Exhibit 3(a)
CERTIFICATE OF INCORPORATION
OF
CNH CAPITAL RECEIVABLES INC.
FIRST: The name of the corporation is CNH Capital
Receivables Inc. (the "Corporation").
SECOND: The address of the Corporation's registered
office in the State of Delaware is 1209 Orange Street, Wilmington, Delaware
19801. The name of its registered agent at such address is CT Corporation.
THIRD: The nature of the business or purpose to be conducted
or promoted by the Corporation is to engage exclusively in the following
activities:
(a) to acquire, own, hold, service, sell, assign, pledge,
finance, refinance and otherwise deal with from time
to time installment sale contracts, sale contracts,
receivables, installment obligations, loans or leases
arising out of or relating to the sale or lease of
new or used agricultural, construction or other
industrial equipment, monies due thereunder, security
interests in the equipment financed thereby, proceeds
from claims on insurance policies related thereto and
related agreements, instruments, documents
and rights (collectively, "Receivables");
(b) to acquire, own, hold, service, sell, assign,
pledge, finance, refinance and otherwise deal
with the collateral securing or equipment leased
under the Receivables, related insurance
policies, agreements with equipment dealers or
lessors or other originators or servicers of
Receivables and any proceeds or further rights
associated with any of the foregoing
(collectively, "Related Rights");
(c) to deal with the obligors under or servicers of
Receivables and Related Rights;
(d) to borrow funds and issue evidences of
indebtedness in respect thereof, and sell and
assign Receivables and Related Rights or
interests in Receivables and Related Rights and
issue notes, certificates or evidences of
ownership or assignments in respect thereof, in
each case in order to finance and facilitate the
purchase of Receivables and Related Rights and
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to secure such borrowings and indebtedness with
(and to pledge and grant liens on and security
interests in) Receivables and Related Rights
acquired from time to time and other assets and
properties in which it otherwise has a right,
title or interest, provided, that, if the
Corporation has issued any securities (either
directly or through a securitization trust) that
are then rated by a nationally recognized
statistical rating organization (a "Rating
Agency"), the Corporation shall not directly
borrow funds or issue evidence of indebtedness
other than as permitted by such rated
transaction unless each Rating Agency shall have
confirmed in writing that such action would not
cause it to downgrade or withdraw its rating of
any outstanding indebtedness (direct or
indirect) then rated by such Rating Agencies;
(e) to enter into one or more agreements relating to such
borrowing of funds and issuing evidences of
indebtedness in respect thereof, in each case
referred to in clause (d) above, and the issuance of
such notes, certificates or other evidences of
ownership or assignment, and to enter into credit
enhancement arrangements and agreements with respect
thereto and the purchase and servicing of Receivables
and Related Rights and all such documents, agreements
and instruments necessary or appropriate in
connection therewith and to undertake all such duties
and obligations and covenants as may be set forth in
such agreements, documents, and instruments on its
part to be performed thereunder (such agreements,
documents and instruments, "Securitization
Agreements");
(f) to loan or otherwise invest proceeds from Receivables
and Related Rights and any other income, in either
case to the extent permitted in any
Securitization Agreement;
(g) to execute, deliver and perform agreements
evidencing, necessitated by or in connection with
any and all of the foregoing;
(h) to issue capital stock as provided for herein; and
(i) to engage in any lawful act or activity and to
exercise any powers permitted to corporations
organized under the General Corporation Law of
the State of Delaware that are incidental to and
necessary, suitable or convenient for the
accomplishment of the purposes specified in
clauses (a) through (h) above.
FOURTH: (a) The total number of shares of all classes of
capital stock that the Corporation shall have authority to issue is Two
Hundred (200) shares of common stock, par value $5.00 per share (the
"Common Stock").
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(b) All voting rights shall be vested in the holders
of the Common Stock, and at each meeting of
stockholders of the Corporation, each holder of
Common Stock shall be entitled to one vote for
each share on each matter to come before the
meeting.
(c) Dividends may be declared upon and paid to the
holders of the Common Stock as the Board of Directors
shall determine.
(d) In the event of voluntary or involuntary
liquidation or dissolution of the Corporation,
the holders of the Common Stock shall be
entitled to share ratably in all assets of the
Corporation.
