SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported) March 16, 2000
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CNH RECEIVABLES INC.
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(Exact Name of Registrant as Specified in Charter)
Delaware 333-82741 76-0439709
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
475 Half Day Road, Lincolnshire, Illinois 60069
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (847) 955-1002
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(Former Name or Former Address, if Changed Since Last Report)
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Item 5. Other Events
The Registrant is filing final forms of the exhibits listed in
Item 7(c) below.
Item 7. Financial Statements and Exhibits
(c) Exhibits.
Exhibit
No. Document Description
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1.1 Underwriting Agreement among CNH Receivables Inc. ("CNHR"),
Case Credit Corporation and Salomon Smith Barney Inc.,
dated as of March 9, 2000.
4.1 Indenture between CNH Equipment Trust 2000-A (the "Trust") and
Harris Trust and Savings Bank, dated as of March 1, 2000.
4.2 Trust Agreement between CNHR and The Bank of New York, dated
as of March 1, 2000.
4.3 Sale and Servicing Agreement among CNHR, Case Credit Corporation
and the Trust, dated as of March 1, 2000.
4.4 Purchase Agreement between Case Credit Corporation and CNHR,
dated as of March 1, 2000.
4.5 Administration Agreement among the Trust, Harris Trust and
Savings Bank and Case Credit Corporation, dated as of
March 1, 2000.
8.1 Federal and Illinois Tax and ERISA Opinion of Mayer,
Brown & Platt, dated as of March 16, 2000.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CNH RECEIVABLES INC.
(Registrant)
Dated: March 30, 2000 By: /s/ Ralph A. Than
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Ralph A. Than
Vice President and Treasurer
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INDEX TO EXHIBITS
Exhibit Sequential
No. Document Description
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1.1 Underwriting Agreement among CNH Receivables Inc. ("CNHR"),
Case Credit Corporation and Salomon Smith Barney Inc.,
dated as of March 9, 2000.
4.1 Indenture between CNH Equipment Trust 2000-A (the "Trust") and
Harris Trust and Savings Bank, dated as of March 1, 2000.
4.2 Trust Agreement between CNHR and The Bank of New York, dated
as of March 1, 2000.
4.3 Sale and Servicing Agreement among CNHR, Case Credit Corporation
and the Trust, dated as of March 1, 2000.
4.4 Purchase Agreement between Case Credit Corporation and CNHR,
dated as of March 1, 2000.
4.5 Administration Agreement among the Trust, Harris Trust and
Savings Bank and Case Credit Corporation, dated as of
March 1, 2000.
8.1 Federal and Illinois Tax and ERISA Opinion of Mayer,
Brown & Platt, dated as of March 16, 2000.
page 4
EXECUTION COPY
CNH EQUIPMENT TRUST 2000-A
CLASS A-1 6.178% ASSET BACKED NOTES
CLASS A-2 6.80% ASSET BACKED NOTES
CLASS A-3 7.14% ASSET BACKED NOTES
CLASS A-4 7.34% ASSET BACKED NOTES
CLASS B 7.32% ASSET BACKED NOTES
CNH RECEIVABLES INC.
UNDERWRITING AGREEMENT
March 9, 2000
Salomon Smith Barney Inc.
As Representative of the
Several Underwriters,
390 Greenwich Street
New York. New York 10013
Ladies and Gentlemen:
1. Introductory. CNH Receivables Inc., a Delaware corporation (the
"Seller"), proposes to cause CNH Equipment Trust 2000-A (the "Trust") to issue
and sell $150,000,000 principal amount of Class A-1 6.178% Asset Backed Notes
(the "A-1 Notes"). $360,000,000 principal amount of Class A-2 6.80% Asset Backed
Notes (the "A-2 Notes"), $260,000,000 principal amount of Class A-3 7.14% Asset
Backed Notes (the "A-3 Notes"), $311,000,000 principal amount of Class A-4 7.34%
Asset Backed Notes (the "A-4 Notes") and $46,000,000 principal amount of Class B
7.32% Asset Backed Notes (the "B Notes"; together with the A- 1 Notes, the A-2
Notes, the A-3 Notes and the A-4 Notes, the "Notes"), to the several
underwriters named in Schedule I hereto (collectively, the "Underwriters"), for
whom you are acting as representative (the "Representative"). The assets of the
Trust include, among other things, a pool of retail installment sale contracts
and full payout leases (the "Receivables") secured by new or used over-the-road
trucks and trailers, agricultural, construction, forestry, or other equipment
and the related security interests in the equipment financed thereby. The
Receivables were sold to the Trust by the Seller. The Receivables are serviced
for the Trust by Case Credit Corporation, a Delaware corporation ("Case
Credit"). The Notes will be issued pursuant to the Indenture to be dated as of
March 1, 2000 (as amended and supplemented from time to time, the "Indenture"),
between the Trust and Harris Trust and Savings Bank (the "Indenture Trustee").
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Simultaneously with the issuance and sale of the Notes as contemplated
in this Agreement, the Trust will issue 7.32% Asset Backed Certificates (the
"Certificates"), in an amount of $23,000,000 to the Seller. The Notes and the
Certificates are sometimes referred to herein as the "Securities."
Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed to them in the Sale and Servicing Agreement to be dated as of
March 1, 2000 (as amended and supplemented from time to time, the "Sale and
Servicing Agreement"), among the Trust, the Seller and Case Credit, as servicer,
or, if not defined therein, in the Indenture or the Trust Agreement to be dated
as of March 1, 2000 (as amended and supplemented from time to time, the "Trust
Agreement"), between the Seller and The Bank of New York, as trustee (the
"Trustee").
2. Representations and Warranties. The Seller, and with respect to
items (c), (e), (f), (g), (h), (i), (j), and (m) as they relate to Case Credit,
Case Credit, represents and warrants to, and agrees with, each Underwriter as of
the date hereof and as of the Closing Date that:
(a) The Seller meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") two registration
statements (Registration Nos. 333-52493 and 333-82741) on such Form, including a
preliminary basic prospectus and a preliminary prospectus supplement for
registration under the Act of the offering and sale of the Securities. The
Seller may have filed one or more amendments thereto as may have been required
to the date hereof, each of which amendments has been previously furnished to
you. The Seller will next file with the Commission one of the following: (i)
prior to the effectiveness of such registration statements, an amendment thereto
(including the form of final basic prospectus and the form of final prospectus
supplement relating to the Securities), (ii) after effectiveness of such
registration statements, a final basic prospectus and a final prospectus
supplement relating to the Securities in accordance with Rules 430A and
424(b)(1) or (4) under the Act, or (iii) after the effectiveness of such
registration statements, a final basic prospectus and a final prospectus
supplement relating to the Securities in accordance with Rules 415 and 424(b)(2)
or (5). In the case of clauses (ii) and (iii), the Seller has included in such
registration statements, as amended at the Effective Date, all information
(other than Rule 430A Information) required by the Act and the Rules thereunder
to be included in the Prospectus with respect to the Securities and the offering
thereof. As filed, such amendment and form of final prospectus supplement, or
such final prospectus supplement, shall include all Rule 430A Information,
together with all other such required information with respect to the Securities
and the offering thereof and, except to the extent that the Underwriters shall
agree in writing to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the latest preliminary
basic prospectus and preliminary prospectus supplement that have previously been
furnished to you) as the Seller has advised you, prior to the Execution Time,
will be
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included or made therein. If the Registration Statement contains the undertaking
specified by Regulation S-K Item 512(a), the Registration Statement, at the
Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
For purposes of this Agreement, "Effective Time", means, with
respect to a registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment thereto, if
any, was declared effective by the Commission, and "Effective Date" means the
date of the Effective Time. "Execution Time" shall mean the date and time that
this Agreement is executed and delivered by the parties hereto. Such
registration statements, as amended at the Effective Time, including all
information deemed to be a part of such registration statements as of the
Effective Time pursuant to Rule 430A(b) under the Act, and including the
exhibits thereto and any material incorporated by reference therein, are
hereinafter referred to as the "Registration Statement." "Basic Prospectus"
shall mean the prospectus referred to above contained in the Registration
Statement at the Effective Date including any Preliminary Prospectus Supplement,
as most recently revised or amended and filed with the Commission pursuant to
Rule 424(b) or Rule 429. "Preliminary Prospectus Supplement" shall mean any
preliminary prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Prospectus."Prospectus" shall mean the prospectus supplement relating to the
Securities that is first filed pursuant to Rule 424(b) after the Execution Time,
together with the Basic Prospectus or. if no filing pursuant to Rule 424(b) is
required, shall mean the prospectus supplement relating to the Securities,
including the Basic Prospectus, included in the Registration Statement at the
Effective Date. "Rule 430A Information" means information with respect to the
Securities and the offering of the Securities permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A. "Rule
415", "Rule 424", "Rule 430A" and "Regulation S-K" refer to such rules or
regulations under the Act. Any reference herein to the Registration Statement,
the Basic Prospectus, a Preliminary Prospectus Supplement or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934, as amended (the"Exchange Act"), on or before the Effective
Date of the Registration Statement or the issue date of the Basic Prospectus,
such Preliminary Prospectus Supplement or the Prospectus, as the case may be;
and any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus Supplement or the Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date of
the Registration Statement, or the issue date of the Basic Prospectus, any
Preliminary Prospectus Supplement or the Prospectus, as the case may be, deemed
to be incorporated therein by reference.
(b) On the Effective Date and on the date of this Agreement,
the Registration Statement did or will, and, when the Prospectus is first filed
(if required) in accordance with Rule 424(b) and on the Closing Date (as defined
below), the Prospectus (and any supplements thereto) will, comply in all
material respects with the applicable requirements of the Act and the Trust
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Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
respective rules and regulations of the Commission thereunder (the "Rules and
Regulations"); on the Effective Date, the Registration Statement did not or will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the Prospectus,
if not filed pursuant to Rule 424(b), did not or will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus
(together with any supplement thereto) will not include any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Seller makes no representation
or warranty as to the information contained in or omitted from the Registration
Statement, the Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Seller by any
Underwriter through you specifically for use in connection with preparation of
the Registration Statement, the Prospectus (or any supplement thereto), it being
agreed that the only such information consists of the statements in the second
and sixth paragraphs (concerning initial offering prices, concessions and
reallowances) and in the fourth and eighth paragraphs (concerning overallotment,
stabilizing transactions, syndicate covering transactions and penalty bids)
under the heading "Underwriting" in the Prospectus Supplement. As of the Closing
Date, the Seller's representations and warranties in the Sale and Servicing
Agreement and the Trust Agreement will be true and correct in all material
respects.
(c) Each of Case Credit and the Seller has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the State of Delaware with corporate power and authority to own its
properties and conduct its business as described in the Registration Statement
and to enter into and perform its obligations under this Agreement, the Sale and
Servicing Agreement, the Administration Agreement and the Purchase Agreement and
has obtained all necessary licenses and approvals in each jurisdiction in which
failure to qualify or to obtain such license or approval would render any
Receivable unenforceable by the Seller, the Trustee or the Indenture Trustee.
(d) On the Closing Date, upon delivery thereof, the Liquidity
Receivables Purchase Agreement, the Purchase Agreement, the Trust Agreement and
the Sale and Servicing Agreement will have been duly authorized, executed and
delivered by the Seller, and will be legal, valid and binding obligations of the
Seller enforceable against the Seller in accordance with their terms, subject to
the effect of any applicable bankruptcy, insolvency, reorganization, moratorium
or similar law affecting creditors' rights generally and to the effect of
general principles of equity, including concepts of materiality, reasonableness,
good faith and fair dealing (regardless of whether considered in a proceeding in
equity or at law).
(e) On the Closing Date, upon delivery thereof, the Liquidity
Receivables Purchase Agreement, the Purchase Agreement, the Sale and Servicing
Agreement and the Administration Agreement will have been duly authorized,
executed and delivered by Case
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Credit and will be legal, valid and binding obligations of Case Credit
enforceable against Case Credit in accordance with their terms, subject to the
effect of any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors rights generally and to the effect of general
principles of equity, including concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether considered in a proceeding in
equity or at law).
(f) This Agreement has been duly authorized, executed and
delivered by each of the Seller and Case Credit.
(g) The execution, delivery and performance of this Agreement,
the Liquidity Receivables Purchase Agreement, the Purchase Agreement, the Trust
Agreement, the Administration Agreement, the Sale and Servicing Agreement and
the other documents and certificates delivered in connection therewith (such
agreements, documents and certificates, excluding this Agreement, being,
collectively, the "Basic Documents"), as applicable, by Case Credit and the
Seller, and the consummation of the transactions contemplated thereby, will not
conflict with, or result in a breach, violation or acceleration of, or
constitute a default under, the certificate of incorporation or by-laws of Case
Credit or the Seller or any material agreement or instrument to which Case
Credit or the Seller is a party or by which Case Credit or the Seller is bound
or to which any of the properties of Case Credit or the Seller is subject.
(h) The execution, delivery and performance of this Agreement
and the Basic Documents, as applicable, by Case Credit and the Seller, and the
consummation of the transactions contemplated thereby, will not violate any
statute, rule or regulation or any order of any governmental agency or body or
any court having jurisdiction over Case Credit or the Seller or any of their
properties.
(i) There are no actions, proceedings or investigations
pending or threatened before any court, administrative agency, or other tribunal
(1 ) asserting the invalidity of the Trust or any of the Basic Documents, (2)
seeking to prevent the consummation of any of the transactions contemplated by
any of the Basic Documents or the execution and delivery thereof, or (3) that
could reasonably be expected to materially and adversely affect the performance
by Case Credit or the Seller, as applicable, of its obligations under, or the
validity or enforceability of, this Agreement or the Basic Documents.
(j) On the Closing Date, upon delivery thereof, each of the
First-Tier Case Assignment dated as of the Closing Date from Case Credit to the
Seller and the assignments of Receivables from Case Credit to the Seller
pursuant to the Liquidity Receivables Purchase Agreement has been duly
authorized, executed and delivered by Case Credit.
(k) When the Notes have been duly executed and delivered by
the Trustee, authenticated by the Indenture Trustee in accordance with the
Indenture and delivered and paid for pursuant to this Agreement, the Notes will
be duly issued and entitled to the benefits and
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security afforded by the Indenture, subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally and to the effect of general principles of equity,
including concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at law).
(l) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement or the Basic
Documents, except such as are required and have been or will be obtained and
made on or prior to the Closing Date under the Securities Act and such as may be
required under state securities laws.
(m) Since December 31, 1999, there has not been any material
adverse change in the business, results of operations, condition (financial or
otherwise), prospects, or material properties or assets of the Seller, Case
Credit or Case Corporation.
(n) The computer tape of the Receivables created as of
February 29, 2000, and made available to the Representative by the Servicer, was
complete and accurate in all material respects as of the date thereof and
includes a description of the Receivables that are described in the Second-Tier
Case Assignment.
3. Purchase, Sale, and Delivery of the Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Seller agrees to cause the Trust to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Trust, the respective Classes of Notes in the
respective principal amounts and at the respective purchase prices set forth
opposite the name of such Underwriter in Schedule I hereto. Delivery of and
payment for the Notes shall be made at the office of Mayer, Brown & Platt, 190
South LaSalle Street, Chicago, Illinois 60603 (or such other place as the Seller
and the Representative shall agree), on March 16, 2000 (the "Closing Date").
Delivery of the Notes shall be made against payment of the purchase price in
immediately available funds drawn to the order of the Seller. The Notes to be so
delivered will be initially represented by one or more Notes registered in the
name of Cede & Co., the nominee of The Depository Trust Company ("DTC"). The
interests of beneficial owners of the Notes will be represented by book entries
on the records of DTC and participating members thereof. Definitive Notes will
be available only under limited circumstances.
4. Offering by Underwriters. It is understood that the Underwriters
propose to offer the Notes for sale to the public (which may include selected
dealers), as set forth in the Prospectus.
5. Covenants of the Seller. The Seller covenants and agrees with each
of the Underwriters that:
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(a) The Seller will use its best efforts to cause the
Registration Statement, and any amendment thereto, if not effective at the
Execution Time, to become effective. Prior to the termination of the offering of
the Notes, the Seller will not file any amendment of the Registration Statement
or supplement to the Prospectus unless the Seller has furnished you a copy for
your review prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing sentence, if
the Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Prospectus is otherwise required under Rule 424(b), the
Seller will file the Prospectus, properly completed, and any supplement thereto,
with the Commission pursuant to and in accordance with the applicable paragraph
of Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to you of such timely filing.
(b) The Seller will advise you promptly of any proposal to
amend or supplement the Registration Statement as filed, or the related
Prospectus and will not effect such amendment or supplement without your
consent, which consent will not unreasonably be withheld; the Seller will also
advise you promptly of any request by the Commission for any amendment of or
supplement to the Registration Statement or the Prospectus or for any additional
information; and the Seller will also advise you promptly of the effectiveness
of the Registration Statement and any amendment thereto, when the Prospectus,
and any supplement thereto, shall have been filed with the Commission pursuant
to Rule 424(b) and of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threat of any proceeding for that purpose, and the Seller will use its best
efforts to prevent the issuance of any such stop order and to obtain as soon as
possible the lifting of any issued stop order.
(c) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the
Registration Statement or supplement the Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, the Seller promptly will
notify you and will prepare and file, or cause to be prepared and filed, with
the Commission, subject to the second sentence of paragraph (a) of this Section
5, an amendment or supplement that will correct such statement or omission, or
effect such compliance. Any such filing shall not operate as a waiver or
limitation on any right of any Underwriter hereunder.
(d) As soon as practicable, but not later than fourteen months
after the original effective date of the Registration Statement, the Seller will
cause the Trust to make generally available to Noteholders an earnings statement
of the Trust covering a period of at least twelve months beginning after the
Effective Date of the Registration Statement that will satisfy the provisions of
Section 11(a) of the Act.
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(e) The Seller will furnish to the Underwriters copies of the
Registration Statement (one of which will be signed and will include all
exhibits), each related preliminary prospectus (including the Preliminary
Prospectus Supplement), the Prospectus and all amendments and supplements to
such documents, in each case as soon as available and in such quantities as the
Underwriters request.
(f) The Seller will arrange for the qualification of the Notes
for sale under the laws of such jurisdictions in the United States as you may
reasonably designate and will continue such qualifications in effect so long as
required for the distribution.
(g) For a period from the date of this Agreement until the
retirement of the Notes, or until such time as the Underwriters shall cease to
maintain a secondary market in the Notes, whichever occurs first, the Seller
will deliver to you the annual statements of compliance and the annual
independent certified public accountants' reports furnished to the Trustee or
the Indenture Trustee pursuant to the Sale and Servicing Agreement, as soon as
such statements and reports are furnished to the Trustee or the Indenture
Trustee.
(h) So long as any of the Notes is outstanding, the Seller
will furnish to you (i) as soon as practicable after the end of the fiscal year
all documents required to be distributed to Noteholders or filed with the
Commission pursuant to the Exchange Act or any order of the Commission
thereunder and (ii) from time to time, any other information concerning the
Seller filed with any government or regulatory authority which is otherwise
publicly available, as you may reasonably request.
(i) On or before the Closing Date, the Seller shall cause the
computer records of the Seller and Case Credit relating to the Receivables to be
marked to show the Trust's absolute ownership of the Receivables, and from and
after the Closing Date neither the Seller nor Case Credit shall take any action
inconsistent with the Trust's ownership of such Receivables, other than as
permitted by the Sale and Servicing Agreement.
(j) To the extent, if any, that the rating provided with
respect to the Notes by the rating agency or agencies that initially rate the
Notes is conditional upon the furnishing of documents or the taking of any other
actions by the Seller, the Seller shall furnish such documents and take any such
other actions.
(k) For the period beginning on the date of this Agreement and
ending seven days after the Closing Date, unless waived by the Underwriters,
none of the Seller, Case Credit or any trust originated, directly or indirectly,
by the Seller or Case Credit will offer to sell or sell notes (other than the
Notes and commercial paper notes offered pursuant to Case Credit's existing
asset-backed commercial paper program) collateralized by, or certificates (other
than the Certificates) evidencing an ownership interest in, receivables
generated pursuant to retail agricultural or construction equipment installment
sale contracts.
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(l) On or prior to each Subsequent Transfer Date, to deliver
to the Representative (i) a duly executed Second-Tier Case Subsequent Transfer
Assignment including a schedule of the Subsequent Receivables to be transferred
to the Trust on such Subsequent Transfer Date, (ii) a copy of the Opinions of
Counsel with respect to the transfer of the Subsequent Receivables to be
transferred to the Trust on such Subsequent Transfer Date to be delivered to (A)
the Rating Agencies and (B) the Trustee and the Indenture Trustee pursuant to
Section 2.2(b)(xiv) of the Sale and Servicing Agreement, (iii) a copy of the
letter from a firm of independent nationally recognized certified public
accountants to be delivered to the Trustee and the Indenture Trustee pursuant to
Section 2.2(b)(xv) of the Sale and Servicing Agreement, and (iv) a copy of the
officer's Certificate delivered to the Indenture Trustee and the Trustee
pursuant to Section 2.2(b)(xvi) of the Sale and Servicing Agreement.
(m) The Seller will enter into, and will cause the Issuer to
enter into, each Basic Document to which this Agreement and each Basic Document
contemplates the Seller and/or the Issuer will be a party on or prior to the
Closing Date.
6. Payment of Expenses. The Seller will pay all expenses incident to
the performance of its obligations under this Agreement, including (i) the
printing and filing of the Registration Statement as originally filed and of
each amendment thereto, (ii) the fees of the Indenture Trustee and its counsel,
(iii) the preparation, issuance and delivery of the Notes to the Underwriters,
(iv) the fees and disbursements of Case Credit's and the Seller's counsel and
accountants, (v) the qualification of the Notes under securities laws in
accordance with the provisions of Section 5(f), including filing fees and the
fees and disbursements of counsel for you in connection therewith and in
connection with the preparation of any blue sky or legal investment survey, (vi)
the printing, and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, (vii) the printing
and delivery to the Underwriters of copies of any blue sky or legal investment
survey prepared in connection with the Notes, (viii) any fees charged by rating
agencies for the rating of the Notes and (ix) the fees and expenses, if any,
incurred with respect to any filing, with the National Association of Securities
Dealers, Inc.
7. Conditions of the Obligations of the Underwriters. The obligations
of the Underwriters to purchase and pay for the Notes will be subject to the
accuracy of the representations and warranties on the part of Case Credit and
the Seller herein, to the accuracy of the statements of officers of Case Credit
and the Seller made pursuant to the provisions hereof, to the performance by
Case Credit and the Seller of their respective obligations hereunder and to the
following additional conditions precedent:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Underwriters agree in writing to a later
time, the Registration Statement shall have become effective not later than (i)
6:00 p.m. New York City time on the date of determination of the public offering
price, if such determination occurred at or prior to
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3:00 p.m. New York City time on such date or (ii) 12:00 noon on the business day
following the day on which the public offering price was determined, if such
determination occurred after 3:00 p.m. New York City time on such date.
(b) The Prospectus and any supplements thereto shall have been
filed (if required) with the Commission in accordance with the Rules and
Regulations and Section 5(a) hereof, and prior to the Closing Date, no stop
order suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or, to the
knowledge of the Seller or you, shall be contemplated by the Commission or by
any authority administering any state securities or blue sky law.
(c) On or prior to the Closing Date, you shall have received a
letter or letters, dated as of the date of the Closing Date, of Arthur Andersen
& Co., independent public accountants, substantially in the Form of the drafts
to which you have previously agreed and otherwise in form and substance
satisfactory to you and your counsel.
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly the business or
properties of the Trust, the Seller, Case Credit, Case Corporation or CNH Global
N.V. which, in the judgment of the Underwriters, materially impairs the
investment quality of the Notes or makes it impractical or inadvisable to market
the Notes; (ii) any suspension or limitation of trading in securities generally
on the New York Stock Exchange, or any setting of minimum prices for trading on
such exchange; (iii) any suspension of trading of any securities of Case
Corporation or CNH Global N.V. on any exchange or in the over-the-counter market
which, in the judgment of the Underwriters, makes it impractical or inadvisable
to market the Notes; (iv) any banking moratorium declared by Federal or New York
authorities; or (v) any outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by Congress, or any other
substantial national or international calamity or emergency if, in the judgment
of the Underwriters, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Notes.
(e) You shall have received an opinion or opinions of counsel
to Case Credit and the Seller, addressed to you, as Representative of the
several Underwriters, the Trustee and the Indenture Trustee, dated the Closing
Date and satisfactory in form and substance to you and your counsel, to the
effect that:
(i) Each of Case Credit and the Seller is an existing
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus and to enter into and perform its
obligations under this Agreement, the Sale and Servicing Agreement, the
Administration Agreement and the Purchase Agreement and has obtained all
necessary licenses and
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approvals in each jurisdiction in which failure to qualify or to obtain
such license or approval would render any Receivable unenforceable by the
Seller, the Trustee or the Indenture Trustee.
(ii) The direction by the Seller to the Trustee to
authenticate the Certificates has been duly authorized by the Seller and,
when the Certificates have been duly executed, authenticated and delivered
by the Trustee in accordance with the Trust Agreement, the Certificates
will be legally issued, fully paid and non-assessable subject to the
obligations of the Seller under Section 2.10 of the Trust Agreement and
entitled to the benefits of the Trust Agreement.
(iii) The direction by Case Credit to the Indenture
Trustee to authenticate the Notes has been duly authorized by Case Credit,
and, when the Notes have been duly executed and delivered by the Trustee,
authenticated by the Indenture Trustee in accordance with the Indenture and
delivered and paid for pursuant to this Agreement, the Notes will be duly
issued and entitled to the benefits and security afforded by the Indenture,
subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights
generally and to the effect of general principles of equity, including
concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at law).
(iv) The Liquidity Receivables Purchase Agreement, the
Purchase Agreement, the Trust Agreement and the Sale and Servicing
Agreement have been duly authorized, executed and delivered by the Seller,
and are legal, valid and binding obligations of the Seller enforceable
against the Seller in accordance with their terms, subject to the effect of
any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally and to the effect of
general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
considered in a proceeding in equity or at law).
(v) This Agreement has been duly authorized, executed
and delivered by each of the Seller and Case Credit.
(vi) The Liquidity Receivables Purchase Agreement, the
Purchase Agreement. the Sale and Servicing Agreement and the Administration
Agreement have been duly authorized, executed and delivered by Case Credit
and are legal, valid and binding obligations of Case Credit enforceable
against Case Credit in accordance with their terms, subject to the effect
of any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally and to the effect of
general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
considered in a proceeding in equity or at law).
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(vii) The execution, delivery and performance of this
Agreement and the Basic Documents, as applicable, by Case Credit and the
Seller, and the consummation of the transactions contemplated thereby, will
not conflict with, or result in a breach, violation or acceleration of, or
constitute a default under, the certificate of incorporation or by-laws of
Case Credit or the Seller or any material agreement or instrument known to
such counsel to which Case Credit or the Seller is a party or by which Case
Credit or the Seller is bound or to which any of the properties of Case
Credit or the Seller is subject.
(viii) The execution, delivery and performance of this
Agreement and the Basic Documents. as applicable, by Case Credit and the
Seller, and the consummation of the transactions contemplated thereby, will
not violate any statute, rule or regulation or, to such counsel's
knowledge, any order of any governmental agency or body or any court having
jurisdiction over Case Credit or the Seller or any of their properties.
(ix) There are no actions, proceedings or
investigations pending or, to the best of such counsel's knowledge,
threatened before any court, administrative agency, or other tribunal (1)
asserting the invalidity of the Trust or any of the Basic Documents, (2)
seeking to prevent the consummation of any of the transactions contemplated
by any of the Basic Documents or the execution and delivery thereof, or (3)
that could reasonably be expected to materially and adversely affect the
performance by Case Credit or the Seller, as applicable, of its obligations
under, or the validity or enforceability of, this Agreement or the Basic
Documents.
(x) Each of the Assignment dated as of the Closing Date
from Case Credit to the Seller and the assignments of Receivables from Case
Credit to the Seller pursuant to the Liquidity Receivables Purchase
Agreement have been duly authorized, executed and delivered by Case Credit.
(xi) Immediately prior to the transfer of the
Receivables to the Trust, the Seller's interest in the Receivables, the
security interests in the Financed Equipment securing the Receivables and
the proceeds of each of the foregoing was perfected upon the execution and
delivery of the Basic Documents and the filing of a UCC financing statement
with the Secretary of State of the State of Illinois and constituted a
perfected first priority interest therein. If a court concludes that the
transfer of the Receivables from the Seller to the Trust is a sale, the
interest of the Trust in the Receivables, the security interests in the
Financed Equipment securing the Receivables and the proceeds of each of the
foregoing will be perfected upon the execution and delivery of the Basic
Documents and the filing of a UCC financing statement with the Secretary of
State of the State of Illinois and will constitute a first priority
perfected interest therein. If a court concludes that such transfer is not
a sale, the Sale and Servicing Agreement constitutes a grant by the Seller
to the Trust of a valid security interest in the Receivables, the security
interests in the Financed Equipment securing the Receivables and the
proceeds of each of the foregoing, which security interest will be
perfected upon the execution and delivery of the Basic Documents and the
filing of the UCC financing
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statement with the Secretary of State of the State of Illinois referred to
above and will constitute a first priority perfected security interest
therein. No filing or other action, other than the execution and delivery
of the Basic Documents and the filing of the UCC financing statement with
the Secretary of State of the State of Illinois referred to above, is
necessary to perfect and maintain the interest or the security interest of
the Trust in the Receivables, the security interests in the Financed
Equipment securing the Receivables and the proceeds of each of the
foregoing against third parties.
(xii) Assuming that Case Credit's standard procedures
have been followed with respect to the creation of the Receivables, Case
Credit obtains from each Dealer either an absolute ownership interest or a
security interest in the Receivables originated by that Dealer, which
ownership or security interest (whichever it may be) is perfected and prior
to any other interests that may be perfected only by possession of a
Receivable or the filing of a financing statement in accordance with the
UCC. Assuming that Case Credit's standard procedures with respect to the
perfection of a security interest in the equipment financed by Case Credit
pursuant to retail over-the-road truck or trailer, agricultural,
construction, forestry, or other equipment installment sale contracts in
the ordinary course of Case Credit's business have been followed with
respect to the perfection of security interests in the Financed Equipment,
Case Credit has acquired either a perfected security interest in the
Financed Equipment or a perfected security interest in the Receivables,
which indirectly provides Case Credit with a security interest in the
Financed Equipment that is perfected as against the obligor's creditors;
provided, however, that such opinion need not address any equipment that is
subject to a certificate of title statute.
(xiii) The Indenture constitutes a grant by the Trust
to the Indenture Trustee of a valid security interest in the Receivables,
the security interests in the Financed Equipment securing the Receivables
and the proceeds of each of the foregoing.
(xiv) The security interest granted under the Indenture
will be perfected upon the execution and delivery of the Basic Documents
and the filing of a UCC financing statement with the Delaware Secretary of
State and will constitute a first priority perfected security interest
therein. No filing or other action, other than the execution and delivery
of the Basic Documents and the filing of the UCC financing statement with
the Delaware Secretary of State referred to above, is necessary to perfect
and maintain the security interest of the Indenture Trustee in the
Receivables, the security interests in the Financed Equipment securing the
Receivables and the proceeds of each of the foregoing against third
parties.
(xv) The Receivables are chattel paper as defined in
the UCC.
(xvi) The Sale and Servicing Agreement, the Trust
Agreement, the Indenture, the Administration Agreement and the Purchase
Agreement conform in all material respects with the description thereof
contained in the Prospectus and any supplement thereto.
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(xvii) The statements in the Basic Prospectus under the
headings "Risk Factors - Possible liability for third party claims may
cause payment delays or losses" and "Legal Aspects of the Receivables", to
the extent they constitute matters of law or legal conclusions with respect
thereto, are correct in all material respects.
(xviii) The statements contained in the Prospectus and
any supplement thereto under the headings "Description of the Notes",
"Description of the Certificates". "Administration Information About the
Securities" and "Description of the Transaction Agreements", insofar as
such statements constitute a summary of the Notes, the Certificates, the
Indenture, the Administration Agreement, the Sale and Servicing Agreement
and the Trust Agreement, fairly present the matters referred to therein.
(xix) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by this Agreement or
the Basic Documents, except such as are required and have been obtained and
made under the Securities Act and such as may be required under state
securities laws (it being understood that this opinion will be given only
with respect to such consents, approvals, authorizations, orders and
filings that, in such counsel's experience, are customarily applicable in
transactions of the type contemplated by this Agreement and the Basic
Documents).
(xx) The Trust Agreement is not required to be
qualified under the Trust Indenture Act and the Trust is not required to be
registered under the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(xxi) The Indenture has been duly qualified under the
Trust Indenture Act.
(xxii) The Seller is not, and will not as a result of
the offer and sale of the Notes as contemplated in the Prospectus and this
Agreement or as a result of the issuance of the Certificates become, an
"investment company" as defined in the Investment Company Act or a company
"controlled by" an "investment company" within the meaning of the
Investment Company Act.
(xxiii) The Registration Statement has become effective
under the Act, any required filing of the Basic Prospectus, any preliminary
Basic Prospectus, any Preliminary Prospectus Supplement and the Prospectus
and any supplements thereto pursuant to Rule 424(b) have been made in the
manner and within the time period required by Rule 424(b), and, to the best
knowledge of such counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the Act;
and the Registration Statement and the Prospectus, and each amendment or
supplement thereto, as of the Closing Date (in the case of the Registration
Statement) and as of their respective issue dates (in the case of the
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Prospectus and each supplement thereto), complied as to form in all
material material respects with the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations.
(xxiv) The Trust has been duly formed and is validly
existing as a statutory business trust under the laws of the State of
Delaware, with full power and authority to execute, deliver and perform its
obligations under the Sale and Servicing Agreement, the Indenture, the
Administration Agreement, the Notes and the Certificates.
(xxv) The Indenture, the Sale and Servicing Agreement
and the Administration Agreement have been duly authorized and, when duly
executed and delivered by the Trustee, will constitute the legal, valid and
binding obligations of the Trust, enforceable against the Trust in
accordance with their terms, subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally and to the effect of general principles of
equity, including concepts of materiality, reasonableness, good faith and
fair dealing (regardless of whether considered in a proceeding in equity or
at law). The opinions of counsel to Case Credit and the Seller shall also
state that such counsel has examined various documents and participated in
conferences with representatives of Case Credit, the Seller, their counsel
and their accountants and with representatives of the Underwriters, at
which time the contents of the Registration Statement and the Prospectus
and related matters were discussed. However, except as specifically noted
above, such counsel need not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus. Subject to the foregoing, such counsel shall
advise you that no facts have come to their attention that cause them to
believe that the Registration Statement or the Prospectus, at the Closing
Date, contains any untrue statement of a material fact or omits to state
any material fact necessary in order to make (x) the statements in the
Registration Statement not misleading and (y) the statements in the
Prospectus not misleading in the light of the circumstances under which
they were made (in each case except for the financial statements and
related schedules or other financial or statistical data included or
incorporated by reference therein, as to which such counsel will not be
called upon to express a belief).
Such counsel shall also opine as to such other matters as the
Underwriters may reasonably request.
(f) You shall have received an opinion of Mayer, Brown &
Platt, special Illinois tax counsel for the Trust, addressed to you, as
Representative of the several Underwriters, and the Indenture Trustee, dated the
Closing Date and satisfactory in form and substance to you and your counsel, to
the effect that the statements in the Basic Prospectus under the headings
"Illinois State Tax Consequences" and in the Prospectus Supplement under the
heading "Summary of Terms-- Tax Status" (to the extent relating to Illinois tax
consequences), accurately describe the material Illinois tax consequences to
holders of the Securities. Mayer,
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Brown & Platt, in its capacity as special Illinois counsel to Case Credit and
the Seller, shall have delivered an opinion with respect to the perfection and
priority of the respective interests of the Seller and the Trust in the
Receivables under Illinois Law.
(g) You shall have received an opinion of Ballard Spahr
Andrews & Ingersoll, LLP, special Pennsylvania tax counsel for the Trust,
addressed to you, as Representative of the several Underwriters, and the
Indenture Trustee, dated the Closing Date and satisfactory in form and substance
to you and your counsel.
(h) You shall have received an opinion addressed to you, as
Representative of the several Underwriters, of "Mayer, Brown & Platt, in its
capacity as Federal tax and ERISA counsel for the Trust, to the effect that the
statements in the Basic Prospectus under the heading "U.S. Federal Income Tax
Consequences" and in the Prospectus Supplement under the heading "Summary of
Terms -- Tax Status" (to the extent relating to Federal income tax consequences)
accurately describe the material Federal income tax consequences to holders of
the Securities, and the statements in the Basic Prospectus under the heading
"ERISA Considerations," and in the Prospectus Supplement under the headings
"Summary of Terms -- ERISA Considerations" and "ERISA Considerations," to the
extent that they constitute statements of matters of law or legal conclusions
with respect thereto, have been prepared or reviewed by such counsel and
accurately describe the material consequences to holders of the Notes under
ERISA.
(i) You shall have received from Brown & Wood LLP, in its
capacity as counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the validity of the Notes and such other related
matters as you may reasonably require, and Case Credit and the Seller shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(j) You shall have received an opinion or opinions addressed
to you, as Representative of the several Underwriters, Case Credit and the
Seller of counsel to the Indenture Trustee, dated the Closing Date and
satisfactory in form and substance to you and your counsel, to the effect that:
(i) The Indenture Trustee is a banking corporation duly
incorporated and validly existing and in good standing under the laws of
the State of Illinois, and has full power and authority to execute, deliver
and perform its obligations under the Indenture, the Sale and Servicing
Agreement and the Administration Agreement.
(ii) Each of the Indenture, the Sale and Servicing
Agreement and the Administration Agreement has been duly authorized,
executed and delivered by the Indenture Trustee.
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(iii) Each of the Indenture, the Sale and Servicing
Agreement and the Administration Agreement constitutes a legal, valid and
binding obligation of the Indenture Trustee, enforceable against the
Indenture Trustee in accordance with its respective terms, except that
certain of such obligations may be enforceable solely against the Trust
Estate and except that such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws
affecting the enforcement of creditors' rights generally, and by general
principles of equity, including without limitation, concepts of
materiality, reasonableness, good faith and fair dealing (regardless of
whether such enforceability is considered in a proceeding in equity or at
law).
(iv) No authorizations, consents or approvals of,
notice to or filing with, or the taking of any other action in respect of,
any governmental authority or agency of the United States or the State of
Illinois governing the banking or trust powers of the Indenture Trustee is
required for the execution, delivery or performance by the Indenture
Trustee of each of the Indenture, the Sale and Servicing Agreement and the
Administration Agreement.
(v) The Notes have been duly authenticated by the
Indenture Trustee in accordance with the terms of the Indenture.
(vi) Neither the execution, delivery or performance by
the Indenture Trustee of the Indenture, the Sale and Servicing Agreement
and the Administration Agreement nor the compliance with the terms and
provisions thereof, nor the performance of its obligations thereunder,
conflicts or results in a breach of or constitutes a default under any of
the terms, conditions or provisions of any law, government rule or
regulation of the United States of the State of Illinois governing the
banking or trust powers of the Indenture Trustee or the Charter or By-Laws
of the Indenture Trustee or, to such counsel's knowledge, any order, writ,
injunction or decree of any court or governmental authority against the
Indenture Trustee or by which it or any of its properties is bound or, to
such counsel's knowledge, any indenture, mortgage or contract or other
agreement or instrument to which the Indenture Trustee is a party or by
which it or any of its properties is bound, or results in the creation or
imposition of any lien, charge or encumbrance upon any of its properties
pursuant to any agreement or instrument, except encumbrances and security
interests contemplated by the Indenture, the Sale and Servicing Agreement
and the Administration Agreement.
(vii) There are no actions, suits or proceedings
pending or, to the best of such counsel's knowledge, threatened against the
Indenture Trustee before any court, or by or before any federal, state,
municipal or other governmental department, commission, board, bureau or
governmental agency or instrumentality, or arbitrator which would, if
adversely determined, affect in any material respect the consummation,
validity or enforceability against the Indenture Trustee of any of the
Indenture, the Sale and Servicing Agreement and the Administration
Agreement.
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(k) You shall have received an opinion addressed to you, as
Representative of the several Underwriters, Case Credit and the Seller of
counsel to the Trustee, dated the Closing Date and satisfactory in form and
substance to you and your counsel, to the effect that:
(i) The Trustee is duly incorporated, validly existing
in good standing as a banking corporation under the laws of the State of
New York.
(ii) The Trustee has power and authority to execute,
deliver and perform the Trust Agreement and to consummate the transactions
contemplated thereby.
(iii) The Trust Agreement has been duly authorized,
executed and delivered by the Trustee and constitutes a legal, valid and
binding obligation of the Trustee, enforceable against the Trustee, in
accordance with its terms. (iv) Neither the execution or delivery by the
Trustee of the Trust Agreement nor the consummation by the Trustee of any
of the transactions contemplated thereby nor compliance by the Trustee with
the terms or provisions of the Trust Agreement will violate any New York or
United States federal law, rule or regulation governing the banking or
trust powers of the Trustee or the Trustee's certificate of incorporation
or by-laws or require the consent or approval of, the giving of notice to,
the registration with, or the taking of any other action with respect to,
any governmental authority or agency under the laws of the State of New
York or the United States governing the banking trust powers of the
Trustee.
(v) There are no actions, suits or proceedings pending
or, to the best of such counsel's knowledge without independent
investigation, threatened against the Trustee before any court, or by or
before any federal, state, municipal or other governmental department,
commission, board, bureau or governmental agency or instrumentality, or
arbitrator which would, if adversely determined, affect in any material
respect the consummation, validity or enforceability against the Trustee of
the Trust Agreement.
You shall also have received an opinion addressed to you, as
Representative of the several Underwriters, Case Credit and the Seller of
counsel to The Bank of New York (Delaware), as Delaware Trustee, dated the
Closing Date and satisfactory in form and substance to you and your counsel,
covering such matters as you and your counsel may reasonably request.
(l) You shall have received an opinion addressed to you, as
Representative of the several Underwriters, Case Credit and the Seller of,
Richards, Layton & Finger, special Delaware counsel to the Trust, dated the
Closing Date, subject to customary qualifications, exceptions and assumptions,
and satisfactory in form and substance to you and your counsel, substantially to
the effect that:
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(i) The Trust has been duly formed and is validly
existing in good standing as a business trust under the laws of the State
of Delaware.
(ii) The Trust has the power and authority, pursuant to
the Trust Agreement and the laws of the State of Delaware, to execute,
deliver and perform its obligations under the Basic Documents to which it
is a party, and has duly authorized the Trustee to execute and deliver such
Basic Documents.
(iii) The Certificates have been validly issued and are
entitled to the benefits of the Trust Agreement.
(iv) The Trust Agreement is a legal, valid and binding
obligation of the Depositor and the Trustee, enforceable against the
Depositor and the Trustee, in accordance with its terms.
(v) To the extent that Article 9 of the Uniform
Commercial Code as in effect in the State of Delaware, (the "DELUCC"), is
applicable (without regard to conflicts of laws principles), and assuming
that the security interest created by the Indenture in the Collateral (as
defined in the Indenture) has been duly created and has attached, upon the
filing of the Financing Statement with the Secretary of State, the
Indenture Trustee will have a perfected security interest in that portion
of the Collateral that consists of general intangibles, accounts or chattel
paper (as such terms are defined in the DELUCC) and the proceeds thereof
and such security interest will be prior to any other security interest
granted by the Trust that is perfected solely by the filing of financing
statements under the DELUCC, excluding purchase money security interests
under ss. 9-312 of the DELUCC and temporarily perfected security interests
in proceeds under ss. 9-306 of the DELUCC. No refiling or other action is
necessary under the DELUCC in order to maintain the perfection of such
security interest except for the filing of continuation statements at five
year intervals. To the extent the DELUCC applies, the Receivables (in the
form attached as an exhibit to such opinion) are "chattel paper" as defined
in Section 9-105(l)(b) of the DELUCC.
(vi) Under the Delaware Business Trust Act, no creditor
of any Certificateholder shall have any right to obtain possession of, or
otherwise exercise legal or equitable remedies with respect to, the
property of the Trust except in accordance with the terms of the Trust
Agreement.
(m) You, as Representative of the several Underwriters, shall
have received copies of any opinions of counsel to Case Credit and the Seller
supplied to the Rating Agencies. Any such opinions shall be dated the Closing
Date and addressed to you, as Representative of the several Underwriters, or
accompanied by reliance letters addressed to you, as Representative of the
several Underwriters.
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(n) You shall have received certificates dated the Closing
Date of any two of the Chairman of the Board, the President, the Executive Vice
President, any Vice President, the Treasurer, any Assistant Treasurer, the
principal financial officer or the principal accounting officer of each of Case
Credit, the Seller and the Servicer in which such officers shall state that, to
the best of their knowledge after reasonable investigation, (i) the
representations and warranties of each of Case Credit and the Seller contained
in the Trust Agreement, the Liquidity Receivables Purchase Agreement, the
Purchase Agreement and the Sale and Servicing Agreement, as applicable, are true
and correct in all material respects, that each of Case Credit and the Seller,
has complied in all material respects with all agreements and satisfied in all
material respects all conditions on its part to be performed or satisfied under
such agreements at or prior to the Closing Date, that no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated by the
Commission and (ii) since December 31, 1999 except as may be disclosed in the
Prospectus or, in the case of Case Credit or Case Corporation, as may be
disclosed publicly by Case Credit or Case Corporation prior to the Execution
Time, no material adverse change in or affecting particularly the business or
properties of the Trust, the Seller, the Servicer, Case Credit or Case
Corporation has occurred.
