CASE EQUIPMENT LOAN TRUST 1997-A
ADMINISTRATION AGREEMENT
among
CASE EQUIPMENT LOAN TRUST 1997-A,
an Issuer,
and
CASE CREDIT CORPORATION,
as Administrator,
and
XXXXXX TRUST AND SAVINGS BANK,
as Indenture Trustee.
Dated as of March 1, 1997
TABLE OF CONTENTS
Section Page
1. Duties of the Administrator...................................... 2
(a) Duties with Respect to the Indenture and the Depository
Agreement................................................. 2
(b) Duties with Respect to the Trust.......................... 6
(c) Non-Ministerial Matters................................... 7
2. Records.......................................................... 8
3. Compensation..................................................... 8
4. Additional Information To Be Furnished to the Issuer............. 8
5. Independence of the Administrator................................ 8
6. No Joint Venture................................................. 8
7. Other Activities of the Administrator............................ 9
8. Term of Agreement; Resignation and Removal of the Administrator.. 9
9. Action upon Termination, Resignation or Removal.................. 11
10. Notices......................................................... 11
11. Amendments...................................................... 12
12. Successors and Assigns.......................................... 13
13. Governing Law................................................... 13
14. Headings........................................................ 14
15. Counterparts.................................................... 14
16. Severability.................................................... 14
17. Not Applicable to Case Credit Corporation in Other Capacities... 14
18. Limitation of Liability of the Trustee and the Indenture Trustee 14
19. Third-Party Beneficiary......................................... 15
20. Indemnification................................................. 15
ADMINISTRATION AGREEMENT dated as of March 1, 1997, among CASE
EQUIPMENT LOAN TRUST 1997-A, a Delaware business trust (the "Issuer"), CASE
CREDIT CORPORATION, a Delaware corporation, as administrator (the
"Administrator"), and XXXXXX TRUST AND SAVINGS BANK, an Illinois banking
corporation, not in its individual capacity but solely as Indenture Trustee
(the "Indenture Trustee").
RECITALS
WHEREAS, the Issuer is issuing: (a) 5.597% Class A-1 Asset Backed
Notes, 6.00% Class A-2 Asset Backed Notes, 6.45% Class A-3 Asset Backed
Notes (together, the "Class A Notes") and 6.70% Class B Asset Backed Notes
(the "Class B Notes," and, together with the Class A Notes, the "Notes")
pursuant to the Indenture, dated as of the date hereof (as amended and
supplemented from time to time in accordance with the provisions thereof,
the "Indenture"), between the Issuer and the Indenture Trustee (capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned such terms in the Indenture);
WHEREAS, the Issuer has entered into certain agreements in connection
with the issuance of the Notes and of certain beneficial ownership interests
of the Issuer, including: (i) a Sale and Servicing Agreement, dated as of
the date hereof (as amended and supplemented from time to time, the "Sale
and Servicing Agreement"), among the Issuer, Case Credit Corporation, as
servicer (the "Servicer"), and Case Receivables II Inc., a Delaware
corporation, as seller (the "Seller"), (ii) a Depository Agreement, dated
March 1, 1997 (the "Depository Agreement"), among the Issuer, the Indenture
Trustee, the Administrator and The Depository Trust Company, (iii) the
Indenture and (iv) a Trust Agreement, dated as of the date hereof (the
"Trust Agreement"), between the Seller and the Trustee (the Sale and
Servicing Agreement, the Depository Agreement, the Indenture and the Trust
Agreement being hereinafter referred to collectively as the "Related
Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer and the
Trustee are required to perform certain duties in connection with: (a) the
Notes and the collateral therefor pledged pursuant to the Indenture (the
"Collateral") and (b) the beneficial ownership interests in the Issuer (the
registered holders of such interests being referred to herein as the
"Owners");
WHEREAS, the Issuer and the Trustee desire to have the Administrator
perform certain of the duties of the Issuer and the Trustee referred to in
the preceding clause, and to provide such additional services consistent
with this Agreement and the Related Agreements as the Issuer and the Trustee
may from time to time request;
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and
the Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual terms and covenants
contained herein, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. Duties of the Administrator.
