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CASE EQUIPMENT LOAN TRUST 1997-B
TRUST AGREEMENT
between
CASE RECEIVABLES II INC.,
and
THE BANK OF NEW YORK,
as Trustee.
Dated as of September 1, 1997
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|| TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.1. Capitalized Terms.............................................1
SECTION 1.2. Other Definitional Provisions.................................3
ARTICLE II
Organization
SECTION 2.1. Name .....................................................4
SECTION 2.2. Office .....................................................4
SECTION 2.3. Purposes and Powers...........................................4
SECTION 2.4. Appointment of Trustee........................................5
SECTION 2.5. Initial Capital Contribution of Trust Estate..................5
SECTION 2.6. Declaration of Trust..........................................5
SECTION 2.7. Liability of the Certificateholders...........................5
SECTION 2.8. Title to Trust Property.......................................5
SECTION 2.9. Situs of Trust................................................6
SECTION 2.10. Representations and Warranties of the Depositor..............6
SECTION 2.11. Federal Income Tax Allocations...............................7
ARTICLE III
Trust Certificates and Transfer of Interests
SECTION 3.1. Initial Ownership.............................................8
SECTION 3.2. The Trust Certificates........................................8
SECTION 3.3. Authentication of Trust Certificates..........................8
SECTION 3.4. Registration of Transfer and Exchange of Trust Certificates...8
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Trust Certificates......10
SECTION 3.6. Persons Deemed Certificateholders............................10
SECTION 3.7. Access to List of Certificateholders' Names and Addresses....10
SECTION 3.8. Maintenance of Office or Agency..............................11
SECTION 3.9. Appointment of Paying Agent..................................11
ARTICLE IV
Actions by Trustee
SECTION 4.1. Prior Notice to Certificateholders with Respect to Certain
Matters....................................................12
SECTION 4.2. Action by Certificateholders with Respect to Certain
Matters....................................................13
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SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy......13
SECTION 4.4. Restrictions on Certificateholders' Power....................13
SECTION 4.5. Majority Control.............................................13
ARTICLE V
Application of Trust Funds; Certain Duties
SECTION 5.1. Establishment of Trust Account...............................13
SECTION 5.2. Applications of Trust Funds..................................14
SECTION 5.3. Method of Payment............................................15
SECTION 5.4. No Segregation of Moneys; No Interest........................15
SECTION 5.5. Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue Service and
Others.....................................................15
SECTION 5.6. Signature on Returns; Tax Matters Partner....................15
ARTICLE VI
Authority and Duties of Trustee
SECTION 6.1. General Authority............................................16
SECTION 6.2. General Duties...............................................16
SECTION 6.3. Action upon Instruction......................................16
SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions...............................................17
SECTION 6.5. No Action Except Under Specified Documents or Instructions...18
SECTION 6.6. Restrictions.................................................18
ARTICLE VII
Concerning the Trustee
SECTION 7.1. Acceptance of Trusts and Duties..............................18
SECTION 7.2. Furnishing of Documents......................................20
SECTION 7.3. Representations and Warranties...............................20
SECTION 7.4. Reliance; Advice of Counsel..................................20
SECTION 7.5. Not Acting in Individual Capacity............................21
SECTION 7.6. Trustee Not Liable for Trust Certificates or Receivables.....21
SECTION 7.7. Trustee May Not Own Notes....................................22
ARTICLE VIII
Compensation of Trustee
SECTION 8.1. Trustee's Fees and Expenses..................................22
SECTION 8.2. Indemnification..............................................22
SECTION 8.3. Payments to the Trustee......................................23
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ARTICLE IX
Termination of Trust Agreement
SECTION 9.1. Termination of Trust Agreement...............................23
ARTICLE X
Successor Trustees and Additional Trustees
SECTION 10.1. Eligibility Requirements for Trustee........................24
SECTION 10.2. Resignation or Removal of Trustee...........................24
SECTION 10.3. Successor Trustee...........................................25
SECTION 10.4. Merger or Consolidation of Trustee..........................26
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee...............26
ARTICLE XI
Miscellaneous
SECTION 11.1. Supplements and Amendments..................................27
SECTION 11.2. No Legal Title to Trust Estate in Certificateholders........29
SECTION 11.3. Limitations on Rights of Others.............................29
SECTION 11.4. Notices ....................................................29
SECTION 11.5. Severability................................................29
SECTION 11.6. Separate Counterparts.......................................29
SECTION 11.7. Successors and Assigns......................................30
SECTION 11.8. Covenants of the Depositor..................................30
SECTION 11.9. No Petition.................................................30
SECTION 11.10. No Recourse................................................30
SECTION 11.11. Headings...................................................31
SECTION 11.12. Governing Law..............................................31
SECTION 11.13. Administrator..............................................31
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Trust Agreement
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EXHIBITS
EXHIBIT A Form of Trust Certificate
EXHIBIT B Form of Certificate of Trust
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TRUST AGREEMENT, dated as of September 1, 1997, among CASE
RECEIVABLES II INC., a Delaware corporation, as Depositor, and THE BANK OF
NEW YORK, a New York banking corporation, as Trustee.
