Exhibit 4.8
This ADMINISTRATION AGREEMENT dated as of September 1, 2003, among CNH
WHOLESALE MASTER NOTE TRUST, a Delaware statutory trust (the "Issuer"), CASE
CREDIT CORPORATION, a Delaware corporation, as administrator (the
"Administrator"), and JPMORGAN CHASE BANK, a New York banking corporation, not
in its individual capacity but solely as Indenture Trustee (the "Indenture
Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has entered into the Indenture, dated as of
September 1, 2003 (as amended and supplemented from time to time, the
"Indenture"), between the Issuer and the Indenture Trustee, pursuant to which
the Issuer may from time to time issue its Notes in one or more Series, the
terms of which will be set forth in the related Indenture Supplement
(capitalized terms used and not otherwise defined herein shall have the meanings
assigned to such terms in the Transfer and Servicing Agreement and, if not
defined therein, the Indenture);
WHEREAS, the Issuer will enter into indenture supplements from time to
time (as amended and supplemented from time to time, each an "Indenture
Supplement"), between the Issuer and the Indenture Trustee for the issuance of a
Series of Notes;
WHEREAS, the Issuer will enter into from time to time a letter of
representations (as amended and supplemented from time to time, each a "Note
Depository Agreement"), among the Issuer, the Indenture Trustee, the
Administrator and The Depository Trust Company relating to a Series of Notes
(the Note Depository Agreement, the Indenture, the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇
Supplement, the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Supplement, the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇
Supplement and each other Indenture Supplement executed and delivered from time
to time in connection with the issuance of a Series of Notes (the "Indenture
Supplements") being referred to hereinafter collectively as the "Related
Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer and the Owner
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 Owner Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the Owner Trustee
referred to in the preceding clause and to provide such additional services
consistent with the terms of this Agreement and the Related Agreements as the
Issuer and the Owner Trustee may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
ADMINISTRATION AGREEMENT
1. DUTIES OF THE ADMINISTRATOR. (a) Duties with Respect to the Note
Depository Agreement, the Indenture and the Indenture Supplement. (i) The
Administrator agrees to perform all its duties as Administrator and the duties
of the Issuer and the Owner Trustee under the Note Depository Agreement. In
addition, the Administrator shall consult with the Owner Trustee regarding the
duties of the Issuer or the Owner Trustee under the Indenture, each Indenture
Supplement and the Note Depository Agreement. The Administrator shall monitor
the performance of the Issuer and shall advise the Owner Trustee when action is
necessary to comply with the Issuer's or the Owner Trustee's duties under the
Indenture, each Indenture Supplement and the Note Depository Agreement. 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 that it shall be the duty of the
Issuer or the Owner Trustee to prepare, file or deliver pursuant to the
Indenture, each Indenture Supplement or the Note Depository Agreement. In
furtherance of the foregoing, the Administrator shall take all appropriate
action that is the duty of the Issuer or the Owner Trustee to take pursuant to
the Indenture including, without limitation, such of the foregoing as are
required with respect to the following matters under the Indenture or an
Indenture Supplement:
(A) the delivery of an Officer's Certificate or an Opinion
of Counsel as to compliance with the Indenture (Indenture Section 1.02);
(B) 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 (Indenture Sections 2.04 and 2.05);
(C) the delivery to the Indenture Trustee of the Issuer
Certificate (Indenture Section 2.02);
(D) 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
(Indenture Section 3.05);
(E) the delivery to the Indenture Trustee and the Rating
Agencies of a Tax Opinion, and certain other documents related to a new
issuance of Notes (Indenture Section 3.10);
(F) the receipt of a confirmation from the Rating Agencies
and the delivery to the Indenture Trustee and the Rating Agencies of a
Tax Opinion and in regard to a change in the Required Subordinated
Amount for any class of Notes (Indenture Section 3.11);
(G) the duty to cause to be established and maintained the
Collection Account (Indenture Section 4.02);
(H) the giving of written directions to the Indenture
Trustee regarding investment of funds on deposit in the Accounts
(Indenture Section 4.03);
(I) the giving of demand to the Indenture Trustee to execute
proper instruments acknowledging satisfaction and discharge of the
Indenture, and delivery to
2 ADMINISTRATION AGREEMENT
the Indenture Trustee of an Officer's Certificate and an Opinion of
Counsel regarding the satisfaction and discharge of the Indenture
(Indenture Section 6.01);
(J) the approval of the appointment of an Authenticating
Agent (Indenture Section 8.14);
(K) the preparation of required tax information and delivery
