CASE EQUIPMENT LOAN TRUST 1997-A
TRUST AGREEMENT
between
CASE RECEIVABLES II INC.
and
CHASE MANHATTAN BANK DELAWARE,
as Trustee
Dated as of March 1, 1997
Table of Contents
Page
ARTICLE I
Definitions
SECTION 1.1. Capitalized Terms..................................1
SECTION 1.2. Other Definitional Provisions......................3
ARTICLE II
Organization
SECTION 2.1. Name...............................................4
SECTION 2.2. Office.............................................4
SECTION 2.3. Purposes and Powers................................4
SECTION 2.4. Appointment of Trustee.............................5
SECTION 2.5. Initial Capital Contribution of Trust Estate.......5
SECTION 2.6. Declaration of Trust...............................5
SECTION 2.7. Liability of the Certificateholders................5
SECTION 2.8. Title to Trust Property............................5
SECTION 2.9. Situs of Trust.....................................6
SECTION 2.10. Representations and Warranties of the Depositor...6
SECTION 2.11. Federal Income Tax Allocations....................7
ARTICLE III
Trust Certificates and Transfer of Interests
SECTION 3.1. Initial Ownership..................................8
SECTION 3.2. The Trust Certificates.............................8
SECTION 3.3. Authentication of Trust Certificates...............8
SECTION 3.4. Registration of Transfer and Exchange of Trust
Certificates....................................8
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Trust
Certificates...................................10
SECTION 3.6. Persons Deemed Certificateholders.................10
SECTION 3.7. Access to List of Certificateholders' Names and
Addresses......................................10
SECTION 3.8. Maintenance of Office or Agency...................11
SECTION 3.9. Appointment of Paying Agent.......................11
ARTICLE IV
Actions by Trustee
SECTION 4.1. Prior Notice to Certificateholders with Respect to
Certain Matters.................................12
SECTION 4.2. Action by Certificateholders with Respect to Certain
Matters.........................................13
SECTION 4.3. Action by Certificateholders with Respect to
Bankruptcy......................................13
SECTION 4.4. Restrictions on Certificateholders' Power.........13
SECTION 4.5. Majority Control..................................13
ARTICLE V
Application of Trust Funds; Certain Duties
SECTION 5.1. Establishment of Trust Account....................14
SECTION 5.2. Applications of Trust Funds.......................14
SECTION 5.3. Method of Payment.................................15
SECTION 5.4. No Segregation of Moneys; No Interest.............15
SECTION 5.5. Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue
Service and Others.............................15
SECTION 5.6. Signature on Returns; Tax Matters Partner.........15
ARTICLE VI
Authority and Duties of Trustee
SECTION 6.1. General Authority.................................16
SECTION 6.2. General Duties....................................16
SECTION 6.3. Action upon Instruction...........................16
SECTION 6.4. No Duties Except as Specified in this Agreement or
in Instructions................................17
SECTION 6.5. No Action Except Under Specified Documents or
Instructions...................................18
SECTION 6.6. Restrictions......................................18
ARTICLE VII
Concerning the Trustee
SECTION 7.1. Acceptance of Trusts and Duties...................18
SECTION 7.2. Furnishing of Documents...........................20
SECTION 7.3. Representations and Warranties....................20
SECTION 7.4. Reliance; Advice of Counsel.......................20
SECTION 7.5. Not Acting in Individual Capacity.................21
SECTION 7.6. Trustee Not Liable for Trust Certificates or
Receivables....................................21
SECTION 7.7. Trustee May Not Own Notes.........................22
ARTICLE VIII
Compensation of Trustee
SECTION 8.1. Trustee's Fees and Expenses.......................22
SECTION 8.2. Indemnification...................................22
SECTION 8.3. Payments to the Trustee...........................23
ARTICLE IX
Termination of Trust Agreement
SECTION 9.1. Termination of Trust Agreement....................23
ARTICLE X
Successor Trustees and Additional Trustees
SECTION 10.1. Eligibility Requirements for Trustee.............24
SECTION 10.2. Resignation or Removal of Trustee................25
SECTION 10.3. Successor Trustee................................25
SECTION 10.4. Merger or Consolidation of Trustee...............26
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee....26
ARTICLE XI
Miscellaneous
SECTION 11.1. Supplements and Amendments.......................28
SECTION 11.2. No Legal Title to Trust Estate in
Certificateholders............................29
SECTION 11.3. Limitations on Rights of Others..................29
SECTION 11.4. Notices..........................................29
SECTION 11.5. Severability.....................................30
SECTION 11.6. Separate Counterparts............................30
SECTION 11.7. Successors and Assigns...........................30
SECTION 11.8. Covenants of the Depositor.......................30
SECTION 11.9. No Petition......................................31
SECTION 11.10. No Recourse.....................................31
SECTION 11.11. Headings........................................31
SECTION 11.12. Governing Law...................................31
SECTION 11.13. Administrator...................................31
EXHIBITS
EXHIBIT A Form of Trust Certificate
EXHIBIT B Form of Certificate of Trust
TRUST AGREEMENT dated as of March 1, 1997, between CASE RECEIVABLES II
INC., a Delaware corporation, as Depositor, and CHASE MANHATTAN BANK
DELAWARE, a Delaware banking corporation, as Trustee.
ARTICLE I.
Definitions
SECTION A. Capitalized Terms. For all purposes of this Agreement, the
following terms shall have the meanings set forth below:
"Agreement" shall mean this Trust Agreement, as the same may be
amended and supplemented from time to time.
"Basic Documents" shall mean the Purchase Agreement, the Sale and
Servicing Agreement, the Indenture, the Administration Agreement, the
Depository Agreement and the other documents and certificates delivered in
connection therewith.
"Benefit Plan" shall have the meaning assigned to such term in Section
3.4.
"Certificate Distribution Account" shall have the meaning assigned to
such term in Section 5.1.
"Certificateholder" shall mean a Person in whose name a Trust
Certificate is registered.
"Certificate of Trust" shall mean the Certificate of Trust
substantially in the form of Exhibit B to be filed for the Trust pursuant to
Section 3810(a) of the Trust Statute.
"Certificate Register" and "Certificate Registrar" shall mean the
register mentioned and the registrar appointed pursuant to Section 3.4.
"Corporate Trust Office" shall mean, with respect to the Trustee, the
principal corporate trust office of the Trustee located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Department;
or at such other address as the Trustee may designate from time to time by
notice to the Certificateholders and the Depositor, or the principal
corporate trust office of any successor Trustee (the address of which the
successor Trustee will notify the Certificateholders and the Depositor).
"Depositor" shall mean the Seller in its capacity as Depositor
hereunder.
"Expenses" shall have the meaning assigned to such term in Section
8.2.
"Holder" shall mean a Certificateholder.
"Indemnified Parties" shall have the meaning assigned to such term in
Section 8.2.
"Initial Certificate Balance" shall mean the amount specified as the
Initial Certificate Balance in a letter of instruction from the Depositor to
the Trustee.
"Paying Agent" shall mean any paying agent or co-paying agent
appointed pursuant to Section 3.9, and shall initially be The Chase
Manhattan Bank.
"Record Date" shall mean, with respect to any Payment Date, the close
of business on the last day of the calendar month preceding the month of
such Payment Date.
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement among the Trust, the Depositor, as Seller, and Credit, as
Servicer, dated as of the date hereof, as the same may be amended and
supplemented from time to time.
"Secretary of State" shall mean the Secretary of State of the State of
Delaware.
"Treasury Regulations" shall mean regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary regulations shall include
analogous provisions of final Treasury Regulations or other successor
Treasury Regulations.
"Trust" shall mean the trust established by this Agreement.
"Trust Certificate" shall mean a certificate evidencing the beneficial
interest of a Certificateholder in the Trust, substantially in the form
attached hereto as Exhibit A.
"Trustee" shall mean Chase Manhattan Bank Delaware, a Delaware banking
corporation, not in its individual capacity but solely as trustee under this
Agreement, and any successor Trustee hereunder.
"Trust Estate" shall mean all right, title and interest of the Trust
in and to the property and rights assigned to the Trust pursuant to Article
II of the Sale and Servicing Agreement, all funds on deposit from time to
time in the Trust Accounts and the Certificate Distribution Account and all
other property of the Trust from time to time, including any rights of the
Trustee and the Trust pursuant to the Sale and Servicing Agreement and the
Administration Agreement.
"Trust Statute" shall mean Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as the same may be amended from time
to time.
