Exhibit 4(c)
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TRUST AGREEMENT
CNH WHOLESALE MASTER NOTE TRUST
TRUST AGREEMENT
dated as of [_________________], 2003
between
CNH WHOLESALE RECEIVABLES INC.,
as Transferor,
and
THE BANK OF NEW YORK,
as Owner Trustee
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS............................................................................1
Section 1.01 Definitions.......................................................................1
Section 1.02 Generic Terms.....................................................................3
ARTICLE II ORGANIZATION; DECLARATION OF TRUST BY THE OWNER TRUSTEE................................4
Section 2.01 Formation of Trust; Name..........................................................4
Section 2.02 Transfer of Property to Trust; Initial Capital Contribution of Trust Estate.......4
Section 2.03 Purposes and Powers; Trust To Operate as a Single Purpose Entity..................4
Section 2.04 Appointment of Owner Trustee......................................................5
Section 2.05 Declaration of Trust..............................................................5
Section 2.06 Title to Trust Estate.............................................................6
Section 2.07 Nature of Interest in the Trust Estate............................................6
Section 2.08 Creation of Trust; Principal Office of Owner Trustee..............................6
Section 2.09 Tax Matters.......................................................................6
Section 2.10 Fiscal Year.......................................................................6
Section 2.11 Protection of Trust Estate........................................................6
Section 2.12 Assignment to Indenture Trustee...................................................7
Section 2.13 Merger or Consolidation of, or Assumption of the Obligations of, Transferor.......7
Section 2.14 Limitation on Liability of Transferor and Others..................................8
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE TRANSFEROR.......................................8
Section 3.01 Representations and Warranties of the Transferor..................................8
ARTICLE IV DISTRIBUTIONS OF FUNDS.................................................................9
Section 4.01 Distribution of Funds.............................................................9
Section 4.02 Payments from Trust Estate Only...................................................9
Section 4.03 Method of Payment................................................................10
[Section 4.04 Establishment of Account.........................................................10
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TABLE OF CONTENTS
(continued)
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ARTICLE V AUTHORITY AND DUTIES OF THE OWNER TRUSTEE.............................................10
Section 5.01 General Authority................................................................10
Section 5.02 General Duties...................................................................10
Section 5.03 Action Upon Instruction..........................................................11
Section 5.04 No Duties Except as Specified in this Agreement or in Instructions...............11
Section 5.05 No Action Except under Transaction Documents or Instructions.....................12
Section 5.06 Restrictions.....................................................................12
Section 5.07 Nonpetition Covenants............................................................12
Section 5.08 Tax Returns......................................................................12
ARTICLE VI CONCERNING THE TRUSTEE BANK...........................................................13
Section 6.01 Acceptance of Trust and Duties...................................................13
Section 6.02 Furnishing of Documents..........................................................14
Section 6.03 Representations and Warranties as to the Trust Estate............................14
Section 6.04 Signature of Returns.............................................................15
Section 6.05 Reliance; Advice of Counsel......................................................15
Section 6.06 Not Acting in Individual Capacity................................................15
Section 6.07 Representations and Warranties...................................................15
ARTICLE VII TERMINATION OF TRUST AGREEMENT........................................................16
Section 7.01 Termination of Trust Agreement...................................................16
ARTICLE VIII SUCCESSOR OWNER TRUSTEES, CO-TRUSTEES AND SEPARATE OWNER TRUSTEES.....................16
Section 8.01 Resignation and Removal of the Owner Trustee; Appointment of Successors..........16
Section 8.02 Transfer Procedures..............................................................17
Section 8.03 Qualification of Owner Trustee...................................................17
Section 8.04 Co-trustees and Separate Owner Trustees..........................................17
ARTICLE IX AMENDMENTS............................................................................18
Section 9.01 Supplements and Amendments.......................................................18
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TABLE OF CONTENTS
(continued)
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ARTICLE X BENEFICIAL INTERESTS..................................................................19
Section 10.01 Initial Ownership................................................................19
Section 10.02 Transferor Interest..............................................................19
Section 10.03 Form of Transferor Interest......................................................19
Section 10.04 Restrictions on Transfer; Issuance of Supplemental Interests.....................19
ARTICLE XI COMPENSATION OF TRUSTEE BANK AND INDEMNIFICATION......................................20
Section 11.01 Trustee Bank Fees and Expenses...................................................20
Section 11.02 Indemnification..................................................................20
ARTICLE XII MISCELLANEOUS.........................................................................21
Section 12.01 Conveyance by the Owner Trustee is Binding.......................................21
Section 12.02 Instructions; Notices............................................................22
Section 12.03 Severability.....................................................................22
Section 12.04 Limitation of Liability..........................................................22
Section 12.05 Separate Counterparts............................................................23
Section 12.06 Successors and Assigns...........................................................23
Section 12.07 Headings.........................................................................23
Section 12.08 Governing Law....................................................................23
Section 12.09 No Recourse......................................................................23
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TRUST AGREEMENT dated as of [________], 2003, between
CNH WHOLESALE
RECEIVABLES INC. ("CWRI"), a
Delaware corporation, as Transferor, and The Bank
of New York, a New York banking corporation, as owner trustee (the "Owner
Trustee").
In consideration of the mutual agreements herein contained and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound hereby, agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01 DEFINITIONS. Capitalized terms used herein and not defined
herein have the meaning assigned to them in the Indenture or the Transfer and
Servicing Agreement. For purposes of this Agreement, the following terms have
the following meanings:
"Administrator" means Case Credit Corporation, as administrator of the
Trust pursuant to the terms of the Administration Agreement.
"Agreement" means this
Trust Agreement, as the same may be amended,
modified or supplemented from time to time.
"Beneficiary" means the holder of the Transferor Interest.
"Certificate of Trust" shall mean the Certificate of Trust in the form
attached hereto as Exhibit B which has been filed for the Trust pursuant to
Section 3810(a) of the
Delaware Statutory Trust Act.
"Code" means the Internal Revenue Code of 1986, as it may be amended from
time to time.
"
Delaware Statutory Trust Act" means the
Delaware Statutory Trust Act, 12
Del. C. ss. ss. 3801, et seq., as amended from time to time, and any successor
statute thereto.
"Deliveries" is defined in Section 12.02.
"Disqualification Event" with respect to the Owner Trustee means (a) the
bankruptcy, insolvency or dissolution of the Owner Trustee, (b) the occurrence
of the date of resignation of the Owner Trustee, as set forth in a notice of
resignation given pursuant to Section 8.01, (c) the delivery to the Owner
Trustee of the instrument or instruments of removal referred to in Section 8.01
(or, if such instruments specify a later effective date of removal, the
occurrence of such later date), or (d) failure of the Owner Trustee to qualify
under the requirements of Section 8.03.
"ERISA" means the Employee Retirement Income Securities Act of 1974, as the
same may be amended from time to time.
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"Governmental Authority" means the United States of America, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Indemnified Person" is defined in Section 11.02.
"Indenture" means the Indenture, dated as of [____________], between the
Trust and the Indenture Trustee, which by its terms is identified as being the
Indenture referred to herein, as amended, restated, supplemented or otherwise
modified from time to time.
"Indenture Trustee" means JPMorgan Chase Bank as trustee under the
Indenture, and each successor trustee under the Indenture.
"Note" is defined in the Indenture.
"Noteholder" is defined in the Indenture.
"Owner Trustee" means The Bank of New York, a New York banking corporation,
not in its individual capacity but solely in its capacity as owner trustee
hereunder, and each successor trustee under Article VIII, in its capacity as
owner trustee hereunder, and each co-trustee under and to the extent provided in
Section 8.04, in its capacity as owner trustee hereunder.
