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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 22, 1997
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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)
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Form 8-K page 1
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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 1997-B (the "Trust")
and Harris Trust and Savings Bank, dated as of September 1, 1997.
4.2 Trust Agreement between Case Receivables II Inc. ("CRC") and The Bank
of New York, dated as of September 1, 1997.
4.3 Sale and Servicing Agreement among CRC, Case Credit Corporation
and the Trust, dated as of September 1, 1997.
4.4 Purchase Agreement between Case Credit Corporation and CRC, dated
as of September 1, 1997.
4.5 Administration Agreement between the Trust and Case Credit
Corporation, dated as of September 1, 1997.
4.6 Class A Note Underwriting Agreement among CRC, Case Credit
Corporation and Credit Suisse First Boston Corporation ("CS First
Boston"), dated as of September 11, 1997.
4.7 Class C Note Underwriting Agreement among CRC, Case Credit
Corporation and CS First Boston, dated as of September 11, 1997.
4.8 Class B Note Purchase Agreement among CRC, Case Credit Corporation
and CS First Boston, dated as of September 22, 1997.
Form 8-K page 2
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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 30, 1997 By: /s/ Peter Hong
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Peter Hong
Treasurer
Form 8-K page 3
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INDEX TO EXHIBITS
Exhibit Sequential
No. Document Description
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4.1 Indenture between Case Equipment Loan Trust 1997-B (the "Trust")
and Harris Trust and Savings Bank, dated as of September 1, 1997.
4.2 Trust Agreement between Case Receivables II Inc. ("CRC") and
The Bank of New York, dated as of September 1, 1997.
4.3 Sale and Servicing Agreement among CRC, Case Credit Corporation
and the Trust, dated as of September 1, 1997.
4.4 Purchase Agreement between Case Credit Corporation and CRC, dated
as of September 1, 1997.
4.5 Administration Agreement between the Trust and Case Credit
Corporation, dated as of September 1, 1997.
4.6 Class A Note Underwriting Agreement among CRC, Case Credit
Corporation and Credit Suisse First Boston Corporation ("CS First
Boston"), dated as of September 11, 1997.
4.7 Class C Note Underwriting Agreement among CRC, Case Credit
Corporation and CS First Boston, dated as of September 11, 1997.
4.8 Class B Note Purchase Agreement among CRC, Case Credit Corporation
and CS First Boston, dated as of September 22, 1997.
Form 8-K page 4
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CASE EQUIPMENT LOAN TRUST 1997-B
INDENTURE
between
CASE EQUIPMENT LOAN TRUST 1997-B
and
HARRIS TRUST AND SAVINGS BANK,
as Indenture Trustee.
Dated as of September 1, 1997
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TABLE OF CONTENTS
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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 Notes
SECTION 2.1. Form...........................................................12
SECTION 2.2. Execution, Authentication and Delivery.........................12
SECTION 2.3. Temporary Notes................................................13
SECTION 2.4. Registration; Registration of Transfer and Exchange............13
SECTION 2.5. Mutilated, Destroyed, Lost or Stolen Notes.....................14
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..........................................17
SECTION 2.10. Book-Entry Notes..............................................18
SECTION 2.11. Notices to Clearing Agency....................................18
SECTION 2.12. Definitive Notes..............................................19
ARTICLE III
Covenants
SECTION 3.1. Payment of Principal and Interest..............................19
SECTION 3.2. Maintenance of Office or Agency................................19
SECTION 3.3. Money for Payments To Be Held in Trust.........................20
SECTION 3.4. Existence......................................................22
SECTION 3.5. Protection of the Trust Estate.................................22
SECTION 3.6. Opinions as to the Trust Estate................................22
SECTION 3.7. Performance of Obligations; Servicing of Receivables...........23
SECTION 3.8. Negative Covenants.............................................25
SECTION 3.9. Annual Statement as to Compliance..............................26
SECTION 3.10. Issuer May Consolidate, etc., Only on Certain Terms...........26
SECTION 3.11. Successor or Transferee.......................................28
SECTION 3.12. No Other Business.............................................28
SECTION 3.13. No Borrowing..................................................28
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SECTION 3.14. Servicer's Obligations........................................29
SECTION 3.15. Guarantees, Loans, Advances and Other Liabilities.............29
SECTION 3.16. Capital Expenditures..........................................29
SECTION 3.17. Removal of Administrator......................................29
SECTION 3.18. Restricted Payments...........................................29
SECTION 3.19. Notice of Events of Default...................................29
SECTION 3.20. Further Instruments and Acts..................................30
ARTICLE IV
Satisfaction and Discharge
SECTION 4.1. Satisfaction and Discharge of Indenture........................30
SECTION 4.2. Application of Trust Money.....................................31
SECTION 4.3. Repayment of Moneys Held by Paying Agent.......................31
ARTICLE V
Remedies
SECTION 5.1. Events of Default..............................................32
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.............33
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee ..........................................34
SECTION 5.4. Remedies; Priorities...........................................37
SECTION 5.5. Optional Preservation of the Receivables.......................38
SECTION 5.6. Limitation of Suits............................................39
SECTION 5.7. Unconditional Rights of Noteholders To Receive Principal and
Interest....................................................40
SECTION 5.8. Restoration of Rights and Remedies.............................40
SECTION 5.9. Rights and Remedies Cumulative............................... 40
SECTION 5.10. Delay or Omission Not a Waiver................................40
SECTION 5.11. Control by Noteholders........................................40
SECTION 5.12. Waiver of Past Defaults.......................................41
SECTION 5.13. Undertaking for Costs.........................................42
SECTION 5.14. Waiver of Stay or Extension Laws..............................42
SECTION 5.15. Action on Notes...............................................42
SECTION 5.16. Performance and Enforcement of Certain Obligations............42
ARTICLE VI
The Indenture Trustee
SECTION 6.1. Duties of the Indenture Trustee................................43
SECTION 6.2. Rights of Indenture Trustee....................................45
SECTION 6.3. Individual Rights of the Indenture Trustee.....................46
SECTION 6.4. Indenture Trustee's Disclaimer.................................46
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SECTION 6.5. Notice of Defaults.............................................46
SECTION 6.6. Reports by Indenture Trustee to the Holders....................47
SECTION 6.7. Compensation and Indemnity.....................................47
SECTION 6.8. Replacement of the Indenture Trustee...........................47
SECTION 6.9. Successor Indenture Trustee by Merger..........................49
SECTION 6.10. Appointment of Co-Trustee or Separate Trustee.................49
SECTION 6.11. Eligibility; Disqualification.................................51
SECTION 6.12. Preferential Collection of Claims Against the Issuer..........52
ARTICLE VII
Noteholders' Lists and Reports
SECTION 7.1. Issuer To Furnish Indenture Trustee Names and Addresses
of Noteholders ..................................52
SECTION 7.2. Preservation of Information; Communications to Noteholders.....52
SECTION 7.3. Reports by Issuer..............................................53
ARTICLE VIII
Accounts, Disbursements and Releases
SECTION 8.1. Collection of Money............................................53
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 Noteholders.........58
SECTION 9.2. Supplemental Indentures With Consent of 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............................61
SECTION 9.6. Reference in Notes to Supplemental Indentures..................62
ARTICLE X
Redemption of Notes
SECTION 10.1. Redemption....................................................62
SECTION 10.2. Form of Redemption Notice.....................................62
SECTION 10.3. Notes Payable on Redemption Date..............................63
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ARTICLE XI
Miscellaneous
SECTION 11.1. Compliance Certificates and Opinions, etc.....................63
SECTION 11.2. Form of Documents Delivered to Indenture Trustee..............65
SECTION 11.3. Acts of Noteholders...........................................66
SECTION 11.4. Notices, etc., to the Indenture Trustee, Issuer and Rating
Agencies....................................................67
SECTION 11.5. Notices to Noteholders; Waiver................................68
SECTION 11.6. Alternate Payment and Notice Provisions.......................68
SECTION 11.7. Conflict with Trust Indenture Act.............................69
SECTION 11.8. Effect of Headings and Table of Contents......................69
SECTION 11.9. Successors and Assigns........................................69
SECTION 11.10. Severability.................................................69
SECTION 11.11. Benefits of Indenture........................................69
SECTION 11.12. Legal Holidays...............................................69
SECTION 11.13. Governing Law................................................69
SECTION 11.14. Counterparts.................................................70
SECTION 11.15. Recording of Indenture.......................................70
SECTION 11.16. Trust Obligation.............................................70
SECTION 11.17. No Petition..................................................70
SECTION 11.18. Inspection...................................................70
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 A-4 Form of A-4 Notes
EXHIBIT A-5 Form of Class B Notes
EXHIBIT A-6 Form of Class C Notes
EXHIBIT B Form of Section 3.9 Officers' Certificate
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INDENTURE, dated as of September 1, 1997, between CASE EQUIPMENT
LOAN TRUST 1997-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 5.612%
Class A-1 Asset Backed Notes (each an "A-1 Note"), 5.914% Class A-2 Asset
Backed Notes (each an "A-2 Note"), 6.240% Class A-3 Asset Backed Notes
(each an "A-3 Note") 6.410% Class A-4 Asset Backed Notes (each an "A-4
Note"; together with the A-1 Notes, the A-2 Notes and the A-3 Notes, the
"Class A Notes"), the Floating Rate Class B Notes (the "Class B Notes") and
the 6.410% Class C Notes (the "Class C Notes"; together with the Class A
Notes, the "Offered Notes," and together with the Class A Notes and the
Class B Notes, the "Notes").
GRANTING CLAUSE
The Issuer hereby Grants to Harris at the Closing Date, as
Indenture Trustee for the benefit of the Holders of the Notes, 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;
<PAGE>
(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 Class A Notes, equally and ratably without prejudice,
priority or distinction, (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, (z) third,
the payment of principal of and interest on, and any other amounts owing in
respect of, the Class C Notes, equally and ratably without prejudice,
priority or distinction, and to secure compliance with this Indenture.
(1) Harris, as Indenture Trustee on behalf of the Noteholders,
acknowledges such Grant, and (2) as Indenture Trustee on behalf of the
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 Noteholders
may be adequately and effectively protected.
<PAGE>
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 5.612% per annum, computed on the basis of
actual days elapsed and a 360-day year.
"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 5.914% per annum, computed on the basis of
actual days elapsed and a 360-day year.
"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 6.240% per annum, computed on the basis of a
360-day year of twelve 30-day months.
"A-4 Note" is defined in the recitals. Each A-4 Note shall be
substantially in the form of Exhibit A-4.
"A-4 Note Rate" means 6.410% 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, the
Trustee 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.
<PAGE>
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 Note Depository Agreement, the Class B Note
Purchase Agreement and other documents and certificates delivered in
connection therewith.
"Book-Entry Notes" means a beneficial interest in the 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 substantially in the form of Exhibit A-5.
"Class B Note Purchase Agreement" means the Class B Note Purchase
Agreement, dated as of September 22, 1997, among Case Equipment Loan Trust
<PAGE>
1997-B, Case Credit Corporation, as Administrator, Case Receivables II
Inc., the Purchasers described therein, and Credit Suisse First Boston, New
York Branch, as Agent.
"Class C Note" is defined in the recitals. Each Class C Note shall
be substantially in the form of Exhibit A-6.
"Class C Note Rate" means 6.410% per annum, computed on the basis
of a 360-day year of twelve 30-day months.
"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 22, 1997.
"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.
"Commission" shall mean the Securities and Exchange Commission.
"Controlling Class" means (a) so long as there remains any
Outstanding Amount of Class A Notes, the Class A Notes and the Class C
Notes voting as a single Class; (b) thereafter, so long as there remains
any Outstanding Amount of Class B Notes, the Class B Notes and the Class C
Notes voting as a single Class; and (c) thereafter, the Class C Notes.
"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 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 Noteholders and the Issuer).
<PAGE>
"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.
"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.
"Floating Rate" is defined in the Sale and Servicing Agreement.
"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 a Note is registered on the
Note Register.
"Indenture" means this Indenture as amended or supplemented from time
to time.
<PAGE>
"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 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 1997-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 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 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.
"Noteholder" means a Holder.
"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).
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 2.4.
<PAGE>
"Notes" is defined in the in the recitals.
"Offered Notes" is defined in the recitals.
"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 Notes
theretofore authenticated and delivered under this Indenture except:
(i) Notes theretofore canceled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(ii) 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 Notes (provided, however, that if such Notes are to be
redeemed, notice of such redemption has been duly given pursuant
to this Indenture); and
(iii) Notes in exchange for or in lieu of other Notes
that have been authenticated and delivered pursuant to this
Indenture unless proof satisfactory to the Indenture Trustee is
presented that any such Notes are held by a bona fide purchaser;
provided, that in determining whether the Holders of the requisite
Outstanding Amount of the Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or under any
Basic Document, Notes owned by the Issuer, any other obligor upon the
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
Notes that a Responsible Officer of the Indenture Trustee actually knows to
be so owned shall be so disregarded. Notes so owned that have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes
<PAGE>
to the satisfaction of the Indenture Trustee the pledgee's right so to act
with respect to such Notes and that the pledgee is not the Issuer, any
other obligor upon the Notes, the Seller or any Affiliate of any of the
foregoing Persons.
"Outstanding Amount" means the aggregate principal amount of all
Notes, or Class of 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 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 Note" means, with respect to any particular Note,
every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purpose of this definition,
any Note authenticated and delivered under Section 2.5 in lieu of a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the
same debt as the mutilated, lost, destroyed or stolen 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
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.
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"Redemption Date" means: (i) the Payment Date specified by the
Servicer or the Issuer pursuant to Section 10.1(a), or (ii) in the case of
a redemption of 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
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 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 a Note is
registered on the 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, collectively, the listing of the
Receivables attached to the Assignment (as defined in the Sale and
Servicing Agreement), and the listings of Receivables attached to each
Subsequent Transfer Assignment (as defined in the Sale and Servicing
Agreement).
"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 Noteholders
(including all property and interests Granted to the Indenture Trustee),
including all proceeds thereof.
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"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 Class A Notes and Class C Notes.
"indenture security holder" means a Class A Noteholder or a Class
C 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.
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ARTICLE II
The Notes
SECTION 2.1. Form. The A-1 Notes, A-2 Notes, A-3 Notes, the A-4
Notes, the Class B Notes and Class C Notes, together with the Indenture
Trustee's certificate of authentication, shall be in substantially the
forms set forth in Exhibits A-1, A-2, A-3, A-4, A-5 and A-6 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 Notes, as evidenced by their execution of
the Notes. Any portion of the text of any Note may be set forth on the
reverse thereof, with an appropriate reference thereto on the face of the
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 Notes, as evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The terms
of the Notes set forth in Exhibits A-1, A-2, A-3, A-4, A-5 and A-6 are part
of the terms of this Indenture.
SECTION 2.2. Execution, Authentication and Delivery. The Notes shall
be executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile.
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 Notes or did not hold such offices at the date of such Notes.
The Indenture Trustee shall upon Issuer Order authenticate and
deliver A-1 Notes, A-2 Notes, A-3 Notes, A-4 Notes, Class B Notes and Class
C Notes for original issue in an aggregate principal amount of $90,000,000,
$204,500,000, $237,000,000, $188,591,000, $97,960,250.83 and $34,719,000,
respectively. The Outstanding Amount of A-1 Notes, A-2 Notes, A-3 Notes,
A-4 Notes, Class B Notes and Class C Notes at any time may not exceed such
respective amounts except as provided in Section 2.5.
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Each Note shall be dated the date of its authentication. The Notes
shall be issuable as registered Notes in the minimum denomination of $1,000
and in integral multiples of $1,000 in excess thereof.
No Note shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose, unless there appears on such 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 Note has been duly
authenticated and delivered hereunder.
SECTION 2.3. Temporary 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
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 Notes may determine, as evidenced
by their execution of such Notes.
If temporary Notes are issued, the Issuer will cause Definitive
Notes to be prepared without unreasonable delay. After the preparation of
Definitive Notes, the temporary Notes shall be exchangeable for Definitive
Notes upon surrender of the temporary 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 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 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 "Note Register") in
which, subject to such reasonable regulations as it may prescribe, the
Issuer shall provide for the registration of Notes and the registration of
transfers of Notes. The Indenture Trustee shall be the "Note Registrar" for
the purpose of registering Notes and transfers of Notes as herein provided.
Upon any resignation of any Note Registrar, the Issuer shall promptly
appoint a successor or, if it elects not to make such an appointment,
assume the duties of the Note Registrar.
If a Person other than the Indenture Trustee is appointed by the
Issuer as the Note Registrar, the Issuer will give the Indenture Trustee
prompt written notice of the appointment of such Note Registrar and of the
location, and any change in the location, of the Note Register, and the
Indenture Trustee shall have the right to inspect the Note Register at all
reasonable times, to obtain copies
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thereof and to rely upon a certificate executed on behalf of the Note
Registrar by an Executive Officer thereof as to the names and addresses of
the Holders of the Notes and the principal amounts and number of such
Notes.
Upon surrender for registration of transfer of any 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 Noteholder
shall obtain from the Indenture Trustee, in the name of the designated
transferee or transferees, one or more new Notes in any authorized
denominations of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other new
Notes of the same Class in any authorized denominations of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at such
office or agency. Whenever any 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 Noteholder shall
obtain from the Indenture Trustee, the Notes that the Noteholder making the
exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Issuer, evidencing the same
debt and entitled to the same benefits under this Indenture as the Notes
surrendered upon such registration of transfer or exchange.
Every 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 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 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 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
Notes, other than exchanges pursuant to Section 2.3 or 9.6 not involving
any transfer.
SECTION 2.5. Mutilated, Destroyed, Lost or Stolen Notes. If: (i) any
mutilated Note is surrendered to the Indenture Trustee, or the Indenture
Trustee
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receives evidence to its satisfaction of the destruction, loss or theft of
any 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 Note Registrar
or the Indenture Trustee that such 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 Note, a replacement Note of the
same Class; provided, however, that if any such destroyed, lost or stolen
Note, but not a mutilated 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 Note, the Issuer may pay such destroyed,
lost or stolen Note when so due or payable or upon the Redemption Date
without surrender thereof. If, after the delivery of such replacement Note
(or payment of a destroyed, lost or stolen Note pursuant to the proviso to
the preceding sentence), a bona fide purchaser of the original Note in lieu
of which such replacement Note was issued presents for payment such
original Note, the Issuer and the Indenture Trustee shall be entitled to
recover such replacement Note (or such payment) from the Person to whom it
was delivered or any Person taking such replacement Note from such Person
to whom such replacement 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 Note under this Section, the
Issuer may require the payment by the Holder of such 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 Note issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Note shall
constitute an original additional contractual obligation of the Issuer,
whether or not the mutilated, destroyed, lost or stolen 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 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 Notes.
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SECTION 2.6. Persons Deemed Owner. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and
any agent of the Issuer or the Indenture Trustee may treat the Person in
whose name any Note is registered (as of the day of determination) as the
owner of such Note for the purpose of receiving payments of principal of
and interest, if any, on such Note and for all other purposes whatsoever,
whether or not such 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, A-3 Notes, A-4 Notes, Class B Notes
and Class C Notes shall accrue interest at the A-1 Note Rate, the A-2 Note
Rate, the A-3 Note Rate, the A-4 Note Rate, the Floating Rate and the Class
C 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 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 Note (or one or more Predecessor Notes) is
registered on the Record Date by check mailed first-class, postage prepaid,
to such Person's address as it appears on the Note Register on such Record
Date. However: (i) unless Definitive Notes have been issued, with respect
to 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; and (ii) unless otherwise agreed upon by the
Indenture Trustee and a Holder of Class B Notes, payment to each such
Holder of Class B Notes will be made by wire transfer in immediately
available funds to the account designated by each such Holder of Class B
Notes. Notwithstanding the above, the final installment of principal
payable with respect to such Note (and except for the Redemption Price for
any 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 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 on: (A)
the date on which an Event of Default shall have occurred and be continuing
if the Indenture Trustee or the Holders of Notes representing not less than
a majority of the Outstanding Amount of the Notes in the Controlling Class
have declared the Notes to be immediately due and payable in the manner
provided in Section 5.2, and (B) if any Notes remain Outstanding, on and
after the September, 2004 Payment Date. In all other circumstances, all
principal payments on each Class of Notes shall be made pro rata to the
Noteholders of such Class entitled thereto.
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(ii) The Indenture Trustee shall notify the Person in
whose name a 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
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 Note and shall specify the place where such Note
may be presented and surrendered for payment of such installment.
Notices in connection with redemptions of Notes shall be mailed to
Noteholders as provided in Section 10.2.
(c) If the Issuer defaults in a payment of interest on the 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
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 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 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 canceled by the Indenture Trustee. The Issuer
may at any time deliver to the Indenture Trustee for cancellation any Notes
previously authenticated and delivered hereunder that the Issuer may have
acquired in any manner whatsoever, and all Notes so delivered shall be
promptly canceled by the Indenture Trustee. No Notes shall be authenticated
in lieu of or in exchange for any Notes canceled as provided in this
Section except as expressly permitted by this Indenture. All canceled 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 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 ss.ss.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.
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SECTION 2.10. Book-Entry Notes. The Offered Notes, upon original
issuance, will be issued in the form of typewritten 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 Offered Notes shall initially be registered on the Note
Register in the name of Cede & Co., the nominee of the initial Clearing
Agency, and no Note Owner of such Offered Note will receive a Definitive
Note representing such Note Owner's interest in such Offered Note, except
as provided in Section 2.12. Unless and until definitive, fully registered
Notes (the "Definitive Notes") representing Offered Notes have been issued
to Note Owners:
(i) this Section shall be in full force and effect;
(ii) the 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 Offered 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 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 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
Notes evidencing a specified percentage of the Outstanding Amount
of the Notes (or a Class of 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 Notes
(or Class of 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 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.
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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 Offered 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
Offered 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 Offered 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 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 Noteholders.
(b) Notwithstanding anything herein to the contrary, the Class B
Notes shall be issued as Definitive Notes.
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 Notes in
accordance with the terms of the 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 Notes pursuant to the
Sale and Servicing Agreement to Holders of the Notes. Amounts properly
withheld under the Code or any applicable State law by any Person from a
payment to any Noteholder of interest and/or principal shall be considered
as having been paid by the Issuer to such 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
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Notes may be surrendered for registration of transfer or exchange, and
where notices and demands to or upon the Issuer in respect of the 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 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 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
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 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 Notes) of which it has
actual knowledge in the making of any payment required to be made
with respect to the Notes;
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(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 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 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 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 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 Notes have
been called but have not been surrendered for redemption or whose right to
or interest in moneys due and payable but not
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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 Notes, the Collateral and each other
instrument or agreement included in the Trust Estate.
SECTION 3.5. Protection of 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 Trust Estate and
the rights of the Indenture Trustee and the Noteholders in such
Trust Estate against the claims of all Persons.
The Issuer hereby designates the Indenture Trustee 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 Trust Estate. (a) On the Closing
Date, 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 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.
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(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 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 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 Notes.
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(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
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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 Noteholders, or (ii) reduce the aforesaid
percentage of the Notes that are required to consent to any such amendment,
in either case without the consent of the Holders of all the Outstanding
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 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 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 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 Noteholder by reason of the
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payment of the taxes levied or assessed upon any part of 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 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 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
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 1997), 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 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;
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(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 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 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 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 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 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 Notes;
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(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 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 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 Notes.
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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 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.
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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 Notes
except as to: (i) rights of registration of transfer and exchange, (ii)
substitution of mutilated, destroyed, lost or stolen Notes, (iii) rights of
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
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 Notes, when:
(A) either:
(1) all Notes theretofore authenticated and
delivered (other than: (i) Notes that have been
destroyed, lost or stolen and that have been replaced or
paid as provided in Section 2.5 and (ii) 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 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
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(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 Notes not theretofore
delivered to the Indenture Trustee for cancellation when
due to the Final Scheduled Maturity Date or Redemption
Date (if 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.
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 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 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 Notes, all moneys then held by any Paying Agent other than
the Indenture Trustee under this Indenture with respect to such 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.
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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 Note
when the same becomes due and payable, and such default shall
continue for a period of five days; provided that (A) until the
Outstanding Amount of the Class A Notes and the Outstanding Amount
of the Class B Notes are paid in full, the failure to pay interest
on the Class C Notes will not constitute an "Event of Default" and
(B) until the Outstanding Amount of the Class A Notes is paid in
full, the failure to pay interest on the Class B Notes will not
constitute an "Event of Default";
(ii) default in the payment of the principal of any Note
when the same becomes due and payable; it being understood that
except (A) on the A-1 Note Final Scheduled Maturity Date with
respect to the A-1 Notes, (B) the A-2 Note Final Scheduled
Maturity Date, with respect to the A-2 Notes, and (C) on the Final
Scheduled Maturity Date, for each other Class of Notes, the amount
of principal due any class of Noteholders will be limited to the
amounts required to be deposited into the Note Distribution
Account for that purpose pursuant to Section 5.5(b) of the Sale
and Servicing Agreement;
(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 Notes in the Controlling Class, a written
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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 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 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 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 Notes in the Controlling
Classes representing not less than a majority of the Outstanding Amount of
the Notes in the Controlling Classes may declare all the Notes to be
immediately due and payable, by a notice in writing to the Issuer (and to
the Indenture Trustee if given by 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.
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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 Notes in the Controlling Classes representing not
less than a majority of the Outstanding Amount of the Notes in the
Controlling Classes, 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 Notes and all other amounts that would then be due
hereunder or upon such 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 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 Notes,
the whole amount then due and payable on such 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
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same against the Issuer or other obligor upon such Notes and collect in the
manner provided by law out of the property of the Issuer or other obligor
upon such 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
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 Notes or any Person having or claiming an ownership
interest in 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 Notes, or to the creditors or property of the Issuer or such other
obligor, the Indenture Trustee, irrespective of whether the principal of
any 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 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 Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law or regulations,
to vote on behalf of the Holders of the Notes in any election of a
trustee, a standby trustee or any Person performing similar
functions in any such Proceedings;
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(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 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 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 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 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 Noteholder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder
thereof or to authorize the Indenture Trustee to vote in respect of the
claim of any 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 Notes, may be enforced by the Indenture
Trustee without the possession of any of the 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 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 Notes, and it
shall not be necessary to make any Noteholder a party to any such
Proceedings.
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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 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 Notes
moneys adjudged due;
(ii) institute Proceedings from time to time for the
complete or partial foreclosure of this Indenture with respect to
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 Notes;
(iv) sell 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 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
Noteholders consent thereto, (B) the proceeds of such sale or liquidation
distributable to the Noteholders are sufficient to discharge in full all
amounts then due and unpaid upon such Notes for principal and interest or
(C) the Indenture Trustee determines that the Trust Estate will not
continue to provide sufficient funds for the payment of principal of and
interest on the Notes as they would have become due if the 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
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.
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SECOND: to the Noteholders in the same priorities set out in
Section 5.5(b) of the Sale and Servicing Agreement, provided that:
(i) amounts distributable as principal with respect to
the Class A Notes shall be distributed ratably among all
of the Class A Notes based on their respective
outstanding principal amounts, rather than sequentially;
and
(ii) any proceeds from (and expenses relating to) a sale
of the Receivables or other enforcement actions shall be
allocated between the Fixed Rate Distribution Amount and
Floating Rate Distribution Amount as follows: (A) if such
proceeds (or expenses) relate solely to Fixed Rate
Receivables, such proceeds (or expenses) shall be
allocated to the Fixed Rate Distribution Amount; (B) if
such proceeds (or expenses) relate solely to Floating
Rate Receivables, such proceeds (or expenses) shall be
allocated to the Floating Rate Distribution Amount; and
(C) if such proceeds (or expenses) relate to both Fixed
Rate Receivables and Floating Rate Receivables, such
proceeds (or expenses) shall be allocated to the Fixed
Rate Distribution Amount and the Floating Rate
Distribution Amount based upon the Fixed Rate Percentage
and Floating Rate Percentage in effect at the time of
such sale or on such other reasonable basis as the
Indenture Trustee may determine (and for this purpose,
the Indenture Trustee may consult with, and conclusively
rely upon the advice of the Servicer or other agents in
determining such allocation).
THIRD: 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 Noteholders pursuant to this Section. At
least 15 days before such special record date, the Issuer shall mail to
each 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
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 Trust Estate. It is the desire of the parties
hereto and the Noteholders that there be at all times sufficient funds for
the payment of principal of and interest on the Notes, and the Indenture
Trustee shall take such desire into account when determining whether or not
to maintain possession of the Trust Estate. In determining whether to
maintain possession of the Trust Estate, the Indenture
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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
Trust Estate for such purpose.
SECTION 5.6. Limitation of Suits. No Holder of any 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 Notes in the Controlling Classes 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
Notes;
it being understood and intended that no one or more Holder(s) of 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 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 Noteholders,
each representing less than a majority of the Outstanding Amount of the
Notes, the Indenture Trustee in its sole discretion may determine what
action, if any, shall be taken, notwithstanding any other provisions of
this Indenture.
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SECTION 5.7. Unconditional Rights of Noteholders To Receive
Principal and Interest. Notwithstanding any other provisions in this
Indenture, the Holder of any Note shall have the right, which is absolute
and unconditional, to receive payment of the principal of and interest, if
any, on such Note on or after the respective due dates thereof expressed in
such 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; provided that (A) until the Outstanding Amount of the Class A Notes
and the Outstanding Amount of the Class B Notes are paid in full, the
failure to pay interest on the Class C Notes will not constitute an "Event
of Default" and (B) until the Outstanding Amount of the Class A Notes is
paid in full, the failure to pay interest on the Class B Notes will not
constitute an "Event of Default".
SECTION 5.8. Restoration of Rights and Remedies. If the Indenture
Trustee or any 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 Noteholder, then and in every such case
the Issuer, the Indenture Trustee and the 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 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
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 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 Noteholders may be
exercised from time to time, and as often as may be deemed expedient, by
the Indenture Trustee or by the Noteholders, as the case may be.
SECTION 5.11. Control by Noteholders. The Holders of not less than a
majority of the Outstanding Amount of the Notes in the Controlling Classes shall
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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 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 Trust
Estate shall be by all the Noteholders;
(iii) if the conditions set forth in Section 5.5 have
been satisfied and the Indenture Trustee elects to retain the
Trust Estate pursuant to such Section, then any direction to the
Indenture Trustee by Holders of Notes representing less than 100%
of the Outstanding Amount of the Notes to sell or liquidate 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 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 Notes of not less than a majority of the
Outstanding Amount of the Controlling Classes of the Notes may waive any
past Default or Event of Default and its consequences except a Default or
Event of Default: (a) in payment of principal of or interest on any of the
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 Note. In the
case of any such waiver, the Issuer, the Indenture Trustee and the Holders
of the 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.
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SECTION 5.13. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any 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 Noteholder(s) holding in the aggregate more than
10% of the Outstanding Amount of the Notes or (c) any suit instituted by
any Noteholder for the enforcement of the payment of principal of or
interest on any Note on or after the respective due dates expressed in such
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 Notes. The Indenture Trustee's right to
seek and recover judgment on the 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 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 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
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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 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 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.
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(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 any combination of Holders and Note Owners
owning Notes aggregating not less than 10% of the Outstanding
Amount of the 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
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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
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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 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 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
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 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, 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 Notes; shall not be
accountable for the Issuer's use of the proceeds from the 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 Notes or in the
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 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 Note (including
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payments pursuant to the mandatory redemption provisions of such 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 Noteholders.
SECTION 6.6. Reports by Indenture Trustee to the Holders. The
Indenture Trustee shall deliver to each 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 Noteholder a brief report as of such December 31
that complies with TIA ss. 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
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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 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 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 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
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
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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 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
Notes so authenticated; and in case at that time any of the Notes shall not
have been authenticated, any successor to the Indenture Trustee may
authenticate such 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 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 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 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
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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.
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SECTION 6.11. Eligibility; Disqualification. The Indenture Trustee
shall at all times satisfy the requirements of TIA ss. 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 ss.
310(b), including the optional provision permitted by the second sentence
of TIA ss. 310(b)(9); provided, however, that there shall be excluded from
the operation of TIA ss. 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 ss. 310(b)(1) are met.
If a default occurs under this Indenture, and the Indenture
Trustee is deemed to have a conflicting interest as a result of acting as
trustee for more than one Class of Notes, a successor Indenture Trustee
shall be appointed for two or more of such Classes (but considering the A-1
Notes, A-2 Notes, A-3 Notes and A-4 Notes as a single Class of Notes for
this purpose), so that there will be separate Indenture Trustees for each
Class of Notes. No such event shall alter the voting rights of the
Noteholders of any Class under this Indenture or any other Basic Document.
However, so long as any amounts remain unpaid with respect to the Class A
Notes, only the Indenture Trustee for the Class A Noteholders will have the
right to exercise remedies under this Indenture (but subject to the express
provisions of Section 5.4 and to the right of the Class B Noteholders and
Class C Noteholders to receive their share of any proceeds of enforcement
as described herein). Upon repayment of the Class A Notes in full, all
rights to exercise remedies under the Indenture will transfer to the
Indenture Trustee for the Class B Notes. So long as the Class A Notes shall
have been repaid in full and any amounts remain unpaid with respect to the
Class B Notes, only the Indenture Trustee for the Class B Noteholders will
have the right to exercise remedies under this Indenture (but subject to
the express provisions of Section 5.4 and to the right of the Class C
Noteholders to receive their share of any proceeds of enforcement, subject
to the subordination of the Class C Notes to the Class B Notes as described
herein). Upon repayment of the Class A Notes and the Class B Notes in full,
all rights to exercise remedies under the Indenture will transfer to the
Indenture Trustee for the Class C Notes.
In the case of the appointment hereunder of a successor Indenture
Trustee with respect to any Class of Notes, the Issuer, the retiring
Indenture Trustee and the successor Indenture Trustee with respect to such
Class of Notes shall execute and deliver an indenture supplemental hereto
wherein each successor Indenture Trustee shall accept such appointment and
which (i) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, the successor Indenture Trustee
all the rights, powers, trusts and duties of the retiring Indenture
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Trustee with respect to the Notes of the Class to which the appointment of
such successor Indenture Trustee relates, (ii) if the retiring Indenture
Trustee is not retiring with respect to all Classes of Notes, shall contain
such provisions as shall be deemed necessary or desirable to confirm that
all the rights, powers, trusts and duties of the retiring Indenture Trustee
with respect to the Notes of each Class as to which the retiring Indenture
Trustee is not retiring shall continue to be vested in the retiring
Indenture Trustee, and (iii) shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Indenture Trustee,
it being understood that nothing herein or in such supplemental indenture
shall constitute such Indenture Trustees co-trustees of the same trust and
that each such Indenture Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder
administered by any other such Indenture Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of
the retiring Indenture Trustee shall become effective to the extent
provided therein.
SECTION 6.12. Preferential Collection of Claims Against the
Issuer. The Indenture Trustee shall comply with TIA ss. 311(a), excluding
any creditor relationship listed in TIA ss. 311(b). An Indenture Trustee
who has resigned or been removed shall be subject to TIA ss. 311(a) to the
extent indicated.
ARTICLE VII
Noteholders' Lists and Reports
SECTION 7.1. Issuer To Furnish Indenture Trustee Names and
Addresses of 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 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 Note Registrar, no such list shall be required to be furnished.
SECTION 7.2. Preservation of Information; Communications to
Noteholders. (a) The Indenture Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of the Holders of 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 Notes
received by the Indenture Trustee in its capacity as Note Registrar. The
Indenture Trustee may
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destroy any list furnished to it as provided in Section 7.1 upon receipt of
a new list so furnished.
(b) Three or more Noteholders, or one or more Holder(s) of Notes
evidencing at least 25% of the Outstanding Amount of the Notes, may
communicate pursuant to TIA ss. 312(b) with other Noteholders with respect
to their rights under this Indenture or under the Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall
have the protection of TIA ss. 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 Noteholders described in TIA
ss. 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
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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 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 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 Noteholders to the extent of amounts due and unpaid on the 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) To the extent of funds deposited in the Note
Distribution Account out of the Fixed Rate Distribution Amount:
(1) the Class A Noteholders' Interest
Distributable Amount; 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 Notes, the amount in the Note Distribution
Account shall be applied to the payment of such interest
on such Notes pro rata on the basis of the total interest
due on such Notes;
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(2) the Class C Noteholders' Interest Distributable Amount;
(3) the A-1 Noteholders' Principal Distributable Amount;
(4) the A-2 Noteholders' Principal Distributable Amount;
(5) the A-3 Noteholders' Principal Distributable Amount;
(6) the A-4 Noteholders' Principal Distributable Amount;
(7) the amount, if any (to be paid in the
priority indicated), by which (a) the sum of (i) Class B
Noteholders' Interest Distributable Amount and (ii) the
Class B Noteholders' Principal Distributable Amount
exceeds (b) the amounts available for distribution as
described in clauses (c)(ii)(1) and (2) below; and
(8) the remaining funds deposited in the Note
Distribution Account out of the Fixed Rate Distribution
Amount to be distributed pursuant to clause (c)(iii)
below.
(ii) To the extent of funds deposited in the Note
Distribution Account out of the Floating Rate Distribution Amount:
(1) the Class B Noteholders' Interest Distributable
Amount;
(2) the Class B Noteholders' Principal Distributable
Amount;
(3) the amount, if any (to be paid in the
priority indicated), by which (a) the sum of (i) the
Class A Noteholders' Interest Distributable Amount, (ii)
the Class C Noteholders' Interest Distributable Amount
and (iii) the Class A Noteholders' Principal
Distributable Amount exceeds (b) the amounts available
for distribution as described in clauses (c)(i)(1), (2),
(3), (4), (5) and (6) above; and
(4) the remaining funds deposited in the Note
Distribution Account out of the Floating Rate
Distribution Amount to be distributed pursuant to clause
(c)(iii) below.
(iii) From the sum of the amounts available under clauses
(c)(i)(8) and (c)(ii)(4) above:
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(1) the Class C Noteholders' Principal Distributable
Amount;
(2) the Class B Net Funds Cap Carryover Amount
and any other amounts not named above payable by the
Trust to the Class B Noteholders, if any; and
(3) any remaining excess shall be deposited to
the Certificate Distribution Account.
(d) On the A-1 Note Final Scheduled Maturity Date, the Indenture
Trustee shall distribute from the Note Distribution Account the portion of
the Class A Noteholders' Interest Distributable Amount for the next Payment
Date that is allocable to the A-1 Notes and the A-1 Noteholders' Principal
Distributable Amount.
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.
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(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 Notes but
the Notes shall not have been declared due and payable pursuant to Section
5.2, or, if such 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
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 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 Sections 314(c) and 314(d)(1) meeting the applicable
requirements of Section 11.1.
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 Notes or the rights of the 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
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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
Noteholders. (a) Without the consent of the Holders of 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 Notes;
(iii) to add to the covenants of the Issuer, for the
benefit of the Holders of 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 Notes;
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(vii) to evidence and provide for the acceptance of the
appointment hereunder by a successor or additional trustee with
respect to the Notes or any class thereof 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 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 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 Noteholder.
SECTION 9.2. Supplemental Indentures With Consent of 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 (a) the Holders of Offered Notes evidencing not less than a majority of
the Outstanding Amount of the Offered Notes and (b) the Holders of Class B
Notes evidencing not less than a majority of the Outstanding Amount of the
Class B Notes, in each case 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 Notes under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Note affected
thereby:
(i) change the date of payment of any installment of
principal of or interest on any Note, or reduce the principal
amount thereof, the interest
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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 Notes, or change
any place of payment where, or the coin or currency in which, any
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 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 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 Notes to the benefit of any provisions for the
mandatory redemption of the 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 Notes
of the security provided by the Lien of this Indenture.