(a) Duties with Respect to the Indenture and the Depository
Agreement. The Administrator shall perform all of its duties as
Administrator and the duties of the Issuer and the Trustee under the
Depository Agreement. In addition, the Administrator shall consult with the
Trustee regarding the duties of the Issuer and the Trustee under such
documents. The Administrator shall monitor the performance of the Issuer and
shall advise the Trustee when action is necessary to comply with the
Issuer's or the Trustee's duties under such documents. The Administrator
shall prepare for execution by the Issuer or shall cause the preparation by
other appropriate persons of all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the Issuer
or the Trustee to prepare, file or deliver pursuant to such documents. In
furtherance of the foregoing, the Administrator shall take all appropriate
action that is the duty of the Issuer or the Trustee to take pursuant to
such documents, including, without limitation, such of the foregoing as are
required with respect to the following matters (references in this Section
are to sections of the Indenture):
(i) the duty to cause the Note Register to be kept and to give
the Indenture Trustee notice of any appointment of a new Note
Registrar and the location, or change in location, of the Note
Register (Section 2.4);
(ii) the fixing or causing to be fixed of any specified record
date and the notification of the Indenture Trustee and Noteholders
with respect to special payment dates, if any (Section 2.7(c));
(iii) the preparation of or obtaining of the documents and
instruments required for authentication of the Notes and delivery of
the same to the Indenture Trustee (Section 2.2);
(iv) the preparation, obtaining or filing of the instruments,
opinions, certificates and other documents required for the release of
the Collateral (Section 2.9);
(v) the maintenance of an office in the Borough of Manhattan,
City of New York, for registration of transfer or exchange of Notes
(Section 3.2);
(vi) the duty to cause newly appointed Paying Agents, if any, to
deliver to the Indenture Trustee the instrument specified in the
Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit moneys with
the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuer's
qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of the Indenture, the Notes, the Collateral and each
other instrument and agreement included in the Trust Estate (Section
3.4);
(ix) the preparation of all supplements, amendments, financing
statements, continuation statements, instruments of further assurance
and other instruments, in accordance with Section 3.5 of the
Indenture, necessary to protect the Trust Estate (Section 3.5);
(x) the delivery of the Opinion of Counsel on the Closing Date
and the annual delivery of Opinions of Counsel, in accordance with
Section 3.6 of the Indenture, as to the Trust Estate, and the annual
delivery of the Officers' Certificate and certain other statements, in
accordance with Section 3.9 of the Indenture, as to compliance with
the Indenture (Sections 3.6 and 3.9);
(xi) the identification to the Indenture Trustee in an Officers'
Certificate of a Person with whom the Issuer has contracted to perform
its duties under the Indenture (Section 3.7(b));
(xii) the notification of the Indenture Trustee and the Rating
Agencies of a Servicer Default (as defined in the Sale and Servicing
Agreement) pursuant to the Sale and Servicing Agreement and, if such
Servicer Default arises from the failure of the Servicer to perform
any of its duties under the Sale and Servicing Agreement, the taking
of all reasonable steps available to remedy such failure (Section
3.7(d));
(xiii) the preparation and obtaining of documents and instruments
required for the release of the Issuer from its obligations under the
Indenture (Section 3.10(b));
(xiv) the delivery of notice to the Indenture Trustee of each
Event of Default and each default by the Servicer or Seller under the
Sale and Servicing Agreement (Section 3.19);
(xv) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation of an
Officers' Certificate and the obtaining of the Opinion of Counsel and
the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive of the Indenture
Trustee with respect to the sale of the Trust Estate in a commercially
reasonable manner if an Event of Default shall have occurred and be
continuing (Section 5.4);
(xvii) the furnishing to the Indenture Trustee with the names and
addresses of Noteholders during any period when the Indenture Trustee
is not the Note Registrar (Section 7.1);
(xviii) the preparation, execution and filing with the Commission
and the Indenture Trustee of documents required to be filed on a
periodic basis with, and summaries thereof as may be required by rules
and regulations prescribed by, the Commission and the transmission of
such summaries, as necessary, to the Noteholders (Section 7.3);
(xix) the opening of one or more accounts in the Trust's name,
the preparation of Issuer Orders, Officers' Certificates and Opinions