(o) You shall have received evidence satisfactory to you that,
on or before the Closing Date, UCC financing statements have been or are being
filed in the office of the Secretary of State of the States of Illinois and
Delaware reflecting the transfer of the interest of Case Credit in the
Receivables and the proceeds thereof to the Seller, and the transfer of the
interest of the Seller in the Receivables and the proceeds thereof to the Trust
and the grant of the security interest by the Trust in the Receivables and the
proceeds thereof to the Indenture Trustee.
(p) The A-1 Notes shall have been rated A-1+ and P-1, the A-2
Notes, the A-3 Notes and the A-4 Notes shall have been rated AAA and Aaa, and
the Class B Notes shall have been rated A and A3 by Standard & Poor's Ratings
Services and Moody's Investors Service, Inc., respectively.
(q) The issuance of the Notes and the Certificates shall not
have resulted in a reduction or withdrawal by any Rating Agency of the current
rating of any outstanding securities issued or originated by the Seller.
(r) On the Closing Date, the Certificates shall have been
issued to the Seller.
(s) The Seller will provide or cause to be provided to you, as
Representative of the several Underwriters, such conformed copies of such
opinions, certificates, letters and documents as you reasonably request.
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The documents required to be delivered by this Section 7 will be
delivered at the office of counsel for Case Credit and the Seller, at 190 South
LaSalle Street, Chicago, Illinois 60603, on the Closing Date.
8. Indemnification and Contribution. (a) The Seller and Case Credit
will, jointly and severally, indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever arising out of any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
Basic Prospectus. Preliminary Prospectus Supplement, Basic Prospectus or
the Prospectus or any amendment or supplement thereto or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of the
Seller or Case Credit; and
(iii) against any and all expense whatsoever (including, subject to
Section 8(c) hereof, the fees and disbursements of counsel), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Seller, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Seller within the meaning
of Section 15 of the Act and Section 20 of the Exchange Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus or any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Seller by such Underwriter
through you expressly for use in the Registration Statement (or any amendment
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thereto) or such preliminary Basic Prospectus, Preliminary Prospectus
Supplement, Basic Prospectus or the Prospectus or any amendment or supplement
thereto.
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding, but failure to so notify an indemnifying party shall
not relieve such indemnifying party from any liability that it may have
otherwise than on account of this indemnity agreement. In any proceeding
hereunder any indemnified party shall have the right to retain its own counsel,
but the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified party
shall have mutually agreed to the contrary, (ii) the indemnifying party has
failed within a reasonable time to retain counsel reasonably satisfactory to the
indemnified party or (iii) the named parties in any such proceeding (including
any impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the indemnifying party shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all indemnified parties, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters
and such control persons of Underwriters shall be designated in writing by the
Representative and any such separate firm for Case Credit and the Seller, the
directors of Case Credit and the Seller, the officers of Case Credit and the
Seller who sign the Registration Statement and such control persons of Case
Credit and the Seller or authorized representatives shall be designated in
writing by Case Credit and the Seller. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify any indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in this Section 8 is
for any reason held to be unavailable other than in accordance with its terms,
the Seller, Case Credit and the Underwriters shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Seller and one or more of the
Underwriters, in such proportions that the Underwriters are responsible for that
22
<PAGE>
portion represented by the percentage that the underwriting discount and
commissions appearing on the cover page of the Prospectus bears to the initial
public offering price appearing thereon and the Seller and Case Credit are
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11 (f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person, if any,
who controls an Underwriter within the meaning of Section 15 of the Act shall
have the same rights to contribution as such Underwriter, and each director of
the Seller, each officer of the Seller who signed the Registration Statement,
and each person, if any, who controls the Seller within the meaning of Section
15 of the Act shall have the same rights to contribution as the Seller.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the underwriting discount or
commission applicable to the Notes purchased by it hereunder.
9. Defaults of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Notes hereunder on the Closing Date and
arrangements satisfactory to the Representative and the Seller for the purchase
of such Notes by other persons are not made within 24 hours after such default,
this Agreement will terminate without liability on the part of any nondefaulting
Underwriter or the Seller, except as provided in Section 11 and except that, if
the aggregate principal amount of Notes which the defaulting Underwriter or
Underwriting agreed but failed to purchase shall be 10% or less of the aggregate
principal amount of all the Notes set forth in Schedule I hereto, the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the aggregate principal amount of Notes set forth
opposite their names in Schedule I hereto bears to the aggregate principal
amount of Notes set forth opposite the names of all the remaining Underwriters)
the Notes which the defaulting Underwriter or Underwriters agreed but failed to
purchase. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a
defaulting Underwriter from liability for its default.
10. No Bankruptcy Petition. Each Underwriter covenants and agrees
that, prior to the date which is one year and one day after the payment in full
of all securities issued by the Seller or by a trust for which the Seller was
the depositor, which securities were rated by any nationally recognized
statistical rating organization, it will not institute against, or join any
other Person in instituting against, the Seller any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other proceedings under
any Federal or state bankruptcy or similar law.
11. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Seller and Case Credit or any of their officers and each of the Underwriters set
forth in or made pursuant to this Agreement or contained in certificates of
officers of the Seller submitted pursuant hereto shall remain operative and in
full force and effect, regardless of (i) any termination of this Agreement, (ii)
any investigation or statement as to the results thereof made by or on behalf of
any Underwriter or of
23
<PAGE>
the Seller or any of their respective representatives, officers or directors or
any controlling person, and (iii) delivery of and payment for the Notes. If for
any reason the purchase of the Notes by the Underwriters is not consummated, the
Seller shall remain responsible for the expenses to be paid or reimbursed by the
Seller pursuant to Section 6 and the respective obligations of the Seller and
the Underwriters pursuant to Section 8 shall remain in effect. If for any reason
the purchase of the Notes by the Underwriters is not consummated (other than
because of a failure to satisfy the conditions set forth in items (ii), (iv) or
(v) of Section 7(d)), the Seller will reimburse any Underwriter, upon demand,
for all reasonable out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by it in connection with the offering of the Notes.
Nothing contained in this Section 11 shall limit the recourse of the Seller
against the Underwriters.
12. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the at Salomon Smith Barney Inc., 388 Greenwich Street, New York, New York
10013; if sent to the Seller, will be mailed, delivered or telegraphed, and
confirmed to it at CNH Receivables Inc., 475 Half Day Road, Suite 200,
Lincolnshire, IL 60069, Attention: Treasurer; or, if sent to Case Credit, will
be mailed, delivered or telegraphed and confirmed to it at Case Credit
Corporation, 233 Lake Avenue, Racine, Wisconsin 53403, Attention: Treasurer;
provided, however, that any notice to an Underwriter pursuant to Section 8 will
be mailed, delivered or telegraphed and confirmed to such Underwriter. Any such
notice will take effect at the time of receipt.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8, and no other
person will have any right or obligations hereunder. No purchaser of Notes from
any Underwriter shall be deemed to be a successor of such Underwriter merely
because of such purchase.
14. Representation. You will act for the several Underwriters in
connection with the transactions contemplated by this Agreement, and any action
under this Agreement taken by you will be binding upon all the Underwriters.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
16. Applicable Law. This Agreement will be governed by, and construed
in accordance with, the laws of the State of New York.
24
<PAGE>
Underwriting Agreement
Signature Page
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will become a binding agreement among the Seller, Case Credit and the several
Underwriters in accordance with its terms.
Very truly yours,
CNH RECEIVABLES INC.,
By: /s/ Ralph A. Than
-----------------
Name: Ralph A. Than
Title: Vice President
CASE CREDIT CORPORATION,
By: /s/ Ralph A. Than
-----------------
Name: Ralph A. Than
Title: Vice President
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first written above.
SALOMON SMITH BARNEY INC.
on behalf of itself and as Representative
of the several Underwriters,
By: /s/ Christopher J. Hawke
------------------------------------
Name: Christopher J. Hawke
Title: Vice President
25
<PAGE>
SCHEDULE I
CNH EQUIPMENT TRUST 2000-A
OFFERED SECURITY PRINCIPAL AMOUNT PRICE
- ---------------- ---------------- ------
Class A-1 Notes
Salomon Smith Barney Inc. $25,000,000 99.905000%
Banc of America Securities LLC $25,000,000 99.905000%
Chase Securities Inc. $25,000,000 99.905000%
Credit Suisse First Boston Corporation $25,000,000 99.905000%
First Union Securities, Inc. $25,000,000 99.905000%
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $25,000,000 99.905000%
Class A-2 Notes
Salomon Smith Barney Inc. $60,000,000 99.866663%
Banc of America Securities LLC $60,000,000 99.866663%
Chase Securities Inc. $60,000,000 99.866663%
Credit Suisse First Boston Corporation $60,000,000 99.866663%
First Union Securities, Inc. $60,000,000 99.866663%
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $60,000,000 99.866663%
Class A-3 Notes
Salomon Smith Barney Inc. $43,500,000 99.772535%
Banc of America Securities LLC $43,300,000 99.772535%
Chase Securities Inc. $43,300,000 99.772535%
Credit Suisse First Boston Corporation $43,300,000 99.772535%
First Union Securities, Inc. $43,300,000 99.772535%
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $43,500,000 99.772535%
Class A-4 Notes
Salomon Smith Barney Inc. $52,000,000 99.756277%
Banc of America Securities LLC $51,800,000 99.756277%
Chase Securities Inc. $51,800,000 99.756277%
Credit Suisse First Boston Corporation $51,800,000 99.756277%
First Union Securities, Inc. $51,800,000 99.756277%
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $51,800,000 99.756277%
Class B Notes
Salomon Smith Barney Inc. $23,000,000 99.639460%
Banc of America Securities LLC $23,000,000 99.639460%
27
- -------------------------------------------------------------------------------
CNH EQUIPMENT TRUST 2000-A
INDENTURE
between
CNH EQUIPMENT TRUST 2000-A
and
HARRIS TRUST AND SAVINGS BANK,
as Indenture Trustee.
Dated as of March 1, 2000
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.....................................................3
SECTION 1.2. Incorporation by Reference of Trust Indenture Act...............3
SECTION 1.3. Rules of Construction...........................................3
ARTICLE II
THE NOTES
SECTION 2.1. Form............................................................4
SECTION 2.2. Execution, Authentication and Delivery..........................4
SECTION 2.3. Temporary Notes.................................................5
SECTION 2.4. Registration; Registration of Transfer and Exchange.............5
SECTION 2.5. Mutilated, Destroyed, Lost or Stolen Notes......................7
SECTION 2.6. Persons Deemed Owner............................................8
SECTION 2.7. Payment of Principal and Interest; Defaulted Interest...........8
SECTION 2.8. Cancellation....................................................9
SECTION 2.9. Release of Collateral...........................................9
SECTION 2.10. Book-Entry Notes...............................................10
SECTION 2.11. Notices to Clearing Agency.....................................10
SECTION 2.12. Definitive Notes...............................................11
ARTICLE III
COVENANTS
SECTION 3.1. Payment of Principal and Interest..............................11
SECTION 3.2. Maintenance of Office or Agency................................12
SECTION 3.3. Money for Payments To Be Held in Trust.........................12
SECTION 3.4. Existence......................................................14
SECTION 3.5. Protection of the Trust Estate.................................14
SECTION 3.6. Opinions as to the Trust Estate................................15
SECTION 3.7. Performance of Obligations; Servicing of Receivables...........15
SECTION 3.8. Negative Covenants.............................................18
SECTION 3.9. Annual Statement as to Compliance..............................18
SECTION 3.10. Issuer May Consolidate, etc., Only on Certain Terms............19
SECTION 3.11. Successor or Transferee........................................21
SECTION 3.12. No Other Business..............................................21
SECTION 3.13. No Borrowing...................................................21
SECTION 3.14. Servicer's Obligations.........................................21
<PAGE>
SECTION 3.15. Guarantees, Loans, Advances and Other Liabilities..............21
SECTION 3.16. Capital Expenditures...........................................22
SECTION 3.17. Removal of Administrator.......................................22
SECTION 3.18. Restricted Payments............................................22
SECTION 3.19. Notice of Events of Default....................................22
SECTION 3.20. Further Instruments and Acts...................................22
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture........................22
SECTION 4.2. Application of Trust Money.....................................24
SECTION 4.3. Repayment of Moneys Held by Paying Agent.......................24
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default..............................................24
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.............26
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement
by Indenture Trustee...........................................27
SECTION 5.4. Remedies; Priorities...........................................29
SECTION 5.5. Optional Preservation of the Receivables.......................31
SECTION 5.6. Limitation of Suits............................................31
SECTION 5.7. Unconditional Rights of Noteholders To Receive Principal
and Interest...................................................32
SECTION 5.8. Restoration of Rights and Remedies.............................32
SECTION 5.9. Rights and Remedies Cumulative.................................32
SECTION 5.10. Delay or Omission Not a Waiver.................................33
SECTION 5.11. Control by Noteholders.........................................33
SECTION 5.12. Waiver of Past Defaults........................................34
SECTION 5.13. Undertaking for Costs..........................................34
SECTION 5.14. Waiver of Stay or Extension Laws...............................34
SECTION 5.15. Action on Notes................................................35
SECTION 5.16. Performance and Enforcement of Certain Obligations.............35
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1. Duties of the Indenture Trustee................................36
SECTION 6.2. Rights of Indenture Trustee....................................38
SECTION 6.3. Individual Rights of the Indenture Trustee.....................39
SECTION 6.4. Indenture Trustee's Disclaimer.................................39
SECTION 6.5. Notice of Defaults.............................................39
SECTION 6.6. Reports by Indenture Trustee to the Holders....................39
ii
<PAGE>
SECTION 6.7. Compensation and Indemnity.....................................39
SECTION 6.8. Replacement of the Indenture Trustee...........................40
SECTION 6.9. Successor Indenture Trustee by Merger..........................41
SECTION 6.10. Appointment of Co-Trustee or Separate Trustee..................42
SECTION 6.11. Eligibility; Disqualification..................................43
SECTION 6.12. Preferential Collection of Claims Against the Issuer...........44
SECTION 6.13. Representations and Warranties.................................44
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1. Issuer To Furnish Indenture Trustee Names and
Addresses of Noteholders.......................................45
SECTION 7.2. Preservation of Information; Communications to Noteholders.....46
SECTION 7.3. Reports by Issuer..............................................46
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1. Collection of Money............................................47
SECTION 8.2. Trust Accounts.................................................47
SECTION 8.3. General Provisions Regarding Accounts..........................48
SECTION 8.4. Release of Trust Estate........................................49
SECTION 8.5. Opinion of Counsel.............................................49
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without Consent of Noteholders.........50
SECTION 9.2. Supplemental Indentures With Consent of Noteholders............51
SECTION 9.3. Execution of Supplemental Indentures...........................53
SECTION 9.4. Effect of Supplemental Indenture...............................53
SECTION 9.5. Conformity with Trust Indenture Act............................54
SECTION 9.6. Reference in Notes to Supplemental Indentures..................54
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1. Redemption.....................................................54
SECTION 10.2. Form of Redemption Notice......................................54
SECTION 10.3. Notes Payable on Redemption Date...............................55
iii
<PAGE>
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Compliance Certificates and Opinions, etc......................55
SECTION 11.2. Form of Documents Delivered to Indenture Trustee...............57
SECTION 11.3. Acts of Noteholders............................................58
SECTION 11.4. Notices, etc., to the Indenture Trustee, Issuer and Rating
Agencies.......................................................59
SECTION 11.5. Notices to Noteholders; Waiver.................................60
SECTION 11.6. Alternate Payment and Notice Provisions........................60
SECTION 11.7. Conflict with Trust Indenture Act..............................61
SECTION 11.8. Effect of Headings and Table of Contents.......................61
SECTION 11.9. Successors and Assigns.........................................61
SECTION 11.10. Severability...................................................61
SECTION 11.11. Benefits of Indenture..........................................61
SECTION 11.12. Legal Holidays.................................................61
SECTION 11.13. Governing Law..................................................61
SECTION 11.14. Counterparts...................................................62
SECTION 11.15. Recording of Indenture.........................................62
SECTION 11.16. Trust Obligation...............................................62
SECTION 11.17. No Petition....................................................62
SECTION 11.18. Inspection.....................................................63
SECTION 11.19 Subordination..................................................63
||
EXHIBITS
EXHIBIT A-1 Form of A-1 Notes
EXHIBIT A-2 Form of A-2 Notes
EXHIBIT A-3 Form of A-3 Notes
EXHIBIT A-4 Form of A-4 Notes
EXHIBIT A-5 Form of Class B Notes
EXHIBIT B Form of Section 3.9 Officers' Certificate
iv
<PAGE>
INDENTURE, dated as of March 1, 2000, between CNH EQUIPMENT TRUST 2000-A, a
Delaware business trust (the "ISSUER"), and HARRIS TRUST AND SAVINGS BANK, an
Illinois banking corporation ("HARRIS"), as trustee and not in its individual
capacity (the "INDENTURE TRUSTEE").
Each party agrees as follows for the benefit of the other party, for the
equal and ratable benefit of the Holders of the Issuer's 6.178% Class A-1 Asset
Backed Notes (each an "A-1 NOTE"), 6.80% Class A-2 Asset Backed Notes (each an
"A-2 NOTE"), 7.14% Class A-3 Asset Backed Notes (each an "A-3 NOTE"), 7.34%
Class A-4 Asset Backed Notes (each an "A-4 NOTE") and 7.32% Class B Notes (each
a "CLASS B NOTE"; and together with the A-1 Notes, the A-2 Notes, the A-3 Notes,
and the A-4 Notes, the "NOTES").
GRANTING CLAUSE
The Issuer hereby Grants to Harris at the Closing Date, as Indenture
Trustee for the benefit of the Holders of the Notes, all of the Issuer's right,
title and interest in, to and under the following, whether now existing or
hereafter arising or acquired (collectively, the "COLLATERAL"):
(a) the Receivables, including all documents constituting chattel
paper included therewith, and all obligations of the Obligors thereunder,
including all moneys paid thereunder on or after the Initial Cutoff Date or the
applicable Subsequent Cutoff Date;
(b) the security interests in the Financed Equipment granted by
Obligors pursuant to the Receivables and any other interest of the Issuer in the
Financed Equipment;
(c) any proceeds with respect to the Receivables from claims on
insurance policies covering Financed Equipment or Obligors;
(d) the Liquidity Receivables Purchase Agreement (only with respect to
Owned Contracts included in the Receivables) and the Purchase Agreement,
including the right of the Issuer to cause Case Credit to repurchase Receivables
from the Seller under the circumstances described therein;
(e) any proceeds from recourse to Dealers with respect to the
Receivables other than any interest in the Dealers' reserve accounts maintained
with Case Credit or NH Credit;
(f) any Financed Equipment that shall have secured a Receivable and
that shall have been acquired by or on behalf of the Trust;
<PAGE>
(g) all funds on deposit from time to time in the Trust Accounts,
including the Spread Account Initial Deposit, any Principal Supplement Account
Deposit, the Negative Carry Account Initial Deposit and the Pre Funded Amount,
and in all investments and proceeds thereof (including all income thereon);
(h) the Sale and Servicing Agreement (including all rights of the
Seller under the Liquidity Receivables Purchase Agreement and the Purchase
Agreement assigned to the Issuer pursuant to the Sale and Servicing Agreement);
(i) all present and future claims, demands, causes and choses in
action in respect of any or all of the foregoing and all payments on or under
and all proceeds of every kind and nature whatsoever in respect of any or all of
the foregoing, including all proceeds of the conversion, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables, instruments and other
property that at any time constitute all or part of or are included in the
proceeds of any and all of the foregoing; and
(j) any True Lease Equipment that is subject to any Receivable.
The foregoing Grant is made in trust to secure (x) first, the payment of
principal of and interest on, and any other amounts owing in respect of, the
Class A Notes, equally and ratably without prejudice, priority or distinction,
and (y) second, the payment of principal of and interest on, and any other
amounts owing in respect of, the Class B Notes, equally and ratably without
prejudice, priority or distinction, and to secure compliance with this
Indenture.
Harris, as Indenture Trustee on behalf of the Noteholders, (1) acknowledges
such Grant, and (2) accepts the trusts under this Indenture in accordance with
this Indenture and agrees to perform its duties required in this Indenture to
the best of its ability to the end that the interests of the Noteholders may be
adequately and effectively protected.
2
<PAGE>
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. DEFINITIONS. Capitalized terms used but not otherwise defined
herein are defined in Appendix A hereto.
SECTION 1.2. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following terms, where
used in the TIA, shall have the following meanings for the purposes hereof:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture
Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule have
the meaning assigned to them by such definitions.
SECTION 1.3. RULES OF CONSTRUCTION. Unless the context otherwise requires:
(i) a term has the meaning assigned to it; (ii) an accounting term not otherwise
defined has the meaning assigned to it in accordance with generally accepted
accounting principles as in effect on the date hereof; (iii) "or" is not
exclusive; (iv) "including" means "including, without limitation"; and (v) words
in the singular include the plural and words in the plural include the singular.
ARTICLE II
THE NOTES
SECTION 2.1. FORM. The A-1 Notes, A-2 Notes, A-3 Notes, A-4 Notes and Class
B Notes, together with the Indenture Trustee's certificate of
3
<PAGE>
authentication, shall be in substantially the forms set forth in Exhibits A-1,
A-2, A-3, A-4 and A-5 respectively, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon, as may, consistently herewith,
be determined by the officers executing such Notes, as evidenced by their
execution of the Notes. Any portion of the text of any Note may be set forth on
the reverse thereof, with an appropriate reference thereto on the face of the
Note.
The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders), all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The terms of the
Notes set forth in Exhibits A-1, A-2, A-3, A-4 and A-5 are part of the terms of
this Indenture.
SECTION 2.2. EXECUTION, AUTHENTICATION AND DELIVERY. The Notes shall be
executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile.
Notes bearing the manual or facsimile signature of individuals who were at
the time of signature Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
The Indenture Trustee shall upon Issuer Order authenticate and deliver A-1
Notes, A-2 Notes, A-3 Notes, A-4 Notes and Class B Notes for original issue in
an aggregate principal amount of $150,000,000, $360,000,000, $260,000,000,
$311,000,000 and $46,000,000, respectively. The Outstanding Amount of A-1 Notes,
A-2 Notes, A-3 Notes, A-4 Notes and Class B Notes at any time may not exceed
such respective amounts except as provided in Section 2.5.
Each Note shall be dated the date of its authentication. The Notes shall be
issuable as registered Notes in the minimum denomination of $1,000 and in
greater whole-dollar denominations in excess thereof.
No Note shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose, unless there appears on such Note a certificate
of authentication substantially in the form provided for herein executed by the
Indenture Trustee by the manual signature of one of its authorized signatories,
4
<PAGE>
and such certificate of authentication shall be conclusive evidence, and the
only evidence, that such Note has been duly authenticated and delivered
hereunder.
SECTION 2.3. TEMPORARY NOTES. Pending the preparation of Definitive Notes,
the Issuer may execute, and upon receipt of an Issuer Order, the Indenture
Trustee shall authenticate and deliver, temporary Notes that are printed,
lithographed, typewritten, mimeographed or otherwise produced, of the tenor of
the Definitive Notes in lieu of which they are issued and with such variations
not inconsistent with this Indenture as the officers executing such Notes may
determine, as evidenced by their execution of such Notes.
If temporary Notes are issued, the Issuer will cause Definitive Notes to be
prepared without unreasonable delay. After the preparation of Definitive Notes,
the temporary Notes shall be exchangeable for Definitive Notes upon surrender of
the temporary Notes at the office or agency of the Issuer to be maintained as
provided in Section 3.2, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Notes, the Issuer shall execute and
the Indenture Trustee shall authenticate and deliver in exchange therefor a like
principal amount of Definitive Notes of authorized denominations. Until so
exchanged, the temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as if they were Definitive Notes.
SECTION 2.4. REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE. The
Issuer shall cause to be kept a register (the "NOTE REGISTER") in which, subject
to such reasonable regulations as it may prescribe, the Issuer shall provide for
the registration of Notes and the registration of transfers of Notes. The
Indenture Trustee shall be the "NOTE REGISTRAR" for the purpose of registering
Notes and transfers of Notes as herein provided. Upon any resignation of any
Note Registrar, the Issuer shall promptly appoint a successor or, if it elects
not to make such an appointment, assume the duties of the Note Registrar.
If a Person other than the Indenture Trustee is appointed by the Issuer as
the Note Registrar, the Issuer will give the Indenture Trustee prompt written
notice of the appointment of such Note Registrar and of the location, and any
change in the location, of the Note Register, and the Indenture Trustee shall
have the right to inspect the Note Register at all reasonable times, to obtain
copies thereof and to rely upon a certificate executed on behalf of the Note
Registrar by an Executive Officer thereof as to the names and addresses of the
Holders of the Notes and the principal amounts and number of such Notes.
Upon surrender for registration of transfer of any Note at the office or
agency of the Issuer to be maintained as provided in Section 3.2, if the
requirements of Section 8-401(1) of the UCC are met, the Issuer shall execute,
the Indenture Trustee shall authenticate and the Noteholder shall obtain from
the
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Indenture Trustee, in the name of the designated transferee or transferees, one
or more new Notes in any authorized denominations of a like aggregate principal
amount.
At the option of the Holder, Notes may be exchanged for other new Notes of
the same Class in any authorized denominations of a like aggregate principal
amount, upon surrender of the Notes to be exchanged at such office or agency.
Whenever any Notes are so surrendered for exchange, if the requirements of
Section 8-401(1) of the UCC are met, the Issuer shall execute, the Indenture
Trustee shall authenticate and the Noteholder shall obtain from the Indenture
Trustee, the Notes that the Noteholder making the exchange is entitled to
receive.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Issuer, evidencing the same debt and
entitled to the same benefits under this Indenture as the Notes surrendered upon
such registration of transfer or exchange.
Every Note 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 Indenture Trustee duly executed by, the
Holder thereof or such Holder's attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in the Securities Transfer Agent's Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Exchange Act.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Notes, but the Issuer 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 Notes, other than
exchanges pursuant to Section 2.3 or 9.6 not involving any transfer.
SECTION 2.5. MUTILATED, DESTROYED, LOST OR STOLEN NOTES. If: (i) any
mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Indenture Trustee such security or
indemnity as may be required by the Indenture Trustee and the Issuer to hold the
Indenture Trustee and the Issuer, respectively, harmless, then, in the absence
of notice to the Issuer, the Note Registrar or the Indenture Trustee that such
Note has been acquired by a bona fide purchaser, and provided that the
requirements of Section 8-405 of the UCC are met, the Issuer shall execute, and
upon its request the Indenture Trustee shall authenticate and deliver, in
exchange for or in lieu of any
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such mutilated, destroyed, lost or stolen Note, a replacement Note of the same
Class; PROVIDED, HOWEVER, that if any such destroyed, lost or stolen Note, but
not a mutilated Note, shall have become, or within seven days shall be, due and
payable, or shall have been called for redemption, instead of issuing a
replacement Note, the Issuer may pay such destroyed, lost or stolen Note when so
due or payable or upon the Redemption Date without surrender thereof. If, after
the delivery of such replacement Note (or payment of a destroyed, lost or stolen
Note pursuant to the proviso to the preceding sentence), a bona fide purchaser
of the original Note in lieu of which such replacement Note was issued presents
for payment such original Note, the Issuer and the Indenture Trustee shall be
entitled to recover such replacement Note (or such payment) from the Person to
whom it was delivered or any Person taking such replacement Note from such
Person to whom such replacement Note was delivered (or payment made) or any
assignee of such Person, except a bona fide purchaser, and shall be entitled to
recover upon the security or indemnity provided therefor to the extent of any
loss, damage, cost or expense incurred by the Issuer or the Indenture Trustee in
connection therewith.
Upon the issuance of any replacement Note under this Section, the Issuer
may require the payment by the Holder of such Note of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other reasonable expenses (including the fees and expenses of the Indenture
Trustee) connected therewith.
Every replacement Note issued pursuant to this Section in replacement of
any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.6. PERSONS DEEMED OWNER. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in whose name
any Note is registered (as of the day of determination) as the owner of such
Note for the purpose of receiving payments of principal of and interest, if any,
on such Note and for all other purposes whatsoever, whether or not such Note be
overdue, and neither the Issuer, the Indenture Trustee nor any agent of the
Issuer or the Indenture Trustee shall be affected by notice to the contrary.
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SECTION 2.7. PAYMENT OF PRINCIPAL AND INTEREST; DEFAULTED INTEREST. (a) The
A-1 Notes, A-2 Notes, A-3 Notes, A-4 Notes and Class B Notes shall accrue
interest at the A-1 Note Rate, the A-2 Note Rate, the A-3 Note Rate, the A-4
Note Rate and the Class B Note Rate, respectively, and such interest shall be
payable on each Payment Date, subject to Section 3.1. Any installment of
interest or principal, if any, payable on any Note that is punctually paid or
duly provided for by the Issuer on the applicable Payment Date shall be paid to
the Person in whose name such Note (or one or more Predecessor Notes) is
registered on the Record Date by check mailed first-class, postage prepaid, to
such Person's address as it appears on the Note Register on such Record Date.
However, unless Definitive Notes have been issued, with respect to Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payment will be made by wire
transfer in immediately available funds to the account designated by such
nominee. Notwithstanding the above, the final installment of principal payable
with respect to such Note (and except for the Redemption Price for any Note
called for redemption pursuant to Section 10.1(a)) shall be payable as provided
in clause (b)(ii). The funds represented by any such checks returned undelivered
shall be held in accordance with Section 3.3.
(b)(i) The principal of each Note shall be payable in installments on each
Payment Date as provided in this Indenture. Notwithstanding the foregoing, the
entire Outstanding Amount shall be due and payable, ratably to all Noteholders,
on: (A) the date on which an Event of Default shall have occurred and be
continuing if the Indenture Trustee or the Holders of Notes representing not
less than a majority of the Outstanding Amount of the Notes have declared the
Notes to be immediately due and payable in the manner provided in Section 5.2,
and (B) if any Notes remain Outstanding, on and after the February 2007 Payment
Date. In all other circumstances, all principal payments on each Class of Notes
shall be made pro rata to the Noteholders of such Class entitled thereto.
(ii) The Indenture Trustee shall notify the Person in whose name a
Note is registered at the close of business on the Record Date preceding
the Payment Date on which the Issuer expects that the final installment of
principal of and interest on such Note will be paid. Such notice shall be
mailed no later than five days prior to such final Payment Date and shall
specify that such final installment will be payable only upon presentation
and surrender of such Note and shall specify the place where such Note may
be presented and surrendered for payment of such installment. Notices in
connection with redemptions of Notes shall be mailed to Noteholders as
provided in Section 10.2.
(c) If the Issuer defaults in a payment of interest on the Notes, the
Issuer shall pay, in any lawful manner, defaulted interest (PLUS interest on
such defaulted
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interest to the extent lawful) at the applicable interest rate from the Payment
Date for which such payment is in default. The Issuer may pay such defaulted
interest to the Persons who are Noteholders on a subsequent special record date,
which date shall be at least five Business Days prior to the special payment
date. The Issuer shall fix or cause to be fixed any such special record date and
special payment date, and, at least 15 days before any such special record date,
shall mail to each Noteholder a notice that states the special record date, the
special payment date and the amount of defaulted interest to be paid.
SECTION 2.8. CANCELLATION. All Notes surrendered for payment, registration
of transfer, exchange or redemption shall, if surrendered to any Person other
than the Indenture Trustee, be delivered to the Indenture Trustee and shall be
promptly canceled by the Indenture Trustee. The Issuer may at any time deliver
to the Indenture Trustee for cancellation any Notes previously authenticated and
delivered hereunder that the Issuer may have acquired in any manner whatsoever,
and all Notes so delivered shall be promptly canceled by the Indenture Trustee.
No Notes shall be authenticated in lieu of or in exchange for any Notes canceled
as provided in this Section except as expressly permitted by this Indenture. All
canceled Notes may be held or disposed of by the Indenture Trustee in accordance
with its standard retention or disposal policy as in effect at the time unless
the Issuer shall direct by an Issuer Order that they be returned to it;
PROVIDED, that such Issuer Order is timely and the Notes have not been
previously disposed of by the Indenture Trustee.
SECTION 2.9. RELEASE OF COLLATERAL. Subject to Section 11.1 and the Basic
Documents, the Indenture Trustee shall release property from the Lien of this
Indenture only upon receipt of an Issuer Request accompanied by an Officers'
Certificate, an Opinion of Counsel and Independent Certificates in accordance
with TIA Secs. 314(c) and 314(d)(l), or an Opinion of Counsel in lieu of such
Independent Certificates to the effect that the TIA does not require any such
Independent Certificates.
SECTION 2.10. BOOK-ENTRY NOTES. The Notes, upon original issuance, will be
issued in the form of typewritten Notes representing the Book-Entry Notes, to be
delivered to The Depository Trust Company (the initial Clearing Agency), or its
custodian, by, or on behalf of, the Issuer. Such Notes shall initially be
registered on the Note Register in the name of Cede & Co., the nominee of the
initial Clearing Agency, and no Note Owner of such Note will receive a
Definitive Note representing such Note Owner's interest in such Note, except as
provided in Section 2.12. Unless and until definitive, fully registered Notes
(the "DEFINITIVE NOTES") representing Notes have been issued to Note Owners:
(i) this Section shall be in full force and effect;
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(ii) the Note Registrar and the Indenture Trustee may deal with the
Clearing Agency for all purposes (including the payment of principal of and
interest on the Notes) as the authorized representative of the Note Owners;
(iii) to the extent that this Section conflicts with any other
provisions of this Indenture, this Section shall control;
(iv) the rights of Note Owners shall be exercised only through the
Clearing Agency and shall be limited to those established by law and
agreements between such Note Owners and the Clearing Agency and/or the
Clearing Agency Participants pursuant to the Note Depository Agreement.
Unless and until Definitive Notes are issued, the Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive and
transmit payments of principal of and interest on the Notes to such
Clearing Agency Participants; and
(v) whenever this Indenture requires or permits actions to be taken
based upon instructions or directions of Holders of Notes evidencing a
specified percentage of the Outstanding Amount of the Notes (or a Class of
Notes), the Clearing Agency shall be deemed to represent such percentage
only to the extent that it has received instructions to such effect from
Note Owners and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in the
Notes (or Class of Notes) and has delivered such instructions to the
Indenture Trustee.
SECTION 2.11. NOTICES TO CLEARING AGENCY. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes have been issued to Note Owners, the Indenture Trustee
shall give all such notices and communications to the Clearing Agency.
SECTION 2.12. DEFINITIVE NOTES. If: (i) the Administrator advises the
Indenture Trustee in writing that the Clearing Agency is no longer willing or
able to properly discharge its responsibilities with respect to the Notes, and
the Administrator is unable to locate a qualified successor, (ii) the
Administrator at its option advises the Indenture Trustee in writing that it
elects to terminate the book entry system through the Clearing Agency or (iii)
after the occurrence of an Event of Default or a Servicer Default, Note Owners
representing beneficial interests aggregating at least a majority of the
Outstanding Amount of the Notes advise the Clearing Agency in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interests of the Note Owners, then the Clearing Agency has undertaken
to notify all Note Owners and the Indenture Trustee of the occurrence of any
such event and of the availability of Definitive
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Notes to Note Owners requesting the same. Upon surrender to the Indenture
Trustee of the typewritten Notes representing the Book-Entry Notes by the
Clearing Agency, accompanied by registration instructions, the Issuer shall
execute, and the Indenture Trustee shall authenticate, the Definitive Notes in
accordance with the instructions of the Clearing Agency. None of the Issuer, the
Note Registrar or the Indenture Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Notes, the Indenture Trustee shall recognize the Holders of the Definitive Notes
as Noteholders.
SECTION 2.13. TAX TREATMENT. It is the intent of the Seller, the Servicer,
the Noteholders and the Note Owners that, for purposes of Federal and State
income tax and any other tax measured in whole or in part by income, the Notes
will qualify as indebtedness of the Trust. Each Noteholder or Note Owner, by
acceptance of a Note, or, in the case of a Note Owner, a beneficial interest in
a Note, agrees to treat, and to take no action inconsistent with the treatment
of, the Notes for such tax purposes as indebtedness of the Trust.
ARTICLE III
Covenants
SECTION 3.1. PAYMENT OF PRINCIPAL AND INTEREST. The Issuer will duly and
punctually pay the principal and interest, if any, on the Notes in accordance
with the terms of the Notes and this Indenture. Without limiting the foregoing,
subject to Section 8.2(c), the Issuer will cause to be distributed all amounts
on deposit in the Note Distribution Account on a Payment Date deposited therein
for the benefit of the Notes pursuant to the Sale and Servicing Agreement to
Holders of the Notes. Amounts properly withheld under the Code or any applicable
State law by any Person from a payment to any Noteholder of interest and/or
principal shall be considered as having been paid by the Issuer to such
Noteholder for all purposes of this Indenture.
SECTION 3.2. Maintenance of Office or Agency. The Issuer will maintain in
the Borough of Manhattan, The City of New York, an office or agency where Notes
may be surrendered for registration of transfer or exchange, and where notices
and demands to or upon the Issuer in respect of the Notes and this Indenture may
be served. The Issuer hereby initially appoints the Indenture Trustee to serve
as its agent for the foregoing purposes. The Issuer will give prompt written
notice to the Indenture Trustee of the location, and of any change in the
location, of any such office or agency. If at any time the Issuer shall fail to
maintain any such office or agency or shall fail to furnish the Indenture
Trustee with the address thereof, such surrenders, notices and demands may be
made or
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served at the Corporate Trust Office, and the Issuer hereby appoints the
Indenture Trustee as its agent to receive all such surrenders, notices and
demands.
SECTION 3.3. MONEY FOR PAYMENTS TO BE HELD IN TRUST. As provided in Section
8.2(a) and (b), all payments of amounts due and payable with respect to any
Notes that are to be made from amounts withdrawn from the Collection Account and
the Note Distribution Account pursuant to Section 8.2(c) shall be made on behalf
of the Issuer by the Indenture Trustee or by another Paying Agent, and no
amounts so withdrawn from the Collection Account and the Note Distribution
Account for payments of Notes shall be paid over to the Issuer except as
provided in this Section.
On or before each Payment Date and Redemption Date, the Issuer shall
deposit or cause to be deposited in the Note Distribution Account an aggregate
sum sufficient to pay the amounts then becoming due under the Notes, such sum to
be held in trust for the benefit of the Persons entitled thereto and (unless the
Paying Agent is the Indenture Trustee) shall promptly notify the Indenture
Trustee of its action or failure so to act.
Any Paying Agent shall be appointed by Issuer Order with written notice
thereof to the Indenture Trustee. Any Paying Agent appointed by the Issuer shall
be a Person who would be eligible to be Indenture Trustee hereunder as provided
in Section 6.11. The Issuer shall not appoint any Paying Agent (other than the
Indenture Trustee) which is not, at the time of such appointment, a depository
institution or trust company, including the Indenture Trustee, that (a) is
incorporated under the laws of the United States of America or any State
thereof, (b) is subject to supervision and examination by federal or state
banking authorities and (c) has outstanding unsecured commercial paper or other
short- term unsecured debt obligations that are rated "A-1+" by Standard &
Poor's or "Prime-1" by Moody's (or its equivalent).
The Issuer will cause each Paying Agent other than the Indenture Trustee to
execute and deliver to the Indenture Trustee an instrument in which such Paying
Agent shall agree with the Indenture Trustee (and if the Indenture Trustee acts
as Paying Agent, it hereby so agrees), subject to the provisions of this
Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due with
respect to the Notes in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and pay such sums to such Persons as herein provided;
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(ii) give the Indenture Trustee notice of any default by the Issuer
(or any other obligor upon the Notes) of which it has actual knowledge in
the making of any payment required to be made with respect to the Notes;
(iii) at any time during the continuance of any such default, upon the
written request of the Indenture Trustee, forthwith pay to the Indenture
Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to the
Indenture Trustee all sums held by it in trust for the payment of Notes if
at any time it ceases to meet the standards required to be met by a Paying
Agent; and
(v) comply with all requirements of the Code and any applicable State
law with respect to the withholding from any payments made by it on any
Notes of any applicable withholding taxes imposed thereon and with respect
to any applicable reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, by Issuer Order,
direct any Paying Agent to pay to the Indenture Trustee all sums held in trust
by such Paying Agent, such sums to be held by the Indenture Trustee upon the
same trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds, any money held
by the Indenture Trustee or any Paying Agent in trust for the payment of any
amount due with respect to any Note and remaining unclaimed for two years after
such amount has become due and payable shall be discharged from such trust and
be paid to the Issuer on Issuer Request; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof (but only to the extent of the amounts so paid to the Issuer),
and all liability of the Indenture Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; PROVIDED, HOWEVER, that the Indenture
Trustee or such Paying Agent, before being required to make any such repayment,
shall at the expense and direction of the Issuer cause to be published once, in
a newspaper published in the English language, customarily published on each
Business Day and of general circulation in The City of New York, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Issuer. The Indenture
Trustee shall also adopt and employ, at the expense of the Issuer, any other
reasonable means
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of notification of such repayment (including mailing notice of such repayment to
Holders whose Notes have been called but have not been surrendered for
redemption or whose right to or interest in moneys due and payable but not
claimed is determinable from the records of the Indenture Trustee or of any
Paying Agent, at the last address of record for each such Holder).
SECTION 3.4. EXISTENCE. The Issuer will keep in full effect its existence,
rights and franchises as a business trust under the laws of the jurisdiction of
its organization and will obtain and preserve its qualification to do business
in each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Indenture, the Notes, the
Collateral and each other instrument or agreement included in the Trust Estate.
SECTION 3.5. PROTECTION OF THE TRUST ESTATE. The Issuer will from time to
time execute and deliver all such supplements and amendments hereto and all such
financing statements, continuation statements, instruments of further assurance
and other instruments, and will take such other action necessary or advisable
to:
(i) maintain or preserve the Lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the
purposes hereof;
(ii) perfect, publish notice of or protect the validity of any Grant
made or to be made by this Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Trust Estate and the rights of
the Indenture Trustee and the Noteholders in such Trust Estate against the
claims of all Persons.
The Issuer hereby designates the Indenture Trustee as its agent and attorney in
fact to execute any financing statement, continuation statement, instrument of
further assurance or other instrument required to be executed to accomplish the
foregoing.
SECTION 3.6. OPINIONS AS TO THE TRUST ESTATE. (a) On the Closing Date, the
Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either
stating that, in the opinion of such counsel, such action has been taken with
respect to the recording and filing of this Indenture, any indentures
supplemental hereto and any other requisite documents, and with respect to the
execution and filing of any financing statements and continuation statements, as
are necessary to perfect and make effective the Lien and security interest
created by this Indenture
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and reciting the details of such action, or stating that, in the opinion of such
counsel, no such action is necessary to make such Lien and security interest
effective.
(b) On or before April 30 in each calendar year, the Issuer shall furnish
to the Indenture Trustee an Opinion of Counsel either stating that, in the
opinion of such counsel, such action has been taken with respect to the
recording, filing, re recording and refiling of this Indenture, any indentures
supplemental hereto and any other requisite documents, and with respect to the
execution and filing of any financing statements and continuation statements, as
is necessary to maintain the Lien and security interest of this Indenture and
reciting the details of such action, or stating that in the opinion of such
counsel no such action is necessary to maintain such Lien and security interest.
Such Opinion of Counsel shall also describe the recording, filing, re-recording
and refiling of this Indenture, any indentures supplemental hereto and any other
requisite documents, and the execution and filing of any financing statements
and continuation statements, that will, in the opinion of such counsel, be
required to maintain the Lien and security interest of this Indenture until
April 30 in the following calendar year.
SECTION 3.7. PERFORMANCE OF OBLIGATIONS; SERVICING OF RECEIVABLES. (a) The
Issuer will not take any action and will use its best efforts not to permit any
action to be taken by others that would release any Person from any material
covenants or obligations under any instrument or agreement included in the Trust
Estate or that would result in the amendment, hypothecation, subordination,
termination or discharge of, or impair the validity or effectiveness of, any
such instrument or agreement, except as expressly provided in this Indenture,
the Sale and Servicing Agreement or such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in performing
its duties under this Indenture, and any performance of such duties by a Person
identified to the Indenture Trustee in an Officers' Certificate of the Issuer
shall be deemed to be action taken by the Issuer. Initially, the Issuer has
contracted with the Servicer and the Administrator to assist the Issuer in
performing its duties under this Indenture.
(c) The Issuer will punctually perform and observe all of its obligations
and agreements contained in this Indenture, the other Basic Documents and in the
instruments and agreements included in the Trust Estate, including filing or
causing to be filed all UCC financing statements and continuation statements
required to be filed by this Indenture and the Sale and Servicing Agreement in
accordance with and within the time periods provided for herein and therein.
Except as otherwise expressly provided therein, the Issuer shall not waive,
amend, modify, supplement or terminate any Basic Document or any provision
thereof
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without the consent of the Indenture Trustee or the Holders of at least a
majority of the Outstanding Amount of the Notes.
(d) If the Issuer shall have knowledge of the occurrence of a Servicer
Default, the Issuer shall promptly notify the Indenture Trustee and the Rating
Agencies thereof, and shall specify in such notice the action, if any, the
Issuer is taking with respect to such default. If a Servicer Default shall arise
from the failure of the Servicer to perform any of its duties or obligations
under the Sale and Servicing Agreement with respect to the Receivables, the
Issuer shall take all reasonable steps available to it to remedy such failure.
