<PAGE>
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) March 18, 1997
--------------
CASE RECEIVABLES II INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
33-99298
(Commission File Number)
76-0439709
(I.R.S. Employer
Identification No.)
233 Lake Street, Racine, Wisconsin 53403
(Address of Principal Executive Offices) (Zip Code)
(414) 636-6011
(Registrant's Telephone Number, Including Area Code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
<PAGE>
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
- ------- --------------------
4.1 Indenture between Case Equipment Loan Trust 1997-A (the
"Trust") and Harris Trust and Savings Bank (the "Indenture
Trustee"), dated as of March 1, 1997.
4.2 Trust Agreement between Case Receivables II Inc. ("CRC")
and Chase Manhattan Bank Delaware (the "Trustee"), dated
as of March 1, 1997.
4.3 Sale and Servicing Agreement among CRC, Case Credit
Corporation and the Trust, dated as of March 1, 1997.
4.4 Purchase Agreement between Case Credit Corporation and CRC,
dated as of March 1, 1997.
4.5 Administration Agreement between the Trust and Case Credit
Corporation, dated as of March 1, 1997.
4.6 Class A Note Underwriting Agreement among CRC, Case Credit
Corporation and Salomon Brothers Inc, dated as of March 11,
1997.
4.7 Class B Note Underwriting Agreement among CRC, Case Credit
Corporation and Salomon Brothers Inc, dated as of March 11,
1997.
<PAGE>
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: March 18, 1997 By: /s/ Peter Hong
Peter Hong
Treasurer
<PAGE>
INDEX TO EXHIBITS
Exhibit Sequential
No. Document Description
- ------- --------------------
4.1 Indenture between Case Equipment Loan Trust 1997-A (the "Trust") and
Harris Trust and Savings Bank (the "Indenture Trustee"), dated as of
March 1, 1997.
4.2 Trust Agreement between Case Receivables II Inc. ("CRC") and Chase
Manhattan Bank Delaware (the "Trustee"), dated as of March 1, 1997.
4.3 Sale and Servicing Agreement among CRC, Case Credit Corporation and
the Trust, dated as of March 1, 1997.
4.4 Purchase Agreement between Case Credit Corporation and CRC, dated as
of March 1, 1997.
4.5 Administration Agreement between the Trust and Case Credit
Corporation, dated as of March 1, 1997.
4.6 Class A Note Underwriting Agreement among CRC, Case Credit Corporation
and Salomon Brothers Inc, dated as of March 11, 1997.
4.7 Class B Note Underwriting Agreement among CRC, Case Credit Corporation
and Salomon Brothers Inc, dated as of March 11, 1997.
<PAGE>
<PAGE>
CASE EQUIPMENT LOAN TRUST 1997-A
INDENTURE
between
CASE EQUIPMENT LOAN TRUST 1997-A
and
HARRIS TRUST AND SAVINGS BANK,
as Indenture Trustee.
Dated as of March 1, 1997
<PAGE>
Table of Contents
Page
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.1. Definitions............................................ 3
SECTION 1.2. Incorporation by Reference of Trust Indenture Act...... 11
SECTION 1.3. Rules of Construction.................................. 11
ARTICLE II
The 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............. 15
SECTION 2.6. Persons Deemed Owner................................... 16
SECTION 2.7. Payment of Principal and Interest; Defaulted Interest.. 16
SECTION 2.8. Cancellation........................................... 17
SECTION 2.9. Release of Collateral.................................. 18
SECTION 2.10. Book-Entry Notes...................................... 18
SECTION 2.11. Notices to Clearing Agency............................ 19
SECTION 2.12. Definitive Notes...................................... 19
ARTICLE III
Covenants
SECTION 3.1. Payment of Principal and Interest...................... 20
SECTION 3.2. Maintenance of Office or Agency........................ 20
SECTION 3.3. Money for Payments To Be Held in Trust................. 20
SECTION 3.4. Existence.............................................. 22
SECTION 3.5. Protection of the Trust Estate......................... 22
SECTION 3.6. Opinions as to the Trust Estate........................ 23
SECTION 3.7. Performance of Obligations; Servicing of Receivables... 24
SECTION 3.8. Negative Covenants..................................... 26
SECTION 3.9. Annual Statement as to Compliance...................... 27
SECTION 3.10. Issuer May Consolidate, etc., Only on Certain Terms... 27
SECTION 3.11. Successor or Transferee............................... 29
SECTION 3.12. No Other Business..................................... 29
SECTION 3.13. [Reserved]............................................. 29
SECTION 3.14. Servicer's Obligations................................ 30
SECTION 3.15. Guarantees, Loans, Advances and Other Liabilities..... 30
SECTION 3.16. Capital Expenditures.................................. 30
SECTION 3.17. Removal of Administrator.............................. 30
SECTION 3.18. Restricted Payments................................... 30
SECTION 3.19. Notice of Events of Default........................... 31
SECTION 3.20. Further Instruments and Acts.......................... 31
ARTICLE IV
Satisfaction and Discharge
SECTION 4.1. Satisfaction and Discharge of Indenture................ 31
SECTION 4.2. Application of Trust Money............................. 32
SECTION 4.3. Repayment of Moneys Held by Paying Agent............... 33
ARTICLE V
Remedies
SECTION 5.1. Events of Default...................................... 33
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment..... 34
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee................................... 35
SECTION 5.4. Remedies; Priorities................................... 38
SECTION 5.5. Optional Preservation of the Receivables............... 40
SECTION 5.6. Limitation of Suits.................................... 40
SECTION 5.7. Unconditional Rights of Noteholders To Receive
Principal and Interest.............................. 41
SECTION 5.8. Restoration of Rights and Remedies..................... 41
SECTION 5.9. Rights and Remedies Cumulative......................... 41
SECTION 5.10. Delay or Omission Not a Waiver........................ 42
SECTION 5.11. Control by Noteholders................................ 42
SECTION 5.12. Waiver of Past Defaults............................... 42
SECTION 5.13. Undertaking for Costs................................. 43
SECTION 5.14. Waiver of Stay or Extension Laws...................... 43
SECTION 5.15. Action on Notes....................................... 44
SECTION 5.16. Performance and Enforcement of Certain Obligations.... 44
ARTICLE VI
The Indenture Trustee
SECTION 6.1. Duties of the Indenture Trustee........................ 45
SECTION 6.2. Rights of Indenture Trustee............................ 47
SECTION 6.3. Individual Rights of the Indenture Trustee............. 48
SECTION 6.4. Indenture Trustee's Disclaimer......................... 48
SECTION 6.5. Notice of Defaults..................................... 48
SECTION 6.6. Reports by Indenture Trustee to the Holders............ 48
SECTION 6.7. Compensation and Indemnity............................. 48
SECTION 6.8. Replacement of the Indenture Trustee................... 49
SECTION 6.9. Successor Indenture Trustee by Merger.................. 50
SECTION 6.10. Appointment of Co-Trustee or Separate Trustee......... 51
SECTION 6.11. Eligibility; Disqualification......................... 52
SECTION 6.12. Preferential Collection of Claims Against the Issuer.. 52
ARTICLE VII
Noteholders' Lists and Reports
SECTION 7.1. Issuer To Furnish Indenture Trustee Names and Addresses
of Noteholders...................................... 53
SECTION 7.2. Preservation of Information; Communications to
Noteholders......................................... 53
SECTION 7.3. Reports by Issuer...................................... 53
ARTICLE VIII
Accounts, Disbursements and Releases
SECTION 8.1. Collection of Money.................................... 54
SECTION 8.2. Trust Accounts......................................... 54
SECTION 8.3. General Provisions Regarding Accounts.................. 56
SECTION 8.4. Release of Trust Estate................................ 57
SECTION 8.5. Opinion of Counsel..................................... 57
ARTICLE IX
Supplemental Indentures
SECTION 9.1. Supplemental Indentures Without Consent of 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.................... 62
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............................. 63
SECTION 10.3. Notes Payable on Redemption Date...................... 64
ARTICLE XI
Miscellaneous
SECTION 11.1. Compliance Certificates and Opinions, etc............. 64
SECTION 11.2. Form of Documents Delivered to Indenture Trustee...... 66
SECTION 11.3. Acts of Noteholders................................... 67
SECTION 11.4. Notices, etc., to the Indenture Trustee,
Issuer and Rating Agencies......................... 68
SECTION 11.5. Notices to Noteholders; Waiver........................ 69
SECTION 11.6. Alternate Payment and Notice Provisions............... 69
SECTION 11.7. Conflict with Trust Indenture Act..................... 70
SECTION 11.8. Effect of Headings and Table of Contents.............. 70
SECTION 11.9. Successors and Assigns................................ 70
SECTION 11.10. Severability......................................... 70
SECTION 11.11. Benefits of Indenture................................ 70
SECTION 11.12. Legal Holidays....................................... 70
SECTION 11.13. Governing Law........................................ 71
SECTION 11.14. Counterparts......................................... 71
SECTION 11.15. Recording of Indenture............................... 71
SECTION 11.16. Trust Obligation..................................... 71
SECTION 11.17. No Petition.......................................... 71
SECTION 11.18. Inspection........................................... 72
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 Class B Notes
EXHIBIT B Form of Section 3.9 Officers' Certificate
<PAGE>
INDENTURE, dated as of March 1, 1997, between CASE EQUIPMENT LOAN
TRUST 1997-A, 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 5.597% Class
A-1 Asset Backed Notes (each an "A-1 Note"), 6.00% Class A-2 Asset Backed
Notes (each an "A-2 Note") , 6.45% Class A-3 Asset Backed Notes and 6.70%
Class B Notes (each a "Class B Note"; and together with the A-1 Notes, the
A-2 Notes, and the A-3 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;
(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, and (y) second, the payment of principal of and interest on,
and any other amounts owing in respect of, the Class B Notes, equally and
ratably without prejudice, priority or distinction, and to secure compliance
with 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.
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 5.597% per annum, computed on the basis of a
360-day year of twelve 30-day months.
"A-2 Note" is defined in the recitals. Each A-2 Note shall be
substantially in the form of Exhibit A-2.
"A-2 Note Rate" means 6.00% per annum, computed on the basis of a
360-day year of twelve 30-day months.
"A-3 Note" is defined in the recitals. Each A-3 Note shall be
substantially in the form of Exhibit A-3.
"A-3 Note Rate" means 6.45% per annum, computed on the basis of a
360-day year of twelve 30-day months.
"Act" has the meaning specified in Section 11.3(a).
"Administration Agreement" means the Administration Agreement, dated
as of the date hereof, among the Administrator, the Issuer and the Indenture
Trustee.
"Administrator" means Case Credit Corporation, a Delaware corporation,
or any successor Administrator under the Administration Agreement.
"Affiliate" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authorized Officer" means, with respect to the Issuer, any officer of
the Trustee who is authorized to act for the Trustee in matters relating to
the Issuer and who is identified on the list of Authorized Officers
delivered by the Trustee to the Indenture Trustee on the Closing Date (as
such list may be modified or supplemented from time to time thereafter) and,
so long as the Administration Agreement is in effect, any Vice President or
more senior officer of the Administrator who is authorized to act for the
Administrator in matters relating to the Issuer and to be acted upon by the
Administrator pursuant to the Administration Agreement and who is identified
on the list of Authorized Officers delivered by the Administrator to the
Indenture Trustee on the Closing Date (in each case as such list may be
modified or supplemented from time to time thereafter).
"Basic Documents" means the Certificate of Trust, the Trust Agreement,
the Purchase Agreement, the Sale and Servicing Agreement, the Administration
Agreement, the Note Depositary 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-4.
"Class B Note Rate" means 6.70% 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 March 18, 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.
"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).
"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.
"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.
"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-A 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.
"Notes" is defined in the introduction hereto.
"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 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.
"Redemption Date" means: (i) the Payment Date specified by the
Servicer or the Issuer pursuant to Section 10.1(a) or (b), as applicable, or
(ii) in the case of a redemption of 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 the listing of the Receivables set
forth on Schedule A to the Sale and Servicing Agreement, as supplemented as
of each Subsequent Transfer Date to reflect the sale to the Issuer of
Subsequent Receivables.
"State" means any one of the 50 states of the United States of America
or the District of Columbia.
"Successor Servicer" has the meaning specified in Section 3.7(e).
"TIA" means the Trust Indenture Act.
"Trust Estate" means all the money, instruments, rights and other
property that are subject or intended to be subject to the Lien and security
interest of this Indenture for the benefit of the Noteholders (including all
property and interests Granted to the Indenture Trustee), including all
proceeds thereof.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as in
force on the date hereof unless otherwise specifically provided.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code, as in effect in the relevant jurisdiction, as amended from
time to time.
(b) Except as otherwise specified herein or as the context may
otherwise require, the capitalized terms used herein but not defined have
the respective meanings set forth in the Sale and Servicing Agreement for
all purposes of this Indenture.
SECTION 1.2. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The
following terms, where used in the TIA, shall have the following meanings
for the purposes hereof:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture
Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission
rule have the meaning assigned to them by such definitions.
SECTION 1.3. Rules of Construction. Unless the context otherwise
requires: (i) a term has the meaning assigned to it; (ii) an accounting term
not otherwise defined has the meaning assigned to it in accordance with
generally accepted accounting principles as in effect on the date hereof;
(iii) "or" is not exclusive; (iv) "including" means "including, without
limitation"; and (v) words in the singular include the plural and words in
the plural include the singular.
ARTICLE II
The Notes
SECTION 2.1. Form. The A-1 Notes, A-2 Notes, A-3 Notes and Class B
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 and
A-4 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 and A-4 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 and Class B Notes for original issue in an
aggregate principal amount of $71,500,000, $282,000,000, $259,125,000 and
$26,000,000, respectively. The Outstanding Amount of A-1 Notes, A-2 Notes,
A-3 Notes and Class B Notes at any time may not exceed such respective
amounts except as provided in Section 2.5.
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 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 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.
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 and Class B Notes shall accrue
interest at the A-1 Note Rate, the A-2 Note Rate and the A-3 Note Rate, and
the Class B 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, 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. 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, ratably
to all Noteholders, on: (A) the date on which an Event of Default shall have
occurred and be continuing if the Indenture Trustee or the Holders of Notes
representing not less than a majority of the Outstanding Amount of the Notes
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 March, 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.
(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 Sections 314(c) and 314(d)(l), or an Opinion of Counsel
in lieu of such Independent Certificates to the effect that the TIA does not
require any such Independent Certificates.
SECTION 2.10. Book-Entry Notes. The 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 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 Note will
receive a Definitive Note representing such Note Owner's interest in such
Note, except as provided in Section 2.12. Unless and until definitive, fully
registered Notes (the "Definitive Notes") representing 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 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.
SECTION 2.12. Definitive Notes. 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
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 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 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.
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 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;
(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 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.
(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.
(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, andith Section 8.2 of the Sale and
Servicing Agreement, the Issuer shall enter into an agreement with such
Successor Servicer for the servicing of the Receivables (such agreement to
be in form and substance satisfactory to the Indenture Trustee). If the
Indenture Trustee shall succeed to the previous Servicer's duties as
servicer of the Receivables as provided herein, it shall do so in its
individual capacity and not in its capacity as Indenture Trustee and,
accordingly, the provisions of Article VI shall be inapplicable to the
Indenture Trustee in its duties as the Successor Servicer and the servicing
of the Receivables. In case the Indenture Trustee shall become the Successor
Servicer under the Sale and Servicing Agreement, the Indenture Trustee shall
be entitled to appoint as Servicer any one of its Affiliates; provided, that
it shall be fully liable for the actions and omissions of such Affiliate in
its capacity as Successor Servicer.
(f) Upon any termination of the Servicer's rights and powers pursuant
to the Sale and Servicing Agreement, the Issuer shall promptly notify the
Indenture Trustee. As soon as a Successor Servicer is appointed, the Issuer
shall notify the Indenture Trustee of such appointment, specifying in such
notice the name and address of such Successor Servicer.
(g) Without derogating from the absolute nature of the assignment
Granted to the Indenture Trustee under this Indenture or the rights of the
Indenture Trustee hereunder, the Issuer agrees that it will not, without the
prior written consent of the Indenture Trustee or the Holders of at least a
majority of the Outstanding Amount, amend, modify, waive, supplement,
terminate or surrender, or agree to any amendment, modification, supplement,
termination, waiver or surrender of, the terms of any Collateral (except to
the extent otherwise provided in the Sale and Servicing Agreement) or the
Basic Documents, or waive timely performance or observance by the Servicer
or the Seller under the Sale and Servicing Agreement or Credit under the
Purchase Agreement; provided, however, that no such amendment shall: (i)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, distributions that are required to be made for the benefit of the
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 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;
(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;
(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.
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.
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
(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.
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;
(ii) default in the payment of the principal of any Note when the
same becomes due and payable;
(iii) default in the observance or performance of any covenant or
agreement of the Issuer made in this Indenture (other than a covenant
or agreement a default in the observance or performance of which is
elsewhere in this Section specifically dealt with), or any
representation or warranty of the Issuer made in this Indenture or in
any certificate or other writing delivered pursuant hereto or in
connection herewith proving to have been incorrect in any material
respect as of the time when the same shall have been made, and such
default shall continue or not be cured, or the circumstance or
condition in respect of which such misrepresentation or warranty was
incorrect shall not have been eliminated or otherwise cured, for a
period of 30 days after there shall have been given, by registered or
certified mail, to the Issuer by the Indenture Trustee or to the
Issuer and the Indenture Trustee by the Holders of at least 25% of the
Outstanding Amount of the Notes, a written notice specifying such
default or incorrect representation or warranty and requiring it to be
remedied and stating that such notice is a notice of Default
hereunder;
(iv) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer or any
substantial part of the 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 representing not less
than a majority of the Outstanding Amount 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.
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 representing not less than a majority of the
Outstanding Amount, by written notice to the Issuer and the Indenture
Trustee, may rescind and annul such declaration and its consequences if:
(i) the Issuer has paid or deposited with the Indenture Trustee a
sum sufficient to pay:
(A) all payments of principal of and interest on all 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 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;
(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.
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;
SECOND: to Class A Noteholders for amounts due and unpaid on the
Class A Notes for interest, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Class A
Notes for interest;
THIRD: to Class B Noteholders for amounts due and unpaid on the
Class B Notes for interest, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Class B
Notes for interest;
FOURTH: to Class A Noteholders for amounts due and unpaid on the
Class A Notes for principal, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Class A
Notes for principal;
FIFTH: to Class B Noteholders for amounts due and unpaid on the
Class B Notes for principal, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Class B
Notes for principal; and
SIXTH: to the Issuer for distribution to the Certificateholders.
The Indenture Trustee may fix a special record date and special
payment date for any payment to 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 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 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.
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.
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 shall have the right to
direct the time, method and place of conducting any Proceeding for any
remedy available to the Indenture Trustee with respect to the 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 Notes may waive any past Default or Event of Default and its
consequences except a Default: (a) in payment of principal of or interest on
any of the 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.
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
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.
(b) Except during the continuance of an Event of Default actually
known to a Responsible Officer:
(i) the Indenture Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture and
no implied covenants or obligations shall be read into this Indenture
against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; provided, however, in the case of any
such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Indenture Trustee, the
Indenture Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) The Indenture Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own wilful
misconduct, except that:
(i) this clause (c) does not limit the effect of clause (b) of
this Section;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is
proved that the Indenture Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Indenture Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with
a direction received by it pursuant to the Indenture;
(iv) the Indenture Trustee shall not be charged with knowledge of
an Event of Default or Servicer Default unless a Responsible Officer
obtains actual knowledge of such event or the Indenture Trustee
receives written notice of such event from the Seller, Servicer or
Note Owners owning 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 Trustee shall have no liability in connection with
compliance of the Issuer, the Trustee, the Seller or the Servicer with
statutory or regulatory requirements related to the Receivables. The
Indenture Trustee shall not make or be deemed to have made any
representations or warranties with respect to the Receivables or the
validity or sufficiency of any assignment of the Receivables to the
Trust Estate or the Indenture Trustee.
(d) Every provision of this Indenture that in any way relates to the
Indenture Trustee is subject to clauses (a), (b), (c) and (g).
(e) The Indenture Trustee shall not be liable for interest on any
money received by it except as the Indenture Trustee may agree in writing
with the Issuer.
(f) Money held in trust by the Indenture Trustee need not be
segregated from other funds except to the extent required by law, this
Indenture or the Sale and Servicing Agreement.
(g) No provision of this Indenture shall require the Indenture
Trustee to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers if it shall have reasonable grounds
to believe that repayments of such funds or adequate indemnity satisfactory
to it against any loss, liability or expense is not reasonably assured to
it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Indenture Trustee
shall be subject to this Section and the TIA.
SECTION 6.2. Rights of Indenture Trustee. (a) The Indenture Trustee
may conclusively rely and shall be fully protected in acting on any document
believed by it to be genuine and to have been signed or presented by the
proper Person. The Indenture Trustee need not investigate any fact or matter
stated in any such document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Indenture
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on the Officers' Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, attorneys, a custodian or a nominee, and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of, or for
the supervision of, any such agent, attorney, custodian or nominee appointed
with due care by it.
(d) The Indenture Trustee shall not be liable for any action it takes
or omits to take in good faith that it believes to be authorized or within
its rights or powers; provided, however, that the Indenture Trustee's
conduct does not constitute wilful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture
and the 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 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 Section 313(a) (if required by said section).
SECTION 6.7. Compensation and Indemnity. The Issuer shall, or shall
cause the Servicer to, pay to the Indenture Trustee from time to time
reasonable compensation for its services. The Indenture Trustee's
compensation shall not be limited by any law on compensation of a trustee of
an express trust. The Issuer shall, or shall cause the Servicer to,
reimburse the Indenture Trustee for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Indenture
Trustee's agents, counsel, accountants and experts. The Issuer shall or
shall cause the Servicer to indemnify the Indenture Trustee and its
officers, directors, employees and agents against any and all loss,
liability or expense (including attorneys' fees) incurred by them in
connection with the administration of this trust and the performance of its
duties hereunder. The Indenture Trustee shall notify the Issuer and the
Servicer promptly of any claim for which it may seek indemnity. Failure by
the Indenture Trustee to so notify the Issuer and the Servicer shall not
relieve the Issuer or the Servicer of its obligations hereunder. The Issuer
shall, or shall cause the Servicer to, defend the claim and the Indenture
Trustee may have separate counsel and the Issuer shall, or shall cause the
Servicer to, pay the fees and expenses of such counsel. Neither the Issuer
nor the Servicer need reimburse any expense or indemnify against any loss,
liability or expense incurred by the Indenture Trustee through the Indenture
Trustee's own willful misconduct, negligence or bad faith.
The Issuer's payment obligations to the Indenture Trustee pursuant to
this Section shall survive the discharge of this Indenture. When the
Indenture Trustee incurs expenses after the occurrence of a Default
specified in Section 5.1(iv) or (v), the expenses are intended to constitute
expenses of administration under Title 11 of the United States Code or any
other applicable Federal or State bankruptcy, insolvency or similar law.
SECTION 6.8. Replacement of the Indenture Trustee. No resignation or
removal of the Indenture Trustee and no appointment of a successor Indenture
Trustee shall become effective until the acceptance of appointment by the
successor Indenture Trustee pursuant to this Section 6.8. The Indenture
Trustee may resign at any time by so notifying the Issuer in writing. The
Holders of not less than a majority of the Outstanding Amount of the 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 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 exercised or performed by the Indenture Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the
Indenture Trustee joining in such act), except to the extent that
under any law of any jurisdiction in which any particular act(s) are
to be performed, the Indenture Trustee shall be incompetent or
unqualified to perform such act(s), in which event such rights,
powers, duties and obligations (including the holding of title to the
Trust Estate or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee,
but solely at the direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove, in its sole discretion, any separate trustee
or co-trustee.
(c) Any notice, request or other writing given to the Indenture
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to this
Agreement and the conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested
with the estates or property specified in its instrument of appointment,
either jointly with the Indenture Trustee or separately, as may be provided
therein, subject to all the provisions of this Indenture, specifically
including every provision of this Indenture relating to the conduct of,
affecting the liability of, or affording protection to, the Indenture
Trustee. Every such instrument shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under
or in respect of this Agreement on its behalf and in its name. If any
separate trustee or co-trustee shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts
shall vest in and be exercised by the Indenture Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
(e) The Indenture Trustee shall have no obligation to determine
whether a co-trustee or separate trustee is legally required in any
jurisdiction in which any part of the Trust Estate may be located.
SECTION 6.11. Eligibility; Disqualification. The Indenture Trustee
shall at all times satisfy the requirements of TIA Section 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
Section 310(b), including the optional provision permitted by the second
sentence of TIA Section 310(b)(9); provided, however, that there shall be
excluded from the operation of TIA Section 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 Section 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
both the Class A Notes and the Class B Notes, a successor Indenture Trustee
shall be appointed for one or both of such Classes, so that there will be
separate Indenture Trustees for the Class A Notes and the Class B Notes. No
such event shall alter the voting rights of the Class A Noteholders or Class
B Noteholders 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 to
receive their share of any proceeds of enforcement, subject to the
subordination of the Class B Notes to the Class A Notes 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.
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 the 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 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 Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). An Indenture Trustee who
has resigned or been removed shall be subject to TIA Section 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 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 Section 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 Section 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 Section
313(c)) such summaries of any information, documents and reports
required to be filed by the Issuer pursuant to clauses (i) and (ii)
as may be required by the rules and regulations prescribed from time
to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of each year.
ARTICLE VIII
Accounts, Disbursements and Releases
SECTION 8.1. Collection of Money. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of,
and shall receive and collect, directly and without intervention or
assistance of any fiscal agent or other intermediary, all money and other
property payable to or receivable by the Indenture Trustee pursuant to this
Indenture. The Indenture Trustee shall apply all such money received by it
as provided in this Indenture. Except as otherwise expressly provided in
this Indenture, if any default occurs in the making of any payment or
performance under any agreement or instrument that is part of the Collateral
and the Trust Estate, the Indenture Trustee may take such action as may be
appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate Proceedings. Any such action
shall be without prejudice to any right to claim a Default or Event of
Default under this Indenture and any right to proceed thereafter as provided
in Article V.
SECTION 8.2. Trust Accounts. (a) On or prior to the Closing Date, the
Issuer shall cause the Servicer to establish and maintain, in the name of
the Indenture Trustee, for the benefit of the 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) accrued and unpaid interest on the A-1 Notes, the A-2 Notes
and the A-3 Notes; provided, that if there are not sufficient funds in
the Note Distribution Account to pay the entire amount of accrued and
unpaid interest then due on such 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 such interest due on
such Notes;
(ii) accrued and unpaid interest on the Class B Notes; provided,
that if there are not sufficient funds in the Note Distribution
Account to pay the entire amount of accrued and unpaid interest then
due on such 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 such interest due on such Notes;
(iii) only to the extent of funds withdrawn from the Pre-Funding
Account and deposited in the Note Distribution Account by the
Indenture Trustee pursuant to Section 5.7(b) of the Sale and Servicing
Agreement: (A) first, to the Holders of A-1 Notes, (B) second, to the
Holders of A-2 Notes, and (C) third, the remainder to the Holders of
A-3 Notes;
(iv) only to the extent of funds deposited in the Note
Distribution Account by the Seller pursuant to Section 2.2(c) and the
last sentence of Section 5.7(b) of the Sale and Servicing Agreement,
to the Holders of each A-1 Note, A-2 Note and A-3 Note, an amount
equal to the Noteholders' Prepayment Premium with respect to that
Class (and if the amount so deposited is insufficient, pro rata in
accordance with the Noteholders' Prepayment Premium owed to each such
Noteholder);
(v) to the Holders of A-1 Notes until the Outstanding Amount of
the A-1 Notes is reduced to zero;
(vi) to the Holders of A-2 Notes until the Outstanding Amount of
the A-2 Notes is reduced to zero;
(vii) to the Holders of A-3 Notes until the Outstanding Amount of
the A-3 Notes is reduced to zero;
(viii) to the Holders of Class B Notes until the Outstanding
Amount of the Class B Notes is reduced to zero; and
(ix) thereafter, any excess shall be deposited to the Certificate
Distribution Account.