of Counsel and all other actions necessary with respect to investment
and reinvestment of funds in the Trust Accounts (Sections 8.2 and
8.3);
(xx) the preparation of an Issuer Request and Officers'
Certificate and the obtaining of an Opinion of Counsel and Independent
Certificates, if necessary, for the release of the Trust Estate as
defined in the Indenture (Sections 8.4 and 8.5);
(xxi) the preparation of Issuer Orders and the obtaining of
Opinions of Counsel with respect to the execution of supplemental
indentures and the mailing to the Noteholders of notices with respect
to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(xxii) the execution and delivery of new Notes conforming to any
supplemental indenture (Section 9.6);
(xxiii) the notification of Noteholders of redemption of the
Notes or the duty to cause the Indenture Trustee to provide such
notification (Section 10.2);
(xxiv) the preparation of all Officers' Certificates, Opinions of
Counsel and Independent Certificates with respect to any requests by
the Issuer to the Indenture Trustee to take any action under the
Indenture (Section 11.1(a));
(xxv) the preparation and delivery of Officers' Certificates and
the obtaining of Independent Certificates, if necessary, for the
release of property from the lien of the Indenture (Section 11.1(b));
(xxvi) the preparation and delivery to Noteholders and the
Indenture Trustee of any agreements with respect to alternate payment
and notice provisions (Section 11.6); and
(xxvii) the recording of the Indenture, if applicable (Section
11.15).
(b) Duties with Respect to the Trust. (i) In addition to the duties
of the Administrator set forth above, the Administrator shall perform such
calculations, and shall prepare for execution by the Issuer or the Trustee
or shall cause the preparation by other appropriate persons of all such
documents, reports, filings, instruments, certificates and opinions, as it
shall be the duty of the Issuer or the Trustee to perform, prepare, file or
deliver pursuant to the Related Agreements, and at the request of the
Trustee shall take all appropriate action that it is the duty of the Issuer
or the Trustee to take pursuant to the Related Agreements. Subject to
Section 5 of this Agreement, and in accordance with the directions of the
Trustee, the Administrator shall administer, perform or supervise the
performance of such other activities in connection with the Collateral
(including the Related Agreements) as are not covered by any of the
foregoing and as are expressly requested by the Trustee and are reasonably
within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
promptly notifying the Trustee in the event that any withholding tax
is imposed on the Trust's payments (or allocations of income) to an
Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any
such notice shall specify the amount of any withholding tax required
to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
performance of the duties of the Trustee set forth in Sections 5.5(a),
(b), (c) and (d), the penultimate sentence of Section 5.5 and Section
5.6(a) of the Trust Agreement with respect to, among other things,
accounting and reports to Owners; provided, however, that the Trustee
shall retain responsibility for the distribution of the Schedule K-1s
necessary to enable each Owner to prepare its Federal and State income
tax returns.
(iv) The Administrator shall satisfy its obligations with respect
to clauses (ii) and (iii) by retaining, at the expense of the Trust
payable by the Servicer, a firm of independent certified public
accountants (the "Accountants") acceptable to the Trustee, which
Accountants shall perform the obligations of the Administrator
thereunder. In connection with clause (ii), the Accountants will
provide prior to April 15, 1997, a letter in form and substance
satisfactory to the Trustee as to whether any tax withholding is then
required and, if required, the procedures to be followed with respect
thereto to comply with the requirements of the Code. The Accountants
shall be required to update the letter in each instance that any
additional tax withholding is subsequently required or any previously
required tax withholding shall no longer be required.
(v) The Administrator shall perform the duties of the
Administrator specified in Section 10.2 of the Trust Agreement
required to be performed in connection with the resignation or removal
of the Trustee, and any other duties expressly required to be
performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions with or otherwise deal with any of its affiliates;
provided, however, that the terms of any such transactions or dealings
shall be in accordance with any directions received from the Issuer
and shall be, in the Administrator's opinion, no less favorable to the
Issuer than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the
Issuer all such documents, reports, filings, instruments, certificates
and opinions as it shall be the duty of the Issuer to prepare, file or
deliver pursuant to the Basic Documents or otherwise by law.
