Exhibit 4(b)
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CNH WHOLESALE MASTER NOTE TRUST
AS ISSUER
AND
JPMORGAN CHASE BANK
AS INDENTURE TRUSTEE
SERIES 200__ - __ INDENTURE SUPPLEMENT
DATED AS OF [____]
TO
INDENTURE
DATED AS OF [____]
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION................................................1
Section 1.01 Definitions.......................................................................................1
Section 1.02 Governing Law....................................................................................10
Section 1.03 Counterparts.....................................................................................10
Section 1.04 Ratification of Indenture........................................................................10
ARTICLE II THE SERIES 200__ - __ NOTES...........................................................................11
Section 2.01 Creation and Designation.........................................................................11
Section 2.02 Form of Delivery; Depository; Denominations......................................................11
Section 2.03 Delivery and Payment.............................................................................11
ARTICLE III ALLOCATIONS, DEPOSITS AND PAYMENTS....................................................................11
Section 3.01 Allocations of Series 200__ - __ Available Interest Amount.......................................11
Section 3.02 Amounts to be Treated as Series 200__ - __ Available Interest Amount; Other Deposits to the
Interest Funding Account.........................................................................12
Section 3.03 Allocations of Reductions from Investor Charge-Offs to the Available Subordinated Amount
and the Collateral Amount........................................................................13
Section 3.04 Allocations of Reimbursements of the Collateral Amount Deficit and the Available
Subordinated Amount Deficit......................................................................14
Section 3.05 Deposits of Principal Collections to the Collection Account during the Revolving Period;
Application of Series 200__ - __ Available Principal Amounts.....................................14
Section 3.06 Computation of Reductions to the Collateral Amount and the Available Subordinated Amount
from Reallocations of Series 200__ - __ Available Principal Amounts..............................15
Section 3.07 Targeted Deposits of Series 200__ - __ Available Principal Amounts to the Principal Funding
Account..........................................................................................16
Section 3.08 Amounts to be Treated as Series 200__ - __ Available Principal Amounts; Other Deposits to
Principal Funding Account........................................................................16
Section 3.09 Withdrawals from Interest Funding Account........................................................17
Section 3.10 Withdrawals from Principal Funding Account.......................................................17
Section 3.11 Limit on Repayment of the Series 200__ - __ Notes................................................17
Section 3.12 Calculation of Collateral Amount of Series 200__ - __ Notes and Available Subordinated
Amount...........................................................................................17
Section 3.13 Netting of Deposits and Payments.................................................................19
Section 3.14 Payments to Noteholders..........................................................................19
Section 3.15 Sale of Receivables for Accelerated Notes........................................................20
Section 3.16 Calculation Agent; Determination of LIBOR........................................................21
Section 3.17 Excess Available Interest Amount Sharing.........................................................22
Section 3.18 Excess Available Principal Amounts Sharing.......................................................23
Section 3.19 Computation of Interest..........................................................................23
Section 3.20 Variable Accumulation Period.....................................................................23
-i-
TABLE OF CONTENTS
(continued)
Section 3.21 Payment Instructions and Monthly Noteholders' Report.............................................24
ARTICLE IV EARLY AMORTIZATION OF NOTES...........................................................................24
Section 4.01 Early Amortization Events........................................................................24
ARTICLE V ACCOUNTS AND INVESTMENTS..............................................................................27
Section 5.01 Accounts.........................................................................................27
-ii-
This SERIES 200__ - __
INDENTURE SUPPLEMENT (this "
Indenture
Supplement"), by and between CNH WHOLESALE MASTER NOTE TRUST, a statutory trust
created under the laws of the State of Delaware (the "Issuer"), having its
principal office at c/o[____],[____], and JPMorgan Chase Bank, a
New York
banking corporation (the "Indenture Trustee"), is made and entered into as of
[__], [__].
Pursuant to this
Indenture Supplement, the Issuer shall create a new
series of Notes and shall specify the principal terms thereof.
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01 DEFINITIONS. For all purposes of this
Indenture
Supplement, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Article I have the meanings
assigned to them in this Article I, and include the plural
as well as the singular;
(2) all other terms used herein which are defined in the
Indenture, either directly or by reference therein, have the
meanings assigned to them in the Indenture and, if not
defined in the Indenture, have the meanings assigned to them
in the Transfer and Servicing Agreement, as applicable;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally
accepted accounting principles and, except as otherwise
herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation
required or permitted hereunder means such accounting
principles as are generally accepted in the United States of
America at the date of such computation;
(4) all references in this
Indenture Supplement to designated
"Articles," "Sections" and other subdivisions are to the
designated Articles, Sections and other subdivisions of this
Indenture Supplement. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to this
Indenture Supplement as a whole and not to any particular
Article, Section or other subdivision;
(5) in the event that any term or provision contained herein
shall conflict with or be inconsistent with any term or
provision contained in the Indenture, the terms and
provisions of this
Indenture Supplement shall be
controlling;
(6) except as expressly provided herein, each capitalized term
defined herein shall relate only to the Series 200__ - __
Notes and no other Series of Notes issued by the Issuer; and
(7) "including" and words of similar import will be deemed to be
followed by "without limitation."
"Accumulation Period" means the period from and including the
Accumulation Period Commencement Date to but excluding the earlier of (i) the
Payment Date on which the Adjusted Outstanding Dollar Principal Amount is
reduced to zero and (ii) the close of business on the immediately preceding day
on which an Early Amortization Period commences.
"Accumulation Period Commencement Date" means [__] or, if the Issuer,
acting directly or through the Administrators or Servicer, makes an election
pursuant to Section 3.20, the later date selected by the Issuer or Servicer
pursuant to Section 3.20.
"Accumulation Period Length" means the number of full Collection
Periods between the Accumulation Period Commencement Date and the Scheduled
Final Payment Date.
"Adjusted Outstanding Dollar Principal Amount" means the Outstanding
Dollar Principal Amount, less any amounts on deposit (other than Investment
Earnings) in the Principal Funding Account.
"Aggregate Series Available Interest Amount Shortfall" means the sum
of the Series Available Interest Amount Shortfalls for all series of Notes (as
such term is defined in each of the related
Indenture Supplements).
"Aggregate Series Available Principal Shortfall" means the sum of the
Series Available Principal Amount Shortfalls for all series of Notes (as such
term is defined in the related Indenture Supplements).
"applicable investment category" means the following ratings:
Series [______] Notes
Standard & Poor's [______]
Moody's [______]
Fitch [______]
"Authorized Officer" is defined in the Indenture.
"Available Interest Amounts" means for any Monthly Period, Collections
of Non-Principal Receivables for such Monthly Period.
"Available Principal Amounts" means for any Monthly Period, Principal
Collections for such Monthly Period.
"Available Subordinated Amount Deficit" means, with respect to the
Series 200__ - __ Notes, the amount by which the (i) the aggregate of the
reallocations and reductions
2
of the Series 200__ - __ Available Subordinated Amount made pursuant to Sections
3.12(b)(ii)(C) and (D) exceeds (ii) the aggregate amount of all reimbursements
made pursuant to Section 3.12(b)(ii)(B).
"Calculation Agent" is defined in Section 3.16.
"Case Credit" means Case Credit Company, a Delaware Corporation.
"Class A Monthly Interest" is defined in Section 3.01(b).
"Class A Note Initial Principal Balance" means $[ ].
"Class A Note Principal Balance" means, on any date of determination,
an amount equal to (a) the Class A Note Initial Principal Balance, MINUS (b) the
aggregate amount of principal payments made to the Class A Noteholders on or
prior to such date.
"Class A Noteholder" means the Person in whose name a Class A Note is
registered in the Note Register.
"Class A Notes" means any one of the Notes executed by the Issuer and
authenticated by or on behalf of the Indenture Trustee, substantially in the
form of Exhibit A-1.
"Class A Rate" means, with respect to an Interest Period, a rate per
annum equal to LIBOR, as determined by the Calculation Agent on the related
LIBOR Determination Date with respect to such Interest Period, plus [__]%.
"Class B Monthly Interest" is defined in Section 3.01(c).
"Class B Note Initial Principal Balance" means $[ ].
"Class B Note Principal Balance" means, on any date of determination,
an amount equal to (a) the Class B Note Initial Principal Balance, MINUS (b) the
aggregate amount of principal payments made to the Class B Noteholders on or
prior to such date.
"Class B Noteholder" means the Person in whose name a Class B Note is
registered in the Note Register.
"Class B Notes" means any one of the Notes executed by the Issuer and
authenticated by or on behalf of the Indenture Trustee, substantially in the
form of Exhibit A-2.
"Class B Rate" means, with respect to an Interest Period, a rate per
annum equal to LIBOR, as determined by the Calculation Agent on the related
LIBOR Determination Date with respect to such Interest Period, plus [__]%.
"Collateral Amount" means, with respect to the Series 200__ - __ Notes
the amount calculated pursuant to Section 3.12(a). The initial Collateral Amount
is $[__].
3
"Controlled Accumulation Amount" means (i) the Outstanding Dollar
Principal Amount as of the Accumulation Period Commencement Date, divided by
(ii) the Accumulation Period Length.
"Controlled Deposit Amount" means, with respect to any Payment Date,
the excess of (i) the Controlled Accumulation Amount plus portions of Controlled
Accumulation Amounts, if any, that were to be deposited on a prior Payment Date
but were not so deposited OVER (ii) any funds in the Excess Funding Account that
are allocable to the Series 200__ - __ Notes and have not been deposited into
the Principal Funding Account as of such Payment Date.
"Defaulted Amount" is defined in the Transfer and Servicing Agreement.
"Early Amortization Period" means the period from and including the
date on which an Early Amortization Event occurs to but excluding the earlier of
(i) the Payment Date on which the Outstanding Dollar Principal Amount has been
reduced to zero, (ii) the Legal Final Maturity Date and (iii) if such Early
Amortization Period has commenced before the scheduled termination of the
Revolving Period, the day on which the Revolving Period recommences pursuant to
Section 4.01.
"Eligible Investments" is defined in the Transfer and Servicing
Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default" is defined in Section 7.01 of the Indenture.
"Fitch" means Fitch, Inc.
"Indenture" means the Indenture, dated as of [__], between the Issuer
and [__], as Indenture Trustee, as amended, restated and supplemented from time
to time.
"Insolvency Event' is defined in the Transfer and Servicing Agreement.
"Interest Funding Account" means the Qualified Account designated as
such and established pursuant to Section 5.01(a).
"Interest Payment Date" means the [15th] day of each calendar month,
or if such [15th] day is not a Business Day, the next succeeding Business Day.
The initial Interest Payment Date is [__].
"Interest Period" means, with respect to any Interest Payment Date,
the period from and including the previous Interest Payment Date (or in the case
of the initial Interest Payment Date, from and including the Closing Date) to
but excluding such current Interest Payment Date.
"Investor Charge-Off" means, with respect to any Payment Date, the
aggregate amount, if any, by which the sum of (i) the Investor Default Amount
and the Investor Uncovered Dilution Amount, if any, for the preceding Monthly
Period exceeds the Series [___] Available
4
Interest Amount for such Payment Date available after giving effect to clauses
(a), (b) and (c) of Section 3.01.
"Investment Earnings" means, for any Distribution Date, all interest
and earnings on Eligible Investments included in the Reserve Fund or the
Principal Funding Account, as applicable (net of losses and investment expenses)
during the period commencing on and including the Payment Date immediately
preceding such Payment Date and ending on but excluding such Payment Date.
"Investor Default Amount" means, an amount equal to the product of (a)
the Defaulted Amount TIMES (b) the Series 20__-__ Floating Allocating
Percentage.
"Investor Dilution Amount" is defined in the Transfer and Servicing
Agreement.
