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NOTE PURCHASE AGREEMENT
dated as of September 22, 1997
among
CASE EQUIPMENT LOAN TRUST 1997-B,
CASE CREDIT CORPORATION,
AS ADMINISTRATOR,
CASE RECEIVABLES II, INC.
THE PURCHASERS DESCRIBED HEREIN,
and
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH,
as Agent
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TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS
SECTION 1.1 Definitions .............................................1
ARTICLE 2 PURCHASE AND SALE OF CLASS B NOTES
SECTION 2.1 The Commitments..........................................1
SECTION 2.2 Funding Mechanics........................................2
SECTION 2.3 Pricing..................................................2
SECTION 2.4 Taxes ...................................................3
ARTICLE 3 REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Mutual Representations and Warranties....................7
SECTION 3.2 Issuer...................................................7
SECTION 3.3 Purchasers...............................................7
SECTION 3.4 Case Credit and XX XX....................................8
ARTICLE 4 CONDITIONS
SECTION 4.1 Conditions to Initial Purchase...........................8
SECTION 4.2 Conditions to Each Purchase.............................10
ARTICLE 5 AGENT; REQUIRED PURCHASERS
SECTION 5.1 Appointment ............................................10
SECTION 5.2 Nature of Duties........................................11
SECTION 5.3 Lack of Reliance on Agent...............................11
SECTION 5.4 Certain Rights of Agent.................................11
SECTION 5.5 Reliance ............................................12
SECTION 5.6 Indemnification.........................................12
SECTION 5.7 Agent in its Individual Capacity........................12
SECTION 5.8 Resignation by Agent....................................13
SECTION 5.9 Required Purchasers. ...................................13
ARTICLE 6 MISCELLANEOUS PROVISIONS
SECTION 6.1 Successors and Assigns; Assignments.....................13
SECTION 6.2 Survival of Agreement...................................16
SECTION 6.3 Entire Agreement........................................16
SECTION 6.4 Notices ............................................16
SECTION 6.5 No Third-Party Beneficiaries............................16
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SECTION 6.6 Severability of Provisions..............................16
SECTION 6.7 Counterparts............................................17
SECTION 6.8 Governing Law...........................................17
SECTION 6.9 Tax Characterization....................................17
SECTION 6.10 No Proceedings.........................................17
SECTION 6.11 Expenses; Indemnification..............................17
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SCHEDULE
SCHEDULE I Initial Purchaser's Maximum Amount and Percentage
EXHIBITS
EXHIBIT A Form of Assignment Agreement
APPENDIX
APPENDIX X Index of Additional Defined Terms
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This NOTE PURCHASE AGREEMENT, dated as of September 22, 1997 (this
"Agreement"), is made among CASE EQUIPMENT LOAN TRUST 1997-B, a Delaware
business trust ("Issuer"), CASE CREDIT CORPORATION, a Delaware corporation
("Case Credit" or "Administrator"), CASE RECEIVABLES II INC., a Delaware
corporation ("XX XX"), the purchasers named on the signatures pages of this
Agreement (together with their respective permitted assigns, the
"Purchasers"), and CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH ("CSFB"), as
agent for the Purchasers (in such capacity as agent, together with any
successors in that capacity, "Agent").
BACKGROUND
1. Issuer intends to issue Class B Asset Backed Notes (the "Class
B Notes") pursuant to an Indenture to be dated as of September 1, 1997 (the
"Indenture") between the Issuer and Xxxxxx Trust and Savings Bank, as
Indenture Trustee for the holders of the Indenture Notes. Principal of and
interest on the Class B Notes will be paid from funds allocated for that
purpose in accordance with a Sale and Servicing Agreement to be dated as of
September 1, 1997 (the "Sale and Servicing Agreement") among the Issuer,
Case Credit, as Servicer, and XX XX.
2. Issuer has requested that each Purchaser purchase Class B
Notes. Subject to the terms and conditions of this Agreement, each
Purchaser is willing to agree to purchase Class B Notes with a principal
amount not to exceed, in the aggregate, the Maximum Amount set forth
opposite its name in Schedule I. Case Credit has joined in this Agreement
as Administrator for the Issuer and to confirm certain representations and
warranties for the benefit of the Purchasers and the Agent. XX XX has
joined in this Agreement to confirm certain representations and warranties
for the benefit of the Purchasers and the Agent.
ARTICLE 1 DEFINITIONS
SECTION 1.1 Definitions. Capitalized terms used and not otherwise
defined herein have the meanings assigned to them in the Indenture or, if
not defined in the Indenture, in the Sale and Servicing Agreement. An index
of terms defined directly in this Agreement is attached as Appendix X. As
used herein, the term "including" means "including without limitation," and
other forms of the verb "to include" have correlative meanings.
ARTICLE 2 PURCHASE AND SALE OF CLASS B NOTES
SECTION 2.1 The Commitments. (a) Subject to the terms and
conditions of this Agreement (including Sections 2.1(c), 4.1 and 4.2), each
Purchaser agrees, severally and for itself alone, to purchase (each a
"Purchase") Class B Notes on
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September 22, 1997 (the "Closing Date") having an initial principal amount
not exceeding its Maximum Amount. The failure of any Purchaser to make any
Purchase shall not relieve any other Purchaser of its obligation to make
Purchases. No Purchaser shall, however, be responsible for the failure of
any other Purchaser to make any Purchase.
(b) For purposes of this Agreement, "Percentage" means, with
respect to each Purchaser, the percentage equivalent (carried out to twelve
decimal places) of a fraction the numerator of which is such Purchaser's
Maximum Amount and the denominator of which is the sum of the Maximum
Amounts of all of the Purchasers. The initial Percentages of the initial
Purchasers, and their respective Maximum Amounts, are set out opposite
their names in Schedule I.
(c) For purposes of this Agreement, CSFB is hereby designated, and
agrees to act, as Support Bank for Alpine Securitization Corp. ("Conduit").
For purposes of this Agreement, "Structured Lender" means Conduit and any
other Purchaser whose principal business consists of issuing commercial
paper, medium term notes or other securities to fund its acquisition and
maintenance of receivables, accounts, instruments, chattel paper, general
intangibles and other similar assets or interests therein and that is
required by any nationally recognized statistical rating agency that is
rating such securities to obtain from its principal debtors an agreement
such as that set forth in Section 6.10 in order to maintain such rating;
and "Support Bank" means any bank or other financial institution extending
or having a commitment to extend funds to or for the account of any
Structured Lender (including by agreement to purchase an assignment of, or
participation in, the Class B Note(s) held by such Person) under a
liquidity or credit support agreement that relates to the Class B Note(s)
purchased by such Structured Lender.
SECTION 2.2 Funding Mechanics. On the Closing Date, subject to the
conditions in Section 2.1 and Article 4, each Purchaser shall Purchase a
Class B Note on the proposed date thereof by wire transfer in Dollars of
immediately available funds to the Agent at the office designated from time
to time by the Agent, not later than 10:00 a.m., New York City time, and
the Agent shall (unless notified in writing that any condition precedent
has not been satisfied), by noon, New York City time, on the same day, make
available to Issuer by wire transfer of Dollars in immediately available
funds the aggregate amount of the funds received.
SECTION 2.3 Pricing. The interest rate applicable to the Class B
Notes for each Interest Period shall equal LIBOR, as determined on the
related LIBOR Determination Date, plus the Class B Margin specified in the
letter of even date with this Agreement from the Agent to the
Administrator; provided that in no event shall such rate exceed the
applicable Net Funds Cap.
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SECTION 2.4 Taxes. (a) The Issuer covenants and agrees that for
United States federal, state and local income and franchise tax purposes it
will report Investment Earnings on the Spread Account as its income and pay
any tax thereon.
