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CASE EQUIPMENT LOAN TRUST 1997-B
ADMINISTRATION AGREEMENT
among
CASE EQUIPMENT LOAN TRUST 1997-B,
as Issuer,
THE BANK OF NEW YORK,
as Trustee,
CASE CREDIT CORPORATION,
as Administrator,
and
XXXXXX TRUST AND SAVINGS BANK,
as Indenture Trustee.
Dated as of September 1, 1997
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18295308
|| TABLE OF CONTENTS
Section Page
SECTION 1. Duties of the Administrator......................................2
(a) Duties with Respect to the Indenture and the Note Depository
Agreement......................................................2
(b) Duties with Respect to the Trust...............................5
(c) Non-Ministerial Matters........................................7
SECTION 2. Records..........................................................7
SECTION 3. Compensation.....................................................8
SECTION 4. Additional Information To Be Furnished to the Issuer.............8
SECTION 5. Independence of the Administrator................................8
SECTION 6. No Joint Venture.................................................8
SECTION 7. Other Activities of the Administrator............................8
SECTION 8. Term of Agreement; Resignation and Removal of the Administrator..8
SECTION 9. Action upon Termination, Resignation or Removal.................10
SECTION 10. Notices........................................................11
SECTION 11. Amendments.....................................................11
SECTION 12. Successors and Assigns.........................................12
SECTION 13. Governing Law..................................................13
SECTION 14. Headings......................................................13
SECTION 15. Counterparts...................................................13
SECTION 16. Severability...................................................13
SECTION 17. Not Applicable to Case Credit Corporation in Other Capacities..13
SECTION 18. Limitation of Liability of the Trustee and the Indenture
Trustee........................................................13
SECTION 19. Indemnification................................................14
||
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ADMINISTRATION AGREEMENT, dated as of September 1, 1997 (this
"Agreement"), among CASE EQUIPMENT LOAN TRUST 1997-B, a Delaware business
trust (the "Issuer"), THE BANK OF NEW YORK, not in its individual capacity
but solely as trustee of the Issuer (the "Trustee"), CASE CREDIT
CORPORATION, a Delaware corporation, as the administrator of the Issuer
(the "Administrator"), and XXXXXX TRUST AND SAVINGS BANK, an Illinois
banking corporation, not in its individual capacity but solely as the
indenture trustee (the "Indenture Trustee").
RECITALS
WHEREAS, the Issuer is issuing: (a) 5.612% Class A-1 Asset Backed
Notes, 5.914% Class A-2 Asset Backed Notes, 6.240% Class A-3 Asset Backed
Notes, 6.410% Class A-4 Asset Backed Notes (together, the "Class A Notes"),
the Floating Rate Class B Asset Backed Notes (the "Class B Notes"), and the
6.410% Class C Asset Backed Notes (the "Class C Notes", together with the
Class A Notes and the Class B Notes, the "Notes") pursuant to the
Indenture, dated as of the date hereof (as amended and supplemented from
time to time in accordance with the provisions thereof, the "Indenture"),
between the Issuer and the Indenture Trustee (capitalized terms used herein
and not otherwise defined herein shall have the meanings assigned to such
terms in the Indenture);
WHEREAS, the Issuer has entered into certain agreements in
connection with the issuance of the Notes and of certain beneficial
ownership interests of the Issuer, including: (i) a Sale and Servicing
Agreement, dated as of the date hereof (as amended and supplemented from
time to time, the "Sale and Servicing Agreement"), among the Issuer, Case
Credit Corporation, as servicer (the "Servicer"), and Case Receivables II
Inc., a Delaware corporation, as seller (the "Seller"), (ii) a Depository
Agreement, dated September 22, 1997 (the "Note Depository Agreement"),
among the Issuer, the Indenture Trustee, the Administrator and The
Depository Trust Company, (iii) the Indenture, (iv) the Class B Note
Purchase Agreement and (v) a Trust Agreement, dated as of the date hereof
(the "Trust Agreement"), among the Seller and the Trustee (the Sale and
Servicing Agreement, the Note Depository Agreement, the Indenture and the
Trust Agreement being hereinafter referred to collectively as the "Related
Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer and the
Trustee are required to perform certain duties in connection with: (a) the
Notes and the collateral therefor pledged pursuant to the Indenture (the
"Collateral")
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and (b) the beneficial ownership interests in the Issuer (the registered
holders ofsuch interests being referred to herein as the "Certificateholders");
WHEREAS, the Issuer and the Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the Trustee
referred to in the preceding clause, and to provide such additional
services consistent with this Agreement and the Related Agreements as the
Issuer and the Trustee may from time to time request;
WHEREAS, the Administrator has the capacity to provide the
services required hereby and is willing to perform such services for the
Issuer and the Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual terms and covenants
contained herein, and other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties agree as
follows:
SECTION 1. Duties of the Administrator.