SECTION 8.3. General Provisions Regarding Accounts. (a) So long as no
Default or Event of Default shall have occurred and be continuing, all or a
portion of the funds in the Trust Accounts shall be invested in Eligible
Investments and reinvested by the Indenture Trustee upon Issuer Order,
subject to the provisions of Section 5.1(b) of the Sale and Servicing
Agreement. All income or other gain from investments of moneys deposited in
the Trust Accounts shall be deposited by the Indenture Trustee in the
Collection Account, and any loss or expenses resulting from such investments
shall be charged to such account. The Issuer will not direct the Indenture
Trustee to make any investment of any funds or to sell any investment held
in any of the Trust Accounts unless the security interest granted and
perfected in such account will continue to be perfected in such investment
or the proceeds of such sale, in either case without any further action by
any Person, and, in connection with any direction to the Indenture Trustee
to make any such investment or sale, if requested by the Indenture Trustee,
the Issuer shall deliver to the Indenture Trustee an Opinion of Counsel to
such effect.
(b) Subject to Section 6.1(c), the Indenture Trustee shall not in any
way be held liable for the selection of Eligible Investments or by reason of
any insufficiency in any of the Trust Accounts resulting from any loss on
any Eligible Investment included therein, except for losses attributable to
the Indenture Trustee's failure to make payments on such Eligible
Investments issued by the Indenture Trustee, in its commercial capacity as
principal obligor and not as trustee, in accordance with their terms.
(c) If: (i) the Issuer shall have failed to give investment
directions for any funds on deposit in the Trust Accounts to the Indenture
Trustee by 11:00 a.m. (New York City time) (or such other time as may be
agreed by the Issuer and the Indenture Trustee) on any Business Day; or (ii)
a Default or Event of Default shall have occurred and be continuing with
respect to the 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
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;
(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 the
Holders of Notes evidencing not less than a majority of the Outstanding
Amount of the Notes, by Act of such Holders delivered to the Issuer and the
Indenture Trustee, enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of 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 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.
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.
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 A-3 Notes are subject to redemption
in whole, but not in part, at the direction of the Servicer pursuant to
Section 9.1(a) of the Sale and Servicing Agreement, on any Payment Date on
which the Servicer exercises its option to purchase the Trust Estate
pursuant to said Section 9.1(a), for a purchase price equal to the
Redemption Price; provided, however, that the Issuer has available funds
sufficient to pay the Redemption Price. The Servicer or the Issuer shall
furnish the Rating Agencies notice of such redemption. If such 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) In the event that the assets of the Trust are sold pursuant to
Section 9.2 of the Trust Agreement, all amounts on deposit in the Note
Distribution Account shall be paid to the Noteholders up to the Outstanding
Amount and all accrued and unpaid interest thereon. If amounts are to be
paid to Noteholders pursuant to this Section 10.1(b), the Servicer or the
Issuer shall, to the extent practicable, furnish notice of such event to the
Indenture Trustee not later than 25 days prior to the Redemption Date
whereupon all such amounts shall be payable on the Redemption Date.
(c) If the Pre-Funded Amount has not been reduced to zero on the
Payment Date on which the Funding Period ends (or, if the Funding Period
does not end on a Payment Date, on the first Payment Date following the end
of the Funding Period), after giving effect to any reductions in the
Pre-Funded Amount on such Payment Date or Determination Date pursuant to
Section 5.7(a) of the Sale and Servicing Agreement, the Notes will be
redeemed in part as described in Section 8.2(c)(ii) in a principal amount
described therein.
If the aggregate principal amount of Notes, if any, to be redeemed
pursuant to this clause exceeds $100,000, the Indenture Trustee shall
distribute to the Noteholders of each Class the Noteholders' Prepayment
Premium for that Class; provided, however, that, notwithstanding anything to
the contrary contained in Section 8.2(c)(iii) or elsewhere in this Indenture
or the Notes, the Issuer's obligation to pay the Noteholders' Prepayment
Premium shall be limited solely to funds that are deposited by the Seller in
the Note Distribution Account pursuant to Section 2.2(c) and the last
sentence of Section 5.7(b) of the Sale and Servicing Agreement as liquidated
damages for the failure of the Seller to deliver Subsequent Receivables, and
no other assets of the Issuer will be available to pay the Noteholders'
Prepayment Premium under any circumstances.
SECTION 10.2. Form of Redemption Notice. (a) Notice of redemption
under Section 10.1(a) shall be given by the Indenture Trustee by first-class
mail, postage prepaid, mailed not less than five days prior to the
applicable Redemption Date to each Holder of 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.
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.
(b) Prior notice of redemption under Section 10.1(b) is not required
to be given to Noteholders.
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.
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.
(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 ________ 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 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 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-A, in care of Chase Manhattan Bank Delaware,
1201 North Market Street, Wilmington, Delaware 19801, Attention:
Corporate Trust Administration Department; with copies to The Chase
Manhattan Bank, N.A., 4 Chase MetroTech Center, Brooklyn, New York
11245, Attention: Institutional Trust Group - Third Floor, and to Case
Credit Corporation, as Administrator, 233 Lake Avenue, Racine,
Wisconsin 53403, Attention: 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 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.
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
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 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.
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-A;
By: CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but solely as Trustee
By: /s/ John Cashin
Name: John Cashin
Title: Senior Trust Officer
HARRIS TRUST AND SAVINGS BANK,
not in its individual capacity but solely
as Indenture Trustee
By: /s/ Keith Richardson
Name: Keith Richardson
Title: Assistant Vice President
<PAGE>
EXHIBIT A-1
to Indenture
FORM OF A-1 NOTES
REGISTERED $____________<F1>
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.
<F1> Denominations of $1,000 and integral multiples of $1,000 in excess
thereof.</F1>
CASE EQUIPMENT LOAN TRUST 1997-A
_____% CLASS A-1 ASSET BACKED NOTES
Case Equipment Loan Trust 1997-A, a trust organized and existing under
the laws of the State of Delaware (including any successor, the "Issuer"),
for value received, hereby promises to pay to CEDE & CO., or registered
assigns, the principal sum of __________________ DOLLARS ($___________),
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 the __________ 1998 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 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-A
By: CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but solely as Trustee
under the Trust Agreement
By: __________________________________
Name: ___________________________
Title: ___________________________
<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
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its _____% Class A-1 Asset Backed Notes (herein called the
"A-1 Notes" or the "Notes"), all issued under an Indenture dated as of March
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 and the A-3 Notes are and will be equally and
ratably secured by the collateral pledged as security therefor as provided
in the Indenture.
The Issuer shall pay interest on overdue installments of interest at
the A-1 Note Rate to the extent lawful.
Each 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 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.
<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.
<PAGE>
EXHIBIT A-2
to Indenture
FORM OF A-2 NOTES
REGISTERED $____________<F2>
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.
<F2> Denominations of $1,000 and integral multiples of $1,000 in excess
thereof.</F2>
CASE EQUIPMENT LOAN TRUST 1997-A
_____% CLASS A-2 ASSET BACKED NOTES
Case Equipment Loan Trust 1997-A, a trust organized and existing under
the laws of the State of Delaware (including any successor, the "Issuer"),
for value received, hereby promises to pay to CEDE & CO., or registered
assigns, the principal sum of __________________ DOLLARS ($___________),
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 ________ 200___
Payment Date and the Redemption Date, if any, pursuant to 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 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-A
By: CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but solely as Trustee
under the Trust Agreement
By: _________________________________
Name: ___________________________
Title: ___________________________
<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
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its _____% Class A-2 Asset Backed Notes (herein called the
"A-2 Notes" or the "Notes"), all issued under an Indenture dated as of March
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 and the A-3 Notes are and will be equally and
ratably secured by the collateral pledged as security therefor as provided
in the Indenture.
The Issuer shall pay interest on overdue installments of interest at
the A-2 Note Rate to the extent lawful.
Each 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 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.
<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.
<PAGE>
EXHIBIT A-3
to Indenture
FORM OF A-3 NOTES
REGISTERED $____________<F3>
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.
<F3> Denominations of $1,000 and integral multiples of $1,000 in excess
thereof.</F3>
CASE EQUIPMENT LOAN TRUST 1997-A
_____% CLASS A-3 ASSET BACKED NOTES
Case Equipment Loan Trust 1997-A, a trust organized and existing under
the laws of the State of Delaware (including any successor, the "Issuer"),
for value received, hereby promises to pay to CEDE & CO., or registered
assigns, the principal sum of __________________ DOLLARS ($___________),
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 ________ 200___
Payment Date and the Redemption Date, if any, pursuant to 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-A
By: CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but solely as Trustee
under the Trust Agreement
By: ______________________________
Name: _________________________
Title: ________________________
<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
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its _____% Class A-3 Asset Backed Notes (herein called the
"A-3 Notes" or the "Notes"), all issued under an Indenture dated as of March
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 and the A-2 Notes are and will be equally and
ratably secured by the collateral pledged as security therefor as provided
in the Indenture.
The Issuer shall pay interest on overdue installments of interest at
the A-3 Note Rate to the extent lawful.
Each 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 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.
<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.
<PAGE>
EXHIBIT A-4
to Indenture
FORM OF CLASS B NOTES
REGISTERED $____________<F4>
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.
<F4> Denominations of $1,000 and integral multiples of $1,000 in excess
thereof.</F4>
CASE EQUIPMENT LOAN TRUST 1997-A
_____% CLASS B ASSET BACKED NOTES
Case Equipment Loan Trust 1997-A, a trust organized and existing under
the laws of the State of Delaware (including any successor, the "Issuer"),
for value received, hereby promises to pay to CEDE & CO., or registered
assigns, the principal sum of __________________ DOLLARS ($___________),
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 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 ________ 200___ Payment Date
and the Redemption Date, if any, pursuant to 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-A
By: CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but solely as Trustee
under the Trust Agreement
By: _________________________________
Name: ____________________________
Title: ___________________________
<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
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its _____% Class B Asset Backed Notes (herein called the
"Class B Notes" or the "Notes"), all issued under an Indenture dated as of
March 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 Class B 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 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.
<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.
<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 March 1, 1997
(the "Indenture"), between Case Equipment Loan Trust 1997-A (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-A
By: ___________________________
Name: _______________________
Title: ______________________
By: ___________________________
Name: _______________________
Title: ______________________
<PAGE>
<PAGE>
CASE EQUIPMENT LOAN TRUST 1997-A
TRUST AGREEMENT
between
CASE RECEIVABLES II INC.
and
CHASE MANHATTAN BANK DELAWARE,
as Trustee
Dated as of March 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
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....................14
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
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................25
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.......................28
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.....................................30
SECTION 11.6. Separate Counterparts............................30
SECTION 11.7. Successors and Assigns...........................30
SECTION 11.8. Covenants of the Depositor.......................30
SECTION 11.9. No Petition......................................31
SECTION 11.10. No Recourse.....................................31
SECTION 11.11. Headings........................................31
SECTION 11.12. Governing Law...................................31
SECTION 11.13. Administrator...................................31
<PAGE>
EXHIBITS
EXHIBIT A Form of Trust Certificate
EXHIBIT B Form of Certificate of Trust
<PAGE>
TRUST AGREEMENT dated as of March 1, 1997, between CASE RECEIVABLES II
INC., a Delaware corporation, as Depositor, and CHASE MANHATTAN BANK
DELAWARE, a Delaware banking corporation, as Trustee.
ARTICLE I.
Definitions
SECTION A. Capitalized Terms. For all purposes of this Agreement, the
following terms shall have the meanings set forth below:
"Agreement" shall mean this Trust Agreement, as the same may be
amended and supplemented from time to time.
"Basic Documents" shall mean the Purchase Agreement, the Sale and
Servicing Agreement, the Indenture, the Administration Agreement, the
Depository Agreement and the other documents and certificates delivered in
connection therewith.
"Benefit Plan" shall have the meaning assigned to such term in Section
3.4.
"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 and the registrar appointed pursuant to Section 3.4.
"Corporate Trust Office" shall mean, with respect to the Trustee, the
principal corporate trust office of the Trustee located at 1201 North Market
Street, Wilmington, Delaware 19801, Attention: Corporate Trust Department;
or at such other address as the Trustee may designate from time to time by
notice to the Certificateholders and the Depositor, or the principal
corporate trust office of any successor Trustee (the address of which the
successor Trustee will notify the Certificateholders and the Depositor).
"Depositor" shall mean the Seller in its capacity as Depositor
hereunder.
"Expenses" shall have the meaning assigned to such term in Section
8.2.
"Holder" shall mean a Certificateholder.
"Indemnified Parties" shall have the meaning assigned to such term in
Section 8.2.
"Initial Certificate Balance" shall mean the amount specified as the
Initial Certificate Balance in a letter of instruction from the Depositor to
the Trustee.
"Paying Agent" shall mean any paying agent or co-paying agent
appointed pursuant to Section 3.9, and shall initially be The Chase
Manhattan Bank.
"Record Date" shall mean, with respect to any Payment Date, the close
of business on the 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 Chase Manhattan Bank Delaware, a Delaware banking
corporation, not in its individual capacity but solely as trustee under this
Agreement, and any successor Trustee hereunder.
"Trust Estate" shall mean all right, title and interest of the Trust
in and to the property and rights assigned to the Trust pursuant to Article
II of the Sale and Servicing Agreement, all funds on deposit from time to
time in the Trust Accounts and the Certificate Distribution Account and all
other property of the Trust from time to time, including any rights of the
Trustee and the Trust pursuant to the Sale and Servicing Agreement and the
Administration Agreement.
"Trust Statute" shall mean Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as the same may be amended from time
to time.
SECTION B. Other Definitional Provisions. (a) Capitalized terms used
herein and not otherwise defined have the meanings assigned to them in the
Sale and Servicing Agreement or, if not defined therein, in the Indenture.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate
or other document to the extent not defined, shall have the respective
meanings given to them under generally accepted accounting principles in
effect on the date hereof. To the extent that the definitions of accounting
terms in this Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under generally accepted
accounting principles, the definitions contained in this Agreement or in any
such certificate or other document shall control.
(d) The words "hereof", "herein", "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and
Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including without limitation".
(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
ARTICLE II.
Organization
SECTION A. Name. The Trust created hereby shall be known as "Case
Equipment Loan Trust 1997-A", 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 B. 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 C. 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.
SECTION D. 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 E. 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 F. 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
other than the Seller, the Trust will be disregarded as an entity separate
from its Owner and the Notes being debt of the Seller. 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, until the Certificates
are held by more than one person the Trust will not file or cause to be
filed annual or other necessary returns, reports and other forms consistent
with the characterization of the Trust as an entity not separate from its
Owner. 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 G. Liability of the Certificateholders. (a) No
Certificateholder shall have any personal liability for any liability or
obligation of the Trust.
SECTION H. Title to Trust Property. Legal title to all the Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part
of the Trust Estate to be vested in a trustee or trustees, in which case
title shall be deemed to be vested in the Trustee, a co-trustee and/or a
separate trustee, as the case may be.
SECTION I. Situs of Trust. The Trust will be located and administered
in the State of Delaware. All bank accounts maintained by the Trustee on
behalf of the Trust shall be located in the State of Delaware or the State
of New York. The Trust shall not have any employees in any state other than
Delaware; provided, however, that nothing herein shall restrict or prohibit
the Trustee from having employees within or without the State of Delaware.
Payments will be received by the Trust only in Delaware or New York, and
payments will be made by the Trust only from Delaware or New York.
SECTION J. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Trustee that:
(a) The Depositor is duly organized and validly existing as a
corporation in good standing under the laws of the State of Delaware,
with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is
presently conducted.
(b) The Depositor is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease of
property or the conduct of its business shall require such
qualifications.
(c) The Depositor has the power and authority to execute and
deliver this Agreement and to carry out its terms; the Depositor has
full power and authority to sell and assign the property to be sold
and assigned to and deposited with the Trust and the Depositor shall
have duly authorized such sale and assignment and deposit to the Trust
by all necessary corporate action; and the execution, delivery and
performance of this Agreement have been duly authorized by the
Depositor by all necessary corporate action.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under,
the certificate of incorporation or by-laws of the Depositor, or any
indenture, agreement or other instrument to which the Depositor is a
party or by which it is bound; or result in the creation or imposition
of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement or other instrument (other than pursuant to
the Basic Documents); or violate any law or, to the best of the
Depositor's knowledge, any order, rule or regulation applicable to the
Depositor of any court or of any Federal or State regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties.
SECTION K. 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 their initial
aggregate issue price, (ii) Certificateholders' Prepayment Premium, if
any, payable for such month and (iii) any other amounts of income
payable to the Certificateholders for such month; and such sum of
amounts specified in clauses (i) through (iii) of this sentence shall
be reduced by any amortization by the Trust of premium on Receivables
that corresponds to any excess of the issue price of Trust
Certificates over their principal amount; and
(b) to the Depositor, and other holders of interests in the
Spread Account, to the extent of any remaining net income, in
accordance with their respective interests therein.
If the net income of the Trust for any month is insufficient for the
allocations described in clause (a), subsequent net income shall first be
allocated to make up such shortfall before being allocated as provided in
the preceding sentence. Net losses of the Trust, if any, for any month as
determined for Federal income tax purposes (and each item of income, gain,
loss and deduction entering into the computation thereof) shall be allocated
to the Depositor (or other holders of interests in the Spread Account) to
the extent the Depositor (or such holders) are reasonably expected to bear
the economic burden of such net losses, and any remaining net losses shall
be allocated among the remaining Certificateholders as of the close of
business on the last day of such month in proportion to their ownership of
principal amount of Trust Certificates on such day. The Depositor is
authorized to modify the allocations in this paragraph if necessary or
appropriate, in its sole discretion, for the allocations to fairly reflect
the economic income, gain or loss to the Depositor (or other holders of
interests in the Spread Account) or to the Certificateholders, or as
otherwise required by the Code. Notwithstanding anything provided in this
Section 2.11, if the Certificates are held solely by the Seller, the
application of this Section 2.11 shall be disregarded.
ARTICLE III.
Trust Certificates and Transfer of Interests
SECTION A. 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 B. 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 did not hold such offices at the date of authentication and
delivery of such Trust Certificates.
SECTION C. Authentication of Trust Certificates. Concurrently with
the sale of the Receivables to the Trust pursuant to the Sale and Servicing
Agreement, the Trustee shall cause the Trust Certificates in an aggregate
principal amount equal to the Initial Certificate Balance to be executed on
behalf of the Trust, authenticated and delivered to or upon the written
order of the Depositor, signed by its chairman of the board, its president
or any vice president, without further corporate action by the Depositor, in
authorized denominations. No Trust Certificate shall entitle its Holder to
any benefit under this Agreement, or shall be valid for any purpose, unless
there shall appear on such Trust Certificate a certificate of authentication
substantially in the form set forth in Exhibit A, executed by the Trustee or
The Chase Manhattan Bank, as the Trustee's authenticating agent, by the
manual signature of one of its authorized signatories; such certificate of
authentication shall constitute conclusive evidence, and the only evidence,
that such Trust Certificate shall have been duly authenticated and delivered
hereunder. All Trust Certificates shall be dated the date of their
authentication. No further Trust Certificates shall be issued except
pursuant to Section 3.4, 3.5, 3.10 or 3.13 hereunder.
SECTION D. Registration of Transfer and Exchange of Trust
Certificates. The Trust shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 3.8, a register (the "Certificate
Register") in which, subject to such reasonable regulations as it may
prescribe, the Issuer shall provide for the registration of Trust
Certificates and of transfers and exchanges of Trust Certificates. The
Paying Agent shall be the "Certificate Registrar" for the purpose of
registering Trust Certificates and the transfers of Trust Certificates as
herein provided. Upon any resignation of any Certificate Registrar, the
Depositor shall promptly appoint a successor or, if it elects not to make
such an appointment, assume the duties of the Certificate Registrar.
Upon surrender for registration of transfer of any Trust Certificate
at the office or agency maintained pursuant to Section 3.8, if the
requirements of Section 8-401(l) of the UCC are met, the Trustee shall
execute, authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Trust Certificates in authorized
denominations of a like aggregate principal amount.
At the option of a Holder, Trust Certificates may be exchanged for
other Trust Certificates of authorized denominations, of a like aggregate
principal amount, upon surrender of the Trust Certificates to be exchanged
at the office or agency maintained pursuant to Section 3.8. Whenever any
Trust Certificates are so surrendered for exchange, if the requirements of
Section 8-401(l) of the UCC are met, the Trustee shall execute, authenticate
and deliver the Trust Certificates that the Certificateholder making the
exchange is entitled to receive.
All Trust Certificates issued upon any registration of transfer or
exchange of Trust Certificates shall be entitled to the same benefits under
this Agreement as the Trust Certificates surrendered upon such registration
of transfer or exchange.
Every Trust Certificate presented or surrendered for registration of
transfer or exchange shall be duly endorsed by, or be accompanied by a
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by, the Holder thereof or his attorney
duly authorized in writing. 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 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.
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 E. Mutilated, Destroyed, Lost or Stolen Trust Certificates.
If: (a) any mutilated Trust Certificate shall be surrendered to the
Certificate Registrar, or if the Certificate Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Certificate (provided, that the Trustee shall not be required to verify the
evidence provided to it), and (b) there shall be delivered to the
Certificate Registrar and the Trustee such security or indemnity as may be
required by them to hold each of them harmless, then, in the absence of
notice that such Trust Certificate shall have been acquired by a bona fide
purchaser, and provided that the requirements of Section 8-405 of the UCC
are met, the Trustee on behalf of the Trust shall execute, authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Trust Certificate, a replacement Trust Certificate of like tenor
and denomination.
In connection with the issuance of any replacement Trust Certificate
under this Section, the Trustee and the Certificate Registrar may require
the payment by the Certificateholder of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection therewith.
Any replacement Trust Certificate issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Trust Certificate
shall constitute conclusive evidence of ownership in the Trust, as if
originally issued, whether or not the mutilated, lost, stolen or destroyed
Trust Certificate shall be found at any time, and shall be entitled to all
the benefits of this Agreement.
SECTION F. Persons Deemed Certificateholders. Prior to due
presentation of a Trust Certificate for registration of transfer of any
Trust Certificate, the Trustee or the Certificate Registrar may treat the
Person in whose name any Trust Certificate shall be registered in the
Certificate Register (as of the day of determination) as the owner of such
Trust Certificate for the purpose of receiving distributions pursuant to
Section 5.2 and for all other purposes whatsoever, and neither the Trustee
nor the Certificate Registrar shall be bound by any notice to the contrary.
SECTION G. Access to List of Certificateholders' Names and Addresses.
The Trustee shall furnish or cause to be furnished to the Servicer and the
Depositor, within 15 days after receipt by the Trustee of a request therefor
from the Servicer or the Depositor in writing, a list, in such form as the
Servicer or the Depositor may reasonably require, of the names and addresses
of the Certificateholders as of the most recent Record Date. If three or
more Certificateholders or one or more Holder(s) of Trust Certificates
evidencing not less than 25% of the Certificate Balance apply in writing to
the Trustee, and such application states that the applicants desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Trust Certificates and such application shall be
accompanied by a copy of the communication that such applicants propose to
transmit, then the Trustee shall, within five Business Days after the
receipt of such application, afford such applicants access during normal
business hours to the current list of Certificateholders. Each Holder, by
receiving and holding a Trust Certificate, shall be deemed to have agreed
not to hold any of the Depositor, the Certificate Registrar or the Trustee
accountable by reason of the disclosure of its name and address, regardless
of the source from which such information was derived.
SECTION H. Maintenance of Office or Agency. The Trustee shall
maintain in the Borough of Manhattan, City of New York an office or offices
or agency or agencies where Trust Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or
upon the Trustee in respect of the Trust Certificates and the Basic
Documents may be served. The Trustee initially designated The Chase
Manhattan Bank, 450 West 33rd Street, 15th Floor, New York, New York 10001,
Attention: Structured Finance Services (ABS) as its principal corporate
trust office for such purposes. The Trustee shall give prompt written notice
to the Depositor and to the Certificateholders of any change in the location
of the Certificate Register or any such office or agency.
SECTION I. Appointment of Paying Agent. The Paying Agent shall make
distributions to Certificateholders from the Certificate Distribution
Account pursuant to Section 5.2 and shall report the amounts of such
distributions to the Trustee. Any Paying Agent shall have the revocable
power to withdraw funds from the Certificate Distribution Account for the
purpose of making the distributions referred to above. The Trustee may
revoke such power and remove the Paying Agent if the Trustee determines in
its sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. The Paying Agent
shall initially be The Chase Manhattan Bank, and any co-paying agent chosen
by and acceptable to the Trustee. The Paying Agent shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Trustee. In the
event that the Trustee shall not be the Paying Agent, the Trustee shall
appoint a successor to act as Paying Agent (which shall be a bank or trust
company). The Trustee shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Trustee to execute and deliver to
the Trustee an instrument in which such successor Paying Agent or additional
Paying Agent shall agree with the Trustee that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all sums, if
any, held by it for payment to the Certificateholders in trust for the
benefit of the Certificateholders entitled thereto until such sums shall be
paid to such Certificateholders. The Paying Agent shall return all unclaimed
funds to the Trustee and upon removal of a Paying Agent such Paying Agent
shall also return all funds in its possession to the Trustee. The provisions
of Sections 7.1, 7.3, 7.4 and 8.1 shall apply to the Trustee also in its
role as Paying Agent, for so long as the Trustee shall act as Paying Agent
and, to the extent applicable, to any other paying agent appointed
hereunder. Any reference in this Agreement to the Paying Agent shall include
any co-paying agent unless the context requires otherwise.
ARTICLE IV.
Actions by Trustee
SECTION A. 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
(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 or Indenture Trustee or
Certificate Registrar of its obligations under the Indenture or this
Agreement, as applicable.
SECTION B. 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 C. 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 D. 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 E. 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 A. Establishment of Trust Account. The Trustee, for the
benefit of the Certificateholders, shall establish and maintain in the name
of the Trust an Eligible Deposit Account (the "Certificate Distribution
Account"), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Certificateholders.
The Trust shall possess all right, title and interest in all funds on
deposit from time to time in the Certificate Distribution Account and in all
proceeds thereof. Except as otherwise expressly provided herein, the
Certificate Distribution Account shall be under the sole dominion and
control of the Trustee for the benefit of the Certificateholders. If, at any
time, the Certificate Distribution Account ceases to be an Eligible Deposit
Account, the Trustee (or the Depositor on behalf of the Trustee, if the
Certificate Distribution Account is not then held by the Trustee or an
affiliate thereof) shall, within 10 Business Days (or such longer period,
not to exceed 30 calendar days, as to which the Rating Agency Condition
shall be satisfied), establish a new Certificate Distribution Account as an
Eligible Deposit Account and shall transfer any cash and/or any investments
to such new Certificate Distribution Account.