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It shall not be necessary for any Act of the 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 Noteholders provided for in this Indenture or in any other
Basic Document) and of evidencing the authorization of the execution
thereof by 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 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 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 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.
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SECTION 9.6. Reference in Notes to Supplemental Indentures. 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 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 Notes.
ARTICLE X
Redemption of Notes
SECTION 10.1. Redemption. (a) The outstanding Offered 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 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 Notes to be redeemed.
(b) [Intentionally Omitted].
(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 Notes will be
redeemed in part as described in Section 8.2(c)(iii) in a principal amount
described therein.
SECTION 10.2. Form of Redemption Notice. 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 Notes, as of the close of
business on the Record Date preceding the applicable Redemption Date, at
such Holder's address appearing in the Note Register.
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All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the place where such 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 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 Note
shall not impair or affect the validity of the redemption of any other
Note.
SECTION 10.3. Notes Payable on Redemption Date. The 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.
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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 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 Notes.
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(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 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 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, 1997, 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
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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 Noteholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by Noteholders may be embodied in
and evidenced by one or more instrument(s) of substantially similar tenor
signed by such 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
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the 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 Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or Act by the Holder of any Notes shall bind the Holder of
every 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 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 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
Noteholders is to be made upon, given or furnished to or filed with:
(a) the Indenture Trustee by any 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
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 1997-B, in care of The
Bank of New York, 101 Barclay Street, Floor 12E, New York, New
York 10286, Attention: Corporate Trust Administration - Asset
Backed Finance Unit, and to Case Credit Corporation, as
Administrator, 233 Lake Avenue, Racine, Wisconsin 53403,
Attention: 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 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
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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 Noteholders; Waiver. Where this Indenture
provides for notice to 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 Noteholder
affected by such event, at his address as it appears on the 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
Noteholders is given by mail, neither the failure to mail such notice nor
any defect in any notice so mailed to any particular Noteholder shall
affect the sufficiency of such notice with respect to other 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 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 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 Notes to the
contrary, the Issuer may enter into any agreement with any Holder of a 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 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.
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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 Sections. 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 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 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 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 Notes, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, the 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 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
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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 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 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 Noteholder, by accepting a 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 Notes, this Indenture or any of the Basic
Documents. The foregoing shall not limit the rights of the Indenture
Trustee to
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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.
Indenture 71
<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 1997-B;
By: THE BANK OF NEW YORK,
not in its individual capacity but solely as Trustee
By: /s/ Cheryl L. Laser
Name: Cheryl L. Laser
Title: Assistant Vice President
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
Indenture 72
<PAGE>
EXHIBIT A-1
to Indenture
FORM OF A-1 NOTES
REGISTERED $____________1/
No. R-___ CUSIP NO. ____________
Unless this Note is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Issuer
or its agent for registration of transfer, exchange or payment, and any
Note issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CASE EQUIPMENT LOAN TRUST 1997-B
5.612% CLASS A-1 ASSET BACKED NOTES
Case Equipment Loan Trust 1997-B, a trust organized and existing
under the laws of the State of Delaware (including any successor, the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of __________________ DOLLARS
($___________), 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 Note shall be due and payable on the earlier of October 13, 1998 and
the Redemption Date, if any, pursuant to Section 10.1(a) of the Indenture.
The Issuer will pay interest on this Note at the rate per
- ------------------
1/Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
Indenture - Exhibit A-1 - 1
<PAGE>
annum shown above, on each Payment Date until the principal of this Note is
paid or made available for payment, on the principal amount of this 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 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 actual days elapsed and a 360-day
year. Such principal of and interest on this Note shall be paid in the
manner specified in the Indenture.
The principal of and interest on this 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 Note shall be applied first to interest
due and payable on this Note as provided above and then to the unpaid
principal of this Note.
Reference is made to the further provisions of this Note set forth
on the reverse hereof, which shall have the same effect as though fully set
forth on the face of this Note.
Unless the certificate of authentication hereon has been executed
by the Indenture Trustee by manual signature, this 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: ___________, 1997
CASE EQUIPMENT LOAN TRUST 1997-B
By: THE BANK OF NEW YORK,
not in its individual capacity but solely as
Trustee under the Trust Agreement
By:_______________________________________
Name:_________________________________
Title:________________________________
Indenture - Exhibit A-1 - 2
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: ___________, 1997
HARRIS TRUST AND SAVINGS
BANK, not in its individual capacity but
solely as Indenture Trustee
By:______________________
Authorized Signatory
Indenture - Exhibit A-1 - 3
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 5.612% Class A-1 Asset Backed Notes (herein
called the "A-1 Notes" or the "Notes"), all issued under an Indenture dated
as of September 1, 1997 (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 Notes. The Notes are subject to all terms of the Indenture.
All terms used in this 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 Notes, the A-2 Notes, the A-3 Notes and the A-4 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 Noteholder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in the 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 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 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 Notes will qualify as
indebtedness of the Trust. Each Noteholder or Note Owner, by acceptance of
a Note, or, in
Indenture - Exhibit A-1 - 4
<PAGE>
the case of a Note Owner, a beneficial interest in a Note, agrees to treat,
and to take no action inconsistent with the treatment of, the Notes for
such tax purposes as indebtedness of the Trust.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that by accepting the benefits of the Indenture that such 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 Notes, the Indenture or the Basic
Documents.
This 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 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 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 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 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 Note.
Indenture - Exhibit A-1 - 5
<PAGE>
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 Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ______________________, attorney, to transfer said
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 Note Registrar, which
requirements include
membership or participation
in STAMP or such other
"signature guarantee
program" as may be
determined by the 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 Note in every particular without alteration, enlargement or
any change whatsoever.
Indenture - Exhibit A-1 - 6
<PAGE>
EXHIBIT A-2
to Indenture
FORM OF A-2 NOTES
REGISTERED $____________2/
No. R-___ CUSIP NO. ___________
Unless this Note is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Issuer
or its agent for registration of transfer, exchange or payment, and any
Note issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CASE EQUIPMENT LOAN TRUST 1997-B
5.914% CLASS A-2 ASSET BACKED NOTES
Case Equipment Loan Trust 1997-B, a trust organized and existing
under the laws of the State of Delaware (including any successor, the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of __________________ DOLLARS
($___________), 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 $___,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 Note shall be due and payable on the earlier of the September 2000
Payment Date and the Redemption Date, if any, pursuant to
- --------
2/Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
Indenture - Exhibit A-2 - 1
<PAGE>
Section 10.1(a) of the Indenture. No payments of principal of the Notes
will be made until the principal of the A-1 Notes has been paid in full.
The Issuer will pay interest on this Note at the rate per annum shown
above, on each Payment Date until the principal of this Note is paid or
made available for payment, on the principal amount of this 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 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 actual days elapsed and a 360-day
year. Such principal of and interest on this Note shall be paid in the
manner specified in the Indenture.
The principal of and interest on this 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 Note shall be applied first to interest
due and payable on this Note as provided above and then to the unpaid
principal of this Note.
Reference is made to the further provisions of this Note set forth
on the reverse hereof, which shall have the same effect as though fully set
forth on the face of this Note.
Unless the certificate of authentication hereon has been executed
by the Indenture Trustee by manual signature, this 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: ____________, 1997
CASE EQUIPMENT LOAN TRUST 1997-B
By: THE BANK OF NEW YORK,
not in its individual capacity but solely as
Trustee under the Trust Agreement
By:______________________________________
Name:________________________________
Title:_______________________________
Indenture - Exhibit A-2 - 2
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: _______________, 1997
HARRIS TRUST AND SAVINGS BANK,
not in its individual capacity
but solely as Indenture Trustee
By:___________________________
Authorized Signatory
Indenture - Exhibit A-2 - 3
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 5.914% Class A-2 Asset Backed Notes (herein
called the "A-2 Notes" or the "Notes"), all issued under an Indenture dated
as of September 1, 1997 (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 Notes. The Notes are subject to all terms of the Indenture.
All terms used in this 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 Notes, the A-1 Notes, the A-3 Notes and the A-4 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 Noteholder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in the 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 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 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 Notes will qualify as
indebtedness of the Trust. Each Noteholder or Note Owner, by acceptance of
a Note, or, in
Indenture - Exhibit A-2 - 4
<PAGE>
the case of a Note Owner, a beneficial interest in a Note, agrees to treat,
and to take no action inconsistent with the treatment of, the Notes for
such tax purposes as indebtedness of the Trust.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that by accepting the benefits of the Indenture that such 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 Notes, the Indenture or the Basic
Documents.
This 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 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 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 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 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 Note.
Indenture - Exhibit A-2 - 5
<PAGE>
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 Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ______________________, attorney, to transfer said
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 Note Registrar, which
requirements include
membership or participation
in STAMP or such other
"signature guarantee
program" as may be
determined by the 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 Note in every particular without alteration, enlargement or
any change whatsoever.
Indenture - Exhibit A-2 - 6
<PAGE>
EXHIBIT A-3
to Indenture
FORM OF A-3 NOTES
REGISTERED $____________3/
No. R-___ CUSIP NO. ___________
Unless this Note is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Issuer
or its agent for registration of transfer, exchange or payment, and any
Note issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CASE EQUIPMENT LOAN TRUST 1997-B
6.240% CLASS A-3 ASSET BACKED NOTES
Case Equipment Loan Trust 1997-B, a trust organized and existing
under the laws of the State of Delaware (including any successor, the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of __________________ DOLLARS
($___________), 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 $___,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 Note shall be due and payable on the earlier of the September 2004
Payment Date and the Redemption Date, if any, pursuant to
- --------
3/Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
Indenture - Exhibit A-3 - 1
<PAGE>
Section 10.1(a) of the Indenture. No payments of principal of the 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 Note at the rate
per annum shown above, on each Payment Date until the principal of this
Note is paid or made available for payment, on the principal amount of this
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 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 Note shall be paid in the
manner specified in the Indenture.
The principal of and interest on this 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 Note shall be applied first to interest
due and payable on this Note as provided above and then to the unpaid
principal of this Note.
Reference is made to the further provisions of this Note set forth
on the reverse hereof, which shall have the same effect as though fully set
forth on the face of this Note.
Unless the certificate of authentication hereon has been executed
by the Indenture Trustee by manual signature, this 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: __________, 1997
CASE EQUIPMENT LOAN TRUST 1997-B
By: THE BANK OF NEW YORK,
not in its individual capacity but solely
as Trustee under the Trust Agreement
By:________________________________
Name:__________________________
Title:_________________________
Indenture - Exhibit A-3 - 2
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: ___________, 1997
HARRIS TRUST AND SAVINGS BANK,
not in its individual capacity but
solely as Indenture Trustee
By:_______________________________
Authorized Signatory
Indenture - Exhibit A-3 - 3
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 6.240% Class A-3 Asset Backed Notes (herein
called the "A-3 Notes" or the "Notes"), all issued under an Indenture dated
as of September 1, 1997 (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 Notes. The Notes are subject to all terms of the Indenture.
All terms used in this 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 Notes, the A-1 Notes, the A-2 Notes and the A-4 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 Noteholder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in the 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 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 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 Notes will qualify as
indebtedness of the Trust. Each Noteholder or Note Owner, by acceptance of
a Note, or, in
Indenture - Exhibit A-3 - 4
<PAGE>
the case of a Note Owner, a beneficial interest in a Note, agrees to treat,
and to take no action inconsistent with the treatment of, the Notes for
such tax purposes as indebtedness of the Trust.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that by accepting the benefits of the Indenture that such 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 Notes, the Indenture or the Basic
Documents.
This 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 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 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 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 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 Note.
Indenture - Exhibit A-3 - 5
<PAGE>
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 Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ______________________, attorney, to transfer said
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 Note Registrar, which
requirements include
membership or participation
in STAMP or such other
"signature guarantee
program" as may be
determined by the 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 Note in every particular without alteration, enlargement or
any change whatsoever.
Indenture - Exhibit A-3 - 6
<PAGE>
EXHIBIT A-4
to Indenture
FORM OF A-4 NOTES
REGISTERED $____________4/
No. R-___ CUSIP NO. ___________
Unless this Note is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Issuer
or its agent for registration of transfer, exchange or payment, and any
Note issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CASE EQUIPMENT LOAN TRUST 1997-B
6.410% CLASS A-4 ASSET BACKED NOTES
Case Equipment Loan Trust 1997-B, a trust organized and existing
under the laws of the State of Delaware (including any successor, the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of __________________ DOLLARS
($___________), 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 $___,000,000 by (ii)
the aggregate amount, if any, payable from the Note Distribution Account in
respect of principal on the A-4 Notes pursuant to Section 3.1 of the
Indenture; provided, however, that the entire unpaid principal amount of
this Note shall be due and payable on the earlier of the September 2004
Payment Date and the Redemption Date, if any, pursuant to
- --------
4/Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
Indenture - Exhibit A-4 - 1
<PAGE>
Section 10.1(a) of the Indenture. No payments of principal of the Notes
will be made until the principal of the A-1 Notes, the A-2 Notes and the
A-3 Notes has been paid in full. The Issuer will pay interest on this Note
at the rate per annum shown above, on each Payment Date until the principal
of this Note is paid or made available for payment, on the principal amount
of this 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 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 Note shall be paid in the
manner specified in the Indenture.
The principal of and interest on this 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 Note shall be applied first to interest
due and payable on this Note as provided above and then to the unpaid
principal of this Note.
Reference is made to the further provisions of this Note set forth
on the reverse hereof, which shall have the same effect as though fully set
forth on the face of this Note.
Unless the certificate of authentication hereon has been executed
by the Indenture Trustee by manual signature, this 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: __________, 1997
CASE EQUIPMENT LOAN TRUST 1997-B
By: THE BANK OF NEW YORK,
not in its individual capacity but solely as
Trustee under the Trust Agreement
By:_______________________________________
Name:_________________________________
Title:________________________________
Indenture - Exhibit A-4 - 2
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: ___________, 1997
HARRIS TRUST AND SAVINGS
BANK, not in its individual capacity but
solely as Indenture Trustee
By:_________________________
Authorized Signatory
Indenture - Exhibit A-4 - 3
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 6.410% Class A-4 Asset Backed Notes (herein
called the "A-4 Notes" or the "Notes"), all issued under an Indenture dated
as of September 1, 1997 (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 Notes. The Notes are subject to all terms of the Indenture.
All terms used in this 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 Notes, the A-1 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-4 Note Rate to the extent lawful.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in the 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 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 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 Notes will qualify as
indebtedness of the Trust. Each Noteholder or Note Owner, by acceptance of
a Note, or, in
Indenture - Exhibit A-4 - 1
<PAGE>
the case of a Note Owner, a beneficial interest in a Note, agrees to treat,
and to take no action inconsistent with the treatment of, the Notes for
such tax purposes as indebtedness of the Trust.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that by accepting the benefits of the Indenture that such 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 Notes, the Indenture or the Basic
Documents.
This 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 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 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 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 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 Note.
Indenture - Exhibit A-4 - 2
<PAGE>
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 Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ______________________, attorney, to transfer said
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 Note Registrar, which
requirements include
membership or participation
in STAMP or such other
"signature guarantee
program" as may be
determined by the 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 Note in every particular without alteration, enlargement or
any change whatsoever.
Indenture - Exhibit A-4 - 3
<PAGE>
Indenture - Exhibit A-4 - 1
<PAGE>
EXHIBIT A-5
to Indenture
FORM OF CLASS B NOTES
REGISTERED $____________
No. R-___
THIS CLASS B NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER THE
SECURITIES OR BLUE SKY LAWS OF ANY STATE IN THE UNITED STATES OR ANY
FOREIGN SECURITIES LAWS. BY ITS ACCEPTANCE OF THIS CLASS B NOTE THE HOLDER
OF THIS CLASS B NOTE IS DEEMED TO REPRESENT TO CASE EQUIPMENT LOAN TRUST
1997-B (THE "ISSUER") THAT IT IS (I) A "QUALIFIED INSTITUTIONAL BUYER"
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A "QIB") AND IS
ACQUIRING SUCH CLASS B NOTE FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF
OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QIBs)
TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (II) AN "ACCREDITED INVESTOR" DESCRIBED IN RULE 501(a)(1), (2), (3)
or (7) UNDER THE SECURITIES ACT OR (III) IS OTHERWISE ACQUIRING IN THE
UNITED STATES IN COMPLIANCE WITH RULE 144 IF AVAILABLE OF THE SECURITIES
ACT OR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT AND IN ANY SUCH CASE DESCRIBED IN CLAUSE (II) OR (III) ABOVE
(A) HAS CERTIFIED TO ISSUER IN WRITING THE FACTS SURROUNDING SUCH TRANSFER,
IN FORM AND SUBSTANCE SATISFACTORY TO ISSUER AND (B) HAS DELIVERED A
WRITTEN OPINION OF COUNSEL SATISFACTORY TO ISSUER TO THE EFFECT THAT ITS
ACQUISITION WILL NOT VIOLATE THE SECURITIES ACT.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CASE EQUIPMENT LOAN TRUST 1997-B
FLOATING RATE CLASS B ASSET BACKED NOTES
Indenture - Exhibit A-5 - 1
<PAGE>
Case Equipment Loan Trust 1997-B, a trust organized and existing
under the laws of the State of Delaware (including any successor, the
"Issuer"), for value received, hereby promises to pay to
____________________, or registered assigns, the principal sum of
__________________ DOLLARS ($___________), 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 Class B
Notes pursuant to Section 3.1 of the Indenture; provided, however, that the
entire unpaid principal amount of this Note shall be due and payable on the
earlier of the September 2004 Payment Date and the Redemption Date, if any,
pursuant to Section 10.1(a) of the Indenture. The Issuer will pay interest
on this Note at the rate specified in the Indenture, on each Payment Date
until the principal of this Note is paid or made available for payment, on
the principal amount of this 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 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 Note shall be paid in the manner specified in the Indenture.
The principal of and interest on this 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 Note shall be applied first to interest
due and payable on this Note as provided above and then to the unpaid
principal of this Note.
Reference is made to the further provisions of this Note set forth
on the reverse hereof, which shall have the same effect as though fully set
forth on the face of this Note.
Unless the certificate of authentication hereon has been executed
by the Indenture Trustee by manual signature, this 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: __________, 1997
CASE EQUIPMENT LOAN TRUST 1997-B
By: THE BANK OF NEW YORK,
Indenture - Exhibit A-5 - 2
<PAGE>
not in its individual capacity but solely
as Trustee under the Trust Agreement
By:_________________________________
Name:___________________________
Title:__________________________
Indenture - Exhibit A-5 - 3
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: ___________, 1997
HARRIS TRUST AND SAVINGS BANK,
not in its individual capacity but
solely as Indenture Trustee
By:___________________________
Authorized Signatory
Indenture - Exhibit A-5 - 4
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Floating Rate Class B Asset Backed Notes (herein
called the "Class B Notes" or the "Notes"), all issued under an Indenture
dated as of September 1, 1997 (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 Notes. The Notes are subject to all terms of the Indenture.
All terms used in this 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 Class B Notes are and will be equally and ratably secured by
the collateral pledged as security therefor as provided in the Indenture,
but the interest of the Class B Noteholders in such collateral is
subordinated and second to the rights of the Class A Noteholders.
The Issuer shall pay interest on overdue installments of interest
at the Floating Rate to the extent lawful.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in the 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 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 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 Notes will qualify as
indebtedness
Indenture - Exhibit A-5 - 5
<PAGE>
of the Trust. Each Noteholder or Note Owner, by acceptance of a Note, or,
in the case of a Note Owner, a beneficial interest in a Note, agrees (to
the extent permitted by law) to treat, and to take no action inconsistent
with the treatment of, the Notes for such tax purposes as indebtedness of
the Trust.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that by accepting the benefits of the Indenture that such 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 Notes, the Indenture or the Basic
Documents.
This 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 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 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 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 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 Note.
Indenture - Exhibit A-5 - 6
<PAGE>
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 Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ______________________, attorney, to transfer said
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 Note Registrar, which
requirements include
membership or participation
in STAMP or such other
"signature guarantee
program" as may be
determined by the 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 Note in every particular without alteration, enlargement or
any change whatsoever.
Indenture - Exhibit A-5 - 7
<PAGE>
EXHIBIT A-6
to Indenture
FORM OF CLASS C NOTES
REGISTERED $____________5/
No. R-___ CUSIP NO. ___________
Unless this Note is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Issuer
or its agent for registration of transfer, exchange or payment, and any
Note issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CASE EQUIPMENT LOAN TRUST 1997-B
6.410% CLASS C ASSET BACKED NOTES
Case Equipment Loan Trust 1997-B, a trust organized and existing
under the laws of the State of Delaware (including any successor, the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of __________________ DOLLARS
($___________), 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 Class C Notes pursuant to Section 3.1 of the
Indenture; provided, however, that the entire unpaid principal amount of
this Note shall be due and payable on the earlier of the September 2004
Payment Date and the Redemption Date, if any, pursuant to Section 10.1(a)
of the Indenture. The Issuer will pay interest on this Note at the rate per
annum shown above, on each Payment Date until the
- --------
5/Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
Indenture - Exhibit A-6 - 1
<PAGE>
principal of this Note is paid or made available for payment, on the
principal amount of this 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 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 Note shall be paid in the manner specified in the Indenture.
The principal of and interest on this 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 Note shall be applied first to interest
due and payable on this Note as provided above and then to the unpaid
principal of this Note.
Reference is made to the further provisions of this Note set forth
on the reverse hereof, which shall have the same effect as though fully set
forth on the face of this Note.
Unless the certificate of authentication hereon has been executed
by the Indenture Trustee by manual signature, this 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: __________, 1997
CASE EQUIPMENT LOAN TRUST 1997-B
By: THE BANK OF NEW YORK,
not in its individual capacity but solely as
Trustee under the Trust Agreement
By:____________________________________
Name:______________________________
Title:_____________________________
Indenture - Exhibit A-6 - 2
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: ___________, 1997
HARRIS TRUST AND SAVINGS
BANK, not in its individual capacity but
solely as Indenture Trustee
By:_____________________________
Authorized Signatory
Indenture - Exhibit A-6 - 3
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 6.410% Class C Asset Backed Notes (herein called
the "Class C Notes" or the "Notes"), all issued under an Indenture dated as
of September 1, 1997 (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 Notes. The Notes are subject to all terms of the Indenture. All
terms used in this 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 Class C Notes are and will be equally and ratably secured by
the collateral pledged as security therefor as provided in the Indenture,
but the interest of the Class C Noteholders in such collateral is
subordinated and second to the rights of the Class A Noteholders and the
Class B Noteholders.
The Issuer shall pay interest on overdue installments of interest
at the Class C Note Rate to the extent lawful.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in the 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 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 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 Notes will qualify as
indebtedness
Indenture - Exhibit A-6 - 4
<PAGE>
of the Trust. Each Noteholder or Note Owner, by acceptance of a Note, or,
in the case of a Note Owner, a beneficial interest in a Note, agrees to
treat, and to take no action inconsistent with the treatment of, the Notes
for such tax purposes as indebtedness of the Trust.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that by accepting the benefits of the Indenture that such 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 Notes, the Indenture or the Basic
Documents.
This 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 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 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 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 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 Note.
Indenture - Exhibit A-6 - 5
<PAGE>
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 Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ______________________, attorney, to transfer said
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 Note Registrar, which
requirements include
membership or participation
in STAMP or such other
"signature guarantee
program" as may be
determined by the 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 Note in every particular without alteration, enlargement or
any change whatsoever.
Indenture - Exhibit A-6 - 6
<PAGE>
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,
1997 (the "Indenture"), between Case Equipment Loan Trust 1997-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 1997-B
By:__________________________________
Name:______________________________
Title:_____________________________
By:__________________________________
Name:______________________________
Title:_____________________________
Indenture - Exhibit B - 1
- -------------------------------------------------------------------------------
CASE EQUIPMENT LOAN TRUST 1997-B
TRUST AGREEMENT
between
CASE RECEIVABLES II INC.,
and
THE BANK OF NEW YORK,
as Trustee.
Dated as of September 1, 1997
- ------------------------------------------------------------------------------
<PAGE>
|| 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...........................5
SECTION 2.8. Title to Trust Property.......................................5
SECTION 2.9. Situs of Trust................................................6
SECTION 2.10. Representations and Warranties of the Depositor..............6
SECTION 2.11. Federal Income Tax Allocations...............................7
ARTICLE III
Trust Certificates and Transfer of Interests
SECTION 3.1. Initial Ownership.............................................8
SECTION 3.2. The Trust Certificates........................................8
SECTION 3.3. Authentication of Trust Certificates..........................8
SECTION 3.4. Registration of Transfer and Exchange of Trust Certificates...8
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Trust Certificates......10
SECTION 3.6. Persons Deemed Certificateholders............................10
SECTION 3.7. Access to List of Certificateholders' Names and Addresses....10
SECTION 3.8. Maintenance of Office or Agency..............................11
SECTION 3.9. Appointment of Paying Agent..................................11
ARTICLE IV
Actions by Trustee
SECTION 4.1. Prior Notice to Certificateholders with Respect to Certain
Matters....................................................12
SECTION 4.2. Action by Certificateholders with Respect to Certain
Matters....................................................13
Trust Agreement
i
<PAGE>
Page
SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy......13
SECTION 4.4. Restrictions on Certificateholders' Power....................13
SECTION 4.5. Majority Control.............................................13
ARTICLE V
Application of Trust Funds; Certain Duties
SECTION 5.1. Establishment of Trust Account...............................13
SECTION 5.2. Applications of Trust Funds..................................14
SECTION 5.3. Method of Payment............................................15
SECTION 5.4. No Segregation of Moneys; No Interest........................15
SECTION 5.5. Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue Service and
Others.....................................................15
SECTION 5.6. Signature on Returns; Tax Matters Partner....................15
ARTICLE VI
Authority and Duties of Trustee
SECTION 6.1. General Authority............................................16
SECTION 6.2. General Duties...............................................16
SECTION 6.3. Action upon Instruction......................................16
SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions...............................................17
SECTION 6.5. No Action Except Under Specified Documents or Instructions...18
SECTION 6.6. Restrictions.................................................18
ARTICLE VII
Concerning the Trustee
SECTION 7.1. Acceptance of Trusts and Duties..............................18
SECTION 7.2. Furnishing of Documents......................................20
SECTION 7.3. Representations and Warranties...............................20
SECTION 7.4. Reliance; Advice of Counsel..................................20
SECTION 7.5. Not Acting in Individual Capacity............................21
SECTION 7.6. Trustee Not Liable for Trust Certificates or Receivables.....21
SECTION 7.7. Trustee May Not Own Notes....................................22
ARTICLE VIII
Compensation of Trustee
SECTION 8.1. Trustee's Fees and Expenses..................................22
SECTION 8.2. Indemnification..............................................22
SECTION 8.3. Payments to the Trustee......................................23
Trust Agreement
ii
<PAGE>
Page
ARTICLE IX
Termination of Trust Agreement
SECTION 9.1. Termination of Trust Agreement...............................23
ARTICLE X
Successor Trustees and Additional Trustees
SECTION 10.1. Eligibility Requirements for Trustee........................24
SECTION 10.2. Resignation or Removal of Trustee...........................24
SECTION 10.3. Successor Trustee...........................................25
SECTION 10.4. Merger or Consolidation of Trustee..........................26
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee...............26
ARTICLE XI
Miscellaneous
SECTION 11.1. Supplements and Amendments..................................27
SECTION 11.2. No Legal Title to Trust Estate in Certificateholders........29
SECTION 11.3. Limitations on Rights of Others.............................29
SECTION 11.4. Notices ....................................................29
SECTION 11.5. Severability................................................29
SECTION 11.6. Separate Counterparts.......................................29
SECTION 11.7. Successors and Assigns......................................30
SECTION 11.8. Covenants of the Depositor..................................30
SECTION 11.9. No Petition.................................................30
SECTION 11.10. No Recourse................................................30
SECTION 11.11. Headings...................................................31
SECTION 11.12. Governing Law..............................................31
SECTION 11.13. Administrator..............................................31
||
Trust Agreement
iii
<PAGE>
EXHIBITS
EXHIBIT A Form of Trust Certificate
EXHIBIT B Form of Certificate of Trust
Trust Agreement
iv
<PAGE>
TRUST AGREEMENT, dated as of September 1, 1997, among CASE
RECEIVABLES II INC., a Delaware corporation, as Depositor, and THE BANK OF
NEW YORK, a New York 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 Certificate of Trust, the
Purchase Agreement, the Sale and Servicing Agreement, the Indenture, the
Administration Agreement, the Note Depository Agreement, the Class B Note
Purchase 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.
"Certificate Distribution Account" shall have the meaning assigned
to such term in Section 5.1.
"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 Register" and "Certificate Registrar" shall mean the
register mentioned in 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 101 Barclay
Street, Floor 12E, New York, New York 10286, Attention: Corporate Trust
Administration Asset Backed Finance Unit; 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).
"Depositor" shall mean the Seller in its capacity as Depositor
hereunder.
Trust Agreement
1
<PAGE>
"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 Trustee.
"Record Date" shall mean, with respect to any Payment Date, the
close of business on the last day of the calendar month preceding the month
of such Payment Date.
"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 The Bank of New York, a New York 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
Trust Agreement
2
<PAGE>
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 ss. 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.
Trust Agreement
3
<PAGE>
ARTICLE II
Organization
SECTION 2.1. Name. The Trust created hereby shall be known as
"Case Equipment Loan Trust 1997-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 Notes pursuant to the Indenture and
the Trust Certificates pursuant to this Agreement and to sell the
Notes and the Trust Certificates in one or more transactions;
(b) with the proceeds of the sale of the 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 and the 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.
Trust Agreement
4
<PAGE>
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, until the Certificates are held by more than one Person, the
Trust will be disregarded as an entity separate from such Certificateholder
and the Notes will be considered debt of such Certificateholder. At such
time that the Certificates are held by more than one Person, 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 Notes being debt of the partnership. The parties agree
that, unless otherwise required by appropriate tax authorities, if the
Certificates are held by one Certificateholder the Trust will not file or
cause to be filed annual or other returns, reports and other forms
consistent with the characterization of the Trust as an entity not separate
from such Certificateholder. 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) No
Certificateholder 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
Trust Agreement
5
<PAGE>
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 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
Trust Agreement
6
<PAGE>
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. If Certificates are
held by more than one Person, 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 the Trust Certificates' 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. Notwithstanding anything provided in
this Section,
Trust Agreement
7
<PAGE>
if the Certificates are held solely by one Certificateholder, the application
of this Section shall be disregarded.
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 that one Trust Certificate may be issued that
includes any residual portion of the Initial Certificate Balance in a
denomination other than an integral multiple of $1,000. 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 no longer 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 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 or 3.5
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
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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, 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, 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. No transfer of a Trust Certificate shall be
registered unless the transferee shall have provided (i) an opinion of
counsel that no registration is required under the Securities Act of 1933,
as amended, or any applicable state laws, and (ii) an Officer's Certificate
as to compliance with Section 6.6 of the Sale and Servicing Agreement. Each
Trust Certificate surrendered for registration of transfer or exchange
shall be canceled 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.
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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
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 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 Certificate Registrar 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, 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 and 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,
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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 applicant(s) 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 applicant(s)
propose to transmit, then the Trustee shall, within five Business Days
after the receipt of such application, afford such applicant(s) 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 designates The Bank of New
York, 101 Barclay Street, Floor 12E, New York, New York 10286, Attention:
Corporate Trust Administration - Asset Backed Finance Unit 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 Trustee, 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
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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, 7.4 and 8.1 shall apply to the 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.
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 in circumstances
where the consent of any Noteholder is required;
(d) the amendment of the Indenture in circumstances
where the consent of any 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
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(f) the appointment pursuant to the Indenture of a
successor 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 Note Registrar, Paying
Agent, 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
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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 and the Trustee has actual knowledge of such, 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 in the existing
Certificate Distribution Account 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.
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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: (a) 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, (b) 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 Noteholders,
Certificateholders, the Internal Revenue Service and Others. The Depositor
shall cause the Trustee to: (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, if a
Certificateholder, or otherwise as designated by Certificateholders holding
Trust Certificates evidencing a majority of the Certificate Balance.
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(b) The Depositor, so long as it shall be a Certificateholder,
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 direct the Indenture Trustee to authenticate and deliver
the Notes 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
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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
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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 Bank of New York nevertheless agrees that it will (and will
cause its Affiliates to), 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, it that are not
related to the Trustee's ownership or 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 or the Paying Agent. 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;
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(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 the
required Certificateholders;
(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
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
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.
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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. Each of the Trustee and
the Paying Agent 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
jurisdiction of its incorporation, 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, its certificate of incorporation or
by-laws, or any indenture, agreement or other instrument to which
it is a party or by which it is bound; or violate any Federal or
state law governing its banking or trust powers; or, to the best
of its knowledge, violate any order, rule or regulation applicable
to it of any court or of any Federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over it 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.
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(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 The Bank of New
York 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 with respect to Section 7.3 and the signature and authentication of
the Trustee or the Authenticating Agent 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
authentication of the Trustee or the Authenticating Agent on the Trust
Certificates) or of the 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 or the 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
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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
(including the Paying Agent, if an Affiliate of the Trustee, with respect
to expenses and disbursements only), 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 and the Paying Agent, the inaccuracy of any
representation or warranty contained in Section 7.3. 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.
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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 Bank of New York 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 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. The
bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder 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,
the Trustee 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 the
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 the
Certificateholders. Upon presentation and surrender of the Trust
Certificates, the Paying Agent shall cause to be distributed to the
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
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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.
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.
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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 Indenture Trustee, the 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.
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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;
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(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, the Trustee and the Paying Agent, with prior
written notice to the Rating Agencies, without the consent of any of the
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 Noteholders or the Certificateholders; provided, however,
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that such action shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of any Noteholder or
Certificateholder.
This Agreement may also be amended from time to time by the
Depositor, the Trustee and the Paying Agent, with prior written notice to
the Rating Agencies, with the written consent of (x) Holders of Offered
Notes evidencing not less than a majority of the Outstanding Amount of the
Offered Notes, (y) Holders of Class B Notes evidencing not less than a
majority of the Outstanding Amount of 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 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 Noteholders or the
Certificateholders or (b) reduce the aforesaid percentage of the Note
Balance and the Certificate Balance required to consent to any such
amendment, without the consent of the holders of all the outstanding 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,
the 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 the
Certificateholders provided for in this Agreement or in any Basic Document)
and of evidencing the authorization of the execution thereof by the
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.
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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. The provisions of
this Agreement are solely for the benefit of the Trustee, the Paying Agent,
the Depositor, the Certificateholders, the Administrator and, to the extent
expressly provided herein, the Indenture Trustee and the 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 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 or the Paying Agent, addressed to the Corporate Trust
Office, and (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 parties.
(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.
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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, the Paying
Agent 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 a 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, then 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 Federal or state bankruptcy or similar
law in connection with any obligations relating to the Trust Certificates,
the Notes, this 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 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
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.
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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.
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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.
THE BANK OF NEW YORK,
as Trustee
By: /s/ Cheryl L. Laser
Name: Cheryl L. Laser
Title: Assistant Vice President\
CASE RECEIVABLES II INC.,
as Depositor
By: /s/ Peter Hong
Name: Peter Hong
Title: Treasurer
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EXHIBIT A
to Trust Agreement
FORM OF TRUST CERTIFICATES
REGISTERED $___________1
NUMBER R-___ CUSIP NO. 147440___
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EXEMPTION THEREFROM.
CASE EQUIPMENT LOAN TRUST 1997-B
6.410% ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below,
the property of which includes a pool of retail installment sale contracts
secured by new and used agricultural and construction equipment and sold to
the Trust by Case Receivables II Inc.
(This Trust Certificate does not represent an interest in or
obligation of Case Receivables II Inc., Case Credit Corporation or Case
Corporation, or any of their respective affiliates, except to the extent
described below.)
THIS CERTIFIES THAT CASE RECEIVABLES II INC. is the registered
owner of a _____________ DOLLAR ($___________) nonassessable, fully-paid,
fractional undivided interest in the Case Equipment Loan Trust 1997-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, 1997 (the "Trust Agreement"), among the Seller, and The Bank
of New York, 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, 1997, 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 "6.410% Asset Backed Certificates" (herein
called the
- --------
1Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
Trust Agreement - Appendix A - 1
1
<PAGE>
"Trust Certificates"). Issued under the Indenture dated as of September 1,
1997, between the Trust and Harris Trust and Savings Bank, as Indenture
Trustee, are notes designated as "5.612% Class A-1 Asset Backed Notes,"
"5.914% Class A-2 Asset Backed Notes," "6.240% Class A-3 Asset Backed
Notes," "6.410% Class A-4 Asset Backed Notes," "Floating Rate Class B Asset
Backed Notes" and "6.410% Class C Asset Backed Notes" (collectively, 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 Noteholders as described in the Sale
and Servicing Agreement and the Indenture.
It is the intent of the Seller, the Servicer and the
Certificateholders 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, until the Trust Certificates are held by more than one
Person, the Trust will be disregarded as an entity separate from such
Certificateholder. At such time that the Trust Certificates are held by
more than one Person, it is the intent of the Seller, the Servicer and the
Certificateholders 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, agree to treat,
and to take no action inconsistent with the treatment of, the Trust
Certificates as such for tax purposes.
Each Certificateholder, by its acceptance of a Trust Certificate,
covenants and agrees that such Certificateholder will not at any time
institute against the Depositor, the Seller or the Trust, or join in any
institution against the Depositor, the Seller 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 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
Trust Agreement - Appendix A - 2
2
<PAGE>
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 (each, a "Benefit Plan"). By accepting and
holding this Certificate, the Holder 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 or the Authenticating
Agent, 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.
Trust Agreement - Appendix A - 3
3
<PAGE>
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 1997-B
By: THE BANK OF NEW YORK,
not in its individual capacity, but
solely as Trustee
By:______________________________
Name:__________________________
Title:_________________________
Trust Agreement - Appendix A - 4
4
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the within-mentioned
Trust Agreement.
THE BANK OF NEW YORK,
as Trustee
By:__________________________
Authorized Signatory
Date: __________ ____, 1997
Trust Agreement - Appendix A - 5
5
<PAGE>
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 an "eligible guarantor institution", as
defined in Rule 17Ad-15 of the Securities Exchange Act of 1934, as amended.
Trust Agreement - Appendix A - 6
6
<PAGE>
EXHIBIT B
to Trust Agreement
CERTIFICATE OF TRUST OF
CASE EQUIPMENT LOAN TRUST 1997-B
This Certificate of Trust of CASE EQUIPMENT LOAN TRUST 1997-B (the
"Trust"), dated as of ____________ ____, 1997, is being duly executed and
filed by The Bank of New York (Delaware), a Delaware banking corporation,
as trustee, to form a trust under the Delaware Business Trust Act (12 Del.
Code ss. 3801 et seq.).
1. Name. The name of the trust formed hereby is CASE EQUIPMENT LOAN
TRUST 1997-B.
2. Delaware Trustee. The name and business address of the trustee
of the Trust in the State of Delaware is The Bank of New York (Delaware),
White Clay Center, Route 273, Newark, DE 19711.
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.