SECTION B. Other Definitional Provisions. (a) Capitalized terms used
herein and not otherwise defined have the meanings assigned to them in the
Sale and Servicing Agreement or, if not defined therein, in the Indenture.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate
or other document to the extent not defined, shall have the respective
meanings given to them under generally accepted accounting principles in
effect on the date hereof. To the extent that the definitions of accounting
terms in this Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under generally accepted
accounting principles, the definitions contained in this Agreement or in any
such certificate or other document shall control.
(d) The words "hereof", "herein", "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and
Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including without limitation".
(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
ARTICLE II.
Organization
SECTION A. Name. The Trust created hereby shall be known as "Case
Equipment Loan Trust 1997-A", in which name the Trustee may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and ▇▇▇ and be sued.
SECTION B. Office. The office of the Trust shall be in care of the
Trustee at the Corporate Trust Office or at such other address in Delaware
as the Trustee may designate by written notice to the Certificateholders and
the Depositor.
SECTION C. Purposes and Powers. The purpose of the Trust is, and the
Trust shall have the power and authority to, engage in the following
activities:
(a) to issue the Notes pursuant to the Indenture and the Trust
Certificates pursuant to this Agreement and to sell the Notes and the
Trust Certificates in one or more transactions;
(b) with the proceeds of the sale of the Notes and the Trust
Certificates, to fund the Pre-Funding Account and to purchase the
Receivables pursuant to the Sale and Servicing Agreement;
(c) to assign, grant, transfer, pledge, mortgage and convey the
Trust Estate pursuant to the Indenture and to hold, manage and
distribute to the Certificateholders pursuant to the Sale and
Servicing Agreement any portion of the Trust Estate released from the
Lien of, and remitted to the Trust pursuant to, the Indenture;
(d) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(e) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(f) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with
conservation of the Trust Estate and the making of distributions to
the Certificateholders and the Noteholders.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by this Agreement or the
Basic Documents.
SECTION D. Appointment of Trustee. The Depositor hereby appoints the
Trustee as trustee of the Trust effective as of the date hereof, to have all
the rights, powers and duties set forth herein.
SECTION E. Initial Capital Contribution of Trust Estate. The
Depositor hereby contributes to the Trustee, as of the date hereof, the sum
of $1.00. The Trustee hereby acknowledges receipt in trust from the
Depositor, as of the date hereof, of the foregoing contribution, which shall
constitute the initial Trust Estate and shall be deposited in the
Certificate Distribution Account. The Depositor shall pay organizational
expenses of the Trust as they may arise or shall, upon the request of the
Trustee, promptly reimburse the Trustee for any such expenses paid by the
Trustee. The Depositor may also take steps necessary, including the
execution and filing of any necessary filings, to ensure that the Trust is
in compliance with any applicable state securities law.
SECTION F. Declaration of Trust. The Trustee hereby declares that it
will hold the Trust Estate in trust upon and subject to the conditions set
forth herein for the use and benefit of the Certificateholders, subject to
the obligations of the Trust under the Basic Documents. It is the intention
of the parties hereto that the Trust constitute a business trust under the
Trust Statute and that this Agreement constitute the governing instrument of
such business trust. It is the intention of the parties hereto that, solely
for income and franchise tax purposes, until the Certificates are held by
other than the Seller, the Trust will be disregarded as an entity separate
from its Owner and the Notes being debt of the Seller. At such time that
the Certificates are held by more than one person, it is the intention of
the parties hereto that, solely for income and franchise tax purposes, the
Trust shall be treated as a partnership, with the assets of the partnership
being the Receivables and other assets held by the Trust, the partners of
the partnership being the Certificateholders (including the Seller in its
capacity as recipient of distributions from the Spread Account), and the
Notes being debt of the partnership. The parties agree that, unless
otherwise required by appropriate tax authorities, until the Certificates
are held by more than one person the Trust will not file or cause to be
filed annual or other necessary returns, reports and other forms consistent
with the characterization of the Trust as an entity not separate from its
Owner. Effective as of the date hereof, the Trustee shall have all rights,
powers and duties set forth herein and in the Trust Statute with respect to
accomplishing the purposes of the Trust.
SECTION G. Liability of the Certificateholders. (a) No
Certificateholder shall have any personal liability for any liability or
obligation of the Trust.
SECTION H. Title to Trust Property. Legal title to all the Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part
of the Trust Estate to be vested in a trustee or trustees, in which case
title shall be deemed to be vested in the Trustee, a co-trustee and/or a
separate trustee, as the case may be.
SECTION I. Situs of Trust. The Trust will be located and administered
in the State of Delaware. All bank accounts maintained by the Trustee on
behalf of the Trust shall be located in the State of Delaware or the State
of New York. The Trust shall not have any employees in any state other than
Delaware; provided, however, that nothing herein shall restrict or prohibit
the Trustee from having employees within or without the State of Delaware.
Payments will be received by the Trust only in Delaware or New York, and
payments will be made by the Trust only from Delaware or New York.
SECTION J. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Trustee that:
(a) The Depositor is duly organized and validly existing as a
corporation in good standing under the laws of the State of Delaware,
with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is
presently conducted.
(b) The Depositor is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease of
property or the conduct of its business shall require such
qualifications.
(c) The Depositor has the power and authority to execute and
deliver this Agreement and to carry out its terms; the Depositor has
full power and authority to sell and assign the property to be sold
and assigned to and deposited with the Trust and the Depositor shall
have duly authorized such sale and assignment and deposit to the Trust
by all necessary corporate action; and the execution, delivery and
performance of this Agreement have been duly authorized by the
Depositor by all necessary corporate action.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under,
the certificate of incorporation or by-laws of the Depositor, or any
indenture, agreement or other instrument to which the Depositor is a
party or by which it is bound; or result in the creation or imposition
of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement or other instrument (other than pursuant to
the Basic Documents); or violate any law or, to the best of the
Depositor's knowledge, any order, rule or regulation applicable to the
Depositor of any court or of any Federal or State regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties.
SECTION K. Federal Income Tax Allocations. If Certificates are held
by more than one person, interest payments on the Certificates at the
Pass-Through Rate (including interest on amounts previously due on the
Certificates but not yet distributed) shall be treated as "guaranteed
payments" under Section 707(c) of the Code. Net income of the Trust for any
month as determined for Federal income tax purposes (and each item of
income, gain, loss and deduction entering into the computation thereof)
shall be allocated:
(a) among the Certificateholders as of the close of business on
the last day of such month, in proportion to their ownership of
principal amount of Trust Certificates on such date, an amount of net
income up to the sum of: (i) the portion of the market discount on the
Receivables accrued during such month that is allocable to the excess,
if any, of the Initial Certificate Balance over their initial
aggregate issue price, (ii) Certificateholders' Prepayment Premium, if
any, payable for such month and (iii) any other amounts of income
payable to the Certificateholders for such month; and such sum of
amounts specified in clauses (i) through (iii) of this sentence shall
be reduced by any amortization by the Trust of premium on Receivables
that corresponds to any excess of the issue price of Trust
Certificates over their principal amount; and
(b) to the Depositor, and other holders of interests in the
Spread Account, to the extent of any remaining net income, in
accordance with their respective interests therein.
If the net income of the Trust for any month is insufficient for the
allocations described in clause (a), subsequent net income shall first be
allocated to make up such shortfall before being allocated as provided in
the preceding sentence. Net losses of the Trust, if any, for any month as
determined for Federal income tax purposes (and each item of income, gain,
loss and deduction entering into the computation thereof) shall be allocated
to the Depositor (or other holders of interests in the Spread Account) to
the extent the Depositor (or such holders) are reasonably expected to bear
the economic burden of such net losses, and any remaining net losses shall
be allocated among the remaining Certificateholders as of the close of
business on the last day of such month in proportion to their ownership of
principal amount of Trust Certificates on such day. The Depositor is
authorized to modify the allocations in this paragraph if necessary or
appropriate, in its sole discretion, for the allocations to fairly reflect
the economic income, gain or loss to the Depositor (or other holders of
interests in the Spread Account) or to the Certificateholders, or as
otherwise required by the Code. Notwithstanding anything provided in this
Section 2.11, if the Certificates are held solely by the Seller, the
application of this Section 2.11 shall be disregarded.
ARTICLE III.
Trust Certificates and Transfer of Interests
SECTION A. Initial Ownership. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.5, and until the
issuance of the Trust Certificates, the Depositor shall be the sole
beneficiary of the Trust.
