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CASE EQUIPMENT LOAN TRUST 1996-B
TRUST AGREEMENT
between
CASE RECEIVABLES II INC.
and
CHASE MANHATTAN BANK DELAWARE,
as Trustee
Dated as of September 1, 1996
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Table of Contents
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Page
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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.................... 6
SECTION 2.8. Title to Trust Property................................ 6
SECTION 2.9. Situs of Trust......................................... 7
SECTION 2.10. Representations and Warranties of the Depositor....... 7
SECTION 2.11. Federal Income Tax Allocations........................ 8
ARTICLE III
Trust Certificates and Transfer of Interests
SECTION 3.1. Initial Ownership...................................... 9
SECTION 3.2. The Trust Certificates................................. 9
SECTION 3.3. Authentication of Trust Certificates................... 9
SECTION 3.4. Registration of Transfer and Exchange of Trust
Certificates.......................................... 10
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Trust Certificates 11
SECTION 3.6. Persons Deemed Certificateholders...................... 11
SECTION 3.7. Access to List of Certificateholders' Names and
Addresses............................................. 12
SECTION 3.8. Maintenance of Office or Agency........................ 12
SECTION 3.9. Appointment of Paying Agent............................ 12
SECTION 3.10. Disposition by Depositor.............................. 13
SECTION 3.11. Book-Entry Trust Certificates......................... 13
SECTION 3.12. Notices to Clearing Agency............................ 14
SECTION 3.13. Definitive Trust Certificates......................... 15
ARTICLE IV
Actions by Trustee
SECTION 4.1. Prior Notice to Certificateholders with Respect to
Certain Matters....................................... 15
SECTION 4.2. Action by Certificateholders with Respect to Certain
Matters............................................... 16
SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy 16
SECTION 4.4. Restrictions on Certificateholders' Power.............. 17
SECTION 4.5. Majority Control....................................... 17
ARTICLE V
Application of Trust Funds; Certain Duties
SECTION 5.1. Establishment of Trust Account......................... 17
SECTION 5.2. Applications of Trust Funds............................ 17
SECTION 5.3. Method of Payment...................................... 18
SECTION 5.4. No Segregation of Moneys; No Interest.................. 18
SECTION 5.5. Accounting and Reports to the Indenture Noteholders,
Certificateholders, the Internal Revenue Service
and Others............................................ 18
SECTION 5.6. Signature on Returns; Tax Matters Partner.............. 19
ARTICLE VI
Authority and Duties of Trustee
SECTION 6.1. General Authority...................................... 19
SECTION 6.2. General Duties......................................... 20
SECTION 6.3. Action upon Instruction................................ 20
SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions.......................................... 21
SECTION 6.5. No Action Except Under Specified Documents or
Instructions.......................................... 21
SECTION 6.6. Restrictions........................................... 22
ARTICLE VII
Concerning the Trustee
SECTION 7.1. Acceptance of Trusts and Duties........................ 22
SECTION 7.2. Furnishing of Documents................................ 23
SECTION 7.3. Representations and Warranties......................... 23
SECTION 7.4. Reliance; Advice of Counsel............................ 24
SECTION 7.5. Not Acting in Individual Capacity...................... 25
SECTION 7.6. Trustee Not Liable for Trust Certificates or
Receivables........................................... 25
SECTION 7.7. Trustee May Not Own Notes.............................. 25
ARTICLE VIII
Compensation of Trustee
SECTION 8.1. Trustee's Fees and Expenses............................ 26
SECTION 8.2. Indemnification........................................ 26
SECTION 8.3. Payments to the Trustee................................ 26
ARTICLE IX
Termination of Trust Agreement
SECTION 9.1. Termination of Trust Agreement......................... 27
SECTION 9.2. Dissolution upon Bankruptcy of the Depositor........... 28
ARTICLE X
Successor Trustees and Additional Trustees
SECTION 10.1. Eligibility Requirements for Trustee.................. 29
SECTION 10.2. Resignation or Removal of Trustee..................... 29
SECTION 10.3. Successor Trustee..................................... 30
SECTION 10.4. Merger or Consolidation of Trustee.................... 31
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee......... 31
ARTICLE XI
Miscellaneous
SECTION 11.1. Supplements and Amendments............................ 32
SECTION 11.2. No Legal Title to Trust Estate in Certificateholders.. 34
SECTION 11.3. Limitations on Rights of Others....................... 34
SECTION 11.4. Notices............................................... 34
SECTION 11.5. Severability.......................................... 35
SECTION 11.6. Separate Counterparts................................. 35
SECTION 11.7. Successors and Assigns................................ 35
SECTION 11.8. Covenants of the Depositor............................ 35
SECTION 11.9. No Petition........................................... 36
SECTION 11.10. No Recourse.......................................... 36
SECTION 11.11. Headings............................................. 36
SECTION 11.12. Governing Law........................................ 36
SECTION 11.13. Administrator........................................ 36
EXHIBITS
EXHIBIT A Form of Trust Certificate
EXHIBIT B Form of Certificate of Trust
TRUST AGREEMENT dated as of September 1, 1996, 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 1.1. 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 Class
B Note Purchase Agreement, the Certificate Depository Agreement, the
Indenture Note 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.
"Book-Entry Trust Certificate" shall mean a beneficial interest in
the Trust Certificates, ownership and transfers of which shall be made
through book-entries by a Clearing Agency as described in Section 3.11.
"Certificate Distribution Account" shall have the meaning assigned to
such term in Section 5.1.
"Certificate Depository Agreement" shall mean the agreement dated the
Closing Date among the Trust, the Trustee, the Administrator and The
Depository Trust Company, as the initial Clearing Agency, relating to the
Trust Certificates, as the same may be amended and supplemented from time
to time.
"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 Owner" shall mean, with respect to a Book-Entry Trust
Certificate, the Person who is the beneficial owner of such Book-Entry
Trust Certificate, as reflected on the books of the Clearing Agency, or on
the books of a Person maintaining an account with such Clearing Agency
(directly as a Clearing Agency Participant or as an indirect participant,
in each case in accordance with the rules of such Clearing Agency).
"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).
"Definitive Trust Certificates" shall have the meaning set forth in
Section 3.11.
"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 fourteenth day of the calendar month in which such
Payment Date occurs, or if Definitive Trust Certificates are issued, the
close of business on the last day of the calendar month preceding the month
of such Payment Date, whether or not such day is a Business Day.
"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 3801 et seq., as the same may be amended from time to
time.
SECTION 1.2. 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 2.1. Name. The Trust created hereby shall be known as "Case
Equipment Loan Trust 1996-B", in which name the Trustee may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and ▇▇▇ and be sued.