(e) As promptly as possible after the giving of notice of termination to
the Servicer of the Servicer's rights and powers pursuant to Section 8.1 of the
Sale and Servicing Agreement, the Issuer shall appoint a successor servicer (the
"SUCCESSOR SERVICER"), and such Successor Servicer shall accept its appointment
by a written assumption in a form acceptable to the Indenture Trustee. In the
event that a Successor Servicer has not been appointed and accepted its
appointment at the time when the previous Servicer ceases to act as Servicer,
the Indenture Trustee without further action shall automatically be appointed
the Successor Servicer. The Indenture Trustee may resign as the Servicer by
giving written notice of such resignation to the Issuer and in such event will
be released from such duties and obligations, such release not to be effective
until the date a Successor Servicer enters into a servicing agreement with the
Issuer as provided below. Upon delivery of any such notice to the Issuer, the
Issuer shall obtain a new servicer as the Successor Servicer under the Sale and
Servicing Agreement. Any Successor Servicer other than the Indenture Trustee
shall: (i) be an established financial institution having a net worth of not
less than $50,000,000 and whose regular business includes the servicing of
receivables and (ii) enter into a servicing agreement with the Issuer having
substantially the same provisions as the provisions of the Sale and Servicing
Agreement applicable to the Servicer. If within 30 days after the delivery of
the notice referred to above, the Issuer shall not have obtained such a
Successor Servicer, the Indenture Trustee may appoint, or may petition a court
of competent jurisdiction to appoint, a Successor Servicer. In connection with
any such appointment, the Indenture Trustee may make such arrangements for the
compensation of such Successor Servicer as it and such Successor Servicer shall
agree, subject to the limitations set forth below and in the Sale and Servicing
Agreement, and in accordance with Section 8.2 of the Sale and Servicing
Agreement, the Issuer shall enter into an agreement with such Successor Servicer
for the servicing of the Receivables (such agreement to be in form and substance
satisfactory to the Indenture Trustee). If the Indenture Trustee shall succeed
to the previous Servicer's duties as servicer of the Receivables as provided
herein, it shall do so in its individual capacity and not in its capacity as
Indenture Trustee and, accordingly, the provisions of Article VI shall be
inapplicable to the Indenture Trustee in its duties
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as the Successor Servicer and the servicing of the Receivables. In case the
Indenture Trustee shall become the Successor Servicer under the Sale and
Servicing Agreement, the Indenture Trustee shall be entitled to appoint as
Servicer any one of its Affiliates; PROVIDED, that it shall be fully liable for
the actions and omissions of such Affiliate in its capacity as Successor
Servicer.
(f) Upon any termination of the Servicer's rights and powers pursuant to
the Sale and Servicing Agreement, the Issuer shall promptly notify the Indenture
Trustee. As soon as a Successor Servicer is appointed, the Issuer shall notify
the Indenture Trustee of such appointment, specifying in such notice the name
and address of such Successor Servicer.
(g) Without derogating from the absolute nature of the assignment Granted
to the Indenture Trustee under this Indenture or the rights of the Indenture
Trustee hereunder, the Issuer agrees that it will not, without the prior written
consent of the Indenture Trustee or the Holders of at least a majority of the
Outstanding Amount, amend, modify, waive, supplement, terminate or surrender, or
agree to any amendment, modification, supplement, termination, waiver or
surrender of, the terms of any Collateral (except to the extent otherwise
provided in the Sale and Servicing Agreement) or the Basic Documents, or waive
timely performance or observance by the Servicer or the Seller under the Sale
and Servicing Agreement or Case Credit under the Purchase Agreement; PROVIDED,
HOWEVER, that no such amendment shall: (i) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, distributions that are required
to be made for the benefit of the Noteholders, or (ii) reduce the aforesaid
percentage of the Notes that are required to consent to any such amendment, in
either case without the consent of the Holders of all the Outstanding Notes. If
any such amendment, modification, supplement or waiver shall be so consented to
by the Indenture Trustee or such Holders, the Issuer agrees, promptly following
a request by the Indenture Trustee to do so, to execute and deliver, in its own
name and at its own expense, such agreements, instruments, consents and other
documents as the Indenture Trustee may deem necessary or appropriate in the
circumstances.
SECTION 3.8. NEGATIVE COVENANTS. So long as any Notes are Outstanding, the
Issuer shall not:
(i) except as expressly permitted by this Indenture, the Purchase
Agreement or the Sale and Servicing Agreement, sell, transfer, exchange or
otherwise dispose of any of the properties or assets of the Issuer,
including those included in the Trust Estate, unless directed to do so by
the Indenture Trustee;
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(ii) claim any credit on, or make any deduction from the principal or
interest payable in respect of, the Notes (other than amounts properly
withheld from such payments under the Code or applicable State law) or
assert any claim against any present or former Noteholder by reason of the
payment of the taxes levied or assessed upon any part of the Trust Estate;
or
(iii)(A) permit the validity or effectiveness of this Indenture to be
impaired, or permit the Lien of this Indenture to be amended, hypothecated,
subordinated, terminated or discharged, or permit any Person to be released
from any covenants or obligations with respect to the Notes under this
Indenture except as may be expressly permitted hereby, (B) permit any Lien
(other than the Lien of this Indenture) to be created on or extend to or
otherwise arise upon or burden the Trust Estate or any part thereof or any
interest therein or the proceeds thereof or (C) permit the Lien of this
Indenture not to constitute a valid first priority (other than with respect
to any tax lien, mechanics' lien or other lien not considered a Lien)
security interest in the Trust Estate.
SECTION 3.9. ANNUAL STATEMENT AS TO COMPLIANCE. The Issuer will deliver to
the Indenture Trustee, within 120 days after the end of each fiscal year of the
Issuer (commencing with the fiscal year 2000), an Officers' Certificate,
substantially in the form of Exhibit B, stating that:
(i) a review of the activities of the Issuer during such year and of
performance under this Indenture has been made under such Authorized
Officers' supervision; and
(ii) to the best of such Authorized Officers' knowledge, based on such
review, the Issuer has complied with all conditions and covenants under
this Indenture throughout such year or, if there has been a default in the
compliance of any such condition or covenant, specifying each such default
known to such Authorized Officers and the nature and status thereof.
SECTION 3.10. ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS. (a) The
Issuer shall not consolidate or merge with or into any other Person, unless:
(i) the Person (if other than the Issuer) formed by or surviving such
consolidation or merger shall be a Person organized and existing under the
laws of the United States of America or any State and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Indenture Trustee, in form satisfactory to the Indenture Trustee, the due
and punctual payment of the principal of and interest on all Notes and the
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the performance or observance of every agreement and covenant of this
Indenture on the part of the Issuer to be performed or observed, all as
provided herein;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and shall
have delivered copies thereof to the Indenture Trustee) to the effect that
such transaction will not have any material adverse tax consequence to the
Issuer, any Noteholder or any Certificateholder;
(v) any action that is necessary to maintain the Lien and security
interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation or merger and such supplemental indenture comply with this
Article III and that all conditions precedent herein provided for relating
to such transaction have been complied with (including any filing required
by the Exchange Act).
(b) The Issuer shall not convey or transfer any of its properties or
assets, including those included in the Trust Estate, to any Person, unless:
(i) the Person that acquires by conveyance or transfer the properties
and assets of the Issuer the conveyance or transfer of which is hereby
restricted shall: (A) be a United States citizen or a Person organized and
existing under the laws of the United States of America or any State, (B)
expressly assumes, by an indenture supplemental hereto, executed and
delivered to the Indenture Trustee, in form satisfactory to the Indenture
Trustee, the due and punctual payment of the principal of and interest on
all Notes and the performance or observance of every agreement and covenant
of this Indenture on the part of the Issuer to be performed or observed,
all as provided herein, (C) expressly agrees by means of such supplemental
indenture that all right, title and interest so conveyed or transferred
shall be subject and subordinate to the rights of Holders of the Notes, (D)
unless otherwise provided in such supplemental indenture, expressly agrees
to indemnify, defend and hold harmless the Issuer against and from any
loss, liability or expense arising under or related to this Indenture and
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the Notes and (E) expressly agrees by means of such supplemental indenture
that such Person (or if a group of Persons, then one specified Person)
shall make all filings with the Commission (and any other appropriate
Person) required by the Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and shall
have delivered copies thereof to the Indenture Trustee) to the effect that
such transaction will not have any material adverse tax consequence to the
Issuer, any Noteholder or any Certificateholder;
(v) any action that is necessary to maintain the Lien and security
interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
conveyance or transfer and such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to
such transaction have been complied with (including any filing required by
the Exchange Act).
SECTION 3.11. SUCCESSOR OR TRANSFEREE. (a) Upon any consolidation or merger
of the Issuer in accordance with Section 3.10(a), the Person formed by or
surviving such consolidation or merger (if other than the Issuer) shall succeed
to, and be substituted for, and may exercise every right and power of, the
Issuer under this Indenture with the same effect as if such Person had been
named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of the
Issuer pursuant to Section 3.10(b), the Issuer will be released from every
covenant and agreement of this Indenture to be observed or performed on the part
of the Issuer with respect to the Notes immediately upon the delivery of written
notice to the Indenture Trustee stating that the Issuer is to be so released.
SECTION 3.12. NO OTHER BUSINESS. The Issuer shall not engage in any
business other than financing, purchasing, owning, selling and managing of the
Receivables in the manner contemplated by this Indenture and the Basic Documents
and activities incidental thereto.
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SECTION 3.13. NO BORROWING. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes.
SECTION 3.14. SERVICER'S OBLIGATIONS. The Issuer shall cause the Servicer
to comply with Sections 4.8, 4.9, 4.10, 4.11 and 5.9 of the Sale and Servicing
Agreement.
SECTION 3.15. GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES. Except as
contemplated by the Sale and Servicing Agreement or this Indenture, the Issuer
shall not make any loan or advance or credit to, or guarantee (directly or
indirectly or by an instrument having the effect of assuring another's payment
or performance on any obligation or capability of so doing or otherwise),
endorse or otherwise become contingently liable, directly or indirectly, in
connection with the obligations, stocks or dividends of, or own, purchase,
repurchase or acquire (or agree contingently to do so) any stock, obligations,
assets or securities of, or any other interest in, or make any capital
contribution to, any other Person.
SECTION 3.16. CAPITAL EXPENDITURES. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
SECTION 3.17. REMOVAL OF ADMINISTRATOR. So long as any Notes are
Outstanding, the Issuer shall not remove the Administrator without cause unless
the Rating Agency Condition shall have been satisfied in connection with such
removal.
SECTION 3.18. RESTRICTED PAYMENTS. The Issuer shall not, directly or
indirectly: (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Trustee or any owner of a beneficial interest in the Issuer or
otherwise with respect to any ownership or equity interest or security in or of
the Issuer or to the Servicer or the Administrator, (ii) redeem, purchase,
retire or otherwise acquire for value any such ownership or equity interest or
security or (iii) set aside or otherwise segregate any amounts for any such
purpose; PROVIDED, HOWEVER, that the Issuer may make, or cause to be made,
distributions to the Servicer, the Trustee, the Certificateholders and the
Administrator as contemplated by, and to the extent funds are available for such
purpose under, the Sale and Servicing Agreement. The Issuer will not, directly
or indirectly, make payments to or distributions from the Collection Account
except in accordance with this Indenture and the Basic Documents.
SECTION 3.19. NOTICE OF EVENTS OF DEFAULT. The Issuer shall give the
Indenture Trustee and the Rating Agencies prompt written notice of each Event of
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Default hereunder, each default on the part of the Servicer or the Seller of its
obligations under the Sale and Servicing Agreement and each default on the part
of Case Credit of its obligations under the Purchase Agreement.
SECTION 3.20. FURTHER INSTRUMENTS AND ACTS. Upon request of the Indenture
Trustee, the Issuer will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture shall
cease to be of further effect with respect to the Notes except as to: (i) rights
of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive payments
of principal thereof and interest thereon, (iv) Sections 3.3, 3.4, 3.5, 3.8,
3.10, 3.12 and 3.13, (v) the rights, obligations and immunities of the Indenture
Trustee hereunder (including the rights of the Indenture Trustee under Section
6.7 and the obligations of the Indenture Trustee under Section 4.2) and (vi) the
rights of Noteholders as beneficiaries hereof with respect to the property so
deposited with the Indenture Trustee payable to all or any of them, and the
Indenture Trustee, on demand of and at the expense of the Issuer, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to the Notes, when:
(A) either:
(1) all Notes theretofore authenticated and delivered (other than: (i)
Notes that have been destroyed, lost or stolen and that have been replaced or
paid as provided in Section 2.5 and (ii) Notes for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Issuer and thereafter repaid to the Issuer or discharged from such trust, as
provided in Section 3.3) have been delivered to the Indenture Trustee for
cancellation; or
(2) all Notes not theretofore delivered to the Indenture Trustee for
cancellation:
(i) have become due and payable,
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(ii) will become due and payable on the Final Scheduled Maturity
Date within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Indenture Trustee for the giving of
notice of redemption by the Indenture Trustee in the name, and at the
expense, of the Issuer,
and the Issuer, in the case of clause (2)(i), (ii) or (iii), has
irrevocably deposited or caused to be irrevocably deposited with the Indenture
Trustee cash or direct obligations of or obligations guaranteed by the United
States of America (which will mature prior to the date such amounts are
payable), in trust for such purpose, in an amount sufficient to pay and
discharge the entire indebtedness on such Notes not theretofore delivered to the
Indenture Trustee for cancellation when due to the Final Scheduled Maturity Date
or Redemption Date (if Notes shall have been called for redemption pursuant to
Section 10.1(a)), as the case may be;
(B) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer; and
(C) the Issuer has delivered to the Indenture Trustee an Officers'
Certificate, an Opinion of Counsel and (if required by the TIA or the Indenture
Trustee) an Independent Certificate from a firm of certified public accountants,
each meeting the applicable requirements of Section 11.1(a) and, subject to
Section 11.2, each stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture have been complied
with.
SECTION 4.2. APPLICATION OF TRUST MONEY. All moneys deposited with the
Indenture Trustee pursuant to Section 4.1 shall be held in trust and applied by
it, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent, as the Indenture Trustee
may determine, to the Holders of the particular Notes for the payment or
redemption of which such moneys have been deposited with the Indenture Trustee,
of all sums due and to become due thereon for principal and interest; but such
moneys need not be segregated from other funds except to the extent required
herein or in the Sale and Servicing Agreement or as required by law.
SECTION 4.3. REPAYMENT OF MONEYS HELD BY PAYING AGENT. In connection with
the satisfaction and discharge of this Indenture with respect to the Notes, all
moneys then held by any Paying Agent other than the Indenture Trustee under this
Indenture with respect to such Notes shall, upon demand of the Issuer,
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be paid to the Indenture Trustee to be held and applied according to Section
3.3, and thereupon such Paying Agent shall be released from all further
liability with respect to such moneys.
ARTICLE V
Remedies
SECTION 5.1. EVENTS OF DEFAULT. "Event of Default", wherever used herein,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(i) default in the payment of any interest on any Note when the same
becomes due and payable, and such default shall continue for a period of
five days;
(ii) default in the payment of the principal of any Note when the same
becomes due and payable;
(iii) default in the observance or performance of any covenant or
agreement of the Issuer made in this Indenture (other than a covenant or
agreement a default in the observance or performance of which is elsewhere
in this Section specifically dealt with), or any representation or warranty
of the Issuer made in this Indenture or in any certificate or other writing
delivered pursuant hereto or in connection herewith proving to have been
incorrect in any material respect as of the time when the same shall have
been made, and such default shall continue or not be cured, or the
circumstance or condition in respect of which such misrepresentation or
warranty was incorrect shall not have been eliminated or otherwise cured,
for a period of 30 days after there shall have been given, by registered or
certified mail, to the Issuer by the Indenture Trustee or to the Issuer and
the Indenture Trustee by the Holders of at least 25% of the Outstanding
Amount of the Notes, a written notice specifying such default or incorrect
representation or warranty and requiring it to be remedied and stating that
such notice is a notice of Default hereunder;
(iv) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer or any substantial
part of the Trust Estate in an involuntary case under any applicable
Federal or State bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee,
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custodian, trustee,sequestrator or similar official of the Issuer or for
any substantial part of the Trust Estate, or ordering the winding-up or
liquidation of the Issuer's affairs, and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(v) the commencement by the Issuer of a voluntary case under any
applicable Federal or State bankruptcy, insolvency or other similar law now
or hereafter in effect, or the consent by the Issuer to the entry of an
order for relief in an involuntary case under any such law, or the consent
by the Issuer to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official
of the Issuer or for any substantial part of the Trust Estate, or the
making by the Issuer of any general assignment for the benefit of
creditors, or the failure by the Issuer generally to pay its debts as such
debts become due, or the taking of action by the Issuer in furtherance of
any of the foregoing.
The Issuer shall deliver to the Indenture Trustee, within five days after
the Issuer or the Administrator obtains actual knowledge thereof, written notice
in the form of an Officers' Certificate of any event that, with the giving of
notice or the lapse of time or both, would become an Event of Default under
clause (iii), its status and what action the Issuer is taking or proposes to
take with respect thereto.
SECTION 5.2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an
Event of Default should occur and be continuing, then and in every such case the
Indenture Trustee or the Holders of Notes representing not less than a majority
of the Outstanding Amount may declare all the Notes to be immediately due and
payable, by a notice in writing to the Issuer (and to the Indenture Trustee if
given by Noteholders), and upon any such declaration the Outstanding Amount,
together with accrued and unpaid interest thereon through the date of
acceleration, shall become immediately due and payable.
At any time after such declaration of acceleration of maturity has been
made and before a judgment or decree for payment of the money due has been
obtained by the Indenture Trustee as hereinafter in this Article V provided, the
Holders of Notes representing not less than a majority of the Outstanding
Amount, by written notice to the Issuer and the Indenture Trustee, may rescind
and annul such declaration and its consequences if:
(i) the Issuer has paid or deposited with the Indenture Trustee a sum
sufficient to pay:
(A) all payments of principal of and interest on all Notes and
all other amounts that would then be due hereunder or upon such Notes
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if the Event of Default giving rise to such acceleration had not
occurred; and
(B) all sums paid or advanced by the Indenture Trustee hereunder
and the reasonable compensation, expenses, disbursements and advances
of the Indenture Trustee and its agents and counsel; and
(ii) all Events of Default, other than the nonpayment of the principal
of the Notes that has become due solely by such acceleration, have been
cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
SECTION 5.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
INDENTURE TRUSTEE. (a) The Issuer covenants that if an Event of Default
described in Section 5.1(i) or (ii) occurs, the Issuer will, upon demand of the
Indenture Trustee, pay to it, for the benefit of the Holders of Notes, the whole
amount then due and payable on such Notes for principal and interest, with
interest upon the overdue principal at the applicable interest rate, and, to the
extent payment at such rate of interest shall be legally enforceable, upon
overdue installments of interest, at the applicable interest rate, and in
addition thereto such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Indenture Trustee, in its own name and as trustee of an express
trust, may institute a Proceeding for the collection of the sums so due and
unpaid, and may prosecute such Proceeding to judgment or final decree, and may
enforce the same against the Issuer or other obligor upon such Notes and collect
in the manner provided by law out of the property of the Issuer or other obligor
upon such Notes, wherever situated, the moneys adjudged or decreed to be
payable.
(c) In case an Event of Default occurs and is continuing, the Indenture
Trustee may, as more particularly provided in Section 5.4, in its discretion,
proceed to protect and enforce its rights and the rights of the Noteholders, by
such appropriate Proceedings as the Indenture Trustee shall deem most effective
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy or legal or
equitable right vested in the Indenture Trustee by this Indenture or by law.
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(d) In case there shall be pending, relative to the Issuer or any other
obligor upon the Notes or any Person having or claiming an ownership interest in
the Trust Estate, Proceedings under Title 11 of the United States Code or any
other applicable Federal or State bankruptcy, insolvency or other similar law,
or in case a receiver, assignee, trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor or Person,
or in case of any other comparable judicial Proceedings relative to the Issuer
or other obligor upon the Notes, or to the creditors or property of the Issuer
or such other obligor, the Indenture Trustee, irrespective of whether the
principal of any Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee shall
have made any demand pursuant to this Section, shall be entitled and empowered,
by intervention in such proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Indenture Trustee (including any claim for
reasonable compensation to the Indenture Trustee and each predecessor
Indenture Trustee, and their respective agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities incurred, and all
advances made, by the Indenture Trustee and each predecessor Indenture
Trustee, except as a result of negligence or bad faith) and of the
Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law or regulations, to vote on
behalf of the Holders of the Notes in any election of a trustee, a standby
trustee or any Person performing similar functions in any such Proceedings;
(iii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute all amounts received with
respect to the claims of the Noteholders and of the Indenture Trustee on
their behalf; and
(iv) to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Indenture
Trustee or the Holders of Notes allowed in any judicial Proceedings
relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, assignee, custodian, sequestrator or
other similar official in any such Proceeding is hereby authorized by each of
such Noteholders to make payments to the Indenture Trustee, and, in the event
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that the Indenture Trustee shall consent to the making of payments directly to
such Noteholders, to pay to the Indenture Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances made,
by the Indenture Trustee and each predecessor Indenture Trustee except as a
result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this Indenture, or
under any of the Notes, may be enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any trial or other
Proceedings relative thereto, and any such action or Proceedings instituted by
the Indenture Trustee shall be brought in its own name and as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents and attorneys, shall
be for the ratable benefit of the Holders of the Notes.
(g) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Holders of the Notes, and it shall not be necessary to
make any Noteholder a party to any such Proceedings.
SECTION 5.4. REMEDIES; PRIORITIES. (a) If an Event of Default shall have
occurred and be continuing, the Indenture Trustee may do one or more of the
following (subject to Section 5.5):
(i) institute Proceedings in its own name and as trustee of an express
trust for the collection of all amounts then payable on the Notes or under
this Indenture with respect thereto, whether by declaration or otherwise,
enforce any judgment obtained, and collect from the Issuer and any other
obligor upon such Notes moneys adjudged due;
(ii) institute Proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Trust Estate;
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(iii) exercise any remedies of a secured party under the UCC and take
any other appropriate action to protect and enforce the rights and remedies
of the Indenture Trustee and the Holders of the Notes;
(iv) sell the Trust Estate, or any portion thereof or rights or
interest therein, at one or more public or private sales called and
conducted in any manner permitted by law; and
(v) make demand upon the Servicer, by written notice, that the
Servicer deliver to the Indenture Trustee all Receivable Files;
PROVIDED, HOWEVER, that the Indenture Trustee may not sell or otherwise
liquidate the Trust Estate following an Event of Default, other than an Event of
Default described in Section 5.1(i) or (ii), unless: (A) all the Noteholders
consent thereto, (B) the proceeds of such sale or liquidation distributable to
the Noteholders are sufficient to discharge in full all amounts then due and
unpaid upon such Notes for principal and interest or (C) the Indenture Trustee
determines that the Trust Estate will not continue to provide sufficient funds
for the payment of principal of and interest on the Notes as they would have
become due if the Notes had not been declared due and payable, and the Indenture
Trustee obtains the consent of Holders of 66-2/3% of the Outstanding Amount. In
determining such sufficiency or insufficiency with respect to clauses (B) and
(C), the Indenture Trustee may, but need not, obtain and rely upon an opinion of
an Independent investment banking or accounting firm of national reputation as
to the feasibility of such proposed action and as to the sufficiency of the
Trust Estate for such purpose.
(b) If the Indenture Trustee collects any money or property pursuant to
this Article V, it shall pay out such money or property in the following order:
FIRST: to the Indenture Trustee for amounts due under Section 6.7;
SECOND: to Class A Noteholders for amounts due and unpaid on the Class
A Notes for interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Class A Notes for interest;
THIRD: to Class B Noteholders for amounts due and unpaid on the Class
B Notes for interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Class B Notes for interest;
FOURTH: to Class A Noteholders for amounts due and unpaid on the Class
A Notes for principal, ratably, without preference or priority of any kind,
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according to the amounts due and payable on the Class A Notes for
principal;
FIFTH: to Class B Noteholders for amounts due and unpaid on the Class
B Notes for principal, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Class B Notes for
principal; and
SIXTH: to the Issuer for distribution to the Certificateholders.
The Indenture Trustee may fix a special record date and special payment
date for any payment to Noteholders pursuant to this Section. At least 15 days
before such special record date, the Issuer shall mail to each Noteholder and
the Indenture Trustee a notice that states the special record date, the special
payment date and the amount to be paid.
SECTION 5.5. OPTIONAL PRESERVATION OF THE RECEIVABLES. If the Notes have
been declared to be due and payable under Section 5.2 following an Event of
Default, and such declaration and its consequences have not been rescinded and
annulled, the Indenture Trustee may, but need not, elect to maintain possession
of the Trust Estate. It is the desire of the parties hereto and the Noteholders
that there be at all times sufficient funds for the payment of principal of and
interest on the Notes, and the Indenture Trustee shall take such desire into
account when determining whether or not to maintain possession of the Trust
Estate. In determining whether to maintain possession of the Trust Estate, the
Indenture Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as to
the feasibility of such proposed action and as to the sufficiency of the Trust
Estate for such purpose.
SECTION 5.6. LIMITATION OF SUITS. No Holder of any Note shall have any
right to institute any Proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(i) such Holder has previously given written notice to the Indenture
Trustee of a continuing Event of Default;
(ii) the Holder(s) of not less than 25% of the Outstanding Amount of
the Notes have made written request to the Indenture Trustee to institute
such Proceeding in respect of such Event of Default in its own name as
Indenture Trustee hereunder;
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(iii) such Holder(s) have offered to the Indenture Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
complying with such request;
(iv) the Indenture Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute such
Proceeding; and
(v) no direction inconsistent with such written request has been given
to the Indenture Trustee during such 60-day period by the Holders of a
majority of the Outstanding Amount of the Notes;
it being understood and intended that no one or more Holder(s) of Notes shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holder(s) of Notes or to obtain or to seek to obtain priority or
preference over any other Holder(s) or to enforce any right under this
Indenture, except in the manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Noteholders, each
representing less than a majority of the Outstanding Amount of the Notes, the
Indenture Trustee in its sole discretion may determine what action, if any,
shall be taken, notwithstanding any other provisions of this Indenture.
SECTION 5.7. UNCONDITIONAL RIGHTS OF NOTEHOLDERS TO RECEIVE PRINCIPAL AND
INTEREST. Notwithstanding any other provisions in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest, if any, on such Note on or after the
respective due dates thereof expressed in such Note or in this Indenture (or, in
the case of redemption, on or after the Redemption Date) and to institute suit
for the enforcement of any such payment, and such right shall not be impaired
without the consent of such Holder.
SECTION 5.8. RESTORATION OF RIGHTS AND REMEDIES. If the Indenture Trustee
or any Noteholder has instituted any Proceeding to enforce any right or remedy
under this Indenture and such Proceeding has been discontinued or abandoned for
any reason or has been determined adversely to the Indenture Trustee or to such
Noteholder, then and in every such case the Issuer, the Indenture Trustee and
the Noteholders shall, subject to any determination in such Proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Indenture Trustee and the Noteholders
shall continue as though no such Proceeding had been instituted.
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SECTION 5.9. RIGHTS AND REMEDIES CUMULATIVE. No right or remedy herein
conferred upon or reserved to the Indenture Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.10. DELAY OR OMISSION NOT A WAIVER. No delay or omission of the
Indenture Trustee or any Holder of Notes to exercise any right or remedy
accruing upon any Default or Event of Default shall impair any such right or
remedy or constitute a waiver of any such Default or Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Indenture Trustee or to the Noteholders may be exercised from time to time,
and as often as may be deemed expedient, by the Indenture Trustee or by the
Noteholders, as the case may be.
SECTION 5.11. CONTROL BY NOTEHOLDERS. The Holders of not less than a
majority of the Outstanding Amount of the Notes shall have the right to direct
the time, method and place of conducting any Proceeding for any remedy available
to the Indenture Trustee with respect to the Notes or exercising any trust or
power conferred on the Indenture Trustee; PROVIDED, that:
(i) such direction shall not be in conflict with any rule of law or
with this Indenture;
(ii) subject to the express terms of Section 5.4, any direction to the
Indenture Trustee to sell or liquidate the Trust Estate shall be by all the
Noteholders;
(iii) if the conditions set forth in Section 5.5 have been satisfied
and the Indenture Trustee elects to retain the Trust Estate pursuant to
such Section, then any direction to the Indenture Trustee by Holders of
Notes representing less than 100% of the Outstanding Amount of the Notes to
sell or liquidate the Trust Estate shall be of no force and effect; and
(iv) the Indenture Trustee may take any other action deemed proper by
the Indenture Trustee that is not inconsistent with such direction;
PROVIDED, HOWEVER, that, subject to Section 6.1, the Indenture Trustee need not
take any action that it determines might involve it in liability or might
materially adversely affect the rights of any Noteholder(s) not consenting to
such action.
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SECTION 5.12. WAIVER OF PAST DEFAULTS. Prior to the time a judgment or
decree for payment of money due has been obtained as described in Section 5.3,
the Holders of Notes of not less than a majority of the Outstanding Amount of
the Notes may waive any past Default or Event of Default and its consequences
except a Default: (a) in payment of principal of or interest on any of the Notes
or (b) in respect of a covenant or provision hereof that cannot be modified or
amended without the consent of the Holder of each Note. In the case of any such
waiver, the Issuer, the Indenture Trustee and the Holders of the Notes shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other Default or Event of Default
or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereto.
SECTION 5.13. UNDERTAKING FOR COSTS. All parties to this Indenture agree,
and each Holder of any Note by such Holder's acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorney's fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to: (a) any suit instituted by the
Indenture Trustee, (b) any suit instituted by any Noteholder(s) holding in the
aggregate more than 10% of the Outstanding Amount of the Notes or (c) any suit
instituted by any Noteholder for the enforcement of the payment of principal of
or interest on any Note on or after the respective due dates expressed in such
Note and in this Indenture (or, in the case of redemption, on or after the
Redemption Date).
SECTION 5.14. WAIVER OF STAY OR EXTENSION LAWS. The Issuer covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead or in any manner whatsoever, claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture; and
the Issuer (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Indenture
Trustee, but will suffer
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and permit the execution of every such power as though no such law had been
enacted.
SECTION 5.15. ACTION ON NOTES. The Indenture Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the Lien of this Indenture nor any rights or remedies
of the Indenture Trustee or the Noteholders shall be impaired by the recovery of
any judgment by the Indenture Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Trust Estate or upon any
of the assets of the Issuer. Any money or property collected by the Indenture
Trustee shall be applied in accordance with Section 5.4(b).
SECTION 5.16. PERFORMANCE AND ENFORCEMENT OF CERTAIN OBLIGATIONS. (a)
Promptly following a request from the Indenture Trustee to do so and at the
Administrator's expense, the Issuer shall take all such lawful action as the
Indenture Trustee may request to compel or secure the performance and observance
by the Seller and the Servicer, as applicable, of each of their obligations to
the Issuer under or in connection with the Sale and Servicing Agreement or to
the Seller under or in connection with the Purchase Agreement in accordance with
the terms thereof, and to exercise any and all rights, remedies, powers and
privileges lawfully available to the Issuer under or in connection with the Sale
and Servicing Agreement (or the Seller under or in connection with the Purchase
Agreement) to the extent and in the manner directed by the Indenture Trustee,
including the transmission of notices of default on the part of the Seller or
the Servicer thereunder and the institution of legal or administrative actions
or proceedings to compel or secure performance by the Seller or the Servicer of
each of their obligations under the Sale and Servicing Agreement or the Purchase
Agreement.
(b) If an Event of Default has occurred and is continuing, the Indenture
Trustee may, and at the direction (which direction shall be in writing) of the
Holders of not less than 66-2/3% of the Outstanding Amount of the Notes shall,
exercise all rights, remedies, powers, privileges and claims of the Issuer
against the Seller or the Servicer under or in connection with the Sale and
Servicing Agreement, including the right or power to take any action to compel
or secure performance or observance by the Seller or the Servicer of each of
their obligations to the Issuer thereunder and to give any consent, request,
notice, direction, approval, extension or waiver under the Sale and Servicing
Agreement, and any right of the Issuer to take such action shall be suspended.
(c) If an Event of Default has occurred and is continuing, the Indenture
Trustee may, and at the direction (which direction shall be in writing) of the
Holders of not less than 66-2/3% of the Outstanding Amount of the Notes shall,
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exercise all rights, remedies, powers, privileges and claims of the Seller
against Case Credit under or in connection with the Purchase Agreement,
including the right or power to take any action to compel or secure performance
or observance by Case Credit of each of its obligations to the Seller thereunder
and to give any consent, request, notice, direction, approval, extension or
waiver under the Purchase Agreement, and any right of the Seller to take such
action shall be suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1. DUTIES OF THE INDENTURE TRUSTEE. (a) If an Event of Default
has occurred and is continuing, the Indenture Trustee shall exercise the rights
and powers vested in it by this Indenture and use the same degree of care and
skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default actually known to
a Responsible Officer:
(i) the Indenture Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; PROVIDED, HOWEVER, in the case of any such
certificates or opinions that by any provision hereof are specifically
required to be furnished to the Indenture Trustee, the Indenture Trustee
shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(i) this clause (c) does not limit the effect of clause (b) of this
Section;
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(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is proved
that the Indenture Trustee was negligent in ascertaining the pertinent
facts;
(iii) the Indenture Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to the Indenture;
(iv) the Indenture Trustee shall not be charged with knowledge of an
Event of Default or Servicer Default unless a Responsible Officer obtains
actual knowledge of such event or the Indenture Trustee receives written
notice of such event from the Seller, Servicer or Note Owners owning Notes
aggregating not less than 10% of the Outstanding Amount of the Notes; and
(v) the Indenture Trustee shall have no duty to monitor the
performance of the Issuer, the Trustee, the Seller or the Servicer, nor
shall it have any liability in connection with malfeasance or nonfeasance
by the Issuer, the Trustee, the Seller or the Servicer. The Indenture
Trustee shall have no liability in connection with compliance of the
Issuer, the Trustee, the Seller or the Servicer with statutory or
regulatory requirements related to the Receivables. The Indenture Trustee
shall not make or be deemed to have made any representations or warranties
with respect to the Receivables or the validity or sufficiency of any
assignment of the Receivables to the Trust Estate or the Indenture Trustee.
(d) Every provision of this Indenture that in any way relates to the
Indenture Trustee is subject to clauses (a), (b), (c) and (g).
(e) The Indenture Trustee shall not be liable for interest on any money
received by it except as the Indenture Trustee may agree in writing with the
Issuer.
(f) Money held in trust by the Indenture Trustee need not be segregated
from other funds except to the extent required by law, this Indenture or the
Sale and Servicing Agreement.
(g) No provision of this Indenture shall require the Indenture Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds to believe that repayments
of such funds or adequate indemnity satisfactory to it against any loss,
liability or expense is not reasonably assured to it.
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(h) Every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Indenture Trustee shall be
subject to this Section and the TIA.
SECTION 6.2. RIGHTS OF INDENTURE TRUSTEE. (a) The Indenture Trustee may
conclusively rely and shall be fully protected in acting on any document
believed by it to be genuine and to have been signed or presented by the proper
Person. The Indenture Trustee need not investigate any fact or matter stated in
any such document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Indenture Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on the Officers' Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents,
attorneys, a custodian or a nominee, and the Indenture Trustee shall not be
responsible for any misconduct or negligence on the part of, or for the
supervision of, any such agent, attorney, custodian or nominee appointed with
due care by it.
(d) The Indenture Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within its
rights or powers; PROVIDED, HOWEVER, that the Indenture Trustee's conduct does
not constitute wilful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Notes shall be full and complete authorization and protection from liability
in respect to any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.
(f) The Indenture Trustee shall not be required to make any initial or
periodic examination of any files or records related to the Receivables for the
purpose of establishing the presence or absence of defects, the compliance by
the Issuer with its representations and warranties or for any other purpose.
(g) In the event that the Indenture Trustee is also acting as Paying Agent
or Note Registrar hereunder, the rights and protections afforded to the
Indenture Trustee pursuant to this Article VI shall also be afforded to the
Indenture Trustee in its capacity as such Paying Agent or Note Registrar.
SECTION 6.3. INDIVIDUAL RIGHTS OF THE INDENTURE TRUSTEE. The Indenture
Trustee shall not, in its individual capacity, but may in a fiduciary capacity,
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become the owner of Notes or otherwise extend credit to the Issuer. The
Indenture Trustee may otherwise deal with the Issuer or its Affiliates with the
same rights it would have if it were not the Indenture Trustee. Any Paying
Agent, Note Registrar, co-registrar or co-paying agent may do the same with like
rights. However, the Indenture Trustee must comply with Sections 6.11 and 6.12.
SECTION 6.4. INDENTURE TRUSTEE'S DISCLAIMER. The Indenture Trustee shall
not be responsible for, and makes no representation as to the validity or
adequacy of, this Indenture or the Notes; shall not be accountable for the
Issuer's use of the proceeds from the Notes; and shall not be responsible for
any statement of the Issuer in this Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the Indenture
Trustee's certificate of authentication.
SECTION 6.5. NOTICE OF DEFAULTS. If a Default occurs and is continuing and
is known to a Responsible Officer, the Indenture Trustee shall mail to each
Noteholder notice of the Default within 90 days after it occurs. Except in the
case of a Default in payment of principal of or interest on any Note (including
payments pursuant to the mandatory redemption provisions of such Note), the
Indenture Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of Noteholders.
SECTION 6.6. REPORTS BY INDENTURE TRUSTEE TO THE HOLDERS. The Indenture
Trustee shall deliver to each Noteholder such information as may be required to
enable such Holder to prepare its Federal, State and other income tax returns.
Within 60 days after each December 31, the Indenture Trustee shall mail to each
Noteholder a brief report as of such December 31 that complies with TIA Section
313(a) (if required by said section).
SECTION 6.7. COMPENSATION AND INDEMNITY. The Issuer shall, or shall cause
the Servicer to, pay to the Indenture Trustee from time to time reasonable
compensation for its services. The Indenture Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Issuer
shall, or shall cause the Servicer to, reimburse the Indenture Trustee for all
reasonable out-of-pocket expenses incurred or made by it, including costs of
collection, in addition to the compensation for its services. Such expenses
shall include the reasonable compensation and expenses, disbursements and
advances of the Indenture Trustee's agents, counsel, accountants and experts.
The Issuer shall or shall cause the Servicer to indemnify the Indenture Trustee
and its officers, directors, employees and agents against any and all loss,
liability or expense (including attorneys' fees) incurred by them in connection
with the administration of this trust and the performance of its duties
hereunder. The Indenture Trustee shall notify the Issuer and the Servicer
promptly of any claim
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for which it may seek indemnity. Failure by the Indenture Trustee to so notify
the Issuer and the Servicer shall not relieve the Issuer or the Servicer of its
obligations hereunder. The Issuer shall, or shall cause the Servicer to, defend
the claim and the Indenture Trustee may have separate counsel and the Issuer
shall, or shall cause the Servicer to, pay the fees and expenses of such
counsel. Neither the Issuer nor the Servicer need reimburse any expense or
indemnify against any loss, liability or expense incurred by the Indenture
Trustee through the Indenture Trustee's own willful misconduct, negligence or
bad faith.
The Issuer's payment obligations to the Indenture Trustee pursuant to this
Section shall survive the discharge of this Indenture. When the Indenture
Trustee incurs expenses after the occurrence of a Default specified in Section
5.1(iv) or (v), the expenses are intended to constitute expenses of
administration under Title 11 of the United States Code or any other applicable
Federal or State bankruptcy, insolvency or similar law.
SECTION 6.8. REPLACEMENT OF THE INDENTURE TRUSTEE. No resignation or
removal of the Indenture Trustee and no appointment of a successor Indenture
Trustee shall become effective until the acceptance of appointment by the
successor Indenture Trustee pursuant to this Section 6.8. The Indenture Trustee
may resign at any time by so notifying the Issuer in writing. The Holders of not
less than a majority of the Outstanding Amount of the Notes may remove the
Indenture Trustee by so notifying the Indenture Trustee in writing and may
appoint a successor Indenture Trustee. The Issuer shall remove the Indenture
Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the Indenture
Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists in
the office of Indenture Trustee for any reason (the Indenture Trustee in such
event being referred to herein as the retiring Indenture Trustee), the Issuer
shall promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee and to the Issuer. Thereupon the
resignation or removal of the retiring Indenture Trustee shall become effective,
and the successor Indenture Trustee shall have all the rights, powers and duties
of
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the Indenture Trustee under this Indenture. The successor Indenture Trustee
shall mail a notice of its succession to Noteholders. The retiring Indenture
Trustee shall promptly transfer all property held by it as Indenture Trustee to
the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 60 days after
the retiring Indenture Trustee resigns or is removed, the retiring Indenture
Trustee, the Issuer or the Holders of not less than a majority of the
Outstanding Amount of the Notes may petition any court of competent jurisdiction
for the appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11, any Noteholder
may petition any court of competent jurisdiction for the removal of the
Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to this
Section, the Issuer's and the Administrator's obligations under Section 6.7
shall continue for the benefit of the retiring Indenture Trustee. The retiring
Indenture Trustee shall have no liability for any act or omission by any
successor Trustee.
SECTION 6.9. SUCCESSOR INDENTURE TRUSTEE BY MERGER. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Indenture Trustee. The Indenture
Trustee shall provide the Rating Agencies and the Issuer prior written notice of
any such transaction; PROVIDED, that such corporation or banking association
shall be otherwise qualified and eligible under Section 6.11.
In case at the time such successor(s) by merger, conversion or
consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to the Indenture Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor trustee hereunder or in the name of
the successor to the Indenture Trustee; and in all such cases such certificates
of authentication shall have the full force and effect to the same extent given
to the certificate of authentication of the Indenture Trustee anywhere in the
Notes or in this Indenture.
SECTION 6.10. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE. (a)
Notwithstanding any other provisions of this Indenture, at any time, for the
purpose of meeting any legal requirement of any jurisdiction in which any part
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of the Trust Estate may at the time be located, the Indenture Trustee shall have
the power and may execute and deliver all instruments to appoint one or more
Person(s) to act as co-trustee(s), 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 Noteholders, 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 Indenture Trustee may consider necessary
or desirable. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 6.11 and no
notice to Noteholders of the appointment of any co-trustee or separate trustee
shall be required under Section 6.8.
(b) Every 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 Indenture Trustee shall be conferred or imposed upon and exercised
or performed by the Indenture 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 Indenture 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
Indenture 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
Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the resignation of
or remove, in its sole discretion, any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture 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 VI. 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
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of,
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affecting the liability of, or affording protection to, the Indenture Trustee.
Every such instrument shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture 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 Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The Indenture 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.
SECTION 6.11. ELIGIBILITY; DISQUALIFICATION. The Indenture Trustee shall at
all times satisfy the requirements of TIA Section 310(a) and Section 26(a)(1) of
the Investment Company Act of 1940, as amended. The Indenture Trustee shall have
a combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition and it shall have a long term
senior, unsecured debt rating of "Baa3" or better by Moody's (or, if not rated
by Moody's, a comparable rating by another statistical rating agency). The
Indenture Trustee shall comply with TIA Section 310(b), including the optional
provision permitted by the second sentence of TIA Section 310(b)(9); PROVIDED,
HOWEVER, that there shall be excluded from the operation of TIA Section
310(b)(1) any indenture(s) under which other securities of the Issuer are
outstanding if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met.
If a default occurs under this Indenture, and the Indenture Trustee is
deemed to have a conflicting interest as a result of acting as trustee for both
the Class A Notes and the Class B Notes, a successor Indenture Trustee shall be
appointed for one or both of such Classes, so that there will be separate
Indenture Trustees for the Class A Notes and the Class B Notes. No such event
shall alter the voting rights of the Class A Noteholders or Class B Noteholders
under this Indenture or any other Basic Document. However, so long as any
amounts remain unpaid with respect to the Class A Notes, only the Indenture
Trustee for the Class A Noteholders will have the right to exercise remedies
under this Indenture (but subject to the express provisions of Section 5.4 and
to the right of the Class B Noteholders to receive their share of any proceeds
of enforcement, subject to the subordination of the Class B Notes to the Class A
Notes as described herein). Upon repayment of the Class A Notes in full, all
rights to exercise remedies under the Indenture will transfer to the Indenture
Trustee for the Class B Notes.
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In the case of the appointment hereunder of a successor Indenture Trustee
with respect to any Class of Notes, the Issuer, the retiring Indenture Trustee
and the successor Indenture Trustee with respect to such Class of Notes shall
execute and deliver an indenture supplemental hereto wherein the each successor
Indenture Trustee shall accept such appointment and which (i) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, the successor Indenture Trustee all the rights, powers, trusts and
duties of the retiring Indenture Trustee with respect to the Notes of the Class
to which the appointment of such successor Indenture Trustee relates, (ii) if
the retiring Indenture Trustee is not retiring with respect to all Classes of
Notes, shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the retiring
Indenture Trustee with respect to the Notes of each Class as to which the
retiring Indenture Trustee is not retiring shall continue to be vested in the
retiring Indenture Trustee, and (iii) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Indenture Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Indenture Trustees co-trustees of the same trust and that each
such Indenture Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any other such
Indenture Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Indenture Trustee shall
become effective to the extent provided therein.