ARTICLE I
Definitions
SECTION 1.1. 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 Certificate of Trust, the
Purchase Agreement, the Sale and Servicing Agreement, the Indenture, the
Administration Agreement, the Note Depository Agreement, the Class B Note
Purchase Agreement and the other documents and certificates delivered in
connection therewith.
"Benefit Plan" shall have the meaning assigned to such term in
Section 3.4.
"Certificate Distribution Account" shall have the meaning assigned
to such term in Section 5.1.
"Certificateholder" shall mean a Person in whose name a Trust
Certificate is registered.
"Certificate of Trust" shall mean the Certificate of Trust
substantially in the form of Exhibit B to be filed for the Trust pursuant
to Section 3810(a) of the Trust Statute.
"Certificate Register" and "Certificate Registrar" shall mean the
register mentioned in 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
Administration Asset Backed Finance Unit; or at such other address as the
Trustee may designate from time to time by notice to the Certificateholders
and the Depositor, or the principal corporate trust office of any successor
Trustee (the address of which the successor Trustee will notify the
Certificateholders and the Depositor).
"Depositor" shall mean the Seller in its capacity as Depositor
hereunder.
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"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 Trustee.
"Record Date" shall mean, with respect to any Payment Date, the
close of business on the last day of the calendar month preceding the month
of such Payment Date.
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement among the Trust, the Depositor, as Seller, and Credit, as
Servicer, dated as of the date hereof, as the same may be amended and
supplemented from time to time.
"Secretary of State" shall mean the Secretary of State of the State of
Delaware.
"Treasury Regulations" shall mean regulations, including proposed
or temporary regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary regulations shall include
analogous provisions of final Treasury Regulations or other successor
Treasury Regulations.
"Trust" shall mean the trust established by this Agreement.
"Trust Certificate" shall mean a certificate evidencing the
beneficial interest of a Certificateholder in the Trust, substantially in
the form attached hereto as Exhibit A.
"Trustee" shall mean The Bank of New York, a New York 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
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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 ss. 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.
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ARTICLE II
Organization
SECTION 2.1. Name. The Trust created hereby shall be known as
"Case Equipment Loan Trust 1997-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 Notes pursuant to the Indenture and
the Trust Certificates pursuant to this Agreement and to sell the
Notes and the Trust Certificates in one or more transactions;
(b) with the proceeds of the sale of the Notes and
the Trust Certificates, to fund the Pre-Funding Account and to
purchase the Receivables pursuant to the Sale and Servicing
Agreement;
(c) to assign, grant, transfer, pledge, mortgage and
convey the Trust Estate pursuant to the Indenture and to hold,
manage and distribute to the Certificateholders pursuant to the
Sale and Servicing Agreement any portion of the Trust Estate
released from the Lien of, and remitted to the Trust pursuant to,
the Indenture;
(d) to enter into and perform its obligations under
the Basic Documents to which it is to be a party;
(e) to engage in those activities, including entering
into agreements, that are necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto or connected
therewith; and
(f) subject to compliance with the Basic Documents,
to engage in such other activities as may be required in
connection with conservation of the Trust Estate and the making of
distributions to the Certificateholders and the Noteholders.
The Trust shall not engage in any activity other than in connection with
the foregoing or other than as required or authorized by this Agreement or
the Basic Documents.
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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, until the Certificates are held by more than one Person, the
Trust will be disregarded as an entity separate from such Certificateholder
and the Notes will be considered debt of such Certificateholder. At such
time that the Certificates are held by more than one Person, it is the
intention of the parties hereto that, solely for income and franchise tax
purposes, the Trust shall be treated as a partnership, with the assets of
the partnership being the Receivables and other assets held by the Trust,
the partners of the partnership being the Certificateholders (including the
Seller in its capacity as recipient of distributions from the Spread
Account), and the Notes being debt of the partnership. The parties agree
that, unless otherwise required by appropriate tax authorities, if the
Certificates are held by one Certificateholder the Trust will not file or
cause to be filed annual or other returns, reports and other forms
consistent with the characterization of the Trust as an entity not separate
from such Certificateholder. 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) No
Certificateholder 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
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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 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
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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. If Certificates are
held by more than one Person, interest payments on the Certificates at the
Pass-Through Rate (including interest on amounts previously due on the
Certificates but not yet distributed) shall be treated as "guaranteed
payments" under Section 707(c) of the Code. Net income of the Trust for any
month as determined for Federal income tax purposes (and each item of
income, gain, loss and deduction entering into the computation thereof)
shall be allocated:
(a) among the Certificateholders as of the close of
business on the last day of such month, in proportion to their
ownership of principal amount of Trust Certificates on such date,
an amount of net income up to the sum of: (i) the portion of the
market discount on the Receivables accrued during such month that
is allocable to the excess, if any, of the Initial Certificate
Balance over the Trust Certificates' initial aggregate issue
price, (ii) Certificateholders' Prepayment Premium, if any,
payable for such month and (iii) any other amounts of income
payable to the Certificateholders for such month; and such sum of
amounts specified in clauses (i) through (iii) of this sentence
shall be reduced by any amortization by the Trust of premium on
Receivables that corresponds to any excess of the issue price of
Trust Certificates over their principal amount; and
(b) to the Depositor, and other holders of interests
in the Spread Account, to the extent of any remaining net income,
in accordance with their respective interests therein.
If the net income of the Trust for any month is insufficient for the
allocations described in clause (a), subsequent net income shall first be
allocated to make up such shortfall before being allocated as provided in
the preceding sentence. Net losses of the Trust, if any, for any month as
determined for Federal income tax purposes (and each item of income, gain,
loss and deduction entering into the computation thereof) shall be
allocated to the Depositor (or other holders of interests in the Spread
Account) to the extent the Depositor (or such holders) are reasonably
expected to bear the economic burden of such net losses, and any remaining
net losses shall be allocated among the remaining Certificateholders as of
the close of business on the last day of such month in proportion to their
ownership of principal amount of Trust Certificates on such day. The
Depositor is authorized to modify the allocations in this paragraph if
necessary or appropriate, in its sole discretion, for the allocations to
fairly reflect the economic income, gain or loss to the Depositor (or other
holders of interests in the Spread Account) or to the Certificateholders,
or as otherwise required by the Code. Notwithstanding anything provided in
this Section,
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if the Certificates are held solely by one Certificateholder, the application
of this Section shall be disregarded.
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 that one Trust Certificate may be issued that
includes any residual portion of the Initial Certificate Balance in a
denomination other than an integral multiple of $1,000. The Trust
Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of an authorized officer of the Trustee. Trust
Certificates bearing the manual or facsimile signatures of individuals who
were, at the time when such signatures shall have been affixed, authorized
to sign on behalf of the Trust shall be, when authenticated pursuant to
Section 3.3, validly issued and entitled to the benefits of this Agreement,
notwithstanding that such individuals or any of them shall have ceased to
be so authorized prior to the authentication and delivery of such Trust
Certificates or no longer hold such offices at the date of authentication
and delivery of such Trust Certificates.
SECTION 3.3. Authentication of Trust Certificates. Concurrently
with the sale of the Receivables to the Trust pursuant to the Sale and
Servicing Agreement, the Trustee shall cause the Trust Certificates in an
aggregate principal amount equal to the Initial Certificate Balance to be
executed on behalf of the Trust, authenticated and delivered to or upon the
written order of the Depositor, signed by its chairman of the board, its
president or any vice president, without further corporate action by the
Depositor, in authorized denominations. No Trust Certificate shall entitle
its Holder to any benefit under this Agreement, or shall be valid for any
purpose, unless there shall appear on such Trust Certificate a certificate
of authentication substantially in the form set forth in Exhibit A,
executed by the Trustee by the manual signature of one of its authorized
signatories; such certificate of authentication shall constitute conclusive
evidence, and the only evidence, that such Trust Certificate shall have
been duly authenticated and delivered hereunder. All Trust Certificates
shall be dated the date of their authentication. No further Trust
Certificates shall be issued except pursuant to Section 3.4 or 3.5
hereunder.
SECTION 3.4. Registration of Transfer and Exchange of Trust
Certificates. The Trust shall keep or cause to be kept, at the office or
agency maintained pursuant
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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, 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, the Trustee shall
execute, authenticate and deliver the Trust Certificates that the
Certificateholder making the exchange is entitled to receive.
All Trust Certificates issued upon any registration of transfer or
exchange of Trust Certificates shall be entitled to the same benefits under
this Agreement as the Trust Certificates surrendered upon such registration
of transfer or exchange.
Every Trust Certificate presented or surrendered for registration
of transfer or exchange shall be duly endorsed by, or be accompanied by a
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by, the Holder thereof or his attorney
duly authorized in writing. No transfer of a Trust Certificate shall be
registered unless the transferee shall have provided (i) an opinion of
counsel that no registration is required under the Securities Act of 1933,
as amended, or any applicable state laws, and (ii) an Officer's Certificate
as to compliance with Section 6.6 of the Sale and Servicing Agreement. Each
Trust Certificate surrendered for registration of transfer or exchange
shall be canceled and subsequently disposed of by the Trustee in accordance
with its customary practice.
No service charge shall be made to a Certificateholder for any
registration of transfer or exchange of Trust Certificates, but the Trustee
or the Certificate Registrar may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Trust
Certificates.
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The Trust Certificates and any beneficial interest in such Trust
Certificates may not be acquired by: (a) an employee benefit plan (as
defined in Section 3(3) of ERISA) that is subject to the provisions of
Title I of ERISA, (b) a plan described in Section 4975(e)(1) of the Code or
(c) any entity whose underlying assets include plan assets by reason of a
plan's investment in the entity (each a "Benefit Plan"). By accepting and
holding a Trust Certificate or an interest therein, the Holder thereof
shall be deemed to have represented and warranted that it is not a Benefit
Plan. The Trustee shall have no obligation to determine whether or not a
Holder of a Trust Certificate is or is not a Benefit Plan.
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 Certificate Registrar 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, 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 and 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,
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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 applicant(s) 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 applicant(s)
propose to transmit, then the Trustee shall, within five Business Days
after the receipt of such application, afford such applicant(s) access
during normal business hours to the current list of Certificateholders.
Each Holder, by receiving and holding a Trust Certificate, shall be deemed
to have agreed not to hold any of the Depositor, the Certificate Registrar
or the Trustee accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
SECTION 3.8. Maintenance of Office or Agency. The Trustee shall
maintain in the Borough of Manhattan, City of New York an office or offices
or agency or agencies where Trust Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or
upon the Trustee in respect of the Trust Certificates and the Basic
Documents may be served. The Trustee initially designates The Bank of New
York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Administration - Asset Backed Finance Unit as its principal
corporate trust office for such purposes. The Trustee shall give prompt
written notice to the Depositor and to the Certificateholders of any change
in the location of the Certificate Register or any such office or agency.
SECTION 3.9. Appointment of Paying Agent. The Paying Agent shall
make distributions to Certificateholders from the Certificate Distribution
Account pursuant to Section 5.2 and shall report the amounts of such
distributions to the Trustee. Any Paying Agent shall have the revocable
power to withdraw funds from the Certificate Distribution Account for the
purpose of making the distributions referred to above. The Trustee may
revoke such power and remove the Paying Agent if the Trustee determines in
its sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. The Paying Agent
shall initially be the Trustee, and any co-paying agent chosen by and
acceptable to the Trustee. The Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Trustee. In the event that
the Trustee shall not be the Paying Agent, the Trustee shall appoint a
successor to act as Paying Agent (which shall be a bank or trust company).
The Trustee shall cause such successor Paying Agent or any additional
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
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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, 7.4 and 8.1 shall apply to the Paying Agent
and, to the extent applicable, to any other paying agent appointed
hereunder. Any reference in this Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.
ARTICLE IV
Actions by Trustee
SECTION 4.1. Prior Notice to Certificateholders with Respect to
Certain Matters. With respect to the following matters, the Trustee shall
not take action unless, at least 30 days before the taking of such action,
the Trustee shall have notified the Certificateholders in writing of the
proposed action and the Certificateholders shall not have notified the
Trustee in writing prior to the 30th day after such notice is given that
such Certificateholders have withheld consent or shall not have provided
alternative direction:
(a) the initiation of any claim or lawsuit by the
Trust (except claims or lawsuits brought in connection with the
collection of the Receivables) and the compromise of any action,
claim or lawsuit brought by or against the Trust (except with
respect to the aforementioned claims or lawsuits for collection of
Receivables);
(b) the election by the Trust to file an amendment to
the Certificate of Trust;
(c) the amendment of the Indenture in circumstances
where the consent of any Noteholder is required;
(d) the amendment of the Indenture in circumstances
where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the
Certificateholders;
(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
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(f) the appointment pursuant to the Indenture of a
successor Note Registrar, Paying Agent or Indenture Trustee, or
pursuant to this Agreement of a successor Certificate Registrar,
or the consent to the assignment by the Note Registrar, Paying
Agent, 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
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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 and the Trustee has actual knowledge of such, 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 in the existing
Certificate Distribution Account 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.
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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: (a) 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, (b) 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 Noteholders,
Certificateholders, the Internal Revenue Service and Others. The Depositor
shall cause the Trustee to: (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, if a
Certificateholder, or otherwise as designated by Certificateholders holding
Trust Certificates evidencing a majority of the Certificate Balance.