"Person" means any legal person, including any individual, corporation,
partnership (general or limited), limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization,
governmental entity or other entity of similar nature.
"Periodic Filing" means any filing or submission that the Trust is required
to make with any federal, state or local authority or regulatory agency.
"Rating Agency" is defined in the Indenture.
"Requirements of Law" shall mean, for any Person, the certificate of
incorporation or articles of association and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or Governmental Authority, in each case
applicable to or binding upon such Person or to which such Person is subject,
whether federal, state or local (including without limitation, usury laws, the
Federal Truth in Lending Act and Regulation Z and Regulation B of the Board of
Governors of the Federal Reserve System).
"Secretary of State" means the Office of the Secretary of State of the
State of
Delaware.
"Securities Act" means the Securities Act of 1933, as amended.
"Supplemental Interest" is defined in Section 10.04.
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"Transfer and Servicing Agreement" means the Transfer and Servicing
Agreement, dated as of [_________], among CWRI, as Transferor, Case Credit, as
Servicer, and the Trust, as amended, restated, supplemented or otherwise
modified from time to time.
"Transferor" means
CNH Wholesale Receivables Inc., a
Delaware corporation,
and its successors and assigns.
"Transferor Interest" is defined in the Indenture.
["Transferor Trust Account" means the account established by the Owner
Trustee on behalf of the Trust in accordance with Section 4.04.]
"Trust" means the trust created by this Agreement and the filing of the
Certificate of Trust with the Secretary of State.
"Trust Estate" means all right, title and interest of the Trust in and to
the property and rights assigned to the Issuer pursuant to Section 2.01 and
Section 2.02 of the Transfer and Servicing Agreement, all monies, investment
property, instruments and other property on deposit from time to time in the
Collection Account, the Series Accounts and the Excess Funding Account and all
other property of the Trust from time to time, including any rights of the Owner
Trustee and the Trust pursuant to the Transaction Documents.
"Trust Termination Date" is defined in Section 7.01(a).
"Trustee Bank" means The Bank of New York in its individual capacity, each
bank appointed as successor Owner Trustee under Article VIII in its individual
capacity and each bank appointed as co-trustee under and to the extent provided
in Section 8.04 in its individual capacity.
"UCC" means the Uniform Commercial Code as in effect in the State of
Delaware.
Section 1.02 GENERIC TERMS. (a) The terms "hereby," "hereof," "hereto,"
"herein," "hereunder" and any similar terms shall refer to this Agreement.
(b) Unless otherwise indicated in context, the terms "Section,"
"Exhibit" or "Schedule" shall refer to a Section of, or an Exhibit or Schedule
to, this Agreement.
(c) Words of the masculine, feminine or neuter gender mean and
include the correlative words of other genders, and words importing the singular
number mean and include the plural number and vice versa.
(d) The terms "include," "including" and similar terms shall be
construed as if followed by the phrase "without limitation."
(e) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto or in connection herewith unless otherwise defined therein.
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(f) Any agreement, instrument or statute defined or referred to
herein or in any certificate or other document made or delivered pursuant hereto
or in connection herewith means such agreement, instrument or statute as from
time to time amended, modified or supplemented and includes (in the case of
agreements or instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted
successors and assigns.
ARTICLE II
ORGANIZATION; DECLARATION OF TRUST BY THE OWNER TRUSTEE
Section 2.01 FORMATION OF TRUST; NAME. The Trust is hereby created, to be
named "CNH Wholesale Master Note Trust", under which name the Trust or the Owner
Trustee, on its behalf, may conduct any activities and business of the Trust
contemplated hereby, execute contracts and other instruments on behalf of the
Trust and ▇▇▇ and be sued on behalf of the Trust.
Section 2.02 TRANSFER OF PROPERTY TO TRUST; INITIAL CAPITAL CONTRIBUTION
OF TRUST ESTATE. The Beneficiary hereby sells, assigns, grants and transfers,
over to the Owner Trustee, as of the date hereof, $1.00. The Owner Trustee
hereby acknowledges receipt in trust from the Beneficiary, as of the date
hereof, of the foregoing contribution, which shall constitute the initial Trust
Estate.
Section 2.03 PURPOSES AND POWERS; TRUST TO OPERATE AS A SINGLE PURPOSE
ENTITY. (a) The purpose of the Trust is to engage in the activities set forth in
this Section 2.03. The Trust shall have power and authority and is hereby
authorized and empowered, without the need for further action on the part of the
Trust, and Owner Trustee shall have power and authority, and is hereby
authorized and empowered, in the name and on behalf of the Trust, to do or cause
to be done all acts and things necessary, appropriate or convenient to cause the
Trust, to engage in the activities set forth in this Section 2.03 as follows:
(i) to execute, deliver and issue the Notes pursuant to
the Indenture, to issue the Transferor Interest and to issue the
Supplemental Interests, if any, pursuant to this Agreement;
(ii) to acquire the Trust Estate and to pay Transferor the
amounts owed pursuant to Section 2.01 of the Transfer and Servicing
Agreement;
(iii) to assign, grant, pledge and mortgage the Collateral
pursuant to the Indenture and to hold, manage and distribute to the holder
of the Transferor Interest pursuant to the terms of this Agreement and the
Transaction Documents any portion of the Collateral released from the lien
of, and remitted to the Trust pursuant to, the Indenture;
(iv) to enter into, execute, deliver and perform the
Transaction Documents to which it is to be a party;
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(v) 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;
(vi) subject to compliance with the Transaction Documents,
to engage in such other activities as may be required in connection with
conservation of the Trust Estate and the making of payments to the
Noteholders and distributions to the holder of the Transferor Interest; and
(vii) from time to time perform such obligations and
exercise and enforce such rights and pursue such remedies as may be
appropriate by virtue of the Trust being party to any of the agreements
contemplated in clauses (i) through (vi) above.
The Trust shall not have power, authority or authorization to, and shall
not, engage in any activity other than in connection with the foregoing or other
than as required or authorized by the Transaction Documents. The Trust shall
have no power to hold any derivative financial instrument unless such derivative
financial instrument complies with the requirements of paragraph 40 of Statement
of Financial Accounting Standards No. 140 issued by the Financial Accounting
Standards Board for "qualified special purpose entities", including any
interpretations thereof or any successor standard issued by the Financial
Accounting Standards Board.
In connection with any of the foregoing, the Trust may (x) execute and
deliver, and/or accept, such instruments, agreements, certificates, Uniform
Commercial Code financing statements and other documents, and create such
security interests, as may be necessary or desirable in connection therewith,
and (y) subject to the terms of this Agreement, take such other action as may be
necessary, helpful or incidental to the foregoing.
(b) The Owner Trustee and the Transferor (or the Administrator
on its behalf) shall at all times maintain the books, records and accounts of
the Trust separate and apart from those of any other Person, and shall cause the
Trust to hold itself out as being a Person separate and apart from any other
Person.
(c) The Trust shall not engage in any business or own any assets
unrelated to the purposes of the Trust.
Section 2.04 APPOINTMENT OF OWNER TRUSTEE. The Transferor hereby appoints
The Bank of New York as Owner Trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein and in the
Delaware Statutory Trust Act.
Section 2.05 DECLARATION OF TRUST. Owner Trustee hereby declares that it
shall hold the Trust Estate in trust upon and subject to the conditions set
forth herein for the use and benefit of Transferor, subject to the obligations
of the Trust under the Transaction Documents to which it is a party. It is the
intention of the parties hereto that the Trust constitute a statutory trust
under the
Delaware Statutory Trust Act and that this Agreement constitute the
governing instrument of such trust. It is the intention of the parties hereto
that, for income tax purposes, the Trust shall be
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treated as a security device and not as an entity separate from Transferor and
its assets shall be treated as owned in whole by Transferor. The parties hereto
agree that they shall take no action contrary to the foregoing intention.