FIFTH: The name and mailing address of the sole incorporator
of the Corporation is as follows:
Name Mailing Address
---- ---------------
Peter T. Gruszka Mayer, Brown & Platt
190 South LaSalle Street
Chicago, IL 60603
SIXTH: (a) The business and affairs of the Corporation
shall be managed by and under the direction of the Board of Directors.
(b) At any given time, at least two members of the
Corporation's Board of Directors shall be an
Independent Director as defined below;
provided, however, that if at any time
the office of either Independent Director shall
be vacant for any reason, subject to
ARTICLE NINTH and Paragraph (d)
of this ARTICLE SIXTH hereof, any action taken
by the Board of Directors in
accordance with this Certificate of
Incorporation and the Corporation's By-Laws
(other than actions taken with respect to
matters described in such ARTICLE NINTH and
Paragraph (d) of this ARTICLE
SIXTH) shall nonetheless be valid.
(c) As used herein, the following terms shall have the
meaning set forth below:
(i) An "Independent Director"shall be an
individual who (A) is not (and is not
an affiliate of) and for a five year
period prior to election or
appointment, as the case may be, was
not (and was not an affiliate of) a
director, officer, employee, manager,
contractor, customer or supplier (in
either case, of goods or services, or
both, having a value of $1,000 or more)
or the beneficial owner at the time of
such individual's appointment as an
Independent Director,
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or at any time thereafter while serving
as an Independent Director, of (x)
either directly or indirectly, any of
the outstanding shares of common stock
of CNH Global N.V. ("CNH Global"), or
(y) directly or indirectly, outstanding
shares of common stock of any affiliate
of having a value greater than the
lesser of (i) $30,000 or (ii) 0.5% of
such individual's net worth; provided,
that, with respect to clause (y) next
above, no shares held by a mutual fund,
investment trust or similar investment
vehicle in which such individual holds
an interest shall be included in the
calculation of the value of the common
stock of any affiliate of CNH Global
held by such individual so long as such
individual does not directly or
indirectly make the investment
decisions for such mutual fund,
investment trust or other investment
vehicle; (B) is not a spouse, parent,
sibling or child of any Person
described by clause (A); and (C) has
not served as a trustee in bankruptcy
for CNH Global or any of its affiliates
or subsidiaries; provided, however,
that notwithstanding anything contained
in clauses (A) through (C) above, an
Independent Director may serve or have
served as an Independent Director of
one or more additional limited purpose
corporations, business trusts,
partnerships or other entities
organized for the purpose of acquiring,
financing or otherwise investing,
directly or indirectly, in assets or
receivables originated, owned or
serviced by CNH Global or any of its
affiliates.
(ii) An "affiliate" of a Person, or a Person
"affiliated with," a specified Person
shall mean a Person that directly or
indirectly through one or more
intermediaries controls, is controlled
by or is under common control with the
specified Person.
(iii) The term "control" (including the terms
"controlling," "controlled by" and
"under common control with") shall mean
the possession, direct or indirect, of
the power to direct or cause the
direction of the management and
policies of a Person, whether through
the ownership of voting securities, by
contract or otherwise.
(i) The term "Person" shall mean any
individual, partnership, firm,
corporation, association, trust,
limited liability company,
unincorporated organization or other
entity, as well as any syndicate or
group deemed to be a Person pursuant to
Article 13(d)(3) of the Securities
Exchange Act of 1934, as amended.
(ii) A "subsidiary" of Case Credit
Corporation ("Credit") shall mean any
corporation a majority of the voting
stock of which is owned, directly or
indirectly, through one or more other
subsidiaries, by Credit.
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(d) If an Independent Director resigns, dies or
becomes incapacitated, or such position
otherwise becomes vacant, no action requiring
the unanimous vote of the Board of Directors
shall be taken until a successor Independent
Director is elected and qualified and approves
of such action. In the event of the death,
incapacity or resignation of an Independent
Director, or a vacancy for any other reason, a
successor Independent Director shall be
appointed by the remaining directors. To the
extent permitted by Delaware law, the
Independent Directors, in voting on matters
subject to the approval of the Board of
Directors, shall at all times take into account
the interests of creditors of the Corporation,
in addition to the interests of the Corporation
and its stockholders.
SEVENTH: The Corporation is to have perpetual existence.
EIGHTH: Meetings of stockholders shall be held at such
place, within or without the State of Delaware, as may be designated by or
in the manner provided in the By-laws or, if not so designated or provided,
at the registered office of the Corporation in the State of Delaware.