SECTION 2.2. Office. The office of the Trust shall be in care of the
Trustee at the Corporate Trust Office or at such other address in Delaware
as the Trustee may designate by written notice to the Certificateholders
and the Depositor.
SECTION 2.3. Purposes and Powers. The purpose of the Trust is, and
the Trust shall have the power and authority to, engage in the following
activities:
(a) to issue the Indenture Notes pursuant to the Indenture, the
Class B Notes pursuant to the Class B Note Purchase Agreement and the
Trust Certificates pursuant to this Agreement and to sell the
Indenture Notes, the Class B Notes and the Trust Certificates in one
or more transactions;
(b) with the proceeds of the sale of the Indenture Notes, the
Class B 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, the Class B Noteholders and the Indenture
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 2.4. Appointment of Trustee. The Depositor hereby appoints
the Trustee as trustee of the Trust effective as of the date hereof, to
have all the rights, powers and duties set forth herein.
SECTION 2.5. Initial Capital Contribution of Trust Estate. The
Depositor hereby contributes to the Trustee, as of the date hereof, the sum
of $1.00. The Trustee hereby acknowledges receipt in trust from the
Depositor, as of the date hereof, of the foregoing contribution, which
shall constitute the initial Trust Estate and shall be deposited in the
Certificate Distribution Account. The Depositor shall pay organizational
expenses of the Trust as they may arise or shall, upon the request of the
Trustee, promptly reimburse the Trustee for any such expenses paid by the
Trustee. The Depositor may also take steps necessary, including the
execution and filing of any necessary filings, to ensure that the Trust is
in compliance with any applicable state securities law.
SECTION 2.6. Declaration of Trust. The Trustee hereby declares that
it will hold the Trust Estate in trust upon and subject to the conditions
set forth herein for the use and benefit of the Certificateholders, subject
to the obligations of the Trust under the Basic Documents. It is the
intention of the parties hereto that the Trust constitute a business trust
under the Trust Statute and that this Agreement constitute the governing
instrument of such business trust. 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
Indenture Notes and Class B Notes being debt of the partnership. The
parties agree that, unless otherwise required by appropriate tax
authorities, the Trust will file or cause to be filed annual or other
necessary returns, reports and other forms consistent with the
characterization of the Trust as a partnership for such tax purposes.
Effective as of the date hereof, the Trustee shall have all rights, powers
and duties set forth herein and in the Trust Statute with respect to
accomplishing the purposes of the Trust.
SECTION 2.7. Liability of the Certificateholders. (a) The Depositor
shall be liable directly to, and will indemnify, any injured party for all
losses, claims, damages, liabilities and expenses of the Trust (including
Expenses, to the extent not paid out of the Trust Estate) to the extent
that the Depositor would be liable if the Trust were a partnership under
the Delaware Revised Uniform Limited Partnership Act in which the Depositor
were a general partner; provided, however, that the Depositor shall not be
liable for any losses incurred by a Certificateholder in the capacity of an
investor in the Trust Certificates, a Class B Noteholder in the capacity of
an investor in the Class B Notes or an Indenture Noteholder in the capacity
of an investor in the Indenture Notes. In addition, any third party
creditors of the Trust (other than in connection with the obligations
described in the preceding sentence for which the Depositor shall not be
liable) shall be deemed third party beneficiaries of this paragraph. The
obligations of the Depositor under this paragraph shall be evidenced by the
Trust Certificates described in Section 3.10, which for purposes of the
Trust Statute shall be deemed to be a separate class of Trust Certificates
from all other Trust Certificates issued by the Trust; provided, that the
rights and obligations evidenced by all Trust Certificates, regardless of
class, except as provided in this Section, shall be identical.
(b) No Certificateholder, other than to the extent set forth in
paragraph (a), shall have any personal liability for any liability or
obligation of the Trust.
SECTION 2.8. 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 2.9. 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 2.10. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Trustee that:
(a) The Depositor is duly organized and validly existing as a
corporation in good standing under the laws of the State of Delaware,
with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is
presently conducted.
(b) The Depositor is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease
of property or the conduct of its business shall require such
qualifications.
(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 2.11. Federal Income Tax Allocations. 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.
ARTICLE III
Trust Certificates and Transfer of Interests
SECTION 3.1. Initial Ownership. Upon the formation of the Trust by
the contribution by the Depositor pursuant to Section 2.5, and until the
issuance of the Trust Certificates, the Depositor shall be the sole
beneficiary of the Trust.
SECTION 3.2. The Trust Certificates. The Trust Certificates shall be
issued in denominations of $1,000 or in integral multiples of $1,000 in
excess thereof; provided, however, the Trust Certificates issued to the
Depositor pursuant to Section 3.10 may be issued in such denomination as to
include any residual amount. The Trust Certificates shall be executed on
behalf of the Trust by manual or facsimile signature of an authorized
officer of the Trustee. Trust Certificates bearing the manual or facsimile
signatures of individuals who were, at the time when such signatures shall
have been affixed, authorized to sign on behalf of the Trust, shall be,
when authenticated pursuant to Section 3.3, validly issued and entitled to
the benefits of this Agreement, notwithstanding that such individuals or
any of them shall have ceased to be so authorized prior to the
authentication and delivery of such Trust Certificates or did not hold such
offices at the date of authentication and delivery of such Trust
Certificates.
SECTION 3.3. Authentication of Trust Certificates. Concurrently with
the sale of the Receivables to the Trust pursuant to the Sale and Servicing
Agreement, the Trustee shall cause the Trust Certificates in an aggregate
principal amount equal to the Initial Certificate Balance to be executed on
behalf of the Trust, authenticated and delivered to or upon the written
order of the Depositor, signed by its chairman of the board, its president
or any vice president, without further corporate action by the Depositor,
in authorized denominations. No Trust Certificate shall entitle its Holder
to any benefit under this Agreement, or shall be valid for any purpose,
unless there shall appear on such Trust Certificate a certificate of
authentication substantially in the form set forth in Exhibit A, executed
by the Trustee 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 3.4. Registration of Transfer and Exchange of Trust
Certificates. The Trust shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 3.8, a register (the "Certificate
Register") in which, subject to such reasonable regulations as it may
prescribe, the Issuer shall provide for the registration of Trust
Certificates and of transfers and exchanges of Trust Certificates. The
Paying Agent shall be the "Certificate Registrar" for the purpose of
registering Trust Certificates and the transfers of Trust Certificates as
herein provided. Upon any resignation of any Certificate Registrar, the
Depositor shall promptly appoint a successor or, if it elects not to make
such an appointment, assume the duties of the Certificate Registrar.