(b) All payments on the Class B Notes are payable free and clear
of any and all present and future taxes, levies, imposts, duties,
deductions, withholding, fees, liabilities and similar charges ("Taxes");
provided that the term "Taxes" as used in this Section 2.4 shall not
include any income or franchise tax based on the net income of any
Purchaser or any other tax upon or measured by income or gross receipts of
any Purchaser imposed by the United States of America or by any state,
locality or foreign jurisdiction in which such Purchaser maintains a
permanent establishment. If any Taxes are required to be withheld or
deducted from any amount payable to any Purchaser with respect to the Class
B Notes, subject to compliance by such Purchaser with subsection 2.4(c)
below, the Issuer agrees that the amount payable to such Purchaser
hereunder will be increased (which increase shall be paid only from the
Total Distribution Amount to the extent funds are available therefor under
Section 5.5(b)(iii)(3) of the Sale and Servicing Agreement) to the amount
which, after deduction from such amount of all Taxes required to be
withheld or deducted therefrom, will yield to such Purchaser the amount
stated to be payable to such Purchaser under the Class B Notes. Such
Purchaser (through the Agent) shall, as a condition of the payment of any
additional amounts under this subsection 2.4(b), provide the Issuer and the
Administrator (with a copy to the Agent) with evidence satisfactory to each
of them of the imposition of such Taxes, together with the calculation of
the additional amounts payable hereunder. The Administrator shall, on
behalf of the Issuer and to the extent it has withheld or made payments of
any Taxes, upon the request of the Agent on behalf of any Purchaser,
provide the Agent on behalf of any Purchaser with evidence satisfactory to
it of the payment of any Taxes with respect to amounts payable under the
Class B Notes. If any of the Taxes required to be borne by the Issuer
pursuant to this Section 2.4 are paid by any Purchaser, the Issuer will
reimburse such Purchaser on a grossed-up basis for such payments, together
with any interest, penalties and expenses in connection therewith, to the
extent amounts are available therefor pursuant to Section 5.5(b)(iii)(3) of
the Sale and Servicing Agreement.
(c) Each Purchaser organized under the laws of any jurisdiction
other than the United States or any State or political subdivision thereof
agrees that, prior to the date on which the first interest payment under
the Class B Notes is due thereto, it will deliver to the Agent, the Issuer
and the Administrator (i) two duly completed copies of the United States
Internal Revenue Service Form 4224 or successor applicable form and (ii) an
Internal Revenue Service Form W-8 or successor applicable form. Each
Purchaser also agrees to deliver to the Agent, the Issuer and the
Administrator two further copies of the said Form 4224 and
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Form W-8, or successor applicable forms or other manner of certification,
as the case may be, on or before the date that any such form expires or
becomes obsolete or after the occurrence of any event requiring a change in
the most recent form previously delivered by it and such extensions or
renewals thereof as may reasonably be requested by the Administrator,
unless in any such case an event (including any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which
would prevent such Purchaser from duly completing and delivering any such
form with respect to it and such Purchaser so advises the Issuer, the
Administrator and the Agent.
(d) Notwithstanding anything to the contrary in this Section 2.4,
each Purchaser which is not created or organized under the laws of the
United States or any State or political subdivision thereof (including the
District of Columbia) agrees that, upon written notice by the Administrator
to such Purchaser that the U.S. Internal Revenue Service ("IRS") has
determined that amounts payable under this Agreement to such Purchaser are
subject to withholding tax under Section 1446 of the Code (a "Withholding
Tax" and such determination being a "Withholding Event"):
(i) Such Purchaser shall, for tax years for which the
Purchaser has already filed, or was legally required to file, U.S.
federal income tax returns (each a "Prior Tax Year") prior to
proper notice of such Withholding Event, (A) provide to the
Administrator a signed officer's certificate of such Purchaser
stating that amounts paid under the Class B Notes have been
included in such Purchaser's U.S. federal income tax returns for
each such Prior Tax Year, and (B) upon the written request of the
Administrator, which request will provide assurances of
confidentiality of information reasonably satisfactory to such
Purchaser and for payment of all reasonable costs incurred by such
Purchaser in fulfilling such request, provide all information in
such Purchaser's possession or control to the Administrator or, at
such Purchaser's option, the IRS directly required by the IRS in
support of the application of Section 1463 of the Code for each
such Prior Tax Year to such Withholding Tax.
(ii) If Section 1463 of the Code is not applicable for
any Prior Tax Year of such Purchaser because the Purchaser did not
include amounts payable hereunder in its U.S. federal income tax
return for such Prior Tax Year and properly pay any federal income
tax due on such amounts or failed to file a U.S. federal income
return with respect to such Prior Tax Year, the Purchaser shall
(at the Purchaser's option) either (x) amend or file, as the case
may be, its U.S. federal income tax return for such Prior Tax Year
to properly include amounts paid hereunder during such Prior Tax
Year, pay any federal income tax due on such amounts (and interest
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and penalties thereon if required) and comply with the provisions
of clause (i) of this subsection 2.4(d) with respect to such Prior
Tax Year or (y) pay to the Issuer the amount of any Withholding
Tax paid or payable by the Issuer to the IRS (which payment by
such Purchaser, if the applicable Withholding Tax has not
theretofore been remitted to the IRS, shall be paid over by the
Issuer, as applicable, to the IRS for application to such
Withholding Tax) on payments hereunder during such Prior Tax Year
which were not included on such Purchaser's U.S. federal income
tax return or with respect to which the Purchaser did not so
properly pay federal income tax.
(iii) No increased amount shall be payable to any
Purchaser under the second sentence of subsection 2.4(b) with
respect to any Withholding Tax unless, due to a change in law,
treaty or regulation (or in the interpretation or administration
thereof by any governmental or regulatory agency or body charged
with the administration or interpretation thereof), the credit for
U.S. federal income tax purposes available to such Purchaser under
the Code (as in effect on the Closing Date) resulting from such
Withholding Tax is discontinued or substantially reduced.
In connection with remitting to the IRS any required amount of Withholding
Tax on account of a Purchaser for any tax year subsequent to the last Prior
Tax Year, the amount thereof may be charged first against the amount
otherwise payable to such Purchaser on account of interest on the Class B
Certificates, Class B Net Funds Cap Carryover or Class B Additional Amounts
(a "Class B Income Amount") for the Payment Date immediately preceding such
remittance and then against each successive Class B Income Amount for
subsequent Payment Dates to the extent required to aggregate such
Withholding Tax amount, and the Issuer shall pay such additional interest
as may accrue to the Purchaser at a rate equal to the Floating Rate on each
such charge from the Transfer Date of the related Class B Income Amount
through the first of the immediately succeeding April 15, June 15,
September 15 or December 15 (each such date, a "Tax Payment Due Date")
falling on or after the day which is 15 days after the Administrator's
signed notification to the Purchaser certifying the fact, date and amount
of the remittance (such first succeeding date, the "Credit Date"). The
Issuer shall pay additional interest to the Purchaser on each such charge
at a like rate from the Credit Date through the Tax Payment Date on which
such Purchaser may (without regard to the Purchaser's other payments with
respect to that Tax Payment Due Date) take such credit into account in
satisfying a minimum required installment of estimated tax described in
Section 6655 of the Code, provided that (i) such additional interest shall
in no event accrue beyond September 15 of the year in which the Purchaser's
related income tax return is required to be filed, and (ii) such additional
interest shall be payable only to the extent that the Purchaser certifies
to the Administrator, in a signed officer's
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certificate that it was not legally entitled to take such credit into
account in reducing a required installment for a prior Tax Payment Due
Date. All interest payable pursuant to this subsection 2.4(d) shall be
payable solely to the extent that funds are available therefore pursuant to
Section 5.5(b)(iii)(3) of the Sale and Servicing Agreement.