(c) Non-Ministerial Matters. (i) With respect to matters that in the
reasonable judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless within a reasonable time
before the taking of such action the Administrator shall have notified the
Trustee of the proposed action and the Trustee shall not have withheld
consent or provided an alternative direction. For the purpose of the
preceding sentence, "non-ministerial matters" shall include, without
limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer
and the compromise of any action, claim or lawsuit brought by or
against the Issuer (other than in connection with the collection
of the Receivables);
(C) the amendment, change or modification of the Related
Agreements;
(D) the appointment of successor Note Registrars, successor
Paying Agents and successor Trustees pursuant to the Indenture or
the appointment of successor Administrators or successor
Servicers, or the consent to the assignment by the Note
Registrar, Paying Agent or Indenture Trustee of its obligations
under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this Agreement,
the Administrator shall not be obligated to, and shall not: (x) make
any payments to the Noteholders under the Related Agreements, (y) sell
the Trust Estate pursuant to Section 5.4 of the Indenture or (z) take
any other action that the Issuer directs the Administrator not to take
on its behalf.
2. Records. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer, the
Indenture Trustee and the Depositor (as defined in the Trust Agreement) at
any time during normal business hours.
3. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for
its expenses related thereto, the Administrator shall be entitled to $500
per quarter payable in arrears on each Payment Date, which payment shall be
solely an obligation of the Issuer.
4. Additional Information To Be Furnished to the Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
5. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall
not be subject to the supervision of the Issuer or the Trustee with respect
to the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuer, the Administrator
shall have no authority to act for or represent the Issuer or the Trustee in
any way (other than as permitted hereunder) and shall not otherwise be
deemed an agent of the Issuer or the Trustee.
6. No Joint Venture. Nothing contained in this Agreement: (i) shall
constitute the Administrator and either of the Issuer or the Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to
confer on any of them any express, implied or apparent authority to incur
any obligation or liability on behalf of the others.
7. Other Activities of the Administrator. Nothing herein shall
prevent the Administrator or its Affiliates from engaging in other
businesses or, in their sole discretion, from acting in a similar capacity
as an administrator for any other Person even though such Person may engage
in business activities similar to those of the Issuer, the Trustee or the
Indenture Trustee.
8. Term of Agreement; Resignation and Removal of the Administrator.
(a) This Agreement shall continue in force until the dissolution of the
Issuer, upon which event this Agreement shall automatically terminate.
(b) Subject to Section 8(e), the Administrator may resign its duties
hereunder by providing the Issuer, the Indenture Trustee and the Servicer
with at least 60 days' prior written notice.
(c) Subject to Section 8(e), the Issuer may remove the Administrator
without cause by providing the Administrator, the Indenture Trustee and the
Servicer with at least 60 days' prior written notice.
(d) Subject to Section 8(e), at the sole option of the Issuer, the
Administrator may be removed immediately upon written notice of termination
from the Issuer to the Administrator, the Indenture Trustee and the Servicer
if any of the following events shall occur:
(i) the Administrator shall default in the performance of any of
its duties under this Agreement and, after notice of such default,
shall not cure such default within ten days (or, if such default
cannot be cured in such time, shall not give within ten days such
assurance of cure as shall be reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not have
been vacated within 60 days, in respect of the Administrator in any
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect or appoint a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official for the Administrator or any substantial part of its property
or order the winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for relief
in an involuntary case under any such law, or shall consent to the
appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator or similar official for the Administrator or any
substantial part of its property, shall consent to the taking of
possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of
creditors or shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in
clauses (ii) or (iii) of this subsection shall occur, it shall give written
notice thereof to the Issuer, the Servicer and the Indenture Trustee within
seven days after the happening of such event.