Upon surrender for registration of transfer of any Trust Certificate
at the office or agency maintained pursuant to Section 3.8, if the
requirements of Section 8-401(l) of the UCC are met, the Trustee shall
execute, authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Trust Certificates in authorized
denominations of a like aggregate principal amount.
At the option of a Holder, Trust Certificates may be exchanged for
other Trust Certificates of authorized denominations, of a like aggregate
principal amount, upon surrender of the Trust Certificates to be exchanged
at the office or agency maintained pursuant to Section 3.8. Whenever any
Trust Certificates are so surrendered for exchange, if the requirements of
Section 8-401(l) of the UCC are met, the Trustee shall execute,
authenticate and deliver the Trust Certificates that the Certificateholder
making the exchange is entitled to receive.
All Trust Certificates issued upon any registration of transfer or
exchange of Trust Certificates shall be entitled to the same benefits under
this Agreement as the Trust Certificates surrendered upon such registration
of transfer or exchange.
Every Trust Certificate presented or surrendered for registration of
transfer or exchange shall be duly endorsed by, or be accompanied by a
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by, the Holder thereof or his attorney
duly authorized in writing. Each Trust Certificate surrendered for
registration of transfer or exchange shall be cancelled 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 or
Certificate Owner 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 or a Certificate
Owner is or is not a Benefit Plan.
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Trust
Certificates. If: (a) any mutilated Trust Certificate shall be surrendered
to the Certificate Registrar, or if the Certificate Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Certificate (provided, that the Trustee shall not be required to verify the
evidence provided to it), and (b) there shall be delivered to the
Certificate Registrar and the Trustee such security or indemnity as may be
required by them to hold each of them harmless, then, in the absence of
notice that such Trust Certificate shall have been acquired by a bona fide
purchaser, and provided that the requirements of Section 8-405 of the UCC
are met, the Trustee on behalf of the Trust shall execute, authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Trust Certificate, a replacement Trust Certificate of like tenor
and denomination.
In connection with the issuance of any replacement Trust Certificate
under this Section, the Trustee and the Certificate Registrar may require
the payment by the Certificateholder of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection therewith.
Any replacement Trust Certificate issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Trust Certificate
shall constitute conclusive evidence of ownership in the Trust, as if
originally issued, whether or not the mutilated, lost, stolen or destroyed
Trust Certificate shall be found at any time, and shall be entitled to all
the benefits of this Agreement.
SECTION 3.6. Persons Deemed Certificateholders. Prior to due
presentation of a Trust Certificate for registration of transfer of any
Trust Certificate, the Trustee or the Certificate Registrar may treat the
Person in whose name any Trust Certificate shall be registered in the
Certificate Register (as of the day of determination) as the owner of such
Trust Certificate for the purpose of receiving distributions pursuant to
Section 5.2 and for all other purposes whatsoever, and neither the Trustee
nor the Certificate Registrar shall be bound by any notice to the contrary.
SECTION 3.7. Access to List of Certificateholders' Names and
Addresses. The Trustee shall furnish or cause to be furnished to the
Servicer and the Depositor, within 15 days after receipt by the Trustee of
a request therefor from the Servicer or the Depositor in writing, a list,
in such form as the Servicer or the Depositor may reasonably require, of
the names and addresses of the Certificateholders as of the most recent
Record Date. If three or more Certificateholders or one or more Holder(s)
of Trust Certificates evidencing not less than 25% of the Certificate
Balance apply in writing to the Trustee, and such application states that
the applicants desire to communicate with other Certificateholders with
respect to their rights under this Agreement or under the Trust
Certificates and such application shall be accompanied by a copy of the
communication that such applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt of such application,
afford such applicants access during normal business hours to the current
list of Certificateholders. Each Holder, by receiving and holding a Trust
Certificate, shall be deemed to have agreed not to hold any of the
Depositor, the Certificate Registrar or the Trustee accountable by reason
of the disclosure of its name and address, regardless of the source from
which such information was derived.
SECTION 3.8. Maintenance of Office or Agency. The Trustee shall
maintain in the Borough of Manhattan, City of New York an office or offices
or agency or agencies where Trust Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or
upon the Trustee in respect of the Trust Certificates and the Basic
Documents may be served. The Trustee initially designated The 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 3.9. Appointment of Paying Agent. The Paying Agent shall
make distributions to Certificateholders from the Certificate Distribution
Account pursuant to Section 5.2 and shall report the amounts of such
distributions to the Trustee. Any Paying Agent shall have the revocable
power to withdraw funds from the Certificate Distribution Account for the
purpose of making the distributions referred to above. The Trustee may
revoke such power and remove the Paying Agent if the Trustee determines in
its sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. The Paying Agent
shall initially be The 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.
SECTION 3.10. Disposition by Depositor. On and after the Closing
Date, the Depositor shall retain beneficial and record ownership of Trust
Certificates representing at least 1% of the Certificate Balance. Any
attempted transfer of any Trust Certificate that would reduce such interest
of the Depositor below 1% of the Certificate Balance shall be void. The
Trustee shall cause any Trust Certificate issued to the Depositor on the
Closing Date (and any Trust Certificate issued in exchange therefor) to
contain a legend stating "THIS CERTIFICATE IS NONTRANSFERABLE."
SECTION 3.11. Book-Entry Trust Certificates. The Trust Certificates,
upon original issuance, will be issued in the form of a typewritten Trust
Certificate or Trust Certificates representing Book-Entry Trust
Certificates, to be delivered to The Depository Trust Company, as the
initial Clearing Agency, or its custodian, by, or on behalf of, the Trust;
provided, however, that one Definitive Trust Certificate may be issued to
the Depositor pursuant to Section 3.10. Such Trust Certificate(s) shall
initially be registered on the Certificate Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Certificate Owner
will receive a Definitive Trust Certificate representing such Certificate
Owner's interest in such Trust Certificate, except as provided in Section
3.13. Unless and until definitive, fully registered Trust Certificates (the
"Definitive Trust Certificates") have been issued to Certificate Owners
pursuant to Section 3.13:
(i) the provisions of this Section shall be in full force and
effect;
(ii) the Certificate Registrar and the Trustee shall be entitled
to deal with the Clearing Agency for all purposes of this Agreement
(including the payment of principal of and interest on the Trust
Certificates and the giving of instructions or directions hereunder)
as the sole Holder of the Trust Certificates (other than the Trust
Certificate held by the Depositor) and shall have no obligation to
the Certificate Owners;
(iii) to the extent that the provisions of this Section conflict
with any other provisions of this Agreement, the provisions of this
Section shall control;
(iv) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and shall be limited to those established
by law and agreements between such Certificate Owners and the
Clearing Agency and/or the Clearing Agency Participants pursuant to
the Certificate Depository Agreement. Unless and until Definitive
Trust Certificates are issued (other than the Definitive Trust
Certificate held by the Depositor), the Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and
receive and transmit payments of principal of and interest on the
Trust Certificates to such Clearing Agency Participants; and
(v) whenever this Agreement requires or permits actions to be
taken based upon instructions or directions of Holders of Trust
Certificates evidencing a specified percentage of the Certificate
Balance, the Clearing Agency shall be deemed to represent such
percentage only to the extent that it has received instructions to
such effect from Certificate Owners and/or Clearing Agency
Participants owning or representing, respectively, such required
percentage of the beneficial interest in the Trust Certificates and
has delivered such instructions to the Trustee.