SECTION B. The Trust Certificates. The Trust Certificates shall be
issued in denominations of $1,000 or in integral multiples of $1,000 in
excess thereof; provided that one Trust Certificate may be issued that
includes any residual portion of the Initial Certificate Balance in a
denomination other than an integral multiple of $1,000. The Trust
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature of an authorized officer of the Trustee. Trust Certificates
bearing the manual or facsimile signatures of individuals who were, at the
time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be, when authenticated pursuant to Section 3.3,
validly issued and entitled to the benefits of this Agreement,
notwithstanding that such individuals or any of them shall have ceased to be
so authorized prior to the authentication and delivery of such Trust
Certificates or did not hold such offices at the date of authentication and
delivery of such Trust Certificates.
SECTION C. Authentication of Trust Certificates. Concurrently with
the sale of the Receivables to the Trust pursuant to the Sale and Servicing
Agreement, the Trustee shall cause the Trust Certificates in an aggregate
principal amount equal to the Initial Certificate Balance to be executed on
behalf of the Trust, authenticated and delivered to or upon the written
order of the Depositor, signed by its chairman of the board, its president
or any vice president, without further corporate action by the Depositor, in
authorized denominations. No Trust Certificate shall entitle its Holder to
any benefit under this Agreement, or shall be valid for any purpose, unless
there shall appear on such Trust Certificate a certificate of authentication
substantially in the form set forth in Exhibit A, executed by the Trustee or
The Chase Manhattan Bank, as the Trustee's authenticating agent, by the
manual signature of one of its authorized signatories; such certificate of
authentication shall constitute conclusive evidence, and the only evidence,
that such Trust Certificate shall have been duly authenticated and delivered
hereunder. All Trust Certificates shall be dated the date of their
authentication. No further Trust Certificates shall be issued except
pursuant to Section 3.4, 3.5, 3.10 or 3.13 hereunder.
SECTION D. Registration of Transfer and Exchange of Trust
Certificates. The Trust shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 3.8, a register (the "Certificate
Register") in which, subject to such reasonable regulations as it may
prescribe, the Issuer shall provide for the registration of Trust
Certificates and of transfers and exchanges of Trust Certificates. The
Paying Agent shall be the "Certificate Registrar" for the purpose of
registering Trust Certificates and the transfers of Trust Certificates as
herein provided. Upon any resignation of any Certificate Registrar, the
Depositor shall promptly appoint a successor or, if it elects not to make
such an appointment, assume the duties of the Certificate Registrar.
Upon surrender for registration of transfer of any Trust Certificate
at the office or agency maintained pursuant to Section 3.8, if the
requirements of Section 8-401(l) of the UCC are met, the Trustee shall
execute, authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Trust Certificates in authorized
denominations of a like aggregate principal amount.
At the option of a Holder, Trust Certificates may be exchanged for
other Trust Certificates of authorized denominations, of a like aggregate
principal amount, upon surrender of the Trust Certificates to be exchanged
at the office or agency maintained pursuant to Section 3.8. Whenever any
Trust Certificates are so surrendered for exchange, if the requirements of
Section 8-401(l) of the UCC are met, the Trustee shall execute, authenticate
and deliver the Trust Certificates that the Certificateholder making the
exchange is entitled to receive.
All Trust Certificates issued upon any registration of transfer or
exchange of Trust Certificates shall be entitled to the same benefits under
this Agreement as the Trust Certificates surrendered upon such registration
of transfer or exchange.
Every Trust Certificate presented or surrendered for registration of
transfer or exchange shall be duly endorsed by, or be accompanied by a
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by, the Holder thereof or his attorney
duly authorized in writing. No transfer of a Trust Certificate shall be
registered unless the transferee shall have provided (i) an opinion of
counsel that no registration is required under the Securities Act of 1933,
as amended, or applicable state laws, and (ii) an Officer's Certificate as
to compliance with Section 6.6 of the Sale and Servicing Agreement. Each
Trust Certificate surrendered for registration of transfer or exchange shall
be canceled and subsequently disposed of by the Trustee in accordance with
its customary practice.
No service charge shall be made to a Certificateholder for any
registration of transfer or exchange of Trust Certificates, but the Trustee
or the Certificate Registrar may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Trust Certificates.
The Trust Certificates and any beneficial interest in such Trust
Certificates may not be acquired by: (a) an employee benefit plan (as
defined in Section 3(3) of ERISA) that is subject to the provisions of Title
I of ERISA, (b) a plan described in Section 4975(e)(1) of the Code or (c)
any entity whose underlying assets include plan assets by reason of a plan's
investment in the entity (each a "Benefit Plan"). By accepting and holding a
Trust Certificate or an interest therein, the Holder thereof shall be deemed
to have represented and warranted that it is not a Benefit Plan. The Trustee
shall have no obligation to determine whether or not a Holder of a Trust
Certificate is or is not a Benefit Plan.
SECTION E. Mutilated, Destroyed, Lost or Stolen Trust Certificates.
If: (a) any mutilated Trust Certificate shall be surrendered to the
Certificate Registrar, or if the Certificate Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Certificate (provided, that the Trustee shall not be required to verify the
evidence provided to it), and (b) there shall be delivered to the
Certificate Registrar and the Trustee such security or indemnity as may be
required by them to hold each of them harmless, then, in the absence of
notice that such Trust Certificate shall have been acquired by a bona fide
purchaser, and provided that the requirements of Section 8-405 of the UCC
are met, the Trustee on behalf of the Trust shall execute, authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Trust Certificate, a replacement Trust Certificate of like tenor
and denomination.
In connection with the issuance of any replacement Trust Certificate
under this Section, the Trustee and the Certificate Registrar may require
the payment by the Certificateholder of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection therewith.
Any replacement Trust Certificate issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Trust Certificate
shall constitute conclusive evidence of ownership in the Trust, as if
originally issued, whether or not the mutilated, lost, stolen or destroyed
Trust Certificate shall be found at any time, and shall be entitled to all
the benefits of this Agreement.
SECTION F. Persons Deemed Certificateholders. Prior to due
presentation of a Trust Certificate for registration of transfer of any
Trust Certificate, the Trustee or the Certificate Registrar may treat the
Person in whose name any Trust Certificate shall be registered in the
Certificate Register (as of the day of determination) as the owner of such
Trust Certificate for the purpose of receiving distributions pursuant to
Section 5.2 and for all other purposes whatsoever, and neither the Trustee
nor the Certificate Registrar shall be bound by any notice to the contrary.
SECTION G. Access to List of Certificateholders' Names and Addresses.
The Trustee shall furnish or cause to be furnished to the Servicer and the
Depositor, within 15 days after receipt by the Trustee of a request therefor
from the Servicer or the Depositor in writing, a list, in such form as the
Servicer or the Depositor may reasonably require, of the names and addresses
of the Certificateholders as of the most recent Record Date. If three or
more Certificateholders or one or more Holder(s) of Trust Certificates
evidencing not less than 25% of the Certificate Balance apply in writing to
the Trustee, and such application states that the applicants desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Trust Certificates and such application shall be
accompanied by a copy of the communication that such applicants propose to
transmit, then the Trustee shall, within five Business Days after the
receipt of such application, afford such applicants access during normal
business hours to the current list of Certificateholders. Each Holder, by
receiving and holding a Trust Certificate, shall be deemed to have agreed
not to hold any of the Depositor, the Certificate Registrar or the Trustee
accountable by reason of the disclosure of its name and address, regardless
of the source from which such information was derived.
SECTION H. Maintenance of Office or Agency. The Trustee shall
maintain in the Borough of Manhattan, City of New York an office or offices
or agency or agencies where Trust Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or
upon the Trustee in respect of the Trust Certificates and the Basic
Documents may be served. The Trustee initially designated The Chase
Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Structured Finance Services (ABS) as its principal corporate
trust office for such purposes. The Trustee shall give prompt written notice
to the Depositor and to the Certificateholders of any change in the location
of the Certificate Register or any such office or agency.
