Execution Copy
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CNH EQUIPMENT TRUST 2000-A
TRUST AGREEMENT
between
CNH RECEIVABLES INC.
and
THE BANK OF NEW YORK,
as Trustee
Dated as of March 1, 2000
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Table of Contents
Page
ARTICLE I
DEFINITIONS...............................1
SECTION 1.1. DEFINITIONS.....................................................1
SECTION 1.2. OTHER DEFINITIONAL PROVISIONS...................................1
ARTICLE II
ORGANIZATION................................2
SECTION 2.1. NAME...........................................................2
SECTION 2.2. OFFICE.........................................................2
SECTION 2.3. PURPOSES AND POWERS............................................2
SECTION 2.4. APPOINTMENT OF TRUSTEE.........................................3
SECTION 2.5. INITIAL CAPITAL CONTRIBUTION OF TRUST ESTATE...................3
SECTION 2.6. DECLARATION OF TRUST...........................................3
SECTION 2.7 LIABILITY OF THE CERTIFICATEHOLDERS............................4
SECTION 2.8. TITLE TO TRUST PROPERTY........................................4
SECTION 2.9. SITUS OF TRUST.................................................4
SECTION 2.10. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR................4
SECTION 2.11. FEDERAL INCOME TAX ALLOCATIONS.................................5
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS...............6
SECTION 3.1. INITIAL OWNERSHIP...............................................6
SECTION 3.2. THE TRUST CERTIFICATES..........................................6
SECTION 3.3. AUTHENTICATION OF TRUST CERTIFICATES............................7
SECTION 3.4. REGISTRATION OF TRANSFER AND EXCHANGE OF TRUST CERTIFICATES.....7
SECTION 3.5. MUTILATED, DESTROYED, LOST OR STOLEN TRUST CERTIFICATES.........8
SECTION 3.6. PERSONS DEEMED CERTIFICATEHOLDERS...............................9
SECTION 3.7. ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.......9
SECTION 3.8. MAINTENANCE OF OFFICE OR AGENCY.................................9
SECTION 3.9. APPOINTMENT OF PAYING AGENT....................................10
ARTICLE IV
ACTIONS BY TRUSTEE............................10
SECTION 4.1. PRIOR NOTICE TO CERTIFICATEHOLDERS WITH RESPECT
TO CERTAIN MATTERS.....................................10
SECTION 4.2. ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN MATTERS...11
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Page
SECTION 4.3. ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO BANKRUPTCY........11
SECTION 4.4. RESTRICTIONS ON CERTIFICATEHOLDERS' POWER......................11
SECTION 4.5. MAJORITY CONTROL...............................................12
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES..........12
SECTION 5.1. ESTABLISHMENT OF TRUST ACCOUNT.................................12
SECTION 5.2. APPLICATIONS OF TRUST FUNDS....................................12
SECTION 5.3. METHOD OF PAYMENT..............................................13
SECTION 5.4. NO SEGREGATION OF MONEYS; NO INTEREST..........................13
SECTION 5.5. ACCOUNTING AND REPORTS TO THE NOTEHOLDERS,
CERTIFICATEHOLDERS, THE INTERNAL REVENUE
SERVICE AND OTHERS.........................................13
SECTION 5.6. SIGNATURE ON RETURNS; TAX MATTERS PARTNER......................14
ARTICLE VI
AUTHORITY AND DUTIES OF TRUSTEE.....................14
SECTION 6.1. GENERAL AUTHORITY..............................................14
SECTION 6.2. GENERAL DUTIES.................................................14
SECTION 6.3. ACTION UPON INSTRUCTION........................................14
SECTION 6.4. NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT OR
IN INSTRUCTIONS.............................................15
SECTION 6.5. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR INSTRUCTIONS.....16
SECTION 6.6. RESTRICTIONS...................................................16
ARTICLE VII
CONCERNING THE TRUSTEE........................16
SECTION 7.1. ACCEPTANCE OF TRUSTS AND DUTIES................................16
SECTION 7.2. FURNISHING OF DOCUMENTS........................................18
SECTION 7.3. REPRESENTATIONS AND WARRANTIES.................................18
SECTION 7.4. RELIANCE; ADVICE OF COUNSEL....................................18
SECTION 7.5. NOT ACTING IN INDIVIDUAL CAPACITY..............................19
SECTION 7.6. TRUSTEE NOT LIABLE FOR TRUST CERTIFICATES OR RECEIVABLES.......19
SECTION 7.7. TRUSTEE MAY NOT OWN NOTES......................................19
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Page
ARTICLE VIII
COMPENSATION OF TRUSTEE.........................20
SECTION 8.1. TRUSTEE'S FEES AND EXPENSES....................................20
SECTION 8.2. INDEMNIFICATION................................................20
SECTION 8.3. PAYMENTS TO THE TRUSTEE........................................20
ARTICLE IX
TERMINATION OF TRUST AGREEMENT...................21
SECTION 9.1. TERMINATION OF TRUST AGREEMENT.................................21
ARTICLE X
SUCCESSOR TRUSTEES AND ADDITIONAL TRUSTEES............22
SECTION 10.1. ELIGIBILITY REQUIREMENTS FOR TRUSTEE..........................22
SECTION 10.2. RESIGNATION OR REMOVAL OF TRUSTEE.............................22
SECTION 10.3. SUCCESSOR TRUSTEE.............................................23
SECTION 10.4. MERGER OR CONSOLIDATION OF TRUSTEE............................23
SECTION 10.5. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.................24
ARTICLE XI
MISCELLANEOUS..............................25
SECTION 11.1. SUPPLEMENTS AND AMENDMENTS...................................25
SECTION 11.2. NO LEGAL TITLE TO TRUST ESTATE IN CERTIFICATEHOLDERS.........26
SECTION 11.3. LIMITATIONS ON RIGHTS OF OTHERS..............................26
SECTION 11.4. NOTICES......................................................26
SECTION 11.5. SEVERABILITY.................................................27
SECTION 11.6. SEPARATE COUNTERPARTS........................................27
SECTION 11.7. SUCCESSORS AND ASSIGNS.......................................27
SECTION 11.8. COVENANTS OF THE DEPOSITOR...................................27
SECTION 11.9. NO PETITION..................................................28
SECTION 11.10. NO RECOURSE..................................................28
SECTION 11.11. HEADINGS.....................................................28
SECTION 11.12. GOVERNING LAW................................................28
SECTION 11.13. ADMINISTRATOR................................................28
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EXHIBITS
EXHIBIT A Form of Trust Certificate
EXHIBIT B Form of Certificate of Trust
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TRUST AGREEMENT (as amended or supplemented from time to time, this
"AGREEMENT") dated as of March 1, 2000, between CNH RECEIVABLES INC., a Delaware
corporation, as Depositor, and THE BANK OF NEW YORK, a New York banking
corporation, as Trustee.
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. Capitalized terms used herein and not
otherwise defined herein are defined in Appendix A to the Indenture, dated as of
the date hereof, between CNH Equipment Trust 2000-A and Harris Trust and Savings
Bank.
SECTION 1.2. OTHER DEFINITIONAL PROVISIONS. (a) All terms defined in
this Agreement shall have the defined meanings when used in any certificate or
other document made or delivered pursuant hereto unless otherwise defined
therein.
(b) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles in effect on the date
hereof. To the extent that the definitions of accounting terms in this Agreement
or in any such certificate or other document are inconsistent with the meanings
of such terms under generally accepted accounting principles, the definitions
contained in this Agreement or in any such certificate or other document shall
control.
(c) The words "hereof", "herein", "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and Exhibits
in or to this Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation".
(d) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
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ARTICLE II
ORGANIZATION
SECTION 2.1. NAME. The Trust created hereby shall be known as "CNH
Equipment Trust 2000-A", in which name the Trustee may conduct the business of
the Trust, make and execute contracts and other instruments on behalf of the
Trust and sue and be sued.
SECTION 2.2. OFFICE. The office of the Trust shall be in care of the
Trustee at the Corporate Trust Office or at such other address in Delaware as
the Trustee may designate by written notice to the Certificateholders and the
Depositor.
SECTION 2.3. PURPOSES AND POWERS. The purpose of the Trust is, and the
Trust shall have the power and authority to, engage in the following activities:
(a) to issue the Notes pursuant to the Indenture and the
Trust Certificates pursuant to this Agreement and to sell the Notes
and the Trust Certificates in one or more transactions;
(b) with the proceeds of the sale of the Notes and the Trust
Certificates, to fund the Pre-Funding Account and to purchase the
Receivables pursuant to the Sale and Servicing Agreement;
(c) to assign, grant, transfer, pledge, mortgage and convey
the Trust Estate pursuant to the Indenture and to hold, manage and
distribute to the Certificateholders pursuant to the Sale and
Servicing Agreement any portion of the Trust Estate released from the
Lien of, and remitted to the Trust pursuant to, the Indenture;
(d) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(e) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(f) subject to compliance with the Basic Documents, to engage
in such other activities as may be required in connection with
conservation of the Trust Estate and the making of distributions to
the Certificateholders and the Noteholders.