Elections of directors need not be by ballot unless and except to the
extent that the By-laws so provide. The books of the Corporation may be
kept (subject to any provision contained in any applicable statute) outside
the State of Delaware at such place or places as may be designated from
time to time by the Corporation's Board of Directors or in the By-laws of
the Corporation.
NINTH: (a) The Corporation shall not, without the
affirmative vote of 100% of the members of the Board of Directors,
including the affirmative vote of each Independent Director, which vote of
each such director shall be in writing and given prior to such action, do
any of the following:
(i) engage in any business or activity other
than those set forth in ARTICLE THIRD
hereof;
(ii) dissolve or liquidate, in whole or in
part, consolidate or merge with or into
any other entity or convey or transfer
its properties and assets,
substantially as an entirety to any
entity other than in the ordinary
course of the Corporation's business as
set forth in ARTICLE THIRD hereof;
(iii) institute proceedings to be adjudicated
bankrupt or insolvent, or consent to
the institution of bankruptcy or
insolvency proceedings against it or
file a petition seeking, or consent to,
reorganization, liquidation or relief
under any applicable federal or state
law relating to bankruptcy, insolvency,
reorganization or dissolution,
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or consent to the appointment of a
receiver, liquidator, assignee,
trustee, sequestrator (or other similar
official) of the Corporation or a
substantial part of its property, or
make an assignment for the benefit of
creditors, or admit in writing its
inability to pay its debts as they
become due, or take corporate action in
furtherance of any such action or take
any similar action with respect to any
securitization trust established by it;
or
(iv) increase or reclassify the capital stock of
the Corporation or issue any additional
shares of capital stock of the Corporation.
(b) The Corporation shall not take any corporate
action in connection with any merger of the
Corporation into, or consolidation of the
Corporation with, any other Person or entity, or
convey, transfer or lease substantially all of
its assets as an entirety to any Person or
entity unless, the following conditions are
satisfied:
(i) The Person or entity surviving such merger
or consolidation or the Person or entity
which acquires by conveyance, transfer or
lease substantially all of the assets of the
Corporation (A) is organized under the laws
of the United States or any state thereof,
(B) has immediately following such merger or
consolidation or transfer a net worth at
least equal to that of the Corporation
immediately prior to such merger,
consolidation or transfer (or whose
obligations are guaranteed by a Person or
entity with a net worth at least equal to
that of the Corporation immediately prior
to such merger, consolidation or transfer),
(C) expressly assumes all of the
bligations of the Corporation in connection
with the indebtedness of the Corporation
and (D) shall have a certificate of
incorporation, or other organizational
document containing provisions
substantially similar to the provisions of
ARTICLE THIRD, this ARTICLE NINTH, ARTICLE
TENTH and ARTICLE ELEVENTH of this
Certificate of Incorporation.
(ii) Immediately after giving effect to such
merger, consolidation or transfer, no
default or event of default shall have
occurred and be continuing under any
agreement to which the Corporation is a
party.
(iii) Such merger, consolidation or transfer
shall be authorized by (A) the
affirmative vote of 100% of the entire
Board of Directors, including each
Independent Director and (B) the
affirmative vote of the holders of
outstanding shares of capital stock of
the
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Corporation representing 100% of all
the votes entitled to be cast thereon.
(c) The Corporation shall not, without the
affirmative vote of 100% of the members of the
Board of Directors, including the affirmative
vote of each Independent Director, which vote of
each such director shall be in writing and given
prior to such action, dissolve or liquidate, in
whole or in part;
provided that if there is not two Independent Directors then in office and
acting, a vote upon any matter set forth in this ARTICLE NINTH shall not be
taken unless and until both Independent Directors shall have been duly
elected.
TENTH: Without the affirmative vote of each member of the
Corporation's Board of Directors, including the affirmative vote of the
Independent Directors, the Corporation shall not amend either this
Certificate of Incorporation or the By-laws of the Corporation; provided
that if there are not two Independent Directors then in office, a vote upon
any matter set forth in this ARTICLE TENTH shall not be taken unless and
until two Independent Directors shall have been duly elected.
ELEVENTH: In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized:
(a) To make, alter or repeal the By-Laws of the
Corporation, subject to any limitation set forth
in the By-Laws or in this Certificate of
Incorporation.
(b) To set apart out of any of the funds of the
Corporation available for dividends a reserve or
reserves for any proper purpose and to abolish
any such reserve in the manner in which it was
created.