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity, but solely
as trustee under a Trust Agreement dated
as of September 1,1997
By:________________________________
Name:____________________________
Title:___________________________
Trust Agreement - Exhibit B - 1
1
CASE EQUIPMENT LOAN TRUST 1997-B
SALE AND SERVICING AGREEMENT
among
CASE EQUIPMENT LOAN TRUST 1997-B,
as Issuer,
CASE RECEIVABLES II INC.,
as Seller,
and
CASE CREDIT CORPORATION,
as Servicer.
Dated as of September 1, 1997
<PAGE>
|| TABLE OF CONTENTS
ARTICLE I
Definitions
SECTION 1.1. Definitions . . . . . . . . . . . . . . . . . . . .1
SECTION 1.2. Other Definitional Provisions . . . . . . . . . . 24
ARTICLE II
Conveyance of Receivables
SECTION 2.1. Conveyance of Initial Receivables . . . . . . . . 25
SECTION 2.2. Conveyance of Subsequent Receivables. . . . . . . 26
ARTICLE III
The Receivables
SECTION 3.1. Representations and Warranties of Seller. . . . . 29
SECTION 3.2. Repurchase upon Breach. . . . . . . . . . . . . . 30
SECTION 3.3. Custody of Receivable Files . . . . . . . . . . . 31
SECTION 3.4. Duties of Servicer as Custodian . . . . . . . . . 31
SECTION 3.5. Instructions; Authority To Act. . . . . . . . . . 32
SECTION 3.6. Custodian's Indemnification . . . . . . . . . . . 32
SECTION 3.7. Effective Period and Termination. . . . . . . . . 32
ARTICLE IV
Administration and Servicing of Receivables
SECTION 4.1. Duties of Servicer. . . . . . . . . . . . . . . . 33
SECTION 4.2. Collection and Allocation of Receivable Payments. 34
SECTION 4.3. Realization upon Receivables. . . . . . . . . . . 34
SECTION 4.4. Maintenance of Security Interests in Financed
Equipment . . . . . . . . . . . . . . . . . . . 34
SECTION 4.5. Covenants of Servicer . . . . . . . . . . . . . . 35
SECTION 4.6. Purchase of Receivables upon Breach . . . . . . . 35
SECTION 4.7. Servicing Fee . . . . . . . . . . . . . . . . . . 35
SECTION 4.8. Servicer's Certificate. . . . . . . . . . . . . . 35
SECTION 4.9. Annual Statement as to Compliance; Notice of
Default . . . . . . . . . . . . . . . . . . . . 36
SECTION 4.10. Annual Independent Certified Public Accountants'
Report . . . . . . . . . . . . . . . . . . . . 36
SECTION 4.11. Access to Receivable Files . . . . . . . . . . . 37
SECTION 4.12. Servicer Expenses. . . . . . . . . . . . . . . . 37
SECTION 4.13. Appointment of Subservicer . . . . . . . . . . . 37
Sale and Servicing Agreement i
<PAGE>
ARTICLE V
Distributions: Spread Account;
Statements to Certificateholders and Noteholders
SECTION 5.1. Establishment of Trust Accounts . . . . . . . . . 37
SECTION 5.2. Collections . . . . . . . . . . . . . . . . . . . 40
SECTION 5.3. Application of Collections. . . . . . . . . . . . 40
SECTION 5.4. Additional Deposits . . . . . . . . . . . . . . . 40
SECTION 5.5. Distributions . . . . . . . . . . . . . . . . . . 41
SECTION 5.6. Spread Account. . . . . . . . . . . . . . . . . . 44
SECTION 5.7. Pre-Funding Account . . . . . . . . . . . . . . . 45
SECTION 5.8. Negative Carry Account. . . . . . . . . . . . . . 45
SECTION 5.9. Calculation of Class B Net Funds Cap Carryover
Account . . . . . . . . . . . . . . . . . . . . 46
SECTION 5.10. Statements to Certificateholders and Noteholders 46
SECTION 5.11. Net Deposits . . . . . . . . . . . . . . . . . . 47
ARTICLE VI
The Seller
SECTION 6.1. Representations of Seller . . . . . . . . . . . . 48
SECTION 6.2. Corporate Existence . . . . . . . . . . . . . . . 49
SECTION 6.3. Liability of Seller; Indemnities. . . . . . . . . 50
SECTION 6.4. Merger or Consolidation of, or Assumption of
the Obligations of, the Seller . . . . . . . . 51
SECTION 6.5. Limitation on Liability of Seller and Others. . . 52
SECTION 6.6. Seller May Own Certificates or Notes. . . . . . . 52
ARTICLE VII
The Servicer
SECTION 7.1. Representations of the Servicer . . . . . . . . . .52
SECTION 7.2. Indemnities from the Servicer . . . . . . . . . . .54
SECTION 7.3. Merger or Consolidation of, or Assumption of the
Obligations of, the Servicer . . . . . . . . . .56
SECTION 7.4. Limitation on Liability of the Servicer and Others 56
SECTION 7.5. Credit Not to Resign as the Servicer. . . . . . . .57
SECTION 7.6. Servicer to Act as the Administrator. . . . . . . .57
ARTICLE VIII
Default
SECTION 8.1. Servicer Default. . . . . . . . . . . . . . . . . 57
SECTION 8.2. Appointment of Successor Servicer . . . . . . . . 59
Sale and Servicing Agreement ii
<PAGE>
SECTION 8.3. Notification to the Noteholders and
Certificateholders . . . . . . . . . . . . . . .60
SECTION 8.4. Waiver of Past Defaults . . . . . . . . . . . . . 60
ARTICLE IX
Termination
SECTION 9.1. Optional Purchase of All Receivables. . . . . . . 60
ARTICLE X
Miscellaneous Provisions
SECTION 10.1. Amendment. . . . . . . . . . . . . . . . . . . . 61
SECTION 10.2. Protection of Title to Trust . . . . . . . . . . 62
SECTION 10.3. Notices. . . . . . . . . . . . . . . . . . . . . 64
SECTION 10.4. Assignment . . . . . . . . . . . . . . . . . . . 65
SECTION 10.5. Limitations on Rights of Others. . . . . . . . . 65
SECTION 10.6. Severability . . . . . . . . . . . . . . . . . . 65
SECTION 10.7. Separate Counterparts. . . . . . . . . . . . . . 65
SECTION 10.8. Headings . . . . . . . . . . . . . . . . . . . . 65
SECTION 10.9. Governing Law. . . . . . . . . . . . . . . . . . 66
SECTION 10.10. Assignment to Indenture Trustee . . . . . . . . 66
SECTION 10.11. Nonpetition Covenants . . . . . . . . . . . . . 66
SECTION 10.12. Limitation of Liability of the Trustee and
Indenture Trustee . . . . . . . . . . . . . . 66
||
Sale and Servicing Agreement iii
<PAGE>
SCHEDULES AND EXHIBITS
SCHEDULE A 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 iv
<PAGE>
SALE AND SERVICING AGREEMENT dated as of September 1, 1997, among
CASE EQUIPMENT LOAN TRUST 1997-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 by Credit to the Seller: (a) 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 (b) pursuant
to the Purchase Agreement 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 October 13, 1998.
"A-1 Noteholders" means the holders of record of the A-1 Notes.
"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
Class A Noteholders' Monthly Principal Distributable Amount for such
Payment Date.
<PAGE>
"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-2 Note Final Scheduled Maturity Date" means the September 2000
Payment Date.
"A-2 Noteholders" means the holders of record of the A-2 Notes.
"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 Class A
Noteholders' Monthly Principal Distributable 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;
provided, further, that the sum of clauses (a) and (b) shall not exceed the
Outstanding Amount of the A-2 Notes, and, on the A-2 Note Final Scheduled
<PAGE>
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-3 Noteholders" means the holders of record of the A-3 Notes.
"A-3 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-2 Notes to zero
has been deposited in the Note Distribution Account, 100% of the Class A
Noteholders' Monthly Principal Distributable Amount (less the portion
thereof, if any, applied to reduce the Outstanding Amount of the A-1 Notes
and 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 the sum of (a) the A-3 Noteholders' Monthly
Principal Distributable Amount for such Payment Date and (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;
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-4 Noteholders" means the holders of record of the A-4 Notes.
"A-4 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-4 Notes to zero
has been deposited in the Note Distribution Account, 100% of the Class A
Noteholders' Monthly Principal Distributable Amount (less the portion
thereof, if any, applied to reduce the Outstanding Amount of the A-1 Notes,
the A-2 Notes and the A-3 Notes to zero on such Payment Date).
<PAGE>
"A-4 Noteholders' Principal Carryover Shortfall" means, with
respect to any Payment Date, the excess of the A-4 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-4 Notes on such preceding Payment Date.
"A-4 Noteholders' Principal Distributable Amount" means, with
respect to any Payment Date the sum of (a) the A-4 Noteholders' Monthly
Principal Distributable Amount for such Payment Date and (b) the A-4
Noteholders' Principal Carryover Shortfall for such Payment Date; provided,
however, that, until an amount sufficient to reduce the Outstanding Amount
of the A-3 Notes to zero has been deposited in the Note Distribution
Account, the A-4 Noteholders' Principal Distributable Amount shall be zero;
provided, further, that the sum of clauses (a) and (b) shall not exceed the
Outstanding Amount of the A-4 Notes, and on the Final Scheduled Maturity
Date, the A-4 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-4 Notes to zero.
"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, $15,190,000 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.
<PAGE>
"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"), the excess of the
Certificateholders' Interest Distributable Amount for the preceding Payment
Date over the amount in respect of interest that was actually deposited in
the Certificate Distribution Account on such preceding Payment Date, plus
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") the sum of (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), except that during the Funding Period no interest will
accrue on the Pre-Funded Percentage of the Certificate Balance, plus (b)
the Certificateholders' Interest Carryover Shortfall for the current
Payment Date.
"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 Payment Date on which an amount
sufficient to reduce the Outstanding Amount of the Notes to zero has been
deposited in the Note Distribution Account, the sum of (a) 100% of the
Principal Distribution Amount (less the portion thereof, if any, applied to
reduce the Outstanding Amount of the Notes to zero on such Payment Date)
plus (b) the Certificateholders' Principal Carryover Shortfall for such
Payment Date; provided, however, that, until an amount sufficient to reduce
the Outstanding Amount of the Notes to zero has been deposited in the Note
Distribution Account, the Certificateholders' Principal Distributable
Amount shall be zero; provided, further, that the Certificateholders'
Principal Distributable Amount will not exceed the Certificate Balance.
"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
<PAGE>
1.0000000 as of the Closing Date, and, thereafter, will decline to reflect
reductions in the Certificate Balance.
"Certificates" means the Trust Certificates (as defined in the Trust
Agreement).
"Class A Noteholder" means any holder of a Class A Note.
"Class A Noteholders' Distributable Amount" means, with respect to
any Payment Date, the sum of (i) the A-1 Noteholders' Principal
Distributable Amount, (ii) the A-2 Noteholders' Principal Distributable
Amount, (iii) the A- 3 Noteholders' Principal Distributable Amount, (iv)
the A-4 Noteholders' Principal Distributable Amount, and (v) the Class A
Noteholders' Interest Distributable Amount.
"Class A Noteholders' Interest Carryover Shortfall" means, with
respect to any Payment Date (the "current Payment Date"), the excess of the
Class A Noteholders' Interest Distributable Amount for the preceding
Payment Date over the amount in respect of interest on the Class A Notes
that was actually deposited in the Note Distribution Account on such
preceding Payment Date, plus 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 Class A Notes, from such preceding Payment Date to but
excluding the current Payment Date.
"Class A Noteholders' Interest Distributable Amount" means, with
respect to any Payment Date (the "current Payment Date"), an amount equal
to the sum of (a) the aggregate amount of interest accrued on the Class A
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 for
the A-1 Notes and A-2 Notes (based upon the actual number of days in the
Interest Period and a 360-day year) and for the A-3 Notes and the A-4 Notes
(based upon a 360-day year of twelve 30-day months plus (b) the Class A
Noteholders' Interest Carryover Shortfall for the current Payment Date.
"Class A Noteholders' Monthly Principal Distributable Amount"
means, with respect to any Payment Date, the Principal Distribution Amount
minus the Class B Noteholders' Monthly Principal Distributable Amount and
the Class C Noteholders' Monthly Principal Distributable Amount.
"Class A Notes" means the A-1 Notes, the A-2 Notes, the A-3 Notes
and the A-4 Notes.
"Class B Additional Amounts" is defined in Section 5.5(b)(3).
"Class B Net Funds Cap Carryover Amount" is defined in Section 5.9.
<PAGE>
"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 (a) the Class B Noteholders' Interest
Distributable Amount and (b) the Class B Noteholders' Principal
Distributable Amount. Neither the Class B Net Funds Cap Carryover Amount
(if any) nor the Class B Additional Amounts (if any) shall constitute a
part of the Class B Noteholders' Distributable Amount.
"Class B Noteholders' Interest Carryover Shortfall" means, with
respect to any Payment Date (the "current Payment Date"), the excess of the
Class B Noteholders' Interest Distributable Amount for the preceding
Payment Date over the amount in respect of interest on the Class B Notes
that was actually deposited in the Note Distribution Account on such
preceding Payment Date, plus interest on such excess, to the extent
permitted by law, at a rate per annum equal to the Floating 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"), an amount equal
to the sum of: (a) the aggregate amount of interest accrued on the Class B
Notes at the Floating Rate 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 and actual days elapsed) plus (b) the Class B Noteholders' Interest
Carryover Shortfall for the current Payment Date.
"Class B Noteholders' Monthly Principal Distributable Amount"
means, until the Payment Date on which the Outstanding Amount of the Class
B Notes has been reduced to zero, 100% of the Floating Rate Principal
Distribution Amount.
"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 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
<PAGE>
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 C Noteholders' Distributable Amount" means, with respect to
any Payment Date, the sum of: (a) the Class C Noteholders' Interest
Distributable Amount and (ii) the Class C Noteholders' Principal
Distributable Amount.
"Class C Noteholders' Interest Carryover Shortfall" means, with
respect to any Payment Date (the "current Payment Date"), the excess of the
Class C Noteholders' Interest Distributable Amount for the preceding
Payment Date over the amount in respect of interest on the Class C Notes
that was actually deposited in the Note Distribution Account on such
preceding Payment Date, plus interest on such excess, to the extent
permitted by law, at a rate per annum equal to the Class C Rate from such
preceding Payment Date to but excluding the current Payment Date.
"Class C Noteholders' Interest Distributable Amount" means, with
respect to any Payment Date (the "current Payment Date"), an amount equal
to the sum of: (a) the aggregate amount of interest accrued on the Class C
Notes at the Class C Note Rate 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 upon a 360-
day year of twelve 30-day months) plus (ii) the Class C Noteholders'
Interest Carryover Shortfall for the current Payment Date.
"Class C Noteholders' Monthly Principal Distributable Amount"
means, with respect to each Payment Date until the Payment Date on which
the Outstanding Amount of the Class C Notes has been reduced to zero, an
amount equal to the excess, if any of: (a) the Outstanding Amount of the
Class C Notes on the related Record Date minus any Class C Noteholders'
Principal Carryover Shortfall over (b) the Initial Class C Percentage of
the sum of the outstanding Pool Balance and the Pre-Funded Amount as of the
beginning of the current Collection Period; provided, however, that if on
the related Record Date any principal of the A-1 Notes remains outstanding,
then the Class C Noteholders' Monthly Principal Distributable Amount for
such Payment Date shall not exceed an amount equal to the aggregate
unscheduled principal payments on the Fixed Rate Receivables during the
related Collection Period.
"Class C Noteholders' Principal Carryover Shortfall" means, with
respect to any Payment Date, the excess of the Class C 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 C Notes on such preceding Payment Date.
<PAGE>
"Class C Noteholders' Principal Distributable Amount" means, with
respect to any Payment Date, the sum of: (a) the Class C Noteholders'
Monthly Principal Distributable Amount for such Payment Date and (b) the
Class C 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 Class C Notes, and on the Final Scheduled
Maturity Date, the Class C 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 C Notes to zero.
"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), (a) in the case of the
Fixed Rate Receivables, the present value of the unpaid Scheduled Payments
discounted monthly at an annual rate equal to: (i) in the case of the
Initial Receivables, the Initial Cutoff Date APR and (ii) in the case of
the Subsequent Receivables, the applicable Subsequent Cutoff Date APR, and
(b) in the case of the Floating Rate Receivables, the current principal
balance of the Floating Rate Receivables shown on the Servicer's records.
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. The Contract Value of each Liquidated Receivable shall be
deemed to equal zero.
"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 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 Noteholders and the
Seller).
<PAGE>
"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
<PAGE>
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 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
<PAGE>
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);
<PAGE>
(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 2004 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.
"Fixed Rate Distribution Amount" means, with respect to any
Payment Date, the portion of the Total Distribution Amount that includes
all of the aggregate collections on the Fixed Rate Receivables plus all of
the Negative Carry Amount for the related Collection Period plus all of the
Investment Earnings for such Payment Date on amounts on deposit in the
Pre-Funding Account and the Negative Carry Account plus the Fixed Rate
Percentage of all other Investment Earnings for such Payment Date.
"Fixed Rate Percentage" means, with respect to any Payment Date,
the percentage equivalent of a fraction (a) the numerator of which is the
sum of (i) the Contract Value of all Fixed Rate Receivables and (ii) the
Pre-Funded Amount and (b) the denominator of which is the sum of (i) the
Contract Value of all Receivables and (ii) the Pre-Funded Amount, all
determined as of the beginning of the immediately preceding Collection
Period.
"Fixed Rate Principal Distribution Amount" means an amount (not
less than zero) equal to: (a) the sum of the Contract Value of all Fixed
Rate Receivables and the Pre-Funded Amount as of the beginning of the
immediately preceding Collection Period minus (b) the sum of the Contract
Value of all Fixed Rate Receivables and the Pre-Funded Amount as of the
beginning of the current Collection Period.
<PAGE>
"Fixed Rate Receivable" means any fixed rate Contract listed on
the Schedule of Receivables.
"Floating Rate" means, with respect to each Interest Period, LIBOR
as determined on the related LIBOR Determination Date, plus the "Class B
Margin" specified for such Interest Period pursuant to the Class B Note
Purchase Agreement; provided, that such rate may not exceed the Net Funds
Cap.
"Floating Rate Distribution Amount" means, with respect to any
Payment Date, the Total Distribution Amount minus the Fixed Rate
Distribution Amount.
"Floating Rate Percentage" means, with respect to any Payment
Date, 100% minus the Fixed Rate Percentage.
"Floating Rate Principal Distribution Amount" means, with respect
to any Payment Date, the amount (not less than zero) equal to: (a) the sum
of the Contract Value of all Floating Rate Receivables as of the beginning
of the immediately preceding Collection Period minus (b) the sum of the
Contract Value of all Floating Rate Receivables as of the beginning of the
Collection Period in which that Payment Date falls.
"Floating Rate Receivable" means any floating rate Contract listed
on the Schedule of Receivables.
"Funding Period" means the period from and including the Closing
Date and ending on the earliest of: (a) the Determination Date on which the
amount on deposit in the Pre-Funding Account (after giving effect to any
transfers to be made therefrom in connection with the transfer of
Subsequent Receivables to the Issuer on or before the Payment Date after
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 February 1998 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 Trustee" means the Person acting as Indenture Trustee
under the Indenture, its successors in interest and any successor trustee
under the Indenture.
<PAGE>
"Initial Class C Percentage" means the percentage equivalent of
(a) the initial balance of the Class C Notes (i.e., $34,719,000) divided by
(b) the Pool Balance as of the Initial Cutoff Date plus the Initial
Pre-Funded Amount.
"Initial Cutoff Date" means August 31, 1997.
"Initial Cutoff Date APR" means 8.637%, which is the weighted
average APR of the Initial Receivables that are Fixed Rate Receivables as
of the Initial Cutoff Date.
"Initial Pool Balance" means: (i) the Pool Balance as of the
Initial Cutoff Date, which is $456,076,215.83, 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 included in the schedule
delivered by the Servicer to the Trustee 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.
"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.
"Interest Period" means the period from and including the Closing
Date, or from and including the most recent Payment Date, to but excluding
the following Payment Date.
<PAGE>
"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 1997-B.
"LIBOR" means, with respect to each Interest Period, the London
interbank offered rate for deposits in U.S. dollars having a maturity of
one month commencing on the first day of such Interest Period, as such rate
appears on Telerate Page 3750 as of 11:00 a.m. (London time) on the
applicable LIBOR Determination Date. If such rate does not appear on
Telerate Page 3750, the rate for that day will be determined on the basis
of the rates at which deposits in U.S. Dollars, for such period and in a
principal amount of not less than $1,000,000, are offered at approximately
11:00 a.m. (London time) on such LIBOR Determination Date to prime banks in
the London interbank market by the Reference Banks. The Servicer will
request the principal London office of each of the Reference Banks to
provide a quotation of its rate. If at least two such quotations are
provided, the rate for that day will be the arithmetic mean of the
quotations. If fewer than two quotations are provided, the rate for that
day will be the arithmetic mean of the rates quoted by major banks in New
York City, selected by the Servicer, at approximately 11:00 a.m. (New York
City time) on such LIBOR Determination Date for loans in U.S. Dollars, for
such period and in a principal amount of not less than $1,000,000, to
leading European banks; provided, that if the banks selected as aforesaid
are not quoting as mentioned in this sentence, LIBOR in effect for the
applicable Interest Period will be the LIBOR in effect for the previous
Interest Period. "Telerate Page 3750" means the display page so designated
on the Dow Jones Telerate Service (or such other page as may replace that
page on that service for the purpose of displaying comparable rates or
prices). "Reference Bank" means a leading bank: (a) engaged in transactions
in eurodollar deposits in the international eurocurrency market, (b) not
controlling, controlled by or under common control with the Administrator
or the Seller and (c) having an established place of business in London.
"LIBOR Determination Date" means, with respect to any Interest
Period, the second London business day before the commencement of such
Interest Period. For this purpose, a "London business day" means any day on
which dealings in U.S. dollars are carried on in the London interbank
market.
"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.
<PAGE>
"Liquidated Receivable" means any Receivable (or portion thereof)
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, the A-4 Notes and the Class C
Notes minus (b) 2.5%, multiplied by (ii) the Offered Note Percentage of 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 $5,776,520.
"Negative Carry Amount" means, with respect to any Payment Date,
an amount calculated by the Servicer as the difference (if positive)
between: (a) the product of: (i) the sum of the Class A Noteholders'
Interest Distributable Amount and the Class C Noteholders' 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.
"Net Funds Cap" means, for any Interest Period, the percentage
equivalent of (a) the quotient of (i) the aggregate amount of interest
payments due during the Collection Period during which such Interest Period
begins on Floating Rate Receivables that had a positive Contract Value at
<PAGE>
the beginning of such Collection Period minus the sum of (A) if neither
Credit nor an Affiliate of Credit is the Servicer, the Floating Rate
Percentage of the Servicing Fee and (B) the Floating Rate Percentage of the
Administration Fee divided by (ii) the Outstanding Amount of the Class B
Notes at the beginning of such Interest Period (after giving effect to
payments of principal on the day that such Interest Period begins)
multiplied by (b) a fraction the numerator of which is 360 and the
denominator of which is the number of days in such Interest Period.
"Note Balance" means the aggregate Outstanding Amount of the Notes
from time to time.
"Note Distribution Account" means the account designated as such,
established and maintained pursuant to Section 5.1(a).
"Noteholders" means the Class A Noteholders and the Class B
Noteholders.
"Noteholders' Distributable Amount" means, with respect to any
Payment Date, the sum of: (a) the Class A Noteholders' Distributable Amount,
(b) the Class B Noteholders' Distributable Amount and (c) the Class C
Noteholders' Distributable Amount.
"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.
"Obligor" on a Receivable means the purchaser or co-purchasers of
the Financed Equipment and any other Person who owes payments under the
Receivable.
"Offered Note Percentage" means, with resect to any Payment Date,
the percentage equivalent of a fraction (a) the numerator of which is the
Note Balance (excluding the Class B Notes) and (b) the denominator of which
is the sum of the Note Balance (excluding the Class B Notes) and the
Certificate Balance.
"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.
<PAGE>
"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, 6.410%
per annum.
"Payment Date" means the fifteenth day of each calendar month, or,
if such day is not a Business Day, the next Business Day, commencing on
October 15, 1997.
"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 (calculated with respect to the Fixed
Rate Receivables only) 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
<PAGE>
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 sum of (a) the Fixed Rate Principal Distribution Amount plus (b)
the Floating Rate Principal Distribution Amount.
"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 that are Fixed Rate Receivables, the Initial Cutoff Date APR,
(b) in the case of any Floating Rate Receivables, at the then applicable
APR and (c) 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
<PAGE>
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.
<PAGE>
"Simple Interest Method" means the method of allocating a fixed
level payment between principal and interest, pursuant to which such
payment is allocated first to accrued and unpaid interest at the Contract
Rate on the unpaid principal balance and the remainder of such payment is
allocable to principal.
"Simple Interest Receivable" means any Receivable under which the
portion of a payment allocable to interest and the portion allocable to
principal is determined in accordance with the Simple Interest Method.
"Specified Spread Account Balance" means, with respect to any
Payment Date, the lesser of (a) 2.00% of the Initial Pool Balance and (b)
the Note Balance.
"Spread Account" means the account designated as such, established
and maintained pursuant to Section 5.1(a).
"Spread Account Initial Deposit" means, initially, $9,121,524.31,
and, with respect to each Subsequent Transfer Date, cash or Eligible
Investments having a value approximately equal to 2.00% of the aggregate
Contract Value of the Subsequent Receivables conveyed 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.
<PAGE>
"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 each Payment Date
and the Business Day preceding the A-1 Note Final Schedule Maturity Date.
"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, among 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.
<PAGE>
"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 Trust 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.
<PAGE>
(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 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 (as defined in the Purchase
Agreement) 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
<PAGE>
(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
Indenture Trustee's (on behalf of the Trustee) delivery on the related
Subsequent Transfer Date to or upon the order of the Seller of the amount
described in Section 5.7(a)(i) 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
<PAGE>
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 Trustee and
the Indenture Trustee a duly executed written assignment in
substantially the form of Exhibit E (the "Subsequent Transfer
Assignment"), which shall include a 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 omitted];
(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; (B) each Fixed Rate
Receivable has an APR of at least 3.0%; (C) each Floating Rate
Receivable has a margin greater than - 3% per annum; (D) as of
each Subsequent Transfer Cutoff Date the weighted average of the
Initial Cutoff Date APR and each Subsequent Cutoff Date APR
(weighted on the basis of the respective aggregate Contract Values
of the Fixed Rate Receivables for which each such APR is used to
calculate the Contract Value) will not be less than the weighted
average interest rate on the Class A Notes and Class C Notes plus
1% per annum; and (E) not more than 45% 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
<PAGE>
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 in the Collateral;
(xi) no selection procedures believed by the Seller to be
adverse to the interests of the Trust, the 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
Noteholders or the Certificateholders;
(xiii) the Seller shall have provided the Indenture
Trustee, 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 and the Indenture Trustee, the Opinion
of Counsel required by Section 10.2(i)(1);
(xv) the Seller shall have delivered to the Trustee and
the Indenture Trustee 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 and the Trustee an Officers' Certificate confirming the
<PAGE>
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.
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 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 (other than under the
Indenture); 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 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
<PAGE>
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 Noteholders
or the Certificateholders with respect to a 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) 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 (if any);
<PAGE>
(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 A
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.
<PAGE>
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, employees 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 the Servicer shall resign as Servicer in accordance
with this Agreement or if all of the rights and obligations of the 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 Notes evidencing not less than 25% of the Note Balance,
(c) with the consent of Holders of Notes evidencing not less than 25% of
the Note Balance, the Trustee or (d) the Certificateholders holding
Certificates evidencing not less than 25% of the Certificate Balance, in
the same manner as the Indenture Trustee or such Noteholders 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 Trustee may
terminate the Servicer's appointment as custodian of the Receivable Files,
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 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
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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 Indenture Trustee, the Certificateholders, the
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
Certificateholders or the 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,
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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 or the 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 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 Certificateholders or the
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
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specified in Section 5.4. Subject to Section 7.2, the sole remedy of the
Issuer, the Trustee, the Indenture Trustee, the Certificateholders or the
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 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 the Schedule of Receivables
delivered on the Closing Date or attached to the applicable Subsequent
Transfer Assignment).
SECTION 4.9. Annual Statement as to Compliance; Notice of Default.
(a) The Servicer shall deliver to the Trustee 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, 1997) 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 Officers' Certificate and the
report referred to in Section 4.10 to the Rating Agencies. A copy of such
Officer's Certificate and report may be obtained by any Certificateholder
or 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 Noteholders
as of the date specified by the Trustee.
(b) The Servicer shall deliver to the Trustee, the Indenture
Trustee and the Rating Agencies, promptly after having obtained knowledge
thereof, but in no event later than five Business Days thereafter, written
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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 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 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, 1997). The procedures to be performed and
reported upon by the independent certified 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 Receivable Files. The Servicer shall
provide to the Trustee and the Indenture Trustee access to the Receivable
Files in such cases where the Trustee 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 and the 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 Certificateholders and the 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
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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 Indenture Trustee, the Certificateholders or the
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 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
Noteholders and the Certificateholders.
(ii) The Servicer, for the benefit of the 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 Noteholders.
(iii) The Servicer, for the benefit of the Noteholders,
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 Noteholders.
(iv) The Servicer, for the benefit of the 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
Noteholders and the Certificateholders.
(v) The Servicer, for the benefit of the Fixed Rate
Offered Noteholders and the Class B Noteholders, 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 Noteholders and the
Certificateholders.
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(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 Noteholders and the Certificateholders or
the Noteholders, as applicable; provided, that on each Transfer Date, all
Investment Earnings on funds on deposit in the Trust Accounts 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 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 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;
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(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. 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
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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 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 the Administrator or deposit in the applicable Trust Account or
Certificate Distribution Account, as applicable, by 10:00 a.m. (New York
time), in the following order of priority:
(i) To the extent of the Fixed Rate Distribution Amount:
(1) to the Servicer, if neither Credit nor an
Affiliate of Credit is the Servicer, the Fixed Rate
Percentage of the Servicing Fee and all unpaid Servicing
Fees owed to such Servicer from prior Collection Periods;
(2) to the Administrator, the Fixed Rate
Percentage of the Administration Fee and all unpaid
Administration Fees from prior Collection Periods;
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(3) to pay such amounts in the order and as
above provided, the amount, if any, by which (a) the sum
of (i) if neither Credit nor an Affiliate of Credit is
the Servicer, the Floating Rate Percentage of the
Servicing Fee and all unpaid Servicing Fees owed to such
Servicer from prior Collection Periods plus (ii) the
Floating Rate Percentage of the Administration Fee and
all unpaid Administration Fees from prior Collection
Periods, exceeds (b) the Floating Rate Distribution
Amount;
(4) to the Note Distribution Account, the Class A
Noteholders' Interest Distributable Amount;
(5) to the Note Distribution Account, the Class C
Noteholders' Interest Distributable Amount;
(6) to the Note Distribution Account, the A-1
Noteholders' Principal Distributable Amount;
(7) to the Note Distribution Account, the A-2
Noteholders' Principal Distributable Amount;
(8) to the Note Distribution Account, the A-3
Noteholders' Principal Distributable Amount;
(9) to the Note Distribution Account, the A-4
Noteholders' Principal Distributable Amount;
(10) to the Note Distribution Account to pay
such amounts in the priority indicated, the amount, if
any, by which (a) the sum of (i) the Class B Noteholders'
Interest Distributable Amount and (ii) the Class B
Noteholders' Principal Distributable Amount exceeds (b)
the amounts available for distribution as described in
clauses (b)(ii)(4) and (5) below; and
(11) the remaining Fixed Rate Distribution
Amount to be distributed pursuant to clause (b)(iii)
below.
(ii) To the extent of the Floating Rate Distribution Amount:
(1) to the Servicer, if neither Credit nor an
Affiliate of Credit is the Servicer, the Floating Rate
Percentage of the Servicing Fee and all unpaid Servicing
Fees owed to such Servicer from prior Collection Periods;
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(2) to the Administrator, the Floating Rate
Percentage of the Administration Fee and all unpaid
Administration Fees from prior Collection Periods;
(3) to pay such amounts in the order and as
above provided, the amount, if any, by which (a) the sum
of (i) if neither Credit nor an Affiliate of Credit is
the Servicer, the Fixed Rate Percentage of the Servicing
Fee and all unpaid Servicing Fees owed to such Servicer
from prior Collection Periods plus (ii) the Fixed Rate
Percentage of the Administration Fee and all unpaid
Administration Fees from prior Collection Periods,
exceeds (b) the Fixed Rate Distribution Amount;
(4) to the Note Distribution Account, the Class B
Noteholders' Interest Distributable Amount;
(5) to the Note Distribution Account, the Class B
Noteholders' Principal Distributable Amount;
(6) to the Note Distribution Account, to pay
such amounts in the priority indicated, the amount, if
any, by which (a) the sum of (i) the Class A Noteholders'
Interest Distributable Amount, (ii) the Class C
Noteholders' Interest Distributable Amount and (iii) the
Class A Noteholders' Monthly Principal Distributable
Amount, exceeds (b) the amounts available for
distribution as described in clauses (b)(i)(4), (5), (6),
(7), (8) and (9) above; and
(7) the remaining Floating Rate Distribution
Amount to be distributed pursuant to clause (b)(iii)
below.
(iii) From the sum of the amounts available under clauses
(b)(i)(11) and (b)(ii)(7) above:
(1) to the Note Distribution Account, the Class C
Noteholders' Principal Distributable Amount;
(2) to the Spread Account, to the extent
necessary so that the balance on deposit therein will
equal the Specified Spread Account Balance;
(3) to the Note Distribution Account, the Class
B Net Funds Cap Carryover Amount and any other amounts
not named above payable by the Trust to the Class B
Noteholders ("Class B Additional Amounts"), if any;
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(4) to the Certificate Distribution Account, the
Certificateholders' Interest Distributable Amount;
(5) to the Certificate Distribution Account, the
Certificateholders' Principal Distributable Amount;
(6) to the Servicer, if Credit or an Affiliate
of Credit is the Servicer, the Servicing Fee and all
unpaid Servicing Fees owed to such Servicer from prior
Collection Periods; and
(7) to the Spread Account, the remaining
balance, if any.
(c) On the A-1 Note Final Scheduled Maturity 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 deposit by 10:00 a.m. (New York time) the A-1
Noteholders' Principal Distributable Amount in the Note Distribution
Account.
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) 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) 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 Notes 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 Note Balance 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) 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.
(c) Following: (i) the payment in full of the aggregate
Outstanding Amount of the Notes and of all other amounts owing or to be
distributed hereunder or under the Indenture to the Noteholders, 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
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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) 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, and deposit such amount into the
Note Distribution Account, for distribution to cover the Noteholders'
Distributable Amount in the order specified in Section 5.5(b) (but only as
such Section relates to the Noteholders' Distributable Amount), provided
that if on any Payment Date the funds available for this purpose in the
Spread Account are less than the sum of the shortfalls in the Class A
Noteholders' Distributable Amount and the Class B Noteholders'
Distributable Amount, on that Payment Date, the remaining funds in the
Spread Account will be applied to such shortfalls pro rata on the basis of
the Outstanding Amount of the Class A Notes and the Class B Notes..
(e) [Reserved]
(f) [Reserved]
(g) The Seller may at any time, without consent of the
Noteholders, 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 the Rating Agency
Condition is satisfied.
SECTION 5.7. Pre-Funding Account. (a) On the Closing Date, the
Indenture Trustee will deposit, on behalf of the Seller, in the Pre-Funding
Account $411,884,035.48 from the net proceeds of the sale of the 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, plus (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
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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, so that such amounts are payable to redeem the Offered Notes (in
the same proportions and sequence that would apply if such remaining funds
were a part of the Fixed Rate Principal Distribution Amount).
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. Calculation of Class B Net Funds Cap Carryover
Account. If the effective Floating Rate for any Interest Period is
determined by the Net Funds Cap, then prior to the related Payment Date the
Servicer will calculate the excess of (i) the amount of interest on the
Class B Notes that would have accrued in respect of such Interest Period
had the Floating Rate been calculated without regard to the Net Funds Cap
over (ii) the amount of interest on the Class B Notes actually accrued
during such Interest Period, and such excess shall be payable on the
related Payment Date to the extent that funds are available for that
purpose pursuant to Section 5.5(b)(iii)(3) on such related Payment Date. To
the extent that sufficient funds are not available to make such payment on
such related Payment Date, such amount shall be payable on each following
Payment Date until paid in full. Interest shall accrue on such unpaid
amount from the Payment Date on which it was first payable as provided
above until it has been paid in full at a rate equal to the Floating Rate
(calculated without regard to the Net Funds Cap), calculated on the basis
of the number of days in each applicable Interest Period and a year of 360
days. The aggregate amount accrued and payable pursuant to this Section 5.9
from time to time is referred to as the "Class B Net Funds Cap Carryover
Amount."
SECTION 5.10. Statements to Certificateholders and Noteholders. (a)
On each Determination Date, the Servicer shall provide to the Indenture
<PAGE>
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 (together with delinquency information consistent
with the information that the Servicer provides with respect to other
similar transactions):
(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;
<PAGE>
(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 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
<PAGE>
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 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 Notes or the Certificates, (ii) seeking to prevent the
issuance of the 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,
<PAGE>
the Indenture, any of the other Basic Documents, the Notes or the
Certificates or (iv) that might adversely affect the Federal or
state income tax attributes of the 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
other 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 and the Indenture Trustee (and their
officers,
<PAGE>
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 and the 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 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
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, the 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
<PAGE>
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 Issuer, 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 or the 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.
Notwithstanding the foregoing, the Seller will not sell the
Certificates except: (a) to an entity that is not an Affiliate of the
Seller or (b) to an Affiliate of the Seller that: (i) is a subsidiary of
Credit, the Certificate of Incorporation of which contains restrictions
substantially similar to the restrictions contained in the Certificate of
Incorporation of the Seller, and (ii) has provided an opinion of counsel
regarding substantive consolidation of such Affiliate with Credit in the
event of a bankruptcy filing by Credit which is substantially similar to
the opinion of counsel provided by the Seller on the Closing Date and which
may be subject to the same assumptions and qualifications as that opinion.
<PAGE>
ARTICLE VII
The Servicer
SECTION 7.1. Representations of the 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 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, 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 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 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
<PAGE>
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 Notes or the Certificates, (ii) seeking to prevent
the issuance of the 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
Notes or the Certificates or (iv) relating to the Servicer and
that might adversely affect the Federal or state income tax
attributes of the 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 from the 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 Indenture Trustee, the
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,
<PAGE>
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 and the Notes, or
asserted with respect to ownership of the Receivables, or
Federal or other income taxes arising out of
distributions on the Certificates or the 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 and the Indenture Trustee (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
<PAGE>
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, the 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 Issuer, the Trustee and the Indenture Trustee,
respectively, in the Receivables and reciting the
<PAGE>
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 clause (a), (b) or (c).
SECTION 7.4. Limitation on Liability of the 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
Trustee, the Indenture Trustee, the 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 other Basic Documents and the rights and
duties of the parties to this Agreement, the other Basic Documents and the
interests of the Certificateholders under this Agreement and the Trust
Agreement and the Noteholders under the Indenture.
SECTION 7.5. Credit Not to Resign as the Servicer. Subject to
Section 7.3, Credit shall not resign from the obligations and duties
imposed on it as the 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.