Effective as of the date hereof, Owner Trustee shall have all rights, powers and
authority set forth herein and, to the extent not inconsistent herewith, in the
Delaware Statutory Trust Act with respect to accomplishing the purposes of the
Trust.
Section 2.06 TITLE TO TRUST ESTATE. Title to all of the Trust Estate
shall be vested in the Trust as a separate legal entity until this Agreement
terminates pursuant to Article VII; provided, however, that if the laws of any
jurisdiction require that title to any part of the Trust Estate be vested in the
trustees of a trust, then title to that part of the Trust Estate shall be deemed
to be vested in the Owner Trustee or any co-trustee or separate trustee, as the
case may be, appointed pursuant to Article VIII.
Section 2.07 NATURE OF INTEREST IN THE TRUST ESTATE. The Transferor shall
not have any legal title to or right to possession of any part of the Trust
Estate.
Section 2.08 CREATION OF TRUST; PRINCIPAL OFFICE OF OWNER TRUSTEE. The
Owner Trustee shall file a certificate of trust relating to the Trust with the
Secretary of State and maintain the Owner Trustee's principal office in the
State of Delaware. However, nothing herein shall restrict or prohibit the Owner
Trustee from having employees within or without the State of Delaware. Payments
shall be received by the Trust only in Delaware or New York, and payments shall
be made by the Trust only from Delaware or New York. The Trust shall be located
and administered in the State of Delaware.
Section 2.09 TAX MATTERS. The parties hereto intend that, for income and
franchise tax purposes, the Trust shall be treated as a security device and
disregarded as an entity and its assets shall be treated as owned in whole by
the Transferor, and the parties hereto shall file all their tax returns in a
manner consistent with that intent unless otherwise required by a taxing
authority. Except as otherwise expressly provided herein, any tax elections
required or permitted to be made by the Trust under the Code or otherwise shall
be made by the Transferor. The Trust shall not elect to be treated as a
corporation for any tax purpose.
Section 2.10 FISCAL YEAR. The fiscal year of the Trust shall end on the
last day of December of each year.
Section 2.11 PROTECTION OF TRUST ESTATE.
(a) The Transferor shall take all actions necessary, and the
Issuer shall cooperate with the Transferor, if applicable, to perfect, and
maintain perfection of, the interests of the Issuer in the Trust Estate. The
Transferor shall execute and file and cause to be executed and filed such
financing statements and continuation statements, all in such manner and in such
places as may be required by law fully to perfect, maintain, and protect the
interest of the Issuer in the Trust Estate and in the proceeds thereof and the
interest of the Indenture Trustee in the Trust Estate and the proceeds thereof.
The Transferor shall deliver (or cause to be delivered) to the Owner Trustee and
the Indenture Trustee file-stamped copies of, or filing receipts for, any
document filed as provided above, as soon as available following such filing.
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(b) Within 30 days after the Transferor makes any change to its
name, identity or corporate structure or the jurisdiction of its organization in
any manner that would make any financing statement or continuation statement
filed in accordance with paragraph (a) above seriously misleading within the
meaning of Section 9-506 of the UCC, the Transferor shall give the Owner Trustee
and the Indenture Trustee notice of any such change and shall file such
financing statement or amendments as may be necessary to continue the perfection
of Issuer's and Indenture Trustee's security interest in the Receivables, the
Collateral Security and the proceeds thereof.
(c) The Transferor shall have an obligation to give the Owner
Trustee and the Indenture Trustee prompt written notice of any change in the
jurisdiction of its organization or any relocation of its chief executive office
or other change in location if, as a result of such relocation, the applicable
provisions of the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any new financing
statement and shall file such financing statements or amendments as may be
necessary to perfect or to continue the perfection of the Issuer's security
interest in the Receivables and the proceeds thereof. The Transferor and the
Servicer will at all times maintain each office from which it services
Receivables and its principal executive office within the United States of
America and shall at all times be organized under the laws of the States of the
United Sates of America.
(d) The Owner Trustee shall permit the Indenture Trustee and its
agents at any time following reasonable notice and during normal business hours
to inspect, audit and make copies of and abstracts from the Owner Trustee's
records regarding the Trust Estate.
Section 2.12 ASSIGNMENT TO INDENTURE TRUSTEE. The Transferor hereby
acknowledges and consents to any mortgage, pledge, assignment and grant of a
security interest by the Issuer to the Indenture Trustee pursuant to the
Indenture for the benefit of the Noteholders and any Enhancement Provider of all
right, title and interest of the Issuer in, to and under all property
constituting the Trust Estate and/or the assignment of any or all of the
Issuer's rights and obligations hereunder to the Indenture Trustee.
Section 2.13 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS
OF, TRANSFEROR. Any Person (a) into which the Transferor may be merged or
consolidated, (b) which may result from any merger or consolidation to which the
Transferor shall be a party or (c) which may succeed to the properties and
assets of the Transferor substantially as a whole, which Person in any of the
foregoing cases executes an agreement of assumption to perform every obligation
of the Transferor under this Agreement, shall be the successor to the Transferor
hereunder without the execution or filing of any other document or any further
act by any of the parties to this Agreement; provided, however, that (i) the
Transferor shall have delivered to the Owner Trustee and the Indenture Trustee
an Officers' Certificate (as defined in the Indenture) and an Opinion of Counsel
(as defined in the Indenture) each stating that such consolidation, merger or
succession and such agreement of assumption comply with this Section 2.13 and
that all conditions precedent provided for in this Agreement relating to such
transaction have been complied with, (ii) written confirmation from the Rating
Agency (as defined in the Indenture) that such transaction shall not result in
any Rating Agency reducing or withdrawing its then existing rating of the Notes
and (iii) the Transferor shall have delivered to the Owner Trustee and
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the Indenture Trustee an Opinion of Counsel either (A) stating that, in the
opinion of such counsel, all actions necessary to perfect the interests of the
Owner Trustee and the Indenture Trustee have been taken, including that all
financing statements and continuation statements and amendments thereto have
been executed and filed that are necessary fully to preserve and protect the
interest of the Owner Trustee and Indenture Trustee, respectively, in the Trust
Estate and reciting the details of such filings, or (B) stating that, in the
opinion of such counsel, no such action shall be necessary to preserve and
protect such interests. Following the effectiveness of the succession provided
for in this Section 2.13, the predecessor Transferor shall be released from any
obligations and liabilities provided for under the Transaction Documents other
than any obligations or liabilities incurred by such predecessor Transferor
prior to the effectiveness of such succession.
Section 2.14 LIMITATION ON LIABILITY OF TRANSFEROR AND OTHERS. The
Transferor and any director or officer or employee or agent of the Transferor
may rely in good faith on the advice of counsel or on any document of any kind,
prima facie properly executed and submitted by any Person respecting any matters
arising hereunder. The Transferor, in its capacity as such, shall not be under
any obligation to appear in, prosecute or defend any legal action that shall not
be incidental to its obligations under this Agreement, and that in its opinion
may involve it in any expense or liability. The holders of the Transferor
Interest, including the holders of Supplemental Interests, if any, shall be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE TRANSFEROR
Section 3.01 REPRESENTATIONS AND WARRANTIES OF THE TRANSFEROR. The
Transferor hereby represents and warrants to the Owner Trustee as of the date of
this Agreement that:
(a) The Transferor is corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
corporate power, authority and legal right conduct its business and such
business is presently conducted, and to execute, deliver and perform its
obligations under this Agreement.