SECTION B. Applications of Trust Funds. (a) On each Payment Date, the
Trustee will distribute to Certificateholders, on a pro rata basis, amounts
deposited in the Certificate Distribution Account pursuant to Sections 5.5,
5.6 and 5.7 of the Sale and Servicing Agreement.
(b) On each Payment Date, the Trustee shall send to each
Certificateholder the statement provided to the Trustee by the Servicer
pursuant to Section 5.10 of the Sale and Servicing Agreement.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to a Certificateholder, such tax shall
reduce the amount otherwise distributable to the Certificateholder in
accordance with this Section. The Trustee is hereby authorized and directed
to retain from amounts otherwise distributable to the Certificateholders
sufficient funds for the payment of any tax that is legally owed by the
Trust (but such authorization shall not prevent the Trustee from contesting
any such tax in appropriate proceedings, and withholding payment of such
tax, if permitted by law, pending the outcome of such proceedings). The
amount of any withholding tax imposed with respect to a Certificateholder
shall be treated as cash distributed to such Certificateholder at the time
it is withheld by the Trust. If there is a possibility that withholding tax
is payable with respect to a distribution (such as a distribution to a
non-U.S. Certificateholder), the Trustee may, in its sole discretion,
withhold such amounts in accordance with this paragraph (c). In the event
that a Certificateholder wishes to apply for a refund of any such
withholding tax, the Trustee shall reasonably cooperate with such
Certificateholder in making such claim so long as such Certificateholder
agrees to reimburse the Trustee for any out-of-pocket expenses incurred.
SECTION C. Method of Payment. Subject to Section 9.1(c),
distributions required to be made to Certificateholders on any Payment Date
shall be made to each Certificateholder of record on the preceding Record
Date either by wire transfer, in immediately available funds, to the account
of such Holder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided to the Certificate
Registrar appropriate written instructions at least five Business Days prior
to such Payment Date and such Holder's Trust Certificates aggregate not less
than $1,000,000, or, if not, by check mailed to such Certificateholder at
the address of such Holder appearing in the Certificate Register.
SECTION D. 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 E. Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue Service and Others. The Trustee
shall: (a) maintain (or cause to be maintained) the books of the Trust on a
calendar year basis on the accrual method of accounting, (b) deliver to each
Certificateholder, as may be required by the Code and applicable Treasury
Regulations, such information as may be required (including Schedule K-1) to
enable each Certificateholder to prepare its Federal, State and local income
tax returns, (c) file such tax returns relating to the Trust (including a
partnership information return on Internal Revenue Service Form 1065 or its
successor), and make such elections as may from time to time be required or
appropriate under any applicable State or Federal statute or rule or
regulation thereunder so as to maintain the Trust's characterization as a
partnership for Federal income tax purposes, (d) cause such tax returns to
be signed in the manner required by law and (e) collect or cause to be
collected any withholding tax as described in and in accordance with Section
5.2(c) with respect to income or distributions to Certificateholders. The
Trustee shall elect under Section 1278 of the Code to include in income
currently any market discount that accrues with respect to the Receivables
and shall elect under Section 171 of the Code to amortize any bond premium
with respect to the Receivables. The Trustee shall not make the election
provided under Section 754 of the Code.
SECTION F. Signature on Returns; Tax Matters Partner. (a) The Trustee
shall sign on behalf of the Trust the tax returns of the Trust, unless
applicable law requires a Certificateholder to sign such documents, in which
case such documents shall be signed by the Depositor.
(b) The Depositor shall be designated the "tax matters partner" of
the Trust pursuant to Section 6231(a)(7)(A) of the Code and applicable
Treasury Regulations.
ARTICLE VI.
Authority and Duties of Trustee
SECTION A. 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 B. 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 C. Action upon Instruction. (a) Subject to Article IV and in
accordance with the Basic Documents, the Certificateholders may by written
instruction direct the Trustee in the management of the Trust. Such
direction may be exercised at any time by written instruction of the
Certificateholders pursuant to Article IV.
(b) The Trustee shall not be required to take any action hereunder or
under any Basic Document if the Trustee shall have reasonably determined, or
shall have been advised by counsel, that such action is likely to result in
liability on the part of the Trustee or is contrary to the terms hereof or
of any Basic Document or is otherwise contrary to law.
(c) Whenever the Trustee is unable to decide between alternative
courses of action permitted or required by this Agreement or any Basic
Document, the Trustee shall promptly give notice (in such form as shall be
appropriate under the circumstances) to the Certificateholders requesting
instruction as to the course of action to be adopted, and to the extent the
Trustee acts in good faith in accordance with any written instruction of the
Certificateholders received, the Trustee shall not be liable on account of
such action to any Person. If the Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may
be necessary under the circumstances) it may, but shall be under no duty to,
take or refrain from taking such action, not inconsistent with this
Agreement or the Basic Documents, as it shall deem to be in the best
interests of the Certificateholders, and shall have no liability to any
Person for such action or inaction.
(d) In the event that the Trustee is unsure as to the application of
any provision of this Agreement or any Basic Document or any such provision
is ambiguous as to its application, or is, or appears to be, in conflict
with any other applicable provision, or in the event that this Agreement
permits any determination by the Trustee or is silent or is incomplete as to
the course of action that the Trustee is required to take with respect to a
particular set of facts, the Trustee may give notice (in such form as shall
be appropriate under the circumstances) to the Certificateholders requesting
instruction and, to the extent that the Trustee acts or refrains from acting
in good faith in accordance with any such instruction received, the Trustee
shall not be liable, on account of such action or inaction, to any Person.
If the Trustee shall not have received appropriate instruction within 10
days of such notice (or within such shorter period of time as reasonably may
be specified in such notice or may be necessary under the circumstances) it
may, but shall be under no duty to, take or refrain from taking such action,
not inconsistent with this Agreement or the Basic Documents, as it shall
deem to be in the best interests of the Certificateholders, and shall have
no liability to any Person for such action or inaction.
SECTION D. No Duties Except as Specified in this Agreement or in
Instructions. The Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of or
otherwise deal with the Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated
hereby to which the Trustee is a party, except as expressly provided by this
Agreement or in any document or written instruction received by the Trustee
pursuant to Section 6.3; and no implied duties or obligations shall be read
into this Agreement or any Basic Document against the Trustee. The Trustee
shall have no responsibility for filing any financing or continuation
statement in any public office at any time or to otherwise perfect or
maintain the perfection of any security interest or Lien granted to it
hereunder or to prepare or file any Securities and Exchange Commission
filing for the Trust or to record this Agreement or any Basic Document. The
Trustee nevertheless agrees that it will, at its own cost and expense,
promptly take all action as may be necessary to discharge any Liens on any
part of the Trust Estate that result from actions by, or claims against, the
Trustee that are not related to the ownership or the administration of the
Trust Estate.
SECTION E. 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 F. 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 A. Acceptance of Trusts and Duties. The Trustee accepts the
trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts but only upon the terms of this Agreement. The
Trustee also agrees to disburse all moneys actually received by it
constituting part of the Trust Estate upon the terms of the Basic Documents
and this Agreement. The Trustee shall not be answerable or accountable
hereunder or under any Basic Document under any circumstances, except: (i)
for its own willful misconduct or negligence or (ii) in the case of the
inaccuracy of any representation or warranty contained in Section 7.3
expressly made by the Trustee. In particular, but not by way of limitation
(and subject to the exceptions set forth in the preceding sentence):
(a) the Trustee shall not be liable for any error of judgment
made in good faith by a responsible officer of the Trustee unless it
is proved that the Trustee was negligent in ascertaining the pertinent
facts;
(b) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions
of the Administrator, the Servicer or any Certificateholder;
(c) no provision of this Agreement or any Basic Document shall
require the Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers
hereunder or under any Basic Document, if the Trustee shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured or provided to it;
(d) under no circumstances shall the Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the 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.
SECTION B. 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 C. Representations and Warranties. The Trustee hereby
represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) it is a banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware,
with the requisite corporate power and authority to execute, deliver
and perform its obligations under this Agreement,
(b) it has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement
will be executed and delivered by one of its officers who is duly
authorized to execute and deliver this Agreement on its behalf, and
(c) the consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under,
the certificate of incorporation or by-laws of the Trustee, or any
indenture, agreement or other instrument to which the Trustee is a
party or by which it is bound; or violate any Federal or Delaware law
governing the banking or trust powers of the Trustee; or, to the best
of the Trustee's knowledge, violate any order, rule or regulation
applicable to the Trustee of any court or of any Federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Trustee or its
properties.
SECTION D. Reliance; Advice of Counsel. (a) The Trustee shall incur
no liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or
other document or paper believed by it to be genuine and believed by it to
be signed by the proper party or parties. The Trustee may accept a certified
copy of a resolution of the board of directors or other governing body of
any party as conclusive evidence that such resolution has been duly adopted
by such body and that the same is in full force and effect. As to any fact
or matter the method of the determination of which is not specifically
prescribed herein, the Trustee may for all purposes hereof rely on a
certificate, signed by the president, any vice president, the treasurer or
other authorized officers of the relevant party as to such fact or matter,
and such certificate shall constitute full protection to the Trustee for any
action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the
Basic Documents, the Trustee: (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the
Trustee with reasonable care, and (ii) may consult with counsel, accountants
and other skilled Persons to be selected with reasonable care and employed
by it. The Trustee shall not be liable for anything done, suffered or
omitted in good faith by it in accordance with the written opinion or advice
of any such counsel, accountants or other such Persons and which opinion or
advice states that such action is not contrary to this Agreement or any
Basic Document.
SECTION E. Not Acting in Individual Capacity. Except as provided in
this Article VII, in accepting the trusts hereby created Chase Manhattan
Bank Delaware acts solely as Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Trustee by reason of
the transactions contemplated by this Agreement or any Basic Document shall
look only to the Trust Estate for payment or satisfaction thereof.
SECTION F. Trustee Not Liable for Trust Certificates or Receivables.
The recitals contained herein and in the Certificates (other than the
signature and counter-signature of the Trustee on the Trust Certificates)
shall be taken as the statements of the Depositor, and the Trustee assumes
no responsibility for the correctness thereof. The Trustee makes no
representations as to the validity or sufficiency of this Agreement, of any
Basic Document, of the Trust Certificates (other than the signature and
countersignature, if any, of the Trustee on the Trust Certificates) or of
the 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 Administrator, the Indenture
Trustee or the Servicer or any subservicer taken in the name of the Trustee.
SECTION G. 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 A. Trustee's Fees and Expenses. The Trustee shall receive as
compensation for its services hereunder such fees as have been separately
agreed upon before the date hereof between the Depositor and the Trustee,
and the Trustee shall be entitled to be reimbursed by the Depositor for its
other reasonable expenses hereunder, including the reasonable compensation,
expenses and disbursements of such agents, representatives, experts and
counsel as the Trustee may employ in connection with the exercise and
performance of its rights and its duties hereunder.
SECTION B. Indemnification. The Depositor shall be liable as primary
obligor for, and shall indemnify the Trustee and its successors, assigns,
agents and servants (collectively, the "Indemnified Parties") from and
against, any and all liabilities, obligations, losses, damages, taxes,
claims, actions and suits, and any and all reasonable costs, expenses and
disbursements (including reasonable legal fees and expenses) of any kind and
nature whatsoever (collectively, "Expenses"), which may at any time be
imposed on, incurred by or asserted against the Trustee or any other
Indemnified Party in any way relating to or arising out of this Agreement,
the Basic Documents, the Trust Estate, the administration of the Trust
Estate or the action or inaction of the Trustee hereunder, except only that
the Depositor shall not be liable for or required to indemnify an
Indemnified Party from and against Expenses arising or resulting from: (a)
such Indemnified Party's willful misconduct or negligence or (b) with
respect to the Trustee, the inaccuracy of any representation or warranty
contained in Section 7.3 expressly made by the Trustee. The indemnities
contained in this Section shall survive the resignation or termination of
the Trustee or the termination of this Agreement. In any event of any claim,
action or proceeding for which indemnity will be sought pursuant to this
Section, the Trustee's choice of legal counsel shall be subject to the
approval of the Depositor, which approval shall not be unreasonably
withheld.
SECTION C. Payments to the Trustee. Any amounts paid to the Trustee
pursuant to this Article VIII shall be deemed not to be a part of the Trust
Estate immediately after such payment. The Trustee shall also be entitled to
interest on all advances at a rate equal to: (a) the rate publicly announced
by The Chase Manhattan Bank, as its prime rate from time to time plus (b)
3.5%.
ARTICLE IX.
Termination of Trust Agreement
SECTION A. 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 nor
any Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment
Date upon which the Certificateholders shall surrender their Trust
Certificates to the Paying Agent for payment of the final distribution and
cancellation, shall be given promptly by the Trustee by letter to
Certificateholders mailed within five Business Days of receipt of notice of
such termination from the Servicer given pursuant to Section 9.1(c) of the
Sale and Servicing Agreement stating: (i) the Payment Date upon which final
payment of the Trust Certificates shall be made upon presentation and
surrender of the Trust Certificates at the office of the Paying Agent
therein designated, (ii) the amount of any such final payment and (iii) that
the Record Date otherwise applicable to such Payment Date is not applicable,
payments being made only upon presentation and surrender of the Trust
Certificates at the office of the Paying Agent therein specified. The
Trustee shall give such notice to the Certificate Registrar (if other than
the Trustee) and the Paying Agent at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Trust
Certificates, the Paying Agent shall cause to be distributed to
Certificateholders amounts distributable on such Payment Date pursuant to
Section 5.2.
In the event that all of the Certificateholders shall not surrender
their Trust Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Trust Certificates for cancellation and to receive the final distribution
with respect thereto. If within one year after the second notice all the
Trust Certificates shall not have been surrendered for cancellation, the
Trustee may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Trust Certificates, and the cost thereof shall be paid
out of the funds and other assets that shall remain subject to this
Agreement. Any funds remaining in the Trust after exhaustion of such
remedies shall be distributed by the Trustee to the Depositor.
(d) Upon the termination of the Trust, the Trustee shall cause the
Certificate of Trust to be canceled by filing a certificate of cancellation
with the Secretary of State in accordance with the provisions of Section
3810 (or successor section) of the Trust Statute.
ARTICLE X.
Successor Trustees and Additional Trustees
SECTION A. 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 B. Resignation or Removal of Trustee. The Trustee may at any
time resign and be discharged from the trusts hereby created by giving
written notice thereof to the Administrator. Upon receiving such notice of
resignation, the Administrator shall promptly appoint a successor Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor Trustee. If
no successor Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
If at any time the Trustee shall cease to be eligible in accordance
with Section 10.1 and shall fail to resign after written request therefor by
the Administrator, or if at any time the Trustee shall be legally unable to
act, or shall be adjudged bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer shall
take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then the
Administrator may remove the Trustee. If the Administrator shall remove the
Trustee under the authority of the preceding sentence, the Administrator
shall promptly appoint a successor Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the outgoing
Trustee so removed and one copy to the successor Trustee and payment of all
fees owed to the outgoing Trustee.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to this Section shall not become effective until
acceptance of appointment by the successor Trustee pursuant to Section 10.3
and payment of all fees and expenses owed to the outgoing Trustee. The
Administrator shall provide notice of such resignation or removal of the
Trustee to each of the Rating Agencies.
SECTION C. 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.
SECTION D. 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 E. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust or any Financed Equipment may at the time be located, the
Administrator and the Trustee acting jointly shall have the power and may
execute and deliver all instruments to appoint one or more Person(s)
approved by the Trustee to act as co-trustee(s), jointly with the Trustee,
or separate trustee(s), of all or any part of the Trust Estate, and to vest
in such Person(s), in such capacity and for the benefit of the
Certificateholders, such title to the Trust Estate, or any part thereof,
and, subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Administrator and the Trustee may
consider necessary or desirable. If the Administrator shall not have joined
in such appointment within 15 days after the receipt by it of a request so
to do, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee under this Agreement shall be required to
meet the terms of eligibility as a successor trustee pursuant to Section
10.1 and no notice of the appointment of any co-trustee or separate trustee
shall be required pursuant to Section 10.3.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act(s) are to be performed, the
Trustee shall be incompetent or unqualified to perform such act(s), in
which event such rights, powers, duties and obligations (including the
holding of title to the Trust Estate or any portion thereof in any
such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Trustee;
(ii) no trustee under this Agreement shall be personally liable
by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the Administrator and the Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the
estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject
to all the provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting the
liability of, or affording protection to, the Trustee. Each such instrument
shall be filed with the Trustee and a copy thereof given to the
Administrator.
Any separate trustee or co-trustee may at any time appoint the Trustee
as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
The Trustee shall have no obligation to determine whether a co-trustee
or separate trustee is legally required in any jurisdiction in which any
part of the Trust Estate may be located.
ARTICLE XI.
Miscellaneous
SECTION A. Supplements and Amendments. This Agreement may be amended
from time to time by a written amendment duly executed and delivered by the
Depositor and the Trustee, with prior written notice to the Rating Agencies,
without the consent of any of the 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, 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
and the Trustee, with prior written notice to the Rating Agencies, with the
written consent of (x) Noteholders holding Notes evidencing not less than a
majority of the Note Balance and (y) 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 Outstanding Amount 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 Certificateholders
provided for in this Agreement or in any other Basic Document) and of
evidencing the authorization of the execution thereof by Certificateholders
shall be subject to such reasonable requirements as the Trustee may
prescribe.
Promptly after the execution of any amendment to the Certificate of
Trust, the Trustee shall cause the filing of such amendment with the
Secretary of State.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Trustee shall be entitled to receive and rely upon
an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions precedent
to the execution and delivery of such amendment have been satisfied. The
Trustee may, but shall not be obligated to, enter into any such amendment
that affects the Trustee's own rights, duties or immunities under this
Agreement or otherwise.
SECTION B. 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 C. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Trustee, the Depositor, the
Certificateholders, the Administrator and, to the extent expressly provided
herein, the Indenture Trustee 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 D. Notices. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing, personally
delivered or mailed by certified mail, postage prepaid and return receipt
requested, and shall be deemed to have been duly given upon receipt: (i) if
to the Trustee, addressed to the Corporate Trust Office with a copy to The
Chase Manhattan Bank, 450 West 33rd Street, 15th Floor, New York, New York
10001, Attn: Structured Finance Services (ABS); (ii) if to the Depositor,
addressed to Case Receivables II Inc., 233 Lake Avenue, Racine, Wisconsin
53403, Attention: Corporate Secretary; or, as to each party, at such other
address as shall be designated by such party in a written notice to the
other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at
the address of such Holder as shown in the Certificate Register. Any notice
so mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder
receives such notice.
SECTION E. 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 F. 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 G. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor and its successors, the Trustee and its successors and each
Certificateholder and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other
instrument or action by an Certificateholder shall bind the successors and
assigns of such Certificateholder.
SECTION H. Covenants of the Depositor. If: (a) the Certificate
Balance shall be reduced by Realized Losses and (b) any litigation with
claims in excess of $1,000,000 to which the Depositor is a party that shall
be reasonably likely to result in a material judgment against the Depositor
that the Depositor will not be able to satisfy shall be commenced by a
Certificateholder during the period beginning nine months following the
commencement of such litigation and continuing until such litigation is
dismissed or otherwise terminated (and, if such litigation has resulted in a
final judgment against the Depositor, such judgment has been satisfied), the
Depositor shall not pay any dividend to Credit, or make any distribution on
or in respect of its capital stock to Credit, or repay the principal amount
of any indebtedness of the Depositor held by Credit, unless: (i) after
giving effect to such payment, distribution or repayment, the Depositor's
liquid assets shall not be less than the amount of actual damages claimed in
such litigation or (ii) the Rating Agency Condition shall have been
satisfied with respect to any such payment, distribution or repayment. The
Depositor will not at any time institute against the Trust any bankruptcy
proceedings under any United States Federal or State bankruptcy or similar
law in connection with any obligations relating to the Trust Certificates,
the Notes, the Trust Agreement or any of the Basic Documents.
SECTION I. 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 J. No Recourse. Each Certificateholder by accepting a Trust
Certificate acknowledges that such Certificateholder's Trust Certificates
represent beneficial interests in the Trust only and do not represent
interests in or obligations of the Seller, the Servicer, the Administrator,
the Trustee, the Indenture Trustee or any Affiliate thereof and no recourse
may be had against such parties or their assets, except as may be expressly
set forth or contemplated in this Agreement, the Trust Certificates or the
Basic Documents.
SECTION K. 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 L. 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 M. Administrator. The Administrator is authorized to execute
on behalf of the Trust all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Trust to prepare,
file or deliver pursuant to this Agreement and the Basic Documents. Upon
written request, the Trustee shall execute and deliver to the Administrator
a power of attorney appointing the Administrator its agent and
attorney-in-fact to execute all such documents, reports, filings,
instruments, certificates and opinions.
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized as of the day and year first above written.
CHASE MANHATTAN BANK DELAWARE,
as Trustee
By: /s/ John Cashin
Name: John Cashin
Title: Senior Trust Officer
CASE RECEIVABLES II INC.,
as Depositor
By: /s/ Peter Hong
Name: Peter Hong
Title: Treasurer
<PAGE>
EXHIBIT A
to Trust Agreement
FORM OF TRUST CERTIFICATES
REGISTERED $___________<F5>
NUMBER R-___ CUSIP NO. 147440___
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York Corporation ("DTC"), to the
Issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF A
BENEFIT PLAN (AS DEFINED BELOW).
<F5> Denominations of $1,000 and integral multiples of $1,000 in excess
thereof.</F5>
CASE EQUIPMENT LOAN TRUST 1997-A
____% ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below,
the property of which includes a pool of retail installment sale contracts
secured by new and used agricultural and construction equipment and sold to
the Trust by Case Receivables II Inc.
(This Trust Certificate does not represent an interest in or obligation of
Case Receivables II Inc., Case Credit Corporation or Case Corporation, or
any of their respective affiliates, except to the extent described below.)
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a _____________
DOLLAR ($___________) nonassessable, fully-paid, fractional undivided
interest in the Case Equipment Loan Trust 1997-A (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 March 1,
1997 (the "Trust Agreement"), between the Seller and Chase Manhattan Bank
Delaware, as trustee (the "Trustee"). To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings assigned to them
in the Trust Agreement or the Sale and Servicing Agreement (the "Sale and
Servicing Agreement") dated as of March 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
"____% Asset Backed Certificates" (herein called the "Trust Certificates").
Issued under the: (a) Indenture dated as of March 1, 1997, between the Trust
and Harris Trust and Savings Bank, as Indenture Trustee, are notes
designated as "____% Class A-1 Asset Backed Notes," "____% Class A-2 Asset
Backed Notes," "____% Class A-3 Asset Backed Notes" and "____% Class B 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, 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 other than the Seller, the Trust will be
disregarded as an entity separate from its owner. At such time that the
Trust Certificates are held by more than one person, it is the intent of the
Seller, 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 Seller or the Trust, or join in any institution
against the Seller or the Trust of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings
under any United States Federal or State bankruptcy or similar law in
connection with any obligations relating to the Trust Certificates, the
Notes, the Trust Agreement or any of the Basic Documents.
The Trust Certificates do not represent an obligation of, or an
interest in, the Seller, the Servicer, Case Credit Corporation, the Trustee
or any affiliates of any of them and no recourse may be had against such
parties or their assets, except as may be expressly set forth or
contemplated herein or in the Trust Agreement or the Basic Documents.
The Certificates may not be acquired by or for the account of: (i) an
employee benefit plan (as defined in Section 3(3) of ERISA) that is subject
to the provisions of Title 1 of ERISA, (ii) a plan described in Section
4975(e)(1) of the Internal Revenue Code of 1986, as amended, or (iii) any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity (a "Benefit Plan"). By accepting and holding this
Certificate, each of the Holder shall be deemed to have represented and
warranted that it is not a Benefit Plan.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Trustee, by manual signature, this
Trust Certificate shall not entitle the holder hereof to any benefit under
the Trust Agreement or the Sale and Servicing Agreement or be valid for any
purpose.
This Trust Certificate shall be construed in accordance with the laws
of the State of Delaware, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not in its
individual capacity has caused this Trust Certificate to be duly executed.
CASE EQUIPMENT LOAN TRUST 1997-A
By: CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity, but
solely as Trustee
By: ____________________________
Name: ________________________
Title: _______________________
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the within-mentioned
Trust Agreement.
CHASE MANHATTAN BANK DELAWARE,
as Trustee
By: ________________________
Authorized Officer
OR
By: THE CHASE MANHATTAN BANK,
as Authenticating Agent
By: __________________________
Authorized Officer
Date: __________ ____, 1997
<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 a member firm of the New York Stock Exchange
or a commercial bank or trust company.
<PAGE>
EXHIBIT B
to Trust Agreement
CERTIFICATE OF TRUST OF
CASE EQUIPMENT LOAN TRUST 1997-A
This Certificate of Trust of CASE EQUIPMENT LOAN TRUST 1997-A (the
"Trust"), dated as of ____________ ____, 1997, is being duly executed and
filed by Chase Manhattan Bank Delaware, a Delaware banking corporation, as
trustee, to form a trust under the Delaware Business Trust Act (12 Del. Code
Section 3801 et seq.).
1. Name. The name of the trust formed hereby is CASE EQUIPMENT LOAN
TRUST 1997-A.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware is Chase Manhattan Bank Delaware, 1201
North Market Street, Wilmington, Delaware 19801, Attention: Corporate Trust
Administration Department.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity, but solely as trustee
under a Trust Agreement dated as of March 1, 1997
By: ____________________________
Name: ________________________
Title: _______________________
<PAGE>
<PAGE>
CASE EQUIPMENT LOAN TRUST 1997-A
SALE AND SERVICING AGREEMENT
among
CASE EQUIPMENT LOAN TRUST 1997-A,
as Issuer,
and
CASE RECEIVABLES II INC.,
as Seller,
and
CASE CREDIT CORPORATION,
as Servicer.