"Investor Uncovered Dilution Amount" means an amount equal to the
product of (x) the Series 20__-__ Floating Allocating Percentage for the related
Monthly Period, TIMES (y) the aggregate Investor Dilution Amount occurring
during that Monthly Period as to which any deposit is required to be made to the
Excess Funding Account pursuant to Section 3.09 of the Transfer and Servicing
Agreement but has not been made[, PROVIDED that, if the Transferor Amount is
greater than zero at the time the deposit referred to in CLAUSE (y) is required
to be made, the Investor Uncovered Dilution Amount for such amount to be
deposited shall be deemed to be zero].
"Legal Final Maturity Date" means the Payment Date in [_].
"LIBOR" means, with respect to any Interest Period, the London
interbank offered rate determined in accordance with Section 3.16.
"LIBOR Business Day" means a day that is both a Business Day and a day
on which banking institutions in the City of London, England are not required or
authorized by law to be closed.
"LIBOR Determination Date" means, with respect to any Interest Period,
the second LIBOR Business Day prior to the commencement of such Interest Period.
"Monthly Payment Rate" means, for a Collection Period, the percentage
obtained by dividing Principal Collections for the related Collection Period by
the Pool Balance on the first day of the related Collection Period.
"Monthly Period" is defined in the Indenture; provided, however, that,
with respect to this Indenture Supplement, the first Monthly Period is the
period beginning on the close of business on the Closing Date and ending on and
including [__]. The Monthly Period is the same as the Collection Period.
"Monthly Servicing Fee" means 1/12 TIMES the result of (a) 1% TIMES
(b) the Collateral Amount and if greater, up to 1/12 of the amount of the
Servicing Fee to be paid to the Successor Servicer.
5
"Moody's" means Xxxxx'x Investors Service, Inc.
"Outstanding Dollar Principal Amount" means, on any date of
determination, an amount equal to the sum of the Class A Note Principal Balance
and the Class B Note Principal Balance.
"Paying Agent" means, initially, the Indenture Trustee.
"Payment Date" means, with respect to the Notes, any Principal Payment
Date or any Interest Payment Date.
"Principal Funding Account" means the Qualified Account designated as
such and established pursuant to Section 5.01(a).
"Principal Payment Date" means, the Scheduled Final Payment Date or,
upon the acceleration of the Series 200__ - __ Notes following an Event of
Default or the occurrence of an Early Amortization Event, each Interest Payment
Date occurring after such acceleration or Early Amortization Event.
"Rating Agency" means, with respect to the Series 200__ - __ Notes,
each of Xxxxx'x, S&P and Fitch.
"Receivables Sales Proceeds" means, with respect to the Series 200__ -
__ Notes, the proceeds of the sale of Receivables with respect to such series of
Notes pursuant to Section 3.15. [Receivables Sales Proceeds do not constitute
Available Principal Amounts.]
"Receivables Sales Proceeds Deposit Amount" means, with respect to the
Series 200__ - __ Notes in respect of which the Issuer has received Receivables
Sales Proceeds, the amount of Receivables Sales Proceeds on deposit in the
Principal Funding Account.
"Record Date" means, with respect to any Payment Date, (i) if the
Series 200__ - __ Notes are Global Notes, the day immediately preceding such
Payment Date and (ii) if the Series 200__ - __ Notes are definitive Notes, the
last day of the calendar month ending before such Payment Date.
"Reference Banks" means four major banks engaged in transactions in
the London interbank market, selected by the Calculation Agent for the purpose
of determining LIBOR
"Required Pool Percentage" means [__]%.
"Reserve Fund" means the Qualified Account designated as such and
established pursuant to Section 5.01(a).
"Reserve Fund Available Amount" means, for any Payment Date, the
lesser of (a) the amount on deposit in the Reserve Fund (other than Investment
Earnings) on such date, but before giving effect to any deposit made or to be
made to the Reserve Fund on such date) and (b) the Reserve Fund Required Amount.
6
"Reserve Fund Required Amount" means an amount equal to (a) [ ]% of
the Adjusted Outstanding Dollar Principal Amount after giving effect to any
withdrawals from or deposits to the Reserve Fund on such Payment Date.
"Revolving Period" means the period beginning at the close of business
on the Series 200__ - __ Closing Date, and terminating at the earlier of (i) the
close of business on the day immediately preceding the Accumulation Period
Commencement Date and (ii) the close of business on the day immediately
preceding the day on which an Early Amortization Period commences. The Revolving
Period, however, may recommence upon the termination of an Early Amortization
Period pursuant to Section 4.01.
"Scheduled Final Payment Date" means the Payment Date in [__].
"Series 200_-_" means the Series of Notes the terms of which are
specified in this Indenture Supplement.
"Series 200__ - __ Accounts" is defined in Section 5.01(a).
"Series 200__ - __ Available Amount" means, with respect to any
Payment Date, the sum of the Series 200__ - __ Available Interest Amount and the
Series 200__ - __ Available Principal Amount, for such Payment Date.
"Series 200__ - __ Available Interest Amount" means, with respect to
any Payment Date, the sum of (a) the Available Interest Amount allocated to
Series 200__ - __ pursuant to Section 5.01 of the Indenture and (b) any amounts
to be treated as part of the Series 200__ - __ Available Interest Amount
pursuant to Section 3.02(a) and 3.02(b).
"Series 200__ - __ Available Interest Amount Shortfall" means, with
respect to any Payment Date, the excess, if any, of (i) the aggregate amount
required to be applied pursuant to Sections 3.01(a) through (f) for such Payment
Date OVER (ii) the Series 200__ - __ Available Interest Amount (excluding
amounts to be treated as part of the Series 200__ - __ Available Interest Amount
pursuant to Section 3.17(a) for such Payment Date).
"Series 200__ - __ Available Principal Amount" means, with respect to
any Payment Date, the sum of (a) the Available Principal Amount allocated to
Series 200__ - __ pursuant to Section 5.02 of the Indenture, (b) Series 200__ -
__ Excess Funding Amount and (c) any amounts to be treated as part of the Series
200__ - __ Available Principal Amount pursuant to Section 3.01(d) or 3.01(e).
"Series 200__ - __ Available Principal Amount Shortfall" means, with
respect to any Payment Date, the excess, if any, of (i) the aggregate amount
required to be applied pursuant to Section 3.07 OVER (ii) the Series 200__ - __
Available Principal Amount (excluding amounts to be treated as part of the
Series 200__ - __ Available Principal Amount pursuant to Section 3.18(a) for
such Payment Date); provided, however, that the Issuer, when authorized by an
Officer's Certificate, may amend or otherwise modify this definition of Series
200__ - __ Available Principal Amount Shortfall with evidence that the Rating
Agency Condition has been satisfied with respect thereto.
7
"Series 200__ - __ Available Subordinated Amount" or "Available
Subordinated Amount" means the amount calculated pursuant to Section 3.12(b).
The initial Series 200__ - __ Available Subordinated Amount is $[__].
"Series 200__ - __ Closing Date" means [__].
"Series 200__ - __ Collateral Amount Deficit" means the amount by
which (x) the Adjusted Outstanding Dollar Principal Amount, exceeds (y) the
Collateral Amount.
"Series 200__ - __ Early Amortization Event" means the occurrence of
any of the events specified in Section 12.01 of the Indenture and Section 4.01
of this Indenture Supplement.
"Series 200_-_ Excess Funding Amount" means, as of any date, the
product of: (a) the amount on deposit in the Excess Funding Account on that
date; TIMES (b) the result of (i) the Series 200_-_ Security Amount; DIVIDED BY
(ii) the sum of the Series Security Amounts of all series issued by the Issuer
that are being allocated a portion of the funds in the Excess Funding Account on
that date.
"Series 200__ - __ Floating Allocation Percentage" means, with respect
to any Payment Date, the percentage equivalent, which shall never exceed 100%,
of a fraction, the numerator of which is the Series 200__ - __ Security Amount
as of the last day of the immediately preceding Collection Period and the
denominator of which is the greater of (a) the Adjusted Pool Balance as of the
close of business on the last day of the preceding Collection Period, and (b)
the sum of the Series Security Amounts for all series of Notes (including Series
200__ - __ on that day).
"Series 200__ - __ Incremental Subordinated Amount" on any
Determination Date, will equal the product obtained by multiplying:
(i) a fraction, the numerator of which is Series 200__ - __ the
Security Amount (calculated without including the Series 200__ -
__ Incremental Subordinated Amount), and the denominator of
which is the greater of (1) the Pool Balance on the last day of
the preceding Collection Period and (2) the sum of the amounts
in the numerator for all series, BY
(ii) the excess, if any, of
(a) the sum of (x) the Dealer Overconcentration Amount, the
Used Equipment Overconcentration Amount, the Rental
Overconcentration Amount and (y) the aggregate amount of
Ineligible Receivables and, without duplication, any other
Receivables transferred to the Issuer that are not Eligible
Receivables, as of the end of the preceding Collection Period,
OVER
(b) the aggregate amount of Ineligible Receivables and,
without duplication, any other Receivables transferred to the
Issuer that are not Eligible Receivables, and Receivables in
Accounts containing Dealer Overconcentrations, Used Equipment
Overconcentration Amounts
8
or Rental Overconcentration Amounts, in each case that may be
reassigned from the Issuer.
"Series 200__ - __ Monthly Interest" is defined in Section 3.01(c).
"Series 200__ - __ Monthly Principal" is defined in Section 3.07
["Series 200__ - __ Note Interest Rate" means, with respect to an
Interest Period, a rate per annum equal to LIBOR, as determined by the
Calculation Agent on the related LIBOR Determination Date with respect to such
Interest Period, plus [__]%.]
"Series 200__ - __ Noteholder" means a Person in whose name a Series
200__ - __ Note is registered in the Note Register or the bearer of any Series
[___] Note in Bearer Note form (including a Global Note in bearer form), as the
case may be.
"Series 200__ - __ Notes" or "Notes" means a Class A Note or a Class B
Note.
"Series 200__ - __ Principal Allocation Percentage" for any Payment
Date shall mean the percentage equivalent, which may never exceed 100%, of a
fraction the numerator of which is the Series 200__ - __ Security Amount as of
the last day of the immediately preceding Collection Period or, if the
Accumulation Period or an Early Amortization Period has commenced, as of the
last day of the Collection Period that preceded the commencement of the
Accumulation Period or an Early Amortization Period, as applicable; and the
denominator of which is the greater of (a) the Adjusted Pool Balance as of the
close of business on the last day of the immediately preceding Collection Period
and (b) the sum of the series security amounts for all series of notes as of the
last day of the immediately preceding Collection Period, except that for any
series that is amortizing, repaying or accumulating principal, the series
security amount of that series will be the series security amount as of the last
day of the Collection Period that preceded the commencement of the amortization,
repayment or accumulation, as applicable.
"Series 200__ - __ Required Subordinated Amount" is equal to the
greater of (a) zero and (b) the product of (1) the Series 200__ - __
Subordinated Percentage TIMES (2) the Collateral Amount, PLUS the Series 200__ -
__ Incremental Subordinated Amount.
"Series 200__ - __ Security Amount" or "Security Amount" means, at the
time of determination, the amount equal to the sum of (i) the Collateral Amount
at such time PLUS (ii) the Series 200__ - __ Available Subordinated Amount at
such time.
"Series 200__ - __ Servicing Fee" means, with respect to any Payment
Date, the pro rata portion of the Monthly Servicing Fee allocable to the Series
200__ - __ Notes based on the Series 200__-__Floating Allocation Percentage for
such Payment Date.
"Series 200__ -__ Stated Principal Amount" means $[____].
"Series 200__ - __ Subordinated Percentage" equals [ ]%.
"Series 200__ - __Termination Date" means the earliest to occur of (a)
the Principal Payment Date on which the Outstanding Dollar Principal Amount is
reduced to zero,
9
(b) the Legal Final Maturity Date and (c) the date on which the Indenture is
discharged and satisfied pursuant to Article VI thereof.