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The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by this Agreement or the Basic
Documents.
SECTION 2.4. APPOINTMENT OF TRUSTEE. The Depositor hereby appoints the
Trustee as trustee of the Trust effective as of the date hereof, to have all the
rights, powers and duties set forth herein. Pursuant to a Co-Trustee Agreement,
dated as of the date hereof (the "CO-TRUSTEE AGREEMENT"), the Depositor shall
appoint The Bank of New York (Delaware) to serve as the trustee (the "DELAWARE
TRUSTEE") of the Trust in the State of Delaware for the sole purpose of
satisfying the requirement of Section 3807 of the Trust Statute that the Trust
have at least one trustee with a principal place of business in Delaware. The
Delaware Trustee shall have none of the rights, duties or liabilities of the
Trustee. The rights, duties and liabilities of the Delaware Trustee shall be
limited to those expressly set forth in the Co-Trustee Agreement. To the extent
that, at law or in equity, the Delaware Trustee has rights, duties (including
fiduciary duties) and liabilities relating to the Trust or the
Certificateholders, such rights, duties and liabilities are replaced by the
rights, duties and liabilities of the Delaware Trustee expressly set forth in
the Co-Trustee Agreement.
SECTION 2.5. INITIAL CAPITAL CONTRIBUTION OF TRUST ESTATE. The
Depositor hereby contributes to the Trustee, as of the date hereof, the sum of
$1.00. The Trustee hereby acknowledges receipt in trust from the Depositor, as
of the date hereof, of the foregoing contribution, which shall constitute the
initial Trust Estate and shall be deposited in the Certificate Distribution
Account. The Depositor shall pay organizational expenses of the Trust as they
may arise or shall, upon the request of the Trustee, promptly reimburse the
Trustee for any such expenses paid by the Trustee. The Depositor may also take
steps necessary, including the execution and filing of any necessary filings, to
ensure that the Trust is in compliance with any applicable state securities law.
SECTION 2.6. DECLARATION OF TRUST. The Trustee hereby declares that it
will hold the Trust Estate in trust upon and subject to the conditions set forth
herein for the use and benefit of the Certificateholders, subject to the
obligations of the Trust under the Basic Documents. It is the intention of the
parties hereto that the Trust constitute a business trust under the Trust
Statute and that this Agreement and the Co-Trustee Agreement (as defined in
Section 2.4) constitute the governing instrument of such business trust. It is
the intention of the parties hereto that, solely for income and franchise tax
purposes, until the Certificates are held by other than the Seller, the Trust
will be disregarded as an entity separate from its Owner and the Notes being
debt of the Seller. At such time that the Certificates are held by more than one
person, it is the intention of the parties hereto that, solely for income and
franchise tax purposes, the Trust shall be treated as a partnership, with the
assets of
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the partnership being the Receivables and other assets held by the Trust, the
partners of the partnership being the Certificateholders (including the Seller
in its capacity as recipient of distributions from the Spread Account), and the
Notes being debt of the partnership. The parties agree that, unless otherwise
required by appropriate tax authorities, until the Certificates are held by more
than one person the Trust will not file or cause to be filed annual or other
necessary returns, reports and other forms consistent with the characterization
of the Trust as an entity not separate from its Owner. Effective as of the date
hereof, the Trustee shall have all rights, powers and duties set forth herein
and in the Trust Statute with respect to accomplishing the purposes of the
Trust.
SECTION 2.7. LIABILITY OF THE CERTIFICATEHOLDERS. No Certificateholder
shall have any personal liability for any liability or obligation of the Trust.
SECTION 2.8. TITLE TO TRUST PROPERTY. Subject to the Lien granted in
the Indenture, legal title to all the Trust Estate shall be vested at all times
in the Trust as a separate legal entity except where applicable law in any
jurisdiction requires title to any part of the Trust Estate to be vested in a
trustee or trustees, in which case title shall be deemed to be vested in the
Trustee, a co-trustee and/or a separate trustee, as the case may be.
SECTION 2.9. SITUS OF TRUST. The Trust will be located and
administered in the State of New York. All bank accounts maintained by the
Trustee on behalf of the Trust shall be located in the State of Delaware or the
State of New York. The Trust shall not have any employees in any state other
than New York; PROVIDED, HOWEVER, that nothing herein shall restrict or prohibit
the Trustee from having employees within or without the State of Delaware.
Payments will be received by the Trust only in Delaware or New York, and
payments will be made by the Trust only from Delaware or New York.
SECTION 2.10. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR. The
Depositor hereby represents and warrants to the Trustee that:
(a) The Depositor is duly organized and validly existing as a
corporation in good standing under the laws of the State of Delaware,
with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is
presently conducted.
(b) The Depositor is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business shall require such
qualifications.
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(c) The Depositor has the power and authority to execute and
deliver this Agreement and to carry out its terms; the Depositor has
full power and authority to sell and assign the property to be sold
and assigned to and deposited with the Trust and the Depositor has
duly authorized such sale and assignment and deposit to the Trust by
all necessary corporate action; and the execution, delivery and
performance of this Agreement have been duly authorized by the
Depositor by all necessary corporate action.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under,
the certificate of incorporation or by-laws of the Depositor, or any
indenture, agreement or other instrument to which the Depositor is a
party or by which it is bound; or result in the creation or imposition
of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement or other instrument (other than pursuant to
the Basic Documents); or violate any law or, to the best of the
Depositor's knowledge, any order, rule or regulation applicable to the
Depositor of any court or of any Federal or State regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties.
(e) The Depositor has duly executed and delivered this
Agreement, and this Agreement constitutes a legal, valid and binding
obligation of the Depositor, enforceable in accordance with its terms,
except as enforceability may be subject to or limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and by general principles
of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
SECTION 2.11. FEDERAL INCOME TAX ALLOCATIONS; TAX TREATMENT. (a) If
Certificates are held by more than one person, interest payments on the
Certificates at the Pass-Through Rate (including interest on amounts previously
due on the Certificates but not yet distributed) shall be treated as "guaranteed
payments" under Section 707(c) of the Code. Net income of the Trust for any
month as determined for Federal income tax purposes (and each item of income,
gain, loss and deduction entering into the computation thereof) shall be
allocated:
(1) among the Certificateholders as of the close of business
on the last day of such month, in proportion to their ownership of
principal amount of Trust Certificates on such date, an amount of net
income up to the sum of: (i) the portion of the market discount on the
Receivables accrued during such
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month that is allocable to the excess, if any, of the Initial
Certificate Balance over their initial aggregate issue price, and (ii)
any other amounts of income payable to the Certificateholders for such
month; and such sum of amounts specified in clauses (i) and (ii) of
this sentence shall be reduced by any amortization by the Trust of
premium on Receivables that corresponds to any excess of the issue
price of Trust Certificates over their principal amount; and
(2) to the Depositor, and other holders of interests in the
Spread Account, to the extent of any remaining net income, in
accordance with their respective interests therein.
If the net income of the Trust for any month is insufficient for the allocations
described in clause (1), subsequent net income shall first be allocated to make
up such shortfall before being allocated as provided in the preceding sentence.
Net losses of the Trust, if any, for any month as determined for Federal income
tax purposes (and each item of income, gain, loss and deduction entering into
the computation thereof) shall be allocated to the Depositor (or other holders
of interests in the Spread Account) to the extent the Depositor (or such
holders) are reasonably expected to bear the economic burden of such net losses,
and any remaining net losses shall be allocated among the remaining
Certificateholders as of the close of business on the last day of such month in
proportion to their ownership of principal amount of Trust Certificates on such
day. The Depositor is authorized to modify the allocations in this paragraph if
necessary or appropriate, in its sole discretion, for the allocations to fairly
reflect the economic income, gain or loss to the Depositor (or other holders of
interests in the Spread Account) or to the Certificateholders, or as otherwise
required by the Code. Notwithstanding anything provided in this Section 2.11, if
the Certificates are held solely by the Seller, the application of this Section
2.11 shall be disregarded.
(b) It is the intent of the Seller, the Servicer and the
Certificateholders that, for purposes of Federal income, State and local income
and franchise and any other income taxes measured in whole or in part by income,
until the Trust Certificates are held by other than the Seller, the Trust will
be disregarded as an entity separate from its owner. At such time that the Trust
Certificates are held by more than one person, it is the intent of the Seller,
Servicer and the Certificateholders that, for purposes of Federal income, State
and local income and franchise and any other income taxes measured in whole or
in part by income, the Trust will be treated as a partnership, the assets of
which are the assets held by the Trust, and the Certificateholders (including
the Depositor (and its transferees and assigns) in its capacity as recipient of
distributions from the Spread Account) will be treated as partners in that
partnership. The Depositor and the other Certificateholders, by
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acceptance of a Trust Certificate, agree to treat, and to take no action
inconsistent with the treatment of, the Trust Certificates as such for tax
purposes.
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. INITIAL OWNERSHIP. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.5, and until the issuance of
the Trust Certificates, the Depositor shall be the sole beneficiary of the
Trust.