(b) The Transferor is duly qualified to do business and is in
good standing (or is exempt from such requirement) in any state required in
order to conduct its business, and has obtained all necessary licenses and
approvals with respect to the Transferor, in each jurisdiction in which failure
to so qualify or to obtain such licenses and approvals would have a material
adverse effect on the interests of the Noteholders hereunder or under the
Indenture; provided, however, that no representation or warranty is made with
respect to any qualifications, licenses or approvals which the Owner Trustee or
the Indenture Trustee has or may be required at any time to obtain, if any, in
connection with the transactions contemplated hereby or by any other Transaction
Document to which the Owner Trustee or the Indenture Trustee, as the case may
be, is a party.
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(c) The execution and delivery of this Agreement and the
consummation of the transactions provided for in this Agreement and in the other
Transaction Documents to which the Transferor is a party have been duly
authorized by the Transferor by all necessary corporate action on its part and
each of this Agreement and the other Transaction Documents to which the
Transferor is a party shall remain, from the time of its execution, an official
record of the Transferor; the Transferor has the power and authority to assign
the property to be assigned to and deposited with the Trust.
(d) The execution and delivery of this Agreement, the
performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof shall not conflict with, result in any breach of
any of the material terms and provisions of, or constitute (with or without
notice or lapse of time or both) a material default under, any indenture,
contract, agreement, mortgage, deed of trust, or other instrument to which the
Transferor is a party or by which it or any of its properties are bound (other
than violations of such indentures, contracts, agreements, mortgages, deeds of
trust or other instruments which, individually or in the aggregate, would not
have a material adverse effect on the Transferor's ability to perform its
obligation under this Agreement).
(e) The execution and delivery of this Agreement, the
performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof shall not conflict with or violate any material
Requirements of Law applicable to the Transferor.
(f) There are no proceedings or investigations pending or
threatened against the Transferor before any court, regulatory body,
administrative agency, or other tribunal or governmental instrumentality having
jurisdiction over the Transferor (i) asserting the invalidity of this Agreement
or any of the Transaction Documents, (ii) seeking to prevent the consummation of
any of the transactions contemplated by this Agreement or any of the Transaction
Documents, (iii) seeking any determination or ruling that, in the reasonable
judgment of the Transferor, would materially and adversely affect the
performance by the Transferor of its obligations under this Agreement or the
Transaction Documents, or (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this Agreement
or the Transaction Documents.
ARTICLE IV
DISTRIBUTIONS OF FUNDS
Section 4.01 DISTRIBUTION OF FUNDS. All funds received by the Trust to
the extent not encumbered by the Indenture and otherwise available for
distribution (or if encumbered by the Indenture, which have been released by the
relevant parties benefiting from such encumbrance) shall be distributed to the
holders of the Transferor Interest.
Section 4.02 PAYMENTS FROM TRUST ESTATE ONLY. All payments to be made by
the Owner Trustee on behalf of the Trust under this Agreement shall be made only
from the income and the capital proceeds derived from the Trust Estate and only
to the extent that the Owner Trustee on behalf of the Trust shall have received
income or capital proceeds from the Trust Estate. The
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Transferor agrees that it shall look solely to the income and capital proceeds
derived from the Trust Estate (to the extent available for payment as herein
provided) and that, except as specifically provided herein, the Owner Trustee
shall not be subject to any liability in its individual capacity under this
Agreement to the Transferor or to any other Person.
Section 4.03 METHOD OF PAYMENT. All amounts payable to the Transferor
pursuant to this Agreement shall be paid by the Owner Trustee on behalf of the
Trust to the Transferor or a nominee therefor in such manner as the Transferor
may from time to time designate in written instructions to the Owner Trustee.
All funds received by the Owner Trustee on behalf of the Trust not later than
2:00 p.m. (New York City time) on a Business Day shall be applied by the Owner
Trustee on that Business Day. Funds received after that time shall be applied on
the next following Business Day.
[Section 4.04 ESTABLISHMENT OF ACCOUNT. The Transferor hereby authorizes
the Owner Trustee to establish and maintain an account on behalf of the Trust
into which all funds received by the Owner Trustee on behalf of the Trust shall
be deposited. Such account shall be designated the "Transferor Trust Account".]
ARTICLE V
AUTHORITY AND DUTIES OF THE OWNER TRUSTEE
Section 5.01 GENERAL AUTHORITY. Each of the Trust and Owner Trustee in
the name and on behalf of the Trust shall have power and authority, and is
hereby authorized and empowered, to execute and deliver the Transaction
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 Transaction Documents
to which the Trust is to be a party, or any amendment thereto or other
agreement, in each case, in such form as Transferor shall approve as evidenced
conclusively by Owner Trustee's execution thereof and Transferor's execution of
the related documents. In addition to the foregoing, Owner Trustee in the name
and on behalf of the Trust shall also have power and authority and is hereby
authorized and empowered, but shall not be obligated, to take all actions
required of the Trust pursuant to the Transaction Documents. Owner Trustee in
the name and on behalf of the Trust shall also have power and authority and is
hereby authorized and empowered from time to time to take such action as
Transferor or Administrator directs in writing with respect to the Transaction
Documents.
Section 5.02 GENERAL DUTIES. It shall be the duty of Owner Trustee to
discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the other Transaction Documents to which the
Trust is a party and to administer the Trust in the interest of Transferor,
subject to the Transaction Documents and in accordance with the provisions of
this Agreement. Notwithstanding the foregoing, Owner Trustee shall be deemed to
have discharged its duties and responsibilities hereunder and under the other
Transaction Documents to the extent Administrator has agreed in the
Administration Agreement or another Transaction Document to perform any act or
to discharge any duty of Owner Trustee or the Trust under any Transaction
Document, and Owner Trustee shall not be personally liable for the
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default or failure of Administrator to carry out its obligations under the
Administration Agreement.
Section 5.03 ACTION UPON INSTRUCTION.
(a) Owner Trustee shall not be required to take any action
hereunder or under any other Transaction Document if Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such action
is likely to result in personal liability on the part of Owner Trustee or is
contrary to the terms of any Transaction Document or is otherwise contrary to
law. In such circumstances, Owner Trustee shall issue an Officer's Certificate
stating that it is refraining from acting under the conditions outlined in this
Section 5.03(a).
(b) Whenever Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of any
Transaction Document, Owner Trustee shall promptly give notice (in such form as
shall be appropriate under the circumstances) to Transferor requesting
instruction as to the course of action to be adopted, and to the extent Owner
Trustee acts or refrains from acting in good faith in accordance with any such
instruction of Transferor received, Owner Trustee shall not be personally liable
on account of such action or inaction to any Person. If Owner Trustee shall not
have received appropriate instruction within ten (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 in violation of the Transaction
Documents, as it shall deem to be in the best interest of Transferor, and shall
have no personal liability to any Person for such action or inaction.
(c) In the event that Owner Trustee is unsure as to the
application of any provision of any Transaction 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 Owner Trustee or is silent or is incomplete as to the course of
action that Owner Trustee is required to take with respect to a particular set
of facts, Owner Trustee may give notice (in such form as shall be appropriate
under the circumstances) to Transferor requesting instruction and, to the extent
that Owner Trustee acts or refrains from acting in good faith in accordance with
any such instruction received, Owner Trustee shall not be personally liable, on
account of such action or inaction, to any Person. If Owner Trustee shall not
have received appropriate instruction within ten (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 in violation of the Transaction
Documents, as it shall deem to be in the best interests of Transferor, and shall
have no personal liability to any Person for such action or inaction.
(d) The Administrator and the Transferor may, by written
instruction, direct the Owner Trustee in the administration of the Trust to the
extent permitted by this Agreement and the Administration Agreement.