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(b) The Depositor, so long as it shall be a Certificateholder,
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 direct the Indenture Trustee to authenticate and deliver
the Notes in the aggregate principal amount specified in a letter of
instruction from the Depositor to the Trustee. In addition to the
foregoing, the Trustee is authorized, but shall not be obligated, to take
all actions required of the Trust pursuant to the Basic Documents. The
Trustee is further authorized from time to time to take such action as the
Administrator recommends with respect to the Basic Documents.
SECTION 6.2. General Duties. It shall be the duty of the Trustee
to discharge (or cause to be discharged) all of its responsibilities
pursuant to this Agreement and the Basic Documents to which the Trust is a
party and to administer the Trust in the interest of the
Certificateholders, subject to the Basic Documents and in accordance with
this Agreement. Notwithstanding the foregoing, the Trustee shall be deemed
to have discharged its duties and responsibilities hereunder and under the
Basic Documents to the extent the Administrator has agreed in the
Administration Agreement to perform any act or to discharge any duty of the
Trustee hereunder or under any Basic Document, and the Trustee shall not be
held liable for the default or failure of the Administrator to carry out
its obligations under the Administration Agreement.
SECTION 6.3. Action upon Instruction. (a) Subject to Article IV
and in accordance with the Basic Documents, the Certificateholders may by
written instruction direct the Trustee in the management of the Trust. Such
direction may be exercised at any time by written instruction of the
Certificateholders pursuant to Article IV.
(b) The Trustee shall not be required to take any action hereunder
or under any Basic Document if the Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is
likely to result in liability on the part of
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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
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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 Bank of New York nevertheless agrees that it will (and will
cause its Affiliates to), 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, it that are not
related to the Trustee's ownership or 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 or the Paying Agent. 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;
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(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 the
required Certificateholders;
(c) no provision of this Agreement or any Basic
Document shall require the Trustee to expend or risk funds or
otherwise incur any financial liability in the performance of any
of its rights or powers hereunder or under any Basic Document if
the Trustee shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Trustee be
liable for indebtedness evidenced by or arising under any of the
Basic Documents, including the principal of and interest on the
Notes;
(e) the Trustee shall not be responsible for or in
respect of the validity or sufficiency of this Agreement or for
the due execution hereof by the Depositor or for the form,
character, genuineness, sufficiency, value or validity of any of
the Trust Estate or for or in respect of the validity or
sufficiency of the Basic Documents, other than the certificate of
authentication on the Trust Certificates, and the Trustee shall in
no event assume or incur any liability, duty or obligation to any
Noteholder or to any Certificateholder, other than as expressly
provided for herein and in the Basic Documents;
(f) the Trustee shall not be liable for the default
or misconduct of the Administrator, the Seller, the Indenture
Trustee or the Servicer under any of the Basic Documents or
otherwise and the Trustee shall have no obligation or liability to
perform the obligations of the Trust under this Agreement or the
Basic Documents that are required to be performed by the
Administrator under the Administration Agreement, the Indenture
Trustee under the Indenture or the Servicer under the Sale and
Servicing Agreement; and
(g) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Agreement, or to institute, conduct or defend any litigation under
this Agreement or otherwise or in relation to this Agreement or
any Basic Document, at the request, order or direction of any of
the Certificateholders unless such Certificateholders have offered
to the Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities that may be incurred by the
Trustee therein or thereby. The right of the Trustee to perform
any discretionary act enumerated in this Agreement or in any Basic
Document shall not be construed as a duty, and the Trustee shall
not be answerable for other than its negligence or willful
misconduct in the performance of any such act.
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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. Each of the Trustee and
the Paying Agent 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
jurisdiction of its incorporation, 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, its certificate of incorporation or
by-laws, or any indenture, agreement or other instrument to which
it is a party or by which it is bound; or violate any Federal or
state law governing its banking or trust powers; or, to the best
of its knowledge, violate any order, rule or regulation applicable
to it of any court or of any Federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over it 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.
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(b) In the exercise or administration of the trusts hereunder and
in the performance of its duties and obligations under this Agreement or
the Basic Documents, the Trustee: (i) may act directly or through its
agents or attorneys pursuant to agreements entered into with any of them,
and the Trustee shall not be liable for the conduct or misconduct of such
agents or attorneys if such agents or attorneys shall have been selected by
the Trustee with reasonable care, and (ii) may consult with counsel,
accountants and other skilled Persons to be selected with reasonable care
and employed by it. The Trustee shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the written
opinion or advice of any such counsel, accountants or other such Persons
and which opinion or advice states that such action is not contrary to this
Agreement or any Basic Document.
