EXHIBIT 4.2
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CNH EQUIPMENT TRUST 2003-B
TRUST AGREEMENT
between
CNH CAPITAL RECEIVABLES INC.
and
THE BANK OF NEW YORK,
as Trustee
Dated as of November 1, 2003
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ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions..........................................................................1
SECTION 1.2. Other Definitional Provisions........................................................1
ARTICLE II
ORGANIZATION
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; Tax Treatment........................................5
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Ownership....................................................................7
SECTION 3.2. The Trust Certificates...............................................................7
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.............................10
SECTION 3.6. Persons Deemed Certificateholders...................................................10
SECTION 3.7. Access to List of Certificateholders' Names and Addresses...........................10
SECTION 3.8. Maintenance of Office or Agency.....................................................11
SECTION 3.9. Appointment of Paying Agent.........................................................11
ARTICLE IV
ACTIONS BY TRUSTEE
SECTION 4.1. Prior Notice to Certificateholders with Respect to Certain Matters..................12
SECTION 4.2. Action by Certificateholders with Respect to Certain Matters........................13
SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy.............................13
SECTION 4.4. Restrictions on Certificateholders' Power...........................................13
SECTION 4.5. Majority Control....................................................................13
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. Establishment of Trust Account......................................................14
SECTION 5.2. Applications of Trust Funds.........................................................14
SECTION 5.3. Method of Payment...................................................................15
SECTION 5.4. No Segregation of Moneys; No Interest...............................................16
SECTION 5.5. Accounting and Reports to the Noteholders, Certificateholders, the
Internal Revenue Service and Others.................................................16
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SECTION 5.6. Signature on Returns; Tax Matters Partner...........................................16
ARTICLE VI
AUTHORITY AND DUTIES OF TRUSTEE
SECTION 6.1. General Authority...................................................................17
SECTION 6.2. General Duties......................................................................17
SECTION 6.3. Action upon Instruction.............................................................17
SECTION 6.4. No Duties Except as Specified in this Agreement or in Instructions..................18
SECTION 6.5. No Action Except Under Specified Documents or Instructions..........................19
SECTION 6.6. Restrictions........................................................................19
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.1. Acceptance of Trusts and Duties.....................................................19
SECTION 7.2. Furnishing of Documents.............................................................21
SECTION 7.3. Representations and Warranties......................................................21
SECTION 7.4. Reliance; Advice of Counsel.........................................................22
SECTION 7.5. Not Acting in Individual Capacity...................................................22
SECTION 7.6. Trustee Not Liable for Trust Certificates or Receivables............................23
SECTION 7.7. Trustee May Not Own Notes...........................................................23
ARTICLE VIII
COMPENSATION OF TRUSTEE
SECTION 8.1. Trustee's Fees and Expenses.........................................................23
SECTION 8.2. Indemnification.....................................................................24
SECTION 8.3. Payments to the Trustee.............................................................24
ARTICLE IX
TERMINATION OF
TRUST AGREEMENT
SECTION 9.1. Termination of
Trust Agreement......................................................24
ARTICLE X
SUCCESSOR TRUSTEES AND ADDITIONAL TRUSTEES
SECTION 10.1. Eligibility Requirements for Trustee................................................26
SECTION 10.2. Resignation or Removal of Trustee...................................................26
SECTION 10.3. Successor Trustee...................................................................27
SECTION 10.4. Merger or Consolidation of Trustee..................................................28
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee.......................................28
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Supplements and Amendments..........................................................30
SECTION 11.2. No Legal Title to Trust Estate in Certificateholders................................31
SECTION 11.3. Limitations on Rights of Others.....................................................31
SECTION 11.4. Notices.............................................................................31
SECTION 11.5. Severability........................................................................32
SECTION 11.6. Separate Counterparts...............................................................32
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SECTION 11.7. Successors and Assigns..............................................................32
SECTION 11.8. Covenants of the Depositor..........................................................32
SECTION 11.9. No Petition.........................................................................33
SECTION 11.10. No Recourse.........................................................................33
SECTION 11.11. Headings............................................................................33
SECTION 11.12. Governing Law.......................................................................33
SECTION 11.13. Administrator.......................................................................33
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 November 1, 2003 between
CNH CAPITAL 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 2003-B and JPMorgan Chase 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.
(a) 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.
(b) 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".
(c) 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.
ARTICLE II
ORGANIZATION
SECTION 2.1. NAME. The Trust created hereby shall be known as "CNH
Equipment Trust 2003-B", 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 xxx 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. The Trust shall have no power to hold any derivative financial
instrument unless such derivative financial instrument complies with the
requirements of paragraph 40 of Statement of Financial Accounting Standards No.
140 issued by the Financial Accounting Standards Board for "qualifying special
purpose entities", including any interpretations thereof or any successor
standard issued by the Financial Accounting Standards Board.