SECTION 3.2. THE TRUST CERTIFICATES. The Trust Certificates shall be
issued in denominations of $1,000 or in greater whole-dollar denominations in
excess thereof. The Trust Certificates shall be executed on behalf of the Trust
by manual or facsimile signature of an authorized officer of the Trustee. Trust
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be, when authenticated pursuant to Section 3.3,
validly issued and entitled to the benefits of this Agreement, notwithstanding
that such individuals or any of them shall have ceased to be so authorized prior
to the authentication and delivery of such Trust Certificates or did not hold
such offices at the date of authentication and delivery of such Trust
Certificates.
SECTION 3.3. AUTHENTICATION OF TRUST CERTIFICATES. Concurrently with
the sale of the Receivables to the Trust pursuant to the Sale and Servicing
Agreement, the Trustee shall cause the Trust Certificates in an aggregate
principal amount equal to the Initial Certificate Balance to be executed on
behalf of the Trust, authenticated and delivered to or upon the written order of
the Depositor, signed by its chairman of the board, its president or any vice
president, without further corporate action by the Depositor, in authorized
denominations. No Trust Certificate shall entitle its Holder to any benefit
under this Agreement, or shall be valid for any purpose, unless there shall
appear on such Trust Certificate a certificate of authentication substantially
in the form set forth in Exhibit A, executed by the Trustee by the manual
signature of one of its authorized signatories; such certificate of
authentication shall constitute conclusive evidence, and the only evidence, that
such Trust Certificate shall have been duly authenticated and delivered
hereunder. All Trust Certificates shall be dated the date of their
authentication. No further Trust Certificates shall be issued except pursuant to
Section 3.4 or 3.5 hereunder.
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SECTION 3.4. REGISTRATION OF TRANSFER AND EXCHANGE OF TRUST
CERTIFICATES. The Trust shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 3.8, a register (the "CERTIFICATE REGISTER") in
which, subject to such reasonable regulations as it may prescribe, the Issuer
shall provide for the registration of Trust Certificates and of transfers and
exchanges of Trust Certificates. The Paying Agent shall be the "CERTIFICATE
REGISTRAR" for the purpose of registering Trust Certificates and the transfers
of Trust Certificates as herein provided. Upon any resignation of any
Certificate Registrar, the Depositor shall promptly appoint a successor or, if
it elects not to make such an appointment, assume the duties of the Certificate
Registrar.
Upon surrender for registration of transfer of any Trust Certificate
at the office or agency maintained pursuant to Section 3.8, if the requirements
of Section 8-401(l) of the UCC are met, the Trustee shall execute, authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Trust Certificates in authorized denominations of a like aggregate
principal amount.
At the option of a Holder, Trust Certificates may be exchanged for
other Trust Certificates of authorized denominations, of a like aggregate
principal amount, upon surrender of the Trust Certificates to be exchanged at
the office or agency maintained pursuant to Section 3.8. Whenever any Trust
Certificates are so surrendered for exchange, if the requirements of Section
8-401(l) of the UCC are met, the Trustee shall execute, authenticate and deliver
the Trust Certificates that the Certificateholder making the exchange is
entitled to receive.
All Trust Certificates issued upon any registration of transfer or
exchange of Trust Certificates shall be entitled to the same benefits under this
Agreement as the Trust Certificates surrendered upon such registration of
transfer or exchange.
Every Trust Certificate presented or surrendered for registration of
transfer or exchange shall be duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by, the Holder thereof or his attorney duly authorized
in writing. No transfer of a Trust Certificate shall be registered unless the
transferee shall have provided (i) an opinion of counsel that no registration is
required under the Securities Act of 1933, as amended, or applicable state laws,
and (ii) an Officer's Certificate as to compliance with Section 6.6 of the Sale
and Servicing Agreement. Each Trust Certificate surrendered for registration of
transfer or exchange shall be canceled and subsequently disposed of by the
Trustee in accordance with its customary practice.
No service charge shall be made to a Certificateholder for any
registration of transfer or exchange of Trust Certificates, but the Trustee or
the Certificate Registrar
8
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Trust Certificates.
The Trust Certificates and any beneficial interest in such Trust
Certificates may not be acquired by: (a) an employee benefit plan (as defined in
Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA,
(b) a plan described in Section 4975(e)(1) of the Code or (c) any entity whose
underlying assets include plan assets by reason of a plan's investment in the
entity (each a "BENEFIT PLAN"). By accepting and holding a Trust Certificate or
an interest therein, the Holder thereof shall be deemed to have represented and
warranted that it is not a Benefit Plan. The Trustee shall have no obligation to
determine whether or not a Holder of a Trust Certificate is or is not a Benefit
Plan.
SECTION 3.5. MUTILATED, DESTROYED, LOST OR STOLEN TRUST CERTIFICATES.
If: (a) any mutilated Trust Certificate shall be surrendered to the Certificate
Registrar, or if the Certificate Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of any Trust Certificate
(PROVIDED, that the Trustee shall not be required to verify the evidence
provided to it), and (b) there shall be delivered to the Certificate Registrar
and the Trustee such security or indemnity as may be required by them to hold
each of them harmless, then, in the absence of notice that such Trust
Certificate shall have been acquired by a bona fide purchaser, and provided that
the requirements of Section 8-405 of the UCC are met, the Trustee on behalf of
the Trust shall execute, authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Trust Certificate, a replacement
Trust Certificate of like tenor and denomination.
In connection with the issuance of any replacement Trust Certificate
under this Section, the Trustee and the Certificate Registrar may require the
payment by the Certificateholder of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
Any replacement Trust Certificate issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Trust Certificate shall
constitute conclusive evidence of ownership in the Trust, as if originally
issued, whether or not the mutilated, lost, stolen or destroyed Trust
Certificate shall be found at any time, and shall be entitled to all the
benefits of this Agreement.
SECTION 3.6. PERSONS DEEMED CERTIFICATEHOLDERS. Prior to due
presentation of a Trust Certificate for registration of transfer of any Trust
Certificate, the Trustee or the Certificate Registrar may treat the Person in
whose name any Trust Certificate shall be registered in the Certificate Register
(as of the day of determination) as the owner of such Trust Certificate for the
purpose of receiving distributions pursuant
9
to Section 5.2 and for all other purposes whatsoever, and neither the Trustee
nor the Certificate Registrar shall be bound by any notice to the contrary.
SECTION 3.7. ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND
ADDRESSES. The Trustee shall furnish or cause to be furnished to the Servicer
and the Depositor, within 15 days after receipt by the Trustee of a request
therefor from the Servicer or the Depositor in writing, a list, in such form as
the Servicer or the Depositor may reasonably require, of the names and addresses
of the Certificateholders as of the most recent Record Date. If three or more
Certificateholders or one or more Holder(s) of Trust Certificates evidencing not
less than 25% of the Certificate Balance apply in writing to the Trustee, and
such application states that the applicants desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Trust Certificates and such application shall be accompanied by a copy of
the communication that such applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt of such application, afford
such applicants access during normal business hours to the current list of
Certificateholders. Each Holder, by receiving and holding a Trust Certificate,
shall be deemed to have agreed not to hold any of the Depositor, the Certificate
Registrar or the Trustee accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
SECTION 3.8. MAINTENANCE OF OFFICE OR AGENCY. The Trustee shall
maintain in the Borough of Manhattan, City of New York an office or offices or
agency or agencies where Trust Certificates may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Trustee in
respect of the Trust Certificates and the Basic Documents may be served. The
Trustee initially designated The Bank of New York, 101 Barclay Street, Floor
12E, New York, New York 10286, Attention: Corporate Trust Administration - Asset
Backed Finance Unit, as its principal corporate trust office for such purposes.
The Trustee shall give prompt written notice to the Depositor and to the
Certificateholders of any change in the location of the Certificate Register or
any such office or agency.
SECTION 3.9. APPOINTMENT OF PAYING AGENT. The Paying Agent shall make
distributions to Certificateholders from the Certificate Distribution Account
pursuant to Section 5.2 and shall report the amounts of such distributions to
the Trustee. Any Paying Agent shall have the revocable power to withdraw funds
from the Certificate Distribution Account for the purpose of making the
distributions referred to above. The Trustee may revoke such power and remove
the Paying Agent if the Trustee determines in its sole discretion that the
Paying Agent shall have failed to perform its obligations under this Agreement
in any material respect. The Paying Agent shall initially be the Trustee, and
any co-paying agent chosen by and acceptable to the Trustee. The Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written notice to the
Trustee. In the event that the Trustee shall not be the
10
Paying Agent, the Trustee shall appoint a successor to act as Paying Agent
(which shall be a bank or trust company). The Trustee shall cause such successor
Paying Agent or any additional Paying Agent appointed by the Trustee to execute
and deliver to the Trustee an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Trustee that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all sums, if any,
held by it for payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders. The Paying Agent shall return all unclaimed funds to the
Trustee and upon removal of a Paying Agent such Paying Agent shall also return
all funds in its possession to the Trustee. The provisions of Sections 7.1, 7.3,
7.4 and 8.1 shall apply to the Trustee also in its role as Paying Agent, for so
long as the Trustee shall act as Paying Agent and, to the extent applicable, to
any other paying agent appointed hereunder. Any reference in this Agreement to
the Paying Agent shall include any co-paying agent unless the context requires
otherwise.
