Servicer shall not
relieve the Issuer or the Servicer of its obligations hereunder. The Issuer
shall, or shall cause the Servicer to, defend the claim and the Indenture
Trustee may have separate counsel and the Issuer shall, or shall cause the
Servicer to, pay the fees and expenses of such counsel. Neither the Issuer
nor the Servicer need reimburse any expense or indemnify against any loss,
liability or expense incurred by the Indenture Trustee through the
Indenture Trustee's own willful misconduct, negligence or bad faith.
The Issuer's payment obligations to the Indenture Trustee pursuant to
this Section shall survive the discharge of this Indenture. When the
Indenture Trustee incurs expenses after the occurrence of a Default
specified in Section 5.1(iv) or (v), the expenses are intended to
constitute expenses of administration under Title 11 of the United States
Code or any other applicable Federal or State bankruptcy, insolvency or
similar law.
SECTION 6.8. Replacement of the Indenture Trustee. No resignation or
removal of the Indenture Trustee and no appointment of a successor
Indenture Trustee shall become effective until the acceptance of
appointment by the successor Indenture Trustee pursuant to this Section
6.8. The Indenture Trustee may resign at any time by so notifying the
Issuer in writing. The Holders of not less than a majority of the
Outstanding Amount of the Indenture Notes may remove the Indenture Trustee
by so notifying the Indenture Trustee in writing and may appoint a
successor Indenture Trustee. The Issuer shall remove the Indenture Trustee
if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of
acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists
in the office of Indenture Trustee for any reason (the Indenture Trustee in
such event being referred to herein as the retiring Indenture Trustee), the
Issuer shall promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance of
its appointment to the retiring Indenture Trustee and to the Issuer.
Thereupon the resignation or removal of the retiring Indenture Trustee
shall become effective, and the successor Indenture Trustee shall have all
the rights, powers and duties of the Indenture Trustee under this
Indenture. The successor Indenture Trustee shall mail a notice of its
succession to Indenture Noteholders. The retiring Indenture Trustee shall
promptly transfer all property held by it as Indenture Trustee to the
successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 60 days
after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or the Holders of not less than a majority of
the Outstanding Amount of the Indenture Notes may petition any court of
competent jurisdiction for the appointment of a successor Indenture
Trustee.
If the Indenture Trustee fails to comply with Section 6.11, any
Indenture Noteholder may petition any court of competent jurisdiction for
the removal of the Indenture Trustee and the appointment of a successor
Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to
this Section, the Issuer's and the Administrator's obligations under
Section 6.7 shall continue for the benefit of the retiring Indenture
Trustee. The retiring Indenture Trustee shall have no liability for any act
or omission by any successor Trustee.
SECTION 6.9. Successor Indenture Trustee by Merger. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation without any further act shall be the successor Indenture
Trustee. The Indenture Trustee shall provide the Rating Agencies and the
Issuer prior written notice of any such transaction; provided, that such
corporation or banking association shall be otherwise qualified and
eligible under Section 6.11.
In case at the time such successor(s) by merger, conversion or
consolidation to the Indenture Trustee shall succeed to the trusts created
by this Indenture any of the Indenture Notes shall have been authenticated
but not delivered, any such successor to the Indenture Trustee may adopt
the certificate of authentication of any predecessor trustee, and deliver
such Indenture Notes so authenticated; and in case at that time any of the
Indenture Notes shall not have been authenticated, any successor to the
Indenture Trustee may authenticate such Indenture Notes either in the name
of any predecessor trustee hereunder or in the name of the successor to the
Indenture Trustee; and in all such cases such certificates of
authentication shall have the full force and effect to the same extent
given to the certificate of authentication of the Indenture Trustee
anywhere in the Indenture Notes or in this Indenture.
SECTION 6.10. Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions of this Indenture, at any time, for
the purpose of meeting any legal requirement of any jurisdiction in which
any part of the Trust Estate may at the time be located, the Indenture
Trustee shall have the power and may execute and deliver all instruments to
appoint one or more Person(s) to act as co-trustee(s), or separate
trustee(s), of all or any part of the Trust Estate, and to vest in such
Person(s), in such capacity and for the benefit of the Indenture
Noteholders, such title to the Trust Estate, or any part thereof, and,
subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Indenture Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder shall
be required to meet the terms of eligibility as a successor trustee under
Section 6.11 and no notice to Indenture Noteholders of the appointment of
any co-trustee or separate trustee shall be required under Section 6.8.
(b) Every separate trustee and co-trustee 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 Indenture Trustee shall be conferred or imposed upon
and exercised or performed by the Indenture Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the
Indenture Trustee joining in such act), except to the extent that
under any law of any jurisdiction in which any particular act(s) are
to be performed, the Indenture Trustee shall be incompetent or
unqualified to perform such act(s), in which event such rights,
powers, duties and obligations (including the holding of title to the
Trust Estate or any portion thereof in any such jurisdiction) shall
be exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove, in its sole discretion, any separate
trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to
this Agreement and the conditions of this Article VI. Each separate trustee
and co-trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument of
appointment, either jointly with the Indenture Trustee or separately, as
may be provided therein, subject to all the provisions of this Indenture,
specifically including every provision of this Indenture relating to the
conduct of, affecting the liability of, or affording protection to, the
Indenture Trustee. Every such instrument shall be filed with the Indenture
Trustee.
(d) Any separate trustee or co-trustee may at any time constitute
the Indenture Trustee 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 trustee or co-trustee 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 Indenture Trustee, to the
extent permitted by law, without the appointment of a new or successor
trustee.
(e) The Indenture Trustee shall have no obligation to determine
whether a co-trustee or separate trustee is legally required in any
jurisdiction in which any part of the Trust Estate may be located.
SECTION 6.11. Eligibility; Disqualification. The Indenture Trustee
shall at all times satisfy the requirements of TIA 310(a) and Section
26(a)(1) of the Investment Company Act of 1940, as amended. The Indenture
Trustee shall have a combined capital and surplus of at least $50,000,000
as set forth in its most recent published annual report of condition and it
shall have a long term senior, unsecured debt rating of "Baa3" or better by
Moody's (or, if not rated by Moody's, a comparable rating by another
statistical rating agency). The Indenture Trustee shall comply with TIA
310(b), including the optional provision permitted by the second sentence
of TIA 310(b)(9); provided, however, that there shall be excluded from
the operation of TIA 310(b)(1) any indenture(s) under which other
securities of the Issuer are outstanding if the requirements for such
exclusion set forth in TIA 310(b)(1) are met.
SECTION 6.12. Preferential Collection of Claims Against the Issuer.
The Indenture Trustee shall comply with TIA 311(a), excluding any
creditor relationship listed in TIA 311(b). An Indenture Trustee who has
resigned or been removed shall be subject to TIA 311(a) to the extent
indicated.
ARTICLE VII
Indenture Noteholders' Lists and Reports
SECTION 7.1. Issuer To Furnish Indenture Trustee Names and Addresses
of Indenture Noteholders. The Issuer will furnish or cause to be furnished
to the Indenture Trustee: (a) not more than five days after the earlier of:
(i) each Record Date and (ii) three months after the last Record Date, a
list, in such form as the Indenture Trustee may reasonably require, of the
names and addresses of the Holders of Indenture Notes as of such Record
Date, and (b) at such other times as the Indenture Trustee may request in
writing, within 30 days after receipt by the Issuer of any such request, a
list of similar form and content as of a date not more than 10 days prior
to the time such list is furnished; provided, however, that so long as the
Indenture Trustee is the Indenture Note Registrar, no such list shall be
required to be furnished.
SECTION 7.2. Preservation of Information; Communications to
Indenture Noteholders. (a) The Indenture Trustee shall preserve, in as
current a form as is reasonably practicable, the names and addresses of the
Holders of Indenture Notes contained in the most recent list furnished to
the Indenture Trustee as provided in Section 7.1 and the names and
addresses of Holders of Indenture Notes received by the Indenture Trustee
in its capacity as Indenture Note Registrar. The Indenture Trustee may
destroy any list furnished to it as provided in Section 7.1 upon receipt of
a new list so furnished.
(b) Three or more Indenture Noteholders, or one or more Holder(s) of
Indenture Notes evidencing at least 25% of the Outstanding Amount of the
Indenture Notes, may communicate pursuant to TIA 312(b) with other
Indenture Noteholders with respect to their rights under this Indenture or
under the Indenture Notes.
(c) The Issuer, the Indenture Trustee and the Indenture Note
Registrar shall have the protection of TIA 312(c).
SECTION 7.3. Reports by Issuer. (a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days after the
Issuer is required to file the same with the Commission, copies of
the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe)
that the Issuer may be required to file with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Commission, in accordance with the rules and
regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants of this
Indenture (with a copy of any such filings being delivered promptly
to the Indenture Trustee); and
(iii) supply to the Indenture Trustee (and the Indenture Trustee
shall transmit by mail to all Indenture Noteholders described in TIA
313(c)) such summaries of any information, documents and reports
required to be filed by the Issuer pursuant to clauses (i) and (ii)
as may be required by the rules and regulations prescribed from time
to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of each year.
ARTICLE VIII
Accounts, Disbursements and Releases
SECTION 8.1. Collection of Money. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of,
and shall receive and collect, directly and without intervention or
assistance of any fiscal agent or other intermediary, all money and other
property payable to or receivable by the Indenture Trustee pursuant to this
Indenture. The Indenture Trustee shall apply all such money received by it
as provided in this Indenture. Except as otherwise expressly provided in
this Indenture, if any default occurs in the making of any payment or
performance under any agreement or instrument that is part of the
Collateral and the Trust Estate, the Indenture Trustee may take such action
as may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate Proceedings. Any such action
shall be without prejudice to any right to claim a Default or Event of
Default under this Indenture and any right to proceed thereafter as
provided in Article V.
SECTION 8.2. Trust Accounts. (a) On or prior to the Closing Date,
the Issuer shall cause the Servicer to establish and maintain, in the name
of the Indenture Trustee, for the benefit of the Indenture Noteholders and
the Certificateholders, the Trust Accounts as provided in Section 5.1 of
the Sale and Servicing Agreement.
(b) On or before each Payment Date, the Total Distribution Amount
with respect to the preceding Collection Period will be deposited in the
Collection Account as provided in Section 5.2 of the Sale and Servicing
Agreement. On or before each Payment Date, the Indenture Noteholders'
Distributable Amount with respect to the preceding Collection Period will
be transferred to the Note Distribution Account as provided in Sections 5.5
and 5.6 of the Sale and Servicing Agreement.
(c) On each Payment Date and Redemption Date, the Indenture Trustee
shall distribute all amounts on deposit in the Note Distribution Account to
Indenture Noteholders to the extent of amounts due and unpaid on the
Indenture Notes for principal and interest in the following amounts and in
the following order of priority (except as otherwise provided in Section
5.4(b)):
(i) accrued and unpaid interest on the A-1 Notes, the A-2 Notes
and the A-3 Notes; provided, that if there are not sufficient funds
in the Note Distribution Account to pay the entire amount of accrued
and unpaid interest then due on such Indenture Notes, the amount in
the Note Distribution Account shall be applied to the payment of such
interest on such Indenture Notes pro rata on the basis of the total
such interest due on such Indenture Notes;
(ii) only to the extent of funds withdrawn from the Pre-Funding
Account and deposited in the Note Distribution Account by the
Indenture Trustee pursuant to Section 5.7(b) of the Sale and
Servicing Agreement: (A) first, to the Holders of A-1 Notes, (B)
second, to the Holders of A-2 Notes, (C) third, 96% of the remainder
to the Holders of A-3 Notes and Class B Notes pro rata on the basis
of the respective initial principal amounts of each such Note and (D)
fourth, 4% of such remainder to the Holders of the Certificates;
provided, however, that if the balance on deposit in the Spread
Account is less than the Spread Account Floor, then all distributions
shall be made to the Holders of Class A-1 Notes, Class A-2 Notes,
Class A-3 Notes, Class B Notes and Certificates in such order;
(iii) only to the extent of funds deposited in the Note
Distribution Account by the Seller pursuant to Section 2.2(c) and the
last sentence of Section 5.7(b) of the Sale and Servicing Agreement,
to the Holders of each A-1 Note, A-2 Note and A-3 Note, an amount
equal to the Indenture Noteholders' Prepayment Premium with respect
to that Class (and if the amount so deposited is insufficient, pro
rata in accordance with the Indenture Noteholders' Prepayment Premium
owed to each Indenture Noteholder);
(iv) to the Holders of A-1 Notes until the Outstanding Amount of
the A-1 Notes is reduced to zero;
(v) to the Holders of A-2 Notes until the Outstanding Amount of
the A-2 Notes is reduced to zero;
(vi) to the Holders of A-3 Notes until the amount so distributed
equals the A-3 Noteholders' Principal Distributable Amount;
(vii) accrued and unpaid interest on the Class B Notes;
(viii) to the Holders of Class B Notes until the amount so
distributed equals the Class B Noteholders' Principal Distributable
Amount;
(ix) thereafter, any excess shall be deposited to the
Certificate Distribution Account.
SECTION 8.3. General Provisions Regarding Accounts. (a) So long as
no Default or Event of Default shall have occurred and be continuing, all
or a portion of the funds in the Trust Accounts shall be invested in
Eligible Investments and reinvested by the Indenture Trustee upon Issuer
Order, subject to the provisions of Section 5.1(b) of the Sale and
Servicing Agreement. All income or other gain from investments of moneys
deposited in the Trust Accounts shall be deposited by the Indenture Trustee
in the Collection Account, and any loss or expenses resulting from such
investments shall be charged to such account. The Issuer will not direct
the Indenture Trustee to make any investment of any funds or to sell any
investment held in any of the Trust Accounts unless the security interest
granted and perfected in such account will continue to be perfected in such
investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction to the
Indenture Trustee to make any such investment or sale, if requested by the
Indenture Trustee, the Issuer shall deliver to the Indenture Trustee an
Opinion of Counsel to such effect.
(b) Subject to Section 6.1(c), the Indenture Trustee shall not in
any way be held liable for the selection of Eligible Investments or by
reason of any insufficiency in any of the Trust Accounts resulting from any
loss on any Eligible Investment included therein, except for losses
attributable to the Indenture Trustee's failure to make payments on such
Eligible Investments issued by the Indenture Trustee, in its commercial
capacity as principal obligor and not as trustee, in accordance with their
terms.
(c) If: (i) the Issuer shall have failed to give investment
directions for any funds on deposit in the Trust Accounts to the Indenture
Trustee by 11:00 a.m. (New York City time) (or such other time as may be
agreed by the Issuer and the Indenture Trustee) on any Business Day; or
(ii) a Default or Event of Default shall have occurred and be continuing
with respect to the Indenture Notes but the Indenture Notes shall not have
been declared due and payable pursuant to Section 5.2, or, if such
Indenture Notes shall have been declared due and payable following an Event
of Default, amounts collected or receivable from the Trust Estate are being
applied in accordance with Section 5.4(b) as if there had not been such a
declaration; then the Indenture Trustee shall, to the fullest extent
practicable, invest and reinvest funds in the Trust Accounts in the
Eligible Investments identified in clause (d) of the definition of Eligible
Investments.
SECTION 8.4. Release of Trust Estate. (a) Subject to the payment of
its fees and expenses pursuant to Section 6.7, the Indenture Trustee may,
and when required by this Indenture shall, execute instruments to release
property from the Lien of this Indenture, or convey the Indenture Trustee's
interest in the same, in a manner and under circumstances that are not
inconsistent with this Indenture. No party relying upon an instrument
executed by the Indenture Trustee as provided in this Article shall be
bound to ascertain the Indenture Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
moneys.
(b) The Indenture Trustee shall, at such time as there are no
Indenture Notes Outstanding and all sums due to the Indenture Trustee
pursuant to Section 6.7 have been paid, release any remaining portion of
the Trust Estate that secured the Indenture Notes from the Lien of this
Indenture and release to the Issuer or any other Person entitled thereto
any funds then on deposit in the Trust Accounts. The Indenture Trustee
shall release property from the Lien of this Indenture pursuant to this
paragraph only upon receipt of an Issuer Request accompanied by an
Officers' Certificate, an Opinion of Counsel and (if required by the TIA)
Independent Certificates in accordance with TIA 314(c) and 314(d)(1)
meeting the applicable requirements of Section 11.1.
(c) Notwithstanding the foregoing or any other provision of this
Indenture, the Indenture Trustee shall not release the Trust Estate in
whole or in part from the Lien of this Indenture unless either (i) the
Class B Notes have been repaid in full or (ii) the Class B Agent has
consented to such release.
SECTION 8.5. Opinion of Counsel. The Indenture Trustee shall receive
at least seven days' notice when requested by the Issuer to take any action
pursuant to Section 8.4(a), accompanied by copies of any instruments
involved, and the Indenture Trustee shall also require, as a condition to
such action, an Opinion of Counsel stating the legal effect of any such
action, outlining the steps required to complete the same, and concluding
that all conditions precedent to the taking of such action have been
complied with and such action will not materially and adversely impair the
security for the Indenture Notes or the rights of the Indenture Noteholders
in contravention of this Indenture; provided, however, that such Opinion of
Counsel shall not be required to express an opinion as to the fair value of
the Trust Estate. Counsel rendering any such opinion may rely, without
independent investigation, on the accuracy and validity of any certificate
or other instrument delivered to the Indenture Trustee in connection with
any such action.
ARTICLE IX
Supplemental Indentures
SECTION 9.1. Supplemental Indentures Without Consent of Indenture
Noteholders. (a) Without the consent of the Holders of Indenture Notes but
with prior written notice to the Rating Agencies, the Issuer and the
Indenture Trustee, when authorized by an Issuer Order, at any time and from
time to time, may enter into one or more indentures supplemental hereto
(which shall conform to the Trust Indenture Act as in force at the date of
the execution thereof), in form satisfactory to the Indenture Trustee, for
any of the following purposes:
(i) to correct or amplify the description of any property at any
time subject to the Lien of this Indenture, or better to assure,
convey and confirm unto the Indenture Trustee any property subject or
required to be subjected to the Lien of this Indenture, or to subject
to the Lien of this Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another Person to the Issuer, and
the assumption by any such successor of the covenants of the Issuer
herein and in the Indenture Notes;
(iii) to add to the covenants of the Issuer, for the benefit of
the Holders of Indenture Notes, or to surrender any right or power
herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee;
(v) to replace the Spread Account with another form of credit
enhancement; provided, the Rating Agency Condition is satisfied;
(vi) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture that may be
inconsistent with any other provision herein or in any supplemental
indenture or to make any other provisions with respect to matters or
questions arising under this Indenture or in any supplemental
indenture; provided, that such action shall not materially adversely
affect the interests of the Holders of Indenture Notes;
(vii) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the
Indenture Notes and to add to or change any of the provisions of this
Indenture as shall be necessary to facilitate the administration of
the trusts hereunder by more than one trustee, pursuant to the
requirements of Article VI; or
(viii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
Federal statute hereafter enacted and to add to this Indenture such
other provisions as may be expressly required by the TIA.
The Trustee is hereby authorized to join in the execution of any such
supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an
Issuer Order, may, without the consent of the any of the Holders of
Indenture Notes but with prior written notice to the Rating Agencies, enter
into an indenture or indentures supplemental hereto to cure any ambiguity,
to correct or supplement any provisions in this Indenture or for the
purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Indenture Notes under this Indenture;
provided, however, that such action shall not, as evidenced by an Opinion
of Counsel, adversely affect in any material respect the interests of any
Indenture Noteholder.
SECTION 9.2. Supplemental Indentures With Consent of Indenture
Noteholders. The Issuer and the Indenture Trustee, when authorized by an
Issuer Order, may, with prior written notice to the Rating Agencies and
with the consent of the Holders of Indenture Notes evidencing not less than
a majority of the Outstanding Amount of the Indenture Notes, by Act of such
Holders delivered to the Issuer and the Indenture Trustee, enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of
the Holders of Indenture Notes under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Indenture Note affected thereby:
(i) change the date of payment of any installment of principal
of or interest on any Indenture Note, or reduce the principal amount
thereof, the interest rate thereon or the Redemption Price with
respect thereto, change the provisions of this Indenture relating to
the application of collections on, or the proceeds of the sale of,
the Trust Estate to the payment of principal of or interest on the
Indenture Notes, or change any place of payment where, or the coin or
currency in which, any Indenture Note or the interest thereon is
payable, or impair the right to institute suit for the enforcement of
the provisions of this Indenture requiring the application of funds
available therefor, as provided in Article V, to the payment of any
such amount due on or after the respective due dates thereof (or, in
the case of redemption, on or after the Redemption Date);
(ii) reduce the percentage of the Outstanding Amount, the
consent of the Holders of which is required for any such supplemental
indenture, or the consent of the Holders of which is required for any
waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for in
this Indenture;
(iii) modify or alter the provisions of the proviso to the
definition of "Outstanding";
(iv) reduce the percentage of the Outstanding Amount required to
direct the Indenture Trustee to direct the Issuer to sell or
liquidate the Trust Estate pursuant to Section 5.4;
(v) modify any provision of this Section except to increase any
percentage specified herein or to provide that certain additional
provisions of this Indenture or the Basic Documents cannot be
modified or waived without the consent of the Holder of each
Outstanding Indenture Note affected thereby;
(vi) modify any of the provisions of this Indenture in such
manner as to affect the calculation of the amount of any payment of
interest or principal due on any Indenture Note on any Payment Date
(including the calculation of any of the individual components of
such calculation) or to affect the rights of the Holders of Indenture
Notes to the benefit of any provisions for the mandatory redemption
of the Indenture Notes contained herein; or
(vii) permit the creation of any Lien ranking prior to or on a
parity with the Lien of this Indenture with respect to any part of
the Trust Estate or, except as otherwise permitted or contemplated
herein, terminate the Lien of this Indenture on any property at any
time subject hereto or deprive any Holder of Indenture Notes of the
security provided by the Lien of this Indenture.
It shall not be necessary for any Act of the Indenture Noteholders
under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall
approve the substance thereof. The manner of obtaining such consents (and
any other consents of Indenture Noteholders provided for in this Indenture
or in any other Basic Document) and of evidencing the authorization of the
execution thereof by Indenture Noteholders shall be subject to such
reasonable requirements as the Indenture Trustee may provide.
Promptly after the execution by the Issuer and the Indenture Trustee
of any supplemental indenture pursuant to this Section, the Indenture
Trustee shall mail to the Holders of the Indenture Notes to which such
amendment or supplemental indenture relates a notice setting forth in
general terms the substance of such supplemental indenture. Any failure of
the Indenture Trustee to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such
supplemental indenture.
SECTION 9.3. Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts
created by this Indenture, the Indenture Trustee shall be entitled to
receive, and, subject to Sections 6.1 and 6.2, shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Indenture Trustee may, but shall not be obligated to, enter into any such
supplemental indenture that affects the Indenture Trustee's own rights,
duties, liabilities or immunities under this Indenture or otherwise.
SECTION 9.4. Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith with respect to the Indenture Notes affected thereby, and the
respective rights, limitations of rights, obligations, duties, liabilities
and immunities under this Indenture of the Indenture Trustee, the Issuer
and the Holders of the Indenture Notes shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.5. Conformity with Trust Indenture Act. Every amendment of
this Indenture and every supplemental indenture executed pursuant to this
Article IX shall conform to the requirements of the Trust Indenture Act as
then in effect so long as this Indenture shall then be qualified under the
Trust Indenture Act.
SECTION 9.6. Reference in Indenture Notes to Supplemental
Indentures. Indenture Notes authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and if required
by the Indenture Trustee shall, bear a notation in form approved by the
Indenture Trustee as to any matter provided for in such supplemental
indenture. If the Issuer or the Indenture Trustee shall so determine, new
Indenture Notes so modified as to conform, in the opinion of the Indenture
Trustee and the Issuer, to any such supplemental indenture may be prepared
and executed by the Issuer and authenticated and delivered by the Indenture
Trustee in exchange for Outstanding Indenture Notes.
ARTICLE X
Redemption of Indenture Notes
SECTION 10.1. Redemption. (a) The A-3 Notes are subject to
redemption in whole, but not in part, at the direction of the Servicer
pursuant to Section 9.1(a) of the Sale and Servicing Agreement, on any
Payment Date on which the Servicer exercises its option to purchase the
Trust Estate pursuant to said Section 9.1(a), for a purchase price equal to
the Redemption Price; provided, however, that the Issuer has available
funds sufficient to pay the Redemption Price. The Servicer or the Issuer
shall furnish the Rating Agencies notice of such redemption. If such
Indenture Notes are to be redeemed pursuant to this Section 10.1(a), the
Servicer or the Issuer shall furnish notice of such election to the
Indenture Trustee not later than 25 days prior to the Redemption Date and
the Issuer shall deposit with the Indenture Trustee in the Note
Distribution Account the Redemption Price of the Indenture Notes to be
redeemed.
(b) In the event that the assets of the Trust are sold pursuant to
Section 9.2 of the Trust Agreement, all amounts on deposit in the Note
Distribution Account shall be paid to the Indenture Noteholders up to the
Outstanding Amount and all accrued and unpaid interest thereon. If amounts
are to be paid to Indenture Noteholders pursuant to this Section 10.1(b),
the Servicer or the Issuer shall, to the extent practicable, furnish notice
of such event to the Indenture Trustee not later than 25 days prior to the
Redemption Date whereupon all such amounts shall be payable on the
Redemption Date.
(c) If the Pre-Funded Amount has not been reduced to zero on the
Payment Date on which the Funding Period ends (or, if the Funding Period
does not end on a Payment Date, on the first Payment Date following the end
of the Funding Period), after giving effect to any reductions in the
Pre-Funded Amount on such Payment Date or Determination Date pursuant to
Section 5.7(a) of the Sale and Servicing Agreement, the Indenture Notes
will be redeemed in part as described in Section 8.2(c)(ii) in a principal
amount described therein.
If the aggregate principal amount of Indenture Notes, if any, to be
redeemed pursuant to this clause exceeds $100,000, the Indenture Trustee
shall distribute to the Indenture Noteholders of each Class the Indenture
Noteholders' Prepayment Premium for that Class; provided, however, that,
notwithstanding anything to the contrary contained in Section 8.2(c)(iii)
or elsewhere in this Indenture or the Indenture Notes, the Issuer's
obligation to pay the Indenture Noteholders' Prepayment Premium shall be
limited solely to funds that are deposited by the Seller in the Note
Distribution Account pursuant to Section 2.2(c) and the last sentence of
Section 5.7(b) of the Sale and Servicing Agreement as liquidated damages
for the failure of the Seller to deliver Subsequent Receivables, and no
other assets of the Issuer will be available to pay the Indenture
Noteholders' Prepayment Premium under any circumstances.
SECTION 10.2. Form of Redemption Notice. (a) Notice of redemption
under Section 10.1(a) shall be given by the Indenture Trustee by
first-class mail, postage prepaid, mailed not less than five days prior to
the applicable Redemption Date to each Holder of Indenture Notes, as of the
close of business on the Record Date preceding the applicable Redemption
Date, at such Holder's address appearing in the Indenture Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the place where such Indenture Notes are to be surrendered
for payment of the Redemption Price (which shall be the office or
agency of the Issuer to be maintained as provided in Section 3.2);
and
(iv) CUSIP numbers.
Notice of redemption of the Indenture Notes shall be given by the
Indenture Trustee in the name and at the expense of the Issuer. Failure to
give notice of redemption, or any defect therein, to any Holder of any
Indenture Note shall not impair or affect the validity of the redemption of
any other Indenture Note.
(b) Prior notice of redemption under Section 10.1(b) is not required
to be given to Indenture Noteholders.
SECTION 10.3. Indenture Notes Payable on Redemption Date. The
Indenture Notes or portions thereof to be redeemed shall, following notice
of redemption pursuant to this Article, become due and payable on the
Redemption Date at the Redemption Price and (unless the Issuer shall
default in the payment of the Redemption Price) no interest shall accrue on
the Redemption Price for any period after the date to which accrued
interest is calculated for purposes of calculating the Redemption Price.
ARTICLE XI
Miscellaneous
SECTION 11.1. Compliance Certificates and Opinions, etc. (a) Upon
any application or request by the Issuer to the Indenture Trustee to take
any action under this Indenture, the Issuer shall furnish to the Indenture
Trustee: (i) an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with, (ii) an Opinion of Counsel stating that in
the opinion of such counsel all such conditions precedent, if any, have
been complied with and (iii) (if required by the TIA) an Independent
Certificate from a firm of certified public accountants meeting the
applicable requirements of this Section, except that, in the case of any
such application or request as to which the furnishing of such documents is
specifically required by this Indenture, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(w) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(x) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(y) a statement that, in the opinion of each such signatory,
such signatory has made (or has caused to be made) such examination
or investigation as is necessary to enable such signatory to express
an informed opinion as to whether or not such covenant or condition
has been complied with; and
(z) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b)(i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the Lien of this
Indenture, the Issuer shall, in addition to any obligation imposed in
Section 11.1(a) or elsewhere in this Indenture, furnish to the Indenture
Trustee an Officers' Certificate certifying or stating the opinion of each
person signing such certificate as to the fair value (within 90 days of
such deposit) to the Issuer of the Collateral or other property or
securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officers' Certificate described in clause (i), the Issuer
shall also deliver to the Indenture Trustee an Independent
Certificate as to the same matters, if the fair value to the Issuer
of the Collateral or other property or securities to be so deposited
and of all other such Collateral or other property or securities made
the basis of any such withdrawal or release since the commencement of
the then-current fiscal year of the Issuer, as set forth in the
certificates delivered pursuant to clause (i) and this clause (ii),
is 10% or more of the Outstanding Amount of the Indenture Notes, but
such a certificate need not be furnished with respect to any
Collateral or other property or securities so deposited if the fair
value thereof to the Issuer as set forth in the related Officers'
Certificate is less than $25,000 or less than one percent of the then
Outstanding Amount of the Indenture Notes.
(iii) Other than with respect to property as contemplated by
clause (v), whenever any Collateral or other property or securities
are to be released from the Lien of this Indenture, the Issuer shall
also furnish to the Indenture Trustee an Officers' Certificate
certifying or stating the opinion of each person signing such
certificate as to the fair value (within 90 days of such release) of
the Collateral or other property or securities proposed to be
released and stating that in the opinion of such person the proposed
release will not impair the security under this Indenture in
contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officers' Certificate certifying or stating the opinion of
any signer thereof as to the matters described in clause (iii), the
Issuer shall also furnish to the Indenture Trustee an Independent
Certificate as to the same matters if the fair value to the Issuer of
the Collateral or other property or securities and of all other
property, other than property as contemplated by clause (v), or
securities released from the Lien of this Indenture since the
commencement of the then-current fiscal year, as set forth in the
certificates required by clause (iii) and this clause (iv), equals
10% or more of the Outstanding Amount of the Indenture Notes, but
such certificate need not be furnished in the case of any release of
Collateral or other property or securities if the fair value thereof
to the Issuer as set forth in the related Officers' Certificate is
less than $25,000 or less than one percent of the then Outstanding
Amount of the Indenture Notes.
(v) Notwithstanding Section 2.9 or any other provision of this
Section, the Issuer may, without compliance with the requirements of
the other provisions of this Section: (A) collect, liquidate, sell or
otherwise dispose of Receivables and Financed Equipment as and to the
extent permitted or required by the Basic Documents and (B) make cash
payments out of the Trust Accounts as and to the extent permitted or
required by the Basic Documents so long as the Issuer shall deliver
to the Indenture Trustee every six months, commencing November 1,
1996, an Officers' Certificate of the Issuer stating that all such
dispositions of Collateral that occurred since the execution of the
previous such Officers' Certificate (or for the first such Officers'
Certificate, since the Closing Date) were in the ordinary course of
the Issuer's business and that the proceeds thereof were applied in
accordance with the Basic Documents.
SECTION 11.2. Form of Documents Delivered to Indenture Trustee. In
any case where several matters are required to be certified by, or covered
by an opinion of, any specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters, and any such Person
may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an Authorized Officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate,
opinion or representations with respect to the matters upon which his
certificate or opinion is based is/are erroneous. Any such certificate of
an Authorized Officer or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Servicer, the Seller, the
Issuer or the Administrator, stating that the information with respect to
such factual matters is in the possession of the Servicer, the Seller, the
Issuer or the Administrator, as applicable, unless such Authorized Officer
or counsel knows, or in the exercise of reasonable care should know, that
the certificate, opinion or representations with respect to such matters
is/are erroneous.
Where any Person is required or permitted to make, give or execute
two or more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but need not,
be consolidated and form one instrument.
Whenever in this Indenture, in connection with any application,
certificate or report to the Indenture Trustee, it is provided that the
Issuer shall deliver any document as a condition of the granting of such
application, or as evidence of the Issuer's compliance with any term
hereof, it is intended that the truth and accuracy, at the time of the
granting of such application or at the effective date of such certificate
or report (as the case may be), of the facts and opinions stated in such
document shall in such case be conditions precedent to the right of the
Issuer to have such application granted or to the sufficiency of such
certificate or report. The foregoing shall not, however, be construed to
affect the Indenture Trustee's right to rely upon the truth and accuracy of
any statement or opinion contained in any such document as provided in
Article VI.
SECTION 11.3. Acts of Indenture Noteholders. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Indenture Noteholders
may be embodied in and evidenced by one or more instrument(s) of
substantially similar tenor signed by such Indenture Noteholders in person
or by agents duly appointed in writing; and except as herein otherwise
expressly provided, such action shall become effective when such
instrument(s) are delivered to the Indenture Trustee, and, where it is
hereby expressly required, to the Issuer. Such instrument(s) (and the
action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Indenture Noteholders signing such
instrument(s). Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Indenture
Trustee and the Issuer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner that the Indenture
Trustee deems sufficient.
(c) The ownership of Indenture Notes shall be proved by the
Indenture Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or Act by the Holder of any Indenture Notes shall bind the Holder of
every Indenture Note issued upon the registration thereof, in exchange
therefor or in lieu thereof, in respect of anything done, omitted or
suffered to be done by the Indenture Trustee or the Issuer in reliance
thereon, whether or not notation of such action is made upon such Indenture
Note.
SECTION 11.4. Notices, etc., to the Indenture Trustee, Issuer and
Rating Agencies. Any request, demand, authorization, direction, notice,
consent, waiver or Act of Indenture Noteholders, or other documents
provided or permitted by this Indenture, shall be in writing and, if such
request, demand, authorization, direction, notice, consent, waiver or Act
of Indenture Noteholders is to be made upon, given or furnished to or filed
with:
(a) the Indenture Trustee by any Indenture Noteholder or by the
Issuer, shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Indenture Trustee
at its Corporate Trust Office, or
(b) the Issuer by the Indenture Trustee or by any Indenture
Noteholder, shall be sufficient for every purpose hereunder if in
writing and mailed, first-class, postage prepaid, to the Issuer
addressed to: Case Equipment Loan Trust 1996-B, in care of Chase
Manhattan Bank Delaware, 1201 North Market Street, Wilmington,
Delaware 19801, Attention: Corporate Trust Administration Department;
with copies to The Chase Manhattan Bank, N.A., 4 Chase MetroTech
Center, Brooklyn, New York 11245, Attention: Institutional Trust
Group - Third Floor, and to Case Credit Corporation, as
Administrator, 233 Lake Avenue, Racine, Wisconsin 53403, Attention:
Vice President & Treasurer, or at any other address previously
furnished in writing to the Indenture Trustee by the Issuer or the
Administrator. The Issuer shall promptly transmit any notice received
by it from the Indenture Noteholders to the Indenture Trustee.
Notices required to be given to the Rating Agencies by the Issuer,
the Indenture Trustee or the Trustee shall be in writing, personally
delivered or mailed by certified mail, return receipt requested, to their
respective addresses set forth in Section 10.3 of the Sale and Servicing
Agreement.
SECTION 11.5. Notices to Indenture Noteholders; Waiver. Where this
Indenture provides for notice to Indenture Noteholders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class, postage prepaid to each
Indenture Noteholder affected by such event, at his address as it appears
on the Indenture Note Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice.
In any case where notice to Indenture Noteholders is given by mail, neither
the failure to mail such notice nor any defect in any notice so mailed to
any particular Indenture Noteholder shall affect the sufficiency of such
notice with respect to other Indenture Noteholders, and any notice that is
mailed in the manner herein provided shall conclusively be presumed to have
been duly given.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent
of such notice. Waivers of notice by Indenture Noteholders shall be filed
with the Indenture Trustee but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such a
waiver.
In case, by reason of the suspension of regular mail service, it
shall be impractical to mail notice of any event to Indenture Noteholders
when such notice is required to be given pursuant to this Indenture, then
any manner of giving such notice as shall be satisfactory to the Indenture
Trustee shall be deemed to be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or
obligations created hereunder, and shall not under any circumstance
constitute a Default or Event of Default.
SECTION 11.6. Alternate Payment and Notice Provisions.
Notwithstanding any provision of this Indenture or any of the Indenture
Notes to the contrary, the Issuer may enter into any agreement with any
Holder of an Indenture Note providing for a method of payment, or notice by
the Indenture Trustee or any Paying Agent to such Holder, that is different
from the methods provided for in this Indenture or the Indenture Notes for
such payments or notices. The Issuer will furnish to the Indenture Trustee
a copy of each such agreement and the Indenture Trustee will cause payments
to be made and notices to be given in accordance with such agreements.
SECTION 11.7. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof that is
required to be included in this Indenture by the Trust Indenture Act, such
required provision shall control.
The provisions of TIA 310 through 317 that impose duties on any
Person (including the provisions automatically deemed included herein
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
SECTION 11.8. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience
only and shall not affect the construction hereof.
SECTION 11.9. Successors and Assigns. All covenants and agreements
in this Indenture and the Indenture Notes by the Issuer shall bind its
successors and assigns, whether so expressed or not. All agreements of the
Indenture Trustee in this Indenture shall bind its successors, co-trustees
and agents of the Indenture Trustee.
SECTION 11.10. Severability. Any provision of this Indenture or the
Indenture Notes 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 or of the Indenture Notes, as applicable, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 11.11. Benefits of Indenture. Nothing in this Indenture or
in the Indenture Notes, express or implied, shall give to any Person, other
than the parties hereto and their successors hereunder, the Indenture
Noteholders, any other party secured hereunder and any other Person with an
ownership interest in any part of the Trust Estate, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 11.12. Legal Holidays. In any case where the date on which
any payment is due shall not be a Business Day, then (notwithstanding any
other provision of the Indenture Notes or this Indenture) payment need not
be made on such date, but may be made on the next Business Day with the
same force and effect as if made on the date on which nominally due, and no
interest shall accrue for the period from and after any such nominal date.
SECTION 11.13. Governing Law. This Indenture shall be construed in
accordance with the laws of the State of New York, 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 11.14. Counterparts. This Indenture may be executed in any
number of counterparts, each of which when so executed shall be deemed to
be an original, but all such counterparts shall together constitute but one
and the same instrument.
SECTION 11.15. Recording of Indenture. If this Indenture is subject
to recording in any public recording offices, such recording is to be
effected by the Issuer and, at its expense, accompanied by an Opinion of
Counsel (which may be counsel to the Indenture Trustee or any other counsel
reasonably acceptable to the Indenture Trustee) to the effect that such
recording is necessary either for the protection of the Indenture
Noteholders or any other Person secured hereunder or for the enforcement of
any right or remedy granted to the Indenture Trustee under this Indenture.
SECTION 11.16. Trust Obligation. No recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer, the Trustee
or the Indenture Trustee on the Indenture Notes or under this Indenture or
any certificate or other writing delivered in connection herewith or
therewith, against: (i) the Indenture Trustee or the Trustee in their
individual capacities, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, officer, director,
employee or agent of: (a) the Indenture Trustee or the Trustee in their
individual capacities, (b) any owner of a beneficial interest in the
Issuer, the Trustee or the Indenture Trustee or (c) of any successor or
assign of the Indenture Trustee or the Trustee in their individual
capacities, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Trustee have no such
obligations in their individual capacities) and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided
by applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such
entity. For all purposes of this Indenture, in the performance of any
duties or obligations of the Issuer hereunder, the Trustee shall be subject
to, and entitled to the benefits of, Articles VI, VII and VIII of the Trust
Agreement.
SECTION 11.17. No Petition. The Indenture Trustee, by entering into
this Indenture, and each Indenture Noteholder, by accepting an Indenture
Note, hereby covenant and agree that they will not at any time institute
against the Seller or the Issuer, or join in any institution against the
Seller or the Issuer of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any
United States Federal or State bankruptcy or similar law in connection with
any obligations relating to the Indenture Notes, this Indenture or any of
the Basic Documents. The foregoing shall not limit the rights of the
Indenture Trustee to file any claim in or otherwise take any action with
respect to any insolvency proceeding that was instituted against the Issuer
by any Person other than the Indenture Trustee.
SECTION 11.18. Inspection. The Issuer agrees that, on reasonable
prior notice, it will permit any representative of the Indenture Trustee,
during the Issuer's normal business hours, to examine all the books of
account, records, reports and other papers of the Issuer, to make copies
and extracts therefrom, to cause such books to be audited by Independent
certified public accountants, and to discuss the Issuer's affairs, finances
and accounts with the Issuer's officers, employees and Independent
certified public accountants, all at such reasonable times and as often as
may be reasonably requested. The Indenture Trustee shall and shall cause
its representatives to hold in confidence all such information; provided,
however, that the foregoing shall not be construed to prohibit: (i)
disclosure of any and all information that is or becomes publicly know, or
information obtained by the Indenture Trustee from sources other than the
Issuer or Servicer, (ii) disclosure of any and all information: (A) if
required to do so by any applicable statute, law, rule or regulation, (B)
to any government agency or regulatory or self-regulatory body having or
claiming authority to regulate or oversee any aspects of the Indenture
Trustee's business or that of its Affiliates, (C) pursuant to any subpoena,
civil investigative demand or similar demand or request of any court,
regulatory authority, arbitrator or arbitration to which the Indenture
Trustee or an Affiliate or any officer, director, employee or shareholder
thereof is subject, (D) in any preliminary or final offering circular,
registration statement or contract or other document pertaining to the
transactions contemplated by the Indenture and approved in advance by the
Issuer or (E) to any Affiliate, independent or internal auditor, agent,
employee or attorney of the Indenture Trustee having a need to know the
same; provided, that the Indenture Trustee advises such recipient of the
confidential nature of the information being disclosed and such recipient
agrees to keep such information confidential, (iii) any other disclosure
authorized by the Issuer or the Servicer or (iv) disclosure to the other
parties to the transactions contemplated by the Basic Documents.
SECTION 11.19. Rights of Collateral Agent. The parties hereto agree
that the Collateral Agent is afforded all of the same rights, powers,
immunities and indemnities as are afforded to the Indenture Trustee under
this Indenture.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed by their respective officers duly authorized as of the day
and year first above written.
CASE EQUIPMENT LOAN TRUST 1996-B;
By: CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but solely as
Trustee
By: /s/ John Cashin
-------------------------------------------
Name: John Cashin
Title: Senior Trust Officer
HARRIS TRUST AND SAVINGS BANK,
not in its individual capacity but solely
as Indenture Trustee
By: /s/ Keith Richardson
-------------------------------------------
Name: Keith Richardson
Title: Assistant Vice President
<PAGE>
EXHIBIT A-1
to Indenture
FORM OF A-1 NOTES
REGISTERED $____________1/<F1>
No. R-____ CUSIP NO. 147440AZ4
<F1>
- ------------------
1/ Denominations of $1,000 and integral multiples of $1,000 in
excess thereof.</F1>
Unless this Indenture Note is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to the Issuer or its agent for registration of transfer, exchange
or payment, and any Indenture Note issued is registered in the name of Cede
& Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE PRINCIPAL OF THIS INDENTURE NOTE IS PAYABLE IN INSTALLMENTS AS
SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS
INDENTURE NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
CASE EQUIPMENT LOAN TRUST 1996-B
5.5625% CLASS A-1 ASSET BACKED NOTES
Case Equipment Loan Trust 1996-B, a trust organized and existing
under the laws of the State of Delaware (including any successor, the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of __________________ DOLLARS
($___________), partially payable on each Payment Date in an amount equal
to the aggregate amount, if any, payable from the Note Distribution Account
in respect of principal on the A-1 Notes pursuant to Section 3.1 of the
Indenture; provided, however, that the entire unpaid principal amount of
this Indenture Note shall be due and payable on the earlier of the
September 1997 Payment Date and the Redemption Date, if any, pursuant to
Section 10.1(a) of the Indenture. The Issuer will pay interest on this
Indenture Note at the rate per annum shown above, on each Payment Date
until the principal of this Indenture Note is paid or made available for
payment, on the principal amount of this Indenture Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations
contained in Section 3.1 of the Indenture. Interest on this Indenture Note
will accrue for each Payment Date from the most recent Payment Date on
which interest has been paid to but excluding the then current Payment Date
or, if no interest has yet been paid, from the date hereof. Interest will
be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Indenture Note shall be paid in the
manner specified in the Indenture.
The principal of and interest on this Indenture Note are payable in
such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. All
payments made by the Issuer with respect to this Indenture Note shall be
applied first to interest due and payable on this Indenture Note as
provided above and then to the unpaid principal of this Indenture Note.
Reference is made to the further provisions of this Indenture Note
set forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Indenture Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee by manual signature, this Indenture Note shall not be
entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Dated: September 19, 1996
CASE EQUIPMENT LOAN TRUST 1996-B
By: CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but
solely as Trustee
under the Trust Agreement
By: ________________________________
Name:___________________________
Title:__________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Indenture Notes designated above and referred to
in the within-mentioned Indenture.
Dated: September 19, 1996
HARRIS TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture
Trustee
By: ___________________________________
Authorized Signatory
<PAGE>
[REVERSE OF INDENTURE NOTE]
This Indenture Note is one of a duly authorized issue of Indenture
Notes of the Issuer, designated as its 5.5625% Class A-1 Asset Backed Notes
(herein called the "A-1 Notes" or the "Indenture Notes"), all issued under
an Indenture dated as of September 1, 1996 (such Indenture, as supplemented
or amended, is herein called the "Indenture"), between the Issuer and
Harris Trust and Savings Bank, not in its individual capacity but solely as
trustee (the "Indenture Trustee", which term includes any successor
Indenture Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Indenture Notes. The Indenture
Notes are subject to all terms of the Indenture. All terms used in this
Indenture Note that are not otherwise defined herein and that are defined
in the Indenture shall have the meanings assigned to them in or pursuant to
the Indenture.
The Indenture Notes, the A-2 Notes and the A-3 Notes are and will be
equally and ratably secured by the collateral pledged as security therefor
as provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest at
the A-1 Note Rate to the extent lawful.
Each Indenture Noteholder or Note Owner, by acceptance of an
Indenture Note, or, in the case of a Note Owner, a beneficial interest in
the Indenture Note, covenants and agrees that no recourse may be taken,
directly or indirectly, with respect to the obligations of the Issuer or
the Indenture Trustee on the Indenture Notes or under the Indenture or any
certificate or other writing delivered in connection therewith, against:
(i) the Indenture Trustee or the Trustee in their individual capacities,
(ii) any owner of a beneficial interest in the Issuer or (iii) any partner,
owner, beneficiary, agent, officer, director or employee of: (a) the
Indenture Trustee or the Trustee in their individual capacities, (b) any
holder of a beneficial interest in the Issuer, the Trustee or the Indenture
Trustee or of (c) any successor or assign of the Indenture Trustee or the
Trustee in their individual capacities, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any
unpaid consideration for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity.
It is the intent of the Seller, the Servicer, the Indenture
Noteholders and the Note Owners that, for purposes of Federal and State
income tax and any other tax measured in whole or in part by income, the
Indenture Notes will qualify as indebtedness of the Trust. Each Indenture
Noteholder or Note Owner, by acceptance of an Indenture Note, or, in the
case of a Note Owner, a beneficial interest in an Indenture Note, agrees to
treat, and to take no action inconsistent with the treatment of, the
Indenture Notes for such tax purposes as indebtedness of the Trust.
Each Indenture Noteholder or Note Owner, by acceptance of an
Indenture Note, or, in the case of a Note Owner, a beneficial interest in
an Indenture Note, covenants and agrees that by accepting the benefits of
the Indenture that such Indenture Noteholder will not at any time institute
against the Seller or the Issuer, or join in any institution against the
Seller or the Issuer of, any bankruptcy, reorganization or arrangement,
insolvency or liquidation proceedings under any United States Federal or
State bankruptcy or similar law in connection with any obligations relating
to the Indenture Notes, the Indenture or the Basic Documents.