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 statutory trust under the Trust
Statute and that this Agreement and the Co-Trustee Agreement (as defined in
SECTION 2.4) constitute
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the governing instrument of such statutory trust. It is the intention of the
parties hereto that, solely for income and franchise tax purposes, until the
Certificates are held by a Person other than the Depositor, the Trust be
disregarded as an entity separate from its Owner and the Notes be treated as
debt of the Depositor. 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 be treated as a partnership, with the
assets of the partnership being the Receivables and other assets held by the
Trust, the partners of the partnership being the Certificateholders (including
the Depositor (or its successor in interest) 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 a Person other than the
Depositor 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 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
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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.
(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. If
Certificates are held by more than one Person, interest payments on the
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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 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 Depositor, the application of this
SECTION 2.11 shall be disregarded.
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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 and 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.
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
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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(a) 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(a) 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 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.
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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.
Notwithstanding any other provision of this Agreement, no transfer of a
Trust Certificate or beneficial interest therein shall be allowed, and any such
purported transfer shall be void AB INITIO, if such transfer would cause the
Trust to have more than 100 partners within the meaning of Treasury Regulation
section 1.7704-1(h)(1). For purposes of determining the number of partners in
the Trust under Treasury Regulation section 1.7704-1(h)(1), a person owning an
interest in a partnership, grantor trust, or S corporation (a "flow-through
entity") that owns, directly or through other flow-through entities, an interest
in the Trust, will be treated as a partner in the Trust if more than 50 percent
of the value of such person's interest in the flow-through entity is
attributable to the flow-through entity's interest (direct or indirect) in the
Trust.
No transfer (or purported transfer) of a Trust Certificate (or any
beneficial interest therein), whether to another Certificateholder or to a
person who is not a Certificateholder, shall be effective, and any such transfer
(or purported transfer) shall be void AB INITIO, and no person shall otherwise
become a Certificateholder, and none of the Trust, the Trustee, the Certificate
Registrar or any of the Certificateholders will recognize such transfer (or
purported transfer), unless the transferee has first represented and warranted
in writing to the Trust that:
(A) it is acquiring the Trust Certificate for its own account and is
the sole beneficial owner of such Trust Certificate;
(B) the transfer is not being effected on or through (x) an
"established securities market" within the meaning of Section 7704(a)(1) of the
Code, including without limitation, an over-the-counter market or an interdealer
quotation system that regularly disseminates firm buy or sell quotations or (y)
a "secondary market (or the substantial equivalent thereof)" within the meaning
of Section 7704(a)(2) of the Code and any proposed, temporary or final Treasury
Regulations thereunder; and
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(C) such transfer will not cause the Trust to be classified as a
publicly traded partnership for U.S. federal income tax purposes, and such
purchaser or transferee will not take any action, including any subsequent
disposition of such Trust Certificate (or any beneficial interest therein), that
would cause the Trust to be treated as a publicly traded partnership for U.S.
federal income tax purposes.
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 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
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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 designates The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxxxx 0X,
Xxx Xxxx, Xxx Xxxx 00000, 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 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
11
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
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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, in its sole discretion, withhold
such amounts in accordance with this PARAGRAPH (c). Notwithstanding any
other provision of this Agreement, the Trust shall withhold and pay over
to the Internal Revenue Service, pursuant to Sections 1441, 1442 and 1446
of the Code (or any successor provisions or any other provision as may be
enacted into law), at such times as required by such provisions, such
amounts as the Trust is required to withhold under such provision on
account of any foreign Certificateholder's distributive share of income
of the Trust, as if the entire amount of such foreign Certificateholder's
distributive share of such income is subject to withholding tax pursuant
to such provisions. To the extent that a foreign Certificateholder claims
to be entitled to a reduced rate of, or exemption from, U.S. withholding
tax pursuant to an applicable income tax treaty, or otherwise, such
foreign Certificateholder shall furnish the Depositor and the Trustee
with such information and forms as it may require and are necessary to
comply with the regulations governing the obligations of withholding tax
agents. Each foreign Certificateholder represents and warrants that any
such information and form furnished by it shall be true and accurate and
agrees to indemnify the Trust and each of the other Certificateholders
from any and all damages, costs and expenses resulting from the filing of
inaccurate or incomplete information or forms relating to such
withholding taxes. 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.
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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.
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.
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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 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.
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(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.
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
18
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 the negligence or willful
misconduct of the Trustee.
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, 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):
19
(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 Depositor, 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
(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
20
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 the State 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 to the best of its knowledge without independent
investigation 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 or other governmental
instrumentality having jurisdiction over the Trustee or its properties,
and
21
(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
(whether in its original or facsimile form) 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 claim against the Trustee by reason of the transactions
contemplated
22
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
upon before the date hereof between the Depositor and the Trustee, and the
23
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 fees and expenses that are due and unpaid for more than sixty
(60) days after they have been billed to the party responsible for the payment
of such amounts 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
24
Servicing Agreement and ARTICLE V. The bankruptcy, liquidation, dissolution,
death or incapacity of any Certificateholder shall not: (x) operate to dissolve
or terminate this 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
25
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
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 Xxxxx'x. 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 at
the expense of the Administrator any court of competent jurisdiction for the
appointment of a successor Trustee.
26
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 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 pay 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
27
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 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
28
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.
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
29
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 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.