(a) Duties with Respect to the Indenture and the Note Depository
Agreement. The Administrator shall perform all of its duties as
Administrator and the duties of the Issuer and the Trustee under the Note
Depository Agreement. In addition, the Administrator shall consult with the
Trustee regarding the duties of the Issuer and the Trustee under the Note
Depository Agreement and the Indenture. The Administrator shall monitor the
performance of the Issuer and shall advise the Trustee when action is
necessary to comply with the Issuer's or the Trustee's duties under the
Note Depository Agreement and the Indenture. The Administrator shall
prepare for execution by the Issuer or shall cause the preparation by other
appropriate persons of all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Issuer or the
Trustee to prepare, file or deliver pursuant to such documents. In
furtherance of the foregoing, the Administrator shall take all appropriate
action that is the duty of the Issuer or the Trustee to take pursuant to
such documents, including, without limitation, such of the foregoing as are
required with respect to the following matters (references in this Section
are to sections of the Indenture):
(i) the duty to cause the Note Register to be kept and to
give the Indenture Trustee notice of any appointment of a new Note
Registrar and the location, or change in location, of the Note
Register (Section 2.4);
(ii) the fixing or causing to be fixed of any special
record date and the notification of the Indenture Trustee and
Noteholders with respect to special payment dates, if any (Section
2.7(c));
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(iii) the preparation of or obtaining of the documents
and instruments required for authentication of the Notes and
delivery of the same to the Indenture Trustee (Section 2.2);
(iv) the preparation, obtaining or filing of the
instruments, opinions, certificates and other documents required
for the release of the Collateral (Section 2.9);
(v) the maintenance of an office in the Borough of
Manhattan, City of New York, for registration of transfer or
exchange of Notes (Section 3.2);
(vi) the duty to cause newly appointed Paying Agents, if
any, to deliver to the Indenture Trustee the instrument specified
in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit
moneys with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuer's
qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of the Indenture, the Notes, the Collateral and
each other instrument and agreement included in the Trust Estate
(Section 3.4);
(ix) the preparation of all supplements, amendments,
financing statements, continuation statements, instruments of
further assurance and other instruments, in accordance with
Section 3.5 of the Indenture, necessary to protect the Trust
Estate (Section 3.5);
(x) the delivery of the Opinion of Counsel on the Closing
Date and the annual delivery of Opinions of Counsel, in accordance
with Section 3.6 of the Indenture, as to the Trust Estate, and the
annual delivery of the Officers' Certificate and certain other
statements, in accordance with Section 3.9 of the Indenture, as to
compliance with the Indenture (Sections 3.6 and 3.9);
(xi) the identification to the Indenture Trustee in an
Officers' Certificate of a Person with whom the Issuer has
contracted to perform its duties under the Indenture (Section
3.7(b));
(xii) the notification of the Indenture Trustee and the
Rating Agencies of a Servicer Default (as defined in the Sale and
Servicing Agreement) pursuant to the Sale and Servicing Agreement
and, if such
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Servicer Default arises from the failure of the Servicer to
perform any of its duties under the Sale and Servicing Agreement,
the taking of all reasonable steps available to remedy such
failure (Section 3.7(d));
(xiii) the preparation and obtaining of documents and
instruments required for the release of the Issuer from its
obligations under the Indenture (Section 3.10(b));
(xiv) the delivery of notice to the Indenture Trustee and
the Rating Agencies of each Event of Default, each default by the
Servicer or the Seller under the Sale and Servicing Agreement and
each default on the part of Credit under the Purchase Agreement
(Section 3.19);
(xv) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation of
an Officers' Certificate and the obtaining of the Opinion of
Counsel and the Independent Certificate relating thereto (Section
4.1);