ARTICLE IV
ACTIONS BY TRUSTEE
SECTION 4.1. PRIOR NOTICE TO CERTIFICATEHOLDERS WITH RESPECT TO
CERTAIN MATTERS. With respect to the following matters, the Trustee shall not
take action unless, at least 30 days before the taking of such action, the
Trustee shall have notified the Certificateholders in writing of the proposed
action and the Certificateholders shall not have notified the Trustee in writing
prior to the 30th day after such notice is given that such Certificateholders
have withheld consent or shall not have provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust
(except claims or lawsuits brought in connection with the collection
of the Receivables) and the compromise of any action, claim or lawsuit
brought by or against the Trust (except with respect to the
aforementioned claims or lawsuits for collection of Receivables);
(b) the election by the Trust to file an amendment to the
Certificate of Trust;
(c) the amendment of the Indenture in circumstances where the
consent of any Noteholder is required;
(d) the amendment of the Indenture in circumstances where the
consent of any Noteholder is not required and such amendment
materially adversely affects the interest of the Certificateholders;
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(e) the amendment, change or modification of the
Administration Agreement, except to cure any ambiguity or to amend or
supplement any provision in a manner, or add any provision, that would
not materially adversely affect the interests of the
Certificateholders; or
(f) the appointment pursuant to the Indenture of a successor
Note Registrar, Paying Agent or Indenture Trustee, or pursuant to this
Agreement of a successor Certificate Registrar, or the consent to the
assignment by the Note Registrar, Paying Agent or Indenture Trustee or
Certificate Registrar of its obligations under the Indenture or this
Agreement, as applicable.
SECTION 4.2. ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN
MATTERS. The Trustee shall not have the power, except upon the direction of the
Certificateholders, to: (a) remove the Administrator under the Administration
Agreement, (b) appoint a successor Administrator, (c) remove the Servicer under
the Sale and Servicing Agreement or (d) except as expressly provided in the
Basic Documents, sell the Receivables after the termination of the Indenture.
The Trustee shall take the actions referred to in the preceding sentence only
upon written instructions signed by the Certificateholders.
SECTION 4.3. ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO BANKRUPTCY.
The Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
Certificateholders and the delivery to the Trustee by each such
Certificateholder of a certificate certifying that such Certificateholder
reasonably believes that the Trust is insolvent.
SECTION 4.4. RESTRICTIONS ON CERTIFICATEHOLDERS' POWER. The
Certificateholders shall not direct the Trustee to take or refrain from taking
any action if such action or inaction would be contrary to any obligation of the
Trust or the Trustee under this Agreement or any of the Basic Documents or would
be contrary to Section 2.3, nor shall the Trustee be obligated to follow any
such direction, if given.
SECTION 4.5. MAJORITY CONTROL. Except as expressly provided herein,
any action that may be taken by the Certificateholders under this Agreement may
be taken by the Holders of Trust Certificates evidencing not less than a
majority of the Certificate Balance. Except as expressly provided herein, any
written notice of the Certificateholders delivered pursuant to this Agreement
shall be effective if signed by Holders of Trust Certificates evidencing not
less than a majority of the Certificate Balance at the time of the delivery of
such notice.
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ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. ESTABLISHMENT OF TRUST ACCOUNT. The Trustee, for the
benefit of the Certificateholders, shall establish and maintain in the name of
the Trust an Eligible Deposit Account (the "CERTIFICATE DISTRIBUTION ACCOUNT"),
bearing a designation clearly indicating that the funds deposited therein are
held for the benefit of the Certificateholders.
The Trust shall possess all right, title and interest in all funds on
deposit from time to time in the Certificate Distribution Account and in all
proceeds thereof. Except as otherwise expressly provided herein, the Certificate
Distribution Account shall be under the sole dominion and control of the Trustee
for the benefit of the Certificateholders. If, at any time, the Certificate
Distribution Account ceases to be an Eligible Deposit Account, the Trustee (or
the Depositor on behalf of the Trustee, if the Certificate Distribution Account
is not then held by the Trustee or an affiliate thereof) shall, within 10
Business Days (or such longer period, not to exceed 30 calendar days, as to
which the Rating Agency Condition shall be satisfied), establish a new
Certificate Distribution Account as an Eligible Deposit Account and shall
transfer any cash and/or any investments to such new Certificate Distribution
Account.
SECTION 5.2. APPLICATIONS OF TRUST FUNDS. (a) On each Payment Date,
the Trustee will distribute to Certificateholders, on a pro rata basis, amounts
deposited in the Certificate Distribution Account pursuant to Sections 5.5, 5.6
and 5.7 of the Sale and Servicing Agreement.
(b) On each Payment Date, the Trustee shall send to each
Certificateholder the statement provided to the Trustee by the Servicer pursuant
to Section 5.10 of the Sale and Servicing Agreement.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to a Certificateholder, such tax shall reduce
the amount otherwise distributable to the Certificateholder in accordance with
this Section. The Trustee is hereby authorized and directed to retain from
amounts otherwise distributable to the Certificateholders sufficient funds for
the payment of any tax that is legally owed by the Trust (but such authorization
shall not prevent the Trustee from contesting any such tax in appropriate
proceedings, and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). The amount of any withholding tax imposed with
respect to a Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by the Trust. If there is a
possibility that withholding tax is payable with respect to a distribution (such
as a distribution to a non-U.S. Certificateholder), the Trustee may,
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in its sole discretion, withhold such amounts in accordance with this paragraph
(c). In the event that a Certificateholder wishes to apply for a refund of any
such withholding tax, the Trustee shall reasonably cooperate with such
Certificateholder in making such claim so long as such Certificateholder agrees
to reimburse the Trustee for any out-of-pocket expenses incurred.
SECTION 5.3. METHOD OF PAYMENT. Subject to Section 9.1(c),
distributions required to be made to Certificateholders on any Payment Date
shall be made to each Certificateholder of record on the preceding Record Date
either by wire transfer, in immediately available funds, to the account of such
Holder at a bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided to the Certificate Registrar appropriate
written instructions at least five Business Days prior to such Payment Date and
such Holder's Trust Certificates aggregate not less than $1,000,000, or, if not,
by check mailed to such Certificateholder at the address of such Holder
appearing in the Certificate Register.
SECTION 5.4. NO SEGREGATION OF MONEYS; NO INTEREST. Subject to
Sections 5.1 and 5.2, moneys received by the Trustee hereunder need not be
segregated in any manner except to the extent required by law or the Sale and
Servicing Agreement and may be deposited under such general conditions as may be
prescribed by law, and the Trustee shall not be liable for any interest thereon.
SECTION 5.5. ACCOUNTING AND REPORTS TO THE NOTEHOLDERS,
CERTIFICATEHOLDERS, THE INTERNAL REVENUE SERVICE AND OTHERS. The Depositor or,
if any Certificates are held by any Person other than the Depositor, the
Trustee, shall: (a) maintain (or cause to be maintained) the books of the Trust
on a calendar year basis on the accrual method of accounting, (b) deliver to
each Certificateholder, as may be required by the Code and applicable Treasury
Regulations, such information as may be required (including Schedule K-1) to
enable each Certificateholder to prepare its Federal, State and local income tax
returns, (c) file such tax returns relating to the Trust (including a
partnership information return on Internal Revenue Service Form 1065 or its
successor), and make such elections as may from time to time be required or
appropriate under any applicable State or Federal statute or rule or regulation
thereunder so as to maintain the Trust's characterization as a partnership for
Federal income tax purposes, (d) cause such tax returns to be signed in the
manner required by law and (e) collect or cause to be collected any withholding
tax as described in and in accordance with Section 5.2(c) with respect to income
or distributions to Certificateholders. The Trustee shall elect under Section
1278 of the Code to include in income currently any market discount that accrues
with respect to the Receivables and shall elect under Section 171 of the Code to
amortize any bond premium with respect to the Receivables. The Trustee shall not
make the election provided under Section 754 of the Code.
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SECTION 5.6. SIGNATURE ON RETURNS; TAX MATTERS PARTNER.
(a) The Depositor, or if any Certificates are held by any Person other
than the Depositor, the Trustee shall sign on behalf of the Trust the tax
returns of the Trust, unless applicable law requires a Certificateholder to sign
such documents, in which case such documents shall be signed by the Depositor.
(b) The Depositor shall be designated the "tax matters partner" of the
Trust pursuant to Section 6231(a)(7)(A) of the Code and applicable Treasury
Regulations.