(e) Each Purchaser, agrees that it shall use reasonable efforts to
take any actions, including designating a different booking office, that
will avoid any Withholding Tax or the need for, or reduce that amount of,
any amounts payable to it for Taxes referred to in subsection 2.4(b);
provided that no such Purchaser shall be obligated to take any actions that
would, in the reasonable opinion of such Purchaser, be unlawful or
otherwise disadvantageous to such Purchaser or would result in any
unreimbursed cost or expense to such Purchaser, which cost and expense
would not have been incurred but for such actions. If any amounts payable
to a Purchaser for Taxes referred to in subsection 2.4(b) shall not be
eliminated or reduced by the designation of a different booking office or
other actions taken by the affected Purchaser and payment thereof hereunder
shall not be waived by such Purchaser within 15 days after the
Administrator shall have given written notice to such Purchaser and the
Agent of its intent to replace such Purchaser, the Administrator shall have
the right to (A) request in writing that the Agent, at the expense of the
Administrator, use reasonable efforts, and the Agent hereby agrees upon
receipt of such request to use its reasonable efforts, to obtain a
replacement investor for such Purchaser is reasonably acceptable to the
Administrator or (B) itself seek to replace the Purchaser hereunder with a
new investor is reasonably acceptable to the Agent; provided that (i) such
Purchaser shall not be replaced hereunder with a new investor until such
Purchaser has been repaid in full all amounts owed to it pursuant to this
Agreement and (ii) if the Purchaser to be replaced or its Support Bank is
the Agent, a replacement Agent shall have been appointed in accordance with
Section 5.8 and the Agent to be replaced shall have been paid all amounts
owing to it as Agent pursuant to this Agreement; provided further that the
Administrator shall provide the Purchaser to be replaced with an officer's
certificate stating that such new investor has advised the Administrator
that it is not then subject to, or has agreed not to seek, such amounts for
Taxes. Subject to the provisions of this subsection 2.4(e), each affected
Purchaser hereby agrees to assign all of its rights and obligations to such
replacement Purchaser pursuant to an Assignment Agreement in the form of
Exhibit B, subject to payment in full of all amounts due to it hereunder
(including amounts due it under this Section 2.4).
ARTICLE 3 REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Mutual Representations and Warranties. As of the
Initial Closing Date, each party to this Agreement represents and warrants
to the other parties that:
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(a) it has full power and authority, and has taken all
action necessary, to execute and deliver this Agreement, to
fulfill its obligations hereunder and to consummate the
transactions contemplated hereby;
(b) its making and performance of this Agreement and all
documents required to be executed and delivered hereunder do not
and will not violate any law or regulation of the jurisdiction of
its incorporation or any other applicable law or regulation;
(c) this Agreement has been duly executed and delivered
by it and constitutes its legal, valid and binding obligation,
enforceable against such party in accordance with its terms; and
(d) all approvals, authorizations or other actions by, or
filing with, any governmental authority necessary for the validity
or enforceability of its obligations under this Agreement have
been obtained.
SECTION 3.2 Issuer. As of the Initial Closing Date, Issuer further
represents and warrants to the Agent and the Purchasers that:
(a) assuming the accuracy of each Purchaser's
representations set out in Section 3.3, the offer and sale of the
Class B Notes in the manner contemplated by this Agreement is a
transaction exempt from the registration requirements of the
Securities Act, and this Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended; and
(b) the Prospectus Supplement dated September 11, 1997
(and accompanying Prospectus dated September 11, 1997) relating to
the Indenture Notes and the Certificates does not contain any
untrue statement of a material fact or omit to state a material
fact necessary to make the statements contained therein not
misleading in light of the circumstances under which they were
made (including the circumstance that only the Indenture Notes and
the Certificates are offered thereby, and the Class B Notes are
not).
SECTION 3.3 Purchasers. As of each date on which it acquires Class
B Note(s), each Purchaser further represents and warrants (and each
Assignee shall be deemed to represent and warrant as of the date that its
assignment becomes effective) that:
(a) it is a "qualified institutional buyer" as that term
is defined under Rule 144A of the Securities Act and it is not
purchasing its Class
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B Note with a view to making a distribution thereof (within the
meaning of the Securities Act); and
(b) neither it nor any Person acting on its behalf has
made a general solicitation or general advertising, within the
meaning of the Securities Act and the rules and regulations
thereunder, for the offer or sale of the Class B Notes. Each
Purchaser further agrees that it will not make any general
solicitation or general advertising for the offer or sale of the
Class B Notes and will not transfer its Class B Note (or any
portion thereof) to any Person unless such Person shall have
provided the Administrator and Issuer with a certificate to the
effect of clause (a) above with respect to that Person.
SECTION 3.4 Case Credit and XX XX. As of the Initial Closing Date,
each of Case Credit and XX XX Agreement represents and warrants (severally
and as to itself alone) to the Agent and the Purchasers that each of its
representations and warranties set forth in each Basic Document is true and
correct on the Initial Closing Date. To the extent that the Basic Documents
restrict remedies with respect to the breach of any of such representations
and warranties, the remedies of the Agent and the Purchasers are restricted
in the same manner. Each Purchaser acknowledges and agrees that the
representation and warranties made by the Issuer hereunder and in any Basic
Documents shall not be deemed to be representations and warranties made by
The Bank of New York on behalf of the Issuer or in its individual capacity.
ARTICLE 4 CONDITIONS
SECTION 4.1 Conditions to Initial Purchase. The obligation of the
initial Purchaser to Purchase its initial Class B Note on the Initial
Closing Date shall be subject to the satisfaction of the conditions
precedent that (x) the Agent shall have received, for the account of such
Purchaser, a duly executed and authenticated Class B Note registered in its
name and in an initial principal amount equal to its Percentage of
$97,960,250.83, (y) the Agent and its affiliates shall have received
certain fees and expenses (as described in the fee letter dated as of
September 22, 1997 from the Agent to the Administrator and XX XX) and (z)
the Agent shall have received an original (except as indicated below)
counterpart of the following:
(a) the Indenture, the Sale and Servicing Agreement, the
Purchase Agreement, the Trust Agreement and the Administration
Agreement (together with this Agreement and the Class B Notes, the
"Basic Documents"), each of which shall be in full force and
effect, and all actions required to be taken under those documents
in connection with the issuance of the Class B Notes shall have
been taken;
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(b) a certificate of the Secretary, or an Assistant
Secretary, of each of Case Credit and XX XX with respect to:
(i) attached copies of resolutions of its Board
of Directors then in full force and effect authorizing
the execution, delivery and performance of the Basic
Documents,
(ii) the incumbency and signatures of those of
its officers authorized to act with respect to the Basic
Documents and
(iii) attached copies of its certificate of
incorporation and by-laws;
(c) the following opinions addressed to the Agent and the
Purchasers, and in each case as to the matters and in such form
and substance as shall be satisfactory to the Agent and the
Purchasers:
(i) opinions of Xxxxx, Xxxxx & Xxxxx as to
certain corporate and securities matters, true sale and
non-consolidation;
(ii) an opinion of Xxxx Xxxx, senior counsel to
Case Corporation, as to certain corporate matters;
(iii) an opinion of Xxxxx & Xxxxxxx as to certain
UCC matters; and
(iv) an opinion of Xxxxxxxx, Xxxxxx & Finger as
to certain Delaware business trust and UCC matters;
(d) an executed copy of ISDA Swap Agreement, dated the
Closing Date, between the initial Purchaser and Case Credit,
including the Schedule thereto and the initial Confirmation
thereunder, in form and substance satisfactory to the initial
Purchaser and the Agent;
(e) photocopies of each UCC financing statement being
filed pursuant to the Basic Documents in connection with the
transactions occurring on the Initial Closing Date and of the
results of UCC record searches conducted in connection with those
transactions; and
(f) any other information, certificates, opinions and
documents as the Agent may have reasonably requested.