SECTION 6.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER. The
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
SECTION 6.13. REPRESENTATIONS AND WARRANTIES. The Indenture Trustee hereby
represents that:
(a) the Indenture Trustee is duly organized and validly existing as an
Illinois banking corporation in good standing under the laws of Illinois 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 Indenture Trustee has the power and authority to execute and
deliver this Indenture and to carry out its terms; and the execution, delivery
and performance of this Indenture have been duly authorized by the Indenture
Trustee by all necessary corporate action;
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(c) the consummation of the transactions contemplated by this Indenture 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 articles of organization or bylaws of the
Indenture Trustee or any material agreement or other instrument to which the
Indenture Trustee is a party or by which it is bound; and
(d) to best of the Indenture Trustee's knowledge, there are no proceedings
or investigations pending or threatened before any court, regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Indenture Trustee or its properties: (i) asserting the invalidity of
this Indenture, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Indenture or (iii) seeking any determination
or ruling that might materially and adversely affect the performance by the
Indenture Trustee of its obligations under, or the validity or enforceability
of, this Indenture.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1. ISSUER TO FURNISH INDENTURE TRUSTEE NAMES AND ADDRESSES OF
NOTEHOLDERS. The Issuer will furnish or cause to be furnished to the Indenture
Trustee: (a) not more than five days after the earlier of: (i) each Record Date
and (ii) three months after the last Record Date, a list, in such form as the
Indenture Trustee may reasonably require, of the names and addresses of the
Holders of Notes as of such Record Date, and (b) at such other times as the
Indenture Trustee may request in writing, within 30 days after receipt by the
Issuer of any such request, a list of similar form and content as of a date not
more than 10 days prior to the time such list is furnished; PROVIDED, HOWEVER,
that so long as the Indenture Trustee is the Note Registrar, no such list shall
be required to be furnished.
SECTION 7.2. PRESERVATION OF INFORMATION; COMMUNICATIONS TO NOTEHOLDERS.
(a) The Indenture Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Holders of Notes contained in the
most recent list furnished to the Indenture Trustee as provided in Section 7.1
and the names and addresses of Holders of Notes received by the Indenture
Trustee in its capacity as Note Registrar. The Indenture Trustee may destroy any
list furnished to it as provided in Section 7.1 upon receipt of a new list so
furnished.
(b) Three or more Noteholders, or one or more Holder(s) of Notes evidencing
at least 25% of the Outstanding Amount of the Notes, may
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communicate pursuant to TIA Section 312(b) with other Noteholders with respect
to their rights under this Indenture or under the Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall have the
protection of TIA Section 312(c).
SECTION 7.3. REPORTS BY ISSUER. (a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days after the Issuer
is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) that the Issuer may be required to
file with the Commission pursuant to Section 13 or 15(d) of the Exchange
Act;
(ii) file with the Commission, in accordance with the rules and
regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Issuer
with the conditions and covenants of this Indenture (with a copy of any
such filings being delivered promptly to the Indenture Trustee); and
(iii) supply to the Indenture Trustee (and the Indenture Trustee shall
transmit by mail to all Noteholders described in TIA Section 313(c)) such
summaries of any information, documents and reports required to be filed by
the Issuer pursuant to clauses (i) and (ii) as may be required by the rules
and regulations prescribed from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the Issuer
shall end on December 31 of each year.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1. COLLECTION OF MONEY. Except as otherwise expressly provided
herein, the Indenture Trustee may demand payment or delivery of, and shall
receive and collect, directly and without intervention or assistance of any
fiscal agent or other intermediary, all money and other property payable to or
receivable by the Indenture Trustee pursuant to this Indenture. The Indenture
Trustee shall apply all such money received by it as provided in this Indenture.
Except as otherwise expressly provided in this Indenture, if any default occurs
in
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the making of any payment or performance under any agreement or instrument that
is part of the Collateral and the Trust Estate, the Indenture Trustee may take
such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate Proceedings. Any such
action shall be without prejudice to any right to claim a Default or Event of
Default under this Indenture and any right to proceed thereafter as provided in
Article V.
SECTION 8.2. TRUST ACCOUNTS. (a) On or prior to the Closing Date, the
Issuer shall cause the Servicer to establish and maintain, in the name of the
Indenture Trustee, for the benefit of the Noteholders and the
Certificateholders, the Trust Accounts as provided in Section 5.1 of the Sale
and Servicing Agreement.
(b) On or before each Payment Date, the Total Distribution Amount with
respect to the preceding Collection Period will be deposited in the Collection
Account as provided in Section 5.2 of the Sale and Servicing Agreement. On or
before each Payment Date, the Noteholders' Distributable Amount with respect to
the preceding Collection Period will be transferred to the Note Distribution
Account as provided in Sections 5.5 and 5.6 of the Sale and Servicing Agreement.
(c) On each Payment Date and Redemption Date, the Indenture Trustee shall
distribute all amounts on deposit in the Note Distribution Account to
Noteholders to the extent of amounts due and unpaid on the Notes for principal
and interest in the following amounts and in the following order of priority
(except as otherwise provided in Section 5.4(b)):
(i) the Class Interest Amount for each Class of Class A Notes;
PROVIDED, that if there are not sufficient funds in the Note Distribution
Account to pay the entire amount of accrued and unpaid interest then due on
such Notes, the amount in the Note Distribution Account shall be applied to
the payment of such interest on such Notes pro rata on the basis of the
total such interest due on such Notes;
(ii) the Class B Noteholders' Class Interest Amount;
(iii) the Class Principal Distributable Amount for each Class of Class
A Notes in the following priority: A-1 Notes, A-2 Notes, A-3 Notes and A-4
Notes (provided that after an Event of Default and acceleration of the
Notes (and, if any Notes remain outstanding, on and after the Final
Scheduled Maturity Date), amounts available for distribution pursuant to
this clause (iv) shall be paid to all Holders of Class A Notes ratably
according to the amounts due and payable on the Class A Notes for principal
until paid in full);
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(iv) the Class B Noteholders' Monthly Principal Distributable Amount;
and
(v) thereafter, any excess shall be deposited to the Certificate
Distribution Account.
(d) On the A-1 Note Final Scheduled Maturity Date, the Indenture Trustee
shall distribute to the Class A-1 Noteholders, from the amount available in the
Note Distribution Account, an amount equal to the sum of (i) the aggregate
accrued and unpaid interest on the Class A-1 Notes as of the A-1 Note Final
Scheduled Maturity Date, and (ii) the amount necessary to reduce the outstanding
principal amount of the Class A-1 Notes to zero.
SECTION 8.3. GENERAL PROVISIONS REGARDING ACCOUNTS. (a) So long as no
Default or Event of Default shall have occurred and be continuing, all or a
portion of the funds in the Trust Accounts shall be invested in Eligible
Investments and reinvested by the Indenture Trustee upon Issuer Order, subject
to the provisions of Section 5.1(b) of the Sale and Servicing Agreement. All
income or other gain from investments of moneys deposited in the Trust Accounts
shall be deposited by the Indenture Trustee in the Collection Account, and any
loss or expenses resulting from such investments shall be charged to such
account. The Issuer will not direct the Indenture Trustee to make any investment
of any funds or to sell any investment held in any of the Trust Accounts unless
the security interest granted and perfected in such account will continue to be
perfected in such investment or the proceeds of such sale, in either case
without any further action by any Person, and, in connection with any direction
to the Indenture Trustee to make any such investment or sale, if requested by
the Indenture Trustee, the Issuer shall deliver to the Indenture Trustee an
Opinion of Counsel to such effect.
(b) Subject to Section 6.1(c), the Indenture Trustee shall not in any way
be held liable for the selection of Eligible Investments or by reason of any
insufficiency in any of the Trust Accounts resulting from any loss on any
Eligible Investment included therein, except for losses attributable to the
Indenture Trustee's failure to make payments on such Eligible Investments issued
by the Indenture Trustee, in its commercial capacity as principal obligor and
not as trustee, in accordance with their terms.
(c) If: (i) the Issuer shall have failed to give investment directions for
any funds on deposit in the Trust Accounts to the Indenture Trustee by 11:00
a.m. (New York City time) (or such other time as may be agreed by the Issuer and
the Indenture Trustee) on any Business Day; or (ii) a Default or Event of
Default shall have occurred and be continuing with respect to the Notes but the
Notes shall not have been declared due and payable pursuant to Section 5.2, or,
if such Notes shall have been declared due and payable following an Event of
Default,
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amounts collected or receivable from the Trust Estate are being applied in
accordance with Section 5.4(b) as if there had not been such a declaration; then
the Indenture Trustee shall, to the fullest extent practicable, invest and
reinvest funds in the Trust Accounts in the Eligible Investments identified in
clause (d) of the definition of Eligible Investments.
SECTION 8.4. RELEASE OF TRUST ESTATE. (a) Subject to the payment of its
fees and expenses pursuant to Section 6.7, the Indenture Trustee may, and when
required by this Indenture shall, execute instruments to release property from
the Lien of this Indenture, or convey the Indenture Trustee's interest in the
same, in a manner and under circumstances that are not inconsistent with this
Indenture. No party relying upon an instrument executed by the Indenture Trustee
as provided in this Article shall be bound to ascertain the Indenture Trustee's
authority, inquire into the satisfaction of any conditions precedent or see to
the application of any moneys.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due to the Indenture Trustee pursuant to Section 6.7
have been paid, release any remaining portion of the Trust Estate that secured
the Notes from the Lien of this Indenture and release to the Issuer or any other
Person entitled thereto any funds then on deposit in the Trust Accounts. The
Indenture Trustee shall release property from the Lien of this Indenture
pursuant to this paragraph only upon receipt of an Issuer Request accompanied by
an Officers' Certificate, an Opinion of Counsel and (if required by the TIA)
Independent Certificates in accordance with TIA Sections 314(c) and 314(d)(1)
meeting the applicable requirements of Section 11.1.
SECTION 8.5. OPINION OF COUNSEL. The Indenture Trustee shall receive at
least seven days' notice when requested by the Issuer to take any action
pursuant to Section 8.4(a), accompanied by copies of any instruments involved,
and the Indenture Trustee shall also require, as a condition to such action, an
Opinion of Counsel stating the legal effect of any such action, outlining the
steps required to complete the same, and concluding that all conditions
precedent to the taking of such action have been complied with and such action
will not materially and adversely impair the security for the Notes or the
rights of the Noteholders in contravention of this Indenture; PROVIDED, HOWEVER,
that such Opinion of Counsel shall not be required to express an opinion as to
the fair value of the Trust Estate. Counsel rendering any such opinion may rely,
without independent investigation, on the accuracy and validity of any
certificate or other instrument delivered to the Indenture Trustee in connection
with any such action.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS. (a)
Without the consent of the Holders of Notes but with prior written notice to the
Rating Agencies, the Issuer and the Indenture Trustee, when authorized by an
Issuer Order, at any time and from time to time, may enter into one or more
indentures supplemental hereto (which shall conform to the Trust Indenture Act
as in force at the date of the execution thereof), in form satisfactory to the
Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at any time
subject to the Lien of this Indenture, or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subjected to the Lien of this Indenture, or to subject to the Lien of this
Indenture additional property;
(ii) to evidence the succession, in compliance with the applicable
provisions hereof, of another Person to the Issuer, and the assumption by
any such successor of the covenants of the Issuer herein and in the Notes;
(iii) to add to the covenants of the Issuer, for the benefit of the
Holders of Notes, or to surrender any right or power herein conferred upon
the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property to
or with the Indenture Trustee;
(v) to replace the Spread Account with another form of credit
enhancement; PROVIDED, the Rating Agency Condition is satisfied;
(vi) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture that may be inconsistent with any
other provision herein or in any supplemental indenture or to make any
other provisions with respect to matters or questions arising under this
Indenture or in any supplemental indenture; PROVIDED, that such action
shall not materially adversely affect the interests of the Holders of
Notes;
(vii) to evidence and provide for the acceptance of the appointment
hereunder by a successor or additional trustee with respect to the Notes or
any class thereof and to add to or change any of the provisions of this
Indenture as shall be necessary to facilitate the administration of the
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trusts hereunder by more than one trustee, pursuant to the requirements of
Article VI; or
(viii) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect the qualification of this
Indenture under the TIA or under any similar Federal statute hereafter
enacted and to add to this Indenture such other provisions as may be
expressly required by the TIA.
The Trustee is hereby authorized to join in the execution of any such
supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, may, without the consent of any of the Holders of Notes but with prior
written notice to the Rating Agencies, enter into an indenture or indentures
supplemental hereto to cure any ambiguity, to correct or supplement any
provisions in this Indenture or for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of Notes under this
Indenture; PROVIDED, HOWEVER, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
any Noteholder.
SECTION 9.2. Supplemental Indentures With Consent of Noteholders. The
Issuer and the Indenture Trustee, when authorized by an Issuer Order, may, with
prior written notice to the Rating Agencies and with the consent of the Holders
of Notes evidencing not less than a majority of the Outstanding Amount of the
Notes, by Act of such Holders delivered to the Issuer and the Indenture Trustee,
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Notes under this Indenture; PROVIDED, HOWEVER, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Note affected thereby:
(i) change the date of payment of any installment of principal of or
interest on any Note, or reduce the principal amount thereof, the interest
rate thereon or the Redemption Price with respect thereto, change the
provisions of this Indenture relating to the application of collections on,
or the proceeds of the sale of, the Trust Estate to the payment of
principal of or interest on the Notes, or change any place of payment
where, or the coin or currency in which, any Note or the interest thereon
is payable, or impair the right to institute suit for the enforcement of
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the provisions of this Indenture requiring the application of funds
available therefor, as provided in Article V, to the payment of any such
amount due on or after the respective due dates thereof (or, in the case of
redemption, on or after the Redemption Date);
(ii) reduce the percentage of the Outstanding Amount, the consent of
the Holders of which is required for any such supplemental indenture, or
the consent of the Holders of which is required for any waiver of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences provided for in this Indenture;
(iii) modify or alter the provisions of the proviso to the definition
of "Outstanding";
(iv) reduce the percentage of the Outstanding Amount required to
direct the Indenture Trustee to direct the Issuer to sell or liquidate the
Trust Estate pursuant to Section 5.4;
(v) modify any provision of this Section except to increase any
percentage specified herein or to provide that certain additional
provisions of this Indenture or the Basic Documents cannot be modified or
waived without the consent of the Holder of each Outstanding Note affected
thereby;
(vi) modify any of the provisions of this Indenture in such manner as
to affect the calculation of the amount of any payment of interest or
principal due on any Note on any Payment Date (including the calculation of
any of the individual components of such calculation) or to affect the
rights of the Holders of Notes to the benefit of any provisions for the
mandatory redemption of the Notes contained herein; or
(vii) permit the creation of any Lien ranking prior to or on a parity
with the Lien of this Indenture with respect to any part of the Trust
Estate or, except as otherwise permitted or contemplated herein, terminate
the Lien of this Indenture on any property at any time subject hereto or
deprive any Holder of Notes of the security provided by the Lien of this
Indenture.
It shall not be necessary for any Act of the Noteholders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof. The manner
of obtaining such consents (and any other consents of Noteholders provided for
in this Indenture or in any other Basic Document) and of evidencing the
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authorization of the execution thereof by Noteholders shall be subject to such
reasonable requirements as the Indenture Trustee may provide.
Promptly after the execution by the Issuer and the Indenture Trustee of any
supplemental indenture pursuant to this Section, the Indenture Trustee shall
mail to the Holders of the Notes to which such amendment or supplemental
indenture relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 9.3. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and,
subject to Sections 6.1 and 6.2, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Indenture Trustee may, but shall
not be obligated to, enter into any such supplemental indenture that affects the
Indenture Trustee's own rights, duties, liabilities or immunities under this
Indenture or otherwise.
SECTION 9.4. EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith with respect
to the Notes affected thereby, and the respective rights, limitations of rights,
obligations, duties, liabilities and immunities under this Indenture of the
Indenture Trustee, the Issuer and the Holders of the Notes shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.5. CONFORMITY WITH TRUST INDENTURE ACT. Every amendment of this
Indenture and every supplemental indenture executed pursuant to this Article IX
shall conform to the requirements of the Trust Indenture Act as then in effect
so long as this Indenture shall then be qualified under the Trust Indenture Act.
SECTION 9.6. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee shall so determine, new Notes so modified as to conform, in the opinion
of the Indenture Trustee and the Issuer, to any such supplemental indenture may
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be prepared andexecuted by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Notes.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1. REDEMPTION. (a) The Notes are subject to redemption in whole,
but not in part, at the direction of the Servicer pursuant to Section 9.1(a) of
the Sale and Servicing Agreement, on any Payment Date on which the Servicer
exercises its option to purchase the Trust Estate pursuant to said
Section 9.1(a), for a purchase price equal to the Redemption Price; PROVIDED,
HOWEVER, that the Issuer has available funds sufficient to pay the Redemption
Price. The Servicer or the Issuer shall furnish the Rating Agencies notice of
such redemption. If such Notes are to be redeemed pursuant to this Section 10.1,
the Servicer or the Issuer shall furnish notice of such election to the
Indenture Trustee not later than 25 days prior to the Redemption Date and the
Issuer shall deposit with the Indenture Trustee in the Note Distribution Account
the Redemption Price of the Notes to be redeemed.
(b) Reserved.
SECTION 10.2. FORM OF REDEMPTION NOTICE. Notice of redemption under Section
10.1 shall be given by the Indenture Trustee by first-class mail, postage
prepaid, mailed not less than five days prior to the applicable Redemption Date
to each Holder of Notes, as of the close of business on the Record Date
preceding the applicable Redemption Date, at such Holder's address appearing in
the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the place where such Notes are to be surrendered for payment of
the Redemption Price (which shall be the office or agency of the Issuer to
be maintained as provided in Section 3.2); and
(iv) CUSIP numbers.
Notice of redemption of the Notes shall be given by the Indenture Trustee
in the name and at the expense of the Issuer. Failure to give notice of
redemption,
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or any defect therein, to any Holder of any Note shall not impair or affect the
validity of the redemption of any other Note.
SECTION 10.3. NOTES PAYABLE ON REDEMPTION DATE. The Notes or portions
thereof to be redeemed shall, following notice of redemption pursuant to this
Article, become due and payable on the Redemption Date at the Redemption Price
and (unless the Issuer shall default in the payment of the Redemption Price) no
interest shall accrue on the Redemption Price for any period after the date to
which accrued interest is calculated for purposes of calculating the Redemption
Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. COMPLIANCE CERTIFICATES AND OPINIONS, ETC. (a) Upon any
application or request by the Issuer to the Indenture Trustee to take any action
under this Indenture, the Issuer shall furnish to the Indenture Trustee: (i) an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with,
(ii) an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with and (iii) (if required by
the TIA) an Independent Certificate from a firm of certified public accountants
meeting the applicable requirements of this Section, except that, in the case of
any such application or request as to which the furnishing of such documents is
specifically required by this Indenture, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(w) a statement that each signatory of such certificate or opinion has
read or has caused to be read such covenant or condition and the definitions
herein relating thereto;
(x) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(y) a statement that, in the opinion of each such signatory, such
signatory has made (or has caused to be made) such examination or investigation
as is necessary to enable such signatory to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
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(z) a statement as to whether, in the opinion of each such signatory,
such condition or covenant has been complied with.
(b)(i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the Lien of this Indenture, the
Issuer shall, in addition to any obligation imposed in Section 11.1(a) or
elsewhere in this Indenture, furnish to the Indenture Trustee an Officers'
Certificate certifying or stating the opinion of each person signing such
certificate as to the fair value (within 90 days of such deposit) to the Issuer
of the Collateral or other property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officers' Certificate described in clause (i), the Issuer shall
also deliver to the Indenture Trustee an Independent Certificate as to the
same matters, if the fair value to the Issuer of the Collateral or other
property or securities to be so deposited and of all other such Collateral
or other property or securities made the basis of any such withdrawal or
release since the commencement of the then-current fiscal year of the
Issuer, as set forth in the certificates delivered pursuant to clause (i)
and this clause (ii), is 10% or more of the Outstanding Amount of the
Notes, but such a certificate need not be furnished with respect to any
Collateral or other property or securities so deposited if the fair value
thereof to the Issuer as set forth in the related Officers' Certificate is
less than $25,000 or less than one percent of the then Outstanding Amount
of the Notes.
(iii) Other than with respect to property as contemplated by clause
(v), whenever any Collateral or other property or securities are to be
released from the Lien of this Indenture, the Issuer shall also furnish to
the Indenture Trustee an Officers' Certificate certifying or stating the
opinion of each person signing such certificate as to the fair value
(within 90 days of such release) of the Collateral or other property or
securities proposed to be released and stating that in the opinion of such
person the proposed release will not impair the security under this
Indenture in contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officers' Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (iii), the Issuer
shall also furnish to the Indenture Trustee an Independent Certificate as
to the same matters if the fair value to the Issuer of the Collateral or
other property or securities and of all other property, other than property
as contemplated by clause (v), or securities released from the Lien of this
Indenture since the commencement of the then-current fiscal year, as set
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forth in the certificates required by clause (iii) and this clause (iv),
equals 10% or more of the Outstanding Amount of the Notes, but such
certificate need not be furnished in the case of any release of Collateral
or other property or securities if the fair value thereof to the Issuer as
set forth in the related Officers' Certificate is less than $25,000 or less
than one percent of the then Outstanding Amount of the Notes.
(v) Notwithstanding Section 2.9 or any other provision of this
Section, the Issuer may, without compliance with the requirements of the
other provisions of this Section: (A) collect, liquidate, sell or otherwise
dispose of Receivables and Financed Equipment as and to the extent
permitted or required by the Basic Documents and (B) make cash payments out
of the Trust Accounts as and to the extent permitted or required by the
Basic Documents so long as the Issuer shall deliver to the Indenture
Trustee every six months, commencing October, 2000, an Officers'
Certificate of the Issuer stating that all such dispositions of Collateral
that occurred since the execution of the previous such Officers'
Certificate (or for the first such Officers' Certificate, since the Closing
Date) were in the ordinary course of the Issuer's business and that the
proceeds thereof were applied in accordance with the Basic Documents.
SECTION 11.2. FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate, opinion or representations
with respect to the matters upon which his certificate or opinion is based
is/are erroneous. Any such certificate of an Authorized Officer or Opinion of
Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Servicer, the Seller, the Issuer or the Administrator, stating that the
information with respect to such factual matters is in the possession of the
Servicer, the Seller, the Issuer or the Administrator, as applicable, unless
such Authorized Officer or counsel knows, or in the exercise of reasonable
care should know, that the certificate, opinion or representations with respect
to such matters is/are erroneous.
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Where any Person is required or permitted to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Whenever in this Indenture, in connection with any application, certificate
or report to the Indenture Trustee, it is provided that the Issuer shall deliver
any document as a condition of the granting of such application, or as evidence
of the Issuer's compliance with any term hereof, it is intended that the truth
and accuracy, at the time of the granting of such application or at the
effective date of such certificate or report (as the case may be), of the facts
and opinions stated in such document shall in such case be conditions precedent
to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
SECTION 11.3. ACTS OF NOTEHOLDERS. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Noteholders may be embodied in and evidenced by one or more
instrument(s) of substantially similar tenor signed by such Noteholders in
person or by agents duly appointed in writing; and except as herein otherwise
expressly provided, such action shall become effective when such instrument(s)
are delivered to the Indenture Trustee, and, where it is hereby expressly
required, to the Issuer. Such instrument(s) (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Noteholders signing such instrument(s). Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.1) conclusive in favor of
the Indenture Trustee and the Issuer, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved in any manner that the Indenture Trustee deems
sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or Act by the Holder of any Notes shall bind the Holder of every Note issued
upon the registration thereof, in exchange therefor or in lieu thereof, in
respect of anything done, omitted or suffered to be done by the Indenture
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Trustee or the Issuer in reliance thereon, whether or not notation of such
action is made upon such Note.
SECTION 11.4. NOTICES, ETC., TO THE INDENTURE TRUSTEE, ISSUER AND RATING
AGENCIES. Any request, demand, authorization, direction, notice, consent, waiver
or Act of Noteholders, or other documents provided or permitted by this
Indenture, shall be in writing and, if such request, demand, authorization,
direction, notice, consent, waiver or Act of Noteholders is to be made upon,
given or furnished to or filed with:
(a) the Indenture Trustee by any Noteholder or by the Issuer, shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Indenture Trustee at its Corporate Trust Office, or
(b) the Issuer by the Indenture Trustee or by any Noteholder, shall be
sufficient for every purpose hereunder if in writing and mailed, first class,
postage prepaid, to the Issuer addressed to: CNH Equipment Trust 2000-A, in care
of The Bank of New York, 101 Barclay Street, Floor 12E, New York, New York
10286, Attention: Corporate Trust Administration - Asset Backed Finance Unit,
and to Case Credit Corporation, as Administrator, 233 Lake Avenue, Racine,
Wisconsin 53403, Attention: Treasurer, or at any other address previously
furnished in writing to the Indenture Trustee by the Issuer or the
Administrator. The Issuer shall promptly transmit any notice received by it from
the Noteholders to the Indenture Trustee.
Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee or the Trustee shall be in writing, personally delivered or
mailed by certified mail, return receipt requested, to their respective
addresses set forth in Section 10.3 of the Sale and Servicing Agreement.
SECTION 11.5. NOTICES TO NOTEHOLDERS; WAIVER. Where this Indenture provides
for notice to Noteholders of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed, first-
class, postage prepaid to each Noteholder affected by such event, at his address
as it appears on the Note Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In any
case where notice to Noteholders is given by mail, neither the failure to mail
such notice nor any defect in any notice so mailed to any particular Noteholder
shall affect the sufficiency of such notice with respect to other Noteholders,
and any notice that is mailed in the manner herein provided shall conclusively
be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by any Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Noteholders shall be filed with the Indenture Trustee but
such filing
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shall not be a condition precedent to the validity of any action taken in
reliance upon such a waiver.
In case, by reason of the suspension of regular mail service, it shall be
impractical to mail notice of any event to Noteholders when such notice is
required to be given pursuant to this Indenture, then any manner of giving such
notice as shall be satisfactory to the Indenture Trustee shall be deemed to be a
sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies, failure to
give such notice shall not affect any other rights or obligations created
hereunder, and shall not under any circumstance constitute a Default or Event of
Default.
SECTION 11.6. ALTERNATE PAYMENT AND NOTICE PROVISIONS. Notwithstanding any
provision of this Indenture or any of the Notes to the contrary, the Issuer may
enter into any agreement with any Holder of a Note providing for a method of
payment, or notice by the Indenture Trustee or any Paying Agent to such Holder,
that is different from the methods provided for in this Indenture or the Notes
for such payments or notices. The Issuer will furnish to the Indenture Trustee a
copy of each such agreement and the Indenture Trustee will cause payments to be
made and notices to be given in accordance with such agreements.
SECTION 11.7. CONFLICT WITH TRUST INDENTURE ACT. If any provision hereof
limits, qualifies or conflicts with another provision hereof that is required to
be included in this Indenture by the Trust Indenture Act, such required
provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties on any
Person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
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SECTION 11.8. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 11.9. SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Indenture and the Notes by the Issuer shall bind its successors and assigns,
whether so expressed or not. All agreements of the Indenture Trustee in this
Indenture shall bind its successors, co-trustees and agents of the Indenture
Trustee.
SECTION 11.10. SEVERABILITY. Any provision of this Indenture or the Notes
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 or of the
Notes, as applicable, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 11.11. BENEFITS OF INDENTURE. Nothing in this Indenture or in the
Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, the Noteholders, any other party secured
hereunder and any other Person with an ownership interest in any part of the
Trust Estate, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 11.12. LEGAL HOLIDAYS. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next Business Day with the same force and effect as if
made on the date on which nominally due, and no interest shall accrue for the
period from and after any such nominal date.
SECTION 11.13. GOVERNING LAW. This Indenture shall be construed in
accordance with the laws of the State of New York, 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 11.14. COUNTERPARTS. This Indenture may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 11.15. RECORDING OF INDENTURE. If this Indenture is subject to
recording in any public recording offices, such recording is to be effected by
the Issuer and, at its expense, accompanied by an Opinion of Counsel (which may
be counsel to the Indenture Trustee or any other counsel reasonably acceptable
to the Indenture Trustee) to the effect that such recording is necessary either
for the protection of the Noteholders or any other Person secured hereunder or
for the enforcement of any right or remedy granted to the Indenture Trustee
under this Indenture.
SECTION 11.16. TRUST OBLIGATION. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Trustee or the
Indenture
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Trustee on the Notes or under this Indenture or any certificate or other writing
delivered in connection herewith or therewith, against: (i) the Indenture
Trustee or the Trustee in their individual capacities, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
officer, director, employee or agent of: (a) the Indenture Trustee or the
Trustee in their individual capacities, (b) any owner of a beneficial interest
in the Issuer, the Trustee or the Indenture Trustee or (c) of any successor or
assign of the Indenture Trustee or the Trustee in their individual capacities,
except as any such Person may have expressly agreed (it being understood that
the Indenture Trustee and the Trustee have no such obligations in their
individual capacities) and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity. For all purposes of this Indenture, in
the performance of any duties or obligations of the Issuer hereunder, the
Trustee shall be subject to, and entitled to the benefits of, Articles VI, VII
and VIII of the Trust Agreement.
SECTION 11.17. NO PETITION. The Indenture Trustee, by entering into this
Indenture, and each Noteholder, by accepting a Note, hereby covenant and agree
that they will not at any time institute against the Seller or the Issuer, or
join in any institution against the Seller or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States Federal or State bankruptcy or similar law
in connection with any obligations relating to the Notes, this Indenture or any
of the Basic Documents. The foregoing shall not limit the rights of the
Indenture Trustee to file any claim in or otherwise take any action with respect
to any insolvency proceeding that was instituted against the Issuer by any
Person other than the Indenture Trustee.
SECTION 11.18. INSPECTION. The Issuer agrees that, on reasonable prior
notice, it will permit any representative of the Indenture Trustee, during the
Issuer's normal business hours, to examine all the books of account, records,
reports and other papers of the Issuer, to make copies and extracts therefrom,
to cause such books to be audited by Independent certified public accountants,
and to discuss the Issuer's affairs, finances and accounts with the Issuer's
officers, employees and Independent certified public accountants, all at such
reasonable times and as often as may be reasonably requested. The Indenture
Trustee shall and shall cause its representatives to hold in confidence all such
information; PROVIDED, HOWEVER, that the foregoing shall not be construed to
prohibit: (i) disclosure of any and all information that is or becomes publicly
know, or information obtained by the Indenture Trustee from sources other than
the Issuer or Servicer, (ii) disclosure of any and all information: (A) if
required to do so by any applicable statute, law, rule or regulation, (B) to any
government agency or regulatory or self-regulatory body having or claiming
authority to regulate or oversee any aspects of the Indenture Trustee's business
or that of its Affiliates, (C) pursuant to any subpoena, civil investigative
demand or similar demand or
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request of any court, regulatory authority, arbitrator or arbitration to which
the Indenture Trustee or an Affiliate or any officer, director, employee or
shareholder thereof is subject, (D) in any preliminary or final offering
circular, registration statement or contract or other document pertaining to the
transactions contemplated by the Indenture and approved in advance by the Issuer
or (E) to any Affiliate, independent or internal auditor, agent, employee or
attorney of the Indenture Trustee having a need to know the same; PROVIDED, that
the Indenture Trustee advises such recipient of the confidential nature of the
information being disclosed and such recipient agrees to keep such information
confidential, (iii) any other disclosure authorized by the Issuer or the
Servicer or (iv) disclosure to the other parties to the transactions
contemplated by the Basic Documents.
SECTION 11.19 SUBORDINATION. Issuer and each Noteholder by accepting a Note
acknowledge and agree that such Note represents indebtedness of Issuer and does
not represent an interest in any assets (other than the Trust Estate) of CNHR
(including by virtue of any deficiency claim in respect of obligations not paid
or otherwise satisfied from the Trust Estate and proceeds thereof). In
furtherance of and not in derogation of the foregoing, to the extent CNHR enters
into other securitization transactions, Issuer as well as each Noteholder by
accepting a Note acknowledge and agree that it shall have no right, title or
interest in or to any assets (or interests therein) (other than Trust Estate)
conveyed or purported to be conveyed by CNHR to another securitization trust or
other Person or Persons in connection therewith (whether by way of a sale,
capital contribution or by virtue of the granting of a lien) ("OTHER ASSETS").
To the extent that, notwithstanding the agreements and provisions contained in
the preceding sentences of this subsection, Issuer or any Noteholder either (i)
asserts an interest or claim to, or benefit from, Other Assets, whether asserted
against or through CNHR or any other Person owned by CNHR, or (ii) is deemed to
have any such interest, claim or benefit in or from Other Assets, whether by
operation of law, legal process, pursuant to applicable provisions of insolvency
laws or otherwise (including by virtue of Section 1111(b) of the Federal
Bankruptcy Code or any successor provision having similar effect under the
Bankruptcy Code), and whether deemed asserted against or through CNHR or any
other Person owned by CNHR, then Issuer and each Noteholder by accepting a Note
further acknowledges and agrees that any such interest, claim or benefit in or
from Other Assets is and shall be expressly subordinated to the indefeasible
payment in full of all obligations and liabilities of CNHR which, under the
terms of the relevant documents relating to the securitization of such Other
Assets, are entitled to be paid from, entitled to the benefits of, or otherwise
secured by such Other Assets (whether or not any such entitlement or security
interest is legally perfected or otherwise entitled to a priority of
distribution or application under applicable law, including insolvency laws, and
whether asserted against CNHR or any other Person owned by CNHR), including, the
payment of post-petition interest on such other obligations and liabilities.
This subordination agreement shall be deemed a
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subordination agreement within the meaning of Section 510(a) of the Bankruptcy
Code. Each Noteholder further acknowledges and agrees that no adequate remedy at
law exists for a breach of this Section 11.19 and the terms of this Section
11.19 may be enforced by an action for specific performance.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed by their respective officers duly authorized as of the day and
year first above written.
CNH EQUIPMENT TRUST 2000-A;
By: THE BANK OF NEW YORK,
not in its individual capacity but solely as Trustee
/s/ Erwin Soriano
By:_______________________
Name: Erwin Soriano
Title: Assistant Treasurer
HARRIS TRUST AND SAVINGS BANK,
not in its individual capacity but solely
as Indenture Trustee
/s/ Rory Nowakowski
By:_______________________
Name: Rory Nowakowski
Title: Assistant Vice President
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EXHIBIT A-1
to Indenture
FORM OF A-1 NOTES
REGISTERED $______________1/
No. R-___ CUSIP NO. __________________
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CNH EQUIPMENT TRUST 2000-A
6.178% CLASS A-1 ASSET BACKED NOTES
CNH Equipment Trust 2000-A, a trust organized and existing under the laws
of the State of Delaware (including any successor, the "ISSUER"), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of _________________________ DOLLARS ($___________), partially
payable on each Payment Date in an amount equal to the aggregate amount, if any,
payable from the Note Distribution Account in respect of principal on the A-1
Notes pursuant to Section 3.1 of the Indenture; PROVIDED, HOWEVER, that the
entire unpaid principal amount of this Note shall be due and payable on the
earlier of the April 9, 2001 Payment Date and the Redemption Date, if any,
pursuant to Section 10.1(a) of the Indenture. The Issuer will pay interest on
this Note at the rate per annum shown above, on each Payment Date
- -------
1/ Denominations of $1,000 and in greater whole-dollar denominations in
excess thereof.
<PAGE>
until the principal of this Note is paid or made available for payment, on the
principal amount of this Note outstanding on the preceding Payment Date (after
giving effect to all payments of principal made on the preceding Payment Date),
subject to certain limitations contained in Section 3.1 of the Indenture.
Interest on this Note will accrue for each Payment Date from the most recent
Payment Date on which interest has been paid to but excluding the then current
Payment Date or, if no interest has yet been paid, from the date hereof.
Interest will be computed on the basis of a 360-day year and actual days
elapsed. Such principal of and interest on this Note shall be paid in the manner
specified in the Indenture.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee by manual signature, this Note shall not be entitled to any
benefit under the Indenture referred to on the reverse hereof, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Dated: March ___, 2000
CNH EQUIPMENT TRUST 2000-A
By: THE BANK OF NEW YORK,
not in its individual capacity but solely as Trustee
under the Trust Agreement
By:_______________________________
Name:_________________________
Title:________________________
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within-
mentioned Indenture.
Dated: March ___, 2000
HARRIS TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture Trustee
By:_________________________________
Authorized Signatory
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 6.178% Class A-1 Asset Backed Notes (herein called the "A-1
NOTES" or the "NOTES"), all issued under an Indenture dated as of March 1, 2000
(such Indenture, as supplemented or amended, is herein called the "INDENTURE"),
between the Issuer and Harris Trust and Savings Bank, not in its individual
capacity but solely as trustee (the "INDENTURE TRUSTEE", which term includes any
successor Indenture Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Notes are subject to all terms of the
Indenture. All terms used in this Note that are not otherwise defined herein and
that are defined in the Indenture shall have the meanings assigned to them in or
pursuant to the Indenture.
The Notes, the A-2 Notes, the A-3 Notes and the A-4 Notes are and will be
equally and ratably secured by the collateral pledged as security therefor as
provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest at the
A-1 Note Rate to the extent lawful.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer or the Indenture Trustee on the Notes or under the Indenture or
any certificate or other writing delivered in connection therewith, against: (i)
the Indenture Trustee or the Trustee in their individual capacities, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director or employee of: (a) the Indenture Trustee
or the Trustee in their individual capacities, (b) any holder of a beneficial
interest in the Issuer, the Trustee or the Indenture Trustee or of (c) any
successor or assign of the Indenture Trustee or the Trustee in their individual
capacities, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
It is the intent of the Seller, the Servicer, the Noteholders and the Note
Owners that, for purposes of Federal and State income tax and any other tax
measured in whole or in part by income, the Notes will qualify as indebtedness
of the Trust. Each Noteholder or Note Owner, by acceptance of a Note, or, in the
<PAGE>
case of a Note Owner, a beneficial interest in a Note, agrees to treat, and
totake no action inconsistent with the treatment of, the Notes for such tax
purposes as indebtedness of the Trust.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture that such Noteholder will not at any
time institute against the Seller or the Issuer, or join in any institution
against the Seller or the Issuer of, any bankruptcy, reorganization or
arrangement, insolvency or liquidation proceedings under any United States
Federal or State bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents.
This Note and the Indenture shall be construed in accordance with the laws
of the State of New York, without reference to its conflict of law provisions,
and the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Harris Trust and Savings Bank, in its
individual capacity, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees, successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture, it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Indenture Trustee for the sole purposes of binding the interests of the
Indenture Trustee in the assets of the Issuer. The Holder of this Note by the
acceptance hereof, and each Note Owner by the acceptance of a beneficial
interest herein, each agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
and Note Owner shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; PROVIDED, HOWEVER, that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the Indenture or in this Note.
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
_______________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto_____________________________________________________
_______________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: _____________ _______________________________ */
Signature Guaranteed:
________________________________________
Signatures must be guaranteed by an
"eligible guarantor institution" meeting
the requirements of the Note Registrar,
which requirements include membership or
participation in STAMP or such other
"signature guarantee program" as may be
determined by the Note Registrar in
addition to, or in substitution for,
STAMP, all in accordance with the
Securities Exchange Act of 1934, as
amended.
_________________________
*/ NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in
every particular without alteration, enlargement or any change
whatsoever.
<PAGE>
EXHIBIT A-2
to Indenture
FORM OF A-2 NOTES
REGISTERED $_______________2/
No. R-___ CUSIP NO. ___________________
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CNH EQUIPMENT TRUST 2000-A
6.80% CLASS A-2 ASSET BACKED NOTES
CNH Equipment Trust 2000-A, a trust organized and existing under the laws
of the State of Delaware (including any successor, the "ISSUER"), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of _________________________ DOLLARS ($___________), partially
payable on each Payment Date in an amount equal to the aggregate amount, if any,
payable from the Note Distribution Account in respect of principal on the A-2
Notes pursuant to Section 3.1 of the Indenture; PROVIDED, HOWEVER, that the
entire unpaid principal amount of this Note shall be due and payable on the
earlier of the August 2003 Payment Date and the Redemption Date, if any,
pursuant to Section 10.1(a) of the Indenture. No payments of principal of the
Notes will be made until the principal of the A-1 Notes has been
- ------
2/ Denominations of $1,000 and in greater whole-dollar denominations in excess
thereof.
1
<PAGE>
paid in full. The Issuer will pay interest on this Note at the rate per annum
shown above, on each Payment Date until the principal of this Note is paid or
madeavailable for payment, on the principal amount of this Note outstanding on
the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations contained in
Section 3.1 of the Indenture. Interest on this Note will accrue for each Payment
Date from the most recent Payment Date on which interest has been paid to but
excluding the then current Payment Date or, if no interest has yet been paid,
from the date hereof. Interest will be computed on the basis of a 360-day year
of twelve 30-day months. Such principal of and interest on this Note shall be
paid in the manner specified in the Indenture.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee by manual signature, this Note shall not be entitled to any
benefit under the Indenture referred to on the reverse hereof, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Dated: March ___, 2000
CNH EQUIPMENT TRUST 2000-A
By: THE BANK OF NEW YORK,
not in its individual capacity but solely
as Trustee under the Trust Agreement
By:___________________________________
Name:__________________________
Title:_________________________
2
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within-
mentioned Indenture.
Dated: March ____, 2000
HARRIS TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture Trustee
By:____________________________________
Authorized Signatory
3
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 6.80% Class A-2 Asset Backed Notes (herein called the "A-2
NOTES" or the "NOTES"), all issued under an Indenture dated as of March 1, 2000
(such Indenture, as supplemented or amended, is herein called the "INDENTURE"),
between the Issuer and Harris Trust and Savings Bank, not in its individual
capacity but solely as trustee (the "INDENTURE TRUSTEE", which term includes any
successor Indenture Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Notes are subject to all terms of the
Indenture. All terms used in this Note that are not otherwise defined herein and
that are defined in the Indenture shall have the meanings assigned to them in or
pursuant to the Indenture.
The Notes, the A-1 Notes, the A-3 Notes and the A-4 Notes are and will be
equally and ratably secured by the collateral pledged as security therefor as
provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest at the
A-2 Note Rate to the extent lawful.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer or the Indenture Trustee on the Notes or under the Indenture or
any certificate or other writing delivered in connection therewith, against: (i)
the Indenture Trustee or the Trustee in their individual capacities, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director or employee of: (a) the Indenture Trustee
or the Trustee in their individual capacities, (b) any holder of a beneficial
interest in the Issuer, the Trustee or the Indenture Trustee or of (c) any
successor or assign of the Indenture Trustee or the Trustee in their individual
capacities, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
It is the intent of the Seller, the Servicer, the Noteholders and the Note
Owners that, for purposes of Federal and State income tax and any other tax
measured in whole or in part by income, the Notes will qualify as indebtedness
of the Trust. Each Noteholder or Note Owner, by acceptance of a Note, or, in the
1
<PAGE>
case of a Note Owner, a beneficial interest in a Note, agrees to treat, and
totake no action inconsistent with the treatment of, the Notes for such tax
purposes as indebtedness of the Trust.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture that such Noteholder will not at any
time institute against the Seller or the Issuer, or join in any institution
against the Seller or the Issuer of, any bankruptcy, reorganization or
arrangement, insolvency or liquidation proceedings under any United States
Federal or State bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents.
This Note and the Indenture shall be construed in accordance with the laws
of the State of New York, without reference to its conflict of law provisions,
and the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Harris Trust and Savings Bank, in its
individual capacity, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees, successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture, it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Indenture Trustee for the sole purposes of binding the interests of the
Indenture Trustee in the assets of the Issuer. The Holder of this Note by the
acceptance hereof, and each Note Owner by the acceptance of a beneficial
interest herein, each agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
and Note Owner shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; PROVIDED, HOWEVER, that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the Indenture or in this Note.
2
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
_______________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto_____________________________________________________
_______________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: _____________ _______________________________ */
Signature Guaranteed:
_____________________________________________
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Note Registrar, which requirements
include membership or participation
in STAMP or such other "signature
guarantee program" as may be
determined by the Note Registrar in
addition to, or in substitution
for, STAMP, all in accordance with
the Securities Exchange Act of
1934, as amended.
________
*/ NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in
every particular without alteration, enlargement or any change
whatsoever.
<PAGE>
EXHIBIT A-3
to Indenture
FORM OF A-3 NOTES
REGISTERED $________________3/
No. R-___ CUSIP NO. ___________________
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CNH EQUIPMENT TRUST 2000-A
7.14% CLASS A-3 ASSET BACKED NOTES
CNH Equipment Trust 2000-A, a trust organized and existing under the laws
of the State of Delaware (including any successor, the "ISSUER"), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of _________________________ DOLLARS ($___________), partially
payable on each Payment Date in an amount equal to the aggregate amount, if any,
payable from the Note Distribution Account in respect of principal on the A-3
Notes pursuant to Section 3.1 of the Indenture; PROVIDED, HOWEVER, that the
entire unpaid principal amount of this Note shall be due and payable on the
earlier of the August 2004 Payment Date and the Redemption Date, if any,
pursuant to Section 10.1(a) of the Indenture. No payments of principal of the
Notes will be made until the principal of the A-1 Notes and the
- -------
3/ Denominations of $1,000 and in greater whole-dollar denominations in excess
thereof.
<PAGE>
A-2 Notes has been paid in full. The Issuer will pay interest on this Note at
the rate per annum shown above, on each Payment Date until the principal of this
Note is paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Payment Date (after giving effect to all payments
of principal made on the preceding Payment Date), subject to certain limitations
contained in Section 3.1 of the Indenture. Interest on this Note will accrue for
each Payment Date from the most recent Payment Date on which interest has been
paid to but excluding the then current Payment Date or, if no interest has yet
been paid, from the date hereof. Interest will be computed on the basis of a
360 day year of twelve 30-day months. Such principal of and interest on this
Note shall be paid in the manner specified in the Indenture.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee by manual signature, this Note shall not be entitled to any
benefit under the Indenture referred to on the reverse hereof, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Dated: March ___, 2000
CNH EQUIPMENT TRUST 2000-A
By: THE BANK OF NEW YORK,
not in its individual capacity but solely as
Trustee under the Trust Agreement
By:______________________________
Name:________________________
Title:_______________________
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within-
mentioned Indenture.