Dated as of March 1, 1997
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.1. Definitions............................................ 1
SECTION 1.2. Other Definitional Provisions.......................... 23
ARTICLE II
Conveyance of Receivables
SECTION 2.1. Conveyance of Initial Receivables...................... 23
SECTION 2.2. Conveyance of Subsequent Receivables................... 24
ARTICLE III
The Receivables
SECTION 3.1. Representations and Warranties of Seller............... 28
SECTION 3.2. Repurchase upon Breach................................. 29
SECTION 3.3. Custody of Receivable Files............................ 30
SECTION 3.4. Duties of Servicer as Custodian........................ 30
SECTION 3.5. Instructions; Authority To Act......................... 31
SECTION 3.6. Custodian's Indemnification............................ 31
SECTION 3.7. Effective Period and Termination....................... 31
ARTICLE IV
Administration and Servicing of Receivables
SECTION 4.1. Duties of Servicer..................................... 32
SECTION 4.2. Collection and Allocation of Receivable Payments....... 33
SECTION 4.3. Realization upon Receivables........................... 33
SECTION 4.4. Maintenance of Security Interests in Financed Equipment 33
SECTION 4.5. Covenants of Servicer.................................. 34
SECTION 4.6. Purchase of Receivables upon Breach.................... 34
SECTION 4.7. Servicing Fee.......................................... 34
SECTION 4.8. Servicer's Certificate................................. 34
SECTION 4.9. Annual Statement as to Compliance; Notice of Default... 35
SECTION 4.10. Annual Independent Certified Public Accountants'
Report.............................................. 35
SECTION 4.11. Access to Certain Documentation and Information
Regarding Receivables............................... 36
SECTION 4.12. Servicer Expenses..................................... 36
SECTION 4.13. Appointment of Subservicer............................ 36
ARTICLE V
Distributions: Spread Account;
Statements to Certificateholders and Noteholders
SECTION 5.1. Establishment of Trust Accounts........................ 37
SECTION 5.2. Collections............................................ 39
SECTION 5.3. Application of Collections............................. 40
SECTION 5.4. Additional Deposits.................................... 40
SECTION 5.5. Distributions.......................................... 40
SECTION 5.6. Spread Account......................................... 41
SECTION 5.7. Pre-Funding Account.................................... 44
SECTION 5.8. Negative Carry Account................................. 44
SECTION 5.9. [Intentionally Omitted]................................ 45
SECTION 5.10. Statements to Certificateholders and Noteholders...... 45
SECTION 5.11. Net Deposits.......................................... 46
ARTICLE VI
The Seller
SECTION 6.1. Representations of Seller.............................. 46
SECTION 6.2. Corporate Existence.................................... 48
SECTION 6.3. Liability of Seller; Indemnities....................... 49
SECTION 6.4. Merger or Consolidation of, or Assumption of the
Obligations of, Seller.............................. 50
SECTION 6.5. Limitation on Liability of Seller and Others........... 50
SECTION 6.6. Seller May Own Certificates or Notes................... 50
ARTICLE VII
The Servicer
SECTION 7.1. Representations of Servicer............................ 51
SECTION 7.2. Indemnities of Servicer................................ 52
SECTION 7.3. Merger or Consolidation of, or Assumption of the
Obligations of, Servicer............................ 54
SECTION 7.4. Limitation on Liability of Servicer and Others......... 55
SECTION 7.5. Credit Not to Resign as Servicer....................... 56
SECTION 7.6. Servicer to Act as Administrator....................... 56
ARTICLE VIII
Default
SECTION 8.1. Servicer Default....................................... 56
SECTION 8.2. Appointment of Successor Servicer...................... 58
SECTION 8.3. Notification to Noteholders and Certificateholders..... 58
SECTION 8.4. Waiver of Past Defaults................................ 59
ARTICLE IX
Termination
SECTION 9.1. Optional Purchase of All Receivables................... 59
ARTICLE X
Miscellaneous Provisions
SECTION 10.1. Amendment............................................. 61
SECTION 10.2. Protection of Title to Trust.......................... 62
SECTION 10.3. Notices............................................... 65
SECTION 10.4. Assignment............................................ 65
SECTION 10.5. Limitations on Rights of Others....................... 66
SECTION 10.6. Severability.......................................... 66
SECTION 10.7. Separate Counterparts................................. 66
SECTION 10.8. Headings.............................................. 66
SECTION 10.9. Governing Law......................................... 66
SECTION 10.10. Assignment to Indenture Trustee...................... 66
SECTION 10.11. Nonpetition Covenants................................ 66
SECTION 10.12. Limitation of Liability of Trustee and Indenture
Trustee........................................... 67
<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
<PAGE>
SALE AND SERVICING AGREEMENT dated as of March 1, 1997, among CASE
EQUIPMENT LOAN TRUST 1997-A, a Delaware business trust (the "Issuer"), CASE
RECEIVABLES II INC., a Delaware corporation (the "Seller"), and CASE CREDIT
CORPORATION, a Delaware corporation (the "Servicer").
RECITALS
WHEREAS, the Issuer desires to purchase a portfolio of receivables
arising in connection with equipment retail installment sale contracts
purchased by Case Credit Corporation ("Credit"), in the ordinary course of
business and sold to the Seller on a monthly basis pursuant to a Receivables
Purchase Agreement, dated as of August 1, 1994, between Credit and the
Seller (as it may be amended and supplemented from time to time, the
"Liquidity Receivables Purchase Agreement") and/or a Purchase Agreement
dated the date hereof between Credit and the Seller;
WHEREAS, the Seller is willing to sell such receivables to the Issuer;
and
WHEREAS, Credit is willing to service such receivables.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE XII.
Definitions
SECTION A. Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall
have the following meanings:
"A-1 Note Final Scheduled Maturity Date" means the March 1998 Payment
Date.
"A-1 Note Redemption Amount" has the meaning assigned to such term in
the definition of "Noteholders' Prepayment Premium".
"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 Principal
Distribution Amount for such Payment Date.
"A-1 Noteholders' Principal Carryover Shortfall" means, with respect
to any Payment Date, the excess of the A-1 Noteholders' Principal
Distributable Amount for the preceding Payment Date over the amount that was
actually deposited in the Note Distribution Account in respect of principal
of the A-1 Notes on such preceding Payment Date.
"A-1 Noteholders' Principal Distributable Amount" means, with respect
to any Payment Date, the sum of (a) the A-1 Noteholders' Monthly Principal
Distributable Amount for such Payment Date and (b) the A-1 Noteholders'
Principal Carryover Shortfall for such Payment Date; provided, however, that
the sum of clauses (a) and (b) shall not exceed the Outstanding Amount of
the A-1 Notes, and, on the A-1 Note Final Scheduled Maturity Date, the A-1
Noteholders' Principal Distributable Amount will include the amount, to the
extent of available funds, necessary (after giving effect to the other
amounts to be deposited in the Note Distribution Account on such Payment
Date and allocable to principal) to reduce the Outstanding Amount of the A-1
Notes to zero.
"A-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 Principal
Distribution Amount (less the portion thereof, if any, applied to reduce the
Outstanding Amount of the A-1 Notes to zero on such Payment Date).
"A-2 Noteholders' Principal Carryover Shortfall" means, with respect
to any Payment Date, the excess of the A-2 Noteholders' Principal
Distributable Amount for the preceding Payment Date over the amount that was
actually deposited in the Note Distribution Account in respect of principal
of the A-2 Notes on such preceding Payment Date.
"A-2 Noteholders' Principal Distributable Amount" means, with respect
to any Payment Date, the sum of (a) the A-2 Noteholders' Monthly Principal
Distributable Amount for such Payment Date and (b) the A-2 Noteholders'
Principal Carryover Shortfall for such Payment Date; provided, however, that
until an amount sufficient to reduce the Outstanding Amount of the A-1 Notes
to zero has been deposited in the Note Distribution Account, the A-2
Noteholders' Principal Distributable Amount shall be zero; provided,
further, that the sum of clauses (a) and (b) shall not exceed the
Outstanding Amount of the A-2 Notes, and, on the Final Scheduled Maturity
Date, the A-2 Noteholders' Principal Distributable Amount will include the
amount, to the extent of available funds, necessary (after giving effect to
the other amounts to be deposited in the Note Distribution Account on such
Payment Date and allocable to principal) to reduce the Outstanding Amount of
the A-2 Notes to zero.
"A-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 Principal
Distribution Amount (less the portion thereof, if any, applied to reduce the
Outstanding Amount of the A-2 Notes to zero on such Payment Date).
"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.
"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, $11,375,000 and, thereafter,
equals such amount reduced by all amounts allocable to principal previously
distributed to Certificateholders.
"Certificate Distribution Account" has the meaning assigned to such
term in the Trust Agreement.
"Certificateholder" has the meaning assigned to such term in the Trust
Agreement.
"Certificateholders' Distributable Amount" means, with respect to any
Payment Date, the sum of the Certificateholders' Principal Distributable
Amount and the Certificateholders' Interest Distributable Amount.
"Certificateholders' Interest Carryover Shortfall" means, with respect
to any Payment Date (the "current Payment Date"), 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 Class B 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 Class B 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 Class B 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 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 and (iv) 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 (ii) 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 (based on 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 Notes" means the A-1 Notes, the A-2 Notes and the A-3 Notes.
"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.
"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 Class B Rate from such preceding Payment
Date to but excluding the current Payment Date.
"Class B Noteholders' Interest Distributable Amount" means, with
respect to any Payment Date (the "current Payment Date"): (a) the aggregate
amount of interest accrued on the Class B Notes at the Class B Rate from and
including the preceding Payment Date (or, if later, the issuance date for
the Class B Notes) to but excluding the current Payment Date plus (b) the
Class B Noteholders' Interest Carryover Shortfall for the current Payment
Date.
"Class B Noteholders' Monthly Principal Distributable Amount" means,
with respect to each Payment Date on or after the Payment Date on which an
amount sufficient to reduce the outstanding amount of the A-3 Notes to zero
has been deposited in the Note Distribution Account, 100% of the Principal
Distribution Amount (less the portion thereof, if any, applied to reduce the
Outstanding Amount of the A-3 Notes to zero on such Payment Date).
"Class B Noteholders' Principal Carryover Shortfall" means, with
respect to any Payment Date, the excess of the Class B Noteholders'
Principal Distributable Amount for the preceding Payment Date over the
amount that was actually deposited in the Note Distribution Account in
respect of principal of the Class B Notes on such preceding Payment Date.
"Class B Noteholders' Principal Distributable Amount" means, with
respect to any Payment Date, the sum of (a) the Class B Noteholders' Monthly
Principal Distributable Amount for such Payment Date and (b) the Class B
Noteholders' Principal Carryover Shortfall for such Payment Date; provided,
however, that until the Payment Date on which an amount sufficient to reduce
the Outstanding Amount of the A-3 Notes to zero has been deposited in the
Note Distribution Account, the Class B Noteholders' Principal Distributable
Amount shall be zero; and provided further, that the sum of clauses (a) and
(b) shall not exceed the Outstanding Amount of the Class B Notes, and, on
the Final Scheduled Maturity Date, the Class B Noteholders' Principal
Distributable Amount will include the amount, to the extent of available
funds, necessary (after giving effect to the other amounts to be deposited
in the Note Distribution Account on such Payment Date and allocable to
principal) to reduce the Outstanding Amount of the Class B Notes to zero.
"Collection Account" means the account designated as such, established
and maintained pursuant to Section 5.1(a).
"Collection Period" means, with respect to any Payment Date, the
period from and including the end of the preceding Collection Period (or, if
for the first Payment Date, the day after the Initial Cutoff Date) to but
excluding the sixth (6th) day of the calendar month in which the Payment
Date occurs.
"Contract" means an equipment retail installment sale contract secured
by Financed Equipment.
"Contract Value" means, with respect to any day (including the Initial
Cutoff Date or any Subsequent Cutoff Date), the present value of the unpaid
Scheduled Payments discounted monthly at an annual rate equal to: (a) in the
case of the Initial Receivables, the Initial Cutoff Date APR and (b) in the
case of the Subsequent Receivables, the applicable Subsequent Cutoff Date
APR. For purposes of calculating Contract Value, a Scheduled Payment that is
delinquent as of the day the calculation is being made is deemed to be due
on such day. There shall be deemed to be no Scheduled Payments due on a
Liquidated Receivable.
"Corporate Trust Office" means the principal office of the Indenture
Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of this Agreement is located at
311 West Monroe Street, 12th Floor, Chicago, Illinois 60606, Attention:
Indenture Trust Administration (facsimile no. (312) 461-3525); or at such
other address as the Indenture Trustee may designate from time to time by
notice to the 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).
"Credit" means Case Credit Corporation, a Delaware corporation, and
its successors and assigns.
"Dealer" means the dealer (which may include retail outlets owned by
Case) who sold any Financed Equipment and who originated and assigned the
respective Receivable to Credit under a Dealer Agreement.
"Dealer Agreement" means the retail financing agreement between the
applicable Dealer and Credit.
"Delivery" when used with respect to Trust Account Property means:
(a) with respect to bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that
constitute "instruments" within the meaning of Section 9-105(1)(i) of
the UCC and are susceptible of physical delivery, transfer thereof to
the Indenture Trustee or its nominee or custodian (the "New Owner") by
physical delivery to the New Owner endorsed to, or registered in the
name of, the New Owner or endorsed in blank, and, with respect to a
certificated security (as defined in Section 8-102 of the UCC)
transfer thereof: (i) by delivery of such certificated security
endorsed to, or registered in the name of, the New Owner or endorsed
in blank to a financial intermediary (as defined in Section 8-313 of
the UCC) and the making by such financial intermediary of entries on
its books and records identifying such certificated securities as
belonging to the New Owner and the sending by such financial
intermediary of a confirmation of the purchase of such certificated
security by the New Owner, or (ii) by delivery thereof to a "clearing
corporation" (as defined in Section 8-102(3) of the UCC) and the
making by such clearing corporation of appropriate entries on its
books reducing the appropriate securities account of the transferor
and increasing the appropriate securities account of a financial
intermediary by the amount of such certificated security, the
identification by the clearing corporation of the certificated
securities for the sole and exclusive account of the financial
intermediary, the maintenance of such certificated securities by such
clearing corporation or a "custodian bank" (as defined in Section
8-102(4) of the UCC) or the nominee of either subject to the clearing
corporation's exclusive control, the sending of a confirmation by the
financial intermediary of the purchase by the New Owner of such
securities and the making by such financial intermediary of entries on
its books and records identifying such certificated securities as
belonging to the New Owner (all of the foregoing, "Physical
Property"), and, in any event, any such Physical Property in
registered form shall be in the name of the New Owner; and such
additional or alternative procedures as may hereafter become
appropriate to effect the complete transfer of ownership of any such
Trust Account Property to the New Owner, consistent with changes in
applicable law or regulations or the interpretation thereof;
(b) with respect to any security issued by the United States
Treasury Department, the Federal Home Loan Mortgage Corporation or by
the Federal National Mortgage Association that is a book-entry
security held through the Federal Reserve System pursuant to Federal
book-entry regulations, the following procedures, all in accordance
with applicable law, including applicable Federal regulations and
Articles 8 and 9 of the UCC: book-entry registration of such security
to an appropriate book-entry account maintained with a Federal Reserve
Bank by a financial intermediary that is also a "depository" pursuant
to applicable Federal regulations and issuance by such financial
intermediary of a deposit advice or other written confirmation of such
book-entry registration to the New Owner of the purchase by the New
Owner of such book-entry securities; the making by such financial
intermediary of entries in its books and records identifying such
book-entry security held through the Federal Reserve System pursuant
to Federal book-entry regulations as belonging to the New Owner and
indicating that such custodian holds such security solely as agent for
the New Owner; and such additional or alternative procedures as may
hereafter become appropriate to effect complete transfer of ownership
of any such Trust Account Property to the New Owner, consistent with
changes in applicable law or regulations or the interpretation
thereof; and
(c) with respect to any uncertificated security under Article 8
of the UCC that is not governed by clause (b), registration on the
books and records of the issuer thereof in the name of the financial
intermediary, the sending of a confirmation by the financial
intermediary of the purchase by the New Owner of such uncertificated
security, and the making by such financial intermediary of entries on
its books and records identifying such uncertificated security as
belonging to the New Owner.
"Depositor" shall mean the Seller in its capacity as Depositor under
the Trust Agreement.
"Determination Date" means, with respect to any Transfer Date, the
second Business Day prior to such Transfer Date.
"Eligible Deposit Account" means either: (a) a segregated account with
an Eligible Institution or any other segregated account, the deposit of
funds in which satisfies the Rating Agency Condition or (b) a segregated
trust account with the corporate trust department of a depository
institution organized under the laws of the United States of America or any
State (or any domestic branch of a foreign bank), having corporate trust
powers and acting as trustee for funds deposited in such account, so long as
any of the securities of such depository institution have a credit rating
from each Rating Agency in one of its generic rating categories that
signifies investment grade.
"Eligible Institution" means: (a) the corporate trust department of
the Indenture Trustee or the Trustee or (b) a depository institution
organized under the laws of the United States of America or any State (or
any domestic branch of a foreign bank), which: (i) has either a long-term or
short-term senior unsecured debt rating or certificate of deposit rating
acceptable to the Rating Agencies and (ii) whose deposits are insured by the
FDIC.
"Eligible Investments" mean book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
form that evidence:
(a) direct obligations of, and obligations fully guaranteed as to
timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit of
any depository institution or trust company incorporated under the
laws of the United States of America or any State (or any domestic
branch of a foreign bank) and subject to supervision and examination
by Federal or State banking or depository institution authorities;
provided, however, that at the time of the investment or contractual
commitment to invest therein, the commercial paper or other short-term
senior unsecured debt obligations (other than such obligations the
rating of which is based on the credit of a Person other than such
depository institution or trust company) thereof shall have a credit
rating from each of the Rating Agencies in the highest investment
category granted thereby;
(c) commercial paper having, at the time of the investment or
contractual commitment to invest therein, a rating from each of the
Rating Agencies in the highest investment category granted thereby;
(d) investments in money market funds having a rating from each
of the Rating Agencies in the highest investment category granted
thereby (including funds for which the Indenture Trustee or the
Trustee or any of their respective Affiliates is investment manager or
advisor); provided, that during the Funding Period no investments in
money market funds shall be made with funds in any Trust Account other
than the Collection Account;
(e) bankers' acceptances issued by any depository institution or
trust company referred to in clause (b);
(f) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed as to timely payment by, the
United States of America or any agency or instrumentality thereof the
obligations of which are backed by the full faith and credit of the
United States of America, in either case entered into with a
depository institution or trust company (acting as principal)
described in clause (b); and
(g) any other investment permitted by each of the Rating Agencies
as set forth in writing delivered to the Indenture Trustee; provided,
that investments described in clauses (d) and (g) shall be made only
so long as making such investments will not require the Issuer to
register as an investment company under the Investment Company Act of
1940, as amended.
"FDIC" means the Federal Deposit Insurance Corporation or any
successor.
"Final Scheduled Maturity Date" means the March 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.
"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 therefrom in connection with the transfer of Subsequent
Receivables to the Issuer on or before such Determination Date) is less than
$100,000, (b) the date on which an Event of Default or a Servicer Default
occurs, (c) the date on which an Insolvency Event occurs with respect to the
Seller or the Servicer and (d) the close of business on the September 1997
Payment Date.
"Indenture" means the Indenture, dated the date hereof, between the
Issuer and the Indenture Trustee, as the same may be amended and
supplemented from time to time.
"Indenture Trustee" means the Person acting as Indenture Trustee under
the Indenture, its successors in interest and any successor trustee under
the Indenture.
"Initial Cutoff Date" means February 28, 1997.
"Initial Cutoff Date APR" means 8.823%, which is the weighted average
APR of the Initial Receivables as of the Initial Cutoff Date.
"Initial Pool Balance" means: (i) the Pool Balance as of the Initial
Cutoff Date, which is $335,052,051 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.
"Insolvency Proceeds" has the meaning assigned to such term in Section
9.1(b).
"Interest Distribution Amount" means, with respect to any Payment
Date, the excess, if any, of the Total Distribution Amount over the
Principal Distribution Amount for such Payment Date.
"Investment Earnings" means, with respect to any Payment Date, the
interest and other investment earnings (net of losses and investment
expenses) on amounts on deposit in the Trust Accounts to be deposited into
the Collection Account on the related Transfer Date pursuant to Section
5.1(b).
"Issuer" means Case Equipment Loan Trust 1997-A.
"Lien" means a security interest, lien, charge, pledge, equity or
encumbrance of any kind, other than tax liens, mechanics' liens and any
liens that attach to the related Receivable by operation of law as a result
of any act or omission by the related Obligor.
"Liquidated Receivable" means any Receivable liquidated by the
Servicer through the sale or other disposition of the related Financed
Equipment or that the Servicer has, after using all reasonable efforts to
realize upon the Financed Equipment, determined to charge off without
realizing upon the Financed Equipment.
"Liquidation Proceeds" means, with respect to any Liquidated
Receivable, the moneys collected in respect thereof from whatever source
(including the proceeds of insurance policies with respect to the related
Financed Equipment or Obligor and payments made by a Dealer pursuant to the
related Dealer Agreement with respect to such Receivable (other than amounts
paid from Dealer reserve accounts maintained with Credit)), other than
Recoveries, net of the sum of any amounts expended by the Servicer in
connection with such liquidation and any amounts required by law to be
remitted to the Obligor on such Liquidated Receivable.
"Liquidity Receivables Purchase Agreement" has the meaning assigned to
such term in the Recitals.
"Maximum Negative Carry Amount" means the product of: (i) the
difference between: (a) the weighted average of the interest rates on the
A-1 Notes, the A-2 Notes, the A-3 Notes and the Class B Notes, minus (b)
2.5%, multiplied by (ii) the 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 $5,557,380.
"Negative Carry Amount" means an amount for each Collection Period
calculated by the Servicer as the difference (if positive) between: (a) the
product of: (i) the sum of the Class A Noteholders' Interest Distributable
Amount and the Class B 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.
"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).
"Note Percentage" means the percentage equivalent to a fraction the
numerator of which is the Note Balance and the denominator of which is the
sum of the Note Balance and the Certificate Balance.
"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 and (b)
the Class B Noteholders' Distributable Amount.
"Noteholders' Prepayment Premium" means, with respect to the A-1
Notes, an amount equal to the excess, if any, discounted as described below,
of (i) the amount of interest that would have accrued on the principal
amount of the A-1 Notes that is being redeemed (the "A-1 Note Redemption
Amount") at the A-1 Note Rate during the period commencing on and including
the Payment Date on which the A-1 Note Redemption Amount is required to be
distributed to A-1 Noteholders to but excluding September 15, 1997, over
(ii) the amount of interest that would have accrued on the A-1 Note
Redemption Amount over the same period at a per annum rate of interest equal
to the bond equivalent yield to maturity on the Determination Date preceding
such Payment Date on the 5.75% United States Treasury Note due September 30,
1997. Such excess shall be discounted on a monthly basis to a present value
on such Payment Date at the bond equivalent yield described in clause (ii).
The Noteholders' Prepayment Premium, if any, with respect to the A-2 Notes
and the A-3 Notes will be calculated in the same manner, but substituting:
(w) the principal amount of the A-2 Notes (or the A-3 Notes) that is being
redeemed for the A-1 Note Redemption Amount, (x) the A-2 Note Rate (or the
A-3 Note Rate) for the A-1 Note Rate, (y) the date May 15, 1998 (or February
15, 2000, in the case of the A-3 Notes) for the date September 15, 1997, and
(z) the 6.125% United States Treasury Note due May 15, 1998 (or the 5.875%
United States Treasury Note due February 15, 2000, in the case of the A-3
Notes), for the reference Treasury Note referred to above.
"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.
"Notes" means the Class A Notes and the Class B Notes.
"Obligor" on a Receivable means the purchaser or co-purchasers of the
Financed Equipment and any other Person who owes payments under the
Receivable.
"Officers' Certificate" means a certificate signed by at least one of
the Chairman of the Board, the President, the Vice Chairman of the Board, an
Executive Vice President, any Vice President, a Treasurer, Assistant
Treasurer, Secretary or Assistant Secretary of the Seller or the Servicer,
as appropriate.
"Opinion of Counsel" means a written opinion of counsel (who may,
except as otherwise expressly provided in this Agreement, be an employee of
or counsel to the Seller or the Servicer), which counsel and opinion shall
be acceptable to the Indenture Trustee, the Trustee or the Rating Agencies,
as applicable.
"Pass-Through Rate" means, with respect to the Certificates, 6.70% per
annum.
"Payment Date" means, with respect to each Collection Period, the
fifteenth day of the calendar month in which that Collection Period ends,
or, if such day is not a Business Day, the next Business Day, commencing on
April 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 and the Pre-Funded Amount, after taking
into account all transfers of Subsequent Receivables during such Collection
Period.
"Pre-Funding Account" means the account designated as such,
established and maintained pursuant to Section 5.1(a).
"Pre-Funding Account Investment Earnings" means, with respect to any
Payment Date, the interest and other investment earnings (net of losses and
investment expenses) on amounts on deposit in the Pre-Funding Account to be
deposited into the Collection Account on the related Transfer Date pursuant
to Section 5.1(b).
"Principal Balance" of a Precomputed Receivable, as of the close of
business on the last day of a Collection Period, means the Amount Financed
minus the sum of: (i) that portion of all Scheduled Payments due on or prior
to such day allocable to principal using the actuarial or constant yield
method, (ii) any refunded portion of insurance premiums included in the
Amount Financed, (iii) any payment of the Purchase Amount with respect to
the Precomputed Receivable allocable to principal and (iv) any prepayment in
full or any partial prepayments applied to reduce the Principal Balance of
the Precomputed Receivable.
"Principal Distribution Amount" means, with respect to any Payment
Date, the amount (not less than zero) equal to: (i) the sum of the Contract
Value of all Receivables and the Pre-Funded Amount as of the beginning of
the immediately preceding Collection Period less (ii) the sum of the
Contract Value of all Receivables and the Pre-Funded Amount as of the
beginning of the current Collection Period.
"Purchase Agreement" means the Purchase Agreement dated as of the date
hereof, between the Seller and Credit, as the same may be amended and
supplemented from time to time, which term shall also include, as the
context requires, the Liquidity Receivables Purchase Agreement.
"Purchase Amount" means, as of the close of business on the last day
of a Collection Period, an amount equal to the Contract Value of the
applicable Receivable as of the first day of the immediately following
Collection Period plus interest accrued and unpaid thereon as of such last
day at a rate per annum equal to: (a) in the case of the Initial
Receivables, the Initial Cutoff Date APR and (b) in the case of the
Subsequent Receivables, the applicable Subsequent Cutoff Date APR.
"Purchased Receivable" means a Receivable purchased as of the close of
business on the last day of a Collection Period by the Servicer pursuant to
Section 4.6 or by the Seller pursuant to Section 3.2, or as of the first day
of a Collection Period by the Servicer pursuant to Section 9.1(a).
"Rating Agency" means each of Moody's and Standard & Poor's. If either
of such organizations or its successor is no longer in existence, the Seller
shall designate a nationally recognized statistical rating organization or
other comparable Person as a substitute Rating Agency, notice of which
designation shall be given to the Indenture Trustee, the Trustee and the
Servicer.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given 10 days' prior notice thereof and that
each of the Rating Agencies shall have notified the Seller, the Servicer,
the Trustee and the Indenture Trustee in writing that such action will not
result in a reduction or withdrawal of the then current rating of any Class
of the Notes or the Certificates.
"Realized Losses" means the excess of the Principal Balance of
Liquidated Receivable plus accrued but unpaid interest thereon over
Liquidation Proceeds.
"Receivable Files" means the documents specified in Section 3.3.
"Recoveries" means, with respect to any Liquidated Receivable, monies
collected in respect thereof, from whatever source (other than from the sale
or other disposition of the Financed Equipment), during any Collection
Period following the Collection Period in which such Receivable became a
Liquidated Receivable.
"Remaining Pre-Funded Amount" has the meaning assigned thereto in
Section 5.7(b).
"Required Negative Carry Account Balance" means, as of the beginning
of each Collection Period, an amount equal to the lesser of: (a) the
Negative Carry Account Initial Deposit minus all previous withdrawals from
the Negative Carry Account and (b) the Maximum Negative Carry Amount as of
such day.
"Scheduled Payment" on a Precomputed Receivable means that portion of
the payment required to be made by the Obligor during any Collection Period
sufficient to amortize the Principal Balance under the actuarial method over
the term of the Receivable and to provide interest at the APR.
"Seller" means Case Receivables II Inc., a Delaware corporation, and
its successors in interest to the extent permitted hereunder.
"Servicer" means Credit, as the servicer of the Receivables, and each
successor to Credit (in the same capacity) pursuant to Section 7.3 or 8.2.
"Servicer Default" means an event specified in Section 8.1.
"Servicer's Certificate" means an Officers' Certificate of the
Servicer delivered pursuant to Section 4.8, substantially in the form of
Exhibit C.