(xvi) the compliance with any written directive of the
Indenture Trustee with respect to the sale of the Trust Estate in
a commercially reasonable manner if an Event of Default shall have
occurred and be continuing (Section 5.4);
(xvii) the furnishing to the Indenture Trustee of the
names and addresses of Noteholders during any period when the
Indenture Trustee is not the Note Registrar (Section 7.1);
(xviii) the preparation, execution and filing with the
Commission and the Indenture Trustee of documents required to be
filed on a periodic basis with, and summaries thereof as may be
required by rules and regulations prescribed by, the Commission
and the transmission of such summaries, as necessary, to the
Noteholders (Section 7.3);
(xix) the opening of one or more accounts in the Trust's
name, the preparation of Issuer Orders, Officers' Certificates and
Opinions of Counsel and all other actions necessary with respect
to investment and reinvestment of funds in the Trust Accounts
(Sections 8.2 and 8.3);
(xx) the preparation of an Issuer Request and Officers'
Certificate and the obtaining of an Opinion of Counsel and
Independent Certificates, if necessary, for the release of the
Trust Estate as defined in the Indenture (Sections 8.4 and 8.5);
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(xxi) the preparation of Issuer Orders and the obtaining
of Opinions of Counsel with respect to the execution of
supplemental indentures and the mailing to the Noteholders of
notices with respect to such supplemental indentures (Sections
9.1, 9.2 and 9.3);
(xxii) the execution and delivery of new Notes conforming
to any supplemental indenture (Section 9.6);
(xxiii) the notification of Noteholders of redemption of
the Notes or the duty to cause the Indenture Trustee to provide
such notification (Section 10.2);
(xxiv) the preparation of all Officers' Certificates,
Opinions of Counsel and Independent Certificates with respect to
any requests by the Issuer to the Indenture Trustee to take any
action under the Indenture (Section 11.1(a));
(xxv) the preparation and delivery of Officers'
Certificates and the obtaining of Independent Certificates, if
necessary, for the release of property from the lien of the
Indenture (Section 11.1(b));
(xxvi) the preparation and delivery to Noteholders and
the Indenture Trustee of any agreements with respect to alternate
payment and notice provisions (Section 11.6); and
(xxvii) the recording of the Indenture, if applicable
(Section 11.15).
(b) Duties with Respect to the Trust. (i) In addition to the
duties of the Administrator set forth above, the Administrator shall
perform such calculations, and shall prepare for execution by the Issuer or
the Trustee or shall cause the preparation by other appropriate persons of
all such documents, reports, filings, instruments, certificates and
opinions, as it shall be the duty of the Issuer or the Trustee to perform,
prepare, file or deliver pursuant to the Related Agreements, and at the
request of the Trustee shall take all appropriate action that it is the
duty of the Issuer or the Trustee to take pursuant to the Related
Agreements. Subject to Section 5 of this Agreement, and in accordance with
the directions of the Trustee, the Administrator shall administer, perform
or supervise the performance of such other activities in connection with
the Collateral (including the Related Agreements) as are not covered by any
of the foregoing and as are expressly requested by the Trustee and are
reasonably within the capability of the Administrator.
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(ii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Administrator shall be
responsible for promptly notifying the Trustee in the event that
any withholding tax is imposed on the Trust's payments (or
allocations of income) to a Certificateholder as contemplated in
Section 5.2(c) of the Trust Agreement. Any such notice shall
specify the amount of any withholding tax required to be withheld
by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Administrator shall be
responsible for performance of the duties of the Trustee set forth
in Sections 5.5(a), (b), (c) and (d), the penultimate sentence of
Section 5.5 and Section 5.6(a) of the Trust Agreement with respect
to, among other things, accounting and reports to
Certificateholders; provided, however, that the Trustee shall
retain responsibility for the distribution of the Schedule K-1s
necessary to enable each Certificateholder to prepare its Federal
and State income tax returns.