<PAGE>
SECTION 7.6. Servicer to Act as the 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 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 the
Certificateholders or 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 Noteholders or Certificateholders, as applicable,
evidencing not less than 25% of the Note Balance 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 Notes
evidencing not less than 25% of the Note Balance, by notice then given in
writing to the Servicer (and to the Indenture Trustee and the Trustee if
given by the Noteholders), may terminate all the rights and obligations
(other than
<PAGE>
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 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, on behalf 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, if necessary, 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 the
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 earlier 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
<PAGE>
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 the 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 the 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 Noteholders and the
Rating Agencies.
SECTION 8.4. Waiver of Past Defaults. The Noteholders of Notes
evidencing not less than a majority of the Note Balance (or the
Certificateholders holding 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 Noteholders) may, on behalf
of all the 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 or the Certificate Distribution
Account 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.
<PAGE>
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) [Intentionally Omitted].
(c) As described in Section 9.1(c) 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 Notes, the
Certificateholders will succeed to the rights of the Noteholders hereunder
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. This 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 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 Noteholders or
the Certificateholders; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel delivered to the Trustee and the
Indenture Trustee, adversely affect in any material respect the interests
of any Noteholder or Certificateholder.
<PAGE>
The Specified Spread Account Balance may be reduced or the
definition thereof otherwise modified without the consent of any of the
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 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 Notes or the
Certificates or (y) add credit enhancement for the benefit of any Class of
the 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) Holders of Offered Notes evidencing not less than a
majority of the Outstanding Amount of the Offered Notes, (c) Holders of
Class B Notes evidencing not less than a majority of the Outstanding Amount
of the Class B Notes and (d) Certificateholders holding 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 Noteholders or the Certificateholders; provided,
however, that no such amendment shall: (1) 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 Noteholders or the Certificateholders or (2) reduce
the aforesaid percentage of the Notes and the Certificates that are
required to consent to any such amendment, without the consent of the
holders of all the outstanding 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 the
Certificateholders or the 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
<PAGE>
Section 10.2(i)(1). The Trustee and the Indenture Trustee may, but shall not
be obligated to, execute 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 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 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 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 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.
<PAGE>
(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 and
the Indenture Trustee in such Receivable and that such Receivable is owned
by the Issuer and has been pledged to the Indenture Trustee. Indication of
the Issuer's and the Indenture Trustee'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 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 and the Indenture
Trustee:
(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 Issuer, 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
<PAGE>
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 Issuer, 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 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 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: Treasurer
(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: 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), (d) in the
case of the Indenture Trustee, at the Corporate Trust Office, (e) in the
case of Moody's, to Moody's Investors Service, Inc., ABS Monitoring
Department, 99 Church Street, New York, New York 10007, and (f) in the case
of Standard & Poor's, to Standard & Poor's Ratings Services, a division of
The McGraw-Hill Companies, Inc., 26 Broadway (15th Floor), New York, New
York 10004, Attention: 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 Indenture Trustee and the
Noteholders, and
<PAGE>
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. The Seller hereby
acknowledges and consents to any mortgage, pledge, assignment and grant of
a security interest by the Issuer to the Indenture Trustee pursuant to the
Indenture for the benefit of the Noteholders 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 the
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
<PAGE>
instituted against the Issuer by any Person other than the Servicer or the
Seller.
(b) Notwithstanding the 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 the Trustee and
Indenture Trustee. (a) Notwithstanding anything contained herein to the
contrary, this Agreement has been countersigned by The Bank of New York,
not in its individual capacity but solely in its capacity as Trustee of the
Issuer, and in no event shall: (i) The Bank of New York, in its individual
capacity, or (ii) 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 acknowledged and 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.
<PAGE>
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 1997-B
By: THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee of the Trust
By: /s/ Cheryl L. Laser
Name: Cheryl L. Laser
Title: Assistant Vice President
CASE RECEIVABLES II INC.,
as Seller
By: /s/ Peter Hong
Name: Peter Hong
Title: Treasurer
CASE CREDIT CORPORATION,
as Servicer
By: /s/ Peter Hong
Name: Peter Hong
Title: Treasurer
Acknowledged and Accepted as of the date first above written:
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>
SCHEDULE A
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
<PAGE>
EXHIBIT A
to Sale and Servicing Agreement
<TABLE>
<CAPTION>
FORM OF NOTEHOLDER'S
STATEMENT PURSUANT TO SECTION 5.10(a)
Payment Date: ______________________
<S> <C> <C>
(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 $1,000 original principal amount)
A-4 Notes: ______________ ($_____ per $1,000 original principal amount)
Class B Notes: _____________ ($_____ per $1,000 original principal amount)
Class C Notes: _____________ ($_____ per $1,000 original principal amount)
<CAPTION>
(ii) Amount of interest being paid on Notes:
<S> <C> <C>
A-1 Notes: ______________ ($_____ per $1,000 original principal amount)
A-2 Notes: ______________ ($_____ per $1,000 original principal amount)
A-3 Notes: ______________ ($_____ per $1,000 original principal amount)
A-4 Notes: ______________ ($_____ per $1,000 original principal amount)
Class B Notes*: _____________ ($_____ per $1,000 original principal amount)
Class C Notes: _____________ ($_____ per $1,000 original principal amount)
(iii) Pool Balance as of the close of business on the last day of the preceding Collection
Period: _____
(iv) After giving effect to distributions on this Payment Date:
- ------------
*/ Including Class B Net Funds Cap Carryover Amount
Sale and Servicing Agreement - Exhibit A - 1
<PAGE>
<CAPTION>
<S> <C>
(a) (1) Outstanding Amount of A-1 Notes: _______
(2) Outstanding Amount of A-2 Notes: _______
(3) Outstanding Amount of A-3 Notes: _______
(4) Outstanding Amount of A-4 Notes: _______
(5) Outstanding Amount of Class B Notes: _______
(6) Outstanding Amount of Class C Notes: _______
(7) A-1 Note Pool Factor: _____
(8) A-2 Note Pool Factor: _____
(9) A-3 Note Pool Factor: _____
(10) A-4 Note Pool Factor: _____
(11) Class B Note Pool Factor: _____
(11) Class C Note Pool Factor: _____
(b) (1) Certificate Balance: __________
(2) Certificate Pool Factor: __________
(v) Amount of Servicing Fee: ____ ($_____ per $1,000 original principal amount)
(vi) Amount of Administration Fee: ____ ($____ per $1,000 original principal amount)
(vii) Class B Net Funds Cap Carryover Amount: __________
(viii) Aggregate Amount of Realized Losses for the Collection Period: __________
(ix) Aggregate Purchase Amounts for the Collection Period: __________
(x) Balance of the Spread Account: __________
(xi) Remaining Pre-funded Amount: __________
(xii) Balance of the Negative Carry Account: __________
Sale and Servicing Agreement - Exhibit A - 2
<PAGE>
<CAPTION>
EXHIBIT B
to Sale and Servicing Agreement
FORM OF CERTIFICATEHOLDER'S
STATEMENT PURSUANT TO SECTION 5.10(a)
Payment Date: ______________________
<S> <C>
(i) Amount of principal being paid or distributed:
(a) (1) A-1 Notes: __________
(2) A-2 Notes: __________
(3) A-3 Notes: __________
(4) A-4 Notes: __________
(5) Class B Notes: __________
(6) Class B Net Funds Cap Carryover Amount: __________
(7) Class C Notes: __________
(b) Certificates: ___________ ($_____ per $1,000 original
principal amount)
(c) Total: __________
(ii) Amount of interest being paid or distributed:
(a) (1) A-1 Notes: __________
(2) A-2 Notes: __________
(3) A-3 Notes: __________
(4) A-4 Notes: __________
(5) Class B Notes: __________
(6) Class C Notes: __________
(b) Certificates: ___________ ($_____ per $1,000 original
principal amount)
(c) Total: __________
(iii) Pool Balance as of the close of business on the last day of the
preceding Collection Period: _____
(iv) After giving effect to distributions on this Payment Date:
(a) (1) Outstanding Amount of A-1 Notes: _______
(2) Outstanding Amount of A-2 Notes: _______
(3) Outstanding Amount of A-3 Notes: _______
(4) Outstanding Amount of A-3 Notes: _______
Sale and Servicing Agreement - Exhibit B - 1
<PAGE>
(5) Outstanding Amount of Class B Notes: _______
(6) Outstanding Amount of Class C Notes: _______
(7) A-1 Note Pool Factor: _____
(8) A-2 Note Pool Factor: _____
(9) A-3 Note Pool Factor: _____
(10) A-4 Note Pool Factor: _____
(11) Class B Note Pool Factor: _____
(12) Class C Note Pool Factor: _____
(b) (1) Certificate Balance: __________
(2) Certificate Pool Factor: __________
(v) Amount of Servicing Fee: ____ ($_____ per $1,000 original
principal amount)
(vi) Amount of Administration Fee: ____ ($____ per $1,000 original
principal amount)
(vii) Class B Net Funds Cap Carryover Amount: __________
(viii) Aggregate amount of Realized Losses for the Collection Period: ______
(ix) Aggregate Purchase Amounts for the Collection Period: __________
(x) Balance of the Spread Account: __________
(xi) Remaining Pre-Funded Amount:__________
(xii) Balance of the Negative Carry Account: __________
Sale and Servicing Agreement - Exhibit B - 2
</TABLE>
<PAGE>
EXHIBIT C
to Sale and Servicing Agreement
FORM OF SERVICER'S CERTIFICATE
The Bank of New York
101 Barclay Street, Floor 12E
New York, New York 10286
Attention: Corporate Trust Administration - Asset Back Finance Unit
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: Treasurer
Moody's Investors Service, Inc.
ABS Monitoring Department
99 Church Street
New York, New York 10007
Standard & Poor's Ratings Services,
a division of The McGraw-Hill Companies, Inc.
26 Broadway (15th Floor)
New York, New York 10004
Attention: Asset Backed Surveillance Department
Sale and Servicing Agreement - Exhibit C - 1
<PAGE>
<TABLE>
<CAPTION>
$90,000,000 Class A-1 Asset-Backed Notes
$204,500,000 Class A-2 Asset-Backed Notes
$237,000,000 Class A-3 Asset-Backed Notes
$188,591,000 Class A-4 Asset-Backed Notes
$34,719,000 Class B Asset-Backed Notes
$15,190,000 Certificates
Determination Date: __-___-__
DISTRIBUTIONS
<S> <C> <C>
(1) Fixed Rate Distribution Amount $________
(2) Fixed Rate Percentage of Servicing Fee* $________
(3) Fixed Rate Percentage of Administration Fee $________
(4) Excess of
Floating Rate Percentage of the Servicing Fee* ($________) $________
plus +
Floating Rate Percentage of the Administration Fee ($ )
========
($ )
over ========
Floating Rate Distribution Amount - ($________)
($ )
========
(5) Class A Noteholder's Interest Distributable Amount: $________
o Interest on Class A Notes ($________)
o Class A Noteholder's Interest Carryover Shortfall, if any ($___________)
(6) Class C Noteholders' Interest Distributable Amount $________
o Interest on Class B Notes ($_________)
o Class B Noteholders' Interest Carryover Shortfall, if any ($_______)
- ----------------
*/ If neither Credit nor an Affiliate is Servicer.
Sale and Servicing Agreement - Exhibit C - 2
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
(7) A-1 Noteholders' Principal Distributable Amount $________
o A-1 Noteholders' Monthly Principal Distributable Amount ($________)
o A-1 Noteholders' Principal Carryover Shortfall ($________)
(8) A-2 Noteholders' Principal Distributable Amount $________
o A-2 Noteholders' Monthly Principal Distributable Amount ($________)
o A-2 Noteholders' Principal Carryover Shortfall ($________)
(9) A-3 Noteholders' Principal Distributable Amount $________
o A-3 Noteholders' Monthly Principal Distributable Amount ($________)
o A-3 Noteholders' Principal Carryover Shortfall ($________)
(10) A-4 Noteholders' Principal Distributable Amount $________
o A-4 Noteholders' Monthly Principal Distributable Amount ($________)
o A-4 Noteholders' Principal Carryover Shortfall ($________)
(11) Excess of $________
Class B Noteholders' Interest Distributable Amount ($________)
plus +
Class B Noteholders' Principal Distributable Amount ($ )
========
($ )
========
over -
Amounts available under (17) and (18) below ($________)
($ )
========
(12) Remaining Fixed Rate Distribution Amount to (21) below $________
(1) - (2) - (3) - (4) - (5) - (6) - (7) - (8) - (9) - (10) - (11)
(13) Floating Rate Distribution Amount $________
(14) Floating Rate Percentage of Servicing Fee* $________
(15) Floating Rate Percentage of Administration Fee $________
- -------------
*/ If neither Credit nor an Affiliate is Servicer.
Sale and Servicing Agreement - Exhibit C - 3
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
(16) Excess of
Fixed Rate Percentage of the Servicing Fee* ($________)
plus +
Fixed Rate Percentage of the Administration Fee ($ )
========
($ )
========
over -
Fixed Rate Distribution Amount ($________)
($ ) $________
========
(17) Class B Noteholder's Interest Distributable Amount: $________
o Interest on Class B Notes ($________)
o Class B Noteholder's Interest Carryover Shortfall, if any ($___________)
(18) Class B Noteholders' Principal Distributable Amount $________
o Class B Noteholders' Monthly Principal Distributable Amount ($________)
o Class B Noteholders' Principal Carryover Shortfall ($________)
(19) Excess of
Class A Noteholders' Interest Distributable Amount ($________)
plus +
Class C Noteholders' Interest Distributable Amount ($________)
plus +
Class A Noteholders' Monthly Principal Distributable Amount ($ )
========
($ )
========
over -
Amounts available under (5) through (10) above ($________)
((5) + (6) + (7) + (8) + (9) + (10)) ($ ) $________
=========
(20) Remaining Floating Rate Distribution Amount to (21) below $________
(13) - (14) - (15) - (16) - (17) - (18) - (19)
(21) Remaining Fixed Rate Distribution Amount (12) $_______
plus +
Remaining Floating Rate Distribution Amount (20)
(22) Class C Noteholders' Principal Distributable Amount $________
o Class C Noteholders' Monthly Principal Distributable Amount ($________)
o Class C Noteholders' Principal Carryover Shortfall ($________)
Sale and Servicing Agreement - Exhibit C - 4
<PAGE>
(23) NOTEHOLDERS' DISTRIBUTABLE AMOUNT : $________
(5)+(6)+(7)+(8)+(9)+(10)+(17)+(18)
(24) Amount necessary to achieve Specified Spread Account Balance $________
Specified Spread Account Balance: $________
the lesser of (after all distributions and
adjustments):
(a) 2.00% of the Initial Pool Balance; and
(b) the Note Balance
(25) Class B Net Funds Cap Carryover Shortfall and $________
other amounts owed by the Trust to Class B Noteholders
(26) Certificateholders' Interest Distributable Amount $________
o Interest on Certificates ($________)
o Certificateholders' Interest Carryover Shortfall ($________)
(27) Certificateholders' Principal Distributable Amount $________
o Principal Distribution Amount remaining after all the Notes paid
in full ($________) o Certificateholders' Principal Carryover
Shortfall ($________)
(28) CERTIFICATEHOLDERS' DISTRIBUTABLE AMOUNT (26)+(27) $________
(29) Servicing Fee* $________
(30) Deposit to Spread Account (21)-(22)-(24)-(25)-(26)-(27) $________
SPREAD ACCOUNT
(31) Spread Account Balance (after deposits from (24) and (30)) $________
(32) Excess in Spread Account distributed to Seller (as permitted $________
in Sections 5.6(b) and (c) of the Sale and Servicing Agreement)
- -------------
*/ If Credit or an Affiliate is the Servicer.
Sale and Servicing Agreement - Exhibit C - 5
<PAGE>
<CAPTION>
<S> <C> <C>
(33) Amount to be withdrawn from the Spread Account and deposited $________
into the Note Distribution Account (as per Section 5.6(d) of
the Sale and Servicing Agreement)
(34) Final Spread Account Balance (31)-(32)-(33) $________
MISCELLANEOUS
(35) Pool Balance at the beginning of this Collection Period $________
(36) 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 A-3 Notes $________ A-4 Note Pool
Factor (_._______)
(d) Outstanding Amount of Class B Notes
Class B Note Pool Factor (_._______)
(e) Outstanding Amount of Class C Notes
Class C Note Pool Factor (_._______)
(f) Outstanding Amount of Certificates $________
Certificate Pool Factor (_._______)
(24) Aggregate Purchase Amounts for the preceding Collection Period $________
Sale and Servicing Agreement - Exhibit C - 6
</TABLE>
<PAGE>
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, 1997 (the "Sale and Servicing
Agreement"), among the undersigned, Case Credit Corporation and Case
Equipment Loan Trust 1997-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 ___________, 1997.
CASE RECEIVABLES II INC.,
By:_______________________
Name: Peter Hong
Title: Treasurer
Sale and Servicing Agreement - Exhibit D - 1
<PAGE>
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, 1997 (the "Sale and Servicing
Agreement"), among Case Equipment Loan Trust 1997-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) 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:____________________
Sale and Servicing Agreement - Exhibit E - 1
<PAGE>
SCHEDULE A
to Subsequent Transfer Assignment
SCHEDULE OF SUBSEQUENT RECEIVABLES
[To be attached]
Sale and Servicing Agreement - Exhibit E - 2
<PAGE>
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)(xvi) of the Sale
and Servicing Agreement dated as of September 1, 1997, among the Company,
Case Equipment Loan Trust 1997-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:____________________
Sale and Servicing Agreement - Exhibit E - 3
<PAGE>
EXHIBIT F
to Sale and Servicing Agreement
FORM OF ACCOUNTANTS' LETTER IN CONNECTION
WITH THE SUBSEQUENT TRANSFER ASSIGNMENT PURSUANT TO
SECTION 2.2(b)(xv) 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 1997-B
700 State Street
Racine, Wisconsin 53404
Credit Suisse First Boston Corporation,
as Representative of the several Underwriters
20th Floor
Eleven Madison Avenue
New York, New York 10010
Harris Trust and Savings Bank
311 West Monroe Street
Chicago, Illinois 60606
The Bank of New York
101 Barclay Street, Floor 12E
New York, New York 10286
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 1997-B (the
"Trust") pursuant to the Sale and Servicing Agreement dated as of September
1, 1997 (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 11, 1997 and the
Sale and Servicing Agreement - Exhibit F - 1
<PAGE>
Page 2
_________, 199_
prospectus supplement dated September [___], 1997 (together, the
"Prospectus"), which relates to the offering by the Trust of Class A-1
5.612% Asset Backed Notes, Class A-2 5.914% Asset Backed Notes, Class A-3
6.240% Asset-Backed Notes, Class A-4 6.410% Asset-Backed Notes and Class B
Asset Backed Notes (collectively, the "Notes") and the 6.410% Asset Backed
Certificates (the "Certificates"). Capitalized terms used herein and not
otherwise defined have the meaning 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,
__________________, the Indenture Trustee and the Trustee dated
___________, 1997 relating to the sale of certain retail
receivables (the "Initial Receivables") and the offering of the
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 letter.
b. Proved the arithmetic accuracy of the Aggregate Contract
Value and the related percentage of Initial Receivables
coded as representing construction equipment and the
Total 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 ______________, 1997, 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 relating 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
Sale and Servicing Agreement - Exhibit F - 2
<PAGE>
Page 3
_________, 199_
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 Total 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 Total
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 Total Aggregate
Contract Value of construction equipment column by the amount in the
Total 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 Total 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 Total 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.
Sale and Servicing Agreement - Exhibit F - 3
<PAGE>
Page 4
_________, 199_
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 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
Sale and Servicing Agreement - Exhibit F - 4
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE A
to Accountant's Letter
<S> <C> <C>
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. The weighted average of the Initial Cutoff Date APR and each
Subsequent Cutoff Date APR (weighted on the basis of the
respective aggregate Contract Values of the Fixed Rate Receivables
for which each such APR is used to calculate the Contract Value)
is not less than the weighted average interest rate on the Class A
Notes and Class C Notes plus 1% per annum
4. 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.
5. 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.
Sale and Servicing Agreement - Exhibit F - 5
</TABLE>
<PAGE>
SCHEDULE B
to Accountant's Letter
1. Percentage of principal balance of the Receivables that represents
construction equipment:
Aggregate
Contract Value Total
of Construction Aggregate Percent of
Equipment Contract Value Total
--------------- -------------- ----------
Initial Receivables $_________ $___________ _____%
Subsequent Receivables $ $ %
========== =========== ======
Total Receivables $ $ %
========== =========== ======
2. Weighted Average Original Term of the Receivables in the Trust.
Weighted
Total 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.
Sale and Servicing Agreement - Exhibit F - 6
- -------------------------------------------------------------------------------
CASE EQUIPMENT LOAN TRUST 1997-B
PURCHASE AGREEMENT
between
CASE CREDIT CORPORATION,
as Seller,
and
CASE RECEIVABLES II INC.,
as Purchaser.
Dated as of September 1, 1997
- -------------------------------------------------------------------------------
18295303
<PAGE>
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....................15
SECTION 4.2. Conditions to Obligation of the Seller.......................17
ARTICLE V
Covenants of the Seller
SECTION 5.1. Protection of Right, Title and Interest. ....................18
SECTION 5.2. Other Liens or Interests.....................................18
SECTION 5.3. Chief Executive Office.......................................19
SECTION 5.4. Costs and Expenses...........................................19
SECTION 5.5. Indemnification..............................................19
SECTION 5.6. Transfer of Subsequent Receivables...........................19
ARTICLE VI
Miscellaneous Provisions
SECTION 6.1. Obligations of Seller........................................19
Purchase Agreement i
18295303
<PAGE>
SECTION 6.2. Repurchase Events.............................................20
SECTION 6.3. Purchaser Assignment of Repurchased Receivables...............20
SECTION 6.4. Trust. .....................................................20
SECTION 6.5. Amendment.....................................................20
SECTION 6.6. Accountants' Letters..........................................21
SECTION 6.7. Waivers. .....................................................21
SECTION 6.8. Notices. .....................................................21
SECTION 6.9. Costs and Expenses............................................22
SECTION 6.10. Representations of the Seller and the Purchaser..............22
SECTION 6.11. Confidential Information.....................................22
SECTION 6.12. Headings and Cross-References................................22
SECTION 6.13. Governing Law................................................22
SECTION 6.14. Counterparts.................................................22
SECTION 6.15. Severability.................................................23
SCHEDULES AND EXHIBITS
SCHEDULE A Location of Receivables Files
EXHIBIT A Form of Assignment
EXHIBIT B Form of Subsequent Transfer Assignment
||
Purchase Agreement ii
18295303
<PAGE>
PURCHASE AGREEMENT, dated as of September 1, 1997, 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 (each a
"Contract"); 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) fixed rate Contracts having an aggregate Contract
Value of approximately $109,108,204 (the "Purchased Contracts") as of
August 31, 1997 (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, comprised of fixed rate Contracts having an aggregate
Contract Value of approximately $248,599,560 and floating rate Contracts
having an aggregate Contract Value of approximately $97,960,251 (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
1997-B (the "Trust"), which Trust will issue 6.410% Asset Backed
Certificates representing fractional undivided interests in, and 5.612%
Class A-1 Asset Backed Notes, 5.914% Class A-2 Asset Backed Notes, 6.240%
Class A-3 Asset Backed Notes, 6.410% Class A-4 Asset Backed Notes, Floating
Rate Class B Asset Backed Notes and 6.410% Class C 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
Purchase Agreement 1
18295303
<PAGE>
to the Receivables for the benefit of the Purchaser, the Trust, the 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 22, 1997.
"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 11, 1997,
and the prospectus supplement dated September 11, 1997, relating to the
Notes.
Purchase Agreement 2
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"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 refer collectively to the lists of
retail installment sale contracts attached as Schedule A to the Assignment
delivered on the Closing Date pursuant to Section 4.1 and the various
Subsequent Transfer Assignments.
"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 11, 1997, among Credit Suisse First Boston
Corporation, 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 $109,108,204 (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:
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(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(b), 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;
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(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 Receivable, 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) $190,759,310.85 in cash at the Closing and (ii) the balance in
cash, as provided in the subordinated note dated September 22, 1997,
payable by the Purchaser to the Seller.
(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
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released to the Purchaser from the Pre-Funding Account 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
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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 and the
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Assignment 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 and the
Assignment constitute, 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
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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 (except that in the case of each Floating Rate Receivable,
adjustments are made to the final payment to reflect fluctuations
in the APR during the term of such Floating Rate Receivable).
(ii) Schedule of Receivables. The information set forth
on Schedule A to the Assignment delivered on the Closing Date 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 Purchaser, the Trust, the 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, the Assignment 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
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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 is 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 in connection with
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 clause (b).
(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
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not more than 90 days, no default, breach, violation or event
permitting acceleration under the terms of any Receivable has
occurred and is continuing; and no continuing condition that with
notice or the lapse of time (or both) 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 (other
than under the Sale and Servicing Agreement and the Indenture);
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 that are Fixed Rate Receivables is
approximately 46.32 months as of the Initial Cutoff Date; the
weighted average remaining term of the Initial Receivables that
are Floating Rate Receivables is approximately 39.08 months as of
the Initial Cutoff Date; the weighted average original term
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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; each Fixed Rate Receivable is a
Precomputed Receivable; each Floating Rate Receivable is a Simple
Interest Receivable; each Fixed Rate Receivable has an APR of at
least 3.0%; each Floating Rate Receivable has a margin greater
than -3.0% per annum; and as of each Subsequent Transfer Cutoff
Date, the weighted average of the Initial Cutoff Date APR and each
Subsequent Cutoff Date APR (weighted on the basis of the
respective aggregate Contract Values of the Fixed Rate Receivables
for which each such APR is used to calculate the Contract Value)
will not be less than the weighted average interest rate on the
Class A Notes and the Class C Notes plus 1.00% per annum.
(xviii) Location of Receivable Files. The Receivable
Files are kept at one or more of the locations listed in Schedule
A 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. (A) Approximately 59.08% of the
aggregate Contract Value of the Initial Receivables that were
Fixed Rate Receivables, constituting 53.15% of the number of
Initial Receivables that were Fixed Rate 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 that were Fixed Rate Receivables
represent financing of used equipment; approximately 56.18% of the
aggregate Contract Value of the Initial Receivables that were
Fixed Rate Receivables, constituting 53.15% of the number of
Initial Receivables that were Fixed Rate 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 Initial Receivables that were Fixed Rate Receivables for
the purposes of the above calculations as of the
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Initial Cutoff Date is $357,707,763.96 (and, is calculated using
the individual APR applicable to each Initial Receivable).
(B) Approximately 42.30% of the aggregate Contract Value
of the Initial Receivables that were Floating Rate Receivables,
constituting 38.45% of the number of Initial Receivables that were
Floating Rate 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 that were Floating Rate Receivables represent
financing of used equipment; approximately 95.79% of the aggregate
Contract Value of the Initial Receivables that were Floating Rate
Receivables, constituting 96.44% of the number of Initial
Receivables that were Floating Rate 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
Initial Receivables that were Floating Rate Receivables for the
purposes of the above calculations as of the Initial Cutoff Date
is $97,960,250.83.
(C) Not more than 45% 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 being the
subject of a bankruptcy proceeding.
(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. (A) As of the Initial Cutoff
Date and as shown on the books of the Seller: (1) Initial
Receivables that were Fixed Rate Receivables having an aggregate
Contract Value equal to
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44.37% of the Aggregate Contract Value of Initial Receivables that
were Fixed Rate Receivables had annual scheduled payments, (2)
Initial Receivables that were Fixed Rate Receivables having an
aggregate Contract Value equal to 4.84% of the Aggregate Contract
Value of Initial Receivables that were Fixed Rate Receivables had
semi-annual scheduled payments, (3) Initial Receivables that were
Fixed Rate Receivables having an aggregate Contract Value equal to
0.67% of the Aggregate Contract Value of Initial Receivables that
were Fixed Rate Receivables had quarterly scheduled payments, and
(4) Initial Receivables that were Fixed Rate Receivables having an
aggregate Contract Value equal to 50.11% of the Aggregate Contract
Value of Initial Receivables that were Fixed Rate Receivables had
monthly scheduled payments.
(B) As of the Initial Cutoff Date and as shown on the
books of the Seller: (1) Initial Receivables that were Floating
Rate Receivables having an aggregate Contract Value equal to
44.37% of the Aggregate Contract Value of Initial Receivables that
were Floating Rate Receivables had annual scheduled payments, (2)
Initial Receivables that were Floating Rate Receivables having an
aggregate Contract Value equal to 4.84% of the Aggregate Contract
Value of Initial Receivables that were Floating Rate Receivables
had semi-annual scheduled payments, (3) Initial Receivables that
were Floating Rate Receivables having an aggregate Contract Value
equal to 0.67% of the Aggregate Contract Value of Initial
Receivables that were Floating Rate Receivables had quarterly
scheduled payments, and (4) Initial Receivables that were Floating
Rate Receivables having an aggregate Contract Value equal to
50.11% of the Aggregate Contract Value of Initial Receivables that
were Floating Rate Receivables 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 14.0% 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.
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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.
(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 and have attached thereto the Schedule of
Receivables, executed by the Chairman, the President, a
Vice President or the Treasurer of the Seller.
(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.
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(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, executed by the Chairman, the President, a
Vice President or the Treasurer of the Seller;
(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
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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 priority 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
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 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
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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
Purchase Agreement 18
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<PAGE>
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 of the United 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. The Seller
covenants to transfer to the Purchaser, pursuant to Section 2.2, Subsequent
Receivables with an aggregate Contract Value equal to $411,884,035.48. 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
Noteholder's 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 Noteholders or the
Certificateholders with respect to a failure of the Seller to comply with
the foregoing covenant.
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.
Purchase Agreement 19
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<PAGE>
SECTION 6.2. Repurchase Events. The Seller hereby covenants and
agrees with the Purchaser for the benefit of the Purchaser, the Indenture
Trustee, the Noteholders, the Trust, 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 an event obligating
the Seller to repurchase any Receivable materially and adversely affected
by any such breach (a "Repurchase Event") 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 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 and the 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 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 Noteholders or the Certificateholders; provided,
however, that such amendment will not, in the Opinion of Counsel,
materially and adversely affect the interest of any 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) Holders of Offered Notes evidencing at least a
majority of the Outstanding Amount of Offered Notes, (y) Holders of Class B
Notes evidencing
Purchase Agreement 20
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<PAGE>
at least a majority of the Outstanding Amount of 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 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
Noteholders or the Certificateholders or (ii) reduce the aforesaid
percentage of the Notes and Certificates that are required to consent to
any such amendment, without the consent of the holders of all the
outstanding Notes and Certificates.
It shall not be necessary for the consent of the
Certificateholders or 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 each 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 (or its assignee) in exercising any power, right or remedy under
this Agreement, any Assignment or any Subsequent Transfer 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: Treasurer
(telephone (414) 636- 6011); (b) in the case of the Purchaser, to Case
Receivables II Inc., 233 Lake
Purchase Agreement 21
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<PAGE>
Avenue, Racine, Wisconsin 53403, Attention: Treasurer (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: (a) 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, (b) in
connection with the filing of any financing statement under the UCC or (c)
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, the Assignment and
each Subsequent Transfer 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.
Purchase Agreement 22
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<PAGE>
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.
Purchase Agreement 23
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<PAGE>
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/ Peter Hong
Name: Peter Hong
Title: Treasurer
CASE CREDIT CORPORATION
By: /s/ Peter Hong
Name: Peter Hong
Title: Treasurer
Purchase Agreement 24
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<PAGE>
SCHEDULE A
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
Purchase Agreement - Schedule A - 1
18295303
<PAGE>
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, 1997 (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, 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 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 _____________, 1997.
CASE CREDIT CORPORATION
By:_________________________
Name:___________________
Title:__________________
Purchase Agreement - Exhibit A - 1
18295303
<PAGE>
SCHEDULE A
to Assignment
SCHEDULE OF PURCHASED CONTRACTS
[See attached list]
Purchase Agreement - Exhibit A - 2
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<PAGE>
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, 1997 (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.
Purchase Agreement - Exhibit B - 1
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<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Subsequent
Transfer Assignment to be duly executed as of _____________________, 199_.
CASE CREDIT CORPORATION
By:___________________________
Name:_____________________
Title:____________________
Purchase Agreement - Exhibit B - 2
18295303
<PAGE>
SCHEDULE A
to Subsequent Transfer Assignment
SCHEDULE OF SUBSEQUENT RECEIVABLES
[See attached list]
Purchase Agreement - Exhibit B - 3
18295303
<PAGE>
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, 1997, 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:_____________________
Purchase Agreement - Exhibit B - 4
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<PAGE>
- -----------------------------------------------------------------------------
CASE EQUIPMENT LOAN TRUST 1997-B
ADMINISTRATION AGREEMENT
among
CASE EQUIPMENT LOAN TRUST 1997-B,
as Issuer,
THE BANK OF NEW YORK,
as Trustee,
CASE CREDIT CORPORATION,
as Administrator,
and
HARRIS TRUST AND SAVINGS BANK,
as Indenture Trustee.
Dated as of September 1, 1997
- -----------------------------------------------------------------------------
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<PAGE>
|| TABLE OF CONTENTS
Section Page
SECTION 1. Duties of the Administrator......................................2
(a) Duties with Respect to the Indenture and the Note Depository
Agreement......................................................2
(b) Duties with Respect to the Trust...............................5
(c) Non-Ministerial Matters........................................7
SECTION 2. Records..........................................................7
SECTION 3. Compensation.....................................................8
SECTION 4. Additional Information To Be Furnished to the Issuer.............8
SECTION 5. Independence of the Administrator................................8
SECTION 6. No Joint Venture.................................................8
SECTION 7. Other Activities of the Administrator............................8
SECTION 8. Term of Agreement; Resignation and Removal of the Administrator..8
SECTION 9. Action upon Termination, Resignation or Removal.................10
SECTION 10. Notices........................................................11
SECTION 11. Amendments.....................................................11
SECTION 12. Successors and Assigns.........................................12
SECTION 13. Governing Law..................................................13
SECTION 14. Headings......................................................13
SECTION 15. Counterparts...................................................13
SECTION 16. Severability...................................................13
SECTION 17. Not Applicable to Case Credit Corporation in Other Capacities..13
SECTION 18. Limitation of Liability of the Trustee and the Indenture
Trustee........................................................13
SECTION 19. Indemnification................................................14
||
Administration Agreement i
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<PAGE>
ADMINISTRATION AGREEMENT, dated as of September 1, 1997 (this
"Agreement"), among CASE EQUIPMENT LOAN TRUST 1997-B, a Delaware business
trust (the "Issuer"), THE BANK OF NEW YORK, not in its individual capacity
but solely as trustee of the Issuer (the "Trustee"), CASE CREDIT
CORPORATION, a Delaware corporation, as the administrator of the Issuer
(the "Administrator"), and HARRIS TRUST AND SAVINGS BANK, an Illinois
banking corporation, not in its individual capacity but solely as the
indenture trustee (the "Indenture Trustee").
RECITALS
WHEREAS, the Issuer is issuing: (a) 5.612% Class A-1 Asset Backed
Notes, 5.914% Class A-2 Asset Backed Notes, 6.240% Class A-3 Asset Backed
Notes, 6.410% Class A-4 Asset Backed Notes (together, the "Class A Notes"),
the Floating Rate Class B Asset Backed Notes (the "Class B Notes"), and the
6.410% Class C Asset Backed Notes (the "Class C Notes", together with the
Class A Notes and the Class B Notes, the "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 to such
terms in the Indenture);
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 22, 1997 (the "Note Depository Agreement"),
among the Issuer, the Indenture Trustee, the Administrator and The
Depository Trust Company, (iii) the Indenture, (iv) the Class B Note
Purchase Agreement and (v) a Trust Agreement, dated as of the date hereof
(the "Trust Agreement"), among the Seller and the Trustee (the Sale and
Servicing Agreement, the Note Depository Agreement, the Indenture 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
Notes and the collateral therefor pledged pursuant to the Indenture (the
"Collateral")
Administration Agreement 1
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<PAGE>
and (b) the beneficial ownership interests in the Issuer (the registered
holders ofsuch interests being referred to herein as the "Certificateholders");
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:
SECTION 1. Duties of the Administrator.
(a) Duties with Respect to the Indenture and the Note Depository
Agreement. The Administrator shall perform all of its duties as
Administrator and the duties of the Issuer and the Trustee under the Note
Depository Agreement. In addition, the Administrator shall consult with the
Trustee regarding the duties of the Issuer and the Trustee under the Note
Depository Agreement and the Indenture. 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 the
Note Depository Agreement and the Indenture. 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 Note Register to be kept and to
give the Indenture Trustee notice of any appointment of a new Note
Registrar and the location, or change in location, of the Note
Register (Section 2.4);
(ii) the fixing or causing to be fixed of any special
record date and the notification of the Indenture Trustee and
Noteholders with respect to special payment dates, if any (Section
2.7(c));
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(iii) the preparation of or obtaining of the documents
and instruments required for authentication of the 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 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 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
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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 and
the Rating Agencies of each Event of Default, each default by the
Servicer or the Seller under the Sale and Servicing Agreement and
each default on the part of Credit under the Purchase 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 of the
names and addresses of Noteholders during any period when the
Indenture Trustee is not the 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
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);
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(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 Noteholders of
notices with respect to such supplemental indentures (Sections
9.1, 9.2 and 9.3);
(xxii) the execution and delivery of new Notes conforming
to any supplemental indenture (Section 9.6);
(xxiii) the notification of Noteholders of redemption of
the 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 Noteholders and
the Indenture Trustee of any agreements with respect to alternate
payment and notice provisions (Section 11.6); and
(xxvii) the recording of the Indenture, if applicable
(Section 11.15).
(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.
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(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 a Certificateholder 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
Certificateholders; provided, however, that the Trustee shall
retain responsibility for the distribution of the Schedule K-1s
necessary to enable each Certificateholder 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, 1997, 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 Sections 10.2 and 10.3 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.
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(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 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 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 Noteholders under the Indenture,
the Notes or the Basic Documents, (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.
SECTION 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.
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SECTION 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 third Payment Date, which
payment shall be solely an obligation of the Issuer.
SECTION 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.
SECTION 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.
SECTION 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.
SECTION 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.
SECTION 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 Sections 8(e) and (g), 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.
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(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 60 days (or such later date as specified in the notice
provided by the Administrator pursuant to Section 8(b)) from the delivery
to the Issuer, the Indenture Trustee and the Servicer of written notice of
such
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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 the 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 as the
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 (other than the
Indenture Trustee) shall be effective only after satisfaction of the Rating
Agency Condition with respect to the proposed appointment.
SECTION 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), (c) or (g), 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.
Administration Agreement 10
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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), (c)
or (g), 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.
SECTION 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 1997-B
c/o The Bank of New York
101 Barclay Street, Floor 12E
New York, New York 10286
Attn: Corporate Trust Administration - Asset Backed
Finance Unit
(b) if to the Administrator, to:
Case Credit Corporation
233 Lake Avenue
Racine, Wisconsin 53403
Attention: 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.
SECTION 11. Amendments. This Agreement may be amended from time to
time by a written amendment duly executed and delivered by the Issuer, the
Trustee, the Administrator and the Indenture Trustee, but without the
consent of any of the Noteholders or the Certificateholders, to cure any
ambiguity, to correct or supplement provisions of this Agreement or for the
purpose of adding any
Administration Agreement 11
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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 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 Noteholder or Certificateholder.