(c) By a majority of the whole Board, to designate
one or more committees, each committee to
consist of one or more of the Directors of the
Corporation. The Board may designate one or
more Directors as alternate members of any
committee, who may replace any absent or
disqualified member at any meeting of the
committee. The By-Laws may provide that in the
absence or disqualification of a member of a
committee, the member or members thereof
present at any meeting and not disqualified
from voting, whether or not he, she or they
constitute a quorum, may unanimously appoint
another member of the Board of Directors to
act at the meeting in the place of any such
absent or disqualified member. Any such
committee, to the extent provided in the
resolution of the Board of Directors, or in
the By-Laws of the Corporation, shall have and
may exercise all the powers and authority of
the Board of Directors in the management of
the business and affairs of the Corporation,
and may authorize the seal of the Corporation
to be affixed to all papers which may
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require it; but no such committee shall have the
power or authority in reference to taking any
action that requires the unanimous consent of
all members of the Board of Directors, including
amending the certificate of incorporation,
adopting an agreement of merger or
consolidation, recommending to the stockholders
the sale, lease or exchange of all or
substantially all of the Corporation's property
and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation
of a dissolution, or amending the By-Laws of the
Corporation; and, unless the resolution or
By-Laws expressly so provide, no such committee
shall have the power or authority to declare a
dividend or to authorize the issuance of stock.
(d) To exercise, in addition to the powers and
authorities herein or by law conferred upon it,
any such powers and authorities and do all such
acts and things as may be exercised or done by
the Corporation, subject nevertheless, to the
provisions of the laws of the State of Delaware
and of this Certificate of Incorporation and of
the By-Laws of the Corporation.
TWELFTH: The Corporation will maintain its separate
corporate existence and identity and will take all steps necessary to make
it apparent to third parties that the Corporation is an entity with assets
and liabilities distinct from those of Credit or any subsidiary or
affiliate of Credit. Without limiting the foregoing, the Corporation shall
therefore, at all times (i) promptly reimburse Credit or any affiliate of
Credit for all reasonable expenses paid or incurred by Credit, any
affiliate or their personnel for or on behalf of the Corporation, including
appropriate allocations of (x) salaries and benefits of those personnel
performing services for the Corporation and (y) office space, overhead,
computing and other expenses attributable to services performed for the
Corporation, if any, (ii) maintain the Corporation's books, accounting
records and other corporate documents and records separate from those of
Credit or any other entity, (iii) prepare separate financial statements
from those of Credit and request that Credit include appropriate footnotes
in any consolidated financial statements issued by Credit to reflect the
Corporation's separate existence and assets and liabilities, (iv) maintain
the Corporation's books of account and payroll (if any) separate from those
of Credit or any affiliate of Credit, (v) act solely in its corporate name
and through its own authorized officers and agents, stationary, checks,
invoices and letterhead, (vi) separately manage the Corporation's
liabilities from those of Credit or any affiliate of Credit and pay its own
liabilities, including all administrative expenses, including salaries,
from its own separate assets, (vii) pay from the Corporation's assets all
obligations and indebtedness of any kind incurred by the Corporation,
(viii) maintain an arm's length relationship with its affiliates, (ix)
maintain a sufficient number of employees in light of its contemplated
business operations, (x) hold itself out as a separate entity, (xi) correct
any known misunderstanding regarding its separate identity, (xii) except as
contemplated by a Securitization Agreement, not commingle its assets with
those of any other entity, (xiii) except as contemplated by a
Securitization Agreement, not acquire obligations or securities of its
partners, members or shareholders, (xiv) except as contemplated by a
Securitization Agreement, not pledge its assets for the benefit of any
other entity or make loans or advances to any other
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entity, and (xv) maintain adequate capital in light of its contemplated
business operations. The Corporation shall abide by all corporate
formalities, including the maintenance of current minute books, and the
Corporation shall cause its financial statements to be prepared in
accordance with generally accepted accounting principles in a manner that
indicates the separate existence of the Corporation and its assets and
liabilities. The Corporation shall not assume the liabilities of Credit or
any affiliate of Credit, and shall not guarantee the liabilities of Credit
or any affiliate of Credit. The officers and directors of the Corporation
(as appropriate) shall make decisions with respect to the business and
daily operations of the Corporation independent of and not dictated by
Credit or any affiliate of Credit.