SECTION 3.12. Notices to Clearing Agency. Whenever a notice or other
communication to the Certificateholders is required under this Agreement,
unless and until Definitive Trust Certificates shall have been issued to
Certificate Owners (other than the Definitive Trust Certificate held by the
Depositor), the Trustee shall give all such notices and communications
specified herein to be given to Certificateholders to the Clearing Agency,
and shall have no obligations to Certificate Owners.
SECTION 3.13. Definitive Trust Certificates. If: (i) the
Administrator advises the Trustee in writing that the Clearing Agency is no
longer willing or able to properly discharge its responsibilities with
respect to the Trust Certificates, and the Administrator is unable to
locate a qualified successor, (ii) the Administrator at its option advises
the Trustee in writing that it elects to terminate the book-entry system
through the Clearing Agency or (iii) after the occurrence of an Event of
Default or a Servicer Default, Certificate Owners representing beneficial
interests aggregating at least a majority of the Certificate Balance advise
the Clearing Agency in writing that the continuation of a book-entry system
through the Clearing Agency is no longer in the best interests of the
Certificate Owners, then the Clearing Agency has undertaken to notify all
Certificate Owners and the Trustee of the occurrence of any such event and
of the availability of the Definitive Trust Certificates to Certificate
Owners requesting the same. Upon surrender to the Trustee of the
typewritten Trust Certificate(s) representing the Book-Entry Trust
Certificates by the Clearing Agency, accompanied by registration
instructions, the Trustee shall execute and authenticate the Definitive
Trust Certificates in accordance with the instructions of the Clearing
Agency. Neither the Certificate Registrar nor the Trustee shall be liable
for any delay in delivery of such instructions and may conclusively rely
on, and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Trust Certificates, the Trustee shall recognize the
Holders of the Definitive Trust Certificates as Certificateholders. The
Definitive Trust Certificates shall be printed, lithographed or engraved or
may be produced in any other manner as is reasonably acceptable to the
Trustee, as evidenced by its execution thereof.
ARTICLE IV
Actions by Trustee
SECTION 4.1. Prior Notice to Certificateholders with Respect to
Certain Matters. With respect to the following matters, the Trustee shall
not take action unless, at least 30 days before the taking of such action,
the Trustee shall have notified the Certificateholders in writing of the
proposed action and the Certificateholders shall not have notified the
Trustee in writing prior to the 30th day after such notice is given that
such Certificateholders have withheld consent or shall not have provided
alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except
claims or lawsuits brought in connection with the collection of the
Receivables) and the compromise of any action, claim or lawsuit
brought by or against the Trust (except with respect to the
aforementioned claims or lawsuits for collection of Receivables);
(b) the election by the Trust to file an amendment to the
Certificate of Trust;
(c) the amendment of the Indenture or the Class B Note Purchase
Agreement in circumstances where the consent of any Indenture
Noteholder or Class B Noteholder is required;
(d) the amendment of the Indenture or the Class B Note Purchase
Agreement in circumstances where the consent of any Indenture
Noteholder or Class B 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
Indenture 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 Indenture Note Registrar, Paying
Agent or Indenture Trustee or Certificate Registrar of its
obligations under the Indenture or this Agreement, as applicable.
SECTION 4.2. Action by Certificateholders with Respect to Certain
Matters. The Trustee shall not have the power, except upon the direction of
the Certificateholders, to: (a) remove the Administrator under the
Administration Agreement, (b) appoint a successor Administrator, (c) remove
the Servicer under the Sale and Servicing Agreement or (d) except as
expressly provided in the Basic Documents, sell the Receivables after the
termination of the Indenture. The Trustee shall take the actions referred
to in the preceding sentence only upon written instructions signed by the
Certificateholders.
SECTION 4.3. Action by Certificateholders with Respect to
Bankruptcy. The Trustee shall not have the power to commence a voluntary
proceeding in bankruptcy relating to the Trust without the unanimous prior
approval of all Certificateholders and the delivery to the Trustee by each
such Certificateholder of a certificate certifying that such
Certificateholder reasonably believes that the Trust is insolvent.
SECTION 4.4. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any
obligation of the Trust or the Trustee under this Agreement or any of the
Basic Documents or would be contrary to Section 2.3, nor shall the Trustee
be obligated to follow any such direction, if given.
SECTION 4.5. Majority Control. Except as expressly provided herein,
any action that may be taken by the Certificateholders under this Agreement
may be taken by the Holders of Trust Certificates evidencing not less than
a majority of the Certificate Balance. Except as expressly provided herein,
any written notice of the Certificateholders delivered pursuant to this
Agreement shall be effective if signed by Holders of Trust Certificates
evidencing not less than a majority of the Certificate Balance at the time
of the delivery of such notice.
ARTICLE V
Application of Trust Funds; Certain Duties
SECTION 5.1. Establishment of Trust Account. The Trustee, for the
benefit of the Certificateholders, shall establish and maintain in the name
of the Trust an Eligible Deposit Account (the "Certificate Distribution
Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Certificateholders.
The Trust shall possess all right, title and interest in all funds on
deposit from time to time in the Certificate Distribution Account and in
all proceeds thereof. Except as otherwise expressly provided herein, the
Certificate Distribution Account shall be under the sole dominion and
control of the Trustee for the benefit of the Certificateholders. If, at
any time, the Certificate Distribution Account ceases to be an Eligible
Deposit Account, the Trustee (or the Depositor on behalf of the Trustee, if
the Certificate Distribution Account is not then held by the Trustee or an
affiliate thereof) shall, within 10 Business Days (or such longer period,
not to exceed 30 calendar days, as to which the Rating Agency Condition
shall be satisfied), establish a new Certificate Distribution Account as an
Eligible Deposit Account and shall transfer any cash and/or any investments
to such new Certificate Distribution Account.
SECTION 5.2. Applications of Trust Funds. (a) On each Payment Date,
the Trustee will distribute to Certificateholders, on a pro rata basis,
amounts deposited in the Certificate Distribution Account pursuant to
Sections 5.5, 5.6 and 5.7 of the Sale and Servicing Agreement.
(b) On each Payment Date, the Trustee shall send to each
Certificateholder the statement provided to the Trustee by the Servicer
pursuant to Section 5.10 of the Sale and Servicing Agreement.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to a Certificateholder, such tax shall
reduce the amount otherwise distributable to the Certificateholder in
accordance with this Section. The Trustee is hereby authorized and directed
to retain from amounts otherwise distributable to the Certificateholders
sufficient funds for the payment of any tax that is legally owed by the
Trust (but such authorization shall not prevent the Trustee from contesting
any such tax in appropriate proceedings, and withholding payment of such
tax, if permitted by law, pending the outcome of such proceedings). The
amount of any withholding tax imposed with respect to a Certificateholder
shall be treated as cash distributed to such Certificateholder at the time
it is withheld by the Trust. If there is a possibility that withholding tax
is payable with respect to a distribution (such as a distribution to a
non-U.S. Certificateholder), the Trustee may, in its sole discretion,
withhold such amounts in accordance with this paragraph (c). In the event
that a Certificateholder wishes to apply for a refund of any such
withholding tax, the Trustee shall reasonably cooperate with such
Certificateholder in making such claim so long as such Certificateholder
agrees to reimburse the Trustee for any out-of-pocket expenses incurred.
SECTION 5.3. Method of Payment. Subject to Section 9.1(c),
distributions required to be made to Certificateholders on any Payment Date
shall be made to each Certificateholder of record on the preceding Record
Date either by wire transfer, in immediately available funds, to the
account of such Holder at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have provided to the
Certificate Registrar appropriate written instructions at least five
Business Days prior to such Payment Date and such Holder's Trust
Certificates aggregate not less than $1,000,000, or, if not, by check
mailed to such Certificateholder at the address of such Holder appearing in
the Certificate Register.
SECTION 5.4. No Segregation of Moneys; No Interest. Subject to
Sections 5.1 and 5.2, moneys received by the Trustee hereunder need not be
segregated in any manner except to the extent required by law or the Sale
and Servicing Agreement and may be deposited under such general conditions
as may be prescribed by law, and the Trustee shall not be liable for any
interest thereon.
SECTION 5.5. Accounting and Reports to the Indenture 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 5.6. 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 6.1. General Authority. The Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is
to be a party and each certificate or other document attached as an exhibit
to or contemplated by the Basic Documents to which the Trust is to be a
party, in each case in such form as the Depositor shall approve as
evidenced conclusively by the Trustee's execution thereof, and, on behalf
of the Trust, to (a) direct the Indenture Trustee to authenticate and
deliver Indenture Notes and (b) issue the Initial Class B Notes and the
Additional Class B Notes, in each case in the aggregate principal amount
specified in a letter of instruction from the Depositor to the Trustee. In
addition to the foregoing, the Trustee is authorized, but shall not be
obligated, to take all actions required of the Trust pursuant to the Basic
Documents. The Trustee is further authorized from time to time to take such
action as the Administrator recommends with respect to the Basic Documents.
SECTION 6.2. General Duties. It shall be the duty of the Trustee to
discharge (or cause to be discharged) all of its responsibilities pursuant
to this Agreement and the Basic Documents to which the Trust is a party and
to administer the Trust in the interest of the Certificateholders, subject
to the Basic Documents and in accordance with this Agreement.
Notwithstanding the foregoing, the Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the Basic
Documents to the extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Trustee
hereunder or under any Basic Document, and the Trustee shall not be held
liable for the default or failure of the Administrator to carry out its
obligations under the Administration Agreement.
SECTION 6.3. Action upon Instruction. (a) Subject to Article IV and
in accordance with the Basic Documents, the Certificateholders may by
written instruction direct the Trustee in the management of the Trust. Such
direction may be exercised at any time by written instruction of the
Certificateholders pursuant to Article IV.
(b) The Trustee shall not be required to take any action hereunder
or under any Basic Document if the Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is
likely to result in liability on the part of the Trustee or is contrary to
the terms hereof or of any Basic Document or is otherwise contrary to law.
(c) Whenever the Trustee is unable to decide between alternative
courses of action permitted or required by this Agreement or any Basic
Document, the Trustee shall promptly give notice (in such form as shall be
appropriate under the circumstances) to the Certificateholders requesting
instruction as to the course of action to be adopted, and to the extent the
Trustee acts in good faith in accordance with any written instruction of
the Certificateholders received, the Trustee shall not be liable on account
of such action to any Person. If the Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may
be necessary under the circumstances) it may, but shall be under no duty
to, take or refrain from taking such action, not inconsistent with this
Agreement or the Basic Documents, as it shall deem to be in the best
interests of the Certificateholders, and shall have no liability to any
Person for such action or inaction.
(d) In the event that the Trustee is unsure as to the application of
any provision of this Agreement or any Basic Document or any such provision
is ambiguous as to its application, or is, or appears to be, in conflict
with any other applicable provision, or in the event that this Agreement
permits any determination by the Trustee or is silent or is incomplete as
to the course of action that the Trustee is required to take with respect
to a particular set of facts, the Trustee may give notice (in such form as
shall be appropriate under the circumstances) to the Certificateholders
requesting instruction and, to the extent that the Trustee acts or refrains
from acting in good faith in accordance with any such instruction received,
the Trustee shall not be liable, on account of such action or inaction, to
any Person. If the Trustee shall not have received appropriate instruction
within 10 days of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action, not inconsistent with this Agreement or the Basic
Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such
action or inaction.
SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions. The Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of or
otherwise deal with the Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated
hereby to which the Trustee is a party, except as expressly provided by
this Agreement or in any document or written instruction received by the
Trustee pursuant to Section 6.3; and no implied duties or obligations shall
be read into this Agreement or any Basic Document against the Trustee. The
Trustee shall have no responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise
perfect or maintain the perfection of any security interest or Lien granted
to it hereunder or to prepare or file any Securities and Exchange
Commission filing for the Trust or to record this Agreement or any Basic
Document. The Trustee nevertheless agrees that it will, at its own cost and
expense, promptly take all action as may be necessary to discharge any
Liens on any part of the Trust Estate that result from actions by, or
claims against, the Trustee that are not related to the ownership or the
administration of the Trust Estate.
SECTION 6.5. No Action Except Under Specified Documents or
Instructions. The Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Trust Estate except: (i) in
accordance with the powers granted to and the authority conferred upon the
Trustee pursuant to this Agreement, (ii) in accordance with the Basic
Documents and (iii) in accordance with any document or instruction
delivered to the Trustee pursuant to Section 6.3.
SECTION 6.6. Restrictions. The Trustee shall not take any action:
(a) that is inconsistent with the purposes of the Trust set forth in
Section 2.3 or (b) that, to the actual knowledge of the Trustee, would
result in the Trust's becoming taxable as a corporation for Federal income
tax purposes. The Certificateholders shall not direct the Trustee to take
action that would violate this Section.
ARTICLE VII
Concerning the Trustee
SECTION 7.1. Acceptance of Trusts and Duties. The Trustee accepts
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts but only upon the terms of this Agreement. The
Trustee also agrees to disburse all moneys actually received by it
constituting part of the Trust Estate upon the terms of the Basic Documents
and this Agreement. The Trustee shall not be answerable or accountable
hereunder or under any Basic Document under any circumstances, 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 Indenture
Notes and the Class B 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 Indenture 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 7.2. Furnishing of Documents. The Trustee shall furnish to
the Certificateholders promptly upon receipt of a written request therefor,
and at the expense of the Certificateholders, duplicates or copies of all
reports, notices, requests, demands, certificates, financial statements and
any other instruments furnished to the Trustee under the Basic Documents.
SECTION 7.3. Representations and Warranties. The Trustee hereby
represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) it is a banking corporation duly organized and validly
existing in good standing under the laws of the State of 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 7.4. 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 7.5. 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 7.6. Trustee Not Liable for Trust Certificates or
Receivables. The recitals contained herein and in the Certificates (other
than the signature and counter-signature of the Trustee on the Trust
Certificates) shall be taken as the statements of the Depositor, and the
Trustee assumes no responsibility for the correctness thereof. The Trustee
makes no representations as to the validity or sufficiency of this
Agreement, of any Basic Document, of the Trust Certificates (other than the
signature and countersignature, if any, of the Trustee on the Trust
Certificates) or of the Indenture Notes or the Class B 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, the Class B Holders under the Class B Notes or the Indenture
Noteholders under the Indenture, including: (a) the existence, condition
and ownership of any Financed Equipment, (b) the existence and
enforceability of any insurance thereon, (c) the existence and contents of
any Receivable on any computer or other record thereof, (d) the validity of
the assignment of any Receivable to the Trust or of any intervening
assignment, (e) the completeness of any Receivable, (f) the performance or
enforcement of any Receivable, and (g) the compliance by the Depositor or
the Servicer with any warranty or representation made under any Basic
Document or in any related document or the accuracy of any such warranty or
representation or any action of the Administrator, the Indenture Trustee or
the Servicer or any subservicer taken in the name of the Trustee.
SECTION 7.7. Trustee May Not Own Notes. The Trustee shall not, in
its individual capacity, but may in a fiduciary capacity, become the owner
or pledgee of Notes or otherwise extend credit to the Issuer. The Trustee
may otherwise deal with the Depositor, the Administrator, the Indenture
Trustee and the Servicer with the same rights as it would have if it were
not the Trustee.
ARTICLE VIII
Compensation of Trustee
SECTION 8.1. Trustee's Fees and Expenses. The Trustee shall receive
as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Depositor and the
Trustee, and the Trustee shall be entitled to be reimbursed by the
Depositor for its other reasonable expenses hereunder, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder.
SECTION 8.2. Indemnification. The Depositor shall be liable as
primary obligor for, and shall indemnify the Trustee and its successors,
assigns, agents and servants (collectively, the "Indemnified Parties") from
and against, any and all liabilities, obligations, losses, damages, taxes,
claims, actions and suits, and any and all reasonable costs, expenses and
disbursements (including reasonable legal fees and expenses) of any kind
and nature whatsoever (collectively, "Expenses"), which may at any time be
imposed on, incurred by or asserted against the Trustee or any other
Indemnified Party in any way relating to or arising out of this Agreement,
the Basic Documents, the Trust Estate, the administration of the Trust
Estate or the action or inaction of the Trustee hereunder, except only that
the Depositor shall not be liable for or required to indemnify an
Indemnified Party from and against Expenses arising or resulting from: (a)
such Indemnified Party's willful misconduct or negligence or (b) with
respect to the Trustee, the inaccuracy of any representation or warranty
contained in Section 7.3 expressly made by the Trustee. The indemnities
contained in this Section shall survive the resignation or termination of
the Trustee or the termination of this Agreement. In any event of any
claim, action or proceeding for which indemnity will be sought pursuant to
this Section, the Trustee's choice of legal counsel shall be subject to the
approval of the Depositor, which approval shall not be unreasonably
withheld.
SECTION 8.3. Payments to the Trustee. Any amounts paid to the
Trustee pursuant to this Article VIII shall be deemed not to be a part of
the Trust Estate immediately after such payment. The Trustee shall also be
entitled to interest on all advances at a rate equal to: (a) the rate
publicly announced by The Chase Manhattan Bank, as its prime rate from time
to time plus (b) 3.5%.
ARTICLE IX
Termination of Trust Agreement
SECTION 9.1. Termination of Trust Agreement. (a) This Agreement
(other than Article VIII) and the Trust shall terminate and be of no
further force or effect: (i) 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 or (ii)
at the time provided in Section 9.2. The bankruptcy, liquidation,
dissolution, death or incapacity of any Certificateholder, other than the
Depositor as described in Section 9.2, 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.
SECTION 9.2. Dissolution upon Bankruptcy of the Depositor. In the
event that an Insolvency Event shall occur with respect to the Depositor,
this Agreement shall be terminated in accordance with Section 9.1 90 days
after the date of such Insolvency Event, unless, before the end of such
90-day period, the Trustee shall have received written instructions from:
(i) the Holders (as defined in the Indenture) of A-1 Notes representing
more than 50% of the Outstanding Amount of the A-1 Notes, (ii) the Holders
(as defined in the Indenture) of A-2 Notes representing more than 50% of
the Outstanding Amount of the A-2 Notes, (iii) the Holders (as defined in
the Indenture) of A-3 Notes representing more than 50% of the Outstanding
Amount of the A-3 Notes, (iv) Class B Noteholders of Class B Notes
representing more than 50% of the Outstanding Amount of the Class B Notes,
(v) Certificateholders (other than the Depositor) holding Certificates
representing more than 50% of the Certificate Balance (not including the
principal amount of Trust Certificates held by the Depositor), (vi) the
holders of interests in the Spread Account (other than the Depositor)
having interests with a value in excess of 50% of all interests in the
Spread Account held by such Persons and (vii) the Servicer, to the effect
that each such party disapproves of the liquidation of the Receivables and
termination of the Trust.