This Agreement may also be amended from time to time by the
Issuer, the Trustee, the Administrator and the Indenture Trustee with the
written consent of (x) Holders of Offered Notes evidencing not less than a
majority of the Outstanding Amount of Offered Notes, (y) Holders of Class B
Notes evidencing at least a majority of the Outstanding Amount of Class B
Notes and (z) Certificateholders holding 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 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
Noteholders or the Certificateholders or (ii) reduce the aforesaid
percentage of the Noteholders and Certificateholders that are required to
consent to any such amendment, without the consent of the holders of all
the outstanding 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 and each of the Rating
Agencies.
It shall not be necessary for the consent of the
Certificateholders or the 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 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
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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.
SECTION 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.
SECTION 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.
SECTION 15. Counterparts. This Agreement may be executed in
counterparts, all of which when so executed shall together constitute but one
and the same agreement.
SECTION 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.
SECTION 17. Not Applicable to Case Credit Corporation in Other
Capacities. Nothing in this Agreement shall affect any obligation that Case
Credit Corporation may have in any other capacity.
SECTION 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 The Bank of New York,
not in its individual capacity but solely in its capacity as Trustee of the
Issuer, and in no event shall The Bank of New York, in its individual
capacity, or any Certificateholder 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 hereunder, 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.
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(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.
SECTION 19. 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.
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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 1997-B
By: THE BANK OF NEW YORK,
not in its individual capacity but
solely as Trustee on behalf of the
Issuer
By: /s/ Cheryl L. Laser
Name: Cheryl L. Laser
Title: Assistant Vice President
THE BANK OF NEW YORK, not in its
individual capacity but solely as
Trustee under the Trust Agreement
By: /s/ Cheryl L. Laser
Name: Cheryl L. Laser
Title: Assistant Vice President
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
CASE CREDIT CORPORATION,
as Administrator
By: /s/ Peter Hong
Name: Peter Hong
Title: Treasurer
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CASE EQUIPMENT LOAN TRUST 1997-B
CLASS A-1 5.612% ASSET BACKED NOTES
CLASS A-2 5.914% ASSET BACKED NOTES
CLASS A-3 6.240% ASSET BACKED NOTES
CLASS A-4 6.410% ASSET BACKED NOTES
CASE RECEIVABLES II INC.
CLASS A NOTE UNDERWRITING AGREEMENT
-----------------------------------
September 11, 1997
Credit Suisse
First Boston Corporation
As Representative of the
Several Underwriters,
Eleven Madison Avenue
New York, NY 10010-3629
Ladies and Gentlemen:
1. Introductory. Case Receivables II Inc., a Delaware
corporation (the "Seller"), proposes to cause Case Equipment Loan Trust
1997-B (the "Trust") to issue and sell $90,000,000 principal amount of
Class A-1 5.612% Asset Backed Notes (the "A-1 Notes"), $204,500,000
principal amount of Class A-2 5.914% Asset Backed Notes (the "A-2 Notes"),
$237,000,000 principal amount of Class A-3 6.240% Asset Backed Notes (the
"A-3 Notes")and $188,591,000 principal amount of Class A-4 6.410% Asset
Backed Notes (the "A-4 Notes"; together with the A-1 Notes, the A-2 Notes
and the A-3 Notes, the "Class A Notes" or the "Underwritten Notes"), to the
several Class A Note Underwriters named in Schedule I hereto (collectively,
the "Underwriters"), for whom you are acting as representative (the
"Representative"). The assets of the Trust include, among other things, a
pool of retail installment sale contracts (the "Receivables") secured by
new or used agricultural or construction equipment and the related security
interests in the equipment financed thereby. The Receivables were sold to
the Trust by the Seller. The Receivables are serviced for the Trust by Case
Credit Corporation, a Delaware corpo ration ("Case Credit"). The
Underwritten Notes will be issued pursuant to the Indenture to be dated as
of
<PAGE>
2
September 1, 1997 (as amended and supplemented from time to time, the
"Indenture"), between the Trust and Harris Trust and Savings Bank (the
"Indenture Trustee").
Simultaneously with the issuance and sale of the
Underwritten Notes as contemplated in this Agreement, the Trust will issue
(i) $34,719,000 principal amount of 6.410% Class C Asset Backed Notes (the
"Class C Notes") which will be sold pursuant to an underwriting agreement
dated as of the date hereof (the "Class C Note Underwriting Agreement";
together with this Agreement, the "Underwriting Agreements") among the
Seller, Case Credit and you, as representative of the several underwriters
named in Schedule I thereto, (ii) $97,960,250.83 principal amount of
Floating Rate Class B Asset Backed Notes (the "Class B Notes"), which will
be sold in a private placement pursuant to a Note Purchase Agreement dated
as of the date hereof (the "Class B Note Purchase Agreement"), among the
Trust, Case Credit, as Servicer, and the Purchasers and Agent described
therein, and (iii) $15,190,000 principal amount of 6.410% Asset Backed
Certificates (the "Certificates"), each representing a fractional undivided
interest in the Trust, which will be retained by the Seller. The
Underwritten Notes and the Class C Notes are sometimes referred to herein
as the "Securities".
Capitalized terms used and not otherwise defined herein
shall have the meanings ascribed to them in the Sale and Servicing
Agreement to be dated as of September 1, 1997 (as amended and supplemented
from time to time, the "Sale and Servicing Agreement"), among the Trust,
the Seller and Case Credit, as servicer, or, if not defined therein, in the
Indenture or the Trust Agreement to be dated as of September 1, 1997 (as
amended and supplemented from time to time, the "Trust Agreement"), between
the Seller and The Bank of New York, as trustee (the "Trustee").
2. Representations and Warranties of the Seller. The
Seller represents and warrants to, and agrees with each Underwriter that:
(a) The Seller meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement (Registration No. 33-99298) on such Form, including
a preliminary basic prospectus and a preliminary prospectus supplement for
registration under the Act of the offering
<PAGE>
3
and sale of the Securities. The Seller may have filed one or more
amendments thereto as may have been required to the date hereof, each of
which amendments has been previously furnished to you. The Seller will next
file with the Commission one of the following: (i) prior to the
effectiveness of such registration statement, an amendment thereto
(including the form of final basic prospectus and the form of final
prospectus supplement relating to the Securities), (ii) after effectiveness
of such registration statement, a final basic prospectus and a final
prospectus supplement relating to the Securities in accordance with Rules
430A and 424(b)(1) or (4) under the Act, or (iii) a final basic prospectus
and a final prospectus supplement relating to the Securities in accordance
with Rules 415 and 424(b)(2) or (5). In the case of clauses (ii) and (iii),
the Seller has included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A Information) required
by the Act and the Rules thereunder to be included in the Prospectus with
respect to the Securities and the offering thereof. As filed, such
amendment and form of final prospectus supplement, or such final prospectus
supplement, shall include all Rule 430A Information, together with all
other such required information with respect to the Securities and the
offering thereof and, except to the extent that the Underwriters shall
agree in writing to a modification, shall be in all substantive respects in
the form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest preliminary basic prospectus and preliminary prospectus supplement
that have previously been furnished to you) as the Seller has advised you,
prior to the Execution Time, will be included or made therein. If the
Registration Statement contains the undertaking specified by Regulation S-K
Item 512(a), the Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
For purposes of this Agreement, "Effective Time" means
the date and time as of which such registration state ment, or the most
recent post-effective amendment thereto, if any, was declared effective by
the Commission, and "Effective Date" means the date of the Effective Time.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto. Such registration statement,
as amended at the Effective Time, including all information deemed to be a
part of such
<PAGE>
4
registration statement as of the Effective Time pursuant to Rule 430A(b)
under the Act, and including the exhibits thereto and any material
incorporated by reference therein, is hereinafter referred to as the
"Registration Statement". "Basic Prospectus" shall mean the prospectus
referred to above contained in the Registration Statement at the Effective
Date including any Preliminary Prospectus Supplement, as most recently
revised or amended and filed with the Commission pursuant to Rule 424(b).
"Preliminary Prospectus Supplement" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Prospectus.
"Prospectus" shall mean the prospectus supplement relating to the
Securities that is first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus or, if no filing pursuant to Rule
424(b) is required, shall mean the prospectus supplement relating to the
Securities, including the Basic Prospectus, included in the Registration
Statement at the Effective Date. "Rule 430A Information" means information
with respect to the Securities and the offering of the Securities permitted
to be omitted from the Registration Statement when it becomes effective
pursuant to Rule 430A. "Rule 415", "Rule 424", "Rule 430A" and "Regulation
S-K" refer to such rules or regulations under the Act. "Term Sheets" shall
mean those certain term sheets delivered by the Seller to each Underwriter
under cover of a letter dated September 9, 1997 (collectively, the "Term
Sheet Letters"), from the Seller to such Underwriter, and those term sheets
delivered by the Underwriters to the Seller pursuant to the Term Sheet
Letters, all of which have been or will be filed by the Seller with the
Commission on a Form 8-K prior to the delivery of the Prospectus to
investors. Any reference herein to the Registration Statement, the Basic
Prospectus, a Preliminary Prospectus Supplement or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or
before the Effective Date of the Registration Statement or the issue date
of the Basic Prospectus, such Preliminary Prospectus Supplement or the
Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus Supplement or
the Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the
Registration Statement, or
<PAGE>
5
the issue date of the Basic Prospectus, any Preliminary Prospectus
Supplement or the Prospectus, as the case may be, deemed to be incorporated
therein by reference.
(b) On the Effective Date and on the date of this
Agreement, the Registration Statement did or will, and, when the Prospectus
is first filed (if required) in accordance with Rule 424(b) and on the
Closing Date (as defined below), the Prospectus (and any supplements
thereto) will, comply in all material respects with the applicable
requirements of the Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the respective rules and regulations of
the Commission thereunder (the "Rules and Regulations"); on the Effective
Date, the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Term Sheets and the Prospectus,
if not filed pursuant to Rule 424(b), did not or will not, and on the date
of any filing pursuant to Rule 424(b) and on the Closing Date, the Term
Sheets and the Prospectus (together with any supplement thereto) will not
include any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Seller makes no representation or warranty as to the
information contained in or omitted from the Registration Statement, the
Term Sheets or the Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Seller by
any Underwriter through you specifically for use in connection with
preparation of the Registration Statement, the Term Sheets or the
Prospectus (or any supplement thereto), it being agreed that the only such
information is the following: (i) the statements in the last paragraph of
the cover page of the Prospectus Supplement dated September 11, 1997 (the
"Prospectus Supplement"); (ii) the statements on page S-3 of the Prospectus
Supplement concerning stabilization; and (iii) the statements in the second
and sixth paragraphs (concerning initial offering prices, concessions and
reallowances) and in the fourth and eighth paragraphs (concerning
over-allotment, stabilizing transactions, syndicate covering transactions
and penalty bids) under the heading "Underwriting" in the Prospectus
Supplement. As of the Closing Date, the Seller's representations and
<PAGE>
6
warranties in the Sale and Servicing Agreement and the Trust Agreement will
be true and correct in all material respects.
(c) The computer tape of the Receivables created as of
August 31, 1997, and made available to the Representative by the Servicer,
was complete and accurate in all material respects as of the date thereof
and includes a description of the Receivables that are described in
Schedule A to the Sale and Servicing Agreement.
(d) This Agreement has been duly authorized, executed and
delivered by each of the Seller and Case Credit.
3. Purchase, Sale, and Delivery of the Underwritten
Notes. On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth,
the Seller agrees to cause the Trust to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Trust,
at a purchase price of 99.905000% of the principal amount of the A-1 Notes,
99.860000% of the principal amount of the A-2 Notes, 99.756136% of the
principal amount of the A-3 Notes and 99.739714% of the principal amount of
the A-4 Notes, the respective principal amounts of Underwritten Notes set
forth opposite the name of such Underwriter in Schedule I hereto. Delivery
of and payment for the Underwritten Notes shall be made at the office of
Mayer, Brown & Platt, 190 South LaSalle Street, Chicago, Illinois 60603 (or
such other place as the Seller and the Representative shall agree), on
September 22, 1997 (the "Closing Date"). Delivery of the Underwritten Notes
shall be made against payment of the purchase price in immediately
available funds drawn to the order the Seller. The Underwritten Notes to be
so delivered will be initially represented by one or more Underwritten
Notes registered in the name of Cede & Co., the nominee of The Depository
Trust Company ("DTC"). The interests of beneficial owners of the
Underwritten Notes will be represented by book entries on the records of
DTC and participating members thereof. Definitive Underwritten Notes will
be available only under limited circumstances.
4. Offering by Underwriters. It is understood that the
Underwriters propose to offer the Underwritten Notes for sale to the public
(which may include selected dealers), as set forth in the Prospectus.
<PAGE>
7
5. Covenants of the Seller. The Seller covenants
and agrees with each of the Underwriters that:
(a) The Seller will use its best efforts to cause the
Registration Statement, and any amendment thereto, if not effective at the
Execution Time, to become effective. Prior to the termination of the
offering of the Underwritten Notes, the Seller will not file any amendment
of the Registration Statement or supplement to the Prospectus unless the
Seller has furnished you a copy for your review prior to filing and will
not file any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, if the Registration Statement
has become or becomes effective pursuant to Rule 430A, or filing of the
Prospectus is otherwise required under Rule 424(b), the Seller will file
the Prospectus, properly completed, and any supplement thereto, with the
Commission pursuant to and in accordance with the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to you of such timely filing.
(b) The Seller will advise you promptly of any proposal
to amend or supplement the Registration Statement as filed, or the related
Prospectus and will not effect such amendment or supplement without your
consent, which consent will not unreasonably be withheld; the Seller will
also advise you promptly of any request by the Commission for any amendment
of or supplement to the Registration Statement or the Prospectus or for any
additional information; and the Seller will also advise you promptly of the
effectiveness of the Registration Statement and any amendment thereto, when
the Prospectus, and any supplement thereto, shall have been filed with the
Commission pursuant to Rule 424(b) and of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or the institution or threat of any proceeding for that purpose, and the
Seller will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible the lifting of any issued stop
order.
(c) If, at any time when a prospectus relating to the
Underwritten Notes is required to be delivered under the Act, any event
occurs as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not
<PAGE>
8
misleading, or if it is necessary at any time to amend the Registration
Statement or supplement the Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, the Seller promptly will
notify you and will prepare and file, or cause to be prepared and filed,
with the Commission, subject to the second sentence of paragraph (a) of
this Section 5, an amendment or supplement that will correct such statement
or omission, or effect such compliance. Any such filing shall not operate
as a waiver or limitation on any right of any Underwriter hereunder.
(d) As soon as practicable, but not later than fourteen
months after the original effective date of the Registration Statement, the
Seller will cause the Trust to make generally available to Noteholders an
earnings state ment of the Trust covering a period of at least twelve
months beginning after the Effective Date of the Registra tion Statement
that will satisfy the provisions of Sec tion 11(a) of the Act.
(e) The Seller will furnish to the Underwriters copies of
the Registration Statement (one of which will be signed and will include
all exhibits), each related preliminary prospectus (including the
Preliminary Prospectus Supplement), the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in
such quantities as the Underwriters request.
(f) The Seller will arrange for the qualification of the
Underwritten Notes for sale under the laws of such jurisdictions in the
United States as you may reasonably designate and will continue such
qualifications in effect so long as required for the distribution.
(g) For a period from the date of this Agreement until
the retirement of the Underwritten Notes, or until such time as the
Underwriters shall cease to maintain a secondary market in the Underwritten
Notes, whichever occurs first, the Seller will deliver to you the annual
statements of compliance and the annual independent certified public
accountants' reports furnished to the Trustee or the Indenture Trustee
pursuant to the Sale and Servicing Agreement, as soon as such statements
and reports are furnished to the Trustee or the Indenture Trustee.
(h) So long as any of the Underwritten Notes is
outstanding, the Seller will furnish to you (i) as soon as
<PAGE>
9
practicable after the end of the fiscal year all documents required to be
distributed to Noteholders or filed with the Commission pursuant to the
Exchange Act or any order of the Commission thereunder and (ii) from time
to time, any other information concerning the Seller filed with any
government or regulatory authority which is otherwise publicly available,
as you may reasonably request.
(i) On or before the Closing Date, the Seller shall cause
the computer records of the Seller and Case Credit relating to the
Receivables to be marked to show the Trust's absolute ownership of the
Receivables, and from and after the Closing Date neither the Seller nor
Case Credit shall take any action inconsistent with the Trust's ownership
of such Receivables, other than as permitted by the Sale and Servicing
Agreement.
(j) To the extent, if any, that the rating provided with
respect to the Underwritten Notes by the rating agency or agencies that
initially rate the Underwritten Notes is conditional upon the furnishing of
documents or the taking of any other actions by the Seller, the Seller
shall furnish such documents and take any such other actions.
(k) For the period beginning on the date of this
Agreement and ending seven days after the Closing Date, unless waived by
the Underwriters, none of the Seller, Case Credit or any trust originated,
directly or indirectly, by the Seller or Case Credit will offer to sell or
sell notes (other than the Underwritten Notes, the Class B Notes, the Class
C Notes and commercial paper notes offered pursuant to Case Credit's
existing asset-backed commercial paper program) collateralized by, or
certificates (other than the Certificates) evidencing an ownership interest
in, receivables generated pursuant to retail agricultural or construction
equipment installment sale contracts.
6. Payment of Expenses. The Seller will pay all expenses
incident to the performance of its obligations under this Agreement,
including (i) the printing and filing of the Registration Statement as
originally filed and of each amendment thereto, (ii) the preparation,
issuance and delivery of the Underwritten Notes to the Underwriters, (iii)
the fees and disbursements of the Seller's counsel and accountants, (iv)
the qualification of the Underwritten Notes under securities laws in
accordance with the provisions of Section 5(f), including filing fees and
the
<PAGE>
10
fees and disbursements of counsel for you in connection therewith and in
connection with the preparation of any blue sky or legal investment survey,
(v) the printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment thereto,
(vi) the printing and delivery to the Underwriters of copies of any blue
sky or legal investment survey prepared in connection with the Underwritten
Notes, (vii) any fees charged by rating agencies for the rating of the
Underwritten Notes and (viii) the fees and expenses, if any, incurred with
respect to any filing with the National Association of Securities Dealers,
Inc.
7. Conditions of the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for the Underwritten
Notes will be subject to the accuracy of the representations and warranties
on the part of the Seller herein, to the accuracy of the statements of
officers of the Seller made pursuant to the provisions hereof, to the
performance by the Seller of its obligations hereunder and to the following
additional conditions precedent:
(a) If the Registration Statement has not become
effective prior to the Execution Time, unless the Underwriters agree in
writing to a later time, the Registra tion Statement shall have become
effective not later than (i) 6:00 p.m. New York City time on the date of
determina tion of the public offering price, if such determination occurred
at or prior to 3:00 p.m. New York City time on such date or (ii) 12:00 noon
on the business day following the day on which the public offering price
was determined, if such determination occurred after 3:00 p.m. New York
City time on such date.
(b) The Prospectus and any supplements thereto shall have
been filed (if required) with the Commission in accordance with the Rules
and Regulations and Section 5(a) hereof, and prior to the Closing Date, no
stop order sus pending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Seller or you, shall be contemplated
by the Commission or by any authority administering any state securities or
blue sky law.
(c) On or prior to the Closing Date, you shall
have received a letter or letters, dated as of the date of
<PAGE>
11
the Closing Date, of Arthur Andersen & Co., independent public accountants,
substantially in the form of the drafts to which you have previously agreed
and otherwise in form and substance satisfactory to you and your counsel.
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly the business
or properties of the Trust, the Seller, Case Credit or Case Corporation
which, in the judgment of the Underwriters, materially impairs the
investment quality of the Underwritten Notes or makes it impractical or
inadvisable to market the Underwritten Notes; (ii) any suspension or
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such exchange;
(iii) any suspension of trading of any securities of Case Corporation on
any exchange or in the over-the-counter market which, in the judgment of
the Underwriters, makes it impractical or inadvisable to market the
Underwritten Notes; (iv) any banking moratorium declared by Federal or New
York authorities; or (v) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress, or
any other substantial national or international calamity or emergency if,
in the judgment of the Underwriters, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment for the
Underwritten Notes.
(e) You shall have received an opinion or opinions of
counsel to Case Credit and the Seller, addressed to you, the Trustee and
the Indenture Trustee, dated the Closing Date and satisfactory in form and
substance to you and your counsel, to the effect that:
(i) Each of Case Credit and the Seller is an
existing corporation in good standing under the laws of
the State of Delaware with corporate power and authority
to own its properties and conduct its business as
described in the Prospectus and to enter into and perform
its obligations under the Underwriting Agreements, the
Sale and Servicing Agreement, the Administration
Agreement and the Purchase Agreement and has obtained all
necessary licenses and approvals in each jurisdiction in
which failure to qualify or to
<PAGE>
12
obtain such license or approval would render any
Receivable unenforceable by the Seller, the Trustee or
the Indenture Trustee.
(ii) The direction by the Seller to the Trustee to
authenticate the Certificates has been duly authorized by the
Seller and, when the Certificates have been duly executed,
authenticated and delivered by the Trustee in accordance with the
Trust Agreement and delivered and paid for pursuant to the
Certificate Underwriting Agreement, the Certificates will be
legally issued, fully paid and non-assessable subject to the
obligations of the Seller under Section 2.7 of the Trust Agreement
and entitled to the benefits of the Trust Agreement.
(iii) The direction by Case Credit to the Indenture
Trustee to authenticate the Underwritten Notes has been duly
authorized by Case Credit, and, when the Underwritten Notes have
been duly executed and delivered by the Trustee, authenticated by
the Indenture Trustee in accordance with the Indenture and
delivered and paid for pursuant to the Note Underwriting
Agreement, the Underwritten Notes will be duly issued and entitled
to the benefits and security afforded by the Indenture, subject to
the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors'
rights generally and to the effect of general principles of
equity, including concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether considered in a
proceeding in equity or at law).
(iv) The Liquidity Receivables Purchase Agreement, the
Purchase Agreement, the Trust Agreement and the Sale and Servicing
Agreement have been duly authorized, executed and delivered by the
Seller, and are legal, valid and binding obligations of the Seller
enforceable against the Seller in accordance with their terms,
subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors'
rights generally and to the effect of general principles of
equity, including concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether considered in a
proceeding in equity or at law).
<PAGE>
13
(v) Each of the Underwriting Agreements has been duly
authorized, executed and delivered by each of the Seller and Case
Credit.
(vi) The Liquidity Receivables Purchase Agreement, the
Purchase Agreement, the Sale and Servicing Agreement and the
Administration Agreement have been duly authorized, executed and
delivered by Case Credit and are legal, valid and binding
obligations of Case Credit enforceable against Case Credit in
accordance with their terms, subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally and to the
effect of general principles of equity, including concepts of
materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at
law).
(vii) The execution, delivery and performance of the
Underwriting Agreements, the Liquidity Receivables Purchase
Agreement, the Purchase Agreement, the Trust Agreement, the
Administration Agreement and the Sale and Servicing Agreement
(such agreements, excluding the Underwriting Agreements, being,
collectively, the "Basic Documents"), as applicable, by Case
Credit and the Seller, and the consummation of the transactions
contemplated thereby, will not conflict with, or result in a
breach, violation or acceleration of, or constitute a default
under, the certificate of incor poration or by-laws of Case Credit
or the Seller or any material agreement or instrument known to
such counsel to which Case Credit or the Seller is a party or by
which Case Credit or the Seller is bound or to which any of the
properties of Case Credit or the Seller is subject.
(viii) The execution, delivery and performance of the
Underwriting Agreements and the Basic Documents, as applicable, by
Case Credit and the Seller, and the consummation of the
transactions contemplated thereby, will not violate any statute,
rule or regulation or, to such counsel's knowledge, any order of
any governmental agency or body or any court having jurisdiction
over Case Credit or the Seller or any of their properties.
(ix) There are no actions, proceedings or inves tigations
pending or, to the best of such counsel's
<PAGE>
14
knowledge, threatened before any court, administrative agency, or
other tribunal (1) asserting the invalidity of the Trust or any of
the Basic Documents, (2) seeking to prevent the consummation of
any of the transactions contemplated by any of the Basic Documents
or the execution and delivery thereof, or (3) that could
reasonably be expected to materially and adversely affect the
performance by Case Credit or the Seller, as applicable, of its
obligations under, or the validity or enforceability of, the
Underwriting Agreements or the Basic Documents.
(x) Each of the Assignment dated as of the Closing Date
from Case Credit to the Seller and the assignments of Receivables
from Case Credit to the Seller pursuant to the Liquidity
Receivables Purchase Agreement have been duly authorized, executed
and
delivered by Case Credit.
(xi) Immediately prior to the transfer of the Receivables
to the Trust, the Seller's interest in the Receivables, the
security interests in the Financed Equipment securing the
Receivables and the proceeds of each of the foregoing was
perfected upon the filing of a UCC financing statement with the
Secretary of State of the State of Wisconsin and constituted a
perfected first priority interest therein. If a court concludes
that the transfer of the Receivables from the Seller to the Trust
is a sale, the interest of the Trust in the Receivables, the
security interests in the Financed Equipment securing the
Receivables and the proceeds of each of the foregoing will be
perfected upon the filing of a UCC financing statement with the
Secretary of State of the State of Wisconsin and will constitute a
first priority perfected interest therein. If a court concludes
that such transfer is not a sale, the Sale and Servicing Agreement
constitutes a grant by the Seller to the Trust of a valid security
interest in the Receivables, the security interests in the
Financed Equipment securing the Receivables and the proceeds of
each of the foregoing, which security interest will be perfected
upon the filing of the UCC financing state ment with the Secretary
of State of the State of Wisconsin referred to above and will
constitute a first priority perfected security interest therein.
No filing or other action, other than the filing of the UCC
financing statement with the Secretary of State of the State of
Wisconsin referred to above, is necessary
<PAGE>
15
to perfect and maintain the interest or the security interest of
the Trust in the Receivables, the security interests in the
Financed Equipment securing the Receivables and the proceeds of
each of the foregoing against third parties.
(xii) Assuming that Case Credit's standard procedures
have been followed with respect to the creation of the
Receivables, Case Credit obtains from each Dealer either an
absolute ownership interest or a security interest in the
Receivables originated by that Dealer, which ownership or security
interest (whichever it may be) is perfected and prior to any other
interests that may be perfected only by possession of a Receivable
or the filing of a financing statement in accordance with the UCC.
Assuming that Case Credit's standard procedures with respect to
the perfection of a security interest in the equipment financed by
Case Credit pursuant to retail agricultural or construction
equipment installment sale contracts in the ordinary course of
Case Credit's business have been followed with respect to the
perfection of security interests in the Financed Equipment, Case
Credit has acquired either a perfected security interest in the
Financed Equipment or a perfected security interest in the
Receivables, which indirectly provides Case Credit with a security
interest in the Financed Equipment that is perfected as against
the obligor's creditors.
(xiii) The Indenture constitutes a grant by the Trust to
the Indenture Trustee of a valid security interest in the
Receivables, the security interests in the Financed Equipment
securing the Receivables and the proceeds of each of the
foregoing.
(xiv) The security interest granted under the Indenture
will be perfected upon the filing of a UCC financing statement
with the Delaware Secretary of State and will constitute a first
priority perfected security interest therein. No filing or other
action, other than the filing of the UCC financing statement with
the Delaware Secretary of State referred to above, is necessary to
perfect and maintain the security interest of the Indenture
Trustee in the Receivables, the security interests in the Financed
Equipment securing the Receivables and the proceeds of each of the
foregoing against third parties.
<PAGE>
16
(xv) The Receivables are chattel paper as defined in the
UCC.
(xvi) The Sale and Servicing Agreement, the Trust
Agreement, the Indenture, the Administration Agreement and the
Purchase Agreement conform in all material respects with the
description thereof contained in the Prospectus and any supplement
thereto.
(xvii) The statements in the Basic Prospectus under the
headings "Risk Factors--Certain Legal Aspects----Security
Interests in Financed Equipment" and "Certain Legal Aspects of the
Receivables", to the extent they constitute matters of law or
legal conclusions with respect thereto, are correct in all
material respects.
(xviii) The statements contained in the Prospectus and
any supplement thereto under the headings "Description of the
Offered Notes", "Description of the Certificates" and "Description
of the Transfer and Servicing Agreements", insofar as such
statements constitute a summary of the Underwritten Notes, the
Certificates, the Indenture, the Administration Agreement, the
Sale and Servicing Agreement and the Trust Agreement, fairly
present the matters referred to therein.
(xix) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by
the Underwriting Agreements or the Basic Documents, except such as
are required and have been obtained and made under the Securities
Act and such as may be required under state securities laws (it
being understood that this opinion will be given only with respect
to such consents, approvals, authorizations, orders and filings
that, in such counsel's experience, are customarily applicable in
transactions of the type contemplated by the Underwriting
Agreements and the Basic Documents).
(xx) The Trust Agreement is not required to be qualified
under the Trust Indenture Act and the Trust is not required to be
registered under the Investment Company Act of 1940, as amended
(the "Investment Company Act").
<PAGE>
17
(xxi) The Indenture has been duly qualified under the
Trust Indenture Act.
(xxii) The Seller is not, and will not as a result of the
offer and sale of the Underwritten Notes as contemplated in the
Prospectus and this Agreement or of the Class B Notes as
contemplated in the Prospectus and the Class B Note Underwriting
Agreement or as a result of the issuance of the Certificates
become, an "investment company" as defined in the Investment
Company Act or a company "controlled by" an "investment company"
within the meaning of the Investment Company Act.
(xxiii) [Intentionally Omitted.]
(xxiv) The Registration Statement has become effective
under the Act, any required filing of the Basic Prospectus, any
preliminary Basic Prospectus, any Preliminary Prospectus
Supplement and the Prospectus and any supplements thereto pursuant
to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b), and, to the best knowledge of such
counsel, no stop order suspending the effective ness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under
the Act; and the Registration Statement and the Prospectus, and
each amendment or supplement thereto, as of the Closing Date (in
the case of the Registration Statement) and as of their respective
issue dates (in the case of the Prospectus and each supplement
thereto), complied as to form in all material respects with the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations.
(xxv) The Trust has been duly formed and is validly
existing as a statutory business trust under the laws of the State
of Delaware, with full power and authority to execute, deliver and
perform its obligations under the Sale and Servicing Agreement,
the Indenture, the Administration Agreement, the Underwritten
Notes, the Class B Notes and the Certificates.
(xxvi) The Indenture, the Sale and Servicing Agreement
and the Administration Agreement have been duly authorized and,
when duly executed and delivered
<PAGE>
18
by the Trustee, will constitute the legal, valid and binding
obligations of the Trust, enforceable against the Trust in
accordance with their terms, subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally and to the
effect of general principles of equity, including concepts of
materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at
law).
The opinions of each of Mayer, Brown & Platt and Richard
S. Brennan, Esq., shall also state that such counsel has examined various
documents and participated in conferences with representatives of Case
Credit, the Seller, its counsel and its accountants and with
representatives of the Underwriters, at which time the contents of the
Registration Statement and the Prospectus and related matters were
discussed. However, except as specifically noted above, such counsel need
not assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement and the Prospectus.
Subject to the foregoing, such counsel shall advise you that no facts have
come to their attention that cause them to believe that the Registration
Statement or the Prospectus, at the Closing Date, contains any untrue
statement of a material fact or omits to state any material fact necessary
in order to make (x) the statements in the Registration Statement not
misleading and (y) the statements in the Prospectus not misleading in the
light of the circumstances under which they were made (in each case except
for the financial statements and related schedules or other financial or
statistical data included or incorporated by reference therein, as to which
such counsel will not be called upon to express a belief).
Such counsel shall also opine as to such other matters as
the Underwriters may reasonably request.
(f)You shall have received an opinion of Foley & Lardner,
special Wisconsin tax counsel for the Trust, addressed to you and the
Indenture Trustee, dated the Closing Date and satisfactory in form and
substance to you and your counsel, to the effect that the statements in the
Basic Prospectus under the headings "Summary of Terms--Tax Status" (to the
extent relating to Wisconsin tax consequences) and "Certain State Tax
Consequences" and in the Prospectus Supplement under the heading "Summary
of
<PAGE>
19
Terms--Tax Status" (to the extent relating to Wisconsin tax consequences),
accurately describe the material Wisconsin tax consequences to holders of
the Securities. Foley & Lardner, in its capacity as special Wisconsin
counsel to Case Credit and the Seller, shall have delivered an opinion with
respect to the perfection and priority of the respective interests of the
Seller and the Trust in the Receivables under Wisconsin Law.
(g) You shall have received an opinion addressed to you
of Mayer, Brown & Platt, in its capacity as Federal tax and ERISA counsel
for the Trust, to the effect that the statements in the Basic Prospectus
under the headings "Summary of Terms--Tax Status" (to the extent relating
to Federal income tax consequences) and "Certain Federal Income Tax
Consequences" and in the Prospectus Supplement under the heading "Summary
of Terms--Tax Status" (to the extent relating to Federal income tax
consequences) accurately describe the material Federal income tax
consequences to holders of the Securities, and the statements in the Basic
Prospectus under the heading "ERISA Considerations", to the extent that
they constitute statements of matters of law or legal conclusions with
respect thereto, have been prepared or reviewed by such counsel and
accurately describe the material consequences to holders of the Securities
under ERISA. Mayer, Brown & Platt, in its capacity as special counsel to
the Trust, shall have delivered an opinion with respect to the
characterization of the transfer of the Receivables.
(h) You shall have received an opinion (and a separate
"10b-5 statement") addressed to you of Cravath, Swaine & Moore, in its
capacity as special counsel to the Underwriters, dated the Closing Date,
with respect to the validity of the Certificates and the Underwritten Notes
and such other related matters as you shall require and the Seller shall
have furnished or caused to be furnished to such counsel such documents as
they may reasonably request for the purpose of enabling them to pass upon
such matters.
(i) You shall have received an opinion or
opinions addressed to you, the Seller and Case Credit of
<PAGE>
20
counsel to the Indenture Trustee, dated the Closing Date and satisfactory
in form and substance to you and your counsel, to the effect that:
(i) The Indenture Trustee is a banking corporation duly
incorporated and validly existing and in good standing under the
laws of the State of Illinois, and has full power and authority to
execute, deliver and perform its obligations under the Indenture,
the Sale and Servicing Agreement and the Administration Agreement.
(ii) Each of the Indenture, the Sale and Servicing Agreement
and the Administration Agreement has been duly authorized,
executed and delivered by the Indenture Trustee.
(iii) Each of the Indenture, the Sale and Servicing Agreement
and the Administration Agreement constitutes a legal, valid and
binding obligation of the Indenture Trustee, enforceable against
the Indenture Trustee in accordance with its respective terms,
except that certain of such obligations may be enforceable solely
against the Trust Estate and except that such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws affecting the enforcement of
creditors' rights generally, and by general principles of equity,
including without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
such enforceability is considered in a proceeding in equity or at
law).
(iv) No authorizations, consents or approvals of, notice
to or filing with, or the taking of any other action in respect
of, any governmental authority or agency of the United States or
the State of Illinois governing the banking or trust powers of the
Indenture Trustee is required for the execution, delivery or
performance by the Indenture Trustee of each of the Indenture, the
Sale and Servicing Agreement and the Administration Agreement.
(v) The Underwritten Notes have been duly authenticated
by the Indenture Trustee in accordance with the terms of the
Indenture.
<PAGE>
21
(vi) Neither the execution, delivery or performance by
the Indenture Trustee of the Indenture, the Sale and Servicing
Agreement and the Administration Agreement nor the compliance with
the terms and provisions thereof, nor the performance of its
obligations thereunder, conflicts or results in a breach of or
constitutes a default under any of the terms, conditions or
provisions of any law, government rule or regulation of the United
States of the State of Illinois governing the banking or trust
powers of the Indenture Trustee or the Charter or By-Laws of the
Indenture Trustee or, to our knowledge, any order, writ,
injunction or decree of any court or governmental authority
against the Indenture Trustee or by which it or any of its
properties is bound or, to our knowledge, any indenture, mortgage
or contract or other agreement or instrument to which the
Indenture Trustee is a party or by which it or any of its
properties is bound, or results in the creation or imposition of
any lien, charge or encumbrance upon any of its properties
pursuant to any agreement or instrument, except encumbrances and
security interests contemplated by the Indenture, the Sale and
Servicing Agreement and the Administration Agreement.
(vii) There are no actions, suits or proceedings
pending or, to the best of our knowledge, threatened against the
Indenture Trustee before any court, or by or before any federal,
state, municipal or other governmental department, commission,
board, bureau or governmental agency or instrumentality, or
arbitrator which would, if adversely determined, affect in any
material respect the consummation, validity or enforceability
against the Indenture Trustee of any of the Indenture, the Sale
and Servicing Agreement and the Administration Agreement.
(j) You shall have received an opinion addressed to you,
the Seller and Case Credit of counsel to the Trustee, dated the Closing
Date and satisfactory in form and substance to you and your counsel, to the
effect that:
(i) The Trustee is duly incorporated, validly existing in
good standing as a banking corporation under the laws of the State
of New York.
<PAGE>
22
(ii) The Trustee has power and authority to execute, deliver
and perform the Trust Agreement and to consummate the transactions
contemplated thereby.
(iii) The Trust Agreement has been duly authorized, executed
and delivered by the Trustee and constitutes a legal, valid and
binding obligation of the Trustee, enforceable against the
Trustee, in accordance with its terms.
(iv) Neither the execution or delivery by the Trustee of the
Trust Agreement nor the consummation by the Trustee of any of the
transactions contemplated thereby nor compliance by the Trustee
with the terms or provisions of the Trust Agreement will violate
any New York or United States federal law, rule or regulation
governing the banking or trust powers of the Trustee or the
Trustee's certificate of incorporation or by-laws or require the
consent or approval of, the giving of notice to, the registration
with, or the taking of any other action with respect to, any
governmental authority or agency under the laws of the State of
New York or the United States governing the banking or trust
powers of the Trustee.
You shall also have received an opinion addressed to you,
the Seller and Case Credit of counsel to The Bank of New York (Delaware),
as Delaware Trustee, dated the Closing Date and satisfactory in form and
substance to you and your counsel, covering such matters as you and your
counsel may
reasonably request.
(k) You shall have received certificates dated the
Closing Date of any two of the Chairman of the Board, the President, the
Executive Vice President, any Vice President, the Treasurer, any Assistant
Treasurer, the principal financial officer or the principal accounting
officer of each of Case Credit, the Seller and the Servicer in which such
officers shall state that, to the best of their knowledge after reasonable
investigation, (i) the representations and warranties of each of Case
Credit and the Seller contained in the Trust Agreement, the Liquidity
Receivables Purchase Agreement, the Purchase Agreement and the Sale and
Servicing Agreement, as applicable, are true and correct in all material
respects, that each of Case Credit and the Seller, has complied in all
material respects with all agreements and satisfied in all material
respects all conditions on its part to be performed or satisfied
<PAGE>
23
under such agreements at or prior to the Closing Date, that no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are
contemplated by the Commission and (ii) since June 30, 1997, except as may
be disclosed in the Prospectus or, in the case of Case Corporation, as may
be disclosed publicly by Case Corporation prior to the Execution Time, no
material adverse change in or affecting particularly the business or
properties of the Trust, the Seller, the Servicer, Case Credit or Case
Corporation has occurred.