Section 5.04 NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT OR IN
INSTRUCTIONS. Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect
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to, register, record, sell, dispose of, or otherwise deal with the Trust or the
Trust Estate, or to otherwise take or refrain from taking any action under, or
in connection with, this Agreement or any document contemplated hereby to which
the Trust is a party, except as expressly provided by the terms of this
Agreement or in any document or written instruction received by Owner Trustee
pursuant to Section 5.03; and no implied duties or obligations shall be read
into any Transaction Document against Owner Trustee. Owner Trustee shall have no
responsibility for any filing or recording, including 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 or the
Trust hereunder or to prepare or file any Commission filing for the Trust, or to
prepare any tax forms, returns or reports or to record any Transaction Document.
Owner Trustee in its individual capacity nevertheless agrees that it shall, 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, Owner Trustee in its individual capacity that are not related
to the ownership or the administration of the Trust Estate or the transactions
contemplated by the Transaction Documents.
Section 5.05 NO ACTION EXCEPT UNDER TRANSACTION DOCUMENTS OR
INSTRUCTIONS. Owner 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 Owner Trustee pursuant to
this Agreement, (ii) in accordance with the Transaction Documents and (iii) in
accordance with any document or instruction delivered to Owner Trustee pursuant
to Section 5.03.
Section 5.06 RESTRICTIONS. Owner Trustee shall not take any action (a)
that, to the actual knowledge of a Responsible Officer of Owner Trustee, would
violate the purposes of the Trust set forth in Section 2.03 or (b) that, to the
actual knowledge of a Responsible Officer of Owner Trustee, would result in the
Trust's becoming taxable as a corporation for federal income tax purposes.
Transferor shall not direct Owner Trustee to take action that would violate the
provisions of this Section 5.06
Section 5.07 NONPETITION COVENANTS. Notwithstanding any prior termination
of the Trust or this Agreement, each of the Owner Trustee and the Transferor
covenants and agrees that it shall not at any time with respect to the Trust
acquiesce, petition or otherwise invoke or cause the Trust to invoke the process
of any court or government authority for the purpose of commencing or sustaining
a case against the Trust under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, conservator, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Trust or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Trust; provided, however, that this Section 5.07 shall not
preclude any remedy described in Article VII of the Indenture.
Section 5.08 TAX RETURNS. In the event the Trust shall be required to
file tax returns, Administrator shall prepare or shall cause to be prepared such
tax returns and shall provide such tax returns to Owner Trustee for signature at
least five (5) days before such tax returns are due to be filed. Administrator,
in accordance with the terms of each Indenture Supplement, shall also prepare or
shall cause to be prepared all tax information required by law to be distributed
to Noteholders and shall deliver such information to Owner Trustee at least five
(5) days prior to
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the date it is required by law to be distributed to Noteholders. Owner Trustee,
upon request, shall furnish Administrator with all such information known to
Owner Trustee as may be reasonably required in connection with the preparation
of all tax returns of the Trust, and shall, upon request, execute such returns.
In no event shall Owner Trustee or Indenture Trustee be liable for any
liabilities, costs or expenses of the Trust or any Noteholder arising under any
tax law, including federal, state or local income or excise taxes or any other
tax imposed on or measured by income (or any interest or penalty with respect
thereto arising from a failure to comply therewith).
ARTICLE VI
CONCERNING THE TRUSTEE BANK
Section 6.01 ACCEPTANCE OF TRUST AND DUTIES. The Trustee Bank accepts the
trust hereby created and agrees to perform the same but only upon the terms of
this Agreement. The Trustee Bank also agrees to disburse all moneys actually
received by it constituting part of the Trust Estate in accordance with the
terms of this Agreement. The Trustee Bank shall not be answerable or accountable
under any circumstances in its individual capacity, except (i) for its own
willful misconduct, bad faith or negligence, (ii) in the case of the inaccuracy
of any representation or warranty contained in Section 6.07, (iii) for the
failure by the Owner Trustee to perform obligations expressly undertaken by it
in the last sentence of subsection 5.04(a), or (iv) for taxes, fees or other
charges on, based on or measured by, any fees, commissions or other compensation
earned by the Trustee Bank for acting as trustee hereunder. In particular, but
not by way of limitation:
(a) The Trustee Bank shall not be personally liable for any
error of judgment made in good faith by an authorized officer of the Owner
Trustee so long as the same shall not constitute negligence, bad faith or
willful misconduct;
(b) The Trustee Bank shall not be personally liable with respect
to any action taken or omitted to be taken by the Owner Trustee in good faith in
accordance with the instructions of the Administrator or Transferor;
(c) No provision of this Agreement or any Transaction Document
shall require the Trustee Bank to expend or risk its personal funds or otherwise
incur any financial liability in the performance of any of its rights or powers
hereunder, if the Trustee Bank 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, including such advances as the Trustee
Bank may reasonably request;
(d) Under no circumstance shall the Trustee Bank be personally
liable for the accuracy or performance of any representation, warranty,
covenant, agreement or other obligation, including any indebtedness, of the
Trust;
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(e) The Trustee Bank shall not be personally responsible or
liable for or in respect of the validity or sufficiency of this Agreement or for
the due execution hereof by the Transferor or with respect to any agreement
entered into by the Trust;
(f) The Trustee Bank shall not be personally liable for the
default or misconduct of, and shall have no duty to monitor the performance of,
Transferor, Servicer, Administrator or Indenture Trustee or any other Person
under any of the Transaction Documents or otherwise, and Trustee Bank shall have
no obligation or personal liability to perform the obligations of the Trust
under the Transaction Documents, including those that are required to be
performed by Administrator under the Administration Agreement, Indenture Trustee
under the Indenture or Servicer under the Transfer and Servicing Agreement;
(g) In no event shall the Trustee Bank be personally liable for
special, consequential or punitive damages unless such damages result from its
willful misconduct or gross negligence, for the acts or omissions of its
nominees, correspondents, clearing agencies or securities depositories, for the
acts or omissions of brokers or dealers, and for any losses due to forces beyond
the control of the Trustee Bank, including strikes, work stoppages, acts of war
or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts
of God and interruptions, loss or malfunctions of utilities, communications or
computer (software and hardware) services. The Trustee Bank shall have no
responsibility for the accuracy of any information provided to the Transferor or
any other Person that has been obtained from, or provided to the Trustee Bank
by, any other Person; and
(h) Trustee Bank 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 any
Transaction Document, at the request, order or direction of Transferor, unless
the Transferor has offered to Trustee Bank (as such and in its individual
capacity) security or indemnity satisfactory to it against the costs, expenses
and liabilities that may be incurred by Trustee Bank therein or thereby. The
right of Trustee Bank to perform any discretionary act enumerated in any
Transaction Document shall not be construed as a duty, and Trustee Bank shall
not be answerable or personally liable to any Person for any such act other than
liability to the Trust and the beneficial owners of the Trust for its own gross
negligence, bad faith or willful misconduct in the performance of any such act
or the omission to perform any such action.
Section 6.02 FURNISHING OF DOCUMENTS. The Owner Trustee shall furnish to
the Transferor and the Indenture Trustee, within a reasonable time under the
circumstances after receipt thereof, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and any other
instruments furnished to the Owner Trustee under the Transaction Documents.
Section 6.03 REPRESENTATIONS AND WARRANTIES AS TO THE TRUST ESTATE. The
Owner Trustee makes no representation or warranty as to, and shall not be liable
for, the title, value, condition, design, operation, merchantability or fitness
for use of the Trust Estate (or any part thereof) or any other representation or
warranty, express or implied, whatsoever with respect to the Trust Estate (or
any part thereof) except that the Owner Trustee, in its individual capacity,
hereby
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represents and warrants to the Transferor that it shall comply with the last
sentence of subsection 5.03(a).