ARTICLE VI
AUTHORITY AND DUTIES OF TRUSTEE
SECTION 6.1. GENERAL AUTHORITY. The Trustee is authorized and directed
to execute and deliver the Basic Documents to which the Trust is to be a party
and each certificate or other document attached as an exhibit to or contemplated
by the Basic Documents to which the Trust is to be a party, in each case in such
form as the Depositor shall approve as evidenced conclusively by the Trustee's
execution thereof, and, on behalf of the Trust, to direct the Indenture Trustee
to authenticate and deliver the Notes in the aggregate principal amount
specified in a letter of instruction from the Depositor to the Trustee. In
addition to the foregoing, the Trustee is authorized, but shall not be
obligated, to take all actions required of the Trust pursuant to the Basic
Documents. The Trustee is further authorized from time to time to take such
action as the Administrator recommends with respect to the Basic Documents.
SECTION 6.2. GENERAL DUTIES. It shall be the duty of the Trustee to
discharge (or cause to be discharged) all of its responsibilities pursuant to
this Agreement and the Basic Documents to which the Trust is a party and to
administer the Trust in the interest of the Certificateholders, subject to the
Basic Documents and in accordance with this Agreement. Notwithstanding the
foregoing, the Trustee shall be deemed to have discharged its duties and
responsibilities hereunder and under the Basic Documents to the extent the
Administrator has agreed in the Administration Agreement to perform any act or
to discharge any duty of the Trustee hereunder or under any Basic Document, and
the Trustee shall not be held liable for the default or failure of the
Administrator to carry out its obligations under the Administration Agreement.
SECTION 6.3. ACTION UPON INSTRUCTION. (a) Subject to Article IV and in
accordance with the Basic Documents, the Certificateholders may by written
instruction direct the Trustee in the management of the Trust. Such direction
may be
15
exercised at any time by written instruction of the Certificateholders pursuant
to Article IV.
(b) The Trustee shall not be required to take any action hereunder or
under any Basic Document if the Trustee shall have reasonably determined, or
shall have been advised by counsel, that such action is likely to result in
liability on the part of the Trustee or is contrary to the terms hereof or of
any Basic Document or is otherwise contrary to law.
(c) Whenever the Trustee is unable to decide between alternative
courses of action permitted or required by this Agreement or any Basic Document,
the Trustee shall promptly give notice (in such form as shall be appropriate
under the circumstances) to the Certificateholders requesting instruction as to
the course of action to be adopted, and to the extent the Trustee acts in good
faith in accordance with any written instruction of the Certificateholders
received, the Trustee shall not be liable on account of such action to any
Person. If the Trustee shall not have received appropriate instruction within 10
days of such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such action, not
inconsistent with this Agreement or the Basic Documents, as it shall deem to be
in the best interests of the Certificateholders, and shall have no liability to
any Person for such action or inaction.
(d) In the event that the Trustee is unsure as to the application of
any provision of this Agreement or any Basic Document or any such provision is
ambiguous as to its application, or is, or appears to be, in conflict with any
other applicable provision, or in the event that this Agreement permits any
determination by the Trustee or is silent or is incomplete as to the course of
action that the Trustee is required to take with respect to a particular set of
facts, the Trustee may give notice (in such form as shall be appropriate under
the circumstances) to the Certificateholders requesting instruction and, to the
extent that the Trustee acts or refrains from acting in good faith in accordance
with any such instruction received, the Trustee shall not be liable, on account
of such action or inaction, to any Person. If the Trustee shall not have
received appropriate instruction within 10 days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action, not inconsistent with this Agreement or the
Basic Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action or
inaction.
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SECTION 6.4. NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT OR IN
INSTRUCTIONS. The Trustee shall not have any duty or obligation to manage, make
any payment with respect to, register, record, sell, dispose of or otherwise
deal with the Trust Estate, or to otherwise take or refrain from taking any
action under, or in connection with, any document contemplated hereby to which
the Trustee is a party, except as expressly provided by this Agreement or in any
document or written instruction received by the Trustee pursuant to Section 6.3;
and no implied duties or obligations shall be read into this Agreement or any
Basic Document against the Trustee. The Trustee shall have no responsibility for
filing any financing or continuation statement in any public office at any time
or to otherwise perfect or maintain the perfection of any security interest or
Lien granted to it hereunder or to prepare or file any Securities and Exchange
Commission filing for the Trust or to record this Agreement or any Basic
Document. The Trustee nevertheless agrees that it will, at its own cost and
expense, promptly take all action as may be necessary to discharge any Liens on
any part of the Trust Estate that result from actions by, or claims against, the
Trustee that are not related to the ownership or the administration of the Trust
Estate.
SECTION 6.5. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS. The Trustee shall not manage, control, use, sell, dispose of or
otherwise deal with any part of the Trust Estate except: (i) in accordance with
the powers granted to and the authority conferred upon the Trustee pursuant to
this Agreement, (ii) in accordance with the Basic Documents and (iii) in
accordance with any document or instruction delivered to the Trustee pursuant to
Section 6.3.
SECTION 6.6. RESTRICTIONS. The Trustee shall not take any action: (a)
that is inconsistent with the purposes of the Trust set forth in Section 2.3 or
(b) that, to the actual knowledge of the Trustee, would result in the Trust's
becoming taxable as a corporation for Federal income tax purposes. The
Certificateholders shall not direct the Trustee to take action that would
violate this Section.
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.1. ACCEPTANCE OF TRUSTS AND DUTIES. The Trustee accepts the
trusts hereby created and agrees to perform its duties hereunder with respect to
such trusts but only upon the terms of this Agreement. The Trustee also agrees
to disburse all moneys actually received by it constituting part of the Trust
Estate upon the terms of the Basic Documents and this Agreement. The Trustee
shall not be answerable or accountable hereunder or under any Basic Document
under any circumstances,
17
except: (i) for its own willful misconduct or negligence or (ii) in the case of
the inaccuracy of any representation or warranty contained in Section 7.3
expressly made by the Trustee. In particular, but not by way of limitation (and
subject to the exceptions set forth in the preceding sentence):
(a) the Trustee shall not be liable for any error of judgment
made in good faith by a responsible officer of the Trustee unless it
is proved that the Trustee was negligent in ascertaining the pertinent
facts;
(b) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the
instructions of the Administrator, the Servicer or any
Certificateholder;
(c) no provision of this Agreement or any Basic Document
shall require the Trustee to expend or risk funds or otherwise incur
any financial liability in the performance of any of its rights or
powers hereunder or under any Basic Document, if the Trustee shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured or provided to it;
(d) under no circumstances shall the Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes;
(e) the Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Agreement or for the due execution
hereof by the Depositor or for the form, character, genuineness,
sufficiency, value or validity of any of the Trust Estate or for or in
respect of the validity or sufficiency of the Basic Documents, other
than the certificate of authentication on the Trust Certificates, and
the Trustee shall in no event assume or incur any liability, duty or
obligation to any Noteholder or to any Certificateholder, other than
as expressly provided for herein and in the Basic Documents;
(f) the Trustee shall not be liable for the default or
misconduct of the Administrator, the Seller, the Indenture Trustee or
the Servicer under any of the Basic Documents or otherwise and the
Trustee shall have no obligation or liability to perform the
obligations of the Trust under this Agreement or the Basic Documents
that are required to be performed by the Administrator under the
Administration Agreement, the Indenture Trustee under the Indenture or
the Servicer under the Sale and Servicing Agreement; and
18
(g) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or
otherwise or in relation to this Agreement or any Basic Document, at
the request, order or direction of any of the Certificateholders
unless such Certificateholders have offered to the Trustee security or
indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Trustee therein or thereby.
The right of the Trustee to perform any discretionary act enumerated
in this Agreement or in any Basic Document shall not be construed as a
duty, and the Trustee shall not be answerable for other than its
negligence or willful misconduct in the performance of any such act.
SECTION 7.2. FURNISHING OF DOCUMENTS. The Trustee shall furnish to the
Certificateholders promptly upon receipt of a written request therefor, and at
the expense of the Certificateholders, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and any other
instruments furnished to the Trustee under the Basic Documents.
SECTION 7.3. REPRESENTATIONS AND WARRANTIES. The Trustee hereby
represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) it is a banking corporation duly organized and validly
existing in good standing under the laws of New York, with the
requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement,
(b) it has taken all corporate action necessary to authorize
the execution and delivery by it of this Agreement, and this Agreement
will be executed and delivered by one of its officers who is duly
authorized to execute and deliver this Agreement on its behalf,
(c) the execution and delivery of this Agreement, the
consummation of the transactions contemplated by this Agreement and
the fulfillment of the terms hereof do not conflict with, result in
any breach of any of the terms and provisions of, or constitute (with
or without notice or lapse of time) a default under, the certificate
of incorporation or by-laws of the Trustee, or any indenture,
agreement or other instrument to which the Trustee is a party or by
which it is bound; or violate any Federal or state law governing the
banking or trust powers of the Trustee; or, to the best of the
Trustee's knowledge, violate any order, rule or regulation applicable
to the Trustee of any court or of any Federal or state regulatory
body, administrative agency
19
or other governmental instrumentality having jurisdiction over the Trustee or
its properties, and
(d) this Agreement, assuming due authorization, execution and
delivery by the Depositor, constitutes a valid, legal and binding
obligation of the Trustee, enforceable against it in accordance with
the terms hereof subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally and to general principles of equity,
regardless of whether such enforcement is considered in a proceeding
in equity or at law.