SECTION I. Appointment of Paying Agent. The Paying Agent shall make
distributions to Certificateholders from the Certificate Distribution
Account pursuant to Section 5.2 and shall report the amounts of such
distributions to the Trustee. Any Paying Agent shall have the revocable
power to withdraw funds from the Certificate Distribution Account for the
purpose of making the distributions referred to above. The Trustee may
revoke such power and remove the Paying Agent if the Trustee determines in
its sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. The Paying Agent
shall initially be The Chase Manhattan Bank, and any co-paying agent chosen
by and acceptable to the Trustee. The Paying Agent shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Trustee. In the
event that the Trustee shall not be the Paying Agent, the Trustee shall
appoint a successor to act as Paying Agent (which shall be a bank or trust
company). The Trustee shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Trustee to execute and deliver to
the Trustee an instrument in which such successor Paying Agent or additional
Paying Agent shall agree with the Trustee that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all sums, if
any, held by it for payment to the Certificateholders in trust for the
benefit of the Certificateholders entitled thereto until such sums shall be
paid to such Certificateholders. The Paying Agent shall return all unclaimed
funds to the Trustee and upon removal of a Paying Agent such Paying Agent
shall also return all funds in its possession to the Trustee. The provisions
of Sections 7.1, 7.3, 7.4 and 8.1 shall apply to the Trustee also in its
role as Paying Agent, for so long as the Trustee shall act as Paying Agent
and, to the extent applicable, to any other paying agent appointed
hereunder. Any reference in this Agreement to the Paying Agent shall include
any co-paying agent unless the context requires otherwise.
ARTICLE IV.
Actions by Trustee
SECTION A. Prior Notice to Certificateholders with Respect to Certain
Matters. With respect to the following matters, the Trustee shall not take
action unless, at least 30 days before the taking of such action, the
Trustee shall have notified the Certificateholders in writing of the
proposed action and the Certificateholders shall not have notified the
Trustee in writing prior to the 30th day after such notice is given that
such Certificateholders have withheld consent or shall not have provided
alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except
claims or lawsuits brought in connection with the collection of the
Receivables) and the compromise of any action, claim or lawsuit
brought by or against the Trust (except with respect to the
aforementioned claims or lawsuits for collection of Receivables);
(b) the election by the Trust to file an amendment to the
Certificate of Trust;
(c) the amendment of the Indenture in circumstances where the
consent of any Noteholder is required;
(d) the amendment of the Indenture in circumstances where the
consent of any Noteholder is not required and such amendment
materially adversely affects the interest of the Certificateholders;
(e) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any
provision in a manner, or add any provision, that would not materially
adversely affect the interests of the Certificateholders; or
(f) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee, or pursuant to this
Agreement of a successor Certificate Registrar, or the consent to the
assignment by the Note Registrar, Paying Agent or Indenture Trustee or
Certificate Registrar of its obligations under the Indenture or this
Agreement, as applicable.
SECTION B. Action by Certificateholders with Respect to Certain
Matters. The Trustee shall not have the power, except upon the direction of
the Certificateholders, to: (a) remove the Administrator under the
Administration Agreement, (b) appoint a successor Administrator, (c) remove
the Servicer under the Sale and Servicing Agreement or (d) except as
expressly provided in the Basic Documents, sell the Receivables after the
termination of the Indenture. The Trustee shall take the actions referred to
in the preceding sentence only upon written instructions signed by the
Certificateholders.
SECTION C. Action by Certificateholders with Respect to Bankruptcy.
The Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
Certificateholders and the delivery to the Trustee by each such
Certificateholder of a certificate certifying that such Certificateholder
reasonably believes that the Trust is insolvent.
SECTION D. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any
obligation of the Trust or the Trustee under this Agreement or any of the
Basic Documents or would be contrary to Section 2.3, nor shall the Trustee
be obligated to follow any such direction, if given.
SECTION E. Majority Control. Except as expressly provided herein, any
action that may be taken by the Certificateholders under this Agreement may
be taken by the Holders of Trust Certificates evidencing not less than a
majority of the Certificate Balance. Except as expressly provided herein,
any written notice of the Certificateholders delivered pursuant to this
Agreement shall be effective if signed by Holders of Trust Certificates
evidencing not less than a majority of the Certificate Balance at the time
of the delivery of such notice.
ARTICLE V.
Application of Trust Funds; Certain Duties
SECTION A. Establishment of Trust Account. The Trustee, for the
benefit of the Certificateholders, shall establish and maintain in the name
of the Trust an Eligible Deposit Account (the "Certificate Distribution
Account"), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Certificateholders.
The Trust shall possess all right, title and interest in all funds on
deposit from time to time in the Certificate Distribution Account and in all
proceeds thereof. Except as otherwise expressly provided herein, the
Certificate Distribution Account shall be under the sole dominion and
control of the Trustee for the benefit of the Certificateholders. If, at any
time, the Certificate Distribution Account ceases to be an Eligible Deposit
Account, the Trustee (or the Depositor on behalf of the Trustee, if the
Certificate Distribution Account is not then held by the Trustee or an
affiliate thereof) shall, within 10 Business Days (or such longer period,
not to exceed 30 calendar days, as to which the Rating Agency Condition
shall be satisfied), establish a new Certificate Distribution Account as an
Eligible Deposit Account and shall transfer any cash and/or any investments
to such new Certificate Distribution Account.
SECTION B. Applications of Trust Funds. (a) On each Payment Date, the
Trustee will distribute to Certificateholders, on a pro rata basis, amounts
deposited in the Certificate Distribution Account pursuant to Sections 5.5,
5.6 and 5.7 of the Sale and Servicing Agreement.
(b) On each Payment Date, the Trustee shall send to each
Certificateholder the statement provided to the Trustee by the Servicer
pursuant to Section 5.10 of the Sale and Servicing Agreement.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to a Certificateholder, such tax shall
reduce the amount otherwise distributable to the Certificateholder in
accordance with this Section. The Trustee is hereby authorized and directed
to retain from amounts otherwise distributable to the Certificateholders
sufficient funds for the payment of any tax that is legally owed by the
Trust (but such authorization shall not prevent the Trustee from contesting
any such tax in appropriate proceedings, and withholding payment of such
tax, if permitted by law, pending the outcome of such proceedings). The
amount of any withholding tax imposed with respect to a Certificateholder
shall be treated as cash distributed to such Certificateholder at the time
it is withheld by the Trust. If there is a possibility that withholding tax
is payable with respect to a distribution (such as a distribution to a
non-U.S. Certificateholder), the Trustee may, in its sole discretion,
withhold such amounts in accordance with this paragraph (c). In the event
that a Certificateholder wishes to apply for a refund of any such
withholding tax, the Trustee shall reasonably cooperate with such
Certificateholder in making such claim so long as such Certificateholder
agrees to reimburse the Trustee for any out-of-pocket expenses incurred.
SECTION C. Method of Payment. Subject to Section 9.1(c),
distributions required to be made to Certificateholders on any Payment Date
shall be made to each Certificateholder of record on the preceding Record
Date either by wire transfer, in immediately available funds, to the account
of such Holder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided to the Certificate
Registrar appropriate written instructions at least five Business Days prior
to such Payment Date and such Holder's Trust Certificates aggregate not less
than $1,000,000, or, if not, by check mailed to such Certificateholder at
the address of such Holder appearing in the Certificate Register.
SECTION D. No Segregation of Moneys; No Interest. Subject to Sections
5.1 and 5.2, moneys received by the Trustee hereunder need not be segregated
in any manner except to the extent required by law or the Sale and Servicing
Agreement and may be deposited under such general conditions as may be
prescribed by law, and the Trustee shall not be liable for any interest
thereon.
SECTION E. Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue Service and Others. The Trustee
shall: (a) maintain (or cause to be maintained) the books of the Trust on a
calendar year basis on the accrual method of accounting, (b) deliver to each
Certificateholder, as may be required by the Code and applicable Treasury
Regulations, such information as may be required (including Schedule K-1) to
enable each Certificateholder to prepare its Federal, State and local income
tax returns, (c) file such tax returns relating to the Trust (including a
partnership information return on Internal Revenue Service Form 1065 or its
successor), and make such elections as may from time to time be required or
appropriate under any applicable State or Federal statute or rule or
regulation thereunder so as to maintain the Trust's characterization as a
partnership for Federal income tax purposes, (d) cause such tax returns to
be signed in the manner required by law and (e) collect or cause to be
collected any withholding tax as described in and in accordance with Section
5.2(c) with respect to income or distributions to Certificateholders. The
Trustee shall elect under Section 1278 of the Code to include in income
currently any market discount that accrues with respect to the Receivables
and shall elect under Section 171 of the Code to amortize any bond premium
with respect to the Receivables. The Trustee shall not make the election
provided under Section 754 of the Code.
SECTION F. Signature on Returns; Tax Matters Partner. (a) The Trustee
shall sign on behalf of the Trust the tax returns of the Trust, unless
applicable law requires a Certificateholder to sign such documents, in which
case such documents shall be signed by the Depositor.