(e) Upon the Administrator's receipt of notice of termination,
pursuant to Sections 8(c) or (d), or the Administrator's resignation in
accordance with this Agreement, the predecessor Administrator shall continue
to perform its functions as Administrator under this Agreement, in the case
of termination, only until the date specified in such termination notice or,
if no such date is specified in a notice of termination, until receipt of
such notice and, in the case of resignation, until the later of: (x) the
date 45 days from the delivery to the Issuer, the Indenture Trustee and the
Servicer of written notice of such resignation (or written confirmation of
such notice) in accordance with this Agreement and (y) the date upon which
the predecessor Administrator shall become unable to act as Administrator,
as specified in the notice of resignation and accompanying Opinion of
Counsel. In the event of the Administrator's termination hereunder, the
Issuer shall appoint a successor Administrator acceptable to the Indenture
Trustee, and the successor Administrator shall accept its appointment by a
written assumption in form acceptable to the Indenture Trustee. In the event
that a successor Administrator has not been appointed at the time when the
predecessor Administrator has ceased to act as Administrator in accordance
with this Section, the Indenture Trustee without further action shall
automatically be appointed the successor Administrator and the Indenture
Trustee shall be entitled to the compensation specified in Section 3.
Notwithstanding the above, the Indenture Trustee shall, if it shall be
unable so to act, appoint or petition a court of competent jurisdiction to
appoint any established institution having a net worth of not less than
$50,000,000 and whose regular business shall include the performance of
functions similar to those of the Administrator, as the successor to the
Administrator under this Agreement.
(f) Upon appointment, the successor Administrator (including the
Indenture Trustee acting as successor Administrator) shall be the successor
in all respects to the predecessor Administrator and shall be subject to all
the responsibilities, duties and liabilities arising thereafter relating
thereto placed on the predecessor Administrator and shall be entitled to the
compensation specified in Section 3 and all the rights granted to the
predecessor Administrator by the terms and provisions of this Agreement.
(g) Except when and if the Indenture Trustee is appointed successor
Administrator, the Administrator may not resign unless it is prohibited from
serving as such by law as evidenced by an Opinion of Counsel to such effect
delivered to the Indenture Trustee. No resignation or removal of the
Administrator pursuant to this Section shall be effective until: (i) a
successor Administrator shall have been appointed by the Issuer and (ii)
such successor Administrator shall have agreed in writing to be bound by the
terms of this Agreement in the same manner as the Administrator is bound
hereunder.
(h) The appointment of any successor Administrator shall be effective
only after satisfaction of the Rating Agency Condition with respect to the
proposed appointment.
9. Action upon Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to Section 8(a), or
the resignation or removal of the Administrator pursuant to Section 8(b) or
(c), respectively, the Administrator shall be entitled to be paid all fees
and reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such
termination pursuant to Section 8(a) deliver to the Issuer all property and
documents of or relating to the Collateral then in the custody of the
Administrator. In the event of the resignation or removal of the
Administrator pursuant to Section 8(b) or (c), respectively, the
Administrator shall cooperate with the Issuer and the Indenture Trustee and
take all reasonable steps requested to assist the Issuer and the Indenture
Trustee in making an orderly transfer of the duties of the Administrator.
10. Notices. Any notice, report or other communication given
hereunder shall be in writing and addressed as follows:
(a) if to the Issuer or the Trustee, to:
Case Equipment Loan Trust 0000-X
x/x Xxxxx Xxxxxxxxx Xxxx Xxxxxxxx
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Department
with a copy to:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Structured Finance Services (ABS)
(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.
11. Amendments. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Issuer, the
Administrator and the Indenture Trustee, with the written consent of the
Trustee, but without the consent of any of the Noteholders or the
Certificateholders, to cure any ambiguity, to correct or supplement
provisions of this Agreement or for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the Noteholders or the
Certificateholders; provided, however, that such amendment shall not, as
evidenced by an Opinion of Counsel satisfactory to the Indenture Trustee,
adversely affect in any material respect the interests of any Noteholder or
Certificateholder.