SECTION 7.4. RELIANCE; ADVICE OF COUNSEL. (a) Except to the extent
otherwise provided in Section 7.1, the Trustee shall incur no liability to
anyone in acting upon any signature, instrument, notice, resolution, request,
consent, order, certificate, report, opinion, bond or other document or paper
believed by it to be genuine and believed by it to be signed by the proper party
or parties. The Trustee may accept a certified copy of a resolution of the board
of directors or other governing body of any party as conclusive evidence that
such resolution has been duly adopted by such body and that the same is in full
force and effect. As to any fact or matter the method of the determination of
which is not specifically prescribed herein, the Trustee may for all purposes
hereof rely on a certificate, signed by the president, any vice president, the
treasurer or other authorized officers of the relevant party as to such fact or
matter, and such certificate shall constitute full protection to the Trustee for
any action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the Basic
Documents, the Trustee: (i) may act directly or through its agents or attorneys
pursuant to agreements entered into with any of them, and the Trustee shall not
be liable for the conduct or misconduct of such agents or attorneys if such
agents or attorneys shall have been selected by the Trustee with reasonable
care, and (ii) may consult with counsel, accountants and other skilled Persons
to be selected with reasonable care and employed by it. The Trustee shall not be
liable for anything done, suffered or omitted in good faith by it in accordance
with the written opinion or advice of any such counsel, accountants or other
such Persons and which opinion or advice states that such action is not contrary
to this Agreement or any Basic Document.
SECTION 7.5. NOT ACTING IN INDIVIDUAL CAPACITY. Except as provided in
this Article VII, in accepting the trusts hereby created The Bank of New York
acts solely as Trustee hereunder and not in its individual capacity and all
Persons having any
20
claim against the Trustee by reason of the transactions contemplated by this
Agreement or any Basic Document shall look only to the Trust Estate for payment
or satisfaction thereof.
SECTION 7.6. TRUSTEE NOT LIABLE FOR TRUST CERTIFICATES OR RECEIVABLES.
The recitals contained herein and in the Certificates (other than the signature
and counter-signature of the Trustee on the Trust Certificates) shall be taken
as the statements of the Depositor, and the Trustee assumes no responsibility
for the correctness thereof. The Trustee makes no representations as to the
validity or sufficiency of this Agreement, of any Basic Document, of the Trust
Certificates (other than the signature and countersignature, if any, of the
Trustee on the Trust Certificates) or of the Notes, or of any Receivable or
related documents. The Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Receivable, or the perfection and priority of any security interest created
by any Receivable in any of the Financed Equipment or the maintenance of any
such perfection and priority, or for or with respect to the sufficiency of the
Trust Estate or its ability to generate the payments to be distributed to
Certificateholders under this Agreement or the Noteholders under the Indenture,
including: (a) the existence, condition and ownership of any Financed Equipment,
(b) the existence and enforceability of any insurance thereon, (c) the existence
and contents of any Receivable on any computer or other record thereof, (d) the
validity of the assignment of any Receivable to the Trust or of any intervening
assignment, (e) the completeness of any Receivable, (f) the performance or
enforcement of any Receivable, and (g) the compliance by the Depositor or the
Servicer with any warranty or representation made under any Basic Document or in
any related document or the accuracy of any such warranty or representation or
any action of the Administrator, the Indenture Trustee or the Servicer or any
subservicer taken in the name of the Trustee.
SECTION 7.7. TRUSTEE MAY NOT OWN NOTES. The Trustee shall not, in its
individual capacity, but may in a fiduciary capacity, become the owner or
pledgee of Notes or otherwise extend credit to the Issuer. The Trustee may
otherwise deal with the Depositor, the Administrator, the Indenture Trustee and
the Servicer with the same rights as it would have if it were not the Trustee.
ARTICLE VIII
COMPENSATION OF TRUSTEE
SECTION 8.1. TRUSTEE'S FEES AND EXPENSES. The Trustee shall receive as
compensation for its services hereunder such fees as have been separately agreed
21
upon before the date hereof between the Depositor and the Trustee, and the
Trustee shall be entitled to be reimbursed by the Depositor for its other
reasonable expenses hereunder, including the reasonable compensation, expenses
and disbursements of such agents, representatives, experts and counsel as the
Trustee may employ in connection with the exercise and performance of its rights
and its duties hereunder.
SECTION 8.2. INDEMNIFICATION. The Depositor shall be liable as primary
obligor for, and shall indemnify the Trustee and its successors, assigns, agents
and servants (collectively, the "INDEMNIFIED PARTIES") from and against, any and
all liabilities, obligations, losses, damages, taxes, claims, actions and suits,
and any and all reasonable costs, expenses and disbursements (including
reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "EXPENSES"), which may at any time be imposed on, incurred by or
asserted against the Trustee or any other Indemnified Party in any way relating
to or arising out of this Agreement, the Basic Documents, the Trust Estate, the
administration of the Trust Estate or the action or inaction of the Trustee
hereunder, except only that the Depositor shall not be liable for or required to
indemnify an Indemnified Party from and against Expenses arising or resulting
from: (a) such Indemnified Party's willful misconduct or negligence or (b) with
respect to the Trustee, the inaccuracy of any representation or warranty
contained in Section 7.3 expressly made by the Trustee. The indemnities
contained in this Section shall survive the resignation or termination of the
Trustee or the termination of this Agreement. In any event of any claim, action
or proceeding for which indemnity will be sought pursuant to this Section, the
Trustee's choice of legal counsel shall be subject to the approval of the
Depositor, which approval shall not be unreasonably withheld.
SECTION 8.3. PAYMENTS TO THE TRUSTEE. Any amounts paid to the Trustee
pursuant to this Article VIII shall be deemed not to be a part of the Trust
Estate immediately after such payment. The Trustee shall also be entitled to
interest on all advances at a rate equal to: (a) the rate publicly announced by
The Bank of New York, as its prime rate from time to time PLUS (b) 3.5%.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.1. TERMINATION OF TRUST AGREEMENT. (a) The Trust shall
dissolve upon the final distribution by the Trustee of all moneys or other
property or proceeds of the Trust Estate in accordance with the Indenture, the
Sale and Servicing Agreement and Article V. The bankruptcy, liquidation,
dissolution, death or incapacity of any Certificateholder shall not: (x) operate
to dissolve or terminate this
22
Agreement or the Trust, (y) entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of the
Trust or Trust Estate or (z) otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) Except as provided in Section 9.1(a), neither the Depositor nor
any Certificateholder shall be entitled to dissolve, revoke or terminate the
Trust.
(c) Notice of any dissolution of the Trust, specifying the Payment
Date upon which the Certificateholders shall surrender their Trust Certificates
to the Paying Agent for payment of the final distribution and cancellation,
shall be given promptly by the Trustee by letter to Certificateholders mailed
within five Business Days of receipt of notice of such dissolution from the
Servicer given pursuant to Section 9.1(c) of the Sale and Servicing Agreement
stating: (i) the Payment Date upon which final payment of the Trust Certificates
shall be made upon presentation and surrender of the Trust Certificates at the
office of the Paying Agent therein designated, (ii) the amount of any such final
payment and (iii) that the Record Date otherwise applicable to such Payment Date
is not applicable, payments being made only upon presentation and surrender of
the Trust Certificates at the office of the Paying Agent therein specified. The
Trustee shall give such notice to the Certificate Registrar (if other than the
Trustee) and the Paying Agent at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Trust Certificates,
the Paying Agent shall cause to be distributed to Certificateholders amounts
distributable on such Payment Date pursuant to Section 5.2.
In the event that all of the Certificateholders shall not surrender
their Trust Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Trustee shall give a second
written notice to the remaining Certificateholders to surrender their Trust
Certificates for cancellation and to receive the final distribution with respect
thereto. If within one year after the second notice all the Trust Certificates
shall not have been surrendered for cancellation, the Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their Trust
Certificates, and the cost thereof shall be paid out of the funds and other
assets that shall remain subject to this Agreement. Any funds remaining in the
Trust after exhaustion of such remedies shall be distributed by the Trustee to
the Depositor.
(d) Upon the dissolution of the Trust and the payment of all
liabilities of the Trust in accordance with applicable law, the Trustee shall
cause the Certificate of Trust to be canceled by filing a certificate of
cancellation with the Secretary of State in accordance with the provisions of
Section 3810 (or successor section) of the Trust
23
Statute, at which time the Trust and this Agreement (other than Article VIII)
shall terminate.