(b) The Depositor shall be designated the "tax matters partner" of
the Trust pursuant to Section 6231(a)(7)(A) of the Code and applicable
Treasury Regulations.
ARTICLE VI.
Authority and Duties of Trustee
SECTION A. General Authority. The Trustee is authorized and directed
to execute and deliver the Basic Documents to which the Trust is to be a
party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to be a party, in
each case in such form as the Depositor shall approve as evidenced
conclusively by the Trustee's execution thereof, and, on behalf of the
Trust, to direct the Indenture Trustee to authenticate and deliver the Notes
in the aggregate principal amount specified in a letter of instruction from
the Depositor to the Trustee. In addition to the foregoing, the Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Basic Documents. The Trustee is further authorized
from time to time to take such action as the Administrator recommends with
respect to the Basic Documents.
SECTION B. General Duties. It shall be the duty of the Trustee to
discharge (or cause to be discharged) all of its responsibilities pursuant
to this Agreement and the Basic Documents to which the Trust is a party and
to administer the Trust in the interest of the Certificateholders, subject
to the Basic Documents and in accordance with this Agreement.
Notwithstanding the foregoing, the Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the Basic
Documents to the extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Trustee
hereunder or under any Basic Document, and the Trustee shall not be held
liable for the default or failure of the Administrator to carry out its
obligations under the Administration Agreement.
SECTION C. Action upon Instruction. (a) Subject to Article IV and in
accordance with the Basic Documents, the Certificateholders may by written
instruction direct the Trustee in the management of the Trust. Such
direction may be exercised at any time by written instruction of the
Certificateholders pursuant to Article IV.
(b) The Trustee shall not be required to take any action hereunder or
under any Basic Document if the Trustee shall have reasonably determined, or
shall have been advised by counsel, that such action is likely to result in
liability on the part of the Trustee or is contrary to the terms hereof or
of any Basic Document or is otherwise contrary to law.
(c) Whenever the Trustee is unable to decide between alternative
courses of action permitted or required by this Agreement or any Basic
Document, the Trustee shall promptly give notice (in such form as shall be
appropriate under the circumstances) to the Certificateholders requesting
instruction as to the course of action to be adopted, and to the extent the
Trustee acts in good faith in accordance with any written instruction of the
Certificateholders received, the Trustee shall not be liable on account of
such action to any Person. If the Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may
be necessary under the circumstances) it may, but shall be under no duty to,
take or refrain from taking such action, not inconsistent with this
Agreement or the Basic Documents, as it shall deem to be in the best
interests of the Certificateholders, and shall have no liability to any
Person for such action or inaction.
(d) In the event that the Trustee is unsure as to the application of
any provision of this Agreement or any Basic Document or any such provision
is ambiguous as to its application, or is, or appears to be, in conflict
with any other applicable provision, or in the event that this Agreement
permits any determination by the Trustee or is silent or is incomplete as to
the course of action that the Trustee is required to take with respect to a
particular set of facts, the Trustee may give notice (in such form as shall
be appropriate under the circumstances) to the Certificateholders requesting
instruction and, to the extent that the Trustee acts or refrains from acting
in good faith in accordance with any such instruction received, the Trustee
shall not be liable, on account of such action or inaction, to any Person.
If the Trustee shall not have received appropriate instruction within 10
days of such notice (or within such shorter period of time as reasonably may
be specified in such notice or may be necessary under the circumstances) it
may, but shall be under no duty to, take or refrain from taking such action,
not inconsistent with this Agreement or the Basic Documents, as it shall
deem to be in the best interests of the Certificateholders, and shall have
no liability to any Person for such action or inaction.
SECTION D. No Duties Except as Specified in this Agreement or in
Instructions. The Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of or
otherwise deal with the Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated
hereby to which the Trustee is a party, except as expressly provided by this
Agreement or in any document or written instruction received by the Trustee
pursuant to Section 6.3; and no implied duties or obligations shall be read
into this Agreement or any Basic Document against the Trustee. The Trustee
shall have no responsibility for filing any financing or continuation
statement in any public office at any time or to otherwise perfect or
maintain the perfection of any security interest or Lien granted to it
hereunder or to prepare or file any Securities and Exchange Commission
filing for the Trust or to record this Agreement or any Basic Document. The
Trustee nevertheless agrees that it will, at its own cost and expense,
promptly take all action as may be necessary to discharge any Liens on any
part of the Trust Estate that result from actions by, or claims against, the
Trustee that are not related to the ownership or the administration of the
Trust Estate.
SECTION E. No Action Except Under Specified Documents or
Instructions. The Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Trust Estate except: (i) in
accordance with the powers granted to and the authority conferred upon the
Trustee pursuant to this Agreement, (ii) in accordance with the Basic
Documents and (iii) in accordance with any document or instruction delivered
to the Trustee pursuant to Section 6.3.
SECTION F. Restrictions. The Trustee shall not take any action: (a)
that is inconsistent with the purposes of the Trust set forth in Section 2.3
or (b) that, to the actual knowledge of the Trustee, would result in the
Trust's becoming taxable as a corporation for Federal income tax purposes.
The Certificateholders shall not direct the Trustee to take action that
would violate this Section.
ARTICLE VII.
Concerning the Trustee
SECTION A. Acceptance of Trusts and Duties. The Trustee accepts the
trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts but only upon the terms of this Agreement. The
Trustee also agrees to disburse all moneys actually received by it
constituting part of the Trust Estate upon the terms of the Basic Documents
and this Agreement. The Trustee shall not be answerable or accountable
hereunder or under any Basic Document under any circumstances, except: (i)
for its own willful misconduct or negligence or (ii) in the case of the
inaccuracy of any representation or warranty contained in Section 7.3
expressly made by the Trustee. In particular, but not by way of limitation
(and subject to the exceptions set forth in the preceding sentence):
(a) the Trustee shall not be liable for any error of judgment
made in good faith by a responsible officer of the Trustee unless it
is proved that the Trustee was negligent in ascertaining the pertinent
facts;
(b) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions
of the Administrator, the Servicer or any Certificateholder;
(c) no provision of this Agreement or any Basic Document shall
require the Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers
hereunder or under any Basic Document, if the Trustee shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured or provided to it;
(d) under no circumstances shall the Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes;
(e) the Trustee shall not be responsible for or in respect of the
validity or sufficiency of this Agreement or for the due execution
hereof by the Depositor or for the form, character, genuineness,
sufficiency, value or validity of any of the Trust Estate or for or in
respect of the validity or sufficiency of the Basic Documents, other
than the certificate of authentication on the Trust Certificates, and
the Trustee shall in no event assume or incur any liability, duty or
obligation to any Noteholder or to any Certificateholder, other than
as expressly provided for herein and in the Basic Documents;
(f) the Trustee shall not be liable for the default or misconduct
of the Administrator, the Seller, the Indenture Trustee or the
Servicer under any of the Basic Documents or otherwise and the Trustee
shall have no obligation or liability to perform the obligations of
the Trust under this Agreement or the Basic Documents that are
required to be performed by the Administrator under the Administration
Agreement, the Indenture Trustee under the Indenture or the Servicer
under the Sale and Servicing Agreement; and
(g) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or
in relation to this Agreement or any Basic Document, at the request,
order or direction of any of the Certificateholders unless such
Certificateholders have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that
may be incurred by the Trustee therein or thereby. The right of the
Trustee to perform any discretionary act enumerated in this Agreement
or in any Basic Document shall not be construed as a duty, and the
Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of any such act.
SECTION B. Furnishing of Documents. The Trustee shall furnish to the
Certificateholders promptly upon receipt of a written request therefor, and
at the expense of the Certificateholders, duplicates or copies of all
reports, notices, requests, demands, certificates, financial statements and
any other instruments furnished to the Trustee under the Basic Documents.
SECTION C. Representations and Warranties. The Trustee hereby
represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) it is a banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware,
with the requisite corporate power and authority to execute, deliver
and perform its obligations under this Agreement,
(b) it has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement
will be executed and delivered by one of its officers who is duly
authorized to execute and deliver this Agreement on its behalf, and
(c) the consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under,
the certificate of incorporation or by-laws of the Trustee, or any
indenture, agreement or other instrument to which the Trustee is a
party or by which it is bound; or violate any Federal or Delaware law
governing the banking or trust powers of the Trustee; or, to the best
of the Trustee's knowledge, violate any order, rule or regulation
applicable to the Trustee of any court or of any Federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Trustee or its
properties.