"Servicing Fee" means the fee payable to the Servicer for services
rendered during the respective Collection Period, determined pursuant to
Section 4.7.
"Specified Spread Account Balance" means, with respect to any Payment
Date, the 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, $6,701,050, 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.
"Total Distribution Amount" means, with respect to any Payment Date,
the aggregate amount of collections on or with respect to the Receivables
(including collections received after the end of the preceding calendar
month on any Subsequent Receivables added to the Trust after the end of that
preceding calendar month and on or before that Payment Date) with respect to
the related Collection Period plus the Negative Carry Amount for such
Collection Period. Collections on or with respect to the Receivables include
all payments made by or on behalf of the Obligors (including any late fees,
prepayment charges, extension fees and other administrative fees or similar
charges allowed by applicable law with respect to the Receivables),
Liquidation Proceeds, the Purchase Amount of each Receivable that became a
Purchased Receivable in respect of the related Collection Period (to the
extent deposited into the Collection Account), Investment Earnings for such
Payment Date and payments made by a Dealer pursuant to the related Dealer
Agreement with respect to such Receivable (other than amounts paid from
Dealer reserve accounts maintained with Credit); provided, however, that the
Total Distribution Amount shall not include: (i) all payments or proceeds
(including Liquidation Proceeds) of any Receivables the Purchase Amount of
which has been included in the Total Distribution Amount in a prior
Collection Period, (ii) any Recoveries or (iii) amounts released from the
Pre-Funding Account.
"Transfer Date" means the Business Day preceding the fifteenth day of
each calendar month.
"Trust" means the Issuer.
"Trust Account Property" means the Trust Accounts, all amounts and
investments held from time to time in any Trust Account (whether in the form
of deposit accounts, Physical Property, book-entry securities,
uncertificated securities or otherwise), and all proceeds of the foregoing.
"Trust Accounts" has the meaning assigned thereto in Section 5.1(b).
"Trust Agreement" means the Trust Agreement dated as of the date
hereof, between the Seller and the Trustee, as the same may be amended and
supplemented from time to time.
"Trustee" means the Person acting as Trustee under the Trust
Agreement, its successors in interest and any successor trustee under the
Trust Agreement.
"Trust Estate" has the meaning assigned to such term in the Trust
Agreement.
"Trust Officer" means, in the case of the Indenture Trustee, any
officer within the Corporate Trust Office of the Indenture Trustee,
including any Vice President, Assistant Vice President, Secretary, Assistant
Secretary or any other officer of the Indenture Trustee customarily
performing functions similar to those performed by any of the above
designated officers and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's knowledge
of and familiarity with the particular subject and, with respect to the
Trustee, any officer in the Corporate Trustee Administration Department of
the Trustee with direct responsibility for the administration of the Trust
Agreement and the Basic Documents on behalf of the Trustee.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code as in effect in the relevant jurisdiction, as amended from
time to time.
SECTION B. Other Definitional Provisions. 1. Capitalized terms used
herein and not otherwise defined herein that are defined in the Indenture
have the meanings assigned to them in the Indenture.
2. 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.
3. 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.
4. 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,".
5. The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
(f) Interest shall be computed on the basis of a 360-day year of
twelve 30-day months for all purposes of this Agreement.
ARTICLE XIII.
Conveyance of Receivables
SECTION A. 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:
1. 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;
2. 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;
3. any proceeds with respect to the Initial Receivables from
claims on insurance policies covering Financed Equipment or Obligors;
4. the Liquidity Receivables Purchase Agreement (only with
respect to Owned Contracts included in the Initial Receivables) and
the Purchase Agreement, including the right of the Seller to cause
Credit to repurchase Initial Receivables from the Seller under the
circumstances described therein;
5. any proceeds from recourse to Dealers with respect to the
Initial Receivables other than any interest in the Dealers' reserve
accounts maintained with Credit;
6. any Financed Equipment that shall have secured an Initial
Receivable and that shall have been acquired by or on behalf of the
Trust;
7. 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
8. 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 B. Conveyance of Subsequent Receivables. 1. Subject to the
conditions set forth in clause (b) below, in consideration of the Trustee's
delivery on the related Subsequent Transfer Date to or upon the order of the
Seller of the amount described in Section 5.7(a) to be delivered to the
Seller, the Seller does hereby sell, transfer, assign, set over and
otherwise convey to the Issuer, without recourse (subject to the obligations
herein), all of its right, title and interest in, to and under:
(a) 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;
(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 Credit to repurchase Subsequent Receivables from the Seller
under the circumstances described therein;
(e) any proceeds with respect to such Subsequent Receivables from
recourse to Dealers other than any interest in the Dealers' reserve
accounts maintained with Credit;
(f) 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
(g) the proceeds of any and all of the foregoing (other than
Recoveries).
2. The Seller shall transfer to the Issuer the Subsequent Receivables
and the other property and rights related thereto described in clause (a)
only upon the satisfaction of each of the following conditions precedent on
or prior to the related Subsequent Transfer Date:
(a) 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 to the Subsequent Transfer Assignment
listing the Subsequent Receivables;
(b) 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;
(c) 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;
(d) the applicable Spread Account Initial Deposit for such
Subsequent Transfer Date shall have been made;
(e) [intentionally deleted];
(f) the Receivables in the Trust, including the Subsequent
Receivables to be conveyed to the Trust on such Subsequent Transfer
Date, shall meet the following criteria: (A) the weighted average
original term of the Receivables in the Trust will not be greater than
55.0 months, and (B) not more than 40% of the aggregate Contract Value
of the Receivables in the Trust will represent Contracts for the
financing of construction equipment;
(g) the Funding Period shall not have terminated;
(h) each of the representations and warranties made by the Seller
pursuant to Section 3.1 with respect to the Subsequent Receivables
shall be true and correct as of such Subsequent Transfer Date, and the
Seller shall have performed all obligations to be performed by it
hereunder on or prior to such Subsequent Transfer Date;
(i) 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;
(j) 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;
(k) 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;
(l) the addition of the Subsequent Receivables will not result in
a material adverse tax consequence to the Trust, the Noteholders or
the Certificateholders;
(m) 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;
(n) 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);
(o) 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;
(p) the Seller shall have delivered to the Indenture Trustee and
the Trustee an Officers' Certificate confirming the satisfaction of
each condition specified in this clause (b) (substantially in the form
attached hereto as Annex A to the Subsequent Transfer Assignment); and
(xvii) Moody's shall have received written notification from the
Seller of the addition of all such Subsequent Receivables.
3. The Seller covenants to transfer to the Issuer pursuant to clause
(a) Subsequent Receivables with an aggregate Contract Value equal to
$314,947,499. If the Seller shall fail to deliver and sell to the Issuer any
or all of such Subsequent Receivables by the date on which the Funding
Period ends, and the Pre-Funded Amount is greater than $100,000 on such
date, the Seller shall be obligated to deposit an amount equal to the
aggregate Noteholders' Prepayment Premium into the Note Distribution Account
on the Payment Date on which the Funding Period ends (or, if the Funding
Period does not end on a Payment Date, on the first Payment Date following
the end of the Funding Period); provided, however, that the foregoing shall
be the sole remedy of the Issuer, the Trustee, the Indenture Trustee, the
Noteholders or the Certificateholders with respect to a failure of the
Seller to comply with such covenant.
ARTICLE XIV.
The Receivables
SECTION A. 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.
1. Title. It is the intention of the Seller that the transfer and
assignment herein contemplated constitute a sale of the Receivables from the
Seller to the Issuer and that the beneficial interest in and title to the
Receivables not be part of the debtor's estate in the event of the filing of
a bankruptcy petition by or against the Seller under any bankruptcy or
similar law. No Receivable has been sold, transferred, assigned or pledged
by the Seller to any Person other than the Issuer. Immediately prior to the
transfer and assignment herein contemplated, the Seller had good title to
each Receivable, free and clear of all Liens and, immediately upon the
transfer thereof, the Issuer shall have good title to each Receivable, free
and clear of all Liens; and the transfer and assignment of the Receivables
to the Issuer has been perfected under the UCC.
2. 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 B. 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 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
representations and warranties pursuant to Section 3.1 and the agreement
contained in this Section shall be to require the Seller to repurchase
Receivables pursuant to this Section, subject to the conditions contained
herein, and to enforce Credit's obligation to the Seller to repurchase such
Receivables pursuant to the Liquidity Receivables Purchase Agreement or the
Purchase Agreement, as applicable.
(b) With respect to all Receivables repurchased by the Seller
pursuant to this Agreement, the Issuer shall sell, transfer, assign, set
over and otherwise convpresentation 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 C. 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:
1. the original fully executed copy of the Receivable;
2. a record or facsimile of the original credit application fully
executed by the Obligor;
3. 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
4. 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 D. Duties of Servicer as Custodian.
1. 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.
2. 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 E. Instructions; Authority To Act. The Servicer shall be
deemed to have received proper instructions with respect to the Receivable
Files upon its receipt of written instructions signed by a Trust Officer of
the Indenture Trustee.
SECTION F. Custodian's Indemnification. The Servicer as custodian
shall indemnify the Trust, the Trustee and the Indenture Trustee (and each
of their officers, directors, employees and agents) for any and all
liabilities, obligations, losses, compensatory damages, payments, costs or
expenses of any kind whatsoever that may be imposed on, incurred by or
asserted against the Trust, the Trustee or the Indenture Trustee (or any of
their officers, directors and agents) as the result of any improper act or
omission in any way relating to the maintenance and custody by the Servicer
as custodian of the Receivable Files; provided, however, that the Servicer
shall not be liable: (a) to the Trustee for any portion of any such amount
resulting from the willful misfeasance, bad faith or negligence of the
Trustee and (b) to the Indenture Trustee for any portion of any such amount
resulting from the wilful misfeasance, bad faith or negligence of the
Indenture Trustee.
SECTION G. Effective Period and Termination. The Servicer's
appointment as custodian shall become effective as of the Initial Cutoff
Date and shall continue in full force and effect until terminated pursuant
to this Section. If any Servicer shall resign as Servicer in accordance with
this Agreement or if all of the rights and obligations of any Servicer shall
have been terminated under Section 8.1, the appointment of such Servicer as
custodian shall be terminated by: (a) the Indenture Trustee, (b) the
Noteholders of Notes evidencing not less than 25% of the Note Balance, (c)
with the consent of Noteholders of Notes evidencing not less than 25% of the
Note Balance, the Trustee or (d) Certificateholders evidencing not less than
25% of the Certificate Balance, in the same manner as the Indenture Trustee
or such Holders may terminate the rights and obligations of the Servicer
under Section 8.1. The Indenture Trustee or, with the consent of the
Indenture Trustee, the Trustee may terminate the Servicer's appointment as
custodian, with cause, at any time upon written notification to the
Servicer, and without cause upon 30 days' prior written notification to the
Servicer. As soon as practicable after any termination of such appointment,
the Servicer shall deliver the Receivable Files to the Indenture Trustee or
the Indenture Trustee's agent at such place(s) as the Indenture Trustee may
reasonably designate.
ARTICLE XV.
Administration and Servicing of Receivables
SECTION A. 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 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
thpowers of attorney and other documents reasonably necessary or appropriate
to enable the Servicer to carry out its servicing and administrative duties
hereunder.
SECTION B. 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 C. Realization upon Receivables. For the benefit of the
Issuer and the Indenture Trustee, the Servicer shall use reasonable efforts,
consistent with its customary servicing procedures, to repossess or
otherwise convert the ownership of the Financed Equipment securing any
Receivable as to which the Servicer shall have determined eventual payment
in full is unlikely. The Servicer shall follow such customary and usual
practices and procedures as it shall deem necessary or advisable in its
servicing of equipment receivables, which may include reasonable efforts to
realize upon any recourse to Dealers and selling the Financed Equipment at
public or private sale. The foregoing shall be subject to the provision
that, in any case in which the Financed Equipment shall have suffered
damage, the Servicer shall not expend funds in connection with the repair or
the repossession of such Financed Equipment unless it shall determine in its
discretion that such repair and/or repossession will increase the
Liquidation Proceeds by an amount greater than the amount of such expenses.
SECTION D. 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 E. 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 or 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 F. 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 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 G. 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 H. 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 I. Annual Statement as to Compliance; Notice of Default. 1.
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 Certificate and the report referred to in Section 4.10
to the Rating Agencies. A copy of such Certificate and report may be
obtained by any Certificateholder or Indenture Noteholder by a request in
writing to the Trustee addressed to the Corporate Trust Office. Upon the
written request of the Trustee, the Indenture Trustee will promptly furnish
the Trustee a list of Indenture Noteholders as of the date specified by the
Trustee.
2. 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 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 J. 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 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 K. Access to Certain Documentation and Information Regarding
Receivables. 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 L. 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 M. 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 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 XVI.
Distributions: Spread Account;
Statements to Certificateholders and Noteholders
SECTION A. Establishment of Trust Accounts. 1.(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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 "Negative Carry
Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Noteholders and the
Certificateholders.
2. 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 therein shall be deposited into the Collection Account and shall be
deemed to constitute a portion of the Total Distribution Amount. Other than
as permitted by the Rating Agencies, funds on deposit in the Trust Accounts
shall be invested in Eligible Investments that will mature so that such
funds will be available at the close of business on the Transfer Date
preceding the following Payment Date; provided, however, that funds on
deposit in Trust Accounts may be invested in Eligible Investments of the
entity serving as Indenture Trustee that may mature so that such funds will
be available on the Payment Date. Funds deposited in a Trust Account on the
Transfer Date that precedes a Payment Date upon the maturity of any Eligible
Investments are not required to be invested overnight.
3.(a) 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.
(b) With respect to the Trust Account Property, the Indenture
Trustee agrees, by its acceptance hereof, that:
(A) any Trust Account Property that is held in deposit
accounts shall be held solely in Eligible Deposit Accounts,
subject to the last sentence of Section 5.1(c)(i); and each such
Eligible Deposit Account shall be subject to the exclusive
custody and control of the Indenture Trustee, and the Indenture
Trustee shall have sole signature authority with respect thereto;
(B) any Trust Account Property that constitutes Physical
Property shall be delivered to the Indenture Trustee in
accordance with clause (a) of the definition of "Delivery" and
shall be held, pending maturity or disposition, solely by the
Indenture Trustee or a financial intermediary (as such term is
defined in Section 8-313(4) of the UCC) acting solely for the
Indenture Trustee;
(C) any Trust Account Property that is a book-entry
security held through the Federal Reserve System pursuant to
Federal book-entry regulations shall be delivered in accordance
with clause (b) of the definition of "Delivery" and shall be
maintained by the Indenture Trustee, pending maturity or
disposition, through continued book-entry registration of such
Trust Account Property as described in such clause; and
(D) any Trust Account Property that is an "uncertificated
security" under Article 8 of the UCC and that is not governed by
clause (C) shall be delivered to the Indenture Trustee in
accordance with clause (c) of the definition of "Delivery" and
shall be maintained by the Indenture Trustee, pending maturity or
disposition, through continued registration of the Indenture
Trustee's (or its nominee's) ownership of such security.
(c) 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.
4. All Trust Accounts will initially be established at the Indenture
Trustee.
SECTION B. Collections. The Servicer shall remit within two Business
Days of receipt thereof to the Collection Account all payments by or on
behalf of the Obligors with respect to the Receivables, and all Liquidation
Proceeds, both as collected during the Collection Period. Notwithstanding
the foregoing, for so long as: (i) Credit remains the Servicer, (ii) no
Servicer Default shall have occurred and be continuing and (iii) prior to
ceasing daily remittances, the Rating Agency Condition shall have been
satisfied (and any conditions or limitations imposed by the Rating Agencies
in connection therewith are complied with), the Servicer shall remit such
collections with respect to the related Collection Period to the Collection
Account on the Transfer Date immediately following the end of such
Collection Period. For purposes of this Article V, the phrase "payments by
or on behalf of the Obligors" shall mean payments made with respect to the
Receivables by Persons other than the Servicer or the Seller.
SECTION C. Application of Collections. 1. With respect to each
Receivable, all collections for the Collection Period shall be applied to
the related Scheduled Payment.
2. All Liquidation Proceeds shall be applied to the related
Receivable.
SECTION D. 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 E. Distributions. 1. On each Determination Date, the Servicer
shall calculate all amounts required to determine the amounts to be
deposited in the Note Distribution Account, the Certificate Distribution
Account and the Spread Account.
2. On each Payment Date, the Servicer shall instruct the Indenture
Trustee (based on the information contained in the Servicer's Certificate
delivered on the related Determination Date pursuant to Section 4.8) to make
the following deposits and distributions for receipt by the Servicer or
deposit in the applicable Trust Account or Certificate Distribution Account,
as applicable, by 10:00 a.m. (New York time), to the extent of the Total
Distribution Amount, in the following order of priority:
(a) to the Servicer, if other than Credit or an Affiliate of
Credit, the Servicing Fee and all unpaid Servicing Fees owed to such
Servicer from prior Collection Periods;
(b) to the Administrator, from the Interest Distribution Amount,
the Administration Fee and all unpaid Administration Fees from prior
Collection Periods;
(c) to the Note Distribution Account, the Class A Noteholders'
Interest Distributable Amount;
(d) to the Note Distribution Account, the Class B Noteholders'
Interest Distributable Amount;
(e) to the Note Distribution Account, the A-1 Noteholders'
Principal Distributable Amount;
(f) to the Note Distribution Account, the A-2 Noteholders'
Principal Distributable Amount;
(g) to the Note Distribution Account, the A-3 Noteholders'
Principal Distributable Amount;
(h) to the Note Distribution Account, the Class B Noteholders'
Principal Distributable Amount;
(i) to the Certificate Distribution Account, the
Certificateholders' Interest Distributable Amount;
(j) to the Certificate Distribution Account, the
Certificateholders' Principal Distributable Amount;
(k) to the Servicer, if the Servicer is Credit or an Affiliate of
Credit, the Servicing Fee and all unpaid Servicing Fees from prior
Collection Periods; and
(l) to the Spread Account, the remaining Total Distribution
Amount.
SECTION F. Spread Account. 1. On the Closing Date and on each
Subsequent Transfer Date, the Seller shall deposit the applicable Spread
Account Initial Deposit into the Spread Account.
2. 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)(i)
shall be deemed released from the Trust and the security interest therein
granted to the Indenture Trustee, and the Seller (and such transferees and
assignees) shall in no event thereafter be required to refund any such
distributed amounts.
3. 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 and assignees) shall in no event be required to refund any
amounts properly distributed pursuant to this Section 5.6(c).
4. In the event that the Noteholders' Distributable Amount for a
Payment Date exceeds the amount deposited into the Note Distribution Account
pursuant to Sections 5.5(b)(iii), (iv), (v), (vi), (vii) and (viii) on such
Payment Date, the Servicer shall instruct the Indenture Trustee on such
Payment Date to withdraw from the Spread Account on such Payment Date an
amount equal to such excess, to the extent of funds available therein (but
subject to clause (f)), and deposit such amount into the Note Distribution
Account.
5. [Reserved]
6. [Reserved]
7. 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 G. Pre-Funding Account. 1. On the Closing Date, the Trustee
will deposit, on behalf of the Seller, in the Pre-Funding Account
$314,947,499 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, and (ii) the Spread Account Initial Deposit for such
Subsequent Transfer Date and, on behalf of the Seller, deposit such amount
in the Spread Account.
2. If: (i) the Pre-Funded Amount has not been reduced to zero on the
Payment Date on which the Funding Period ends (or, if the Funding Period
does not end on a Payment Date, on the first Payment Date following the end
of the Funding Period) or (ii) the Pre-Funded Amount has been reduced to
$100,000 or less on any Determination Date, in either case after giving
effect to any reductions in the Pre-Funded Amount on such date pursuant to
paragraph (a), the Servicer shall instruct the Indenture Trustee to withdraw
from the Pre-Funding Account, in the case of clause (i), on such Payment
Date or, in the case of clause (ii), on the Payment Date immediately
succeeding such Determination Date, the amount remaining at the time in the
Pre-Funding Account (such remaining amount being the "Remaining Pre-Funded
Amount") and deposit such amounts in the Note Distribution Account, so that
such amounts are payable: (A) first, to the A-1 Noteholders, (B) second, to
the A-2 Noteholders and (C) third, to the A-3 Noteholders. If the Remaining
Pre-Funded Amount is greater than $100,000, the Seller will deposit into the
Note Distribution Account an amount equal to the Noteholders' Prepayment
Premium; provided, that the Seller shall be liable for the payment of the
Noteholders' Prepayment Premium solely to the extent the Seller receives
such amounts from Credit pursuant to Section 5.6 of the Purchase Agreement.
SECTION H. 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 I. [Intentionally Omitted].
SECTION J. Statements to Certificateholders and Noteholders. 1.On
each Determination Date the Servicer shall provide to the Indenture Trustee
(with a copy to the Rating Agencies), for the Indenture Trustee to forward
to each Noteholder of record, and to the Trustee, for the Trustee to forward
to each Certificateholder of record, a statement substantially in the form
of Exhibits A and B, respectively, setting forth at least the following
information as to each Class of the Notes and the Certificates to the extent
applicable:
(a) the amount of such distribution allocable to principal of
each Class of Notes;
(b) the amount of the distribution allocable to interest of each
Class of Notes;
(c) the amount of the distribution allocable to principal of the
Certificates;
(d) the amount of the distribution allocable to interest of the
Certificates;
(e) the Pool Balance as of the close of business on the last day
of the preceding Collection Period;
(f) 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;
(g) the amount of the Servicing Fee paid to the Servicer with
respect to the preceding Collection Period;
(h) the amount of the Administration Fee paid to the
Administrator in respect of the preceding Collection Period;
(i) the amount of the aggregate Realized Losses, if any, for such
Collection Period;
(j) the aggregate Purchase Amounts for Receivables, if any, that
were repurchased or purchased in such Collection Period;
(k) the balance of the Spread Account on such Payment Date, after
giving effect to changes therein on such Payment Date;
(l) for Payment Dates during the Funding Period, the remaining
Pre-Funded Amount;
(m) 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;
(n) [intentionally omitted]; and
(o) 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 K. 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 XVII.
The Seller
SECTION A. 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.
1. 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.
2. 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.
3. Power and Authority. The Seller has the power and authority
to execute and deliver this Agreement and to carry out its terms; the
Seller has full power and authority to sell and assign the property to
be sold and assigned to and deposited with the Issuer and has duly
authorized such sale and assignment to the Issuer by all necessary
corporate action; and the execution, delivery and performance of this
Agreement have been, and the execution, delivery and performance of
each Subsequent Transfer Assignment have been or will be on or before
the related Subsequent Transfer Date, duly authorized by the Seller by
all necessary corporate action.
4. 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.
5. 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.
6. 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, 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 B. Corporate Existence. 1. During the term of this Agreement,
the Seller will keep in full force and effect its existence, rights and
franchises as a corporation under the laws of the jurisdiction of its
incorporation and will obtain and preserve its qualification to do business
in each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, the Basic
Documents and each other instrument or agreement necessary or appropriate to
the proper administration of this Agreement and the transactions
contemplated hereby.
2. 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:
(a) the Seller shall maintain corporate records and books of
account separate from those of its Affiliates;
(b) 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;
(c) 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);
(d) 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
(e) all transactions and dealings between the Seller and its
Affiliates will be conducted on an arm's-length basis.
SECTION C. 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.
1. 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 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.
2. 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 D. Merger or Consolidation of, or Assumption of the
Obligations of, Seller. Any Person: (a) into which the Seller may be merged
or consolidated, (b) that may result from any merger or consolidation to
which the Seller shall be a party or (c) that may succeed to the properties
and assets of the Seller substantially as a whole, which Person (in any of
the foregoing cases) executes an agreement of assumption to perform every
obligation of the Seller under this Agreement (or is deemed by law to have
assumed such obligations), shall be the successor to the Seller hereunder
without the execution or filing of any document or any further act by any of
the parties to this Agreement; provided, however, that: (i) immediately
after giving effect to such transaction, no representation or warranty made
pursuant to Section 3.1 shall have been breached and no Servicer Default,
and no event that, after notice or lapse of time, or both, would become a
Servicer Default shall have occurred and be continuing, (ii) the Seller
shall have delivered to the Trustee and the Indenture Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such consolidation,
merger or succession and such agreement of assumption comply with this
Section and that all conditions precedent, if any, provided for in this
Agreement relating to such transaction have been complied with, (iii) the
Rating Agency Condition shall have been satisfied with respect to such
transaction and (iv) the Seller shall have delivered to the Trustee and the
Indenture Trustee an Opinion of Counsel either: (A) stating that, in the
opinion of such counsel, all financing statements, continuation statements
and amendments thereto have been executed and filed that are necessary fully
to preserve and protect the interest of the Trustee and Indenture Trustee,
respectively, in the Receivables and reciting the details of such filings,
or (B) stating that, in the opinion of such counsel, no such action shall be
necessary to preserve and protect such interests. Notwithstanding anything
herein to the contrary, the execution of the foregoing agreement of
assumption and compliance with clauses (i), (ii), (iii) and (iv) shall be
conditions to the consummation of the transactions referred to in clauses
(a), (b) or (c).
SECTION E. 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 F. 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 Seller on March 18, 1997, and which may be subject to the same
assumptions and qualifications as that opinion.
ARTICLE XVIII.
The Servicer
SECTION A. Representations of Servicer. The Servicer makes the
following representations on which the Issuer is deemed to have relied in
acquiring the Receivables. The representations speak as of the execution and
delivery of the Agreement and as of the Closing Date, in the case of the
Initial Receivables, and as of the applicable Subsequent Transfer Date, in
the case of the Subsequent Receivables, and shall survive the sale of the
Receivables to the Issuer and the pledge thereof to the Indenture Trustee
pursuant to the Indenture.
1. 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.
2. 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.
3. 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.
4. Binding Obligation. This Agreement constitutes a legal, valid
and binding obligation of the Servicer enforceable against the
Servicer in accordance with its terms.
5. No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
shall not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time)
a default under, the articles of incorporation or by-laws of the
Servicer, or any indenture, agreement or other instrument to which the
Servicer is a party or by which it shall be bound; or result in the
creation or imposition of any Lien upon any of its properties pursuant
to the terms of any such indenture, agreement or other instrument
(other than this Agreement); or violate any law or, to the best of the
Servicer's knowledge, any order, rule or regulation applicable to the
Servicer of any court or of any Federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Servicer or its properties.
6. 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.
7. 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 B. Indemnities of Servicer. The Servicer shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer under this Agreement.
1. 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:
(a) the use, ownership or operation by the Servicer or any
Affiliate thereof of any of the Financed Equipment;
(b) any taxes that may at any time be asserted against any
such Person with respect to the transactions contemplated herein,
including any sales, gross receipts, general corporation,
tangible personal property, privilege or license taxes (but, in
the case of the Issuer, not including any taxes asserted with
respect to, and as of the date of, the sale of the Receivables to
the Issuer or the issuance and original sale of the Certificates,
the 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
(c) 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.
2. 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:
(a) 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
(b) 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.
3. The Servicer shall pay any and all taxes levied or assessed
upon all or any part of the Trust Estate.
4. 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).
5. The Servicer shall, except as otherwise expressly provided in
the Indenture or the Trust Agreement, reimburse either the Indenture
Trustee or the Trustee, respectively, upon its request for all
reasonable expenses, disbursements and advances incurred or made in
accordance with the Indenture or the Trust Agreement, respectively,
(including the reasonable compensation, expenses and disbursements of
its agents and either in-house counsel or outside counsel, but not
both), except any such expense, disbursement or advance as may be
attributable to the Indenture Trustee's or the Trustee's, respectively
negligence, bad faith or willful misfeasance.