Notwithstanding the above, the permitted activities of the Trust set
forth in Section 2.3 may not be significantly amended without the consent of
Noteholders, other than the Seller and its Affiliates as Noteholders, evidencing
not less than a majority of the Outstanding Amount of the Notes held by parties
exclusive of the Seller and its Affiliates.
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
30
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 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 Capital Receivables Inc., 000 Xxxxx
Xxxxxxxx Xxxx, Xxxx Xxxxxx, Xxxxxxxx 00000, Attention: Assistant Treasurer; or,
as to each party, at such other address as shall be designated by such party in
a written notice to the other party.
31
(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, 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
32
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 Depositor, 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.
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.
33
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/ Xxxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Assistant Treasurer
CNH CAPITAL RECEIVABLES INC.,
as Depositor
By: /s/ Xxxxx X'Xxxxx
---------------------------------------
Name: Xxxxx X'Xxxxx
Title: Assistant Treasurer
S-1
TRUST AGREEMENT
EXHIBIT A
to
Trust Agreement
FORM OF TRUST CERTIFICATES
REGISTERED $23,000,000(1)
NUMBER R-___ CUSIP No. 12613X CA 7
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF A BENEFIT
PLAN (AS DEFINED BELOW).
CNH EQUIPMENT TRUST 2003-B
3.350% 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 Capital Receivables Inc.
(This Trust Certificate does not represent an interest in or obligation of
CNH
Capital Receivables Inc., Case Credit Corporation, New Holland Credit Company,
LLC, CNH Global N.V. or Case, or any of their respective affiliates, except to
the extent described below.)
THIS CERTIFIES THAT
CNH CAPITAL RECEIVABLES INC. is the fractional registered
owner of a
TWENTY-THREE MILLION DOLLARS ($23,000,000) nonassessable, fully-paid, fractional
undivided interest in the CNH Equipment Trust 2003-B (the "TRUST") formed by
CNH
Capital Receivables Inc., a Delaware corporation (the "DEPOSITOR").
The Trust was created pursuant to a Trust Agreement dated as of November
1, 2003 (the "TRUST AGREEMENT") between the Depositor 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 November 1, 2003 among the Trust, the Depositor and Case
Credit Corporation, as servicer (the "SERVICER"), as applicable.
----------
(1) Denominations of $1,000 and in greater whole dollar denominations in excess
thereof.
A-1
This Trust Certificate is one of the duly authorized Certificates designated as
"Asset Backed Certificates" (herein called the "TRUST CERTIFICATES") issued
under and 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.
Issued under the Indenture dated as of November 1, 2003 between the Trust
and JPMorgan Chase Bank, as Indenture Trustee, are notes designated as "1.230%
Class A-1 Asset Backed Notes," "1.710% Class A-2 Asset Backed Notes," "Floating
Rate Class A-3a Asset Backed Notes," "2.470% Class A-3b Asset Backed Notes,"
"Floating Rate Class A-4a Asset Backed Notes", "3.380% Class A-4b Asset Backed
Notes" and "3.350% Class B Asset Backed Notes". 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 Depositor, 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 Depositor, the Trust 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 Depositor, 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 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 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 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.
A-2
Each Certificateholder, by its acceptance of a Trust Certificate,
represents and warrants in writing that: (a) it is acquiring the Trust
Certificate for its own account and is the sole beneficial owner of such Trust
Certificate; (b) the transfer is not being effected on or through (x) an
"established securities market" within the meaning of Section 7704(a)(1) of the
Code, including without limitation, an over-the-counter market or an interdealer
quotation system that regularly disseminates firm buy or sell quotations or (y)
a "secondary market (or the substantial equivalent thereof)" within the meaning
of Section 7704(a)(2) of the Code and any proposed, temporary or final Treasury
regulations thereunder; and (c) such transfer will not cause the Trust to be
classified as a publicly traded partnership for U.S. federal income tax
purposes, and such purchaser or transferee will not take any action, including
any subsequent disposition of such Trust Certificate (or any beneficial interest
therein), that would cause the Trust to be treated as a publicly traded
partnership for U.S. federal income tax purposes.
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 I 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.
The Trust Certificates do not represent an obligation of, or an interest
in, the Depositor, the Servicer, Case Credit Corporation, New Holland Credit
Company, LLC, Case, LLC, CNH Global N.V., the Trustee or any affiliates of any
of 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.
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 2003-B
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: November __, 2003
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 2003-B
THIS CERTIFICATE OF TRUST of CNH EQUIPMENT TRUST 2003-B (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 trustees, to form a statutory trust under the Delaware Statutory
Trust Act (12 DEL. C. Section 3801, ET SEQ.).
(i) NAME. The name of the statutory trust being formed hereby
is CNH EQUIPMENT TRUST 2003-B.
(ii) DELAWARE TRUSTEE. The name and business address of the
trustee of the Trust in the State of Delaware are The Bank of New York
(Delaware), Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000.
(iii) EFFECTIVE DATE. This Certificate of Trust shall be
effective as of its filing.
B-1
IN WITNESS WHEREOF, the undersigned, being the trustees of the
Trust, 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
November 1, 2003
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 November 1, 2003
By:
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
B-2