(iv) The Administrator shall satisfy its obligations with
respect to clauses (ii) and (iii) by retaining, at the expense of
the Trust payable by the Servicer, a firm of independent certified
public accountants (the "Accountants") acceptable to the Trustee,
which Accountants shall perform the obligations of the
Administrator thereunder. In connection with clause (ii), the
Accountants will provide prior to October 15, 1997, a letter in
form and substance satisfactory to the Trustee as to whether any
tax withholding is then required and, if required, the procedures
to be followed with respect thereto to comply with the
requirements of the Code. The Accountants shall be required to
update the letter in each instance that any additional tax
withholding is subsequently required or any previously required
tax withholding shall no longer be required.
(v) The Administrator shall perform the duties of the
Administrator specified in Sections 10.2 and 10.3 of the Trust
Agreement required to be performed in connection with the
resignation or removal of the Trustee, and any other duties
expressly required to be performed by the Administrator under the
Trust Agreement.
(vi) In carrying out the foregoing duties or any of its
other obligations under this Agreement, the Administrator may
enter into transactions with or otherwise deal with any of its
Affiliates; provided, however, that the terms of any such
transactions or dealings shall be in accordance with any
directions received from the Issuer and shall be, in the
Administrator's opinion, no less favorable to the Issuer than
would be available from unaffiliated parties.
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(vii) The Administrator hereby agrees to execute on
behalf of the Issuer all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of
the Issuer to prepare, file or deliver pursuant to the Basic
Documents or otherwise by law.
(c) Non-Ministerial Matters. (i) With respect to matters that in
the reasonable judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless within a reasonable time
before the taking of such action the Administrator shall have notified the
Trustee of the proposed action and the Trustee shall not have withheld
consent or provided an alternative direction. For the purpose of the
preceding sentence, "non-ministerial matters" shall include, without
limitation:
(A) the amendment of or any supplement to the
Indenture;
(B) the initiation of any claim or lawsuit by
the Issuer and the compromise of any action, claim or
lawsuit brought by or against the Issuer (other than in
connection with the collection of the Receivables);
(C) the amendment, change or modification of the
Related Agreements;
(D) the appointment of successor Note
Registrars, successor Paying Agents and successor
Trustees pursuant to the Indenture or the appointment of
successor Administrators or successor Servicers, or the
consent to the assignment by the Note Registrar, Paying
Agent or Indenture Trustee of its obligations under the
Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall
not: (x) make any payments to the Noteholders under the Indenture,
the Notes or the Basic Documents, (y) sell the Trust Estate
pursuant to Section 5.4 of the Indenture or (z) take any other
action that the Issuer directs the Administrator not to take on
its behalf.
SECTION 2. Records. The Administrator shall maintain appropriate
books of account and records relating to services performed hereunder,
which books of account and records shall be accessible for inspection by
the Issuer, the Indenture Trustee and the Depositor (as defined in the
Trust Agreement) at any time during normal business hours.
Administration Agreement 7
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SECTION 3. Compensation. As compensation for the performance of
the Administrator's obligations under this Agreement and as reimbursement
for its expenses related thereto, the Administrator shall be entitled to
$500 per quarter payable in arrears on each third Payment Date, which
payment shall be solely an obligation of the Issuer.
SECTION 4. Additional Information To Be Furnished to the Issuer.
The Administrator shall furnish to the Issuer from time to time such
additional information regarding the Collateral as the Issuer shall
reasonably request.
SECTION 5. Independence of the Administrator. For all purposes of
this Agreement, the Administrator shall be an independent contractor and
shall not be subject to the supervision of the Issuer or the Trustee with
respect to the manner in which it accomplishes the performance of its
obligations hereunder. Unless expressly authorized by the Issuer, the
Administrator shall have no authority to act for or represent the Issuer or
the Trustee in any way (other than as permitted hereunder) and shall not
otherwise be deemed an agent of the Issuer or the Trustee.
SECTION 6. No Joint Venture. Nothing contained in this Agreement:
(i) shall constitute the Administrator and either of the Issuer or the
Trustee as members of any partnership, joint venture, association,
syndicate, unincorporated business or other separate entity, (ii) shall be
construed to impose any liability as such on any of them or (iii) shall be
deemed to confer on any of them any express, implied or apparent authority
to incur any obligation or liability on behalf of the others.