thereof to the Indenture Trustee (Indenture Section 8.15);
(L) the furnishing of the Indenture Trustee with the names
and addresses of Noteholders during any period when the Indenture
Trustee is not the Note Registrar (Indenture Section 9.01);
(M) the preparation and, after execution by the Issuer, the
filing with the Commission, any applicable state agencies 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 any applicable state agencies and the
transmission of such summaries, as necessary, to the Noteholders
(Indenture Section 9.05);
(N) the completion and delivery to the Indenture Trustee
and the Rating Agencies of the Monthly Noteholder's Statement (Indenture
Section 9.07);
(O) the delivery of a Tax Opinion, and an Officer's
Certificate, in connection with the amendment of the Indenture or the
entering into of a supplemental indenture (Indenture Sections 10.01 and
10.02);
(P) the delivery to the Indenture Trustee of an Opinion of
Counsel in connection with the execution of an Indenture Supplement
(Indenture Section 10.03);
(Q) 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 (Indenture Section 11.03);
(R) the delivery of an annual compliance statement as
specified in the Indenture (Indenture Section 11.04);
(S) the doing or causing to be done of all things
necessary to preserve and keep in full force and effect the Issuer's
legal existence (Indenture Section 11.05);
(T) at the request of the Indenture Trustee, to execute and
deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purpose
of the Indenture (Indenture Section 11.06);
(U) the provision of any information to satisfy the
conditions set forth in Rule 144A(d)(4) under the Securities Exchange
Act (Indenture Section 11.12);
3 ADMINISTRATION AGREEMENT
(V) the delivery to the Indenture Trustee of an Officer's
Certificate and Opinion of Counsel in connection with the consolidation
or merger of the Issuer, or conveyance or transfer of any of its
properties substantially as an entirety to any Person (Indenture Section
11.14);
(W) the taking of all actions necessary to obtain and
maintain a perfected lien on and security interest in the Collateral in
favor of the Indenture Trustee, and all related actions listed in
Section 13.01 of the Indenture (Indenture Section 13.01);
(X) the recording of the Indenture, if applicable (Indenture
Section 13.01);
(Y) delivery of an Officer's Certificate in connection with
the release of the Collateral (Indenture Section 13.07);
(Z) delivery of Opinions of Counsel regarding the Collateral
(Indenture Section 13.09);
(AA) the identification to the Indenture Trustee in an
Officer's Certificate of a Person with whom the Issuer has contracted to
perform its duties under the Indenture (Indenture Section 13.10);
(BB) the delivery to the Indenture Trustee of a copy of each
agreement with a Noteholder to provide for a method of payment or
notices different from that provided for in the Indenture (Indenture
Section 14.06);
(CC) the deposit of Receivables Sales Proceeds, if any,
for any Series of Notes into the applicable Interest Funding Account
(Indenture Supplement);
(DD) the calculation of the Collateral Amount of each Series
of Notes and the Available Subordinated Amount (Indenture Supplement);
and
(EE) the appointment of the Calculation Agent (Indenture
Supplement).
(FF) notify the Rating Agencies and the Indenture Trustee of
any Event of Default under the Indenture, any Insolvency Event with
respect to the Transferor or the Servicer and any Servicer Default under
the Transfer and Servicing Agreement, in each case, as notice of such
events is to be provided by the Issuer to the Rating Agencies or the
Indenture Trustee, as the case may be, pursuant to the terms of the
Transaction Documents.
(ii) The Administrator will:
(A) pay the Indenture Trustee from time to time reasonable
compensation for all services rendered by the Indenture Trustee under
the Indenture (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust);
4 ADMINISTRATION AGREEMENT
(B) except as otherwise expressly provided in the Indenture,
reimburse the Indenture Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Indenture
Trustee in accordance with any provision of the Indenture (including the
reasonable compensation, expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith;
(C) indemnify the Indenture Trustee, and hold it harmless
against, any losses, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the transactions contemplated by the
Indenture, including the costs and expenses of defending themselves
against any claim or liability (whether asserted by the Issuer, the
Servicer, any Holder or any other Person) in connection with the
exercise or performance of any of its powers or duties under the
Indenture; and
(D) indemnify the Owner Trustee and its agents for, and hold
them harmless against, any losses, liability or expense incurred without
negligence or bad faith on their part, arising out of or in connection
with the acceptance or administration of the transactions contemplated
by the Trust Agreement, including the reasonable costs and expenses of
defending themselves against any claim or liability in connection with
the exercise or performance of any of their powers or duties under the
Trust Agreement.