This Indenture Note and the Indenture shall be construed in
accordance with the laws of the State of New York, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with
such laws.
No reference herein to the Indenture and no provision of this
Indenture Note or of the Indenture shall alter or impair the obligation of
the Issuer, which is absolute and unconditional, to pay the principal of
and interest on this Indenture Note at the times, place and rate, and in
the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Harris Trust and Savings Bank, in
its individual capacity, any owner of a beneficial interest in the Issuer,
nor any of their respective partners, beneficiaries, agents, officers,
directors, employees, successors or assigns shall be personally liable for,
nor shall recourse be had to any of them for, the payment of principal of
or interest on, or performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in this Indenture Note
or the Indenture, it being expressly understood that said covenants,
obligations and indemnifications have been made by the Indenture Trustee
for the sole purposes of binding the interests of the Indenture Trustee in
the assets of the Issuer. The Holder of this Indenture Note by the
acceptance hereof, and each Note Owner by the acceptance of a beneficial
interest herein, each agrees that, except as expressly provided in the
Basic Documents, in the case of an Event of Default under the Indenture,
the Holder and Note Owner shall have no claim against any of the foregoing
for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this
Indenture Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
- -------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto ______________________________________________
_________________________________________________________________________
(name and address of assignee)
the within Indenture Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ______________________, attorney, to transfer said
Indenture Note on the books kept for registration thereof, with full power
of substitution in the premises.
Dated: _____________ _______________________________ */
Signature Guaranteed:
________________________________________
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the
requirements of the Indenture Note Registrar,
which requirements include membership or
participation in STAMP or such other
"signature guarantee program" as may be
determined by the Indenture Note Registrar in
addition to, or in substitution for, STAMP,
all in accordance with the Securities
Exchange Act of 1934, as amended.
_________________________
*/ NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within
Indenture Note in every particular without alteration, enlargement or
any change whatsoever.
EXHIBIT A-2
to Indenture
FORM OF A-2 NOTES
REGISTERED $____________2/<F2>
No. R-____ CUSIP NO. 147440BA8
<F2>
- ---------------------------
2/ Denominations of $1,000 and integral multiples of $1,000 in
excess thereof.</F2>
Unless this Indenture Note is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to the Issuer or its agent for registration of transfer, exchange
or payment, and any Indenture Note issued is registered in the name of Cede
& Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE PRINCIPAL OF THIS INDENTURE NOTE IS PAYABLE IN INSTALLMENTS AS
SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS
INDENTURE NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
CASE EQUIPMENT LOAN TRUST 1996-B
6.25% CLASS A-2 ASSET BACKED NOTES
Case Equipment Loan Trust 1996-B, a trust organized and existing
under the laws of the State of Delaware (including any successor, the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of __________________ DOLLARS
($___________), partially payable on each Payment Date in an amount equal
to the result obtained by multiplying: (i) a fraction the numerator of
which is $____________ and the denominator of which is $362,000,000 by (ii)
the aggregate amount, if any, payable from the Note Distribution Account in
respect of principal on the A-2 Notes pursuant to Section 3.1 of the
Indenture; provided, however, that the entire unpaid principal amount of
this Indenture Note shall be due and payable on the earlier of the
September 2003 Payment Date and the Redemption Date, if any, pursuant to
Section 10.1(a) of the Indenture. No payments of principal of the Indenture
Notes will be made until the principal of the A-1 Notes has been paid in
full. The Issuer will pay interest on this Indenture Note at the rate per
annum shown above, on each Payment Date until the principal of this
Indenture Note is paid or made available for payment, on the principal
amount of this Indenture Note outstanding on the preceding Payment Date
(after giving effect to all payments of principal made on the preceding
Payment Date), subject to certain limitations contained in Section 3.1 of
the Indenture. Interest on this Indenture Note will accrue for each Payment
Date from the most recent Payment Date on which interest has been paid to
but excluding the then current Payment Date or, if no interest has yet been
paid, from the date hereof. Interest will be computed on the basis of a
360-day year of twelve 30-day months. Such principal of and interest on
this Indenture Note shall be paid in the manner specified in the Indenture.
The principal of and interest on this Indenture Note are payable in
such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. All
payments made by the Issuer with respect to this Indenture Note shall be
applied first to interest due and payable on this Indenture Note as
provided above and then to the unpaid principal of this Indenture Note.
Reference is made to the further provisions of this Indenture Note
set forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Indenture Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee by manual signature, this Indenture Note shall not be
entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Dated: September 19, 1996
CASE EQUIPMENT LOAN TRUST 1996-B
By: CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but
solely as Trustee
under the Trust Agreement
By:_________________________________
Name:___________________________
Title:__________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Indenture Notes designated above and referred to
in the within-mentioned Indenture.
Dated: September 19, 1996
HARRIS TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture
Trustee
By: __________________________________
Authorized Signatory
[REVERSE OF INDENTURE NOTE]
This Indenture Note is one of a duly authorized issue of Indenture
Notes of the Issuer, designated as its 6.25% Class A-2 Asset Backed Notes
(herein called the "A-2 Notes" or the "Indenture Notes"), all issued under
an Indenture dated as of September 1, 1996 (such Indenture, as supplemented
or amended, is herein called the "Indenture"), between the Issuer and
Harris Trust and Savings Bank, not in its individual capacity but solely as
trustee (the "Indenture Trustee", which term includes any successor
Indenture Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Indenture Notes. The Indenture
Notes are subject to all terms of the Indenture. All terms used in this
Indenture Note that are not otherwise defined herein and that are defined
in the Indenture shall have the meanings assigned to them in or pursuant to
the Indenture.
The Indenture Notes, the A-1 Notes and the A-3 Notes are and will be
equally and ratably secured by the collateral pledged as security therefor
as provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest at
the A-2 Note Rate to the extent lawful.
Each Indenture Noteholder or Note Owner, by acceptance of an
Indenture Note, or, in the case of a Note Owner, a beneficial interest in
the Indenture Note, covenants and agrees that no recourse may be taken,
directly or indirectly, with respect to the obligations of the Issuer or
the Indenture Trustee on the Indenture Notes or under the Indenture or any
certificate or other writing delivered in connection therewith, against:
(i) the Indenture Trustee or the Trustee in their individual capacities,
(ii) any owner of a beneficial interest in the Issuer or (iii) any partner,
owner, beneficiary, agent, officer, director or employee of: (a) the
Indenture Trustee or the Trustee in their individual capacities, (b) any
holder of a beneficial interest in the Issuer, the Trustee or the Indenture
Trustee or of (c) any successor or assign of the Indenture Trustee or the
Trustee in their individual capacities, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any
unpaid consideration for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity.
It is the intent of the Seller, the Servicer, the Indenture
Noteholders and the Note Owners that, for purposes of Federal and State
income tax and any other tax measured in whole or in part by income, the
Indenture Notes will qualify as indebtedness of the Trust. Each Indenture
Noteholder or Note Owner, by acceptance of an Indenture Note, or, in the
case of a Note Owner, a beneficial interest in an Indenture Note, agrees to
treat, and to take no action inconsistent with the treatment of, the
Indenture Notes for such tax purposes as indebtedness of the Trust.
Each Indenture Noteholder or Note Owner, by acceptance of an
Indenture Note, or, in the case of a Note Owner, a beneficial interest in
an Indenture Note, covenants and agrees that by accepting the benefits of
the Indenture that such Indenture Noteholder will not at any time institute
against the Seller or the Issuer, or join in any institution against the
Seller or the Issuer of, any bankruptcy, reorganization or arrangement,
insolvency or liquidation proceedings under any United States Federal or
State bankruptcy or similar law in connection with any obligations relating
to the Indenture Notes, the Indenture or the Basic Documents.
This Indenture Note and the Indenture shall be construed in
accordance with the laws of the State of New York, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with
such laws.
No reference herein to the Indenture and no provision of this
Indenture Note or of the Indenture shall alter or impair the obligation of
the Issuer, which is absolute and unconditional, to pay the principal of
and interest on this Indenture Note at the times, place and rate, and in
the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Harris Trust and Savings Bank, in
its individual capacity, any owner of a beneficial interest in the Issuer,
nor any of their respective partners, beneficiaries, agents, officers,
directors, employees, successors or assigns shall be personally liable for,
nor shall recourse be had to any of them for, the payment of principal of
or interest on, or performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in this Indenture Note
or the Indenture, it being expressly understood that said covenants,
obligations and indemnifications have been made by the Indenture Trustee
for the sole purposes of binding the interests of the Indenture Trustee in
the assets of the Issuer. The Holder of this Indenture Note by the
acceptance hereof, and each Note Owner by the acceptance of a beneficial
interest herein, each agrees that, except as expressly provided in the
Basic Documents, in the case of an Event of Default under the Indenture,
the Holder and Note Owner shall have no claim against any of the foregoing
for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this
Indenture Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of
assignee
- ------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto____________________________________________________
______________________________________________________________________________
(name and address of assignee)
the within Indenture Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ______________________, attorney, to transfer said
Indenture Note on the books kept for registration thereof, with full power
of substitution in the premises.
Dated: _____________ _______________________________ */
Signature Guaranteed:
________________________________________
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the
requirements of the Indenture Note Registrar,
which requirements include membership or
participation in STAMP or such other
"signature guarantee program" as may be
determined by the Indenture Note Registrar in
addition to, or in substitution for, STAMP,
all in accordance with the Securities
Exchange Act of 1934, as amended.
_________________________
*/ NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within
Indenture Note in every particular without alteration, enlargement or
any change whatsoever.
EXHIBIT A-3
to Indenture
FORM OF A-3 NOTES
REGISTERED $____________3/<F3>
No. R-___ CUSIP NO. 147440BB6
<F3>
- ----------------------
3/ Denominations of $1,000 and integral multiples of $1,000 in
excess thereof.</F3>
Unless this Indenture Note is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to the Issuer or its agent for registration of transfer, exchange
or payment, and any Indenture Note issued is registered in the name of Cede
& Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE PRINCIPAL OF THIS INDENTURE NOTE IS PAYABLE IN INSTALLMENTS AS
SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS
INDENTURE NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
CASE EQUIPMENT LOAN TRUST 1996-B
6.65% CLASS A-3 ASSET BACKED NOTES
Case Equipment Loan Trust 1996-B, a trust organized and existing
under the laws of the State of Delaware (including any successor, the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of __________________ DOLLARS
($___________), partially payable on each Payment Date in an amount equal
to the result obtained by multiplying: (i) a fraction the numerator of
which is $____________ and the denominator of which is $329,000,000 by (ii)
the aggregate amount, if any, payable from the Note Distribution Account in
respect of principal on the A-3 Notes pursuant to Section 3.1 of the
Indenture; provided, however, that the entire unpaid principal amount of
this Indenture Note shall be due and payable on the earlier of the
September 2003 Payment Date and the Redemption Date, if any, pursuant to
Section 10.1(a) of the Indenture. No payments of principal of the Indenture
Notes will be made until the principal of the A-1 Notes and the A-2 Notes
has been paid in full. The Issuer will pay interest on this Indenture Note
at the rate per annum shown above, on each Payment Date until the principal
of this Indenture Note is paid or made available for payment, on the
principal amount of this Indenture Note outstanding on the preceding
Payment Date (after giving effect to all payments of principal made on the
preceding Payment Date), subject to certain limitations contained in
Section 3.1 of the Indenture. Interest on this Indenture Note will accrue
for each Payment Date from the most recent Payment Date on which interest
has been paid to but excluding the then current Payment Date or, if no
interest has yet been paid, from the date hereof. Interest will be computed
on the basis of a 360-day year of twelve 30-day months. Such principal of
and interest on this Indenture Note shall be paid in the manner specified
in the Indenture.
The principal of and interest on this Indenture Note are payable in
such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. All
payments made by the Issuer with respect to this Indenture Note shall be
applied first to interest due and payable on this Indenture Note as
provided above and then to the unpaid principal of this Indenture Note.
Reference is made to the further provisions of this Indenture Note
set forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Indenture Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee by manual signature, this Indenture Note shall not be
entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Dated: September 19, 1996
CASE EQUIPMENT LOAN TRUST 1996-B
By: CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but
solely as Trustee
under the Trust Agreement
By: ________________________________
Name:___________________________
Title:__________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Indenture Notes designated above and referred to
in the within-mentioned Indenture.
Dated: September 19, 1996
HARRIS TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture
Trustee
By:______________________________
Authorized Signatory
[REVERSE OF INDENTURE NOTE]
This Indenture Note is one of a duly authorized issue of Indenture
Notes of the Issuer, designated as its 6.65% Class A-3 Asset Backed Notes
(herein called the "A-3 Notes" or the "Indenture Notes"), all issued under
an Indenture dated as of September 1, 1996 (such Indenture, as supplemented
or amended, is herein called the "Indenture"), between the Issuer and
Harris Trust and Savings Bank, not in its individual capacity but solely as
trustee (the "Indenture Trustee", which term includes any successor
Indenture Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Indenture Notes. The Indenture
Notes are subject to all terms of the Indenture. All terms used in this
Indenture Note that are not otherwise defined herein and that are defined
in the Indenture shall have the meanings assigned to them in or pursuant to
the Indenture.
The Indenture Notes, the A-1 Notes and the A-2 Notes are and will be
equally and ratably secured by the collateral pledged as security therefor
as provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest at
the A-3 Note Rate to the extent lawful.
Each Indenture Noteholder or Note Owner, by acceptance of an
Indenture Note, or, in the case of a Note Owner, a beneficial interest in
the Indenture Note, covenants and agrees that no recourse may be taken,
directly or indirectly, with respect to the obligations of the Issuer or
the Indenture Trustee on the Indenture Notes or under the Indenture or any
certificate or other writing delivered in connection therewith, against:
(i) the Indenture Trustee or the Trustee in their individual capacities,
(ii) any owner of a beneficial interest in the Issuer or (iii) any partner,
owner, beneficiary, agent, officer, director or employee of: (a) the
Indenture Trustee or the Trustee in their individual capacities, (b) any
holder of a beneficial interest in the Issuer, the Trustee or the Indenture
Trustee or of (c) any successor or assign of the Indenture Trustee or the
Trustee in their individual capacities, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any
unpaid consideration for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity.
It is the intent of the Seller, the Servicer, the Indenture
Noteholders and the Note Owners that, for purposes of Federal and State
income tax and any other tax measured in whole or in part by income, the
Indenture Notes will qualify as indebtedness of the Trust. Each Indenture
Noteholder or Note Owner, by acceptance of an Indenture Note, or, in the
case of a Note Owner, a beneficial interest in an Indenture Note, agrees to
treat, and to take no action inconsistent with the treatment of, the
Indenture Notes for such tax purposes as indebtedness of the Trust.
Each Indenture Noteholder or Note Owner, by acceptance of an
Indenture Note, or, in the case of a Note Owner, a beneficial interest in
an Indenture Note, covenants and agrees that by accepting the benefits of
the Indenture that such Indenture Noteholder will not at any time institute
against the Seller or the Issuer, or join in any institution against the
Seller or the Issuer of, any bankruptcy, reorganization or arrangement,
insolvency or liquidation proceedings under any United States Federal or
State bankruptcy or similar law in connection with any obligations relating
to the Indenture Notes, the Indenture or the Basic Documents.
This Indenture Note and the Indenture shall be construed in
accordance with the laws of the State of New York, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with
such laws.
No reference herein to the Indenture and no provision of this
Indenture Note or of the Indenture shall alter or impair the obligation of
the Issuer, which is absolute and unconditional, to pay the principal of
and interest on this Indenture Note at the times, place and rate, and in
the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Harris Trust and Savings Bank, in
its individual capacity, any owner of a beneficial interest in the Issuer,
nor any of their respective partners, beneficiaries, agents, officers,
directors, employees, successors or assigns shall be personally liable for,
nor shall recourse be had to any of them for, the payment of principal of
or interest on, or performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in this Indenture Note
or the Indenture, it being expressly understood that said covenants,
obligations and indemnifications have been made by the Indenture Trustee
for the sole purposes of binding the interests of the Indenture Trustee in
the assets of the Issuer. The Holder of this Indenture Note by the
acceptance hereof, and each Note Owner by the acceptance of a beneficial
interest herein, each agrees that, except as expressly provided in the
Basic Documents, in the case of an Event of Default under the Indenture,
the Holder and Note Owner shall have no claim against any of the foregoing
for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this
Indenture Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of
assignee
- ------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto ___________________________________________________
______________________________________________________________________________
(name and address of assignee)
the within Indenture Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ______________________, attorney, to transfer said
Indenture Note on the books kept for registration thereof, with full power
of substitution in the premises.
Dated: _____________ _______________________________ */
Signature Guaranteed:
________________________________________
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the
requirements of the Indenture Note Registrar,
which requirements include membership or
participation in STAMP or such other
"signature guarantee program" as may be
determined by the Indenture Note Registrar in
addition to, or in substitution for, STAMP,
all in accordance with the Securities
Exchange Act of 1934, as amended.
_________________________
*/ NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within
Indenture Note in every particular without alteration, enlargement or
any change whatsoever.
EXHIBIT B
to Indenture
FORM OF SECTION 3.9 OFFICERS' CERTIFICATE
____________, 199_
Harris Trust and Savings Bank
311 West Monroe, 12th Floor
Chicago, Illinois 60603
Attention: Indenture Trust Administration
Pursuant to Section 3.9 of the Indenture, dated as of September 1,
1996 (the "Indenture"), between Case Equipment Loan Trust 1996-B (the
"Issuer") and Harris Trust and Savings Bank, as Indenture Trustee, the
undersigned hereby certify that:
(a) a review of the activities of the Issuer during the previous
fiscal year and of performance under the Indenture has been made
under the supervision of the undersigned; and
(b) to the best knowledge of the undersigned, based on such
review, the Issuer has complied with all conditions and covenants
under the Indenture throughout such year. [or, if there has been a
default in the compliance of any such condition or covenant, this
certificate is to specify each such default known to the undersigned
and the nature and status thereof]
CASE EQUIPMENT LOAN TRUST 1996-B
By:_____________________________________________
Name:_________________________________________
Title:________________________________________
By:_____________________________________________
Name:_________________________________________
Title:________________________________________
==============================================================================
CASE EQUIPMENT LOAN TRUST 1996-B
TRUST AGREEMENT
between
CASE RECEIVABLES II INC.
and
CHASE MANHATTAN BANK DELAWARE,
as Trustee
Dated as of September 1, 1996
==============================================================================
Table of Contents
-----------------
Page
----
ARTICLE I
Definitions
SECTION 1.1. Capitalized Terms...................................... 1
SECTION 1.2. Other Definitional Provisions.......................... 3
ARTICLE II
Organization
SECTION 2.1. Name................................................... 4
SECTION 2.2. Office................................................. 4
SECTION 2.3. Purposes and Powers.................................... 4
SECTION 2.4. Appointment of Trustee................................. 5
SECTION 2.5. Initial Capital Contribution of Trust Estate........... 5
SECTION 2.6. Declaration of Trust................................... 5
SECTION 2.7. Liability of the Certificateholders.................... 6
SECTION 2.8. Title to Trust Property................................ 6
SECTION 2.9. Situs of Trust......................................... 7
SECTION 2.10. Representations and Warranties of the Depositor....... 7
SECTION 2.11. Federal Income Tax Allocations........................ 8
ARTICLE III
Trust Certificates and Transfer of Interests
SECTION 3.1. Initial Ownership...................................... 9
SECTION 3.2. The Trust Certificates................................. 9
SECTION 3.3. Authentication of Trust Certificates................... 9
SECTION 3.4. Registration of Transfer and Exchange of Trust
Certificates.......................................... 10
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Trust Certificates 11
SECTION 3.6. Persons Deemed Certificateholders...................... 11
SECTION 3.7. Access to List of Certificateholders' Names and
Addresses............................................. 12
SECTION 3.8. Maintenance of Office or Agency........................ 12
SECTION 3.9. Appointment of Paying Agent............................ 12
SECTION 3.10. Disposition by Depositor.............................. 13
SECTION 3.11. Book-Entry Trust Certificates......................... 13
SECTION 3.12. Notices to Clearing Agency............................ 14
SECTION 3.13. Definitive Trust Certificates......................... 15
ARTICLE IV
Actions by Trustee
SECTION 4.1. Prior Notice to Certificateholders with Respect to
Certain Matters....................................... 15
SECTION 4.2. Action by Certificateholders with Respect to Certain
Matters............................................... 16
SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy 16
SECTION 4.4. Restrictions on Certificateholders' Power.............. 17
SECTION 4.5. Majority Control....................................... 17
ARTICLE V
Application of Trust Funds; Certain Duties
SECTION 5.1. Establishment of Trust Account......................... 17
SECTION 5.2. Applications of Trust Funds............................ 17
SECTION 5.3. Method of Payment...................................... 18
SECTION 5.4. No Segregation of Moneys; No Interest.................. 18
SECTION 5.5. Accounting and Reports to the Indenture Noteholders,
Certificateholders, the Internal Revenue Service
and Others............................................ 18
SECTION 5.6. Signature on Returns; Tax Matters Partner.............. 19
ARTICLE VI
Authority and Duties of Trustee
SECTION 6.1. General Authority...................................... 19
SECTION 6.2. General Duties......................................... 20
SECTION 6.3. Action upon Instruction................................ 20
SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions.......................................... 21
SECTION 6.5. No Action Except Under Specified Documents or
Instructions.......................................... 21
SECTION 6.6. Restrictions........................................... 22
ARTICLE VII
Concerning the Trustee
SECTION 7.1. Acceptance of Trusts and Duties........................ 22
SECTION 7.2. Furnishing of Documents................................ 23
SECTION 7.3. Representations and Warranties......................... 23
SECTION 7.4. Reliance; Advice of Counsel............................ 24
SECTION 7.5. Not Acting in Individual Capacity...................... 25
SECTION 7.6. Trustee Not Liable for Trust Certificates or
Receivables........................................... 25
SECTION 7.7. Trustee May Not Own Notes.............................. 25
ARTICLE VIII
Compensation of Trustee
SECTION 8.1. Trustee's Fees and Expenses............................ 26
SECTION 8.2. Indemnification........................................ 26
SECTION 8.3. Payments to the Trustee................................ 26
ARTICLE IX
Termination of Trust Agreement
SECTION 9.1. Termination of Trust Agreement......................... 27
SECTION 9.2. Dissolution upon Bankruptcy of the Depositor........... 28
ARTICLE X
Successor Trustees and Additional Trustees
SECTION 10.1. Eligibility Requirements for Trustee.................. 29
SECTION 10.2. Resignation or Removal of Trustee..................... 29
SECTION 10.3. Successor Trustee..................................... 30
SECTION 10.4. Merger or Consolidation of Trustee.................... 31
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee......... 31
ARTICLE XI
Miscellaneous
SECTION 11.1. Supplements and Amendments............................ 32
SECTION 11.2. No Legal Title to Trust Estate in Certificateholders.. 34
SECTION 11.3. Limitations on Rights of Others....................... 34
SECTION 11.4. Notices............................................... 34
SECTION 11.5. Severability.......................................... 35
SECTION 11.6. Separate Counterparts................................. 35
SECTION 11.7. Successors and Assigns................................ 35
SECTION 11.8. Covenants of the Depositor............................ 35
SECTION 11.9. No Petition........................................... 36
SECTION 11.10. No Recourse.......................................... 36
SECTION 11.11. Headings............................................. 36
SECTION 11.12. Governing Law........................................ 36
SECTION 11.13. Administrator........................................ 36
EXHIBITS
EXHIBIT A Form of Trust Certificate
EXHIBIT B Form of Certificate of Trust
TRUST AGREEMENT dated as of September 1, 1996, between CASE
RECEIVABLES II INC., a Delaware corporation, as Depositor, and CHASE
MANHATTAN BANK DELAWARE, a Delaware banking corporation, as Trustee.
ARTICLE I
Definitions
SECTION 1.1. Capitalized Terms. For all purposes of this Agreement,
the following terms shall have the meanings set forth below:
"Agreement" shall mean this Trust Agreement, as the same may be
amended and supplemented from time to time.
"Basic Documents" shall mean the Purchase Agreement, the Sale and
Servicing Agreement, the Indenture, the Administration Agreement, the Class
B Note Purchase Agreement, the Certificate Depository Agreement, the
Indenture Note Depository Agreement and the other documents and
certificates delivered in connection therewith.
"Benefit Plan" shall have the meaning assigned to such term in
Section 3.4.
"Book-Entry Trust Certificate" shall mean a beneficial interest in
the Trust Certificates, ownership and transfers of which shall be made
through book-entries by a Clearing Agency as described in Section 3.11.
"Certificate Distribution Account" shall have the meaning assigned to
such term in Section 5.1.
"Certificate Depository Agreement" shall mean the agreement dated the
Closing Date among the Trust, the Trustee, the Administrator and The
Depository Trust Company, as the initial Clearing Agency, relating to the
Trust Certificates, as the same may be amended and supplemented from time
to time.
"Certificateholder" shall mean a Person in whose name a Trust
Certificate is registered.
"Certificate of Trust" shall mean the Certificate of Trust
substantially in the form of Exhibit B to be filed for the Trust pursuant
to Section 3810(a) of the Trust Statute.
"Certificate Owner" shall mean, with respect to a Book-Entry Trust
Certificate, the Person who is the beneficial owner of such Book-Entry
Trust Certificate, as reflected on the books of the Clearing Agency, or on
the books of a Person maintaining an account with such Clearing Agency
(directly as a Clearing Agency Participant or as an indirect participant,
in each case in accordance with the rules of such Clearing Agency).
"Certificate Register" and "Certificate Registrar" shall mean the
register mentioned and the registrar appointed pursuant to Section 3.4.
"Corporate Trust Office" shall mean, with respect to the Trustee, the
principal corporate trust office of the Trustee located at 1201 North
Market Street, Wilmington, Delaware 19801, Attention: Corporate Trust
Department; or at such other address as the Trustee may designate from time
to time by notice to the Certificateholders and the Depositor, or the
principal corporate trust office of any successor Trustee (the address of
which the successor Trustee will notify the Certificateholders and the
Depositor).
"Definitive Trust Certificates" shall have the meaning set forth in
Section 3.11.
"Depositor" shall mean the Seller in its capacity as Depositor
hereunder.
"Expenses" shall have the meaning assigned to such term in Section
8.2.
"Holder" shall mean a Certificateholder.
"Indemnified Parties" shall have the meaning assigned to such term in
Section 8.2.
"Initial Certificate Balance" shall mean the amount specified as the
Initial Certificate Balance in a letter of instruction from the Depositor
to the Trustee.
"Paying Agent" shall mean any paying agent or co-paying agent
appointed pursuant to Section 3.9, and shall initially be The Chase
Manhattan Bank.
"Record Date" shall mean, with respect to any Payment Date, the close
of business on the fourteenth day of the calendar month in which such
Payment Date occurs, or if Definitive Trust Certificates are issued, the
close of business on the last day of the calendar month preceding the month
of such Payment Date, whether or not such day is a Business Day.
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement among the Trust, the Depositor, as Seller, and Credit, as
Servicer, dated as of the date hereof, as the same may be amended and
supplemented from time to time.
"Secretary of State" shall mean the Secretary of State of the State
of Delaware.
"Treasury Regulations" shall mean regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary regulations shall include
analogous provisions of final Treasury Regulations or other successor
Treasury Regulations.
"Trust" shall mean the trust established by this Agreement.
"Trust Certificate" shall mean a certificate evidencing the
beneficial interest of a Certificateholder in the Trust, substantially in
the form attached hereto as Exhibit A.
"Trustee" shall mean Chase Manhattan Bank Delaware, a Delaware
banking corporation, not in its individual capacity but solely as trustee
under this Agreement, and any successor Trustee hereunder.
"Trust Estate" shall mean all right, title and interest of the Trust
in and to the property and rights assigned to the Trust pursuant to Article
II of the Sale and Servicing Agreement, all funds on deposit from time to
time in the Trust Accounts and the Certificate Distribution Account and all
other property of the Trust from time to time, including any rights of the
Trustee and the Trust pursuant to the Sale and Servicing Agreement and the
Administration Agreement.
"Trust Statute" shall mean Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code 3801 et seq., as the same may be amended from time to
time.
SECTION 1.2. Other Definitional Provisions. (a) Capitalized terms
used herein and not otherwise defined have the meanings assigned to them in
the Sale and Servicing Agreement or, if not defined therein, in the
Indenture.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such
certificate or other document to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles in effect on the date hereof. To the extent that the definitions
of accounting terms in this Agreement or in any such certificate or other
document are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this Agreement
or in any such certificate or other document shall control.
(d) The words "hereof", "herein", "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and
Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including without limitation".
(e) The definitions contained in this Agreement are applicable to
the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such terms.
ARTICLE II
Organization
SECTION 2.1. Name. The Trust created hereby shall be known as "Case
Equipment Loan Trust 1996-B", in which name the Trustee may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued.
SECTION 2.2. Office. The office of the Trust shall be in care of the
Trustee at the Corporate Trust Office or at such other address in Delaware
as the Trustee may designate by written notice to the Certificateholders
and the Depositor.
SECTION 2.3. Purposes and Powers. The purpose of the Trust is, and
the Trust shall have the power and authority to, engage in the following
activities:
(a) to issue the Indenture Notes pursuant to the Indenture, the
Class B Notes pursuant to the Class B Note Purchase Agreement and the
Trust Certificates pursuant to this Agreement and to sell the
Indenture Notes, the Class B Notes and the Trust Certificates in one
or more transactions;
(b) with the proceeds of the sale of the Indenture Notes, the
Class B Notes and the Trust Certificates, to fund the Pre-Funding
Account and to purchase the Receivables pursuant to the Sale and
Servicing Agreement;
(c) to assign, grant, transfer, pledge, mortgage and convey the
Trust Estate pursuant to the Indenture and to hold, manage and
distribute to the Certificateholders pursuant to the Sale and
Servicing Agreement any portion of the Trust Estate released from the
Lien of, and remitted to the Trust pursuant to, the Indenture;
(d) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(e) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(f) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with
conservation of the Trust Estate and the making of distributions to
the Certificateholders, the Class B Noteholders and the Indenture
Noteholders.
The Trust shall not engage in any activity other than in connection with
the foregoing or other than as required or authorized by this Agreement or
the Basic Documents.
SECTION 2.4. Appointment of Trustee. The Depositor hereby appoints
the Trustee as trustee of the Trust effective as of the date hereof, to
have all the rights, powers and duties set forth herein.
SECTION 2.5. Initial Capital Contribution of Trust Estate. The
Depositor hereby contributes to the Trustee, as of the date hereof, the sum
of $1.00. The Trustee hereby acknowledges receipt in trust from the
Depositor, as of the date hereof, of the foregoing contribution, which
shall constitute the initial Trust Estate and shall be deposited in the
Certificate Distribution Account. The Depositor shall pay organizational
expenses of the Trust as they may arise or shall, upon the request of the
Trustee, promptly reimburse the Trustee for any such expenses paid by the
Trustee. The Depositor may also take steps necessary, including the
execution and filing of any necessary filings, to ensure that the Trust is
in compliance with any applicable state securities law.
SECTION 2.6. Declaration of Trust. The Trustee hereby declares that
it will hold the Trust Estate in trust upon and subject to the conditions
set forth herein for the use and benefit of the Certificateholders, subject
to the obligations of the Trust under the Basic Documents. It is the
intention of the parties hereto that the Trust constitute a business trust
under the Trust Statute and that this Agreement constitute the governing
instrument of such business trust. It is the intention of the parties
hereto that, solely for income and franchise tax purposes, the Trust shall
be treated as a partnership, with the assets of the partnership being the
Receivables and other assets held by the Trust, the partners of the
partnership being the Certificateholders (including the Seller in its
capacity as recipient of distributions from the Spread Account), and the
Indenture Notes and Class B Notes being debt of the partnership. The
parties agree that, unless otherwise required by appropriate tax
authorities, the Trust will file or cause to be filed annual or other
necessary returns, reports and other forms consistent with the
characterization of the Trust as a partnership for such tax purposes.
Effective as of the date hereof, the Trustee shall have all rights, powers
and duties set forth herein and in the Trust Statute with respect to
accomplishing the purposes of the Trust.
SECTION 2.7. Liability of the Certificateholders. (a) The Depositor
shall be liable directly to, and will indemnify, any injured party for all
losses, claims, damages, liabilities and expenses of the Trust (including
Expenses, to the extent not paid out of the Trust Estate) to the extent
that the Depositor would be liable if the Trust were a partnership under
the Delaware Revised Uniform Limited Partnership Act in which the Depositor
were a general partner; provided, however, that the Depositor shall not be
liable for any losses incurred by a Certificateholder in the capacity of an
investor in the Trust Certificates, a Class B Noteholder in the capacity of
an investor in the Class B Notes or an Indenture Noteholder in the capacity
of an investor in the Indenture Notes. In addition, any third party
creditors of the Trust (other than in connection with the obligations
described in the preceding sentence for which the Depositor shall not be
liable) shall be deemed third party beneficiaries of this paragraph. The
obligations of the Depositor under this paragraph shall be evidenced by the
Trust Certificates described in Section 3.10, which for purposes of the
Trust Statute shall be deemed to be a separate class of Trust Certificates
from all other Trust Certificates issued by the Trust; provided, that the
rights and obligations evidenced by all Trust Certificates, regardless of
class, except as provided in this Section, shall be identical.
(b) No Certificateholder, other than to the extent set forth in
paragraph (a), shall have any personal liability for any liability or
obligation of the Trust.
SECTION 2.8. Title to Trust Property. Legal title to all the Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part
of the Trust Estate to be vested in a trustee or trustees, in which case
title shall be deemed to be vested in the Trustee, a co-trustee and/or a
separate trustee, as the case may be.
SECTION 2.9. Situs of Trust. The Trust will be located and
administered in the State of Delaware. All bank accounts maintained by the
Trustee on behalf of the Trust shall be located in the State of Delaware or
the State of New York. The Trust shall not have any employees in any state
other than Delaware; provided, however, that nothing herein shall restrict
or prohibit the Trustee from having employees within or without the State
of Delaware. Payments will be received by the Trust only in Delaware or New
York, and payments will be made by the Trust only from Delaware or New
York.
SECTION 2.10. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Trustee that:
(a) The Depositor is duly organized and validly existing as a
corporation 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 currently owned and such business is
presently conducted.
(b) The Depositor is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease
of property or the conduct of its business shall require such
qualifications.
(c) The Depositor has the power and authority to execute and
deliver this Agreement and to carry out its terms; the Depositor has
full power and authority to sell and assign the property to be sold
and assigned to and deposited with the Trust and the Depositor shall
have duly authorized such sale and assignment and deposit to the
Trust by all necessary corporate action; and the execution, delivery
and performance of this Agreement have been duly authorized by the
Depositor by all necessary corporate action.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under,
the certificate of incorporation or by-laws of the Depositor, or any
indenture, agreement or other instrument to which the Depositor is a
party or by which it is bound; or result in the creation or
imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement or other instrument (other
than pursuant to the Basic Documents); or violate any law or, to the
best of the Depositor's knowledge, any order, rule or regulation
applicable to the Depositor of any court or of any Federal or State
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its
properties.
SECTION 2.11. Federal Income Tax Allocations. Interest payments on
the Certificates at the Pass-Through Rate (including interest on amounts
previously due on the Certificates but not yet distributed) shall be
treated as "guaranteed payments" under Section 707(c) of the Code. Net
income of the Trust for any month as determined for Federal income tax
purposes (and each item of income, gain, loss and deduction entering into
the computation thereof) shall be allocated:
(a) among the Certificateholders as of the close of business on
the last day of such month, in proportion to their ownership of
principal amount of Trust Certificates on such date, an amount of net
income up to the sum of: (i) the portion of the market discount on
the Receivables accrued during such month that is allocable to the
excess, if any, of the Initial Certificate Balance over their initial
aggregate issue price, (ii) Certificateholders' Prepayment Premium,
if any, payable for such month and (iii) any other amounts of income
payable to the Certificateholders for such month; and such sum of
amounts specified in clauses (i) through (iii) of this sentence shall
be reduced by any amortization by the Trust of premium on Receivables
that corresponds to any excess of the issue price of Trust
Certificates over their principal amount; and
(b) to the Depositor, and other holders of interests in the
Spread Account, to the extent of any remaining net income, in
accordance with their respective interests therein.
If the net income of the Trust for any month is insufficient for the
allocations described in clause (a), subsequent net income shall first be
allocated to make up such shortfall before being allocated as provided in
the preceding sentence. Net losses of the Trust, if any, for any month as
determined for Federal income tax purposes (and each item of income, gain,
loss and deduction entering into the computation thereof) shall be
allocated to the Depositor (or other holders of interests in the Spread
Account) to the extent the Depositor (or such holders) are reasonably
expected to bear the economic burden of such net losses, and any remaining
net losses shall be allocated among the remaining Certificateholders as of
the close of business on the last day of such month in proportion to their
ownership of principal amount of Trust Certificates on such day. The
Depositor is authorized to modify the allocations in this paragraph if
necessary or appropriate, in its sole discretion, for the allocations to
fairly reflect the economic income, gain or loss to the Depositor (or other
holders of interests in the Spread Account) or to the Certificateholders,
or as otherwise required by the Code.
ARTICLE III
Trust Certificates and Transfer of Interests
SECTION 3.1. Initial Ownership. Upon the formation of the Trust by
the contribution by the Depositor pursuant to Section 2.5, and until the
issuance of the Trust Certificates, the Depositor shall be the sole
beneficiary of the Trust.
SECTION 3.2. The Trust Certificates. The Trust Certificates shall be
issued in denominations of $1,000 or in integral multiples of $1,000 in
excess thereof; provided, however, the Trust Certificates issued to the
Depositor pursuant to Section 3.10 may be issued in such denomination as to
include any residual amount. The Trust Certificates shall be executed on
behalf of the Trust by manual or facsimile signature of an authorized
officer of the Trustee. Trust Certificates bearing the manual or facsimile
signatures of individuals who were, at the time when such signatures shall
have been affixed, authorized to sign on behalf of the Trust, shall be,
when authenticated pursuant to Section 3.3, validly issued and entitled to
the benefits of this Agreement, notwithstanding that such individuals or
any of them shall have ceased to be so authorized prior to the
authentication and delivery of such Trust Certificates or did not hold such
offices at the date of authentication and delivery of such Trust
Certificates.
SECTION 3.3. Authentication of Trust Certificates. Concurrently with
the sale of the Receivables to the Trust pursuant to the Sale and Servicing
Agreement, the Trustee shall cause the Trust Certificates in an aggregate
principal amount equal to the Initial Certificate Balance to be executed on
behalf of the Trust, authenticated and delivered to or upon the written
order of the Depositor, signed by its chairman of the board, its president
or any vice president, without further corporate action by the Depositor,
in authorized denominations. No Trust Certificate shall entitle its Holder
to any benefit under this Agreement, or shall be valid for any purpose,
unless there shall appear on such Trust Certificate a certificate of
authentication substantially in the form set forth in Exhibit A, executed
by the Trustee or The Chase Manhattan Bank, as the Trustee's authenticating
agent, by the manual signature of one of its authorized signatories; such
certificate of authentication shall constitute conclusive evidence, and the
only evidence, that such Trust Certificate shall have been duly
authenticated and delivered hereunder. All Trust Certificates shall be
dated the date of their authentication. No further Trust Certificates shall
be issued except pursuant to Section 3.4, 3.5, 3.10 or 3.13 hereunder.
SECTION 3.4. Registration of Transfer and Exchange of Trust
Certificates. The Trust shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 3.8, a register (the "Certificate
Register") in which, subject to such reasonable regulations as it may
prescribe, the Issuer shall provide for the registration of Trust
Certificates and of transfers and exchanges of Trust Certificates. The
Paying Agent shall be the "Certificate Registrar" for the purpose of
registering Trust Certificates and the transfers of Trust Certificates as
herein provided. Upon any resignation of any Certificate Registrar, the
Depositor shall promptly appoint a successor or, if it elects not to make
such an appointment, assume the duties of the Certificate Registrar.
Upon surrender for registration of transfer of any Trust Certificate
at the office or agency maintained pursuant to Section 3.8, if the
requirements of Section 8-401(l) of the UCC are met, the Trustee shall
execute, authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Trust Certificates in authorized
denominations of a like aggregate principal amount.
At the option of a Holder, Trust Certificates may be exchanged for
other Trust Certificates of authorized denominations, of a like aggregate
principal amount, upon surrender of the Trust Certificates to be exchanged
at the office or agency maintained pursuant to Section 3.8. Whenever any
Trust Certificates are so surrendered for exchange, if the requirements of
Section 8-401(l) of the UCC are met, the Trustee shall execute,
authenticate and deliver the Trust Certificates that the Certificateholder
making the exchange is entitled to receive.
All Trust Certificates issued upon any registration of transfer or
exchange of Trust Certificates shall be entitled to the same benefits under
this Agreement as the Trust Certificates surrendered upon such registration
of transfer or exchange.
Every Trust Certificate presented or surrendered for registration of
transfer or exchange shall be duly endorsed by, or be accompanied by a
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by, the Holder thereof or his attorney
duly authorized in writing. Each Trust Certificate surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Trustee in accordance with its customary practice.
No service charge shall be made to a Certificateholder for any
registration of transfer or exchange of Trust Certificates, but the Trustee
or the Certificate Registrar may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Trust
Certificates.
The Trust Certificates and any beneficial interest in such Trust
Certificates may not be acquired by: (a) an employee benefit plan (as
defined in Section 3(3) of ERISA) that is subject to the provisions of
Title I of ERISA, (b) a plan described in Section 4975(e)(1) of the Code or
(c) any entity whose underlying assets include plan assets by reason of a
plan's investment in the entity (each a "Benefit Plan"). By accepting and
holding a Trust Certificate or an interest therein, the Holder thereof or
Certificate Owner thereof shall be deemed to have represented and warranted
that it is not a Benefit Plan. The Trustee shall have no obligation to
determine whether or not a Holder of a Trust Certificate or a Certificate
Owner is or is not a Benefit Plan.
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Trust
Certificates. If: (a) any mutilated Trust Certificate shall be surrendered
to the Certificate Registrar, or if the Certificate Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Certificate (provided, that the Trustee shall not be required to verify the
evidence provided to it), and (b) there shall be delivered to the
Certificate Registrar and the Trustee such security or indemnity as may be
required by them to hold each of them harmless, then, in the absence of
notice that such Trust Certificate shall have been acquired by a bona fide
purchaser, and provided that the requirements of Section 8-405 of the UCC
are met, the Trustee on behalf of the Trust shall execute, authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Trust Certificate, a replacement Trust Certificate of like tenor
and denomination.
In connection with the issuance of any replacement Trust Certificate
under this Section, the Trustee and the Certificate Registrar may require
the payment by the Certificateholder of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection therewith.
Any replacement Trust Certificate issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Trust Certificate
shall constitute conclusive evidence of ownership in the Trust, as if
originally issued, whether or not the mutilated, lost, stolen or destroyed
Trust Certificate shall be found at any time, and shall be entitled to all
the benefits of this Agreement.
SECTION 3.6. Persons Deemed Certificateholders. Prior to due
presentation of a Trust Certificate for registration of transfer of any
Trust Certificate, the Trustee or the Certificate Registrar may treat the
Person in whose name any Trust Certificate shall be registered in the
Certificate Register (as of the day of determination) as the owner of such
Trust Certificate for the purpose of receiving distributions pursuant to
Section 5.2 and for all other purposes whatsoever, and neither the Trustee
nor the Certificate Registrar shall be bound by any notice to the contrary.
SECTION 3.7. Access to List of Certificateholders' Names and
Addresses. The Trustee shall furnish or cause to be furnished to the
Servicer and the Depositor, within 15 days after receipt by the Trustee of
a request therefor from the Servicer or the Depositor in writing, a list,
in such form as the Servicer or the Depositor may reasonably require, of
the names and addresses of the Certificateholders as of the most recent
Record Date. If three or more Certificateholders or one or more Holder(s)
of Trust Certificates evidencing not less than 25% of the Certificate
Balance apply in writing to the Trustee, and such application states that
the applicants desire to communicate with other Certificateholders with
respect to their rights under this Agreement or under the Trust
Certificates and such application shall be accompanied by a copy of the
communication that such applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt of such application,
afford such applicants access during normal business hours to the current
list of Certificateholders. Each Holder, by receiving and holding a Trust
Certificate, shall be deemed to have agreed not to hold any of the
Depositor, the Certificate Registrar or the Trustee accountable by reason
of the disclosure of its name and address, regardless of the source from
which such information was derived.
SECTION 3.8. Maintenance of Office or Agency. The Trustee shall
maintain in the Borough of Manhattan, City of New York an office or offices
or agency or agencies where Trust Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or
upon the Trustee in respect of the Trust Certificates and the Basic
Documents may be served. The Trustee initially designated The Chase
Manhattan Bank, 450 West 33rd Street, 15th Floor, New York, New York 10001,
Attention: Structured Finance Services (ABS) as its principal corporate
trust office for such purposes. The Trustee shall give prompt written
notice to the Depositor and to the Certificateholders of any change in the
location of the Certificate Register or any such office or agency.
SECTION 3.9. Appointment of Paying Agent. The Paying Agent shall
make distributions to Certificateholders from the Certificate Distribution
Account pursuant to Section 5.2 and shall report the amounts of such
distributions to the Trustee. Any Paying Agent shall have the revocable
power to withdraw funds from the Certificate Distribution Account for the
purpose of making the distributions referred to above. The Trustee may
revoke such power and remove the Paying Agent if the Trustee determines in
its sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. The Paying Agent
shall initially be The Chase Manhattan Bank, and any co-paying agent chosen
by and acceptable to the Trustee. The Paying Agent shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Trustee. In the
event that the Trustee shall not be the Paying Agent, the Trustee shall
appoint a successor to act as Paying Agent (which shall be a bank or trust
company). The Trustee shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Trustee to execute and deliver to
the Trustee an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Trustee that as Paying Agent,
such successor Paying Agent or additional Paying Agent will hold all sums,
if any, held by it for payment to the Certificateholders in trust for the
benefit of the Certificateholders entitled thereto until such sums shall be
paid to such Certificateholders. The Paying Agent shall return all
unclaimed funds to the Trustee and upon removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the Trustee.
The provisions of Sections 7.1, 7.3, 7.4 and 8.1 shall apply to the Trustee
also in its role as Paying Agent, for so long as the Trustee shall act as
Paying Agent and, to the extent applicable, to any other paying agent
appointed hereunder. Any reference in this Agreement to the Paying Agent
shall include any co-paying agent unless the context requires otherwise.
SECTION 3.10. Disposition by Depositor. On and after the Closing
Date, the Depositor shall retain beneficial and record ownership of Trust
Certificates representing at least 1% of the Certificate Balance. Any
attempted transfer of any Trust Certificate that would reduce such interest
of the Depositor below 1% of the Certificate Balance shall be void. The
Trustee shall cause any Trust Certificate issued to the Depositor on the
Closing Date (and any Trust Certificate issued in exchange therefor) to
contain a legend stating "THIS CERTIFICATE IS NONTRANSFERABLE."
SECTION 3.11. Book-Entry Trust Certificates. The Trust Certificates,
upon original issuance, will be issued in the form of a typewritten Trust
Certificate or Trust Certificates representing Book-Entry Trust
Certificates, to be delivered to The Depository Trust Company, as the
initial Clearing Agency, or its custodian, by, or on behalf of, the Trust;
provided, however, that one Definitive Trust Certificate may be issued to
the Depositor pursuant to Section 3.10. Such Trust Certificate(s) shall
initially be registered on the Certificate Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Certificate Owner
will receive a Definitive Trust Certificate representing such Certificate
Owner's interest in such Trust Certificate, except as provided in Section
3.13. Unless and until definitive, fully registered Trust Certificates (the
"Definitive Trust Certificates") have been issued to Certificate Owners
pursuant to Section 3.13:
(i) the provisions of this Section shall be in full force and
effect;
(ii) the Certificate Registrar and the Trustee shall be entitled
to deal with the Clearing Agency for all purposes of this Agreement
(including the payment of principal of and interest on the Trust
Certificates and the giving of instructions or directions hereunder)
as the sole Holder of the Trust Certificates (other than the Trust
Certificate held by the Depositor) and shall have no obligation to
the Certificate Owners;
(iii) to the extent that the provisions of this Section conflict
with any other provisions of this Agreement, the provisions of this
Section shall control;
(iv) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and shall be limited to those established
by law and agreements between such Certificate Owners and the
Clearing Agency and/or the Clearing Agency Participants pursuant to
the Certificate Depository Agreement. Unless and until Definitive
Trust Certificates are issued (other than the Definitive Trust
Certificate held by the Depositor), the Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and
receive and transmit payments of principal of and interest on the
Trust Certificates to such Clearing Agency Participants; and
(v) whenever this Agreement requires or permits actions to be
taken based upon instructions or directions of Holders of Trust
Certificates evidencing a specified percentage of the Certificate
Balance, the Clearing Agency shall be deemed to represent such
percentage only to the extent that it has received instructions to
such effect from Certificate Owners and/or Clearing Agency
Participants owning or representing, respectively, such required
percentage of the beneficial interest in the Trust Certificates and
has delivered such instructions to the Trustee.