This Agreement may also be amended from time to time by the Issuer,
the Administrator and the Indenture Trustee with the written consent of (w)
the Trustee, (x) Noteholders holding Notes evidencing not less than a
majority of the Note Balance and (y) the Holders (as defined in the Trust
Agreement) of Certificates evidencing not less than a majority of the
Certificate Balance, for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders or the
Certificateholders; provided, however, that no such amendment shall: (i)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that are
required to be made for the benefit of the Noteholders or the
Certificateholders or (ii) reduce the aforesaid percentage of the Holders of
Notes and Certificates that are required to consent to any such amendment,
without the consent of the holders of all the outstanding Notes and
Certificates. Notwithstanding the foregoing, the Administrator may not amend
this Agreement without the permission of the Depositor, which permission
shwithheld.
Promptly after the execution of any such amendment or consent (or, in
the case of the Rating Agencies, 10 days prior thereto), the Administrator
shall furnish written notification of the substance of such amendment or
consent to each Certificateholder, the Trustee and each of the Rating
Agencies.
It shall not be necessary for the consent of the Certificateholders or
the Noteholders pursuant to this Section to approve the particular form of
any proposed amendment or consent, but it shall be sufficient if such
consent shall approve the substance thereof.
12. Successors and Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing
by the Issuer and the Trustee and subject to the satisfaction of the Rating
Agency Condition in respect thereof. An assignment with such consent and
satisfaction, if accepted by the assignee, shall bind the assignee hereunder
in the same manner as the Administrator is bound hereunder. Notwithstanding
the foregoing, this Agreement may be assigned by the Administrator without
the consent of the Issuer or the Trustee to a corporation or other
organization that is a successor (by merger, consolidation or purchase of
assets) to the Administrator, provided that such successor organization
executes and delivers to the Issuer, the Trustee and the Indenture Trustee
an agreement in which such corporation or other organization agrees to be
bound hereunder by the terms of said assignment in the same manner as the
Administrator is bound hereunder. Subject to the foregoing, this Agreement
shall bind any successors or assigns of the parties hereto.
13. Governing Law. This Agreement shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of
law provisions, and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
14. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
15. Counterparts. This Agreement may be executed in counterparts, all
of which when so executed shall together constitute but one and the same
agreement.
16. Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
17. Not Applicable to Case Credit Corporation in Other Capacities.
Nothing in this Agreement shall affect any obligation Case Credit
Corporation may have in any other capacity.
18. Limitation of Liability of the Trustee and the Indenture Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
instrument has been countersigned by Chase Manhattan Bank Delaware, not in
its individual capacity but solely in its capacity as Trustee of the Issuer,
and in no event shall Chase Manhattan Bank Delaware, in its individual
capacity, or any beneficial owner of the Issuer have any liability for the
representations, warranties, covenants, agreements or other obligations of
the Issuer hereunder, as to all of which recourse shall be had solely to the
assets of the Issuer. For all purposes of this Agreement, in the performance
of any duties or obligations of the Issuer thereunder, the Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Articles VI, VII and VIII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by 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.
19. Third-Party Beneficiary. The Trustee is a third-party beneficiary
to this Agreement and is entitled to the rights and benefits hereunder and
may enforce the provisions hereof as if it were a party hereto.
20. Indemnification. The Administrator shall indemnify the Trustee
and the Indenture Trustee (and their officers, directors, employees and
agents) for, and hold them harmless against, any losses, liability or
expense, including attorneys' fees reasonably incurred by them, incurred
without negligence or bad faith on their part, arising out of or in
connection with: (i) actions taken by either of them pursuant to
instructions given by the Administrator pursuant to this Agreement or (ii)
the failure of the Administrator to perform its obligations hereunder. The
indemnities contained in this Section shall survive the termination of this
Agreement and the resignation or removal of the Administrator, the Trustee
or the Indenture Trustee.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
CASE EQUIPMENT LOAN TRUST 1997-A
By: CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but solely as
Trustee on behalf of the Issuer and on its own
behalf as Trustee under the Trust Agreement
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Senior Trust Officer
XXXXXX TRUST AND SAVINGS BANK,
not in its individual capacity but solely as
Indenture Trustee
By: /s/ Xxxxx Xxxxxxxxxx
Name: Xxxxx Xxxxxxxxxx
Title: Assistant Trust Officer
CASE CREDIT CORPORATION,
as Administrator
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Treasurer