SECTION 7. Other Activities of the Administrator. Nothing herein
shall prevent the Administrator or its Affiliates from engaging in other
businesses or, in their sole discretion, from acting in a similar capacity
as an administrator for any other Person even though such Person may engage
in business activities similar to those of the Issuer, the Trustee or the
Indenture Trustee.
SECTION 8. Term of Agreement; Resignation and Removal of the
Administrator. (a) This Agreement shall continue in force until the dissolution
of the Issuer, upon which event this Agreement shall automatically terminate.
(b) Subject to Sections 8(e) and (g), the Administrator may resign
its duties hereunder by providing the Issuer, the Indenture Trustee and the
Servicer with at least 60 days' prior written notice.
(c) Subject to Section 8(e), the Issuer may remove the
Administrator without cause by providing the Administrator, the Indenture
Trustee and the Servicer with at least 60 days' prior written notice.
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(d) Subject to Section 8(e), at the sole option of the Issuer, the
Administrator may be removed immediately upon written notice of termination
from the Issuer to the Administrator, the Indenture Trustee and the
Servicer if any of the following events shall occur:
(i) the Administrator shall default in the performance of
any of its duties under this Agreement and, after notice of such
default, shall not cure such default within ten days (or, if such
default cannot be cured in such time, shall not give within ten
days such assurance of cure as shall be reasonably satisfactory to
the Issuer);
(ii) a court having jurisdiction in the premises shall
enter a decree or order for relief, and such decree or order shall
not have been vacated within 60 days, in respect of the
Administrator in any involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in
effect or appoint a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official for the Administrator or
any substantial part of its property or order the winding-up or
liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, shall consent to the entry of an order
for relief in an involuntary case under any such law, or shall
consent to the appointment of a receiver, liquidator, assignee,
trustee, custodian, sequestrator or similar official for the
Administrator or any substantial part of its property, shall
consent to the taking of possession by any such official of any
substantial part of its property, shall make any general
assignment for the benefit of creditors or shall fail generally to
pay its debts as they become due.
The Administrator agrees that if any of the events specified in
clauses (ii) or (iii) of this subsection shall occur, it shall give written
notice thereof to the Issuer, the Servicer and the Indenture Trustee within
seven days after the happening of such event.
(e) Upon the Administrator's receipt of notice of termination,
pursuant to Sections 8(c) or (d), or the Administrator's resignation in
accordance with this Agreement, the predecessor Administrator shall
continue to perform its functions as Administrator under this Agreement, in
the case of termination, only until the date specified in such termination
notice or, if no such date is specified in a notice of termination, until
receipt of such notice and, in the case of resignation, until the later of:
(x) the date 60 days (or such later date as specified in the notice
provided by the Administrator pursuant to Section 8(b)) from the delivery
to the Issuer, the Indenture Trustee and the Servicer of written notice of
such
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resignation (or written confirmation of such notice) in accordance with
this Agreement and (y) the date upon which the predecessor Administrator
shall become unable to act as Administrator, as specified in the notice of
resignation and accompanying Opinion of Counsel. In the event of the
Administrator's termination hereunder, the Issuer shall appoint a successor
Administrator acceptable to the Indenture Trustee, and the successor
Administrator shall accept its appointment by a written assumption in form
acceptable to the Indenture Trustee. In the event that a successor
Administrator has not been appointed at the time when the predecessor
Administrator has ceased to act as Administrator in accordance with this
Section, the Indenture Trustee without further action shall automatically
be appointed the successor Administrator and the Indenture Trustee shall be
entitled to the compensation specified in Section 3. Notwithstanding the
above, the Indenture Trustee shall, if it shall be unable so to act,
appoint or petition a court of competent jurisdiction to appoint any
established institution having a net worth of not less than $50,000,000 and
whose regular business shall include the performance of functions similar
to those of the Administrator, as the successor to the Administrator under
this Agreement.