Dated: March ___, 2000
HARRIS TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture Trustee
By:___________________________________
Authorized Signatory
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 7.14% Class A-3 Asset Backed Notes (herein called the "A-3
NOTES" or the "NOTES"), all issued under an Indenture dated as of March 1, 2000
(such Indenture, as supplemented or amended, is herein called the "INDENTURE"),
between the Issuer and Harris Trust and Savings Bank, not in its individual
capacity but solely as trustee (the "INDENTURE TRUSTEE", which term includes any
successor Indenture Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Notes are subject to all terms of the
Indenture. All terms used in this Note that are not otherwise defined herein and
that are defined in the Indenture shall have the meanings assigned to them in or
pursuant to the Indenture.
The Notes, the A-1 Notes, the A-2 Notes and the A-4 Notes are and will be
equally and ratably secured by the collateral pledged as security therefor as
provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest at the
A-3 Note Rate to the extent lawful.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer or the Indenture Trustee on the Notes or under the Indenture or
any certificate or other writing delivered in connection therewith, against: (i)
the Indenture Trustee or the Trustee in their individual capacities, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director or employee of: (a) the Indenture Trustee
or the Trustee in their individual capacities, (b) any holder of a beneficial
interest in the Issuer, the Trustee or the Indenture Trustee or of (c) any
successor or assign of the Indenture Trustee or the Trustee in their individual
capacities, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
It is the intent of the Seller, the Servicer, the Noteholders and the Note
Owners that, for purposes of Federal and State income tax and any other tax
measured in whole or in part by income, the Notes will qualify as indebtedness
of the Trust. Each Noteholder or Note Owner, by acceptance of a Note, or, in the
<PAGE>
case of a Note Owner, a beneficial interest in a Note, agrees to treat, and
totake no action inconsistent with the treatment of, the Notes for such tax
purposes as indebtedness of the Trust.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture that such Noteholder will not at any
time institute against the Seller or the Issuer, or join in any institution
against the Seller or the Issuer of, any bankruptcy, reorganization or
arrangement, insolvency or liquidation proceedings under any United States
Federal or State bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents.
This Note and the Indenture shall be construed in accordance with the laws
of the State of New York, without reference to its conflict of law provisions,
and the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Harris Trust and Savings Bank, in its
individual capacity, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees, successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture, it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Indenture Trustee for the sole purposes of binding the interests of the
Indenture Trustee in the assets of the Issuer. The Holder of this Note by the
acceptance hereof, and each Note Owner by the acceptance of a beneficial
interest herein, each agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
and Note Owner shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; PROVIDED, HOWEVER, that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the Indenture or in this Note.
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
_______________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto_____________________________________________________
_______________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: _____________ _______________________________ */
Signature Guaranteed:
_____________________________________________
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Note Registrar, which requirements
include membership or participation
in STAMP or such other "signature
guarantee program" as may be
determined by the Note Registrar in
addition to, or in substitution
for, STAMP, all in accordance with
the Securities Exchange Act of
1934, as amended.
____________
*/ NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in
every particular without alteration, enlargement or any change
whatsoever.
<PAGE>
EXHIBIT A-4
to Indenture
FORM OF A-4 NOTES
REGISTERED $_________________4/
No. R-___ CUSIP NO. ____________________
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CNH EQUIPMENT TRUST 2000-A
7.34% CLASS A-4 ASSET BACKED NOTES
CNH Equipment Trust 2000-A, a trust organized and existing under the laws
of the State of Delaware (including any successor, the "ISSUER"), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of _________________________ DOLLARS ($___________), partially
payable on each Payment Date in an amount equal to the aggregate amount, if any,
payable from the Note Distribution Account in respect of principal on the A-4
Notes pursuant to Section 3.1 of the Indenture; PROVIDED, HOWEVER, that the
entire unpaid principal amount of this Note shall be due and payable on the
earlier of the February 2007 Payment Date and the Redemption Date, if any,
pursuant to Section 10.1(a) of the Indenture. No payments of principal of the
Notes will be made until the principal of the A-1 Notes, the A-2
- --------
4/ Denominations of $1,000 and in greater whole-dollar denominations in excess
thereof.
<PAGE>
Notes and the A-3 Notes has been paid in full. The Issuer will pay interest on
this Note at the rate per annum shown above, on each Payment Date until the
principal of thisNote is paid or made available for payment, on the principal
amount of this Note outstanding on the preceding Payment Date (after giving
effect to all payments of principal made on the preceding Payment Date), subject
to certain limitations contained in Section 3.1 of the Indenture. Interest on
this Note will accrue for each Payment Date from the most recent Payment Date on
which interest has been paid to but excluding the then current Payment Date or,
if no interest has yet been paid, from the date hereof. Interest will be
computed on the basis of a 360-day year of twelve 30-day months. Such principal
of and interest on this Note shall be paid in the manner specified in the
Indenture.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee by manual signature, this Note shall not be entitled to any
benefit under the Indenture referred to on the reverse hereof, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Dated: March ___, 2000
CNH EQUIPMENT TRUST 2000-A
By: THE BANK OF NEW YORK,
not in its individual capacity but solely as
Trustee under the Trust Agreement
By:________________________________
Name:__________________________
Title:_________________________
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within-
mentioned Indenture.
Dated: March ___, 2000
HARRIS TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture Trustee
By:_______________________________
Authorized Signatory
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 7.34% Class A-4 Asset Backed Notes (herein called the "A-4
NOTES" or the "NOTES"), all issued under an Indenture dated as of March 1, 2000
(such Indenture, as supplemented or amended, is herein called the "Indenture"),
between the Issuer and Harris Trust and Savings Bank, not in its individual
capacity but solely as trustee (the "INDENTURE TRUSTEE", which term includes any
successor Indenture Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Notes are subject to all terms of the
Indenture. All terms used in this Note that are not otherwise defined herein and
that are defined in the Indenture shall have the meanings assigned to them in or
pursuant to the Indenture.
The Notes, the A-1 Notes, the A-2 Notes and the A-3 Notes are and will
be equally and ratably secured by the collateral pledged as security therefor as
provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest at the
A-4 Note Rate to the extent lawful.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer or the Indenture Trustee on the Notes or under the Indenture or
any certificate or other writing delivered in connection therewith, against: (i)
the Indenture Trustee or the Trustee in their individual capacities, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director or employee of: (a) the Indenture Trustee
or the Trustee in their individual capacities, (b) any holder of a beneficial
interest in the Issuer, the Trustee or the Indenture Trustee or of (c) any
successor or assign of the Indenture Trustee or the Trustee in their individual
capacities, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
It is the intent of the Seller, the Servicer, the Noteholders and the Note
Owners that, for purposes of Federal and State income tax and any other tax
measured in whole or in part by income, the Notes will qualify as indebtedness
of the Trust. Each Noteholder or Note Owner, by acceptance of a Note, or, in the
<PAGE>
case of a Note Owner, a beneficial interest in a Note, agrees to treat, and to
take no action inconsistent with the treatment of, the Notes for such tax
purposes as indebtedness of the Trust.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture that such Noteholder will not at any
time institute against the Seller or the Issuer, or join in any institution
against the Seller or the Issuer of, any bankruptcy, reorganization or
arrangement, insolvency or liquidation proceedings under any United States
Federal or State bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents.
This Note and the Indenture shall be construed in accordance with the laws
of the State of New York, without reference to its conflict of law provisions,
and the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Harris Trust and Savings Bank, in its
individual capacity, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees, successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture, it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Indenture Trustee for the sole purposes of binding the interests of the
Indenture Trustee in the assets of the Issuer. The Holder of this Note by the
acceptance hereof, and each Note Owner by the acceptance of a beneficial
interest herein, each agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
and Note Owner shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; PROVIDED, HOWEVER, that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the Indenture or in this Note.
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
________________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto______________________________________________________
________________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: _____________ _______________________________ */
Signature Guaranteed:
_____________________________________________
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Note Registrar, which requirements
include membership or participation
in STAMP or such other "signature
guarantee program" as may be
determined by the Note Registrar in
addition to, or in substitution
for, STAMP, all in accordance with
the Securities Exchange Act of
1934, as amended.
_____________
*/ NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in
every particular without alteration, enlargement or any change
whatsoever.
<PAGE>
EXHIBIT A-5
to Indenture
FORM OF CLASS B NOTES
REGISTERED $____________5/
No. R-___ CUSIP NO. ___________
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CNH EQUIPMENT TRUST 2000-A
7.32% CLASS B ASSET BACKED NOTES
CNH Equipment Trust 2000-A, a trust organized and existing under the laws
of the State of Delaware (including any successor, the "ISSUER"), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of __________________ DOLLARS ($___________), partially payable on
each Payment Date in an amount equal to the aggregate amount, if any, payable
from the Note Distribution Account in respect of principal on the Class B Notes
pursuant to Section 3.1 of the Indenture; PROVIDED, HOWEVER, that the entire
unpaid principal amount of this Note shall be due and payable on the earlier of
the February 2007 Payment Date and the Redemption Date, if any, pursuant to
Section 10.1(a) of the Indenture. No payments of principal of the Notes will be
made until the principal of the A-1 Notes, A-2 Notes, A-3 Notes
- --------
5/ Denominations of $1,000 and in greater whole-dollar denominations in excess
thereof.
<PAGE>
and A-4 Notes has been paid in full. The Issuer will pay interest on this Note
at the rate per annum shown above, on each Payment Date until the principal of
this Note is paid or made available for payment, on the principal amount of this
Note outstanding on the preceding Payment Date (after giving effect to all
payments of principal made on the preceding Payment Date), subject to certain
limitations contained in Section 3.1 of the Indenture. Interest on this Note
will accrue for each Payment Date from the most recent Payment Date on which
interest has been paid to but excluding the then current Payment Date or, if no
interest has yet been paid, from the date hereof. Interest will be computed on
the basis of a 360 day year of twelve 30-day months. Such principal of and
interest on this Note shall be paid in the manner specified in the Indenture.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee by manual signature, this Note shall not be entitled to any
benefit under the Indenture referred to on the reverse hereof, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Dated: March ___, 2000
CNH EQUIPMENT TRUST 2000-A
By: THE BANK OF NEW YORK,
not in its individual capacity but solely as
Trustee under the Trust Agreement
By:___________________________________________
Name:____________________________________
Title:___________________________________
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within-
mentioned Indenture.
Dated: March ___, 2000
HARRIS TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture Trustee
By:_________________________________
Authorized Signatory
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 7.32% Class B Asset Backed Notes (herein called the "CLASS B
NOTES" or the "NOTES"), all issued under an Indenture dated as of March 1, 2000
(such Indenture, as supplemented or amended, is herein called the "INDENTURE"),
between the Issuer and Harris Trust and Savings Bank, not in its individual
capacity but solely as trustee (the "INDENTURE TRUSTEE", which term includes any
successor Indenture Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Notes are subject to all terms of the
Indenture. All terms used in this Note that are not otherwise defined herein and
that are defined in the Indenture shall have the meanings assigned to them in or
pursuant to the Indenture.
The Class B Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture, but the
interest of the Class B Noteholders in such collateral is subordinated and
second to the rights of the Class A Noteholders.
The Issuer shall pay interest on overdue installments of interest at the
Class B Note Rate to the extent lawful.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer or the Indenture Trustee on the Notes or under the Indenture or
any certificate or other writing delivered in connection therewith, against: (i)
the Indenture Trustee or the Trustee in their individual capacities, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director or employee of: (a) the Indenture Trustee
or the Trustee in their individual capacities, (b) any holder of a beneficial
interest in the Issuer, the Trustee or the Indenture Trustee or of (c) any
successor or assign of the Indenture Trustee or the Trustee in their individual
capacities, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
It is the intent of the Seller, the Servicer, the Noteholders and the Note
Owners that, for purposes of Federal and State income tax and any other tax
measured in whole or in part by income, the Notes will qualify as indebtedness
of
<PAGE>
the Trust. Each Noteholder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in a Note, agrees to treat, and
totake no action inconsistent with the treatment of, the Notes for such tax
purposes as indebtedness of the Trust.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture that such Noteholder will not at any
time institute against the Seller or the Issuer, or join in any institution
against the Seller or the Issuer of, any bankruptcy, reorganization or
arrangement, insolvency or liquidation proceedings under any United States
Federal or State bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents.
This Note and the Indenture shall be construed in accordance with the laws
of the State of New York, without reference to its conflict of law provisions,
and the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Harris Trust and Savings Bank, in its
individual capacity, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees, successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture, it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Indenture Trustee for the sole purposes of binding the interests of the
Indenture Trustee in the assets of the Issuer. The Holder of this Note by the
acceptance hereof, and each Note Owner by the acceptance of a beneficial
interest herein, each agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
and Note Owner shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; PROVIDED, HOWEVER, that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the Indenture or in this Note.
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
________________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto______________________________________________________
________________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: _____________ _______________________________ */
Signature Guaranteed:
_____________________________________________
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Note Registrar, which requirements
include membership or participation
in STAMP or such other "signature
guarantee program" as may be
determined by the Note Registrar in
addition to, or in substitution
for, STAMP, all in accordance with
the Securities Exchange Act of
1934, as amended.
_________
*/ NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in
every particular without alteration, enlargement or any change
whatsoever.
<PAGE>
EXHIBIT B
to Indenture
FORM OF SECTION 3.9 OFFICERS' CERTIFICATE
____________, _____
Harris Trust and Savings Bank
311 West Monroe, 12th Floor
Chicago, Illinois 60603
Attention: Indenture Trust Administration
Pursuant to Section 3.9 of the Indenture, dated as of March 1, 2000 (the
"INDENTURE"), between CNH Equipment Trust 2000-A (the "Issuer") and Harris Trust
and Savings Bank, as Indenture Trustee, the undersigned hereby certify that:
(a) a review of the activities of the Issuer during the previous fiscal
year and of performance under the Indenture has been made under the supervision
of the undersigned; and
(b) to the best knowledge of the undersigned, based on such review, the
Issuer has complied with all conditions and covenants under the Indenture
throughout such year. [or, if there has been a default in the compliance of any
such condition or covenant, this certificate is to specify each such default
known to the undersigned and the nature and status thereof]
CNH EQUIPMENT TRUST 2000-A
By:___________________________________
Name:______________________________
Title:_____________________________
By:___________________________________
Name:______________________________
Title:_____________________________
Execution Copy
-----------------------------------------------------------------
CNH EQUIPMENT TRUST 2000-A
TRUST AGREEMENT
between
CNH RECEIVABLES INC.
and
THE BANK OF NEW YORK,
as Trustee
Dated as of March 1, 2000
-----------------------------------------------------------------
<PAGE>
Table of Contents
Page
ARTICLE I
DEFINITIONS...............................1
SECTION 1.1. DEFINITIONS.....................................................1
SECTION 1.2. OTHER DEFINITIONAL PROVISIONS...................................1
ARTICLE II
ORGANIZATION................................2
SECTION 2.1. NAME...........................................................2
SECTION 2.2. OFFICE.........................................................2
SECTION 2.3. PURPOSES AND POWERS............................................2
SECTION 2.4. APPOINTMENT OF TRUSTEE.........................................3
SECTION 2.5. INITIAL CAPITAL CONTRIBUTION OF TRUST ESTATE...................3
SECTION 2.6. DECLARATION OF TRUST...........................................3
SECTION 2.7 LIABILITY OF THE CERTIFICATEHOLDERS............................4
SECTION 2.8. TITLE TO TRUST PROPERTY........................................4
SECTION 2.9. SITUS OF TRUST.................................................4
SECTION 2.10. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR................4
SECTION 2.11. FEDERAL INCOME TAX ALLOCATIONS.................................5
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS...............6
SECTION 3.1. INITIAL OWNERSHIP...............................................6
SECTION 3.2. THE TRUST CERTIFICATES..........................................6
SECTION 3.3. AUTHENTICATION OF TRUST CERTIFICATES............................7
SECTION 3.4. REGISTRATION OF TRANSFER AND EXCHANGE OF TRUST CERTIFICATES.....7
SECTION 3.5. MUTILATED, DESTROYED, LOST OR STOLEN TRUST CERTIFICATES.........8
SECTION 3.6. PERSONS DEEMED CERTIFICATEHOLDERS...............................9
SECTION 3.7. ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.......9
SECTION 3.8. MAINTENANCE OF OFFICE OR AGENCY.................................9
SECTION 3.9. APPOINTMENT OF PAYING AGENT....................................10
ARTICLE IV
ACTIONS BY TRUSTEE............................10
SECTION 4.1. PRIOR NOTICE TO CERTIFICATEHOLDERS WITH RESPECT
TO CERTAIN MATTERS.....................................10
SECTION 4.2. ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN MATTERS...11
i
<PAGE>
Page
SECTION 4.3. ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO BANKRUPTCY........11
SECTION 4.4. RESTRICTIONS ON CERTIFICATEHOLDERS' POWER......................11
SECTION 4.5. MAJORITY CONTROL...............................................12
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES..........12
SECTION 5.1. ESTABLISHMENT OF TRUST ACCOUNT.................................12
SECTION 5.2. APPLICATIONS OF TRUST FUNDS....................................12
SECTION 5.3. METHOD OF PAYMENT..............................................13
SECTION 5.4. NO SEGREGATION OF MONEYS; NO INTEREST..........................13
SECTION 5.5. ACCOUNTING AND REPORTS TO THE NOTEHOLDERS,
CERTIFICATEHOLDERS, THE INTERNAL REVENUE
SERVICE AND OTHERS.........................................13
SECTION 5.6. SIGNATURE ON RETURNS; TAX MATTERS PARTNER......................14
ARTICLE VI
AUTHORITY AND DUTIES OF TRUSTEE.....................14
SECTION 6.1. GENERAL AUTHORITY..............................................14
SECTION 6.2. GENERAL DUTIES.................................................14
SECTION 6.3. ACTION UPON INSTRUCTION........................................14
SECTION 6.4. NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT OR
IN INSTRUCTIONS.............................................15
SECTION 6.5. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR INSTRUCTIONS.....16
SECTION 6.6. RESTRICTIONS...................................................16
ARTICLE VII
CONCERNING THE TRUSTEE........................16
SECTION 7.1. ACCEPTANCE OF TRUSTS AND DUTIES................................16
SECTION 7.2. FURNISHING OF DOCUMENTS........................................18
SECTION 7.3. REPRESENTATIONS AND WARRANTIES.................................18
SECTION 7.4. RELIANCE; ADVICE OF COUNSEL....................................18
SECTION 7.5. NOT ACTING IN INDIVIDUAL CAPACITY..............................19
SECTION 7.6. TRUSTEE NOT LIABLE FOR TRUST CERTIFICATES OR RECEIVABLES.......19
SECTION 7.7. TRUSTEE MAY NOT OWN NOTES......................................19
ii
<PAGE>
Page
ARTICLE VIII
COMPENSATION OF TRUSTEE.........................20
SECTION 8.1. TRUSTEE'S FEES AND EXPENSES....................................20
SECTION 8.2. INDEMNIFICATION................................................20
SECTION 8.3. PAYMENTS TO THE TRUSTEE........................................20
ARTICLE IX
TERMINATION OF TRUST AGREEMENT...................21
SECTION 9.1. TERMINATION OF TRUST AGREEMENT.................................21
ARTICLE X
SUCCESSOR TRUSTEES AND ADDITIONAL TRUSTEES............22
SECTION 10.1. ELIGIBILITY REQUIREMENTS FOR TRUSTEE..........................22
SECTION 10.2. RESIGNATION OR REMOVAL OF TRUSTEE.............................22
SECTION 10.3. SUCCESSOR TRUSTEE.............................................23
SECTION 10.4. MERGER OR CONSOLIDATION OF TRUSTEE............................23
SECTION 10.5. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.................24
ARTICLE XI
MISCELLANEOUS..............................25
SECTION 11.1. SUPPLEMENTS AND AMENDMENTS...................................25
SECTION 11.2. NO LEGAL TITLE TO TRUST ESTATE IN CERTIFICATEHOLDERS.........26
SECTION 11.3. LIMITATIONS ON RIGHTS OF OTHERS..............................26
SECTION 11.4. NOTICES......................................................26
SECTION 11.5. SEVERABILITY.................................................27
SECTION 11.6. SEPARATE COUNTERPARTS........................................27
SECTION 11.7. SUCCESSORS AND ASSIGNS.......................................27
SECTION 11.8. COVENANTS OF THE DEPOSITOR...................................27
SECTION 11.9. NO PETITION..................................................28
SECTION 11.10. NO RECOURSE..................................................28
SECTION 11.11. HEADINGS.....................................................28
SECTION 11.12. GOVERNING LAW................................................28
SECTION 11.13. ADMINISTRATOR................................................28
iii
<PAGE>
EXHIBITS
EXHIBIT A Form of Trust Certificate
EXHIBIT B Form of Certificate of Trust
iv
<PAGE>
TRUST AGREEMENT (as amended or supplemented from time to time, this
"AGREEMENT") dated as of March 1, 2000, between CNH RECEIVABLES 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. DEFINITIONS. Capitalized terms used herein and not
otherwise defined herein are defined in Appendix A to the Indenture, dated as of
the date hereof, between CNH Equipment Trust 2000-A and Harris Trust and Savings
Bank.
SECTION 1.2. OTHER DEFINITIONAL PROVISIONS. (a) 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.
(b) 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.
(c) 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".
(d) 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.
1
<PAGE>
ARTICLE II
ORGANIZATION
SECTION 2.1. NAME. The Trust created hereby shall be known as "CNH
Equipment Trust 2000-A", in which name the Trustee may conduct the business of
the Trust, make and execute contracts and other instruments on behalf of the
Trust and sue 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.
2
<PAGE>
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by this Agreement or the Basic
Documents.
SECTION 2.4. APPOINTMENT OF TRUSTEE. The Depositor hereby appoints the
Trustee as trustee of the Trust effective as of the date hereof, to have all the
rights, powers and duties set forth herein. Pursuant to a Co-Trustee Agreement,
dated as of the date hereof (the "CO-TRUSTEE AGREEMENT"), the Depositor shall
appoint The Bank of New York (Delaware) to serve as the trustee (the "DELAWARE
TRUSTEE") of the Trust in the State of Delaware for the sole purpose of
satisfying the requirement of Section 3807 of the Trust Statute that the Trust
have at least one trustee with a principal place of business in Delaware. The
Delaware Trustee shall have none of the rights, duties or liabilities of the
Trustee. The rights, duties and liabilities of the Delaware Trustee shall be
limited to those expressly set forth in the Co-Trustee Agreement. To the extent
that, at law or in equity, the Delaware Trustee has rights, duties (including
fiduciary duties) and liabilities relating to the Trust or the
Certificateholders, such rights, duties and liabilities are replaced by the
rights, duties and liabilities of the Delaware Trustee expressly set forth in
the Co-Trustee Agreement.
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 and the Co-Trustee Agreement (as defined in
Section 2.4) constitute the governing instrument of such business trust. It is
the intention of the parties hereto that, solely for income and franchise tax
purposes, until the Certificates are held by other than the Seller, the Trust
will be disregarded as an entity separate from its Owner and the Notes being
debt of the Seller. At such time that the Certificates are held by more than one
person, it is the intention of the parties hereto that, solely for income and
franchise tax purposes, the Trust shall be treated as a partnership, with the
assets of
3
<PAGE>
the partnership being the Receivables and other assets held by the Trust, the
partners of the partnership being the Certificateholders (including the Seller
in its capacity as recipient of distributions from the Spread Account), and the
Notes being debt of the partnership. The parties agree that, unless otherwise
required by appropriate tax authorities, until the Certificates are held by more
than one person the Trust will not file or cause to be filed annual or other
necessary returns, reports and other forms consistent with the characterization
of the Trust as an entity not separate from its Owner. Effective as of the date
hereof, the Trustee shall have all rights, powers and duties set forth herein
and in the Trust Statute with respect to accomplishing the purposes of the
Trust.
SECTION 2.7. LIABILITY OF THE CERTIFICATEHOLDERS. No Certificateholder
shall have any personal liability for any liability or obligation of the Trust.
SECTION 2.8. TITLE TO TRUST PROPERTY. Subject to the Lien granted in
the Indenture, legal title to all the Trust Estate shall be vested at all times
in the Trust as a separate legal entity except where applicable law in any
jurisdiction requires title to any part of the Trust Estate to be vested in a
trustee or trustees, in which case title shall be deemed to be vested in the
Trustee, a co-trustee and/or a separate trustee, as the case may be.
SECTION 2.9. SITUS OF TRUST. The Trust will be located and
administered in the State of New York. 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 New York; 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.
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(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 has
duly authorized such sale and assignment and deposit to the Trust by
all necessary corporate action; and the execution, delivery and
performance of this Agreement have been duly authorized by the
Depositor by all necessary corporate action.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under,
the certificate of incorporation or by-laws of the Depositor, or any
indenture, agreement or other instrument to which the Depositor is a
party or by which it is bound; or result in the creation or imposition
of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement or other instrument (other than pursuant to
the Basic Documents); or violate any law or, to the best of the
Depositor's knowledge, any order, rule or regulation applicable to the
Depositor of any court or of any Federal or State regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties.
(e) The Depositor has duly executed and delivered this
Agreement, and this Agreement constitutes a legal, valid and binding
obligation of the Depositor, enforceable in accordance with its terms,
except as enforceability may be subject to or limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and by general principles
of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
SECTION 2.11. FEDERAL INCOME TAX ALLOCATIONS; TAX TREATMENT. (a) 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:
(1) 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
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month that is allocable to the excess, if any, of the Initial
Certificate Balance over their initial aggregate issue price, and (ii)
any other amounts of income payable to the Certificateholders for such
month; and such sum of amounts specified in clauses (i) and (ii) 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
(2) 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 (1), subsequent net income shall first be allocated to make
up such shortfall before being allocated as provided in the preceding sentence.
Net losses of the Trust, if any, for any month as determined for Federal income
tax purposes (and each item of income, gain, loss and deduction entering into
the computation thereof) shall be allocated to the Depositor (or other holders
of interests in the Spread Account) to the extent the Depositor (or such
holders) are reasonably expected to bear the economic burden of such net losses,
and any remaining net losses shall be allocated among the remaining
Certificateholders as of the close of business on the last day of such month in
proportion to their ownership of principal amount of Trust Certificates on such
day. The Depositor is authorized to modify the allocations in this paragraph if
necessary or appropriate, in its sole discretion, for the allocations to fairly
reflect the economic income, gain or loss to the Depositor (or other holders of
interests in the Spread Account) or to the Certificateholders, or as otherwise
required by the Code. Notwithstanding anything provided in this Section 2.11, if
the Certificates are held solely by the Seller, the application of this Section
2.11 shall be disregarded.
(b) 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 other than the Seller, the Trust will
be disregarded as an entity separate from its owner. At such time that the Trust
Certificates are held by more than one person, it is the intent of the Seller,
Servicer and the Certificateholders that, for purposes of Federal income, State
and local income and franchise and any other income taxes measured in whole or
in part by income, the Trust will be treated as a partnership, the assets of
which are the assets held by the Trust, and the Certificateholders (including
the Depositor (and its transferees and assigns) in its capacity as recipient of
distributions from the Spread Account) will be treated as partners in that
partnership. The Depositor and the other Certificateholders, by
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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.
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 greater whole-dollar denominations in
excess thereof. The Trust Certificates shall be executed on behalf of the Trust
by manual or facsimile signature of an authorized officer of the Trustee. Trust
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be, when authenticated pursuant to Section 3.3,
validly issued and entitled to the benefits of this Agreement, notwithstanding
that such individuals or any of them shall have ceased to be so authorized prior
to the authentication and delivery of such Trust Certificates or did not hold
such offices at the date of authentication and delivery of such Trust
Certificates.
SECTION 3.3. AUTHENTICATION OF TRUST CERTIFICATES. Concurrently with
the sale of the Receivables to the Trust pursuant to the Sale and Servicing
Agreement, the Trustee shall cause the Trust Certificates in an aggregate
principal amount equal to the Initial Certificate Balance to be executed on
behalf of the Trust, authenticated and delivered to or upon the written order of
the Depositor, signed by its chairman of the board, its president or any vice
president, without further corporate action by the Depositor, in authorized
denominations. No Trust Certificate shall entitle its Holder to any benefit
under this Agreement, or shall be valid for any purpose, unless there shall
appear on such Trust Certificate a certificate of authentication substantially
in the form set forth in Exhibit A, executed by the Trustee 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.
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SECTION 3.4. REGISTRATION OF TRANSFER AND EXCHANGE OF TRUST
CERTIFICATES. The Trust shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 3.8, a register (the "CERTIFICATE REGISTER") in
which, subject to such reasonable regulations as it may prescribe, the Issuer
shall provide for the registration of Trust Certificates and of transfers and
exchanges of Trust Certificates. The Paying Agent shall be the "CERTIFICATE
REGISTRAR" for the purpose of registering Trust Certificates and the transfers
of Trust Certificates as herein provided. Upon any resignation of any
Certificate Registrar, the Depositor shall promptly appoint a successor or, if
it elects not to make such an appointment, assume the duties of the Certificate
Registrar.
Upon surrender for registration of transfer of any Trust Certificate
at the office or agency maintained pursuant to Section 3.8, if the requirements
of Section 8-401(l) of the UCC are met, the Trustee shall execute, authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Trust Certificates in authorized denominations of a like aggregate
principal amount.
At the option of a Holder, Trust Certificates may be exchanged for
other Trust Certificates of authorized denominations, of a like aggregate
principal amount, upon surrender of the Trust Certificates to be exchanged at
the office or agency maintained pursuant to Section 3.8. Whenever any Trust
Certificates are so surrendered for exchange, if the requirements of Section
8-401(l) of the UCC are met, the Trustee shall execute, authenticate and deliver
the Trust Certificates that the Certificateholder making the exchange is
entitled to receive.
All Trust Certificates issued upon any registration of transfer or
exchange of Trust Certificates shall be entitled to the same benefits under this
Agreement as the Trust Certificates surrendered upon such registration of
transfer or exchange.
Every Trust Certificate presented or surrendered for registration of
transfer or exchange shall be duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by, the Holder thereof or his attorney duly authorized
in writing. No transfer of a Trust Certificate shall be registered unless the
transferee shall have provided (i) an opinion of counsel that no registration is
required under the Securities Act of 1933, as amended, or applicable state laws,
and (ii) an Officer's Certificate as to compliance with Section 6.6 of the Sale
and Servicing Agreement. Each Trust Certificate surrendered for registration of
transfer or exchange shall be canceled and subsequently disposed of by the
Trustee in accordance with its customary practice.
No service charge shall be made to a Certificateholder for any
registration of transfer or exchange of Trust Certificates, but the Trustee or
the Certificate Registrar
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may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Trust Certificates.
The Trust Certificates and any beneficial interest in such Trust
Certificates may not be acquired by: (a) an employee benefit plan (as defined in
Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA,
(b) a plan described in Section 4975(e)(1) of the Code or (c) any entity whose
underlying assets include plan assets by reason of a plan's investment in the
entity (each a "BENEFIT PLAN"). By accepting and holding a Trust Certificate or
an interest therein, the Holder thereof shall be deemed to have represented and
warranted that it is not a Benefit Plan. The Trustee shall have no obligation to
determine whether or not a Holder of a Trust Certificate is or is not a Benefit
Plan.
SECTION 3.5. MUTILATED, DESTROYED, LOST OR STOLEN TRUST CERTIFICATES.
If: (a) any mutilated Trust Certificate shall be surrendered to the Certificate
Registrar, or if the Certificate Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of any Trust Certificate
(PROVIDED, that the Trustee shall not be required to verify the evidence
provided to it), and (b) there shall be delivered to the Certificate Registrar
and the Trustee such security or indemnity as may be required by them to hold
each of them harmless, then, in the absence of notice that such Trust
Certificate shall have been acquired by a bona fide purchaser, and provided that
the requirements of Section 8-405 of the UCC are met, the Trustee on behalf of
the Trust shall execute, authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Trust Certificate, a replacement
Trust Certificate of like tenor and denomination.
In connection with the issuance of any replacement Trust Certificate
under this Section, the Trustee and the Certificate Registrar may require the
payment by the Certificateholder of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
Any replacement Trust Certificate issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Trust Certificate shall
constitute conclusive evidence of ownership in the Trust, as if originally
issued, whether or not the mutilated, lost, stolen or destroyed Trust
Certificate shall be found at any time, and shall be entitled to all the
benefits of this Agreement.
SECTION 3.6. PERSONS DEEMED CERTIFICATEHOLDERS. Prior to due
presentation of a Trust Certificate for registration of transfer of any Trust
Certificate, the Trustee or the Certificate Registrar may treat the Person in
whose name any Trust Certificate shall be registered in the Certificate Register
(as of the day of determination) as the owner of such Trust Certificate for the
purpose of receiving distributions pursuant
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to Section 5.2 and for all other purposes whatsoever, and neither the Trustee
nor the Certificate Registrar shall be bound by any notice to the contrary.
SECTION 3.7. ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND
ADDRESSES. The Trustee shall furnish or cause to be furnished to the Servicer
and the Depositor, within 15 days after receipt by the Trustee of a request
therefor from the Servicer or the Depositor in writing, a list, in such form as
the Servicer or the Depositor may reasonably require, of the names and addresses
of the Certificateholders as of the most recent Record Date. If three or more
Certificateholders or one or more Holder(s) of Trust Certificates evidencing not
less than 25% of the Certificate Balance apply in writing to the Trustee, and
such application states that the applicants desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Trust Certificates and such application shall be accompanied by a copy of
the communication that such applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt of such application, afford
such applicants access during normal business hours to the current list of
Certificateholders. Each Holder, by receiving and holding a Trust Certificate,
shall be deemed to have agreed not to hold any of the Depositor, the Certificate
Registrar or the Trustee accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
SECTION 3.8. MAINTENANCE OF OFFICE OR AGENCY. The Trustee shall
maintain in the Borough of Manhattan, City of New York an office or offices or
agency or agencies where Trust Certificates may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Trustee in
respect of the Trust Certificates and the Basic Documents may be served. The
Trustee initially designated The Bank of New York, 101 Barclay Street, Floor
12E, New York, New York 10286, 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
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Paying Agent, the Trustee shall appoint a successor to act as Paying Agent
(which shall be a bank or trust company). The Trustee shall cause such successor
Paying Agent or any additional Paying Agent appointed by the Trustee to execute
and deliver to the Trustee an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Trustee that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all sums, if any,
held by it for payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders. The Paying Agent shall return all unclaimed funds to the
Trustee and upon removal of a Paying Agent such Paying Agent shall also return
all funds in its possession to the Trustee. The provisions of Sections 7.1, 7.3,
7.4 and 8.1 shall apply to the Trustee also in its role as Paying Agent, for so
long as the Trustee shall act as Paying Agent and, to the extent applicable, to
any other paying agent appointed hereunder. Any reference in this Agreement to
the Paying Agent shall include any co-paying agent unless the context requires
otherwise.
ARTICLE IV
ACTIONS BY TRUSTEE
SECTION 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;
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(e) the amendment, change or modification of the
Administration Agreement, except to cure any ambiguity or to amend or
supplement any provision in a manner, or add any provision, that would
not materially adversely affect the interests of the
Certificateholders; or
(f) the appointment pursuant to the Indenture of a successor
Note Registrar, Paying Agent or Indenture Trustee, or pursuant to this
Agreement of a successor Certificate Registrar, or the consent to the
assignment by the Note Registrar, Paying Agent or Indenture Trustee or
Certificate Registrar of its obligations under the Indenture or this
Agreement, as applicable.
SECTION 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.
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ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. ESTABLISHMENT OF TRUST ACCOUNT. The Trustee, for the
benefit of the Certificateholders, shall establish and maintain in the name of
the Trust an Eligible Deposit Account (the "CERTIFICATE DISTRIBUTION ACCOUNT"),
bearing a designation clearly indicating that the funds deposited therein are
held for the benefit of the Certificateholders.
The Trust shall possess all right, title and interest in all funds on
deposit from time to time in the Certificate Distribution Account and in all
proceeds thereof. Except as otherwise expressly provided herein, the Certificate
Distribution Account shall be under the sole dominion and control of the Trustee
for the benefit of the Certificateholders. If, at any time, the Certificate
Distribution Account ceases to be an Eligible Deposit Account, the Trustee (or
the Depositor on behalf of the Trustee, if the Certificate Distribution Account
is not then held by the Trustee or an affiliate thereof) shall, within 10
Business Days (or such longer period, not to exceed 30 calendar days, as to
which the Rating Agency Condition shall be satisfied), establish a new
Certificate Distribution Account as an Eligible Deposit Account and shall
transfer any cash and/or any investments to such new Certificate Distribution
Account.
SECTION 5.2. APPLICATIONS OF TRUST FUNDS. (a) On each Payment Date,
the Trustee will distribute to Certificateholders, on a pro rata basis, amounts
deposited in the Certificate Distribution Account pursuant to Sections 5.5, 5.6
and 5.7 of the Sale and Servicing Agreement.
(b) On each Payment Date, the Trustee shall send to each
Certificateholder the statement provided to the Trustee by the Servicer pursuant
to Section 5.10 of the Sale and Servicing Agreement.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to a Certificateholder, such tax shall reduce
the amount otherwise distributable to the Certificateholder in accordance with
this Section. The Trustee is hereby authorized and directed to retain from
amounts otherwise distributable to the Certificateholders sufficient funds for
the payment of any tax that is legally owed by the Trust (but such authorization
shall not prevent the Trustee from contesting any such tax in appropriate
proceedings, and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). The amount of any withholding tax imposed with
respect to a Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by the Trust. If there is a
possibility that withholding tax is payable with respect to a distribution (such
as a distribution to a non-U.S. Certificateholder), the Trustee may,
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in its sole discretion, withhold such amounts in accordance with this paragraph
(c). In the event that a Certificateholder wishes to apply for a refund of any
such withholding tax, the Trustee shall reasonably cooperate with such
Certificateholder in making such claim so long as such Certificateholder agrees
to reimburse the Trustee for any out-of-pocket expenses incurred.
SECTION 5.3. METHOD OF PAYMENT. Subject to Section 9.1(c),
distributions required to be made to Certificateholders on any Payment Date
shall be made to each Certificateholder of record on the preceding Record Date
either by wire transfer, in immediately available funds, to the account of such
Holder at a bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided to the Certificate Registrar appropriate
written instructions at least five Business Days prior to such Payment Date and
such Holder's Trust Certificates aggregate not less than $1,000,000, or, if not,
by check mailed to such Certificateholder at the address of such Holder
appearing in the Certificate Register.
SECTION 5.4. NO SEGREGATION OF MONEYS; NO INTEREST. Subject to
Sections 5.1 and 5.2, moneys received by the Trustee hereunder need not be
segregated in any manner except to the extent required by law or the Sale and
Servicing Agreement and may be deposited under such general conditions as may be
prescribed by law, and the Trustee shall not be liable for any interest thereon.
SECTION 5.5. ACCOUNTING AND REPORTS TO THE NOTEHOLDERS,
CERTIFICATEHOLDERS, THE INTERNAL REVENUE SERVICE AND OTHERS. The Depositor or,
if any Certificates are held by any Person other than the Depositor, the
Trustee, shall: (a) maintain (or cause to be maintained) the books of the Trust
on a calendar year basis on the accrual method of accounting, (b) deliver to
each Certificateholder, as may be required by the Code and applicable Treasury
Regulations, such information as may be required (including Schedule K-1) to
enable each Certificateholder to prepare its Federal, State and local income tax
returns, (c) file such tax returns relating to the Trust (including a
partnership information return on Internal Revenue Service Form 1065 or its
successor), and make such elections as may from time to time be required or
appropriate under any applicable State or Federal statute or rule or regulation
thereunder so as to maintain the Trust's characterization as a partnership for
Federal income tax purposes, (d) cause such tax returns to be signed in the
manner required by law and (e) collect or cause to be collected any withholding
tax as described in and in accordance with Section 5.2(c) with respect to income
or distributions to Certificateholders. The Trustee shall elect under Section
1278 of the Code to include in income currently any market discount that accrues
with respect to the Receivables and shall elect under Section 171 of the Code to
amortize any bond premium with respect to the Receivables. The Trustee shall not
make the election provided under Section 754 of the Code.
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SECTION 5.6. SIGNATURE ON RETURNS; TAX MATTERS PARTNER.
(a) The Depositor, or if any Certificates are held by any Person other
than the Depositor, the Trustee shall sign on behalf of the Trust the tax
returns of the Trust, unless applicable law requires a Certificateholder to sign
such documents, in which case such documents shall be signed by the Depositor.
(b) The Depositor shall be designated the "tax matters partner" of the
Trust pursuant to Section 6231(a)(7)(A) of the Code and applicable Treasury
Regulations.
ARTICLE VI
AUTHORITY AND DUTIES OF TRUSTEE
SECTION 6.1. GENERAL AUTHORITY. The Trustee is authorized and directed
to execute and deliver the Basic Documents to which the Trust is to be a party
and each certificate or other document attached as an exhibit to or contemplated
by the Basic Documents to which the Trust is to be a party, in each case in such
form as the Depositor shall approve as evidenced conclusively by the Trustee's
execution thereof, and, on behalf of the Trust, to 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
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exercised at any time by written instruction of the Certificateholders pursuant
to Article IV.
(b) The Trustee shall not be required to take any action hereunder or
under any Basic Document if the Trustee shall have reasonably determined, or
shall have been advised by counsel, that such action is likely to result in
liability on the part of the Trustee or is contrary to the terms hereof or of
any Basic Document or is otherwise contrary to law.
(c) Whenever the Trustee is unable to decide between alternative
courses of action permitted or required by this Agreement or any Basic Document,
the Trustee shall promptly give notice (in such form as shall be appropriate
under the circumstances) to the Certificateholders requesting instruction as to
the course of action to be adopted, and to the extent the Trustee acts in good
faith in accordance with any written instruction of the Certificateholders
received, the Trustee shall not be liable on account of such action to any
Person. If the Trustee shall not have received appropriate instruction within 10
days of such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such action, not
inconsistent with this Agreement or the Basic Documents, as it shall deem to be
in the best interests of the Certificateholders, and shall have no liability to
any Person for such action or inaction.
(d) In the event that the Trustee is unsure as to the application of
any provision of this Agreement or any Basic Document or any such provision is
ambiguous as to its application, or is, or appears to be, in conflict with any
other applicable provision, or in the event that this Agreement permits any
determination by the Trustee or is silent or is incomplete as to the course of
action that the Trustee is required to take with respect to a particular set of
facts, the Trustee may give notice (in such form as shall be appropriate under
the circumstances) to the Certificateholders requesting instruction and, to the
extent that the Trustee acts or refrains from acting in good faith in accordance
with any such instruction received, the Trustee shall not be liable, on account
of such action or inaction, to any Person. If the Trustee shall not have
received appropriate instruction within 10 days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action, not inconsistent with this Agreement or the
Basic Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action or
inaction.
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SECTION 6.4. NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT OR IN
INSTRUCTIONS. The Trustee shall not have any duty or obligation to manage, make
any payment with respect to, register, record, sell, dispose of or otherwise
deal with the Trust Estate, or to otherwise take or refrain from taking any
action under, or in connection with, any document contemplated hereby to which
the Trustee is a party, except as expressly provided by this Agreement or in any
document or written instruction received by the Trustee pursuant to Section 6.3;
and no implied duties or obligations shall be read into this Agreement or any
Basic Document against the Trustee. The Trustee shall have no responsibility for
filing any financing or continuation statement in any public office at any time
or to otherwise perfect or maintain the perfection of any security interest or
Lien granted to it hereunder or to prepare or file any Securities and Exchange
Commission filing for the Trust or to record this Agreement or any Basic
Document. The Trustee nevertheless agrees that it will, at its own cost and
expense, promptly take all action as may be necessary to discharge any Liens on
any part of the Trust Estate that result from actions by, or claims against, the
Trustee that are not related to the ownership or the administration of the Trust
Estate.
SECTION 6.5. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS. The Trustee shall not manage, control, use, sell, dispose of or
otherwise deal with any part of the Trust Estate except: (i) in accordance with
the powers granted to and the authority conferred upon the Trustee pursuant to
this Agreement, (ii) in accordance with the Basic Documents and (iii) in
accordance with any document or instruction delivered to the Trustee pursuant to
Section 6.3.
SECTION 6.6. RESTRICTIONS. The Trustee shall not take any action: (a)
that is inconsistent with the purposes of the Trust set forth in Section 2.3 or
(b) that, to the actual knowledge of the Trustee, would result in the Trust's
becoming taxable as a corporation for Federal income tax purposes. The
Certificateholders shall not direct the Trustee to take action that would
violate this Section.