THIRTEENTH: To the fullest extent permitted by the
General Corporation Law of the State of Delaware as it now exists or may
hereafter be amended, no director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages arising from a breach
of fiduciary duty owed to the Corporation or its stockholders.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such
repeal or modification.
FOURTEENTH: A director shall be fully protected in
relying on information, opinions, reports, books or account or statements,
including financial statements and other financial data, that are prepared
or presented by (a) one or more directors, officers or employees of the
Corporation reasonably believed to be reliable and competent in the matters
prepared or presented, (b) counsel, public accountants, or other persons as
to matters reasonably believed to be within the preparer or presenter's
professional or expert competence, or (c) a committee on which the director
relying thereon does not serve and which has been established in accordance
with General Corporation Law of the State of Delaware, as to matters within
the committee's designated authority and matters on which the committee is
reasonably believed to merit confidence. Notwithstanding anything to the
contrary in the immediately proceeding sentence, a director is not entitled
to rely on such information, opinions, reports, books of account or
statements if he or she has knowledge concerning the matter in question
that would cause reliance thereon to be unwarranted.
FIFTEENTH: (a) The Corporation shall indemnify any officer
or director who was or is a party or who is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (except an action by or in
the right of the Corporation) by reason of the fact that he or she is or
was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection
with such action, suit or proceeding if he or she acted in good faith and
in a manner he or she reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The
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termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the Person did
not act in good faith or in a manner which he or she reasonably believed to
be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to
believe that his or her conduct was unlawful.
(b) The Corporation shall indemnify any officer or
director who was or is a party or who is
threatened to be made a party to any
threatened, pending or completed action or suit
by or in the right of the Corporation to
procure a judgement in its favor by reason of
the fact that he or she is or was a director or
officer of the Corporation, or is or was
serving at the request of the Corporation as a
director or officer of another corporation,
partnership, joint venture, trust or other
enterprise against expenses, including amounts
paid in settlement and attorneys' fees actually
and reasonably incurred by him in connection
with the defense or settlement of the action or
suit if he or she acted in good faith and in a
manner which he reasonably believed to be in or
ot opposed to the best interests of the
Corporation. Indemnification may not be made
for any claim, issue or matter as to which such
a person has been adjudged by a court of
competent jurisdiction, after exhaustion of all
appeals therefrom, to be liable to the
Corporation or for amounts paid in settlement
to the Corporation, unless and only to the
extent that the court in which the action or
suit was brought or other court of competent
jurisdiction determines upon application that
in view of all the circumstances of the case,
the person is fairly and reasonably entitled to
or such expenses as the court deems
proper.
(a) Notwithstanding anything contained in this
ARTICLE FIFTEENTH to the contrary and subject to
the applicable provisions of the General
Corporation Law of the State of Delaware, as
long as any obligations of the Corporation are
outstanding, the rights of each officer and
director of the Corporation hereunder shall be
entirely subordinated to the full payment when
due of all such obligation.
SIXTEENTH: No director of the Corporation shall be
personally liable to the Corporation or any of its stockholders for
monetary damages for breach of fiduciary duty as a director; provided that
the provisions of this ARTICLE SIXTEENTH shall not eliminate or limit the
liability of a director (a) for any breach of the director's duty of
loyalty to the Corporation and to its stockholders, (b) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (c) under Section 174 of the General Corporation
Law of the State of Delaware or (d) for any transaction from which such
director derived an improper personal benefit. If the General Corporation
Law of the State of Delaware is amended after the filing of this
Certificate of Incorporation so as to authorize corporate action further
eliminating or limiting the personal liability of directors, then the
liability of each director of the Corporation
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shall be eliminated or limited to the fullest extent permitted by the law
of the State of Delaware as the same exists from time to time. Any repeal
or modification of the ARTICLE SIXTEENTH by the stockholders of the
Corporation shall not adversely affect any elimination of or limitation on
the personal liability of a director of the Corporation existing at the
time of such repeal or modification.
SEVENTEENTH: Except as set forth in ARTICLE NINTH hereof,
the Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
EIGHTEENTH: The number of the directors constituting the
Board of Directors shall be five and the following persons shall serve as the
initial directors of the Corporation:
Name Address
---- --------
Robert A. Wegner 100 South Saunders Road
Lake Forest, IL 60045
Theodore R. French 100 South Saunders Road
Lake Forest, IL 60045
Jean-Pierre Rosso 100 South Saunders Road
Lake Forest, IL 60045
John R. Power, Jr. Patrician Group
901 Warrenville Road
Suite 205
Lisle, IL 60532
William L. Staples Staples Financial Inc.