Section 6.04 SIGNATURE OF RETURNS. At the written direction of the
Transferor, the Owner Trustee shall sign on behalf of the Trust any Periodic
Filings of the Trust or other documents relating to the Trust prepared by, or on
behalf of, the Transferor.
Section 6.05 RELIANCE; ADVICE OF COUNSEL. The Owner 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 Owner Trustee may accept a certified copy of
a resolution of the board of directors or other governing body of any entity 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 manner
of ascertainment of which is not specifically prescribed herein, the Owner
Trustee may for all purposes rely on an officer's certificate of the relevant
party, as to such fact or matter, and such officer's certificate shall
constitute full protection to the Owner Trustee for any action taken or omitted
to be taken by it in good faith in reliance thereon. In the administration of
the Trust, the Owner Trustee may, at the expense of the Trust (i) execute the
trust or any of the powers hereof and perform its powers and duties hereunder
directly or through agents or attorneys, and the Owner Trustee shall not be
liable for the default or misconduct of any agent or attorney selected by the
Owner Trustee with reasonable care; and (ii) consult with counsel, accountants
and other skilled persons to be selected with reasonable care and employed by
it, and the Owner Trustee shall not be liable for anything done, suffered or
omitted in good faith by it in accordance with the advice or opinion of any such
counsel, accountants or other skilled persons.
Section 6.06 NOT ACTING IN INDIVIDUAL CAPACITY. Except as provided in
this Article VI, in accepting the trust hereby created the Trustee Bank acts
solely as Owner Trustee hereunder and not in its individual capacity; and all
Persons having any claim against the Trust or the Owner Trustee, whether by
reason of the transactions contemplated by this Agreement or otherwise, shall
look only to the Trust Estate (or a part thereof, as the case may be) for
payment or satisfaction thereof, except as specifically provided in this Article
VI.
Section 6.07 REPRESENTATIONS AND WARRANTIES. The Trustee Bank, other than
a Trustee Bank appointed as a co-trustee, hereby represents and warrants to the
Transferor that:
(a) The Trustee Bank is a Delaware banking corporation duly
organized and validly existing in good standing under the laws of the State of
Delaware. The Trustee Bank has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement.
(b) The Trustee Bank has taken all corporate action necessary to
authorize the execution and delivery by it of this Agreement, and this Agreement
shall be executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
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(c) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated hereby
nor compliance by the Trustee Bank with any of the terms or provisions hereof
shall contravene any federal or Delaware law, governmental rule or regulation
governing the banking or trust powers of the Owner Trustee or any judgment or
order binding on the Trustee Bank, or constitute any default under its charter
documents or by-laws or any indenture, mortgage, contract, agreement or
instrument to which the Trustee Bank is a party or by which any of the Trustee
Bank's properties may be bound.
(d) The Trustee Bank complies with all of the requirements of
Chapter 38, Title 12 of the Delaware Code relating to the qualification of a
trustee of a Delaware statutory trust.
ARTICLE VII
TERMINATION OF
TRUST AGREEMENT
Section 7.01 TERMINATION OF
TRUST AGREEMENT.
(a) The Trust shall dissolve upon the date specified by
Transferor (the "Trust Termination Date", written notice of which shall be
provided to Owner Trustee), provided that the Trust Termination Date shall not
be earlier than the day on which the rights of all Series of Notes to receive
payments from the Trust have terminated. After satisfaction of liabilities of
the Trust as provided by applicable law, any money or other property held as
part of the Trust Estate following such distribution shall be distributed to
Transferor. The bankruptcy, liquidation, dissolution, termination, death or
incapacity of Transferor shall not (x) operate to terminate this Agreement or
annul, dissolve or terminate the Trust, or (y) entitle Transferor'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 subsection 7.01(a), neither the
Transferor any holder of the Transferor Interest shall be entitled to revoke or
terminate the Trust.
(c) Upon the winding up of the Trust in accordance with the
Delaware Statutory Trust Act, the Owner 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 of the Delaware
Statutory Trust Act and therefore the Trust and this Agreement (other than
Article XI) shall terminate.
ARTICLE VIII
SUCCESSOR OWNER TRUSTEES, CO-TRUSTEES
AND SEPARATE OWNER TRUSTEES
Section 8.01 RESIGNATION AND REMOVAL OF THE OWNER TRUSTEE; APPOINTMENT OF
SUCCESSORS. Upon the occurrence of a Disqualification Event with respect to the
Owner Trustee,
16
the Transferor may appoint a successor Owner Trustee by an instrument signed by
the Transferor. If a successor Owner Trustee has not been appointed within 30
days after the giving of written notice of such resignation or the delivery of
the written instrument with respect to such removal, the Owner Trustee or the
Transferor may apply to any court of competent jurisdiction to appoint a
successor Owner Trustee to act until such time, if any, as a successor Owner
Trustee has been appointed as above provided. Any successor Owner Trustee so
appointed by such court shall immediately and without further act be superseded
by any successor Owner Trustee appointed as above provided within one year from
the date of the appointment by such court. The Owner Trustee may resign at any
time without cause by giving at least 30 days' prior written notice to the
Transferor. No such removal or resignation shall become effective until a
successor Owner Trustee, however appointed, becomes vested as Owner Trustee
hereunder pursuant to Section 8.02. The Transferor shall notify the Rating
Agencies promptly after the resignation or removal of the Owner Trustee and
promptly after the appointment of a successor Owner Trustee.
Section 8.02 TRANSFER PROCEDURES. Any successor Owner Trustee, however
appointed, shall execute and deliver to the predecessor Owner Trustee an
instrument accepting such appointment, and such other documents of transfer as
may be necessary, and thereupon such successor Owner Trustee, without further
act, shall become vested with all the estates, properties, rights, powers,
duties and trust of the predecessor Owner Trustee in the trust hereunder with
like effect as if originally named an Owner Trustee herein and the predecessor
Owner Trustee shall be fully discharged of its duties and obligations to serve
as Owner Trustee hereunder. The predecessor Owner Trustee shall promptly deliver
to the successor Owner Trustee all documents, statements and monies held by it
under this Agreement. The successor Owner Trustee shall promptly file an
amendment to the Certificate of Trust with the Secretary of State identifying
the name and principal place of business of such successor Owner Trustee in the
State of Delaware.
Section 8.03 QUALIFICATION OF OWNER TRUSTEE. Any Owner Trustee shall at
all times (i) be a trust company or a banking corporation under the laws of its
state of incorporation or a national banking association, having all corporate
powers and all material governmental licenses, authorizations, consents and
approvals required to carry on a trust business in the State of Delaware, (ii)
comply with Section 3807 (and any other applicable Section) of the Delaware
Statutory Trust Act, (iii) have a combined capital and surplus of not less than
$50,000,000 (or have its obligations and liabilities irrevocably and
unconditionally guaranteed by an affiliated Person having a combined capital and
surplus of at least $50,000,000) and (iv) have (or have a parent which has) a
rating of at least Baa3 by Moody's, at least BBB- by Standard & Poor's or, if
not rated, otherwise satisfactory to each Rating Agency.