SECTION 4.2 Conditions to Each Purchase. The obligation of each
Purchaser to make any Purchase on the Initial Closing Date and each
Additional
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Closing Date shall be subject to the further conditions precedent that on
the date of the Purchase, before and after giving effect thereto and to the
application of any proceeds therefrom, the following statements shall be
true:
(a) the representations and warranties of Issuer, Case
Credit and XX XX set out in this Agreement are true and accurate
in all material respects as of that date with the same effect as
though made on that date (unless specifically stated to relate to
an earlier date);
(b) all of the conditions precedent under the Basic
Documents to any purchase of Subsequent Receivables occurring on
such date have been (or will, concurrently with the issuance of
the applicable Additional Class B Notes, be) satisfied (and Agent
shall have received copies of all UCC filings made in connection
with such purchase);
(c) in the case of any Additional Closing Date, the
Issuer and the applicable Purchaser shall have agreed upon the
interest rate applicable to the Additional Class B Notes to be
issued on that date; and
(d) no Event of Default, Default or Servicer Default has
occurred and is continuing.
ARTICLE 5 AGENT; REQUIRED PURCHASERS
SECTION 5.1 Appointment. The Purchasers hereby designate CSFB as
Agent. Each Purchaser hereby irrevocably authorizes the Agent to take
action on its behalf under the provisions of the Basic Documents and any
other instruments and agreements referred to therein or contemplated
thereby and to exercise the powers and perform the duties hereunder and
thereunder that are specifically delegated to or required of the Agent by
the terms hereof and thereof, and any other powers as are reasonably
incidental thereto. The Agent may perform any of its duties by or through
its officers, directors, agents or employees.
SECTION 5.2 Nature of Duties. The Agent shall not have any duties
or responsibilities except those expressly set forth in this Agreement.
Neither the Agent nor any of its officers, directors, agents or employees
shall be liable for any action taken or omitted by it or them under any
Basic Document or in connection herewith or therewith, unless caused by
their gross negligence or willful misconduct. The duties of the Agent shall
be mechanical and administrative in nature, the Agent shall not have by
reason of this Agreement a fiduciary relationship in respect of any
Purchaser, and nothing in any Basic Document, expressed or implied, is
intended to or shall be construed as to impose upon the Agent any
obligations in respect of any Basic Document except as expressly set forth
herein.
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SECTION 5.3 Lack of Reliance on Agent. Independently and without
reliance upon the Agent, each Purchaser, to the extent it deems
appropriate, has made and shall continue to make (a) its own independent
investigation of the financial condition and affairs of Issuer, XX XX and
Case Credit in connection with the making of each Purchase and the taking
or not taking of any action in connection herewith and (b) its own
appraisal of the creditworthiness of Issuer, XX XX and Case Credit and the
merits and risks of an investment in the Class B Notes, and, except as
expressly provided in this Agreement, the Agent shall not have any duty or
responsibility, either initially or on a continuing basis, to provide any
Purchaser with any credit or other information with respect thereto,
whether coming into its possession before the making of a Purchase or at
any time or times thereafter. The Agent shall not be responsible to any
Purchaser for any recitals, statements, information, representations or
warranties herein or in any document, certificate or other writing
delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectibility, priority
or sufficiency of the Basic Documents or the financial condition of Issuer,
XX XX or Case Credit or be required to make any inquiry concerning either
the performance or observance of any of the terms, provisions or conditions
of any Basic Document, or the financial condition of Issuer, XX XX or Case
Credit or the existence or possible existence of any Default or Servicer
Default.
SECTION 5.4 Certain Rights of Agent. If the Agent shall request
instructions from the Required Purchasers with respect to any act or action
(including failure to act) in connection with any Basic Document, the Agent
shall be entitled to refrain from acting or taking the action unless and
until the Agent shall have received instructions from the Required
Purchasers, and the Agent shall not incur liability to any Person by reason
of so refraining. Without limiting the foregoing, no Purchaser shall have
any right of action whatsoever against the Agent as a result of the Agent
acting or refraining from acting under any Basic Document in accordance
with the instructions of the Required Purchasers or for refraining to act
in the absence of instruction.
SECTION 5.5 Reliance. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any note, writing, resolution,
notice, statement, certificate, telex, teletype or telecopier message,
cablegram, radiogram, order or other document or telephone message signed,
sent or made by any Person that the Agent believed to be the proper Person.
The Agent may consult with legal counsel (including counsel for any Related
Person), independent public accountants and other experts selected by the
Agent and shall not be liable for any action taken or omitted to be taken
in accordance with the advice of such counsel, accountants or experts.
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18302061.3 100197 1653C 95202263
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SECTION 5.6 Indemnification. The Purchasers will reimburse and
indemnify the Agent ratably in accordance with their respective Percentages
from and against any and all liabilities, obligations, losses, damages,
penalties, claims, actions, judgments, suits, costs, expenses or
disbursements of whatsoever kind or nature that may be imposed on, asserted
against or incurred or suffered by the Agent (including fees and expenses
of legal counsel, accountants and experts) in performing its duties or as a
result of any action taken or omitted to be taken by the Agent under any
Basic Document or in any way relating to or arising out of any Basic
Document; provided, that no Purchaser shall be liable for any portion of
these liabilities, obligations, losses, damages, penalties, claims,
actions, judgments, suits, costs, expenses or disbursements resulting from
the Agent's gross negligence or willful misconduct (as determined by a
court of competent jurisdiction in a final and non-appealable order).
Notwithstanding the foregoing, no Structured Lender shall be obligated to
reimburse or indemnify the Agent pursuant to this Section 5.6; provided
that one or more support Banks (severally and in such portions as is
reasonably acceptable to such Structured Lender and the Agent) shall have
agreed in a manner reasonably acceptable to such Structured Lender and the
Agent to provide such reimbursement and indemnification to the aggregate
extent of such Structured Lender's Percentage thereof.
SECTION 5.7 Agent in its Individual Capacity. With respect to its
obligation to purchase Class B Notes under this Agreement, the Agent shall
have the rights and powers specified herein for a Purchaser and may
exercise the same rights and powers as though it were not performing the
duties of the "Agent" specified herein, and the term "Purchasers,"
"Required Purchasers" and "holders" or "payees" of any Class B Notes or any
similar terms shall, unless the context clearly otherwise indicates,
include the Agent in its individual capacity. The Agent and its Affiliates
may accept deposits from, lend money to and generally engage in any kind of
banking, trust or other business with Issuer or Administrator or any of
their Affiliates as if the Agent were not performing the duties specified
herein, and may accept fees and other consideration from Issuer or
Administrator for services in connection with this Agreement and otherwise
without having to account for the same to the Purchasers.
SECTION 5.8 Resignation by Agent. (a) The Agent may resign at any
time by giving notice to Issuer and the Purchasers. Such resignation shall
take effect upon the appointment of a successor Agent pursuant to
subsections (b) and (c) below or as otherwise provided below.
(b) Upon any notice of resignation of the Agent, the Required
Purchasers shall appoint a successor Agent hereunder who shall be a
commercial bank or trust company reasonably acceptable to Issuer (it being
understood and agreed that any Purchaser is deemed to be acceptable to
Issuer).
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18302061.3 100197 1653C 95202263
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(c) If a successor Agent is not appointed pursuant to subsection
(b) within 30 days after the delivery of the notice referred to in
subsection (a), the resigning Agent, with the consent of Issuer, which
shall not be unreasonably withheld, shall then appoint a successor Agent
who shall serve as Agent hereunder until the time, if any, that the
Required Purchasers appoint a successor Agent as provided above.
(d) If no successor Agent has been appointed pursuant to
subsection (b) or (c) above by the 60th day after the date notice of
resignation was given by the resigning Agent, such Agent's resignation
shall become effective and the Purchasers shall thereafter perform all the
duties of the Agent under the Basic Documents until the time, if any, that
the Purchasers appoint a successor Agent as provided above.
SECTION 5.9 Required Purchasers. "Required Purchasers" means
Purchasers holding Class B Notes the aggregate outstanding principal amount
of which is more than 50% of the total outstanding principal amount of the
Class B Notes.