(b) ADDITIONAL DUTIES. (i) In addition to the duties of the
Administrator set forth above, the Administrator shall perform such calculations
and shall prepare or shall cause the preparation by other appropriate persons
of, and shall execute on behalf of the Issuer or the Owner Trustee, all such
documents, reports, filings, instruments, certificates and opinions that it
shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver
pursuant to the Related Agreements, and at the request of the Owner Trustee
shall take all appropriate action that it is the duty of the Issuer or the Owner
Trustee to take pursuant to the Related Agreements. In furtherance thereof, the
Owner Trustee shall, on behalf of itself and of the Issuer, execute and deliver
to the Administrator and to each successor Administrator appointed pursuant to
the terms hereof, one or more powers of attorney substantially in the form of
Exhibit A hereto, appointing the Administrator the attorney-in-fact of the Owner
Trustee and the Issuer for the purpose of executing on behalf of the Owner
Trustee and the Issuer all such documents, reports, filings, instruments,
certificates and opinions. Subject to Section 5 of this Agreement, and in
accordance with the directions of the Owner 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 provisions and as are expressly requested by the
Owner Trustee and are reasonably within the capability of the Administrator.
(i) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Administrator shall be responsible for
promptly notifying the Owner Trustee and the Paying Agent in the event that any
withholding tax is imposed on the Issuer's payments (or allocations of income)
to an Owner. Any such notice shall specify the amount of any withholding tax
required to be withheld by the Paying Agent pursuant to such provision.
5 ADMINISTRATION AGREEMENT
(ii) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into transactions
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.
(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 Owner Trustee of the
proposed action and the Owner 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 Indenture 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
Collateral pursuant to 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 and the
Company 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 month
which shall be solely an obligation of the Transferor.
4. ADDITIONAL INFORMATION TO BE FURNISHED TO ISSUER. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
6 ADMINISTRATION AGREEMENT
5. INDEPENDENCE OF 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 Owner 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 Owner Trustee in any
way and shall not otherwise be deemed an agent of the Issuer or the Owner
Trustee.
6. NO JOINT VENTURE. Nothing contained in this Agreement (i) shall
constitute the Administrator and either of the Issuer or the Owner 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 ADMINISTRATOR. Nothing herein shall prevent
the Administrator or its Affiliates from engaging in other businesses or, in its
sole discretion, from acting in a similar capacity as an administrator for any
other person or entity even though such person or entity may engage in business
activities similar to those of the Issuer, the Owner Trustee or the Indenture
Trustee.
8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR.
(a) This Agreement shall continue in force until the dissolution of the Issuer,
upon which event this Agreement shall automatically terminate.
(a) Subject to Section 8(e), the Administrator may resign its duties
hereunder by providing the Issuer with at least 60 days' prior written notice.
(b) Subject to Section 8(e), the Issuer may remove the Administrator
without cause by providing the Administrator with at least 60 days' prior
written notice.
(c) 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 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 Business 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
7 ADMINISTRATION AGREEMENT
of an order for relief in an involuntary case under any such law, 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 Section shall occur, it shall give written notice thereof
to the Issuer and the Indenture Trustee within seven days after the happening of
such event.
(d) 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.
(e) The appointment of any successor Administrator shall be
effective only after each Rating Agency confirms in writing that such proposed
appointment will not cause a Ratings Effect .
(f) Subject to Sections 8(e) and 8(f), the Administrator
acknowledges that upon the appointment of a Successor Servicer pursuant to the
Transfer and Servicing Agreement, the Administrator shall immediately resign and
such Successor Servicer shall automatically become the Administrator under this
Agreement.
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
take all reasonable steps requested to assist the Issuer 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 Owner Trustee, to:
CNH WHOLESALE MASTER NOTE TRUST
▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration-
Asset Backed Finance Unit
8 ADMINISTRATION AGREEMENT
(b) if to the Administrator, to:
Case Credit Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
(c) if to the Indenture Trustee, to:
JPMorgan Chase Bank
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Institutional Trust Services Group
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 Owner Trustee,
without the consent of the Noteholders, 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; provided
that such amendment will not, in an Opinion of Counsel satisfactory to the
Indenture Trustee [and an Officer's Certificate of the Administrator],
materially and adversely affect the interest of any Noteholder. This Agreement
may also be amended by the Issuer, the Administrator and the Indenture Trustee
with prior written notice to each Rating Agency and with the written consent of
the Owner Trustee and the holders of Notes evidencing at least a 66 2/3% of the
Outstanding Dollar Principal Amount, 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 Noteholders; provided, however, that
no such amendment may (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Receivables or
distributions that are required to be made for the benefit of the Noteholders or
(ii) reduce the aforesaid percentage of the holders of Notes which are required
to consent to any such amendment, without the consent of the holders of all the
outstanding Notes. Notwithstanding the foregoing, the Administrator may not
amend this Agreement without the permission of the Transferor, which permission
shall not be unreasonably withheld.
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 Owner Trustee and subject to receipt evidence that the
Rating Agency Condition has been satisfied with respect thereto. An assignment
with such consent and confirmation, 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 Owner Trustee to a
corporation or other organization that is a successor (by merger, consolidation
or purchase of assets) to the Administrator; provided that:
9 ADMINISTRATION AGREEMENT
(a) the Person formed by such consolidation or into which
the Administrator is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Administrator substantially as an
entirety shall be a Person organized and existing under the laws of the United
States of America or any State or the District of Columbia and, if the
Administrator is not the surviving entity, such Person shall assume, by
execution of a supplemental agreement hereto, the performance of every covenant
and obligation of the Administrator hereunder;
(b) the Administrator shall have given the Rating Agencies
at least 10 days prior notice and the Rating Agency Condition shall have been
satisfied with respect to such transaction; and
(c) the Administrator has delivered to the Indenture
Trustee and the Owner Trustee an Officers' Certificate stating that such
consolidation, merger, conveyance or transfer complies with this Section 12 and
that all conditions precedent herein provided for relating to such transaction
have been complied with, and an Opinion of Counsel to the effect that the
supplemental agreement referred to in clause (a) above is the legal, valid and
binding obligation of the Administrator and the successor Person.
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,
each of which when so executed shall be an original, but all of which together
shall constitute but one and the same agreement.
16. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall 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 OWNER TRUSTEE AND INDENTURE TRUSTEE.
(a) Notwithstanding anything contained herein to the contrary, this instrument
has been countersigned by The Bank of New York not in its individual capacity
but solely in its capacity as Owner Trustee of the Issuer and in no event shall
The Bank of New York 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
10 ADMINISTRATION AGREEMENT
performance of any duties or obligations of the Issuer hereunder, the Owner
Trustee shall be subject to, and entitled to the benefits of, the terms and
provisions of Articles V, VI and XI of the Trust Agreement.
(a) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by Indenture Trustee not in its individual
capacity but solely as Indenture Trustee in the exercise of the powers and
authority conferred and vested in it and in no event shall Indenture Trustee
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 Owner 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. NO PETITION. Each of the Administrator, the Owner Trustee and
the Indenture Trustee hereby covenants and agrees that it will not at any time
institute against the Issuer any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States Federal or state bankruptcy or similar law.
* * * * * * *
11 ADMINISTRATION AGREEMENT
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
CNH WHOLESALE MASTER NOTE TRUST
By: THE BANK OF NEW YORK,
not in its individual capacity but
solely as Owner Trustee
By: /s/ ▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Assistant Treasurer
JPMORGAN CHASE BANK,
not in its individual capacity
but solely as Indenture Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Trust Officer
CASE CREDIT CORPORATION,
as Administrator
By: /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Assistant Treasurer
ADMINISTRATION AGREEMENT
EXHIBIT A
POWER OF ATTORNEY
STATE OF NEW YORK )
COUNTY OF NEW YORK )
KNOW ALL MEN BY THESE PRESENTS, that The Bank of New York, a New York
banking corporation, not in its individual capacity but solely as owner trustee
(the "Owner Trustee") for CNH Wholesale Master Note Trust (the "Trust"), does
hereby make, constitute and appoint Case Credit Corporation, as administrator
under the Administration Agreement dated September 1, 2003 (the "Administration
Agreement"), among the Trust, Case Credit Corporation and JPMorgan Chase Bank,
as Indenture Trustee, as the same may be amended from time to time, and its
agents and attorneys, as Attorneys-in-Fact to execute on behalf of the Owner
Trustee or the Trust any and all such documents, reports, filings, instruments,
certificates and opinions as it should be the duty of the Owner Trustee or the
Trust to prepare, file or deliver pursuant to the Related Agreements, or
pursuant to the Trust Agreement, including, without limitation, to appear for
and represent the Owner Trustee and the Trust in connection with the
preparation, filing and audit of federal, state and local tax returns pertaining
to the Trust, if any, and with full power to perform any and all acts associated
with such returns and audits, if any, that the Owner Trustee could perform,
including without limitation, the right to distribute and receive confidential
information, defend and assert positions in response to audits, initiate and
defend litigation, and to execute waivers of restrictions on assessments of
deficiencies, consents to the extension of any statutory or regulatory time
limit, and settlements.
All powers of attorney for this purpose heretofore filed or executed by
the Owner Trustee are hereby revoked.
Capitalized terms that are used and not otherwise defined herein shall
have the meanings ascribed thereto in the Administration Agreement.
EXECUTED this ___ of _____________, 200_.
THE BANK OF NEW YORK,
not in its individual capacity but solely
as Owner Trustee
-------------------------------------------
Name:
Title:
A-1 ADMINISTRATION AGREEMENT
STATE OF ___________ )
)
COUNTY OF __________ )
Before me, the undersigned authority, on this day personally appeared
_______________________________, known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that he/she
signed the same for the purposes and considerations therein expressed.
Sworn to before me this ___
day of _______, 200__.
_____________________________________
Notary Public - State of_____________
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