Section 8.04 CO-TRUSTEES AND SEPARATE OWNER TRUSTEES. Whenever the Owner
Trustee or the Transferor shall deem it necessary or prudent in order either to
conform to any law of any jurisdiction in which all or any part of the Trust
Estate shall be situated or to make any claim or bring any suit with respect to
the Trust Estate, or whenever the Owner Trustee or the Transferor shall be
advised by counsel satisfactory to them that such action is necessary or
prudent, the Owner Trustee and the Transferor shall execute and deliver an
agreement supplemental hereto and all other instruments and agreements, and
shall take all other actions, necessary or proper to appoint one or more Persons
either as co-trustee or co-trustees jointly with the Owner Trustee of all or any
part of the Trust Estate, or as a separate trustee or separate trustees of all
or any part of
17
the Trust Estate, and to vest in such Persons, in such capacity, such title to
the Trust Estate or any part thereof, and such rights or duties, as may be
necessary or desirable, all for such period and under such terms and conditions
as are satisfactory to the Owner Trustee and the Transferor. In case a
Disqualification Event shall occur with respect to any such co-trustee or
separate trustee, the title to the Trust Estate and all rights and duties of
such co-trustee or separate trustee shall, so far as permitted by law, vest in
and be exercised by the Owner Trustee, without the appointment of a successor to
such co-trustee or separate trustee.
ARTICLE IX
AMENDMENTS
Section 9.01 SUPPLEMENTS AND AMENDMENTS.
(a) This Agreement may be amended from time to time, by a
written amendment duly executed and delivered by Transferor and Owner Trustee,
without the consent of any of the Noteholders, to cure any ambiguity, to correct
or supplement any provisions in this Agreement or to add any other provisions
with respect to matters or questions raised under this Agreement which shall not
be inconsistent with the provisions of this Agreement; provided, however, that
the Issuer shall deliver to the Indenture Trustee and the Owner Trustee an
Officer's Certificate (as defined in the Indenture) to the effect that the
Issuer reasonably believes that such amendment shall not have an Adverse Effect
(as defined in the Indenture) and is not reasonably expected to have an Adverse
Effect at any time in the future.
(b) This Agreement may also be amended from time to time, by a
written instrument executed by the Owner Trustee and the Transferor, with prior
written notice to each Rating Agency, with the consent of the Indenture Trustee
and not less than 66(2)/3% in Outstanding Dollar Principal Amount of the
Outstanding Notes affected by such amendment and upon issuance of a Tax Opinion;
provided, however, that, without the consent of the Holders of all of the Notes
then outstanding, no such amendment shall (a) increase or reduce in any manner
the amount of, or accelerate or delay the timing of, collections of payments in
respect of the Receivables or distributions that are required to be made for the
benefit of the Noteholders or (b) reduce the aforesaid percentage of the
Outstanding Amount (as defined in the Indenture) of the Notes, the Holders of
which are required to consent to any such amendment.
(c) Notwithstanding Sections 9.01(a) and 9.01(b) above, the
permitted activities of the Issuer set forth in Section 2.03 may not be
significantly amended without the consent of Noteholders, other than the Seller
and its Affiliates as Noteholders, evidencing not less than a majority of the
Outstanding Dollar Principal Amount of the Notes held by parties exclusive of
the Transferor and its Affiliates.
(d) Promptly after the execution of any such amendment or
consent, the Issuer shall furnish written notification of the substance of such
amendment or consent to the Indenture Trustee and each Rating Agency.
18
(e) It shall not be necessary for the consent of the Noteholders
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof.
(f) Promptly after the execution of any amendment to the
Certificate of Trust, the Owner Trustee shall cause the filing of such amendment
with the Secretary of State.
(g) The Owner Trustee shall be entitled to receive, and shall be
fully protected in relying upon, an Officer's Certificate of the Issuer to the
effect that the conditions to such amendment have been satisfied. The Owner
Trustee may, but shall not be obligated to, enter into any such amendment which
affects the Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
ARTICLE X
BENEFICIAL INTERESTS
Section 10.01 INITIAL OWNERSHIP. Transferor, as the holder of the
Transferor Interest (i) shall initially be the only beneficial owner of the
Trust and (ii) shall be bound by the provisions of this
Trust Agreement.
Section 10.02 TRANSFEROR INTEREST. The Transferor Interest shall represent
an undivided beneficial interest in the Trust Estate subject to the lien of the
Notes created pursuant to the Indenture, including the right to receive
Collections with respect to the Receivables and other amounts at the times and
in the amounts specified in the Indenture and any Indenture Supplement to be
paid to the holder of the Transferor Interest.
Section 10.03 FORM OF TRANSFEROR INTEREST. The Transferor Interest
initially shall be an uncertificated interest in the Trust.
Section 10.04 RESTRICTIONS ON TRANSFER; ISSUANCE OF SUPPLEMENTAL
INTERESTS. (a) Transferor may from time to time transfer a portion of the
Transferor Interest by causing the issuance of one or more additional interests
(each a "Supplemental Interest"), which shall be in uncertificated form. The
form and terms of any Supplemental Interest shall be defined in a supplement to
this Agreement (which supplement shall be subject to Section 10.9 to the extent
that it amends any of the terms of this Agreement) to be delivered to or upon
the order of Transferor (or the holder of a Supplemental Interest, in the case
of the transfer or exchange thereof, as provided below). The issuance of any
such Supplemental Interest to any Person shall be subject to satisfaction of the
following conditions:
(i) the Rating Agency Condition shall have been satisfied
with respect to such action; and
(ii) Transferor shall have delivered to Owner Trustee,
Indenture Trustee and each Rating Agency a Tax Opinion, dated the date of
such action (or transfer, exchange or other disposition provided below),
with respect to such action and an Opinion of Counsel to the effect that
such action, assignment, participation, pledge or
19
other disposition does not require registration of the interest under the
Securities Act or any state securities law except for any such registration
that has been duly completed and become effective.
A Supplemental Interest may be transferred or exchanged, and the Transferor
Interest may be pledged, only upon satisfaction of the conditions set forth in
clause (ii). No Supplemental Interest (nor any interest therein) may be
transferred to an "employee benefit plan" as defined in Section 3(3) of ERISA,
which is subject to Title I of ERISA, a "plan" as defined in Section 4975 of the
Code, or an entity deemed to hold the plan assets of any of the foregoing by
reason of investment by an employee benefit plan or plan in such entity
(including, without limitation, insurance company general accounts).
(b) Subject to clause (c) below, the Transferor Interest may be
transferred in its entirety to a Person which is a member of the "affiliated
group" as defined in Section 1504(a) of the Code of which Transferor is a member
without the consent or approval of the Noteholders, provided that (i) the Rating
Agency Condition shall have been satisfied with respect to such transfer, (ii)
Transferor shall have delivered to Owner Trustee, Indenture Trustee and each
Rating Agency a Tax Opinion and an Opinion of Counsel of the type described in
Section 3.4(a)(ii), dated the date of such transfer, with respect thereto and
(iii) Transferor shall have delivered to Indenture Trustee an Officer's
Certificate stating that Transferor Amount shall not be less than the Trust
Available Subordinate Amount. In connection with any such transfer, the Person
to whom the Transferor Interest is transferred shall, by its acquisition and
holding of an interest in the Transferor Interest, assume all of the rights and
obligations of Transferor as described in this Agreement, each Transaction
Document and in any supplement or amendment thereto (including the right under
this paragraph (b) with respect to subsequent transfers of an interest in the
Transferor Interest).
(c) No Transferor Interest (nor any interest therein) may be
transferred to an "employee benefit plan" as defined in Section 3(3) of ERISA,
which is subject to Title I of ERISA, a "plan" as defined in Section 4975 of the
Code, or an entity deemed to hold the plan assets of any of the foregoing by
reason of investment by an employee benefit plan or plan in such entity
(including, without limitation, insurance company general accounts).
ARTICLE XI
COMPENSATION OF TRUSTEE BANK AND INDEMNIFICATION
Section 11.01 TRUSTEE BANK FEES AND EXPENSES. The Transferor shall pay to
the Trustee Bank all fees and other charges described in a separate fee
agreement dated as of the date hereof between the Trust and the Trustee Bank
promptly when due thereunder and reimburse the Trustee Bank for all other
reasonable out-of-pocket costs and expenses (including reasonable fees and
expenses of counsel) incurred by it in connection with its acting as Owner
Trustee of the Trust.