"Shared Excess Available Interest Amount" means, with respect to any
Payment Date with respect to any series of Notes, either (i) the Series 200__ -
__ Available Interest Amount for such Payment Date available after application
in accordance with Sections 3.01(a) through (g) or (ii) the amounts allocated to
the Notes of other series that the applicable Indenture Supplements for such
series specify are to be treated as "Shared Excess Available Interest Amount."
"Shared Excess Available Principal Amount" means, with respect to any
Payment Date and any series of Notes, either (i) the Series 200__ - __ Available
Principal Amount for such Payment Date applied as Shared Excess Available
Principal Amounts in accordance with Section 3.05 or (ii) the amounts allocated
to the Notes of other series that the Indenture Supplements for such series
specify are to be treated as "Shared Excess Available Principal Amounts."
"S&P" means Standard & Poor's Ratings Service, a division of The
XxXxxx-Xxxx Companies, Inc.
"Telerate Page 3750" means the display page so designated as reported
by Bloomberg Financial Markets Commodities News (or such other page as may
replace that page on that service, or any other service that may be nominated as
the information vendor, for the purpose of displaying London interbank offered
rates of major banks for Dollar deposits).
"Transfer and Servicing Agreement" means the Transfer and Servicing
Agreement, dated as of [__], among CWRI, as transferor, Case Credit, as Servicer
and the Issuer, as amended, restated and supplemented from time to time.
Section 1.02 GOVERNING LAW. THIS INDENTURE SUPPLEMENT WILL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK,
WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401
OF THE
NEW YORK GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 1.03 COUNTERPARTS. This Indenture Supplement may be executed
in any number of counterparts, each of which so executed will be deemed to be an
original, but all such counterparts will together constitute but one and the
same instrument.
Section 1.04 RATIFICATION OF INDENTURE. As supplemented by this
Indenture Supplement, the Indenture is in all respects ratified and confirmed
and the Indenture as so supplemented by this Indenture Supplement shall be read,
taken and construed as one and the same instrument.
10
ARTICLE II
THE SERIES 200__ - __ NOTES
Section 2.01 CREATION AND DESIGNATION.
(a) There is hereby created and designated a Series of Notes to be
issued pursuant to the Indenture and this Indenture Supplement to be known as
"CNH Wholesale Master Note Trust Asset Backed Notes Series [__]" or the "Series
200_ - _ Notes." The Series 200__ - __ Notes will be issued in two classes,
known as the Series 200_ - _ Class A Floating Rate Asset-Backed Notes and the
Series 200_ - _ Class B Floating Rate Asset-Backed Notes.
(b) The Series 200__ - __ Notes shall not be subordinated to any
other Series of Notes.
Section 2.02 FORM OF DELIVERY; DEPOSITORY; DENOMINATIONS.
(a) The Series 200__ - __ Notes, upon original issuance, shall be
delivered in the form of Global Notes and Registered Notes as provided in
Sections 2.02 and 3.01(g) of the Indenture, respectively.
(b) The Depository for the Series 200__ - __ Notes shall be The
Depository Trust Company, and the Series 200__ - __ Notes shall initially be
registered in the name of Cede & Co., its nominee.
(c) The Series 200__ - __ Notes will be issued in minimum
denominations of $1,000 and integral multiples of that amount.
Section 2.03 DELIVERY AND PAYMENT. The Issuer shall execute and
deliver the Series 200__ - __ Notes to the Indenture Trustee for authentication,
and the Indenture Trustee shall deliver the Series 200__ - __ Notes when
authenticated, each in accordance with Section 3.03 of the Indenture.
ARTICLE III
ALLOCATIONS, DEPOSITS AND PAYMENTS
Section 3.01 ALLOCATIONS OF SERIES 200__ - __ AVAILABLE INTEREST
AMOUNT. On each Payment Date, the Indenture Trustee will apply the Series 200__
- __ Available Interest Amount as follows:
(a) first, an amount equal to the Series 200_-_ Servicing Fee, plus
the amount of any Series 200_-_ Servicing Fee previously due but not distributed
to the Servicer on a prior date, shall be distributed to the Servicer;
(b) second, to deposit to the Interest Funding Account an amount
equal to (i) the product of (A) a fraction, the numerator of which is the actual
number of days in the related Interest Period and the denominator of which is
360, times (B) the Class A Rate applicable to the
11
related Interest Period, times (C) the Class A Note Principal Balance determined
as of the Record Date preceding the related Payment Date (the "Class A Monthly
Interest"), plus (ii) an amount equal to the excess, if any, of the aggregate
amount accrued pursuant to this Section 3.01(b) as of prior Interest Periods
over the aggregate amount of interest paid to the Class A Noteholders pursuant
to this Section 3.01(b) in respect of such prior Interest Periods, together with
interest at the Class A Rate on such delinquent amount, to the extent permitted
by applicable law;
(c) third, to deposit to the Interest Funding Account an amount equal
to (i) the product of (A) a fraction, the numerator of which is the actual
number of days in the related Interest Period and the denominator of which is
360, times (B) the Class B Rate applicable to the related Interest Period, times
(C) the Class B Note Principal Balance determined as of the Record Date
preceding the related Payment Date (the "Class B Monthly Interest" and
collectively with the Class A Monthly Interest, the "Series 200__ - __ Monthly
Interest"), plus (ii) an amount equal to the excess, if any, of the aggregate
amount accrued pursuant to this Section 3.01(c) as of prior Interest Periods
over the aggregate amount of interest paid to the Series 200__ - __ Noteholders
pursuant to this Section 3.01(c) in respect of such prior Interest Periods,
together with interest at the Class B Rate on such delinquent amount, to the
extent permitted by applicable law;
(d) fourth, to be treated as part of the Series 200__ - __ Available
Principal Amount for application in accordance with Section 3.05 in an amount
equal to (i) the Investor Default Amount, if any, (ii) the Investor Uncovered
Dilution Amount, if any, and (iii) the Series 200__-__ Collateral Amount
Deficit, if any, in each case for the preceding Monthly Period;
(e) fifth, an amount up to the excess, if any, of the Reserve Fund
Required Amount OVER the Reserve Fund Available Amount shall be deposited into
the Reserve Fund;
(f) sixth, to be treated as part of the Series [__] Available
Principal Amount for application in accordance with Section 3.05 in an amount
equal to the Available Subordinated Amount Deficit, if any; and
(g) seventh, any Series 200_-_ Available Interest Amounts that remain
after giving effect to Clauses 3.01(a) through (f) above and reimbursement of
waived Series 200_-_ Servicing Fee, if any, to be treated as Shared Excess
Available Interest Amount for application in accordance with Section 3.17;
Section 3.02 AMOUNTS TO BE TREATED AS SERIES 200__ - __ AVAILABLE
INTEREST AMOUNT; OTHER DEPOSITS TO THE INTEREST FUNDING ACCOUNT. The following
deposits and payments will be made on the following dates:
(a) Amounts to be Treated as Series 200__ - __ Available Interest
Amount. In addition to the Available Interest Amount allocated to Series 200__ -
__ pursuant to Section 5.01 of the Indenture, the following amounts shall be
treated as part of the Series 200__ - __ Available Interest Amount for
application in accordance with this Article III:
(i) RESERVE FUND. If Series 200_-_ Available Interest Amounts
are not sufficient to make the entire distributions required by
Sections 3.01(a), 3.01(b) or 3.01(c) above, the Indenture Trustee will
withdraw funds from the Reserve
12
Fund and apply those funds to complete such distributions. In
addition, if Series 200_-_ is in an Early Amortization Period and if
the Series 200_-_ Available Interest Amounts are not sufficient to
make the entire distributions required by Section 3.01(d) above, the
Indenture Trustee will withdraw funds from the Reserve Fund and apply
those funds to complete the distributions under that clause.
(ii) INVESTMENT EARNINGS. Any Investment Earnings with respect
to the Principal Funding Account and the Reserve Fund for any Payment
Date will be treated as part of the Series 200__ - __ Available
Interest Amount for such Payment Date.
(iii) SHARED EXCESS AVAILABLE INTEREST AMOUNT. Any Shared Excess
Available Interest Amount allocable to Series 200__ - __ will be
treated as part of the Series 200__ - __ Available Interest Amount
pursuant to Section 3.17(a).
(iv) REALLOCATED YIELD AMOUNTS. Any Reallocated Yield Amounts
allocable to Series 200_-_ will be treated as part of the Series 200__
- __ Available Interest Amount pursuant to Section 3.17(a).
(b) Receivables Sales Proceeds. Receivables Sales Proceeds received
by the Issuer pursuant to Section 3.15(c)(ii) for the Series 200__ - __ Notes
will be deposited into the Interest Funding Account on the date of receipt by
the Issuer.
Section 3.03 ALLOCATIONS OF REDUCTIONS FROM INVESTOR CHARGE-OFFS TO
THE AVAILABLE SUBORDINATED AMOUNT AND THE COLLATERAL AMOUNT. On each Payment
Date when there is an Investor Charge-Off with respect to the related Monthly
Period, such Investor Charge-Off will be allocated on that date to the Available
Subordinated Amount and the Collateral Amount as set forth in this Section 3.03.
(a) First, the amount of such Investor Charge-Off will be allocated
to the Available Subordinated Amount in an amount equal to lesser of (i) such
Investor Charge-Off and (ii) the Available Subordinated Amount (computed prior
to giving effect to such Investor Charge-Off and any reallocation of Series
200__ - __ Available Principal Amount on such date). In such case, the Available
Subordinated Amount will be reduced by an amount equal to the portion of such
Investor Charge-Off Amount that is allocated to the Available Subordinated
Amount pursuant to this clause (a); provided, however, that no such allocation
will reduce the Available Subordinated Amount below zero.
(b) Second, the amount of such Investor Charge-Off remaining after
giving effect to clause (a) above will be allocated to the Series 200__ - __
Notes in an amount equal to the lesser of (i) the excess, if any, of the
Investor Charge-Off for such Monthly Period over the amount of the reduction of
the Available Subordinated Amount pursuant to clause (a) above and (ii) the
Collateral Amount (computed prior to giving effect to such reduction and any
reallocations of Series 200__ - __ Available Principal Amounts on such date). In
such case, the Collateral Amount will be reduced by an amount equal to the
portion of such Investor Charge-
13
Off that is allocated to the Series 200__ - __ Notes pursuant to this clause
(b); provided, however, that no such allocation will reduce the Collateral
Amount below zero.
Section 3.04 ALLOCATIONS OF REIMBURSEMENTS OF THE COLLATERAL AMOUNT
DEFICIT AND THE AVAILABLE SUBORDINATED AMOUNT DEFICIT. If, as of any Payment
Date, there is any Series 200__ - __ Available Interest Amount available
pursuant to Section 3.01(d) or (f) to reimburse any Series 200__ - __ Collateral
Amount Deficit or Available Subordinated Amount Deficit as of such Payment Date,
such funds will be allocated as follows:
(a) first, to the Collateral Amount, but in no event will the
Collateral Amount be increased above the Adjusted Outstanding Dollar Principal
Amount of the Series 200__ - __ Notes; and
(b) second, to the Available Subordinated Amount, but in no event
will the Available Subordinated Amount be increased above the Available
Subordinated Amount calculated as if there had been no reduction of the
Available Subordinated Amount pursuant to Section 3.03 or 3.06.
Section 3.05 DEPOSITS OF PRINCIPAL COLLECTIONS TO THE COLLECTION
ACCOUNT DURING THE REVOLVING PERIOD; APPLICATION OF SERIES 200__ - __ AVAILABLE
PRINCIPAL AMOUNTS.
If on any day during the Revolving Period no other Series is then
amortizing, repaying or accumulating principal and the Adjusted Pool Balance is
not less than the Required Pool Balance on such day and the Transferor Amount is
not less than the Trust Available Subordinated Amount on such day. Servicer will
distribute directly to the Transferor on each date of deposit the Series 200 -
Noteholder's share of Principal Collections.
On each Payment Date, the Indenture Trustee will apply the Series
200__ - __ Available Principal Amount as follows:
(a) first, if, after giving effect to deposits to be made with
respect to such Payment Date pursuant to Sections 3.01(a) and 3.01(b), the
Servicer has not received all amounts due under Section 3.01(a) or the Class A
Notes have not received the full amount targeted to be deposited pursuant to
Section 3.01(b) with respect to that Payment Date, then the Series 200__ - __
Available Principal Amount will be paid to the Servicer and allocated to the
Interest Funding Account and applied in the order of priority set forth in
Section 3.01 in an amount equal to the lesser of the following amounts:
(i) the amount of the deficiency of amounts due and payable to
the Servicer under Section 3.01(a) and the amount of the deficiency in
such targeted amount to be deposited into the Interest Funding Account
pursuant to Section 3.01(b); and
(ii) the Series 200_-_ Security Amount, less the Class A Note
Principal Balance (determined after giving effect to the application
of the Investor Charge-Off pursuant to Section 3.03);
14
(b) second, if, after giving effect to deposits to be made with
respect to such Payment Date pursuant to Section 3.01(c), the Class B Notes have
not received the full amount targeted to be deposited pursuant to Section
3.01(c) with respect to that Payment Date, then the Series 200__ - __ Available
Principal Amount will be allocated to the Interest Funding Account in an amount
equal to the lesser of the following amounts:
(i) the amount of the deficiency in such targeted amount to be
deposited into the Interest Funding Account; and
(ii) the Series 200_-_ Available Subordinated Amount (determined
after giving effect to the application of the Investor Charge-Off
pursuant to Section 3.03);
(c) third, if Series 200_-_ is in its Accumulation Period, the
Indenture Trustee will deposit the Controlled Deposit Amount, to the extent of
any remaining Series 200_-_ Available Principal Amounts, into the Principal
Funding Account;
(d) fourth, if Series 200_-_ is in an Early Amortization Period, the
Indenture Trustee will deposit any remaining Series 200_-_ Available Principal
Amounts into the Principal Funding Account for payment to the Series 200_-_
Noteholders in an amount up to the Collateral Amount of the Series 200_-_ Notes,
to the extent of the Series 200_-_ Security Amount (determined after giving
effect to the application of the Investor Charge-Off pursuant to Section 3.03)
and Section 3.01(a) above;
(e) fifth, the Indenture Trustee will make a deposit into the Reserve
Fund to the extent that the Reserve Fund Available Amount is less than the
Reserve Fund Required Amount after giving effect to any deposits made from the
Series 200_-_ Available Interest Amount to the Reserve Fund for that Payment
Date, but only to the extent that the Available Subordinated Amount exceeds zero
prior to such deposit; and
(f) sixth, if, any remaining Series 200_-_ Available Principal Amount
(after giving effect to clauses (a) through (e) above) will be treated as Shared
Excess Available Principal Amounts.
Section 3.06 COMPUTATION OF REDUCTIONS TO THE COLLATERAL AMOUNT AND
THE AVAILABLE SUBORDINATED AMOUNT FROM REALLOCATIONS OF SERIES 200__ - __
AVAILABLE PRINCIPAL AMOUNTS.
(a) Each reallocation of a portion of the Series 200__ - __ Available
Principal Amounts that is deposited to the Interest Funding Account pursuant to
Section 3.05(a) and 3.05(b) will reduce the Available Subordinated Amount;
provided, however, that such reduction shall not exceed the Available
Subordinated Amount (after giving effect to any reductions pursuant to Section
3.03 for Investor Charge-Offs).
(b) Each reallocation of a portion of the Series 200__ - __ Available
Principal Amounts that is deposited to the Interest Funding Account pursuant to
Section 3.05(a) and 3.05(b) in excess of the amounts applied pursuant to clause
(a) above that reduce the Available Subordinated Amount to zero will reduce the
Collateral Amount; provided, however, that the
15
amount of such reduction shall not exceed the Collateral Amount (after giving
effect to any reductions pursuant to Section 3.03 for Investor Charge-Offs).
Section 3.07 TARGETED DEPOSITS OF SERIES 200__ - __ AVAILABLE
PRINCIPAL AMOUNTS TO THE PRINCIPAL FUNDING ACCOUNT. The Series 200__ - __
Available Principal Amount that is targeted to be deposited into the Principal
Funding Account with respect to any Payment Date will be (i) the amount
determined pursuant to clause (a) or (b) below for such Payment Date, as
applicable, or if more than one such clause is applicable, the highest amount
determined pursuant to any one of such clauses, and (ii) any targeted deposit
pursuant to clause (i) for any prior Payment Date to the extent not previously
deposited, but in no case more than the Collateral Amount (computed immediately
before giving effect to such deposit but after giving effect to any reductions
thereof due to any Investor Charge-Offs and Investor Uncovered Dilution Amounts
and any reallocations of the Series 200__ - __ Available Principal Amounts on
such date, such amount that is targeted to be deposited into the Principal
Funding Account with respect to any Payment date, "Series 200__ - __ Monthly
Principal").
(a) BUDGETED DEPOSITS. Subject to Section 3.07(b), with respect to
each Principal Payment Date, beginning with the Accumulation Period Commencement
Date, the targeted deposit to be made into the Principal Funding Account will be
the Controlled Deposit Amount for the related Payment Date.
(b) EVENT OF DEFAULT, EARLY AMORTIZATION EVENT, OTHER OPTIONAL OR
MANDATORY REDEMPTION. If the Series 200__ - __ Notes have been accelerated
during a Monthly Period after the occurrence of an Event of Default, or if an
Early Amortization Event with respect to the Series 200__ - __ Notes occurs
during a Monthly Period, or with respect to the Monthly Period immediately
preceding any other date fixed for any other optional or mandatory redemption of
the Series 200__ - __ Notes, the targeted deposit for the Series 200__ - __
Notes with respect to the Payment Date following such Monthly Period and each
following Payment Date is equal to the Collateral Amount as of the close of
business on the last day of the preceding Monthly Period (taking into effect any
reallocations on the following Payment Date), for payment, first, to the Class A
Noteholders on the related Payment Date until the Class A Note Principal Balance
has been paid in full and, second, to the Class B Noteholders on the related
Payment Date until the Class B Note Principal Balance has been paid in full.
Section 3.08 AMOUNTS TO BE TREATED AS SERIES 200__ - __ AVAILABLE
PRINCIPAL AMOUNTS; OTHER DEPOSITS TO PRINCIPAL FUNDING ACCOUNT. The following
deposits and payments will be made on the following dates:
(a) AMOUNTS TO BE TREATED AS SERIES 200__ - __ AVAILABLE PRINCIPAL
AMOUNTS. In addition to the Available Principal Amounts allocated to the Series
200__ - __ Notes pursuant to Section 5.02 of the Indenture, any portion of the
Series 200__ - __ Available Interest Amount that is allocated pursuant to
Section 3.01(d) or 3.01(e) shall be treated as part of the Series 200__ - __
Available Principal Amounts for application in accordance with Section 3.05.
(b) RECEIVABLES SALE PROCEEDS. Receivables Sales Proceeds applied
pursuant to Section 3.15(c)(i) for the Series 200__ - __ Notes will be deposited
into the Principal Funding Account on the date of receipt by the Indenture
Trustee.
16
(c) WITHDRAWALS FROM EXCESS FUNDING ACCOUNT. Any withdrawal from the
Excess Funding Account pursuant to Section 4.02(d) of the Indenture that is
allocable to Series 200__ - __ will be deposited into the Principal Funding
Account on the date of receipt by the Indenture Trustee.
Section 3.09 WITHDRAWALS FROM INTEREST FUNDING ACCOUNT. Withdrawals
made pursuant to this Section 3.09 with respect to the Series 200__ - __ Notes
will be made from the Interest Funding Account only after all allocations and
reallocations have been made pursuant to Sections 3.01 and 3.05. Such
withdrawals will be limited to the amount then on deposit in the Interest
Funding Account.
(a) WITHDRAWALS FOR SERIES 200__ - __ NOTES. On each Interest Payment
Date, any amount on deposit in the Interest Funding Account for the Series 200__
- __ Notes shall be paid to the Paying Agent.
(b) PAYMENT TO THE ISSUER. After payment in full of the Series 200__
- __ Notes, any amount remaining on deposit in the Interest Funding Account will
be paid to the Issuer.
Section 3.10 WITHDRAWALS FROM PRINCIPAL FUNDING ACCOUNT. Withdrawals
made pursuant to this Section 3.10 with respect to the Series 200__ - __ Notes
will be made from the Principal Funding Account only after all allocations and
reallocations have been made pursuant to Section 3.05. In no event will the
amount of the withdrawal be more than the amount then on deposit in the
Principal Funding Account.
(a) WITHDRAWALS FOR THE SERIES 200__ - __ NOTES. On each Principal
Payment Date, any amount on deposit in the Principal Funding Account shall be
paid to the Paying Agent.
(b) PAYMENT TO THE ISSUER. Upon payment in full of the Series 200__ -
__ Notes, any remaining amount on deposit in the Principal Funding Account will
be paid to the Issuer.
Section 3.11 LIMIT ON REPAYMENT OF THE SERIES 200__ - __ NOTES. No
amounts on deposit in the Principal Funding Account will be applied to pay
principal of the Series 200__ - __ Notes in excess of the Outstanding Dollar
Principal Amount.
Section 3.12 CALCULATION OF COLLATERAL AMOUNT OF SERIES 200__ - __
NOTES AND AVAILABLE SUBORDINATED AMOUNT.
(a) On or prior to each Payment Date the Issuer shall calculate the
Collateral Amount, which shall be the following amount:
(i) as of the Closing Date, the Initial Outstanding Dollar
Principal Amount of the Series 200__ - __ Notes; and
(ii) thereafter, an amount equal to, without duplication:
17
(A) the Collateral Amount immediately after the prior date
of determination; plus
(B) the share of all reimbursements of the Collateral
Amount Deficit pursuant to Section 3.01(d) that is allocated to
the Collateral Amount pursuant to Section 3.04(a) since the prior
date of determination; minus
(C) the share of all reallocations of the Series 200__ - __
Available Principal Amount pursuant to Section 3.05(a) and
3.05(b) that is allocated to the Collateral Amount pursuant to
Section 3.06(b) since the prior date of determination; minus
(D) the amount of the reduction of the Collateral Amount of
the Series 200__ - __ Notes resulting from an allocation of an
Investor Charge-Off pursuant to Section 3.03(b) since the prior
date of determination; minus
(E) the amount (other than Investment Earnings) deposited
in the Principal Funding Account (after giving effect to any
deposits, allocations, reallocations or withdrawals to be made on
that day) since the prior date of determination;
provided, however, that (1) the Collateral Amount may never be less than zero,
(2) the Collateral Amount may never be greater than the Adjusted Outstanding
Dollar Principal Amount of the Series 200__ - __ Notes and (3) if the Holders of
the Series 200__ - __ Notes have caused a sale of Receivables pursuant to
Section 3.15, then the Collateral Amount of Series 200__ - __ Notes the Series
200__ - __ will be zero.
(b) On or prior to each Payment Date the Issuer shall calculate the
Available Subordinated Amount, which shall be the following amount:
(i) as of the Closing Date, the initial Available Subordinated
Amount; and
(ii) thereafter, an amount equal to, without duplication, the
lower of:
(x) the Series 200_-_ Required Subordinated Amount on that
Determination Date; and
(y) an amount equal to:
(A) the Available Subordinated Amount for the prior Payment
Date; plus
(B) the share of all reimbursements of the Available
Subordinated Amount Deficit pursuant to Section 3.01(e) that is
allocated
18
to the Available Subordinated Amount pursuant to Section 3.04(b)
since the prior date of determination; MINUS
(C) the share of all reallocations of the Series [__]
Available Principal Amount pursuant to Section 3.05(a) and (b)
that is allocated to the Overcollateralization Amount pursuant to
Section 3.06(a) since the prior date of determination; MINUS
(D) the amount of the reduction of the Available
Subordinated Amount resulting from an allocation of Investor
Charge-Offs pursuant to Section 3.03(a) since the prior date of
determination; MINUS
(E) the Series 20_-_ Incremental Subordinated Amount for
the prior Payment Date; plus;
(F) the Series 200_-_ Incremental Subordinated Amount for
the current Payment Date; plus
(G) any increases made by the Transferor pursuant to the
following paragraph.
provided, however, that the Available Subordinated Amount shall never be less
than zero and, after the Outstanding Dollar Principal Amount has been reduced to
zero, the Available Subordinated Amount shall be zero; provided further, that
the Issuer shall have the right to increase the Available Subordinated Amount so
long as the aggregate amount of such increases does not exceed ___% of the
Series 200_-_ Stated Principal Amount.
Section 3.13 NETTING OF DEPOSITS AND PAYMENTS. The Issuer, in its
sole discretion, may make all deposits to the Interest Funding Account and the
Principal Funding Account pursuant to Sections 3.01 and 3.07 with respect to any
Payment Date net of, and after giving effect to, (a) all reallocations to be
made pursuant to Section 3.07 and (b) all payments to the Issuer pursuant to
Section 3.05.
Section 3.14 PAYMENTS TO NOTEHOLDERS.
(a) All payments of principal, interest or other amounts to Holders
of the Series 200__ - __ Notes will be made pro rata based on the Outstanding
Dollar Principal Amount of their Series 200__ - __ Notes.
(b) Any installment of interest or principal, if any, payable on any
Series 200__ - __ Note which is punctually paid or duly provided for by the
Issuer and the Indenture Trustee on the applicable Interest Payment Date or
Principal Payment Date shall be paid by the Paying Agent to the Person in whose
name such Series 200__ - __ Note (or one or more Predecessor Notes) is
registered on the Record Date, by wire transfer of immediately available funds
to such Person's account as has been designated by written instructions received
by the Paying Agent from such Person not later than the close of business on the
third Business Day preceding the date of payment or, if no such account has been
so designated, by check mailed
19
first-class, postage prepaid to such Person's address as it appears on the Note
Register on such Record Date, except that (i) with respect to Series 200__ - __
Notes registered on the Record Date in the name of the nominee of Cede & Co.,
payment shall be made by wire transfer in immediately available funds to the
account designated by such nominee and (ii) with regard to any payments of
interest or principal made pursuant to Section 3.09(b) or 3.10(b), respectively,
payment shall be made by wire transfer in immediately available funds to the
account designated by the Issuer.
(c) The right of the Series 200__ - __ Noteholders to receive
payments from the Issuer will terminate on the first Business Day following the
Series 200__ - __ Termination Date.
Section 3.15 SALE OF RECEIVABLES FOR ACCELERATED NOTES.
(i) If the Series 200__ - __ Notes have been accelerated
pursuant to Section 7.02 of the Indenture following an Event of
Default, each Holder of a Series 200__ - __ Note may notify the
Indenture Trustee that it desires to cause the Issuer to sell
Principal Receivables and the related Non-Principal Receivables, in
the amount described below. The sale can only occur if at least one of
the following conditions is met:
(A) the Holders of Series 200__ - __ Notes evidencing at
least 90% of the Outstanding Dollar Principal Amount of the
Series 200__ - __ Notes have notified the Indenture Trustee that
they desire to cause the Issuer to sell Principal Receivables and
the related Non-Principal Receivables in respect of their Series
200__ - __ Notes; or
(B) the Majority Holders of the Series 200__ - __ Notes
have notified the Indenture Trustee that they desire to cause the
Issuer to sell Principal Receivables and Non-Principal
Receivables in respect of their Series 200__ - __ Notes and the
net proceeds of the sale of Receivables pursuant to such sale (as
described below) plus amounts on deposit in the Principal Funding
Account would be sufficient to pay all amounts due on the Series
200__ - __ Notes; or
(C) (1) the Indenture Trustee determines that the funds to
be allocated to the Series 200__ - __ Notes, including (x) Series
200__ - __ Available Interest Amount and Series 200__ - __
Available Principal Amounts and (y) amounts on deposit in the
Principal Funding Account, may not be sufficient on an ongoing
basis to make payments on the Series 200__ - __ Notes as those
payments would have become due if the obligations had not been
declared due and payable and (2) Holders of Series 200__ - __
Notes evidencing at least 66 2/3% of the Outstanding Dollar
Principal Amount of the Series 200__ - __ Notes have notified the
Indenture Trustee that they desire to cause the Issuer to sell
Principal Receivables and Non-Principal Receivables in respect of
their Series 200__ - __ Notes.
20
If any of the conditions as provided in the preceding paragraph are met, the
Issuer will sell Principal Receivables and the related Non-Principal Receivables
on behalf of Holders of all Series 200__ - __ Notes, whether or not they have
actually requested that the Issuer sell Principal Receivables and the related
Non-Principal Receivables. If any of the conditions of the preceding paragraph
are met, the Indenture Trustee shall cause the Issuer to sell Principal
Receivables and the related Non-Principal Receivables (or interests therein) in
an amount not exceeding the Series 200 __ - __ Security Amount and the proceeds
of that sale, but only up to the Collateral Amount will be available to pay the
Outstanding Dollar Principal Amount [plus any past due interest on the Series
200__ - __ Notes], PROVIDED THAT the selection procedure used to determine which
Principal Receivables are to be sold shall not be materially adverse to any
other Series of Notes. The proceeds of such sale shall be applied in accordance
with Section 7.06 of the Indenture. The Holders of the Series 200__ - __ Notes
shall maintain their rights in their Series 200__ - __ Notes until such Holders
present their Series 200__ - __ Notes to the Issuer in accordance with Section
7.06 of the Indenture.
(b) If the Collateral Amount is greater than zero on the Legal Final
Maturity Date (after giving effect to deposits and distributions otherwise to be
made on the Legal Final Maturity Date), the Issuer will sell Principal
Receivables and the related Non-Principal Receivables on the Legal Final
Maturity Date in an amount up to the Collateral Amount plus any past due
interest on the Series 200__ - __ Notes.
(c) Sales proceeds received with respect to the Series 200__ - __
Notes pursuant to clause (b) above will be allocated in the following priority:
(i) first, to be deposited in the Principal Funding Account, an
amount up to the Collateral Amount of the Series 200__ - __ Notes
immediately before giving effect to such deposit, for payment, first,
to the Class A Noteholders on the related Payment Date until the Class
A Note Principal Balance has been paid in full and, second, to the
Class B Noteholders on the related Payment Date until the Class B Note
Principal Balance has been paid in full; and
(ii) second, to be deposited in the Interest Funding Account,
the balance of such sales proceeds.
(d) Any amount remaining on deposit in the Interest Funding Account
after a sale of Receivables pursuant to this Section 3.15 and the final payment
of the Series 200__ - __ Notes pursuant to Section 5.03 of the Indenture, will
be treated as part of the Series 200__ - __ Available Interest Amount.
Section 3.16 CALCULATION AGENT; DETERMINATION OF LIBOR.
(a) The Issuer hereby agrees that for so long as any Series 200__ -
__ Notes are Outstanding, there shall at all times be an agent appointed to
calculate LIBOR for each Interest Period (the "Calculation Agent"). The Issuer
hereby initially appoints the Indenture Trustee as the Calculation Agent for
purposes of determining LIBOR for each Interest Period. The Calculation Agent
may be removed by the Issuer at any time. If the Calculation Agent is unable or
unwilling to act as such or is removed by the Issuer, or if the Calculation
Agent fails to
21
promptly determine LIBOR for an Interest Period, the Issuer shall promptly
appoint a replacement Calculation Agent that does not control or is not
controlled by or under common control with the Issuer or its Affiliates. The
Calculation Agent may not resign its duties, and the Issuer may not remove the
Calculation Agent, without a successor having been duly appointed and having
accepted such appointment.
(b) On each LIBOR Determination Date, the Calculation Agent shall
determine LIBOR to equal the offered rate for Unites States dollar deposits for
one month that appears on Telerate Page 3750 as of 11:00 A.M., London time, on
the second LIBOR Business Day prior to the Interest Period. If that rate appears
on Telerate Page 3750, LIBOR will be that rate. If on any LIBOR Determination
Date the offered rate does not appear on Telerate page 3750, the Calculation
Agent will request each of the Reference Banks, to provide the Calculation Agent
with its offered quotation for United States dollar deposits for one month to
prime banks in the London interbank market as of 11:00 A.M., London time, on the
date. If at least two Reference Banks provide the Calculation Agent with the
offered quotations, LIBOR on that date will be the arithmetic mean, rounded
upwards, if necessary, to the nearest 1/100,000 of 1% (.0000001), with five
one-millionths of a percentage point rounded upward, of all the quotations. If
on that date fewer than two Reference Banks provide the Calculation Agent with
the offered quotations, LIBOR on that date will be the arithmetic mean, rounded
upwards, if necessary, to the nearest 1/100,000 of 1% (.0000001), with five
one-millionths of a percentage point rounded upward, of the offered per annum
rates that one or more leading banks in The City of
New York selected by the
Calculation Agent are quoting as of 11:00 A.M.,
New York City time, on that date
to leading European banks for United States dollar deposits for one month. If,
however, those banks are not quoting as described above, LIBOR for that date
will be LIBOR applicable to the Interest Period.
(c) The Series 200__ - __ Note Interest Rate, applicable to the then
current and the immediately preceding Interest Periods, may be obtained by
telephoning the Indenture Trustee at its Corporate Trust Office at (212) [ ] or
such other telephone number as shall be designated by the Indenture Trustee for
such purpose by prior written notice by the Indenture Trustee to each Series
200__ - __ Noteholder from time to time.
(d) On each LIBOR Determination Date, the Calculation Agent shall
send to the Indenture Trustee, by facsimile transmission, notification of LIBOR
for the following Interest Period.
Section 3.17 EXCESS AVAILABLE INTEREST AMOUNT SHARING.
(a) The Shared Excess Available Interest Amount allocable to Series
200__ - __ on any Payment Date shall be treated as part of the Series 200__ - __
Available Interest Amount for such Payment Date.
(b) The Shared Excess Available Interest Amount allocable to Series
200__ - __ with respect to any Payment Date shall mean an amount equal to the
Series 200__ - __ Available Interest Amount Shortfall, if any, for such Payment
Date; PROVIDED, HOWEVER, that if the aggregate amount of Shared Excess Available
Interest Amount for all series of Notes for such Payment Date is less than the
Aggregate Series Available Interest Amount Shortfall for
22
such Payment Date, then the Shared Excess Available Interest Amount allocable to
Series 200__ - __ on such Payment Date shall equal the product of (i) Shared
Excess Available Interest Amount for all series of Notes and (ii) a fraction,
the numerator of which is the Series Available Interest Amount Shortfall with
respect to Series 200__ - __ for such Payment Date and the denominator of which
is the aggregate amount of Aggregate Series Available Interest Amount Shortfall
for all series of Notes for such Payment Date.
(c) Any Shared Excess Available Interest Amount that are not required
to be applied to make a payment or deposit in respect of a series of Notes shall
be paid to the Issuer.
Section 3.18 EXCESS AVAILABLE PRINCIPAL AMOUNTS SHARING.
(a) The Shared Excess Available Principal Amount allocable to Series
200__ - __ on any Payment Date shall be treated as Series 200__ - __ Available
Principal Amounts for such Payment Date.
(b) The Shared Excess Available Principal Amount allocable to Series
200__ - __ with respect to any Payment Date shall mean an amount equal to the
Series Available Principal Amount Shortfall, if any, with respect to Series
200__ - __ for such Payment Date; PROVIDED, HOWEVER, that if the aggregate
amount of Shared Excess Available Principal Amounts for all series of Notes for
such Payment Date is less than the Aggregate Series Available Principal Amounts
Shortfall for such Payment Date, then Shared Excess Available Principal Amounts
allocable to Series 200__ - __ on such Payment Date shall equal the product of
(i) Shared Excess Available Principal Amounts for all series of Notes and (ii) a
fraction, the numerator of which is the Series Available Principal Amounts
Shortfall with respect to Series 200__ - __ for such Payment Date and the
denominator of which is the aggregate amount of Aggregate Series Available
Principal Amounts Shortfall for all series of Notes for such Payment Date.
(c) Any Shared Excess Available Principal Amounts not required to be
applied to make a payment or deposit in respect of a series of Notes shall be
deposited into the Excess Funding Account to the extent that the Adjusted Pool
Balance is less than the Required Pool Balance or the Transferor Amount is less
than the Trust Available Subordinated Amount and any amount remaining thereafter
paid to the Issuer shall be applied as Excess Available Principal Amounts
pursuant to the Indenture.
Section 3.19 COMPUTATION OF INTEREST.
(a) Interest on the Series 200__ - __ Notes shall be computed on the
basis of a 360-day year and the actual number of days elapsed in the related
Interest Period.
(b) Unless otherwise specified in this Indenture Supplement, interest
for any period will be calculated from and including the first day of such
period to but excluding the last day of such period.
Section 3.20 VARIABLE ACCUMULATION PERIOD.
23
The Servicer may elect, by written notice to the Indenture Trustee, to
delay, from time to time, the commencement of the Accumulation Period, and
extend the length of the Revolving Period, subject to the conditions set forth
in this Section 3.20; provided, however, that the Accumulation Period shall
commence no later than the first day of the Monthly Period ending immediately
prior to the Scheduled Final Payment Date. Any such election by the Servicer
shall be made not later than the first day of the last scheduled Monthly Period
of the Revolving Period (including any prior extension of the Revolving Period
pursuant to this Section 3.20). The Issuer or the Servicer may make such
election only if the following conditions are satisfied:
(i) the Servicer shall have delivered to the Indenture Trustee
a certificate to the effect that the Servicer reasonably believes that
the delay in the commencement of the Accumulation Period would not
result in the Outstanding Dollar Principal Amount of the Series 200__
- __ Notes not being paid in full on the Scheduled Final Payment Date;
(ii) the Rating Agencies shall have advised the Issuer that such
election to delay the commencement of the Accumulation Period would
not cause the rating of any class of any series of Notes then
outstanding to be lowered or withdrawn; and
(iii) the amount to be deposited in the Principal Funding Account
in respect of Controlled Accumulation Amount shall have been adjusted.
Notwithstanding anything herein or in the Indenture to the contrary, the
Administrator may, on behalf of the Issuer, (i) perform all such calculations as
are necessary to determine whether the Accumulation Period may be delayed
pursuant to this Section 3.20 and (ii) elect to delay the Accumulation Period
pursuant to this Section 3.20.
Section 3.21 PAYMENT INSTRUCTIONS AND MONTHLY NOTEHOLDERS' REPORT.
Notwithstanding anything in the Indenture or herein to the contrary, the Issuer
may amend the form of Payment Instruction for the Series 200__ - __ Notes and
the Series 200__ - __ Schedule to Monthly Noteholders' Statement from time to
time without the consent of the Indenture Trustee or any Noteholder with
evidence that the Rating Agency Condition has been satisfied with respect
thereto.
ARTICLE IV
EARLY AMORTIZATION OF NOTES
Section 4.01 EARLY AMORTIZATION EVENTS. In addition to the events
identified as Early Amortization Events in Section 12.01 of the Indenture, each
of the following events will also be an Early Amortization Event with respect to
the Series 200__ - __ Notes:
(1) failure on the part of the Transferor, the Servicer or
an Originator, as applicable, (i) to make any payment
or deposit (including any Transfer Deposit Amount or
Adjustment Payment) required by the terms of the
Transfer and Servicing Agreement or the Receivables
24
Purchase Agreement on or before the date occurring two
Business Days after the date such payment or deposit is
required to be made therein, or (ii) with respect to
any Series, to deliver a Payment Date Statement within
five Business Days of the day such item is due to be
delivered under the Transfer and Servicing Agreement,
or (iii) to comply with its agreement not to create any
lien on a Receivable, or (iv) duly to observe or
perform in any material respect any other covenants or
agreements of the Transferor or the Servicer, as the
case may be, set forth in the Transfer and Servicing
Agreement or the Receivables Purchase Agreement, which
failure in the case of this clause (iv) continues
unremedied for a period of 60 days after the date on
which written notice of such failure, requiring the
same to be remedied, shall have been given to the
Transferor by the Indenture Trustee or any Enhancement
Provider;
(2) any representation or warranty made by an Originator in
the Receivables Purchase Agreement or by the Transferor
in the Transfer and Servicing Agreement or any
information contained in a computer file or microfiche
or written list required to be delivered by the
Transferor pursuant to Section 2.01, 2.05, 2.07 or 2.08
of the Transfer and Servicing Agreement, (i) shall
prove to have been incorrect in any material respect
when made or when delivered, and shall continue to be
incorrect in any material respect for a period of 60
days after the date on which written notice of such
failure, requiring the same to be remedied, shall have
been given to the Transferor by the Indenture Trustee
and (ii) as a result of such incorrectness the
interests of the Noteholders are materially and
adversely affected; provided, however, that an Early
Amortization Event shall not be deemed to have occurred
under this paragraph if the Transferor has repurchased
the related Receivable or all such Receivables, if
applicable, during such period in accordance with the
provisions of the Transfer and Servicing Agreement;
(3) the occurrence of an Insolvency Event relating to CNH
Global N.V., Case, LLC or New Holland North America,
Inc.
(4) a failure by the Transferor to convey Receivables in
Additional Accounts to the Issuer within five Business
Days after the day on which it is required to convey
such Receivables pursuant to the Transfer and Servicing
Agreement;
(5) on any Payment Date, the Available Subordinated Amount
for such Payment Date is reduced to an amount less than
the Required Subordinated Amount (as calculated without
giving effect to any reductions or reinstatements,
except for reductions due to deposits to the Principal
Funding Account) on that Payment Date after
25
giving effect to the distributions to be made on such
Payment Date; provided that, for the purpose of
determining whether an Early Amortization Event has
occurred pursuant to this clause (5), any reduction of
the Available Subordinated Amount resulting from
reallocations of the Series 200__ - __ Available
Principal Amounts to pay interest on the Series 200__ -
__ Notes in the event LIBOR is equal to or greater than
the prime rate upon which interest on the Receivables
is calculated on the applicable LIBOR Determination
Date will be considered an Early Amortization Event
only if LIBOR remains equal to or greater than such
prime rate for the next 30 consecutive days following
such LIBOR Determination Date ;
(6) any Servicer Default occurs;
(7) on any Determination Date, the average of the Monthly
Payment Rates for the three preceding Collection
Periods is less than [__] %;
(8) the Outstanding Dollar Principal Amount is not repaid
by the Scheduled Final Payment Date;
(9) the Issuer becomes an "investment company" within the
meaning of the Investment Company Act;
(10) the occurrence of an Event of Default and acceleration
with respect of the Series 200__ - __ Notes; and
(11) the balance in the Excess Funding Account is great than
[ ]% of the Adjusted Pool Balance for any three
consecutive Collection Periods.
Notwithstanding the foregoing in this Section 4.01, in the case of any
event described in clause (1), (2) or (6) above, an Early Amortization Event
with respect to Series 200__ - __ will be deemed to have occurred only if, after
the applicable grace period described in such clause, if any, either the
Indenture Trustee or Series 200__ - __ Noteholders holding Series 200__ - __
Notes evidencing more than 50% of the Outstanding Dollar Principal Amount of the
Series 200__ - __ Notes by written notice to the Transferor, the Servicer, the
Owner Trustee and the Indenture Trustee, if given by Series 200__ - __
Noteholders, declare that an Early Amortization Event with respect to the Series
200__ - __ Notes has occurred as of the date of that notice. In the case of any
Early Amortization Event described in Section 12.01(a) or (b) of the Indenture
or any event described in clause (3), (4), (5), (7), (8), (9), (10) or (11)
above, an Early Amortization Event with respect to the Series 200__ - __ Notes
shall be deemed to have occurred without any notice or other action on the part
of the Indenture Trustee or the Series 200__ - __ Noteholders immediately upon
the occurrence of such event.
Notwithstanding the foregoing in this Section 4.01, if (x) an Early
Amortization Period results from the failure by the Transferor to convey
Receivables in Additional Accounts
26
to the Issuer, as described in clause (4) above during the Revolving Period, (y)
no other Early Amortization Event that has not been cured or waived in
accordance with the Indenture has occurred [and (z) with evidence that the
Rating Agency Condition has been satisfied with respect thereto], then the Early
Amortization Period resulting from such failure will terminate and the Revolving
Period will recommence as of the end of the first Collection Period during which
the Transferor would no longer be required to convey Receivables in Additional
Accounts to the Issuer; provided that the Revolving Period will not recommence
if the scheduled termination date of the Revolving Period has occurred.
Notwithstanding the foregoing in this Section 4.01, if an Early
Amortization Event (other than the Early Amortization Event specified in clause
(3) above and any of the Early Amortization Events specified in Section 12.01(a)
of the Indenture) has occurred and the scheduled termination of the Revolving
Period has not occurred, the Indenture Trustee shall request from S&P's a
confirmation that such Early Amortization Event will not cause a Ratings Effect.
If the Indenture Trustee receives such confirmation and the Holders of the
Series 200_-_ Notes evidencing more than 50% of the Outstanding Dollar Principal
Amount of the Series 200_-_ Notes consent to the recommencement of the Revolving
Period, the related Early Amortization Period shall terminate and the Revolving
Period shall recommence.
ARTICLE V
ACCOUNTS AND INVESTMENTS
Section 5.01 ACCOUNTS.
(a) ACCOUNTS; DEPOSITS TO AND DISTRIBUTIONS FROM ACCOUNTS. On or
before the Issuance Date, the Indenture Trustee will cause to be established and
maintained the Qualified Accounts denominated as follows: the "Interest Funding
Account", the "Principal Funding Account" and the "Reserve Fund" (collectively,
the "Series 200__ - __ Accounts") in the name of the Indenture Trustee, bearing
a designation clearly indicating that the funds deposited therein are held for
the benefit of the Series 200__ - __ Noteholders. The Series 200__ - __ Accounts
constitute Supplemental Accounts and shall be under the sole dominion and
control of the Indenture Trustee for the benefit of the Series 200__ - __
Noteholders. If, at any time, the institution holding any Series 200__ - __
Account ceases to be a Qualified Institution, the Issuer will within ten (10)
Business Days (or such longer period, not to exceed thirty (30) calendar days,
as to which each Rating Agency may consent) establish a new applicable Series
200__ - __ Account, that is a Qualified Account and shall transfer any cash
and/or investments to such new Series 200__ - __ Account. From the date such new
Series 200__ - __ Account is established, it will be a Series 200__ - __
Account, bearing the name of the Series 200__ - __ Account it has replaced.
(b) TIMING OF PAYMENTS; RESERVE FUND. All payments to be made from
time to time by the Indenture Trustee to Series 200__ - __ Noteholders out of
funds in the Series 200__ - __ Accounts pursuant to this Indenture Supplement
will be made by the Indenture Trustee to the Paying Agent not later than 12:00
noon on the applicable Interest Payment Date or Principal Payment Date but only
to the extent of funds in the applicable Account or as otherwise
27
provided in Article III. Any amounts that are on deposit in the Reserve Fund
when the Reserve Fund Required Amount is $0 shall be distributed to the holders
of the Transferor Interest.
28
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
Supplement to be duly executed as of the day and year first above written.
CNH WHOLESALE MASTER NOTE TRUST,
By: The Bank of
New York, not in its individual
capacity, but solely as Owner Trustee
By:
-------------------------------------------
Name:
Title:
JPMORGAN CHASE BANK, as Indenture Trustee and
not in its individual capacity
By:
-------------------------------------------
Name:
Title:
Acknowledged and Accepted:
CASE CREDIT CORPORATION,
a servicer
By:
-------------------------------------------
Name:
Title:
S-1
INDENTURE SUPPLEMENT
EXHIBIT A-1
[FORM OF] SERIES [___]CLASS A FLOATING RATE ASSET-BACKED NOTE
UNLESS THIS CLASS A NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CLASS A
NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE HOLDER OF THIS CLASS A NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND
AGREES THAT IT WILL NOT AT ANY TIME INSTITUTE AGAINST THE ISSUER OR
CNH
WHOLESALE RECEIVABLES INC., OR JOIN IN ANY INSTITUTION AGAINST THE ISSUER OR
CNH
WHOLESALE RECEIVABLES INC. OF, ANY BANKRUPTCY PROCEEDINGS UNDER ANY UNITED
STATES FEDERAL OR STATE BANKRUPTCY OR SIMILAR LAW IN CONNECTION WITH ANY
OBLIGATIONS RELATING TO THE NOTES OR THE INDENTURE.
THE HOLDER OF THIS CLASS A NOTE, BY ACCEPTANCE OF THIS CLASS A NOTE,
AND EACH HOLDER OF A BENEFICIAL INTEREST IN THIS CLASS A NOTE, BY THE
ACQUISITION OF A BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE NOTES AS
INDEBTEDNESS OF THE ISSUER FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND
FRANCHISE TAX LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON OR MEASURED BY
INCOME.
THE HOLDER OF THIS CLASS A NOTE SHALL BE DEEMED TO REPRESENT AND
WARRANT THAT EITHER (I) IT IS NOT ACQUIRING THE CLASS A NOTE WITH THE PLAN
ASSETS OF AN "EMPLOYEE BENEFIT PLAN" AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), WHICH IS SUBJECT
TO TITLE I OF ERISA, A "PLAN" AS DEFINED IN SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), AN ENTITY DEEMED TO HOLD THE PLAN ASSETS
OF ANY OF THE FOREGOING BY REASON OF INVESTMENT BY AN EMPLOYEE BENEFIT PLAN OR
PLAN IN SUCH ENTITY, OR A GOVERNMENTAL PLAN SUBJECT TO APPLICABLE LAW THAT IS
SUBSTANTIALLY SIMILAR TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR
SECTION 4975 OF THE CODE (EACH SUCH ENTITY A "BENEFIT PLAN"); OR (II) THE
ACQUISITION AND HOLDING OF THE CLASS A NOTE WILL NOT GIVE RISE TO A NON-EXEMPT
PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
(OR, IN THE CASE OF A GOVERNMENTAL PLAN, ANY SUBSTANTIALLY SIMILAR APPLICABLE
LAW).
A-1-1
REGISTERED $_________ No. __
CUSIP NO. __________
CNH WHOLESALE MASTER NOTE TRUST
CLASS A FLOATING RATE ASSET BACKED NOTES, SERIES [___]
CNH Wholesale Master Note Trust, a statutory trust created under the
laws of the State of Delaware (herein referred to as the "Issuer"), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, subject
to the following provisions, a principal sum of _______________________ payable
on the __________ ____ Payment Date (the "Scheduled Final Payment Date"), except
as otherwise provided below or in the Indenture; provided, however, that the
entire unpaid principal amount of this Class A Note shall be due and payable on
the _________ ____ Payment Date (the "Legal Final Maturity Date"). Interest will
accrue on this Class A Note from each Interest Payment Date (or, in the case of
the first Interest Payment Date, from the date of issuance of this Class A Note)
to but excluding the following Interest Payment Date. Interest will be computed
on the basis of a 360-day year and the actual number of days elapsed. Such
principal of and interest on this Class A Note shall be paid in the manner
specified on the reverse hereof.
The principal of and interest on this Class A Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Class A Note shall be applied first to interest due
and payable on this Class A Note as provided above and then to the unpaid
principal of this Class A Note.
Reference is made to the further provisions of this Class A Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Class A Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Class A
Note shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
A-1-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
CNH WHOLESALE MASTER NOTE TRUST,
as Issuer
By: The Bank of
New York, not in its
individual capacity but solely as
Owner Trustee under the Trust Agreement
By:
Name:
Title:
Date: _______ __, 200[ ]
A-1-3
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
JPMORGAN CHASE BANK, not in its individual
capacity but solely as Indenture Trustee
By:
Name:
Title:
Date: ____________ __, 200[ ]
A-1-4
[REVERSE OF NOTE]
This Class A Note is one of the Notes of a duly authorized issue of
Notes of the Issuer, designated as its CNH Wholesale Master Note Trust
Asset-Backed Notes Series 200_-_ (herein called the "Notes"), all issued under
an Indenture dated as of ________ __, 2003 (such indenture, as supplemented or
amended, is herein called the "Indenture"), as supplemented by an Indenture
Supplement dated as of ______ __, 200[ ] (the "Indenture Supplement"), between
the Issuer and [_________________], as indenture trustee (the "Indenture
Trustee", which term includes any successor Indenture Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuer, the Indenture Trustee and the Holders of the Notes.
The Notes are subject to all terms of the Indenture and the Indenture
Supplement. All terms used in this Class a Notes that are defined in the
Indenture or the Indenture Supplement, each as supplemented or amended, shall
have the meanings assigned to them in or pursuant to the Indenture or the
Indenture Supplement, as so supplemented or amended.
The Class B Notes and the Class C Notes will also be issued under the
Indenture.
Principal of the Class A Notes will be payable on the Expected
Principal Payment Date in an amount described on the face hereof.
As described above, the entire unpaid principal amount of this Class A
Note shall be due and payable on the Legal Final Maturity Date. Notwithstanding
the foregoing, the entire unpaid principal amount of the Notes may be due and
payable following an Event of Default in the manner provided in SECTION 7.02 of
the Indenture; provided, however, that such acceleration of the entire unpaid
principal amount of the Notes may be rescinded by the holders of not less than a
majority of the Outstanding Dollar Principal Amount of the Notes. All principal
payments on the Class A Notes shall be made pro rata to the Class A Noteholders
entitled thereto.
On any day occurring on or after the date on which the aggregate
Collateral Amount of the Notes is reduced to less than [ ]% of its Initial
Dollar Principal Amount, the Servicer has the right, but not the obligation, to
redeem the Notes in whole but not in part, pursuant to SECTION 12.02 of the
Indenture equal the Outstanding Dollar Principal Amount of the Notes, plus
interest accrued and unpaid to but excluding the date of redemption.
On each Payment Date, the Paying Agent shall distribute to each Class A
Noteholder of record on the related Record Date (except for the final
distribution with respect to this Class A Note) such Class A Noteholder's pro
rata share of the amounts held by the Paying Agent that are allocated and
available on such Payment Date to pay interest and principal on the Class A
Notes. Final payments of this Class A Note will be made only upon presentation
and surrender of this Class A Note at the office or offices therein specified.
Payments of interest on this Class A Note due and payable on each
Payment Date, together with the installment of principal, if any, to the extent
not in full payment of this Class A Note, shall be made by check mailed to the
Person whose name appears as the Registered Holder of this Class A Note(or one
or more Predecessor Notes) on the Note Register as of the close of business on
each Record Date, except that with respect to Notes registered on the Record
Date in
A-1-5
the name of the nominee of the clearing agency (initially, such nominee to be
Cede & Co.), payments will be made by wire transfer in immediately available
funds to the account designated by such nominee. Such checks shall be mailed to
the Person entitled thereto at the address of such Person as it appears on the
Note Register as of the applicable Record Date without requiring that this Class
A Note be submitted for notation of payment. Any reduction in the principal
amount of this Class A Note(or any one or more Predecessor Notes) effected by
any payments made on any Payment Date shall be binding upon all future Holders
of this Class A Note and of any Class A Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof, whether or not noted
hereon. If funds are expected to be available, as provided in the Indenture, for
payment in full of the then remaining unpaid principal amount of this Class A
Note on a Payment Date, then the Indenture Trustee, in the name of and on behalf
of the Issuer, will notify the Person who was the Registered Holder hereof as of
the Record Date preceding such Payment Date by notice mailed within five days of
such Payment Date and the amount then due and payable shall be payable only upon
presentation and surrender of this Class A Note at the Indenture Trustee's
principal Corporate Trust Office or at the office of the Indenture Trustee's
agent appointed for such purposes located in the City of
New York.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Class A Note may be registered on the Note
Register upon surrender of this Class A Note for registration of transfer at the
office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or his
attorney duly authorized in writing, with such signature guaranteed by a
commercial bank or trust company located, or having a correspondent located, in
the City of
New York or the city in which the Corporate Trust Office is located,
or a member firm of a national securities exchange, and such other documents as
the Indenture Trustee may require, and thereupon one or more new Notes of
authorized denominations and in the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Class A Note, but
the transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Class A Note or, in
the case of a Note Owner, a beneficial interest in a Class A Note covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee in
its individual capacity, (ii) any owner of a beneficial interest in the Issuer
or (iii) any partner, owner, beneficiary, agent, officer, director or employee
of the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
A-1-6
Each Noteholder or Note Owner, by acceptance of a Class A Note or, in
the case of a Note Owner, a beneficial interest in a Class A Note, covenants and
agrees that by accepting the benefits of the Indenture that such Noteholder that
it will not at any time institute against
CNH Wholesale Receivables Inc. or the
Issuer, or join in any institution against
CNH Wholesale Receivables Inc.or the
Issuer 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 Notes, the Indenture or any Enhancement Agreement.
Prior to the due presentment for registration of transfer of this Class
A Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Class A Note (as of
the day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Class A Note is overdue, and neither the Issuer, the Indenture Trustee nor
any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing not
less than a majority of the Outstanding Dollar Principal Amount of all Notes at
the time Outstanding. The Indenture also contains provisions permitting the
Holders of Notes representing specified percentages of the Outstanding Dollar
Principal Amount of the Notes, on behalf of the Holders of all the Notes, to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Class A Note (or any one of more
Predecessor Notes) shall be conclusive and binding upon such Holder and upon all
future Holders of this Class A Note and of any Note issued upon the registration
of transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent or waiver is made upon this Class A Note. The Indenture
also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The term "Issuer" as used in this Class A Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
The Class A Notes are issuable only in registered form in denominations
as provided in the Indenture, subject to certain limitations therein set forth.
THIS CLASS A NOTE AND THE INDENTURE WILL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW) AND
A-1-7
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
No reference herein to the Indenture and no provision of this Class A
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Class A Note at the times, place, and rate, and in the coin or currency
herein prescribed.
No recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer on the Notes or under the Indenture or any certificate
or other writing delivered in connection herewith or therewith, against (i) the
Owner Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director, employee or agent of the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer or the Owner Trustee or of any
successor or assign of the Owner Trustee in its individual capacity, except as
any such Person may have expressly agreed (it being understood that the Owner
Trustee has no such obligations in its individual capacity). The Holder of this
Class A Note by the acceptance hereof agrees that, except as expressly provided
in the Indenture and the Indenture Supplement in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the foregoing
for any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Class A Note.