(l) You shall have received evidence satisfactory to you
that, on or before the Closing Date, UCC financing statements have been or
are being filed in the office of the Secretary of State of the States of
Wisconsin and Delaware reflecting the transfer of the interest of Case
Credit in the Receivables and the proceeds thereof to the Seller, and the
transfer of the interest of the Seller in the Receivables and the proceeds
thereof to the Trust and the grant of the security interest by the Trust in
the Receivables and the proceeds thereof to the Indenture Trustee.
(m) The A-1 Notes shall have been rated A-1+ and P-1, and
the A-2 Notes, the A-3 Notes and the A-4 Notes shall have been rated AAA
and Aaa by Standard & Poor's Ratings Services and Moody's Investors
Service, Inc., respectively.
(n) The issuance of the Underwritten Notes, the Class B
Notes, the Class C Notes and the Certificates shall not have resulted in a
reduction or withdrawal by any Rating Agency of the current rating of any
outstanding securities issued or originated by the Seller.
(o) On the Closing Date, the Class C Notes shall have
been issued and sold pursuant to the Class C Note Underwriting Agreement,
the Class B Notes shall have been issued and sold pursuant to the Class B
Note Purchase Agreement and the Certificates shall have been issued to the
Seller.
The Seller will provide or cause to be provided to you
such conformed copies of such opinions, certificates, letters and documents
as you reasonably request.
<PAGE>
24
8. Indemnification and Contribution. (a) The Seller and
Case Credit will, jointly and severally, indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged
omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue statement
of a material fact contained in the Term Sheets, any preliminary
Basic Prospectus, Preliminary Prospectus Supplement, Basic
Prospectus or the Prospectus or any amendment or supplement
thereto or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if
such settlement is effected with the written consent of the Seller
or Case Credit; and
(iii) against any and all expense whatsoever (including,
subject to Section 8(c) hereof, the fees and disbursements of
counsel), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
(i) or (ii) above.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Seller, its directors, each of its officers who signed
the Registration Statement, and
<PAGE>
25
each person, if any, who controls the Seller within the meaning of Section
15 of the Act and Section 20 of the Exchange Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in
the Registration Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus or any amendment or supplement thereto in
reliance upon and in conformity with written information furnished to the
Seller by such Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary Basic
Prospectus, Preliminary Prospectus Supplement, Basic Prospectus or the
Prospectus or any amendment or supplement thereto.
(c) Each indemnified party shall give prompt notice to
each indemnifying party of any action commenced against it in respect of
which indemnity may be sought hereunder and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
and any others the indemnifying party may designate in such proceeding and
shall pay the fees and expenses of such counsel related to such proceeding,
but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability that it may have otherwise than on
account of this indemnity agreement. In any proceeding hereunder any
indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the contrary, (ii) the indemnifying
party has failed within a reasonable time to retain counsel reasonably
satisfactory to the indemnified party or (iii) the named parties in any
such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all
indemnified parties, and that all such fees and expenses shall be
reimbursed as they are incurred. Any such separate firm for the
Underwriters and such control persons of Underwriters shall be designated
in
<PAGE>
26
writing by the Representative and any such separate firm for Case Credit
and the Seller, the directors of Case Credit and the Seller, the officers
of Case Credit and the Seller who sign the Registration Statement and such
control persons of Case Credit and the Seller or authorized representatives
shall be designated in writing by the Case Credit and the Seller. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or
if there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify any indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party
shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which
any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for
in this Section 8 is for any reason held to be unavailable other than in
accordance with its terms, the Seller, Case Credit and the Underwriters
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by
the Seller and one or more of the Underwriters, in such proportions that
the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount and commissions appearing on the
cover page of the Prospectus bears to the initial public offering price
appearing thereon and the Seller and Case Credit are responsible for the
balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the
Act shall have the same rights to contribution as such Underwriter, and
each director of the Seller, each officer of the Seller who signed the
Registration Statement, and each person, if any, who controls the Seller
within the meaning of Section 15 of the Act shall have the same rights to
contribution as the
<PAGE>
27
Seller. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the
underwriting discount or commission applicable to the Underwritten Notes
purchased by it hereunder.
9. Defaults of Underwriters. If any Underwriter or
Underwriters default in their obligations to purchase Underwritten Notes
hereunder on the Closing Date and arrangements satisfactory to the
Representative and the Seller for the purchase of such Underwritten Notes
by other persons are not made within 24 hours after such default, this
Agreement will terminate without liability on the part of any nondefaulting
Underwriter or the Seller, except as provided in Section 11 and except
that, if the aggregate principal amount of Underwritten Notes which the
defaulting Underwriter or Underwriting agreed but failed to purchase shall
be 10% or less of the aggregate principal amount of all the Underwritten
Notes set forth in Schedule I hereto, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions
which the aggregate principal amount of Underwritten Notes set forth
opposite their names in Schedule I hereto bears to the aggregate principal
amount of Underwritten Notes set forth opposite the names of all the
remaining Underwriters) the Underwritten Notes which the defaulting
Underwriter or Underwriters agreed but failed to purchase. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
10. No Bankruptcy Petition. Each Underwriter covenants
and agrees that, prior to the date which is one year and one day after the
payment in full of all securities issued by the Seller or by a trust for
which the Seller was the depositor which securities were rated by any
nationally recognized statistical rating organization, it will not
institute against, or join any other Person in instituting against, the
Seller any bankruptcy, reorganization, arrange ment, insolvency or
liquidation proceedings or other pro ceedings under any Federal or state
bankruptcy or similar law.
11. Survival of Representations and Obligations.
The respective indemnities, agreements, representations,
warranties and other statements of the Seller and Case
Credit or any of their officers and each of the Underwriters
<PAGE>
28
set forth in or made pursuant to this Agreement and the Term Sheet Letters
or contained in certificates of officers of the Seller submitted pursuant
hereto shall remain operative and in full force and effect, regardless of
(i) any termination of this Agreement, (ii) any investigation or statement
as to the results thereof made by or on behalf of any Underwriter or of the
Seller or any of their respective representatives, officers or directors or
any controlling person, and (iii) delivery of and payment for the
Underwritten Notes. If for any reason the purchase of the Underwritten
Notes by the Underwriters is not consummated, the Seller shall remain
responsible for the expenses to be paid or reimbursed by the Seller
pursuant to Section 6 and the respective obligations of the Seller and the
Underwriters pursuant to Section 8 shall remain in effect. If for any
reason the purchase of the Underwritten Notes by the Underwriters is not
consummated (other than because of a failure to satisfy the conditions set
forth in items (ii), (iv) or (v) of Section 7(d)), the Seller will
reimburse any Underwriter, upon demand, for all reasonable out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred
by it in connection with the offering of the Underwritten Notes. Nothing
contained in this Section 11 shall limit the recourse of the Seller against
the Underwriters.
12. Notices. All communications hereunder will be in
writing and, if sent to the Underwriters, will be mailed, delivered or
telegraphed and confirmed to the Representative at Eleven Madison Avenue,
New York, NY 10010- 3629, Attention: Investment Banking
Department-Transactions Advisory Group (Fax No. (212) 325-8278); if sent to
the Seller, will be mailed, delivered or telegraphed, and confirmed to it
at Case Receivables II Inc., 233 Lake Avenue, Racine, Wisconsin 53403,
Attention: Treasurer; provided, however, that any notice to an Underwriter
pursuant to Section 8 will be mailed, delivered or telegraphed and
confirmed to such Underwriter. Any such notice will take effect at the time
of receipt.
13. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective successors
and the officers and directors and controlling persons referred to in
Section 8, and no other person will have any right or obligations
hereunder. No purchaser of Underwritten Notes from any Underwriter shall be
deemed to be a successor of such Underwriter merely because of such
purchase.
<PAGE>
29
14. Representation. You will act for the several
Underwriters in connection with the transactions contemplated by this
Agreement, and any action under this Agreement taken by you will be binding
upon all the Underwriters.
15. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same
Agreement.
<PAGE>
30
16. Applicable Law. This Agreement will be
governed by, and construed in accordance with, the laws of
the State of New York.
If the foregoing is in accordance with your understanding
of our agreement, kindly sign and return to us the enclosed duplicate
hereof, whereupon it will become a binding agreement among the Seller, Case
Credit and the several Underwriters in accordance with its terms.
Very truly yours,
CASE RECEIVABLES II INC.,
by
/s/ Peter Hong
Name: Peter Hong
Title: Treasurer
CASE CREDIT CORPORATION,
by
/s/ Peter Hong
Name: Peter Hong
Title: Treasurer
The foregoing Note
Underwriting Agreement
is hereby confirmed and
accepted as of the date
first written above.
CREDIT SUISSE
FIRST BOSTON CORPORATION
on behalf of itself and as
Representative of the several
Underwriters,
by
/s/ Erik Falk
Name: Erik Falk
Title: Vice President
<PAGE>
31
SCHEDULE I
Principal Amount
Class A Note Underwriters of A-1 Notes
- ------------------------- -------------------
Credit Suisse First Boston
Corporation $15,000,000
First Chicago Capital Markets, Inc. 15,000,000
Merrill Lynch, Pierce, Fenner
& Smith Incorporated 15,000,000
J.P. Morgan Securities Inc. 15,000,000
NationsBanc Capital Markets, Inc. 15,000,000
Salomon Brothers Inc 15,000,000
----------
Total.................................................. $90,000,000
===========
Principal Amount
Class A Note Underwriters of A-2 Notes
- ------------------------- -----------------
Credit Suisse First Boston
Corporation $ 34,085,000
First Chicago Capital Markets, Inc. 34,083,000
Merrill Lynch, Pierce, Fenner
& Smith Incorporated 34,083,000
J.P. Morgan Securities Inc. 34,083,000
NationsBanc Capital Markets, Inc. 34,083,000
Salomon Brothers Inc 34,083,000
-----------
Total.................................................... $204,500,000
============
<PAGE>
2
Principal Amount
Class A Note Underwriters of A-3 Notes
- ------------------------- ----------------
Credit Suisse First Boston
Corporation $ 39,500,000
First Chicago Capital Markets, Inc. 39,500,000
Merrill Lynch, Pierce, Fenner
& Smith Incorporated 39,500,000
J.P. Morgan Securities Inc. 39,500,000
NationsBanc Capital Markets, Inc. 39,500,000
Salomon Brothers Inc 39,500,000
-----------
Total.................................................... $237,000,000
===========
Principal Amount
Class A Note Underwriters of A-4 Notes
- ------------------------- -----------------
Credit Suisse First Boston
Corporation $ 31,436,000
First Chicago Capital Markets, Inc. 31,431,000
Merrill Lynch, Pierce, Fenner
& Smith Incorporated 31,431,000
J.P. Morgan Securities Inc. 31,431,000
NationsBanc Capital Markets, Inc. 31,431,000
Salomon Brothers Inc 31,431,000
----------
Total.................................................... $188,591,000
===========
<PAGE>
1
CASE EQUIPMENT LOAN TRUST 1997-B
CLASS C 6.410% ASSET BACKED NOTES
CASE RECEIVABLES II INC.
CLASS C NOTE UNDERWRITING AGREEMENT
-----------------------------------
September 11, 1997
Credit Suisse
First Boston Corporation
As Representative of the
Several Underwriters,
Eleven Madison Avenue
New York, NY 10010-3629
Ladies and Gentlemen:
1. Introductory. Case Receivables II Inc., a Delaware
corporation (the "Seller"), proposes to cause Case Equipment Loan Trust
1997-B (the "Trust") to issue and sell $34,719,000 principal amount of
Class C 6.410% Asset Backed Notes (the "Class C Notes" or the "Underwritten
Notes"), to the several Class C Note Underwriters named in Schedule I
hereto (collectively, the "Underwriters"), for whom you are acting as
representative (the "Representative"). The assets of the Trust include,
among other things, a pool of retail installment sale contracts (the
"Receivables") secured by new or used agricultural or construction
equipment and the related security interests in the equipment financed
thereby. The Receivables were sold to the Trust by the Seller. The
Receivables are serviced for the Trust by Case Credit Corporation, a
Delaware corporation ("Case Credit"). The Underwritten Notes will be issued
pursuant to the Indenture to be dated as of September 1, 1997 (as amended
and supplemented from time to time, the "Indenture"), between the Trust and
Harris Trust and Savings Bank (the "Indenture Trustee").
Simultaneously with the issuance and sale of the
Underwritten Notes as contemplated in this Agreement, the Trust will issue
(i) $90,000,000 principal amount of Class
<PAGE>
2
A-1 5.612% Asset Backed Notes (the "A-1 Notes"), $204,500,000 principal
amount of Class A-2 5.914% Asset Backed Notes (the "A-2 Notes"),
$237,000,000 principal amount of Class A-3 6.240% Asset Backed Notes (the
"A-3 Notes")and $188,591,000 principal amount of Class A-4 6.410% Asset
Backed Notes (the "A-4 Notes"; together with the A-1 Notes, the A-2 Notes
and the A-3 Notes, the "Class A Notes"), which will be sold pursuant to an
underwriting agreement dated as of the date hereof (the "Class A Note
Underwriting Agreement"; together with this Agreement, the "Underwriting
Agreements") among the Seller, Case Credit and you, as representative of
the several underwriters named in Schedule I thereto, (ii) $97,960,250.83
principal amount of Floating Rate Class B Asset Backed Notes (the "Class B
Notes"), which will be sold in a private placement pursuant to a Note
Purchase Agreement dated as of the date hereof (the "Class B Note Purchase
Agreement"), among the Trust, Case Credit, as Servicer, and the Purchasers
and the Agent described therein, and (iii) $15,190,000 principal amount of
6.410% Asset Backed Certificates (the "Certificates"), each representing a
fractional undivided interest in the Trust, which will be retained by the
Seller. The Underwritten Notes and the Class A Notes are sometimes referred
to herein as the "Securities".
Capitalized terms used and not otherwise defined herein
shall have the meanings ascribed to them in the Sale and Servicing
Agreement to be dated as of September 1, 1997 (as amended and supplemented
from time to time, the "Sale and Servicing Agreement"), among the Trust,
the Seller and Case Credit, as servicer, or, if not defined therein, in the
Indenture or the Trust Agreement to be dated as of September 1, 1997 (as
amended and supplemented from time to time, the "Trust Agreement"), between
the Seller and The Bank of New York, as trustee (the "Trustee").
2. Representations and Warranties of the Seller. The
Seller represents and warrants to, and agrees with each Underwriter that:
(a) The Seller meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement (Registration No. 33-99298) on such Form, including
a
<PAGE>
3
preliminary basic prospectus and a preliminary prospectus supplement for
registration under the Act of the offering and sale of the Securities. The
Seller may have filed one or more amendments thereto as may have been
required to the date hereof, each of which amendments has been previously
furnished to you. The Seller will next file with the Commission one of the
following: (i) prior to the effectiveness of such registration statement,
an amendment thereto (including the form of final basic prospectus and the
form of final prospectus supplement relating to the Securities), (ii) after
effectiveness of such registration statement, a final basic prospectus and
a final prospectus supplement relating to the Securities in accordance with
Rules 430A and 424(b)(1) or (4) under the Act, or (iii) a final basic
prospectus and a final prospectus supplement relating to the Securities in
accordance with Rules 415 and 424(b)(2) or (5). In the case of clauses (ii)
and (iii), the Seller has included in such registration statement, as
amended at the Effective Date, all information (other than Rule 430A
Information) required by the Act and the Rules thereunder to be included in
the Prospectus with respect to the Securities and the offering thereof. As
filed, such amendment and form of final prospectus supplement, or such
final prospectus supplement, shall include all Rule 430A Information,
together with all other such required information with respect to the
Securities and the offering thereof and, except to the extent that the
Underwriters shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution Time, shall contain
only such specific additional information and other changes (beyond that
contained in the latest preliminary basic prospectus and preliminary
prospectus supplement that have previously been furnished to you) as the
Seller has advised you, prior to the Execution Time, will be included or
made therein. If the Registration Statement contains the undertaking
specified by Regulation S-K Item 512(a), the Registration Statement, at the
Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
For purposes of this Agreement, "Effective Time" means
the date and time as of which such registration state ment, or the most
recent post-effective amendment thereto, if any, was declared effective by
the Commission, and
<PAGE>
4
"Effective Date" means the date of the Effective Time. "Execution Time"
shall mean the date and time that this Agreement is executed and delivered
by the parties hereto. Such registration statement, as amended at the
Effective Time, including all information deemed to be a part of such
registration statement as of the Effective Time pursuant to Rule 430A(b)
under the Act, and including the exhibits thereto and any material
incorporated by reference therein, is hereinafter referred to as the
"Registration Statement". "Basic Prospectus" shall mean the prospectus
referred to above contained in the Registration Statement at the Effective
Date including any Preliminary Prospectus Supplement, as most recently
revised or amended and filed with the Commission pursuant to Rule 424(b).
"Preliminary Prospectus Supplement" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Prospectus.
"Prospectus" shall mean the prospectus supplement relating to the
Securities that is first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus or, if no filing pursuant to Rule
424(b) is required, shall mean the prospectus supplement relating to the
Securities, including the Basic Prospectus, included in the Registration
Statement at the Effective Date. "Rule 430A Information" means information
with respect to the Securities and the offering of the Securities permitted
to be omitted from the Registration Statement when it becomes effective
pursuant to Rule 430A. "Rule 415", "Rule 424", "Rule 430A" and "Regulation
S-K" refer to such rules or regulations under the Act. "Term Sheets" shall
mean those certain term sheets delivered by the Seller to each Underwriter
under cover of a letter dated September 9, 1997 (collectively, the "Term
Sheet Letters"), from the Seller to such Underwriter, and those term sheets
delivered by the Underwriters to the Seller pursuant to the Term Sheet
Letters, all of which have been or will be filed by the Seller with the
Commission on a Form 8-K prior to the delivery of the Prospectus to
investors. Any reference herein to the Registration Statement, the Basic
Prospectus, a Preliminary Prospectus Supplement or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or
before the Effective Date of the Registration
<PAGE>
5
Statement or the issue date of the Basic Prospectus, such Preliminary
Prospectus Supplement or the Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus Supplement or the Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement, or the issue date
of the Basic Prospectus, any Preliminary Prospectus Supplement or the
Prospectus, as the case may be, deemed to be incorporated therein by
reference.
(b) On the Effective Date and on the date of this
Agreement, the Registration Statement did or will, and, when the Prospectus
is first filed (if required) in accordance with Rule 424(b) and on the
Closing Date (as defined below), the Prospectus (and any supplements
thereto) will, comply in all material respects with the applicable
requirements of the Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the respective rules and regulations of
the Commission thereunder (the "Rules and Regulations"); on the Effective
Date, the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Term Sheets and the Prospectus,
if not filed pursuant to Rule 424(b), did not or will not, and on the date
of any filing pursuant to Rule 424(b) and on the Closing Date, the Term
Sheets and the Prospectus (together with any supplement thereto) will not
include any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Seller makes no representation or warranty as to the
information contained in or omitted from the Registration Statement, the
Term Sheets or the Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Seller by
any Underwriter through you specifically for use in connection with
preparation of the Registration Statement, the Term Sheets or the
Prospectus (or any supplement thereto), it being agreed that the only such
information is the following: (i) the statements in the last paragraph of
the cover page of the Prospectus Supplement dated
<PAGE>
6
September 11, 1997 (the "Prospectus Supplement"); (ii) the statements on
page S-3 of the Prospectus Supplement concerning stabilization; and (iii)
the statements in the second and sixth paragraphs (concerning initial
offering prices, concessions and reallowances) and in the fourth and eighth
paragraphs (concerning over-allotment, stabilizing transactions, syndicate
covering transactions and penalty bids) under the heading "Underwriting" in
the Prospectus Supplement. As of the Closing Date, the Seller's repre
sentations and warranties in the Sale and Servicing Agreement and the Trust
Agreement will be true and correct in all material respects.
(c) The computer tape of the Receivables created as of
August 31, 1997, and made available to the Representative by the Servicer,
was complete and accurate in all material respects as of the date thereof
and includes a description of the Receivables that are described in
Schedule A to the Sale and Servicing Agreement.
(d) This Agreement has been duly authorized, executed and
delivered by each of the Seller and Case Credit.
3. Purchase, Sale, and Delivery of the Underwritten
Notes. On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth,
the Seller agrees to cause the Trust to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Trust,
at a purchase price of 99.635037% of the principal amount of the Class C
Notes, the respective principal amounts of Underwritten Notes set forth
opposite the name of such Underwriter in Schedule I hereto. Delivery of and
payment for the Underwritten Notes shall be made at the office of Mayer,
Brown & Platt, 190 South LaSalle Street, Chicago, Illinois 60603 (or such
other place as the Seller and the Representative shall agree), on September
22, 1997 (the "Closing Date"). Delivery of the Underwritten Notes shall be
made against payment of the purchase price in immediately available funds
drawn to the order the Seller. The Underwritten Notes to be so delivered
will be initially represented by one or more Underwritten Notes registered
in the name of Cede & Co., the nominee of The Depository Trust Company
("DTC"). The interests of beneficial owners of the Underwritten Notes will
be represented by book entries on the
<PAGE>
7
records of DTC and participating members thereof. Definitive Underwritten
Notes will be available only under limited circumstances.
4. Offering by Underwriters. It is understood that the
Underwriters propose to offer the Underwritten Notes for sale to the public
(which may include selected dealers), as set forth in the Prospectus.
5. Covenants of the Seller. The Seller covenants
and agrees with each of the Underwriters that:
(a) The Seller will use its best efforts to cause the
Registration Statement, and any amendment thereto, if not effective at the
Execution Time, to become effective. Prior to the termination of the
offering of the Underwritten Notes, the Seller will not file any amendment
of the Registration Statement or supplement to the Prospectus unless the
Seller has furnished you a copy for your review prior to filing and will
not file any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, if the Registration Statement
has become or becomes effective pursuant to Rule 430A, or filing of the
Prospectus is otherwise required under Rule 424(b), the Seller will file
the Prospectus, properly completed, and any supplement thereto, with the
Commission pursuant to and in accordance with the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to you of such timely filing.
(b) The Seller will advise you promptly of any proposal
to amend or supplement the Registration Statement as filed, or the related
Prospectus and will not effect such amendment or supplement without your
consent, which consent will not unreasonably be withheld; the Seller will
also advise you promptly of any request by the Commission for any amend
ment of or supplement to the Registration Statement or the Prospectus or
for any additional information; and the Seller will also advise you
promptly of the effectiveness of the Registration Statement and any
amendment thereto, when the Prospectus, and any supplement thereto, shall
have been filed with the Commission pursuant to Rule 424(b) and of the issu
ance by the Commission of any stop order suspending the effec tiveness of
the Registration Statement or the institution or threat of any proceeding
for that purpose, and the Seller will
<PAGE>
8
use its best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible the lifting of any issued stop order.
(c) If, at any time when a prospectus relating to the
Underwritten Notes is required to be delivered under the Act, any event
occurs as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Registration Statement or supplement the
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Seller promptly will notify you and will prepare and
file, or cause to be prepared and filed, with the Commission, subject to
the second sentence of paragraph (a) of this Section 5, an amendment or
supplement that will correct such statement or omission, or effect such
compliance. Any such filing shall not operate as a waiver or limitation on
any right of any Underwriter hereunder.
(d) As soon as practicable, but not later than fourteen
months after the original effective date of the Registration Statement, the
Seller will cause the Trust to make generally available to Noteholders an
earnings statement of the Trust covering a period of at least twelve months
beginning after the Effective Date of the Registration Statement that will
satisfy the provisions of Section 11(a) of the Act.
(e) The Seller will furnish to the Underwriters copies of
the Registration Statement (one of which will be signed and will include
all exhibits), each related preliminary prospectus (including the
Preliminary Prospectus Supplement), the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in
such quantities as the Underwriters request.
(f) The Seller will arrange for the qualification of the
Underwritten Notes for sale under the laws of such jurisdictions in the
United States as you may reasonably designate and will continue such
qualifications in effect so long as required for the distribution.
<PAGE>
9
(g) For a period from the date of this Agreement until
the retirement of the Underwritten Notes, or until such time as the
Underwriters shall cease to maintain a secondary market in the Underwritten
Notes, whichever occurs first, the Seller will deliver to you the annual
statements of compliance and the annual independent certified public
accountants' reports furnished to the Trustee or the Indenture Trustee
pursuant to the Sale and Servicing Agreement, as soon as such statements
and reports are furnished to the Trustee or the Indenture Trustee.
(h) So long as any of the Underwritten Notes is
outstanding, the Seller will furnish to you (i) as soon as practicable
after the end of the fiscal year all documents required to be distributed
to Noteholders or filed with the Commission pursuant to the Exchange Act or
any order of the Commission thereunder and (ii) from time to time, any
other information concerning the Seller filed with any government or
regulatory authority which is otherwise publicly available, as you may
reasonably request.
(i) On or before the Closing Date, the Seller shall cause
the computer records of the Seller and Case Credit relating to the
Receivables to be marked to show the Trust's absolute ownership of the
Receivables, and from and after the Closing Date neither the Seller nor
Case Credit shall take any action inconsistent with the Trust's ownership
of such Receivables, other than as permitted by the Sale and Servicing
Agreement.
(j) To the extent, if any, that the rating provided with
respect to the Underwritten Notes by the rating agency or agencies that
initially rate the Underwritten Notes is conditional upon the furnishing of
documents or the taking of any other actions by the Seller, the Seller
shall furnish such documents and take any such other actions.
(k) For the period beginning on the date of this
Agreement and ending seven days after the Closing Date, unless waived by
the Underwriters, none of the Seller, Case Credit or any trust originated,
directly or indirectly, by the Seller or Case Credit will offer to sell or
sell notes (other than the Underwritten Notes, the Class A Notes, the Class
B Notes and commercial paper notes offered pursuant to
<PAGE>
10
Case Credit's existing asset-backed commercial paper program)
collateralized by, or certificates (other than the Certificates) evidencing
an ownership interest in, receivables generated pursuant to retail
agricultural or construction equipment installment sale contracts.
6. Payment of Expenses. The Seller will pay all expenses
incident to the performance of its obligations under this Agreement,
including (i) the printing and filing of the Registration Statement as
originally filed and of each amendment thereto, (ii) the preparation,
issuance and delivery of the Underwritten Notes to the Underwriters, (iii)
the fees and disbursements of the Seller's counsel and accountants, (iv)
the qualification of the Underwritten Notes under securities laws in
accordance with the provisions of Section 5(f), including filing fees and
the fees and disbursements of counsel for you in connection therewith and
in connection with the preparation of any blue sky or legal investment
survey, (v) the printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment thereto,
(vi) the printing and delivery to the Underwriters of copies of any blue
sky or legal investment survey prepared in connection with the Underwritten
Notes, (vii) any fees charged by rating agencies for the rating of the
Underwritten Notes and (viii) the fees and expenses, if any, incurred with
respect to any filing with the National Association of Securities Dealers,
Inc.
7. Conditions of the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for the Underwritten
Notes will be subject to the accuracy of the representations and warranties
on the part of the Seller herein, to the accuracy of the statements of
officers of the Seller made pursuant to the provisions hereof, to the
performance by the Seller of its obligations hereunder and to the following
additional conditions precedent:
(a) If the Registration Statement has not become
effective prior to the Execution Time, unless the Underwriters agree in
writing to a later time, the Registra tion Statement shall have become
effective not later than (i) 6:00 p.m. New York City time on the date of
determina tion of the public offering price, if such determination
<PAGE>
11
occurred at or prior to 3:00 p.m. New York City time on such date or (ii)
12:00 noon on the business day following the day on which the public
offering price was determined, if such determination occurred after
3:00 p.m. New York City time on such date.
(b) The Prospectus and any supplements thereto shall have
been filed (if required) with the Commission in accordance with the Rules
and Regulations and Section 5(a) hereof, and prior to the Closing Date, no
stop order sus pending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Seller or you, shall be contemplated
by the Commission or by any authority administering any state securities or
blue sky law.
(c) On or prior to the Closing Date, you shall have
received a letter or letters, dated as of the date of the Closing Date, of
Arthur Andersen & Co., independent public accountants, substantially in the
form of the drafts to which you have previously agreed and otherwise in
form and substance satisfactory to you and your counsel.
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly the business
or properties of the Trust, the Seller, Case Credit or Case Corporation
which, in the judgment of the Underwriters, materially impairs the
investment quality of the Underwritten Notes or makes it impractical or
inadvisable to market the Underwritten Notes; (ii) any suspension or
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such exchange;
(iii) any suspension of trading of any securities of Case Corporation on
any exchange or in the over-the-counter market which, in the judgment of
the Underwriters, makes it impractical or inadvisable to market the
Underwritten Notes; (iv) any banking moratorium declared by Federal or New
York authorities; or (v) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress, or
any other substantial national or international calamity or emergency if,
in the judgment of the Underwriters, the
<PAGE>
12
effect of any such outbreak, escalation, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the sale
of and payment for the Underwritten Notes.
(e) You shall have received an opinion or opinions of
counsel to Case Credit and the Seller, addressed to you, the Trustee and
the Indenture Trustee, dated the Closing Date and satisfactory in form and
substance to you and your counsel, to the effect that:
(i) Each of Case Credit and the Seller is an existing
corporation in good standing under the laws of the State of Delaware
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus and to enter into and
perform its obligations under the Underwriting Agreements, the
Sale and Servicing Agreement, the Administration Agreement and the
Purchase Agreement and has obtained all necessary licenses and
approvals in each jurisdiction in which failure to qualify or to
obtain such license or approval would render any Receivable
unenforceable by the Seller, the Trustee or the Indenture Trustee.
(ii) The direction by the Seller to the Trustee to
authenticate the Certificates has been duly authorized by the
Seller and, when the Certificates have been duly executed,
authenticated and delivered by the Trustee in accordance with the
Trust Agreement and delivered and paid for pursuant to the
Certificate Underwriting Agreement, the Certificates will be
legally issued, fully paid and non-assessable subject to the
obligations of the Seller under Section 2.7 of the Trust Agreement
and entitled to the benefits of the Trust Agreement.
(iii) The direction by Case Credit to the Indenture
Trustee to authenticate the Underwritten Notes has been duly
authorized by Case Credit, and, when the Underwritten Notes have
been duly executed and delivered by the Trustee, authenticated by
the Indenture Trustee in accordance with the Indenture and
delivered and paid for pursuant to the Note
<PAGE>
13
Underwriting Agreement, the Underwritten Notes will be duly issued
and entitled to the benefits and security afforded by the
Indenture, subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally and to the effect of general
principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
considered in a proceeding in equity or at law).
(iv) The Liquidity Receivables Purchase Agreement, the
Purchase Agreement, the Trust Agreement and the Sale and Servicing
Agreement have been duly authorized, executed and delivered by the
Seller, and are legal, valid and binding obligations of the Seller
enforceable against the Seller in accordance with their terms,
subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors'
rights generally and to the effect of general principles of
equity, including concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether considered in a
proceeding in equity or at law).
(v) Each of the Underwriting Agreements has been duly
authorized, executed and delivered by each of the Seller and Case
Credit.
(vi) The Liquidity Receivables Purchase Agreement, the
Purchase Agreement, the Sale and Servicing Agreement and the
Administration Agreement have been duly authorized, executed and
delivered by Case Credit and are legal, valid and binding
obligations of Case Credit enforceable against Case Credit in
accordance with their terms, subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally and to the
effect of general principles of equity, including concepts of
materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at
law).
<PAGE>
14
(vii) The execution, delivery and performance of the
Underwriting Agreements, the Liquidity Receivables Purchase
Agreement, the Purchase Agreement, the Trust Agreement, the
Administration Agreement and the Sale and Servicing Agreement
(such agreements, excluding the Underwriting Agreements, being,
collectively, the "Basic Documents"), as applicable, by Case
Credit and the Seller, and the consummation of the transactions
contemplated thereby, will not conflict with, or result in a
breach, violation or acceleration of, or constitute a default
under, the certificate of incor poration or by-laws of Case Credit
or the Seller or any material agreement or instrument known to
such counsel to which Case Credit or the Seller is a party or by
which Case Credit or the Seller is bound or to which any of the
properties of Case Credit or the Seller is subject.
(viii) The execution, delivery and performance of the
Underwriting Agreements and the Basic Documents, as applicable, by
Case Credit and the Seller, and the consummation of the
transactions contemplated thereby, will not violate any statute,
rule or regulation or, to such counsel's knowledge, any order of
any governmental agency or body or any court having jurisdiction
over Case Credit or the Seller or any of their properties.
(ix) There are no actions, proceedings or inves tigations
pending or, to the best of such counsel's knowledge, threatened
before any court, administrative agency, or other tribunal (1)
asserting the invalidity of the Trust or any of the Basic
Documents, (2) seeking to prevent the consummation of any of the
transactions contemplated by any of the Basic Documents or the
execution and delivery thereof, or (3) that could reasonably be
expected to materially and adversely affect the performance by
Case Credit or the Seller, as applicable, of its obligations
under, or the validity or enforceability of, the Underwriting
Agreements or the Basic Documents.
(x) Each of the Assignment dated as of the Closing Date
from Case Credit to the Seller and the assignments of Receivables
from Case Credit to the Seller pursuant to the Liquidity
Receivables Purchase
<PAGE>
15
Agreement have been duly authorized, executed and delivered by
Case Credit.
(xi) Immediately prior to the transfer of the Receivables
to the Trust, the Seller's interest in the Receivables, the
security interests in the Financed Equipment securing the
Receivables and the proceeds of each of the foregoing was
perfected upon the filing of a UCC financing statement with the
Secretary of State of the State of Wisconsin and constituted a
perfected first priority interest therein. If a court concludes
that the transfer of the Receivables from the Seller to the Trust
is a sale, the interest of the Trust in the Receivables, the
security interests in the Financed Equipment securing the
Receivables and the proceeds of each of the foregoing will be
perfected upon the filing of a UCC financing statement with the
Secretary of State of the State of Wisconsin and will constitute a
first priority perfected interest therein. If a court concludes
that such transfer is not a sale, the Sale and Servicing Agreement
constitutes a grant by the Seller to the Trust of a valid security
interest in the Receivables, the security interests in the
Financed Equipment securing the Receivables and the proceeds of
each of the foregoing, which security interest will be perfected
upon the filing of the UCC financing state ment with the Secretary
of State of the State of Wisconsin referred to above and will
constitute a first priority perfected security interest therein.
No filing or other action, other than the filing of the UCC
financing statement with the Secretary of State of the State of
Wisconsin referred to above, is necessary to perfect and maintain
the interest or the security interest of the Trust in the
Receivables, the security interests in the Financed Equipment
securing the Receivables and the proceeds of each of the foregoing
against third parties.
(xii) Assuming that Case Credit's standard procedures
have been followed with respect to the creation of the
Receivables, Case Credit obtains from each Dealer either an
absolute ownership interest or a security interest in the
Receivables originated by that Dealer, which ownership or security
interest (whichever it may be) is perfected and prior to any other
<PAGE>
16
interests that may be perfected only by possession of a Receivable
or the filing of a financing statement in accordance with the UCC.
Assuming that Case Credit's standard procedures with respect to
the perfection of a security interest in the equipment financed by
Case Credit pursuant to retail agricultural or construction
equipment installment sale contracts in the ordinary course of
Case Credit's business have been followed with respect to the
perfection of security interests in the Financed Equipment, Case
Credit has acquired either a perfected security interest in the
Financed Equipment or a perfected security interest in the
Receivables, which indirectly provides Case Credit with a security
interest in the Financed Equipment that is perfected as against
the obligor's creditors.
(xiii) The Indenture constitutes a grant by the Trust to
the Indenture Trustee of a valid security interest in the
Receivables, the security interests in the Financed Equipment
securing the Receivables and the proceeds of each of the
foregoing.
(xiv) The security interest granted under the Indenture
will be perfected upon the filing of a UCC financing statement
with the Delaware Secretary of State and will constitute a first
priority perfected security interest therein. No filing or other
action, other than the filing of the UCC financing statement with
the Delaware Secretary of State referred to above, is necessary to
perfect and maintain the security interest of the Indenture
Trustee in the Receivables, the security interests in the Financed
Equipment securing the Receivables and the proceeds of each of the
foregoing against third parties.
(xv) The Receivables are chattel paper as defined in the
UCC.
(xvi) The Sale and Servicing Agreement, the Trust
Agreement, the Indenture, the Administration Agreement and the
Purchase Agreement conform in all material respects with the
description thereof contained in the Prospectus and any supplement
thereto.
<PAGE>
17
(xvii) The statements in the Basic Prospectus under the
headings "Risk Factors--Certain Legal Aspects----Security
Interests in Financed Equipment" and "Certain Legal Aspects of the
Receivables", to the extent they constitute matters of law or
legal conclusions with respect thereto, are correct in all
material respects.
(xviii) The statements contained in the Prospectus and
any supplement thereto under the headings "Description of the
Offered Notes", "Description of the Certificates" and "Description
of the Transfer and Servicing Agreements", insofar as such
statements constitute a summary of the Underwritten Notes, the
Certificates, the Indenture, the Administration Agreement, the
Sale and Servicing Agreement and the Trust Agreement, fairly
present the matters referred to therein.
(xix) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by
the Underwriting Agreements or the Basic Documents, except such as
are required and have been obtained and made under the Securities
Act and such as may be required under state securities laws (it
being understood that this opinion will be given only with respect
to such consents, approvals, authorizations, orders and filings
that, in such counsel's experience, are customarily applicable in
transactions of the type contemplated by the Underwriting
Agreements and the Basic Documents).
(xx) The Trust Agreement is not required to be qualified
under the Trust Indenture Act and the Trust is not required to be
registered under the Investment Company Act of 1940, as amended
(the "Investment Company Act").
(xxi) The Indenture has been duly qualified under the
Trust Indenture Act.
(xxii) The Seller is not, and will not as a result of the
offer and sale of the Underwritten Notes as contemplated in the
Prospectus and this Agreement or
<PAGE>
18
of the Class A Notes as contemplated in the Prospectus and the
Class A Note Underwriting Agreement or as a result of the issuance
of the Certificates become, an "investment company" as defined in
the Investment Company Act or a company "controlled by" an
"investment company" within the meaning of the Investment Company
Act.
(xxiii) [Intentionally Omitted.]
(xxiv) The Registration Statement has become effective
under the Act, any required filing of the Basic Prospectus, any
preliminary Basic Prospectus, any Preliminary Prospectus
Supplement and the Prospectus and any supplements thereto pursuant
to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b), and, to the best knowledge of such
counsel, no stop order suspending the effective ness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under
the Act; and the Registration Statement and the Prospectus, and
each amendment or supplement thereto, as of the Closing Date (in
the case of the Registration Statement) and as of their respective
issue dates (in the case of the Prospectus and each supplement
thereto), complied as to form in all material respects with the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations.
(xxv) The Trust has been duly formed and is validly
existing as a statutory business trust under the laws of the State
of Delaware, with full power and authority to execute, deliver and
perform its obligations under the Sale and Servicing Agreement,
the Indenture, the Administration Agreement, the Underwritten
Notes, the Class A Notes and the Certificates.
(xxvi) The Indenture, the Sale and Servicing Agreement
and the Administration Agreement have been duly authorized and,
when duly executed and delivered by the Trustee, will constitute
the legal, valid and binding obligations of the Trust, enforceable
against the Trust in accordance with their terms, subject to
<PAGE>
19
the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors'
rights generally and to the effect of general principles of
equity, including concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether considered in a
proceeding in equity or at law).