For purposes of this Section, in the event of the termination of the
rights and obligations of the Servicer pursuant to Section 8.1, or a
resignation by the Servicer pursuant to this Agreement, the Servicer shall
be deemed to be the Servicer pending appointment of a successor Servicer
pursuant to Section 8.2.
Indemnification under this Section shall survive the resignation or
removal of the Trustee or the Indenture Trustee or the termination of this
Agreement, the Trust Agreement and the Indenture and shall include
reasonable fees and expenses of counsel and expenses of litigation. If the
Servicer shall have made any indemnity payments pursuant to this Section and
the Person to or on behalf of whom such payments are made thereafter
collects any of such amounts from others, such Person shall promptly repay
such amounts to the Servicer, without interest.
SECTION C. Merger or Consolidation of, or Assumption of the
Obligations of, Servicer. Any Person: (a) into which the Servicer may be
merged or consolidated, (b) that may result from any merger or consolidation
to which the Servicer shall be a party, or (c) that may succeed to the
properties and assets of the Servicer substantially as a whole, which Person
(in any of the foregoing circumstances) executes an agreement of assumption
to perform every obligation of the Servicer hereunder (or is deemed by law
to have assumed such obligations), shall be the successor to the Servicer
under this Agreement without further act on the part of any of the parties
to this Agreement; provided, however, that: (i) immediately after giving
effect to such transaction, no Servicer Default, and no event that, after
notice or lapse of time, or both, would become a Servicer Default shall have
occurred and be continuing, (ii) the Servicer shall have delivered to the
Trustee and Indenture Trustee an Officers' Certificate and an Opinion of
Counsel each stating that such consolidation, merger or succession and such
agreement of assumption comply with this Section and that all conditions
precedent, if any, provided for in this Agreement relating to such
transaction have been complied with, (iii) the Rating Agencies shall have
received at least ten days' prior written notice of such transaction and
(iv) the Servicer shall have delivered to the Trustee and the Indenture
Trustee an Opinion of Counsel either: (A) stating that, in the opinion of
such counsel, all financing statements, continuation statements and
amendments thereto have been executed and filed that are necessary fully to
preserve and protect the interest of the Trustee and the Indenture Trustee,
respectively, in the Receivables and reciting the details of such filings,
or (B) stating that, in the opinion of such counsel, no such action shall be
necessary to preserve and protect such interests. Notwithstanding anything
herein to the contrary, the execution of the foregoing agreement of
assumption and compliance with clauses (i), (ii), (iii) and (iv) shall be
conditions to the consummation of the transactions referred to in clauses
(a), (b) or (c).
SECTION D. Limitation on Liability of Servicer and Others. Neither
the Servicer nor any of the directors, officers, employees or agents of the
Servicer shall be under any liability to the Issuer, the Noteholders or the
Certificateholders, except as provided under this Agreement, for any action
taken or for refraining from the taking of any action pursuant to this
Agreement or for errors in judgment; provided, however, that this provision
shall not protect the Servicer or any such Person against any liability that
would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of its duties or by reason of reckless
disregard of obligations and duties under this Agreement. The Servicer and
any director, officer, employee or agent of the Servicer may rely in good
faith on the advice of counsel or on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder.
Except as provided in this Agreement, the Servicer shall not be under
any obligation to appear in, prosecute or defend any legal action that shall
not be incidental to its duties to service the Receivables in accordance
with this Agreement, and that in its opinion may involve it in any expense
or liability; provided, however, that the Servicer may undertake any
reasonable action that it may deem necessary or desirable in respect of this
Agreement, the Basic Documents and the rights and duties of the parties to
this Agreement, the other Basic Documents and the interests of the
Certificateholders under this Agreement and the Noteholders under the
Indenture.
SECTION E. Credit Not to Resign as Servicer. Subject to Section 7.3,
Credit shall not resign from the obligations and duties imposed on it as
Servicer under this Agreement except upon determination that the performance
of its duties under this Agreement shall no longer be permissible under
applicable law. Notice of any such determination shall be communicated to
the Trustee and the Indenture Trustee at the earliest practicable time (and,
if such communication is not in writing, shall be confirmed in writing at
the earliest practicable time) and any such determination shall be evidenced
by an Opinion of Counsel to such effect delivered to the Trustee and the
Indenture Trustee concurrently with or promptly after such notice. No such
resignation shall become effective until the Indenture Trustee or a
successor Servicer shall have assumed the responsibilities and obligations
of Credit in accordance with Section 8.2.
SECTION F. Servicer to Act as Administrator. In the event of the
resignation or removal of the Administrator and the failure of a successor
Administrator to have been appointed and to have accepted such appointment
as successor Administrator, the Servicer shall become the successor
Administrator and shall be bound by the terms of the Administration
Agreement.
ARTICLE XIX.
Default
SECTION A. Servicer Default. If any one of the following events (a
"Servicer Default") shall occur and be continuing:
1. 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;
2. any failure by the Servicer or the Seller, as the case may be,
duly to observe or to perform in any material respect any other
covenants or agreements (other than as set forth in clause (a)) of the
Servicer or the Seller (as the case may be) set forth in this
Agreement or any other Basic Document, which failure shall: (i)
materially and adversely affect the rights of Certificateholders 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
Outstanding Amount of the Notes or 25% of the Certificate Balance; or
3. 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 Outstanding Amount of the Notes, 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 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,
for the benefit of the predecessor Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement of the Receivables and related documents, or otherwise. The
predecessor Servicer shall cooperate with the successor Servicer, the
Indenture Trustee and the Trustee in effecting the termination of the
responsibilities and rights of the predecessor Servicer under this
Agreement, including the transfer to the successor Servicer for
administration by it of: (i) all cash amounts that shall at the time be held
by the predecessor Servicer for deposit, or shall thereafter be received by
it with respect to a Receivable and (ii) all Receivable Files. All
reasonable costs and expenses (including attorneys' fees) incurred in
connection with transferring the Receivable Files to the successor Servicer
and amending this Agreement to reflect its succession as Servicer shall be
paid by the predecessor Servicer upon presentation of reasonable
documentation of such costs and expenses. Upon receipt of notice of the
occurrence of a Servicer Default, the Trustee shall give notice thereof to
the Rating Agencies.
SECTION B. Appointment of Successor Servicer. 1. Upon the Servicer's
receipt of notice of termination, pursuant to Section 8.1, or the Servicer's
resignation in accordance with this Agreement, the predecessor Servicer
shall continue to perform its functions as Servicer under this Agreement, in
the case of termination, only until the date specified in such termination
notice or, if no such date is specified in a notice of termination, until
receipt of such notice and, in the case of resignation, until the later of:
(x) the date 45 days from the delivery to the Trustee and the Indenture
Trustee of written notice of such resignation (or written confirmation of
such notice) in accordance with this Agreement and (y) the date upon which
the predecessor Servicer shall become unable to act as Servicer, as
specified in the notice of resignation and accompanying Opinion of Counsel.
In the event of the Servicer's termination hereunder, the Issuer shall
appoint a successor Servicer acceptable to the Indenture Trustee, and the
successor Servicer shall accept its appointment by a written assumption in
form acceptable to the Indenture Trustee. In the event that a successor
Servicer has not been appointed at the time when the predecessor Servicer
has ceased to act as Servicer in accordance with this Section, the Indenture
Trustee without further action shall automatically be appointed the
successor Servicer and shall be entitled to the Servicing Fee.
Notwithstanding the above, the Indenture Trustee shall, if it shall be
unable so to act, appoint or petition a court of competent jurisdiction to
appoint any established institution, having a net worth of not less than
$50,000,000 and whose regular business shall include the servicing of
receivables, as the successor to the Servicer under this Agreement.
2. Upon appointment, the successor Servicer (including the Indenture
Trustee acting as successor Servicer) shall be the successor in all respects
to the predecessor Servicer (except with respect to responsibilities and
obligations of the predecessor Servicer set forth in Section 7.2) and shall
be subject to all the responsibilities, duties and liabilities arising
thereafter relating thereto placed on the predecessor Servicer and shall be
entitled to the Servicing Fee and all the rights granted to the predecessor
Servicer by this Agreement.
3. 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 C. Notification to Noteholders and Certificateholders. Upon
any termination of, or appointment of a successor to, the Servicer pursuant
to this Article VIII, the Trustee shall give prompt written notice thereof
to the Certificateholders and the Indenture Trustee shall give prompt
written notice thereof to the Noteholders and the Rating Agencies.
SECTION D. Waiver of Past Defaults. The Noteholders of Notes
evidencing not less than a majority of the Note Balance (or the Holders (as
defined in the Trust Agreement) of Certificates evidencing not less than a
majority of the Certificate Balance, in the case of any default that does
not adversely affect the Indenture Trustee or the 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 in accordance with this Agreement.
Upon any such waiver of a past default, such default shall cease to exist,
and any Servicer Default arising therefrom shall be deemed to have been
remedied for every purpose of this Agreement. No such waiver shall extend to
any subsequent or other default or impair any right consequent thereto.
ARTICLE XX.
Termination
SECTION A. Optional Purchase of All Receivables. 1. 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.
2. Upon any sale of the assets of the Trust pursuant to Section 9.2
of the Trust Agreement, the Servicer shall instruct the Indenture Trustee to
deposit the proceeds from such sale after all payments and reserves
therefrom have been made (the "Insolvency Proceeds") in the Collection
Account. On the Payment Date on, or, if such proceeds are not so deposited
on a Payment Date, on the first Payment Date following the date on which the
Insolvency Proceeds are deposited in the Collection Account, the Servicer
shall instruct the Indenture Trustee to make the following deposits (after
the application on such Payment Date of the Total Distribution Amount and
funds on deposit in the Spread Account pursuant to Sections 5.5 and 5.6)
from the Insolvency Proceeds and any funds remaining on deposit in the
Spread Account (including the proceeds of any sale of investments therein as
described in the following sentence):
(a) first, to the Note Distribution Account, any portion of the
Class A Noteholders' Interest Distributable Amount and the Outstanding
Amount of the Class A Notes (after giving effect to the reduction
resulting from the deposits made in the Note Distribution Account on
such Payment Date and on prior Payment Dates) not otherwise deposited
into the Note Distribution Account on such Payment Date;
(b) second, to the Note Distribution Account, any portion of the
Class B Noteholders' Interest Distributable Amount and the Outstanding
Amount of the Class B Notes (after giving effect to the reduction
resulting from the deposits made in the Note Distribution Account on
such Payment Date and on prior Payment Dates) not otherwise deposited
into the Note Distribution Account on such Payment Date;
(c) third, to the Certificate Distribution Account, any portion
of the Certificateholders' Interest Distributable Amount not otherwise
deposited into the Certificate Distribution Account on such Payment
Date; and
(d) fourth, to the Certificate Distribution Account, the
Certificate Balance (after giving effect to the reduction resulting
from the deposits made in the Certificate Distribution Account on such
Payment Date).
Any investments on deposit in the Spread Account that will not mature on or
before such Payment Date shall be sold by the Indenture Trustee at such time
as will result in the Indenture Trustee receiving the proceeds from such
sale not later than the Transfer Date preceding such Payment Date. Any
Insolvency Proceeds remaining after the deposits described above shall be
paid to the Seller.
3. As described in Article IX of the Trust Agreement, notice of any
termination of the Trust shall be given by the Servicer to the Trustee and
the Indenture Trustee as soon as practicable after the Servicer has received
notice thereof.
4. 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 XXI.
Miscellaneous Provisions
SECTION A. Amendment. The Agreement may be amended from time to time
by a written amendment duly executed and delivered by the Seller, the
Servicer and the Issuer, with the written consent of the Indenture Trustee,
but without the consent of any of the 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.
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) Noteholders holding Notes evidencing not less than a majority
of the Note Balance, and (c) the Holders (as defined in the Trust Agreement)
of Certificates evidencing not less than a majority of the Certificate
Balance, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the 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 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 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 Section
10.2(i)(1). The Trustee and the Indenture Trustee may, but shall not be
obligated to, enter into any such amendment that affects the Trustee's or
the Indenture Trustee's, as applicable, own rights, duties or immunities
under this Agreement or otherwise.
SECTION B. Protection of Title to Trust. 1. 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.
2. 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.
3. 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.
4. 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.
5. 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 Harris, as 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.
6. 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.
7. 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.
8. 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.
9. 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 Trustee
and the Indenture Trustee in the Receivables, and reciting the details
of such filings or referring to prior Opinions of Counsel in which
such details are given, or (B) stating that, in the opinion of such
counsel, no such action shall be necessary to preserve and protect
such interest; and
(2) within 90 days after the beginning of each calendar year
beginning with the first calendar year beginning more than three
months after the Initial Cutoff Date, an Opinion of Counsel, dated as
of a date during such 90-day period, either: (A) stating that, in the
opinion of such counsel, all financing statements and continuation
statements have been executed and filed that are necessary fully to
preserve and protect the interest of the Trustee and the Indenture
Trustee in the Receivables, and reciting the details of such filings
or referring to prior Opinions of Counsel in which such details are
given, or (B) stating that, in the opinion of such counsel, no such
action shall be necessary to preserve and protect such interest.
Each Opinion of Counsel referred to in clause (1) or (2) shall specify
any action necessary (as of the date of such opinion) to be taken in the
following year to preserve and protect such interest.
10. 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 C. 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 of: 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), with a copy to The Chase
Manhattan Bank, 450 West 33rd Street, 15th Floor, New York, New York 10001,
Attention: Structured Finance Services (ABS), (d) in the case of the
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 McGraw-Hill
Companies, Inc., 26 Broadway (15th Floor), New York, New York 10004,
Attention of Asset Backed Surveillance Department; or, as to each of the
foregoing, at such other address as shall be designated by written notice to
the other parties.
SECTION D. 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 E. 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 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 F. 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 G. 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 H. 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 I. 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 J. 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 K. Nonpetition Covenants. 1. Notwithstanding any prior
termination of this Agreement, the Servicer and the Seller shall not, prior
to the date that is one year and one day after the termination of this
Agreement, with respect to the Issuer, acquiesce, petition or otherwise
invoke or cause the Issuer to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Issuer under any Federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Issuer or any
substantial part of its property, or ordering the winding up or liquidation
of the affairs of the Issuer. The foregoing shall not limit the right of the
Servicer and the Seller to file any claim in or otherwise take any action
with respect to any such insolvency proceeding that was instituted against
the Issuer by any Person other than the Servicer or the Seller.
2. Notwithstanding any prior termination of this Agreement, the
Servicer shall not, prior to the date that is one year and one day after the
termination of this Agreement, with respect to the Seller, acquiesce,
petition or otherwise invoke or cause the Seller to invoke the process of
any court or governmental authority for the purpose of commencing or
sustaining a case against the Seller under any Federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Seller or
any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Seller. The foregoing shall not limit the
right of the Servicer to file any claim in or otherwise take any action with
respect to any such insolvency proceeding that was instituted against the
Seller by any Person other than the Servicer.
SECTION L. Limitation of Liability of Trustee and Indenture Trustee.
1. Notwithstanding anything contained herein to the contrary, this Agreement
has been countersigned by Chase Manhattan Bank Delaware, not in its
individual capacity but solely in its capacity as Trustee of the Issuer, and
in no event shall Chase Manhattan Bank Delaware, in its individual capacity
or, except as expressly provided in the Trust Agreement, any beneficial
owner of the Issuer have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder or in any
of the certificates, notices or agreements delivered pursuant hereto, as to
all of which recourse shall be had solely to the assets of the Issuer.
2. Notwithstanding anything contained herein to the contrary, this
Agreement has been accepted by Harris Trust and Savings Bank, not in its
individual capacity but solely as Indenture Trustee, and in no event shall
Harris Trust and Savings Bank have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer
hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the
assets of the Issuer.
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-A
By: CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but solely
as Trustee of the Trust
By: /s/ John Cashin
Name: John Cashin
Title: Senior Trust Officer
CASE RECEIVABLES II INC.,
as Seller
By: /s/ Peter Hong
Name: Peter Hong
Title: Treasurer
CASE CREDIT CORPORATION,
as Servicer
By: /s/ Peter Hong
Name: Peter Hong
Title: Treasurer
Acknowledged and Accepted:
HARRIS TRUST AND SAVINGS BANK,
not in its individual capacity
but solely as Indenture Trustee
By: 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
FORM OF NOTEHOLDER'S
STATEMENT PURSUANT TO SECTION 5.10(A)
Payment Date: ______________________
(i) Amount of principal being paid on Notes:
A-1 Notes: ______________ ($_____ per $1,000 original principal
amount)
A-2 Notes: ______________ ($_____ per $1,000 original principal
amount)
A-3 Notes: ______________ ($_____ per $1,000 original principal
amount)
Class B Notes: _____________ ($_____ per $1,000 original principal
amount)
(ii) Amount of interest being paid on Notes:
A-1 Notes: ______________ ($_____ per $1,000 original principal
amount)
A-2 Notes: ______________ ($_____ per $1,000 original principal
amount)
A-3 Notes: ______________ ($_____ per $1,000 original principal
amount)
Class B Notes: _____________ ($_____ per $1,000 original principal
amount)
(iii) Pool Balance at end of the preceding Collection Period: _____
(iv) After giving effect to distributions on this Payment Date:
(a) (1) Outstanding Amount of A-1 Notes: _______
(2) Outstanding Amount of A-2 Notes: _______
(3) Outstanding Amount of A-3 Notes: _______
(4) Outstanding Amount of Class B Notes: _______
(5) A-1 Note Pool Factor: _____
(6) A-2 Note Pool Factor: _____
(7) A-3 Note Pool Factor: _____
(8) Class B Note Pool Factor: _____
(b) (1) Certificate Balance: __________
(2) Certificate Pool Factor: __________
(v) Amount of Servicing Fee: ____ ($_____ per $1,000 original
principal amount)
(vi) Amount of Administration Fee: ____ ($____ per $1,000 original
principal amount)
(vii) Aggregate Amount of Realized Losses for the Collection Period:
__________
(viii) Aggregate Purchase Amounts for the Collection Period: __________
(ix) Balance of Spread Account: __________
(x) Pre-funded Amount: __________
(xi) Balance of Negative Carry Account: __________
<PAGE>
EXHIBIT B
to Sale and Servicing Agreement
FORM OF CERTIFICATEHOLDER'S
STATEMENT PURSUANT TO SECTION 5.10(A)
Payment Date: ______________________
(i) Amount of principal being paid or distributed:
(a) (1) A-1 Notes: __________
(2) A-2 Notes: __________
(3) A-3 Notes: __________
(4) Class B Notes: __________
(b) Certificates: ___________ ($_____ per $1,000 original
principal amount)
(c) Total: __________
(ii) Amount of interest being paid or distributed:
(a) (1) A-1 Notes: __________
(2) A-2 Notes: __________
(3) A-3 Notes: __________
(4) Class B Notes: __________
(b) Certificates: ___________ ($_____ per $1,000 original
principal amount)
(c) Total: __________
(iii) Pool Balance at end of the preceding Collection Period: _____
(iv) After giving effect to distributions on this Payment Date:
(a) (1) Outstanding Amount of A-1 Notes: _______
(2) Outstanding Amount of A-2 Notes: _______
(3) Outstanding Amount of A-3 Notes: _______
(4) Outstanding Amount of Class B Notes: _______
(5) A-1 Note Pool Factor: _____
(6) A-2 Note Pool Factor: _____
(7) A-3 Note Pool Factor: _____
(8) Class B Note Pool Factor: _____
(b) (1) Certificate Balance: __________
(2) Certificate Pool Factor: __________
(v) Amount of Servicing Fee: ____ ($_____ per $1,000 original
principal amount)
(vi) Amount of Administration Fee: ____ ($____ per $1,000 original
principal amount)
(vii) Aggregate amount of Realized Losses for the Collection Period:
__________
(viii) Aggregate Purchase Amounts for the Collection Period: __________
(ix) Balance of Spread Account: __________
(x) Pre-Funded Amount:__________
(xi) Balance of Negative Carry Account: __________
<PAGE>
EXHIBIT C
to Sale and Servicing Agreement
FORM OF SERVICER'S CERTIFICATE
Chase Manhattan Bank Delaware
1201 North Market Street
Wilmington, Delaware 19801
Attention: Corporate Trust
The Chase Manhattan Bank, N.A.
4 Chase MetroTech Center
Brooklyn, New York 11245
Attention: Institutional Trust Group- Third Floor
Harris Trust and Savings Bank
311 West Monroe Street
12th Floor
Chicago, Illinois 60606
Attention: Indenture Trust Administration
Case Receivables II Inc.
233 Lake Avenue
Racine, Wisconsin 53403
Attention: Secretary
Moody's Investors Service, Inc.
ABS Monitoring Department
99 Church Street
New York, New York 10007
Standard & Poor's Ratings Services,
a division of McGraw-Hill Companies, Inc.
26 Broadway (15th Floor)
New York, New York 10004
Attention: Asset Backed Surveillance Department
<PAGE>
$71,500,000 Class A-1 Asset-Backed Notes
$282,000,000 Class A-2 Asset-Backed Notes
$259,125,000 Class A-3 Asset-Backed Notes
$26,000,000 Class B Asset-Backed Notes
$11,375,000 Certificates
Determination Date: __-___-__
DISTRIBUTIONS
(1) Total Distribution Amount $________
(2) Servicing Fee $________
(3) Administration Fee $________
(4) Class A Noteholder's Interest Distributable Amount: $________
. Interest on Class A Notes ($________)
. Class A Noteholder's Interest Carryover Shortfall,
if any ($___________)
(5) Class B Noteholders' Interest Distributable Amount $________
. Interest on Class B Notes ($_________)
. Class B Noteholders' Interest Carryover
Shortfall ($_______)
(6) A-1 Noteholders' Principal Distributable Amount $________
. A-1 Noteholders' Monthly Principal Distributable
Amount ($________)
. A-1 Noteholders' Principal Carryover
Shortfall ($________)
(7) A-2 Noteholders' Principal Distributable Amount $________
. A-2 Noteholders' Monthly Principal Distributable
Amount ($________)
. A-2 Noteholders' Principal Carryover
Shortfall ($________)
(8) A-3 Noteholders' Principal Distributable Amount $________
. A-3 Noteholders' Monthly Principal Distributable
Amount ($________)
. A-3 Noteholders' Principal Carryover
Shortfall ($________)
(9) Class B Noteholders' Principal Distributable Amount $________
. Class B Noteholders' Monthly Principal Distributable
Amount ($________)
. Class B Noteholders' Principal Carryover
Shortfall ($________)
(10) NOTEHOLDERS' DISTRIBUTABLE AMOUNT (4)+(5)+(6)+(7)+(8)+(9)$________
(11) Certificateholders' Interest Distributable Amount $________
. Interest on Certificates ($________)
. Certificateholders' Interest Carryover
Shortfall ($________)
(12) Certificateholders' Principal Distributable Amount $________
. Principal Distribution Amount remaining after Class
A Notes paid in full ($________)
. Certificateholders' Principal Carryover Shortfall
($________)
(13) CERTIFICATEHOLDERS' DISTRIBUTABLE AMOUNT (11)+(12) $________
(14) Deposit to Spread Account (1)-((2)+(3)+(10)+(13)) $________
SPREAD ACCOUNT
(15) Spread Account Balance (after deposit from (14)) $________
(16) Specified Spread Account Balance (after all distributions $________
and adjustments): the lesser of:
(a) 2.00% of the Initial Pool Balance; and
(b) the Note Balance.
(17) Spread Account Balance over the Specified Spread Account $________
Balance (15)-(16)
(18) Excess in Spread Account distributed to Seller (as $________
permitted in Sections 5.6(b) and (c) of the Sale and
Servicing Agreement)
(19) Amount to be withdrawn from the Spread Account and $________
deposited into the Note Distribution Account (as per
Sections 5.6(d) and (f) of the Sale and Servicing
Agreement)
(20) Amount to be withdrawn from the Spread Account and $________
deposited into the Certificate Distribution Account
(as per Sections 5.6(e) and (f) of the Sale and
Servicing Agreement)
(21) Final Spread Account Balance (15)-((18)+(19)+(20)) $________
MISCELLANEOUS
(22) Pool Balance at the beginning of this Collection Period $________
(23) After giving effect to all distributions on the Payment
Date during this Collection Period:
(a) Outstanding Amount of A-1 Notes $________
A-1 Note Pool Factor (_._______)
(b) Outstanding Amount of A-2 Notes $________
A-2 Note Pool Factor (_._______)
(c) Outstanding Amount of A-3 Notes $________
A-3 Note Pool Factor (_._______)
(d) Outstanding Amount of Class B Notes
Class B Note Pool Factor (_._______)
(e) Outstanding Amount of Certificates $________
Certificate Pool Factor (_._______)
(24) Aggregate Purchase Amounts for the preceding Collection $________
period
<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 March 1, 1997 (the "Sale and Servicing
Agreement"), among the undersigned, Case Credit Corporation and Case
Equipment Loan Trust 1997-A (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.
<PAGE>
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
<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 March 1, 1997 (the "Sale and Servicing
Agreement"), among Case Equipment Loan Trust 1997-A, 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.
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of ________, 199_.
CASE RECEIVABLES II INC.,
By: ____________________________
Name: ________________________
Title:________________________
<PAGE>
SCHEDULE A
to Subsequent Transfer Assignment
SCHEDULE OF SUBSEQUENT RECEIVABLES
[See attached list]
<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)(xv) of the Sale
and Servicing Agreement dated as of March 1, 1997, among the Company, Case
Equipment Loan Trust 1997-A 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:________________________
<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)(xiv) OF THE SALE AND SERVICING AGREEMENT
[Letterhead of Arthur Andersen]
___________, 199_
Case Receivables II Inc.
233 Lake Avenue
Racine, Wisconsin 53403
Case Equipment Loan Trust 1997-A
700 State Street
Racine, Wisconsin 53404
Salomon Brothers Inc.,
as Representative of the several Underwriters
____________________
____________________
____________________
____________________
Harris Trust and Savings Bank
311 West Monroe Street
Chicago, Illinois 60606
Chase Manhattan Bank Delaware
1201 North Market Street
Wilmington, Delaware 19801
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-A (the
"Trust") pursuant to the Sale and Servicing Agreement dated as of March 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 10, 1996 and the
prospectus supplement dated _____________, 1997 (together, the
"Prospectus"), which relates to the offering by the Trust of Class A-1
_____% Asset Backed Notes, Class A-2 _____% Asset Backed Notes, Class A-3
_____% Asset-Backed Notes and Class B Asset Backed Notes (collectively, the
"Notes") and the _____% 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 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.
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
<PAGE>
SCHEDULE A
to Accountant's Letter
Selection Criteria Results
1. No Subsequent Receivables was more than 90 days
past due as of the applicable Subsequent Cutoff Date.
2. Each Subsequent Receivable has an APR that is
equal to or greater than 3%.
3. Each Subsequent Receivable has a Contract Value
as of the Subsequent Cutoff Date that (when
combined with the Contract Value of any other
Receivables with the same or an affiliated
Obligor) does not exceed 1% of the aggregate
Contract Value of all Receivables.
4. Each Subsequent Receivable has a remaining term
to maturity (i.e., the period from but excluding
the applicable Subsequent Cutoff Date to and including the
Receivables' maturity date) of not more than
72 months.
<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.