SECTION 3.12. Notices to Clearing Agency. Whenever a notice or other
communication to the Certificateholders is required under this Agreement,
unless and until Definitive Trust Certificates shall have been issued to
Certificate Owners (other than the Definitive Trust Certificate held by the
Depositor), the Trustee shall give all such notices and communications
specified herein to be given to Certificateholders to the Clearing Agency,
and shall have no obligations to Certificate Owners.
SECTION 3.13. Definitive Trust Certificates. If: (i) the
Administrator advises the Trustee in writing that the Clearing Agency is no
longer willing or able to properly discharge its responsibilities with
respect to the Trust Certificates, and the Administrator is unable to
locate a qualified successor, (ii) the Administrator at its option advises
the Trustee in writing that it elects to terminate the book-entry system
through the Clearing Agency or (iii) after the occurrence of an Event of
Default or a Servicer Default, Certificate Owners representing beneficial
interests aggregating at least a majority of the Certificate Balance advise
the Clearing Agency in writing that the continuation of a book-entry system
through the Clearing Agency is no longer in the best interests of the
Certificate Owners, then the Clearing Agency has undertaken to notify all
Certificate Owners and the Trustee of the occurrence of any such event and
of the availability of the Definitive Trust Certificates to Certificate
Owners requesting the same. Upon surrender to the Trustee of the
typewritten Trust Certificate(s) representing the Book-Entry Trust
Certificates by the Clearing Agency, accompanied by registration
instructions, the Trustee shall execute and authenticate the Definitive
Trust Certificates in accordance with the instructions of the Clearing
Agency. Neither the Certificate Registrar nor the Trustee shall be liable
for any delay in delivery of such instructions and may conclusively rely
on, and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Trust Certificates, the Trustee shall recognize the
Holders of the Definitive Trust Certificates as Certificateholders. The
Definitive Trust Certificates shall be printed, lithographed or engraved or
may be produced in any other manner as is reasonably acceptable to the
Trustee, as evidenced by its execution thereof.
ARTICLE IV
Actions by Trustee
SECTION 4.1. Prior Notice to Certificateholders with Respect to
Certain Matters. With respect to the following matters, the Trustee shall
not take action unless, at least 30 days before the taking of such action,
the Trustee shall have notified the Certificateholders in writing of the
proposed action and the Certificateholders shall not have notified the
Trustee in writing prior to the 30th day after such notice is given that
such Certificateholders have withheld consent or shall not have provided
alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except
claims or lawsuits brought in connection with the collection of the
Receivables) and the compromise of any action, claim or lawsuit
brought by or against the Trust (except with respect to the
aforementioned claims or lawsuits for collection of Receivables);
(b) the election by the Trust to file an amendment to the
Certificate of Trust;
(c) the amendment of the Indenture or the Class B Note Purchase
Agreement in circumstances where the consent of any Indenture
Noteholder or Class B Noteholder is required;
(d) the amendment of the Indenture or the Class B Note Purchase
Agreement in circumstances where the consent of any Indenture
Noteholder or Class B Noteholder is not required and such amendment
materially adversely affects the interest of the Certificateholders;
(e) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any
provision in a manner, or add any provision, that would not
materially adversely affect the interests of the Certificateholders;
or
(f) the appointment pursuant to the Indenture of a successor
Indenture Note Registrar, Paying Agent or Indenture Trustee, or
pursuant to this Agreement of a successor Certificate Registrar, or
the consent to the assignment by the Indenture Note Registrar, Paying
Agent or Indenture Trustee or Certificate Registrar of its
obligations under the Indenture or this Agreement, as applicable.
SECTION 4.2. Action by Certificateholders with Respect to Certain
Matters. The Trustee shall not have the power, except upon the direction of
the Certificateholders, to: (a) remove the Administrator under the
Administration Agreement, (b) appoint a successor Administrator, (c) remove
the Servicer under the Sale and Servicing Agreement or (d) except as
expressly provided in the Basic Documents, sell the Receivables after the
termination of the Indenture. The Trustee shall take the actions referred
to in the preceding sentence only upon written instructions signed by the
Certificateholders.
SECTION 4.3. Action by Certificateholders with Respect to
Bankruptcy. The Trustee shall not have the power to commence a voluntary
proceeding in bankruptcy relating to the Trust without the unanimous prior
approval of all Certificateholders and the delivery to the Trustee by each
such Certificateholder of a certificate certifying that such
Certificateholder reasonably believes that the Trust is insolvent.
SECTION 4.4. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any
obligation of the Trust or the Trustee under this Agreement or any of the
Basic Documents or would be contrary to Section 2.3, nor shall the Trustee
be obligated to follow any such direction, if given.
SECTION 4.5. Majority Control. Except as expressly provided herein,
any action that may be taken by the Certificateholders under this Agreement
may be taken by the Holders of Trust Certificates evidencing not less than
a majority of the Certificate Balance. Except as expressly provided herein,
any written notice of the Certificateholders delivered pursuant to this
Agreement shall be effective if signed by Holders of Trust Certificates
evidencing not less than a majority of the Certificate Balance at the time
of the delivery of such notice.
ARTICLE V
Application of Trust Funds; Certain Duties
SECTION 5.1. Establishment of Trust Account. The Trustee, for the
benefit of the Certificateholders, shall establish and maintain in the name
of the Trust an Eligible Deposit Account (the "Certificate Distribution
Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Certificateholders.
The Trust shall possess all right, title and interest in all funds on
deposit from time to time in the Certificate Distribution Account and in
all proceeds thereof. Except as otherwise expressly provided herein, the
Certificate Distribution Account shall be under the sole dominion and
control of the Trustee for the benefit of the Certificateholders. If, at
any time, the Certificate Distribution Account ceases to be an Eligible
Deposit Account, the Trustee (or the Depositor on behalf of the Trustee, if
the Certificate Distribution Account is not then held by the Trustee or an
affiliate thereof) shall, within 10 Business Days (or such longer period,
not to exceed 30 calendar days, as to which the Rating Agency Condition
shall be satisfied), establish a new Certificate Distribution Account as an
Eligible Deposit Account and shall transfer any cash and/or any investments
to such new Certificate Distribution Account.
SECTION 5.2. Applications of Trust Funds. (a) On each Payment Date,
the Trustee will distribute to Certificateholders, on a pro rata basis,
amounts deposited in the Certificate Distribution Account pursuant to
Sections 5.5, 5.6 and 5.7 of the Sale and Servicing Agreement.
(b) On each Payment Date, the Trustee shall send to each
Certificateholder the statement provided to the Trustee by the Servicer
pursuant to Section 5.10 of the Sale and Servicing Agreement.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to a Certificateholder, such tax shall
reduce the amount otherwise distributable to the Certificateholder in
accordance with this Section. The Trustee is hereby authorized and directed
to retain from amounts otherwise distributable to the Certificateholders
sufficient funds for the payment of any tax that is legally owed by the
Trust (but such authorization shall not prevent the Trustee from contesting
any such tax in appropriate proceedings, and withholding payment of such
tax, if permitted by law, pending the outcome of such proceedings). The
amount of any withholding tax imposed with respect to a Certificateholder
shall be treated as cash distributed to such Certificateholder at the time
it is withheld by the Trust. If there is a possibility that withholding tax
is payable with respect to a distribution (such as a distribution to a
non-U.S. Certificateholder), the Trustee may, in its sole discretion,
withhold such amounts in accordance with this paragraph (c). In the event
that a Certificateholder wishes to apply for a refund of any such
withholding tax, the Trustee shall reasonably cooperate with such
Certificateholder in making such claim so long as such Certificateholder
agrees to reimburse the Trustee for any out-of-pocket expenses incurred.
SECTION 5.3. Method of Payment. Subject to Section 9.1(c),
distributions required to be made to Certificateholders on any Payment Date
shall be made to each Certificateholder of record on the preceding Record
Date either by wire transfer, in immediately available funds, to the
account of such Holder at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have provided to the
Certificate Registrar appropriate written instructions at least five
Business Days prior to such Payment Date and such Holder's Trust
Certificates aggregate not less than $1,000,000, or, if not, by check
mailed to such Certificateholder at the address of such Holder appearing in
the Certificate Register.
SECTION 5.4. No Segregation of Moneys; No Interest. Subject to
Sections 5.1 and 5.2, moneys received by the Trustee hereunder need not be
segregated in any manner except to the extent required by law or the Sale
and Servicing Agreement and may be deposited under such general conditions
as may be prescribed by law, and the Trustee shall not be liable for any
interest thereon.
SECTION 5.5. Accounting and Reports to the Indenture Noteholders,
Certificateholders, the Internal Revenue Service and Others. The Trustee
shall: (a) maintain (or cause to be maintained) the books of the Trust on a
calendar year basis on the accrual method of accounting, (b) deliver to
each Certificateholder, as may be required by the Code and applicable
Treasury Regulations, such information as may be required (including
Schedule K-1) to enable each Certificateholder to prepare its Federal,
State and local income tax returns, (c) file such tax returns relating to
the Trust (including a partnership information return on Internal Revenue
Service Form 1065 or its successor), and make such elections as may from
time to time be required or appropriate under any applicable State or
Federal statute or rule or regulation thereunder so as to maintain the
Trust's characterization as a partnership for Federal income tax purposes,
(d) cause such tax returns to be signed in the manner required by law and
(e) collect or cause to be collected any withholding tax as described in
and in accordance with Section 5.2(c) with respect to income or
distributions to Certificateholders. The Trustee shall elect under Section
1278 of the Code to include in income currently any market discount that
accrues with respect to the Receivables and shall elect under Section 171
of the Code to amortize any bond premium with respect to the Receivables.
The Trustee shall not make the election provided under Section 754 of the
Code.
SECTION 5.6. Signature on Returns; Tax Matters Partner. (a) The
Trustee shall sign on behalf of the Trust the tax returns of the Trust,
unless applicable law requires a Certificateholder to sign such documents,
in which case such documents shall be signed by the Depositor.
(b) The Depositor shall be designated the "tax matters partner" of
the Trust pursuant to Section 6231(a)(7)(A) of the Code and applicable
Treasury Regulations.
ARTICLE VI
Authority and Duties of Trustee
SECTION 6.1. General Authority. The Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is
to be a party and each certificate or other document attached as an exhibit
to or contemplated by the Basic Documents to which the Trust is to be a
party, in each case in such form as the Depositor shall approve as
evidenced conclusively by the Trustee's execution thereof, and, on behalf
of the Trust, to (a) direct the Indenture Trustee to authenticate and
deliver Indenture Notes and (b) issue the Initial Class B Notes and the
Additional Class B Notes, in each case in the aggregate principal amount
specified in a letter of instruction from the Depositor to the Trustee. In
addition to the foregoing, the Trustee is authorized, but shall not be
obligated, to take all actions required of the Trust pursuant to the Basic
Documents. The Trustee is further authorized from time to time to take such
action as the Administrator recommends with respect to the Basic Documents.
SECTION 6.2. General Duties. It shall be the duty of the Trustee to
discharge (or cause to be discharged) all of its responsibilities pursuant
to this Agreement and the Basic Documents to which the Trust is a party and
to administer the Trust in the interest of the Certificateholders, subject
to the Basic Documents and in accordance with this Agreement.
Notwithstanding the foregoing, the Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the Basic
Documents to the extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Trustee
hereunder or under any Basic Document, and the Trustee shall not be held
liable for the default or failure of the Administrator to carry out its
obligations under the Administration Agreement.
SECTION 6.3. Action upon Instruction. (a) Subject to Article IV and
in accordance with the Basic Documents, the Certificateholders may by
written instruction direct the Trustee in the management of the Trust. Such
direction may be exercised at any time by written instruction of the
Certificateholders pursuant to Article IV.
(b) The Trustee shall not be required to take any action hereunder
or under any Basic Document if the Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is
likely to result in liability on the part of the Trustee or is contrary to
the terms hereof or of any Basic Document or is otherwise contrary to law.
(c) Whenever the Trustee is unable to decide between alternative
courses of action permitted or required by this Agreement or any Basic
Document, the Trustee shall promptly give notice (in such form as shall be
appropriate under the circumstances) to the Certificateholders requesting
instruction as to the course of action to be adopted, and to the extent the
Trustee acts in good faith in accordance with any written instruction of
the Certificateholders received, the Trustee shall not be liable on account
of such action to any Person. If the Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may
be necessary under the circumstances) it may, but shall be under no duty
to, take or refrain from taking such action, not inconsistent with this
Agreement or the Basic Documents, as it shall deem to be in the best
interests of the Certificateholders, and shall have no liability to any
Person for such action or inaction.
(d) In the event that the Trustee is unsure as to the application of
any provision of this Agreement or any Basic Document or any such provision
is ambiguous as to its application, or is, or appears to be, in conflict
with any other applicable provision, or in the event that this Agreement
permits any determination by the Trustee or is silent or is incomplete as
to the course of action that the Trustee is required to take with respect
to a particular set of facts, the Trustee may give notice (in such form as
shall be appropriate under the circumstances) to the Certificateholders
requesting instruction and, to the extent that the Trustee acts or refrains
from acting in good faith in accordance with any such instruction received,
the Trustee shall not be liable, on account of such action or inaction, to
any Person. If the Trustee shall not have received appropriate instruction
within 10 days of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action, not inconsistent with this Agreement or the Basic
Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such
action or inaction.
SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions. The Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of or
otherwise deal with the Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated
hereby to which the Trustee is a party, except as expressly provided by
this Agreement or in any document or written instruction received by the
Trustee pursuant to Section 6.3; and no implied duties or obligations shall
be read into this Agreement or any Basic Document against the Trustee. The
Trustee shall have no responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise
perfect or maintain the perfection of any security interest or Lien granted
to it hereunder or to prepare or file any Securities and Exchange
Commission filing for the Trust or to record this Agreement or any Basic
Document. The Trustee nevertheless agrees that it will, at its own cost and
expense, promptly take all action as may be necessary to discharge any
Liens on any part of the Trust Estate that result from actions by, or
claims against, the Trustee that are not related to the ownership or the
administration of the Trust Estate.
SECTION 6.5. No Action Except Under Specified Documents or
Instructions. The Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Trust Estate except: (i) in
accordance with the powers granted to and the authority conferred upon the
Trustee pursuant to this Agreement, (ii) in accordance with the Basic
Documents and (iii) in accordance with any document or instruction
delivered to the Trustee pursuant to Section 6.3.
SECTION 6.6. Restrictions. The Trustee shall not take any action:
(a) that is inconsistent with the purposes of the Trust set forth in
Section 2.3 or (b) that, to the actual knowledge of the Trustee, would
result in the Trust's becoming taxable as a corporation for Federal income
tax purposes. The Certificateholders shall not direct the Trustee to take
action that would violate this Section.
ARTICLE VII
Concerning the Trustee
SECTION 7.1. Acceptance of Trusts and Duties. The Trustee accepts
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts but only upon the terms of this Agreement. The
Trustee also agrees to disburse all moneys actually received by it
constituting part of the Trust Estate upon the terms of the Basic Documents
and this Agreement. The Trustee shall not be answerable or accountable
hereunder or under any Basic Document under any circumstances, except: (i)
for its own willful misconduct or negligence or (ii) in the case of the
inaccuracy of any representation or warranty contained in Section 7.3
expressly made by the Trustee. In particular, but not by way of limitation
(and subject to the exceptions set forth in the preceding sentence):
(a) the Trustee shall not be liable for any error of judgment
made in good faith by a responsible officer of the Trustee unless it
is proved that the Trustee was negligent in ascertaining the
pertinent facts;
(b) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the
instructions of the Administrator, the Servicer or any
Certificateholder;
(c) no provision of this Agreement or any Basic Document shall
require the Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers
hereunder or under any Basic Document, if the Trustee shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured or provided to it;
(d) under no circumstances shall the Trustee be liable for
indebtedness evidenced by or arising under any of the Basic
Documents, including the principal of and interest on the Indenture
Notes and the Class B Notes;
(e) the Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Agreement or for the due
execution hereof by the Depositor or for the form, character,
genuineness, sufficiency, value or validity of any of the Trust
Estate or for or in respect of the validity or sufficiency of the
Basic Documents, other than the certificate of authentication on the
Trust Certificates, and the Trustee shall in no event assume or incur
any liability, duty or obligation to any Indenture Noteholder or to
any Certificateholder, other than as expressly provided for herein
and in the Basic Documents;
(f) the Trustee shall not be liable for the default or
misconduct of the Administrator, the Seller, the Indenture Trustee or
the Servicer under any of the Basic Documents or otherwise and the
Trustee shall have no obligation or liability to perform the
obligations of the Trust under this Agreement or the Basic Documents
that are required to be performed by the Administrator under the
Administration Agreement, the Indenture Trustee under the Indenture
or the Servicer under the Sale and Servicing Agreement; and
(g) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or
in relation to this Agreement or any Basic Document, at the request,
order or direction of any of the Certificateholders unless such
Certificateholders have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that
may be incurred by the Trustee therein or thereby. The right of the
Trustee to perform any discretionary act enumerated in this Agreement
or in any Basic Document shall not be construed as a duty, and the
Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of any such act.
SECTION 7.2. Furnishing of Documents. The Trustee shall furnish to
the Certificateholders promptly upon receipt of a written request therefor,
and at the expense of the Certificateholders, duplicates or copies of all
reports, notices, requests, demands, certificates, financial statements and
any other instruments furnished to the Trustee under the Basic Documents.
SECTION 7.3. Representations and Warranties. The Trustee hereby
represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) it is a banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware,
with the requisite corporate power and authority to execute, deliver
and perform its obligations under this Agreement,
(b) it has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement
will be executed and delivered by one of its officers who is duly
authorized to execute and deliver this Agreement on its behalf, and
(c) the consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under,
the certificate of incorporation or by-laws of the Trustee, or any
indenture, agreement or other instrument to which the Trustee is a
party or by which it is bound; or violate any Federal or Delaware law
governing the banking or trust powers of the Trustee; or, to the best
of the Trustee's knowledge, violate any order, rule or regulation
applicable to the Trustee of any court or of any Federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Trustee or its
properties.
SECTION 7.4. Reliance; Advice of Counsel. (a) The Trustee shall
incur no liability to anyone in acting upon any signature, instrument,
notice, resolution, request, consent, order, certificate, report, opinion,
bond or other document or paper believed by it to be genuine and believed
by it to be signed by the proper party or parties. The Trustee may accept a
certified copy of a resolution of the board of directors or other governing
body of any party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to
any fact or matter the method of the determination of which is not
specifically prescribed herein, the Trustee may for all purposes hereof
rely on a certificate, signed by the president, any vice president, the
treasurer or other authorized officers of the relevant party as to such
fact or matter, and such certificate shall constitute full protection to
the Trustee for any action taken or omitted to be taken by it in good faith
in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the
Basic Documents, the Trustee: (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the
Trustee with reasonable care, and (ii) may consult with counsel,
accountants and other skilled Persons to be selected with reasonable care
and employed by it. The Trustee shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the written
opinion or advice of any such counsel, accountants or other such Persons
and which opinion or advice states that such action is not contrary to this
Agreement or any Basic Document.
SECTION 7.5. Not Acting in Individual Capacity. Except as provided
in this Article VII, in accepting the trusts hereby created Chase Manhattan
Bank Delaware acts solely as Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Trustee by reason of
the transactions contemplated by this Agreement or any Basic Document shall
look only to the Trust Estate for payment or satisfaction thereof.
SECTION 7.6. Trustee Not Liable for Trust Certificates or
Receivables. The recitals contained herein and in the Certificates (other
than the signature and counter-signature of the Trustee on the Trust
Certificates) shall be taken as the statements of the Depositor, and the
Trustee assumes no responsibility for the correctness thereof. The Trustee
makes no representations as to the validity or sufficiency of this
Agreement, of any Basic Document, of the Trust Certificates (other than the
signature and countersignature, if any, of the Trustee on the Trust
Certificates) or of the Indenture Notes or the Class B Notes, or of any
Receivable or related documents. The Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity
and enforceability of any Receivable, or the perfection and priority of any
security interest created by any Receivable in any of the Financed
Equipment or the maintenance of any such perfection and priority, or for or
with respect to the sufficiency of the Trust Estate or its ability to
generate the payments to be distributed to Certificateholders under this
Agreement, the Class B Holders under the Class B Notes or the Indenture
Noteholders under the Indenture, including: (a) the existence, condition
and ownership of any Financed Equipment, (b) the existence and
enforceability of any insurance thereon, (c) the existence and contents of
any Receivable on any computer or other record thereof, (d) the validity of
the assignment of any Receivable to the Trust or of any intervening
assignment, (e) the completeness of any Receivable, (f) the performance or
enforcement of any Receivable, and (g) the compliance by the Depositor or
the Servicer with any warranty or representation made under any Basic
Document or in any related document or the accuracy of any such warranty or
representation or any action of the Administrator, the Indenture Trustee or
the Servicer or any subservicer taken in the name of the Trustee.
SECTION 7.7. Trustee May Not Own Notes. The Trustee shall not, in
its individual capacity, but may in a fiduciary capacity, become the owner
or pledgee of Notes or otherwise extend credit to the Issuer. The Trustee
may otherwise deal with the Depositor, the Administrator, the Indenture
Trustee and the Servicer with the same rights as it would have if it were
not the Trustee.
ARTICLE VIII
Compensation of Trustee
SECTION 8.1. Trustee's Fees and Expenses. The Trustee shall receive
as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Depositor and the
Trustee, and the Trustee shall be entitled to be reimbursed by the
Depositor for its other reasonable expenses hereunder, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder.
SECTION 8.2. Indemnification. The Depositor shall be liable as
primary obligor for, and shall indemnify the Trustee and its successors,
assigns, agents and servants (collectively, the "Indemnified Parties") from
and against, any and all liabilities, obligations, losses, damages, taxes,
claims, actions and suits, and any and all reasonable costs, expenses and
disbursements (including reasonable legal fees and expenses) of any kind
and nature whatsoever (collectively, "Expenses"), which may at any time be
imposed on, incurred by or asserted against the Trustee or any other
Indemnified Party in any way relating to or arising out of this Agreement,
the Basic Documents, the Trust Estate, the administration of the Trust
Estate or the action or inaction of the Trustee hereunder, except only that
the Depositor shall not be liable for or required to indemnify an
Indemnified Party from and against Expenses arising or resulting from: (a)
such Indemnified Party's willful misconduct or negligence or (b) with
respect to the Trustee, the inaccuracy of any representation or warranty
contained in Section 7.3 expressly made by the Trustee. The indemnities
contained in this Section shall survive the resignation or termination of
the Trustee or the termination of this Agreement. In any event of any
claim, action or proceeding for which indemnity will be sought pursuant to
this Section, the Trustee's choice of legal counsel shall be subject to the
approval of the Depositor, which approval shall not be unreasonably
withheld.
SECTION 8.3. Payments to the Trustee. Any amounts paid to the
Trustee pursuant to this Article VIII shall be deemed not to be a part of
the Trust Estate immediately after such payment. The Trustee shall also be
entitled to interest on all advances at a rate equal to: (a) the rate
publicly announced by The Chase Manhattan Bank, as its prime rate from time
to time plus (b) 3.5%.
ARTICLE IX
Termination of Trust Agreement
SECTION 9.1. Termination of Trust Agreement. (a) This Agreement
(other than Article VIII) and the Trust shall terminate and be of no
further force or effect: (i) upon the final distribution by the Trustee of
all moneys or other property or proceeds of the Trust Estate in accordance
with the Indenture, the Sale and Servicing Agreement and Article V or (ii)
at the time provided in Section 9.2. The bankruptcy, liquidation,
dissolution, death or incapacity of any Certificateholder, other than the
Depositor as described in Section 9.2, shall not: (x) operate to terminate
this Agreement or the Trust, (y) entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of
the Trust or Trust Estate or (z) otherwise affect the rights, obligations
and liabilities of the parties hereto.
(b) Except as provided in Section 9.1(a), neither the Depositor nor
any Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment
Date upon which the Certificateholders shall surrender their Trust
Certificates to the Paying Agent for payment of the final distribution and
cancellation, shall be given promptly by the Trustee by letter to
Certificateholders mailed within five Business Days of receipt of notice of
such termination from the Servicer given pursuant to Section 9.1(c) of the
Sale and Servicing Agreement stating: (i) the Payment Date upon which final
payment of the Trust Certificates shall be made upon presentation and
surrender of the Trust Certificates at the office of the Paying Agent
therein designated, (ii) the amount of any such final payment and (iii)
that the Record Date otherwise applicable to such Payment Date is not
applicable, payments being made only upon presentation and surrender of the
Trust Certificates at the office of the Paying Agent therein specified. The
Trustee shall give such notice to the Certificate Registrar (if other than
the Trustee) and the Paying Agent at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Trust
Certificates, the Paying Agent shall cause to be distributed to
Certificateholders amounts distributable on such Payment Date pursuant to
Section 5.2.
In the event that all of the Certificateholders shall not surrender
their Trust Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Trustee shall give a
second written notice to the remaining Certificateholders to surrender
their Trust Certificates for cancellation and to receive the final
distribution with respect thereto. If within one year after the second
notice all the Trust Certificates shall not have been surrendered for
cancellation, the Trustee may take appropriate steps, or may appoint an
agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Trust Certificates, and
the cost thereof shall be paid out of the funds and other assets that shall
remain subject to this Agreement. Any funds remaining in the Trust after
exhaustion of such remedies shall be distributed by the Trustee to the
Depositor.
(d) Upon the termination of the Trust, the Trustee shall cause the
Certificate of Trust to be canceled by filing a certificate of cancellation
with the Secretary of State in accordance with the provisions of Section
3810 (or successor section) of the Trust Statute.
SECTION 9.2. Dissolution upon Bankruptcy of the Depositor. In the
event that an Insolvency Event shall occur with respect to the Depositor,
this Agreement shall be terminated in accordance with Section 9.1 90 days
after the date of such Insolvency Event, unless, before the end of such
90-day period, the Trustee shall have received written instructions from:
(i) the Holders (as defined in the Indenture) of A-1 Notes representing
more than 50% of the Outstanding Amount of the A-1 Notes, (ii) the Holders
(as defined in the Indenture) of A-2 Notes representing more than 50% of
the Outstanding Amount of the A-2 Notes, (iii) the Holders (as defined in
the Indenture) of A-3 Notes representing more than 50% of the Outstanding
Amount of the A-3 Notes, (iv) Class B Noteholders of Class B Notes
representing more than 50% of the Outstanding Amount of the Class B Notes,
(v) Certificateholders (other than the Depositor) holding Certificates
representing more than 50% of the Certificate Balance (not including the
principal amount of Trust Certificates held by the Depositor), (vi) the
holders of interests in the Spread Account (other than the Depositor)
having interests with a value in excess of 50% of all interests in the
Spread Account held by such Persons and (vii) the Servicer, to the effect
that each such party disapproves of the liquidation of the Receivables and
termination of the Trust.
Promptly after the occurrence of any Insolvency Event with respect to
the Depositor: (i) the Depositor shall give the Indenture Trustee and the
Trustee written notice of such Insolvency Event, (ii) the Trustee shall,
upon the receipt of such written notice from the Depositor, give prompt
written notice to the Certificateholders, the Class B Agent and the
Indenture Trustee of the occurrence of such event and (iii) the Indenture
Trustee shall, upon receipt of written notice of such Insolvency Event from
the Trustee or the Depositor, give prompt written notice to the Indenture
Noteholders of the occurrence of such event; provided, however, that any
failure to give a notice required by this sentence shall not prevent or
delay, in any manner, a termination of the Trust pursuant to the first
sentence of this Section 9.2. Upon a termination pursuant to this Section,
the Trustee shall direct the Indenture Trustee promptly to sell the assets
of the Trust (other than the Trust Accounts and the Certificate
Distribution Account) in a commercially reasonable manner and on
commercially reasonable terms. The proceeds of such a sale of the assets of
the Trust shall be treated as collections under the Sale and Servicing
Agreement.
ARTICLE X
Successor Trustees and Additional Trustees
SECTION 10.1. Eligibility Requirements for Trustee. The Trustee
shall at all times: (a) be a corporation satisfying the provisions of
Section 3807(a) of the Trust Statute and Section 26(a)(1) of the Investment
Company Act of 1940, as amended, (b) be authorized to exercise corporate
trust powers, (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, and (d) have (or have a parent that has) a rating of at
least "Baa3" by Moody's. If such corporation shall publish reports of
condition at least annually, pursuant to law or the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section, 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. In case at any time the Trustee
shall cease to be eligible in accordance with this Section, the Trustee
shall resign immediately in the manner and with the effect specified in
Section 10.2.
SECTION 10.2. Resignation or Removal of Trustee. The Trustee may at
any time resign and be discharged from the trusts hereby created by giving
written notice thereof to the Administrator. Upon receiving such notice of
resignation, the Administrator shall promptly appoint a successor Trustee
by written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor Trustee.
If no successor Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
If at any time the Trustee shall cease to be eligible in accordance
with Section 10.1 and shall fail to resign after written request therefor
by the Administrator, or if at any time the Trustee shall be legally unable
to act, or shall be adjudged bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer shall
take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then the
Administrator may remove the Trustee. If the Administrator shall remove the
Trustee under the authority of the preceding sentence, the Administrator
shall promptly appoint a successor Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the outgoing
Trustee so removed and one copy to the successor Trustee and payment of all
fees owed to the outgoing Trustee.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to this Section shall not become effective until
acceptance of appointment by the successor Trustee pursuant to Section 10.3
and payment of all fees and expenses owed to the outgoing Trustee. The
Administrator shall provide notice of such resignation or removal of the
Trustee to each of the Rating Agencies.
SECTION 10.3. Successor Trustee. Any successor Trustee appointed
pursuant to Section 10.2 shall execute, acknowledge and deliver to the
Administrator and to its predecessor Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal
of the predecessor Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties, and obligations of its
predecessor under this Agreement, with like effect as if originally named
as the Trustee. The predecessor Trustee shall upon payment of its fees and
expenses deliver to the successor Trustee all documents and statements and
monies held by it under this Agreement; and the Administrator and the
predecessor Trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for fully and certainly vesting
and confirming in the successor Trustee all such rights, powers, duties and
obligations.
No successor Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Trustee shall
be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Trustee pursuant to
this Section, the Administrator shall mail notice of such appointment to
all Certificateholders, the Class B Agent, the Indenture Trustee, the
Indenture Noteholders and the Rating Agencies. If the Administrator shall
fail to mail such notice within 10 days after acceptance of appointment by
the successor Trustee, the successor Trustee shall cause such notice to be
mailed at the expense of the Administrator.
SECTION 10.4. Merger or Consolidation of Trustee. Any corporation or
other entity into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder;
provided, such corporation shall be eligible pursuant to Section 10.1,
without the execution or filing of any instrument or any further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding; and provided further, that the Trustee shall mail notice
of such merger or consolidation to the Rating Agencies.
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust or any Financed Equipment may at the time be located,
the Administrator and the Trustee acting jointly shall have the power and
may execute and deliver all instruments to appoint one or more Person(s)
approved by the Trustee to act as co-trustee(s), jointly with the Trustee,
or separate trustee(s), of all or any part of the Trust Estate, and to vest
in such Person(s), in such capacity and for the benefit of the
Certificateholders, such title to the Trust Estate, or any part thereof,
and, subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Administrator and the Trustee may
consider necessary or desirable. If the Administrator shall not have joined
in such appointment within 15 days after the receipt by it of a request so
to do, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee under this Agreement shall be required to
meet the terms of eligibility as a successor trustee pursuant to Section
10.1 and no notice of the appointment of any co-trustee or separate trustee
shall be required pursuant to Section 10.3.
Each separate trustee and co-trustee 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 Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act(s) are to be performed, the
Trustee shall be incompetent or unqualified to perform such act(s),
in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Estate or any portion thereof in
any such jurisdiction) shall be exercised and performed singly by
such separate trustee or co-trustee, but solely at the direction of
the Trustee;
(ii) no trustee under this Agreement shall be personally liable
by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the Administrator and the Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the
estates or property specified in its instrument of appointment, either
jointly with the Trustee 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 Trustee. Each such instrument
shall be filed with the Trustee and a copy thereof given to the
Administrator.
Any separate trustee or co-trustee may at any time appoint the
Trustee 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 trustee or
co-trustee 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 Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
The Trustee shall have no obligation to determine whether a
co-trustee or separate trustee is legally required in any jurisdiction in
which any part of the Trust Estate may be located.
ARTICLE XI
Miscellaneous
SECTION 11.1. Supplements and Amendments. This Agreement may be
amended from time to time by a written amendment duly executed and
delivered by the Depositor and the Trustee, with prior written notice to
the Rating Agencies, without the consent of any of the Indenture
Noteholders, the Class B Noteholders or the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions in this Agreement or for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions in this Agreement or of modifying in any
manner the rights of the Indenture Noteholders, the Class B Noteholders or
the Certificateholders; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material
respect the interests of any Indenture Noteholder, Class B Noteholder or
Certificateholder.
This Agreement may also be amended from time to time by the Depositor
and the Trustee, with prior written notice to the Rating Agencies, with the
written consent of (x) the Holders (as defined in the Indenture) of
Indenture Notes evidencing not less than a majority of the Outstanding
Amount of the Indenture Notes, (y) the Class B Noteholders of Class B Notes
evidencing not less than a majority of the outstanding principal amount of
the Class B Notes and (z) the Holders of Certificates evidencing not less
than a majority of the Certificate Balance, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of
the Indenture Noteholders, the Class B Noteholders or the
Certificateholders; provided, however, that no such amendment shall: (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that
shall be required to be made for the benefit of the Indenture Noteholders,
the Class B Noteholders or the Certificateholders or (b) reduce the
aforesaid percentage of the Outstanding Amount and the Certificate Balance
required to consent to any such amendment, without the consent of the
holders of all the outstanding Indenture Notes, Class B and Certificates.
Promptly after the execution of any such amendment or consent (or, in
the case of the Rating Agencies, 10 days prior thereto), the Trustee shall
furnish written notification of the substance of such amendment or consent
to each Certificateholder, the Indenture Trustee and each of the Rating
Agencies.
It shall not be necessary for the consent of Certificateholders, the
Class B Noteholders, the Indenture Noteholders or the Indenture Trustee
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and
any other consents of Certificateholders provided for in this Agreement or
in any other Basic Document) and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Trustee may prescribe.
Promptly after the execution of any amendment to the Certificate of
Trust, the Trustee shall cause the filing of such amendment with the
Secretary of State.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions precedent
to the execution and delivery of such amendment have been satisfied. The
Trustee may, but shall not be obligated to, enter into any such amendment
that affects the Trustee's own rights, duties or immunities under this
Agreement or otherwise.
SECTION 11.2. No Legal Title to Trust Estate in Certificateholders.
The Certificateholders shall not have legal title to any part of the Trust
Estate. The Certificateholders shall be entitled to receive distributions
with respect to their undivided ownership interest therein only in
accordance with Articles V and IX. No transfer, by operation of law or
otherwise, of any right, title or interest of the Certificateholders in, to
and under their ownership interest in the Trust Estate shall operate to
terminate this Agreement or the trusts hereunder or entitle any transferee
to an accounting or to the transfer to it of legal title to any part of the
Trust Estate.
SECTION 11.3. Limitations on Rights of Others. Except for Section
2.7, the provisions of this Agreement are solely for the benefit of the
Trustee, the Depositor, the Certificateholders, the Administrator and, to
the extent expressly provided herein, the Indenture Trustee, the Indenture
Noteholders and the Class B Noteholders, and nothing in this Agreement
(other than Section 2.7), whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in
the Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
SECTION 11.4. Notices. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing, personally
delivered or mailed by certified mail, postage prepaid and return receipt
requested, and shall be deemed to have been duly given upon receipt: (i) if
to the Trustee, addressed to the Corporate Trust Office with a copy to The
Chase Manhattan Bank, 450 West 33rd Street, 15th FLoor, New York, New York
10001, Attn: Structured Finance Services (ABS); (ii) if to the Depositor,
addressed to Case Receivables II Inc., 233 Lake Avenue, Racine, Wisconsin
53403, Attention: Corporate Secretary; or, as to each party, at such other
address as shall be designated by such party in a written notice to the
other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at
the address of such Holder as shown in the Certificate Register. Any notice
so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
SECTION 11.5. Severability. Any provision of this Agreement 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 11.6. Separate Counterparts. This Agreement may be executed
by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 11.7. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor and its successors, the Trustee and its successors and each
Certificateholder and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other
instrument or action by an Certificateholder shall bind the successors and
assigns of such Certificateholder.
SECTION 11.8. Covenants of the Depositor. If: (a) the Certificate
Balance shall be reduced by Realized Losses and (b) any litigation with
claims in excess of $1,000,000 to which the Depositor is a party that shall
be reasonably likely to result in a material judgment against the Depositor
that the Depositor will not be able to satisfy shall be commenced by a
Certificateholder during the period beginning nine months following the
commencement of such litigation and continuing until such litigation is
dismissed or otherwise terminated (and, if such litigation has resulted in
a final judgment against the Depositor, such judgment has been satisfied),
the Depositor shall not pay any dividend to Credit, or make any
distribution on or in respect of its capital stock to Credit, or repay the
principal amount of any indebtedness of the Depositor held by Credit,
unless: (i) after giving effect to such payment, distribution or repayment,
the Depositor's liquid assets shall not be less than the amount of actual
damages claimed in such litigation or (ii) the Rating Agency Condition
shall have been satisfied with respect to any such payment, distribution or
repayment. The Depositor will not at any time institute against the Trust
any bankruptcy proceedings under any United States Federal or State
bankruptcy or similar law in connection with any obligations relating to
the Trust Certificates, the Indenture Notes, the Class B Notes, the Trust
Agreement or any of the Basic Documents.
SECTION 11.9. No Petition. The Trustee on behalf of the Trust, by
entering into this Agreement, each Certificateholder, by accepting a Trust
Certificate, and the Indenture Trustee and each Indenture Noteholder, by
accepting the benefits of this Agreement, hereby covenant and agree that
they will not at any time institute against the Depositor or the Trust, or
join in any institution against the Depositor or the Trust of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any Federal or State bankruptcy or
similar law in connection with any obligations relating to the Trust
Certificates, the Indenture Notes, this Agreement or any of the Basic
Documents.
SECTION 11.10. No Recourse. Each Certificateholder by accepting a
Trust Certificate acknowledges that such Certificateholder's Trust
Certificates represent beneficial interests in the Trust only and do not
represent interests in or obligations of the Seller, the Servicer, the
Administrator, the Trustee, the Indenture Trustee or any Affiliate thereof
and no recourse may be had against such parties or their assets, except as
may be expressly set forth or contemplated in this Agreement, the Trust
Certificates or the Basic Documents.
SECTION 11.11. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
SECTION 11.12. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of Delaware, 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 11.13. Administrator. The Administrator is authorized to
execute on behalf of the Trust all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the Trust
to prepare, file or deliver pursuant to this Agreement and the Basic
Documents. Upon written request, the Trustee shall execute and deliver to
the Administrator a power of attorney appointing the Administrator its
agent and attorney-in-fact to execute all such documents, reports, filings,
instruments, certificates and opinions.
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized as of the day and year first above written.
CHASE MANHATTAN BANK DELAWARE,
as Trustee
By: /s/ John Cashin
-----------------------------
Name: John Cashin
Title: Senior Trust Officer
CASE RECEIVABLES II INC.,
as Depositor
By: /s/ Robert A. Wegner
-----------------------------
Name: Robert A. Wegner
Title: Vice President
EXHIBIT A
to Trust Agreement
FORM OF TRUST CERTIFICATES
--------------------------
REGISTERED $___________4/<FN4>
NUMBER R-___ CUSIP NO. 147440____
<FN4>
- -------------------
4/ Denominations of $1,000 and integral multiples of $1,000 in
excess thereof.</FN4>
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York Corporation ("DTC"), to the
Issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF A
BENEFIT PLAN (AS DEFINED BELOW).
CASE EQUIPMENT LOAN TRUST 1996-B
____% ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below,
the property of which includes a pool of retail installment sale contracts
secured by new and used agricultural and construction equipment and sold to
the Trust by Case Receivables II Inc.
(This Trust Certificate does not represent an interest in or obligation of
Case Receivables II Inc., Case Credit Corporation or Case Corporation, or
any of their respective affiliates, except to the extent described below.)
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a _____________
DOLLAR ($___________) nonassessable, fully-paid, fractional undivided
interest in the Case Equipment Loan Trust 1996-B (the "Trust") formed by
Case Receivables II Inc., a Delaware corporation (the "Seller").
The Trust was created pursuant to a Trust Agreement dated as of September
1, 1996 (the "Trust Agreement"), between the Seller and Chase Manhattan
Bank Delaware, as trustee (the "Trustee"). To the extent not otherwise
defined herein, the capitalized terms used herein have the meanings
assigned to them in the Trust Agreement or the Sale and Servicing Agreement
(the "Sale and Servicing Agreement") dated as of September 1, 1996, among
the Trust, the Seller and Case Credit Corporation, as servicer (the
"Servicer"), as applicable. This Certificate is one of the duly authorized
Certificates designated as "____% Asset Backed Certificates" (herein called
the "Trust Certificates"). Issued under the: (a) Indenture dated as of
September 1, 1996, between the Trust and Harris Trust and Savings Bank, as
Indenture Trustee, are notes designated as "____% Class A-1 Asset Backed
Notes," "____% Class A-2 Asset Backed Notes" and "____% Class A-3 Asset
Backed Notes" (collectively, the "Indenture Notes") and (b) under the Note
Purchase Agreement dated ______________, between the Trust and
______________, are notes designated as "Class B Asset Backed Notes" (with
the Indenture Notes, the "Notes"). This Trust Certificate is issued under
and is subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust Agreement the holder of this Trust Certificate by
virtue of the acceptance hereof assents and by which holder is bound.
Each Holder of this Trust Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Trust Certificate are
subordinated to the rights of the Indenture Noteholders and the Class B
Noteholders as described in the Sale and Servicing Agreement and the
Indenture.
It is the intent of the Seller, Servicer, Certificateholders and the
Certificate Owners that, for purposes of Federal income, State and local
income and franchise and any other income taxes measured in whole or in
part by income, the Trust will be treated as a partnership, the assets of
which are the assets held by the Trust, and the Certificateholders
(including the Depositor (and its transferees and assigns) in its capacity
as recipient of distributions from the Spread Account) will be treated as
partners in that partnership. The Depositor and the other
Certificateholders by acceptance of a Trust Certificate (and the
Certificate Owners by acceptance of a beneficial interest in a Trust
Certificate), agree to treat, and to take no action inconsistent with the
treatment of, the Trust Certificates for such tax purposes as partnership
interests in the Trust.
Each Certificateholder or Certificate Owner, by its acceptance of a
Trust Certificate or a beneficial interest in a Trust Certificate,
acknowledges and agrees that the Seller is authorized to determine whether
or not to cause the Trust to make the election contemplated in Internal
Revenue Service Notice 95-14 to elect that the Trust be classified as a
partnership for Federal income tax purposes in the event that the ability
to make such election becomes available to the Trust, and acknowledges and
agrees that the Seller is authorized to direct the Trustee to take such
acts or actions as may be required to effectuate such election. Each
Certificateholder or Certificate Owner, by its acceptance of a Trust
Certificate or a beneficial interest in a Trust Certificate, agrees to take
such actions (and direct the Trustee to take such acts or actions) as the
Seller or Trustee shall reasonably request in order to effectuate such
election.
Each Certificateholder or Certificate Owner, by its acceptance of a
Trust Certificate or, in the case of a Certificate Owner, a beneficial
interest in a Trust Certificate, covenants and agrees that such
Certificateholder or Certificate Owner, as the case may be, will not at any
time institute against the Seller or the Trust, or join in any institution
against the Seller or the Trust of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings
under any United States Federal or State bankruptcy or similar law in
connection with any obligations relating to the Trust Certificates, the
Indenture Notes, the Class B Notes, the Trust Agreement or any of the Basic
Documents.
The Trust Certificates do not represent an obligation of, or an
interest in, the Seller, the Servicer, Case Credit Corporation, the Trustee
or any affiliates of any of them and no recourse may be had against such
parties or their assets, except as may be expressly set forth or
contemplated herein or in the Trust Agreement or the Basic Documents.
The Certificates may not be acquired by or for the account of: (i) an
employee benefit plan (as defined in Section 3(3) of ERISA) that is subject
to the provisions of Title 1 of ERISA, (ii) a plan described in Section
4975(e)(1) of the Internal Revenue Code of 1986, as amended, or (iii) any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity (a "Benefit Plan"). By accepting and holding this
Certificate, each of the Holder hereof and, if applicable, Certificate
Owners hereof shall be deemed to have represented and warranted that it is
not a Benefit Plan.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Trustee, by manual signature, this
Trust Certificate shall not entitle the holder hereof to any benefit under
the Trust Agreement or the Sale and Servicing Agreement or be valid for any
purpose.
This Trust Certificate shall be construed in accordance with the laws
of the State of Delaware, 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.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not in its
individual capacity has caused this Trust Certificate to be duly executed.
CASE EQUIPMENT LOAN TRUST 1996-B
By: CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity, but
solely as Trustee
By:______________________________________
Name:_________________________________
Title:________________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the within-mentioned
Trust Agreement.
CHASE MANHATTAN BANK DELAWARE,
as Trustee
By:_______________________
Authorized Officer
OR
By: THE CHASE MANHATTAN BANK,
as Authenticating Agent
By:______________________
Authorized Officer
Date: September ____, 1996
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE
- ---------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of
assignee)
- ---------------------------------------------------------------------
the within Trust Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
- -------------------------------------------------------- Attorney to
transfer said Trust Certificate on the books of the Certificate
Registrar, with full power of substitution in the premises.
Dated: _____*
Signature Guaranteed:
_____*
*NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within Trust Certificate in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by a member firm of the New York Stock
Exchange or a commercial bank or trust company.
EXHIBIT B
to Trust Agreement
CERTIFICATE OF TRUST OF
CASE EQUIPMENT LOAN TRUST 1996-B
This Certificate of Trust of CASE EQUIPMENT LOAN TRUST 1996-B (the
"Trust"), dated as of September ____, 1996, is being duly executed and
filed by Chase Manhattan Bank Delaware, a Delaware banking corporation, as
trustee, to form a trust under the Delaware Business Trust Act (12 Del.
Code 3801 et seq.).
1. Name. The name of the trust formed hereby is CASE EQUIPMENT LOAN
TRUST 1996-B.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware is Chase Manhattan Bank Delaware, 1201
North Market Street, Wilmington, Delaware 19801, Attention: Corporate Trust
Administration Department.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity,
but solely as trustee under a Trust
Agreement dated as of
September 1, 1996
By:____________________________________
Name:________________________________
Title:_______________________________
==============================================================================
CASE EQUIPMENT LOAN TRUST 1996-B
SALE AND SERVICING AGREEMENT
among
CASE EQUIPMENT LOAN TRUST 1996-B,
as Issuer,
and
CASE RECEIVABLES II INC.,
as Seller,
and
CASE CREDIT CORPORATION,
as Servicer.