Promptly after the occurrence of any Insolvency Event with respect to
the Depositor: (i) the Depositor shall give the Indenture Trustee and the
Trustee written notice of such Insolvency Event, (ii) the Trustee shall,
upon the receipt of such written notice from the Depositor, give prompt
written notice to the Certificateholders, the Class B Agent and the
Indenture Trustee of the occurrence of such event and (iii) the Indenture
Trustee shall, upon receipt of written notice of such Insolvency Event from
the Trustee or the Depositor, give prompt written notice to the Indenture
Noteholders of the occurrence of such event; provided, however, that any
failure to give a notice required by this sentence shall not prevent or
delay, in any manner, a termination of the Trust pursuant to the first
sentence of this Section 9.2. Upon a termination pursuant to this Section,
the Trustee shall direct the Indenture Trustee promptly to sell the assets
of the Trust (other than the Trust Accounts and the Certificate
Distribution Account) in a commercially reasonable manner and on
commercially reasonable terms. The proceeds of such a sale of the assets of
the Trust shall be treated as collections under the Sale and Servicing
Agreement.
ARTICLE X
Successor Trustees and Additional Trustees
SECTION 10.1. Eligibility Requirements for Trustee. The Trustee
shall at all times: (a) be a corporation satisfying the provisions of
Section 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 10.2. Resignation or Removal of Trustee. The Trustee may at
any time resign and be discharged from the trusts hereby created by giving
written notice thereof to the Administrator. Upon receiving such notice of
resignation, the Administrator shall promptly appoint a successor Trustee
by written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor Trustee.
If no successor Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
If at any time the Trustee shall cease to be eligible in accordance
with Section 10.1 and shall fail to resign after written request therefor
by the Administrator, or if at any time the Trustee shall be legally unable
to act, or shall be adjudged bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer shall
take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then the
Administrator may remove the Trustee. If the Administrator shall remove the
Trustee under the authority of the preceding sentence, the Administrator
shall promptly appoint a successor Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the outgoing
Trustee so removed and one copy to the successor Trustee and payment of all
fees owed to the outgoing Trustee.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to this Section shall not become effective until
acceptance of appointment by the successor Trustee pursuant to Section 10.3
and payment of all fees and expenses owed to the outgoing Trustee. The
Administrator shall provide notice of such resignation or removal of the
Trustee to each of the Rating Agencies.
SECTION 10.3. Successor Trustee. Any successor Trustee appointed
pursuant to Section 10.2 shall execute, acknowledge and deliver to the
Administrator and to its predecessor Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal
of the predecessor Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties, and obligations of its
predecessor under this Agreement, with like effect as if originally named
as the Trustee. The predecessor Trustee shall upon payment of its fees and
expenses deliver to the successor Trustee all documents and statements and
monies held by it under this Agreement; and the Administrator and the
predecessor Trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for fully and certainly vesting
and confirming in the successor Trustee all such rights, powers, duties and
obligations.
No successor Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Trustee shall
be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Trustee pursuant to
this Section, the Administrator shall mail notice of such appointment to
all Certificateholders, the Class B Agent, the Indenture Trustee, the
Indenture Noteholders and the Rating Agencies. If the Administrator shall
fail to mail such notice within 10 days after acceptance of appointment by
the successor Trustee, the successor Trustee shall cause such notice to be
mailed at the expense of the Administrator.
SECTION 10.4. Merger or Consolidation of Trustee. Any corporation or
other entity into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder;
provided, such corporation shall be eligible pursuant to Section 10.1,
without the execution or filing of any instrument or any further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding; and provided further, that the Trustee shall mail notice
of such merger or consolidation to the Rating Agencies.
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust or any Financed Equipment may at the time be located,
the Administrator and the Trustee acting jointly shall have the power and
may execute and deliver all instruments to appoint one or more Person(s)
approved by the Trustee to act as co-trustee(s), jointly with the Trustee,
or separate trustee(s), of all or any part of the Trust Estate, and to vest
in such Person(s), in such capacity and for the benefit of the
Certificateholders, such title to the Trust Estate, or any part thereof,
and, subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Administrator and the Trustee may
consider necessary or desirable. If the Administrator shall not have joined
in such appointment within 15 days after the receipt by it of a request so
to do, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee under this Agreement shall be required to
meet the terms of eligibility as a successor trustee pursuant to Section
10.1 and no notice of the appointment of any co-trustee or separate trustee
shall be required pursuant to Section 10.3.
Each separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act(s) are to be performed, the
Trustee shall be incompetent or unqualified to perform such act(s),
in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Estate or any portion thereof in
any such jurisdiction) shall be exercised and performed singly by
such separate trustee or co-trustee, but solely at the direction of
the Trustee;
(ii) no trustee under this Agreement shall be personally liable
by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the Administrator and the Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the
estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject
to all the provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting the
liability of, or affording protection to, the Trustee. Each such instrument
shall be filed with the Trustee and a copy thereof given to the
Administrator.
Any separate trustee or co-trustee may at any time appoint the
Trustee as its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect
of this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and
be exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
The Trustee shall have no obligation to determine whether a
co-trustee or separate trustee is legally required in any jurisdiction in
which any part of the Trust Estate may be located.
ARTICLE XI
Miscellaneous
SECTION 11.1. Supplements and Amendments. This Agreement may be
amended from time to time by a written amendment duly executed and
delivered by the Depositor and the Trustee, with prior written notice to
the Rating Agencies, without the consent of any of the Indenture
Noteholders, the Class B 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 Indenture Noteholders, the Class B 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 Indenture Noteholder, Class B 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) the Holders (as defined in the Indenture) of
Indenture Notes evidencing not less than a majority of the Outstanding
Amount of the Indenture Notes, (y) the Class B Noteholders of Class B Notes
evidencing not less than a majority of the outstanding principal amount of
the Class B Notes and (z) 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 Indenture Noteholders, the Class B 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 Indenture Noteholders,
the Class B 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 Indenture Notes, Class B 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
Class B Noteholders, the Indenture Noteholders or the Indenture Trustee
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and
any other consents of Certificateholders provided for in this Agreement or
in any other Basic Document) and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Trustee may prescribe.
Promptly after the execution of any amendment to the Certificate of
Trust, the Trustee shall cause the filing of such amendment with the
Secretary of State.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions precedent
to the execution and delivery of such amendment have been satisfied. The
Trustee may, but shall not be obligated to, enter into any such amendment
that affects the Trustee's own rights, duties or immunities under this
Agreement or otherwise.
SECTION 11.2. No Legal Title to Trust Estate in Certificateholders.
The Certificateholders shall not have legal title to any part of the Trust
Estate. The Certificateholders shall be entitled to receive distributions
with respect to their undivided ownership interest therein only in
accordance with Articles V and IX. No transfer, by operation of law or
otherwise, of any right, title or interest of the Certificateholders in, to
and under their ownership interest in the Trust Estate shall operate to
terminate this Agreement or the trusts hereunder or entitle any transferee
to an accounting or to the transfer to it of legal title to any part of the
Trust Estate.