Section 11.02 INDEMNIFICATION. To the fullest extent permitted by law, the
Transferor hereby agrees, whether or not any of the transactions contemplated by
this Agreement shall be
20
consummated, to assume liability for, and hereby indemnifies, protects, saves
and keeps harmless the Trustee Bank and its officers, directors, successors,
assigns, legal representatives, agents and servants (each an "Indemnified
Person"), from and against any and all liabilities, obligations, losses,
damages, penalties, taxes, claims, actions, investigations, proceedings, costs,
expenses or disbursements (including reasonable legal fees and expenses) of any
kind and nature whatsoever which may be imposed on or incurred by at any time
against an Indemnified Person (whether or not also indemnified against by any
other person) in any way relating to or arising out of this Agreement or any
other related documents or the enforcement of any of the terms of any thereof,
the administration of the Trust Estate or the action or inaction of the Owner
Trustee, or the Trustee Bank under this Agreement, and the manufacture,
purchase, acceptance, nonacceptance, rejection, ownership, delivery, lease,
possession, use, operation, condition, sale, return or other disposition of any
property (including any strict liability, any liability without fault and any
latent and other defects, whether or not discoverable), except, in any such
case, to the extent that any such liabilities, obligations, losses, damages,
penalties, taxes, claims, actions, investigations, proceedings, costs, expenses
and disbursements are the result of any of the matters described in the third
sentence of Section 6.01; provided, however, that the Transferor shall not be
liable for or required to indemnify an Indemnified Person from and against
expenses arising or resulting from (i) the Indemnified Party's own willful
misconduct, bad faith or negligence, or (ii) the inaccuracy of any
representation or warranty contained in Section 6.07 made by the Indemnified
Person.
In case any such action, investigation or proceeding shall be brought
involving an Indemnified Person, the Transferor shall assume the defense
thereof, including the employment of counsel and the payment of all expenses.
The Trustee Bank shall have the right to employ separate counsel in any such
action, investigation or proceeding and to participate in the defense thereof
and the reasonable counsel fees and expenses of such counsel shall be paid by
the Transferor. In the event of any claim, action or proceeding for which
indemnity shall be sought pursuant to this Section, the Trustee Bank's choice of
legal counsel shall be subject to the approval of the Transferor, which approval
shall not be unreasonably withheld.
The indemnification set forth herein shall survive the termination of this
Agreement and the resignation or removal of the Trustee Bank.
ARTICLE XII
MISCELLANEOUS
Section 12.01 CONVEYANCE BY THE OWNER TRUSTEE IS BINDING. Any sale or
other conveyance of any part of the Trust Estate by the Owner Trustee made
pursuant to the terms of this Agreement shall bind the Transferor and shall be
effective to transfer or convey all beneficial interest of the Owner Trustee and
Transferor in and to such part of the Trust Estate, as the case may be. No
purchaser or other grantee shall be required to inquire as to the authorization,
necessity, expediency or regularity of such sale or conveyance or as to the
application of any sale or other proceeds with respect thereto by the Owner
Trustee or the officers.
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Section 12.02 INSTRUCTIONS; NOTICES. All instructions, notices, requests
or other communications ("Deliveries") desired or required to be given under
this Agreement shall be in writing and shall be sent by (a) certified or
registered mail, return receipt requested, postage prepaid, (b) national prepaid
overnight delivery service, (c) telecopy or other facsimile transmission (with
hard copy following immediately by U.S. mail, postage prepaid) or (d) personal
delivery, with receipt acknowledged in writing, to the following addresses:
(i) if to CWRI:
[ ]
Attention: [____________]
Facsimile: ( ) ___-____
(ii) if to the Owner Trustee:
The Bank of New York
[Address]
Attention:
Facsimile:
All Deliveries shall be deemed given when actually received or refused by
the party to whom the same is directed (except to the extent sent by certified
or registered mail, return receipt requested, postage prepaid, in which event
such Deliveries shall be deemed given three days after the date of mailing and
except to the extent sent by telecopy or other facsimile transmission, in which
event such Deliveries shall be deemed given when answer back is received).
Either party may designate a change of address or supplemental address by notice
to the other party, given at least 15 days before such change of address is to
become effective.
Section 12.03 SEVERABILITY. Any provision of this Agreement which 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 any provision hereof in any other jurisdiction.
Section 12.04 LIMITATION OF LIABILITY. (a) Neither the Transferor nor any
officer, director, employee, agent, partner, shareholder, trustee or principal
of the Transferor, the Trust or any Person owning, directly or indirectly, any
legal or beneficial interest in the Transferor, shall have any liability or
obligation with respect to the Trust or the performance of this Agreement or any
other agreement, document or instrument executed by the Trust, and the creditors
of the Trust and all other Persons shall look solely to the Trust Estate for the
satisfaction of any claims with respect thereto. The foregoing limitation of
liability is subject to Section 12.06 and is in addition to, and not exclusive
of, any limitation of liability applicable to the Persons referred to above by
operation of law.
(b) All agreements entered into by the Trust under which the
Trust would have any material liability shall contain an exculpatory provision
substantially to the following effect:
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Neither any trustee nor any beneficiary of CNH Wholesale Master Note Trust
nor any of their respective officers, directors, employers or agents shall have
any liability with respect to this agreement, and recourse may be had solely to
the assets of CNH Wholesale Master Note Trust with respect thereto.
Section 12.05 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 12.06 SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the Owner
Trustee and its successors and assigns and the Transferor and their successors
and permitted assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by the Transferor shall bind the
successors and assigns of the Transferor.
Section 12.07 HEADINGS. The headings of the various Sections herein are
for convenience of reference only and shall not limit any of the terms or
provisions herein.
Section 12.08 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD
TO CONFLICTS OF LAW PRINCIPLES OF SUCH STATE.
Section 12.09 NO RECOURSE. Each Person holding or owning the Transferor
Interest (or any interest therein), by accepting the Transferor Interest (or its
interest therein), acknowledges that the Transferor Interest does not represent
an interest in or obligation of Servicer, Owner Trustee (as such or in its
individual capacity), Indenture Trustee or any Affiliate thereof (other than the
Trust), and no recourse may be had against such parties or their assets, or
against the assets pledged under the Indenture, except as expressly provided in
the Transaction Documents.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to
be duly executed, by their respective officers hereunto duly authorized all as
of the day and year first above written.
THE BANK OF NEW YORK, as Owner Trustee
By:
--------------------------
Name:
Title:
CNH WHOLESALE RECEIVABLES, INC., as
Transferor
By:
--------------------------
Name:
Title:
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EXHIBIT A
CERTIFICATE OF TRUST OF
CNH WHOLESALE MASTER NOTE TRUST
THIS Certificate of Trust of CNH Wholesale Master Note Trust (the "Trust")
has been duly executed and is being filed by
[_____________________], a Delaware banking corporation, as trustee, to
create a statutory trust under the Delaware Statutory Trust Act (12 Del. C., ss.
3801 et seq.).
1. Name. The name of the statutory trust created hereby is CNH Wholesale
Master Note Trust.
2. Delaware Trustee. The name and business address of the trustee of the
Trust in the State of Delaware are [_____________________],
[______________________], Attention: [_____________________].
3. Effective Date. This Certificate of Trust shall be effective on
_______ __, 2003.
IN WITNESS WHEREOF, the undersigned, has executed this Certificate of Trust
in accordance with Section 3811(a) of the Delaware Statutory Trust Act.
The Bank of New York,
not in its individual capacity
but solely as Owner Trustee
By:
--------------------------
Name:
Title: