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CASE EQUIPMENT RECEIVABLES TRUST 1998-C
ADMINISTRATION AGREEMENT
among
CASE EQUIPMENT RECEIVABLES TRUST 1998-C,
as Issuer,
and
CASE CREDIT CORPORATION,
as Administrator,
and
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
as Indenture Trustee.
Dated as of November 1, 1998
--------------------------------------------------------------------------------
|| 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..................................5
(c) Non-Ministerial Matters...........................................7
2. Records...................................................................7
3. Compensation..............................................................7
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.....................................8
8. Term of Agreement; Resignation and Removal of the Administrator...........8
9. Action upon Termination, Resignation or Removal..........................10
10. Notices.................................................................11
11. Amendments..............................................................11
12. Successors and Assigns..................................................12
13. Governing Law...........................................................13
14. Headings................................................................13
15. Counterparts............................................................13
16. Severability............................................................13
17. Not Applicable to Case Credit Corporation in Other Capacities...........13
18. Limitation of Liability of the Trustee and the Indenture Trustee........13
19. Third-Party Beneficiary.................................................14
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TABLE OF CONTENTS
(continued)
Section Page
20. Indemnification........................................................14
||
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ADMINISTRATION AGREEMENT dated as of November 1, 1998, among CASE
EQUIPMENT RECEIVABLES TRUST 1998-C, a Delaware business trust (the
"Issuer"), CASE CREDIT CORPORATION, a Delaware corporation, as
administrator (the "Administrator"), and ▇▇▇▇▇▇ 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) 5.42% Class A-1 Asset Backed
Notes, 5.49% Class A-2 Asset Backed Notes, 5.52% Class A-3 Asset Backed
Notes, 5.61% Class A-4 Asset Backed Notes (together, the "Class A Notes")
and 6.20% 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 are defined in Appendix A to 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 November 18, 1998 (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
1
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);
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(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 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));
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(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);
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(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, if any Certificates are held
by any Person other than the Depositor 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
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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 (if any)
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) If any Certificates are held by any Person other
than the Depositor, 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 November 18,
1998, 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
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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 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
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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.
8
(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)
9
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
10
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 Receivables Trust ▇▇▇▇-▇
▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Administration - Asset Backed
Finance Unit
(b) if to the Administrator, to:
Case Credit Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
(c) if to the Indenture Trustee, to:
▇▇▇▇▇▇ Trust and Savings Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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
11
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 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 shall not be unreasonably withheld.
Promptly after the execution of any such amendment or consent (or,
in the case of the Rating Agencies, 10 days prior thereto), the
Administrator shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, 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
12
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 The Bank of New York, not in its
individual capacity but solely in its capacity as Trustee of the Issuer,
and in no event shall The Bank of New York, in its individual capacity, or
any 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 ▇▇▇▇▇▇ Trust and Savings Bank, not
in its individual capacity but solely as Indenture Trustee, and in no event
shall ▇▇▇▇▇▇ Trust and Savings Bank have any liability for the
representations, warranties,
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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.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
CASE EQUIPMENT RECEIVABLES
TRUST 1998-C
By: THE BANK OF NEW YORK,
not in its individual capacity but
solely as Trustee on behalf of the Issuer
By: /s/ ▇▇▇▇▇▇ ▇. Laser
--------------------------------
Name: ▇▇▇▇▇▇ ▇. Laser
Title: Assistant Vice President
THE BANK OF NEW YORK,
not in its individual capacity but solely as
Trustee under the Trust Agreement
By: /s/ ▇▇▇▇▇▇ ▇. Laser
--------------------------------
Name: ▇▇▇▇▇▇ ▇. Laser
Title: Assistant Vice President
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
not in its individual capacity but solely as
Indenture Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
CASE CREDIT CORPORATION,
as Administrator
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Treasurer
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