<PAGE>
<PAGE>
CASE EQUIPMENT LOAN TRUST 1997-A
PURCHASE AGREEMENT
between
CASE CREDIT CORPORATION,
as Seller,
and
CASE RECEIVABLES II INC.,
as Purchaser.
Dated as of March 1, 1997
<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.............. 14
SECTION 4.2. Conditions to Obligation of the Seller................. 16
ARTICLE V
Covenants of the Seller
SECTION 5.1. Protection of Right, Title and Interest. .............. 17
SECTION 5.2. Other Liens or Interests............................... 18
SECTION 5.3. Chief Executive Office................................. 18
SECTION 5.4. Costs and Expenses..................................... 18
SECTION 5.5. Indemnification........................................ 18
SECTION 5.6. Transfer of Subsequent Receivables..................... 18
ARTICLE VI
Miscellaneous Provisions
SECTION 6.1. Obligations of Seller.................................. 19
SECTION 6.2. Repurchase Events...................................... 19
SECTION 6.3. Purchaser Assignment of Repurchased Receivables........ 19
SECTION 6.4. Trust.................................................. 19
SECTION 6.5. Amendment.............................................. 20
SECTION 6.6. Accountants' Letters................................... 20
SECTION 6.7. Waivers................................................ 21
SECTION 6.8. Notices................................................ 21
SECTION 6.9. Costs and Expenses..................................... 21
SECTION 6.10. Representations of the Seller and the Purchaser....... 21
SECTION 6.11. Confidential Information.............................. 21
SECTION 6.12. Headings and Cross-References......................... 22
SECTION 6.13. Governing Law......................................... 22
SECTION 6.14. Counterparts.......................................... 22
SECTION 6.15. Severability.......................................... 22
SCHEDULES AND EXHIBITS
SCHEDULE A Location of Receivables Files
EXHIBIT A Form of Assignment
EXHIBIT B Form of Subsequent Transfer Assignment
<PAGE>
PURCHASE AGREEMENT, dated as of March 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 ("Contracts"); and
WHEREAS, in the regular course of its business, the Seller purchases
from Case Corporation certain Contracts originated by Case Corporation in
the ordinary course of business; and
WHEREAS, the Seller and the Purchaser wish to set forth the terms
pursuant to which: (1) Contracts having an aggregate Contract Value of
approximately $97,388,399 (the "Purchased Contracts") as of February 28,
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, having an aggregate Contract Value of approximately $239,051,411
(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-A (the "Trust"), which Trust will issue 6.70% Asset Backed Certificates
representing fractional undivided interests in, and 5.597% Class A-1 Asset
Backed Notes, 6.00% Class A-2 Asset Backed Notes, 6.45% Class A-3 Asset
Backed Notes and 6.70% Class B Asset Backed Notes collateralized by, the
Receivables and the other property of the Trust; and
WHEREAS, the Seller and the Purchaser wish to set forth herein certain
representations, warranties, covenants and indemnities of the Seller with
respect to the Receivables for the benefit of the Purchaser, the Trust, the
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 March 18, 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 March 7, 1997, and the
prospectus supplement dated March 11, 1997, relating to the Notes.
"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 March 11, 1997, among Salomon Brothers Inc, 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 $96,001,090 (the "Initial Purchase Price") in the
manner set out in Section 2.5(a), the Seller does hereby sell, transfer,
assign, set over and otherwise convey to the Purchaser, without recourse
(subject to the obligations herein), all of its right, title and interest
in, to and under:
(i) the Purchased Contracts, including all documents constituting
chattel paper included therewith, and all obligations of the Obligors
thereunder, including all moneys paid thereunder on or after the
Initial Cutoff Date;
(ii) the security interests in the Financed Equipment granted by
Obligors pursuant to the Purchased Contracts and any other interest of
the Seller in such Financed Equipment;
(iii) any proceeds with respect to the Purchased Contracts from
claims on insurance policies covering Financed Equipment or Obligors;
(iv) any proceeds from recourse to Dealers with respect to the
Purchased Contracts other than any interest in the Dealers' reserve
accounts maintained with the Seller;
(v) any Financed Equipment that shall have secured the Purchased
Contracts and that shall have been acquired by or on behalf of the
Purchaser; and
(vi) the proceeds of any and all of the foregoing (other than
Recoveries).
SECTION 2.2. Conveyance of Subsequent Receivables. Subject to the
conditions set forth in Section 4.1(b), in consideration of the Purchaser's
delivery on the related Subsequent Transfer Date to or upon the order of the
Seller of the related Subsequent Purchase Price pursuant to Section 2.5, the
Seller does hereby sell, transfer, assign, set over and otherwise convey to
the Purchaser, without recourse (subject to the obligations herein), all of
its right, title and interest in, to and under:
(i) the Subsequent Receivables listed on Schedule A to the
related Subsequent Transfer Assignment, including all documents
constituting chattel paper included therewith, and all obligations of
the Obligors thereunder, including all moneys paid thereunder on or
after the related Subsequent Cutoff Date;
(ii) the security interests in the Financed Equipment granted by
Obligors pursuant to such Subsequent Receivables and any other
interest of the Seller in such Financed Equipment;
(iii) any proceeds with respect to such Subsequent Receivables
from claims on insurance policies covering Financed Equipment or
Obligors;
(iv) any proceeds with respect to such Subsequent Receivables
from recourse to Dealers other than any interest in the Dealers'
reserve accounts maintained with the Seller;
(v) any Financed Equipment that shall have secured any such
Subsequent Receivable and that shall have been acquired by or on
behalf of the Purchaser; and
(vi) the proceeds of any and all of the foregoing (other than
Recoveries).
SECTION 2.3. Intention of the Parties. The parties to this Agreement
intend that the transactions contemplated hereby shall be, and shall be
treated as, a purchase by the Purchaser and a sale by the Seller of the
Purchased Contracts and the Subsequent Receivables and not as a lending
transaction. The foregoing sale, assignment, transfer and conveyance does
not constitute, and is not intended to result in a creation or assumption by
the Purchaser of, any obligation or liability with respect to any Purchased
Contract or any Subsequent Receivables, nor shall the Purchaser be obligated
to perform or otherwise be responsible for any obligation of the Seller or
any other Person in connection with the Purchased Contracts or the
Subsequent Receivables or under any agreement or instrument relating
thereto, including any contract or any other obligation to any Obligor.
SECTION 2.4. The Closing. The sale and purchase of the Purchased
Contracts shall take place at a closing (the "Closing") at the offices of
Mayer, Brown & Platt, 190 South LaSalle Street, Chicago, Illinois 60603 on
the Closing Date, simultaneously with the closings under: (a) the Sale and
Servicing Agreement, (b) the Trust Agreement, (c) the Administration
Agreement and (d) the Indenture.
SECTION 2.5. Payment of the Purchase Price.
(a) Initial Receivables. The Initial Purchase Price is payable as
follows: (i) $83,428,697 in cash at the Closing and (ii) $14,341,702 in
cash, as provided in the subordinated note dated March 18, 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 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 indenture, agreement or other instrument to which
the Purchaser is a party or by which it is bound; or result in the
creation or imposition of any Lien upon any of its properties pursuant
to the terms of any such indenture, agreement or other instrument
(other than the Sale and Servicing Agreement and the Indenture); or
violate any law or, to the best of the Purchaser's knowledge, any
order, rule or regulation applicable to the Purchaser of any court or
of any Federal or State regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the
Purchaser or its properties.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the Purchaser's best knowledge, threatened, before any
court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Purchaser or its
properties: (i) asserting the invalidity of this Agreement, (ii)
seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or (iii) seeking any determination or
ruling that could reasonably be expected to materially and adversely
affect the performance by the Purchaser of its obligations under, or
the validity or enforceability of, this Agreement.
SECTION 3.2. Representations and Warranties of the Seller. (a) The
Seller hereby represents and warrants to the Purchaser as of the date hereof
and as of the Closing Date:
(i) Organization and Good Standing. The Seller has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with the power and authority
to own its properties and to conduct its business as such properties
are currently owned and such business is presently conducted, and had
at all relevant times, and has, the power and authority to acquire,
own and sell the Receivables.
(ii) Due Qualification. The Seller is duly qualified to do
business as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals, in all jurisdictions in which
the ownership or lease of property or the conduct of its business
shall require such qualifications.
(iii) Power and Authority. The Seller has the power and
authority to execute and deliver this Agreement and to carry out its
terms; the Seller has full power and authority to sell and assign the
property to be sold and assigned to the Purchaser hereby and has duly
authorized such sale and assignment to the Purchaser by all necessary
corporate action; and the execution, delivery and performance of this
Agreement have been, and the execution, delivery and performance of
each Subsequent Transfer Assignment have been or will be on or before
the related Subsequent Transfer Date, duly authorized by the Seller by
all necessary corporate action.
(iv) Binding Obligation. This Agreement constitutes, and each
Subsequent Transfer Assignment when executed and delivered by the
Seller will constitute, a legal, valid and binding obligation of the
Seller enforceable against the Seller in accordance with their terms.
(v) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
do not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time)
a default under, the certificate of incorporation or by-laws of the
Seller, or any indenture, agreement or other instrument to which the
Seller is a party or by which it is bound; or result in the creation
or imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement or other instrument (other than
this Agreement); or violate any law or, to the best of the Seller's
knowledge, any order, rule or regulation applicable to the Seller of
any court or of any Federal or State regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over
the Seller or its properties.
(vi) No Proceedings. There are no proceedings or investigations
pending, or to the Seller's best knowledge, threatened, before any
court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties:
(A) asserting the invalidity of this Agreement, (B) seeking to prevent
the consummation of any of the transactions contemplated by this
Agreement, or (C) seeking any determination or ruling that could
reasonably be expected to materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement.
(b) The Seller makes the following representations and warranties as
to the Receivables on which the Purchaser relies in accepting the Purchased
Contracts and the Subsequent Receivables and in transferring the Receivables
to the Trust. Such representations and warranties speak as of the execution
and delivery of this Agreement and as of the Closing Date, in the case of
the Purchased Contracts, and as of the applicable Subsequent Transfer Date,
in the case of the Subsequent Receivables, but shall survive the sale,
transfer and assignment of the Receivables to the Purchaser and the
subsequent assignment and transfer of such Receivables to the Trust pursuant
to the Sale and Servicing Agreement and pursuant to the Indenture:
(i) Characteristics of Receivables. Each Receivable: (A) was
originated in the United States of America by a Dealer in connection
with the retail sale of Financed Equipment in the ordinary course of
such Dealer's business, was fully and properly executed by the parties
thereto, was purchased by the Seller from a Dealer and was validly
assigned by such Dealer to the Seller in accordance with its terms,
(B) has created a valid, subsisting and enforceable first priority
security interest in favor of the Seller in the Financed Equipment,
which is assignable by the Seller to the Purchaser, by the Purchaser
to the Issuer and by the Issuer to the Indenture Trustee, (C) contains
customary and enforceable provisions such that the rights and remedies
of the holder thereof are adequate for realization against the
collateral of the benefits of the security, and (D) provides for fixed
payments on a periodic basis that fully amortize the Amount Financed
by maturity and yield interest at the Annual Percentage Rate.
(ii) Schedule of Receivables. The information set forth 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 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
and each Subsequent Transfer Assignment complies in all material
respects with all requirements of applicable Federal, State and local
laws and regulations thereunder, including usury law, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair
Credit Reporting Act, the Fair Debt Collection Practices Act, the
Federal Trade Commission Act, the Magnuson-Moss Warranty Act, the
Federal Reserve Board's Regulations B and S, the Wisconsin Consumer
Act and State adaptations of the National Consumer Act and of the
Uniform Consumer Credit Code, and other consumer credit laws and equal
credit opportunity and disclosure laws.
(iv) Binding Obligation. Each Receivable represents the genuine,
legal, valid and binding payment obligation in writing of the Obligor,
enforceable by the holder thereof in accordance with its terms.
(v) No Government Obligor. None of the Receivables is due from
the United States of America or any State or from any agency,
department or instrumentality of the United States of America or any
State.
(vi) Security Interest in Financed Equipment. Immediately prior
to the sale, assignment and transfer thereof, each Receivable shall be
secured by a validly perfected first priority security interest in the
Financed Equipment in favor of the Seller as secured party or all
necessary and appropriate actions have been commenced that would
result in the valid perfection of a first priority security interest
in the Financed Equipment in favor of the Seller as secured party.
(vii) Receivables in Force. No Receivable has been satisfied,
subordinated or rescinded, nor has any Financed Equipment been
released from the Lien granted by the related Receivable in whole or
in part.
(viii) No Amendment or Waiver. No provision of a Receivable has
been waived, altered or modified in any respect, except pursuant to a
document, instrument or writing included in the Receivable Files and
no such amendment, waiver, alteration or modification causes such
Receivable not to conform to the other warranties contained in this
Section.
(ix) No Defenses. No right of rescission, setoff, counterclaim
or defense has been asserted or threatened or exists with respect to
any Receivable.
(x) No Liens. To the best of the Seller's knowledge, no Liens or
claims, including claims for work, labor or materials, relating to any
of the Financed Equipment have been filed that are Liens prior to, or
equal or coordinate with, the security interest in the Financed
Equipment granted by any Receivable.
(xi) No Default. No Receivable has a payment that is more than
90 days overdue as of the Initial Cutoff Date or Subsequent Cutoff
Date, as applicable, and, except for a payment default continuing for
a period of not more than 90 days, no default, breach, violation or
event permitting acceleration under the terms of any Receivable has
occurred and is continuing; and no continuing condition that with
notice or the lapse of time would constitute such a default, breach,
violation or event permitting acceleration under the terms of any
Receivable has arisen; and the Seller has not waived and shall not
waive any of the foregoing.
(xii) Title. It is the intention of the Seller that the
transfers and assignments contemplated herein and in the Liquidity
Receivables Purchase Agreement constitute a sale of the Receivables
from the Seller to the Purchaser and that the beneficial interest in
and title to the Receivables not be part of the debtor's estate in the
event of the filing of a bankruptcy petition by or against the Seller
under any bankruptcy or similar law. No Receivable has been sold,
transferred, assigned or pledged by the Seller to any Person other
than the Purchaser. Immediately prior to the transfers and assignments
contemplated herein and in the Liquidity Receivables Purchase
Agreement, the Seller had good title to each Receivable, free and
clear of all Liens and, immediately upon the transfer thereof, the
Purchaser shall have good title to each Receivable, free and clear of
all Liens; and the transfer and assignment of the Receivables to the
Purchaser has been perfected under the UCC.
(xiii) Lawful Assignment. No Receivable has been originated in,
or is subject to the laws of, any jurisdiction under which the sale,
transfer and assignment of such Receivable or any Receivable under
this Agreement, the Liquidity Receivables Purchase Agreement, the Sale
and Servicing Agreement or the Indenture is unlawful, void or
voidable.
(xiv) All Filings Made. All filings (including UCC filings)
necessary in any jurisdiction to give the Purchaser a first priority
perfected ownership interest in the Receivables have been made.
(xv) One Original. There is only one original executed copy of
each Receivable.
(xvi) Maturity of Receivables. Each Receivable has a remaining
term to maturity of not more than 72 months, in the case of the
Initial Receivables, and 72 months, in the case of the Subsequent
Receivables; the weighted average remaining term of the Initial
Receivables is approximately 49.46 months as of the Initial Cutoff
Date; the weighted average original term of the Receivables, including
as of each Subsequent Transfer Date all Subsequent Receivables
previously transferred to the Purchaser, will not be greater than 55.0
months.
(xvii) Scheduled Payments and APR. No Receivable has a final
scheduled payment date later than six months preceding the Final
Scheduled Maturity Date; each Receivable provides for payments that
fully amortize the Amount Financed over the original term of the
Receivable and is a Precomputed Receivable; and each Receivable has an
APR of at least 3.0%.
(xviii) Location of Receivable Files. The Receivable Files are
kept at one or more of the locations listed in Schedule 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. Approximately 49.28% of the aggregate Contract
Value of the Initial Receivables, constituting 44.19% of the number of
Initial Receivables as of the Initial Cutoff Date, were secured by
equipment that was new at the time the related Initial Receivable was
originated; the remainder of the Initial Receivables represent
financing of used equipment; approximately 68.67% of the aggregate
Contract Value of the Initial Receivables, constituting 69.30% of the
number of Initial Receivables as of the Initial Cutoff Date, represent
the financing of agricultural equipment; the remainder of the Initial
Receivables represent the financing of construction equipment. The
aggregate Contract Value of the Receivables for the purposes of the
above calculations as of the Initial Cutoff Date is $336,439,809.97
(and is calculated using the individual APR applicable to each Initial
Receivable). Additionally, not more than 40% of the aggregate Contract
Value of the Receivables, including, as of each Subsequent Transfer
Date, all Subsequent Receivables previously transferred to the
Purchaser, will represent Contracts for the financing of construction
equipment.
(xxii) No Bankruptcies. No Obligor on any Receivable as of the
Initial Cutoff Date or the Subsequent Cutoff Date, as applicable, was
noted in the related Receivable File as 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. As of the Initial Cutoff Date and as
shown on the books of the Seller: (A) Initial Receivables having an
aggregate Contract Value equal to 59.70% of the Initial Pool Balance
had annual scheduled payments, (B) Initial Receivables having an
aggregate Contract Value equal to 4.53% of the Initial Pool Balance
had semi-annual scheduled payments, (C) Initial Receivables having an
aggregate Contract Value equal to 0.47% of the Initial Pool Balance
had quarterly scheduled payments, and (D) Initial Receivables having
an aggregate Contract Value equal to 35.30% of the Initial Pool
Balance had monthly scheduled payments.
(xxvii) First Payment. As of the Initial Cutoff Date, Obligors
had not yet made the first payment in respect of Initial Receivables
representing less than 46.36% of the Initial Pool Balance.
(xxviii) Interest Accruing. Each Receivable, other than those
Receivables consisting of Contracts that contain interest waivers for
a specified period of time, is, as of the Closing Date or Subsequent
Transfer Date, as applicable, accruing interest; no Receivable
contains an interest waiver extending more than 12 months after the
Initial Cutoff Date.
(xxix) Seller's Representations. The representations and
warranties of the Seller contained in Section 3.2(a) are true and
correct.
ARTICLE IV
Conditions
SECTION 4.1. Conditions to Obligation of the Purchaser.
(a) Initial Receivables. The obligation of the Purchaser to purchase
the Purchased Contracts is subject to the satisfaction of the following
conditions:
(i) Representations and Warranties True. The representations and
warranties of the Seller hereunder shall be true and correct on the
Closing Date and the Seller shall have performed all obligations to be
performed by it hereunder on or prior to the Closing Date.
(ii) Computer Files Marked. The Seller shall, at its own
expense, on or prior to the Closing Date, indicate in its computer
files that Receivables created in connection with the Purchased
Contracts have been sold to the Purchaser pursuant to this Agreement
and deliver to the Purchaser the Schedule of Receivables certified by
the Chairman, the President, a Vice President or the Treasurer of the
Seller to be true, correct and complete.
(iii) Documents To Be Delivered by the Seller at the Closing.
(A) The Assignment. At the Closing (but only if the
Contract Value of the Purchased Contracts is greater than zero),
the Seller will execute and deliver the Assignment, which shall
be substantially in the form of Exhibit A.
(B) Evidence of UCC Filing. On or prior to the Closing
Date (but only if the Contract Value of the Purchased Contracts
is greater than zero), the Seller shall execute and file, at its
own expense, a UCC financing statement in each jurisdiction in
which such action is required by applicable law fully to perfect
the Purchaser's right, title and interest in the Purchased
Contracts and the other property sold hereunder, executed by the
Seller, as seller or debtor, and naming the Purchaser, as
purchaser or secured party, describing the Purchased Contracts
and the other property sold hereunder, meeting the requirements
of the laws of each such jurisdiction and in such manner as is
necessary to perfect the sale, transfer, assignment and
conveyance of such Purchased Contracts and such other property to
the Purchaser. The Seller shall deliver (or cause to be
delivered) a file-stamped copy, or other evidence satisfactory to
the Purchaser of such filing, to the Purchaser on or prior to the
Closing Date.
(C) Other Documents. The Seller will deliver such other
documents as the Purchaser may reasonably request.
(iv) Other Transactions. The transactions contemplated by the
Sale and Servicing Agreement to be consummated on the Closing Date
shall be consummated on such date.
(b) Subsequent Receivables. The obligation of the Purchaser to
purchase any Subsequent Receivables is subject to the satisfaction of the
following conditions on or prior to the related Subsequent Transfer Date:
(i) the Seller shall have delivered to the Purchaser a duly
executed written assignment in substantially the form of Exhibit B
(the "Subsequent Transfer Assignment"), which shall include
supplements to the Schedule of Receivables listing the Subsequent
Receivables;
(ii) the Seller shall, to the extent required by Section 5.2 of
the Sale and Servicing Agreement, have delivered to the Purchaser for
deposit in the Collection Account all collections in respect of the
Subsequent Receivables;
(iii) as of such Subsequent Transfer Date: (A) the Seller was not
insolvent and will not become insolvent as a result of the transfer of
Subsequent Receivables on such Subsequent Transfer Date, (B) the
Seller did not intend to incur or believe that it would incur debts
that would be beyond the Seller's ability to pay as such debts
matured, (C) such transfer was not made with actual intent to hinder,
delay or defraud any Person and (D) the assets of the Seller did not
constitute unreasonably small capital to carry out its business as
conducted;
(iv) the applicable Spread Account Initial Deposit for such
Subsequent Transfer Date shall have been made;
(v) the Funding Period shall not have terminated;
(vi) each of the representations and warranties made by the
Seller pursuant to Section 3.2(b) with respect to the Subsequent
Receivables shall be true and correct as of such Subsequent Transfer
Date, and the Seller shall have performed all obligations to be
performed by it hereunder on or prior to such Subsequent Transfer
Date;
(vii) the Seller shall, at its own expense, on or prior to such
Subsequent Transfer Date, indicate in its computer files that the
Subsequent Receivables identified in the related Subsequent Transfer
Assignment have been sold to the Purchaser pursuant to this Agreement
and the Subsequent Transfer Assignment;
(viii) the Seller shall have taken any action required to give
the Purchaser a first perfected ownership interest in the Subsequent
Receivables;
(ix) no selection procedures believed by the Seller to be adverse
to the interests of the Purchaser, the Trust, the 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 to the Seller the portion of the Initial Purchase Price or
the Subsequent Purchase Price, as the case may be, payable on the
Closing Date or such Subsequent Transfer Date pursuant to Section 2.5.
ARTICLE V
Covenants of the Seller
The Seller agrees with the Purchaser as follows; provided, however,
that to the extent that any provision of this Article conflicts with any
provision of the Sale and Servicing Agreement, the Sale and Servicing
Agreement shall govern:
SECTION 5.1. Protection of Right, Title and Interest. (a) Filings.
The Seller shall cause all financing statements and continuation statements
and any other necessary documents covering the right, title and interest of
the Purchaser in and to the Receivables and the other property included in
the Trust Estate to be promptly filed, and at all times to be kept recorded,
registered and filed, all in such manner and in such places as may be
required by law fully to preserve and protect the right, title and interest
of the Purchaser hereunder to the Receivables and the other property sold
hereunder. The Seller shall deliver (or cause to be delivered) to the
Purchaser file-stamped copies of, or filing receipts for, any document
recorded, registered or filed as provided above as soon as available
following such recordation, registration or filing. The Purchaser shall
cooperate fully with the Seller in connection with the obligations set forth
above and will execute any and all documents reasonably required to fulfill
the intent of this paragraph.
(b) Name Change. Within 15 days after the Seller makes any change in
its name, identity or corporate structure that would, could or might make
any financing statement or continuation statement filed in accordance with
paragraph (a) seriously misleading within the applicable provisions of the
UCC or any title statute, the Seller shall give the Purchaser notice of any
such change, and no later than five days after the effective date thereof,
shall file such financing statements or amendments as may be necessary to
continue the perfection of the Purchaser's interest in the property included
in the Trust Estate.
SECTION 5.2. Other Liens or Interests. Except for the conveyances
hereunder and pursuant to the Liquidity Receivables Purchase Agreement, the
Sale and Servicing Agreement, the Indenture and the other Basic Documents
(as defined in the Indenture), the Seller: (a) will not sell, pledge, assign
or transfer to any Person, or grant, create, incur, assume or suffer to
exist any Lien on, any interest in, to and under the Receivables, and (b)
shall defend the right, title and interest of the Purchaser in, to and under
the Receivables against all claims of third parties claiming through or
under the Seller; provided, however, that the Seller's obligations under
this Section shall terminate upon the termination of the Trust pursuant to
the Trust Agreement.
SECTION 5.3. Chief Executive Office. During the term of the
Receivables, the Seller will maintain its chief executive office in one of
the States.
SECTION 5.4. Costs and Expenses. The Seller agrees to pay all
reasonable costs and disbursements in connection with the perfection, as
against all third parties, of the Purchaser's right, title and interest in,
to and under the Receivables.
SECTION 5.5. Indemnification. The Seller shall indemnify, defend and
hold harmless the Purchaser for any liability as a result of the failure of
a Receivable to be originated in compliance with all requirements of law and
for any breach of any of its representations and warranties contained
herein. These indemnity obligations shall be in addition to any obligation
that the Seller may otherwise have.
SECTION 5.6. Transfer of Subsequent Receivables. The Seller covenants
to transfer to the Purchaser, pursuant to Section 2.2, Subsequent
Receivables with an aggregate Contract Value equal to $314,947,499. 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.
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 Trustee and the Certificateholders that the
occurrence of a breach of any of the Seller's representations and warranties
contained in Section 3.2(b) shall constitute events obligating the Seller to
repurchase any Receivable materially and adversely affected by any such
breach ("Repurchase Events") at the Purchase Amount from the Purchaser or
from the Trust. Except as set forth in Section 5.5, the repurchase
obligation of the Seller shall constitute the sole remedy of the Purchaser,
the Indenture Trustee, the 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) Noteholders holding Notes evidencing at least a
majority of the Note Balance and (y) 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 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 t SECTION
6.6. Accountants' Letters. (a) A firm of independent certified public
accountants will review the characteristics of the Receivables described in
the Schedule of Receivables and will compare those characteristics to the
information with respect to the Receivables contained in the Prospectus, (b)
the Seller will cooperate with the Purchaser and such accounting firm in
making available all information and taking all steps reasonably necessary
to permit such accounting firm to complete the review set forth in clause
(a) and to deliver the letters required of them under the Underwriting
Agreement, (c) such accounting firm will deliver to the Purchaser a letter,
dated the date of the Prospectus, in the form previously agreed to by the
Seller and the Purchaser, with respect to the financial and statistical
information contained in the Prospectus and with respect to such other
information as may be agreed in the form of the letter.
SECTION 6.7. Waivers. No failure or delay on the part of the
Purchaser in exercising any power, right or remedy under this Agreement or
any Assignment shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power, right or remedy preclude any other or
further exercise thereof or the exercise of any other power, right or
remedy.
SECTION 6.8. Notices. All demands, notices and communications under
this Agreement shall be in writing, personally delivered or mailed by
certified mail, return receipt requested, and shall be deemed to have been
duly given upon receipt: (a) in the case of the Seller, to Case Credit
Corporation, 233 Lake Avenue, Racine, Wisconsin 53403, Attention: Treasurer
(telephone (414) 636-6011); (b) in the case of the Purchaser, to Case
Receivables II Inc., 233 Lake 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 in connection with the enforcement of the Purchaser's
rights hereunder, under the Receivables, under the Sale and Servicing
Agreement or the Indenture or any other Basic Document or as required by any
of the foregoing or by law.