ARTICLE 6 MISCELLANEOUS PROVISIONS
SECTION 6.1 Successors and Assigns; Assignments. (a) This
Agreement shall be binding upon, and inure to the benefit of, Issuer, Case
Credit, the Agent, the Purchasers and their respective successors and
assigns; provided that none of Issuer, Case Credit or XX XX may assign its
rights or obligations hereunder or in connection herewith or any interest
herein (voluntarily, by operation of law or otherwise) without the prior
written consent of all the Purchasers, except that Administrator may be
terminated in accordance with the Basic Documents; and provided further,
that no Purchaser or Participant may transfer, pledge, assign, sell
participations in or otherwise encumber its rights or obligations hereunder
or any interest herein except as permitted under this section.
(b) Each Purchaser may at any time sell to one or more banks or
other entities ("Participants") participating interests in all or any
portion of its Class B Note and its obligations hereunder (its "Credit
Exposure"); provided that such Participant shall have certified to the
selling Purchaser that such Participant is a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act). In the event of
any sale by a Purchaser of participating interests to a Participant, the
Purchaser shall notify Issuer of the identity of the Participant upon a
request by Issuer, the Purchaser's obligations under this Agreement shall
remain unchanged, the Purchaser shall remain solely responsible for the
performance thereof, and the Purchaser shall remain the holder of its
rights under its Class B Note and this Agreement for all purposes under
this Agreement, and the other parties to the Basic Documents shall continue
to deal solely and directly with the Purchaser in connection with such
rights and obligations under this Agreement.
Note Purchase Agreement
18302061.3 100197 1653C 95202263
13
The Purchasers agree that any agreement between them and any
Participant in respect of a participating interest shall (x) contain a
covenant of the Participant not to make any general solicitation or general
advertising for the offer or sale of its interest in the Class B Notes, (y)
require the Participant to comply with the terms of Section 6.10 and (z)
not restrict the Purchasers' right to agree to any amendment, supplement or
modification of the Basic Documents except to (i) extend the final maturity
of any obligation, (ii) reduce the rate or extend the time of payment of
interest thereon under the Basic Documents, (iii) reduce the principal
amount of any obligation, (iv) release or direct the release of all or
substantially all of the Collateral or the Trust Estate, (v) increase the
amount of the participation from the amount thereof then in effect, or (vi)
permit assignment or transfer by Issuer, XX XX or Case Credit of its rights
or obligations under the Basic Documents.
(c) Any Purchaser may at any time assign to any Permitted
Transferee or to one or more banks or other financial institutions (each,
an "Assignee") all or any part of its Credit Exposure; provided that (i)
unless assigned to an Affiliate of the Purchaser or to a Permitted
Transferee, it assigns all of its Credit Exposure or a portion of its
Credit Exposure in an amount not less than $5,000,000, (ii) such Assignee,
other than an existing Purchaser, an Affiliate of the Purchaser or a
Permitted Transferee, must be acceptable to the Agent, in its discretion,
and must be acceptable to the Administrator (such acceptance not to be
unreasonably withheld or delayed), and (iii) such Assignee shall have
certified to the assigning Purchaser that such Assignee is a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act).
For purposes of this Section 6.1, a "Permitted Transferee" means, with
respect to any Structured Lender, any of its Support Banks.
In the event of any assignment, the Purchaser shall give notice to
Issuer and the Agent and shall deliver to the Agent, for acceptance and
recording in its records, an assignment agreement substantially in the form
of Exhibit A together with a processing and recordation fee of, in the case
of assignments to a Purchaser or an Affiliate of a Purchaser, $1,500 and,
in cases of any other assignment, $3,500; provided, that no processing and
recordation fee shall be payable in connection with any assignment by a
Structured Lender to a Permitted Transferee. Within five Business Days of
receipt thereof, the Agent shall, if the assignment agreement has been
fully executed by the Assignee and the assignor Purchaser, is completed and
is in substantially the form of Exhibit A, execute the assignment agreement
and record the information contained therein in its records. Upon the
earlier of the expiration of the five Business Day period or the date of
the recording, the assignment will become effective; provided, that any
assignment by a Structured Lender to a Permitted Transferee shall not
require acceptance or recording by the Agent prior to effectiveness and
shall become effective immediately upon receipt by the Agent of an
assignment agreement
Note Purchase Agreement
18302061.3 100197 1653C 95202263
14
appropriately completed in substantially the form of Exhibit A and executed
by such Structured Lender and the applicable Permitted Transferee.
Issuer, Administrator, Case Credit, the Agent and the Purchasers
agree to extend the rights and benefits under this Agreement to the
Assignee to the extent the Assignee would have had if it were a Purchaser
that was an original signatory to this Agreement; provided, that the
parties hereto shall be entitled to continue to deal solely and directly
with the assignor Purchaser in connection with the interests so assigned to
the Assignee until the assignment agreement and any required fee, as
described above, shall have been delivered to the Agent by the Purchaser
and the Assignee and the assignment shall have become effective. Upon the
effective assignment of its Credit Exposure, the Purchaser shall be
relieved of its obligations hereunder to the extent of the assignment. The
Issuer shall issue one or more substitute Class B Notes in exchange for the
Class B Notes that are the subject of any assignment, reflecting the
assignment.
(d) The sale or assignment of any Credit Exposure to any Assignee
or Participant (each, a "Transferee") shall not be effective until it has
agreed to be bound by the provisions of Section 6.10. Issuer authorizes the
Purchasers to disclose to any Transferee and any prospective Transferee any
and all information in their possession concerning Issuer in connection
with the Transferee's credit evaluation of the Class B Notes prior to
entering into this Agreement.
(e) Notwithstanding any other provision set forth in this
Agreement, the Purchasers may at any time create a security interest in all
or any portion of their rights under this Agreement and the Class B Notes
in favor of any Federal Reserve Bank in accordance with Regulation A of the
Board of Governors of the Federal Reserve System.
(f) In connection with any proposal that a bank or other financial
institution become a Support Bank for a Purchaser which is a Structured
Lender, such Purchaser at its sole discretion, shall be entitled to
distribute to any proposed Support Bank on a confidential basis any
information furnished to such Purchaser by the Agent pursuant to the Basic
Documents. Each Purchaser which is a Structured Lender shall promptly
notify the Agent (who shall promptly notify Issuer) in writing of the
identity and interest of each Support Bank for such Purchaser promptly upon
the obtaining of such Support Bank.
SECTION 6.2 Survival of Agreement. All covenants, agreements,
representations and warranties made herein and in the Class B Notes
delivered pursuant hereto shall survive the making and the repayment of the
Purchases and the execution and delivery of this Agreement and the Class B
Notes and shall continue in full force and effect until all obligations
have been paid in full and all commitments of the Purchasers hereunder have
been terminated. In addition, the
Note Purchase Agreement
18302061.3 100197 1653C 95202263
15
obligations of the Purchasers under Section 5.6 and XX XX under Section
6.11 and each applicable party's obligations under Section 6.10 shall
survive the termination of this Agreement.
SECTION 6.3 Entire Agreement. This Agreement, together with the
other Basic Documents and the fee letter referred to in Section 4.1,
contains a final and complete integration of all prior expressions by the
parties hereto with respect to the subject matter hereof and shall
constitute the entire agreement among the parties hereto with respect to
the subject matter hereof, superseding all previous oral statements and
other writings with respect thereto.
SECTION 6.4 Notices. All communications hereunder shall be in
writing and shall be deemed to have been duly given if personally
delivered, sent by overnight courier or mailed by registered mail, postage
prepaid and return receipt requested, or transmitted by facsimile
transmission and confirmed by a similar mailed writing to any party at the
address for that party set forth (a) on the signature page to this
Agreement or (b) to another address as that party may designate in writing
to the Agent and Issuer.
SECTION 6.5 No Third-Party Beneficiaries. Nothing expressed herein
is intended or shall be construed to give any Person other than the parties
hereto any legal or equitable right, remedy or claim under or in respect of
this Agreement.