SECTION 7.5. Not Acting in Individual Capacity. Except as provided
in this Article VII, in accepting the trusts hereby created The Bank of New
York acts solely as Trustee hereunder and not in its individual capacity
and all Persons having any claim against the Trustee by reason of the
transactions contemplated 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 with respect to Section 7.3 and the signature and authentication of
the Trustee or the Authenticating Agent 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
authentication of the Trustee or the Authenticating Agent on the Trust
Certificates) or of the Notes, or of any Receivable or related documents.
The Trustee shall at no time have any responsibility or liability for or
with respect to the legality, validity and enforceability of any
Receivable, or the perfection and priority of any security interest created
by any Receivable in any of the Financed Equipment or the maintenance of
any such perfection and priority, or for or with respect to the sufficiency
of the Trust Estate or its ability to generate the payments to be
distributed to Certificateholders under this Agreement or the Noteholders
under the Indenture, including: (a) the existence, condition and ownership
of any Financed Equipment, (b) the existence and enforceability of any
insurance thereon, (c) the existence and contents of any Receivable on any
computer or other record thereof, (d) the validity of the assignment of any
Receivable to the Trust or of any intervening assignment, (e) the
completeness of any Receivable, (f) the performance or enforcement of any
Receivable and (g) the compliance by the Depositor or the Servicer with any
warranty or representation made under any Basic Document or in any related
document or the accuracy of any such warranty or representation or any
action of the
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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
(including the Paying Agent, if an Affiliate of the Trustee, with respect
to expenses and disbursements only), 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 and the Paying Agent, the inaccuracy of any
representation or warranty contained in Section 7.3. 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.
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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 Bank of New York as its prime rate from time to
time plus (b) 3.5%.
ARTICLE IX
Termination of Trust Agreement
SECTION 9.1. Termination of Trust Agreement. (a) This Agreement
(other than Article VIII) and the Trust shall terminate and be of no
further force or effect upon the final distribution by the Trustee of all
moneys or other property or proceeds of the Trust Estate in accordance with
the Indenture, the Sale and Servicing Agreement and Article V. The
bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder shall not: (x) operate to terminate this Agreement or the
Trust, (y) entitle such Certificateholder's legal representatives or heirs
to claim an accounting or to take any action or proceeding in any court for
a partition or winding up of all or any part of the Trust or Trust Estate
or (z) otherwise affect the rights, obligations and liabilities of the
parties hereto.
(b) Except as provided in Section 9.1(a), neither the Depositor,
the Trustee 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 the
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 the
Certificateholders. Upon presentation and surrender of the Trust
Certificates, the Paying Agent shall cause to be distributed to the
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
Trust Agreement
23
mentioned written notice, the Trustee shall give a second written notice to
the remaining Certificateholders to surrender their Trust Certificates for
cancellation and to receive the final distribution with respect thereto. If
within one year after the second notice all the Trust Certificates shall
not have been surrendered for cancellation, the Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Trust Certificates, and the cost thereof shall be paid out of the funds and
other assets that shall remain subject to this Agreement. Any funds
remaining in the Trust after exhaustion of such remedies shall be
distributed by the Trustee to the Depositor.
(d) Upon the termination of the Trust, the Trustee shall cause the
Certificate of Trust to be canceled by filing a certificate of cancellation
with the Secretary of State in accordance with the provisions of Section
3810 (or successor section) of the Trust Statute.
ARTICLE X
Successor Trustees and Additional Trustees
SECTION 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.
Trust Agreement
24
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 Indenture Trustee, the Noteholders and the
Rating Agencies. If the Administrator shall fail to mail such notice within
10 days after acceptance of appointment by the successor Trustee, the
successor Trustee shall cause such notice to be mailed at the expense of
the Administrator.
Trust Agreement
25
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;
Trust Agreement
26
(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, the Trustee and the Paying Agent, with prior
written notice to the Rating Agencies, without the consent of any of the
Noteholders or the Certificateholders, to cure any ambiguity, to correct or
supplement any provisions in this Agreement or for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions in this Agreement or of modifying in any manner the rights of
the Noteholders or the Certificateholders; provided, however,
Trust Agreement
27
that such action shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of any Noteholder or
Certificateholder.
This Agreement may also be amended from time to time by the
Depositor, the Trustee and the Paying Agent, with prior written notice to
the Rating Agencies, with the written consent of (x) Holders of Offered
Notes evidencing not less than a majority of the Outstanding Amount of the
Offered Notes, (y) Holders of Class B Notes evidencing not less than a
majority of the Outstanding Amount of 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 Noteholders or the
Certificateholders; provided, however, that no such amendment shall: (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that
shall be required to be made for the benefit of the Noteholders or the
Certificateholders or (b) reduce the aforesaid percentage of the Note
Balance and the Certificate Balance required to consent to any such
amendment, without the consent of the holders of all the outstanding Notes
and Certificates.