The opinions of each of Mayer, Brown & Platt and Richard
S. Brennan, Esq., shall also state that such counsel has examined various
documents and participated in conferences with representatives of Case
Credit, the Seller, its counsel and its accountants and with
representatives of the Underwriters, at which time the contents of the
Registration Statement and the Prospectus and related matters were
discussed. However, except as specifically noted above, such counsel need
not assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement and the Prospectus.
Subject to the foregoing, such counsel shall advise you that no facts have
come to their attention that cause them to believe that the Registration
Statement or the Prospectus, at the Closing Date, contains any untrue
statement of a material fact or omits to state any material fact necessary
in order to make (x) the statements in the Registration Statement not
misleading and (y) the statements in the Prospectus not misleading in the
light of the circumstances under which they were made (in each case except
for the financial statements and related schedules or other financial or
statistical data included or incorporated by reference therein, as to which
such counsel will not be called upon to express a belief).
Such counsel shall also opine as to such other matters as
the Underwriters may reasonably request.
(f) You shall have received an opinion of Foley & Lardner,
special Wisconsin tax counsel for the Trust, addressed to you and the
Indenture Trustee, dated the Closing Date and satisfactory in form and
substance to you and your counsel, to the effect that the statements in the
Basic Prospectus under the headings "Summary of Terms--Tax Status" (to the
extent relating to Wisconsin tax consequences) and "Certain State Tax
Consequences" and in the Prospectus Supplement under the heading "Summary
of
<PAGE>
20
Terms--Tax Status" (to the extent relating to Wisconsin tax consequences),
accurately describe the material Wisconsin tax consequences to holders of
the Securities. Foley & Lardner, in its capacity as special Wisconsin
counsel to Case Credit and the Seller, shall have delivered an opinion with
respect to the perfection and priority of the respective interests of the
Seller and the Trust in the Receivables under Wisconsin Law.
(g) You shall have received an opinion addressed to you
of Mayer, Brown & Platt, in its capacity as Federal tax and ERISA counsel
for the Trust, to the effect that the statements in the Basic Prospectus
under the headings "Summary of Terms--Tax Status" (to the extent relating
to Federal income tax consequences) and "Certain Federal Income Tax
Consequences" and in the Prospectus Supplement under the heading "Summary
of Terms--Tax Status" (to the extent relating to Federal income tax
consequences) accurately describe the material Federal income tax
consequences to holders of the Securities, and the statements in the Basic
Prospectus under the heading "ERISA Considerations", to the extent that
they constitute statements of matters of law or legal conclusions with
respect thereto, have been prepared or reviewed by such counsel and
accurately describe the material consequences to holders of the Securities
under ERISA. Mayer, Brown & Platt, in its capacity as special counsel to
the Trust, shall have delivered an opinion with respect to the
characterization of the transfer of the Receivables.
(h) You shall have received an opinion (and a separate
"10b-5 statement") addressed to you of Cravath, Swaine & Moore, in its
capacity as special counsel to the Underwriters, dated the Closing Date,
with respect to the validity of the Certificates and the Underwritten Notes
and such other related matters as you shall require and the Seller shall
have furnished or caused to be furnished to such counsel such documents as
they may reasonably request for the purpose of enabling them to pass upon
such matters.
(i) You shall have received an opinion or opinions
addressed to you, the Seller and Case Credit of
<PAGE>
21
counsel to the Indenture Trustee, dated the Closing Date and satisfactory
in form and substance to you and your counsel, to the effect that:
(i) The Indenture Trustee is a banking corporation duly
incorporated and validly existing and in good standing under the
laws of the State of Illinois, and has full power and authority to
execute, deliver and perform its obligations under the Indenture,
the Sale and Servicing Agreement and the Administration Agreement.
(ii) Each of the Indenture, the Sale and Servicing Agreement
and the Administration Agreement has been duly authorized,
executed and delivered by the Indenture Trustee.
(iii) Each of the Indenture, the Sale and Servicing Agreement
and the Administration Agreement constitutes a legal, valid and
binding obligation of the Indenture Trustee, enforceable against
the Indenture Trustee in accordance with its respective terms,
except that certain of such obligations may be enforceable solely
against the Trust Estate and except that such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws affecting the enforcement of
creditors' rights generally, and by general principles of equity,
including without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
such enforceability is considered in a proceeding in equity or at
law).
(iv) No authorizations, consents or approvals of, notice
to or filing with, or the taking of any other action in respect
of, any governmental authority or agency of the United States or
the State of Illinois governing the banking or trust powers of the
Indenture Trustee is required for the execution, delivery or
performance by the Indenture Trustee of each of the Indenture, the
Sale and Servicing Agreement and the Administration Agreement.
<PAGE>
22
(v) The Underwritten Notes have been duly authenticated
by the Indenture Trustee in accordance with the terms of the
Indenture.
(vi) Neither the execution, delivery or performance by
the Indenture Trustee of the Indenture, the Sale and Servicing
Agreement and the Administration Agreement nor the compliance with
the terms and provisions thereof, nor the performance of its
obligations thereunder, conflicts or results in a breach of or
constitutes a default under any of the terms, conditions or
provisions of any law, government rule or regulation of the United
States of the State of Illinois governing the banking or trust
powers of the Indenture Trustee or the Charter or By-Laws of the
Indenture Trustee or, to our knowledge, any order, writ,
injunction or decree of any court or governmental authority
against the Indenture Trustee or by which it or any of its
properties is bound or, to our knowledge, any indenture, mortgage
or contract or other agreement or instrument to which the
Indenture Trustee is a party or by which it or any of its
properties is bound, or results in the creation or imposition of
any lien, charge or encumbrance upon any of its properties
pursuant to any agreement or instrument, except encumbrances and
security interests contemplated by the Indenture, the Sale and
Servicing Agreement and the Administration Agreement.
(vii) There are no actions, suits or proceedings
pending or, to the best of our knowledge, threatened against the
Indenture Trustee before any court, or by or before any federal,
state, municipal or other governmental department, commission,
board, bureau or governmental agency or instrumentality, or
arbitrator which would, if adversely determined, affect in any
material respect the consummation, validity or enforceability
against the Indenture Trustee of any of the Indenture, the Sale
and Servicing Agreement and the Administration Agreement.
(j) You shall have received an opinion addressed
to you, the Seller and Case Credit of counsel to the
<PAGE>
23
Trustee, dated the Closing Date and satisfactory in form and substance to
you and your counsel, to the effect that:
(i) The Trustee is duly incorporated, validly existing in
good standing as a banking corporation under the laws of the State
of New York.
(ii) The Trustee has power and authority to execute, deliver
and perform the Trust Agreement and to consummate the transactions
contemplated thereby.
(iii) The Trust Agreement has been duly authorized, executed
and delivered by the Trustee and constitutes a legal, valid and
binding obligation of the Trustee, enforceable against the
Trustee, in accordance with its terms.
(iv) Neither the execution or delivery by the Trustee of the
Trust Agreement nor the consummation by the Trustee of any of the
transactions contemplated thereby nor compliance by the Trustee
with the terms or provisions of the Trust Agreement will violate
any New York or United States federal law, rule or regulation
governing the banking or trust powers of the Trustee or the
Trustee's certificate of incorporation or by-laws or require the
consent or approval of, the giving of notice to, the registration
with, or the taking of any other action with respect to, any
governmental authority or agency under the laws of the State of
New York or the United States governing the banking or trust
powers of the Trustee.
You shall also have received an opinion addressed to you,
the Seller and Case Credit of counsel to The Bank of New York (Delaware),
as Delaware Trustee, dated the Closing Date and satisfactory in form and
substance to you and your counsel, covering such matters as you and your
counsel may
reasonably request.
(k) You shall have received certificates dated the
Closing Date of any two of the Chairman of the Board, the President, the
Executive Vice President, any Vice President, the Treasurer, any Assistant
Treasurer, the principal financial officer or the principal accounting
officer of each of Case Credit, the Seller and the Servicer
<PAGE>
24
in which such officers shall state that, to the best of their knowledge
after reasonable investigation, (i) the representations and warranties of
each of Case Credit and the Seller contained in the Trust Agreement, the
Liquidity Receivables Purchase Agreement, the Purchase Agreement and the
Sale and Servicing Agreement, as applicable, are true and correct in all
material respects, that each of Case Credit and the Seller, has complied in
all material respects with all agreements and satisfied in all material
respects all conditions on its part to be performed or satisfied under such
agreements at or prior to the Closing Date, that no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated by
the Commission and (ii) since June 30, 1997, except as may be disclosed in
the Prospectus or, in the case of Case Corporation, as may be disclosed
publicly by Case Corporation prior to the Execution Time, no material
adverse change in or affecting particularly the business or properties of
the Trust, the Seller, the Servicer, Case Credit or Case Corporation has
occurred.
(l) You shall have received evidence satisfactory to you
that, on or before the Closing Date, UCC financing statements have been or
are being filed in the office of the Secretary of State of the States of
Wisconsin and Delaware reflecting the transfer of the interest of Case
Credit in the Receivables and the proceeds thereof to the Seller, and the
transfer of the interest of the Seller in the Receivables and the proceeds
thereof to the Trust and the grant of the security interest by the Trust in
the Receivables and the proceeds thereof to the Indenture Trustee.
(m) The Class C Notes shall have been rated A and A3 by
Standard & Poor's Ratings Services and Moody's
Investors Service, Inc., respectively.
(n) The issuance of the Underwritten Notes, the Class A
Notes, the Class B Notes and the Certificates shall not have resulted in a
reduction or withdrawal by any Rating Agency of the current rating of any
outstanding securities issued or originated by the Seller.
<PAGE>
25
(o) On the Closing Date, the Class A Notes shall have
been issued and sold pursuant to the Class A Note Underwriting Agreement,
the Class B Notes shall have been issued and sold pursuant to the Class B
Note Purchase Agreement and the Certificates shall have been issued to the
Seller.
The Seller will provide or cause to be provided to you
such conformed copies of such opinions, certificates, letters and documents
as you reasonably request.
8. Indemnification and Contribution. (a) The Seller and
Case Credit will, jointly and severally, indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged
omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue statement
of a material fact contained in the Term Sheets, any preliminary
Basic Prospectus, Preliminary Prospectus Supplement, Basic
Prospectus or the Prospectus or any amendment or supplement
thereto or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if
such settlement is effected with the written consent of the Seller
or Case Credit; and
<PAGE>
26
(iii) against any and all expense whatsoever (including,
subject to Section 8(c) hereof, the fees and disbursements of
counsel), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
(i) or (ii) above.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Seller, its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the
Seller within the meaning of Section 15 of the Act and Section 20 of the
Exchange Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with
written information furnished to the Seller by such Underwriter through you
expressly for use in the Registration Statement (or any amendment thereto)
or such preliminary Basic Prospectus, Preliminary Prospectus Supplement,
Basic Prospectus or the Prospectus or any amendment or supplement thereto.
(c) Each indemnified party shall give prompt notice to
each indemnifying party of any action commenced against it in respect of
which indemnity may be sought hereunder and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
and any others the indemnifying party may designate in such proceeding and
shall pay the fees and expenses of such counsel related to such proceeding,
but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability that it may have otherwise than on
account of this indemnity agreement. In any proceeding hereunder any
indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such
<PAGE>
27
indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the contrary, (ii) the indemnifying
party has failed within a reasonable time to retain counsel reasonably
satisfactory to the indemnified party or (iii) the named parties in any
such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all
indemnified parties, and that all such fees and expenses shall be
reimbursed as they are incurred. Any such separate firm for the
Underwriters and such control persons of Underwriters shall be designated
in writing by the Representative and any such separate firm for Case Credit
and the Seller, the directors of Case Credit and the Seller, the officers
of Case Credit and the Seller who sign the Registration Statement and such
control persons of Case Credit and the Seller or authorized representatives
shall be designated in writing by the Case Credit and the Seller. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or
if there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify any indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party
shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which
any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for
in this Section 8 is for any reason held to be unavailable other than in
accordance with its terms, the Seller, Case Credit and the Underwriters
shall contribute to the aggregate losses, liabilities, claims,
<PAGE>
28
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Seller and one or more of the Underwriters, in such
proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount and
commissions appearing on the cover page of the Prospectus bears to the
initial public offering price appearing thereon and the Seller and Case
Credit are responsible for the balance; provided, however, that no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section,
each person, if any, who controls an Underwriter within the meaning of
Section 15 of the Act shall have the same rights to contribution as such
Underwriter, and each director of the Seller, each officer of the Seller
who signed the Registration Statement, and each person, if any, who
controls the Seller within the meaning of Section 15 of the Act shall have
the same rights to contribution as the Seller. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the underwriting discount or commission
applicable to the Underwritten Notes purchased by it hereunder.
9. Defaults of Underwriters. If any Underwriter or
Underwriters default in their obligations to purchase Underwritten Notes
hereunder on the Closing Date and arrangements satisfactory to the
Representative and the Seller for the purchase of such Underwritten Notes
by other persons are not made within 24 hours after such default, this
Agreement will terminate without liability on the part of any nondefaulting
Underwriter or the Seller, except as provided in Section 11 and except
that, if the aggregate principal amount of Underwritten Notes which the
defaulting Underwriter or Underwriting agreed but failed to purchase shall
be 10% or less of the aggregate principal amount of all the Underwritten
Notes set forth in Schedule I hereto, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions
which the aggregate principal amount of Underwritten Notes set forth
opposite their names in Schedule I hereto bears to the aggregate principal
amount of Underwritten Notes set forth opposite the names of all the
remaining Underwriters) the
<PAGE>
29
Underwritten Notes which the defaulting Underwriter or Underwriters agreed
but failed to purchase. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section.
Nothing herein will relieve a defaulting Underwriter from liability for its
default.
10. No Bankruptcy Petition. Each Underwriter covenants
and agrees that, prior to the date which is one year and one day after the
payment in full of all securities issued by the Seller or by a trust for
which the Seller was the depositor which securities were rated by any
nationally recognized statistical rating organization, it will not
institute against, or join any other Person in instituting against, the
Seller any bankruptcy, reorganization, arrange ment, insolvency or
liquidation proceedings or other pro ceedings under any Federal or state
bankruptcy or similar law.
11. Survival of Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Seller and Case Credit or any of their officers and each
of the Underwriters set forth in or made pursuant to this Agreement and the
Term Sheet Letters or contained in certificates of officers of the Seller
submitted pursuant hereto shall remain operative and in full force and
effect, regardless of (i) any termination of this Agreement, (ii) any
investigation or statement as to the results thereof made by or on behalf
of any Underwriter or of the Seller or any of their respective
representatives, officers or directors or any controlling person, and (iii)
delivery of and payment for the Underwritten Notes. If for any reason the
purchase of the Underwritten Notes by the Underwriters is not consummated,
the Seller shall remain responsible for the expenses to be paid or
reimbursed by the Seller pursuant to Section 6 and the respective
obligations of the Seller and the Underwriters pursuant to Section 8 shall
remain in effect. If for any reason the purchase of the Underwritten Notes
by the Underwriters is not consummated (other than because of a failure to
satisfy the conditions set forth in items (ii), (iv) or (v) of Section
7(d)), the Seller will reimburse any Underwriter, upon demand, for all
reasonable out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by it in connection with the offering of
<PAGE>
30
the Underwritten Notes. Nothing contained in this Section 11 shall limit
the recourse of the Seller against the Underwriters.
12. Notices. All communications hereunder will be in
writing and, if sent to the Underwriters, will be mailed, delivered or
telegraphed and confirmed to the Representative at Eleven Madison Avenue,
New York, NY 10010- 3629, Attention: Investment Banking
Department-Transactions Advisory Group (Fax No. (212) 325-8278); if sent to
the Seller, will be mailed, delivered or telegraphed, and confirmed to it
at Case Receivables II Inc., 233 Lake Avenue, Racine, Wisconsin 53403,
Attention: Treasurer; provided, however, that any notice to an Underwriter
pursuant to Section 8 will be mailed, delivered or telegraphed and
confirmed to such Underwriter. Any such notice will take effect at the time
of receipt.
13. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective successors
and the officers and directors and controlling persons referred to in
Section 8, and no other person will have any right or obligations
hereunder. No purchaser of Underwritten Notes from any Underwriter shall be
deemed to be a successor of such Underwriter merely because of such
purchase.
14. Representation. You will act for the several
Underwriters in connection with the transactions contemplated by this
Agreement, and any action under this Agreement taken by you will be binding
upon all the Underwriters.
15. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same
Agreement.
<PAGE>
31
16. Applicable Law. This Agreement will be governed by,
and construed in accordance with, the laws of the State of New York.
If the foregoing is in accordance with your understanding
of our agreement, kindly sign and return to us the enclosed duplicate
hereof, whereupon it will become a binding agreement among the Seller, Case
Credit and the several Underwriters in accordance with its terms.
Very truly yours,
CASE RECEIVABLES II INC.,
by
/s/ Peter Hong
Name: Peter Hong
Title: Treasurer
CASE CREDIT CORPORATION,
by
/s/ Peter Hong
Name: Peter Hong
Title: Treasurer
The foregoing Note
Underwriting Agreement
is hereby confirmed and
accepted as of the date
first written above.
CREDIT SUISSE
FIRST BOSTON CORPORATION
on behalf of itself and as
Representative of the several
Underwriters,
by
/s/ Erik Falk
Name: Erik Falk
Title: Vice President
<PAGE>
31
SCHEDULE I
Principal Amount
Class C Note Underwriters of C Notes
- ------------------------- --------------
Credit Suisse First Boston
Corporation $17,360,000
J.P. Morgan Securities Inc. 17,359,000
Total................................................ $34,719,000
==========
<PAGE>
- -------------------------------------------------------------------------------
NOTE PURCHASE AGREEMENT
dated as of September 22, 1997
among
CASE EQUIPMENT LOAN TRUST 1997-B,
CASE CREDIT CORPORATION,
AS ADMINISTRATOR,
CASE RECEIVABLES II, INC.
THE PURCHASERS DESCRIBED HEREIN,
and
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH,
as Agent
- -------------------------------------------------------------------------------
18302061.3 100197 1653C 95202263
<PAGE>
TABLE OF CONTENTS
||
ARTICLE 1 DEFINITIONS
SECTION 1.1 Definitions .............................................1
ARTICLE 2 PURCHASE AND SALE OF CLASS B NOTES
SECTION 2.1 The Commitments..........................................1
SECTION 2.2 Funding Mechanics........................................2
SECTION 2.3 Pricing..................................................2
SECTION 2.4 Taxes ...................................................3
ARTICLE 3 REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Mutual Representations and Warranties....................7
SECTION 3.2 Issuer...................................................7
SECTION 3.3 Purchasers...............................................7
SECTION 3.4 Case Credit and CR II....................................8
ARTICLE 4 CONDITIONS
SECTION 4.1 Conditions to Initial Purchase...........................8
SECTION 4.2 Conditions to Each Purchase.............................10
ARTICLE 5 AGENT; REQUIRED PURCHASERS
SECTION 5.1 Appointment ............................................10
SECTION 5.2 Nature of Duties........................................11
SECTION 5.3 Lack of Reliance on Agent...............................11
SECTION 5.4 Certain Rights of Agent.................................11
SECTION 5.5 Reliance ............................................12
SECTION 5.6 Indemnification.........................................12
SECTION 5.7 Agent in its Individual Capacity........................12
SECTION 5.8 Resignation by Agent....................................13
SECTION 5.9 Required Purchasers. ...................................13
ARTICLE 6 MISCELLANEOUS PROVISIONS
SECTION 6.1 Successors and Assigns; Assignments.....................13
SECTION 6.2 Survival of Agreement...................................16
SECTION 6.3 Entire Agreement........................................16
SECTION 6.4 Notices ............................................16
SECTION 6.5 No Third-Party Beneficiaries............................16
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SECTION 6.6 Severability of Provisions..............................16
SECTION 6.7 Counterparts............................................17
SECTION 6.8 Governing Law...........................................17
SECTION 6.9 Tax Characterization....................................17
SECTION 6.10 No Proceedings.........................................17
SECTION 6.11 Expenses; Indemnification..............................17
||
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SCHEDULE
SCHEDULE I Initial Purchaser's Maximum Amount and Percentage
EXHIBITS
EXHIBIT A Form of Assignment Agreement
APPENDIX
APPENDIX X Index of Additional Defined Terms
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This NOTE PURCHASE AGREEMENT, dated as of September 22, 1997 (this
"Agreement"), is made among CASE EQUIPMENT LOAN TRUST 1997-B, a Delaware
business trust ("Issuer"), CASE CREDIT CORPORATION, a Delaware corporation
("Case Credit" or "Administrator"), CASE RECEIVABLES II INC., a Delaware
corporation ("CR II"), the purchasers named on the signatures pages of this
Agreement (together with their respective permitted assigns, the
"Purchasers"), and CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH ("CSFB"), as
agent for the Purchasers (in such capacity as agent, together with any
successors in that capacity, "Agent").
BACKGROUND
1. Issuer intends to issue Class B Asset Backed Notes (the "Class
B Notes") pursuant to an Indenture to be dated as of September 1, 1997 (the
"Indenture") between the Issuer and Harris Trust and Savings Bank, as
Indenture Trustee for the holders of the Indenture Notes. Principal of and
interest on the Class B Notes will be paid from funds allocated for that
purpose in accordance with a Sale and Servicing Agreement to be dated as of
September 1, 1997 (the "Sale and Servicing Agreement") among the Issuer,
Case Credit, as Servicer, and CR II.
2. Issuer has requested that each Purchaser purchase Class B
Notes. Subject to the terms and conditions of this Agreement, each
Purchaser is willing to agree to purchase Class B Notes with a principal
amount not to exceed, in the aggregate, the Maximum Amount set forth
opposite its name in Schedule I. Case Credit has joined in this Agreement
as Administrator for the Issuer and to confirm certain representations and
warranties for the benefit of the Purchasers and the Agent. CR II has
joined in this Agreement to confirm certain representations and warranties
for the benefit of the Purchasers and the Agent.
ARTICLE 1 DEFINITIONS
SECTION 1.1 Definitions. Capitalized terms used and not otherwise
defined herein have the meanings assigned to them in the Indenture or, if
not defined in the Indenture, in the Sale and Servicing Agreement. An index
of terms defined directly in this Agreement is attached as Appendix X. As
used herein, the term "including" means "including without limitation," and
other forms of the verb "to include" have correlative meanings.
ARTICLE 2 PURCHASE AND SALE OF CLASS B NOTES
SECTION 2.1 The Commitments. (a) Subject to the terms and
conditions of this Agreement (including Sections 2.1(c), 4.1 and 4.2), each
Purchaser agrees, severally and for itself alone, to purchase (each a
"Purchase") Class B Notes on
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September 22, 1997 (the "Closing Date") having an initial principal amount
not exceeding its Maximum Amount. The failure of any Purchaser to make any
Purchase shall not relieve any other Purchaser of its obligation to make
Purchases. No Purchaser shall, however, be responsible for the failure of
any other Purchaser to make any Purchase.
(b) For purposes of this Agreement, "Percentage" means, with
respect to each Purchaser, the percentage equivalent (carried out to twelve
decimal places) of a fraction the numerator of which is such Purchaser's
Maximum Amount and the denominator of which is the sum of the Maximum
Amounts of all of the Purchasers. The initial Percentages of the initial
Purchasers, and their respective Maximum Amounts, are set out opposite
their names in Schedule I.
(c) For purposes of this Agreement, CSFB is hereby designated, and
agrees to act, as Support Bank for Alpine Securitization Corp. ("Conduit").
For purposes of this Agreement, "Structured Lender" means Conduit and any
other Purchaser whose principal business consists of issuing commercial
paper, medium term notes or other securities to fund its acquisition and
maintenance of receivables, accounts, instruments, chattel paper, general
intangibles and other similar assets or interests therein and that is
required by any nationally recognized statistical rating agency that is
rating such securities to obtain from its principal debtors an agreement
such as that set forth in Section 6.10 in order to maintain such rating;
and "Support Bank" means any bank or other financial institution extending
or having a commitment to extend funds to or for the account of any
Structured Lender (including by agreement to purchase an assignment of, or
participation in, the Class B Note(s) held by such Person) under a
liquidity or credit support agreement that relates to the Class B Note(s)
purchased by such Structured Lender.
SECTION 2.2 Funding Mechanics. On the Closing Date, subject to the
conditions in Section 2.1 and Article 4, each Purchaser shall Purchase a
Class B Note on the proposed date thereof by wire transfer in Dollars of
immediately available funds to the Agent at the office designated from time
to time by the Agent, not later than 10:00 a.m., New York City time, and
the Agent shall (unless notified in writing that any condition precedent
has not been satisfied), by noon, New York City time, on the same day, make
available to Issuer by wire transfer of Dollars in immediately available
funds the aggregate amount of the funds received.
SECTION 2.3 Pricing. The interest rate applicable to the Class B
Notes for each Interest Period shall equal LIBOR, as determined on the
related LIBOR Determination Date, plus the Class B Margin specified in the
letter of even date with this Agreement from the Agent to the
Administrator; provided that in no event shall such rate exceed the
applicable Net Funds Cap.
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SECTION 2.4 Taxes. (a) The Issuer covenants and agrees that for
United States federal, state and local income and franchise tax purposes it
will report Investment Earnings on the Spread Account as its income and pay
any tax thereon.
(b) All payments on the Class B Notes are payable free and clear
of any and all present and future taxes, levies, imposts, duties,
deductions, withholding, fees, liabilities and similar charges ("Taxes");
provided that the term "Taxes" as used in this Section 2.4 shall not
include any income or franchise tax based on the net income of any
Purchaser or any other tax upon or measured by income or gross receipts of
any Purchaser imposed by the United States of America or by any state,
locality or foreign jurisdiction in which such Purchaser maintains a
permanent establishment. If any Taxes are required to be withheld or
deducted from any amount payable to any Purchaser with respect to the Class
B Notes, subject to compliance by such Purchaser with subsection 2.4(c)
below, the Issuer agrees that the amount payable to such Purchaser
hereunder will be increased (which increase shall be paid only from the
Total Distribution Amount to the extent funds are available therefor under
Section 5.5(b)(iii)(3) of the Sale and Servicing Agreement) to the amount
which, after deduction from such amount of all Taxes required to be
withheld or deducted therefrom, will yield to such Purchaser the amount
stated to be payable to such Purchaser under the Class B Notes. Such
Purchaser (through the Agent) shall, as a condition of the payment of any
additional amounts under this subsection 2.4(b), provide the Issuer and the
Administrator (with a copy to the Agent) with evidence satisfactory to each
of them of the imposition of such Taxes, together with the calculation of
the additional amounts payable hereunder. The Administrator shall, on
behalf of the Issuer and to the extent it has withheld or made payments of
any Taxes, upon the request of the Agent on behalf of any Purchaser,
provide the Agent on behalf of any Purchaser with evidence satisfactory to
it of the payment of any Taxes with respect to amounts payable under the
Class B Notes. If any of the Taxes required to be borne by the Issuer
pursuant to this Section 2.4 are paid by any Purchaser, the Issuer will
reimburse such Purchaser on a grossed-up basis for such payments, together
with any interest, penalties and expenses in connection therewith, to the
extent amounts are available therefor pursuant to Section 5.5(b)(iii)(3) of
the Sale and Servicing Agreement.
(c) Each Purchaser organized under the laws of any jurisdiction
other than the United States or any State or political subdivision thereof
agrees that, prior to the date on which the first interest payment under
the Class B Notes is due thereto, it will deliver to the Agent, the Issuer
and the Administrator (i) two duly completed copies of the United States
Internal Revenue Service Form 4224 or successor applicable form and (ii) an
Internal Revenue Service Form W-8 or successor applicable form. Each
Purchaser also agrees to deliver to the Agent, the Issuer and the
Administrator two further copies of the said Form 4224 and
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Form W-8, or successor applicable forms or other manner of certification,
as the case may be, on or before the date that any such form expires or
becomes obsolete or after the occurrence of any event requiring a change in
the most recent form previously delivered by it and such extensions or
renewals thereof as may reasonably be requested by the Administrator,
unless in any such case an event (including any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which
would prevent such Purchaser from duly completing and delivering any such
form with respect to it and such Purchaser so advises the Issuer, the
Administrator and the Agent.
(d) Notwithstanding anything to the contrary in this Section 2.4,
each Purchaser which is not created or organized under the laws of the
United States or any State or political subdivision thereof (including the
District of Columbia) agrees that, upon written notice by the Administrator
to such Purchaser that the U.S. Internal Revenue Service ("IRS") has
determined that amounts payable under this Agreement to such Purchaser are
subject to withholding tax under Section 1446 of the Code (a "Withholding
Tax" and such determination being a "Withholding Event"):
(i) Such Purchaser shall, for tax years for which the
Purchaser has already filed, or was legally required to file, U.S.
federal income tax returns (each a "Prior Tax Year") prior to
proper notice of such Withholding Event, (A) provide to the
Administrator a signed officer's certificate of such Purchaser
stating that amounts paid under the Class B Notes have been
included in such Purchaser's U.S. federal income tax returns for
each such Prior Tax Year, and (B) upon the written request of the
Administrator, which request will provide assurances of
confidentiality of information reasonably satisfactory to such
Purchaser and for payment of all reasonable costs incurred by such
Purchaser in fulfilling such request, provide all information in
such Purchaser's possession or control to the Administrator or, at
such Purchaser's option, the IRS directly required by the IRS in
support of the application of Section 1463 of the Code for each
such Prior Tax Year to such Withholding Tax.
(ii) If Section 1463 of the Code is not applicable for
any Prior Tax Year of such Purchaser because the Purchaser did not
include amounts payable hereunder in its U.S. federal income tax
return for such Prior Tax Year and properly pay any federal income
tax due on such amounts or failed to file a U.S. federal income
return with respect to such Prior Tax Year, the Purchaser shall
(at the Purchaser's option) either (x) amend or file, as the case
may be, its U.S. federal income tax return for such Prior Tax Year
to properly include amounts paid hereunder during such Prior Tax
Year, pay any federal income tax due on such amounts (and interest
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and penalties thereon if required) and comply with the provisions
of clause (i) of this subsection 2.4(d) with respect to such Prior
Tax Year or (y) pay to the Issuer the amount of any Withholding
Tax paid or payable by the Issuer to the IRS (which payment by
such Purchaser, if the applicable Withholding Tax has not
theretofore been remitted to the IRS, shall be paid over by the
Issuer, as applicable, to the IRS for application to such
Withholding Tax) on payments hereunder during such Prior Tax Year
which were not included on such Purchaser's U.S. federal income
tax return or with respect to which the Purchaser did not so
properly pay federal income tax.
(iii) No increased amount shall be payable to any
Purchaser under the second sentence of subsection 2.4(b) with
respect to any Withholding Tax unless, due to a change in law,
treaty or regulation (or in the interpretation or administration
thereof by any governmental or regulatory agency or body charged
with the administration or interpretation thereof), the credit for
U.S. federal income tax purposes available to such Purchaser under
the Code (as in effect on the Closing Date) resulting from such
Withholding Tax is discontinued or substantially reduced.
In connection with remitting to the IRS any required amount of Withholding
Tax on account of a Purchaser for any tax year subsequent to the last Prior
Tax Year, the amount thereof may be charged first against the amount
otherwise payable to such Purchaser on account of interest on the Class B
Certificates, Class B Net Funds Cap Carryover or Class B Additional Amounts
(a "Class B Income Amount") for the Payment Date immediately preceding such
remittance and then against each successive Class B Income Amount for
subsequent Payment Dates to the extent required to aggregate such
Withholding Tax amount, and the Issuer shall pay such additional interest
as may accrue to the Purchaser at a rate equal to the Floating Rate on each
such charge from the Transfer Date of the related Class B Income Amount
through the first of the immediately succeeding April 15, June 15,
September 15 or December 15 (each such date, a "Tax Payment Due Date")
falling on or after the day which is 15 days after the Administrator's
signed notification to the Purchaser certifying the fact, date and amount
of the remittance (such first succeeding date, the "Credit Date"). The
Issuer shall pay additional interest to the Purchaser on each such charge
at a like rate from the Credit Date through the Tax Payment Date on which
such Purchaser may (without regard to the Purchaser's other payments with
respect to that Tax Payment Due Date) take such credit into account in
satisfying a minimum required installment of estimated tax described in
Section 6655 of the Code, provided that (i) such additional interest shall
in no event accrue beyond September 15 of the year in which the Purchaser's
related income tax return is required to be filed, and (ii) such additional
interest shall be payable only to the extent that the Purchaser certifies
to the Administrator, in a signed officer's
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certificate that it was not legally entitled to take such credit into
account in reducing a required installment for a prior Tax Payment Due
Date. All interest payable pursuant to this subsection 2.4(d) shall be
payable solely to the extent that funds are available therefore pursuant to
Section 5.5(b)(iii)(3) of the Sale and Servicing Agreement.
(e) Each Purchaser, agrees that it shall use reasonable efforts to
take any actions, including designating a different booking office, that
will avoid any Withholding Tax or the need for, or reduce that amount of,
any amounts payable to it for Taxes referred to in subsection 2.4(b);
provided that no such Purchaser shall be obligated to take any actions that
would, in the reasonable opinion of such Purchaser, be unlawful or
otherwise disadvantageous to such Purchaser or would result in any
unreimbursed cost or expense to such Purchaser, which cost and expense
would not have been incurred but for such actions. If any amounts payable
to a Purchaser for Taxes referred to in subsection 2.4(b) shall not be
eliminated or reduced by the designation of a different booking office or
other actions taken by the affected Purchaser and payment thereof hereunder
shall not be waived by such Purchaser within 15 days after the
Administrator shall have given written notice to such Purchaser and the
Agent of its intent to replace such Purchaser, the Administrator shall have
the right to (A) request in writing that the Agent, at the expense of the
Administrator, use reasonable efforts, and the Agent hereby agrees upon
receipt of such request to use its reasonable efforts, to obtain a
replacement investor for such Purchaser is reasonably acceptable to the
Administrator or (B) itself seek to replace the Purchaser hereunder with a
new investor is reasonably acceptable to the Agent; provided that (i) such
Purchaser shall not be replaced hereunder with a new investor until such
Purchaser has been repaid in full all amounts owed to it pursuant to this
Agreement and (ii) if the Purchaser to be replaced or its Support Bank is
the Agent, a replacement Agent shall have been appointed in accordance with
Section 5.8 and the Agent to be replaced shall have been paid all amounts
owing to it as Agent pursuant to this Agreement; provided further that the
Administrator shall provide the Purchaser to be replaced with an officer's
certificate stating that such new investor has advised the Administrator
that it is not then subject to, or has agreed not to seek, such amounts for
Taxes. Subject to the provisions of this subsection 2.4(e), each affected
Purchaser hereby agrees to assign all of its rights and obligations to such
replacement Purchaser pursuant to an Assignment Agreement in the form of
Exhibit B, subject to payment in full of all amounts due to it hereunder
(including amounts due it under this Section 2.4).
ARTICLE 3 REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Mutual Representations and Warranties. As of the
Initial Closing Date, each party to this Agreement represents and warrants
to the other parties that:
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(a) it has full power and authority, and has taken all
action necessary, to execute and deliver this Agreement, to
fulfill its obligations hereunder and to consummate the
transactions contemplated hereby;
(b) its making and performance of this Agreement and all
documents required to be executed and delivered hereunder do not
and will not violate any law or regulation of the jurisdiction of
its incorporation or any other applicable law or regulation;
(c) this Agreement has been duly executed and delivered
by it and constitutes its legal, valid and binding obligation,
enforceable against such party in accordance with its terms; and
(d) all approvals, authorizations or other actions by, or
filing with, any governmental authority necessary for the validity
or enforceability of its obligations under this Agreement have
been obtained.
SECTION 3.2 Issuer. As of the Initial Closing Date, Issuer further
represents and warrants to the Agent and the Purchasers that:
(a) assuming the accuracy of each Purchaser's
representations set out in Section 3.3, the offer and sale of the
Class B Notes in the manner contemplated by this Agreement is a
transaction exempt from the registration requirements of the
Securities Act, and this Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended; and
(b) the Prospectus Supplement dated September 11, 1997
(and accompanying Prospectus dated September 11, 1997) relating to
the Indenture Notes and the Certificates does not contain any
untrue statement of a material fact or omit to state a material
fact necessary to make the statements contained therein not
misleading in light of the circumstances under which they were
made (including the circumstance that only the Indenture Notes and
the Certificates are offered thereby, and the Class B Notes are
not).
SECTION 3.3 Purchasers. As of each date on which it acquires Class
B Note(s), each Purchaser further represents and warrants (and each
Assignee shall be deemed to represent and warrant as of the date that its
assignment becomes effective) that:
(a) it is a "qualified institutional buyer" as that term
is defined under Rule 144A of the Securities Act and it is not
purchasing its Class
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B Note with a view to making a distribution thereof (within the
meaning of the Securities Act); and
(b) neither it nor any Person acting on its behalf has
made a general solicitation or general advertising, within the
meaning of the Securities Act and the rules and regulations
thereunder, for the offer or sale of the Class B Notes. Each
Purchaser further agrees that it will not make any general
solicitation or general advertising for the offer or sale of the
Class B Notes and will not transfer its Class B Note (or any
portion thereof) to any Person unless such Person shall have
provided the Administrator and Issuer with a certificate to the
effect of clause (a) above with respect to that Person.
SECTION 3.4 Case Credit and CR II. As of the Initial Closing Date,
each of Case Credit and CR II Agreement represents and warrants (severally
and as to itself alone) to the Agent and the Purchasers that each of its
representations and warranties set forth in each Basic Document is true and
correct on the Initial Closing Date. To the extent that the Basic Documents
restrict remedies with respect to the breach of any of such representations
and warranties, the remedies of the Agent and the Purchasers are restricted
in the same manner. Each Purchaser acknowledges and agrees that the
representation and warranties made by the Issuer hereunder and in any Basic
Documents shall not be deemed to be representations and warranties made by
The Bank of New York on behalf of the Issuer or in its individual capacity.
ARTICLE 4 CONDITIONS
SECTION 4.1 Conditions to Initial Purchase. The obligation of the
initial Purchaser to Purchase its initial Class B Note on the Initial
Closing Date shall be subject to the satisfaction of the conditions
precedent that (x) the Agent shall have received, for the account of such
Purchaser, a duly executed and authenticated Class B Note registered in its
name and in an initial principal amount equal to its Percentage of
$97,960,250.83, (y) the Agent and its affiliates shall have received
certain fees and expenses (as described in the fee letter dated as of
September 22, 1997 from the Agent to the Administrator and CR II) and (z)
the Agent shall have received an original (except as indicated below)
counterpart of the following:
(a) the Indenture, the Sale and Servicing Agreement, the
Purchase Agreement, the Trust Agreement and the Administration
Agreement (together with this Agreement and the Class B Notes, the
"Basic Documents"), each of which shall be in full force and
effect, and all actions required to be taken under those documents
in connection with the issuance of the Class B Notes shall have
been taken;
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(b) a certificate of the Secretary, or an Assistant
Secretary, of each of Case Credit and CR II with respect to:
(i) attached copies of resolutions of its Board
of Directors then in full force and effect authorizing
the execution, delivery and performance of the Basic
Documents,
(ii) the incumbency and signatures of those of
its officers authorized to act with respect to the Basic
Documents and
(iii) attached copies of its certificate of
incorporation and by-laws;
(c) the following opinions addressed to the Agent and the
Purchasers, and in each case as to the matters and in such form
and substance as shall be satisfactory to the Agent and the
Purchasers:
(i) opinions of Mayer, Brown & Platt as to
certain corporate and securities matters, true sale and
non-consolidation;
(ii) an opinion of Dawn Beck, senior counsel to
Case Corporation, as to certain corporate matters;
(iii) an opinion of Foley & Lardner as to certain
UCC matters; and
(iv) an opinion of Richards, Layton & Finger as
to certain Delaware business trust and UCC matters;
(d) an executed copy of ISDA Swap Agreement, dated the
Closing Date, between the initial Purchaser and Case Credit,
including the Schedule thereto and the initial Confirmation
thereunder, in form and substance satisfactory to the initial
Purchaser and the Agent;
(e) photocopies of each UCC financing statement being
filed pursuant to the Basic Documents in connection with the
transactions occurring on the Initial Closing Date and of the
results of UCC record searches conducted in connection with those
transactions; and
(f) any other information, certificates, opinions and
documents as the Agent may have reasonably requested.