SECTION 6.12. Headings and Cross-References. The various headings in
this Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement. References in
this Agreement to Section names or numbers are to such Sections of this
Agreement unless otherwise expressly indicated.
SECTION 6.13. Governing Law. This Agreement and the Assignment shall
be construed in accordance with the laws of the State of New York, without
reference to its conflict of law provisions, and the obligations, rights and
remedies of the parties hereunder or thereunder shall be determined in
accordance with such laws.
SECTION 6.14. Counterparts. This Agreement may be executed in two or
more counterparts and by different parties on separate counterparts, each of
which shall be an original, but all of which together shall constitute but
one and the same instrument.
SECTION 6.15. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers duly authorized as of the date and
year first above written.
CASE RECEIVABLES II INC.
By: /s/ Peter Hong
Name: Peter Hong
Title: Treasurer
CASE CREDIT CORPORATION
By: /s/ Peter Hong
Name: Peter Hong
Title: Treasurer
<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
<PAGE>
EXHIBIT A
to Purchase Agreement
FORM OF
ASSIGNMENT
For value received, in accordance with and subject to the Purchase
Agreement dated as of March 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, 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: Peter Hong
Title: Treasurer
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 March 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' Certiis
Agreement) and is to be governed in all respects by the Purchase Agreement.
Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to them in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of _____________________, 1997.
CASE CREDIT CORPORATION
By: _____________________________
Name: _______________________
Title: ______________________
SCHEDULE A
to Subsequent Transfer Assignment
SCHEDULE OF SUBSEQUENT RECEIVABLES
[See attached list]
<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 ___________ 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: ______________________
<PAGE>
<PAGE>
CASE EQUIPMENT LOAN TRUST 1997-A
ADMINISTRATION AGREEMENT
among
CASE EQUIPMENT LOAN TRUST 1997-A,
an Issuer,
and
CASE CREDIT CORPORATION,
as Administrator,
and
HARRIS TRUST AND SAVINGS BANK,
as Indenture Trustee.
Dated as of March 1, 1997
<PAGE>
TABLE OF CONTENTS
Section Page
1. Duties of the Administrator...................................... 2
(a) Duties with Respect to the Indenture and the Depository
Agreement................................................. 2
(b) Duties with Respect to the Trust.......................... 6
(c) Non-Ministerial Matters................................... 7
2. Records.......................................................... 8
3. Compensation..................................................... 8
4. Additional Information To Be Furnished to the Issuer............. 8
5. Independence of the Administrator................................ 8
6. No Joint Venture................................................. 8
7. Other Activities of the Administrator............................ 9
8. Term of Agreement; Resignation and Removal of the Administrator.. 9
9. Action upon Termination, Resignation or Removal.................. 11
10. Notices......................................................... 11
11. Amendments...................................................... 12
12. Successors and Assigns.......................................... 13
13. Governing Law................................................... 13
14. Headings........................................................ 14
15. Counterparts.................................................... 14
16. Severability.................................................... 14
17. Not Applicable to Case Credit Corporation in Other Capacities... 14
18. Limitation of Liability of the Trustee and the Indenture Trustee 14
19. Third-Party Beneficiary......................................... 15
20. Indemnification................................................. 15
<PAGE>
ADMINISTRATION AGREEMENT dated as of March 1, 1997, among CASE
EQUIPMENT LOAN TRUST 1997-A, a Delaware business trust (the "Issuer"), CASE
CREDIT CORPORATION, a Delaware corporation, as administrator (the
"Administrator"), and HARRIS TRUST AND SAVINGS BANK, an Illinois banking
corporation, not in its individual capacity but solely as Indenture Trustee
(the "Indenture Trustee").
RECITALS
WHEREAS, the Issuer is issuing: (a) 5.597% Class A-1 Asset Backed
Notes, 6.00% Class A-2 Asset Backed Notes, 6.45% Class A-3 Asset Backed
Notes (together, the "Class A Notes") and 6.70% Class B Asset Backed Notes
(the "Class B Notes," and, together with the Class A 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 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
March 1, 1997 (the "Depository Agreement"), among the Issuer, the Indenture
Trustee, the Administrator and The Depository Trust Company, (iii) the
Indenture and (iv) a Trust Agreement, dated as of the date hereof (the
"Trust Agreement"), between the Seller and the Trustee (the Sale and
Servicing Agreement, the Depository Agreement, the Indenture 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") and (b) the beneficial ownership interests in the Issuer (the
registered holders of such interests being referred to herein as the
"Owners");
WHEREAS, the Issuer and the Trustee desire to have the Administrator
perform certain of the duties of the Issuer and the Trustee referred to in
the preceding clause, and to provide such additional services consistent
with this Agreement and the Related Agreements as the Issuer and the Trustee
may from time to time request;
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and
the Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual terms and covenants
contained herein, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. Duties of the Administrator.
(a) Duties with Respect to the Indenture and the Depository
Agreement. The Administrator shall perform all of its duties as
Administrator and the duties of the Issuer and the Trustee under the
Depository Agreement. In addition, the Administrator shall consult with the
Trustee regarding the duties of the Issuer and the Trustee under such
documents. The Administrator shall monitor the performance of the Issuer and
shall advise the Trustee when action is necessary to comply with the
Issuer's or the Trustee's duties under such documents. The Administrator
shall prepare for execution by the Issuer or shall cause the preparation by
other appropriate persons of all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the Issuer
or the Trustee to prepare, file or deliver pursuant to such documents. In
furtherance of the foregoing, the Administrator shall take all appropriate
action that is the duty of the Issuer or the Trustee to take pursuant to
such documents, including, without limitation, such of the foregoing as are
required with respect to the following matters (references in this Section
are to sections of the Indenture):
(i) the duty to cause the 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 specified record
date and the notification of the Indenture Trustee and Noteholders
with respect to special payment dates, if any (Section 2.7(c));
(iii) the preparation of or obtaining of the documents and
instruments required for authentication of the 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
Servicer Default arises from the failure of the Servicer to perform
any of its duties under the Sale and Servicing Agreement, the taking
of all reasonable steps available to remedy such failure (Section
3.7(d));
(xiii) the preparation and obtaining of documents and instruments
required for the release of the Issuer from its obligations under the
Indenture (Section 3.10(b));
(xiv) the delivery of notice to the Indenture Trustee of each
Event of Default and each default by the Servicer or Seller under the
Sale and Servicing Agreement (Section 3.19);
(xv) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation of an
Officers' Certificate and the obtaining of the Opinion of Counsel and
the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive of the Indenture
Trustee with respect to the sale of the Trust Estate in a commercially
reasonable manner if an Event of Default shall have occurred and be
continuing (Section 5.4);
(xvii) the furnishing to the Indenture Trustee with the names and
addresses of 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);
(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.
(ii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
promptly notifying the Trustee in the event that any withholding tax
is imposed on the Trust's payments (or allocations of income) to an
Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any
such notice shall specify the amount of any withholding tax required
to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
performance of the duties of the Trustee set forth in Sections 5.5(a),
(b), (c) and (d), the penultimate sentence of Section 5.5 and Section
5.6(a) of the Trust Agreement with respect to, among other things,
accounting and reports to Owners; provided, however, that the Trustee
shall retain responsibility for the distribution of the Schedule K-1s
necessary to enable each Owner to prepare its Federal and State income
tax returns.
(iv) The Administrator shall satisfy its obligations with respect
to clauses (ii) and (iii) by retaining, at the expense of the Trust
payable by the Servicer, a firm of independent certified public
accountants (the "Accountants") acceptable to the Trustee, which
Accountants shall perform the obligations of the Administrator
thereunder. In connection with clause (ii), the Accountants will
provide prior to April 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 Section 10.2 of the Trust Agreement
required to be performed in connection with the resignation or removal
of the Trustee, and any other duties expressly required to be
performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions with or otherwise deal with any of its affiliates;
provided, however, that the terms of any such transactions or dealings
shall be in accordance with any directions received from the Issuer
and shall be, in the Administrator's opinion, no less favorable to the
Issuer than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the
Issuer all such documents, reports, filings, instruments, certificates
and opinions as it shall be the duty of the Issuer to prepare, file or
deliver pursuant to the Basic Documents or otherwise by law.
(c) Non-Ministerial Matters. (i) With respect to matters that in the
reasonable judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless within a reasonable time
before the taking of such action the Administrator shall have notified the
Trustee of the proposed action and the Trustee shall not have withheld
consent or provided an alternative direction. For the purpose of the
preceding sentence, "non-ministerial matters" shall include, without
limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer
and the compromise of any action, claim or lawsuit brought by or
against the Issuer (other than in connection with the collection
of the Receivables);
(C) the amendment, change or modification of the Related
Agreements;
(D) the appointment of successor 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 Related Agreements, (y) sell
the Trust Estate pursuant to Section 5.4 of the Indenture or (z) take
any other action that the Issuer directs the Administrator not to take
on its behalf.
2. Records. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer, the
Indenture Trustee and the Depositor (as defined in the Trust Agreement) at
any time during normal business hours.
3. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for
its expenses related thereto, the Administrator shall be entitled to $500
per quarter payable in arrears on each Payment Date, which payment shall be
solely an obligation of the Issuer.
4. Additional Information To Be Furnished to the Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
5. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall
not be subject to the supervision of the Issuer or the Trustee with respect
to the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuer, the Administrator
shall have no authority to act for or represent the Issuer or the Trustee in
any way (other than as permitted hereunder) and shall not otherwise be
deemed an agent of the Issuer or the Trustee.
6. No Joint Venture. Nothing contained in this Agreement: (i) shall
constitute the Administrator and either of the Issuer or the Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to
confer on any of them any express, implied or apparent authority to incur
any obligation or liability on behalf of the others.
7. Other Activities of the Administrator. Nothing herein shall
prevent the Administrator or its Affiliates from engaging in other
businesses or, in their sole discretion, from acting in a similar capacity
as an administrator for any other Person even though such Person may engage
in business activities similar to those of the Issuer, the Trustee or the
Indenture Trustee.
8. Term of Agreement; Resignation and Removal of the Administrator.
(a) This Agreement shall continue in force until the dissolution of the
Issuer, upon which event this Agreement shall automatically terminate.
(b) Subject to Section 8(e), the Administrator may resign its duties
hereunder by providing the Issuer, the Indenture Trustee and the Servicer
with at least 60 days' prior written notice.
(c) Subject to Section 8(e), the Issuer may remove the Administrator
without cause by providing the Administrator, the Indenture Trustee and the
Servicer with at least 60 days' prior written notice.
(d) Subject to Section 8(e), at the sole option of the Issuer, the
Administrator may be removed immediately upon written notice of termination
from the Issuer to the Administrator, the Indenture Trustee and the Servicer
if any of the following events shall occur:
(i) the Administrator shall default in the performance of any of
its duties under this Agreement and, after notice of such default,
shall not cure such default within ten days (or, if such default
cannot be cured in such time, shall not give within ten days such
assurance of cure as shall be reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not have
been vacated within 60 days, in respect of the Administrator in any
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect or appoint a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official for the Administrator or any substantial part of its property
or order the winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for relief
in an involuntary case under any such law, or shall consent to the
appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator or similar official for the Administrator or any
substantial part of its property, shall consent to the taking of
possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of
creditors or shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in
clauses (ii) or (iii) of this subsection shall occur, it shall give written
notice thereof to the Issuer, the Servicer and the Indenture Trustee within
seven days after the happening of such event.
(e) Upon the Administrator's receipt of notice of termination,
pursuant to Sections 8(c) or (d), or the Administrator's resignation in
accordance with this Agreement, the predecessor Administrator shall continue
to perform its functions as Administrator under this Agreement, in the case
of termination, only until the date specified in such termination notice or,
if no such date is specified in a notice of termination, until receipt of
such notice and, in the case of resignation, until the later of: (x) the
date 45 days from the delivery to the Issuer, the Indenture Trustee and the
Servicer of written notice of such resignation (or written confirmation of
such notice) in accordance with this Agreement and (y) the date upon which
the predecessor Administrator shall become unable to act as Administrator,
as specified in the notice of resignation and accompanying Opinion of
Counsel. In the event of the Administrator's termination hereunder, the
Issuer shall appoint a successor Administrator acceptable to the Indenture
Trustee, and the successor Administrator shall accept its appointment by a
written assumption in form acceptable to the Indenture Trustee. In the event
that a successor Administrator has not been appointed at the time when the
predecessor Administrator has ceased to act as Administrator in accordance
with this Section, the Indenture Trustee without further action shall
automatically be appointed the successor Administrator and the Indenture
Trustee shall be entitled to the compensation specified in Section 3.
Notwithstanding the above, the Indenture Trustee shall, if it shall be
unable so to act, appoint or petition a court of competent jurisdiction to
appoint any established institution having a net worth of not less than
$50,000,000 and whose regular business shall include the performance of
functions similar to those of the Administrator, as the successor to the
Administrator under this Agreement.
(f) Upon appointment, the successor Administrator (including the
Indenture Trustee acting as successor Administrator) shall be the successor
in all respects to the predecessor Administrator and shall be subject to all
the responsibilities, duties and liabilities arising thereafter relating
thereto placed on the predecessor Administrator and shall be entitled to the
compensation specified in Section 3 and all the rights granted to the
predecessor Administrator by the terms and provisions of this Agreement.
(g) Except when and if the Indenture Trustee is appointed successor
Administrator, the Administrator may not resign unless it is prohibited from
serving as such by law as evidenced by an Opinion of Counsel to such effect
delivered to the Indenture Trustee. No resignation or removal of the
Administrator pursuant to this Section shall be effective until: (i) a
successor Administrator shall have been appointed by the Issuer and (ii)
such successor Administrator shall have agreed in writing to be bound by the
terms of this Agreement in the same manner as the Administrator is bound
hereunder.
(h) The appointment of any successor Administrator shall be effective
only after satisfaction of the Rating Agency Condition with respect to the
proposed appointment.
9. Action upon Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to Section 8(a), or
the resignation or removal of the Administrator pursuant to Section 8(b) or
(c), respectively, the Administrator shall be entitled to be paid all fees
and reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such
termination pursuant to Section 8(a) deliver to the Issuer all property and
documents of or relating to the Collateral then in the custody of the
Administrator. In the event of the resignation or removal of the
Administrator pursuant to Section 8(b) or (c), respectively, the
Administrator shall cooperate with the Issuer and the Indenture Trustee and
take all reasonable steps requested to assist the Issuer and the Indenture
Trustee in making an orderly transfer of the duties of the Administrator.
10. Notices. Any notice, report or other communication given
hereunder shall be in writing and addressed as follows:
(a) if to the Issuer or the Trustee, to:
Case Equipment Loan Trust 1997-A
c/o Chase Manhattan Bank Delaware
1201 North Market Street
Wilmington, Delaware 19801
Attn: Corporate Trust Department
with a copy to:
The Chase Manhattan Bank
450 West 33rd Street
15th Floor
New York, New York 10001
Attn: Structured Finance Services (ABS)
(b) if to the Administrator, to:
Case Credit Corporation
233 Lake Avenue
Racine, Wisconsin 53403
Attention: Treasurer
(c) if to the Indenture Trustee, to:
Harris Trust and Savings Bank
311 West Monroe Street, 12th Floor
Chicago, Illinois 60606
Attention: Indenture Trust Department
or to such other address as any party shall have provided to the other
parties in writing. Any notice required to be in writing hereunder shall be
deemed given if such notice is mailed by certified mail, postage prepaid, or
hand-delivered to the address of such party as provided above.
11. Amendments. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Issuer, the
Administrator and the Indenture Trustee, with the written consent of the
Trustee, but without the consent of any of the Noteholders or the
Certificateholders, to cure any ambiguity, to correct or supplement
provisions of this Agreement or for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the 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 Administrator and the Indenture Trustee with the written consent of (w)
the Trustee, (x) Noteholders holding Notes evidencing not less than a
majority of the Note Balance and (y) the Holders (as defined in the Trust
Agreement) of Certificates evidencing not less than a majority of the
Certificate Balance, for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the 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 Holders of
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. Notwithstanding the foregoing, the Administrator may not amend
this Agreement without the permission of the Depositor, which permission
shwithheld.
Promptly after the execution of any such amendment or consent (or, in
the case of the Rating Agencies, 10 days prior thereto), the Administrator
shall furnish written notification of the substance of such amendment or
consent to each Certificateholder, the Trustee and each of the Rating
Agencies.
It shall not be necessary for the consent of the Certificateholders 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.
12. Successors and Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing
by the Issuer and the Trustee and subject to the satisfaction of the Rating
Agency Condition in respect thereof. An assignment with such consent and
satisfaction, if accepted by the assignee, shall bind the assignee hereunder
in the same manner as the Administrator is bound hereunder. Notwithstanding
the foregoing, this Agreement may be assigned by the Administrator without
the consent of the Issuer or the Trustee to a corporation or other
organization that is a successor (by merger, consolidation or purchase of
assets) to the Administrator, provided that such successor organization
executes and delivers to the Issuer, the Trustee and the Indenture Trustee
an agreement in which such corporation or other organization agrees to be
bound hereunder by the terms of said assignment in the same manner as the
Administrator is bound hereunder. Subject to the foregoing, this Agreement
shall bind any successors or assigns of the parties hereto.
13. Governing Law. This Agreement shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of
law provisions, and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
14. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
15. Counterparts. This Agreement may be executed in counterparts, all
of which when so executed shall together constitute but one and the same
agreement.
16. Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
17. Not Applicable to Case Credit Corporation in Other Capacities.
Nothing in this Agreement shall affect any obligation Case Credit
Corporation may have in any other capacity.
18. Limitation of Liability of the Trustee and the Indenture Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
instrument has been countersigned by Chase Manhattan Bank Delaware, not in
its individual capacity but solely in its capacity as Trustee of the Issuer,
and in no event shall Chase Manhattan Bank Delaware, in its individual
capacity, or any beneficial owner of the Issuer have any liability for the
representations, warranties, covenants, agreements or other obligations of
the Issuer hereunder, as to all of which recourse shall be had solely to the
assets of the Issuer. For all purposes of this Agreement, in the performance
of any duties or obligations of the Issuer thereunder, the Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Articles VI, VII and VIII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by Harris Trust and Savings Bank, not in
its individual capacity but solely as Indenture Trustee, and in no event
shall Harris Trust and Savings Bank have any liability for the
representations, warranties, covenants, agreements or other obligations of
the Issuer hereunder or in any of the certificates, notices or agreements
delivered pursuant hereto, as to all of which recourse shall be had solely
to the assets of the Issuer.
19. Third-Party Beneficiary. The Trustee is a third-party beneficiary
to this Agreement and is entitled to the rights and benefits hereunder and
may enforce the provisions hereof as if it were a party hereto.
20. Indemnification. The Administrator shall indemnify the Trustee
and the Indenture Trustee (and their officers, directors, employees and
agents) for, and hold them harmless against, any losses, liability or
expense, including attorneys' fees reasonably incurred by them, incurred
without negligence or bad faith on their part, arising out of or in
connection with: (i) actions taken by either of them pursuant to
instructions given by the Administrator pursuant to this Agreement or (ii)
the failure of the Administrator to perform its obligations hereunder. The
indemnities contained in this Section shall survive the termination of this
Agreement and the resignation or removal of the Administrator, the Trustee
or the Indenture Trustee.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
CASE EQUIPMENT LOAN TRUST 1997-A
By: CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but solely as
Trustee on behalf of the Issuer and on its own
behalf as Trustee under the Trust Agreement
By: /s/ John Cashin
Name: John Cashin
Title: Senior Trust Officer
HARRIS TRUST AND SAVINGS BANK,
not in its individual capacity but solely as
Indenture Trustee
By: /s/ Keith Richardson
Name: Keith Richardson
Title: Assistant Trust Officer
CASE CREDIT CORPORATION,
as Administrator
By: /s/ Peter Hong
Name: Peter Hong
Title: Treasurer
<PAGE>
<PAGE>
CASE EQUIPMENT LOAN TRUST 1997-A
CLASS A-1 5.597% ASSET BACKED NOTES
CLASS A-2 6.00% ASSET BACKED NOTES
CLASS A-3 6.45% ASSET BACKED NOTES
CASE RECEIVABLES II INC.
CLASS A NOTE UNDERWRITING AGREEMENT
March 11, 1997
Salomon Brothers Inc
As Representative of the
Several Underwriters,
Seven World Trade Center
New York, NY 10048
Dear Sirs:
1. Introductory. Case Receivables II Inc., a Delaware
corporation (the "Seller"), proposes to cause Case Equipment Loan Trust
1997-A (the "Trust") to issue and sell $71,500,000 principal amount of Class
A-1 5.597% Asset Backed Notes (the "A-1 Notes"), $282,000,000 principal
amount of Class A-2 6.00% Asset Backed Notes (the "A-2 Notes"), $259,125,000
principal amount of Class A-3 6.45% Asset Backed Notes (the "A-3 Notes";
together with the A-1 Notes and the A-2 Notes, the "Class A Notes" or the
"Underwritten Notes"), to the several 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 March 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)
$26,000,000 principal amount of 6.70% Class B Asset Backed Notes (the "Class
B Notes") which will be sold pursuant to an underwriting agreement dated as
of the date hereof (the "Class B 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, and (ii) $11,375,000 principal amount of 6.70% 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 B 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 March 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 March 1, 1997 (as amended and supplemented
from time to time, the "Trust Agreement"), between the Seller and Chase
Manhattan Delaware, 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 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 statement, 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 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. 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 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
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 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 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 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 March
11, 1997 (the "Prospectus Supplement"); (ii) the statements on page S-2
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
stabilizing transactions and syndicate covering transactions) under the
heading "Underwriting" in the Prospectus Supplement. As of the Closing
Date, the Seller's representations 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 February
28, 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 99.875% of the principal amount of the A-1 Notes,
99.77816% of the principal amount of the A-2 Notes and 99.71813% of the
principal amount of the A-3 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 March 18, 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.
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 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.
(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 B 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 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 Registration Statement shall have become effective not later than
(i) 6:00 p.m. New York City time on the date of determination 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 suspending 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 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 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).
(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 incorporation 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 investigations 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
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
statement 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 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.
(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 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
effectiveness 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 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
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 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.
(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
Delaware.
(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
Delaware 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 Delaware or the United States governing the
banking or trust powers of the Trustee.
(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 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
September 30, 1996, 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 and the A-3 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
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, $26,000,000 aggregate principal amount
of Class B Notes shall have been issued and sold pursuant to the Class B
Note Underwriting 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 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 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
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 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, arrangement, insolvency or liquidation
proceedings or other proceedings 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 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 Seven World Trade Center, New York,
NY 10048, Attention: Robert Malin, Vice President; 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.
16. Applicable Law. This Agreement will be governed by, and
construed in accordance with, the laws of the State of New York.
<PAGE>
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.
SALOMON BROTHERS INC
on behalf of itself and as
Representative of the several
Underwriters,
by: /s/ Robert Malin
Name: Robert Malin
Title: Vice President
<PAGE>
SCHEDULE I
Note Underwriters Principal Amount of A-1 Notes
- ----------------- -----------------------------
Salomon Brothers Inc $12,000,000
BancAmerica Securities, Inc. 11,900,000
Chase Securities, Inc. 11,900,000
Citicorp Securities, Inc. 11,900,000
First Union Capital Markets Corp. 11,900,000
Merrill Lynch, Pierce, Fenner & Smith 11,900,000
Total...................................... $71,500,000
===========
Note Underwriters Principal Amount of A-2 Notes
- ----------------- -----------------------------
Salomon Brothers Inc $47,000,000
BancAmerica Securities, Inc. 47,000,000
Chase Securities, Inc. 47,000,000
Citicorp Securities, Inc. 47,000,000
First Union Capital Markets Corp. 47,000,000
Merrill Lynch, Pierce, Fenner & Smith 47,000,000
Total...................................... $282,000,000
============
<PAGE>
Note Underwriters Principal Amount of A-3 Notes
- ----------------- -----------------------------
Salomon Brothers Inc $43,187,500
BancAmerica Securities, Inc. 43,187,500
Chase Securities, Inc. 43,187,500
Citicorp Securities, Inc. 43,187,500
First Union Capital Markets Corp. 43,187,500
Merrill Lynch, Pierce, Fenner & Smith 43,187,500
Total...................................... $259,125,000
============
<PAGE>
<PAGE>
CASE EQUIPMENT LOAN TRUST 1997-A
CLASS B 6.70% ASSET BACKED NOTES
CASE RECEIVABLES II INC.
CLASS B NOTE UNDERWRITING AGREEMENT
March 11, 1997
Salomon Brothers Inc
As Representative of the
Several Underwriters,
Seven World Trade Center
New York, NY 10048
Dear Sirs:
1. Introductory. Case Receivables II Inc., a Delaware
corporation (the "Seller"), proposes to cause Case Equipment Loan Trust
1997-A (the "Trust") to issue and sell $26,000,000 principal amount of Class
B 6.70% Asset Backed Notes (the "Class B Notes" or the "Underwritten
Notes"), to the several 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 March 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)
$71,500,000 principal amount of Class A-1 5.597% Asset Backed Notes (the
"Class A-1 Notes"), $282,000,000 principal amount of Class A-2 6.00% Asset
Backed Notes (the "Class A-2 Notes") and $259,125,000 principal amount of
Class A-3 6.45% Asset Backed Notes (the "Class A-3 Notes"; together with the
A-1 Notes and the A-2 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, and
(ii) $11,375,000 principal amount of 6.70% 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 March 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 March 1, 1997 (as amended and supplemented
from time to time, the "Trust Agreement"), between the Seller and Chase
Manhattan Delaware, 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 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 statement, 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 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. 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 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
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 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 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 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 March 11, 1997 (the "Prospectus Supplement"); (ii) the
statements on page S-2 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 stabilizing transactions and syndicate covering transactions)
under the heading "Underwriting" in the Prospectus Supplement. As of the
Closing Date, the Seller's representations 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 February
28, 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 99.48449% of the principal amount of the Class B
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 March 18,
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.
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 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.
(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 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 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 Registration Statement shall have become effective not later than
(i) 6:00 p.m. New York City time on the date of determination 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 suspending 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 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 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).
(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 incorporation 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 investigations 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
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
statement 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 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.
(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 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
effectiveness 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 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
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 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.
(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
Delaware.
(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
Delaware 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 Delaware or the United States governing the
banking or trust powers of the Trustee.
(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 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
September 30, 1996, 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 B 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
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, $71,500,000 principal amount of Class
A-1 5.597% Asset Backed Notes, $282,000,000 principal amount of Class A-2
6.00% Asset Backed Notes and $259,125,000 principal amount of Class A-3
6.45% Asset Backed Notes shall have been issued and sold pursuant to the
Class A Note Underwriting 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 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 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
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 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, arrangement, insolvency or liquidation
proceedings or other proceedings 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 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 Seven World Trade Center, New York,
NY 10048, Attention: Robert Malin, Vice President; 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.
16. Applicable Law. This Agreement will be governed by, and
construed in accordance with, the laws of the State of New York.
<PAGE>
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.
SALOMON BROTHERS INC
on behalf of itself and as
Representative of the several
Underwriters,
by: /s/ Robert Malin
Name: Robert Malin
Title: Vice President
<PAGE>
SCHEDULE I
Note Underwriters Principal Amount of B Notes
- ----------------- ---------------------------
Salomon Brothers Inc $13,000,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated 13,000,000
Total.............................................. $26,000,000
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