A-1-8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
__________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(name and address of
assignee)___________________________________________________________ the within
Class A Note and all rights thereunder, and hereby irrevocably constitutes and
appoints attorney, to transfer said Class A Note on the books kept for
registration thereof, with full power of substitution in the premises.
Dated: ________________________ _________________________________ *
Signature Guaranteed:
--------------------
* NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Class A Note in every
particular, without alteration, enlargement or any change whatsoever.
A-1-9
INDENTURE SUPPLEMENT
EXHIBIT A-2
[FORM OF] SERIES [___]CLASS B FLOATING RATE ASSET-BACKED NOTE
UNLESS THIS CLASS B NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CLASS B
NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE HOLDER OF THIS CLASS B NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND
AGREES THAT IT WILL NOT AT ANY TIME INSTITUTE AGAINST THE ISSUER OR
CNH
WHOLESALE RECEIVABLES INC., OR JOIN IN ANY INSTITUTION AGAINST THE ISSUER OR
CNH
WHOLESALE RECEIVABLES INC. OF, ANY BANKRUPTCY PROCEEDINGS UNDER ANY UNITED
STATES FEDERAL OR STATE BANKRUPTCY OR SIMILAR LAW IN CONNECTION WITH ANY
OBLIGATIONS RELATING TO THE NOTES OR THE INDENTURE.
THE HOLDER OF THIS CLASS B NOTE, BY ACCEPTANCE OF THIS CLASS B NOTE,
AND EACH HOLDER OF A BENEFICIAL INTEREST IN THIS CLASS B NOTE, BY THE
ACQUISITION OF A BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE NOTES AS
INDEBTEDNESS OF THE ISSUER FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND
FRANCHISE TAX LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON OR MEASURED BY
INCOME.
THE HOLDER OF THIS CLASS B NOTE SHALL BE DEEMED TO REPRESENT AND
WARRANT THAT EITHER (I) IT IS NOT ACQUIRING THE CLASS B NOTE WITH THE PLAN
ASSETS OF AN "EMPLOYEE BENEFIT PLAN" AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), WHICH IS SUBJECT
TO TITLE I OF ERISA, A "PLAN" AS DEFINED IN SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), AN ENTITY DEEMED TO HOLD THE PLAN ASSETS
OF ANY OF THE FOREGOING BY REASON OF INVESTMENT BY AN EMPLOYEE BENEFIT PLAN OR
PLAN IN SUCH ENTITY, OR A GOVERNMENTAL PLAN SUBJECT TO APPLICABLE LAW THAT IS
SUBSTANTIALLY SIMILAR TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR
SECTION 4975 OF THE CODE (EACH SUCH ENTITY A "BENEFIT PLAN"); OR (II) THE
ACQUISITION AND HOLDING OF THE CLASS B NOTE WILL NOT GIVE RISE TO A NON-EXEMPT
PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
(OR, IN THE CASE OF A GOVERNMENTAL PLAN, ANY SUBSTANTIALLY SIMILAR APPLICABLE
LAW).
A-2-1
REGISTERED $_________ No. __
CUSIP NO. __________
CNH WHOLESALE MASTER NOTE TRUST
CLASS B FLOATING RATE ASSET BACKED NOTES, SERIES [___]
CNH Wholesale Master Note Trust, a statutory trust created under the
laws of the State of Delaware (herein referred to as the "Issuer"), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, subject
to the following provisions, a principal sum of _______________________ payable
on the __________ ____ Payment Date (the "Scheduled Final Payment Date"), except
as otherwise provided below or in the Indenture; provided, however, that the
entire unpaid principal amount of this Class B Note shall be due and payable on
the _________ ____ Payment Date (the "Legal Final Maturity Date"). Interest will
accrue on this Class B Note from each Interest Payment Date (or, in the case of
the first Interest Payment Date, from the date of issuance of this Class B Note)
to but excluding the following Interest Payment Date. Interest will be computed
on the basis of a 360-day year and the actual number of days elapsed. Such
principal of and interest on this Class B Note shall be paid in the manner
specified on the reverse hereof.
The principal of and interest on this Class B Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Class B Note shall be applied first to interest due
and payable on this Class B Note as provided above and then to the unpaid
principal of this Class B Note.
Reference is made to the further provisions of this Class B Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Class B Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Class B
Note shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
A-2-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
CNH WHOLESALE MASTER NOTE TRUST,
as Issuer
By: The Bank of New York, not in its
individual capacity but solely as Owner
Trustee under the Trust Agreement
By:
Name:
Title:
Date: _______ __, 200[ ]
A-2-3
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
JPMORGAN CHASE BANK, not in its individual
capacity but solely as Indenture Trustee
By:
Name:
Title:
Date: ____________ __, 200[ ]
A-2-4
[REVERSE OF NOTE]
This Class B Note is one of the Notes of a duly authorized issue of
Notes of the Issuer, designated as its CNH Wholesale Master Note Trust
Asset-Backed Notes Series 200_-_ (herein called the "Notes"), all issued under
an Indenture dated as of ________ __, 2003 (such indenture, as supplemented or
amended, is herein called the "Indenture"), as supplemented by an Indenture
Supplement dated as of ______ __, 200[ ] (the "Indenture Supplement"), between
the Issuer and [_________________], as indenture trustee (the "Indenture
Trustee", which term includes any successor Indenture Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuer, the Indenture Trustee and the Holders of the Notes.
The Notes are subject to all terms of the Indenture and the Indenture
Supplement. All terms used in this Class B Note that are defined in the
Indenture or the Indenture Supplement, each as supplemented or amended, shall
have the meanings assigned to them in or pursuant to the Indenture or the
Indenture Supplement, as so supplemented or amended.
The Class A Notes and the Class C Notes will also be issued under the
Indenture.
Principal of the Class B Notes will be payable on the Expected
Principal Payment Date in an amount described on the face hereof.
As described above, the entire unpaid principal amount of this Class B
Note shall be due and payable on the Legal Final Maturity Date. Notwithstanding
the foregoing, the entire unpaid principal amount of the Notes may be due and
payable following an Event of Default in the manner provided in SECTION 7.02 of
the Indenture; provided, however, that such acceleration of the entire unpaid
principal amount of the Notes may be rescinded by the holders of not less than a
majority of the Outstanding Dollar Principal Amount of the Notes. All principal
payments on the Class B Notes shall be made pro rata to the Noteholders entitled
thereto.
THIS CLASS B NOTE IS SUBORDINATED TO THE EXTENT NECESSARY TO FUND
PAYMENTS ON THE CLASS A NOTES TO THE EXTENT SPECIFIED IN THE INDENTURE
SUPPLEMENT.
On any day occurring on or after the date on which the aggregate
Collateral Amount of the Notes is reduced to less than [ ]% of its Initial
Dollar Principal Amount, the Servicer has the right, but not the obligation, to
redeem the Notes in whole but not in part, pursuant to SECTION 12.02 of the
Indenture equal the Outstanding Dollar Principal Amount of the Notes, plus
interest accrued and unpaid to but excluding the date of redemption.
On each Payment Date, the Paying Agent shall distribute to each Class B
Noteholder of record on the related Record Date (except for the final
distribution with respect to this Class B Note) such Class B Noteholder's pro
rata share of the amounts held by the Paying Agent that are allocated and
available on such Payment Date to pay interest and principal on the Class B
Notes. Final payments of this Class B Note will be made only upon presentation
and surrender of this Class B Note at the office or offices therein specified.
A-2-5
Payments of interest on this Class B Note due and payable on each
Payment Date, together with the installment of principal, if any, to the extent
not in full payment of this Class B Note, shall be made by check mailed to the
Person whose name appears as the Registered Holder of this Class B Note(or one
or more Predecessor Notes) on the Note Register as of the close of business on
each Record Date, except that with respect to Notes registered on the Record
Date in the name of the nominee of the clearing agency (initially, such nominee
to be Cede & Co.), payments will be made by wire transfer in immediately
available funds to the account designated by such nominee. Such checks shall be
mailed to the Person entitled thereto at the address of such Person as it
appears on the Note Register as of the applicable Record Date without requiring
that this Class B Note be submitted for notation of payment. Any reduction in
the principal amount of this Class B Note(or any one or more Predecessor Notes)
effected by any payments made on any Payment Date shall be binding upon all
future Holders of this Class B Note and of any Class B Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not noted hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Class B Note on a Payment Date, then the Indenture Trustee, in the name of
and on behalf of the Issuer, will notify the Person who was the Registered
Holder hereof as of the Record Date preceding such Payment Date by notice mailed
within five days of such Payment Date and the amount then due and payable shall
be payable only upon presentation and surrender of this Class B Note at the
Indenture Trustee's principal Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in the City of New
York.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Class B Note may be registered on the Note
Register upon surrender of this Class B Note for registration of transfer at the
office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or his
attorney duly authorized in writing, with such signature guaranteed by a
commercial bank or trust company located, or having a correspondent located, in
the City of New York or the city in which the Corporate Trust Office is located,
or a member firm of a national securities exchange, and such other documents as
the Indenture Trustee may require, and thereupon one or more new Notes of
authorized denominations and in the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Class B Note, but
the transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Class B Note or, in
the case of a Note Owner, a beneficial interest in a Class B Note covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee in
its individual capacity, (ii) any owner of a beneficial interest in the Issuer
or (iii) any partner, owner, beneficiary, agent, officer, director or employee
of the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed and except that any
A-2-6
such partner, owner or beneficiary shall be fully liable, to the extent provided
by applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Class B Note or, in
the case of a Note Owner, a beneficial interest in a Class B Note, covenants and
agrees that by accepting the benefits of the Indenture that such Noteholder that
it will not at any time institute against
CNH Wholesale Receivables Inc. or the
Issuer, or join in any institution against
CNH Wholesale Receivables Inc. or the
Issuer 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 Notes, the Indenture or any Enhancement Agreement.
Prior to the due presentment for registration of transfer of this Class
B Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Class B Note (as of
the day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Class B Note is overdue, and neither the Issuer, the Indenture Trustee nor
any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing not
less than a majority of the Outstanding Dollar Principal Amount of all Notes at
the time Outstanding. The Indenture also contains provisions permitting the
Holders of Notes representing specified percentages of the Outstanding Dollar
Principal Amount of the Notes, on behalf of the Holders of all the Notes, to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Class B Note (or any one of more
Predecessor Notes) shall be conclusive and binding upon such Holder and upon all
future Holders of this Class B Note and of any Note issued upon the registration
of transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent or waiver is made upon this Class B Note. The Indenture
also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The term "Issuer" as used in this Class B Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
The Class B Notes are issuable only in registered form in denominations
as provided in the Indenture, subject to certain limitations therein set forth.
A-2-7
THIS CLASS B NOTE AND THE INDENTURE WILL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
No reference herein to the Indenture and no provision of this Class B
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Class B Note at the times, place, and rate, and in the coin or currency
herein prescribed.
No recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer on the Notes or under the Indenture or any certificate
or other writing delivered in connection herewith or therewith, against (i) the
Owner Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director, employee or agent of the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer or the Owner Trustee or of any
successor or assign of the Owner Trustee in its individual capacity, except as
any such Person may have expressly agreed (it being understood that the Owner
Trustee has no such obligations in its individual capacity). The Holder of this
Class B Note by the acceptance hereof agrees that, except as expressly provided
in the Indenture and the Indenture Supplement in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the foregoing
for any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Class B Note.
A-2-8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
___________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(name and address of assignee) _______________________________________ the
within Class B Note and all rights thereunder, and hereby irrevocably
constitutes and appoints attorney, to transfer said Class B Note on the books
kept for registration thereof, with full power of substitution in the
premises.
Dated: ________________________ __________________________________ *
Signature Guaranteed:
--------------------
* NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Class B Note in every
particular, without alteration, enlargement or any change whatsoever.
A-2-9