SECTION 4.2 Conditions to Each Purchase. The obligation of each
Purchaser to make any Purchase on the Initial Closing Date and each
Additional
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Closing Date shall be subject to the further conditions precedent that on
the date of the Purchase, before and after giving effect thereto and to the
application of any proceeds therefrom, the following statements shall be
true:
(a) the representations and warranties of Issuer, Case
Credit and CR II set out in this Agreement are true and accurate
in all material respects as of that date with the same effect as
though made on that date (unless specifically stated to relate to
an earlier date);
(b) all of the conditions precedent under the Basic
Documents to any purchase of Subsequent Receivables occurring on
such date have been (or will, concurrently with the issuance of
the applicable Additional Class B Notes, be) satisfied (and Agent
shall have received copies of all UCC filings made in connection
with such purchase);
(c) in the case of any Additional Closing Date, the
Issuer and the applicable Purchaser shall have agreed upon the
interest rate applicable to the Additional Class B Notes to be
issued on that date; and
(d) no Event of Default, Default or Servicer Default has
occurred and is continuing.
ARTICLE 5 AGENT; REQUIRED PURCHASERS
SECTION 5.1 Appointment. The Purchasers hereby designate CSFB as
Agent. Each Purchaser hereby irrevocably authorizes the Agent to take
action on its behalf under the provisions of the Basic Documents and any
other instruments and agreements referred to therein or contemplated
thereby and to exercise the powers and perform the duties hereunder and
thereunder that are specifically delegated to or required of the Agent by
the terms hereof and thereof, and any other powers as are reasonably
incidental thereto. The Agent may perform any of its duties by or through
its officers, directors, agents or employees.
SECTION 5.2 Nature of Duties. The Agent shall not have any duties
or responsibilities except those expressly set forth in this Agreement.
Neither the Agent nor any of its officers, directors, agents or employees
shall be liable for any action taken or omitted by it or them under any
Basic Document or in connection herewith or therewith, unless caused by
their gross negligence or willful misconduct. The duties of the Agent shall
be mechanical and administrative in nature, the Agent shall not have by
reason of this Agreement a fiduciary relationship in respect of any
Purchaser, and nothing in any Basic Document, expressed or implied, is
intended to or shall be construed as to impose upon the Agent any
obligations in respect of any Basic Document except as expressly set forth
herein.
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SECTION 5.3 Lack of Reliance on Agent. Independently and without
reliance upon the Agent, each Purchaser, to the extent it deems
appropriate, has made and shall continue to make (a) its own independent
investigation of the financial condition and affairs of Issuer, CR II and
Case Credit in connection with the making of each Purchase and the taking
or not taking of any action in connection herewith and (b) its own
appraisal of the creditworthiness of Issuer, CR II and Case Credit and the
merits and risks of an investment in the Class B Notes, and, except as
expressly provided in this Agreement, the Agent shall not have any duty or
responsibility, either initially or on a continuing basis, to provide any
Purchaser with any credit or other information with respect thereto,
whether coming into its possession before the making of a Purchase or at
any time or times thereafter. The Agent shall not be responsible to any
Purchaser for any recitals, statements, information, representations or
warranties herein or in any document, certificate or other writing
delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectibility, priority
or sufficiency of the Basic Documents or the financial condition of Issuer,
CR II or Case Credit or be required to make any inquiry concerning either
the performance or observance of any of the terms, provisions or conditions
of any Basic Document, or the financial condition of Issuer, CR II or Case
Credit or the existence or possible existence of any Default or Servicer
Default.
SECTION 5.4 Certain Rights of Agent. If the Agent shall request
instructions from the Required Purchasers with respect to any act or action
(including failure to act) in connection with any Basic Document, the Agent
shall be entitled to refrain from acting or taking the action unless and
until the Agent shall have received instructions from the Required
Purchasers, and the Agent shall not incur liability to any Person by reason
of so refraining. Without limiting the foregoing, no Purchaser shall have
any right of action whatsoever against the Agent as a result of the Agent
acting or refraining from acting under any Basic Document in accordance
with the instructions of the Required Purchasers or for refraining to act
in the absence of instruction.
SECTION 5.5 Reliance. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any note, writing, resolution,
notice, statement, certificate, telex, teletype or telecopier message,
cablegram, radiogram, order or other document or telephone message signed,
sent or made by any Person that the Agent believed to be the proper Person.
The Agent may consult with legal counsel (including counsel for any Related
Person), independent public accountants and other experts selected by the
Agent and shall not be liable for any action taken or omitted to be taken
in accordance with the advice of such counsel, accountants or experts.
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SECTION 5.6 Indemnification. The Purchasers will reimburse and
indemnify the Agent ratably in accordance with their respective Percentages
from and against any and all liabilities, obligations, losses, damages,
penalties, claims, actions, judgments, suits, costs, expenses or
disbursements of whatsoever kind or nature that may be imposed on, asserted
against or incurred or suffered by the Agent (including fees and expenses
of legal counsel, accountants and experts) in performing its duties or as a
result of any action taken or omitted to be taken by the Agent under any
Basic Document or in any way relating to or arising out of any Basic
Document; provided, that no Purchaser shall be liable for any portion of
these liabilities, obligations, losses, damages, penalties, claims,
actions, judgments, suits, costs, expenses or disbursements resulting from
the Agent's gross negligence or willful misconduct (as determined by a
court of competent jurisdiction in a final and non-appealable order).
Notwithstanding the foregoing, no Structured Lender shall be obligated to
reimburse or indemnify the Agent pursuant to this Section 5.6; provided
that one or more support Banks (severally and in such portions as is
reasonably acceptable to such Structured Lender and the Agent) shall have
agreed in a manner reasonably acceptable to such Structured Lender and the
Agent to provide such reimbursement and indemnification to the aggregate
extent of such Structured Lender's Percentage thereof.
SECTION 5.7 Agent in its Individual Capacity. With respect to its
obligation to purchase Class B Notes under this Agreement, the Agent shall
have the rights and powers specified herein for a Purchaser and may
exercise the same rights and powers as though it were not performing the
duties of the "Agent" specified herein, and the term "Purchasers,"
"Required Purchasers" and "holders" or "payees" of any Class B Notes or any
similar terms shall, unless the context clearly otherwise indicates,
include the Agent in its individual capacity. The Agent and its Affiliates
may accept deposits from, lend money to and generally engage in any kind of
banking, trust or other business with Issuer or Administrator or any of
their Affiliates as if the Agent were not performing the duties specified
herein, and may accept fees and other consideration from Issuer or
Administrator for services in connection with this Agreement and otherwise
without having to account for the same to the Purchasers.
SECTION 5.8 Resignation by Agent. (a) The Agent may resign at any
time by giving notice to Issuer and the Purchasers. Such resignation shall
take effect upon the appointment of a successor Agent pursuant to
subsections (b) and (c) below or as otherwise provided below.
(b) Upon any notice of resignation of the Agent, the Required
Purchasers shall appoint a successor Agent hereunder who shall be a
commercial bank or trust company reasonably acceptable to Issuer (it being
understood and agreed that any Purchaser is deemed to be acceptable to
Issuer).
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(c) If a successor Agent is not appointed pursuant to subsection
(b) within 30 days after the delivery of the notice referred to in
subsection (a), the resigning Agent, with the consent of Issuer, which
shall not be unreasonably withheld, shall then appoint a successor Agent
who shall serve as Agent hereunder until the time, if any, that the
Required Purchasers appoint a successor Agent as provided above.
(d) If no successor Agent has been appointed pursuant to
subsection (b) or (c) above by the 60th day after the date notice of
resignation was given by the resigning Agent, such Agent's resignation
shall become effective and the Purchasers shall thereafter perform all the
duties of the Agent under the Basic Documents until the time, if any, that
the Purchasers appoint a successor Agent as provided above.
SECTION 5.9 Required Purchasers. "Required Purchasers" means
Purchasers holding Class B Notes the aggregate outstanding principal amount
of which is more than 50% of the total outstanding principal amount of the
Class B Notes.
ARTICLE 6 MISCELLANEOUS PROVISIONS
SECTION 6.1 Successors and Assigns; Assignments. (a) This
Agreement shall be binding upon, and inure to the benefit of, Issuer, Case
Credit, the Agent, the Purchasers and their respective successors and
assigns; provided that none of Issuer, Case Credit or CR II may assign its
rights or obligations hereunder or in connection herewith or any interest
herein (voluntarily, by operation of law or otherwise) without the prior
written consent of all the Purchasers, except that Administrator may be
terminated in accordance with the Basic Documents; and provided further,
that no Purchaser or Participant may transfer, pledge, assign, sell
participations in or otherwise encumber its rights or obligations hereunder
or any interest herein except as permitted under this section.
(b) Each Purchaser may at any time sell to one or more banks or
other entities ("Participants") participating interests in all or any
portion of its Class B Note and its obligations hereunder (its "Credit
Exposure"); provided that such Participant shall have certified to the
selling Purchaser that such Participant is a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act). In the event of
any sale by a Purchaser of participating interests to a Participant, the
Purchaser shall notify Issuer of the identity of the Participant upon a
request by Issuer, the Purchaser's obligations under this Agreement shall
remain unchanged, the Purchaser shall remain solely responsible for the
performance thereof, and the Purchaser shall remain the holder of its
rights under its Class B Note and this Agreement for all purposes under
this Agreement, and the other parties to the Basic Documents shall continue
to deal solely and directly with the Purchaser in connection with such
rights and obligations under this Agreement.
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The Purchasers agree that any agreement between them and any
Participant in respect of a participating interest shall (x) contain a
covenant of the Participant not to make any general solicitation or general
advertising for the offer or sale of its interest in the Class B Notes, (y)
require the Participant to comply with the terms of Section 6.10 and (z)
not restrict the Purchasers' right to agree to any amendment, supplement or
modification of the Basic Documents except to (i) extend the final maturity
of any obligation, (ii) reduce the rate or extend the time of payment of
interest thereon under the Basic Documents, (iii) reduce the principal
amount of any obligation, (iv) release or direct the release of all or
substantially all of the Collateral or the Trust Estate, (v) increase the
amount of the participation from the amount thereof then in effect, or (vi)
permit assignment or transfer by Issuer, CR II or Case Credit of its rights
or obligations under the Basic Documents.
(c) Any Purchaser may at any time assign to any Permitted
Transferee or to one or more banks or other financial institutions (each,
an "Assignee") all or any part of its Credit Exposure; provided that (i)
unless assigned to an Affiliate of the Purchaser or to a Permitted
Transferee, it assigns all of its Credit Exposure or a portion of its
Credit Exposure in an amount not less than $5,000,000, (ii) such Assignee,
other than an existing Purchaser, an Affiliate of the Purchaser or a
Permitted Transferee, must be acceptable to the Agent, in its discretion,
and must be acceptable to the Administrator (such acceptance not to be
unreasonably withheld or delayed), and (iii) such Assignee shall have
certified to the assigning Purchaser that such Assignee is a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act).
For purposes of this Section 6.1, a "Permitted Transferee" means, with
respect to any Structured Lender, any of its Support Banks.
In the event of any assignment, the Purchaser shall give notice to
Issuer and the Agent and shall deliver to the Agent, for acceptance and
recording in its records, an assignment agreement substantially in the form
of Exhibit A together with a processing and recordation fee of, in the case
of assignments to a Purchaser or an Affiliate of a Purchaser, $1,500 and,
in cases of any other assignment, $3,500; provided, that no processing and
recordation fee shall be payable in connection with any assignment by a
Structured Lender to a Permitted Transferee. Within five Business Days of
receipt thereof, the Agent shall, if the assignment agreement has been
fully executed by the Assignee and the assignor Purchaser, is completed and
is in substantially the form of Exhibit A, execute the assignment agreement
and record the information contained therein in its records. Upon the
earlier of the expiration of the five Business Day period or the date of
the recording, the assignment will become effective; provided, that any
assignment by a Structured Lender to a Permitted Transferee shall not
require acceptance or recording by the Agent prior to effectiveness and
shall become effective immediately upon receipt by the Agent of an
assignment agreement
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appropriately completed in substantially the form of Exhibit A and executed
by such Structured Lender and the applicable Permitted Transferee.
Issuer, Administrator, Case Credit, the Agent and the Purchasers
agree to extend the rights and benefits under this Agreement to the
Assignee to the extent the Assignee would have had if it were a Purchaser
that was an original signatory to this Agreement; provided, that the
parties hereto shall be entitled to continue to deal solely and directly
with the assignor Purchaser in connection with the interests so assigned to
the Assignee until the assignment agreement and any required fee, as
described above, shall have been delivered to the Agent by the Purchaser
and the Assignee and the assignment shall have become effective. Upon the
effective assignment of its Credit Exposure, the Purchaser shall be
relieved of its obligations hereunder to the extent of the assignment. The
Issuer shall issue one or more substitute Class B Notes in exchange for the
Class B Notes that are the subject of any assignment, reflecting the
assignment.
(d) The sale or assignment of any Credit Exposure to any Assignee
or Participant (each, a "Transferee") shall not be effective until it has
agreed to be bound by the provisions of Section 6.10. Issuer authorizes the
Purchasers to disclose to any Transferee and any prospective Transferee any
and all information in their possession concerning Issuer in connection
with the Transferee's credit evaluation of the Class B Notes prior to
entering into this Agreement.
(e) Notwithstanding any other provision set forth in this
Agreement, the Purchasers may at any time create a security interest in all
or any portion of their rights under this Agreement and the Class B Notes
in favor of any Federal Reserve Bank in accordance with Regulation A of the
Board of Governors of the Federal Reserve System.
(f) In connection with any proposal that a bank or other financial
institution become a Support Bank for a Purchaser which is a Structured
Lender, such Purchaser at its sole discretion, shall be entitled to
distribute to any proposed Support Bank on a confidential basis any
information furnished to such Purchaser by the Agent pursuant to the Basic
Documents. Each Purchaser which is a Structured Lender shall promptly
notify the Agent (who shall promptly notify Issuer) in writing of the
identity and interest of each Support Bank for such Purchaser promptly upon
the obtaining of such Support Bank.
SECTION 6.2 Survival of Agreement. All covenants, agreements,
representations and warranties made herein and in the Class B Notes
delivered pursuant hereto shall survive the making and the repayment of the
Purchases and the execution and delivery of this Agreement and the Class B
Notes and shall continue in full force and effect until all obligations
have been paid in full and all commitments of the Purchasers hereunder have
been terminated. In addition, the
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obligations of the Purchasers under Section 5.6 and CR II under Section
6.11 and each applicable party's obligations under Section 6.10 shall
survive the termination of this Agreement.
SECTION 6.3 Entire Agreement. This Agreement, together with the
other Basic Documents and the fee letter referred to in Section 4.1,
contains a final and complete integration of all prior expressions by the
parties hereto with respect to the subject matter hereof and shall
constitute the entire agreement among the parties hereto with respect to
the subject matter hereof, superseding all previous oral statements and
other writings with respect thereto.
SECTION 6.4 Notices. All communications hereunder shall be in
writing and shall be deemed to have been duly given if personally
delivered, sent by overnight courier or mailed by registered mail, postage
prepaid and return receipt requested, or transmitted by facsimile
transmission and confirmed by a similar mailed writing to any party at the
address for that party set forth (a) on the signature page to this
Agreement or (b) to another address as that party may designate in writing
to the Agent and Issuer.
SECTION 6.5 No Third-Party Beneficiaries. Nothing expressed herein
is intended or shall be construed to give any Person other than the parties
hereto any legal or equitable right, remedy or claim under or in respect of
this Agreement.
SECTION 6.6 Severability of Provisions. Any covenant, provision,
agreement or term of this Agreement that is prohibited or is held to be
void or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of the prohibition or unenforceability without
invalidating the remaining provisions of this Agreement.
SECTION 6.7 Counterparts. This Agreement may be executed in any
number of counterparts (which may include facsimile) and by the different
parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original, and all of which together shall
constitute one and the same instrument.
SECTION 6.8 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES.
SECTION 6.9 Tax Characterization. It is the intent of the Issuer,
CR II, Case Credit and the Class B Noteholders that, for purposes of
Federal and State income tax and any other tax measured in whole or in part
by income, the Class B Notes will qualify as indebtedness of the Issuer.
Each Purchaser, by acceptance
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of a Class B Note, agrees to treat, and to take no action inconsistent with
the treatment of, the Class B Notes for such tax purposes as indebtedness
of the Trust, except as otherwise required by law.
SECTION 6.10 No Proceedings. (a) The Agent and each Purchaser
agree that they will not at any time institute against CR II or the Issuer,
or join in any institution against CR II 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 Class B
Notes or any of the Basic Documents. The foregoing shall not limit the
rights of any Person to file any claim in or otherwise take any action with
respect to any insolvency proceeding that was instituted against CR II or
the Issuer by any Person other than such Person.
(b) Each of the Issuer, Case Credit, CR II, the Agent (solely in
its capacity as such), and each Purchaser (solely in its capacity as such)
hereby agrees that it will not institute against any Structured Lender, or
join any other Person in instituting against any Structured Lender, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law, for one year plus one day after the latest
maturing commercial paper note, medium term note or other debt security
issued by such Structured Lender is paid. The foregoing shall not limit the
rights of any Person to file any claim in or otherwise take any action with
respect to any insolvency proceeding that was instituted against any
Structured Lender by any Person other than such Person.
SECTION 6.11 Expenses; Indemnification. Case Credit shall pay on
demand (i) all reasonable out-of-pocket fees and expenses (including
reasonable attorneys' fees and expenses and rating agency fees) of the
Agent and Conduit incurred in connection with the preparation, execution,
delivery, administration, amendment, modification and waiver of the Basic
Documents and the making and repayment of the Purchases, and (ii) all
reasonable out-of-pocket fees and expenses of the Purchasers and the Agent
(including reasonable attorneys' fees and expenses of their counsel)
incurred in connection with the enforcement of the Basic Documents against
Issuer, Case Credit and CR II and in connection with any workout or
restructuring of the Basic Documents. In addition, CR II will pay any and
all stamp and other taxes and fees payable or determined to be payable in
connection with the execution, delivery, filing, recording or enforcement
of this Agreement or any payment made under the Basic Documents (other than
taxes imposed on net income of any Purchaser), and hereby indemnifies and
saves the Agent and the Purchasers harmless from and against any and all
liabilities with respect to or resulting from any delay in paying or
omission to pay the taxes and fees. In addition, CR II agrees to pay,
indemnify, and hold each Purchaser and the Agent (and their respective
directors, officers, employees, agents,
Note Purchase Agreement
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affiliates and successors) harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever
(whether or not caused by any Purchaser's or the Agent's or any of their
respective directors', officers', employees', agents', successors',
affiliates' or assigns' negligence (other than gross negligence) and
including the reasonable fees and disbursements of the respective counsels
to the Agent and each Purchaser, including, without duplication, the
allocated costs of staff counsel to any such Purchaser or the Agent) with
respect to the execution, delivery, enforcement, performance and
administration of this Agreement and the other Basic Documents (regardless
of whether the Agent or any Purchaser is a party to the litigation or other
proceeding giving rise thereto), (all the foregoing in sentence,
collectively, the "indemnified liabilities"), provided, that CR II shall
have no obligation hereunder to the Agent or any Purchaser with respect to
indemnified liabilities to the extent such indemnified liabilities arise
solely from (i) the gross negligence or wilful misconduct of the
Administrative Agent or any such Purchaser (or any of their respective
directors, officers, employees, agents, affiliates or successors) or (ii)
legal proceedings commenced against the Agent or any such Purchaser by any
securityholder or creditor of the Agent or any such Purchaser arising out
of or based upon rights afforded any such securityholder or creditor solely
in its capacity as such.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their duly authorized officers and delivered as of
the day and year first above written.
CASE EQUIPMENT LOAN TRUST 1997-B
By: THE BANK OF NEW YORK,
not in its individual capacity but solely as
Trustee under the Trust Agreement
By: /s/ Cheryl L. Laser
Name: Cheryl L. Laser
Title: Assistant Vice President
Address: 101 Barclay Street, Floor 12E
New York, New York 10286
Attention: Corporate Trust Administration -
Asset Backed Finance Unit
Telephone: (212) 815-7156
Facsimile: (212) 815-5544
CASE CREDIT CORPORATION,
as Administrator
By: /s/ Peter Hong
Name: Peter Hong
Title: Treasurer
Address: 233 Lake Avenue
Racine, Wisconsin 53403
Attention: Treasurer
Telephone: (414) 636-6011
Facsimile: (414) 636-6466
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CASE RECEIVABLES II INC.
By: /s/ Peter Hong
Name: Peter Hong
Title: Treasurer
Address: 233 Lake Avenue
Racine, Wisconsin 53403
Attention: Treasurer
Telephone: (414) 636-6011
Facsimile: (414) 636-6466
CREDIT SUISSE FIRST BOSTON, NEW YORK
BRANCH,
as Agent and as Support Bank for Conduit
By: /s/ David Schrenzel
Name: David Schrenzel
Title: Director
By: /s/ Elizabeth A. Whalen
Name: Elizabeth A. Whalen
Title: Associate
Address: Eleven Madison Avenue
New York, NY 10010-3629
Telephone: 212/325-9076
Facsimile: 212/325-6677
Note Purchase Agreement
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ALPINE SECURITIZATION CORP., as a Purchaser
By: Credit Suisse First Boston, New York Branch, as
attorney-in-fact
By: /s/ David Schrenzel
Name: David Schrenzel
Title: Director
By: /s/ Elizabeth Z. Whalen
Name: Elizabeth A. Whalen
Title: Associate
Address: c/o Credit Suisse First Boston,
New York Branch
Eleven Madison Avenue
New York, New York 10010
Note Purchase Agreement
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SCHEDULE I
to Note Purchase Agreement
INITIAL PURCHASER'S MAXIMUM AMOUNT AND PERCENTAGE
-------------------------------------------------
Maximum Amount
--------------
Purchaser
- ---------
$97,960,250.83
Percentage
----------
Alpine Securitization Corp. 100%
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EXHIBIT B
to Note Purchase Agreement
FORM OF ASSIGNMENT AGREEMENT
----------------------------
This ASSIGNMENT AGREEMENT, dated as of ____________ (this
"Agreement"), is made between ____________________ ("Assignor"), and
_____________________ ("Assignee"). Except as otherwise defined herein,
capitalized terms have the meanings assigned to them in the Note Purchase
Agreement (as defined below).
BACKGROUND
A. Assignor is a party to the Note Purchase Agreement, dated as of
September 22, 1997 (as amended, supplemented or otherwise modified from
time to time, the "Note Purchase Agreement"), among CASE EQUIPMENT LOAN
TRUST 1997-B, a Delaware business trust ("Issuer"), CASE CREDIT
CORPORATION, a Delaware corporation, CASE RECEIVABLES II INC., a Delaware
corporation, the Purchasers party thereto (including Assignor), certain
Purchasers and CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH, as Agent.
B. Assignor wishes to assign, and Assignee wishes to be so
assigned, Assignor's rights and obligations arising on and after the
Effective Date (as defined below) under the Note Purchase Agreement and its
Class B Note including its obligations to make Purchases (its "Credit
Exposure").
C. Assignor and Assignee also wish (a) Assignee to assume the
obligations of Assignor under the Note Purchase Agreement with respect to
Assignee's Share (as defined below) to the extent of the rights assigned
and (b) Assignor to be released from the obligations assumed by Assignee.
SECTION 1. Assignment. Effective on the Effective Date (as defined
below) and upon payment of the amount specified in Section 3(a), Assignor
hereby assigns and transfers to Assignee, without recourse, representation
or warranty of any kind, express or implied (except as provided in Sections
6(a) and (b)), and subject to Section 4(b), Assignee's Share (as specified
in Annex I hereto) (the "Assignee's Share") of all of Assignor's rights,
title and interest arising under (a) the Note Purchase Agreement relating
to Assignor's Credit Exposure including all rights and obligations with
respect to the Purchases attributable to Assignee's
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<PAGE>
Share and (b) Assignor's Class B Note with respect to Assignee's Share as
will result in Assignee having from and after the Effective Date the
Percentage ("Assignee's Percentage") specified in Annex I.
SECTION 2. Assumption. Effective on the Effective Date, Assignee
hereby irrevocably purchases, assumes and takes from Assignor, and Assignor
is hereby expressly and absolutely released from, all of Assignor's
obligations arising under the Note Purchase Agreement relating to
Assignee's Share and of any outstanding Purchases attributable to
Assignee's Share. Assignee hereby agrees to be bound by the provisions of
the Note Purchase Agreement.
SECTION 3. Payment. In consideration of the assignment by Assignor
to Assignee as set forth above, Assignee agrees to pay to Assignor, in
Dollars and in immediately available funds, (a) on or prior to the
Effective Date, an amount specified by Assignor in writing on or prior to
the Effective Date that represents Assignee's Share attributable to the
principal amount of the Purchases made pursuant to the Note Purchase
Agreement and outstanding on the Effective Date, and (b) from time to time
thereafter, other amounts (if any) that Assignee has agreed in writing to
pay to Assignor after the Effective Date. In consideration of the
assumption by Assignee, Assignor agrees to pay to Assignee on the Effective
Date, an assignment fee (if any) that previously has been agreed to in
writing by both parties.
Notwithstanding anything to the contrary in this Agreement, if and
when Assignee receives or collects (x) any payment of principal or interest
relating to any Purchases or (y) any payment of fees that are required to
be paid to Assignor pursuant to this Agreement, then Assignee shall forward
the payment to Assignor.
To the extent payment of funds to Assignee or Assignor are not
made within one Business Day, each, as the case may be, shall be entitled
to recover the due amount, together with interest thereon at the Federal
Funds Rate per annum accruing from the date of payment or the date of
receipt of the funds by the other party.
SECTION 4. Effectiveness. (a)(i) This Agreement shall become
effective on the date (the "Effective Date") on which [it shall have been
duly executed by all parties and the Agent shall have recorded the
information contained herein in its records (or automatically upon the
Agent's receipt of this Agreement signed by Assignor and Assignee if not so
recorded within five Business Days of such receipt)] [the Agent shall have
received this Agreement duly executed by Assignor and Assignee] Assignor
hereby notifies the Agent of the assignment, effective as of the Effective
Date, of Assignee's Share and any Purchases attributable to the Assignee's
Share, and directs the Agent to pay Assignee any payment of principal of,
or interest on, any Purchase attributable to the Assignee's Share of any
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<PAGE>
Purchases. No (x) failure of either Assignee or Assignor to settle any
amount owed to the other (except with respect to the payment of the
processing and recordation fee to the Agent and the payment due under
Section 3(a)), (y) dispute respecting any other settlement, including in
respect of Issuer, or (z) bankruptcy, insolvency or other condition
whatsoever respecting any Person, shall in any way impair, reduce or
otherwise affect the effectiveness of this Agreement.
(ii) Assignor, Assignee and the Agent each acknowledges and agrees
that from and after the Effective Date, the Issuer shall make all payments
under the Note Purchase Agreement in respect of Assignee's Share (including
all payments of principal and interest with respect thereto, whether or not
the payments shall have accrued prior to or after the Effective Date) to
Assignee only. Assignor and Assignee hereby agree further to make all
appropriate adjustments in payments to either of them under the Note
Purchase Agreement for periods prior to the Effective Date directly between
themselves.
(b) With respect to any Purchase attributable to Assignee's Share,
if and when Assignor receives or collects any payment of principal or
interest with respect to Assignee's Share for any period commencing on or
after the Effective Date, Assignor shall distribute to Assignee the portion
attributable to Assignee's Share, but only to the extent it accrued on or
after the Effective Date and was not theretofore paid to Assignee by Issuer
or otherwise. Any principal or interest paid prior to the Effective Date
shall be retained by Assignor. Any principal or interest received by
Assignee that accrued prior to the Effective Date shall be forwarded
promptly, in the form received, to Assignor. Assignee recognizes and agrees
that (i) it shall receive no payment on account of any Agent's fees or
other amounts or expenses (including counsel fees) payable to the Agent (in
such capacities and for their own account), (ii) this Agreement shall not
operate to assign any rights or delegate any obligations of the Agent (in
such capacities), and (iii) notwithstanding anything to the contrary in
this Agreement, Assignor shall retain all of its rights to indemnification
under the Note Purchase Agreement for any events, acts or omissions
occurring prior to the Effective Date.
(c) The Agent, by its execution hereof, acknowledges the
assignment and agrees to make payments in respect of principal, interest,
fees and Additional Amounts as described in clause (a).
SECTION 5. Rights as Purchaser under Note Purchase Agreement. In
accordance with Section 6.1 of the Note Purchase Agreement, (a) as of the
Effective Date, Assignee will be a Purchaser under, and party to, the Note
Purchase Agreement and shall have (i) all of the rights and obligations of
a Purchaser (to the extent of the assignment and assumption of Assignee's
Share effected by this Agreement) and (ii) the addresses for notice
purposes as set forth in item 2 of Annex I hereto and (b) promptly on or
after the Effective Date,
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25
<PAGE>
Issuer will execute and deliver any documents and instruments that Assignor
or Assignee reasonably may require.
SECTION 6. Representations and Warranties. (a) Each of Assignor and
Assignee represents and warrants to the other as follows:
(i) it has full power and authority, and has taken all
action necessary, to execute and deliver this Agreement, to
fulfill the obligations hereunder and to consummate the
transactions contemplated hereby,
(ii) the making and performance of this Agreement and all
documents required to be executed and delivered hereunder do not
and will not violate any law or regulation of the jurisdiction of
its incorporation or any other applicable law or regulation,
(iii) this Agreement has been duly executed and delivered
and constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms, and
(iv) all approvals, authorizations or other actions by,
or filing with, any governmental authority necessary for the
validity or enforceability of its obligations under this Agreement
have been obtained.
(b) Assignor represents and warrants to Assignee that Assignee's
Share and the Purchases attributable to Assignee's Share are not subject to
any liens or security interests created by Assignor.
(c) Except as set forth in subsections (a) and (b), Assignor makes
no representations or warranties, express or implied, to Assignee and shall
not be responsible to Assignee for (i) the execution, effectiveness,
genuineness, legality, validity, enforceability, collectibility, regulatory
status or sufficiency of the Note Purchase Agreement or any of the other
Basic Documents, (ii) the perfection, priority, value or adequacy of any
collateral security or guaranty, (iii) the taking of any action, or the
failure to take any action, with respect to any of the Basic Documents,
(iv) any representations, warranties, recitals or statements made in any of
the Basic Documents or in any written or oral financial or other
statements, instruments, reports, certificates or documents made or
furnished by Assignor to Assignee or by or on behalf of Issuer or any of
its Affiliates to Assignor or Assignee in connection with the Basic
Documents and the transactions contemplated thereby, (v) the financial or
other condition of Issuer or any other Person or (vi) any other matter
having any relation to any of the foregoing. Assignor shall not be required
to ascertain or inquire as to the performance or observance of any of the
terms, conditions, provisions, covenants or agreements contained in any of
the Basic Documents or the existence or
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possible existence of any Event of Default, Default or Servicer Default.
Additionally, Assignor shall not have any duty or responsibility either
initially or on a continuing basis to make any investigation or any
appraisal on Assignee's behalf or to provide Assignee with any credit or
other information with respect thereto, whether coming into Assignor's
possession before the execution of the Note Purchase Agreement or at any
time thereafter. Assignor shall have no responsibility with respect to the
accuracy of, or the completeness of, any information provided to Assignee,
whether by Assignor or by or on behalf of Issuer or any other Person
obligated under the Note Purchase Agreement or any related instrument or
document.
(d) Assignee represents and warrants that (x) it has made its own
independent investigation of each of the foregoing matters, including the
financial condition and affairs of Issuer and its Affiliates, in connection
with the making of the Purchases and the execution of this Agreement
(including the solvency of Issuer and its Affiliates, their ability to pay
their respective debts as they mature and the capital of Issuer and its
Affiliates remaining after the closing under the Basic Documents and the
consummation of the transactions contemplated thereby) and has made and
shall continue to make its own appraisal of the creditworthiness of Issuer
and its Affiliates, and (y) the representations and warranties set forth in
Section 3.3 of the Note Purchase Agreement are true and correct with
respect to the Assignee. Assignee hereby agrees that it will not make any
general solicitation or general advertising for the offer or sale of the
Class B Notes. Assignee (i) confirms that it has received copies of the
Basic Documents together with copies of certain other closing documents
delivered in connection with the Note Purchase Agreement, financial
statements and any other documents and information that it has requested or
deemed appropriate to make its own credit analysis and decision to enter
into this Agreement and (ii) agrees that it will, independently and without
reliance upon the Agent, Assignor or any other Purchaser and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under the Basic Documents.
SECTION 7. No Proceedings. Assignee hereby agrees to be bound by the
provisions of Section 6.10 of the Note Purchase Agreement.
[SECTION 8. Withholding Taxes. Assignee agrees to execute and
deliver to the Agent, for delivery to Issuer, on or before the Effective
Date or, in the case of a Support Bank, on or before the date it becomes a
Support Bank, (a) two original copies of Internal Revenue Service Form 4224
or successor applicable form, properly completed and duly executed by the
Assignee certifying that it is entitled to receive payments under the Note
Purchase Agreement and any Class B Note without deduction or withholding of
any United States Federal income taxes, or (b) an original copy of Internal
Revenue Service Form W-8 or
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applicable successor form, properly completed and duly executed. Assignee
represents and warrants to Issuer and Assignor that, as of the Effective
Date, it shall be entitled to receive payments under its Class B Note, the
Note Purchase Agreement and hereunder without deduction for or on account
of any taxes imposed by the United States of America or any political
subdivision thereof; provided that in the case of an Assignee which is a
Support Bank, such representation and warranty shall be made as of the date
on which such Assignee became a Support Bank. In the event that, after
delivering the applicable form, Assignee shall cease to be exempt from
withholding and/or deduction of taxes, then the Agent may withhold and/or
deduct the applicable amount from any payments of principal, interest and
any fees to which Assignee otherwise would be entitled, and the Agent shall
have no liability whatsoever to Assignee for any such withholding or
deduction. Assignee shall indemnify Issuer and the Agent from and against
all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs or expenses that result from Assignee's breach of
such representation and warranty.]*/
SECTION 9. Miscellaneous. (a) Each of the parties hereto agrees to
take any action and execute and deliver any documents that any party hereto
reasonably may request from time to time in order to implement more fully
the purposes of this Agreement. Without limiting the generality of the
foregoing, Assignor and Assignee will cooperate in obtaining for Assignee a
Class B Note (as well as a replacement Class B Note for Assignor
representing any retained interest of Assignor).
(b) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES.
(c) Except as otherwise set forth herein, this Agreement sets
forth the entire agreement between the parties relating to the subject
matter hereof, and no term or provision of this Agreement may be amended,
changed, waived, discharged or terminated orally or otherwise, except in a
writing signed by Assignor and Assignee.
(d) This Agreement may be executed in any number of counterparts and
by the different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
- --------
* If the Assignee is not a U.S. person within the meaning of Section
7701(a)(30) of the Internal Revenue Code.
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(e) Each of the parties hereto agrees that each party shall bear
its own expenses in connection with the preparation and execution of this
Agreement and the consummation of the Assignment described herein. Assignee
further agrees that it shall send a check in the amount of $[1,500] [3,500]
to the Agent on or prior to the Effective Date, as payment of the
processing and recordation fee described in Section 6.1(c) of the Note
Purchase Agreement. [Select correct amount in accordance with that Section;
delete in the case of a Permitted Transferee.]
(f) All representations and warranties made, and indemnities
provided for, herein shall survive the consummation of the transactions
contemplated hereby.
(g) Assignor may at any time or from time to time grant
assignments and participations in its rights and obligations under the Note
Purchase Agreement and its Class B Note to other Persons, but not in the
portions thereof assigned to Assignee.
(h) This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns. Neither
Assignor nor Assignee may assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of the
other party. The preceding sentence shall not limit the right of Assignee
to assign all or part of Assignee's Share in the manner contemplated by the
Note Purchase Agreement.
(i) Assignee acknowledges that all obligations of the Agent are
subject to Article 5 of the Note Purchase Agreement.
[SECTION 10. Assumption by Support Bank. In accordance with Section
2.1(c) of the Note Purchase Agreement, each of the undersigned Support Banks
for Assignee join in this Agreement to confirm, for the benefit of the parties
to the Note Purchase Agreement, that such Support Bank is obligated to make its
Support Bank Percentage (defined below) of all Purchases that Assignee would
otherwise be required to make under the Note Purchase Agreement. The "Support
Bank Percentage" of each Support Bank is as follows:
__________________________.]**/
- ---------------------------
**Use bracketed language if Assignee is a Structured Lender and its
Purchases are discretionary.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their duly authorized officers and delivered as of
the day and year first above written.
_________________________________,
as Assignor
By:______________________________
Title:________________________
__________________________________,
as Assignee
By:_______________________________
Title:_________________________
[______________________________,
as Support Bank]
The undersigned hereby acknowledges the terms and provisions of
this Agreement.
- ------------------------------,
as Agent
By:______________________________
Title:_________________________
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ANNEX I
to Assignment Agreement
Item 1. Assignee's Share:
(a) Assignee's Maximum Amount $______________
(b) Assignee's Percentage _____________%
Item 2. Address of Assignee for notice purposes:
____________________________
____________________________
____________________________
Attention: ______________
Telephone: ______________
Facsimile: ______________
18302061.3 100197 1653C 95202263
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|| APPENDIX X
to Note Purchase Agreement
INDEX OF ADDITIONAL DEFINED TERMS
---------------------------------
Administrator ......................................................1, 4
Agent .........................................................1
Agreement .........................................................1
Assignee ........................................................14
Basic Documents .........................................................9
Case Credit .........................................................1
Class B Income Amount......................................................5
Class B Notes .........................................................1
CR II .........................................................1
Credit Date .........................................................5
Credit Exposure ........................................................14
Falcon .........................................................2
FNBC .........................................................1
Indenture .........................................................1
Initial Class B Notes......................................................2
IRS .........................................................4
Issuer .........................................................1
Participants ........................................................14
Percentage .........................................................2
Prior Tax Year .........................................................4
Purchase .........................................................2
Purchasers .........................................................1
Required Purchasers.......................................................13
Sale and Servicing Agreement...............................................1
Structured Lender .........................................................2
Support Bank .........................................................2
Tax Payment Due Date.......................................................5
Taxes .........................................................3
Transferee ........................................................15
Withholding Event .........................................................4
Withholding Tax .........................................................4
||
18302061.3 100197 1653C 95202263
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