Promptly after the execution of any such amendment or consent (or,
in the case of the Rating Agencies, 10 days prior thereto), the Trustee
shall furnish written notification of the substance of such amendment or
consent to each Certificateholder, the Indenture Trustee and each of the
Rating Agencies.
It shall not be necessary for the consent of Certificateholders,
the Noteholders or the Indenture Trustee pursuant to this Section to
approve the particular form of any proposed amendment or consent, but it
shall be sufficient if such consent shall approve the substance thereof.
The manner of obtaining such consents (and any other consents of the
Certificateholders provided for in this Agreement or in any Basic Document)
and of evidencing the authorization of the execution thereof by the
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.
Trust Agreement
28
SECTION 11.2. No Legal Title to Trust Estate in
Certificateholders. The Certificateholders shall not have legal title to
any part of the Trust Estate. The Certificateholders shall be entitled to
receive distributions with respect to their undivided ownership interest
therein only in accordance with Articles V and IX. No transfer, by
operation of law or otherwise, of any right, title or interest of the
Certificateholders in, to and under their ownership interest in the Trust
Estate shall operate to terminate this Agreement or the trusts hereunder or
entitle any transferee to an accounting or to the transfer to it of legal
title to any part of the Trust Estate.
SECTION 11.3. Limitations on Rights of Others. The provisions of
this Agreement are solely for the benefit of the Trustee, the Paying Agent,
the Depositor, the Certificateholders, the Administrator and, to the extent
expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Agreement, whether express or implied, shall be construed
to give to any other Person any legal or equitable right, remedy or claim
in the Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
SECTION 11.4. Notices. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing, personally
delivered or mailed by certified mail, postage prepaid and return receipt
requested, and shall be deemed to have been duly given upon receipt: (i) if
to the Trustee or the Paying Agent, addressed to the Corporate Trust
Office, and (ii) if to the Depositor, addressed to 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 parties.
(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.
Trust Agreement
29
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, the Paying
Agent 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 a 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, then 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 Federal or state bankruptcy or similar
law in connection with any obligations relating to the Trust Certificates,
the Notes, this Agreement or any of the Basic Documents.
SECTION 11.9. No Petition. The Trustee on behalf of the Trust, by
entering into this Agreement, each Certificateholder, by accepting a Trust
Certificate, and the Indenture Trustee and each Noteholder, by accepting
the benefits of this Agreement, hereby covenant and agree that they will
not at any time institute against the Depositor or the Trust, or join in
any institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or
other proceedings under any Federal or state bankruptcy or similar law in
connection with any obligations relating to the Trust Certificates, the
Notes, this Agreement or any of the Basic Documents.
SECTION 11.10. No Recourse. Each Certificateholder by accepting a
Trust Certificate acknowledges that such Certificateholder's Trust
Certificates represent beneficial interests in the Trust only and do not
represent interests in or obligations of the 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.
Trust Agreement
30
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.
Trust Agreement
31
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized as of the day and year first above written.
THE BANK OF NEW YORK,
as Trustee
By: /s/ ▇▇▇▇▇▇ ▇. Laser
Name: ▇▇▇▇▇▇ ▇. Laser
Title: Assistant Vice President\
CASE RECEIVABLES II INC.,
as Depositor
By: /s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Treasurer
Trust Agreement
32
EXHIBIT A
to Trust Agreement
FORM OF TRUST CERTIFICATES
REGISTERED $___________1
NUMBER R-___ CUSIP NO. 147440___
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EXEMPTION THEREFROM.
CASE EQUIPMENT LOAN TRUST 1997-B
6.410% ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below,
the property of which includes a pool of retail installment sale contracts
secured by new and used agricultural and construction equipment and sold to
the Trust by Case Receivables II Inc.
(This Trust Certificate does not represent an interest in or
obligation of Case Receivables II Inc., Case Credit Corporation or Case
Corporation, or any of their respective affiliates, except to the extent
described below.)