SECTION 11.3. Limitations on Rights of Others. Except for Section
2.7, 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, the Indenture
Noteholders and the Class B Noteholders, and nothing in this Agreement
(other than Section 2.7), whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in
the Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
SECTION 11.4. Notices. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing, personally
delivered or mailed by certified mail, postage prepaid and return receipt
requested, and shall be deemed to have been duly given upon receipt: (i) if
to the Trustee, 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 11.5. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
SECTION 11.6. Separate Counterparts. This Agreement may be executed
by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 11.7. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor and its successors, the Trustee and its successors and each
Certificateholder and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other
instrument or action by an Certificateholder shall bind the successors and
assigns of such Certificateholder.
SECTION 11.8. Covenants of the Depositor. If: (a) the Certificate
Balance shall be reduced by Realized Losses and (b) any litigation with
claims in excess of $1,000,000 to which the Depositor is a party that shall
be reasonably likely to result in a material judgment against the Depositor
that the Depositor will not be able to satisfy shall be commenced by a
Certificateholder during the period beginning nine months following the
commencement of such litigation and continuing until such litigation is
dismissed or otherwise terminated (and, if such litigation has resulted in
a final judgment against the Depositor, such judgment has been satisfied),
the Depositor shall not pay any dividend to Credit, or make any
distribution on or in respect of its capital stock to Credit, or repay the
principal amount of any indebtedness of the Depositor held by Credit,
unless: (i) after giving effect to such payment, distribution or repayment,
the Depositor's liquid assets shall not be less than the amount of actual
damages claimed in such litigation or (ii) the Rating Agency Condition
shall have been satisfied with respect to any such payment, distribution or
repayment. The Depositor will not at any time institute against the Trust
any bankruptcy proceedings under any United States Federal or State
bankruptcy or similar law in connection with any obligations relating to
the Trust Certificates, the Indenture Notes, the Class B Notes, the Trust
Agreement or any of the Basic Documents.
SECTION 11.9. No Petition. The Trustee on behalf of the Trust, by
entering into this Agreement, each Certificateholder, by accepting a Trust
Certificate, and the Indenture Trustee and each Indenture 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 Indenture Notes, this Agreement or any of the Basic
Documents.
SECTION 11.10. No Recourse. Each Certificateholder by accepting a
Trust Certificate acknowledges that such Certificateholder's Trust
Certificates represent beneficial interests in the Trust only and do not
represent interests in or obligations of the Seller, the Servicer, the
Administrator, the Trustee, the Indenture Trustee or any Affiliate thereof
and no recourse may be had against such parties or their assets, except as
may be expressly set forth or contemplated in this Agreement, the Trust
Certificates or the Basic Documents.
SECTION 11.11. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
SECTION 11.12. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of Delaware, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
SECTION 11.13. Administrator. The Administrator is authorized to
execute on behalf of the Trust all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the Trust
to prepare, file or deliver pursuant to this Agreement and the Basic
Documents. Upon written request, the Trustee shall execute and deliver to
the Administrator a power of attorney appointing the Administrator its
agent and attorney-in-fact to execute all such documents, reports, filings,
instruments, certificates and opinions.
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: Vice President
EXHIBIT A
to Trust Agreement
FORM OF TRUST CERTIFICATES
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REGISTERED $___________4/
NUMBER R-___ CUSIP NO. 147440____
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4/ Denominations of $1,000 and integral multiples of $1,000 in
excess thereof.
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York Corporation ("DTC"), to the
Issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF A
BENEFIT PLAN (AS DEFINED BELOW).
CASE EQUIPMENT LOAN TRUST 1996-B
____% ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below,
the property of which includes a pool of retail installment sale contracts
secured by new and used agricultural and construction equipment and sold to
the Trust by Case Receivables II Inc.
(This Trust Certificate does not represent an interest in or obligation of
Case Receivables II Inc., Case Credit Corporation or Case Corporation, or
any of their respective affiliates, except to the extent described below.)
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a _____________
DOLLAR ($___________) nonassessable, fully-paid, fractional undivided
interest in the Case Equipment Loan Trust 1996-B (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 September
1, 1996 (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 September 1, 1996, 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
September 1, 1996, 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" and "____% Class A-3 Asset
Backed Notes" (collectively, the "Indenture Notes") and (b) under the Note
Purchase Agreement dated ______________, between the Trust and
______________, are notes designated as "Class B Asset Backed Notes" (with
the Indenture Notes, 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 Indenture Noteholders and the Class B
Noteholders as described in the Sale and Servicing Agreement and the
Indenture.
It is the intent of the Seller, Servicer, Certificateholders and the
Certificate Owners 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 (and the
Certificate Owners by acceptance of a beneficial interest in a Trust
Certificate), agree to treat, and to take no action inconsistent with the
treatment of, the Trust Certificates for such tax purposes as partnership
interests in the Trust.
Each Certificateholder or Certificate Owner, by its acceptance of a
Trust Certificate or a beneficial interest in a Trust Certificate,
acknowledges and agrees that the Seller is authorized to determine whether
or not to cause the Trust to make the election contemplated in Internal
Revenue Service Notice 95-14 to elect that the Trust be classified as a
partnership for Federal income tax purposes in the event that the ability
to make such election becomes available to the Trust, and acknowledges and
agrees that the Seller is authorized to direct the Trustee to take such
acts or actions as may be required to effectuate such election. Each
Certificateholder or Certificate Owner, by its acceptance of a Trust
Certificate or a beneficial interest in a Trust Certificate, agrees to take
such actions (and direct the Trustee to take such acts or actions) as the
Seller or Trustee shall reasonably request in order to effectuate such
election.
Each Certificateholder or Certificate Owner, by its acceptance of a
Trust Certificate or, in the case of a Certificate Owner, a beneficial
interest in a Trust Certificate, covenants and agrees that such
Certificateholder or Certificate Owner, as the case may be, 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
Indenture Notes, the Class B 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 hereof and, if applicable, Certificate
Owners hereof 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 1996-B
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: September ____, 1996
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE
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(Please print or type name and address, including postal zip code, of
assignee)
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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 1996-B
This Certificate of Trust of CASE EQUIPMENT LOAN TRUST 1996-B (the
"Trust"), dated as of September ____, 1996, 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 3801 et seq.).
1. Name. The name of the trust formed hereby is CASE EQUIPMENT LOAN
TRUST 1996-B.
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
September 1, 1996
By:____________________________________
Name:________________________________
Title:_______________________________