ARTICLE X
SUCCESSOR TRUSTEES AND ADDITIONAL TRUSTEES
SECTION 10.1. ELIGIBILITY REQUIREMENTS FOR TRUSTEE. The Trustee shall
at all times: (a) be a corporation satisfying the provisions of Section 26(a)(1)
of the Investment Company Act of 1940, as amended, (b) be authorized to exercise
corporate trust powers, (c) have a combined capital and surplus of at least
$50,000,000 and be subject to supervision or examination by Federal or State
authorities, and (d) have (or have a parent that has) a rating of at least
"Baa3" by Moody's. If such corporation shall publish reports of condition at
least annually, pursuant to law or the requirements of the aforesaid supervising
or examining authority, then for the purpose of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. At all times, at least one Trustee of the Trust shall satisfy the
requirements of Section 3807(a) of the Trust Statute. In case at any time the
Trustee shall cease to be eligible in accordance with this Section, the Trustee
shall resign immediately in the manner and with the effect specified in Section
10.2.
SECTION 10.2. RESIGNATION OR REMOVAL OF TRUSTEE. The Trustee may at
any time resign and be discharged from the trusts hereby created by giving
written notice thereof to the Administrator. Upon receiving such notice of
resignation, the Administrator shall promptly appoint a successor Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor Trustee. If no
successor Trustee shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
If at any time the Trustee shall cease to be eligible in accordance
with Section 10.1 and shall fail to resign after written request therefor by the
Administrator, or if at any time the Trustee shall be legally unable to act, or
shall be adjudged bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Administrator may remove the Trustee. If
the Administrator shall remove the Trustee under the authority of the preceding
sentence, the Administrator shall promptly appoint a
24
successor Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the outgoing Trustee so removed and one copy to
the successor Trustee and payment of all fees owed to the outgoing Trustee.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to this Section shall not become effective until
acceptance of appointment by the successor Trustee pursuant to Section 10.3 and
payment of all fees and expenses owed to the outgoing Trustee. The Administrator
shall provide notice of such resignation or removal of the Trustee to each of
the Rating Agencies.
SECTION 10.3. SUCCESSOR TRUSTEE. Any successor Trustee appointed
pursuant to Section 10.2 shall execute, acknowledge and deliver to the
Administrator and to its predecessor Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties, and obligations of its predecessor under this
Agreement, with like effect as if originally named as the Trustee. The
predecessor Trustee shall upon payment of its fees and expenses deliver to the
successor Trustee all documents and statements and monies held by it under this
Agreement; and the Administrator and the predecessor Trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for fully and certainly vesting and confirming in the successor Trustee all such
rights, powers, duties and obligations.
No successor Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Trustee shall be
eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Trustee pursuant to this
Section, the Administrator shall mail notice of such appointment to all
Certificateholders, the Indenture Trustee, the Noteholders and the Rating
Agencies. If the Administrator shall fail to mail such notice within 10 days
after acceptance of appointment by the successor Trustee, the successor Trustee
shall cause such notice to be mailed at the expense of the Administrator.
SECTION 10.4. MERGER OR CONSOLIDATION OF TRUSTEE. Any corporation or
other entity into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder; PROVIDED, such
corporation shall be eligible pursuant to Section 10.1, without the execution or
filing of any instrument or any
25
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; AND PROVIDED FURTHER, that the Trustee shall mail
notice of such merger or consolidation to the Rating Agencies.
SECTION 10.5. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust or any Financed Equipment may at the time be located, the
Administrator and the Trustee acting jointly shall have the power and may
execute and deliver all instruments to appoint one or more Person(s) approved by
the Trustee to act as co-trustee(s), jointly with the Trustee, or separate
trustee(s), of all or any part of the Trust Estate, and to vest in such
Person(s), in such capacity and for the benefit of the Certificateholders, such
title to the Trust Estate, or any part thereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Administrator and the Trustee may consider necessary or desirable. If the
Administrator shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, the Trustee alone shall have the power to
make such appointment. No co-trustee or separate trustee under this Agreement
shall be required to meet the terms of eligibility as a successor trustee
pursuant to Section 10.1 and no notice of the appointment of any co-trustee or
separate trustee shall be required pursuant to Section 10.3.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act(s) are to be performed, the
Trustee shall be incompetent or unqualified to perform such act(s), in
which event such rights, powers, duties and obligations (including the
holding of title to the Trust Estate or any portion thereof in any
such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under
this Agreement; and
(iii) the Administrator and the Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or
co-trustee.
26
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Each
such instrument shall be filed with the Trustee and a copy thereof given to the
Administrator.
Any separate trustee or co-trustee may at any time appoint the Trustee
as its agent or attorney-in-fact with full power and authority, to the extent
not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
The Trustee shall have no obligation to determine whether a co-trustee
or separate trustee is legally required in any jurisdiction in which any part of
the Trust Estate may be located.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. SUPPLEMENTS AND AMENDMENTS. This Agreement may be
amended from time to time by a written amendment duly executed and delivered by
the Depositor and the Trustee, with prior written notice to the Rating Agencies,
without the consent of any of the Noteholders or the Certificateholders, to cure
any ambiguity, to correct or supplement any provisions in this Agreement or for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions in this Agreement or of modifying in any manner the rights
of the Noteholders or the Certificateholders; PROVIDED, HOWEVER, that such
action shall not, as evidenced by an Opinion of Counsel, 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 Depositor
and the Trustee, with prior written notice to the Rating Agencies, with the
written consent of (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
27
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: (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that shall be
required to be made for the benefit of the Noteholders or the Certificateholders
or (b) reduce the aforesaid percentage of the Outstanding Amount and the
Certificate Balance required to consent to any such amendment, without the
consent of the holders of all the outstanding Notes and Certificates.
Promptly after the execution of any such amendment or consent (or, in
the case of the Rating Agencies, 10 days prior thereto), the Trustee shall
furnish written notification of the substance of such amendment or consent to
each Certificateholder, the Indenture Trustee and each of the Rating Agencies.
It shall not be necessary for the consent of Certificateholders, the
Noteholders or the Indenture Trustee 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. The manner of obtaining
such consents (and any other consents of Certificateholders provided for in this
Agreement or in any other Basic Document) and of evidencing the authorization of
the execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Trustee may prescribe.
Promptly after the execution of any amendment to the Certificate of
Trust, the Trustee shall cause the filing of such amendment with the Secretary
of State.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Trustee shall be entitled to receive and rely upon an
Opinion of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement and that all conditions precedent to the execution
and delivery of such amendment have been satisfied. The Trustee may, but shall
not be obligated to, enter into any such amendment that affects the Trustee's
own rights, duties or immunities under this Agreement or otherwise.
SECTION 11.2. NO LEGAL TITLE TO TRUST ESTATE IN CERTIFICATEHOLDERS.
The Certificateholders shall not have legal title to any part of the Trust
Estate. The Certificateholders shall be entitled to receive distributions with
respect to their undivided ownership interest therein only in accordance with
Articles V and IX. No transfer, by operation of law or otherwise, of any right,
title or interest of the Certificateholders in, to and under their ownership
interest in the Trust Estate shall
28
operate to terminate this Agreement or the trusts hereunder or entitle any
transferee to an accounting or to the transfer to it of legal title to any part
of the Trust Estate.
SECTION 11.3. LIMITATIONS ON RIGHTS OF OTHERS. The provisions of this
Agreement are solely for the benefit of the Trustee, the Depositor, the
Certificateholders, the Administrator and, to the extent expressly provided
herein, the Indenture Trustee and the Noteholders, and nothing in this
Agreement, whether express or implied, shall be construed to give to any other
Person any legal or equitable right, remedy or claim in the Trust Estate or
under or in respect of this Agreement or any covenants, conditions or provisions
contained herein.
SECTION 11.4. NOTICES. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing, personally
delivered or mailed by certified mail, postage prepaid and return receipt
requested, and shall be deemed to have been duly given upon receipt: (i) if to
the Trustee or the Paying Agent, addressed to the Corporate Trust Office, and
(ii) if to the Depositor, addressed to CNH Receivables Inc., 475 Half Day Road,
Lincolnshire, Illinois 60069, Attention: Corporate Secretary; or, as to each
party, at such other address as shall be designated by such party in a written
notice to the other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at
the address of such Holder as shown in the Certificate Register. Any notice
so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
SECTION 11.5. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 11.6. SEPARATE COUNTERPARTS. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.7. SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor and its successors, the Trustee and its successors and each
Certificateholder and its successors and permitted assigns, all as herein
provided. Any request, notice,
29
direction, consent, waiver or other instrument or action by an Certificateholder
shall bind the successors and assigns of such Certificateholder.
SECTION 11.8. COVENANTS OF THE DEPOSITOR. If: (a) the Certificate
Balance shall be reduced by Realized Losses and (b) any litigation with claims
in excess of $1,000,000 to which the Depositor is a party that shall be
reasonably likely to result in a material judgment against the Depositor that
the Depositor will not be able to satisfy shall be commenced by a
Certificateholder during the period beginning nine months following the
commencement of such litigation and continuing until such litigation is
dismissed or otherwise terminated (and, if such litigation has resulted in a
final judgment against the Depositor, such judgment has been satisfied), the
Depositor shall not pay any dividend to Credit, or make any distribution on or
in respect of its capital stock to Credit, or repay the principal amount of any
indebtedness of the Depositor held by Credit, unless: (i) after giving effect to
such payment, distribution or repayment, the Depositor's liquid assets shall not
be less than the amount of actual damages claimed in such litigation or (ii) the
Rating Agency Condition shall have been satisfied with respect to any such
payment, distribution or repayment. The Depositor will not at any time institute
against the Trust any bankruptcy proceedings under any United States Federal or
State bankruptcy or similar law in connection with any obligations relating to
the Trust Certificates, the Notes, the Trust Agreement or any of the Basic
Documents.