THIS CERTIFIES THAT CASE RECEIVABLES II INC. is the registered
owner of a _____________ DOLLAR ($___________) nonassessable, fully-paid,
fractional undivided interest in the Case Equipment Loan Trust 1997-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, 1997 (the "Trust Agreement"), among the Seller, and The Bank
of New York, as trustee (the "Trustee"). To the extent not otherwise
defined herein, the capitalized terms used herein have the meanings
assigned to them in the Trust Agreement or the Sale and Servicing Agreement
(the "Sale and Servicing Agreement") dated as of September 1, 1997, among
the Trust, the Seller and Case Credit Corporation, as servicer (the
"Servicer"), as applicable. This Certificate is one of the duly authorized
Certificates designated as "6.410% Asset Backed Certificates" (herein
called the
--------
1Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
Trust Agreement - Appendix A - 1
1
"Trust Certificates"). Issued under the Indenture dated as of September 1,
1997, between the Trust and ▇▇▇▇▇▇ Trust and Savings Bank, as Indenture
Trustee, are notes designated as "5.612% Class A-1 Asset Backed Notes,"
"5.914% Class A-2 Asset Backed Notes," "6.240% Class A-3 Asset Backed
Notes," "6.410% Class A-4 Asset Backed Notes," "Floating Rate Class B Asset
Backed Notes" and "6.410% Class C Asset Backed Notes" (collectively, the
"Notes"). This Trust Certificate is issued under and is subject to the
terms, provisions and conditions of the Trust Agreement, to which Trust
Agreement the holder of this Trust Certificate by virtue of the acceptance
hereof assents and by which holder is bound.
Each Holder of this Trust Certificate acknowledges and agrees that
its rights to receive distributions in respect of this Trust Certificate
are subordinated to the rights of the Noteholders as described in the Sale
and Servicing Agreement and the Indenture.
It is the intent of the Seller, the Servicer and the
Certificateholders that, for purposes of Federal income, state and local
income and franchise and any other income taxes measured in whole or in
part by income, until the Trust Certificates are held by more than one
Person, the Trust will be disregarded as an entity separate from such
Certificateholder. At such time that the Trust Certificates are held by
more than one Person, it is the intent of the Seller, the Servicer and the
Certificateholders that, for purposes of Federal income, state and local
income and franchise and any other income taxes measured in whole or in
part by income, the Trust will be treated as a partnership, the assets of
which are the assets held by the Trust, and the Certificateholders
(including the Depositor (and its transferees and assigns) in its capacity
as recipient of distributions from the Spread Account) will be treated as
partners in that partnership. The Depositor and the other
Certificateholders, by acceptance of a Trust Certificate, agree to treat,
and to take no action inconsistent with the treatment of, the Trust
Certificates as such for tax purposes.
Each Certificateholder, by its acceptance of a Trust Certificate,
covenants and agrees that such Certificateholder will not at any time
institute against the Depositor, the Seller or the Trust, or join in any
institution against the Depositor, the Seller or the Trust of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any Federal or state bankruptcy or
similar law in connection with any obligations relating to the Trust
Certificates, the Notes, 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
Trust Agreement - Appendix A - 2
2
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 (each, a "Benefit Plan"). By accepting and
holding this Certificate, the Holder 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 or the Authenticating
Agent, 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.
Trust Agreement - Appendix A - 3
3
IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not in
its individual capacity has caused this Trust Certificate to be duly
executed.
CASE EQUIPMENT LOAN TRUST 1997-B
By: THE BANK OF NEW YORK,
not in its individual capacity, but
solely as Trustee
By:______________________________
Name:__________________________
Title:_________________________
Trust Agreement - Appendix A - 4
4
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the within-mentioned
Trust Agreement.
THE BANK OF NEW YORK,
as Trustee
By:__________________________
Authorized Signatory
Date: __________ ____, 1997
Trust Agreement - Appendix A - 5
5
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE_______________________________________________________________________
_______________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
_______________________________________________________________________________
the within Trust Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
__________________________________________________________________ Attorney to
transfer said Trust Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated: ______________________*
Signature Guaranteed:
______________________*
*NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within Trust Certificate in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution", as
defined in Rule 17Ad-15 of the Securities Exchange Act of 1934, as amended.
Trust Agreement - Appendix A - 6
6
EXHIBIT B
to Trust Agreement
CERTIFICATE OF TRUST OF
CASE EQUIPMENT LOAN TRUST 1997-B
This Certificate of Trust of CASE EQUIPMENT LOAN TRUST 1997-B (the
"Trust"), dated as of ____________ ____, 1997, is being duly executed and
filed by The Bank of New York (Delaware), a Delaware banking corporation,
as trustee, to form a trust under the Delaware Business Trust Act (12 Del.
Code ss. 3801 et seq.).
1. Name. The name of the trust formed hereby is CASE EQUIPMENT LOAN
TRUST 1997-B.
2. Delaware Trustee. The name and business address of the trustee
of the Trust in the State of Delaware is The Bank of New York (Delaware),
▇▇▇▇▇ ▇▇▇▇ Center, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
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.
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity, but solely
as trustee under a Trust Agreement dated
as of September 1,1997
By:________________________________
Name:____________________________
Title:___________________________
Trust Agreement - Exhibit B - 1
1