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.1. ACCEPTANCE OF TRUSTS AND DUTIES. The Trustee accepts the
trusts hereby created and agrees to perform its duties hereunder with respect to
such trusts but only upon the terms of this Agreement. The Trustee also agrees
to disburse all moneys actually received by it constituting part of the Trust
Estate upon the terms of the Basic Documents and this Agreement. The Trustee
shall not be answerable or accountable hereunder or under any Basic Document
under any circumstances,
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except: (i) for its own willful misconduct or negligence or (ii) in the case of
the inaccuracy of any representation or warranty contained in Section 7.3
expressly made by the Trustee. In particular, but not by way of limitation (and
subject to the exceptions set forth in the preceding sentence):
(a) the Trustee shall not be liable for any error of judgment
made in good faith by a responsible officer of the Trustee unless it
is proved that the Trustee was negligent in ascertaining the pertinent
facts;
(b) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the
instructions of the Administrator, the Servicer or any
Certificateholder;
(c) no provision of this Agreement or any Basic Document
shall require the Trustee to expend or risk funds or otherwise incur
any financial liability in the performance of any of its rights or
powers hereunder or under any Basic Document, if the Trustee shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured or provided to it;
(d) under no circumstances shall the Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes;
(e) the Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Agreement or for the due execution
hereof by the Depositor or for the form, character, genuineness,
sufficiency, value or validity of any of the Trust Estate or for or in
respect of the validity or sufficiency of the Basic Documents, other
than the certificate of authentication on the Trust Certificates, and
the Trustee shall in no event assume or incur any liability, duty or
obligation to any Noteholder or to any Certificateholder, other than
as expressly provided for herein and in the Basic Documents;
(f) the Trustee shall not be liable for the default or
misconduct of the Administrator, the Seller, the Indenture Trustee or
the Servicer under any of the Basic Documents or otherwise and the
Trustee shall have no obligation or liability to perform the
obligations of the Trust under this Agreement or the Basic Documents
that are required to be performed by the Administrator under the
Administration Agreement, the Indenture Trustee under the Indenture or
the Servicer under the Sale and Servicing Agreement; and
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(g) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or
otherwise or in relation to this Agreement or any Basic Document, at
the request, order or direction of any of the Certificateholders
unless such Certificateholders have offered to the Trustee security or
indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Trustee therein or thereby.
The right of the Trustee to perform any discretionary act enumerated
in this Agreement or in any Basic Document shall not be construed as a
duty, and the Trustee shall not be answerable for other than its
negligence or willful misconduct in the performance of any such act.
SECTION 7.2. FURNISHING OF DOCUMENTS. The Trustee shall furnish to the
Certificateholders promptly upon receipt of a written request therefor, and at
the expense of the Certificateholders, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and any other
instruments furnished to the Trustee under the Basic Documents.
SECTION 7.3. REPRESENTATIONS AND WARRANTIES. The Trustee hereby
represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) it is a banking corporation duly organized and validly
existing in good standing under the laws of New York, 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,
(c) the execution and delivery of this Agreement, the
consummation of the transactions contemplated by this Agreement and
the fulfillment of the terms hereof do not conflict with, result in
any breach of any of the terms and provisions of, or constitute (with
or without notice or lapse of time) a default under, the certificate
of incorporation or by-laws of the Trustee, or any indenture,
agreement or other instrument to which the Trustee is a party or by
which it is bound; or violate any Federal or state law governing the
banking or trust powers of the Trustee; or, to the best of the
Trustee's knowledge, violate any order, rule or regulation applicable
to the Trustee of any court or of any Federal or state regulatory
body, administrative agency
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or other governmental instrumentality having jurisdiction over the Trustee or
its properties, and
(d) this Agreement, assuming due authorization, execution and
delivery by the Depositor, constitutes a valid, legal and binding
obligation of the Trustee, enforceable against it in accordance with
the terms hereof subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally and to general principles of equity,
regardless of whether such enforcement is considered in a proceeding
in equity or at law.
SECTION 7.4. RELIANCE; ADVICE OF COUNSEL. (a) Except to the extent
otherwise provided in Section 7.1, the Trustee shall incur no liability to
anyone in acting upon any signature, instrument, notice, resolution, request,
consent, order, certificate, report, opinion, bond or other document or paper
believed by it to be genuine and believed by it to be signed by the proper party
or parties. The Trustee may accept a certified copy of a resolution of the board
of directors or other governing body of any party as conclusive evidence that
such resolution has been duly adopted by such body and that the same is in full
force and effect. As to any fact or matter the method of the determination of
which is not specifically prescribed herein, the Trustee may for all purposes
hereof rely on a certificate, signed by the president, any vice president, the
treasurer or other authorized officers of the relevant party as to such fact or
matter, and such certificate shall constitute full protection to the Trustee for
any action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the Basic
Documents, the Trustee: (i) may act directly or through its agents or attorneys
pursuant to agreements entered into with any of them, and the Trustee shall not
be liable for the conduct or misconduct of such agents or attorneys if such
agents or attorneys shall have been selected by the Trustee with reasonable
care, and (ii) may consult with counsel, accountants and other skilled Persons
to be selected with reasonable care and employed by it. The Trustee shall not be
liable for anything done, suffered or omitted in good faith by it in accordance
with the written opinion or advice of any such counsel, accountants or other
such Persons and which opinion or advice states that such action is not contrary
to this Agreement or any Basic Document.
SECTION 7.5. NOT ACTING IN INDIVIDUAL CAPACITY. Except as provided in
this Article VII, in accepting the trusts hereby created The Bank of New York
acts solely as Trustee hereunder and not in its individual capacity and all
Persons having any
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claim against the Trustee by reason of the transactions contemplated by this
Agreement or any Basic Document shall look only to the Trust Estate for payment
or satisfaction thereof.
SECTION 7.6. TRUSTEE NOT LIABLE FOR TRUST CERTIFICATES OR RECEIVABLES.
The recitals contained herein and in the Certificates (other than the signature
and counter-signature of the Trustee on the Trust Certificates) shall be taken
as the statements of the Depositor, and the Trustee assumes no responsibility
for the correctness thereof. The Trustee makes no representations as to the
validity or sufficiency of this Agreement, of any Basic Document, of the Trust
Certificates (other than the signature and countersignature, if any, of the
Trustee on the Trust Certificates) or of the Notes, or of any Receivable or
related documents. The Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Receivable, or the perfection and priority of any security interest created
by any Receivable in any of the Financed Equipment or the maintenance of any
such perfection and priority, or for or with respect to the sufficiency of the
Trust Estate or its ability to generate the payments to be distributed to
Certificateholders under this Agreement or the Noteholders under the Indenture,
including: (a) the existence, condition and ownership of any Financed Equipment,
(b) the existence and enforceability of any insurance thereon, (c) the existence
and contents of any Receivable on any computer or other record thereof, (d) the
validity of the assignment of any Receivable to the Trust or of any intervening
assignment, (e) the completeness of any Receivable, (f) the performance or
enforcement of any Receivable, and (g) the compliance by the Depositor or the
Servicer with any warranty or representation made under any Basic Document or in
any related document or the accuracy of any such warranty or representation or
any action of the Administrator, the Indenture Trustee or the Servicer or any
subservicer taken in the name of the Trustee.
SECTION 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
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upon before the date hereof between the Depositor and the Trustee, and the
Trustee shall be entitled to be reimbursed by the Depositor for its other
reasonable expenses hereunder, including the reasonable compensation, expenses
and disbursements of such agents, representatives, experts and counsel as the
Trustee may employ in connection with the exercise and performance of its rights
and its duties hereunder.
SECTION 8.2. INDEMNIFICATION. The Depositor shall be liable as primary
obligor for, and shall indemnify the Trustee and its successors, assigns, agents
and servants (collectively, the "INDEMNIFIED PARTIES") from and against, any and
all liabilities, obligations, losses, damages, taxes, claims, actions and suits,
and any and all reasonable costs, expenses and disbursements (including
reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "EXPENSES"), which may at any time be imposed on, incurred by or
asserted against the Trustee or any other Indemnified Party in any way relating
to or arising out of this Agreement, the Basic Documents, the Trust Estate, the
administration of the Trust Estate or the action or inaction of the Trustee
hereunder, except only that the Depositor shall not be liable for or required to
indemnify an Indemnified Party from and against Expenses arising or resulting
from: (a) such Indemnified Party's willful misconduct or negligence or (b) with
respect to the Trustee, the inaccuracy of any representation or warranty
contained in Section 7.3 expressly made by the Trustee. The indemnities
contained in this Section shall survive the resignation or termination of the
Trustee or the termination of this Agreement. In any event of any claim, action
or proceeding for which indemnity will be sought pursuant to this Section, the
Trustee's choice of legal counsel shall be subject to the approval of the
Depositor, which approval shall not be unreasonably withheld.
SECTION 8.3. PAYMENTS TO THE TRUSTEE. Any amounts paid to the Trustee
pursuant to this Article VIII shall be deemed not to be a part of the Trust
Estate immediately after such payment. The Trustee shall also be entitled to
interest on all advances at a rate equal to: (a) the rate publicly announced by
The 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) The Trust shall
dissolve 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 dissolve or terminate this
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Agreement or the Trust, (y) entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of the
Trust or Trust Estate or (z) otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) Except as provided in Section 9.1(a), neither the Depositor nor
any Certificateholder shall be entitled to dissolve, revoke or terminate the
Trust.
(c) Notice of any dissolution of the Trust, specifying the Payment
Date upon which the Certificateholders shall surrender their Trust Certificates
to the Paying Agent for payment of the final distribution and cancellation,
shall be given promptly by the Trustee by letter to Certificateholders mailed
within five Business Days of receipt of notice of such dissolution from the
Servicer given pursuant to Section 9.1(c) of the Sale and Servicing Agreement
stating: (i) the Payment Date upon which final payment of the Trust Certificates
shall be made upon presentation and surrender of the Trust Certificates at the
office of the Paying Agent therein designated, (ii) the amount of any such final
payment and (iii) that the Record Date otherwise applicable to such Payment Date
is not applicable, payments being made only upon presentation and surrender of
the Trust Certificates at the office of the Paying Agent therein specified. The
Trustee shall give such notice to the Certificate Registrar (if other than the
Trustee) and the Paying Agent at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Trust Certificates,
the Paying Agent shall cause to be distributed to Certificateholders amounts
distributable on such Payment Date pursuant to Section 5.2.
In the event that all of the Certificateholders shall not surrender
their Trust Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Trustee shall give a second
written notice to the remaining Certificateholders to surrender their Trust
Certificates for cancellation and to receive the final distribution with respect
thereto. If within one year after the second notice all the Trust Certificates
shall not have been surrendered for cancellation, the Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their Trust
Certificates, and the cost thereof shall be paid out of the funds and other
assets that shall remain subject to this Agreement. Any funds remaining in the
Trust after exhaustion of such remedies shall be distributed by the Trustee to
the Depositor.
(d) Upon the dissolution of the Trust and the payment of all
liabilities of the Trust in accordance with applicable law, 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
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Statute, at which time the Trust and this Agreement (other than Article VIII)
shall terminate.
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 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 Moody's. 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. At all times, at least one Trustee of the Trust shall satisfy the
requirements of Section 3807(a) of the Trust Statute. In case at any time the
Trustee shall cease to be eligible in accordance with this Section, the Trustee
shall resign immediately in the manner and with the effect specified in Section
10.2.
SECTION 10.2. RESIGNATION OR REMOVAL OF TRUSTEE. The Trustee may at
any time resign and be discharged from the trusts hereby created by giving
written notice thereof to the Administrator. Upon receiving such notice of
resignation, the Administrator shall promptly appoint a successor Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor Trustee. If no
successor Trustee shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
If at any time the Trustee shall cease to be eligible in accordance
with Section 10.1 and shall fail to resign after written request therefor by the
Administrator, or if at any time the Trustee shall be legally unable to act, or
shall be adjudged bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Administrator may remove the Trustee. If
the Administrator shall remove the Trustee under the authority of the preceding
sentence, the Administrator shall promptly appoint a
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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.
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
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further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; AND PROVIDED FURTHER, that the Trustee shall mail
notice of such merger or consolidation to the Rating Agencies.
SECTION 10.5. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust or any Financed Equipment may at the time be located, the
Administrator and the Trustee acting jointly shall have the power and may
execute and deliver all instruments to appoint one or more Person(s) approved by
the Trustee to act as co-trustee(s), jointly with the Trustee, or separate
trustee(s), of all or any part of the Trust Estate, and to vest in such
Person(s), in such capacity and for the benefit of the Certificateholders, such
title to the Trust Estate, or any part thereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Administrator and the Trustee may consider necessary or desirable. If the
Administrator shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, the Trustee alone shall have the power to
make such appointment. No co-trustee or separate trustee under this Agreement
shall be required to meet the terms of eligibility as a successor trustee
pursuant to Section 10.1 and no notice of the appointment of any co-trustee or
separate trustee shall be required pursuant to Section 10.3.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act(s) are to be performed, the
Trustee shall be incompetent or unqualified to perform such act(s), in
which event such rights, powers, duties and obligations (including the
holding of title to the Trust Estate or any portion thereof in any
such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under
this Agreement; and
(iii) the Administrator and the Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or
co-trustee.
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Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Each
such instrument shall be filed with the Trustee and a copy thereof given to the
Administrator.
Any separate trustee or co-trustee may at any time appoint the Trustee
as its agent or attorney-in-fact with full power and authority, to the extent
not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
The Trustee shall have no obligation to determine whether a co-trustee
or separate trustee is legally required in any jurisdiction in which any part of
the Trust Estate may be located.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. SUPPLEMENTS AND AMENDMENTS. This Agreement may be
amended from time to time by a written amendment duly executed and delivered by
the Depositor and the Trustee, with prior written notice to the Rating Agencies,
without the consent of any of the Noteholders or the Certificateholders, to cure
any ambiguity, to correct or supplement any provisions in this Agreement or for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions in this Agreement or of modifying in any manner the rights
of the Noteholders or the Certificateholders; PROVIDED, HOWEVER, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Noteholder or Certificateholder.
This Agreement may also be amended from time to time by the Depositor
and the Trustee, with prior written notice to the Rating Agencies, with the
written consent of (x) Noteholders holding Notes evidencing not less than a
majority of the Note Balance and (y) the Holders of Certificates evidencing not
less than a majority
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of the Certificate Balance, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Noteholders or the
Certificateholders; PROVIDED, HOWEVER, that no such amendment shall: (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that shall be
required to be made for the benefit of the Noteholders or the Certificateholders
or (b) reduce the aforesaid percentage of the Outstanding Amount and the
Certificate Balance required to consent to any such amendment, without the
consent of the holders of all the outstanding Notes and Certificates.
Promptly after the execution of any such amendment or consent (or, in
the case of the Rating Agencies, 10 days prior thereto), the Trustee shall
furnish written notification of the substance of such amendment or consent to
each Certificateholder, the Indenture Trustee and each of the Rating Agencies.
It shall not be necessary for the consent of Certificateholders, the
Noteholders or the Indenture Trustee pursuant to this Section to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of Certificateholders provided for in this
Agreement or in any other Basic Document) and of evidencing the authorization of
the execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Trustee may prescribe.
Promptly after the execution of any amendment to the Certificate of
Trust, the Trustee shall cause the filing of such amendment with the Secretary
of State.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Trustee shall be entitled to receive and rely upon an
Opinion of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement and that all conditions precedent to the execution
and delivery of such amendment have been satisfied. The Trustee may, but shall
not be obligated to, enter into any such amendment that affects the Trustee's
own rights, duties or immunities under this Agreement or otherwise.
SECTION 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
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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 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 CNH Receivables Inc., 475 Half Day Road,
Lincolnshire, Illinois 60069, Attention: Corporate Secretary; or, as to each
party, at such other address as shall be designated by such party in a written
notice to the other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at
the address of such Holder as shown in the Certificate Register. Any notice
so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
SECTION 11.5. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 11.6. SEPARATE COUNTERPARTS. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.7. SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor and its successors, the Trustee and its successors and each
Certificateholder and its successors and permitted assigns, all as herein
provided. Any request, notice,
29
<PAGE>
direction, consent, waiver or other instrument or action by an Certificateholder
shall bind the successors and assigns of such Certificateholder.
SECTION 11.8. COVENANTS OF THE DEPOSITOR. If: (a) the Certificate
Balance shall be reduced by Realized Losses and (b) any litigation with claims
in excess of $1,000,000 to which the Depositor is a party that shall be
reasonably likely to result in a material judgment against the Depositor that
the Depositor will not be able to satisfy shall be commenced by a
Certificateholder during the period beginning nine months following the
commencement of such litigation and continuing until such litigation is
dismissed or otherwise terminated (and, if such litigation has resulted in a
final judgment against the Depositor, such judgment has been satisfied), the
Depositor shall not pay any dividend to Credit, or make any distribution on or
in respect of its capital stock to Credit, or repay the principal amount of any
indebtedness of the Depositor held by Credit, unless: (i) after giving effect to
such payment, distribution or repayment, the Depositor's liquid assets shall not
be less than the amount of actual damages claimed in such litigation or (ii) the
Rating Agency Condition shall have been satisfied with respect to any such
payment, distribution or repayment. The Depositor will not at any time institute
against the Trust any bankruptcy proceedings under any United States Federal or
State bankruptcy or similar law in connection with any obligations relating to
the Trust Certificates, the Notes, the Trust Agreement or any of the Basic
Documents.
SECTION 11.9. NO PETITION. The Trustee on behalf of the Trust, by
entering into this Agreement, each Certificateholder, by accepting a Trust
Certificate, and the Indenture Trustee and each 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.
30
<PAGE>
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.
31
<PAGE>
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/ Erwin Soriano
--------------------------------------
Name: Erwin Soriano
Title: Assistant Treasurer
CNH RECEIVABLES INC.,
as Depositor
By: /s/ Ralph A. Than
--------------------------------------
Name: Ralph A. Than
Title: Vice President and
Treasurer
S-1
<PAGE>
EXHIBIT A
to Trust Agreement
FORM OF TRUST CERTIFICATES
REGISTERED $___________(1)
NUMBER R-_______
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF A BENEFIT
PLAN (AS DEFINED BELOW).
CNH EQUIPMENT TRUST 2000-A
_____% ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes a pool of retail installment sale contracts secured
by new and used agricultural and construction equipment and sold to the Trust by
CNH Receivables Inc.
(This Trust Certificate does not represent an interest in or obligation of
CNH Receivables Inc., Case Credit Corporation or Case Corporation, or any of
their respective affiliates, except to the extent described below.)
THIS CERTIFIES THAT CNH RECEIVABLES INC. is the registered owner of a
___________ DOLLAR ($__________) nonassessable, fully-paid, fractional undivided
interest in the CNH Equipment Trust 2000-A (the "TRUST") formed by CNH
Receivables Inc., a Delaware corporation (the "SELLER").
The Trust was created pursuant to a Trust Agreement dated as of March ____,
2000 (the "TRUST AGREEMENT"), between 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 March __, 2000, among the Trust, the Seller and Case
Credit Corporation, as servicer (the "SERVICER"), as applicable. This
Certificate is one of the duly authorized Certificates
- --------
(1) Denominations of $1,000 and in greater whole-dollar denominations in excess
thereof.
A-1
<PAGE>
designated as "______% Asset Backed Certificates" (herein called the "TRUST
CERTIFICATES"). Issued under the: (a) Indenture dated as of March __, 2000,
between the Trust and Harris Trust and Savings Bank, as Indenture Trustee, are
notes designated as "______% Class A-1 Asset Backed Notes," "______% Class A-2
Asset Backed Notes," "______% Class A-3 Asset Backed Notes," "______% Class A-4
Asset Backed Notes" and "______% Class B Asset Backed Notes" (collectively, the
"NOTES"). This Trust Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement the
holder of this Trust Certificate by virtue of the acceptance hereof assents and
by which holder is bound.
Each Holder of this Trust Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Trust Certificate are
subordinated to the rights of the Noteholders as described in the Sale and
Servicing Agreement and the Indenture.
It is the intent of the Seller, Servicer and the Certificateholders
that, for purposes of Federal income, State and local income and franchise and
any other income taxes measured in whole or in part by income, until the Trust
Certificates are held by other than the Seller, the Trust will be disregarded as
an entity separate from its owner. At such time that the Trust Certificates are
held by more than one person, it is the intent of the Seller, Servicer and the
Certificateholders that, for purposes of Federal income, State and local income
and franchise and any other income taxes measured in whole or in part by income,
the Trust will be treated as a partnership, the assets of which are the assets
held by the Trust, and the Certificateholders (including the Depositor (and its
transferees and assigns) in its capacity as recipient of distributions from the
Spread Account) will be treated as partners in that partnership. The Depositor
and the other Certificateholders, by acceptance of a Trust Certificate, agree to
treat, and to take no action inconsistent with the treatment of, the Trust
Certificates as such for tax purposes.
Each Certificateholder, by its acceptance of a Trust Certificate,
covenants and agrees that such Certificateholder will not at any time institute
against the Seller or the Trust, or join in any institution against the Seller
or the Trust of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States Federal or
State bankruptcy or similar law in connection with any obligations relating to
the Trust Certificates, the Notes, the Trust Agreement or any of the Basic
Documents.
The Trust Certificates do not represent an obligation of, or an interest
in, the Seller, the Servicer, Case Credit Corporation, the Trustee or any
affiliates of any of
A-2
<PAGE>
them and no recourse may be had against such parties or their assets, except as
may be expressly set forth or contemplated herein or in the Trust Agreement or
the Basic Documents.
The Certificates may not be acquired by or for the account of: (i) an
employee benefit plan (as defined in Section 3(3) of ERISA) that is subject to
the provisions of Title 1 of ERISA, (ii) a plan described in Section 4975(e)(1)
of the Internal Revenue Code of 1986, as amended, or (iii) any entity whose
underlying assets include plan assets by reason of a plan's investment in the
entity (a "BENEFIT PLAN"). By accepting and holding this Certificate, each of
the Holder shall be deemed to have represented and warranted that it is not a
Benefit Plan.
Unless the certificate of authentication hereon shall have been executed
by an authorized officer of the Trustee, by manual signature, this Trust
Certificate shall not entitle the holder hereof to any benefit under the Trust
Agreement or the Sale and Servicing Agreement or be valid for any purpose.
This Trust Certificate shall be construed in accordance with the laws of
the State of Delaware, without reference to its conflict of law provisions, and
the obligations, rights and remedies of the parties hereunder shall be
determined in accordance with such laws.
A-3
<PAGE>
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.
CNH EQUIPMENT TRUST 2000-A
By: THE BANK OF NEW YORK,
not in its individual capacity, but
solely as Trustee
By:__________________________________________
Name:_____________________________________
Title:_____________________________________
A-4
<PAGE>
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 Officer
Date: March __, 2000
A-5
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE
- -------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
- -------------------------------------------------------------------------------
the within Trust Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
- ------------------------------------------------------------------ Attorney to
transfer said Trust Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated: *
------------------------------------
Signature Guaranteed:
------------------------------------*
*NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Trust Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
A-6
<PAGE>
EXHIBIT B
to Trust Agreement
CERTIFICATE OF TRUST OF
CNH EQUIPMENT TRUST 2000-A
This Certificate of Trust of CNH EQUIPMENT TRUST 2000-A (the "TRUST") is
being duly executed and filed by The Bank of New York, a New York banking
corporation, and 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 sec. 3801 ET SEQ.) (the "Act").
1. NAME. The name of the trust formed hereby is CNH EQUIPMENT
TRUST 2000-A.
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), White Clay
Center, Newark, Delaware 19711.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of
Trust in accordance with Section 3811(a)(1) of the Act.
THE BANK OF NEW YORK,
not in its individual capacity, but solely
as trustee under a Trust Agreement dated
as of March __, 2000
By: _______________________________________
Name: _________________________________
Title: ________________________________
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity, but solely
as co-trustee under a Co-Trustee Agreement,
dated as of March __, 2000
By: _______________________________________
Name: _________________________________
Title: ________________________________
A-1
----------------------------------------------------------------------
CNH EQUIPMENT TRUST 2000-A
SALE AND SERVICING AGREEMENT
among
CNH EQUIPMENT TRUST 2000-A,
as Issuer,
and
CNH RECEIVABLES INC.,
as Seller,
and
CASE CREDIT CORPORATION,
as Servicer.
Dated as of March 1, 2000
----------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I Definitions.................................................1
SECTION 1.1. Definitions..............................................1
SECTION 1.2. Other Definitional Provisions............................1
ARTICLE II Conveyance of Receivables...................................2
SECTION 2.1. Conveyance of Initial Receivables........................2
SECTION 2.2. Conveyance of Subsequent Receivables.....................3
ARTICLE III The Receivables.............................................6
SECTION 3.1. Representations and Warranties of Seller.................6
SECTION 3.2. Repurchase upon Breach...................................7
SECTION 3.3. Custody of Receivable Files..............................8
SECTION 3.4. Duties of Servicer as Custodian..........................9
SECTION 3.5. Instructions; Authority To Act...........................9
SECTION 3.6. Custodian's Indemnification..............................9
SECTION 3.7. Effective Period and Termination........................10
ARTICLE IV Administration and Servicing of Receivables................10
SECTION 4.1. Duties of Servicer......................................10
SECTION 4.2. Collection and Allocation of Receivable Payments........11
SECTION 4.3. Realization upon Receivables............................11
SECTION 4.4. Maintenance of Security Interests in Financed Equipment.12
SECTION 4.5. Covenants of Servicer...................................12
SECTION 4.6. Purchase of Receivables upon Breach.....................12
SECTION 4.7. Servicing Fee...........................................13
SECTION 4.8. Servicer's Certificate..................................13
SECTION 4.9. Annual Statement as to Compliance; Notice of Default....13
SECTION 4.10. Annual Independent Certified Public Accountants' Report.13
SECTION 4.11. Access to Certain Documentation and Information
Regarding Receivables...................................14
SECTION 4.12. Servicer Expenses.......................................14
SECTION 4.13. Appointment of Subservicer..............................14
ARTICLE V Distributions: Spread Account; Statements to
Certificateholders and Noteholders.........................15
SECTION 5.1. Establishment of Trust Accounts.........................15
SECTION 5.2. Collections.............................................17
SECTION 5.3. Application of Collections..............................18
SECTION 5.4. Additional Deposits.....................................18
SECTION 5.5. Distributions...........................................18
-i-
<PAGE>
Page
SECTION 5.6. Spread Account..........................................19
SECTION 5.7. Pre-Funding Account.....................................21
SECTION 5.8. Negative Carry Account..................................21
SECTION 5.9. Principal Supplement Account............................22
SECTION 5.10. Statements to Certificateholders and Noteholders........22
SECTION 5.11. Net Deposits............................................24
ARTICLE VI The Seller.................................................24
SECTION 6.1. Representations of Seller...............................24
SECTION 6.2. Corporate Existence.....................................25
SECTION 6.3. Liability of Seller; Indemnities........................26
SECTION 6.4. Merger or Consolidation of, or Assumption of the
Obligations of, Seller..................................27
SECTION 6.5. Limitation on Liability of Seller and Others............27
SECTION 6.6. Seller May Own Certificates or Notes....................28
ARTICLE VII The Servicer...............................................28
SECTION 7.1. Representations of Servicer.............................28
SECTION 7.2. Indemnities of Servicer.................................30
SECTION 7.3. Merger or Consolidation of, or Assumption of the
Obligations of, Servicer................................31
SECTION 7.4. Limitation on Liability of Servicer and Others..........32
SECTION 7.5. Case Credit Not to Resign as Servicer...................32
SECTION 7.6. Servicer to Act as Administrator........................33
ARTICLE VIII Default....................................................33
SECTION 8.1. Servicer Default........................................33
SECTION 8.2. Appointment of Successor Servicer.......................34
SECTION 8.3. Notification to Noteholders and Certificateholders......35
SECTION 8.4. Waiver of Past Defaults.................................35
ARTICLE IX Termination................................................36
SECTION 9.1. Optional Purchase of All Receivables....................36
ARTICLE X Miscellaneous Provisions...................................37
SECTION 10.1. Amendment...............................................37
SECTION 10.2. Protection of Title to Trust............................38
SECTION 10.3. Notices.................................................41
SECTION 10.4. Assignment..............................................41
SECTION 10.5. Limitations on Rights of Others.........................41
SECTION 10.6. Severability............................................41
ii
<PAGE>
Page
SECTION 10.7. Separate Counterparts......................................42
SECTION 10.8. Headings...................................................42
SECTION 10.9. Governing Law..............................................42
SECTION 10.10. Assignment to Indenture Trustee............................42
SECTION 10.11. Nonpetition Covenants......................................42
SECTION 10.12. Limitation of Liability of Trustee and Indenture Trustee...43
iii
<PAGE>
EXHIBITS
EXHIBIT A Form of Noteholder's Statement Pursuant to Section 5.10(a)
EXHIBIT B Form of Certificateholder's Statement Pursuant to Section 5.10(a)
EXHIBIT C Form of Servicer's Certificate
EXHIBIT D Form of Second-Tier Case Assignment
EXHIBIT E Form of Second-Tier Case Subsequent Transfer Assignment
EXHIBIT F Form of Accountants' Letter in Connection with Second-Tier Case
Subsequent Transfer Assignment
iv
<PAGE>
SALE AND SERVICING AGREEMENT (as amended or otherwise modified, this
"AGREEMENT") dated as of March 1, 2000, among CNH EQUIPMENT TRUST 2000-A, a
Delaware business trust (the "Issuer"), CNH RECEIVABLES INC., a Delaware
corporation (the "Seller"), and CASE CREDIT CORPORATION, a Delaware corporation
(the "Servicer").
RECITALS
WHEREAS, the Issuer desires to purchase a portfolio of Contracts
purchased or originated by Case Credit Corporation ("Case Credit"), in the
ordinary course of business and sold to the Seller on a monthly basis pursuant
to the Liquidity Receivables Purchase Agreement and/or the Purchase Agreement
dated the date hereof between Case Credit and the Seller;
WHEREAS, the Seller is willing to sell such Contracts to the Issuer;
and
WHEREAS, Case Credit is willing to service such Contracts.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. Capitalized terms used herein and not
otherwise defined herein are defined in Appendix A to the Indenture, dated as of
the date hereof, between CNH Equipment Trust 2000-A and Harris Trust and Savings
Bank.
SECTION 1.2. OTHER DEFINITIONAL PROVISIONS. (a) 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.
(b) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto, 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 as 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
1
<PAGE>
accounting principles, the definitions contained in this Agreement or in any
such certificate or other document shall control.
(c) 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, Schedule and Exhibit
references contained in this Agreement are references to Sections, Schedules and
Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including, without limitation,".
(d) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.1. CONVEYANCE OF INITIAL RECEIVABLES. In consideration of the
Issuer's delivery to or upon the order of the Seller on the Closing Date of the
net proceeds from the sale of the Notes and the Certificates and the other
amounts to be distributed from time to time to the Seller in accordance with
this Agreement, the Seller does hereby sell, transfer, assign, set over and
otherwise convey to the Issuer, without recourse (subject to the obligations
herein), all of its right, title and interest in, to and under the following
(collectively, the "INITIAL SECOND-TIER ASSETS"):
(a) the Initial Receivables, including all documents
constituting chattel paper included therewith, and all obligations of
the Obligors thereunder, including all moneys paid thereunder on or
after the Initial Cutoff Date;
(b) the security interests in the Financed Equipment granted
by Obligors pursuant to the Initial Receivables and any other interest
of the Seller in such Financed Equipment;
(c) any proceeds with respect to the Initial Receivables from
claims on insurance policies covering Financed Equipment or Obligors;
(d) the Liquidity Receivables Purchase Agreement (only with
respect to Owned Contracts included in the Initial Receivables) and the
Purchase Agreement, including the right of the Seller to cause Case
Credit to repurchase Initial Receivables from the Seller under the
circumstances described therein;
2
<PAGE>
(e) any proceeds from recourse to Dealers with respect to the
Initial Receivables other than any interest in the Dealers' reserve
accounts maintained with Case Credit or with NH Credit;
(f) any Financed Equipment that shall have secured an Initial
Receivable and that shall have been acquired by or on behalf of the
Trust;
(g) all funds on deposit from time to time in the Trust
Accounts, including the Spread Account Initial Deposit, any Principal
Supplement Account Deposit, the Negative Carry Account Initial Deposit
and the Pre-Funded Amount, and in all investments and proceeds thereof
(including all income thereon); and
(h) any True Lease Equipment that is subject to any Initial
Receivable; and
(i) the proceeds of any and all of the foregoing.
The above assignment shall be evidenced by a duly executed written assignment in
substantially the form of Exhibit D (the "SECOND-TIER CASE ASSIGNMENT"). The
Purchase Price for the Initial Receivables shall equal $722,183,687.46.
SECTION 2.2. CONVEYANCE OF SUBSEQUENT RECEIVABLES. (a) Subject to the
conditions set forth in clause (b) below, in consideration of the Trustee's
delivery on the related Subsequent Transfer Date to or upon the order of the
Seller of the amount described in Section 5.7(a) to be delivered to the Seller,
the Seller does hereby sell, transfer, assign, set over and otherwise convey to
the Issuer, without recourse (subject to the obligations herein), all of its
right, title and interest in, to and under (collectively, the "SUBSEQUENT
SECOND-TIER ASSETS"; and together with the Initial Second-Tier Assets, the
"Second-Tier Assets"):
(i) the Subsequent Receivables listed on Schedule A to the
related Second-Tier Case Subsequent Transfer Assignment, including all
documents constituting chattel paper included therewith, and all
obligations of the Obligors thereunder, including all moneys paid
thereunder on or after the related Subsequent Cutoff Date;
(ii) the security interests in the Financed Equipment granted
by Obligors pursuant to such Subsequent Receivables and any other
interest of the Seller in such Financed Equipment;
(iii) any proceeds with respect to such Subsequent Receivables
from claims on insurance policies covering Financed Equipment or
Obligors;
3
<PAGE>
(iv) the Liquidity Receivables Purchase Agreement (only with
respect to Subsequent Receivables purchased by the Seller pursuant to
that Agreement) and the Purchase Agreement, including the right of the
Seller to cause Case Credit to repurchase Subsequent Receivables from
the Seller under the circumstances described therein;
(v) any proceeds with respect to such Subsequent Receivables
from recourse to Dealers other than any interest in the Dealers'
reserve accounts maintained with Case Credit or with NH Credit;
(vi) any Financed Equipment that shall have secured any such
Subsequent Receivable and that shall have been acquired by or on behalf
of the Trust;
(vii) any True Lease Equipment that is subject to any
Subsequent Receivable; and
(viii) the proceeds of any and all of the foregoing.
(b) The Seller shall transfer to the Issuer the Subsequent Receivables
and the other property and rights related thereto described in clause (a) only
upon the satisfaction of each of the following conditions precedent on or prior
to the related Subsequent Transfer Date:
(i) the Seller shall have delivered to the Trustee and the
Indenture Trustee a duly executed written assignment in substantially
the form of Exhibit E (the "Second-Tier Case Subsequent Transfer
Assignment"), which shall include a Schedule A to the Second-Tier Case
Subsequent Transfer Assignment listing the Subsequent Receivables;
(ii) the Seller shall, to the extent required by Section 5.2,
have deposited in the Collection Account all collections in respect of
the Subsequent Receivables;
(iii) as of such Subsequent Transfer Date: (A) the Seller was
not insolvent and will not become insolvent as a result of the transfer
of Subsequent Receivables on such Subsequent Transfer Date, (B) the
Seller did not intend to incur or believe that it would incur debts
that would be beyond the Seller's ability to pay as such debts matured,
(C) such transfer was not made with actual intent to hinder, delay or
defraud any Person and (D) the assets of the Seller did not constitute
unreasonably small capital to carry out its business as conducted;
4
<PAGE>
(iv) the applicable Spread Account Initial Deposit for such
Subsequent Transfer Date shall have been made;
(v) the applicable Principal Supplement Account Deposit, if
any, for such Subsequent Transfer Date shall have been made;
(vi) the Receivables in the Trust, including the Subsequent
Receivables to be conveyed to the Trust on such Subsequent Transfer
Date, shall meet the following criteria: (A) the weighted average
original term of the Receivables in the Trust will not be greater than
55.0 months, and (B) not more than 50.00% of the aggregate Contract
Value of the Receivables in the Trust will represent Contracts for the
financing of construction equipment, (C) none of the Receivables in the
Trust will represent Contracts for the financing of all-terrain
vehicles, snowmobiles, marine vessels or forestry equipment, and (D)
none of the Receivables in the Trust will represent Contracts
originated through Case Credit's Soris financing program;
(vii) the Funding Period shall not have terminated;
(viii) each of the representations and warranties made by the
Seller pursuant to Section 3.1 of this Agreement and by the Originator
pursuant to Section 3.2(b) of the Purchase Agreement, in each case with
respect to the Subsequent Receivables, shall be true and correct as of
such Subsequent Transfer Date, and the Seller shall have performed all
obligations to be performed by it hereunder on or prior to such
Subsequent Transfer Date;
(ix) the Seller shall, at its own expense, on or prior to such
Subsequent Transfer Date, indicate in its computer files that the
Subsequent Receivables identified in the related Second-Tier Case
Subsequent Transfer Assignment have been sold to the Issuer pursuant to
this Agreement and the Second-Tier Case Subsequent Transfer Assignment;
(x) the Seller shall have taken any action required to
maintain the first priority perfected ownership interest of the Issuer
in the Trust Estate and the first perfected security interest of the
Indenture Trustee in the Collateral;
(xi) no selection procedures believed by the Seller to be
adverse to the interests of the Trust, the Noteholders or the
Certificateholders shall have been utilized in selecting the Subsequent
Receivables;
(xii) the addition of the Subsequent Receivables will not
result in a material adverse tax consequence to the Trust, the
Noteholders or the Certificateholders;
5
<PAGE>
(xiii) the Seller shall have provided the Indenture Trustee,
the Trustee and the Rating Agencies a statement listing the aggregate
Contract Value of such Subsequent Receivables and any other information
reasonably requested by any of the foregoing with respect to such
Subsequent Receivables;
(xiv) the Seller shall have delivered: (A) to the Rating
Agencies, an Opinion of Counsel with respect to the transfer of such
Subsequent Receivables substantially in the form of the Opinion of
Counsel delivered to the Rating Agencies on the Closing Date and (B) to
the Trustee and the Indenture Trustee, the Opinion of Counsel required
by Section 10.2(i)(1);
(xv) the Seller shall have delivered to the Trustee and the
Indenture Trustee a letter of a firm of independent certified public
accountants confirming the satisfaction of the conditions set forth in
clause (vi) with respect to the Subsequent Receivables, and covering
substantially the same matters with respect to the Subsequent
Receivables as are set forth in Exhibit F hereto;
(xvi) the Seller shall have delivered to the Indenture Trustee
and the Trustee an Officers' Certificate confirming the satisfaction of
each condition specified in this clause (b) (substantially in the form
attached hereto as Annex A to the Second-Tier Case Subsequent Transfer
Assignment); and
(xvii) Moody's shall have received written notification from
the Seller of the addition of all such Subsequent Receivables.
(c) The Seller covenants to transfer to the Issuer pursuant to clause
(a) Subsequent Receivables with an aggregate Contract Value equal to
$427,816,312.54 subject only to availability thereof.
ARTICLE III
THE RECEIVABLES
SECTION 3.1. REPRESENTATIONS AND WARRANTIES OF SELLER. The Seller makes
the following representations and warranties as to the Receivables on which the
Issuer is deemed to have relied in acquiring the Receivables. Such
representations and warranties speak as of the execution and delivery of this
Agreement and as of the Closing Date, in the case of the Initial Receivables,
and as of the applicable Subsequent Transfer Date, in the case of the Subsequent
Receivables, but shall survive the sale, transfer and assignment of the
Receivables to the Issuer and the pledge thereof to the Indenture Trustee
pursuant to the Indenture.
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(a) TITLE. It is the intention of the Seller that the transfer and
assignment herein contemplated constitute a sale of the Receivables from the
Seller to the Issuer and that the beneficial interest in and title to the
Receivables not be part of the debtor's estate in the event of the filing of a
bankruptcy petition by or against the Seller under any bankruptcy or similar
law. No Receivable has been sold, transferred, assigned or pledged by the Seller
to any Person other than the Issuer. Immediately prior to the transfer and
assignment herein contemplated, the Seller had good title to each Receivable,
free and clear of all Liens and, immediately upon the transfer thereof, the
Issuer shall have good title to each Receivable, free and clear of all Liens;
and the transfer and assignment of the Receivables to the Issuer has been
perfected under the UCC.
If (but only to the extent) that the transfer of the Second-Tier Assets
hereunder is characterized by a court or other governmental authority as a loan
rather than a sale, the Seller shall be deemed hereunder to have granted to the
Issuer a security interest in all of Seller's right, title and interest in and
to the Second-Tier Assets. Such security interest shall secure all of Seller's
obligations (monetary or otherwise) under this Agreement and the other Basic
Documents to which it is a party, whether now or hereafter existing or arising,
due or to become due, direct or indirect, absolute or contingent. The Seller
shall have, with respect to the property described in Section 2.1 and Section
2.2, and in addition to all the other rights and remedies available to Seller
under this Agreement and applicable law, all the rights and remedies of a
secured party under any applicable UCC, and this Agreement shall constitute a
security agreement under applicable law.
(b) ALL FILINGS MADE. All filings (including UCC filings) necessary in
any jurisdiction to give the Issuer a first priority perfected ownership
interest in the Receivables, and to give the Indenture Trustee a first priority
perfected security interest therein, have been made.
SECTION 3.2. REPURCHASE UPON BREACH. (a) The Seller, the Servicer or
the Trustee, as the case may be, shall inform the other parties to this
Agreement and the Indenture Trustee promptly, in writing, upon the discovery of
any breach of the Seller's representations and warranties made pursuant to
Section 3.1 or Section 6.1 or Case Credit's representations and warranties made
pursuant to Section 3.2(b) of the Liquidity Receivables Purchase Agreement or
Section 3.2(b) of the Purchase Agreement. Unless any such breach shall have been
cured by the last day of the second (or, if the Seller elects, the first)
Collection Period after such breach is discovered by the Trustee or in which the
Trustee receives written notice from the Seller or the Servicer of such breach,
the Seller shall be obligated, and, if necessary, the Seller or the Trustee
shall enforce the obligation of Case Credit under the Liquidity Receivables
Purchase Agreement or the Purchase Agreement, as applicable, to repurchase any
Receivable materially and adversely affected by any such breach as of such last
day. As consideration for the repurchase of the
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Receivable, the Seller shall remit the Purchase Amount in the manner specified
in Section 5.4; PROVIDED, HOWEVER, that the obligation of the Seller to
repurchase any Receivable arising solely as a result of a breach of Case
Credit's representations and warranties pursuant to Section 3.2(b) of the
Liquidity Receivables Purchase Agreement or Section 3.2(b) of the Purchase
Agreement is subject to the receipt by the Seller of the Purchase Amount from
Case Credit. Subject to the provisions of Section 6.3, the sole remedy of the
Issuer, the Trustee, the Indenture Trustee, the Noteholders or the
Certificateholders with respect to a breach of the representations and
warranties pursuant to Section 3.1 and the agreement contained in this Section
shall be to require the Seller to repurchase Receivables pursuant to this
Section, subject to the conditions contained herein, and to enforce Case
Credit's obligation to the Seller to repurchase such Receivables pursuant to the
Liquidity Receivables Purchase Agreement or the Purchase Agreement, as
applicable.
(b) With respect to all Receivables repurchased by the Seller pursuant
to this Agreement, the Issuer shall sell, transfer, assign, set over and
otherwise convey to the Seller, without recourse, representation or warranty,
all of the Issuer's right, title and interest in, to and under such Receivables,
and all security and documents relating thereto.
SECTION 3.3. CUSTODY OF RECEIVABLE FILES. To assure uniform quality in
servicing the Receivables and to reduce administrative costs, the Issuer hereby
revocably appoints the Servicer, and the Servicer hereby accepts such
appointment, to act for the benefit of the Issuer and the Indenture Trustee as
custodian of the following documents or instruments, which are hereby
constructively delivered to the Indenture Trustee, as pledgee of the Issuer (or,
in the case of the Subsequent Receivables, will as of the applicable Subsequent
Transfer Date be constructively delivered to the Indenture Trustee, as pledgee
of the Issuer) with respect to each Receivable:
(a) the original fully executed copy of the Receivable;
(b) a record or facsimile of the original credit application
fully executed by the Obligor;
(c) the original certificate of title or file stamped copy of
the UCC financing statement or such other documents that the Servicer
shall keep on file, in accordance with its customary procedures,
evidencing the security interest of Case Credit or, in the case of a NH
Receivable, NH Credit in the Financed Equipment; and
(d) any and all other documents that the Servicer or the
Seller or, in the case of NH Receivables, NH Credit shall keep on file,
in accordance with
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its customary procedures, relating to a Receivable, an Obligor or any
of the Financed Equipment.
SECTION 3.4. DUTIES OF SERVICER AS CUSTODIAN.
(a) SAFEKEEPING. The Servicer shall hold the Receivable Files for the
benefit of the Issuer and the Indenture Trustee and maintain such accurate and
complete accounts, records and computer systems pertaining to each Receivable
File as shall enable the Issuer to comply with this Agreement. In performing its
duties as custodian, the Servicer shall act with reasonable care, using that
degree of skill and attention that the Servicer exercises with respect to the
receivable files relating to all comparable equipment receivables that the
Servicer services for itself or others. The Servicer shall conduct, or cause to
be conducted, periodic audits of the Receivable Files and the related accounts,
records and computer systems, in such a manner as shall enable the Issuer or the
Indenture Trustee to verify the accuracy of the Servicer's record keeping. The
Servicer shall promptly report to the Issuer and the Indenture Trustee any
failure on its part to hold the Receivable Files and maintain its accounts,
records and computer systems as herein provided and promptly take appropriate
action to remedy any such failure. Nothing herein shall be deemed to require an
initial review or any periodic review by the Issuer, the Trustee or the
Indenture Trustee of the Receivable Files.
(b) MAINTENANCE OF AND ACCESS TO RECORDS. The Servicer shall maintain
each Receivable File at one of its offices or, in the case of a NH Receivable,
at one of NH Credit's offices; provided that at no time shall a Receivable File
be moved to an office or location outside the geographic boundaries of the
United States. The Servicer shall make available for inspection by the Seller,
the Issuer and the Indenture Trustee or their respective duly authorized
representatives, attorneys or auditors a list of locations of the Receivable
Files and the related accounts, records and computer systems maintained by the
Servicer at such times during normal business hours as the Seller, the Issuer or
the Indenture Trustee shall instruct.
SECTION 3.5. INSTRUCTIONS; AUTHORITY TO ACT. The Servicer shall be
deemed to have received proper instructions with respect to the Receivable Files
upon its receipt of written instructions signed by a Trust Officer of the
Indenture Trustee.