SECTION D. Reliance; Advice of Counsel. (a) The Trustee shall incur
no liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or
other document or paper believed by it to be genuine and believed by it to
be signed by the proper party or parties. The Trustee may accept a certified
copy of a resolution of the board of directors or other governing body of
any party as conclusive evidence that such resolution has been duly adopted
by such body and that the same is in full force and effect. As to any fact
or matter the method of the determination of which is not specifically
prescribed herein, the Trustee may for all purposes hereof rely on a
certificate, signed by the president, any vice president, the treasurer or
other authorized officers of the relevant party as to such fact or matter,
and such certificate shall constitute full protection to the Trustee for any
action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the
Basic Documents, the Trustee: (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the
Trustee with reasonable care, and (ii) may consult with counsel, accountants
and other skilled Persons to be selected with reasonable care and employed
by it. The Trustee shall not be liable for anything done, suffered or
omitted in good faith by it in accordance with the written opinion or advice
of any such counsel, accountants or other such Persons and which opinion or
advice states that such action is not contrary to this Agreement or any
Basic Document.
SECTION E. Not Acting in Individual Capacity. Except as provided in
this Article VII, in accepting the trusts hereby created Chase Manhattan
Bank Delaware acts solely as Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Trustee by reason of
the transactions contemplated by this Agreement or any Basic Document shall
look only to the Trust Estate for payment or satisfaction thereof.
SECTION F. Trustee Not Liable for Trust Certificates or Receivables.
The recitals contained herein and in the Certificates (other than the
signature and counter-signature of the Trustee on the Trust Certificates)
shall be taken as the statements of the Depositor, and the Trustee assumes
no responsibility for the correctness thereof. The Trustee makes no
representations as to the validity or sufficiency of this Agreement, of any
Basic Document, of the Trust Certificates (other than the signature and
countersignature, if any, of the Trustee on the Trust Certificates) or of
the Notes, or of any Receivable or related documents. The Trustee shall at
no time have any responsibility or liability for or with respect to the
legality, validity and enforceability of any Receivable, or the perfection
and priority of any security interest created by any Receivable in any of
the Financed Equipment or the maintenance of any such perfection and
priority, or for or with respect to the sufficiency of the Trust Estate or
its ability to generate the payments to be distributed to Certificateholders
under this Agreement or the Noteholders under the Indenture, including: (a)
the existence, condition and ownership of any Financed Equipment, (b) the
existence and enforceability of any insurance thereon, (c) the existence and
contents of any Receivable on any computer or other record thereof, (d) the
validity of the assignment of any Receivable to the Trust or of any
intervening assignment, (e) the completeness of any Receivable, (f) the
performance or enforcement of any Receivable, and (g) the compliance by the
Depositor or the Servicer with any warranty or representation made under any
Basic Document or in any related document or the accuracy of any such
warranty or representation or any action of the Administrator, the Indenture
Trustee or the Servicer or any subservicer taken in the name of the Trustee.
SECTION G. Trustee May Not Own Notes. The Trustee shall not, in its
individual capacity, but may in a fiduciary capacity, become the owner or
pledgee of Notes or otherwise extend credit to the Issuer. The Trustee may
otherwise deal with the Depositor, the Administrator, the Indenture Trustee
and the Servicer with the same rights as it would have if it were not the
Trustee.
ARTICLE VIII.
Compensation of Trustee
SECTION A. Trustee's Fees and Expenses. The Trustee shall receive as
compensation for its services hereunder such fees as have been separately
agreed upon before the date hereof between the Depositor and the Trustee,
and the Trustee shall be entitled to be reimbursed by the Depositor for its
other reasonable expenses hereunder, including the reasonable compensation,
expenses and disbursements of such agents, representatives, experts and
counsel as the Trustee may employ in connection with the exercise and
performance of its rights and its duties hereunder.
SECTION B. Indemnification. The Depositor shall be liable as primary
obligor for, and shall indemnify the Trustee and its successors, assigns,
agents and servants (collectively, the "Indemnified Parties") from and
against, any and all liabilities, obligations, losses, damages, taxes,
claims, actions and suits, and any and all reasonable costs, expenses and
disbursements (including reasonable legal fees and expenses) of any kind and
nature whatsoever (collectively, "Expenses"), which may at any time be
imposed on, incurred by or asserted against the Trustee or any other
Indemnified Party in any way relating to or arising out of this Agreement,
the Basic Documents, the Trust Estate, the administration of the Trust
Estate or the action or inaction of the Trustee hereunder, except only that
the Depositor shall not be liable for or required to indemnify an
Indemnified Party from and against Expenses arising or resulting from: (a)
such Indemnified Party's willful misconduct or negligence or (b) with
respect to the Trustee, the inaccuracy of any representation or warranty
contained in Section 7.3 expressly made by the Trustee. The indemnities
contained in this Section shall survive the resignation or termination of
the Trustee or the termination of this Agreement. In any event of any claim,
action or proceeding for which indemnity will be sought pursuant to this
Section, the Trustee's choice of legal counsel shall be subject to the
approval of the Depositor, which approval shall not be unreasonably
withheld.
SECTION C. Payments to the Trustee. Any amounts paid to the Trustee
pursuant to this Article VIII shall be deemed not to be a part of the Trust
Estate immediately after such payment. The Trustee shall also be entitled to
interest on all advances at a rate equal to: (a) the rate publicly announced
by The Chase Manhattan Bank, as its prime rate from time to time plus (b)
3.5%.
ARTICLE IX.
Termination of Trust Agreement
SECTION A. Termination of Trust Agreement. (a) This Agreement (other
than Article VIII) and the Trust shall terminate and be of no further force
or effect upon the final distribution by the Trustee of all moneys or other
property or proceeds of the Trust Estate in accordance with the Indenture,
the Sale and Servicing Agreement and Article V. The bankruptcy,
liquidation, dissolution, death or incapacity of any Certificateholder shall
not: (x) operate to terminate this Agreement or the Trust, (y) entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
to take any action or proceeding in any court for a partition or winding up
of all or any part of the Trust or Trust Estate or (z) otherwise affect the
rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 9.1(a), neither the Depositor nor
any Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment
Date upon which the Certificateholders shall surrender their Trust
Certificates to the Paying Agent for payment of the final distribution and
cancellation, shall be given promptly by the Trustee by letter to
Certificateholders mailed within five Business Days of receipt of notice of
such termination from the Servicer given pursuant to Section 9.1(c) of the
Sale and Servicing Agreement stating: (i) the Payment Date upon which final
payment of the Trust Certificates shall be made upon presentation and
surrender of the Trust Certificates at the office of the Paying Agent
therein designated, (ii) the amount of any such final payment and (iii) that
the Record Date otherwise applicable to such Payment Date is not applicable,
payments being made only upon presentation and surrender of the Trust
Certificates at the office of the Paying Agent therein specified. The
Trustee shall give such notice to the Certificate Registrar (if other than
the Trustee) and the Paying Agent at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Trust
Certificates, the Paying Agent shall cause to be distributed to
Certificateholders amounts distributable on such Payment Date pursuant to
Section 5.2.
In the event that all of the Certificateholders shall not surrender
their Trust Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Trust Certificates for cancellation and to receive the final distribution
with respect thereto. If within one year after the second notice all the
Trust Certificates shall not have been surrendered for cancellation, the
Trustee may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Trust Certificates, and the cost thereof shall be paid
out of the funds and other assets that shall remain subject to this
Agreement. Any funds remaining in the Trust after exhaustion of such
remedies shall be distributed by the Trustee to the Depositor.
(d) Upon the termination of the Trust, the Trustee shall cause the
Certificate of Trust to be canceled by filing a certificate of cancellation
with the Secretary of State in accordance with the provisions of Section
3810 (or successor section) of the Trust Statute.
ARTICLE X.
Successor Trustees and Additional Trustees
SECTION A. Eligibility Requirements for Trustee. The Trustee shall at
all times: (a) be a corporation satisfying the provisions of Section 3807(a)
of the Trust Statute and Section 26(a)(1) of the Investment Company Act of
1940, as amended, (b) be authorized to exercise corporate trust powers, (c)
have a combined capital and surplus of at least $50,000,000 and be subject
to supervision or examination by Federal or State authorities, and (d) have
(or have a parent that has) a rating of at least "Baa3" by ▇▇▇▇▇'▇. If such
corporation shall publish reports of condition at least annually, pursuant
to law or the requirements of the aforesaid supervising or examining
authority, then for the purpose of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with
this Section, the Trustee shall resign immediately in the manner and with
the effect specified in Section 10.2.