SECTION 11.9. NO PETITION. The Trustee on behalf of the Trust, by
entering into this Agreement, each Certificateholder, by accepting a Trust
Certificate, and the Indenture Trustee and each Noteholder, by accepting the
benefits of this Agreement, hereby covenant and agree that they will not at any
time institute against the Depositor or the Trust, or join in any institution
against the Depositor or the Trust of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any Federal or State bankruptcy or similar law in connection with any
obligations relating to the Trust Certificates, the Notes, this Agreement or any
of the Basic Documents.
SECTION 11.10. NO RECOURSE. Each Certificateholder by accepting a
Trust Certificate acknowledges that such Certificateholder's Trust Certificates
represent beneficial interests in the Trust only and do not represent interests
in or obligations of the Seller, the Servicer, the Administrator, the Trustee,
the Indenture Trustee or any Affiliate thereof and no recourse may be had
against such parties or their assets, except as may be expressly set forth or
contemplated in this Agreement, the Trust Certificates or the Basic Documents.
30
SECTION 11.11. HEADINGS. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.12. GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the State of Delaware, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
SECTION 11.13. ADMINISTRATOR. The Administrator is authorized to
execute on behalf of the Trust all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the Trust to
prepare, file or deliver pursuant to this Agreement and the Basic Documents.
Upon written request, the Trustee shall execute and deliver to the Administrator
a power of attorney appointing the Administrator its agent and attorney-in-fact
to execute all such documents, reports, filings, instruments, certificates and
opinions.
31
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized as of the day and year first above written.
THE BANK OF NEW YORK,
as Trustee
By: /s/ Erwin Soriano
--------------------------------------
Name: Erwin Soriano
Title: Assistant Treasurer
CNH RECEIVABLES INC.,
as Depositor
By: /s/ Ralph A. Than
--------------------------------------
Name: Ralph A. Than
Title: Vice President and
Treasurer
S-1
EXHIBIT A
to Trust Agreement
FORM OF TRUST CERTIFICATES
REGISTERED $___________(1)
NUMBER R-_______
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF A BENEFIT
PLAN (AS DEFINED BELOW).
CNH EQUIPMENT TRUST 2000-A
_____% ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes a pool of retail installment sale contracts secured
by new and used agricultural and construction equipment and sold to the Trust by
CNH Receivables Inc.
(This Trust Certificate does not represent an interest in or obligation of
CNH Receivables Inc., Case Credit Corporation or Case Corporation, or any of
their respective affiliates, except to the extent described below.)
THIS CERTIFIES THAT CNH RECEIVABLES INC. is the registered owner of a
___________ DOLLAR ($__________) nonassessable, fully-paid, fractional undivided
interest in the CNH Equipment Trust 2000-A (the "TRUST") formed by CNH
Receivables Inc., a Delaware corporation (the "SELLER").
The Trust was created pursuant to a Trust Agreement dated as of March ____,
2000 (the "TRUST AGREEMENT"), between the Seller and The Bank of New York, as
trustee (the "TRUSTEE"). To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in the Trust
Agreement or the Sale and Servicing Agreement (the "SALE AND SERVICING
AGREEMENT") dated as of March __, 2000, among the Trust, the Seller and Case
Credit Corporation, as servicer (the "SERVICER"), as applicable. This
Certificate is one of the duly authorized Certificates
- --------
(1) Denominations of $1,000 and in greater whole-dollar denominations in excess
thereof.
A-1
designated as "______% Asset Backed Certificates" (herein called the "TRUST
CERTIFICATES"). Issued under the: (a) Indenture dated as of March __, 2000,
between the Trust and Harris Trust and Savings Bank, as Indenture Trustee, are
notes designated as "______% Class A-1 Asset Backed Notes," "______% Class A-2
Asset Backed Notes," "______% Class A-3 Asset Backed Notes," "______% Class A-4
Asset Backed Notes" and "______% Class B Asset Backed Notes" (collectively, the
"NOTES"). This Trust Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement the
holder of this Trust Certificate by virtue of the acceptance hereof assents and
by which holder is bound.
Each Holder of this Trust Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Trust Certificate are
subordinated to the rights of the Noteholders as described in the Sale and
Servicing Agreement and the Indenture.
It is the intent of the Seller, Servicer and the Certificateholders
that, for purposes of Federal income, State and local income and franchise and
any other income taxes measured in whole or in part by income, until the Trust
Certificates are held by other than the Seller, the Trust will be disregarded as
an entity separate from its owner. At such time that the Trust Certificates are
held by more than one person, it is the intent of the Seller, Servicer and the
Certificateholders that, for purposes of Federal income, State and local income
and franchise and any other income taxes measured in whole or in part by income,
the Trust will be treated as a partnership, the assets of which are the assets
held by the Trust, and the Certificateholders (including the Depositor (and its
transferees and assigns) in its capacity as recipient of distributions from the
Spread Account) will be treated as partners in that partnership. The Depositor
and the other Certificateholders, by acceptance of a Trust Certificate, agree to
treat, and to take no action inconsistent with the treatment of, the Trust
Certificates as such for tax purposes.
Each Certificateholder, by its acceptance of a Trust Certificate,
covenants and agrees that such Certificateholder will not at any time institute
against the Seller or the Trust, or join in any institution against the Seller
or the Trust of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States Federal or
State bankruptcy or similar law in connection with any obligations relating to
the Trust Certificates, the Notes, the Trust Agreement or any of the Basic
Documents.
The Trust Certificates do not represent an obligation of, or an interest
in, the Seller, the Servicer, Case Credit Corporation, the Trustee or any
affiliates of any of
A-2
them and no recourse may be had against such parties or their assets, except as
may be expressly set forth or contemplated herein or in the Trust Agreement or
the Basic Documents.
The Certificates may not be acquired by or for the account of: (i) an
employee benefit plan (as defined in Section 3(3) of ERISA) that is subject to
the provisions of Title 1 of ERISA, (ii) a plan described in Section 4975(e)(1)
of the Internal Revenue Code of 1986, as amended, or (iii) any entity whose
underlying assets include plan assets by reason of a plan's investment in the
entity (a "BENEFIT PLAN"). By accepting and holding this Certificate, each of
the Holder shall be deemed to have represented and warranted that it is not a
Benefit Plan.
Unless the certificate of authentication hereon shall have been executed
by an authorized officer of the Trustee, by manual signature, this Trust
Certificate shall not entitle the holder hereof to any benefit under the Trust
Agreement or the Sale and Servicing Agreement or be valid for any purpose.
This Trust Certificate shall be construed in accordance with the laws of
the State of Delaware, 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.
A-3
IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not in its
individual capacity has caused this Trust Certificate to be duly executed.
CNH EQUIPMENT TRUST 2000-A
By: THE BANK OF NEW YORK,
not in its individual capacity, but
solely as Trustee
By:__________________________________________
Name:_____________________________________
Title:_____________________________________
A-4
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the within-mentioned Trust
Agreement.
THE BANK OF NEW YORK,
as Trustee
By:_____________________________________
Authorized Officer
Date: March __, 2000
A-5
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE
- -------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
- -------------------------------------------------------------------------------
the within Trust Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
- ------------------------------------------------------------------ Attorney to
transfer said Trust Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated: *
------------------------------------
Signature Guaranteed:
------------------------------------*
*NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Trust Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
A-6
EXHIBIT B
to Trust Agreement
CERTIFICATE OF TRUST OF
CNH EQUIPMENT TRUST 2000-A
This Certificate of Trust of CNH EQUIPMENT TRUST 2000-A (the "TRUST") is
being duly executed and filed by The Bank of New York, a New York banking
corporation, and The Bank of New York (Delaware), a Delaware banking
corporation, as trustee, to form a trust under the Delaware Business Trust Act
(12 Del. Code sec. 3801 ET SEQ.) (the "Act").
1. NAME. The name of the trust formed hereby is CNH EQUIPMENT
TRUST 2000-A.
2. DELAWARE TRUSTEE. The name and business address of the trustee of the
Trust in the State of Delaware is The Bank of New York (Delaware), White Clay
Center, Newark, Delaware 19711.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of
Trust in accordance with Section 3811(a)(1) of the Act.
THE BANK OF NEW YORK,
not in its individual capacity, but solely
as trustee under a Trust Agreement dated
as of March __, 2000
By: _______________________________________
Name: _________________________________
Title: ________________________________
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity, but solely
as co-trustee under a Co-Trustee Agreement,
dated as of March __, 2000
By: _______________________________________
Name: _________________________________
Title: ________________________________
A-1