SECTION 3.6. CUSTODIAN'S INDEMNIFICATION. The Servicer as custodian
shall indemnify the Trust, the Trustee and the Indenture Trustee (and each of
their officers, directors, employees and agents) for any and all liabilities,
obligations, losses, compensatory damages, payments, costs or expenses of any
kind whatsoever that may be imposed on, incurred by or asserted against the
Trust, the Trustee or the Indenture Trustee (or any of their officers, directors
and agents) as the result of any improper act or omission in any way relating to
the maintenance and custody by the Servicer as custodian of the Receivable
Files; PROVIDED, HOWEVER, that the Servicer
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shall not be liable: (a) to the Trustee for any portion of any such amount
resulting from the willful misfeasance, bad faith or negligence of the Trustee,
and (b) to the Indenture Trustee for any portion of any such amount resulting
from the wilful misfeasance, bad faith or negligence of the Indenture Trustee;
and, PROVIDED FURTHER, that the Servicer shall only be liable pursuant to this
Section 3.6 for its acts or ommisions committed during the period it is serving
as custodian hereunder. Indemnification under this Section shall survive the
resignation or removal of the Servicer as custodian or the termination of this
Agreement.
SECTION 3.7. EFFECTIVE PERIOD AND TERMINATION. The Servicer's
appointment as custodian shall become effective as of the Initial Cutoff Date
and shall continue in full force and effect until terminated pursuant to this
Section. If any Servicer shall resign as Servicer in accordance with this
Agreement or if all of the rights and obligations of any Servicer shall have
been terminated under Section 8.1, the appointment of such Servicer as custodian
shall be terminated by: (a) the Indenture Trustee, (b) the Noteholders of Notes
evidencing not less than 25% of the Note Balance, (c) with the consent of
Noteholders of Notes evidencing not less than 25% of the Note Balance, the
Trustee or (d) Certificateholders evidencing not less than 25% of the
Certificate Balance, in the same manner as the Indenture Trustee or such Holders
may terminate the rights and obligations of the Servicer under Section 8.1. The
Indenture Trustee or, with the consent of the Indenture Trustee, the Trustee may
terminate the Servicer's appointment as custodian, with cause, at any time upon
written notification to the Servicer, and without cause upon 30 days' prior
written notification to the Servicer. As soon as practicable after any
termination of such appointment, the Servicer shall deliver the Receivable Files
to the Indenture Trustee or the Indenture Trustee's agent at such place(s) as
the Indenture Trustee may reasonably designate.
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 4.1. DUTIES OF SERVICER. The Servicer, for the benefit of the
Issuer, and (to the extent provided herein) the Indenture Trustee shall manage,
service, administer and make collections on the Receivables with reasonable
care, using that degree of skill and attention that the Servicer exercises with
respect to all comparable equipment receivables that it services for itself or
others. The Servicer's duties shall include collection and posting of all
payments, responding to inquiries of Obligors on such Receivables, investigating
delinquencies, sending payment coupons to Obligors, reporting tax information to
Obligors, accounting for collections and furnishing monthly and annual
statements to the Trustee and the Indenture Trustee with respect to
distributions. Subject to Section 4.2, the Servicer shall follow its customary
standards, policies and procedures in performing its duties as Servicer.
Notwithstanding anything herein to the contrary, it is understood and agreed
that,
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subject to Section 4.2, in servicing the NH Receivables the Servicer shall
follow NH Credit's customary standards, policies and procedures in performing
its duties as Servicer with respect to the NH Receivables.
Without limiting the generality of the foregoing, the Servicer is
authorized and empowered to execute and deliver, on behalf of itself, the
Issuer, the Trustee, the Indenture Trustee, the Certificateholders, the
Noteholders or any of them, any and all instruments of satisfaction or
cancellation, or partial or full release or discharge, and all other comparable
instruments, with respect to such Receivables or the Financed Equipment securing
such Receivables. If the Servicer shall commence a legal proceeding to enforce a
Receivable, the Issuer shall thereupon be deemed to have automatically assigned,
solely for the purpose of collection, such Receivable to the Servicer. If in any
enforcement suit or legal proceeding it shall be held that the Servicer may not
enforce a Receivable on the ground that it shall not be a real party in interest
or a holder entitled to enforce such Receivable, the Trustee shall, at the
Servicer's expense and direction, take steps to enforce such Receivable,
including bringing suit in its name or the name of the Trust, the Indenture
Trustee, the Certificateholders or the Noteholders. The Trustee or the Indenture
Trustee shall, upon the written request of the Servicer, furnish the Servicer
with any powers of attorney and other documents reasonably necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties hereunder.
SECTION 4.2. COLLECTION AND ALLOCATION OF RECEIVABLE PAYMENTS. The
Servicer shall make reasonable efforts to collect all payments called for under
the Receivables as and when the same shall become due and shall follow such
collection procedures as it (or, with respect to a NH Receivable, NH Credit)
follows with respect to all comparable equipment receivables that it services
for itself or others. The Servicer shall allocate collections between principal
and interest in accordance with the customary servicing procedures it follows
with respect to all comparable equipment receivables that it (or, with respect
to a NH Receivable, NH Credit) services for itself or others. The Servicer may
grant extensions or adjustments on a Receivable; PROVIDED, HOWEVER, that if the
Servicer extends the date for final payment by the Obligor of any Receivable
beyond the Final Scheduled Maturity Date, it shall promptly purchase the
Receivable from the Issuer in accordance with Section 4.6. The Servicer may, in
its discretion, waive any late payment charge or any other fees (other than
extension fees or any other fees that represent interest charges on deferred
Scheduled Payments) that may be collected in the ordinary course of servicing a
Receivable. The Servicer shall not agree to any decrease of the interest rate on
any Receivable or reduce the aggregate amount of the Scheduled Payments due on
any Receivable.
SECTION 4.3. REALIZATION UPON RECEIVABLES. For the benefit of the
Issuer and the Indenture Trustee, the Servicer shall use reasonable efforts,
consistent with its customary servicing procedures, to repossess or otherwise
convert the ownership
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of the Financed Equipment securing any Receivable as to which the Servicer shall
have determined eventual payment in full is unlikely. The Servicer shall follow
such customary and usual practices and procedures as it shall deem necessary or
advisable in its servicing of equipment receivables, which may include
reasonable efforts to realize upon any recourse to Dealers and selling the
Financed Equipment at public or private sale. The foregoing shall be subject to
the provision that, in any case in which the Financed Equipment shall have
suffered damage, the Servicer shall not expend funds in connection with the
repair or the repossession of such Financed Equipment unless it shall determine
in its discretion that such repair and/or repossession will increase the
Liquidation Proceeds by an amount greater than the amount of such expenses.
SECTION 4.4. MAINTENANCE OF SECURITY INTERESTS IN FINANCED EQUIPMENT.
The Servicer shall, in accordance with its customary servicing procedures, take
such steps as are necessary to maintain perfection of the security interest
created by each Receivable in the related Financed Equipment. The Servicer is
hereby authorized to take such steps as are necessary to re-perfect such
security interest for the benefit of the Issuer and the Indenture Trustee in the
event of the relocation of any Financed Equipment or for any other reason.
SECTION 4.5. COVENANTS OF SERVICER. The Servicer shall not release the
Financed Equipment securing any Receivable from the security interest granted by
such Receivable in whole or in part except in the event of payment in full by
the Obligor thereunder or repossession, nor shall the Servicer impair the rights
of the Issuer, the Indenture Trustee, the Certificateholders or the Noteholders
in such Receivables. The Servicer shall, in accordance with its customary
servicing procedures, require that each Obligor shall have obtained physical
damage insurance covering the Financed Equipment as of the execution of the
Receivable.
SECTION 4.6. PURCHASE OF RECEIVABLES UPON BREACH. The Servicer or the
Trustee shall inform the other party, the Indenture Trustee, the Seller and Case
Credit promptly, in writing, upon the discovery of any breach pursuant to
Section 4.2, 4.4 or 4.5. Unless the breach shall have been cured by the last day
of the Collection Period in which such breach is discovered, the Servicer shall
purchase any Receivable materially and adversely affected by such breach as of
such last day. If the Servicer takes any action during any Collection Period
pursuant to Section 4.2 that impairs the rights of the Issuer, the Indenture
Trustee, the Certificateholders or the Noteholders in any Receivable or as
otherwise provided in Section 4.2, the Servicer shall purchase such Receivable
as of the last day of such Collection Period. As consideration for the purchase
of any such Receivable pursuant to either of the two preceding sentences, the
Servicer shall remit the Purchase Amount in the manner specified in Section 5.4.
Subject to Section 7.2, the sole remedy of the Issuer, the Trustee, the
Indenture Trustee, the Certificateholders or the Noteholders with respect to a
breach pursuant to Section 4.2, 4.4 or 4.5 shall be to require the Servicer to
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purchase Receivables pursuant to this Section. The Trustee shall have no duty to
conduct any affirmative investigation as to the occurrence of any condition
requiring the purchase of any Receivable pursuant to this Section.
SECTION 4.7. SERVICING FEE. The Servicing Fee for each Collection
Period shall be equal to 1/12th of 1.00% of the Pool Balance as of the first day
of such Collection Period.
SECTION 4.8. SERVICER'S CERTIFICATE. On each Determination Date the
Servicer shall deliver to the Trustee, the Indenture Trustee and the Seller,
with a copy to the Rating Agencies, a Servicer's Certificate containing all
information necessary to make the distributions pursuant to Sections 5.5 and 5.6
and the deposits to the Collection Account pursuant to Section 5.2 for the
Collection Period preceding the date of such Servicer's Certificate. Receivables
to be repurchased by the Seller or purchased by the Servicer shall be identified
by the Servicer by account number with respect to such Receivable (as specified
in the schedule of Receivables delivered on the Closing Date or attached to the
applicable Second-Tier Case Subsequent Transfer Assignment).
SECTION 4.9. ANNUAL STATEMENT AS TO COMPLIANCE; NOTICE OF DEFAULT. (a)
The Servicer shall deliver to the Trustee and the Indenture Trustee, on or
before April 30th of each year, an Officers' Certificate, dated as of December
31 of the preceding year, stating that: (i) a review of the activities of the
Servicer during the preceding 12-month period (or, in the case of the first such
certificate, from the Initial Cutoff Date to December 31, 2000) and of its
performance under this Agreement has been made under such officers' supervision
and (ii) to the best of such officers' knowledge, based on such review, the
Servicer has fulfilled all its obligations under this Agreement throughout such
year or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officers and the nature and status
thereof. The Indenture Trustee shall send a copy of such Certificate and the
report referred to in Section 4.10 to the Rating Agencies. A copy of such
Certificate and report may be obtained by any Certificateholder or Noteholder by
a request in writing to the Trustee addressed to the Corporate Trust Office.
Upon the written request of the Trustee, the Indenture Trustee will promptly
furnish the Trustee a list of Noteholders as of the date specified by the
Trustee.
(b) The Servicer shall deliver to the Trustee, the Indenture Trustee
and the Rating Agencies, promptly after having obtained knowledge thereof, but
in no event later than five Business Days thereafter, written notice in an
Officers' Certificate of any event that, with the giving of notice or lapse of
time, or both, would become a Servicer Default under Section 8.1(a) or (b).
SECTION 4.10. ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS' REPORT.
The Servicer shall cause a firm of independent certified public accountants,
which
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may also render other services to the Servicer, the Seller or any other
Affiliate of CNH Global, to deliver to the Trustee and the Indenture Trustee on
or before April 30 of each year a report, addressed to the Board of Directors of
the Servicer, the Trustee and the Indenture Trustee, summarizing the results of
certain procedures with respect to certain documents and records relating to the
servicing of the Receivables during the preceding calendar year (or, in the case
of the first such report, during the period from the Initial Cutoff Date to
December 31, 2000). The procedures to be performed and reported upon by the
independent public accountants shall be those agreed to by the Servicer and the
Indenture Trustee.
Such report will also indicate that the firm is independent of the
Servicer within the meaning of the Code of Professional Ethics of the American
Institute of Certified Public Accountants.
SECTION 4.11. ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING
RECEIVABLES. The Servicer shall provide to the Trustee and the Indenture Trustee
access to the Receivable Files in such cases where the Trustee or the Indenture
Trustee shall be required by applicable statutes or regulations to review such
documentation. Access shall be afforded without charge, but only upon reasonable
request and during the normal business hours at the respective offices of the
Servicer (or, in the case of the NH Receivables, NH Credit). Nothing in this
Section shall affect the obligation of the Servicer to observe any applicable
law prohibiting disclosure of information regarding the Obligors, and the
failure of the Servicer to provide access to information as a result of such
obligation shall not constitute a breach of this Section.
SECTION 4.12. SERVICER EXPENSES. The Servicer shall be required to pay
all expenses incurred by it in connection with its activities hereunder,
including fees and disbursements of independent accountants, taxes imposed on
the Servicer and expenses incurred in connection with distributions and reports
to Certificateholders and the Noteholders.
SECTION 4.13. APPOINTMENT OF SUBSERVICER. The Servicer may at any time
appoint a subservicer to perform all or any portion of its obligations as
Servicer hereunder; PROVIDED, HOWEVER, that the Rating Agency Condition shall
have been satisfied in connection therewith (other than with respect to the
appointment of NH Credit, as subservicer, with respect to the NH Receivables);
and PROVIDED FURTHER, that the Servicer shall remain obligated and be liable to
the Issuer, the Trustee, the Indenture Trustee the Certificateholders and the
Noteholders for the servicing and administering of the Receivables in accordance
with the provisions hereof without diminution of such obligation and liability
by virtue of the appointment of such subservicer and to the same extent and
under the same terms and conditions as if the Servicer alone were servicing and
administering the Receivables. The fees and expenses of the subservicer shall be
as agreed between the Servicer and its
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subservicer from time to time and none of the Issuer, the Trustee, the Indenture
Trustee, the Certificateholders or the Noteholders shall have any responsibility
therefor.
ARTICLE V
DISTRIBUTIONS: SPREAD ACCOUNT;
STATEMENTS TO CERTIFICATEHOLDERS AND NOTEHOLDERS
SECTION 5.1. ESTABLISHMENT OF TRUST ACCOUNTS. (a)(i) The Servicer, for
the benefit of the Noteholders and the Certificateholders, shall establish and
maintain in the name of the Indenture Trustee an Eligible Deposit Account (the
"Collection Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Noteholders and the
Certificateholders.
(ii) The Servicer, for the benefit of the Noteholders, shall
establish and maintain in the name of the Indenture Trustee an Eligible
Deposit Account (the "NOTE DISTRIBUTION ACCOUNT"), bearing a
designation clearly indicating that the funds deposited therein are
held for the benefit of the Noteholders.
(iii) The Servicer, for the benefit of the Noteholders, shall
establish and maintain in the name of the Indenture Trustee an Eligible
Deposit Account (the "SPREAD ACCOUNT"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of
the Noteholders.
(iv) The Servicer, for the benefit of the Noteholders and the
Certificateholders, shall establish and maintain in the name of the
Indenture Trustee an Eligible Deposit Account (the "PRE-FUNDING
ACCOUNT"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Noteholders and the
Certificateholders.
(v) The Servicer, for the benefit of the Noteholders and the
Certificateholders, shall establish and maintain in the name of the
Indenture Trustee an Eligible Deposit Account (the "NEGATIVE CARRY
ACCOUNT"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Noteholders and the
Certificateholders.
(vi) The Servicer, for the benefit of the Noteholders and the
Certificateholders, shall establish and maintain in the name of the
Indenture Trustee an Eligible Deposit Account (the "PRINCIPAL
SUPPLEMENT ACCOUNT"), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Noteholders and
the Certificateholders.
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(b) Funds on deposit in the Collection Account, the Note Distribution
Account, the Spread Account, the Pre-Funding Account, the Negative Carry Account
and the Principal Supplement Account, (collectively, the "TRUST ACCOUNTS") shall
be invested or reinvested by the Indenture Trustee in Eligible Investments
selected by and as directed in writing by the Servicer (which written direction
may be in the form of standing instructions); PROVIDED, HOWEVER, it is
understood and agreed that the Indenture Trustee shall not be liable for the
selection of, or any loss arising from such investment in, Eligible Investments.
All such Eligible Investments shall be held by the Indenture Trustee for the
benefit of the Noteholders and the Certificateholders or the Noteholders, as
applicable (and for the purposes of Article 8 of the UCC, each Eligible
Investment is intended to constitute a Financial Asset, and each of the Trust
Accounts is intended to constitute a Securities Account); PROVIDED, that on each
Transfer Date, all Investment Earnings on funds on deposit therein shall be
deposited into the Collection Account and shall be deemed to constitute a
portion of the Total Distribution Amount. Other than as permitted by the Rating
Agencies, funds on deposit in the Trust Accounts shall be invested in Eligible
Investments that will mature so that such funds will be available at the close
of business on the Transfer Date preceding the following Payment Date; PROVIDED,
HOWEVER, that funds on deposit in Trust Accounts may be invested in Eligible
Investments of the entity serving as Indenture Trustee that may mature so that
such funds will be available on the Payment Date. Funds deposited in a Trust
Account on the Transfer Date that precedes a Payment Date upon the maturity of
any Eligible Investments are not required to be invested overnight.
(c)(i) The Indenture Trustee shall possess all right, title and
interest in all funds on deposit from time to time in the Trust Accounts and in
all proceeds thereof (including all income thereon) and all such funds,
investments, proceeds and income shall be part of the Trust Estate. The Trust
Accounts shall be under the sole dominion and control of the Indenture Trustee
for the benefit of the Noteholders and the Certificateholders or the
Noteholders, as the case may be. If, at any time, any of the Trust Accounts
ceases to be an Eligible Deposit Account, the Indenture Trustee (or the Servicer
on its behalf) shall within 10 Business Days (or such longer period, not to
exceed 30 calendar days, as to which each Rating Agency may consent) establish a
new Trust Account as an Eligible Deposit Account and shall transfer any cash
and/or any investments held in the no-longer Eligible Deposit Account to such
new Trust Account.
(ii) With respect to the Trust Account Property, the Indenture
Trustee agrees, by its acceptance hereof, that:
(A) any Trust Account Property that is held in
deposit accounts shall be held solely in Eligible Deposit
Accounts, subject to the last sentence of Section 5.1(c)(i);
and each such Eligible Deposit Account shall be subject to the
exclusive custody and control of the
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Indenture Trustee, and the Indenture Trustee shall have sole
signature authority with respect thereto;
(B) any Trust Account Property that constitutes a
Certificated Security shall be delivered to the Indenture
Trustee in accordance with paragraph (i) of the definition of
"Delivery" and shall be held, pending maturity or disposition,
solely by the Indenture Trustee;
(C) any such Trust Account Property that constitutes
an Uncertificated Security (including any investments in money
market mutual funds, but excluding any Federal Book Entry
Security) shall be delivered to the Indenture Trustee in
accordance with paragraph (ii) of the definition of "Delivery"
and shall be maintained, pending maturity or disposition,
through continued registration of the Indenture Trustee's (or
its nominee's) ownership of such security; and
(D) with respect to any Trust Account Property that
constitutes a Federal Book Entry Security, the Indenture
Trustee shall maintain and obtain Control over such property.
(iii) The Servicer shall have the power, revocable by the
Indenture Trustee or by the Trustee, with the consent of the Indenture
Trustee, to instruct the Indenture Trustee to make withdrawals and
payments from the Trust Accounts for the purpose of permitting the
Servicer or the Trustee to carry out its respective duties hereunder or
permitting the Indenture Trustee to carry out its duties under the
Indenture.
(d) All Trust Accounts will initially be established at the Indenture
Trustee.
SECTION 5.2. COLLECTIONS. The Servicer shall, and shall cause any
subservicer to, remit within two Business Days of receipt thereof to the
Collection Account all payments by or on behalf of the Obligors with respect to
the Receivables, and all Liquidation Proceeds, both as collected during the
Collection Period. Notwithstanding the foregoing, for so long as: (i) Case
Credit remains the Servicer, (ii) no Servicer Default shall have occurred and be
continuing and (iii) prior to ceasing daily remittances, the Rating Agency
Condition shall have been satisfied (and any conditions or limitations imposed
by the Rating Agencies in connection therewith are complied with), the Servicer
shall remit such collections with respect to the related Collection Period to
the Collection Account on the Transfer Date immediately following the end of
such Collection Period. For purposes of this Article V, the phrase "payments by
or on behalf of the Obligors" shall mean payments made with respect to the
Receivables by Persons other than the Servicer or the Seller.
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SECTION 5.3. APPLICATION OF COLLECTIONS. (a) With respect to each
Receivable, all collections for the Collection Period shall be applied to the
related Scheduled Payment.
(b) All Liquidation Proceeds shall be applied to the related
Receivable.
SECTION 5.4. ADDITIONAL DEPOSITS. The Servicer and the Seller shall
deposit or cause to be deposited in the Collection Account the aggregate
Purchase Amount with respect to Purchased Receivables on the Transfer Date
related to the Collection Period on the last day of which the purchase occurs,
and the Servicer shall deposit therein all amounts to be paid under Section 9.1
on the Transfer Date falling in the Collection Period referred to in Section
9.1. The Servicer shall deposit the aggregate Purchase Amount with respect to
Purchased Receivables when such obligations are due, unless the Servicer shall
not be required to make daily deposits pursuant to Section 5.2, in which case
such deposits shall be made on the Transfer Date following the related
Collection Period.
SECTION 5.5. DISTRIBUTIONS. (a) On each Determination Date, the
Servicer shall calculate all amounts required to determine the amounts to be
deposited in the Note Distribution Account, the Certificate Distribution Account
and the Spread Account.
(b) On each Payment Date, the Servicer shall instruct the Indenture
Trustee (based on the information contained in the Servicer's Certificate
delivered on the related Determination Date pursuant to Section 4.8) to make
from the Collection Account the following deposits and distributions for receipt
by the Servicer or deposit in the applicable Trust Account or Certificate
Distribution Account, as applicable, by 10:00 a.m. (New York time), to the
extent of the Total Distribution Amount, in the following order of priority:
(i) to the Administrator, the Administration Fee and all
unpaid Administration Fees from prior Collection Periods;
(ii) to the Note Distribution Account, the Class Interest
Amount for each Class of Class A Notes;
(iii) to the Note Distribution Account, the Class Interest
Amount for the Class B Notes;
(iv) to the Note Distribution Account, the Class Principal
Distributable Amount for each Class of Class A Notes;
(v) to the Note Distribution Account, the Class B Noteholders'
Monthly Principal Distributable Amount;
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(vi) to the Spread Account to the extent necessary so that the
balance on deposit therein will equal the Specified Spread Account
Balance;
(vii) to the Certificate Distribution Account, the Certifi-
cateholders' Interest Distributable Amount;
(viii) to the Certificate Distribution Account, the Certifi-
cateholders' Monthly Principal Distributable Amount;
(ix) to the Servicer, the Servicing Fee and all unpaid
Servicing Fees from prior Collection Periods; provided that if Case
Credit or an Affiliate of Case Credit is not the Servicer, the amounts
described in this clause (ix) will be paid prior to any other
application of funds on deposit in the Collection Account; and
(x) to the Seller, the remaining Total Distribution Amount;
(c) On the A-1 Note Final Scheduled Maturity Date, the Servicer shall
instruct the Indenture Trustee to deposit from the Collection Account into the
Note Distribution Account by 10:00 a.m. (New York time), to the extent of
available funds on such day, an amount equal to the sum of (i) the aggregate
accrued and unpaid interest on the Class A-1 Notes as of the A-1 Note Final
Scheduled Maturity Date, and (ii) the amount necessary to reduce the outstanding
principal amount of the Class A-1 Notes to zero.
It is understood and agreed that, with respect to the amounts to be
distributed pursuant to this Section 5.5(c), the Servicer shall, to the extent
necessary (i) deposit into the Collection Account any amounts received as
payments by or on behalf of any Obligor (and not previously deposited into the
Collection Account) on or prior to the A-1 Note Final Scheduled Maturity Date,
(ii) make each calculation that would otherwise be made on a Determination Date
(with appropriate adjustments) in accordance with Section 4.8 on the Business
Day immediately proceeding the A-1 Note Final Scheduled Maturity Date, (iii) on
the Payment Date immediately succeeding the A-1 Note Final Scheduled Maturity
Date, make any adjustments to the Class Principal Distributable Amount, the
Class Interest Amount and any other amount to be paid on such Payment Date, and
(iv) make any other calculation, adjustment or correction that may be required
as result of any payment made on the A-1 Note Final Scheduled Maturity Date.
SECTION 5.6. SPREAD ACCOUNT. (a) On the Closing Date and on each
Subsequent Transfer Date, the Seller shall deposit the applicable Spread Account
Initial Deposit into the Spread Account.
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(b) If the amount on deposit in the Spread Account on any Payment Date
(after giving effect to all deposits or withdrawals therefrom on such Payment
Date) is greater than the Specified Spread Account Balance for such Payment
Date, the Servicer shall instruct the Indenture Trustee to distribute the amount
of the excess to the Seller (and its transferees and assignees in accordance
with their respective interests); PROVIDED, that if, after giving effect to all
payments made on the Notes on such Payment Date, the sum of the Pool Balance and
the Pre-Funded Amount as of the first day of the Collection Period in which such
Payment Date occurs is less than the sum of the Note Balance and the Certificate
Balance, such excess shall not be distributed to the Seller (or such transferees
or assignees) and shall be retained in the Spread Account for application in
accordance with this Agreement. Amounts properly distributed pursuant to this
Section 5.6(b) shall be deemed released from the Trust and the security interest
therein granted to the Indenture Trustee, and the Seller (and such transferees
and assignees) shall in no event thereafter be required to refund any such
distributed amounts.
(c) Following: (i) the payment in full of the aggregate Outstanding
Amount of the Notes and of all other amounts owing or to be distributed
hereunder or under the Indenture to the Noteholders, the Trustee and the
Indenture Trustee and (ii) the termination of the Trust, any amount remaining on
deposit in the Spread Account shall be distributed to the Seller or any
transferee or assignee pursuant to clause (g). The Seller (and such transferees
and assignees) shall in no event be required to refund any amounts properly
distributed pursuant to this Section 5.6(c).
(d) In the event that the Noteholders' Distributable Amount for a
Payment Date exceeds the amount deposited into the Note Distribution Account
pursuant to Sections 5.5(b)(ii), (iii), (iv) and (v) on such Payment Date, the
Servicer shall instruct the Indenture Trustee on such Payment Date to withdraw
from the Spread Account on such Payment Date an amount equal to such excess, to
the extent of funds available therein, and deposit such amount into the Note
Distribution Account.
(e) In the event that the Class Principal Distributable Amount for any
Class of Notes for the applicable final scheduled maturity date for such Class
of Notes exceeds the remainder of the Total Distribution Amount for that Payment
Date after subtracting the Class Principal Distributable Amount for each Class
of Notes having priority over such Class of Notes, the Servicer shall instruct
the Indenture Trustee on such Payment Date to withdraw from the Spread Account
on such Payment Date an amount equal to such excess, to the extent of funds
available therein, and deposit such amount into the Note Distribution Account.
(f) [Reserved]
(g) The Seller may at any time, without consent of the Noteholders,
sell, transfer, convey or assign in any manner its rights to and interests in
distributions
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from the Spread Account, including interest and other investment earnings
thereon; PROVIDED, that the Rating Agency Condition is satisfied.
SECTION 5.7. PRE-FUNDING ACCOUNT. (a) On the Closing Date, the Trustee
will deposit, on behalf of the Seller, in the Pre-Funding Account
$427,816,312.54 from the net proceeds of the sale of the Notes and the
Certificates. On each Subsequent Transfer Date, the Servicer shall instruct the
Indenture Trustee to withdraw from the Pre-Funding Account an amount equal to:
(i) the aggregate Contract Value of the Subsequent Receivables transferred to
the Issuer on such Subsequent Transfer Date LESS the amounts described in clause
(ii) and clause (iii) below, and distribute such amount to or upon the order of
the Seller upon satisfaction of the conditions set forth in Section 2.2(b) with
respect to such transfer, (ii) the Spread Account Initial Deposit for such
Subsequent Transfer Date and, on behalf of the Seller, deposit such amount in
the Spread Account and (iii) the Principal Supplement Account Deposit for such
Subsequent Transfer Date, and, on behalf of the Seller, deposit such amount in
the Principal Supplement Account.
(b) If: (i) the Pre-Funded Amount has not been reduced to zero on the
Payment Date on which the Funding Period ends (or, if the Funding Period does
not end on a Payment Date, on the first Payment Date following the end of the
Funding Period) or (ii) the Pre-Funded Amount has been reduced to $100,000 or
less on any Determination Date, in either case after giving effect to any
reductions in the Pre-Funded Amount on such date pursuant to paragraph (a), the
Servicer shall instruct the Indenture Trustee to withdraw from the Pre-Funding
Account, in the case of clause (i), on such Payment Date or, in the case of
clause (ii), on the Payment Date immediately succeeding such Determination Date,
the amount remaining at the time in the Pre-Funding Account (such remaining
amount being the "REMAINING PRE-FUNDED AMOUNT") and deposit such amounts in the
Collection Account, for inclusion in the Total Distribution Amount for that
Payment Date.
SECTION 5.8. NEGATIVE CARRY ACCOUNT. On the Closing Date, the Seller
shall deposit the Negative Carry Account Initial Deposit into the Negative Carry
Account. On each Payment Date, the Servicer will instruct the Indenture Trustee
to withdraw from the Negative Carry Account and deposit into the Collection
Account an amount equal to the Negative Carry Amount for such Collection Period.
If the amount on deposit in the Negative Carry Account on any Payment Date
(after giving effect to the withdrawal therefrom of the Negative Carry Amount
for such Payment Date) is greater than the Required Negative Carry Account
Balance, the excess will be released to the Seller.
SECTION 5.9. PRINCIPAL SUPPLEMENT ACCOUNT. On each Subsequent Transfer
Date the Servicer shall calculate the amount, if any, of the Principal
Supplement Account Deposit applicable to such Subsequent Transfer Date, and, if
such amount is positive, the Seller shall deposit such amount into the Principal
Supplement
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Account. In the event that the Noteholders' Distributable Amount for a Payment
Date exceeds the amount deposited into the Note Distribution Account pursuant to
Sections 5.5(b)(ii), (iii), (iv) and (v) and Section 5.6(d) on such Payment
Date, the Servicer shall instruct the Indenture Trustee on such Payment Date to
withdraw from the Principal Supplement Account on such Payment Date an amount
equal to such excess, to the extent of funds available therein, and deposit such
amount into the Note Distribution Account. In the event that the Class Principal
Distributable Amount for any Class of Notes for the applicable final scheduled
maturity date for such Class of Notes exceeds the remainder of the Total
Distribution Amount and the amounts available in the Spread Account pursuant to
Section 5.6(e) for that Payment Date after subtracting the Class Principal
Distributable Amount for each Class of Notes having priority over such Class of
Notes, the Servicer shall instruct the Indenture Trustee on such Payment Date to
withdraw from the Principal Supplement Account on such Payment Date an amount
equal to such excess, to the extent of funds available therein, and deposit such
amount into the Note Distribution Account. Funds on deposit in the Principal
Supplement Account may be withdrawn and paid to the Seller on any day if each
Rating Agency has confirmed that such action will not result in a withdrawal or
downgrade of its rating of any Class of Notes.
SECTION 5.10. STATEMENTS TO CERTIFICATEHOLDERS AND NOTEHOLDERS. (a) On
each Determination Date the Servicer shall provide to the Indenture Trustee
(with a copy to the Rating Agencies), for the Indenture Trustee to forward to
each Noteholder of record, and to the Trustee, for the Trustee to forward to
each Certificateholder of record, a statement substantially in the form of
Exhibits A and B, respectively, setting forth at least the following information
as to each Class of the Notes and the Certificates to the extent applicable:
(i) the amount of such distribution allocable to principal of
each Class of Notes;
(ii) the amount of the distribution allocable to interest of
each Class of Notes;
(iii) the amount of the distribution allocable to principal of
the Certificates;
(iv) the amount of the distribution allocable to interest on
the Certificates;
(v) the Pool Balance as of the close of business on the last
day of the preceding Collection Period;
(vi) the aggregate Outstanding Amount and the Note Pool Factor
for each Class of Notes, and the Certificate Balance and the
Certificate Pool
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Factor as of such Payment Date, after giving effect to payments
allocated to principal reported under clauses (i) and (iii) above;
(vii) the amount of the Servicing Fee paid to the Servicer
with respect to the preceding Collection Period;
(viii) the amount of the Administration Fee paid to the
Administrator in respect of the preceding Collection Period;
(ix) the amount of the aggregate Realized Losses, if any, for
such Collection Period;
(x) the aggregate Purchase Amounts for Receivables, if any,
that were repurchased or purchased in such Collection Period;
(xi) the balance of the Spread Account on such Payment Date,
after giving effect to changes therein on such Payment Date;
(xii) for Payment Dates during the Funding Period, the
remaining Pre-Funded Amount;
(xiii) for the final Payment Date with respect to the Funding
Period, the amount of any remaining Pre-Funded Amount that has not been
used to fund the purchase of Subsequent Receivables;
(xiv) the balance of the Principal Supplement Account on such
Payment Date, after giving effect to changes therein on such Payment
Date; and
(xv) the balance of the Negative Carry Account on such Payment
Date, after giving effect to changes therein on such Payment Date.
Each amount set forth pursuant to clauses (i), (ii), (iii), (iv), (vii) and
(viii) shall be expressed as a dollar amount per $1,000 of original principal
balance of a Certificate or Note, as applicable.
SECTION 5.11. NET DEPOSITS. As an administrative convenience, unless
the Servicer is required to remit collections daily, the Servicer will be
permitted to make the deposit of collections net of distributions, if any, to be
made to the Servicer with respect to the Collection Period. The Servicer,
however, will account to the Trustee, the Indenture Trustee, the Noteholders and
the Certificateholders as if all deposits, distributions and transfers were made
individually.
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ARTICLE VI
THE SELLER
SECTION 6.1. REPRESENTATIONS OF SELLER. The Seller makes the following
representations on which the Issuer is deemed to have relied in acquiring the
Receivables. The representations speak as of the execution and delivery of this
Agreement and shall survive the sale of the Receivables to the Issuer and the
pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) ORGANIZATION AND GOOD STANDING. The Seller is duly
organized and validly existing as a corporation in good standing under
the laws of the State of Delaware, with the corporate power and
authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently
conducted, and had at all relevant times, and has, the corporate power,
authority and legal right to acquire, own and sell the Receivables.
(b) DUE QUALIFICATION. The Seller 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) POWER AND AUTHORITY. The Seller has the power and
authority to execute and deliver this Agreement and to carry out its
terms; the Seller has full power and authority to sell and assign the
property to be sold and assigned to and deposited with the Issuer and
has duly authorized such sale and assignment to the Issuer by all
necessary corporate action; and the execution, delivery and performance
of this Agreement have been, and the execution, delivery and
performance of each Second-Tier Case Subsequent Transfer Assignment
have been or will be on or before the related Subsequent Transfer Date,
duly authorized by the Seller by all necessary corporate action.
(d) BINDING OBLIGATION. This Agreement constitutes, and each
Second-Tier Case Subsequent Transfer Assignment when executed and
delivered by the Seller will constitute, a legal, valid and binding
obligation of the Seller enforceable in accordance with their terms.
(e) NO VIOLATION. 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
Seller, or any indenture, agreement or other instrument to which the
Seller is a party or by which it
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shall be 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 the Basic Documents); or
violate any law or, to the best of the Seller's knowledge, any order,
rule or regulation applicable to the Seller of any court or of any
Federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Seller or its
properties.
(f) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the Seller's best knowledge, threatened, before any
court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties:
(i) asserting the invalidity of this Agreement, the Indenture or any of
the other Basic Documents, the Notes or the Certificates, (ii) seeking
to prevent the issuance of the Notes or the Certificates or the
consummation of any of the transactions contemplated by this Agreement,
the Indenture or any of the other Basic Documents, (iii) seeking any
determination or ruling that could reasonably be expected to materially
and adversely affect the performance by the Seller of its obligations
under, or the validity or enforceability of, this Agreement, the
Indenture, any of the other Basic Documents, the Notes or the
Certificates or (iv) that might adversely affect the Federal or state
income tax attributes of the Notes or the Certificates.
SECTION 6.2. CORPORATE EXISTENCE. (a) During the term of this
Agreement, the Seller will keep in full force and effect its existence, rights
and franchises as a corporation under the laws of the jurisdiction of its
incorporation and will obtain and preserve its qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, the Basic Documents
and each other instrument or agreement necessary or appropriate to the proper
administration of this Agreement and the transactions contemplated hereby.
(b) During the term of this Agreement, the Seller shall observe the
applicable legal requirements for the recognition of the Seller as a legal
entity separate and apart from its Affiliates, including as follows:
(i) the Seller shall maintain corporate records and books of
account separate from those of its Affiliates;
(ii) except as otherwise provided in this Agreement and
similar arrangements relating to other securitizations, the Seller
shall not commingle its assets and funds with those of its Affiliates;
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(iii) the Seller shall hold such appropriate meetings or
obtain such appropriate consents of its Board of Directors as are
necessary to authorize all the Seller's corporate actions required by
law to be authorized by the Board of Directors, shall keep minutes of
such meetings and of meetings of its stockholder(s) and observe all
other customary corporate formalities (and any successor Seller not a
corporation shall observe similar procedures in accordance with its
governing documents and applicable law);
(iv) the Seller shall at all times hold itself out to the
public under the Seller's own name as a legal entity separate and
distinct from its Affiliates; and
(v) all transactions and dealings between the Seller and its
Affiliates will be conducted on an arm's-length basis.
SECTION 6.3. LIABILITY OF SELLER; INDEMNITIES. The Seller shall be
liable in accordance herewith only to the extent of the obligations specifically
undertaken by the Seller under this Agreement.
(a) The Seller shall indemnify, defend and hold harmless the
Issuer, the Trustee and the Indenture Trustee (and their officers,
directors, employees and agents) from and against any taxes that may at
any time be asserted against any of them with respect to the sale of
the Receivables to the Issuer or the issuance and original sale of the
Certificates and the Notes, including any sales, gross receipts,
general corporation, tangible personal property, privilege or license
taxes (but, in the case of the Issuer, not including any taxes asserted
with respect to ownership of the Receivables or Federal or other income
taxes arising out of the transactions contemplated by this Agreement)
and costs and expenses in defending against the same.
(b) The Seller shall indemnify, defend and hold harmless the
Issuer, the Trustee and the Indenture Trustee (and their officers,
directors, employees and agents) from and against any loss, liability
or expense incurred by reason of the Seller's willful misfeasance, bad
faith or negligence in the performance of its duties under this
Agreement, or by reason of reckless disregard of its obligations and
duties under this Agreement.
Indemnification under this Section shall survive the resignation or
removal of the Trustee or the Indenture Trustee or the termination of this
Agreement and the Indenture and shall include reasonable fees and expenses of
counsel and expenses of litigation. If the Seller shall have made any indemnity
payments pursuant to this Section and the Person to or on behalf of whom such
payments are made thereafter shall collect any of such amounts from others, such
Person shall promptly repay such amounts to the Seller, without interest.
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SECTION 6.4. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, SELLER. Any Person: (a) into which the Seller may be merged or
consolidated, (b) that may result from any merger or consolidation to which the
Seller shall be a party or (c) that may succeed to the properties and assets of
the Seller substantially as a whole, which Person (in any of the foregoing
cases) executes an agreement of assumption to perform every obligation of the
Seller under this Agreement (or is deemed by law to have assumed such
obligations), shall be the successor to the Seller hereunder without the
execution or filing of any document or any further act by any of the parties to
this Agreement; PROVIDED, HOWEVER, that: (i) immediately after giving effect to
such transaction, no representation or warranty made pursuant to Section 3.1
shall have been breached and no Servicer Default, and no event that, after
notice or lapse of time, or both, would become a Servicer Default shall have
occurred and be continuing, (ii) the Seller shall have delivered to the Trustee
and the Indenture Trustee an Officers' Certificate and an Opinion of Counsel
each stating that such consolidation, merger or succession and such agreement of
assumption comply with this Section and that all conditions precedent, if any,
provided for in this Agreement relating to such transaction have been complied
with, (iii) the Rating Agency Condition shall have been satisfied with respect
to such transaction and (iv) the Seller shall have delivered to the Trustee and
the Indenture Trustee an Opinion of Counsel either: (A) stating that, in the
opinion of such counsel, all financing statements, continuation statements and
amendments thereto have been executed and filed that are necessary fully to
preserve and protect the interest of the Trustee and Indenture Trustee,
respectively, in the Receivables and reciting the details of such filings, or
(B) stating that, in the opinion of such counsel, no such action shall be
necessary to preserve and protect such interests. Notwithstanding anything
herein to the contrary, the execution of the foregoing agreement of assumption
and compliance with clauses (i), (ii), (iii) and (iv) shall be conditions to the
consummation of the transactions referred to in clauses (a), (b) or (c).
SECTION 6.5. LIMITATION ON LIABILITY OF SELLER AND OTHERS. The Seller
and any director, officer, employee or agent of the Seller may rely in good
faith on the advice of counsel or on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Seller shall not be under any obligation to appear in, prosecute
or defend any legal action that shall not be incidental to its obligations under
this Agreement, and that in its opinion may involve it in any expense or
liability.
SECTION 6.6. SELLER MAY OWN CERTIFICATES OR NOTES. The Seller and any
Affiliate thereof may in its individual or any other capacity become the owner
or pledgee of Certificates or the Notes with the same rights as it would have if
it were not the Seller or an Affiliate thereof, except as expressly provided
herein or in any other Basic Document.
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Notwithstanding the foregoing, the Seller shall not sell the
Certificates except to an entity (a) that has provided an opinion of counsel to
the effect that such sale will not cause the Trust to be treated as a "publicly
traded partnership" under the Code and (b) that either (i) is not an Affiliate
of the Seller or (ii) is an Affiliate of the Seller that (A) is a subsidiary of
Case Credit, the Certificate of Incorporation of which contains restrictions
substantially similar to the restrictions contained in the Certificate of
Incorporation of the Seller and (B) has provided an opinion of counsel regarding
substantive consolidation of such Affiliate with Case Credit in the event of a
bankruptcy filing by Case Credit which is substantially similar to the opinion
of counsel provided by Seller on the Closing Date, and which may be subject to
the same assumptions and qualifications as that opinion.
ARTICLE VII
The Servicer
SECTION 7.1. REPRESENTATIONS OF SERVICER. The Servicer makes the
following representations on which the Issuer is deemed to have relied in
acquiring the Receivables. The representations speak as of the execution and
delivery of the Agreement and as of the Closing Date, in the case of the Initial
Receivables, and as of the applicable Subsequent Transfer Date, in the case of
the Subsequent Receivables, and shall survive the sale of the Receivables to the
Issuer and the pledge thereof to the Indenture Trustee pursuant to the
Indenture.
(a) Organization and Good Standing. The Servicer is duly
organized and validly existing as a corporation in good standing under
the laws of the state of its incorporation, with the corporate power
and authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently
conducted, and had at all relevant times, and has, the power, authority
and legal right to acquire, own, sell and service the Receivables and
to hold the Receivable Files as custodian.
(b) Due Qualification. The Servicer 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
(including the servicing of the Receivables as required by this
Agreement) shall require such qualifications.
(c) Power and Authority. The Servicer has the corporate power
and authority to execute and deliver this Agreement and to carry out
its terms; and the execution, delivery and performance of this
Agreement have been duly authorized by the Servicer by all necessary
corporate action.
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(d) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of the Servicer enforceable against the
Servicer in accordance with its terms.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
shall not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time)
a default under, the articles of incorporation or by-laws of the
Servicer, or any indenture, agreement or other instrument to which the
Servicer is a party or by which it shall be 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 this Agreement); or violate any law or, to the best of the
Servicer's knowledge, any order, rule or regulation applicable to the
Servicer of any court or of any Federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Servicer or its properties.
(f) No Proceedings. There are no proceedings or investigations
pending, or, to the Servicer's best knowledge, threatened, before any
court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Servicer or its
properties: (i) asserting the invalidity of this Agreement, the
Indenture, any of the other Basic Documents, the Notes or the
Certificates, (ii) seeking to prevent the issuance of the Notes or the
Certificates or the consummation of any of the transactions
contemplated by this Agreement, the Indenture or any of the other Basic
Documents, (iii) seeking any determination or ruling that could
reasonably be expected to materially and adversely affect the
performance by the Servicer of its obligations under, or the validity
or enforceability of, this Agreement, the Indenture, any of the other
Basic Documents, the Notes or the Certificates or (iv) relating to the
Servicer and that might adversely affect the Federal or state income
tax attributes of the Notes or the Certificates.
(g) No Insolvent Obligors. As of the Initial Cutoff Date or,
in the case of the Subsequent Receivables, as of the related Subsequent
Cutoff Date, no Obligor is shown on the Receivable Files as the subject
of a bankruptcy proceeding.
SECTION 7.2. Indemnities of Servicer. The Servicer shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer under this Agreement.
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(a) The Servicer shall defend, indemnify and hold harmless the
Issuer, the Trustee, the Indenture Trustee, the Noteholders, the
Certificateholders and the Seller (and any of their officers,
directors, employees and agents) from and against any and all costs,
expenses, losses, damages, claims and liabilities, arising out of or
resulting from:
(i) the use, ownership or operation by the Servicer
or any Affiliate thereof of any of the Financed Equipment;
(ii) any taxes that may at any time be asserted
against any such Person with respect to the transactions
contemplated herein, including any sales, gross receipts,
general corporation, tangible personal property, privilege or
license taxes (but, in the case of the Issuer, not including
any taxes asserted with respect to, and as of the date of, the
sale of the Receivables to the Issuer or the issuance and
original sale of the Certificates, the Notes, or asserted with
respect to ownership of the Receivables, or Federal or other
income taxes arising out of distributions on the Certificates
or the Notes) and costs and expenses in defending against the
same;
(iii) the negligence, willful misfeasance or bad
faith of the Servicer in the performance of its duties under
this Agreement or by reason of reckless disregard of its
obligations and duties under this Agreement; and
(iv) the Seller's or the Issuer's violation of
Federal or State securities laws in connection with the
offering or sale of the Notes.