SECTION 6.6 Severability of Provisions. Any covenant, provision,
agreement or term of this Agreement that is prohibited or is held to be
void or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of the prohibition or unenforceability without
invalidating the remaining provisions of this Agreement.
SECTION 6.7 Counterparts. This Agreement may be executed in any
number of counterparts (which may include facsimile) and by the different
parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original, and all of which together shall
constitute one and the same instrument.
SECTION 6.8 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES.
SECTION 6.9 Tax Characterization. It is the intent of the Issuer,
XX XX, Case Credit and the Class B Noteholders that, for purposes of
Federal and State income tax and any other tax measured in whole or in part
by income, the Class B Notes will qualify as indebtedness of the Issuer.
Each Purchaser, by acceptance
Note Purchase Agreement
18302061.3 100197 1653C 95202263
16
of a Class B Note, agrees to treat, and to take no action inconsistent with
the treatment of, the Class B Notes for such tax purposes as indebtedness
of the Trust, except as otherwise required by law.
SECTION 6.10 No Proceedings. (a) The Agent and each Purchaser
agree that they will not at any time institute against XX XX or the Issuer,
or join in any institution against XX XX or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or
other proceedings under any United States Federal or State bankruptcy or
similar law in connection with any obligations relating to the Class B
Notes or any of the Basic Documents. The foregoing shall not limit the
rights of any Person to file any claim in or otherwise take any action with
respect to any insolvency proceeding that was instituted against XX XX or
the Issuer by any Person other than such Person.
(b) Each of the Issuer, Case Credit, XX XX, the Agent (solely in
its capacity as such), and each Purchaser (solely in its capacity as such)
hereby agrees that it will not institute against any Structured Lender, or
join any other Person in instituting against any Structured Lender, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law, for one year plus one day after the latest
maturing commercial paper note, medium term note or other debt security
issued by such Structured Lender is paid. The foregoing shall not limit the
rights of any Person to file any claim in or otherwise take any action with
respect to any insolvency proceeding that was instituted against any
Structured Lender by any Person other than such Person.
SECTION 6.11 Expenses; Indemnification. Case Credit shall pay on
demand (i) all reasonable out-of-pocket fees and expenses (including
reasonable attorneys' fees and expenses and rating agency fees) of the
Agent and Conduit incurred in connection with the preparation, execution,
delivery, administration, amendment, modification and waiver of the Basic
Documents and the making and repayment of the Purchases, and (ii) all
reasonable out-of-pocket fees and expenses of the Purchasers and the Agent
(including reasonable attorneys' fees and expenses of their counsel)
incurred in connection with the enforcement of the Basic Documents against
Issuer, Case Credit and XX XX and in connection with any workout or
restructuring of the Basic Documents. In addition, XX XX will pay any and
all stamp and other taxes and fees payable or determined to be payable in
connection with the execution, delivery, filing, recording or enforcement
of this Agreement or any payment made under the Basic Documents (other than
taxes imposed on net income of any Purchaser), and hereby indemnifies and
saves the Agent and the Purchasers harmless from and against any and all
liabilities with respect to or resulting from any delay in paying or
omission to pay the taxes and fees. In addition, XX XX agrees to pay,
indemnify, and hold each Purchaser and the Agent (and their respective
directors, officers, employees, agents,
Note Purchase Agreement
18302061.3 100197 1653C 95202263
17
affiliates and successors) harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever
(whether or not caused by any Purchaser's or the Agent's or any of their
respective directors', officers', employees', agents', successors',
affiliates' or assigns' negligence (other than gross negligence) and
including the reasonable fees and disbursements of the respective counsels
to the Agent and each Purchaser, including, without duplication, the
allocated costs of staff counsel to any such Purchaser or the Agent) with
respect to the execution, delivery, enforcement, performance and
administration of this Agreement and the other Basic Documents (regardless
of whether the Agent or any Purchaser is a party to the litigation or other
proceeding giving rise thereto), (all the foregoing in sentence,
collectively, the "indemnified liabilities"), provided, that XX XX shall
have no obligation hereunder to the Agent or any Purchaser with respect to
indemnified liabilities to the extent such indemnified liabilities arise
solely from (i) the gross negligence or wilful misconduct of the
Administrative Agent or any such Purchaser (or any of their respective
directors, officers, employees, agents, affiliates or successors) or (ii)
legal proceedings commenced against the Agent or any such Purchaser by any
securityholder or creditor of the Agent or any such Purchaser arising out
of or based upon rights afforded any such securityholder or creditor solely
in its capacity as such.
Note Purchase Agreement
18302061.3 100197 1653C 95202263
18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their duly authorized officers and delivered as of
the day and year first above written.
CASE EQUIPMENT LOAN TRUST 1997-B
By: THE BANK OF NEW YORK,
not in its individual capacity but solely as
Trustee under the Trust Agreement
By: /s/ Xxxxxx X. Laser
Name: Xxxxxx X. Laser
Title: Assistant Vice President
Address: 000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration -
Asset Backed Finance Unit
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
CASE CREDIT CORPORATION,
as Administrator
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Treasurer
Address: 000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxx 00000
Attention: Treasurer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Note Purchase Agreement
18302061.3 100197 1653C 95202263
19
CASE RECEIVABLES II INC.
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Treasurer
Address: 000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxx 00000
Attention: Treasurer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
CREDIT SUISSE FIRST BOSTON, NEW YORK
BRANCH,
as Agent and as Support Bank for Conduit
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: Director
By: /s/ Xxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxx X. Xxxxxx
Title: Associate
Address: Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telephone: 212/000-0000
Facsimile: 212/325-6677
Note Purchase Agreement
18302061.3 100197 1653C 95202263
20
ALPINE SECURITIZATION CORP., as a Purchaser
By: Credit Suisse First Boston, New York Branch, as
attorney-in-fact
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: Director
By: /s/ Xxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxx X. Xxxxxx
Title: Associate
Address: x/x Xxxxxx Xxxxxx Xxxxx Xxxxxx,
Xxx Xxxx Branch
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Note Purchase Agreement
18302061.3 100197 1653C 95202263
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SCHEDULE I
to Note Purchase Agreement
INITIAL PURCHASER'S MAXIMUM AMOUNT AND PERCENTAGE
-------------------------------------------------
Maximum Amount
--------------
Purchaser
---------
$97,960,250.83
Percentage
----------
Alpine Securitization Corp. 100%
18302061.3 100197 1653C 95202263
22
EXHIBIT B
to Note Purchase Agreement
FORM OF ASSIGNMENT AGREEMENT
----------------------------
This ASSIGNMENT AGREEMENT, dated as of ____________ (this
"Agreement"), is made between ____________________ ("Assignor"), and
_____________________ ("Assignee"). Except as otherwise defined herein,
capitalized terms have the meanings assigned to them in the Note Purchase
Agreement (as defined below).
BACKGROUND
A. Assignor is a party to the Note Purchase Agreement, dated as of
September 22, 1997 (as amended, supplemented or otherwise modified from
time to time, the "Note Purchase Agreement"), among CASE EQUIPMENT LOAN
TRUST 1997-B, a Delaware business trust ("Issuer"), CASE CREDIT
CORPORATION, a Delaware corporation, CASE RECEIVABLES II INC., a Delaware
corporation, the Purchasers party thereto (including Assignor), certain
Purchasers and CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH, as Agent.
B. Assignor wishes to assign, and Assignee wishes to be so
assigned, Assignor's rights and obligations arising on and after the
Effective Date (as defined below) under the Note Purchase Agreement and its
Class B Note including its obligations to make Purchases (its "Credit
Exposure").
C. Assignor and Assignee also wish (a) Assignee to assume the
obligations of Assignor under the Note Purchase Agreement with respect to
Assignee's Share (as defined below) to the extent of the rights assigned
and (b) Assignor to be released from the obligations assumed by Assignee.