Dated as of September 1, 1996
==============================================================================
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I
Definitions
SECTION 1.1. Definitions................................ 1
SECTION 1.2. Other Definitional Provisions.............. 23
ARTICLE II
Conveyance of Receivables
SECTION 2.1. Conveyance of Initial Receivables.......... 23
SECTION 2.2. Conveyance of Subsequent Receivables....... 24
ARTICLE III
The Receivables
SECTION 3.1. Representations and Warranties of Seller... 28
SECTION 3.2. Repurchase upon Breach..................... 29
SECTION 3.3. Custody of Receivable Files................ 30
SECTION 3.4. Duties of Servicer as Custodian............ 30
SECTION 3.5. Instructions; Authority To Act............. 31
SECTION 3.6. Custodian's Indemnification................ 31
SECTION 3.7. Effective Period and Termination........... 31
ARTICLE IV
Administration and Servicing of Receivables
SECTION 4.1. Duties of Servicer......................... 32
SECTION 4.2. Collection and Allocation of Receivable
Payments.................................. 33
SECTION 4.3. Realization upon Receivables............... 33
SECTION 4.4. Maintenance of Security Interests in
Financed Equipment........................ 33
SECTION 4.5. Covenants of Servicer...................... 34
SECTION 4.6. Purchase of Receivables upon Breach........ 34
SECTION 4.7. Servicing Fee.............................. 34
SECTION 4.8. Servicer's Certificate..................... 34
SECTION 4.9. Annual Statement as to Compliance; Notice
of Default................................ 35
SECTION 4.10. Annual Independent Certified Public
Accountants' Report...................... 35
SECTION 4.11. Access to Certain Documentation and Information
Regarding Receivables.................... 36
SECTION 4.12. Servicer Expenses......................... 36
SECTION 4.13. Appointment of Subservicer................ 36
ARTICLE V
Distributions: Spread Account;
Statements to Certificateholders and Noteholders
SECTION 5.1. Establishment of Trust Accounts............ 37
SECTION 5.2. Collections................................ 39
SECTION 5.3. Application of Collections................. 40
SECTION 5.4. Additional Deposits........................ 40
SECTION 5.5. Distributions.............................. 40
SECTION 5.6. Spread Account............................. 41
SECTION 5.7. Pre-Funding Account........................ 44
SECTION 5.8. Negative Carry Account..................... 44
SECTION 5.9. [Intentionally Omitted].................... 45
SECTION 5.10. Statements to Certificateholders and
Noteholders.............................. 45
SECTION 5.11. Net Deposits.............................. 46
ARTICLE VI
The Seller
SECTION 6.1. Representations of Seller.................. 46
SECTION 6.2. Corporate Existence........................ 48
SECTION 6.3. Liability of Seller; Indemnities........... 49
SECTION 6.4. Merger or Consolidation of, or Assumption of
the Obligations of, Seller................ 50
SECTION 6.5. Limitation on Liability of Seller and
Others.................................... 50
SECTION 6.6. Seller May Own Certificates or Notes....... 50
ARTICLE VII
The Servicer
SECTION 7.1. Representations of Servicer................ 51
SECTION 7.2. Indemnities of Servicer.................... 52
SECTION 7.3. Merger or Consolidation of, or Assumption of the Obligations
of, Servicer............................................. 54
SECTION 7.4. Limitation on Liability of Servicer and Others 55
SECTION 7.5. Credit Not to Resign as Servicer........... 56
SECTION 7.6. Servicer to Act as Administrator........... 56
ARTICLE VIII
Default
SECTION 8.1. Servicer Default........................... 56
SECTION 8.2. Appointment of Successor Servicer.......... 58
SECTION 8.3. Notification to Noteholders and
Certificateholders........................ 58
SECTION 8.4. Waiver of Past Defaults.................... 59
ARTICLE IX
Termination
SECTION 9.1. Optional Purchase of All Receivables....... 59
ARTICLE X
Miscellaneous Provisions
SECTION 10.1. Amendment................................. 61
SECTION 10.2. Protection of Title to Trust.............. 62
SECTION 10.3. Notices................................... 65
SECTION 10.4. Assignment................................ 65
SECTION 10.5. Limitations on Rights of Others........... 66
SECTION 10.6. Severability.............................. 66
SECTION 10.7. Separate Counterparts..................... 66
SECTION 10.8. Headings.................................. 66
SECTION 10.9. Governing Law............................. 66
SECTION 10.10. Assignment to Indenture Trustee/Collateral
Agent................................... 66
SECTION 10.11. Nonpetition Covenants.................... 66
SECTION 10.12. Limitation of Liability of Trustee and
Indenture Trustee....................... 67
SECTION 10.13. Rights of Collateral Agent............... 67
SCHEDULES AND EXHIBITS
SCHEDULE A Schedule of Initial Receivables
SCHEDULE B Location of Receivables Files
EXHIBIT A Form of Noteholder's Statement Pursuant to Section 5.10(a)
EXHIBIT B Form of Certificateholder's Statement Pursuant to Section
5.10(a)
EXHIBIT C Form of Servicer's Certificate
EXHIBIT D Form of Assignment
EXHIBIT E Form of Subsequent Transfer Assignment
EXHIBIT F Form of Accountants' Letter in Connection with Subsequent
Transfer Assignment
SALE AND SERVICING AGREEMENT dated as of September 1, 1996, among CASE
EQUIPMENT LOAN TRUST 1996-B, a Delaware business trust (the "Issuer"), CASE
RECEIVABLES II INC., a Delaware corporation (the "Seller"), and CASE CREDIT
CORPORATION, a Delaware corporation (the "Servicer").
RECITALS
WHEREAS, the Issuer desires to purchase a portfolio of receivables
arising in connection with equipment retail installment sale contracts
purchased by Case Credit Corporation ("Credit"), in the ordinary course of
business and sold to the Seller on a monthly basis pursuant to a
Receivables Purchase Agreement, dated as of August 1, 1994, between Credit
and the Seller (as it may be amended and supplemented from time to time,
the "Liquidity Receivables Purchase Agreement") and/or a Purchase Agreement
dated the date hereof between Credit and the Seller;
WHEREAS, the Seller is willing to sell such receivables to the Issuer;
and
WHEREAS, Credit is willing to service such receivables.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.1. Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall
have the following meanings:
"A-1 Note Final Scheduled Maturity Date" means the September 1997
Payment Date.
"A-1 Noteholders' Monthly Principal Distributable Amount" means, with
respect to any Payment Date until the Payment Date on which the Outstanding
Amount of the A-1 Notes has been reduced to zero, 100% of the Principal
Distribution Amount for such Payment Date.
"A-1 Noteholders' Principal Carryover Shortfall" means, with respect
to any Payment Date, the excess of the A-1 Noteholders' Principal
Distributable Amount for the preceding Payment Date over the amount that
was actually deposited in the Note Distribution Account in respect of
principal of the A-1 Notes on such preceding Payment Date.
"A-1 Noteholders' Principal Distributable Amount" means, with respect
to any Payment Date, the sum of: (a) the A-1 Noteholders' Monthly Principal
Distributable Amount for such Payment Date and (b) the A-1 Noteholders'
Principal Carryover Shortfall for such Payment Date; provided, however,
that the sum of clauses (a) and (b) shall not exceed the Outstanding Amount
of the A-1 Notes, and, on the A-1 Note Final Scheduled Maturity Date, the
A-1 Noteholders' Principal Distributable Amount will include the amount, to
the extent of available funds, necessary (after giving effect to the other
amounts to be deposited in the Note Distribution Account on such Payment
Date and allocable to principal) to reduce the Outstanding Amount of the
A-1 Notes to zero.
"A-1 Note Redemption Amount" has the meaning assigned to such term in
the definition of "Indenture Noteholders' Prepayment Premium".
"A-2 Noteholders' Monthly Principal Distributable Amount" means, with
respect to each Payment Date on or after the Payment Date on which an
amount sufficient to reduce the Outstanding Amount of the A-1 Notes to zero
has been deposited in the Note Distribution Account, 100% of the Principal
Distribution Amount (less the portion thereof, if any, applied to reduce
the Outstanding Amount of the A-1 Notes to zero on such Payment Date).
"A-2 Noteholders' Principal Carryover Shortfall" means, with respect
to any Payment Date, the excess of the A-2 Noteholders' Principal
Distributable Amount for the preceding Payment Date over the amount that
was actually deposited in the Note Distribution Account in respect of
principal of the A-2 Notes on such preceding Payment Date.
"A-2 Noteholders' Principal Distributable Amount" means, with respect
to any Payment Date, the sum of: (a) the A-2 Noteholders' Monthly Principal
Distributable Amount for such Payment Date and (b) the A-2 Noteholders'
Principal Carryover Shortfall for such Payment Date; provided, however,
that until an amount sufficient to reduce the Outstanding Amount of the A-1
Notes to zero has been deposited in the Note Distribution Account, the A-2
Noteholders' Principal Distributable Amount shall be zero; and provided
further, that the sum of clauses (a) and (b) shall not exceed the
Outstanding Amount of the A-2 Notes, and, on the Final Scheduled Maturity
Date, the A-2 Noteholders' Principal Distributable Amount will include the
amount, to the extent of available funds, necessary (after giving effect to
the other amounts to be deposited in the Note Distribution Account on such
Payment Date and allocable to principal) to reduce the Outstanding Amount
of the A-2 Notes to zero.
"A-2 Repayment Date" means the Payment Date on which an amount
sufficient to reduce the Outstanding Amount of the A-2 Notes to zero is
deposited in the Note Distribution Account.
"A-3 Noteholders' Monthly Principal Distributable Amount" means, with
respect to each Payment Date on or after the A-2 Repayment Date, the A-3
Percentage of the excess of: (a) the Noteholders' Principal Distribution
Amount over (b) the amount, if any, of the Noteholders' Principal
Distribution Amount applied to reduce the Outstanding Amount of the A-2
Notes to zero on such Payment Date.
"A-3 Noteholders' Principal Carryover Shortfall" means, with respect
to any Payment Date, the excess of the A-3 Noteholders' Principal
Distributable Amount for the preceding Payment Date over the amount that
was actually deposited in the Note Distribution Account in respect of
principal of the A-3 Notes on such preceding Payment Date.
"A-3 Noteholders' Principal Distributable Amount" means, with respect
to any Payment Date: (a) the A-3 Noteholders' Monthly Principal
Distributable Amount for such Payment Date plus (b) the A-3 Noteholders'
Principal Carryover Shortfall for such Payment Date; provided, however,
that, until an amount sufficient to reduce the Outstanding Amount of the
A-2 Notes to zero has been deposited in the Note Distribution Account, the
A-3 Noteholders' Principal Distributable Amount shall be zero; and provided
further, that the sum of clauses (a) and (b) shall not exceed the
Outstanding Amount of the A-3 Notes, and on the Final Scheduled Maturity
Date, the A-3 Noteholders' Principal Distributable Amount will include the
amount, to the extent of available funds, necessary (after giving effect to
the other amounts to be deposited in the Note Distribution Account on such
Payment Date and allocable to principal) to reduce the Outstanding Amount
of the A-3 Notes to zero.
"A-3 Percentage" means the percentage equivalent to a fraction: (a)
the numerator of which is the Outstanding Amount of the A-3 Notes and (b)
the denominator of which is the aggregate Outstanding Amount of the A-3
Notes and the Class B Notes, all as determined on the A-2 Repayment Date;
provided, however, that: (i) if at any time the balance on deposit in the
Spread Account is less than the Spread Account Floor, then, with respect to
each Payment Date thereafter until the A-3 Notes have been repaid in full,
the A-3 Percentage shall equal 100% and (ii) from and after the Payment
Date on which the A-3 Notes are paid in full, the A-3 Percentage shall
equal 0%.
"Administration Fee" has the meaning assigned to such term in the
Administration Agreement.
"Agreement" means this Sale and Servicing Agreement, as the same may
be amended and supplemented from time to time.
"Amount Financed" with respect to a Receivable means the amount
advanced under the Receivable toward the purchase price of the Financed
Equipment and any related costs and any insurance financed thereby.
"Annual Percentage Rate" or "APR" of a Receivable means the annual
rate of finance charges stated in the related Contract.
"Case" means Case Corporation, a Delaware corporation, and its
successors and assigns.
"Certificate Balance" equals, initially, $34,000,000 and, thereafter,
equals such amount reduced by all amounts allocable to principal previously
distributed to Certificateholders.
"Certificate Distribution Account" has the meaning assigned to such
term in the Trust Agreement.
"Certificateholder" has the meaning assigned to such term in the Trust
Agreement.
"Certificateholders' Distributable Amount" means, with respect to any
Payment Date, the sum of the Certificateholders' Principal Distributable
Amount and the Certificateholders' Interest Distributable Amount.
"Certificateholders' Interest Carryover Shortfall" means, with respect
to any Payment Date (the "current Payment Date"): (a) the excess of: (i)
the Certificateholders' Interest Distributable Amount for the preceding
Payment Date over (ii) the amount in respect of interest that was actually
deposited in the Certificate Distribution Account on such preceding Payment
Date, plus (b) interest on such excess, to the extent permitted by law, at
the Pass-Through Rate from such preceding Payment Date to but excluding the
current Payment Date.
"Certificateholders' Interest Distributable Amount" means, with
respect to any Payment Date (the "current Payment Date"): (a) interest
accrued from and including the preceding Payment Date (or, in the case of
the first Payment Date, the Closing Date) to but excluding the current
Payment Date at the Pass-Through Rate on the Certificate Balance on the
preceding Payment Date after giving effect to all changes therein on such
preceding Payment Date (or, in the case of the first Payment Date, on the
Closing Date) plus (b) the Certificateholders' Interest Carryover Shortfall
for the current Payment Date.
"Certificateholders' Percentage" means 4%.
"Certificateholders' Prepayment Premium" means an amount equal to the
excess, if any, discounted as described below, of: (i) the amount of
interest that would accrue on the Certificateholders' Percentage of any
Remaining Pre-Funded Amount (the "Certificate Prepayment Amount") at the
Pass-Through Rate during the period commencing on and including the Payment
Date on which such Certificate Prepayment Amount is required to be
deposited in the Certificate Distribution Account pursuant to Section
5.7(b) to but excluding December 31, 1999, over (ii) the amount of interest
that would have accrued on such Certificate Prepayment Amount over the same
period at a per annum rate of interest equal to the bond equivalent yield
to maturity on the Determination Date preceding such Payment Date on the
7.75% United States Treasury Note due December 31, 1999. Such excess shall
be discounted on a monthly basis to a present value on such Payment Date at
the bond equivalent yield described in clause (ii).
"Certificateholders' Principal Carryover Shortfall" means, with
respect to any Payment Date, the excess of the Certificateholders'
Principal Distributable Amount for the preceding Payment Date over the
amount in respect of principal that was actually deposited in the
Certificate Distribution Account on such preceding Payment Date.
"Certificateholders' Principal Distributable Amount" means, with
respect to any Payment Date on or after the A-2 Repayment Date: (a) the
Certificateholders' Principal Distribution Amount plus (b) the
Certificateholders' Principal Carryover Shortfall for such Payment Date;
provided, however, that the Certificateholders' Principal Distributable
Amount will not exceed the Certificate Balance. In addition, on the Final
Scheduled Maturity Date, the principal required to be distributed to
Certificateholders will include the amount, to the extent of available
funds, necessary (after giving effect to the other amounts to be deposited
in the Certificate Distribution Account on such Payment Date and allocable
to principal) to reduce the Certificate Balance to zero.
"Certificateholders' Principal Distribution Amount" means, with
respect to any Payment Date on or after the A-2 Repayment Date, the excess,
if any, of the Principal Distribution Amount over the Noteholders'
Principal Distribution Amount.
"Certificate Pool Factor" means, as of the close of business on any
Payment Date, the Certificate Balance divided by the initial Certificate
Balance (carried out to the seventh decimal place). The Certificate Pool
Factor is 1.0000000 as of the Closing Date, and, thereafter, will decline
to reflect reductions in the Certificate Balance.
"Certificate Prepayment Amount" has the meaning assigned to such term
in the definition of "Certificateholders' Prepayment Premium".
"Certificates" means the Trust Certificates (as defined in the Trust
Agreement).
"Class B Agent" means The First National Bank of Chicago, and any
successor agent appointed pursuant to the Class B Note Purchase Agreement.
"Class B Noteholder" means any holder of a Class B Note.
"Class B Noteholders' Distributable Amount" means, with respect to any
Payment Date, the sum of the Class B Noteholders' Interest Distributable
Amount and the Class B Noteholders' Principal Distributable Amount.
"Class B Noteholders' Interest Carryover Shortfall" means, with
respect to any Payment Date (the "current Payment Date"): (a) the excess
of: (i) the Class B Noteholders' Interest Distributable Amount for the
preceding Payment Date over (ii) the amount in respect of interest that was
actually deposited in the Note Distribution Account on such preceding
Payment Date in respect of interest on the Class B Notes on such preceding
Payment Date, plus (b) interest on such excess, to the extent permitted by
law, at the Class B Rate from such preceding Payment Date to but excluding
the current Payment Date.
"Class B Noteholders' Interest Distributable Amount" means, with
respect to any Payment Date (the "current Payment Date"): (a) the aggregate
amount of interest accrued on the Class B Notes from and including the
preceding Payment Date (or, if later, the issuance date for the Class B
Notes) to but excluding the current Payment Date at the Class B Rate plus
(b) the Class B Noteholders' Interest Carryover Shortfall for the current
Payment Date.
"Class B Noteholders' Monthly Principal Distributable Amount" means,
with respect to each Payment Date on or after the A-2 Repayment Date, the
Class B Percentage of the Noteholders' Principal Distribution Amount (less
the portion thereof, if any, applied to reduce the Outstanding Amount of
the A-2 Notes to zero on such Payment Date), or on and after the Payment
Date on which an amount sufficient to reduce the Outstanding Amount of the
A-3 Notes to zero has been deposited in the Note Distribution Account, 100%
of the Noteholders' Principal Distribution Amount (less the portion
thereof, if any, applied to reduce the Outstanding Amount of the A-3 Notes
to zero on such Payment Date).
"Class B Noteholders' Prepayment Premium" is defined in the Class B
Notes.
"Class B Noteholders' Principal Carryover Shortfall" means, with
respect to any Payment Date, the excess of the Class B Noteholders'
Principal Distributable Amount for the preceding Payment Date over the
amount that was actually deposited in the Note Distribution Account in
respect of principal of the Class B Notes on such preceding Payment Date.
"Class B Noteholders' Principal Distributable Amount" means, with
respect to any Payment Date, the sum of: (a) the Class B Noteholders'
Monthly Principal Distributable Amount for such Payment Date and (b) the
Class B Noteholders' Principal Carryover Shortfall for such Payment Date;
provided, however, that until an amount sufficient to reduce the
Outstanding Amount of the A-2 Notes to zero has been deposited in the Note
Distribution Account, the Class B Noteholders' Principal Distributable
Amount shall be zero; and provided further, that the sum of clauses (a) and
(b) shall not exceed the Outstanding Amount of the Class B Notes, and, on
the Final Scheduled Maturity Date, the Class B Noteholders' Principal
Distributable Amount will include the amount, to the extent of available
funds, necessary (after giving effect to the other amounts to be deposited
in the Note Distribution Account on such Payment Date and allocable to
principal) to reduce the Outstanding Amount of the Class B Notes to zero.
"Class B Note Purchase Agreement" has the meaning assigned to such
term in the Recitals to the Adminstration Agreement.
"Class B Percentage" means 100% minus the A-3 Percentage.
"Class B Rate" means, for purposes of each Class B Note, the rate of
interest applicable to that Class B Note.
"Collection Account" means the account designated as such, established
and maintained pursuant to Section 5.1(a).
"Collection Period" means, with respect to any Payment Date, the
period from and including the end of the preceding Collection Period (or,
if for the first Payment Date, the day after the Initial Cutoff Date) to
but excluding the sixth (6th) day of the calendar month in which the
Payment Date occurs.
"Contract" means an equipment retail installment sale contract secured
by Financed Equipment.
"Contract Value" means, with respect to any day (including the Initial
Cutoff Date or any Subsequent Cutoff Date), the present value of the unpaid
Scheduled Payments discounted monthly at an annual rate equal to: (a) in
the case of the Initial Receivables, the Initial Cutoff Date APR and (b) in
the case of the Subsequent Receivables, the applicable Subsequent Cutoff
Date APR. For purposes of calculating Contract Value, a Scheduled Payment
that is delinquent as of the day the calculation is being made is deemed to
be due on such day. There shall be deemed to be no Scheduled Payments due
on a Liquidated Receivable.
"Corporate Trust Office" means the principal office of the Indenture
Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of this Agreement is located at
311 West Monroe Street, 12th Floor, Chicago, Illinois 60606, Attention:
Indenture Trust Administration (facsimile no. (312) 461-3525); or at such
other address as the Indenture Trustee may designate from time to time by
notice to the Indenture Noteholders and the Seller, or the principal
corporate trust office of any successor Indenture Trustee (the address of
which the successor Indenture Trustee will notify the Indenture Noteholders
and the Seller).
"Credit" means Case Credit Corporation, a Delaware corporation, and
its successors and assigns.
"Dealer" means the dealer (which may include retail outlets owned by
Case) who sold any Financed Equipment and who originated and assigned the
respective Receivable to Credit under a Dealer Agreement.
"Dealer Agreement" means the retail financing agreement between the
applicable Dealer and Credit.
"Delivery" when used with respect to Trust Account Property means:
(a) with respect to bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that
constitute "instruments" within the meaning of Section 9-105(1)(i) of
the UCC and are susceptible of physical delivery, transfer thereof to
the Indenture Trustee or its nominee or custodian (the "New Owner") by
physical delivery to the New Owner endorsed to, or registered in the
name of, the New Owner or endorsed in blank, and, with respect to a
certificated security (as defined in Section 8-102 of the UCC)
transfer thereof: (i) by delivery of such certificated security
endorsed to, or registered in the name of, the New Owner or endorsed
in blank to a financial intermediary (as defined in Section 8-313 of
the UCC) and the making by such financial intermediary of entries on
its books and records identifying such certificated securities as
belonging to the New Owner and the sending by such financial
intermediary of a confirmation of the purchase of such certificated
security by the New Owner, or (ii) by delivery thereof to a "clearing
corporation" (as defined in Section 8-102(3) of the UCC) and the
making by such clearing corporation of appropriate entries on its
books reducing the appropriate securities account of the transferor
and increasing the appropriate securities account of a financial
intermediary by the amount of such certificated security, the
identification by the clearing corporation of the certificated
securities for the sole and exclusive account of the financial
intermediary, the maintenance of such certificated securities by such
clearing corporation or a "custodian bank" (as defined in Section
8-102(4) of the UCC) or the nominee of either subject to the clearing
corporation's exclusive control, the sending of a confirmation by the
financial intermediary of the purchase by the New Owner of such
securities and the making by such financial intermediary of entries on
its books and records identifying such certificated securities as
belonging to the New Owner (all of the foregoing, "Physical
Property"), and, in any event, any such Physical Property in
registered form shall be in the name of the New Owner; and such
additional or alternative procedures as may hereafter become
appropriate to effect the complete transfer of ownership of any such
Trust Account Property to the New Owner, consistent with changes in
applicable law or regulations or the interpretation thereof;
(b) with respect to any security issued by the United States
Treasury Department, the Federal Home Loan Mortgage Corporation or by
the Federal National Mortgage Association that is a book-entry
security held through the Federal Reserve System pursuant to Federal
book-entry regulations, the following procedures, all in accordance
with applicable law, including applicable Federal regulations and
Articles 8 and 9 of the UCC: book-entry registration of such security
to an appropriate book-entry account maintained with a Federal Reserve
Bank by a financial intermediary that is also a "depository" pursuant
to applicable Federal regulations and issuance by such financial
intermediary of a deposit advice or other written confirmation of such
book-entry registration to the New Owner of the purchase by the New
Owner of such book-entry securities; the making by such financial
intermediary of entries in its books and records identifying such
book-entry security held through the Federal Reserve System pursuant
to Federal book-entry regulations as belonging to the New Owner and
indicating that such custodian holds such security solely as agent for
the New Owner; and such additional or alternative procedures as may
hereafter become appropriate to effect complete transfer of ownership
of any such Trust Account Property to the New Owner, consistent with
changes in applicable law or regulations or the interpretation
thereof; and
(c) with respect to any uncertificated security under Article 8
of the UCC that is not governed by clause (b), registration on the
books and records of the issuer thereof in the name of the financial
intermediary, the sending of a confirmation by the financial
intermediary of the purchase by the New Owner of such uncertificated
security, and the making by such financial intermediary of entries on
its books and records identifying such uncertificated security as
belonging to the New Owner.
"Depositor" shall mean the Seller in its capacity as Depositor under
the Trust Agreement.
"Determination Date" means, with respect to any Transfer Date, the
second Business Day prior to such Transfer Date.
"Eligible Deposit Account" means either: (a) a segregated account with
an Eligible Institution or any other segregated account, the deposit of
funds in which satisfies the Rating Agency Condition or (b) a segregated
trust account with the corporate trust department of a depository
institution organized under the laws of the United States of America or any
State (or any domestic branch of a foreign bank), having corporate trust
powers and acting as trustee for funds deposited in such account, so long
as any of the securities of such depository institution have a credit
rating from each Rating Agency in one of its generic rating categories that
signifies investment grade.
"Eligible Institution" means: (a) the corporate trust department of
the Indenture Trustee or the Trustee or (b) a depository institution
organized under the laws of the United States of America or any State (or
any domestic branch of a foreign bank), which: (i) has either a long-term
or short-term senior unsecured debt rating or certificate of deposit rating
acceptable to the Rating Agencies and (ii) whose deposits are insured by
the FDIC.
"Eligible Investments" mean book-entry securities, negotiable
instruments or securities represented by instruments in bearer or
registered form that evidence:
(a) direct obligations of, and obligations fully guaranteed as
to timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit of
any depository institution or trust company incorporated under the
laws of the United States of America or any State (or any domestic
branch of a foreign bank) and subject to supervision and examination
by Federal or State banking or depository institution authorities;
provided, however, that at the time of the investment or contractual
commitment to invest therein, the commercial paper or other short-term
senior unsecured debt obligations (other than such obligations the
rating of which is based on the credit of a Person other than such
depository institution or trust company) thereof shall have a credit
rating from each of the Rating Agencies in the highest investment
category granted thereby;
(c) commercial paper having, at the time of the investment or
contractual commitment to invest therein, a rating from each of the
Rating Agencies in the highest investment category granted thereby;
(d) investments in money market funds having a rating from each
of the Rating Agencies in the highest investment category granted
thereby (including funds for which the Indenture Trustee or the
Trustee or any of their respective Affiliates is investment manager or
advisor); provided, that during the Funding Period no investments in
money market funds shall be made with funds in any Trust Account other
than the Collection Account;
(e) bankers' acceptances issued by any depository institution or
trust company referred to in clause (b);
(f) repurchase obligations with respect to any security that is
a direct obligation of, or fully guaranteed as to timely payment by,
the United States of America or any agency or instrumentality thereof
the obligations of which are backed by the full faith and credit of
the United States of America, in either case entered into with a
depository institution or trust company (acting as principal)
described in clause (b); and
(g) any other investment permitted by each of the Rating
Agencies as set forth in writing delivered to the Indenture Trustee;
provided, that investments described in clauses (d) and (g) shall be
made only so long as making such investments will not require the
Issuer to register as an investment company under the Investment
Company Act of 1940, as amended.
"FDIC" means the Federal Deposit Insurance Corporation or any
successor.
"Final Scheduled Maturity Date" means the September 2003 Payment Date.
"Financed Equipment" means property, including any agricultural or
construction equipment, together with all accessions thereto, securing an
Obligor's indebtedness under the related Receivable.
"Funding Period" means the period from and including the Closing Date
and ending on the earliest of: (a) a date selected by the Seller, which may
not be earlier than the Determination Date on which the amount on deposit
in the Pre-Funding Account (after giving effect to any transfers therefrom
in connection with the transfer of Subsequent Receivables to the Issuer on
or before such Determination Date) is less than $100,000, (b) the date on
which an Event of Default or a Servicer Default occurs, (c) the date on
which an Insolvency Event occurs with respect to the Seller or the Servicer
and (d) the close of business on the March 1997 Payment Date.
"Indenture" means the Indenture, dated the date hereof, between the
Issuer and the Indenture Trustee, as the same may be amended and
supplemented from time to time.
"Indenture Noteholders' Interest Carryover Shortfall" means, with
respect to any Payment Date (the "current Payment Date"): (a) the excess
of: (i) the Indenture Noteholders' Interest Distributable Amount for the
preceding Payment Date over (ii) the amount in respect of interest that was
actually deposited in the Note Distribution Account on such preceding
Payment Date in respect of the A-1 Notes, the A-2 Notes and the A-3 Notes,
plus (b) interest on such excess, to the extent permitted by law, at a rate
per annum equal to the interest rate on the applicable Class of Indenture
Notes, from such preceding Payment Date to but excluding the current
Payment Date.
"Indenture Noteholders' Interest Distributable Amount" means, with
respect to any Payment Date (the "current Payment Date"), an amount equal
to: (a) the aggregate amount of interest accrued on the A-1 Notes, the A-2
Notes and the A-3 Notes at their respective interest rates from and
including the preceding Payment Date (or, in the case of the initial
Payment Date, from and including the Closing Date) to but excluding the
current Payment Date (based on a 360-day year of twelve 30-day months) plus
(b) the Indenture Noteholders' Interest Carryover Shortfall for the current
Payment Date.
"Indenture Noteholders' Prepayment Premium" means, with respect to the
A-1 Notes, an amount equal to the excess, if any, discounted as described
below, of: (i) the amount of interest that would have accrued on the
principal amount of the A-1 Notes that is being redeemed (the "A-1 Note
Redemption Amount") at the A-1 Note Rate during the period commencing on
and including the Payment Date on which the A-1 Note Redemption Amount is
required to be distributed to A-1 Noteholders to but excluding March 17,
1997, over (ii) the amount of interest that would have accrued on the A-1
Note Redemption Amount over the same period at a per annum rate of interest
equal to the bond equivalent yield to maturity on the Determination Date
preceding such Payment Date on the 6.625% United States Treasury Note due
March 31, 1997. Such excess shall be discounted on a monthly basis to a
present value on such Payment Date at the bond equivalent yield described
in clause (ii). The Indenture Noteholders' Prepayment Premium, if any, with
respect to the A-2 Notes and the A-3 Notes will be calculated in the same
manner, but substituting: (w) the principal amount of the A-2 Notes (or the
A-3 Notes) that is being redeemed for the A-1 Note Redemption Amount, (x)
the A-2 Note Rate (or the A-3 Note Rate) for the A-1 Note Rate, (y) the
date October 31, 1997 (or June 30, 1999, in the case of the A-3 Notes) for
the date March 17, 1997, and (z) the 5.625% United States Treasury Note due
October 31, 1997 (or the 6.75% United States Treasury Note due June 30
1999, in the case of the A-3 Notes) for the reference Treasury Note
referred to above.
"Indenture Trustee" means the Person acting as Indenture Trustee under
the Indenture, its successors in interest and any successor trustee under
the Indenture.
"Initial Class B Rate" means a fixed rate of interest agreed upon
between the Trust and the purchaser(s) of the initial Class B Notes, but
not in excess of 7.31%.
"Initial Cutoff Date" means August 31, 1996.
"Initial Cutoff Date APR" means 8.31%, which is the weighted average
APR of the Initial Receivables as of the Initial Cutoff Date.
"Initial Pool Balance" means: (i) the Pool Balance as of the Initial
Cutoff Date, which is $467,425,286, plus (ii) the aggregate Contract Value
of all Subsequent Receivables sold to the Issuer as of their respective
Subsequent Cutoff Dates.
"Initial Receivable" means any Contract listed on Schedule A on the
Closing Date (which Schedule may be in the form of microfiche).
"Insolvency Event" means, with respect to a specified Person: (a) the
filing of a decree or order for relief by a court having jurisdiction in
the premises in respect of such Person or any substantial part of its
property in an involuntary case under any applicable Federal or State
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official for such Person or for any substantial
part of its property, or ordering the winding-up or liquidation of such
Person's affairs, and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days, or (b) the commencement by such
Person of a voluntary case under any applicable Federal or State
bankruptcy, insolvency or other similar law now or hereafter in effect, or
the consent by such Person to the entry of an order for relief in an
involuntary case under any such law, or the consent by such Person to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for such Person or for
any substantial part of its property, or the making by such Person of any
general assignment for the benefit of creditors, or the failure by such
Person generally to pay its debts as such debts become due, or the taking
of action by such Person in furtherance of any of the foregoing.
"Insolvency Proceeds" has the meaning assigned to such term in Section
9.1(b).
"Interest Distribution Amount" means, with respect to any Payment
Date, the excess, if any, of the Total Distribution Amount over the
Principal Distribution Amount for such Payment Date.
"Investment Earnings" means, with respect to any Payment Date, the
interest and other investment earnings (net of losses and investment
expenses) on amounts on deposit in the Trust Accounts to be deposited into
the Collection Account on the related Transfer Date pursuant to Section
5.1(b).
"Issuer" means Case Equipment Loan Trust 1996-B.
"Lien" means a security interest, lien, charge, pledge, equity or
encumbrance of any kind, other than tax liens, mechanics' liens and any
liens that attach to the related Receivable by operation of law as a result
of any act or omission by the related Obligor.
"Liquidated Receivable" means any Receivable liquidated by the
Servicer through the sale or other disposition of the related Financed
Equipment or that the Servicer has, after using all reasonable efforts to
realize upon the Financed Equipment, determined to charge off without
realizing upon the Financed Equipment.
"Liquidation Proceeds" means, with respect to any Liquidated
Receivable, the moneys collected in respect thereof from whatever source
(including the proceeds of insurance policies with respect to the related
Financed Equipment or Obligor and payments made by a Dealer pursuant to the
related Dealer Agreement with respect to such Receivable (other than
amounts paid from Dealer reserve accounts maintained with Credit)), other
than Recoveries, net of the sum of any amounts expended by the Servicer in
connection with such liquidation and any amounts required by law to be
remitted to the Obligor on such Liquidated Receivable.
"Liquidity Receivables Purchase Agreement" has the meaning assigned to
such term in the Recitals.
"Maximum Negative Carry Amount" means the product of: (i) the
difference between: (a) the weighted average of the interest rates on the
A-1 Notes, the A-2 Notes, the A-3 Notes and the Certificates and the
Initial Class B Rate, minus (b) 2.5%, multiplied by (ii) the amount on
deposit in the Pre-Funding Account multiplied by (iii) the fraction of a
year represented by the number of days until the expected end of the
Funding Period (calculated on the basis of a 360-day year of twelve 30-day
months).
"Moody's" means Moody's Investors Service, Inc., or its successor.
"Negative Carry Account" means the account designated as such,
established and maintained pursuant to Section 5.1(a).
"Negative Carry Account Initial Deposit" means $7,673,654.
"Negative Carry Amount" means an amount for each Collection Period
calculated by the Servicer as the difference (if positive) between: (a) the
product of: (i) the sum of the Indenture Noteholders' Interest
Distributable Amount, the Class B Noteholders' Interest Distributable
Amount and the Certificateholders' Interest Distributable Amount multiplied
by (ii) the Pre-Funded Percentage as of the immediately prior Payment Date
(or, in the case of the first Payment Date, the Closing Date) minus (b) the
Pre-Funding Account Investment Earnings.
"Note Distribution Account" means the account designated as such,
established and maintained pursuant to Section 5.1(a).
"Noteholders' Distributable Amount" means, with respect to any Payment
Date, the sum of: (a) the A-1 Noteholders' Principal Distributable Amount,
(b) the A-2 Noteholders' Principal Distributable Amount, (c) the A-3
Noteholders' Principal Distributable Amount, (d) the Indenture Noteholders'
Interest Distributable Amount, (e) the Class B Noteholders' Interest
Distributable Amount and (f) the Class B Noteholders' Principal
Distributable Amount.
"Noteholders' Percentage" means 96%.
"Noteholders' Principal Distribution Amount" means: (a) with respect
to the A-2 Repayment Date, a portion of the Principal Distribution Amount
equal to: (i) the amount required to be deposited in the Note Distribution
Account on that date in order to reduce the Outstanding Amount of the A-2
Notes to zero plus (ii) the Noteholders' Percentage of the excess, if any,
of the Principal Distribution Amount over the amount referred to in clause
(i); and (b) with respect to each Payment Date thereafter, the Noteholders'
Percentage of the Principal Distribution Amount; provided, however, that:
(x) if at any time the balance on deposit in the Spread Account is less
than the Spread Account Floor, then, with respect to each Payment Date
thereafter, the Noteholders' Principal Distribution Amount for each Payment
Date will (subject to clause (y) below) equal 100% of the Principal
Distribution Amount for that Payment Date and (y) in no event will the
Noteholders' Principal Distribution Amount for any Payment Date exceed the
aggregate Outstanding Amount of the A-2 Notes, the A-3 Notes and the Class
B Notes on the Determination Date before that Payment Date.
"Note Pool Factor" means, as of the close of business on any Payment
Date with respect to any Class of Notes, the Outstanding Amount of that
Class of Notes divided by the original Outstanding Amount of that Class of
Notes (carried out to the seventh decimal place). The Note Pool Factor for
each Class will be 1.0000000 as of the Closing Date, and, thereafter, will
decline to reflect reductions in the Outstanding Amount of the Notes;
provided, that the original Outstanding Amount of the Class B Notes shall
be the aggregate original principal balance of all issuances of Class B
Notes.
"Obligor" on a Receivable means the purchaser or co-purchasers of the
Financed Equipment and any other Person who owes payments under the
Receivable.
"Officers' Certificate" means a certificate signed by at least one of
the Chairman of the Board, the President, the Vice Chairman of the Board,
an Executive Vice President, any Vice President, a Treasurer, Assistant
Treasurer, Secretary or Assistant Secretary of the Seller or the Servicer,
as appropriate.
"Opinion of Counsel" means a written opinion of counsel (who may,
except as otherwise expressly provided in this Agreement, be an employee of
or counsel to the Seller or the Servicer), which counsel and opinion shall
be acceptable to the Indenture Trustee, the Trustee or the Rating Agencies,
as applicable.
"Pass-Through Rate" means, with respect to the Certificates, 6.95% per
annum.
"Payment Date" means, with respect to each Collection Period, the
fifteenth day of the calendar month in which that Collection Period ends,
or, if such day is not a Business Day, the next Business Day, commencing on
October 15, 1996.
"Physical Property" has the meaning assigned to such term in the
definition of "Delivery".
"Pool Balance" means, as of the opening of business on the first day
of any Collection Period, the sum of the aggregate Contract Values of the
Receivables as of such day, after giving effect to all payments received
from Obligors and Purchase Amounts to be remitted by the Servicer or the
Seller, as the case may be, with respect to the preceding Collection Period
and all Realized Losses on Receivables liquidated during such preceding
Collection Period.
"Precomputed Receivable" means any Receivable under which the portion
of a payment allocable to earned interest (which may be referred to in the
related Contract as an add-on finance charge) and the portion allocable to
the Amount Financed are determined according to the sum of periodic
balances, the sum of monthly payments or any equivalent method or are
monthly actuarial receivables.
"Pre-Funded Amount" means, with respect to any date, the amount on
deposit in the Pre-Funding Account on such date.
"Pre-Funded Percentage" means, for each Collection Period, the
quotient (expressed as a percentage) of: (i) the Pre-Funded Amount divided
by (ii) the sum of the Pool Balance and the Pre-Funded Amount, after taking
into account all transfers of Subsequent Receivables during such Collection
Period.
"Pre-Funding Account" means the account designated as such,
established and maintained pursuant to Section 5.1(a).
"Pre-Funding Account Investment Earnings" means, with respect to any
Payment Date, the interest and other investment earnings (net of losses and
investment expenses) on amounts on deposit in the Pre-Funding Account to be
deposited into the Collection Account on the related Transfer Date pursuant
to Section 5.1(b).
"Principal Balance" of a Precomputed Receivable, as of the close of
business on the last day of a Collection Period, means the Amount Financed
minus the sum of: (i) that portion of all Scheduled Payments due on or
prior to such day allocable to principal using the actuarial or constant
yield method, (ii) any refunded portion of insurance premiums included in
the Amount Financed, (iii) any payment of the Purchase Amount with respect
to the Precomputed Receivable allocable to principal and (iv) any
prepayment in full or any partial prepayments applied to reduce the
Principal Balance of the Precomputed Receivable.
"Principal Distribution Amount" means, with respect to any Payment
Date, the amount (not less than zero) equal to: (i) the sum of the Contract
Value of all Receivables and the Pre-Funded Amount as of the beginning of
the immediately preceding Collection Period less (ii) the sum of the
Contract Value of all Receivables and the Pre-Funded Amount as of the
beginning of the current Collection Period.
"Purchase Agreement" means the Purchase Agreement dated as of the date
hereof, between the Seller and Credit, as the same may be amended and
supplemented from time to time, which term shall also include, as the
context requires, the Liquidity Receivables Purchase Agreement.
"Purchase Amount" means, as of the close of business on the last day
of a Collection Period, an amount equal to the Contract Value of the
applicable Receivable as of the first day of the immediately following
Collection Period plus interest accrued and unpaid thereon as of such last
day at a rate per annum equal to: (a) in the case of the Initial
Receivables, the Initial Cutoff Date APR and (b) in the case of the
Subsequent Receivables, the applicable Subsequent Cutoff Date APR.
"Purchased Receivable" means a Receivable purchased as of the close of
business on the last day of a Collection Period by the Servicer pursuant to
Section 4.6 or by the Seller pursuant to Section 3.2, or as of the first
day of a Collection Period by the Servicer pursuant to Section 9.1(a).
"Rating Agency" means each of Moody's and Standard & Poor's. If either
of such organizations or its successor is no longer in existence, the
Seller shall designate a nationally recognized statistical rating
organization or other comparable Person as a substitute Rating Agency,
notice of which designation shall be given to the Indenture Trustee, the
Trustee and the Servicer.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given 10 days' prior notice thereof and that
each of the Rating Agencies shall have notified the Seller, the Servicer,
the Trustee and the Indenture Trustee in writing that such action will not
result in a reduction or withdrawal of the then current rating of any Class
of the Notes or the Certificates.
"Realized Losses" means the excess of the Principal Balance of
Liquidated Receivable plus accrued but unpaid interest thereon over
Liquidation Proceeds.
"Receivable Files" means the documents specified in Section 3.3.
"Recoveries" means, with respect to any Liquidated Receivable, monies
collected in respect thereof, from whatever source (other than from the
sale or other disposition of the Financed Equipment), during any Collection
Period following the Collection Period in which such Receivable became a
Liquidated Receivable.
"Remaining Pre-Funded Amount" has the meaning assigned thereto in
Section 5.7(b).
"Required Negative Carry Account Balance" means, as of the beginning
of each Collection Period, an amount equal to the lesser of: (a) the
Negative Carry Account Initial Deposit minus all previous withdrawals from
the Negative Carry Account and (b) the Maximum Negative Carry Amount as of
such day.
"Scheduled Payment" on a Precomputed Receivable means that portion of
the payment required to be made by the Obligor during any Collection Period
sufficient to amortize the Principal Balance under the actuarial method
over the term of the Receivable and to provide interest at the APR.
"Seller" means Case Receivables II Inc., a Delaware corporation, and
its successors in interest to the extent permitted hereunder.
"Servicer" means Credit, as the servicer of the Receivables, and each
successor to Credit (in the same capacity) pursuant to Section 7.3 or 8.2.
"Servicer Default" means an event specified in Section 8.1.
"Servicer's Certificate" means an Officers' Certificate of the
Servicer delivered pursuant to Section 4.8, substantially in the form of
Exhibit C.
"Servicing Fee" means the fee payable to the Servicer for services
rendered during the respective Collection Period, determined pursuant to
Section 4.7.
"Specified Spread Account Balance" means, with respect to any Payment
Date, the greater of: (a) 3.75% of the Pool Balance as of the opening of
business on the first day of the Collection Period in which such Payment
Date occurs and (b) the Spread Account Floor; provided, however, that the
Specified Spread Account Balance with respect to a Payment Date (the
"current Payment Date") shall be equal to the Specified Spread Account
Balance calculated for the Payment Date preceding such current Payment Date
if any of the following events occur: (i) the aggregate of the Realized
Losses from the Initial Cutoff Date through the end of the Collection
Period preceding such current Payment Date exceeds an amount equal to 2.25%
of the Initial Pool Balance; (ii) the aggregate, on an annual basis, of the
Realized Losses during the Collection Period immediately preceding such
current Payment Date plus the aggregate Contract Value as of the last day
of the Collection Period immediately preceding such current Payment Date of
all Receivables that have not, as of such day, been liquidated as to which
the Financed Equipment securing such Receivables has been repossessed
exceeds an amount equal to 1.65% of the Pool Balance at the beginning of
such Collection Period; or (iii) the aggregate amount of Scheduled Payments
that are delinquent by more than 60 days as of the end of the Collection
Period immediately preceding such current Payment Date exceeds an amount
equal to 2.25% of the Pool Balance as of the end of such Collection Period.
"Spread Account" means the account designated as such, established and
maintained pursuant to Section 5.1(a).
"Spread Account Floor" means 2.50% of the Initial Pool Balance;
provided, however, that on any Payment Date when the sum of the Outstanding
Amount of the Indenture Notes, the outstanding principal amount of the
Class B Notes and the Certificate Balance (after giving effect to
distributions made on the prior Payment Date): (a) is less than or equal to
97.50% of the Pool Balance, the Spread Account Floor shall be 2.25% of the
Initial Pool Balance, and (b) is less than or equal to 96.25% of the Pool
Balance, the Spread Account Floor shall be 2.00% of the Initial Pool
Balance; and provided further, that in no event shall the Spread Account
Floor exceed the sum of the Outstanding Amount of the Indenture Notes, the
outstanding principal amount of the Class B Notes and the Certificate
Balance.
"Spread Account Initial Deposit" means, initially, $17,528,448, and,
with respect to each Subsequent Transfer Date, cash or Eligible Investments
having a value approximately equal to 3.75% of the aggregate Contract Value
of the Subsequent Receivables transferred to the Issuer on such Subsequent
Transfer Date.
"Standard & Poor's" means Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc., or its successor.
"Subsequent Cutoff Date" means, with respect to any Subsequent
Receivables, the close of business on the last day of the calendar month
preceding the related Subsequent Transfer Date.
"Subsequent Cutoff Date APR" means, with respect to any Subsequent
Cutoff Date, the weighted average APR of the Subsequent Receivables being
purchased as of such Subsequent Cutoff Date.
"Subsequent Receivables" means the Receivables transferred to the
Issuer pursuant to Section 2.2, which shall be listed on Schedule A to the
related Subsequent Transfer Assignment.
"Subsequent Transfer Assignment" has the meaning assigned thereto in
Section 2.2(b)(i).
"Subsequent Transfer Date" means any Business Day during the Funding
Period on which Subsequent Receivables are to be transferred to the Issuer
and a Subsequent Transfer Assignment is executed and delivered to the
Trustee and the Indenture Trustee pursuant to Section 2.2.
"Total Distribution Amount" means, with respect to any Payment Date,
the aggregate amount of collections on or with respect to the Receivables
(including collections received after the end of the preceding calendar
month on any Subsequent Receivables added to the Trust after the end of
that preceding calendar month and on or before that Payment Date) with
respect to the related Collection Period plus the Negative Carry Amount for
such Collection Period. Collections on or with respect to the Receivables
include all payments made by or on behalf of the Obligors (including any
late fees, prepayment charges, extension fees and other administrative fees
or similar charges allowed by applicable law with respect to the
Receivables), Liquidation Proceeds, the Purchase Amount of each Receivable
that became a Purchased Receivable in respect of the related Collection
Period (to the extent deposited into the Collection Account), Investment
Earnings for such Payment Date and payments made by a Dealer pursuant to
the related Dealer Agreement with respect to such Receivable (other than
amounts paid from Dealer reserve accounts maintained with Credit);
provided, however, that the Total Distribution Amount shall not include:
(i) all payments or proceeds (including Liquidation Proceeds) of any
Receivables the Purchase Amount of which has been included in the Total
Distribution Amount in a prior Collection Period, (ii) any Recoveries or
(iii) amounts released from the Pre-Funding Account.
"Transfer Date" means the Business Day preceding the fifteenth day of
each calendar month.
"Trust" means the Issuer.
"Trust Account Property" means the Trust Accounts, all amounts and
investments held from time to time in any Trust Account (whether in the
form of deposit accounts, Physical Property, book-entry securities,
uncertificated securities or otherwise), and all proceeds of the foregoing.
"Trust Accounts" has the meaning assigned thereto in Section 5.1(b).
"Trust Agreement" means the Trust Agreement dated as of the date
hereof, between the Seller and the Trustee, as the same may be amended and
supplemented from time to time.
"Trustee" means the Person acting as Trustee under the Trust
Agreement, its successors in interest and any successor trustee under the
Trust Agreement.
"Trust Estate" has the meaning assigned to such term in the Trust
Agreement.