(f) Upon appointment, the successor Administrator (including the
Indenture Trustee acting as the successor Administrator) shall be the
successor in all respects to the predecessor Administrator and shall be
subject to all the responsibilities, duties and liabilities arising
thereafter relating thereto placed on the predecessor Administrator and
shall be entitled to the compensation specified in Section 3 and all the
rights granted to the predecessor Administrator by the terms and provisions
of this Agreement.
(g) Except when and if the Indenture Trustee is appointed as the
successor Administrator, the Administrator may not resign unless it is
prohibited from serving as such by law as evidenced by an Opinion of
Counsel to such effect delivered to the Indenture Trustee. No resignation
or removal of the Administrator pursuant to this Section shall be effective
until: (i) a successor Administrator shall have been appointed by the
Issuer and (ii) such successor Administrator shall have agreed in writing
to be bound by the terms of this Agreement in the same manner as the
Administrator is bound hereunder.
(h) The appointment of any successor Administrator (other than the
Indenture Trustee) shall be effective only after satisfaction of the Rating
Agency Condition with respect to the proposed appointment.
SECTION 9. Action upon Termination, Resignation or Removal.
Promptly upon the effective date of termination of this Agreement pursuant
to Section 8(a), or the resignation or removal of the Administrator
pursuant to Section 8(b), (c) or (g), the Administrator shall be entitled
to be paid all fees and reimbursable expenses accruing to it to the date of
such termination, resignation or removal.
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The Administrator shall forthwith upon such termination pursuant to Section
8(a) deliver to the Issuer all property and documents of or relating to the
Collateral then in the custody of the Administrator. In the event of the
resignation or removal of the Administrator pursuant to Section 8(b), (c)
or (g), the Administrator shall cooperate with the Issuer and the Indenture
Trustee and take all reasonable steps requested to assist the Issuer and
the Indenture Trustee in making an orderly transfer of the duties of the
Administrator.
SECTION 10. Notices. Any notice, report or other communication given
hereunder shall be in writing and addressed as follows:
(a) if to the Issuer or the Trustee, to:
Case Equipment Loan Trust 0000-X
x/x Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust Administration - Asset Backed
Finance Unit
(b) if to the Administrator, to:
Case Credit Corporation
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxx 00000
Attention: Treasurer
(c) if to the Indenture Trustee, to:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Indenture Trust Department
or to such other address as any party shall have provided to the other
parties in writing. Any notice required to be in writing hereunder shall be
deemed given if such notice is mailed by certified mail, postage prepaid,
or hand-delivered to the address of such party as provided above.
SECTION 11. Amendments. This Agreement may be amended from time to
time by a written amendment duly executed and delivered by the Issuer, the
Trustee, the Administrator and the Indenture Trustee, but without the
consent of any of the Noteholders or the Certificateholders, to cure any
ambiguity, to correct or supplement provisions of this Agreement or for the
purpose of adding any
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provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of
the Noteholders or the Certificateholders; provided, however, that such
amendment shall not, as evidenced by an Opinion of Counsel satisfactory to
the Indenture Trustee, adversely affect in any material respect the
interests of any Noteholder or Certificateholder.
This Agreement may also be amended from time to time by the
Issuer, the Trustee, the Administrator and the Indenture Trustee with the
written consent of (x) Holders of Offered Notes evidencing not less than a
majority of the Outstanding Amount of Offered Notes, (y) Holders of Class B
Notes evidencing at least a majority of the Outstanding Amount of Class B
Notes and (z) Certificateholders holding Certificates evidencing not less
than a majority of the Certificate Balance, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of
the Noteholders or the Certificateholders; provided, however, that no such
amendment shall: (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Receivables
or distributions that are required to be made for the benefit of the
Noteholders or the Certificateholders or (ii) reduce the aforesaid
percentage of the Noteholders and Certificateholders that are required to
consent to any such amendment, without the consent of the holders of all
the outstanding Notes and Certificates. Notwithstanding the foregoing, the
Administrator may not amend this Agreement without the permission of the
Depositor, which permission shall not be unreasonably withheld.
Promptly after the execution of any such amendment or consent (or,
in the case of the Rating Agencies, 10 days prior thereto), the
Administrator shall furnish written notification of the substance of such
amendment or consent to each Certificateholder and each of the Rating
Agencies.