SECTION 1. Assignment. Effective on the Effective Date (as defined
below) and upon payment of the amount specified in Section 3(a), Assignor
hereby assigns and transfers to Assignee, without recourse, representation
or warranty of any kind, express or implied (except as provided in Sections
6(a) and (b)), and subject to Section 4(b), Assignee's Share (as specified
in Annex I hereto) (the "Assignee's Share") of all of Assignor's rights,
title and interest arising under (a) the Note Purchase Agreement relating
to Assignor's Credit Exposure including all rights and obligations with
respect to the Purchases attributable to Assignee's
18302061.3 100197 1653C 95202263
23
Share and (b) Assignor's Class B Note with respect to Assignee's Share as
will result in Assignee having from and after the Effective Date the
Percentage ("Assignee's Percentage") specified in Annex I.
SECTION 2. Assumption. Effective on the Effective Date, Assignee
hereby irrevocably purchases, assumes and takes from Assignor, and Assignor
is hereby expressly and absolutely released from, all of Assignor's
obligations arising under the Note Purchase Agreement relating to
Assignee's Share and of any outstanding Purchases attributable to
Assignee's Share. Assignee hereby agrees to be bound by the provisions of
the Note Purchase Agreement.
SECTION 3. Payment. In consideration of the assignment by Assignor
to Assignee as set forth above, Assignee agrees to pay to Assignor, in
Dollars and in immediately available funds, (a) on or prior to the
Effective Date, an amount specified by Assignor in writing on or prior to
the Effective Date that represents Assignee's Share attributable to the
principal amount of the Purchases made pursuant to the Note Purchase
Agreement and outstanding on the Effective Date, and (b) from time to time
thereafter, other amounts (if any) that Assignee has agreed in writing to
pay to Assignor after the Effective Date. In consideration of the
assumption by Assignee, Assignor agrees to pay to Assignee on the Effective
Date, an assignment fee (if any) that previously has been agreed to in
writing by both parties.
Notwithstanding anything to the contrary in this Agreement, if and
when Assignee receives or collects (x) any payment of principal or interest
relating to any Purchases or (y) any payment of fees that are required to
be paid to Assignor pursuant to this Agreement, then Assignee shall forward
the payment to Assignor.
To the extent payment of funds to Assignee or Assignor are not
made within one Business Day, each, as the case may be, shall be entitled
to recover the due amount, together with interest thereon at the Federal
Funds Rate per annum accruing from the date of payment or the date of
receipt of the funds by the other party.
SECTION 4. Effectiveness. (a)(i) This Agreement shall become
effective on the date (the "Effective Date") on which [it shall have been
duly executed by all parties and the Agent shall have recorded the
information contained herein in its records (or automatically upon the
Agent's receipt of this Agreement signed by Assignor and Assignee if not so
recorded within five Business Days of such receipt)] [the Agent shall have
received this Agreement duly executed by Assignor and Assignee] Assignor
hereby notifies the Agent of the assignment, effective as of the Effective
Date, of Assignee's Share and any Purchases attributable to the Assignee's
Share, and directs the Agent to pay Assignee any payment of principal of,
or interest on, any Purchase attributable to the Assignee's Share of any
18302061.3 100197 1653C 95202263
24
Purchases. No (x) failure of either Assignee or Assignor to settle any
amount owed to the other (except with respect to the payment of the
processing and recordation fee to the Agent and the payment due under
Section 3(a)), (y) dispute respecting any other settlement, including in
respect of Issuer, or (z) bankruptcy, insolvency or other condition
whatsoever respecting any Person, shall in any way impair, reduce or
otherwise affect the effectiveness of this Agreement.
(ii) Assignor, Assignee and the Agent each acknowledges and agrees
that from and after the Effective Date, the Issuer shall make all payments
under the Note Purchase Agreement in respect of Assignee's Share (including
all payments of principal and interest with respect thereto, whether or not
the payments shall have accrued prior to or after the Effective Date) to
Assignee only. Assignor and Assignee hereby agree further to make all
appropriate adjustments in payments to either of them under the Note
Purchase Agreement for periods prior to the Effective Date directly between
themselves.
(b) With respect to any Purchase attributable to Assignee's Share,
if and when Assignor receives or collects any payment of principal or
interest with respect to Assignee's Share for any period commencing on or
after the Effective Date, Assignor shall distribute to Assignee the portion
attributable to Assignee's Share, but only to the extent it accrued on or
after the Effective Date and was not theretofore paid to Assignee by Issuer
or otherwise. Any principal or interest paid prior to the Effective Date
shall be retained by Assignor. Any principal or interest received by
Assignee that accrued prior to the Effective Date shall be forwarded
promptly, in the form received, to Assignor. Assignee recognizes and agrees
that (i) it shall receive no payment on account of any Agent's fees or
other amounts or expenses (including counsel fees) payable to the Agent (in
such capacities and for their own account), (ii) this Agreement shall not
operate to assign any rights or delegate any obligations of the Agent (in
such capacities), and (iii) notwithstanding anything to the contrary in
this Agreement, Assignor shall retain all of its rights to indemnification
under the Note Purchase Agreement for any events, acts or omissions
occurring prior to the Effective Date.
(c) The Agent, by its execution hereof, acknowledges the
assignment and agrees to make payments in respect of principal, interest,
fees and Additional Amounts as described in clause (a).
SECTION 5. Rights as Purchaser under Note Purchase Agreement. In
accordance with Section 6.1 of the Note Purchase Agreement, (a) as of the
Effective Date, Assignee will be a Purchaser under, and party to, the Note
Purchase Agreement and shall have (i) all of the rights and obligations of
a Purchaser (to the extent of the assignment and assumption of Assignee's
Share effected by this Agreement) and (ii) the addresses for notice
purposes as set forth in item 2 of Annex I hereto and (b) promptly on or
after the Effective Date,
18302061.3 100197 1653C 95202263
25
Issuer will execute and deliver any documents and instruments that Assignor
or Assignee reasonably may require.
SECTION 6. Representations and Warranties. (a) Each of Assignor and
Assignee represents and warrants to the other as follows:
(i) it has full power and authority, and has taken all
action necessary, to execute and deliver this Agreement, to
fulfill the obligations hereunder and to consummate the
transactions contemplated hereby,
(ii) the making and performance of this Agreement and all
documents required to be executed and delivered hereunder do not
and will not violate any law or regulation of the jurisdiction of
its incorporation or any other applicable law or regulation,
(iii) this Agreement has been duly executed and delivered
and constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms, and
(iv) all approvals, authorizations or other actions by,
or filing with, any governmental authority necessary for the
validity or enforceability of its obligations under this Agreement
have been obtained.
(b) Assignor represents and warrants to Assignee that Assignee's
Share and the Purchases attributable to Assignee's Share are not subject to
any liens or security interests created by Assignor.
(c) Except as set forth in subsections (a) and (b), Assignor makes
no representations or warranties, express or implied, to Assignee and shall
not be responsible to Assignee for (i) the execution, effectiveness,
genuineness, legality, validity, enforceability, collectibility, regulatory
status or sufficiency of the Note Purchase Agreement or any of the other
Basic Documents, (ii) the perfection, priority, value or adequacy of any
collateral security or guaranty, (iii) the taking of any action, or the
failure to take any action, with respect to any of the Basic Documents,
(iv) any representations, warranties, recitals or statements made in any of
the Basic Documents or in any written or oral financial or other
statements, instruments, reports, certificates or documents made or
furnished by Assignor to Assignee or by or on behalf of Issuer or any of
its Affiliates to Assignor or Assignee in connection with the Basic
Documents and the transactions contemplated thereby, (v) the financial or
other condition of Issuer or any other Person or (vi) any other matter
having any relation to any of the foregoing. Assignor shall not be required
to ascertain or inquire as to the performance or observance of any of the
terms, conditions, provisions, covenants or agreements contained in any of
the Basic Documents or the existence or
18302061.3 100197 1653C 95202263
26
possible existence of any Event of Default, Default or Servicer Default.