SECTION B. Resignation or Removal of Trustee. The Trustee may at any
time resign and be discharged from the trusts hereby created by giving
written notice thereof to the Administrator. Upon receiving such notice of
resignation, the Administrator shall promptly appoint a successor Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor Trustee. If
no successor Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
If at any time the Trustee shall cease to be eligible in accordance
with Section 10.1 and shall fail to resign after written request therefor by
the Administrator, or if at any time the Trustee shall be legally unable to
act, or shall be adjudged bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer shall
take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then the
Administrator may remove the Trustee. If the Administrator shall remove the
Trustee under the authority of the preceding sentence, the Administrator
shall promptly appoint a successor Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the outgoing
Trustee so removed and one copy to the successor Trustee and payment of all
fees owed to the outgoing Trustee.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to this Section shall not become effective until
acceptance of appointment by the successor Trustee pursuant to Section 10.3
and payment of all fees and expenses owed to the outgoing Trustee. The
Administrator shall provide notice of such resignation or removal of the
Trustee to each of the Rating Agencies.
SECTION C. Successor Trustee. Any successor Trustee appointed
pursuant to Section 10.2 shall execute, acknowledge and deliver to the
Administrator and to its predecessor Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal
of the predecessor Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties, and obligations of its
predecessor under this Agreement, with like effect as if originally named as
the Trustee. The predecessor Trustee shall upon payment of its fees and
expenses deliver to the successor Trustee all documents and statements and
monies held by it under this Agreement; and the Administrator and the
predecessor Trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for fully and certainly vesting
and confirming in the successor Trustee all such rights, powers, duties and
obligations.
No successor Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Trustee shall
be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Trustee pursuant to this
Section, the Administrator shall mail notice of such appointment to all
Certificateholders, the Indenture Trustee, the Noteholders and the Rating
Agencies. If the Administrator shall fail to mail such notice within 10 days
after acceptance of appointment by the successor Trustee, the successor
Trustee shall cause such notice to be mailed at the expense of the
Administrator.
SECTION D. Merger or Consolidation of Trustee. Any corporation or
other entity into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder;
provided, such corporation shall be eligible pursuant to Section 10.1,
without the execution or filing of any instrument or any further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding; and provided further, that the Trustee shall mail notice of
such merger or consolidation to the Rating Agencies.
SECTION E. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust or any Financed Equipment may at the time be located, the
Administrator and the Trustee acting jointly shall have the power and may
execute and deliver all instruments to appoint one or more Person(s)
approved by the Trustee to act as co-trustee(s), jointly with the Trustee,
or separate trustee(s), of all or any part of the Trust Estate, and to vest
in such Person(s), in such capacity and for the benefit of the
Certificateholders, such title to the Trust Estate, or any part thereof,
and, subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Administrator and the Trustee may
consider necessary or desirable. If the Administrator shall not have joined
in such appointment within 15 days after the receipt by it of a request so
to do, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee under this Agreement shall be required to
meet the terms of eligibility as a successor trustee pursuant to Section
10.1 and no notice of the appointment of any co-trustee or separate trustee
shall be required pursuant to Section 10.3.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act(s) are to be performed, the
Trustee shall be incompetent or unqualified to perform such act(s), in
which event such rights, powers, duties and obligations (including the
holding of title to the Trust Estate or any portion thereof in any
such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Trustee;
(ii) no trustee under this Agreement shall be personally liable
by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the Administrator and the Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the
estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject
to all the provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting the
liability of, or affording protection to, the Trustee. Each such instrument
shall be filed with the Trustee and a copy thereof given to the
Administrator.
Any separate trustee or co-trustee may at any time appoint the Trustee
as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
The Trustee shall have no obligation to determine whether a co-trustee
or separate trustee is legally required in any jurisdiction in which any
part of the Trust Estate may be located.
ARTICLE XI.
Miscellaneous
SECTION A. Supplements and Amendments. This Agreement may be amended
from time to time by a written amendment duly executed and delivered by the
Depositor and the Trustee, with prior written notice to the Rating Agencies,
without the consent of any of the Noteholders or the Certificateholders, to
cure any ambiguity, to correct or supplement any provisions in this
Agreement or for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions in this Agreement or of
modifying in any manner the rights of the Noteholders or the
Certificateholders; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material respect
the interests of any Noteholder or Certificateholder.
This Agreement may also be amended from time to time by the Depositor
and the Trustee, with prior written notice to the Rating Agencies, with the
written consent of (x) Noteholders holding Notes evidencing not less than a
majority of the Note Balance and (y) the Holders of Certificates evidencing
not less than a majority of the Certificate Balance, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Noteholders or the Certificateholders; provided, however, that no such
amendment shall: (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Receivables or
distributions that shall be required to be made for the benefit of the
Noteholders or the Certificateholders or (b) reduce the aforesaid percentage
of the Outstanding Amount and the Certificate Balance required to consent to
any such amendment, without the consent of the holders of all the
outstanding Notes and Certificates.
Promptly after the execution of any such amendment or consent (or, in
the case of the Rating Agencies, 10 days prior thereto), the Trustee shall
furnish written notification of the substance of such amendment or consent
to each Certificateholder, the Indenture Trustee and each of the Rating
Agencies.
It shall not be necessary for the consent of Certificateholders, the
Noteholders or the Indenture Trustee pursuant to this Section to approve the
particular form of any proposed amendment or consent, but it shall be
sufficient if such consent shall approve the substance thereof. The manner
of obtaining such consents (and any other consents of Certificateholders
provided for in this Agreement or in any other Basic Document) and of
evidencing the authorization of the execution thereof by Certificateholders
shall be subject to such reasonable requirements as the Trustee may
prescribe.
Promptly after the execution of any amendment to the Certificate of
Trust, the Trustee shall cause the filing of such amendment with the
Secretary of State.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Trustee shall be entitled to receive and rely upon
an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions precedent
to the execution and delivery of such amendment have been satisfied. The
Trustee may, but shall not be obligated to, enter into any such amendment
that affects the Trustee's own rights, duties or immunities under this
Agreement or otherwise.
SECTION B. No Legal Title to Trust Estate in Certificateholders. The
Certificateholders shall not have legal title to any part of the Trust
Estate. The Certificateholders shall be entitled to receive distributions
with respect to their undivided ownership interest therein only in
accordance with Articles V and IX. No transfer, by operation of law or
otherwise, of any right, title or interest of the Certificateholders in, to
and under their ownership interest in the Trust Estate shall operate to
terminate this Agreement or the trusts hereunder or entitle any transferee
to an accounting or to the transfer to it of legal title to any part of the
Trust Estate.
SECTION C. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Trustee, the Depositor, the
Certificateholders, the Administrator and, to the extent expressly provided
herein, the Indenture Trustee and the Noteholders, and nothing in this
Agreement, whether express or implied, shall be construed to give to any
other Person any legal or equitable right, remedy or claim in the Trust
Estate or under or in respect of this Agreement or any covenants, conditions
or provisions contained herein.
SECTION D. Notices. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing, personally
delivered or mailed by certified mail, postage prepaid and return receipt
requested, and shall be deemed to have been duly given upon receipt: (i) if
to the Trustee, addressed to the Corporate Trust Office with a copy to The
Chase Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attn: Structured Finance Services (ABS); (ii) if to the Depositor,
addressed to Case Receivables II Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Corporate Secretary; or, as to each party, at such other
address as shall be designated by such party in a written notice to the
other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at
the address of such Holder as shown in the Certificate Register. Any notice
so mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder
receives such notice.
SECTION E. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
SECTION F. Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION G. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor and its successors, the Trustee and its successors and each
Certificateholder and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other
instrument or action by an Certificateholder shall bind the successors and
assigns of such Certificateholder.
SECTION H. Covenants of the Depositor. If: (a) the Certificate
Balance shall be reduced by Realized Losses and (b) any litigation with
claims in excess of $1,000,000 to which the Depositor is a party that shall
be reasonably likely to result in a material judgment against the Depositor
that the Depositor will not be able to satisfy shall be commenced by a
Certificateholder during the period beginning nine months following the
commencement of such litigation and continuing until such litigation is
dismissed or otherwise terminated (and, if such litigation has resulted in a
final judgment against the Depositor, such judgment has been satisfied), the
Depositor shall not pay any dividend to Credit, or make any distribution on
or in respect of its capital stock to Credit, or repay the principal amount
of any indebtedness of the Depositor held by Credit, unless: (i) after
giving effect to such payment, distribution or repayment, the Depositor's
liquid assets shall not be less than the amount of actual damages claimed in
such litigation or (ii) the Rating Agency Condition shall have been
satisfied with respect to any such payment, distribution or repayment. The
Depositor will not at any time institute against the Trust any bankruptcy
proceedings under any United States Federal or State bankruptcy or similar
law in connection with any obligations relating to the Trust Certificates,
the Notes, the Trust Agreement or any of the Basic Documents.