It shall not be necessary for the consent of the
Certificateholders or the Noteholders pursuant to this Section to approve
the particular form of any proposed amendment or consent, but it shall be
sufficient if such consent shall approve the substance thereof.
SECTION 12. Successors and Assigns. This Agreement may not be
assigned by the Administrator unless such assignment is previously
consented to in writing by the Issuer and the Trustee and subject to the
satisfaction of the Rating Agency Condition in respect thereof. An
assignment with such consent and satisfaction, if accepted by the assignee,
shall bind the assignee hereunder in the same manner as the Administrator
is bound hereunder. Notwithstanding the foregoing, this Agreement may be
assigned by the Administrator without the consent of the Issuer or the
Trustee to a corporation or other organization that is
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a successor (by merger, consolidation or purchase of assets) to the
Administrator; provided, that such successor organization executes and
delivers to the Issuer, the Trustee and the Indenture Trustee an agreement
in which such corporation or other organization agrees to be bound
hereunder by the terms of said assignment in the same manner as the
Administrator is bound hereunder. Subject to the foregoing, this Agreement
shall bind any successors or assigns of the parties hereto.
SECTION 13. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
SECTION 14. Headings. The section headings hereof have been inserted
for convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
SECTION 15. Counterparts. This Agreement may be executed in
counterparts, all of which when so executed shall together constitute but one
and the same agreement.
SECTION 16. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
SECTION 17. Not Applicable to Case Credit Corporation in Other
Capacities. Nothing in this Agreement shall affect any obligation that Case
Credit Corporation may have in any other capacity.
SECTION 18. Limitation of Liability of the Trustee and the
Indenture Trustee. (a) Notwithstanding anything contained herein to the
contrary, this instrument has been countersigned by The Bank of New York,
not in its individual capacity but solely in its capacity as Trustee of the
Issuer, and in no event shall The Bank of New York, in its individual
capacity, or any Certificateholder have any liability for the
representations, warranties, covenants, agreements or other obligations of
the Issuer hereunder, as to all of which recourse shall be had solely to
the assets of the Issuer. For all purposes of this Agreement, in the
performance of any duties or obligations of the Issuer hereunder, the
Trustee shall be subject to, and entitled to the benefits of, the terms and
provisions of Articles VI, VII and VIII of the Trust Agreement.
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(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been countersigned by Xxxxxx Trust and Savings Bank, not
in its individual capacity but solely as Indenture Trustee, and in no event
shall Xxxxxx Trust and Savings Bank have any liability for the
representations, warranties, covenants, agreements or other obligations of
the Issuer hereunder or in any of the certificates, notices or agreements
delivered pursuant hereto, as to all of which recourse shall be had solely
to the assets of the Issuer.
SECTION 19. Indemnification. The Administrator shall indemnify the
Trustee and the Indenture Trustee (and their officers, directors, employees
and agents) for, and hold them harmless against, any losses, liability or
expense, including attorneys' fees reasonably incurred by them, incurred
without negligence or bad faith on their part, arising out of or in
connection with: (i) actions taken by either of them pursuant to
instructions given by the Administrator pursuant to this Agreement or (ii)
the failure of the Administrator to perform its obligations hereunder. The
indemnities contained in this Section shall survive the termination of this
Agreement and the resignation or removal of the Administrator, the Trustee
or the Indenture Trustee.
Administration Agreement 14
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
CASE EQUIPMENT LOAN TRUST 1997-B
By: THE BANK OF NEW YORK,
not in its individual capacity but
solely as Trustee on behalf of the
Issuer
By: /s/ Xxxxxx X. Laser
Name: Xxxxxx X. Laser
Title: Assistant Vice President
THE BANK OF NEW YORK, not in its
individual capacity but solely as
Trustee under the Trust Agreement
By: /s/ Xxxxxx X. Laser
Name: Xxxxxx X. Laser
Title: Assistant Vice President
XXXXXX TRUST AND SAVINGS BANK,
not in its individual capacity but
solely as Indenture Trustee
By: /s/ Xxxxx Xxxxxxxxxx
Name: Xxxxx Xxxxxxxxxx
Title: Assistant Vice President
CASE CREDIT CORPORATION,
as Administrator
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Treasurer
Administration Agreement 15
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