Additionally, Assignor shall not have any duty or responsibility either
initially or on a continuing basis to make any investigation or any
appraisal on Assignee's behalf or to provide Assignee with any credit or
other information with respect thereto, whether coming into Assignor's
possession before the execution of the Note Purchase Agreement or at any
time thereafter. Assignor shall have no responsibility with respect to the
accuracy of, or the completeness of, any information provided to Assignee,
whether by Assignor or by or on behalf of Issuer or any other Person
obligated under the Note Purchase Agreement or any related instrument or
document.
(d) Assignee represents and warrants that (x) it has made its own
independent investigation of each of the foregoing matters, including the
financial condition and affairs of Issuer and its Affiliates, in connection
with the making of the Purchases and the execution of this Agreement
(including the solvency of Issuer and its Affiliates, their ability to pay
their respective debts as they mature and the capital of Issuer and its
Affiliates remaining after the closing under the Basic Documents and the
consummation of the transactions contemplated thereby) and has made and
shall continue to make its own appraisal of the creditworthiness of Issuer
and its Affiliates, and (y) the representations and warranties set forth in
Section 3.3 of the Note Purchase Agreement are true and correct with
respect to the Assignee. Assignee hereby agrees that it will not make any
general solicitation or general advertising for the offer or sale of the
Class B Notes. Assignee (i) confirms that it has received copies of the
Basic Documents together with copies of certain other closing documents
delivered in connection with the Note Purchase Agreement, financial
statements and any other documents and information that it has requested or
deemed appropriate to make its own credit analysis and decision to enter
into this Agreement and (ii) agrees that it will, independently and without
reliance upon the Agent, Assignor or any other Purchaser and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under the Basic Documents.
SECTION 7. No Proceedings. Assignee hereby agrees to be bound by the
provisions of Section 6.10 of the Note Purchase Agreement.
[SECTION 8. Withholding Taxes. Assignee agrees to execute and
deliver to the Agent, for delivery to Issuer, on or before the Effective
Date or, in the case of a Support Bank, on or before the date it becomes a
Support Bank, (a) two original copies of Internal Revenue Service Form 4224
or successor applicable form, properly completed and duly executed by the
Assignee certifying that it is entitled to receive payments under the Note
Purchase Agreement and any Class B Note without deduction or withholding of
any United States Federal income taxes, or (b) an original copy of Internal
Revenue Service Form W-8 or
18302061.3 100197 1653C 95202263
27
applicable successor form, properly completed and duly executed. Assignee
represents and warrants to Issuer and Assignor that, as of the Effective
Date, it shall be entitled to receive payments under its Class B Note, the
Note Purchase Agreement and hereunder without deduction for or on account
of any taxes imposed by the United States of America or any political
subdivision thereof; provided that in the case of an Assignee which is a
Support Bank, such representation and warranty shall be made as of the date
on which such Assignee became a Support Bank. In the event that, after
delivering the applicable form, Assignee shall cease to be exempt from
withholding and/or deduction of taxes, then the Agent may withhold and/or
deduct the applicable amount from any payments of principal, interest and
any fees to which Assignee otherwise would be entitled, and the Agent shall
have no liability whatsoever to Assignee for any such withholding or
deduction. Assignee shall indemnify Issuer and the Agent from and against
all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs or expenses that result from Assignee's breach of
such representation and warranty.]*/
SECTION 9. Miscellaneous. (a) Each of the parties hereto agrees to
take any action and execute and deliver any documents that any party hereto
reasonably may request from time to time in order to implement more fully
the purposes of this Agreement. Without limiting the generality of the
foregoing, Assignor and Assignee will cooperate in obtaining for Assignee a
Class B Note (as well as a replacement Class B Note for Assignor
representing any retained interest of Assignor).
(b) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES.
(c) Except as otherwise set forth herein, this Agreement sets
forth the entire agreement between the parties relating to the subject
matter hereof, and no term or provision of this Agreement may be amended,
changed, waived, discharged or terminated orally or otherwise, except in a
writing signed by Assignor and Assignee.
(d) This Agreement may be executed in any number of counterparts and
by the different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
--------
* If the Assignee is not a U.S. person within the meaning of Section
7701(a)(30) of the Internal Revenue Code.
18302061.3 100197 1653C 95202263
28
(e) Each of the parties hereto agrees that each party shall bear
its own expenses in connection with the preparation and execution of this
Agreement and the consummation of the Assignment described herein. Assignee
further agrees that it shall send a check in the amount of $[1,500] [3,500]
to the Agent on or prior to the Effective Date, as payment of the
processing and recordation fee described in Section 6.1(c) of the Note
Purchase Agreement. [Select correct amount in accordance with that Section;
delete in the case of a Permitted Transferee.]
(f) All representations and warranties made, and indemnities
provided for, herein shall survive the consummation of the transactions
contemplated hereby.
(g) Assignor may at any time or from time to time grant
assignments and participations in its rights and obligations under the Note
Purchase Agreement and its Class B Note to other Persons, but not in the
portions thereof assigned to Assignee.
(h) This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns. Neither
Assignor nor Assignee may assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of the
other party. The preceding sentence shall not limit the right of Assignee
to assign all or part of Assignee's Share in the manner contemplated by the
Note Purchase Agreement.
(i) Assignee acknowledges that all obligations of the Agent are
subject to Article 5 of the Note Purchase Agreement.
[SECTION 10. Assumption by Support Bank. In accordance with Section
2.1(c) of the Note Purchase Agreement, each of the undersigned Support Banks
for Assignee join in this Agreement to confirm, for the benefit of the parties
to the Note Purchase Agreement, that such Support Bank is obligated to make its
Support Bank Percentage (defined below) of all Purchases that Assignee would
otherwise be required to make under the Note Purchase Agreement. The "Support
Bank Percentage" of each Support Bank is as follows:
__________________________.]**/
---------------------------
**Use bracketed language if Assignee is a Structured Lender and its
Purchases are discretionary.
18302061.3 100197 1653C 95202263
29
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their duly authorized officers and delivered as of
the day and year first above written.
_________________________________,
as Assignor
By:______________________________
Title:________________________
__________________________________,
as Assignee
By:_______________________________
Title:_________________________
[______________________________,
as Support Bank]
The undersigned hereby acknowledges the terms and provisions of
this Agreement.
------------------------------,
as Agent
By:______________________________
Title:_________________________
18302061.3 100197 1653C 95202263
30
ANNEX I
to Assignment Agreement
Item 1. Assignee's Share:
(a) Assignee's Maximum Amount $______________
(b) Assignee's Percentage _____________%
Item 2. Address of Assignee for notice purposes:
____________________________
____________________________
____________________________
Attention: ______________
Telephone: ______________
Facsimile: ______________
18302061.3 100197 1653C 95202263
|| APPENDIX X
to Note Purchase Agreement
INDEX OF ADDITIONAL DEFINED TERMS
---------------------------------
Administrator ......................................................1, 4
Agent .........................................................1
Agreement .........................................................1
Assignee ........................................................14
Basic Documents .........................................................9
Case Credit .........................................................1
Class B Income Amount......................................................5
Class B Notes .........................................................1
XX XX .........................................................1
Credit Date .........................................................5
Credit Exposure ........................................................14
Falcon .........................................................2
FNBC .........................................................1
Indenture .........................................................1
Initial Class B Notes......................................................2
IRS .........................................................4
Issuer .........................................................1
Participants ........................................................14
Percentage .........................................................2
Prior Tax Year .........................................................4
Purchase .........................................................2
Purchasers .........................................................1
Required Purchasers.......................................................13
Sale and Servicing Agreement...............................................1
Structured Lender .........................................................2
Support Bank .........................................................2
Tax Payment Due Date.......................................................5
Taxes .........................................................3
Transferee ........................................................15
Withholding Event .........................................................4
Withholding Tax .........................................................4
||
18302061.3 100197 1653C 95202263