"Trust Officer" means, in the case of the Indenture Trustee, any
officer within the Corporate Trust Office of the Indenture Trustee,
including any Vice President, Assistant Vice President, Secretary,
Assistant Secretary or any other officer of the Indenture Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject and, with respect
to the Trustee, any officer in the Corporate Trustee Administration
Department of the Trustee with direct responsibility for the administration
of the Trust Agreement and the Basic Documents on behalf of the Trustee.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code as in effect in the relevant jurisdiction, as amended from
time to time.
SECTION 1.2. Other Definitional Provisions. (a) Capitalized terms
used herein and not otherwise defined herein that are defined in the
Indenture have the meanings assigned to them in the Indenture.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles as in effect
on the date hereof. To the extent that the definitions of accounting terms
in this Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under generally accepted
accounting principles, the definitions contained in this Agreement or in
any such certificate or other document shall control.
(d) The words "hereof", "herein", "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement; Section, Schedule
and Exhibit references contained in this Agreement are references to
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified; and the term "including" shall mean "including, without
limitation,".
(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
(f) Interest shall be computed on the basis of a 360-day year of
twelve 30-day months for all purposes of this Agreement.
ARTICLE II
Conveyance of Receivables
SECTION 2.1. Conveyance of Initial Receivables. In consideration of
the Issuer's delivery to or upon the order of the Seller on the Closing
Date of the net proceeds from the sale of the Indenture Notes, the Class B
Notes and the Certificates and the other amounts to be distributed from
time to time to the Seller in accordance with this Agreement, the Seller
does hereby sell, transfer, assign, set over and otherwise convey to the
Issuer, without recourse (subject to the obligations herein), all of its
right, title and interest in, to and under:
(a) the Initial Receivables, including all documents
constituting chattel paper included therewith, and all obligations of
the Obligors thereunder, including all moneys paid thereunder on or
after the Initial Cutoff Date;
(b) the security interests in the Financed Equipment granted by
Obligors pursuant to the Initial Receivables and any other interest of
the Seller in such Financed Equipment;
(c) any proceeds with respect to the Initial Receivables from
claims on insurance policies covering Financed Equipment or Obligors;
(d) the Liquidity Receivables Purchase Agreement (only with
respect to Owned Contracts included in the Initial Receivables) and
the Purchase Agreement, including the right of the Seller to cause
Credit to repurchase Initial Receivables from the Seller under the
circumstances described therein;
(e) any proceeds from recourse to Dealers with respect to the
Initial Receivables other than any interest in the Dealers' reserve
accounts maintained with Credit;
(f) any Financed Equipment that shall have secured an Initial
Receivable and that shall have been acquired by or on behalf of the
Trust;
(g) all funds on deposit from time to time in the Trust
Accounts, including the Spread Account Initial Deposit, the Negative
Carry Account Initial Deposit and the Pre-Funded Amount, and in all
investments and proceeds thereof (including all income thereon); and
(h) the proceeds of any and all of the foregoing (other than
Recoveries).
The above assignment shall be evidenced by a duly executed written
assignment in substantially the form of Exhibit D (the "Assignment").
SECTION 2.2. Conveyance of Subsequent Receivables. (a)Subject to the
conditions set forth in clause (b) below, in consideration of the Trustee's
delivery on the related Subsequent Transfer Date to or upon the order of
the Seller of the amount described in Section 5.7(a) to be delivered to the
Seller, the Seller does hereby sell, transfer, assign, set over and
otherwise convey to the Issuer, without recourse (subject to the
obligations herein), all of its right, title and interest in, to and under:
(i) the Subsequent Receivables listed on Schedule A to the
related Subsequent Transfer Assignment, including all documents
constituting chattel paper included therewith, and all obligations of
the Obligors thereunder, including all moneys paid thereunder on or
after the related Subsequent Cutoff Date;
(ii) the security interests in the Financed Equipment granted by
Obligors pursuant to such Subsequent Receivables and any other
interest of the Seller in such Financed Equipment;
(iii) any proceeds with respect to such Subsequent Receivables
from claims on insurance policies covering Financed Equipment or
Obligors;
(iv) the Purchase Agreement, including the right of the Seller
to cause Credit to repurchase Subsequent Receivables from the Seller
under the circumstances described therein;
(v) any proceeds with respect to such Subsequent Receivables
from recourse to Dealers other than any interest in the Dealers'
reserve accounts maintained with Credit;
(vi) any Financed Equipment that shall have secured any such
Subsequent Receivable and that shall have been acquired by or on
behalf of the Trust; and
(vii) the proceeds of any and all of the foregoing (other than
Recoveries).
(b) The Seller shall transfer to the Issuer the Subsequent
Receivables and the other property and rights related thereto described in
clause (a) only upon the satisfaction of each of the following conditions
precedent on or prior to the related Subsequent Transfer Date:
(i) the Seller shall have delivered to the Class B Agent, the
Trustee and the Indenture Trustee a duly executed written assignment
in substantially the form of Exhibit E (the "Subsequent Transfer
Assignment"), which shall include supplements to Schedule A listing
the Subsequent Receivables;
(ii) the Seller shall, to the extent required by Section 5.2,
have deposited in the Collection Account all collections in respect of
the Subsequent Receivables;
(iii) as of such Subsequent Transfer Date: (A) the Seller was
not insolvent and will not become insolvent as a result of the
transfer of Subsequent Receivables on such Subsequent Transfer Date,
(B) the Seller did not intend to incur or believe that it would incur
debts that would be beyond the Seller's ability to pay as such debts
matured, (C) such transfer was not made with actual intent to hinder,
delay or defraud any Person and (D) the assets of the Seller did not
constitute unreasonably small capital to carry out its business as
conducted;
(iv) the applicable Spread Account Initial Deposit for such
Subsequent Transfer Date shall have been made;
(v) [intentionally deleted];
(vi) the Receivables in the Trust, including the Subsequent
Receivables to be conveyed to the Trust on such Subsequent Transfer
Date, shall meet the following criteria: (A) the weighted average
original term of the Receivables in the Trust will not be greater than
55.0 months, and (B) not more than 40% of the aggregate Contract Value
of the Receivables in the Trust will represent Contracts for the
financing of construction equipment;
(vii) the Funding Period shall not have terminated;
(viii) each of the representations and warranties made by the
Seller pursuant to Section 3.1 with respect to the Subsequent
Receivables shall be true and correct as of such Subsequent Transfer
Date, and the Seller shall have performed all obligations to be
performed by it hereunder on or prior to such Subsequent Transfer
Date;
(ix) the Seller shall, at its own expense, on or prior to such
Subsequent Transfer Date, indicate in its computer files that the
Subsequent Receivables identified in the related Subsequent Transfer
Assignment have been sold to the Issuer pursuant to this Agreement and
the Subsequent Transfer Assignment;
(x) the Seller shall have taken any action required to maintain
the first perfected ownership interest of the Issuer in the Trust
Estate and the first perfected security interest of the Indenture
Trustee and the Collateral Agent in the Collateral;
(xi) no selection procedures believed by the Seller to be
adverse to the interests of the Trust, the Indenture Noteholders, the
Class B Noteholders or the Certificateholders shall have been utilized
in selecting the Subsequent Receivables;
(xii) the addition of the Subsequent Receivables will not result
in a material adverse tax consequence to the Trust, the Indenture
Noteholders, the Class B Noteholders or the Certificateholders;
(xiii) the Seller shall have provided the Indenture Trustee, the
Class B Agent, the Trustee and the Rating Agencies a statement listing
the aggregate Contract Value of such Subsequent Receivables and any
other information reasonably requested by any of the foregoing with
respect to such Subsequent Receivables;
(xiv) the Seller shall have delivered: (A) to the Rating
Agencies, an Opinion of Counsel with respect to the transfer of such
Subsequent Receivables substantially in the form of the Opinion of
Counsel delivered to the Rating Agencies on the Closing Date and (B)
to the Trustee, the Indenture Trustee and the Class B Agent, the
Opinion of Counsel required by Section 10.2(i)(1);
(xv) the Seller shall have delivered to the Trustee, the
Indenture Trustee and the Class B Agent a letter of a firm of
independent certified public accountants confirming the satisfaction
of the conditions set forth in clause (vi) with respect to the
Subsequent Receivables, and covering substantially the same matters
with respect to the Subsequent Receivables as are set forth in Exhibit
F hereto;
(xvi) the Seller shall have delivered to the Indenture Trustee,
the Trustee and the Class B Agent an Officers' Certificate confirming
the satisfaction of each condition specified in this clause (b)
(substantially in the form attached hereto as Annex A to the
Subsequent Transfer Assignment); and
(xvii) Moody's shall have received written notification from the
Seller of the addition of all such Subsequent Receivables.
(c) The Seller covenants to transfer to the Issuer pursuant to clause
(a) Subsequent Receivables with an aggregate Contract Value equal to
$407,574,714. If the Seller shall fail to deliver and sell to the Issuer
any or all of such Subsequent Receivables by the date on which the Funding
Period ends, and the Pre-Funded Amount is greater than $100,000 on such
date, the Seller shall be obligated to deposit an amount equal to the
aggregate Indenture Noteholders' Prepayment Premium for all Classes of
Indenture Notes into the Note Distribution Account, an amount equal to the
Class B Noteholders' Prepayment Premium into the Note Distribution Account
and an amount equal to the Certificateholders' Prepayment Premium into the
Certificate Distribution Account on the Payment Date on which the Funding
Period ends (or, if the Funding Period does not end on a Payment Date, on
the first Payment Date following the end of the Funding Period); provided,
however, that the foregoing shall be the sole remedy of the Issuer, the
Trustee, the Indenture Trustee, the Indenture Noteholders, the Class B
Noteholders or the Certificateholders with respect to a failure of the
Seller to comply with such covenant.
(d) In addition, the Seller shall have the option, on any Business
Day falling in the Funding Period on or after the day on which the Seller
has completed the maximum amount of transfers contemplated by clause (c),
to transfer to the Issuer pursuant to clause (a) additional Subsequent
Receivables with an aggregate Contract Value of up to $75,000,000.
ARTICLE III
The Receivables
SECTION 3.1. Representations and Warranties of Seller. The Seller
makes the following representations and warranties as to the Receivables on
which the Issuer is deemed to have relied in acquiring the Receivables.
Such representations and warranties speak as of the execution and delivery
of this Agreement and as of the Closing Date, in the case of the Initial
Receivables, and as of the applicable Subsequent Transfer Date, in the case
of the Subsequent Receivables, but shall survive the sale, transfer and
assignment of the Receivables to the Issuer and the pledge thereof to the
Indenture Trustee and the Collateral Agent pursuant to the Indenture.
(a) Title. It is the intention of the Seller that the transfer and
assignment herein contemplated constitute a sale of the Receivables from
the Seller to the Issuer and that the beneficial interest in and title to
the Receivables not be part of the debtor's estate in the event of the
filing of a bankruptcy petition by or against the Seller under any
bankruptcy or similar law. No Receivable has been sold, transferred,
assigned or pledged by the Seller to any Person other than the Issuer.
Immediately prior to the transfer and assignment herein contemplated, the
Seller had good title to each Receivable, free and clear of all Liens and,
immediately upon the transfer thereof, the Issuer shall have good title to
each Receivable, free and clear of all Liens; and the transfer and
assignment of the Receivables to the Issuer has been perfected under the
UCC.
(b) All Filings Made. All filings (including UCC filings) necessary
in any jurisdiction to give the Issuer a first priority perfected ownership
interest in the Receivables, and to give the Indenture Trustee a first
priority perfected security interest therein, have been made.
SECTION 3.2. Repurchase upon Breach. (a) The Seller, the Servicer or
the Trustee, as the case may be, shall inform the other parties to this
Agreement and the Indenture Trustee and the Class B Agent promptly, in
writing, upon the discovery of any breach of the Seller's representations
and warranties made pursuant to Section 3.1 or Section 6.1 or Credit's
representations and warranties made pursuant to Section 3.2(b) of the
Liquidity Receivables Purchase Agreement or Section 3.2(b) of the Purchase
Agreement. Unless any such breach shall have been cured by the last day of
the second (or, if the Seller elects, the first) Collection Period after
such breach is discovered by the Trustee or in which the Trustee receives
written notice from the Seller or the Servicer of such breach, the Seller
shall be obligated, and, if necessary, the Seller or the Trustee shall
enforce the obligation of Credit under the Liquidity Receivables Purchase
Agreement or the Purchase Agreement, as applicable, to repurchase any
Receivable materially and adversely affected by any such breach as of such
last day. As consideration for the repurchase of the Receivable, the Seller
shall remit the Purchase Amount in the manner specified in Section 5.4;
provided, however, that the obligation of the Seller to repurchase any
Receivable arising solely as a result of a breach of Credit's
representations and warranties pursuant to Section 3.2(b) of the Liquidity
Receivables Purchase Agreement or Section 3.2(b) of the Purchase Agreement
is subject to the receipt by the Seller of the Purchase Amount from Credit.
Subject to the provisions of Section 6.3, the sole remedy of the Issuer,
the Trustee, the Indenture Trustee, the Indenture Noteholders, the Class B
Noteholders or the Certificateholders with respect to a breach of the
representations and warranties pursuant to Section 3.1 and the agreement
contained in this Section shall be to require the Seller to repurchase
Receivables pursuant to this Section, subject to the conditions contained
herein, and to enforce Credit's obligation to the Seller to repurchase such
Receivables pursuant to the Liquidity Receivables Purchase Agreement or the
Purchase Agreement, as applicable.
(b) With respect to all Receivables repurchased by the Seller
pursuant to this Agreement, the Issuer shall sell, transfer, assign, set
over and otherwise convey to the Seller, without recourse, representation
or warranty, all of the Issuer's right, title and interest in, to and under
such Receivables, and all security and documents relating thereto.
SECTION 3.3. Custody of Receivable Files. To assure uniform quality
in servicing the Receivables and to reduce administrative costs, the Issuer
hereby revocably appoints the Servicer, and the Servicer hereby accepts
such appointment, to act for the benefit of the Issuer and the Indenture
Trustee as custodian of the following documents or instruments, which are
hereby constructively delivered to the Indenture Trustee, as pledgee of the
Issuer (or, in the case of the Subsequent Receivables, will as of the
applicable Subsequent Transfer Date be constructively delivered to the
Indenture Trustee, as pledgee of the Issuer) with respect to each
Receivable:
(a) the original fully executed copy of the Receivable;
(b) a record or facsimile of the original credit application
fully executed by the Obligor;
(c) the original certificate of title or file stamped copy of
the UCC financing statement or such other documents that the Servicer
shall keep on file, in accordance with its customary procedures,
evidencing the security interest of Credit in the Financed Equipment;
and
(d) any and all other documents that the Servicer or the Seller
shall keep on file, in accordance with its customary procedures,
relating to a Receivable, an Obligor or any of the Financed Equipment.
SECTION 3.4. Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer shall hold the Receivable Files for the
benefit of the Issuer and the Indenture Trustee and maintain such accurate
and complete accounts, records and computer systems pertaining to each
Receivable File as shall enable the Issuer to comply with this Agreement.
In performing its duties as custodian, the Servicer shall act with
reasonable care, using that degree of skill and attention that the Servicer
exercises with respect to the receivable files relating to all comparable
equipment receivables that the Servicer services for itself or others. The
Servicer shall conduct, or cause to be conducted, periodic audits of the
Receivable Files and the related accounts, records and computer systems, in
such a manner as shall enable the Issuer or the Indenture Trustee to verify
the accuracy of the Servicer's record keeping. The Servicer shall promptly
report to the Issuer and the Indenture Trustee any failure on its part to
hold the Receivable Files and maintain its accounts, records and computer
systems as herein provided and promptly take appropriate action to remedy
any such failure. Nothing herein shall be deemed to require an initial
review or any periodic review by the Issuer, the Trustee or the Indenture
Trustee of the Receivable Files.
(b) Maintenance of and Access to Records. The Servicer shall maintain
each Receivable File at one of its offices specified in Schedule B to this
Agreement or at such other office as shall be specified to the Issuer and
the Indenture Trustee by written notice not later than 90 days after any
change in location. The Servicer shall make available for inspection by the
Seller, the Issuer and the Indenture Trustee or their respective duly
authorized representatives, attorneys or auditors a list of locations of
the Receivable Files and the related accounts, records and computer systems
maintained by the Servicer at such times during normal business hours as
the Seller, the Issuer or the Indenture Trustee shall instruct.
SECTION 3.5. Instructions; Authority To Act. The Servicer shall be
deemed to have received proper instructions with respect to the Receivable
Files upon its receipt of written instructions signed by a Trust Officer of
the Indenture Trustee.
SECTION 3.6. Custodian's Indemnification. The Servicer as custodian
shall indemnify the Trust, the Trustee and the Indenture Trustee (and each
of their officers, directors, employees and agents) for any and all
liabilities, obligations, losses, compensatory damages, payments, costs or
expenses of any kind whatsoever that may be imposed on, incurred by or
asserted against the Trust, the Trustee or the Indenture Trustee (or any of
their officers, directors and agents) as the result of any improper act or
omission in any way relating to the maintenance and custody by the Servicer
as custodian of the Receivable Files; provided, however, that the Servicer
shall not be liable: (a) to the Trustee for any portion of any such amount
resulting from the willful misfeasance, bad faith or negligence of the
Trustee and (b) to the Indenture Trustee for any portion of any such amount
resulting from the wilful misfeasance, bad faith or negligence of the
Indenture Trustee.
SECTION 3.7. Effective Period and Termination. The Servicer's
appointment as custodian shall become effective as of the Initial Cutoff
Date and shall continue in full force and effect until terminated pursuant
to this Section. If any Servicer shall resign as Servicer in accordance
with this Agreement or if all of the rights and obligations of any Servicer
shall have been terminated under Section 8.1, the appointment of such
Servicer as custodian shall be terminated by: (a) the Indenture Trustee,
(b) the Holders of Indenture Notes evidencing not less than 25% of the
Outstanding Amount of the Indenture Notes, (c) with the consent of Holders
of the Indenture Notes evidencing not less than 25% of the Outstanding
Amount of the Indenture Notes, the Class B Agent or the Trustee or (d)
Certificateholders evidencing not less than 25% of the Certificate Balance,
in the same manner as the Indenture Trustee or such Holders may terminate
the rights and obligations of the Servicer under Section 8.1. The Indenture
Trustee or, with the consent of the Indenture Trustee, the Class B Agent or
the Trustee may terminate the Servicer's appointment as custodian, with
cause, at any time upon written notification to the Servicer, and without
cause upon 30 days' prior written notification to the Servicer. As soon as
practicable after any termination of such appointment, the Servicer shall
deliver the Receivable Files to the Indenture Trustee or the Indenture
Trustee's agent at such place(s) as the Indenture Trustee may reasonably
designate.
ARTICLE IV
Administration and Servicing of Receivables
SECTION 4.1. Duties of Servicer. The Servicer, for the benefit of the
Issuer, and (to the extent provided herein) the Indenture Trustee and the
Collateral Agent, shall manage, service, administer and make collections on
the Receivables with reasonable care, using that degree of skill and
attention that the Servicer exercises with respect to all comparable
equipment receivables that it services for itself or others. The Servicer's
duties shall include collection and posting of all payments, responding to
inquiries of Obligors on such Receivables, investigating delinquencies,
sending payment coupons to Obligors, reporting tax information to Obligors,
accounting for collections and furnishing monthly and annual statements to
the Trustee and the Indenture Trustee with respect to distributions.
Subject to Section 4.2, the Servicer shall follow its customary standards,
policies and procedures in performing its duties as Servicer. Without
limiting the generality of the foregoing, the Servicer is authorized and
empowered to execute and deliver, on behalf of itself, the Issuer, the
Trustee, the Class B Agent, the Indenture Trustee, the Certificateholders,
the Class B Noteholders and the Indenture Noteholders or any of them, any
and all instruments of satisfaction or cancellation, or partial or full
release or discharge, and all other comparable instruments, with respect to
such Receivables or the Financed Equipment securing such Receivables. If
the Servicer shall commence a legal proceeding to enforce a Receivable, the
Issuer shall thereupon be deemed to have automatically assigned, solely for
the purpose of collection, such Receivable to the Servicer. If in any
enforcement suit or legal proceeding it shall be held that the Servicer may
not enforce a Receivable on the ground that it shall not be a real party in
interest or a holder entitled to enforce such Receivable, the Trustee
shall, at the Servicer's expense and direction, take steps to enforce such
Receivable, including bringing suit in its name or the name of the Trust,
the Indenture Trustee, the Class B Agent, the Certificateholders, the Class
B Noteholders or the Indenture Noteholders. The Trustee or the Indenture
Trustee shall, upon the written request of the Servicer, furnish the
Servicer with any powers of attorney and other documents reasonably
necessary or appropriate to enable the Servicer to carry out its servicing
and administrative duties hereunder.
SECTION 4.2. Collection and Allocation of Receivable Payments. The
Servicer shall make reasonable efforts to collect all payments called for
under the Receivables as and when the same shall become due and shall
follow such collection procedures as it follows with respect to all
comparable equipment receivables that it services for itself or others. The
Servicer shall allocate collections between principal and interest in
accordance with the customary servicing procedures it follows with respect
to all comparable equipment receivables that it services for itself or
others. The Servicer may grant extensions or adjustments on a Receivable;
provided, however, that if the Servicer extends the date for final payment
by the Obligor of any Receivable beyond the Final Scheduled Maturity Date,
it shall promptly purchase the Receivable from the Issuer in accordance
with Section 4.6. The Servicer may, in its discretion, waive any late
payment charge or any other fees (other than extension fees or any other
fees that represent interest charges on deferred Scheduled Payments) that
may be collected in the ordinary course of servicing a Receivable. The
Servicer shall not agree to any decrease of the interest rate on any
Receivable or reduce the aggregate amount of the Scheduled Payments due on
any Receivable.
SECTION 4.3. Realization upon Receivables. For the benefit of the
Issuer and the Indenture Trustee, the Servicer shall use reasonable
efforts, consistent with its customary servicing procedures, to repossess
or otherwise convert the ownership of the Financed Equipment securing any
Receivable as to which the Servicer shall have determined eventual payment
in full is unlikely. The Servicer shall follow such customary and usual
practices and procedures as it shall deem necessary or advisable in its
servicing of equipment receivables, which may include reasonable efforts to
realize upon any recourse to Dealers and selling the Financed Equipment at
public or private sale. The foregoing shall be subject to the provision
that, in any case in which the Financed Equipment shall have suffered
damage, the Servicer shall not expend funds in connection with the repair
or the repossession of such Financed Equipment unless it shall determine in
its discretion that such repair and/or repossession will increase the
Liquidation Proceeds by an amount greater than the amount of such expenses.
SECTION 4.4. Maintenance of Security Interests in Financed Equipment.
The Servicer shall, in accordance with its customary servicing procedures,
take such steps as are necessary to maintain perfection of the security
interest created by each Receivable in the related Financed Equipment. The
Servicer is hereby authorized to take such steps as are necessary to
re-perfect such security interest for the benefit of the Issuer and the
Indenture Trustee in the event of the relocation of a Financed Equipment or
for any other reason.
SECTION 4.5. Covenants of Servicer. The Servicer shall not release
the Financed Equipment securing any Receivable from the security interest
granted by such Receivable in whole or in part except in the event of
payment in full by the Obligor thereunder or repossession, nor shall the
Servicer impair the rights of the Issuer, the Indenture Trustee, the
Certificateholders, the Class B Noteholders or the Indenture Noteholders in
such Receivables. The Servicer shall, in accordance with its customary
servicing procedures, require that each Obligor shall have obtained
physical damage insurance covering the Financed Equipment as of the
execution of the Receivable.
SECTION 4.6. Purchase of Receivables upon Breach. The Servicer or the
Trustee shall inform the other party, the Indenture Trustee, the Class B
Agent, the Seller and Credit promptly, in writing, upon the discovery of
any breach pursuant to Section 4.2, 4.4 or 4.5. Unless the breach shall
have been cured by the last day of the Collection Period in which such
breach is discovered, the Servicer shall purchase any Receivable materially
and adversely affected by such breach as of such last day. If the Servicer
takes any action during any Collection Period pursuant to Section 4.2 that
impairs the rights of the Issuer, the Indenture Trustee, the Class B Agent,
the Certificateholders, the Class B Noteholders or the Indenture
Noteholders in any Receivable or as otherwise provided in Section 4.2, the
Servicer shall purchase such Receivable as of the last day of such
Collection Period. As consideration for the purchase of any such Receivable
pursuant to either of the two preceding sentences, the Servicer shall remit
the Purchase Amount in the manner specified in Section 5.4. Subject to
Section 7.2, the sole remedy of the Issuer, the Trustee, the Indenture
Trustee, the Class B Agent, the Certificateholders, the Class B Noteholders
or the Indenture Noteholders with respect to a breach pursuant to Section
4.2, 4.4 or 4.5 shall be to require the Servicer to purchase Receivables
pursuant to this Section. The Trustee shall have no duty to conduct any
affirmative investigation as to the occurrence of any condition requiring
the purchase of any Receivable pursuant to this Section.
SECTION 4.7. Servicing Fee. The Servicing Fee for each Collection
Period shall be equal to 1/12th of 1.00% of the Pool Balance as of the
first day of such Collection Period.
SECTION 4.8. Servicer's Certificate. On each Determination Date the
Servicer shall deliver to the Trustee, the Class B Agent, the Indenture
Trustee and the Seller, with a copy to the Rating Agencies, a Servicer's
Certificate containing all information necessary to make the distributions
pursuant to Sections 5.5 and 5.6 and the deposits to the Collection Account
pursuant to Section 5.2 for the Collection Period preceding the date of
such Servicer's Certificate. Receivables to be repurchased by the Seller or
purchased by the Servicer shall be identified by the Servicer by account
number with respect to such Receivable (as specified in Schedule A).
SECTION 4.9. Annual Statement as to Compliance; Notice of Default.
(a) The Servicer shall deliver to the Trustee, the Class B Agent and the
Indenture Trustee, on or before April 30th of each year, an Officers'
Certificate, dated as of December 31 of the preceding year, stating that:
(i) a review of the activities of the Servicer during the preceding
12-month period (or, in the case of the first such certificate, from the
Initial Cutoff Date to December 31, 1996) and of its performance under this
Agreement has been made under such officers' supervision and (ii) to the
best of such officers' knowledge, based on such review, the Servicer has
fulfilled all its obligations under this Agreement throughout such year or,
if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officers and the nature and
status thereof. The Indenture Trustee shall send a copy of such Certificate
and the report referred to in Section 4.10 to the Rating Agencies. A copy
of such Certificate and report may be obtained by any Certificateholder or
Indenture Noteholder by a request in writing to the Trustee addressed to
the Corporate Trust Office. Upon the written request of the Trustee, the
Indenture Trustee will promptly furnish the Trustee a list of Indenture
Noteholders as of the date specified by the Trustee.
(b) The Servicer shall deliver to the Trustee, the Class B Agent, the
Indenture Trustee and the Rating Agencies, promptly after having obtained
knowledge thereof, but in no event later than five Business Days
thereafter, written notice in an Officers' Certificate of any event that,
with the giving of notice or lapse of time, or both, would become a
Servicer Default under Section 8.1(a) or (b).
SECTION 4.10. Annual Independent Certified Public Accountants'
Report. The Servicer shall cause a firm of independent certified public
accountants, which may also render other services to the Servicer or the
Seller, to deliver to the Trustee, the Class B Agent and the Indenture
Trustee on or before April 30 of each year a report, addressed to the Board
of Directors of the Servicer, the Trustee, the Class B Agent and the
Indenture Trustee, summarizing the results of certain procedures with
respect to certain documents and records relating to the servicing of the
Receivables during the preceding calendar year (or, in the case of the
first such report, during the period from the Initial Cutoff Date to
December 31, 1996). The procedures to be performed and reported upon by the
independent public accountants shall be those agreed to by the Servicer and
the Indenture Trustee.
Such report will also indicate that the firm is independent of the
Servicer within the meaning of the Code of Professional Ethics of the
American Institute of Certified Public Accountants.
SECTION 4.11. Access to Certain Documentation and Information
Regarding Receivables. The Servicer shall provide to the Trustee, the Class
B Agent and the Indenture Trustee access to the Receivable Files in such
cases where the Trustee, the Class B Agent or the Indenture Trustee shall
be required by applicable statutes or regulations to review such
documentation. Access shall be afforded without charge, but only upon
reasonable request and during the normal business hours at the respective
offices of the Servicer. Nothing in this Section shall affect the
obligation of the Servicer to observe any applicable law prohibiting
disclosure of information regarding the Obligors, and the failure of the
Servicer to provide access to information as a result of such obligation
shall not constitute a breach of this Section.
SECTION 4.12. Servicer Expenses. The Servicer shall be required to
pay all expenses incurred by it in connection with its activities
hereunder, including fees and disbursements of independent accountants,
taxes imposed on the Servicer and expenses incurred in connection with
distributions and reports to Certificateholders, Class B Noteholders and
Indenture Noteholders.
SECTION 4.13. Appointment of Subservicer. The Servicer may at any
time appoint a subservicer to perform all or any portion of its obligations
as Servicer hereunder; provided, however, that the Rating Agency Condition
shall have been satisfied in connection therewith; and provided further,
that the Servicer shall remain obligated and be liable to the Issuer, the
Trustee, the Indenture Trustee, the Class B Agent, the Certificateholders,
the Class B Noteholders and the Indenture Noteholders for the servicing and
administering of the Receivables in accordance with the provisions hereof
without diminution of such obligation and liability by virtue of the
appointment of such subservicer and to the same extent and under the same
terms and conditions as if the Servicer alone were servicing and
administering the Receivables. The fees and expenses of the subservicer
shall be as agreed between the Servicer and its subservicer from time to
time and none of the Issuer, the Trustee, the Class B Agent, the Indenture
Trustee, the Certificateholders, the Class B Noteholders or the Indenture
Noteholders shall have any responsibility therefor.
ARTICLE V
Distributions: Spread Account;
Statements to Certificateholders and Noteholders
SECTION 5.1. Establishment of Trust Accounts. (a)(i)The Servicer, for
the benefit of the Indenture Noteholders, the Class B Noteholders and the
Certificateholders, shall establish and maintain in the name of the
Indenture Trustee an Eligible Deposit Account (the "Collection Account"),
bearing a designation clearly indicating that the funds deposited therein
are held for the benefit of the Indenture Noteholders, the Class B
Noteholders and the Certificateholders.
(ii) The Servicer, for the benefit of the Indenture Noteholders
and the Class B Noteholders, shall establish and maintain in the name
of the Indenture Trustee an Eligible Deposit Account (the "Note
Distribution Account"), bearing a designation clearly indicating that
the funds deposited therein are held for the benefit of the Indenture
Noteholders and the Class B Noteholders.
(iii) The Servicer, for the benefit of the Indenture
Noteholders, the Class B Noteholders and the Certificateholders, shall
establish and maintain in the name of the Indenture Trustee an
Eligible Deposit Account (the "Spread Account"), bearing a designation
clearly indicating that the funds deposited therein are held for the
benefit of the Indenture Noteholders, the Class B Noteholders and the
Certificateholders.
(iv) The Servicer, for the benefit of the Indenture Noteholders,
the Class B Noteholders and the Certificateholders, shall establish
and maintain in the name of the Indenture Trustee an Eligible Deposit
Account (the "Pre-Funding Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit
of the Indenture Noteholders, the Class B Noteholders and the
Certificateholders.
(v) The Servicer, for the benefit of the Indenture Noteholders,
the Class B Noteholders and the Certificateholders, shall establish
and maintain in the name of the Indenture Trustee an Eligible Deposit
Account (the "Negative Carry Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit
of the Indenture Noteholders, the Class B Noteholders and the
Certificateholders.
(b) Funds on deposit in the Collection Account, the Note Distribution
Account, the Spread Account, the Pre-Funding Account and the Negative Carry
Account (collectively, the "Trust Accounts") shall be invested or
reinvested by the Indenture Trustee in Eligible Investments selected by and
as directed in writing by the Servicer (which written direction may be in
the form of standing instructions); provided, however, it is understood and
agreed that the Indenture Trustee shall not be liable for the selection of,
or any loss arising from such investment in, Eligible Investments. All such
Eligible Investments shall be held by the Indenture Trustee for the benefit
of the Indenture Noteholders, the Class B Noteholders and the
Certificateholders or the Noteholders, as applicable; provided, that on
each Transfer Date, all Investment Earnings on funds on deposit therein
shall be deposited into the Collection Account and shall be deemed to
constitute a portion of the Total Distribution Amount. Other than as
permitted by the Rating Agencies, funds on deposit in the Trust Accounts
shall be invested in Eligible Investments that will mature so that such
funds will be available at the close of business on the Transfer Date
preceding the following Payment Date; provided, however, that funds on
deposit in Trust Accounts may be invested in Eligible Investments of the
entity serving as Indenture Trustee that may mature so that such funds will
be available on the Payment Date. Funds deposited in a Trust Account on the
Transfer Date that precedes a Payment Date upon the maturity of any
Eligible Investments are not required to be invested overnight.
(c)(i) The Indenture Trustee and the Collateral Agent (as their
respective interests may appear) shall possess all right, title and
interest in all funds on deposit from time to time in the Trust Accounts
and in all proceeds thereof (including all income thereon) and all such
funds, investments, proceeds and income shall be part of the Trust Estate.
The Trust Accounts shall be under the sole dominion and control of the
Indenture Trustee for the benefit of the Indenture Noteholders, the Class B
Noteholders and the Certificateholders or the Noteholders, as the case may
be. If, at any time, any of the Trust Accounts ceases to be an Eligible
Deposit Account, the Indenture Trustee (or the Servicer on its behalf)
shall within 10 Business Days (or such longer period, not to exceed 30
calendar days, as to which each Rating Agency may consent) establish a new
Trust Account as an Eligible Deposit Account and shall transfer any cash
and/or any investments held in the no-longer Eligible Deposit Account to
such new Trust Account.
(ii) With respect to the Trust Account Property, the Indenture
Trustee agrees, by its acceptance hereof, that:
(A) any Trust Account Property that is held in deposit
accounts shall be held solely in Eligible Deposit Accounts,
subject to the last sentence of Section 5.1(c)(i); and each such
Eligible Deposit Account shall be subject to the exclusive
custody and control of the Indenture Trustee, and the Indenture
Trustee shall have sole signature authority with respect
thereto;
(B) any Trust Account Property that constitutes Physical
Property shall be delivered to the Indenture Trustee in
accordance with clause (a) of the definition of "Delivery" and
shall be held, pending maturity or disposition, solely by the
Indenture Trustee or a financial intermediary (as such term is
defined in Section 8-313(4) of the UCC) acting solely for the
Indenture Trustee;
(C) any Trust Account Property that is a book-entry
security held through the Federal Reserve System pursuant to
Federal book-entry regulations shall be delivered in accordance
with clause (b) of the definition of "Delivery" and shall be
maintained by the Indenture Trustee, pending maturity or
disposition, through continued book-entry registration of such
Trust Account Property as described in such clause; and
(D) any Trust Account Property that is an "uncertificated
security" under Article 8 of the UCC and that is not governed by
clause (C) shall be delivered to the Indenture Trustee in
accordance with clause (c) of the definition of "Delivery" and
shall be maintained by the Indenture Trustee, pending maturity
or disposition, through continued registration of the Indenture
Trustee's (or its nominee's) ownership of such security.
(iii) The Servicer shall have the power, revocable by the
Indenture Trustee or by the Trustee, with the consent of the Indenture
Trustee, to instruct the Indenture Trustee to make withdrawals and
payments from the Trust Accounts for the purpose of permitting the
Servicer or the Trustee to carry out its respective duties hereunder
or permitting the Indenture Trustee to carry out its duties under the
Indenture.
(d) All Trust Accounts will initially be established at the Indenture
Trustee.
SECTION 5.2. Collections. The Servicer shall remit within two
Business Days of receipt thereof to the Collection Account all payments by
or on behalf of the Obligors with respect to the Receivables, and all
Liquidation Proceeds, both as collected during the Collection Period.
Notwithstanding the foregoing, for so long as: (i) Credit remains the
Servicer, (ii) no Servicer Default shall have occurred and be continuing
and (iii) prior to ceasing daily remittances, the Rating Agency Condition
shall have been satisfied (and any conditions or limitations imposed by the
Rating Agencies in connection therewith are complied with), the Servicer
shall remit such collections with respect to the related Collection Period
to the Collection Account on the Transfer Date immediately following the
end of such Collection Period. For purposes of this Article V, the phrase
"payments by or on behalf of the Obligors" shall mean payments made with
respect to the Receivables by Persons other than the Servicer or the
Seller.
SECTION 5.3. Application of Collections. (a) With respect to each
Receivable, all collections for the Collection Period shall be applied to
the related Scheduled Payment.
(b) All Liquidation Proceeds shall be applied to the related
Receivable.
SECTION 5.4. Additional Deposits. The Servicer and the Seller shall
deposit or cause to be deposited in the Collection Account the aggregate
Purchase Amount with respect to Purchased Receivables on the Transfer Date
related to the Collection Period on the last day of which the purchase
occurs, and the Servicer shall deposit therein all amounts to be paid under
Section 9.1 on the Transfer Date falling in the Collection Period referred
to in Section 9.1. The Servicer will deposit the aggregate Purchase Amount
with respect to Purchased Receivables when such obligations are due, unless
the Servicer shall not be required to make daily deposits pursuant to
Section 5.2, in which case such deposits shall be made on the Transfer Date
following the related Collection Period.
SECTION 5.5. Distributions. (a) On each Determination Date, the
Servicer shall calculate all amounts required to determine the amounts to
be deposited in the Note Distribution Account, the Certificate Distribution
Account and the Spread Account.
(b) On each Payment Date, the Servicer shall instruct the Indenture
Trustee (based on the information contained in the Servicer's Certificate
delivered on the related Determination Date pursuant to Section 4.8) to
make the following deposits and distributions for receipt by the Servicer
or deposit in the applicable Trust Account or Certificate Distribution
Account, as applicable, by 10:00 a.m. (New York time), to the extent of the
Total Distribution Amount, in the following order of priority:
(i) to the Servicer, if other than Credit or an Affiliate of
Credit, the Servicing Fee and all unpaid Servicing Fees owed to such
Servicer from prior Collection Periods;
(ii) to the Administrator, from the Interest Distribution
Amount, the Administration Fee and all unpaid Administration Fees from
prior Collection Periods;
(iii) to the Note Distribution Account, the Indenture
Noteholders' Interest Distributable Amount;
(iv) to the Note Distribution Account, the A-1 Noteholders'
Principal Distributable Amount;
(v) to the Note Distribution Account, the A-2 Noteholders'
Principal Distributable Amount;
(vi) to the Note Distribution Account, the A-3 Noteholders'
Principal Distributable Amount;
(vii) to the Note Distribution Account, the Class B Noteholders'
Interest Distributable Amount;
(viii) to the Note Distribution Account, the Class B
Noteholders' Principal Distributable Amount;
(ix) to the Certificate Distribution Account, the
Certificateholders' Interest Distributable Amount;
(x) to the Certificate Distribution Account, the
Certificateholders' Principal Distributable Amount;
(xi) to the Servicer, if the Servicer is Credit or an Affiliate
of Credit, the Servicing Fee and all unpaid Servicing Fees from prior
Collection Periods; and
(xii) to the Spread Account, the remaining Total Distribution
Amount.
SECTION 5.6. Spread Account. (a) On the Closing Date and on each
Subsequent Transfer Date, the Seller shall deposit the applicable Spread
Account Initial Deposit into the Spread Account.
(b)(i) If the amount on deposit in the Spread Account on any Payment
Date (after giving effect to all deposits or withdrawals therefrom on such
Payment Date), prior to the July 1997 Payment Date (or following the
payment of the Indenture Notes and the Class B Notes in full) is greater
than the Specified Spread Account Balance for such Payment Date, the
Servicer shall instruct the Indenture Trustee to distribute the amount of
the excess to the Seller (and its transferees and assignees in accordance
with their respective interests); provided, that if, after giving effect to
all payments made on the Indenture Notes, Class B Notes and Certificates on
such Payment Date, the sum of the Pool Balance and the Pre-Funded Amount as
of the first day of the Collection Period in which such Payment Date occurs
is less than the sum of the Outstanding Amount of the Indenture Notes, the
outstanding principal amount of the Class B Notes and the Certificate
Balance, such excess shall not be distributed to the Seller (or such
transferees or assignees) and shall be retained in the Spread Account for
application in accordance with this Agreement. Amounts properly distributed
pursuant to this Section 5.6(b)(i) shall be deemed released from the Trust
and the security interest therein granted to the Indenture Trustee, and the
Seller (and such transferees and assignees) shall in no event thereafter be
required to refund any such distributed amounts.
(ii) On any Payment Date on and after the July 1997 Payment
Date, if the amount on deposit in the Spread Account (after giving
effect to all deposits or withdrawals therefrom on such Payment Date,
other than withdrawals described in this sentence) is greater than the
Specified Spread Account Balance for such Payment Date, and to the
extent that the Indenture Notes and the Class B Notes have not been
repaid in full, the Servicer shall instruct the Indenture Trustee to
deposit the amount of the excess in the Note Distribution Account for
distribution to the Indenture Noteholders or the Class B Noteholders
as an accelerated payment of principal, such amount to be distributed
(A) first to the Holders of the A-1 Notes until the same have been
paid in full, (B) then to the Holders of the A-2 Notes until the same
have been paid in full and (C) then to the Holders of the A-3 Notes
and the Class B Noteholders, pro rata in accordance with their
respective outstanding principal amounts, until the A-3 Notes and the
Class B Notes have been paid in full; provided, that if at any time
the amount on deposit in the Spread Account is less than the Spread
Account Floor, then amounts available for distribution pursuant to
clause (C) shall instead be distributed (x) to the Holders of the A-3
Notes until the same have been paid in full and (y) then, to the Class
B Noteholders until the Class B Notes have been paid in full.
(c) Following: (i) the payment in full of the aggregate Outstanding
Amount of the Indenture Notes, the outstanding principal amount of the
Class B Notes and the Certificate Balance and of all other amounts owing or
to be distributed hereunder or under the Indenture, the Class B Note
Purchase Agreement or the Trust Agreement to Indenture Noteholders, Class
B Noteholders, Certificateholders, the Trustee and the Indenture Trustee
and (ii) the termination of the Trust, any amount remaining on deposit in
the Spread Account shall be distributed to the Seller or any transferee or
assignee pursuant to clause (g). The Seller (and such transferees and
assignees) shall in no event be required to refund any amounts properly
distributed pursuant to this Section 5.6(c).
(d) In the event that the Noteholders' Distributable Amount for a
Payment Date exceeds the amount deposited into the Note Distribution
Account pursuant to Sections 5.5(b)(iii), (iv), (v), (vi), (vii) and (viii)
on such Payment Date, the Servicer shall instruct the Indenture Trustee on
such Payment Date to withdraw from the Spread Account on such Payment Date
an amount equal to such excess, to the extent of funds available therein
(but subject to clause (f)), and deposit such amount into the Note
Distribution Account.
(e) In the event that the Certificateholders' Distributable Amount
for a Payment Date exceeds the amount deposited in the Certificate
Distribution Account pursuant to Sections 5.5(b)(ix) and (x) on such
Payment Date, the Servicer shall instruct the Indenture Trustee on such
Payment Date to withdraw from the Spread Account on such Payment Date an
amount equal to such excess, to the extent of funds available therein after
giving effect to paragraph (d) above (but subject to clause (f)), and
deposit such amount into the Certificate Distribution Account.
(f) Notwithstanding clauses (d) and (e), if on any Payment Date on
which any Indenture Notes are outstanding the amount on deposit in the
Spread Account is less than 1.50% of the Pool Balance as of the end of the
preceding Collection Period, then funds will be withdrawn from the Spread
Account only to the extent needed to pay the interest due on the Indenture
Notes, the Class B Notes and the Certificates and no funds from the Spread
Account will be applied on such Payment Date to principal of the Indenture
Notes, the Class B Notes or the Certificates.
(g) The Seller may at any time, without consent of the Indenture
Noteholders, Class B Noteholders or Certificateholders, sell, transfer,
convey or assign in any manner its rights to and interests in distributions
from the Spread Account, including interest and other investment earnings
thereon; provided, that: (i) the Rating Agency Condition is satisfied, (ii)
the Seller provides to the Trustee and the Indenture Trustee an Opinion of
Counsel from independent counsel that such action will not cause the Trust
to be treated as an association (or publicly traded partnership) taxable as
a corporation for Federal income tax purposes and (iii) such transferee or
assignee agrees in writing to take positions for tax purposes consistent
with the tax positions agreed to be taken by the Seller.
SECTION 5.7. Pre-Funding Account. (a) On the Closing Date, the
Trustee will deposit, on behalf of the Seller, in the Pre-Funding Account
$407,574,714 from the net proceeds of the sale of the Indenture Notes, the
Class B Notes and the Certificates. On each Subsequent Transfer Date, the
Servicer shall instruct the Indenture Trustee to withdraw from the
Pre-Funding Account (or, once the balance on deposit in the Pre-Funding
Account has been reduced to zero, will cause the Issuer to make available
from the proceeds of issuance of Class B Notes) an amount equal to: (i) the
aggregate Contract Value of the Subsequent Receivables transferred to the
Issuer on such Subsequent Transfer Date less the Spread Account Initial
Deposit for such Subsequent Transfer Date, and distribute such amount to or
upon the order of the Seller upon satisfaction of the conditions set forth
in Section 2.2(b) with respect to such transfer, and (ii) the Spread
Account Initial Deposit for such Subsequent Transfer Date and, on behalf of
the Seller, deposit such amount in the Spread Account.
(b) If: (i) the Pre-Funded Amount has not been reduced to zero on the
Payment Date on which the Funding Period ends (or, if the Funding Period
does not end on a Payment Date, on the first Payment Date following the end
of the Funding Period) or (ii) the Pre-Funded Amount has been reduced to
$100,000 or less on any Determination Date, in either case after giving
effect to any reductions in the Pre-Funded Amount on such date pursuant to
paragraph (a), the Servicer shall instruct the Indenture Trustee to
withdraw from the Pre-Funding Account, in the case of clause (i), on such
Payment Date or, in the case of clause (ii), on the Payment Date
immediately succeeding such Determination Date, the amount remaining at the
time in the Pre-Funding Account (such remaining amount being the "Remaining
Pre-Funded Amount") and deposit such amounts in the Note Distribution
Account and the Certificate Distribution Account, as applicable, so that
such amounts are payable: (A) first, to the A-1 Noteholders, (B) second, to
the A-2 Noteholders and (C) third, to the A-3 Noteholders, the Class B
Noteholders and the Certificateholders (in the same proportions as would
apply to a distribution of the Principal Distribution Amount). If the
Remaining Pre-Funded Amount is greater than $100,000, the Seller will: (1)
deposit into the Note Distribution Account an amount equal to the sum of
the Indenture Noteholders' Prepayment Premium and any Class B Noteholders'
Prepayment Premium and (2) deposit into the Certificate Distribution
Account an amount equal to the Certificateholders' Prepayment Premium;
provided, that the Seller shall be liable for the payment of the Indenture
Noteholders' Prepayment Premium, the Class B Noteholders' Prepayment
Premium and the Certificateholders' Prepayment Premium solely to the extent
the Seller receives such amounts from Credit pursuant to Section 5.6 of the
Purchase Agreement.
SECTION 5.8. Negative Carry Account. On the Closing Date, the Seller
shall deposit the Negative Carry Account Initial Deposit into the Negative
Carry Account. On each Payment Date, the Servicer will instruct the
Indenture Trustee to withdraw from the Negative Carry Account and deposit
into the Collection Account an amount equal to the Negative Carry Amount
for such Collection Period. If the amount on deposit in the Negative Carry
Account on any Payment Date (after giving effect to the withdrawal
therefrom of the Negative Carry Amount for such Payment Date) is greater
than the Required Negative Carry Account Balance, the excess will be
released to the Seller.
SECTION 5.9. [Intentionally Omitted].