233 South Wacker Drive
Suite 9650
Chicago, IL 60606
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EXECUTED this 19th of May, 2000
By: /s/ Peter T. Gruszka
--------------------------------------
Peter T. Gruszka
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
* * * * *
CNH Capital Receivables Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said Corporation, by the
unanimous written consent of its members dated June 27, 2000, filed with
the minutes of the Board, adopted resolutions proposing and declaring
advisable the following amendment to the Certificate of Incorporation of
said Corporation:
RESOLVED that the Board of Directors hereby declares it advisable
to amend the Certificate of Incorporation of the Corporation, effective on
the date of filing a Certificate of Amendment of Certificate of
Incorporation with the Office of the Secretary of State of the State of
Delaware as follows:
RESOLVED, that clause (a) of Article Third of the Certificate of
Incorporation of the Corporation be and it hereby is amended in its
entirety to read as follows:
"(a) to acquire, own, hold, service, sell, assign, pledge, finance,
refinance and otherwise deal with from time to time
installment sale contracts, sale contracts, receivables,
installment obligations, loans or leases arising out of or
relating to the sale or lease of new or used agricultural,
construction or other equipment, monies due thereunder,
security interests in the equipment financed thereby and in the
equipment subject to such leases, proceeds from claims on
insurance policies related thereto and related agreements,
instruments, documents and rights (collectively,
"Receivables")";
RESOLVED, that clause (d) of Article Third of the Certificate of
Incorporation of the Corporation be and it hereby is amended in its
entirety to read as follows:
<PAGE>
"(d) to borrow funds and issue evidences of indebtedness in
respect thereof, and sell and assign Receivables and Related
Rights or interests in Receivables and Related Rights and
issue notes, certificates or evidences of ownership or
assignments in respect thereof, in each case in order to
finance and facilitate the purchase of Receivables and Related
Rights and to secure such borrowings and indebtedness with
(and to pledge and grant liens on and security interests in)
Receivables and Related Rights acquired from time to time
and other assets and properties in which it otherwise has a
right, title or interest, provided, that, if the Corporation has
issued any securities (either directly or through a
securitization trust) that are then rated by a nationally
recognized statistical rating organization (a "Rating
Agency"), the Corporation shall not directly borrow funds or
issue evidence of indebtedness other than as permitted by
such rated transaction unless each Rating Agency shall have
confirmed in writing that such action would not cause it to
downgrade or withdraw its rating of any outstanding
indebtedness (direct or indirect) then rated by such Rating
Agencies (the "Rating Agency Condition");"
RESOLVED, that clause (b) of Article Ninth of the Certificate of
Incorporation of the Corporation be and it hereby is amended by adding
Article Ninth (b)(iv) to read as follows:
"(b)(iv) The Rating Agency Condition is satisfied."
RESOLVED, that Article Seventeenth of the Certificate of
Incorporation of the Corporation be and it hereby is amended in its
entirety to read as follows:
"SEVENTEENTH: Except as set forth in ARTICLE NINTH hereof
and subject to satisfaction of the Rating Agency Condition, the Corporation
deserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation."
RESOLVED, that Article Nineteenth be and is hereby added to read
as follows:
"NINETEENTH: To the extent permitted by Delaware law,
the Directors, in voting on matters subject to the approval of
the Board of Directors, shall at all times take into account the
PAGE>
interests of creditors of the Corporation, in addition to the
interests of the Corporation and its stockholders."
SECOND: That in lieu of a meeting and vote of stockholders, the
sole stockholder has given unanimous written consent to said amendment in
accordance with the provisions of Section 228 of the General Corporation
law of the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the provisions of Section 242 and 228 of the General Corporation Law of the
State of Delaware.
FOURTH: That the amendment shall be effective on the date of filing
this Certificate of Amendment of Certificate of Incorporation with the Office
of the Secretary of State of Delaware.
<PAGE>
IN WITNESS WHEREOF, CNH Capital Receivables Inc. has caused this
Certificate to be signed by its Senior Vice President and Chief Financial
Officer, Robert A. Wegner, this 27th day of June, 2000.
CNH Capital Receivables Inc.
By: /s/ Robert A. Wegner
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