SECTION I. No Petition. The Trustee on behalf of the Trust, by
entering into this Agreement, each Certificateholder, by accepting a Trust
Certificate, and the Indenture Trustee and each Noteholder, by accepting the
benefits of this Agreement, hereby covenant and agree that they will not at
any time institute against the Depositor or the Trust, or join in any
institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any Federal or State bankruptcy or similar law in
connection with any obligations relating to the Trust Certificates, the
Notes, this Agreement or any of the Basic Documents.
SECTION J. No Recourse. Each Certificateholder by accepting a Trust
Certificate acknowledges that such Certificateholder's Trust Certificates
represent beneficial interests in the Trust only and do not represent
interests in or obligations of the Seller, the Servicer, the Administrator,
the Trustee, the Indenture Trustee or any Affiliate thereof and no recourse
may be had against such parties or their assets, except as may be expressly
set forth or contemplated in this Agreement, the Trust Certificates or the
Basic Documents.
SECTION K. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
SECTION L. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of Delaware, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
SECTION M. Administrator. The Administrator is authorized to execute
on behalf of the Trust all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Trust to prepare,
file or deliver pursuant to this Agreement and the Basic Documents. Upon
written request, the Trustee shall execute and deliver to the Administrator
a power of attorney appointing the Administrator its agent and
attorney-in-fact to execute all such documents, reports, filings,
instruments, certificates and opinions.
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized as of the day and year first above written.
CHASE MANHATTAN BANK DELAWARE,
as Trustee
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Trust Officer
CASE RECEIVABLES II INC.,
as Depositor
By: /s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Treasurer
EXHIBIT A
to Trust Agreement
FORM OF TRUST CERTIFICATES
REGISTERED $___________
NUMBER R-___ CUSIP NO. 147440___
Unless this certificate 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 certificate issued is registered in the name of Cede & Co. or in 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.
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF A
BENEFIT PLAN (AS DEFINED BELOW).
Denominations of $1,000 and integral multiples of $1,000 in excess
thereof.
CASE EQUIPMENT LOAN TRUST 1997-A
____% ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below,
the property of which includes a pool of retail installment sale contracts
secured by new and used agricultural and construction equipment and sold to
the Trust by Case Receivables II Inc.
(This Trust Certificate does not represent an interest in or obligation of
Case Receivables II Inc., Case Credit Corporation or Case Corporation, or
any of their respective affiliates, except to the extent described below.)
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a _____________
DOLLAR ($___________) nonassessable, fully-paid, fractional undivided
interest in the Case Equipment Loan Trust 1997-A (the "Trust") formed by
Case Receivables II Inc., a Delaware corporation (the "Seller").
The Trust was created pursuant to a Trust Agreement dated as of March 1,
1997 (the "Trust Agreement"), between the Seller and Chase Manhattan Bank
Delaware, as trustee (the "Trustee"). To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings assigned to them
in the Trust Agreement or the Sale and Servicing Agreement (the "Sale and
Servicing Agreement") dated as of March 1, 1997, among the Trust, the Seller
and Case Credit Corporation, as servicer (the "Servicer"), as applicable.
This Certificate is one of the duly authorized Certificates designated as
"____% Asset Backed Certificates" (herein called the "Trust Certificates").
Issued under the: (a) Indenture dated as of March 1, 1997, between the Trust
and ▇▇▇▇▇▇ Trust and Savings Bank, as Indenture Trustee, are notes
designated as "____% Class A-1 Asset Backed Notes," "____% Class A-2 Asset
Backed Notes," "____% Class A-3 Asset Backed Notes" and "____% Class B Asset
Backed Notes" (collectively, the "Notes"). This Trust Certificate is issued
under and is subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust Agreement the holder of this Trust Certificate by
virtue of the acceptance hereof assents and by which holder is bound.
Each Holder of this Trust Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Trust Certificate are
subordinated to the rights of the Noteholders as described in the Sale and
Servicing Agreement and the Indenture.
It is the intent of the Seller, Servicer and the Certificateholders
that, for purposes of Federal income, State and local income and franchise
and any other income taxes measured in whole or in part by income, until the
Trust Certificates are held by other than the Seller, the Trust will be
disregarded as an entity separate from its owner. At such time that the
Trust Certificates are held by more than one person, it is the intent of the
Seller, Servicer and the Certificateholders that, for purposes of Federal
income, State and local income and franchise and any other income taxes
measured in whole or in part by income, the Trust will be treated as a
partnership, the assets of which are the assets held by the Trust, and the
Certificateholders (including the Depositor (and its transferees and
assigns) in its capacity as recipient of distributions from the Spread
Account) will be treated as partners in that partnership. The Depositor and
the other Certificateholders, by acceptance of a Trust Certificate, agree to
treat, and to take no action inconsistent with the treatment of, the Trust
Certificates as such for tax purposes.
Each Certificateholder, by its acceptance of a Trust Certificate,
covenants and agrees that such Certificateholder will not at any time
institute against the Seller or the Trust, or join in any institution
against the Seller or the Trust of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings
under any United States Federal or State bankruptcy or similar law in
connection with any obligations relating to the Trust Certificates, the
Notes, the Trust Agreement or any of the Basic Documents.
The Trust Certificates do not represent an obligation of, or an
interest in, the Seller, the Servicer, Case Credit Corporation, the Trustee
or any affiliates of any of them and no recourse may be had against such
parties or their assets, except as may be expressly set forth or
contemplated herein or in the Trust Agreement or the Basic Documents.
The Certificates may not be acquired by or for the account of: (i) an
employee benefit plan (as defined in Section 3(3) of ERISA) that is subject
to the provisions of Title 1 of ERISA, (ii) a plan described in Section
4975(e)(1) of the Internal Revenue Code of 1986, as amended, or (iii) any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity (a "Benefit Plan"). By accepting and holding this
Certificate, each of the Holder shall be deemed to have represented and
warranted that it is not a Benefit Plan.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Trustee, by manual signature, this
Trust Certificate shall not entitle the holder hereof to any benefit under
the Trust Agreement or the Sale and Servicing Agreement or be valid for any
purpose.
This Trust Certificate shall be construed in accordance with the laws
of the State of Delaware, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not in its
individual capacity has caused this Trust Certificate to be duly executed.
CASE EQUIPMENT LOAN TRUST 1997-A
By: CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity, but
solely as Trustee
By: ____________________________
Name: ________________________
Title: _______________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the within-mentioned
Trust Agreement.
CHASE MANHATTAN BANK DELAWARE,
as Trustee
By: ________________________
Authorized Officer
OR
By: THE CHASE MANHATTAN BANK,
as Authenticating Agent
By: __________________________
Authorized Officer
Date: __________ ____, 1997
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE
________________________________________________________________________
(Please print or type name and address, including postal zip code, of
assignee)
________________________________________________________________________
the within Trust Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
______________________________________________________________ Attorney to
transfer said Trust Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated: _____________________________________*
Signature Guaranteed:
_____________________________________*
* NOTICE: The signature to this assignment must correspond with the name
as it appears upon the face of the within Trust Certificate in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by a member firm of the New York Stock Exchange
or a commercial bank or trust company.
EXHIBIT B
to Trust Agreement
CERTIFICATE OF TRUST OF
CASE EQUIPMENT LOAN TRUST 1997-A
This Certificate of Trust of CASE EQUIPMENT LOAN TRUST 1997-A (the
"Trust"), dated as of ____________ ____, 1997, is being duly executed and
filed by Chase Manhattan Bank Delaware, a Delaware banking corporation, as
trustee, to form a trust under the Delaware Business Trust Act (12 Del. Code
Section 3801 et seq.).
1. Name. The name of the trust formed hereby is CASE EQUIPMENT LOAN
TRUST 1997-A.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware is Chase Manhattan Bank Delaware, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Administration Department.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity, but solely as trustee
under a Trust Agreement dated as of March 1, 1997
By: ____________________________
Name: ________________________
Title: _______________________