SECTION 5.10. Statements to Certificateholders and Noteholders. (a)
On each Determination Date the Servicer shall provide to the Indenture
Trustee (with a copy to the Rating Agencies), for the Indenture Trustee to
forward to each Noteholder of record, and to the Trustee, for the Trustee
to forward to each Certificateholder of record, a statement substantially
in the form of Exhibits A and B, respectively, setting forth at least the
following information as to each Class of the Notes and the Certificates to
the extent applicable:
(i) the amount of such distribution allocable to principal of
each Class of Notes;
(ii) the amount of the distribution allocable to interest of
each Class of Notes;
(iii) the amount of the distribution allocable to principal of
the Certificates;
(iv) the amount of the distribution allocable to interest of the
Certificates;
(v) the Pool Balance as of the close of business on the last day
of the preceding Collection Period;
(vi) the aggregate Outstanding Amount and the Note Pool Factor
for each Class of Notes, and the Certificate Balance and the
Certificate Pool Factor as of such Payment Date, after giving effect
to payments allocated to principal reported under clauses (i) and
(iii) above;
(vii) the amount of the Servicing Fee paid to the Servicer with
respect to the preceding Collection Period;
(viii) the amount of the Administration Fee paid to the
Administrator in respect of the preceding Collection Period;
(ix) the amount of the aggregate Realized Losses, if any, for
such Collection Period;
(x) the aggregate Purchase Amounts for Receivables, if any, that
were repurchased or purchased in such Collection Period;
(xi) the balance of the Spread Account on such Payment Date,
after giving effect to changes therein on such Payment Date;
(xii) for Payment Dates during the Funding Period, the remaining
Pre-Funded Amount;
(xiii) for the final Payment Date with respect to the Funding
Period, the amount of any remaining Pre-Funded Amount that has not
been used to fund the purchase of Subsequent Receivables;
(xiv) [intentionally omitted]; and
(xv) the balance of the Negative Carry Account on such Payment
Date, after giving effect to changes therein on such Payment Date.
Each amount set forth pursuant to clauses (i), (ii), (iii), (iv), (vii) and
(viii) shall be expressed as a dollar amount per $1,000 of original
principal balance of a Certificate or Note, as applicable.
SECTION 5.11. Net Deposits. As an administrative convenience, unless
the Servicer is required to remit collections daily, the Servicer will be
permitted to make the deposit of collections net of distributions, if any,
to be made to the Servicer with respect to the Collection Period. The
Servicer, however, will account to the Trustee, the Indenture Trustee, the
Indenture Noteholders, the Class B Noteholders and the Certificateholders
as if all deposits, distributions and transfers were made individually.
ARTICLE VI
The Seller
SECTION 6.1. Representations of Seller. The Seller makes the
following representations on which the Issuer is deemed to have relied in
acquiring the Receivables. The representations speak as of the execution
and delivery of this Agreement and shall survive the sale of the
Receivables to the Issuer and the pledge thereof to the Indenture Trustee
pursuant to the Indenture.
(a) Organization and Good Standing. The Seller is duly
organized and validly existing as a corporation in good standing under
the laws of the State of Delaware, with the corporate power and
authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently
conducted, and had at all relevant times, and has, the corporate
power, authority and legal right to acquire, own and sell the
Receivables.
(b) Due Qualification. The Seller is duly qualified to do
business as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals, in all jurisdictions in which
the ownership or lease of property or the conduct of its business
shall require such qualifications.
(c) Power and Authority. The Seller has the power and authority
to execute and deliver this Agreement and to carry out its terms; the
Seller has full power and authority to sell and assign the property to
be sold and assigned to and deposited with the Issuer and has duly
authorized such sale and assignment to the Issuer by all necessary
corporate action; and the execution, delivery and performance of this
Agreement have been, and the execution, delivery and performance of
each Subsequent Transfer Assignment have been or will be on or before
the related Subsequent Transfer Date, duly authorized by the Seller by
all necessary corporate action.
(d) Binding Obligation. This Agreement constitutes, and each
Subsequent Transfer Assignment when executed and delivered by the
Seller will constitute, a legal, valid and binding obligation of the
Seller enforceable in accordance with their terms.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
do not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time)
a default under, the certificate of incorporation or by-laws of the
Seller, or any indenture, agreement or other instrument to which the
Seller is a party or by which it shall be bound; or result in the
creation or imposition of any Lien upon any of its properties pursuant
to the terms of any such indenture, agreement or other instrument
(other than the Basic Documents); or violate any law or, to the best
of the Seller's knowledge, any order, rule or regulation applicable to
the Seller of any court or of any Federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Seller or its properties.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the Seller's best knowledge, threatened, before any
court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties:
(i) asserting the invalidity of this Agreement, the Indenture or any
of the other Basic Documents, the Indenture Notes, the Class B Notes
or the Certificates, (ii) seeking to prevent the issuance of the
Indenture Notes, the Class B Notes or the Certificates or the
consummation of any of the transactions contemplated by this
Agreement, the Indenture or any of the other Basic Documents, (iii)
seeking any determination or ruling that could reasonably be expected
to materially and adversely affect the performance by the Seller of
its obligations under, or the validity or enforceability of, this
Agreement, the Indenture, any of the other Basic Documents, the
Indenture Notes, the Class B Notes or the Certificates or (iv) that
might adversely affect the Federal or state income tax attributes of
the Indenture Notes, the Class B Notes or the Certificates.
SECTION 6.2. Corporate Existence. (a) During the term of this
Agreement, the Seller will keep in full force and effect its existence,
rights and franchises as a corporation under the laws of the jurisdiction
of its incorporation and will obtain and preserve its qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, the
Basic Documents and each other instrument or agreement necessary or
appropriate to the proper administration of this Agreement and the
transactions contemplated hereby.
(b) During the term of this Agreement, the Seller shall observe the
applicable legal requirements for the recognition of the Seller as a legal
entity separate and apart from its Affiliates, including as follows:
(i) the Seller shall maintain corporate records and books of
account separate from those of its Affiliates;
(ii) except as otherwise provided in this Agreement and similar
arrangements relating to other securitizations, the Seller shall not
commingle its assets and funds with those of its Affiliates;
(iii) the Seller shall hold such appropriate meetings or obtain
such appropriate consents of its Board of Directors as are necessary
to authorize all the Seller's corporate actions required by law to be
authorized by the Board of Directors, shall keep minutes of such
meetings and of meetings of its stockholder(s) and observe all other
customary corporate formalities (and any successor Seller not a
corporation shall observe similar procedures in accordance with its
governing documents and applicable law);
(iv) the Seller shall at all times hold itself out to the public
under the Seller's own name as a legal entity separate and distinct
from its Affiliates; and
(v) all transactions and dealings between the Seller and its
Affiliates will be conducted on an arm's-length basis.
SECTION 6.3. Liability of Seller; Indemnities. The Seller shall be
liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Seller under this Agreement.
(a) The Seller shall indemnify, defend and hold harmless the
Issuer, the Trustee, the Class B Agent and the Indenture Trustee (and
their officers, directors, employees and agents) from and against any
taxes that may at any time be asserted against any of them with
respect to the sale of the Receivables to the Issuer or the issuance
and original sale of the Certificates, the Class B Notes and the
Indenture Notes, including any sales, gross receipts, general
corporation, tangible personal property, privilege or license taxes
(but, in the case of the Issuer, not including any taxes asserted with
respect to ownership of the Receivables or Federal or other income
taxes arising out of the transactions contemplated by this Agreement)
and costs and expenses in defending against the same.
(b) The Seller shall indemnify, defend and hold harmless the
Issuer, the Trustee, the Class B Agent and the Indenture Trustee (and
their officers, directors, employees and agents) from and against any
loss, liability or expense incurred by reason of: (i) the Seller's
willful misfeasance, bad faith or negligence in the performance of its
duties under this Agreement, or by reason of reckless disregard of its
obligations and duties under this Agreement and (ii) the Seller's or
the Issuer's violation of Federal or State securities laws in
connection with the offering and sale of the Indenture Notes, the
Class B Notes and the Certificates.
Indemnification under this Section shall survive the resignation or
removal of the Trustee or the Indenture Trustee or the termination of this
Agreement and the Indenture and shall include reasonable fees and expenses
of counsel and expenses of litigation. If the Seller shall have made any
indemnity payments pursuant to this Section and the Person to or on behalf
of whom such payments are made thereafter shall collect any of such amounts
from others, such Person shall promptly repay such amounts to the Seller,
without interest.
SECTION 6.4. Merger or Consolidation of, or Assumption of the
Obligations of, Seller. Any Person: (a) into which the Seller may be merged
or consolidated, (b) that may result from any merger or consolidation to
which the Seller shall be a party or (c) that may succeed to the properties
and assets of the Seller substantially as a whole, which Person (in any of
the foregoing cases) executes an agreement of assumption to perform every
obligation of the Seller under this Agreement (or is deemed by law to have
assumed such obligations), shall be the successor to the Seller hereunder
without the execution or filing of any document or any further act by any
of the parties to this Agreement; provided, however, that: (i) immediately
after giving effect to such transaction, no representation or warranty made
pursuant to Section 3.1 shall have been breached and no Servicer Default,
and no event that, after notice or lapse of time, or both, would become a
Servicer Default shall have occurred and be continuing, (ii) the Seller
shall have delivered to the Trustee and the Indenture Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such consolidation,
merger or succession and such agreement of assumption comply with this
Section and that all conditions precedent, if any, provided for in this
Agreement relating to such transaction have been complied with, (iii) the
Rating Agency Condition shall have been satisfied with respect to such
transaction and (iv) the Seller shall have delivered to the Trustee and the
Indenture Trustee an Opinion of Counsel either: (A) stating that, in the
opinion of such counsel, all financing statements, continuation statements
and amendments thereto have been executed and filed that are necessary
fully to preserve and protect the interest of the Trustee and Indenture
Trustee, respectively, in the Receivables and reciting the details of such
filings, or (B) stating that, in the opinion of such counsel, no such
action shall be necessary to preserve and protect such interests.
Notwithstanding anything herein to the contrary, the execution of the
foregoing agreement of assumption and compliance with clauses (i), (ii),
(iii) and (iv) shall be conditions to the consummation of the transactions
referred to in clauses (a), (b) or (c).
SECTION 6.5. Limitation on Liability of Seller and Others. The Seller
and any director, officer, employee or agent of the Seller may rely in good
faith on the advice of counsel or on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters
arising hereunder. The Seller shall not be under any obligation to appear
in, prosecute or defend any legal action that shall not be incidental to
its obligations under this Agreement, and that in its opinion may involve
it in any expense or liability.
SECTION 6.6. Seller May Own Certificates or Notes. The Seller and any
Affiliate thereof may in its individual or any other capacity become the
owner or pledgee of Certificates, Class B Notes or Indenture Notes with the
same rights as it would have if it were not the Seller or an Affiliate
thereof, except as expressly provided herein or in any other Basic
Document.
ARTICLE VII
The Servicer
SECTION 7.1. Representations of Servicer. The Servicer makes the
following representations on which the Issuer is deemed to have relied in
acquiring the Receivables. The representations speak as of the execution
and delivery of the Agreement and as of the Closing Date, in the case of
the Initial Receivables, and as of the applicable Subsequent Transfer Date,
in the case of the Subsequent Receivables, and shall survive the sale of
the Receivables to the Issuer and the pledge thereof to the Indenture
Trustee pursuant to the Indenture.
(a) Organization and Good Standing. The Servicer is duly
organized and validly existing as a corporation in good standing under
the laws of the state of its incorporation, with the corporate power
and authority to own its properties and to conduct its business as
such properties are currently owned and such business is presently
conducted, and had at all relevant times, and has, the power,
authority and legal right to acquire, own, sell and service the
Receivables and to hold the Receivable Files as custodian.
(b) Due Qualification. The Servicer is duly qualified to do
business as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals, in all jurisdictions in which
the ownership or lease of property or the conduct of its business
(including the servicing of the Receivables as required by this
Agreement) shall require such qualifications.
(c) Power and Authority. The Servicer has the corporate power
and authority to execute and deliver this Agreement and to carry out
its terms; and the execution, delivery and performance of this
Agreement have been duly authorized by the Servicer by all necessary
corporate action.
(d) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of the Servicer enforceable against the
Servicer in accordance with its terms.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
shall not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time)
a default under, the articles of incorporation or by-laws of the
Servicer, or any indenture, agreement or other instrument to which the
Servicer is a party or by which it shall be bound; or result in the
creation or imposition of any Lien upon any of its properties pursuant
to the terms of any such indenture, agreement or other instrument
(other than this Agreement); or violate any law or, to the best of the
Servicer's knowledge, any order, rule or regulation applicable to the
Servicer of any court or of any Federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Servicer or its properties.
(f) No Proceedings. There are no proceedings or investigations
pending, or, to the Servicer's best knowledge, threatened, before any
court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Servicer or its
properties: (i) asserting the invalidity of this Agreement, the
Indenture, any of the other Basic Documents, the Indenture Notes, the
Class B Notes or the Certificates, (ii) seeking to prevent the
issuance of the Indenture Notes, the Class B Notes or the Certificates
or the consummation of any of the transactions contemplated by this
Agreement, the Indenture or any of the other Basic Documents, (iii)
seeking any determination or ruling that could reasonably be expected
to materially and adversely affect the performance by the Servicer of
its obligations under, or the validity or enforceability of, this
Agreement, the Indenture, any of the other Basic Documents, the
Indenture Notes, the Class B Notes or the Certificates or (iv)
relating to the Servicer and that might adversely affect the Federal
or state income tax attributes of the Indenture Notes, the Class B
Notes or the Certificates.
(g) No Insolvent Obligors. As of the Initial Cutoff Date or, in
the case of the Subsequent Receivables, as of the related Subsequent
Cutoff Date, no Obligor is shown on the Receivable Files as the
subject of a bankruptcy proceeding.
SECTION 7.2. Indemnities of Servicer. The Servicer shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer under this Agreement.
(a) The Servicer shall defend, indemnify and hold harmless the
Issuer, the Trustee, the Class B Agent, the Indenture Trustee, the
Indenture Noteholders, the Class B Noteholders, the Certificateholders
and the Seller (and any of their officers, directors, employees and
agents) from and against any and all costs, expenses, losses, damages,
claims and liabilities, arising out of or resulting from:
(i) the use, ownership or operation by the Servicer or any
Affiliate thereof of any of the Financed Equipment;
(ii) any taxes that may at any time be asserted against any
such Person with respect to the transactions contemplated
herein, including any sales, gross receipts, general
corporation, tangible personal property, privilege or license
taxes (but, in the case of the Issuer, not including any taxes
asserted with respect to, and as of the date of, the sale of the
Receivables to the Issuer or the issuance and original sale of
the Certificates, the Class B Notes and the Indenture Notes, or
asserted with respect to ownership of the Receivables, or
Federal or other income taxes arising out of distributions on
the Certificates, the Class B Notes or the Indenture Notes) and
costs and expenses in defending against the same; and
(iii) the negligence, willful misfeasance or bad faith of
the Servicer in the performance of its duties under this
Agreement or by reason of reckless disregard of its obligations
and duties under this Agreement.
(b) The Servicer shall indemnify, defend and hold harmless the
Trustee, the Indenture Trustee and the Class B Agent (and their
respective officers, directors, employees and agents) from and against
all costs, expenses, losses, claims, damages and liabilities arising
out of or incurred in connection with the acceptance or performance of
the trusts and duties herein and, in the case of the Trustee, in the
Trust Agreement contained, and, in the case of the Indenture Trustee,
in the Indenture contained, except to the extent that such cost,
expense, loss, claim, damage or liability:
(i) shall be due to the willful misfeasance, bad faith or
negligence (except for errors in judgment) of the Trustee or the
Indenture Trustee as applicable; or
(ii) shall arise from the breach by the Trustee of any of
its representations or warranties set forth in Section 7.3 of
the Trust Agreement.
(c) The Servicer shall pay any and all taxes levied or assessed
upon all or any part of the Trust Estate.
(d) The Servicer shall pay the Indenture Trustee and the Trustee
from time to time reasonable compensation for all services rendered by
the Indenture Trustee under the Indenture or by the Trustee under the
Trust Agreement (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust).
(e) The Servicer shall, except as otherwise expressly provided
in the Indenture or the Trust Agreement, reimburse either the
Indenture Trustee or the Trustee, respectively, upon its request for
all reasonable expenses, disbursements and advances incurred or made
in accordance with the Indenture or the Trust Agreement, respectively,
(including the reasonable compensation, expenses and disbursements of
its agents and either in-house counsel or outside counsel, but not
both), except any such expense, disbursement or advance as may be
attributable to the Indenture Trustee's or the Trustee's, respectively
negligence, bad faith or willful misfeasance.
For purposes of this Section, in the event of the termination of the
rights and obligations of the Servicer pursuant to Section 8.1, or a
resignation by the Servicer pursuant to this Agreement, the Servicer shall
be deemed to be the Servicer pending appointment of a successor Servicer
pursuant to Section 8.2.
Indemnification under this Section shall survive the resignation or
removal of the Trustee or the Indenture Trustee or the termination of this
Agreement, the Trust Agreement and the Indenture and shall include
reasonable fees and expenses of counsel and expenses of litigation. If the
Servicer shall have made any indemnity payments pursuant to this Section
and the Person to or on behalf of whom such payments are made thereafter
collects any of such amounts from others, such Person shall promptly repay
such amounts to the Servicer, without interest.
SECTION 7.3. Merger or Consolidation of, or Assumption of the
Obligations of, Servicer. Any Person: (a) into which the Servicer may be
merged or consolidated, (b) that may result from any merger or
consolidation to which the Servicer shall be a party, or (c) that may
succeed to the properties and assets of the Servicer substantially as a
whole, which Person (in any of the foregoing circumstances) executes an
agreement of assumption to perform every obligation of the Servicer
hereunder (or is deemed by law to have assumed such obligations), shall be
the successor to the Servicer under this Agreement without further act on
the part of any of the parties to this Agreement; provided, however, that:
(i) immediately after giving effect to such transaction, no Servicer
Default, and no event that, after notice or lapse of time, or both, would
become a Servicer Default shall have occurred and be continuing, (ii) the
Servicer shall have delivered to the Trustee and Indenture Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger or succession and such agreement of assumption comply
with this Section and that all conditions precedent, if any, provided for
in this Agreement relating to such transaction have been complied with,
(iii) the Rating Agencies shall have received at least ten days' prior
written notice of such transaction and (iv) the Servicer shall have
delivered to the Trustee and the Indenture Trustee an Opinion of Counsel
either: (A) stating that, in the opinion of such counsel, all financing
statements, continuation statements and amendments thereto have been
executed and filed that are necessary fully to preserve and protect the
interest of the Trustee and the Indenture Trustee, respectively, in the
Receivables and reciting the details of such filings, or (B) stating that,
in the opinion of such counsel, no such action shall be necessary to
preserve and protect such interests. Notwithstanding anything herein to the
contrary, the execution of the foregoing agreement of assumption and
compliance with clauses (i), (ii), (iii) and (iv) shall be conditions to
the consummation of the transactions referred to in clauses (a), (b) or
(c).
SECTION 7.4. Limitation on Liability of Servicer and Others. Neither
the Servicer nor any of the directors, officers, employees or agents of the
Servicer shall be under any liability to the Issuer, the Indenture
Noteholders, the Class B Noteholders or the Certificateholders, except as
provided under this Agreement, for any action taken or for refraining from
the taking of any action pursuant to this Agreement or for errors in
judgment; provided, however, that this provision shall not protect the
Servicer or any such Person against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in the
performance of its duties or by reason of reckless disregard of obligations
and duties under this Agreement. The Servicer and any director, officer,
employee or agent of the Servicer may rely in good faith on the advice of
counsel or on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder.
Except as provided in this Agreement, the Servicer shall not be under
any obligation to appear in, prosecute or defend any legal action that
shall not be incidental to its duties to service the Receivables in
accordance with this Agreement, and that in its opinion may involve it in
any expense or liability; provided, however, that the Servicer may
undertake any reasonable action that it may deem necessary or desirable in
respect of this Agreement, the Basic Documents and the rights and duties of
the parties to this Agreement, the other Basic Documents and the interests
of the Certificateholders and the Class B Noteholders under this Agreement
and the Indenture Noteholders under the Indenture.
SECTION 7.5. Credit Not to Resign as Servicer. Subject to Section
7.3, Credit shall not resign from the obligations and duties imposed on it
as Servicer under this Agreement except upon determination that the
performance of its duties under this Agreement shall no longer be
permissible under applicable law. Notice of any such determination shall be
communicated to the Trustee and the Indenture Trustee at the earliest
practicable time (and, if such communication is not in writing, shall be
confirmed in writing at the earliest practicable time) and any such
determination shall be evidenced by an Opinion of Counsel to such effect
delivered to the Trustee and the Indenture Trustee concurrently with or
promptly after such notice. No such resignation shall become effective
until the Indenture Trustee or a successor Servicer shall have assumed the
responsibilities and obligations of Credit in accordance with Section 8.2.
SECTION 7.6. Servicer to Act as Administrator. In the event of the
resignation or removal of the Administrator and the failure of a successor
Administrator to have been appointed and to have accepted such appointment
as successor Administrator, the Servicer shall become the successor
Administrator and shall be bound by the terms of the Administration
Agreement.
ARTICLE VIII
Default
SECTION 8.1. Servicer Default. If any one of the following events (a
"Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to deliver to the Indenture
Trustee for deposit in any of the Trust Accounts or the Certificate
Distribution Account any required payment or to direct the Indenture
Trustee or the Trustee to make any required distributions therefrom,
which failure continues unremedied for three Business Days after
written notice of such failure is received by the Servicer from the
Trustee or the Indenture Trustee or after discovery of such failure by
an officer of the Servicer;
(b) any failure by the Servicer or the Seller, as the case may
be, duly to observe or to perform in any material respect any other
covenants or agreements (other than as set forth in clause (a)) of the
Servicer or the Seller (as the case may be) set forth in this
Agreement or any other Basic Document, which failure shall: (i)
materially and adversely affect the rights of Certificateholders,
Class B Noteholders or Indenture Noteholders and (ii) continue
unremedied for a period of 60 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have
been given: (A) to the Servicer or the Seller (as the case may be) by
the Trustee or the Indenture Trustee or (B) to the Servicer or the
Seller (as the case may be) and to the Trustee and the Indenture
Trustee, by the Holders of Indenture Notes, the Class B Noteholders or
Certificateholders, as applicable, evidencing not less than 25% of the
Outstanding Amount of the Indenture Notes, 25% of the outstanding
principal amount of the Class B Notes or 25% of the Certificate
Balance; or
(c) an Insolvency Event occurs with respect to the Seller or the
Servicer;
then, and in each and every case, so long as the Servicer Default shall not
have been remedied, either the Indenture Trustee, or the Holders of
Indenture Notes evidencing not less than 25% of the Outstanding Amount of
the Indenture Notes, by notice then given in writing to the Servicer (and
to the Indenture Trustee and the Trustee if given by the Indenture
Noteholders), may terminate all the rights and obligations (other than the
obligations set forth in Section 7.2) of the Servicer under this Agreement.
On or after the receipt by the Servicer of such written notice, all
authority and power of the Servicer under this Agreement, whether with
respect to the Indenture Notes, the Class B Notes, the Certificates, the
Receivables or otherwise, shall, without further action, pass to and be
vested in the Indenture Trustee or such successor Servicer as may be
appointed under Section 8.2; and, without limitation, the Indenture Trustee
and the Trustee are hereby authorized and empowered to execute and deliver,
for the benefit of the predecessor Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer
and endorsement of the Receivables and related documents, or otherwise. The
predecessor Servicer shall cooperate with the successor Servicer, the
Indenture Trustee and the Trustee in effecting the termination of the
responsibilities and rights of the predecessor Servicer under this
Agreement, including the transfer to the successor Servicer for
administration by it of: (i) all cash amounts that shall at the time be
held by the predecessor Servicer for deposit, or shall thereafter be
received by it with respect to a Receivable and (ii) all Receivable Files.
All reasonable costs and expenses (including attorneys' fees) incurred in
connection with transferring the Receivable Files to the successor Servicer
and amending this Agreement to reflect its succession as Servicer shall be
paid by the predecessor Servicer upon presentation of reasonable
documentation of such costs and expenses. Upon receipt of notice of the
occurrence of a Servicer Default, the Trustee shall give notice thereof to
the Rating Agencies.
SECTION 8.2. Appointment of Successor Servicer. (a) Upon the
Servicer's receipt of notice of termination, pursuant to Section 8.1, or
the Servicer's resignation in accordance with this Agreement, the
predecessor Servicer shall continue to perform its functions as Servicer
under this Agreement, in the case of termination, only until the date
specified in such termination notice or, if no such date is specified in a
notice of termination, until receipt of such notice and, in the case of
resignation, until the later of: (x) the date 45 days from the delivery to
the Trustee and the Indenture Trustee of written notice of such resignation
(or written confirmation of such notice) in accordance with this Agreement
and (y) the date upon which the predecessor Servicer shall become unable to
act as Servicer, as specified in the notice of resignation and accompanying
Opinion of Counsel. In the event of the Servicer's termination hereunder,
the Issuer shall appoint a successor Servicer acceptable to the Indenture
Trustee, and the successor Servicer shall accept its appointment by a
written assumption in form acceptable to the Indenture Trustee. In the
event that a successor Servicer has not been appointed at the time when the
predecessor Servicer has ceased to act as Servicer in accordance with this
Section, the Indenture Trustee without further action shall automatically
be appointed the successor Servicer and shall be entitled to the Servicing
Fee. Notwithstanding the above, the Indenture Trustee shall, if it shall be
unable so to act, appoint or petition a court of competent jurisdiction to
appoint any established institution, having a net worth of not less than
$50,000,000 and whose regular business shall include the servicing of
receivables, as the successor to the Servicer under this Agreement.
(b) Upon appointment, the successor Servicer (including the Indenture
Trustee acting as successor Servicer) shall be the successor in all
respects to the predecessor Servicer (except with respect to
responsibilities and obligations of the predecessor Servicer set forth in
Section 7.2) and shall be subject to all the responsibilities, duties and
liabilities arising thereafter relating thereto placed on the predecessor
Servicer and shall be entitled to the Servicing Fee and all the rights
granted to the predecessor Servicer by this Agreement.
(c) Subject to the last sentence of clause (a), the Servicer may not
resign unless it is prohibited from serving as such by law as evidenced by
an Opinion of Counsel to such effect delivered to the Indenture Trustee and
the Trustee.
SECTION 8.3. Notification to Noteholders and Certificateholders. Upon
any termination of, or appointment of a successor to, the Servicer pursuant
to this Article VIII, the Trustee shall give prompt written notice thereof
to the Certificateholders and the Indenture Trustee shall give prompt
written notice thereof to the Indenture Noteholders, the Class B
Noteholders, the Class B Agent and the Rating Agencies.
SECTION 8.4. Waiver of Past Defaults. The Holders of Indenture Notes
evidencing not less than a majority of the Outstanding Amount of the
Indenture Notes (or the Holders (as defined in the Trust Agreement) of
Certificates evidencing not less than a majority of the Certificate
Balance, in the case of any default that does not adversely affect the
Indenture Trustee or the Indenture Noteholders; or Class B Noteholders of
Class B Notes evidencing not less than a majority of the outstanding
principal amount of the Class B Notes, in the case of any default that does
not adversely affect the Indenture Trustee or the Indenture Noteholders)
may, on behalf of all Indenture Noteholders, Class B Noteholders and
Certificateholders, waive in writing any default by the Servicer in the
performance of its obligations hereunder and its consequences, except a
default in making any required deposits to or payments from any of the
Trust Accounts in accordance with this Agreement. Upon any such waiver of a
past default, such default shall cease to exist, and any Servicer Default
arising therefrom shall be deemed to have been remedied for every purpose
of this Agreement. No such waiver shall extend to any subsequent or other
default or impair any right consequent thereto.
ARTICLE IX
Termination
SECTION 9.1. Optional Purchase of All Receivables. (a)As of the first
day of any Collection Period immediately preceding a Payment Date as of
which the Pool Balance is 10% or less of the Initial Pool Balance, the
Servicer shall have the option to purchase all of the Trust Estate, other
than the Trust Accounts. To exercise such option, the Servicer shall
deposit, pursuant to Section 5.4, in the Collection Account an amount equal
to the aggregate Purchase Amount for the Receivables plus the appraised
value of any such other property held by the Trust, such value to be
determined by an appraiser mutually agreed upon by the Servicer, the
Trustee and the Indenture Trustee, and shall succeed to all interests in,
to and under the Trust Estate, other than the Trust Accounts.
(b) Upon any sale of the assets of the Trust pursuant to Section 9.2
of the Trust Agreement, the Servicer shall instruct the Indenture Trustee
to deposit the proceeds from such sale after all payments and reserves
therefrom have been made (the "Insolvency Proceeds") in the Collection
Account. On the Payment Date on, or, if such proceeds are not so deposited
on a Payment Date, on the first Payment Date following the date on which
the Insolvency Proceeds are deposited in the Collection Account, the
Servicer shall instruct the Indenture Trustee to make the following
deposits (after the application on such Payment Date of the Total
Distribution Amount and funds on deposit in the Spread Account pursuant to
Sections 5.5 and 5.6) from the Insolvency Proceeds and any funds remaining
on deposit in the Spread Account (including the proceeds of any sale of
investments therein as described in the following sentence):
(i) first, to the Note Distribution Account, any portion of the
Indenture Noteholders' Interest Distributable Amount and the
Outstanding Amount of the Indenture Notes (after giving effect to the
reduction resulting from the deposits made in the Note Distribution
Account on such Payment Date and on prior Payment Dates) not otherwise
deposited into the Note Distribution Account on such Payment Date;
(ii) second, to the Note Distribution Account, any portion of
the Class B Noteholders' Interest Distributable Amount and the
outstanding principal amount of the Class B Notes (after giving effect
to the reduction resulting from the deposits made in the Note
Distribution Account on such Payment Date and on prior Payment Dates)
not otherwise deposited into the Note Distribution Account on such
Payment Date;
(iii) third, to the Certificate Distribution Account, any
portion of the Certificateholders' Interest Distributable Amount not
otherwise deposited into the Certificate Distribution Account on such
Payment Date; and
(iv) fourth, to the Certificate Distribution Account, the
Certificate Balance (after giving effect to the reduction resulting
from the deposits made in the Certificate Distribution Account on such
Payment Date).
Any investments on deposit in the Spread Account that will not mature on or
before such Payment Date shall be sold by the Indenture Trustee at such
time as will result in the Indenture Trustee receiving the proceeds from
such sale not later than the Transfer Date preceding such Payment Date. Any
Insolvency Proceeds remaining after the deposits described above shall be
paid to the Seller.
(c) As described in Article IX of the Trust Agreement, notice of any
termination of the Trust shall be given by the Servicer to the Trustee and
the Indenture Trustee as soon as practicable after the Servicer has
received notice thereof.
(d) Following the satisfaction and discharge of the Indenture and the
payment in full of the principal of and interest on the Indenture Notes,
(i) if any principal remains outstanding under the Class B Notes, then the
Class B Noteholders will succeed to the rights of the Indenture Noteholders
hereunder and the Class B Agent will succeed to the rights of the Indenture
Trustee pursuant to this Agreement and (ii) if no principal remains
outstanding under the Class B Notes (or at any time thereafter when the
Class B Notes have been paid in full), the Certificateholders will succeed
to the rights of the Indenture Noteholders hereunder other than Section
5.6(b) and the Trustee will succeed to the rights of, and assume the
obligations of, the Indenture Trustee pursuant to this Agreement.
ARTICLE X
Miscellaneous Provisions
SECTION 10.1. Amendment. The Agreement may be amended from time to
time by a written amendment duly executed and delivered by the Seller, the
Servicer and the Issuer, with the written consent of the Indenture Trustee,
but without the consent of any of the Indenture Noteholders, the Class B
Noteholders or the Certificateholders, to cure any ambiguity, to correct or
supplement any provisions in this Agreement or for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions in this Agreement or of modifying in any manner the rights of
the Indenture Noteholders, the Class B Noteholders or the
Certificateholders; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel delivered to the Trustee, the Class B
Agent and the Indenture Trustee, adversely affect in any material respect
the interests of any Indenture Noteholder, Class B Noteholder or
Certificateholder.
The Specified Spread Account Balance may be reduced or the definition
thereof otherwise modified without the consent of any of the Indenture
Noteholders, the Class B Noteholders or the Certificateholders if the
Rating Agency Condition is satisfied.
This Agreement may also be amended from time to time by the Seller,
the Servicer and the Issuer, with the written consent of the Indenture
Trustee, but without the consent of any of the Indenture Noteholders, the
Class B Noteholders or the Certificateholders, to: (x) replace the Spread
Account with another form of credit enhancement as long as such
substitution will not result in a reduction or withdrawal of the rating of
any Class of the Indenture Notes, the Class B Notes or the Certificates or
(y) add credit enhancement for the benefit of any Class of the Indenture
Notes, the Class B Notes or the Certificates.
This Agreement may also be amended from time to time by the Seller,
the Servicer and the Issuer, with the written consent of (a) the Indenture
Trustee, (b) the Holders of Indenture Notes evidencing not less than a
majority of the Outstanding Amount, (c) Class B Noteholders that hold Class
B Notes evidencing not less than a majority of the outstanding principal
amount of the Class B Notes and (d) the Holders (as defined in the Trust
Agreement) of Certificates evidencing not less than a majority of the
Certificate Balance, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the Indenture
Noteholders, the Class B Noteholders or the Certificateholders; provided,
however, that no such amendment shall: (a) increase or reduce in any manner
the amount of, or accelerate or delay the timing of, collections of
payments on Receivables or distributions that shall be required to be made
for the benefit of the Indenture Noteholders, the Class B Noteholders or
the Certificateholders or (b) reduce the aforesaid percentage of the
Indenture Notes, the Class B Notes and the Certificates that are required
to consent to any such amendment, without the consent of the holders of all
the outstanding Indenture Notes, Class B Notes and Certificates.
Promptly after the execution of any such amendment or consent (or, in
the case of the Rating Agencies, 10 days prior thereto), the Trustee shall
furnish written notification of the substance of such amendment or consent
to each Certificateholder, the Indenture Trustee and each of the Rating
Agencies.
It shall not be necessary for the consent of Certificateholders, Class
B Noteholders or Indenture Noteholders pursuant to this Section to approve
the particular form of any proposed amendment or consent, but it shall be
sufficient if such consent shall approve the substance thereof.
Prior to the execution of any amendment to this Agreement, the Trustee
and the Indenture Trustee shall be entitled to receive and rely upon: (i)
an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions precedent
to such execution and delivery by the Trustee and the Indenture Trustee
have been satisfied and (ii) the Opinion of Counsel referred to in Section
10.2(i)(1). The Trustee and the Indenture Trustee may, but shall not be
obligated to, enter into any such amendment that affects the Trustee's or
the Indenture Trustee's, as applicable, own rights, duties or immunities
under this Agreement or otherwise.
SECTION 10.2. Protection of Title to Trust. (a) The Seller shall
execute and file such financing statements, and cause to be executed and
filed such continuation statements, all in such manner and in such places
as may be required by applicable law fully to preserve, maintain and
protect the right, title and interest of the Issuer and the interests of
the Indenture Trustee and the Collateral Agent in the Receivables, the
other property sold hereunder and in the proceeds thereof. The Seller shall
deliver (or cause to be delivered) to the Trustee, the Class B Agent and
the Indenture Trustee file-stamped copies of, or filing receipts for, any
document filed as provided above as soon as available following such
filing. The Issuer, the Collateral Agent and the Indenture Trustee shall
cooperate fully with the Seller in connection with the obligations set
forth above and will execute any and all documents reasonably required to
fulfill the intent of this paragraph.
(b) Neither the Seller nor the Servicer shall change its name,
identity or corporate structure in any manner that would, could or might
make any financing statement or continuation statement filed in accordance
with paragraph (a) seriously misleading within the applicable provisions of
the UCC, unless it shall have given the Trustee, the Class B Agent and the
Indenture Trustee at least five days' prior written notice thereof and
shall have promptly filed appropriate amendments to all previously filed
financing statements or continuation statements.
(c) Each of the Seller and the Servicer shall have an obligation to
give the Trustee and the Indenture Trustee at least 60 days' prior written
notice of any relocation of its principal executive office if, as a result
of such relocation, the applicable provisions of the UCC would require the
filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement and shall promptly file any
such amendment. The Servicer shall at all times maintain each office from
which it shall service Receivables, and its principal executive office,
within the United States of America.
(d) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit: (i) the reader
thereof to know at any time the status of such Receivable, including
payments and recoveries made and payments owing (and the nature of each)
and (ii) reconciliation between payments or recoveries on (or with respect
to) each Receivable and the amounts from time to time deposited in the
Collection Account in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so that, from
and after the time of sale under this Agreement of the Receivables, the
Servicer's master computer records (including any backup archives) that
refer to a Receivable shall indicate clearly the interest of the Issuer,
the Collateral Agent and the Indenture Trustee in such Receivable and that
such Receivable is owned by the Issuer and has been pledged to Harris, as
Indenture Trustee and Collateral Agent. Indication of the Issuer's and the
Indenture Trustee's and Collateral Agent's interest in a Receivable may be
deleted from or modified on the Servicer's computer systems when, and only
when, the related Receivable shall have been paid in full or repurchased.
(f) If at any time the Seller or the Servicer shall propose to sell,
grant a security interest in, or otherwise transfer any interest in
equipment receivables to any prospective purchaser, lender or other
transferee, the Servicer shall give to such prospective purchaser, lender
or other transferee computer tapes, records or printouts (including any
restored from backup archives) that, if they shall refer in any manner
whatsoever to any Receivable, shall indicate clearly that such Receivable
has been sold and is owned by the Issuer and has been pledged to the
Indenture Trustee.
(g) The Servicer shall permit the Indenture Trustee and Collateral
Agent and its agents at any time during normal business hours to inspect,
audit and make copies of and abstracts from the Servicer's records
regarding any Receivable.
(h) Upon request, the Servicer shall furnish to the Trustee or to the
Indenture Trustee, within five Business Days, a list of all Receivables (by
contract number and name of Obligor) then held as part of the Trust,
together with a reconciliation of such list to the Schedule of Receivables
and to each of the Servicer's Certificates furnished before such request
indicating removal of Receivables from the Trust.
(i) The Servicer shall deliver to the Trustee, the Indenture Trustee
and the Class B Agent:
(1) promptly after the execution and delivery of this Agreement
and of each amendment hereto, an Opinion of Counsel either: (A)
stating that, in the opinion of such counsel, all financing statements
and continuation statements have been executed and filed that are
necessary fully to preserve and protect the interest of the Trustee
and the Indenture Trustee in the Receivables, and reciting the details
of such filings or referring to prior Opinions of Counsel in which
such details are given, or (B) stating that, in the opinion of such
counsel, no such action shall be necessary to preserve and protect
such interest; and
(2) within 90 days after the beginning of each calendar year
beginning with the first calendar year beginning more than three
months after the Initial Cutoff Date, an Opinion of Counsel, dated as
of a date during such 90-day period, either: (A) stating that, in the
opinion of such counsel, all financing statements and continuation
statements have been executed and filed that are necessary fully to
preserve and protect the interest of the Trustee and the Indenture
Trustee in the Receivables, and reciting the details of such filings
or referring to prior Opinions of Counsel in which such details are
given, or (B) stating that, in the opinion of such counsel, no such
action shall be necessary to preserve and protect such interest.
Each Opinion of Counsel referred to in clause (1) or (2) shall specify
any action necessary (as of the date of such opinion) to be taken in the
following year to preserve and protect such interest.
(j) The Seller shall, to the extent required by applicable law, cause
the Certificates and the Indenture Notes to be registered with the
Commission pursuant to Section 12(b) or Section 12(g) of the Exchange Act
within the time periods specified in such sections.
SECTION 10.3. Notices. All demands, notices, directions, instructions
and communications upon or to the Seller, the Servicer, the Issuer, the
Trustee, the Class B Agent, the Indenture Trustee or the Rating Agencies
under this Agreement shall be in writing, personally delivered or mailed by
certified mail, return receipt requested, and shall be deemed to have been
duly given upon receipt: (a) in the case of the Seller, to Case Receivables
II Inc., 233 Lake Avenue, Racine, Wisconsin 53403, Attention of: Secretary
(telephone (414) 636-6564 and facsimile (414) 636-6284), (b) in the case of
the Servicer, to Case Credit Corporation, 233 Lake Avenue, Racine,
Wisconsin 53403, Attention: Vice President & Treasurer (telephone (414)
636-6011 and facsimile (414) 636-6284), (c) in the case of the Issuer or
the Trustee, at the Corporate Trust Office (as defined in the Trust
Agreement), with a copy to The Chase Manhattan Bank, 450 West 33rd Street,
15th Floor, New York, New York 10001, Attention: Structured Finance
Services (ABS), (d) in the case of the Class B Agent, to The First National
Bank of Chicago, One First National Plaza, Chicago, Illinois 60670,
Attention: Asset Backed Credit, (e) in the case of the Indenture Trustee,
at the Corporate Trust Office, (f) in the case of Moody's, to Moody's
Investors Service, Inc., ABS Monitoring Department, 99 Church Street, New
York, New York 10007, and (g) in the case of Standard & Poor's, to Standard
& Poor's Ratings Services, a division of McGraw-Hill Companies, Inc., 26
Broadway (15th Floor), New York, New York 10004, Attention of Asset Backed
Surveillance Department; or, as to each of the foregoing, at such other
address as shall be designated by written notice to the other parties.
SECTION 10.4. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 6.4 and 7.3 and as
provided in the provisions of this Agreement concerning the resignation of
the Servicer, this Agreement may not be assigned by the Seller or the
Servicer.
SECTION 10.5. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Seller, the Servicer, the
Issuer, the Trustee, the Certificateholders, the Class B Agent, the Class B
Noteholders, the Indenture Trustee and the Indenture Noteholders, and
nothing in this Agreement, whether express or implied, shall be construed
to give to any other Person any legal or equitable right, remedy or claim
in the Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
SECTION 10.6. Severability. Any provision of this Agreement 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 10.7. Separate Counterparts. This Agreement may be executed
by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 10.8. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
SECTION 10.9. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York, 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 10.10. Assignment to Indenture Trustee/Collateral Agent. The
Seller hereby acknowledges and consents to any mortgage, pledge, assignment
and grant of a security interest by the Issuer to the Indenture Trustee and
the Collateral Agent pursuant to the Indenture for the benefit of the
Indenture Noteholders and the Class B Noteholders, respectively, of all
right, title and interest of the Issuer in, to and under the Receivables
and/or the assignment of any or all of the Issuer's rights and obligations
hereunder to the Indenture Trustee.
SECTION 10.11. Nonpetition Covenants. (a) Notwithstanding any prior
termination of this Agreement, the Servicer and the Seller shall not, prior
to the date that is one year and one day after the termination of this
Agreement, with respect to the Issuer, acquiesce, petition or otherwise
invoke or cause the Issuer to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Issuer under any Federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Issuer or any
substantial part of its property, or ordering the winding up or liquidation
of the affairs of the Issuer. The foregoing shall not limit the right of
the Servicer and the Seller to file any claim in or otherwise take any
action with respect to any such insolvency proceeding that was instituted
against the Issuer by any Person other than the Servicer or the Seller.
(b) Notwithstanding any prior termination of this Agreement, the
Servicer shall not, prior to the date that is one year and one day after
the termination of this Agreement, with respect to the Seller, acquiesce,
petition or otherwise invoke or cause the Seller to invoke the process of
any court or governmental authority for the purpose of commencing or
sustaining a case against the Seller under any Federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Seller or
any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Seller. The foregoing shall not limit the
right of the Servicer to file any claim in or otherwise take any action
with respect to any such insolvency proceeding that was instituted against
the Seller by any Person other than the Servicer.
SECTION 10.12. Limitation of Liability of Trustee and Indenture
Trustee. (a) Notwithstanding anything contained herein to the contrary,
this Agreement has been countersigned by Chase Manhattan Bank Delaware, not
in its individual capacity but solely in its capacity as Trustee of the
Issuer, and in no event shall Chase Manhattan Bank Delaware, in its
individual capacity or, except as expressly provided in the Trust
Agreement, any beneficial owner of the Issuer have any liability for the
representations, warranties, covenants, agreements or other obligations of
the Issuer hereunder or in any of the certificates, notices or agreements
delivered pursuant hereto, as to all of which recourse shall be had solely
to the assets of the Issuer.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been accepted by Harris Trust and Savings Bank, not in its
individual capacity but solely as Indenture Trustee, and in no event shall
Harris Trust and Savings Bank have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer
hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the
assets of the Issuer.
SECTION 10.13. Rights of Collateral Agent. The parties hereto agree
that the Collateral Agent is afforded all of the same rights, powers,
immunities and indemnities under this Agreement as are afforded to the
Indenture Trustee.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers as of the day and year first
above written.
CASE EQUIPMENT LOAN TRUST 1996-B
By: CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but solely
as Trustee of the Trust
By: /s/ John Cashin
-------------------------------------
Name: John Cashin
Title: Senior Trust Officer
CASE RECEIVABLES II INC.,
as Seller
By: /s/ Robert A. Wegner
--------------------------------------
Name: Robert A. Wegner
Title: Vice President
CASE CREDIT CORPORATION,
as Servicer
By: /s/ Robert A. Wegner
--------------------------------------
Name: Robert A. Wegner
Title: Vice President
Acknowledged and Accepted:
HARRIS TRUST AND SAVINGS BANK,
not in its individual capacity
but solely as Indenture Trustee
By: /s/ Keith Richardson
----------------------------
Name: Keith Richardson
Title: Assistant Vice President
SCHEDULE A
to Sale and Servicing Agreement
SCHEDULE OF INITIAL RECEIVABLES
-------------------------------
[PAPER COPY SENT TO SEC]
SCHEDULE B
to Sale and Servicing Agreement
LOCATION OF RECEIVABLES FILES
-----------------------------
Documents relating to the Receivables are located at one of the
following Case Corporation locations:
1. 233 Lake Avenue
Racine, Wisconsin 53403
2. 2205 Durand Avenue
Racine, Wisconsin 53406
3. 700 State Street
Racine, Wisconsin 53404
4. 6363 Poplar Avenue
Suite 330
Memphis, Tennessee 38119
5. 2626 E. 82nd Street
Suite 240
Bloomington, Minnesota 55425
6. 5000 Quorum
Suite 505
Dallas, Texas 75204
7. 3600 Sullivant Avenue
Columbus, Ohio 43228-0519
EXHIBIT A
to Sale and Servicing Agreement
FORM OF NOTEHOLDER'S
STATEMENT PURSUANT TO SECTION 5.10(A)
-------------------------------------
Payment Date: ______________________
(i) Amount of principal being paid on Notes:
A-1 Notes: ______________ ($_____ per $1,000
original principal
amount)
A-2 Notes: ______________ ($_____ per $1,000
original principal
amount)
A-3 Notes: ______________ ($_____ per $1,000
original principal
amount)
Class B Notes: _____________ ($_____ per $1,000 original
principal amount)
(ii) Amount of interest being paid on Notes:
A-1 Notes: ______________ ($_____ per $1,000
original principal
amount)
A-2 Notes: ______________ ($_____ per $1,000
original principal
amount)
A-3 Notes: ______________ ($_____ per $1,000
original principal
amount)
Class B Notes: _____________ ($_____ per $1,000 original
principal amount)
(iii) Pool Balance at end of the preceding Collection Period:
_____
(iv) After giving effect to distributions on this Payment Date:
(a) (1) Outstanding Amount of A-1 Notes: _______
(2) Outstanding Amount of A-2 Notes: _______
(3) Outstanding Amount of A-3 Notes: _______
(4) Outstanding Amount of Class B Notes: _______
(5) A-1 Note Pool Factor: _____
(6) A-2 Note Pool Factor: _____
(7) A-3 Note Pool Factor: _____
(8) Class B Note Pool Factor: _____
(b) (1) Certificate Balance: __________
(2) Certificate Pool Factor: __________
(v) Amount of Servicing Fee: ____ ($_____ per $1,000
original principal amount)
(vi) Amount of Administration Fee: ____ ($____ per $1,000 original
principal amount)
(vii) Aggregate Amount of Realized Losses for the Collection Period:
__________
(viii) Aggregate Purchase Amounts for the Collection Period:
__________
(ix) Balance of Spread Account: __________
(x) Pre-funded Amount: __________
(xi) Balance of Negative Carry Account: __________
EXHIBIT B
to Sale and Servicing Agreement
FORM OF CERTIFICATEHOLDER'S
STATEMENT PURSUANT TO SECTION 5.10(A)
-------------------------------------
Payment Date: ______________________
(i) Amount of principal being paid or distributed:
(a) (1) A-1 Notes: __________
(2) A-2 Notes: __________
(3) A-3 Notes: __________
(4) Class B Notes: __________
(b) Certificates: ___________ ($_____ per $1,000 original
principal amount)
(c) Total: __________
(ii) Amount of interest being paid or distributed:
(a) (1) A-1 Notes: __________
(2) A-2 Notes: __________
(3) A-3 Notes: __________
(4) Class B Notes: __________
(b) Certificates: ___________ ($_____ per $1,000 original
principal amount)
(c) Total: __________
(iii) Pool Balance at end of the preceding Collection Period:
_____
(iv) After giving effect to distributions on this Payment Date:
(a) (1) Outstanding Amount of A-1 Notes: _______
(2) Outstanding Amount of A-2 Notes: _______
(3) Outstanding Amount of A-3 Notes: _______
(4) Outstanding Amount of Class B Notes: _______
(5) A-1 Note Pool Factor: _____
(6) A-2 Note Pool Factor: _____
(7) A-3 Note Pool Factor: _____
(8) Class B Note Pool Factor: _____
(b) (1) Certificate Balance: __________
(2) Certificate Pool Factor: __________
(v) Amount of Servicing Fee: ____ ($_____ per $1,000
original principal
amount)
(vi) Amount of Administration Fee: ____ ($____ per $1,000 original
principal amount)
(vii) Aggregate amount of Realized Losses for the Collection Period:
__________
(viii) Aggregate Purchase Amounts for the Collection Period:
__________
(ix) Balance of Spread Account: __________
(x) Pre-Funded Amount:__________
(xi) Balance of Negative Carry Account: __________
EXHIBIT C
to Sale and Servicing Agreement
FORM OF SERVICER'S CERTIFICATE
------------------------------
Chase Manhattan Bank Delaware
1201 North Market Street
Wilmington, Delaware 19801
Attention: Corporate Trust
The Chase Manhattan Bank, N.A.
4 Chase MetroTech Center
Brooklyn, New York 11245
Attention: Institutional Trust Group- Third Floor
Harris Trust and Savings Bank
311 West Monroe Street
12th Floor
Chicago, Illinois 60606
Attention: Indenture Trust Administration
Case Receivables II Inc.
233 Lake Avenue
Racine, Wisconsin 53403
Attention: Secretary
Moody's Investors Service, Inc.
ABS Monitoring Department
99 Church Street
New York, New York 10007
Standard & Poor's Ratings Services,
a division of McGraw-Hill Companies, Inc.
26 Broadway (15th Floor)
New York, New York 10004
Attention: Asset Backed Surveillance Department
First National Bank of Chicago
One First National Plaza
Chicago, Illinois 60670
Attention: Asset Backed Credit
$125,000,000 Class A-1 Asset-Backed Notes
$362,000,000 Class A-2 Asset-Backed Notes
$329,000,000 Class A-3 Asset-Backed Notes
$25,000,000 Class B Asset-Backed Notes
$34,000,000 Certificates
-------------------------------------------------------------
Determination Date: __-___-__
DISTRIBUTIONS
-------------
(1) Total Distribution Amount $________
(2) Servicing Fee $________
(3) Administration Fee $________
(4) Indenture Noteholder's Interest Distributable Amount: $________
. Interest on Indenture Notes ($________)
. Indenture Noteholder's Interest Carryover Shortfall, if any
($___________)
(5) A-1 Noteholders' Principal Distributable Amount $________
. A-1 Noteholders' Monthly Principal Distributable Amount ($________)
. A-1 Noteholders' Principal Carryover Shortfall ($________)
(6) A-2 Noteholders' Principal Distributable Amount $________
. A-2 Noteholders' Monthly Principal Distributable Amount ($________)
. A-2 Noteholders' Principal Carryover Shortfall ($________)
(7) A-3 Noteholders' Principal Distributable Amount $________
. A-3 Noteholders' Monthly Principal Distributable Amount ($________)
. A-3 Noteholders' Principal Carryover Shortfall ($________)
(8) Class B Noteholders' Interest Distributable Amount $________
. Interest on Class B Notes ($_________)
. Class B Noteholders' Interest Carryover Shortfall ($_______)
(9) Class B Noteholders' Principal Distributable Amount $________
. Class B Noteholders' Monthly Principal Distributable Amount
($________)
. Class B Noteholders' Principal Carryover Shortfall ($________)
(10) NOTEHOLDERS' DISTRIBUTABLE AMOUNT (4)+(5)+(6)+(7)+(8)+(9) $________
(11) Certificateholders' Interest Distributable Amount $________
. Interest on Certificates ($________)
. Certificateholders' Interest Carryover Shortfall ($________)
(12) Certificateholders' Principal Distributable Amount $________
. Principal Distribution Amount remaining after Indenture Notes
paid in full ($________)
. Certificateholders' Principal Carryover Shortfall ($________)
(13) CERTIFICATEHOLDERS' DISTRIBUTABLE AMOUNT (11)+(12) $________
(14) Deposit to Spread Account (1)-((2)+(3)+(10)+(13)) $________
SPREAD ACCOUNT
--------------
(15) Spread Account Balance (after deposit from (14)) $________
(16) Specified Spread Account Balance (after all distributions $________
and adjustments): the greater of:
(a) 3.75% of the Pool Balance as of the beginning of this Collection
Period ($________), and
(b) If the Outstanding Amount of the Indenture Notes and the
Certificates (after giving
effect to distributions made on the prior Payment Date) is: (i)
greater than 97.50% of the Pool Balance, 2.50% of the Initial
Pool Balance, (ii) less than or equal to 97.50% of the Pool
Balance (but greater than 96.25% of the Pool Balance), 2.25% of
the Initial Pool Balance, or (iii) less than or equal to 96.25%
of the Pool Balance, 2.00% of the Initial Pool Balance
($_____________).
(17) Spread Account Trigger Tests (violated if positive):
(a)(i) The aggregate of the Realized Losses from the Initial
Cutoff Date
through the end of the preceding Collection Period ($________)
minus (ii) 2.25% of the Initial Pool Balance ($________)
(b)(i) 12 times: (1) the Realized Losses during the preceding
Collection
Period ($________) plus (2) the aggregate Contract Value, as of
the last day of the preceding Collection Period, of all
Receivables that have not been liquidated as to which the
related Financed Equipment has been repossessed ($________)
minus (ii) 1.65% of the Pool Balance at the beginning of this
Collection Period ($________)
(c)(i) The aggregate amount of Scheduled Payments that are
delinquent by
more than 60 days as of the end of the preceding Collection
Period ($________) minus (ii) 2.25% of the Pool Balance at the
beginning of this Collection Period ($________)
(18) Spread Account Balance over the Specified Spread Account $________
Balance (15)-(16)
(19) Excess in Spread Account distributed to Seller (as permitted $________
in Sections 5.6(b) and (c) of the Sale and Servicing Agreement)
(20) Amount to be withdrawn from the Spread Account and deposited $________
into the Note Distribution Account (as per Sections 5.6(d) and (f) of
the Sale and Servicing Agreement)
(21) Amount to be withdrawn from the Spread Account and deposited $________
into the Certificate Distribution Account (as per Sections 5.6(e) and
(f) of the Sale and Servicing Agreement)
(22) Final Spread Account Balance (15)-((19)+(20)+(21)) $________
MISCELLANEOUS
-------------
(23) Pool Balance at the beginning of this Collection Period $________
(24) After giving effect to all distributions on the Payment Date during
this Collection Period:
(a) Outstanding Amount of A-1 Notes $________
A-1 Note Pool Factor (_._______)
(b) Outstanding Amount of A-2 Notes $________
A-2 Note Pool Factor (_._______)
(c) Outstanding Amount of A-3 Notes $________
A-3 Note Pool Factor (_._______)
(d) Outstanding Amount of Class B Notes
Class B Note Pool Factor (_._______)
(e) Outstanding Amount of Certificates $________
Certificate Pool Factor (_._______)
(25) Aggregate Purchase Amounts for the preceding Collection Period $________
EXHIBIT D
to Sale and Servicing Agreement
FORM OF ASSIGNMENT
------------------
For value received, in accordance with and subject to the Sale and
Servicing Agreement dated as of September 1, 1996 (the "Sale and Servicing
Agreement"), among the undersigned, Case Credit Corporation and Case
Equipment Loan Trust 1996-B (the "Purchaser"), the undersigned does hereby
sell, assign, transfer set over and otherwise convey unto the Purchaser,
without recourse, all of its right, title and interest in, to and under:
(a) the Initial Receivables, including all documents constituting chattel
paper included therewith, and all obligations of the Obligors thereunder,
including all moneys paid thereunder on or after the Initial Cutoff Date,
(b) the security interests in the Financed Equipment granted by Obligors
pursuant to the Initial Receivables and any other interest of the
undersigned in such Financed Equipment, (c) any proceeds with respect to
the Initial Receivables from claims on insurance policies covering Financed
Equipment or Obligors, (d) the Liquidity Receivables Purchase Agreement
(only with respect to Contracts included in the Initial Receivables) and
the Purchase Agreement, including the right of the undersigned to cause
Case Credit Corporation to repurchase Receivables from the undersigned
under the circumstances described therein, (e) any proceeds from recourse
to Dealers with respect to the Initial Receivables other than any interest
in the Dealers' reserve accounts maintained with Case Credit Corporation,
(f) any Financed Equipment that shall have secured an Initial Receivable
and that shall have been acquired by or on behalf of the Trust, (g) all
funds on deposit from time to time in the Trust Accounts, including the
Spread Account Initial Deposit, the Negative Carry Account Initial Deposit
and the Pre-Funded Amount, and in all investments and proceeds thereof
(including all income thereon), and (h) the proceeds of any and all of the
foregoing (other than Recoveries). The foregoing sale does not constitute
and is not intended to result in any assumption by the Purchaser of any
obligation of the undersigned to the Obligors, insurers or any other person
in connection with the Initial Receivables, Receivables Files, any
insurance policies or any agreement or instrument relating to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Sale and Servicing Agreement and is to be governed in all respects by the
Sale and Servicing Agreement. Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to them in the Sale and
Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of September 19, 1996.
CASE RECEIVABLES II INC.,
By:________________________
Name: Robert A. Wegner
Title: Vice President
EXHIBIT E
to Sale and Servicing Agreement
FORM OF SUBSEQUENT TRANSFER ASSIGNMENT
--------------------------------------
For value received, in accordance with and subject to the Sale and
Servicing Agreement dated as of September 1, 1996 (the "Sale and Servicing
Agreement"), among Case Equipment Loan Trust 1996-B, a Delaware business
trust (the "Issuer"), Case Receivables II Inc., a Delaware corporation (the
"Seller"), and Case Credit Corporation, a Delaware corporation, the Seller
does hereby sell, transfer, assign, set over and otherwise convey to the
Issuer, without recourse, all of its right, title and interest in, to and
under: (a) the Subsequent Receivables, with an aggregate Contract Value
equal to $________, listed on Schedule A hereto, including all documents
constituting chattel paper included therewith, and all obligations of the
Obligors thereunder including all moneys paid thereunder on or after the
Subsequent Cutoff Date, (b) the security interests in the Financed
Equipment granted by Obligors pursuant to such Subsequent Receivables and
any other interest of the Seller in such Financed Equipment, (c) any
proceeds with respect to such Subsequent Receivables from claims on
insurance policies covering Financed Equipment or Obligors, (d) the
Purchase Agreement, including the right of the Seller to cause Case Credit
Corporation to repurchase Subsequent Receivables from the Seller under the
circumstances described therein, (e) any proceeds from recourse to Dealers
with respect to such Subsequent Receivables other than any interest in the
Dealers' reserve accounts maintained with Case Credit Corporation, (f) any
Financed Equipment that shall have secured any such Subsequent Receivables
and that shall have been acquired by or on behalf of the Trust, and (g) the
proceeds of any and all of the foregoing (other than Recoveries). The
foregoing sale does not constitute and is not intended to result in any
assumption by the Issuer of any obligation of the Seller to the Obligors,
insurers or any other person in connection with such Subsequent
Receivables, Receivable Files, any insurance policies or any agreement or
instrument relating to any of them.
This Subsequent Transfer Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the Seller
contained in the Sale and Servicing Agreement (including the Officers'
Certificate of the Seller accompanying this Agreement, in the form of Annex
A hereto) and is to be governed in all respects by the Sale and Servicing
Agreement. Capitalized terms used but not otherwise defined herein shall
have the meanings assigned to them in the Sale and Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of _______________, 199_.
CASE RECEIVABLES II INC.,
By:______________________
Name:__________________
Title:_________________
SCHEDULE A
to Subsequent Transfer Assignment
SCHEDULE OF SUBSEQUENT RECEIVABLES
----------------------------------
[See attached list]
ANNEX A
to Subsequent Transfer Assignment
OFFICERS' CERTIFICATE
---------------------
We, the undersigned officers of Case Receivables II Inc. (the
"Company"), do hereby certify, pursuant to Section 2.2(b)(xv) of the Sale
and Servicing Agreement dated as of September 1, 1996, among the Company,
Case Equipment Loan Trust 1996-B and Case Credit Corporation (the
"Agreement"), that all of the conditions precedent to the transfer to the
Issuer of the Subsequent Receivables listed on Schedule A to the Subsequent
Transfer Assignment delivered herewith, and the other property and rights
related to such Subsequent Receivables as described in Section 2.2(a) of
the Agreement, have been satisfied on or prior to the related Subsequent
Transfer Date.
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Agreement.
IN WITNESS WHEREOF, the undersigned have caused this certificate to
be duly executed this _____ day of _______, 199_.
By:___________________________
Name:_____________________
Title:____________________
By:___________________________
Name:_____________________
Title:____________________
EXHIBIT F
to Sale and Servicing Agreement
FORM OF ACCOUNTANTS' LETTER IN CONNECTION
WITH THE SUBSEQUENT TRANSFER ASSIGNMENT PURSUANT TO
SECTION 2.2(b)(xiv) OF THE SALE AND SERVICING AGREEMENT
-------------------------------------------------------
[Letterhead of Arthur Andersen]
___________, 199_
Case Receivables II Inc.
233 Lake Avenue
Racine, Wisconsin 53403
Case Equipment Loan Trust 1996-B
700 State Street
Racine, Wisconsin 53404
Merrill Lynch, Pierce, Fenner & Smith Incorporated
as Representative of the several Underwriters
World Financial Center
North Tower
250 Vesey Street (10th Floor)
New York, New York 10281
Harris Trust and Savings Bank
311 West Monroe Street
Chicago, Illinois 60606
Chase Manhattan Bank Delaware
1201 North Market Street
Wilmington, Delaware 19801
First National Bank of Chicago
One First National Plaza
Chicago, Illinois 60670
Attention: Asset Backed Credit
Dear Ladies and Gentlemen:
This letter is issued at the request of Case Receivables II Inc. (the
"Seller") with respect to the sale of certain retail receivables (the
"Subsequent Receivables") to the Case Equipment Loan Trust 1996-B (the
"Trust") pursuant to the Sale and Servicing Agreement dated as of September
1, 1996 (the "Sale and Servicing Agreement") among the Trust, the Seller
and Case Credit Corporation (the "Servicer"). The sale of the Subsequent
Receivables is described in the prospectus dated September 10, 1996 and the
prospectus supplement dated September 12, 1996 (together, the
"Prospectus"), which relates to the offering by the Trust of Class A-1
5.5625% Asset Backed Notes, Class A-2 6.25% Asset Backed Notes, Class A-3
6.65% Asset-Backed Notes and Class B Asset Backed Notes (collectively, the
"Notes") and of 6.95% Asset Backed Certificates (the "Certificates").
Capitalized terms used but not otherwise defined herein have the meanings
described in the Prospectus or the Sale and Servicing Agreement, as
applicable. In connection therewith, we performed or have previously
performed certain agreed upon procedures as specified in the items below:
1. As previously communicated in our letter to the Seller, the Trust,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, the Indenture
Trustee and the Trustee dated September 19, 1996 relating to the sale
of certain retail receivables (the "Initial Receivables") and the
offering of the Indenture Notes, the Class B Notes and the
Certificates, we performed several procedures, based on a computer
data file (the "Initial File") received from the Servicer, including
the following:
a. We read certain fields on the Initial File to determine whether
the data pertaining to the Initial Receivables complied with the
selection criteria as noted in our previous letters.
b. Proved the arithmetic accuracy of the aggregate Contract Value
and the related percentage of Initial Receivables coded as
representing construction equipment and the aggregate Contract
Value of the Initial Receivables as shown on Schedule B.
c. Proved the arithmetic accuracy of the weighted average original
term of the Initial Receivables as shown in Schedule B.
2. On September ____, 1996, we obtained a computer data file (the
"Subsequent File") produced by and represented by the Servicer to
contain the list of the Subsequent Receivables. The Subsequent File
was received directly by Arthur Andersen LLP from the Servicer. By
use of data retrieval software, we have performed the following with
respect to the information contained in the Subsequent File:
a. We read certain fields on the Subsequent File to determine
whether the data pertaining to the Subsequent Receivables
complied with selection criteria 1., 2. and 4. as shown on
Schedule A. For purposes of selection criteria 3, as shown on
Schedule A, we read certain fields from the Initial File and
Subsequent File to aggregate the total Contract Value for each
account number for the purpose of determining the Contract Value
for each Obligor. The total Contract Value for each account
number was then compared to the aggregate Contract Value to
determine if the selection criteria was achieved.
b. Proved the arithmetic accuracy of the aggregate Contract Value
and the related percentage of the Subsequent Receivables coded
as representing construction equipment and the aggregate
Contract Value of the Subsequent Receivables as shown on
Schedule B.
c. Proved the arithmetic accuracy of the weighted average original
term of the Subsequent Receivables as shown in Schedule B.
3. We proved the arithmetic accuracy of the columnar totals for
aggregate Contract Value of construction equipment and the aggregate
Contract Value as shown on Schedule B.
4. We proved the arithmetic accuracy of the percent of total column as
shown in 1. on Schedule B by dividing the amount in the aggregate
Contract Value of construction equipment column by the amount in the
aggregate Contract Value column. We also proved the arithmetic
accuracy of the weighted average original term as shown in 2. on
Schedule B by summing the products of aggregate Contract Value times
weighted average original term for the Initial Receivables and the
Subsequent Receivables and dividing the resulting sum by the columnar
total of the aggregate Contract Value.
The foregoing procedures do not constitute an audit conducted in accordance
with generally accepted auditing standards, and, therefore, we are unable
to and do not express an opinion on any individual balances or summaries of
selected transactions specifically set forth in this letter. Also, these
procedures would not necessarily reveal matters of significance with
respect to the findings described herein. Accordingly, we make no
representations regarding the sufficiency of the foregoing procedures for
your purposes of for questions of legal interpretation. Had we performed
additional procedures, other matters might have come to our attention that
would have been reported to you. Further, we have addressed ourselves
solely to the foregoing data in the Sale and Servicing Agreement and the
Prospectus and make no representations regarding the adequacy of disclosure
regarding whether any material facts have been omitted.
This letter is solely for the information of the addressees and is not to
be used, circulated, quoted or otherwise referred to for any other purpose
including, but not limited to, the purchase or sale of Indenture Notes,
Class B Notes or Certificates, nor is it to be referred to in any document.
Furthermore, we undertake no responsibility to update this letter for
events and circumstances occurring after the date of this letter.
Very truly yours,
ARTHUR ANDERSEN LLP
SCHEDULE A
to Accountant's Letter
Selection Criteria Results
------------------ -------
1. No Subsequent Receivables was more than 90 days
past due as of the applicable Subsequent Cutoff Date.
2. Each Subsequent Receivable has an APR that is
equal to or greater than 3%.
3. Each Subsequent Receivable has a Contract Value
as of the Subsequent Cutoff Date that (when
combined with the Contract Value of any other
Receivables with the same or an affiliated
Obligor) does not exceed 1% of the aggregate
Contract Value of all Receivables.
4. Each Subsequent Receivable has a remaining term
to maturity (i.e., the period from but excluding
the applicable Subsequent Cutoff Date to and including the
Receivables' maturity date) of not more than
72 months.
SCHEDULE B
to Accountant's Letter
1. Percentage of principal balance of the Receivables that represents
construction equipment.
Aggregate
Contract Value
Percent of of Construction Aggregate
Total Equipment Contract Value
- ---------- ---------------- --------------
Initial Receivables $_________$___________ _____%
Subsequent Receivables $_________$___________ _____%
Total Receivables $_________$___________ _____%
2. Weighted Average original term of the Receivables in the Trust.
Weighted
Aggregate Average Original
Contract Value Term
-------------- ----------------
Initial Receivables $_________ _____
months
Subsequent Receivables $_________ _____
months
Total Receivables $_________ _____
months
As noted above, the weighted average original term does not exceed 55.0
months as required by the Sale and Servicing Agreement.
===============================================================================
CASE EQUIPMENT LOAN TRUST 1996-B
PURCHASE AGREEMENT
between
CASE CREDIT CORPORATION,
as Seller,
and
CASE RECEIVABLES II INC.,
as Purchaser.
Dated as of September 1, 1996
===============================================================================
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I
Certain Definitions
SECTION 1.1. Definitions............................................ 2
ARTICLE II
Conveyance of Receivables
SECTION 2.1. Conveyance of Purchased Contracts...................... 3
SECTION 2.2. Conveyance of Subsequent Receivables................... 4
SECTION 2.3. Intention of the Parties............................... 5
SECTION 2.4. The Closing............................................ 5
SECTION 2.5. Payment of the Purchase Price.......................... 5
ARTICLE III
Representations and Warranties
SECTION 3.1. Representations and Warranties of the Purchaser........ 6
SECTION 3.2. Representations and Warranties of the Seller........... 7
ARTICLE IV
Conditions
SECTION 4.1. Conditions to Obligation of the Purchaser.............. 14
SECTION 4.2. Conditions to Obligation of the Seller................. 16
ARTICLE V
Covenants of the Seller
SECTION 5.1. Protection of Right, Title and Interest. .............. 17
SECTION 5.2. Other Liens or Interests............................... 18
SECTION 5.3. Chief Executive Office................................. 18
SECTION 5.4. Costs and Expenses..................................... 18
SECTION 5.5. Indemnification........................................ 18
SECTION 5.6. Transfer of Subsequent Receivables..................... 18
ARTICLE VI
Miscellaneous Provisions
SECTION 6.1. Obligations of Seller.................................. 19
SECTION 6.2. Repurchase Events...................................... 19
SECTION 6.3. Purchaser Assignment of Repurchased Receivables........ 19
SECTION 6.4. Trust.................................................. 19
SECTION 6.5. Amendment.............................................. 20
SECTION 6.6. Accountants' Letters................................... 20
SECTION 6.7. Waivers................................................ 21
SECTION 6.8. Notices................................................ 21
SECTION 6.9. Costs and Expenses..................................... 21
SECTION 6.10. Representations of the Seller and the Purchaser....... 21
SECTION 6.11. Confidential Information.............................. 21
SECTION 6.12. Headings and Cross-References......................... 22
SECTION 6.13. Governing Law......................................... 22
SECTION 6.14. Counterparts.......................................... 22
SECTION 6.15. Severability.......................................... 22
SCHEDULES AND EXHIBITS
SCHEDULE A Schedule of Receivables
SCHEDULE B Location of Receivables Files
EXHIBIT A Form of Assignment
EXHIBIT B Form of Subsequent Transfer Assignment
PURCHASE AGREEMENT, dated as of September 1, 1996, between CASE
CREDIT CORPORATION, a Delaware corporation (the "Seller"), and CASE
RECEIVABLES II INC., a Delaware corporation (the "Purchaser").
RECITALS
WHEREAS, in the regular course of its business, the Seller purchases
from equipment dealers certain retail installment sale contracts secured by
new and used agricultural and construction equipment ("Contracts"); and
WHEREAS, in the regular course of its business, the Seller purchases
from Case Corporation certain Contracts originated by Case Corporation in
the ordinary course of business; and
WHEREAS, the Seller and the Purchaser wish to set forth the terms
pursuant to which: (1) Contracts having an aggregate Contract Value of
approximately $106,497,054 (the "Purchased Contracts") as of August 31,
1996 (the "Initial Cutoff Date") are to be sold by the Seller to the
Purchaser on the date hereof and (2) certain Subsequent Receivables are to
be sold by the Seller to the Purchaser from time to time on each Subsequent
Transfer Date; and
WHEREAS, as of the Initial Cutoff Date, the Purchaser-owned Contracts
previously purchased from the Seller pursuant to a Receivables Purchase
Agreement dated as of August 1, 1994 (as amended from time to time, the
"Liquidity Receivables Purchase Agreement"), between the Seller and the
Purchaser, having an aggregate Contract Value of approximately $359,628,465
(the "Owned Contracts", and together with the Purchased Contracts, the
"Initial Receivables"); and
WHEREAS, the Receivables will be transferred by the Purchaser,
pursuant to the Sale and Servicing Agreement, to Case Equipment Loan Trust
1996-B (the "Trust"), which Trust will issue 6.95% Asset Backed
Certificates representing fractional undivided interests in, and 5.5625%
Class A-1 Asset Backed Notes, 6.25% Class A-2 Asset Backed Notes, 6.65%
Class A-3 Asset Backed Notes and Class B Asset Backed Notes collateralized
by, the Receivables and the other property of the Trust; and
WHEREAS, the Seller and the Purchaser wish to set forth herein
certain representations, warranties, covenants and indemnities of the
Seller with respect to the Receivables for the benefit of the Purchaser,
the Trust, the Indenture Noteholders, the Class B Noteholders and the
Certificateholders.
NOW, THEREFORE, in consideration of the foregoing, other good and
valuable consideration and the mutual terms and covenants contained herein
the parties hereto agree as follows:
ARTICLE I
Certain Definitions
SECTION 1.1. Definitions. Terms not defined in this Agreement shall
have the meanings set forth in the Sale and Servicing Agreement. As used in
this Agreement, the following terms shall, unless the context otherwise
requires, have the following meanings (such meanings to be equally
applicable to the singular and plural forms of the terms defined):
"Agreement" shall mean this Purchase Agreement, as the same may be
amended and supplemented from time to time.
"Assignment" shall mean the document of assignment attached to this
Agreement as Exhibit A.
"Closing" shall have the meaning specified in Section 2.4.
"Closing Date" shall mean September 19, 1996.
"Contract" shall have the meaning specified in the Recitals.
"Initial Cutoff Date" shall have the meaning specified in the
Recitals.
"Initial Purchase Price" shall have the meaning specified in Section
2.1.
"Initial Receivables" shall have the meaning specified in the
Recitals.
"Liquidity Receivables Purchase Agreement" shall have the meaning
specified in the Recitals.
"Owned Contracts" shall have the meaning specified in the Recitals.
"Prospectus" shall mean the Prospectus dated September 10, 1996, and
the prospectus supplement dated September 12, 1996, relating to the
Indenture Notes and the Certificates.
"Purchased Contracts" shall have the meaning specified in the
Recitals.
"Purchaser" shall mean Case Receivables II Inc., a Delaware
corporation, its successors and assigns.
"Receivables" shall have the meaning specified in the Indenture.
"Repurchase Event" shall have the meaning specified in Section 6.2.
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement, dated as of the date hereof, among the Trust, the Purchaser and
Case Credit Corporation, as the same may be amended and supplemented from
time to time.
"Schedule of Receivables" shall mean the list of retail installment
sale contracts annexed hereto as Schedule A, as such list shall be
supplemented to reflect the transfer of Subsequent Receivables to the
Purchaser pursuant to Section 2.2.
"Seller" shall mean Case Credit Corporation, a Delaware corporation,
its successors and assigns.
"Subsequent Purchase Price" shall have the meaning specified in
Section 2.5(b).
"Subsequent Transfer Assignment" shall have the meaning specified in
Section 4.1(b)(i).
"Underwriting Agreement" shall mean the two Underwriting Agreements,
each dated September 12, 1996, among Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as representative of the several underwriters named therein,
the Purchaser and the Seller.
ARTICLE II
Conveyance of Receivables
SECTION 2.1. Conveyance of Purchased Contracts. In consideration of
the Purchaser's payment of $107,796,821 (the "Initial Purchase Price") in
the manner set out in Section 2.5(a), the Seller does hereby sell,
transfer, assign, set over and otherwise convey to the Purchaser, without
recourse (subject to the obligations herein), all of its right, title and
interest in, to and under:
(i) the Purchased Contracts, including all documents
constituting chattel paper included therewith, and all obligations of
the Obligors thereunder, including all moneys paid thereunder on or
after the Initial Cutoff Date;
(ii) the security interests in the Financed Equipment granted by
Obligors pursuant to the Purchased Contracts and any other interest
of the Seller in such Financed Equipment;
(iii) any proceeds with respect to the Purchased Contracts from
claims on insurance policies covering Financed Equipment or Obligors;
(iv) any proceeds from recourse to Dealers with respect to the
Purchased Contracts other than any interest in the Dealers' reserve
accounts maintained with the Seller;
(v) any Financed Equipment that shall have secured the Purchased
Contracts and that shall have been acquired by or on behalf of the
Purchaser; and
(vi) the proceeds of any and all of the foregoing (other than
Recoveries).
SECTION 2.2. Conveyance of Subsequent Receivables. Subject to the
conditions set forth in Section 4.1(b), in consideration of the Purchaser's
delivery on the related Subsequent Transfer Date to or upon the order of
the Seller of the related Subsequent Purchase Price pursuant to Section
2.5, the Seller does hereby sell, transfer, assign, set over and otherwise
convey to the Purchaser, without recourse (subject to the obligations
herein), all of its right, title and interest in, to and under:
(i) the Subsequent Receivables listed on Schedule A to the
related Subsequent Transfer Assignment, including all documents
constituting chattel paper included therewith, and all obligations of
the Obligors thereunder, including all moneys paid thereunder on or
after the related Subsequent Cutoff Date;
(ii) the security interests in the Financed Equipment granted
by Obligors pursuant to such Subsequent Receivables and any other
interest of the Seller in such Financed Equipment;
(iii) any proceeds with respect to such Subsequent Receivables
from claims on insurance policies covering Financed Equipment or
Obligors;
(iv) any proceeds with respect to such Subsequent Receivables
from recourse to Dealers other than any interest in the Dealers'
reserve accounts maintained with the Seller;
(v) any Financed Equipment that shall have secured any such
Subsequent Receivable and that shall have been acquired by or on
behalf of the Purchaser; and
(vi) the proceeds of any and all of the foregoing (other than
Recoveries).
SECTION 2.3. Intention of the Parties. The parties to this Agreement
intend that the transactions contemplated hereby shall be, and shall be
treated as, a purchase by the Purchaser and a sale by the Seller of the
Purchased Contracts and the Subsequent Receivables and not as a lending
transaction. The foregoing sale, assignment, transfer and conveyance does
not constitute, and is not intended to result in a creation or assumption
by the Purchaser of, any obligation or liability with respect to any
Purchased Contract or any Subsequent Receivables, nor shall the Purchaser
be obligated to perform or otherwise be responsible for any obligation of
the Seller or any other Person in connection with the Purchased Contracts
or the Subsequent Receivables or under any agreement or instrument relating
thereto, including any contract or any other obligation to any Obligor.
SECTION 2.4. The Closing. The sale and purchase of the Purchased
Contracts shall take place at a closing (the "Closing") at the offices of
Mayer, Brown & Platt, 190 South LaSalle Street, Chicago, Illinois 60603 on
the Closing Date, simultaneously with the closings under: (a) the Sale and
Servicing Agreement, (b) the Trust Agreement, (c) the Administration
Agreement and (d) the Indenture.
SECTION 2.5. Payment of the Purchase Price.
(a) Initial Receivables. The Initial Purchase Price is payable as
follows: (i) $105,461,871 in cash at the Closing and (ii) $2,334,950 in
cash as and when amounts are released to, or otherwise realized by, the
Purchaser from the Spread Account and the Negative Carry Account in
accordance with the Sale and Servicing Agreement.
(b) Subsequent Receivables. As consideration for the conveyance of
Subsequent Receivables pursuant to Section 2.2, the Purchaser shall pay or
cause to be paid to the Seller on each Subsequent Transfer Date an amount
(a "Subsequent Purchase Price") equal to the aggregate Contract Value of
the Subsequent Receivables as of the related Subsequent Cutoff Date, plus
any premium or minus any discount agreed upon the Seller and the Purchaser.
Any Subsequent Purchase Price shall be payable as follows: (i) cash in the
amount released to the Purchaser from the Pre-Funding Account (or made
available by the Issuer from the proceeds of the issuance of Class B Notes)
pursuant to Section 5.7(a) of the Sale and Servicing Agreement shall be
paid to the Seller on the related Subsequent Transfer Date and the balance
paid in cash as and when amounts are released to, or otherwise realized by,
the Purchaser from the Spread Account and the Negative Carry Account in
accordance with the Sale and Servicing Agreement; or (ii) as otherwise
agreed by the Seller and the Purchaser.
ARTICLE III
Representations and Warranties
SECTION 3.1. Representations and Warranties of the Purchaser. The
Purchaser hereby represents and warrants to the Seller as of the date
hereof and as of the Closing Date:
(a) Organization and Good Standing. The Purchaser has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with the power and authority
to own its properties and to conduct its business as such properties
are currently owned and such business is presently conducted, and had
at all relevant times, and has, the power and authority to acquire,
own and sell the Receivables.
(b) Due Qualification. The Purchaser is duly qualified to do
business as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals, in all jurisdictions in which
the ownership or lease of property or the conduct of its business
shall require such qualifications.
(c) Power and Authority. The Purchaser has the power and
authority to execute and deliver this Agreement and to carry out its
terms; and the execution, delivery and performance of this Agreement
have been duly authorized by the Purchaser by all necessary corporate
action.
(d) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of the Purchaser enforceable against the
Purchaser in accordance with its terms.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms
hereof do not conflict with, result in any breach of any of the terms
and provisions of, or constitute (with or without notice or lapse of
time) a default under, the certificate of incorporation or by-laws of
the Purchaser, or any indenture, agreement or other instrument to
which the Purchaser is a party or by which it is bound; or result in
the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other
instrument (other than the Sale and Servicing Agreement and the
Indenture); or violate any law or, to the best of the Purchaser's
knowledge, any order, rule or regulation applicable to the Purchaser
of any court or of any Federal or State regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Purchaser or its properties.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the Purchaser's best knowledge, threatened, before any
court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Purchaser 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 could reasonably be expected to materially and adversely
affect the performance by the Purchaser of its obligations under, or
the validity or enforceability of, this Agreement.
SECTION 3.2. Representations and Warranties of the Seller. (a) The
Seller hereby represents and warrants to the Purchaser as of the date
hereof and as of the Closing Date:
(i) Organization and Good Standing. The Seller has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with the power and authority
to own its properties and to conduct its business as such properties
are currently owned and such business is presently conducted, and had
at all relevant times, and has, the power and authority to acquire,
own and sell the Receivables.
(ii) Due Qualification. The Seller is duly qualified to do
business as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals, in all jurisdictions in which
the ownership or lease of property or the conduct of its business
shall require such qualifications.
(iii) Power and Authority. The Seller has the power and
authority to execute and deliver this Agreement and to carry out its
terms; the Seller has full power and authority to sell and assign the
property to be sold and assigned to the Purchaser hereby and has duly
authorized such sale and assignment to the Purchaser by all necessary
corporate action; and the execution, delivery and performance of this
Agreement have been, and the execution, delivery and performance of
each Subsequent Transfer Assignment have been or will be on or before
the related Subsequent Transfer Date, duly authorized by the Seller
by all necessary corporate action.
(iv) Binding Obligation. This Agreement constitutes, and each
Subsequent Transfer Assignment when executed and delivered by the
Seller will constitute, a legal, valid and binding obligation of the
Seller enforceable against the Seller in accordance with their terms.
(v) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms
hereof do not conflict with, result in any breach of any of the terms
and provisions of, or constitute (with or without notice or lapse of
time) a default under, the certificate of incorporation or by-laws of
the Seller, or any indenture, agreement or other instrument to which
the Seller is a party or by which it is bound; or result in the
creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other
instrument (other than this Agreement); or violate any law or, to the
best of the Seller's knowledge, any order, rule or regulation
applicable to the Seller of any court or of any Federal or State
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its
properties.
(vi) No Proceedings. There are no proceedings or investigations
pending, or to the Seller's best knowledge, threatened, before any
court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its
properties: (A) asserting the invalidity of this Agreement, (B)
seeking to prevent the consummation of any of the transactions
contemplated by this Agreement, or (C) seeking any determination or
ruling that could reasonably be expected to materially and adversely
affect the performance by the Seller of its obligations under, or the
validity or enforceability of, this Agreement.
(b) The Seller makes the following representations and warranties as
to the Receivables on which the Purchaser relies in accepting the Purchased
Contracts and the Subsequent Receivables and in transferring the
Receivables to the Trust. Such representations and warranties speak as of
the execution and delivery of this Agreement and as of the Closing Date, in
the case of the Purchased Contracts, and as of the applicable Subsequent
Transfer Date, in the case of the Subsequent Receivables, but shall survive
the sale, transfer and assignment of the Receivables to the Purchaser and
the subsequent assignment and transfer of such Receivables to the Trust
pursuant to the Sale and Servicing Agreement and pursuant to the Indenture:
(i) Characteristics of Receivables. Each Receivable: (A) was
originated in the United States of America by a Dealer in connection
with the retail sale of Financed Equipment in the ordinary course of
such Dealer's business, was fully and properly executed by the
parties thereto, was purchased by the Seller from a Dealer and was
validly assigned by such Dealer to the Seller in accordance with its
terms, (B) has created a valid, subsisting and enforceable first
priority security interest in favor of the Seller in the Financed
Equipment, which is assignable by the Seller to the Purchaser, by the
Purchaser to the Issuer and by the Issuer to the Indenture Trustee,
(C) contains customary and enforceable provisions such that the
rights and remedies of the holder thereof are adequate for
realization against the collateral of the benefits of the security,
and (D) provides for fixed payments on a periodic basis that fully
amortize the Amount Financed by maturity and yield interest at the
Annual Percentage Rate.
(ii) Schedule of Receivables. The information set forth in
Schedule A to this Agreement is true and correct in all material
respects as of the opening of business on the Initial Cutoff Date and
the information set forth on Schedule A to the related Subsequent
Transfer Assignment will be true and correct on each Subsequent
Transfer Date and no selection procedures believed by the Seller to
be adverse to the interests of the Trust, the Indenture Noteholders,
the Class B Noteholders or the Certificateholders were or will be
utilized in selecting the Receivables. The computer tape regarding
the Receivables made available to the Purchaser and its assigns is
true and correct in all respects.
(iii) Compliance with Law. Each Receivable and the sale of the
related Financed Equipment complied in all material respects at the
time it was originated or made and at the execution of this Agreement
and each Subsequent Transfer Assignment complies in all material
respects with all requirements of applicable Federal, State and local
laws and regulations thereunder, including usury law, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair
Credit Reporting Act, the Fair Debt Collection Practices Act, the
Federal Trade Commission Act, the Magnuson-Moss Warranty Act, the
Federal Reserve Board's Regulations B and S, the Wisconsin Consumer
Act and State adaptations of the National Consumer Act and of the
Uniform Consumer Credit Code, and other consumer credit laws and
equal credit opportunity and disclosure laws.
(iv) Binding Obligation. Each Receivable represents the
genuine, legal, valid and binding payment obligation in writing of
the Obligor, enforceable by the holder thereof in accordance with its
terms.
(v) No Government Obligor. None of the Receivables is due from
the United States of America or any State or from any agency,
department or instrumentality of the United States of America or any
State.
(vi) Security Interest in Financed Equipment. Immediately prior
to the sale, assignment and transfer thereof, each Receivable shall
be secured by a validly perfected first priority security interest in
the Financed Equipment in favor of the Seller as secured party or all
necessary and appropriate actions have been commenced that would
result in the valid perfection of a first priority security interest
in the Financed Equipment in favor of the Seller as secured party.
(vii) Receivables in Force. No Receivable has been satisfied,
subordinated or rescinded, nor has any Financed Equipment been
released from the Lien granted by the related Receivable in whole or
in part.
(viii) No Amendment or Waiver. No provision of a Receivable has
been waived, altered or modified in any respect, except pursuant to a
document, instrument or writing included in the Receivable Files and
no such amendment, waiver, alteration or modification causes such
Receivable not to conform to the other warranties contained in this
Section.
(ix) No Defenses. No right of rescission, setoff, counterclaim
or defense has been asserted or threatened or exists with respect to
any Receivable.
(x) No Liens. To the best of the Seller's knowledge, no Liens
or claims, including claims for work, labor or materials, relating to
any of the Financed Equipment have been filed that are Liens prior
to, or equal or coordinate with, the security interest in the
Financed Equipment granted by any Receivable.
(xi) No Default. No Receivable has a payment that is more than
90 days overdue as of the Initial Cutoff Date or Subsequent Cutoff
Date, as applicable, and, except for a payment default continuing for
a period of not more than 90 days, no default, breach, violation or
event permitting acceleration under the terms of any Receivable has
occurred; and no continuing condition that with notice or the lapse
of time would constitute such a default, breach, violation or event
permitting acceleration under the terms of any Receivable has arisen;
and the Seller has not waived and shall not waive any of the
foregoing.
(xii) Title. It is the intention of the Seller that the
transfers and assignments contemplated herein and in the Liquidity
Receivables Purchase Agreement constitute a sale of the Receivables
from the Seller to the Purchaser and that the beneficial interest in
and title to the Receivables not be part of the debtor's estate in
the event of the filing of a bankruptcy petition by or against the
Seller under any bankruptcy or similar law. No Receivable has been
sold, transferred, assigned or pledged by the Seller to any Person
other than the Purchaser. Immediately prior to the transfers and
assignments contemplated herein and in the Liquidity Receivables
Purchase Agreement, the Seller had good title to each Receivable,
free and clear of all Liens and, immediately upon the transfer
thereof, the Purchaser shall have good title to each Receivable, free
and clear of all Liens; and the transfer and assignment of the
Receivables to the Purchaser has been perfected under the UCC.
(xiii) Lawful Assignment. No Receivable has been originated in,
or is subject to the laws of, any jurisdiction under which the sale,
transfer and assignment of such Receivable or any Receivable under
this Agreement, the Liquidity Receivables Purchase Agreement, the
Sale and Servicing Agreement or the Indenture is unlawful, void or
voidable.
(xiv) All Filings Made. All filings (including UCC filings)
necessary in any jurisdiction to give the Purchaser a first priority
perfected ownership interest in the Receivables have been made.
(xv) One Original. There is only one original executed copy of
each Receivable.
(xvi) Maturity of Receivables. Each Receivable has a remaining
term to maturity of not more than 72 months, in the case of the
Initial Receivables, and 72 months, in the case of the Subsequent
Receivables; the weighted average remaining term of the Initial
Receivables is approximately 45.12 months as of the Initial Cutoff
Date; the weighted average original term of the Receivables,
including as of each Subsequent Transfer Date all Subsequent
Receivables previously transferred to the Purchaser, will not be
greater than 55.0 months.
(xvii) Scheduled Payments and APR. No Receivable has a final
scheduled payment date later than six months preceding the Final
Scheduled Maturity Date; each Receivable provides for payments that
fully amortize the Amount Financed over the original term of the
Receivable and is a Precomputed Receivable; and each Receivable has
an APR of at least 3.0%.
(xviii) Location of Receivable Files. The Receivable Files are
kept at one or more of the locations listed in Schedule B hereto.
(xix) Insurance. The Obligor on each Receivable is required to
maintain physical damage insurance covering the Financed Equipment in
accordance with the Seller's normal requirements.
(xx) Concentrations. No Receivable has a Contract Value (when
combined with the Contract Value of any other Receivable with the
same or an Affiliated Obligor) that exceeds 1% of the Initial Pool
Balance.
(xxi) Financing. Approximately 57.20% of the aggregate Contract
Value of the Initial Receivables, constituting 54.45% of the number
of Initial Receivables as of the Initial Cutoff Date, were secured by
equipment that was new at the time the related Initial Receivable was
originated; the remainder of the Initial Receivables represent
financing of used equipment; approximately 79% of the aggregate
Contract Value of the Initial Receivables represent financing of
equipment manufactured or distributed by Case; approximately 63.85%
of the aggregate Contract Value of the Initial Receivables,
constituting 71.35% of the number of Initial Receivables as of the
Initial Cutoff Date, represent the financing of agricultural
equipment; the remainder of the Initial Receivables represent the
financing of construction equipment. The aggregate Contract Value of
the Receivables for the purposes of the above calculations as of the
Initial Cutoff Date is $466,125,519 (and is calculated using the
individual APR applicable to each Initial Receivable). Additionally,
not more than 40% of the aggregate Contract Value of the Receivables,
including, as of each Subsequent Transfer Date, all Subsequent
Receivables previously transferred to the Purchaser, will represent
Contracts for the financing of construction equipment.
(xxii) No Bankruptcies. No Obligor on any Receivable as of the
Initial Cutoff Date or the Subsequent Cutoff Date, as applicable, was
noted in the related Receivable File as having filed for bankruptcy.
(xxiii) No Repossessions. None of the Financed Equipment
securing any Receivable is in repossession status.
(xxiv) Chattel Paper. Each Receivable constitutes "chattel
paper" as defined in the UCC of the State the law of which governs
the perfection of the interest granted in it.
(xxv) U.S. Obligors. None of the Receivables is denominated and
payable in any currency other than United States Dollars or is due
from any Person that does not have a mailing address in the United
States of America.
(xxvi) Payment Frequency. As of the Initial Cutoff Date and as
shown on the books of the Seller: (A) Initial Receivables having an
aggregate Contract Value equal to 51.50% of the Initial Pool Balance
had annual scheduled payments, (B) Initial Receivables having an
aggregate Contract Value equal to 5.03% of the Initial Pool Balance
had semi-annual scheduled payments, (C) Initial Receivables having an
aggregate Contract Value equal to 0.69% of the Initial Pool Balance
had quarterly scheduled payments, and (D) Initial Receivables having
an aggregate Contract Value equal to 42.78% of the Initial Pool
Balance had monthly scheduled payments.
(xxvii) First Payment. As of the Initial Cutoff Date, Obligors
had not yet made the first payment in respect of Initial Receivables
representing less than 52% of the Initial Pool Balance.
(xxviii) Interest Accruing. Each Receivable, other than those
Receivables consisting of Contracts that contain interest waivers for
a specified period of time, is, as of the Closing Date or Subsequent
Transfer Date, as applicable, accruing interest; no Receivable
contains an interest waiver extending more than 12 months after the
Initial Cutoff Date.
(xxix) Seller's Representations. The representations and
warranties of the Seller contained in Section 3.2(a) are true and
correct.
ARTICLE IV
Conditions
SECTION 4.1. Conditions to Obligation of the Purchaser.
(a) Initial Receivables. The obligation of the Purchaser to purchase
the Purchased Contracts is subject to the satisfaction of the following
conditions:
(i) Representations and Warranties True. The representations
and warranties of the Seller hereunder shall be true and correct on
the Closing Date and the Seller shall have performed all obligations
to be performed by it hereunder on or prior to the Closing Date.
(ii) Computer Files Marked. The Seller shall, at its own
expense, on or prior to the Closing Date, indicate in its computer
files that Receivables created in connection with the Purchased
Contracts have been sold to the Purchaser pursuant to this Agreement
and deliver to the Purchaser the Schedule of Receivables certified by
the Chairman, the President, a Vice President or the Treasurer of the
Seller to be true, correct and complete.
(iii) Documents To Be Delivered by the Seller at the Closing.
(A) The Assignment. At the Closing (but only if the
Contract Value of the Purchased Contracts is greater than zero),
the Seller will execute and deliver the Assignment, which shall
be substantially in the form of Exhibit A.
(B) Evidence of UCC Filing. On or prior to the Closing
Date (but only if the Contract Value of the Purchased Contracts
is greater than zero), the Seller shall execute and file, at its
own expense, a UCC financing statement in each jurisdiction in
which such action is required by applicable law fully to perfect
the Purchaser's right, title and interest in the Purchased
Contracts and the other property sold hereunder, executed by the
Seller, as seller or debtor, and naming the Purchaser, as
purchaser or secured party, describing the Purchased Contracts
and the other property sold hereunder, meeting the requirements
of the laws of each such jurisdiction and in such manner as is
necessary to perfect the sale, transfer, assignment and
conveyance of such Purchased Contracts and such other property
to the Purchaser. The Seller shall deliver (or cause to be
delivered) a file-stamped copy, or other evidence satisfactory
to the Purchaser of such filing, to the Purchaser on or prior to
the Closing Date.
(C) Other Documents. The Seller will deliver such other
documents as the Purchaser may reasonably request.
(iv) Other Transactions. The transactions contemplated by the
Sale and Servicing Agreement to be consummated on the Closing Date
shall be consummated on such date.
(b) Subsequent Receivables. The obligation of the Purchaser to
purchase any Subsequent Receivables is subject to the satisfaction of the
following conditions on or prior to the related Subsequent Transfer Date:
(i) the Seller shall have delivered to the Purchaser a duly
executed written assignment in substantially the form of Exhibit B
(the "Subsequent Transfer Assignment"), which shall include
supplements to the Schedule of Receivables listing the Subsequent
Receivables;
(ii) the Seller shall, to the extent required by Section 5.2 of
the Sale and Servicing Agreement, have delivered to the Purchaser for
deposit in the Collection Account all collections in respect of the
Subsequent Receivables;
(iii) as of such Subsequent Transfer Date: (A) the Seller was
not insolvent and will not become insolvent as a result of the
transfer of Subsequent Receivables on such Subsequent Transfer Date,
(B) the Seller did not intend to incur or believe that it would incur
debts that would be beyond the Seller's ability to pay as such debts
matured, (C) such transfer was not made with actual intent to hinder,
delay or defraud any Person and (D) the assets of the Seller did not
constitute unreasonably small capital to carry out its business as
conducted;
(iv) the applicable Spread Account Initial Deposit for such
Subsequent Transfer Date shall have been made;
(v) the Funding Period shall not have terminated;
(vi) each of the representations and warranties made by the
Seller pursuant to Section 3.2(b) with respect to the Subsequent
Receivables shall be true and correct as of such Subsequent Transfer
Date, and the Seller shall have performed all obligations to be
performed by it hereunder on or prior to such Subsequent Transfer
Date;
(vii) the Seller shall, at its own expense, on or prior to such
Subsequent Transfer Date, indicate in its computer files that the
Subsequent Receivables identified in the related Subsequent Transfer
Assignment have been sold to the Purchaser pursuant to this Agreement
and the Subsequent Transfer Assignment;
(viii) the Seller shall have taken any action required to give
the Purchaser a first perfected ownership interest in the Subsequent
Receivables;
(ix) no selection procedures believed by the Seller to be
adverse to the interests of the Purchaser, the Trust, the Indenture
Noteholders, the Class B Noteholders or the Certificateholders shall
have been utilized in selecting the Subsequent Receivables;
(x) the addition of the Subsequent Receivables will not result
in a material adverse tax consequence to the Purchaser, the Trust,
the Indenture Noteholders, the Class B Noteholders or the
Certificateholders;
(xi) the Seller shall have provided the Purchaser a statement
listing the aggregate Contract Value of such Subsequent Receivables
and any other information reasonably requested by the Purchaser with
respect to such Subsequent Receivables;
(xiii) all the conditions to the transfer of the Subsequent
Receivables to the Issuer specified in the Sale and Servicing
Agreement shall have been satisfied; and
(xiii) the Seller shall have delivered to the Purchaser an
Officers' Certificate confirming the satisfaction of each condition
precedent specified in this clause (b) (substantially in the form
attached hereto as Annex A to the Subsequent Transfer Assignment).
SECTION 4.2. Conditions to Obligation of the Seller. The obligation
of the Seller to sell the Purchased Contracts and the Subsequent
Receivables to the Purchaser is subject to the satisfaction of the
following conditions:
(a) Representations and Warranties True. The representations
and warranties of the Purchaser hereunder shall be true and correct
on the Closing Date or the applicable Subsequent Transfer Date with
the same effect as if then made, and the Seller shall have performed
all obligations to be performed by it hereunder on or prior to the
Closing Date or such Subsequent Transfer Date.
(b) Receivables Purchase Price. On the Closing Date or the
applicable Subsequent Transfer Date, the Purchaser shall have
delivered to the Seller the portion of the Initial Purchase Price or
the Subsequent Purchase Price, as the case may be, payable on the
Closing Date or such Subsequent Transfer Date pursuant to Section
2.5.
ARTICLE V
Covenants of the Seller
The Seller agrees with the Purchaser as follows; provided, however,
that to the extent that any provision of this Article conflicts with any
provision of the Sale and Servicing Agreement, the Sale and Servicing
Agreement shall govern:
SECTION 5.1. Protection of Right, Title and Interest. (a) Filings.
The Seller shall cause all financing statements and continuation statements
and any other necessary documents covering the right, title and interest of
the Purchaser in and to the Receivables and the other property included in
the Trust Estate to be promptly filed, and at all times to be kept
recorded, registered and filed, all in such manner and in such places as
may be required by law fully to preserve and protect the right, title and
interest of the Purchaser hereunder to the Receivables and the other
property sold hereunder. The Seller shall deliver (or cause to be
delivered) to the Purchaser file-stamped copies of, or filing receipts for,
any document recorded, registered or filed as provided above as soon as
available following such recordation, registration or filing. The Purchaser
shall cooperate fully with the Seller in connection with the obligations
set forth above and will execute any and all documents reasonably required
to fulfill the intent of this paragraph.
(b) Name Change. Within 15 days after the Seller makes any change in
its name, identity or corporate structure that would, could or might make
any financing statement or continuation statement filed in accordance with
paragraph (a) seriously misleading within the applicable provisions of the
UCC or any title statute, the Seller shall give the Purchaser notice of any
such change, and no later than five days after the effective date thereof,
shall file such financing statements or amendments as may be necessary to
continue the perfection of the Purchaser's interest in the property
included in the Trust Estate.
SECTION 5.2. Other Liens or Interests. Except for the conveyances
hereunder and pursuant to the Liquidity Receivables Purchase Agreement, the
Sale and Servicing Agreement, the Indenture and the other Basic Documents
(as defined in the Indenture), the Seller: (a) will not sell, pledge,
assign or transfer to any Person, or grant, create, incur, assume or suffer
to exist any Lien on, any interest in, to and under the Receivables, and
(b) shall defend the right, title and interest of the Purchaser in, to and
under the Receivables against all claims of third parties claiming through
or under the Seller; provided, however, that the Seller's obligations under
this Section shall terminate upon the termination of the Trust pursuant to
the Trust Agreement.
SECTION 5.3. Chief Executive Office. During the term of the
Receivables, the Seller will maintain its chief executive office in one of
the States.
SECTION 5.4. Costs and Expenses. The Seller agrees to pay all
reasonable costs and disbursements in connection with the perfection, as
against all third parties, of the Purchaser's right, title and interest in,
to and under the Receivables.
SECTION 5.5. Indemnification. The Seller shall indemnify, defend and
hold harmless the Purchaser for any liability as a result of the failure of
a Receivable to be originated in compliance with all requirements of law
and for any breach of any of its representations and warranties contained
herein. These indemnity obligations shall be in addition to any obligation
that the Seller may otherwise have.
SECTION 5.6. Transfer of Subsequent Receivables. (a) The Seller
covenants to transfer to the Purchaser, pursuant to Section 2.2, Subsequent
Receivables with an aggregate Contract Value equal to $407,574,714. In the
event that the Seller shall fail to deliver and sell to the Purchaser any
or all of such Subsequent Receivables by the date on which the Funding
Period ends, and the Pre-Funded Amount is greater than $100,000 on such
date, the Seller shall be obligated to pay to the Purchaser the sum of the
Indenture Noteholders' Prepayment Premium, the Class B Noteholders'
Prepayment Premium and the Certificateholders' Prepayment Premium on the
Payment Date on which the Funding Period ends (or, if the Funding Period
does not end on a Payment Date, on the first Payment Date following the end
of the Funding Period); provided, however, that the foregoing shall be the
sole remedy of the Purchaser, the Issuer, the Trustee, the Indenture
Trustee, the Indenture Noteholders, the Class B Noteholders or the
Certificateholders with respect to a failure of the Seller to comply with
the foregoing covenant.
(b) In addition, the Seller shall have the option, on any Business
Day falling in the Funding Period on or after the day on which the Seller
has completed the maximum amount of transfers contemplated by clause (a),
to transfer to the Purchaser pursuant to Section 2.2 additional Subsequent
Receivables with an aggregate Contract Value of up to $75,000,000.
ARTICLE VI
Miscellaneous Provisions
SECTION 6.1. Obligations of Seller. The obligations of the Seller
under this Agreement shall not be affected by reason of any invalidity,
illegality or irregularity of any Receivable.
SECTION 6.2. Repurchase Events. The Seller hereby covenants and
agrees with the Purchaser for the benefit of the Purchaser, the Indenture
Trustee, the Indenture Noteholders, the Class B Noteholders, the Trustee
and the Certificateholders that the occurrence of a breach of any of the
Seller's representations and warranties contained in Section 3.2(b) shall
constitute events obligating the Seller to repurchase any Receivable
materially and adversely affected by any such breach ("Repurchase Events")
at the Purchase Amount from the Purchaser or from the Trust. Except as set
forth in Section 5.5, the repurchase obligation of the Seller shall
constitute the sole remedy of the Purchaser, the Indenture Trustee, the
Indenture Noteholders, the Class B Noteholders, the Trust, the Trustee or
the Certificateholders against the Seller with respect to any Repurchase
Event.
SECTION 6.3. Purchaser Assignment of Repurchased Receivables. With
respect to all Receivables repurchased by the Seller pursuant to this
Agreement, the Purchaser shall sell, transfer, assign, set over and
otherwise convey to the Seller, without recourse, representation or
warranty, all of the Purchaser's right, title and interest in, to and under
such Receivables, and all security and documents relating thereto.
SECTION 6.4. Trust. The Seller acknowledges and agrees that: (a) the
Purchaser will, pursuant to the Sale and Servicing Agreement, sell the
Receivables to the Trust and assign its rights under this Agreement to the
Trust, (b) the Trust will, pursuant to the Indenture, assign such
Receivables and such rights to the Indenture Trustee and (c) the
representations and warranties contained in this Agreement and the rights
of the Purchaser under this Agreement, including under Section 6.2, are
intended to benefit the Trust, the Certificateholders, the Class B
Noteholders and the Indenture Noteholders. The Seller hereby consents to
all such sales and assignments.
SECTION 6.5. Amendment. This Agreement may be amended from time to
time, with prior written notice to the Rating Agencies, by a written
amendment duly executed and delivered by the Seller and the Purchaser,
without the consent of the Indenture Noteholders, the Class B Noteholders
or the Certificateholders, to cure any ambiguity, to correct or supplement
any provisions in this Agreement or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of
the Indenture Noteholders, the Class B Noteholders or the
Certificateholders; provided, however, that such amendment will not in the
Opinion of Counsel, materially and adversely affect the interest of any
Indenture Noteholder, Class B Noteholder or Certificateholder.
This Agreement may also be amended from time to time by the Seller
and the Purchaser, with prior written notice to the Rating Agencies, with
the written consent of (x) the Holders of Indenture Notes evidencing at
least a majority of the Outstanding Amount (as defined in the Indenture) of
the Indenture Notes, (y) Class B Noteholders of Class B Notes evidencing at
least a majority of the outstanding principal amount of the Class B Notes
and (z) the Holders (as defined in the Trust Agreement) of Certificates
evidencing at least a majority of the Certificate Balance, for the purpose
of adding any provisions to or changing in any manner or eliminating any of
the provisions of this Agreement or of modifying in any manner the rights
of the Indenture Noteholders, the Class B Noteholders or the
Certificateholders; provided, however, that no such amendment may: (i)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that are
required to be made for the benefit of the Indenture Noteholders, the Class
B Noteholders or the Certificateholders or (ii) reduce the aforesaid
percentage of the Indenture Notes, the Class B Notes and Certificates that
are required to consent to any such amendment, without the consent of the
holders of all the outstanding Indenture Notes, the Class B Notes and
Certificates.
It shall not be necessary for the consent of Certificateholders or
Indenture Noteholders pursuant to this Section to approve the particular
form of any proposed amendment or consent, but it shall be sufficient if
such consent shall approve the substance thereof.
SECTION 6.6. Accountants' Letters. (a) A firm of independent
certified public accountants will review the characteristics of the
Receivables described in the Schedule of Receivables and will compare those
characteristics to the information with respect to the Receivables
contained in the Prospectus, (b) the Seller will cooperate with the
Purchaser and such accounting firm in making available all information and
taking all steps reasonably necessary to permit such accounting firm to
complete the review set forth in clause (a) and to deliver the letters
required of them under the Underwriting Agreement, (c) such accounting firm
will deliver to the Purchaser a letter, dated the date of the Prospectus,
in the form previously agreed to by the Seller and the Purchaser, with
respect to the financial and statistical information contained in the
Prospectus and with respect to such other information as may be agreed in
the form of the letter.
SECTION 6.7. Waivers. No failure or delay on the part of the
Purchaser in exercising any power, right or remedy under this Agreement or
any Assignment 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 6.8. Notices. All demands, notices and communications under
this Agreement shall be in writing, personally delivered or mailed by
certified mail, return receipt requested, and shall be deemed to have been
duly given upon receipt: (a) in the case of the Seller, to Case Credit
Corporation, 233 Lake Avenue, Racine, Wisconsin 53403, Attention: Vice
President and Treasurer (telephone (414) 636-6011); (b) in the case of the
Purchaser, to Case Receivables II Inc., 233 Lake Avenue, Racine, Wisconsin
53403, Attention: Corporate Secretary (telephone (414) 636-6564); (c) in
the case of the Rating Agencies, at their respective addresses set forth in
Section 10.3 of the Sale and Servicing Agreement; or, as to each of the
foregoing, at such other address as shall be designated by written notice
to the other parties.
SECTION 6.9. Costs and Expenses. The Seller will pay all expenses
incident to the performance of its obligations under this Agreement and the
Seller agrees to pay all reasonable out-of-pocket costs and expenses of the
Purchaser, excluding fees and expenses of counsel, in connection with the
perfection as against third parties of the Purchaser's right, title and
interest in, to and under the Receivables and the enforcement of any
obligation of the Seller hereunder.
SECTION 6.10. Representations of the Seller and the Purchaser. The
respective agreements, representations, warranties and other statements by
the Seller and the Purchaser set forth in or made pursuant to this
Agreement shall remain in full force and effect and will survive the
Closing under Section 2.4.
SECTION 6.11. Confidential Information. The Purchaser agrees that it
will neither use nor disclose to any Person the names and addresses of the
Obligors, except in connection with the enforcement of the Purchaser's
rights hereunder, under the Receivables, under the Sale and Servicing
Agreement or the Indenture or any other Basic Document or as required by
any of the foregoing or by law.
SECTION 6.12. Headings and Cross-References. The various headings in
this Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement. References in
this Agreement to Section names or numbers are to such Sections of this
Agreement unless otherwise expressly indicated.
SECTION 6.13. Governing Law. This Agreement and the Assignment shall
be construed in accordance with the laws of the State of New York, without
reference to its conflict of law provisions, and the obligations, rights
and remedies of the parties hereunder or thereunder shall be determined in
accordance with such laws.
SECTION 6.14. 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
but one and the same instrument.
SECTION 6.15. Severability. Any provision of this Agreement 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers duly authorized as of the date and
year first above written.
CASE RECEIVABLES II INC.
By: /s/ Robert A. Wegner
----------------------------
Name: Robert A. Wegner
Title: Vice President
CASE CREDIT CORPORATION
By: /s/ Robert A. Wegner
----------------------------
Name: Robert A. Wegner
Title: Vice President
SCHEDULE A
to Purchase Agreement
SCHEDULE OF RECEIVABLES
-----------------------
[PAPER COPY SENT TO SEC]
SCHEDULE B
to Purchase Agreement
LOCATION OF RECEIVABLES FILES
-----------------------------
Documents relating to the Receivables are located at one of the
following Case Corporation locations:
1. 233 Lake Avenue
Racine, Wisconsin 53403
2. 2205 Durand Avenue
Racine, Wisconsin 53403
3. 700 State Street
Racine, Wisconsin 53404
4. 6363 Poplar Avenue
Suite 330
Memphis, Tennessee 38119
5. 2626 E. 82nd Street
Suite 240
Bloomington, Minnesota 55425
6. 5000 Quorum
Suite 505
Dallas, Texas 75204
7. 3600 Sullivant Avenue
Columbus, Ohio 43228-0519
EXHIBIT A
to Purchase Agreement
FORM OF
ASSIGNMENT
----------
For value received, in accordance with and subject to the Purchase
Agreement dated as of September 1, 1996 (the "Purchase Agreement"), between
the undersigned and Case Receivables II Inc. (the "Purchaser"), the
undersigned does hereby sell, assign, transfer, set over and otherwise
convey unto the Purchaser, without recourse, all of its right, title and
interest in, to and under: (a) the Purchased Contracts, including all
documents constituting chattel paper included therewith, and all
obligations of the Obligors thereunder, including all moneys paid
thereunder on or after the Initial Cutoff Date, (b) the security interests
in the Financed Equipment granted by Obligors pursuant to the Purchased
Contracts and any other interest of the undersigned in such Financed
Equipment, (c) any proceeds with respect to the Purchased Contracts from
claims on insurance policies covering Financed Equipment or Obligors, (d)
any proceeds from recourse to Dealers with respect to the Purchased
Contracts other than any interest in the Dealers' reserve accounts
maintained with Case Credit Corporation, (e) any Financed Equipment that
shall have secured the Purchased Contracts and that shall have been
acquired by or on behalf of the Purchaser, and (f) the proceeds of any and
all of the foregoing (other than Recoveries). The foregoing sale does not
constitute and is not intended to result in any assumption by the Purchaser
of any obligation of the undersigned to the Obligors, insurers or any other
person in connection with the Purchased Contracts, Receivables Files, any
insurance policies or any agreement or instrument relating to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Purchase Agreement and is to be governed in all respects by the Purchase
Agreement.
Capitalized terms used herein and not otherwise defined shall have
the meanings assigned to them in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of September 19, 1996.
CASE CREDIT CORPORATION
By: __________________________
Name: Robert A. Wegner
Title: Vice President
EXHIBIT B
to Purchase Agreement
FORM OF
SUBSEQUENT TRANSFER ASSIGNMENT
------------------------------
For value received, in accordance with and subject to the Purchase
Agreement dated as of September 1, 1996 (the "Purchase Agreement"), between
Case Credit Corporation, a Delaware corporation (the "Seller"), and Case
Receivables II Inc., a Delaware corporation (the "Purchaser"), the Seller
does hereby sell, transfer, assign, set over and otherwise convey to the
Purchaser, without recourse, all of its right, title and interest in, to
and under: (a) the Subsequent Receivables, with an aggregate Contract Value
equal to $_______________, listed on Schedule A hereto, including all
documents constituting chattel paper included therewith, and all
obligations of the Obligors thereunder, including all moneys paid
thereunder on or after the Subsequent Cutoff Date, (b) the security
interests in the Financed Equipment granted by Obligors pursuant to such
Subsequent Receivables and any other interest of the Seller in such
Financed Equipment, (c) any proceeds with respect to such Subsequent
Receivables from claims on insurance policies covering Financed Equipment
or Obligors, (d) any proceeds from recourse to Dealers with respect to such
Subsequent Receivables other than any interest in the Dealers' reserve
accounts maintained with the Seller, (e) any Financed Equipment that shall
have secured any such Subsequent Receivables and that shall have been
acquired by or on behalf of the Purchaser, and (f) the proceeds of any and
all of the foregoing (other than Recoveries). The foregoing sale does not
constitute and is not intended to result in any assumption by the Purchaser
of any obligation of the Seller to the Obligors, insurers or any other
person in connection with such Subsequent Receivables, Receivable Files,
any insurance policies or any agreement or instrument relating to any of
them.
This Subsequent Transfer Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the Seller
contained in the Purchase Agreement (including the Officers' Certificate of
the Seller accompanying this Agreement) and is to be governed in all
respects by the Purchase Agreement.
Capitalized terms used but not otherwise defined herein shall have
the meanings assigned to them in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of _____________________, 1996.
CASE CREDIT CORPORATION
By:________________________
Name:_________________________
Title:________________________
SCHEDULE A
to Subsequent Transfer Assignment
SCHEDULE OF SUBSEQUENT RECEIVABLES
----------------------------------
[See attached list]
ANNEX A
to Subsequent Transfer Assignment
OFFICERS' CERTIFICATE
---------------------
We, the undersigned officers of Case Credit Corporation (the
"Company"), do hereby certify, pursuant to Section 4.1(b)(xiii) of the
Purchase Agreement dated as of September 1, 1996, among the Company, and
Case Receivables II Inc. (the "Purchase Agreement"), that all of the
conditions precedent to the transfer to the Purchaser of the Subsequent
Receivables listed on Schedule A to the Subsequent Transfer Assignment
delivered herewith, and the other property and rights related to such
Subsequent Receivables as described in Section 2.2 of the Purchase
Agreement, have been satisfied on or prior to the related Subsequent
Transfer Date.
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned have caused this certificate to
be duly executed this _____ day of _______, 199_.
By:________________________________
Name:__________________________
Title:_________________________
By:________________________________
Name:__________________________
Title:_________________________
===============================================================================
CASE EQUIPMENT LOAN TRUST 1996-B
ADMINISTRATION AGREEMENT
among
CASE EQUIPMENT LOAN TRUST 1996-B,
an Issuer,
and
CASE CREDIT CORPORATION,
as Administrator,
and
HARRIS TRUST AND SAVINGS BANK,
as Indenture Trustee.
Dated as of September 1, 1996
===============================================================================
TABLE OF CONTENTS
-----------------
Section Page
- ------- ----
1. Duties of the Administrator...................................... 2
(a) Duties with Respect to the Indenture, the Class B Note
Purchase Agreement and the Depository Agreement........... 2
(b) Duties with Respect to the Trust.......................... 6
(c) Non-Ministerial Matters................................... 7
2. Records.......................................................... 8
3. Compensation..................................................... 8
4. Additional Information To Be Furnished to the Issuer............. 8
5. Independence of the Administrator................................ 8
6. No Joint Venture................................................. 8
7. Other Activities of the Administrator............................ 9
8. Term of Agreement; Resignation and Removal of the Administrator.. 9
9. Action upon Termination, Resignation or Removal.................. 11
10. Notices......................................................... 11
11. Amendments...................................................... 12
12. Successors and Assigns.......................................... 13
13. Governing Law................................................... 13
14. Headings........................................................ 14
15. Counterparts.................................................... 14
16. Severability.................................................... 14
17. Not Applicable to Case Credit Corporation in Other Capacities... 14
18. Limitation of Liability of the Trustee and the Indenture Trustee 14
19. Third-Party Beneficiary......................................... 15
20. Indemnification................................................. 15
ADMINISTRATION AGREEMENT dated as of September 1, 1996, among CASE
EQUIPMENT LOAN TRUST 1996-B, a Delaware business trust (the "Issuer"), CASE
CREDIT CORPORATION, a Delaware corporation, as administrator (the
"Administrator"), and HARRIS TRUST AND SAVINGS BANK, an Illinois banking
corporation, not in its individual capacity but solely as Indenture Trustee
(the "Indenture Trustee").
RECITALS
WHEREAS, the Issuer is issuing: (a) 5.5625% Class A-1 Asset Backed
Notes, 6.25% Class A-2 Asset Backed Notes and 6.65% Class A-3 Asset Backed
Notes (collectively, the "Indenture Notes") pursuant to the Indenture,
dated as of the date hereof (as amended and supplemented from time to time
in accordance with the provisions thereof, the "Indenture"), between the
Issuer and the Indenture Trustee (capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned such terms in the
Indenture) and (b) Class B Asset Backed Notes (with the Indenture Notes,
the "Notes") pursuant to the Note Purchase Agreement, dated as of September
12, 1996 (as amended and supplemented from time to time in accordance with
the provisions thereof, the "Class B Note Purchase Agreement"), among the
Issuer, the Servicer, various purchasers from time to time party thereto
and The First National bank of Chicago, as Agent;
WHEREAS, the Issuer has entered into certain agreements in connection
with the issuance of the Notes and of certain beneficial ownership
interests of the Issuer, including: (i) a Sale and Servicing Agreement,
dated as of the date hereof (as amended and supplemented from time to time,
the "Sale and Servicing Agreement"), among the Issuer, Case Credit
Corporation, as servicer (the "Servicer"), and Case Receivables II Inc., a
Delaware corporation, as seller (the "Seller"), (ii) a Depository
Agreement, dated September 19, 1996 (the "Indenture Note Depository
Agreement"), among the Issuer, the Indenture Trustee, the Administrator and
The Depository Trust Company, (iii) a Depository Agreement, dated September
19, 1996 (the "Certificate Depository Agreement" and, together with the
Indenture Note Depository Agreement, the "Depository Agreement") among the
Issuer, Chase Manhattan Bank Delaware, as Trustee under the Trust Agreement
(as defined in the Sale and Servicing Agreement) (the "Trustee"), the
Administrator and The Depository Trust Company, (iv) the Indenture, (v) the
Class B Note Purchase Agreement and (vi) a Trust Agreement, dated as of the
date hereof (the "Trust Agreement"), between the Seller and the Trustee
(the Sale and Servicing Agreement, the Depository Agreement, the Indenture,
the Class B Note Purchase Agreement and the Trust Agreement being
hereinafter referred to collectively as the "Related Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer and the
Trustee are required to perform certain duties in connection with: (a) the
Indenture Notes and the Class B Notes and the collateral therefor pledged
pursuant to the Indenture (the "Collateral") and (b) the beneficial
ownership interests in the Issuer (the registered holders of such interests
being referred to herein as the "Owners");
WHEREAS, the Issuer and the Trustee desire to have the Administrator
perform certain of the duties of the Issuer and the Trustee referred to in
the preceding clause, and to provide such additional services consistent
with this Agreement and the Related Agreements as the Issuer and the
Trustee may from time to time request;
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and
the Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual terms and covenants
contained herein, and other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties agree as
follows:
1. Duties of the Administrator.
---------------------------
(a) Duties with Respect to the Indenture, the Class B Note Purchase
Agreement and the Depository Agreement. The Administrator shall perform all
of its duties as Administrator and the duties of the Issuer and the Trustee
under the Depository Agreement and the Class B Note Purchase Agreement. In
addition, the Administrator shall consult with the Trustee regarding the
duties of the Issuer and the Trustee under such documents. The
Administrator shall monitor the performance of the Issuer and shall advise
the Trustee when action is necessary to comply with the Issuer's or the
Trustee's duties under such documents. The Administrator shall prepare for
execution by the Issuer or shall cause the preparation by other appropriate
persons of all such documents, reports, filings, instruments, certificates
and opinions as it shall be the duty of the Issuer or the Trustee to
prepare, file or deliver pursuant to such documents. In furtherance of the
foregoing, the Administrator shall take all appropriate action that is the
duty of the Issuer or the Trustee to take pursuant to such documents,
including, without limitation, such of the foregoing as are required with
respect to the following matters (references in this Section are to
sections of the Indenture):
(i) the duty to cause the Indenture Note Register to be kept and
to give the Indenture Trustee notice of any appointment of a new
Indenture Note Registrar and the location, or change in location, of
the Indenture Note Register (Section 2.4);
(ii) the fixing or causing to be fixed of any specified record
date and the notification of the Indenture Trustee and Indenture
Noteholders with respect to special payment dates, if any (Section
2.7(c));
(iii) the preparation of or obtaining of the documents and
instruments required for authentication of the Indenture Notes and
delivery of the same to the Indenture Trustee (Section 2.2);
(iv) the preparation, obtaining or filing of the instruments,
opinions, certificates and other documents required for the release
of the Collateral (Section 2.9);
(v) the maintenance of an office in the Borough of Manhattan,
City of New York, for registration of transfer or exchange of
Indenture Notes (Section 3.2);
(vi) the duty to cause newly appointed Paying Agents, if any, to
deliver to the Indenture Trustee the instrument specified in the
Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit moneys with
the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuer's
qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of the Indenture, the Indenture Notes, the Class B
Note Purchase Agreement, the Class B Notes, the Collateral and each
other instrument and agreement included in the Trust Estate (Section
3.4);
(ix) the preparation of all supplements, amendments, financing
statements, continuation statements, instruments of further assurance
and other instruments, in accordance with Section 3.5 of the
Indenture, necessary to protect the Trust Estate (Section 3.5);
(x) the delivery of the Opinion of Counsel on the Closing Date
and the annual delivery of Opinions of Counsel, in accordance with
Section 3.6 of the Indenture, as to the Trust Estate, and the annual
delivery of the Officers' Certificate and certain other statements,
in accordance with Section 3.9 of the Indenture, as to compliance
with the Indenture (Sections 3.6 and 3.9);
(xi) the identification to the Indenture Trustee in an Officers'
Certificate of a Person with whom the Issuer has contracted to
perform its duties under the Indenture (Section 3.7(b));
(xii) the notification of the Indenture Trustee and the Rating
Agencies of a Servicer Default (as defined in the Sale and Servicing
Agreement) pursuant to the Sale and Servicing Agreement and, if such
Servicer Default arises from the failure of the Servicer to perform
any of its duties under the Sale and Servicing Agreement, the taking
of all reasonable steps available to remedy such failure (Section
3.7(d));
(xiii) the preparation and obtaining of documents and
instruments required for the release of the Issuer from its
obligations under the Indenture (Section 3.10(b));
(xiv) the delivery of notice to the Indenture Trustee of each
Event of Default and each default by the Servicer or Seller under the
Sale and Servicing Agreement (Section 3.19);
(xv) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation of an
Officers' Certificate and the obtaining of the Opinion of Counsel and
the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive of the Indenture
Trustee with respect to the sale of the Trust Estate in a
commercially reasonable manner if an Event of Default shall have
occurred and be continuing (Section 5.4);
(xvii) the furnishing to the Indenture Trustee with the names
and addresses of Indenture Noteholders during any period when the
Indenture Trustee is not the Indenture Note Registrar (Section 7.1);
(xviii) the preparation, execution and filing with the
Commission and the Indenture Trustee of documents required to be
filed on a periodic basis with, and summaries thereof as may be
required by rules and regulations prescribed by, the Commission and
the transmission of such summaries, as necessary, to the Indenture
Noteholders (Section 7.3);
(xix) the opening of one or more accounts in the Trust's name,
the preparation of Issuer Orders, Officers' Certificates and Opinions
of Counsel and all other actions necessary with respect to investment
and reinvestment of funds in the Trust Accounts (Sections 8.2 and
8.3);
(xx) the preparation of an Issuer Request and Officers'
Certificate and the obtaining of an Opinion of Counsel and
Independent Certificates, if necessary, for the release of the Trust
Estate as defined in the Indenture (Sections 8.4 and 8.5);
(xxi) the preparation of Issuer Orders and the obtaining of
Opinions of Counsel with respect to the execution of supplemental
indentures and the mailing to the Indenture Noteholders of notices
with respect to such supplemental indentures (Sections 9.1, 9.2 and
9.3);
(xxii) the execution and delivery of new Indenture Notes
conforming to any supplemental indenture (Section 9.6);
(xxiii) the notification of Indenture Noteholders of redemption
of the Indenture Notes or the duty to cause the Indenture Trustee to
provide such notification (Section 10.2);
(xxiv) the preparation of all Officers' Certificates, Opinions
of Counsel and Independent Certificates with respect to any requests
by the Issuer to the Indenture Trustee to take any action under the
Indenture (Section 11.1(a));
(xxv) the preparation and delivery of Officers' Certificates and
the obtaining of Independent Certificates, if necessary, for the
release of property from the lien of the Indenture (Section 11.1(b));
(xxvi) the preparation and delivery to Indenture Noteholders and
the Indenture Trustee of any agreements with respect to alternate
payment and notice provisions (Section 11.6);
(xxvii) the recording of the Indenture, if applicable (Section
11.15); and
(xxviii) the preparation, execution and delivery of all notices
and other documents relating to the Class B Notes, and the duty to
take all actions required in connection with any Class B Notes
pursuant to the Class B Note Purchase Agreement.
(b) Duties with Respect to the Trust. (i) In addition to the duties
of the Administrator set forth above, the Administrator shall perform such
calculations, and shall prepare for execution by the Issuer or the Trustee
or shall cause the preparation by other appropriate persons of all such
documents, reports, filings, instruments, certificates and opinions, as it
shall be the duty of the Issuer or the Trustee to perform, prepare, file or
deliver pursuant to the Related Agreements, and at the request of the
Trustee shall take all appropriate action that it is the duty of the Issuer
or the Trustee to take pursuant to the Related Agreements. Subject to
Section 5 of this Agreement, and in accordance with the directions of the
Trustee, the Administrator shall administer, perform or supervise the
performance of such other activities in connection with the Collateral
(including the Related Agreements) as are not covered by any of the
foregoing and as are expressly requested by the Trustee and are reasonably
within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible
for promptly notifying the Trustee in the event that any withholding
tax is imposed on the Trust's payments (or allocations of income) to
an Owner as contemplated in Section 5.2(c) of the Trust Agreement.
Any such notice shall specify the amount of any withholding tax
required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible
for performance of the duties of the Trustee set forth in Sections
5.5(a), (b), (c) and (d), the penultimate sentence of Section 5.5 and
Section 5.6(a) of the Trust Agreement with respect to, among other
things, accounting and reports to Owners; provided, however, that the
Trustee shall retain responsibility for the distribution of the
Schedule K-1s necessary to enable each Owner to prepare its Federal
and State income tax returns.
(iv) The Administrator shall satisfy its obligations with
respect to clauses (ii) and (iii) by retaining, at the expense of the
Trust payable by the Servicer, a firm of independent certified public
accountants (the "Accountants") acceptable to the Trustee, which
Accountants shall perform the obligations of the Administrator
thereunder. In connection with clause (ii), the Accountants will
provide prior to October 15, 1996, a letter in form and substance
satisfactory to the Trustee as to whether any tax withholding is then
required and, if required, the procedures to be followed with respect
thereto to comply with the requirements of the Code. The Accountants
shall be required to update the letter in each instance that any
additional tax withholding is subsequently required or any previously
required tax withholding shall no longer be required.
(v) The Administrator shall perform the duties of the
Administrator specified in Section 10.2 of the Trust Agreement
required to be performed in connection with the resignation or
removal of the Trustee, and any other duties expressly required to be
performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions with or otherwise deal with any of its affiliates;
provided, however, that the terms of any such transactions or
dealings shall be in accordance with any directions received from the
Issuer and shall be, in the Administrator's opinion, no less
favorable to the Issuer than would be available from unaffiliated
parties.
(vii) The Administrator hereby agrees to execute on behalf of
the Issuer all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Issuer to
prepare, file or deliver pursuant to the Basic Documents or otherwise
by law.
(c) Non-Ministerial Matters. (i) With respect to matters that in the
reasonable judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless within a reasonable time
before the taking of such action the Administrator shall have notified the
Trustee of the proposed action and the Trustee shall not have withheld
consent or provided an alternative direction. For the purpose of the
preceding sentence, "non-ministerial matters" shall include, without
limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer
and the compromise of any action, claim or lawsuit brought by or
against the Issuer (other than in connection with the collection
of the Receivables);
(C) the amendment, change or modification of the Related
Agreements;
(D) the appointment of successor Indenture Note
Registrars, successor Paying Agents and successor Trustees
pursuant to the Indenture or the appointment of successor
Administrators or successor Servicers, or the consent to the
assignment by the Indenture Note Registrar, Paying Agent or
Indenture Trustee of its obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this Agreement,
the Administrator shall not be obligated to, and shall not: (x) make
any payments to the Indenture Noteholders under the Related
Agreements, (y) sell the Trust Estate pursuant to Section 5.4 of the
Indenture or (z) take any other action that the Issuer directs the
Administrator not to take on its behalf.
2. Records. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books
of account and records shall be accessible for inspection by the Issuer,
the Indenture Trustee and the Depositor (as defined in the Trust Agreement)
at any time during normal business hours.
3. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for
its expenses related thereto, the Administrator shall be entitled to $500
per quarter payable in arrears on each Payment Date, which payment shall be
solely an obligation of the Issuer.
4. Additional Information To Be Furnished to the Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably
request.
5. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall
not be subject to the supervision of the Issuer or the Trustee with respect
to the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuer, the Administrator
shall have no authority to act for or represent the Issuer or the Trustee
in any way (other than as permitted hereunder) and shall not otherwise be
deemed an agent of the Issuer or the Trustee.
6. No Joint Venture. Nothing contained in this Agreement: (i) shall
constitute the Administrator and either of the Issuer or the Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed
to impose any liability as such on any of them or (iii) shall be deemed to
confer on any of them any express, implied or apparent authority to incur
any obligation or liability on behalf of the others.
7. Other Activities of the Administrator. Nothing herein shall
prevent the Administrator or its Affiliates from engaging in other
businesses or, in their sole discretion, from acting in a similar capacity
as an administrator for any other Person even though such Person may engage
in business activities similar to those of the Issuer, the Trustee or the
Indenture Trustee.
8. Term of Agreement; Resignation and Removal of the Administrator.
(a) This Agreement shall continue in force until the dissolution of the
Issuer, upon which event this Agreement shall automatically terminate.
(b) Subject to Section 8(e), the Administrator may resign its duties
hereunder by providing the Issuer, the Indenture Trustee and the Servicer
with at least 60 days' prior written notice.
(c) Subject to Section 8(e), the Issuer may remove the Administrator
without cause by providing the Administrator, the Indenture Trustee and the
Servicer with at least 60 days' prior written notice.
(d) Subject to Section 8(e), at the sole option of the Issuer, the
Administrator may be removed immediately upon written notice of termination
from the Issuer to the Administrator, the Indenture Trustee and the
Servicer if any of the following events shall occur:
(i) the Administrator shall default in the performance of any of
its duties under this Agreement and, after notice of such default,
shall not cure such default within ten days (or, if such default
cannot be cured in such time, shall not give within ten days such
assurance of cure as shall be reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not have
been vacated within 60 days, in respect of the Administrator in any
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect or appoint a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official for the Administrator or any substantial part of its
property or order the winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for
relief in an involuntary case under any such law, or shall consent to
the appointment of a receiver, liquidator, assignee, trustee,
custodian, sequestrator or similar official for the Administrator or
any substantial part of its property, shall consent to the taking of
possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of
creditors or shall fail generally to pay its debts as they become
due.
The Administrator agrees that if any of the events specified in
clauses (ii) or (iii) of this subsection shall occur, it shall give written
notice thereof to the Issuer, the Servicer and the Indenture Trustee within
seven days after the happening of such event.
(e) Upon the Administrator's receipt of notice of termination,
pursuant to Sections 8(c) or (d), or the Administrator's resignation in
accordance with this Agreement, the predecessor Administrator shall
continue to perform its functions as Administrator under this Agreement, in
the case of termination, only until the date specified in such termination
notice or, if no such date is specified in a notice of termination, until
receipt of such notice and, in the case of resignation, until the later of:
(x) the date 45 days from the delivery to the Issuer, the Indenture Trustee
and the Servicer of written notice of such resignation (or written
confirmation of such notice) in accordance with this Agreement and (y) the
date upon which the predecessor Administrator shall become unable to act as
Administrator, as specified in the notice of resignation and accompanying
Opinion of Counsel. In the event of the Administrator's termination
hereunder, the Issuer shall appoint a successor Administrator acceptable to
the Indenture Trustee, and the successor Administrator shall accept its
appointment by a written assumption in form acceptable to the Indenture
Trustee. In the event that a successor Administrator has not been appointed
at the time when the predecessor Administrator has ceased to act as
Administrator in accordance with this Section, the Indenture Trustee
without further action shall automatically be appointed the successor
Administrator and the Indenture Trustee shall be entitled to the
compensation specified in Section 3. Notwithstanding the above, the
Indenture Trustee shall, if it shall be unable so to act, appoint or
petition a court of competent jurisdiction to appoint any established
institution having a net worth of not less than $50,000,000 and whose
regular business shall include the performance of functions similar to
those of the Administrator, as the successor to the Administrator under
this Agreement.
(f) Upon appointment, the successor Administrator (including the
Indenture Trustee acting as successor Administrator) shall be the successor
in all respects to the predecessor Administrator and shall be subject to
all the responsibilities, duties and liabilities arising thereafter
relating thereto placed on the predecessor Administrator and shall be
entitled to the compensation specified in Section 3 and all the rights
granted to the predecessor Administrator by the terms and provisions of
this Agreement.
(g) Except when and if the Indenture Trustee is appointed successor
Administrator, the Administrator may not resign unless it is prohibited
from serving as such by law as evidenced by an Opinion of Counsel to such
effect delivered to the Indenture Trustee. No resignation or removal of the
Administrator pursuant to this Section shall be effective until: (i) a
successor Administrator shall have been appointed by the Issuer and (ii)
such successor Administrator shall have agreed in writing to be bound by
the terms of this Agreement in the same manner as the Administrator is
bound hereunder.
(h) The appointment of any successor Administrator shall be
effective only after satisfaction of the Rating Agency Condition with
respect to the proposed appointment.
9. Action upon Termination, Resignation or Removal. Promptly upon
the effective date of termination of this Agreement pursuant to Section
8(a), or the resignation or removal of the Administrator pursuant to
Section 8(b) or (c), respectively, the Administrator shall be entitled to
be paid all fees and reimbursable expenses accruing to it to the date of
such termination, resignation or removal. The Administrator shall forthwith
upon such termination pursuant to Section 8(a) deliver to the Issuer all
property and documents of or relating to the Collateral then in the custody
of the Administrator. In the event of the resignation or removal of the
Administrator pursuant to Section 8(b) or (c), respectively, the
Administrator shall cooperate with the Issuer and the Indenture Trustee and
take all reasonable steps requested to assist the Issuer and the Indenture
Trustee in making an orderly transfer of the duties of the Administrator.
10. Notices. Any notice, report or other communication given
hereunder shall be in writing and addressed as follows:
(a) if to the Issuer or the Trustee, to:
Case Equipment Loan Trust 1996-B
c/o Chase Manhattan Bank Delaware
1201 North Market Street
Wilmington, Delaware 19801
Attn: Corporate Trust Department
with a copy to:
The Chase Manhattan Bank
450 West 33rd Street
15th Floor
New York, New York 10001
Attn: Structured Finance Services (ABS)
(b) if to the Administrator, to:
Case Credit Corporation
233 Lake Avenue
Racine, Wisconsin 53403
Attention: Vice President & Treasurer
(c) if to the Indenture Trustee, to:
Harris Trust and Savings Bank
311 West Monroe Street, 12th Floor
Chicago, Illinois 60606
Attention: Indenture Trust Department
or to such other address as any party shall have provided to the other
parties in writing. Any notice required to be in writing hereunder shall be
deemed given if such notice is mailed by certified mail, postage prepaid,
or hand-delivered to the address of such party as provided above.
11. Amendments. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Issuer, the
Administrator and the Indenture Trustee, with the written consent of the
Trustee, but without the consent of any of the Indenture Noteholders, the
Class B Noteholders or the Certificateholders, to cure any ambiguity, to
correct or supplement provisions of this Agreement or for the purpose of
adding any provisions to or changing in any manner or eliminating any of
the provisions of this Agreement or of modifying in any manner the rights
of the Indenture Noteholders, Class B Noteholders or the
Certificateholders; provided, however, that such amendment shall not, as
evidenced by an Opinion of Counsel satisfactory to the Indenture Trustee,
adversely affect in any material respect the interests of any Indenture
Noteholder, Class B Noteholder or Certificateholder.
This Agreement may also be amended from time to time by the Issuer,
the Administrator and the Indenture Trustee with the written consent of (w)
the Trustee, (x) the Holders of Indenture Notes evidencing not less than a
majority of the Outstanding Amount of the Indenture Notes, (y) the Class B
Noteholders of Class B Notes evidencing not less than a majority of the
outstanding principal amount of the Class B Notes and (z) the Holders (as
defined in the Trust Agreement) of Certificates evidencing not less than a
majority of the Certificate Balance, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of
the Indenture Noteholders, the Class B Noteholders or the
Certificateholders; provided, however, that no such amendment shall: (i)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that are
required to be made for the benefit of the Indenture Noteholders, the Class
B Noteholders or the Certificateholders or (ii) reduce the aforesaid
percentage of the holders of Indenture Notes, Class B Notes and
Certificates that are required to consent to any such amendment, without
the consent of the holders of all the outstanding Indenture Notes, Class B
Notes and Certificates. Notwithstanding the foregoing, the Administrator
may not amend this Agreement without the permission of the Depositor, which
permission shall not be unreasonably withheld.
Promptly after the execution of any such amendment or consent (or, in
the case of the Rating Agencies, 10 days prior thereto), the Administrator
shall furnish written notification of the substance of such amendment or
consent to each Certificateholder, the Trustee and each of the Rating
Agencies.
It shall not be necessary for the consent of the Certificateholders,
the Class B Noteholders or the Indenture Noteholders pursuant to this
Section to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the
substance thereof.
12. Successors and Assigns. This Agreement may not be assigned by
the Administrator unless such assignment is previously consented to in
writing by the Issuer and the Trustee and subject to the satisfaction of
the Rating Agency Condition in respect thereof. An assignment with such
consent and satisfaction, if accepted by the assignee, shall bind the
assignee hereunder in the same manner as the Administrator is bound
hereunder. Notwithstanding the foregoing, this Agreement may be assigned by
the Administrator without the consent of the Issuer or the Trustee to a
corporation or other organization that is a successor (by merger,
consolidation or purchase of assets) to the Administrator, provided that
such successor organization executes and delivers to the Issuer, the
Trustee and the Indenture Trustee an agreement in which such corporation or
other organization agrees to be bound hereunder by the terms of said
assignment in the same manner as the Administrator is bound hereunder.
Subject to the foregoing, this Agreement shall bind any successors or
assigns of the parties hereto.
13. Governing Law. This Agreement shall be construed in accordance
with the laws of the State of New York, 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.
14. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
15. Counterparts. This Agreement may be executed in counterparts,
all of which when so executed shall together constitute but one and the
same agreement.
16. Severability. Any provision of this Agreement 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.
17. Not Applicable to Case Credit Corporation in Other Capacities.
Nothing in this Agreement shall affect any obligation Case Credit
Corporation may have in any other capacity.
18. Limitation of Liability of the Trustee and the Indenture
Trustee. (a) Notwithstanding anything contained herein to the contrary,
this instrument has been countersigned by Chase Manhattan Bank Delaware,
not in its individual capacity but solely in its capacity as Trustee of the
Issuer, and in no event shall Chase Manhattan Bank Delaware, in its
individual capacity, or any beneficial owner of the Issuer have any
liability for the representations, warranties, covenants, agreements or
other obligations of the Issuer hereunder, as to all of which recourse
shall be had solely to the assets of the Issuer. For all purposes of this
Agreement, in the performance of any duties or obligations of the Issuer
thereunder, the Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of Articles VI, VII and VIII of the Trust
Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by Harris Trust and Savings Bank, not in
its individual capacity but solely as Indenture Trustee, and in no event
shall Harris Trust and Savings Bank have any liability for the
representations, warranties, covenants, agreements or other obligations of
the Issuer hereunder or in any of the certificates, notices or agreements
delivered pursuant hereto, as to all of which recourse shall be had solely
to the assets of the Issuer.
19. Third-Party Beneficiary. The Trustee is a third-party
beneficiary to this Agreement and is entitled to the rights and benefits
hereunder and may enforce the provisions hereof as if it were a party
hereto.
20. Indemnification. The Administrator shall indemnify the Trustee
and the Indenture Trustee (and their officers, directors, employees and
agents) for, and hold them harmless against, any losses, liability or
expense, including attorneys' fees reasonably incurred by them, incurred
without negligence or bad faith on their part, arising out of or in
connection with: (i) actions taken by either of them pursuant to
instructions given by the Administrator pursuant to this Agreement or (ii)
the failure of the Administrator to perform its obligations hereunder. The
indemnities contained in this Section shall survive the termination of this
Agreement and the resignation or removal of the Administrator, the Trustee
or the Indenture Trustee.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
CASE EQUIPMENT LOAN TRUST 1996-B
By: CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but solely as
Trustee on behalf of the Issuer and on its own
behalf as Trustee under the Trust Agreement
By: /s/ John Cashin
-----------------------------------
Name: John Cashin
Title: Senior Trust Officer
HARRIS TRUST AND SAVINGS BANK,
not in its individual capacity
but solely as Indenture Trustee
By: /s/ Keith Richardson
------------------------------------
Name: Keith Richardson
Title: Assistant Trust Officer
CASE CREDIT CORPORATION,
as Administrator
By: /s/ Robert A. Wegner
------------------------------------
Name: Robert A. Wegner
Title: Vice President