(b) The Servicer shall indemnify, defend and hold harmless the
Trustee and the Indenture Trustee (and their respective officers,
directors, employees and agents) from and against all costs, expenses,
losses, claims, damages and liabilities arising out of or incurred in
connection with the acceptance or performance of the trusts and duties
herein and, in the case of the Trustee, in the Trust Agreement
contained, and, in the case of the Indenture Trustee, in the Indenture
contained, except to the extent that such cost, expense, loss, claim,
damage or liability:
(i) shall be due to the willful misfeasance, bad
faith or negligence (except for errors in judgment) of the
Trustee or the Indenture Trustee as applicable; or
(ii) shall arise from the breach by the Trustee of
any of its representations or warranties set forth in Section
7.3 of the Trust Agreement.
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(c) The Servicer shall pay any and all taxes levied or
assessed upon all or any part of the Trust Estate.
(d) The Servicer shall pay the Indenture Trustee and the
Trustee from time to time reasonable compensation for all services
rendered by the Indenture Trustee under the Indenture or by the Trustee
under the Trust Agreement (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an
express trust).
(e) The Servicer shall, except as otherwise expressly provided
in the Indenture or the Trust Agreement, reimburse either the Indenture
Trustee or the Trustee, respectively, upon its request for all
reasonable expenses, disbursements and advances incurred or made in
accordance with the Indenture or the Trust Agreement, respectively,
(including the reasonable compensation, expenses and disbursements of
its agents and either in-house counsel or outside counsel, but not
both), except any such expense, disbursement or advance as may be
attributable to the Indenture Trustee's or the Trustee's, respectively
negligence, bad faith or willful misfeasance.
For purposes of this Section, in the event of the termination of the
rights and obligations of the Servicer pursuant to Section 8.1, or a resignation
by the Servicer pursuant to this Agreement, the Servicer shall be deemed to be
the Servicer pending appointment of a successor Servicer pursuant to
Section 8.2.
Indemnification under this Section shall survive the resignation or
removal of the Trustee or the Indenture Trustee or the termination of this
Agreement, the Trust Agreement and the Indenture and shall include reasonable
fees and expenses of counsel and expenses of litigation. If the Servicer shall
have made any indemnity payments pursuant to this Section and the Person to or
on behalf of whom such payments are made thereafter collects any of such amounts
from others, such Person shall promptly repay such amounts to the Servicer,
without interest.
SECTION 7.3. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, SERVICER. Any Person: (a) into which the Servicer may be merged
or consolidated, (b) that may result from any merger or consolidation to which
the Servicer shall be a party, or (c) that may succeed to the properties and
assets of the Servicer substantially as a whole, which Person (in any of the
foregoing circumstances) executes an agreement of assumption to perform every
obligation of the Servicer hereunder (or is deemed by law to have assumed such
obligations), shall be the successor to the Servicer under this Agreement
without further act on the part of any of the parties to this Agreement;
provided, however, that: (i) immediately after giving effect to such
transaction, no Servicer Default, and no event that, after notice or lapse of
time, or both, would become a Servicer Default shall have occurred and be
continuing, (ii) the Servicer shall have delivered to the Trustee and Indenture
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Trustee an Officers' Certificate and an Opinion of Counsel each stating that
such consolidation, merger or succession and such agreement of assumption comply
with this Section and that all conditions precedent, if any, provided for in
this Agreement relating to such transaction have been complied with, (iii) the
Rating Agencies shall have received at least ten days' prior written notice of
such transaction and (iv) the Servicer shall have delivered to the Trustee and
the Indenture Trustee an Opinion of Counsel either: (A) stating that, in the
opinion of such counsel, all financing statements, continuation statements and
amendments thereto have been executed and filed that are necessary fully to
preserve and protect the interest of the Trustee and the Indenture Trustee,
respectively, in the Receivables and reciting the details of such filings, or
(B) stating that, in the opinion of such counsel, no such action shall be
necessary to preserve and protect such interests. Notwithstanding anything
herein to the contrary, the execution of the foregoing agreement of assumption
and compliance with clauses (i), (ii), (iii) and (iv) shall be conditions to the
consummation of the transactions referred to in clauses (a), (b) or (c).
SECTION 7.4. LIMITATION ON LIABILITY OF SERVICER AND OTHERS. Neither
the Servicer nor any of the directors, officers, employees or agents of the
Servicer shall be under any liability to the Issuer, the Noteholders or the
Certificateholders, except as provided under this Agreement, for any action
taken or for refraining from the taking of any action pursuant to this Agreement
or for errors in judgment; PROVIDED, HOWEVER, that this provision shall not
protect the Servicer or any such Person against any liability that would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in the performance of its duties or by reason of reckless disregard of
obligations and duties under this Agreement. The Servicer and any director,
officer, employee or agent of the Servicer may rely in good faith on the advice
of counsel or on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder.
Except as provided in this Agreement, the Servicer shall not be under
any obligation to appear in, prosecute or defend any legal action that shall not
be incidental to its duties to service the Receivables in accordance with this
Agreement, and that in its opinion may involve it in any expense or liability;
PROVIDED, HOWEVER, that the Servicer may undertake any reasonable action that it
may deem necessary or desirable in respect of this Agreement, the Basic
Documents and the rights and duties of the parties to this Agreement, the other
Basic Documents and the interests of the Certificateholders under this Agreement
and the Noteholders under the Indenture.
SECTION 7.5. CASE CREDIT NOT TO RESIGN AS SERVICER. Subject to Section
7.3, Case Credit shall not resign from the obligations and duties imposed on it
as Servicer under this Agreement except upon determination that the performance
of its duties under this Agreement shall no longer be permissible under
applicable law. Notice of any such determination shall be communicated to the
Trustee and the Indenture Trustee at the earliest practicable time (and, if such
communication is not in writing,
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shall be confirmed in writing at the earliest practicable time) and any such
determination shall be evidenced by an Opinion of Counsel to such effect
delivered to the Trustee and the Indenture Trustee concurrently with or promptly
after such notice. No such resignation shall become effective until the
Indenture Trustee or a successor Servicer shall have assumed the
responsibilities and obligations of Case Credit in accordance with Section 8.2.
SECTION 7.6. SERVICER TO ACT AS ADMINISTRATOR. In the event of the
resignation or removal of the Administrator and the failure of a successor
Administrator to have been appointed and to have accepted such appointment as
successor Administrator, the Servicer shall become the successor Administrator
and shall be bound by the terms of the Administration Agreement.
ARTICLE VIII
DEFAULT
SECTION 8.1. SERVICER DEFAULT. If any one of the following events (a
"SERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to deliver to the Indenture
Trustee for deposit in any of the Trust Accounts or the Certificate
Distribution Account any required payment or to direct the Indenture
Trustee or the Trustee to make any required distributions therefrom,
which failure continues unremedied for three Business Days after
written notice of such failure is received by the Servicer from the
Trustee or the Indenture Trustee or after discovery of such failure by
an officer of the Servicer;
(b) any failure by the Servicer or the Seller, as the case may
be, duly to observe or to perform in any material respect any other
covenants or agreements (other than as set forth in clause (a)) of the
Servicer or the Seller (as the case may be) set forth in this Agreement
or any other Basic Document, which failure shall: (i) materially and
adversely affect the rights of Certificateholders or Noteholders and
(ii) continue unremedied for a period of 60 days after the date on
which written notice of such failure, requiring the same to be
remedied, shall have been given: (A) to the Servicer or the Seller (as
the case may be) by the Trustee or the Indenture Trustee or (B) to the
Servicer or the Seller (as the case may be) and to the Trustee and the
Indenture Trustee, by the Noteholders or Certificateholders, as
applicable, evidencing not less than 25% of the Outstanding Amount of
the Notes or 25% of the Certificate Balance; or
(c) an Insolvency Event occurs with respect to the Seller or
the Servicer;
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then, and in each and every case, so long as the Servicer Default shall not have
been remedied, either the Indenture Trustee, or the Holders of Notes evidencing
not less than 25% of the Outstanding Amount of the Notes, by notice then given
in writing to the Servicer (and to the Indenture Trustee and the Trustee if
given by the Noteholders), may terminate all the rights and obligations (other
than the obligations set forth in Section 7.2) of the Servicer under this
Agreement. On or after the receipt by the Servicer of such written notice, all
authority and power of the Servicer under this Agreement, whether with respect
to the Notes, the Certificates, the Receivables or otherwise, shall, without
further action, pass to and be vested in the Indenture Trustee or such successor
Servicer as may be appointed under Section 8.2; and, without limitation, the
Indenture Trustee and the Trustee are hereby authorized and empowered to execute
and deliver, for the benefit of the predecessor Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement of the
Receivables and related documents, or otherwise. The predecessor Servicer shall
cooperate with the successor Servicer, the Indenture Trustee and the Trustee in
effecting the termination of the responsibilities and rights of the predecessor
Servicer under this Agreement, including the transfer to the successor Servicer
for administration by it of: (i) all cash amounts that shall at the time be held
by the predecessor Servicer for deposit, or shall thereafter be received by it
with respect to a Receivable and (ii) all Receivable Files. All reasonable costs
and expenses (including attorneys' fees) incurred in connection with
transferring the Receivable Files to the successor Servicer and amending this
Agreement to reflect its succession as Servicer shall be paid by the predecessor
Servicer upon presentation of reasonable documentation of such costs and
expenses. Upon receipt of notice of the occurrence of a Servicer Default, the
Trustee shall give notice thereof to the Rating Agencies.
SECTION 8.2. APPOINTMENT OF SUCCESSOR SERVICER. (a) Upon the Servicer's
receipt of notice of termination, pursuant to Section 8.1, or the Servicer's
resignation in accordance with this Agreement, the predecessor Servicer shall
continue to perform its functions as Servicer under this Agreement, in the case
of termination, only until the date specified in such termination notice or, if
no such date is specified in a notice of termination, until receipt of such
notice and, in the case of resignation, until the earlier of: (x) the date 45
days from the delivery to the Trustee and the Indenture Trustee of written
notice of such resignation (or written confirmation of such notice) in
accordance with this Agreement and (y) the date upon which the predecessor
Servicer shall become unable to act as Servicer, as specified in the notice of
resignation and accompanying Opinion of Counsel. In the event of the Servicer's
termination hereunder, the Issuer shall appoint a successor Servicer acceptable
to the Indenture Trustee, and the successor Servicer shall accept its
appointment by a written assumption in form acceptable to the Indenture Trustee.
In the event that a successor Servicer has not been appointed at the time when
the predecessor Servicer
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has ceased to act as Servicer in accordance with this Section, the Indenture
Trustee without further action shall automatically be appointed the successor
Servicer and shall be entitled to the Servicing Fee. Notwithstanding the above,
the Indenture Trustee shall, if it shall be unable so to act, appoint or
petition a court of competent jurisdiction to appoint any established
institution, having a net worth of not less than $50,000,000 and whose regular
business shall include the servicing of receivables, as the successor to the
Servicer under this Agreement.
(b) Upon appointment, the successor Servicer (including the Indenture
Trustee acting as successor Servicer) shall be the successor in all respects to
the predecessor Servicer (except with respect to responsibilities and
obligations of the predecessor Servicer set forth in Section 7.2) and shall be
subject to all the responsibilities, duties and liabilities arising thereafter
relating thereto placed on the predecessor Servicer and shall be entitled to the
Servicing Fee and all the rights granted to the predecessor Servicer by this
Agreement. Any successor Servicer shall from time to time provide to Case Credit
such information as Case Credit shall request with respect to the Receivables
and collections thereon.
(c) Subject to the last sentence of clause (a), the Servicer may not
resign unless it is prohibited from serving as such by law as evidenced by an
Opinion of Counsel to such effect delivered to the Indenture Trustee and the
Trustee.
SECTION 8.3. NOTIFICATION TO NOTEHOLDERS AND CERTIFICATEHOLDERS. Upon
any termination of, or appointment of a successor to, the Servicer pursuant to
this Article VIII, the Trustee shall give prompt written notice thereof to the
Certificateholders and the Indenture Trustee shall give prompt written notice
thereof to the Noteholders and the Rating Agencies.
SECTION 8.4. WAIVER OF PAST DEFAULTS. The Noteholders of Notes
evidencing not less than a majority of the Note Balance (or the Holders of
Certificates evidencing not less than a majority of the Certificate Balance, in
the case of any default that does not adversely affect the Indenture Trustee or
the Noteholders) may, on behalf of all the Noteholders and Certificateholders,
waive in writing any default by the Servicer in the performance of its
obligations hereunder and its consequences, except a default in making any
required deposits to or payments from any of the Trust Accounts in accordance
with this Agreement. Upon any such waiver of a past default, such default shall
cease to exist, and any Servicer Default arising therefrom shall be deemed to
have been remedied for every purpose of this Agreement. No such waiver shall
extend to any subsequent or other default or impair any right consequent
thereto.
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ARTICLE IX
TERMINATION
SECTION 9.1. OPTIONAL PURCHASE OF ALL RECEIVABLES. (a) As of the first
day of any Collection Period immediately preceding a Payment Date as of which
the Pool Balance is 10% or less of the Initial Pool Balance, the Servicer shall
have the option to purchase all of the Trust Estate, other than the Trust
Accounts. To exercise such option, the Servicer shall deposit, pursuant to
Section 5.4, in the Collection Account an amount equal to the aggregate Purchase
Amount for the Receivables plus the appraised value of any such other property
held by the Trust, such value to be determined by an appraiser mutually agreed
upon by the Servicer, the Trustee and the Indenture Trustee, and shall succeed
to all interests in, to and under the Trust Estate, other than the Trust
Accounts.
(b) Upon any sale of the assets of the Trust, the Servicer shall
instruct the Indenture Trustee to deposit the proceeds from such sale after all
payments and reserves therefrom have been made (the "Sale Proceeds") in the
Collection Account. On the Payment Date on, or, if such proceeds are not so
deposited on a Payment Date, on the first Payment Date following the date on
which the Sale Proceeds are deposited in the Collection Account, the Servicer
shall instruct the Indenture Trustee to make the following deposits (after the
application on such Payment Date of the Total Distribution Amount and funds on
deposit in the Spread Account pursuant to Sections 5.5 and 5.6) from the Sale
Proceeds and any funds remaining on deposit in the Spread Account (including the
proceeds of any sale of investments therein as described in the following
sentence):
(i) FIRST, to the Note Distribution Account, any portion of
the Class A Noteholders' Class Interest Amount and the Outstanding
Amount of the Class A Notes (after giving effect to the reduction
resulting from the deposits made in the Note Distribution Account on
such Payment Date and on prior Payment Dates) not otherwise deposited
into the Note Distribution Account on such Payment Date;
(ii) SECOND, to the Note Distribution Account, any portion of
the Class B Noteholders' Class Interest Amount and the Outstanding
Amount of the Class B Notes (after giving effect to the reduction
resulting from the deposits made in the Note Distribution Account on
such Payment Date and on prior Payment Dates) not otherwise deposited
into the Note Distribution Account on such Payment Date;
(iii) THIRD, to the Certificate Distribution Account, any
portion of the Certificateholders' Interest Distributable Amount not
otherwise deposited into the Certificate Distribution Account on such
Payment Date; and
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(iv) FOURTH, to the Certificate Distribution Account, the
Certificate Balance (after giving effect to the reduction resulting
from the deposits made in the Certificate Distribution Account on such
Payment Date).
Any investments on deposit in the Spread Account that will not mature on or
before such Payment Date shall be sold by the Indenture Trustee at such time as
will result in the Indenture Trustee receiving the proceeds from such sale not
later than the Transfer Date preceding such Payment Date. Any Sale Proceeds
remaining after the deposits described above shall be paid to the Seller.
(c) As described in Article IX of the Trust Agreement, notice of any
termination of the Trust shall be given by the Servicer to the Trustee and the
Indenture Trustee as soon as practicable after the Servicer has received notice
thereof.
(d) Following the satisfaction and discharge of the Indenture and the
payment in full of the principal of and interest on the Notes, the
Certificateholders will succeed to the rights of the Noteholders hereunder and
the Trustee will succeed to the rights of, and assume the obligations of, the
Indenture Trustee pursuant to this Agreement.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. AMENDMENT. The Agreement may be amended from time to time
by a written amendment duly executed and delivered by the Seller, the Servicer
and the Issuer, with the written consent of the Indenture Trustee, but without
the consent of any of the Noteholders or the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions in this Agreement or for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions in this Agreement or of modifying in any manner the rights of
the Noteholders or the Certificateholders; PROVIDED, HOWEVER, that such action
shall not, as evidenced by an Opinion of Counsel delivered to the Trustee and
the Indenture Trustee, adversely affect in any material respect the interests of
any Noteholder or Certificateholder.
The Specified Spread Account Balance may be reduced or the definition
thereof otherwise modified without the consent of any of the Noteholders or the
Certificateholders if the Rating Agency Condition is satisfied.
This Agreement may also be amended from time to time by the Seller, the
Servicer and the Issuer, with the written consent of the Indenture Trustee, but
without the consent of any of the Noteholders or the Certificateholders, to:
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(x) replace the Spread Account with another form of credit enhancement as long
as such substitution will not result in a reduction or withdrawal of the rating
of any Class of the Notes or the Certificates or (y) add credit enhancement for
the benefit of any Class of the Notes or the Certificates.
This Agreement may also be amended from time to time by the Seller, the
Servicer and the Issuer, with the written consent of (a) the Indenture Trustee,
(b) Noteholders holding Notes evidencing not less than a majority of the Note
Balance, and (c) 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 Notes and the Certificates that
are 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 or the
Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof.
Prior to the execution of any amendment to this Agreement, the Trustee
and the Indenture Trustee shall be entitled to receive and rely upon: (i) an
Opinion of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement and that all conditions precedent to such execution
and delivery by the Trustee and the Indenture Trustee have been satisfied and
(ii) the Opinion of Counsel referred to in Section 10.2(i)(1). The Trustee and
the Indenture Trustee may, but shall not be obligated to, enter into any such
amendment that affects the Trustee's or the Indenture Trustee's, as applicable,
own rights, duties or immunities under this Agreement or otherwise.
SECTION 10.2. PROTECTION OF TITLE TO TRUST. (a) The Seller shall
execute and file such financing statements, and cause to be executed and filed
such continuation statements, all in such manner and in such places as may be
required by applicable law fully to preserve, maintain and protect the right,
title and interest of the Issuer and the interests of the Indenture Trustee in
the Receivables, the other property sold
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hereunder and in the proceeds thereof. The Seller shall deliver (or cause to be
delivered) to the Trustee and the Indenture Trustee file-stamped copies of, or
filing receipts for, any document filed as provided above as soon as available
following such filing. It is understood and agreed, however, that no filings
will be made to perfect any security interest of the Issuer or the Indenture
Trustee in the Seller's interests in True Lease Equipment. The Issuer and the
Indenture Trustee shall cooperate fully with the Seller in connection with the
obligations set forth above and will execute any and all documents reasonably
required to fulfill the intent of this paragraph.
(b) Neither the Seller nor the Servicer shall change its name, identity
or corporate structure in any manner that would, could or might make any
financing statement or continuation statement filed in accordance with paragraph
(a) seriously misleading within the applicable provisions of the UCC, unless it
shall have given the Trustee and the Indenture Trustee at least five days' prior
written notice thereof and shall have promptly filed appropriate amendments to
all previously filed financing statements or continuation statements.
(c) Each of the Seller and the Servicer shall have an obligation to
give the Trustee and the Indenture Trustee at least 60 days' prior written
notice of any relocation of its principal executive office if, as a result of
such relocation, the applicable provisions of the UCC would require the filing
of any amendment of any previously filed financing or continuation statement or
of any new financing statement and shall promptly file any such amendment. The
Servicer shall at all times maintain each office from which it shall service
Receivables, and its principal executive office, within the United States of
America.
(d) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit: (i) the reader thereof
to know at any time the status of such Receivable, including payments and
recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Collection Account
in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so that, from and
after the time of sale under this Agreement of the Receivables, the Servicer's
master computer records (including any backup archives) that refer to a
Receivable shall indicate clearly the interest of the Issuer and the Indenture
Trustee in such Receivable and that such Receivable is owned by the Issuer and
has been pledged to Harris, as Indenture Trustee. Indication of the Issuer's and
the Indenture Trustee's interest in a Receivable may be deleted from or modified
on the Servicer's computer systems when, and only when, the related Receivable
shall have been paid in full or repurchased.
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(f) If at any time the Seller or the Servicer shall propose to sell,
grant a security interest in, or otherwise transfer any interest in equipment
receivables to any prospective purchaser, lender or other transferee, the
Servicer shall give to such prospective purchaser, lender or other transferee
computer tapes, records or printouts (including any restored from backup
archives) that, if they shall refer in any manner whatsoever to any Receivable,
shall indicate clearly that such Receivable has been sold and is owned by the
Issuer and has been pledged to the Indenture Trustee.
(g) The Servicer shall permit the Indenture Trustee and its agents at
any time during normal business hours to inspect, audit and make copies of and
abstracts from the Servicer's records regarding any Receivable.
(h) Upon request, the Servicer shall furnish to the Trustee or to the
Indenture Trustee, within five Business Days, a list of all Receivables (by
contract number and name of Obligor) then held as part of the Trust, together
with a reconciliation of such list to the Schedule of Receivables and to each of
the Servicer's Certificates furnished before such request indicating removal of
Receivables from the Trust.
(i) The Servicer shall deliver to the Trustee and the Indenture
Trustee:
(1) promptly after the execution and delivery of this
Agreement and of each amendment hereto, an Opinion of Counsel either:
(A) stating that, in the opinion of such counsel, all financing
statements and continuation statements have been executed and filed
that are necessary fully to preserve and protect the interest of the
Trustee and the Indenture Trustee in the Receivables, and reciting the
details of such filings or referring to prior Opinions of Counsel in
which such details are given, or (B) stating that, in the opinion of
such counsel, no such action shall be necessary to preserve and protect
such interest; and
(2) within 90 days after the beginning of each calendar year
beginning with the first calendar year beginning more than three months
after the Initial Cutoff Date, an Opinion of Counsel, dated as of a
date during such 90-day period, either: (A) stating that, in the
opinion of such counsel, all financing statements and continuation
statements have been executed and filed that are necessary fully to
preserve and protect the interest of the Trustee and the Indenture
Trustee in the Receivables, and reciting the details of such filings or
referring to prior Opinions of Counsel in which such details are given,
or (B) stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interest.
Each Opinion of Counsel referred to in clause (1) or (2) shall specify
any action necessary (as of the date of such opinion) to be taken in the
following year to preserve and protect such interest.
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(j) The Seller shall, to the extent required by applicable law, cause
the Certificates and the Notes to be registered with the Commission pursuant to
Section 12(b) or Section 12(g) of the Exchange Act within the time periods
specified in such sections.
SECTION 10.3. NOTICES. All demands, notices, directions, instructions
and communications upon or to the Seller, the Servicer, the Issuer, the Trustee,
the Indenture Trustee or the Rating Agencies under this Agreement shall be in
writing, personally delivered or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt: (a) in the
case of the Seller, to CNH Receivables Inc., 475 Half Day Road, Lincolnshire,
Illinois 60069, Attention of: Treasurer (telephone (847) 955-4904 and facsimile
(847) 955-1006, (b) in the case of the Servicer, to Case Credit Corporation, 233
Lake Avenue, Racine, Wisconsin 53403, Attention: Treasurer (telephone (414)
636-6011 and facsimile (414) 636- 6284), (c) in the case of the Issuer or the
Trustee, at its Corporate Trust Office, (d) in the case of the Indenture
Trustee, at its Corporate Trust Office, (e) in the case of Moody's, to Moody's
Investors Service, Inc., ABS Monitoring Department, 99 Church Street, New York,
New York 10007, and (f) in the case of Standard & Poor's, to Standard & Poor's
Ratings Services, a division of McGraw-Hill Companies, Inc., 55 Water Street,
New York, New York 10041, Attention of Asset Backed Surveillance Department; or,
as to each of the foregoing, at such other address as shall be designated by
written notice to the other parties.
SECTION 10.4. ASSIGNMENT. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 6.4 and 7.3 and as provided in
the provisions of this Agreement concerning the resignation of the Servicer,
this Agreement may not be assigned by the Seller or the Servicer.
SECTION 10.5. LIMITATIONS ON RIGHTS OF OTHERS. The provisions of this
Agreement are solely for the benefit of the Seller, the Servicer, the Issuer,
the Trustee, the Certificateholders, 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 10.6. 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.
41
<PAGE>
SECTION 10.7. SEPARATE COUNTERPARTS. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 10.8. 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 10.9. GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the State of New York, 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 10.10. ASSIGNMENT TO INDENTURE TRUSTEE. The Seller hereby
acknowledges and consents to any mortgage, pledge, assignment and grant of a
security interest by the Issuer to the Indenture Trustee pursuant to the
Indenture for the benefit of the Noteholders of all right, title and interest of
the Issuer in, to and under the Receivables and/or the assignment of any or all
of the Issuer's rights and obligations hereunder to the Indenture Trustee, and
agrees that enforcement of a right or remedy hereunder by the Indenture Trustee
shall have the same force and effect as if the right or remedy had been enforced
or executed by the Issuer.
SECTION 10.11. NONPETITION COVENANTS. (a) Notwithstanding any prior
termination of this Agreement, the Servicer and the Seller shall not, prior to
the date that is one year and one day after the termination of this Agreement,
with respect to the Issuer, acquiesce, petition or otherwise invoke or cause the
Issuer to invoke the process of any court or governmental authority for the
purpose of commencing or sustaining a case against the Issuer under any Federal
or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Issuer or any substantial part of its property, or ordering the winding
up or liquidation of the affairs of the Issuer. The foregoing shall not limit
the right of the Servicer and the Seller to file any claim in or otherwise take
any action with respect to any such insolvency proceeding that was instituted
against the Issuer by any Person other than the Servicer or the Seller.
(b) Notwithstanding any prior termination of this Agreement, the
Servicer shall not, prior to the date that is one year and one day after the
termination of this Agreement, with respect to the Seller, acquiesce, petition
or otherwise invoke or cause the Seller to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Seller under any Federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Seller or any substantial part of
its property, or ordering the winding up or liquidation of the
42
<PAGE>
affairs of the Seller. The foregoing shall not limit the right of the Servicer
to file any claim in or otherwise take any action with respect to any such
insolvency proceeding that was instituted against the Seller by any Person other
than the Servicer.
SECTION 10.12. LIMITATION OF LIABILITY OF TRUSTEE AND INDENTURE
TRUSTEE. (a) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by The Bank of New York, not in its individual
capacity but solely in its capacity as Trustee of the Issuer, and in no event
shall The Bank of New York, in its individual capacity or, except as expressly
provided in the Trust Agreement, any beneficial owner of the Issuer have any
liability for the representations, warranties, covenants, agreements or other
obligations of the Issuer hereunder or in any of the certificates, notices or
agreements delivered pursuant hereto, as to all of which recourse shall be had
solely to the assets of the Issuer.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been accepted by Harris Trust and Savings Bank, not in its
individual capacity but solely as Indenture Trustee, and in no event shall
Harris Trust and Savings Bank have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder
or in any of the certificates, notices or agreements delivered pursuant hereto,
as to all of which recourse shall be had solely to the assets of the Issuer.
43
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
CNH EQUIPMENT TRUST 2000-A
By: THE BANK OF NEW YORK,
not in its individual capacity but
solely as Trustee of the Trust
By: /s/ Erwin Soriano
--------------------------------------
Name: Erwin Soriano
Title Assistant Treasurer
CNH RECEIVABLES INC.,
as Seller
By: /s/ Ralph A. Than
--------------------------------------
Name: Ralph A. Than
Title: Vice President and Treasurer
CASE CREDIT CORPORATION,
as Servicer
By: /s/ Ralph A. Than
----------------------------------------
Name: Ralph A. Than
Title: Vice President and Treasurer
Acknowledged and Accepted:
HARRIS TRUST AND SAVINGS BANK,
not in its individual capacity
but solely as Indenture Trustee
By: /s/ Rory Nowakowski
------------------------
Name: Rory Nowakowski
Title: Assistant Vice President
<PAGE>
EXHIBIT A
to Sale and Servicing Agreement
FORM OF NOTEHOLDER'S
STATEMENT PURSUANT TO SECTION 5.10(a)
Payment Date: ______________________
(i) Amount of principal being paid on Notes:
A-1 Notes: ____________ ($_____ per $1,000 original principal amount)
A-2 Notes: ____________ ($_____ per $1,000 original principal amount)
A-3 Notes: ____________ ($_____ per $1,000 original principal amount)
A-4 Notes: ____________ ($_____ per $1,000 original principal amount)
Class B Notes: ____________ ($_____ per $1,000 original principal amount)
(ii) Amount of interest being paid on Notes:
A-1 Notes: ____________ ($_____ per $1,000 original principal amount)
A-2 Notes: ____________ ($_____ per $1,000 original principal amount)
A-3 Notes: ____________ ($_____ per $1,000 original principal amount)
A-4 Notes: ____________ ($_____ per $1,000 original principal amount)
Class B Notes: ____________ ($_____ per $1,000 original principal amount)
(iii)Pool Balance at end of the preceding Collection Period: _____
(iv) After giving effect to distributions on this Payment Date:
(a) (1) Outstanding Amount of A-1 Notes: _______
(2) Outstanding Amount of A-2 Notes: _______
(3) Outstanding Amount of A-3 Notes: _______
(4) Outstanding Amount of A-4 Notes: _______
(5) Outstanding Amount of Class B Notes: _______
(6) A-1 Note Pool Factor: _____
(7) A-2 Note Pool Factor: _____
(8) A-3 Note Pool Factor: _____
(9) A-4 Note Pool Factor: _____
45
<PAGE>
(10) Class B Note Pool Factor: _____
(b) (1) Certificate Balance: __________
(2) Certificate Pool Factor: __________
(v) Amount of Servicing Fee:____ ($_____ per $1,000 original principal
amount)
(vi) Amount of Administration Fee:____ ($____ per $1,000 original principal
amount)
(vii) Aggregate Amount of Realized Losses for the Collection Period: _________
(viii) Aggregate Purchase Amounts for the Collection Period: __________
(ix) Balance of Spread Account: __________
(x) Pre-funded Amount: __________
(xi) Balance of Principal Supplement Account:__________
(xii) Balance of Negative Carry Account: __________
46
<PAGE>
EXHIBIT B
to Sale and Servicing Agreement
FORM OF CERTIFICATEHOLDER'S
STATEMENT PURSUANT TO SECTION 5.10(a)
Payment Date: ______________________
(i) Amount of principal being paid or distributed:
(a) (1) A-1 Notes: __________
(2) A-2 Notes: __________
(3) A-3 Notes: __________
(4) A-4 Notes: __________
(5) Class B Notes: __________
(b) Certificates: ___________ ($_____ per $1,000 original principal
amount)
(c) Total: __________
(ii) Amount of interest being paid or distributed:
(a) (1) A-1 Notes: __________
(2) A-2 Notes: __________
(3) A-3 Notes: __________
(4) A-4 Notes: __________
(5) Class B Notes: __________
(b) Certificates: ___________ ($_____ per $1,000 original principal
amount)
(c) Total: __________
(iii) Pool Balance at end of the preceding Collection Period: _____
(iv) After giving effect to distributions on this Payment Date:
(a) (1) Outstanding Amount of A-1 Notes: _______
(2) Outstanding Amount of A-2 Notes: _______
(3) Outstanding Amount of A-3 Notes: _______
(4) Outstanding Amount of A-4 Notes: _______
(5) Outstanding Amount of Class B Notes: _______
(6) A-1 Note Pool Factor: _____
(7) A-2 Note Pool Factor: _____
(8) A-3 Note Pool Factor: _____
47
<PAGE>
(9) A-4 Note Pool Factor: _____
(10) Class B Note Pool Factor: _____
(b) (1) Certificate Balance: __________
(2) Certificate Pool Factor: __________
(v) Amount of Servicing Fee: ____ ($_____ per $1,000 original principal
amount)
(vi) Amount of Administration Fee: ____ ($____ per $1,000 original principal
amount)
(vii) Aggregate amount of Realized Losses for the Collection Period:
__________
(viii) Aggregate Purchase Amounts for the Collection Period: __________
(ix) Balance of Spread Account: __________
(x) Pre-Funded Amount:__________
(xi) Balance of Negative Carry Account: __________
48
<PAGE>
EXHIBIT C
to Sale and Servicing Agreement
FORM OF SERVICER'S CERTIFICATE
The Bank of New York
101 Barclay Street, Floor 12E
New York, New York 10286
Attention: Corporate Trust Administration - Asset Backed Finance Unit
Harris Trust and Savings Bank
311 West Monroe Street
12th Floor
Chicago, Illinois 60606
Attention: Indenture Trust Administration
CNH Receivables Inc.
475 Half Day Road
Lincolnshire, Illinois 60069
Attention: Secretary
Moody's Investors Service, Inc.
ABS Monitoring Department
99 Church Street
New York, New York 10007
Standard & Poor's Ratings Services,
a division of McGraw-Hill Companies, Inc.
55 Water Street
New York, New York 10041
Attention: Asset Backed Surveillance Department
49
<PAGE>
Class A-1 Asset-Backed Notes
Class A-2 Asset-Backed Notes
Class A-3 Asset-Backed Notes
Class A-4 Asset-Backed Notes
Class B Asset-Backed Notes
Certificates
----------------------------
Determination Date: __-___-__
DISTRIBUTIONS
(1) Total Distribution Amount $________
(2) Servicing Fee $________
(3) Administration Fee $________
(4) Class A Noteholder's Class Interest Amount: $________
o Interest on Class A Notes ($________)
o Class A Noteholder's Class Interest Shortfall, if any ($___________)
(5) Class B Noteholders' Class Interest Amount $________
o Interest on Class B Notes ($_________)
o Class B Noteholders' Class
Interest Shortfall ($_______)
(6) Class Principal Distributable Amount $________
o Class A Noteholders' Monthly Principal Distributable Amount
o Class Principal Distributable Amount for each Class of Class A Notes
having priority of payment over such Class of Class A Notes
o Outstanding principal amount of that Class
(7) Class A Noteholders' Monthly Principal Distributable Amount $________
o Aggregate scheduled principal payments on the Receivables received
during the Collection Period ($_________)
o Outstanding principal balance of the Class A Notes and Certificates
($________)
o Pool Balance ($________)
o Amounts on deposit in the Pre-Funding
Account ($________)
o Outstanding amount of Class A Notes ($________)
50
<PAGE>
(8) A-1 Noteholders' Class Principal Distributable Amount $________
o Class A Noteholders' Monthly Principal
Distributable Amount ($________)
o A-1 Noteholders' outstanding principal amount ($________)
(9) A-2 Noteholders' Class Principal Distributable Amount $________
o Class A Noteholders' Monthly Principal
Distributable Amount ($________)
o A-1 Noteholders' Class Principal Distributable Amount ($________)
o A-2 Noteholders' Outstanding Amount ($________)
(10) A-3 Noteholders' Class Principal Distributable Amount $________
o Class A Noteholders' Monthly Principal
Distributable Amount ($________)
o A-1 Noteholders' Class Principal Distributable Amount ($________)
o A-2 Noteholders' Class Principal Distributable Amount ($________)
o A-3 Noteholders' Outstanding Amount ($________)
(11) A-4 Noteholders' Class Principal Distributable Amount $________
o Class A Noteholders' Monthly Principal
Distributable Amount ($________)
o A-1 Noteholders' Class Principal Distributable Amount ($________)
o A-2 Noteholders' Class Principal Distributable Amount ($________)
o A-3 Noteholders' Class Principal Distributable Amount ($________)
o A-4 Noteholders' Outstanding Amount ($________)
(12) Class B Noteholders' Monthly Principal Distributable Amount $________
o Outstanding principal balance of the Class A Notes (after giving
effect to payments on the Class A Notes), Class B Notes and the
Certificates ($________)
o Pool Balance ($________)
o Amounts on deposit in the Pre-Funding Account ($________)
o Outstanding amount of Class B Notes ($________)
(13) NOTEHOLDERS' DISTRIBUTABLE AMOUNT $________
(4)+ (5)+(8)+(9)+(10)+(11)+(12)
51
<PAGE>
(14) Certificateholders' Interest Distributable Amount $________
o Interest at the Pass-Through Rate on Certificate Balance ($________)
o Certificateholders' Interest Shortfall ($________)
(15) Certificateholders' Monthly Principal Distributable Amount $________
o Outstanding principal balances of the Class A Notes and the Class B
Notes (after giving effect to payments on the Class A Notes and
Class B Notes) and the Certificates ($________)
o Pool Balance ($________)
o Amounts on deposit in the Pre-Funding Account ($________)
o Outstanding amount of Certificates ($________)
(16) CERTIFICATEHOLDERS' DISTRIBUTABLE AMOUNT (14)+(15) $________
(17) Deposit to Note Distribution Account $________
o Excess, if any, of Total Distribution Amount (1), less the
Administration Fee (3), less the Servicing Fee (2*)
o Withdrawal from Spread Account pursuant to Section 5.6(d)
(see (24) below)
o Withdrawal from Spread Account pursuant to Section 5.6(e)
(see (25) below)
o Withdrawal from Principal Supplement Accounts pursuant to Section 5.9
o But not greater than the Noteholders' Distributable Amount (13)
(18) Deposit to Spread Account pursuant to Section 5.5(b)(vi) $________
o Excess, if any, of Total Distribution Amount (1), less the
Administration Fee (3), less the Servicing Fee (2*), less the
Noteholders' Distributable Amount (13)
o But not greater than Item (22) below
(19) Deposit to Certificate Distribution Account $________
o Excess, if any, of Total Distribution Amount (1), less the
Administration Fee (3), less the Servicing Fee (2*), less the
Noteholders' Distributable Amount (13), less the Deposit to Spread
Account (18)
o But not greater than the Certificateholders' Distributable Amount (16)
* The Servicing Fee (2) shall not be included if Case Credit or an
Affiliate of Case Credit is the Servicer.
52
<PAGE>
SPREAD ACCOUNT
(20) Spread Account Balance as of Determination Date $________
(prior to any deposits or withdrawals)
(21) Specified Spread Account Balance (after all distributions and $________
adjustments)
(22) Limit on Deposit to the Spread Account $________
o The excess, if any, of the Specified Spread Account Balance (21)
less the Spread Account Balance as of the Determination Date (prior
to any deposits or withdrawals) (20)
(23) Withdrawal from Spread Account distributed to Seller (as $________
permitted in Sections 5.6(b) and (c) of the Sale and Servicing
Agreement)
o The excess, if any, of the Spread Account Balance as of the
Determination Date (prior to any deposits or withdrawals) (20) less
the Specified Spread Account Balance (21)
o But zero, if (a) the sum of the Pool Balance (23) and the
Pre-Funded Amount as of the first day of the Collection Period; is
less than (b) the sum of the Note Balance and the Certificate
Balance
(24) Withdrawal from Spread Account pursuant to Section 5.6(d) $________
to be deposited in the Note Distribution Account
o Excess, if any, of the Noteholders' Distributable Amount (13), less
the Total Distribution Amount (1), less the Administration Fee (3),
less the Servicing Fee (2*)
o But not Greater than the Spread Account Balance (20)
(25) Withdrawal from Spread Account pursuant to Section 5.6(e) $________
to be deposited in the Note Distribution Account
o Excess, if any, of Class Principal Distributable Amount for any
Class of Notes for the applicable final scheduled maturity date for
such Class of Notes, less the Total Distribution Amount (1), less
the Class Principal Distributable Amount for each Class of Notes
having priority over such Class of Notes
o But not Greater than the Spread Account Balance (20)
(26) Final Spread Account Balance (20) + (18) - (23)-(24)-(25) $________
53
<PAGE>
MISCELLANEOUS
(27) Pool Balance at the beginning of this Collection Period $________
(28) After giving effect to all distributions on the Payment Date during
this Collection Period:
(a) Outstanding Amount of A-1 Notes $________
A-1 Note Pool Factor (_._______)
(b) Outstanding Amount of A-2 Notes $________
A-2 Note Pool Factor (_._______)
(c) Outstanding Amount of A-3 Notes $________
A-3 Note Pool Factor (_._______)
(d) Outstanding Amount of A-4 Notes $________
A-4 Note Pool Factor (_._______)
(e) Outstanding Amount of Class B Notes
Class B Note Pool Factor (_._______)
(f) Outstanding Amount of Certificates $________
Certificate Pool Factor (_._______)
(29) Aggregate Purchase Amounts for the preceding Collection Period $________
54
<PAGE>
EXHIBIT D
to Sale and Servicing Agreement
FORM OF SECOND-TIER CASE ASSIGNMENT
-----------------------------------
For value received, in accordance with and subject to the Sale and
Servicing Agreement dated as of March 1, 2000 (the "SALE AND SERVICING
AGREEMENT"), among the undersigned, Case Credit Corporation ("CASE CREDIT") and
CNH Equipment Trust 2000-A (the "ISSUER"), the undersigned does hereby sell,
assign, transfer set over and otherwise convey unto the Issuer, without
recourse, all of its right, title and interest in, to and under: (a) the Initial
Receivables, including all documents constituting chattel paper included
therewith, and all obligations of the Obligors thereunder, including all moneys
paid thereunder on or after the Initial Cutoff Date, (b) the security interests
in the Financed Equipment granted by Obligors pursuant to the Initial
Receivables and any other interest of the undersigned in such Financed
Equipment, (c) any proceeds with respect to the Initial Receivables from claims
on insurance policies covering Financed Equipment or Obligors, (d) the Liquidity
Receivables Purchase Agreement (only with respect to Contracts included in the
Initial Receivables) and the Purchase Agreement, including the right of the
undersigned to cause Case Credit Corporation to repurchase Receivables from the
undersigned under the circumstances described therein, (e) any proceeds from
recourse to Dealers with respect to the Initial Receivables other than any
interest in the Dealers' reserve accounts maintained with Case Credit
Corporation or with NH Credit, (f) any Financed Equipment that shall have
secured an Initial Receivable and that shall have been acquired by or on behalf
of the Trust, (g) all funds on deposit from time to time in the Trust Accounts,
including the Spread Account Initial Deposit, any Principal Supplement Account
Deposit, the Negative Carry Account Initial Deposit and the Pre-Funded Amount,
and in all investments and proceeds thereof (including all income thereon), (h)
any True Lease Equipment that is subject to any Initial Receivable, and (i) the
proceeds of any and all of the foregoing. The foregoing sale does not constitute
and is not intended to result in any assumption by the Issuer of any obligation
of the undersigned to the Obligors, insurers or any other person in connection
with the Initial Receivables, Receivables Files, any insurance policies or any
agreement or instrument relating to any of them.
This Second-Tier Case Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Sale and Servicing Agreement and is to be governed in all
respects by the Sale and Servicing Agreement. Capitalized terms used herein and
not otherwise defined shall have the meanings assigned to them in the Sale and
Servicing Agreement.
55
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Second-Tier Case
Assignment to be duly executed as of March ____, 2000.
CNH RECEIVABLES INC.,
By:
---------------------------------
Name:
----------------------------
Title:
----------------------------
56
<PAGE>
EXHIBIT E
to Sale and Servicing Agreement
FORM OF SECOND-TIER CASE SUBSEQUENT TRANSFER ASSIGNMENT
-------------------------------------------------------
For value received, in accordance with and subject to the Sale and
Servicing Agreement dated as of March 1, 2000 (the "SALE AND SERVICING
AGREEMENT"), among CNH Equipment Trust 2000-A, a Delaware business trust (the
"ISSUER"), CNH Receivables Inc., a Delaware corporation (the "Seller"), and Case
Credit Corporation, a Delaware corporation ("Case Credit"), the Seller does
hereby sell, transfer, assign, set over and otherwise convey to the Issuer,
without recourse, all of its right, title and interest in, to and under: (a) the
Subsequent Receivables, with an aggregate Contract Value equal to $________,
listed on Schedule A hereto, including all documents constituting chattel paper
included therewith, and all obligations of the Obligors thereunder including all
moneys paid thereunder on or after the Subsequent Cutoff Date, (b) the security
interests in the Financed Equipment granted by Obligors pursuant to such
Subsequent Receivables and any other interest of the Seller in such Financed
Equipment, (c) any proceeds with respect to such Subsequent Receivables from
claims on insurance policies covering Financed Equipment or Obligors, (d) the
Liquidity Receivables Purchase Agreement (only with respect to Subsequent
Receivables purchased by the Seller pursuant to that Agreement) and the Purchase
Agreement, including the right of the Seller to cause Case Credit Corporation to
repurchase Subsequent Receivables from the Seller under the circumstances
described therein, (e) any proceeds from recourse to Dealers with respect to
such Subsequent Receivables other than any interest in the Dealers' reserve
accounts maintained with Case Credit Corporation, (f) any Financed Equipment
that shall have secured any such Subsequent Receivables and that shall have been
acquired by or on behalf of the Trust, (g) any True Lease Equipment that is
subject to any Subsequent Receivable, and (h) the proceeds of any and all of the
foregoing. The foregoing sale does not constitute and is not intended to result
in any assumption by the Issuer of any obligation of the Seller to the Obligors,
insurers or any other person in connection with such Subsequent Receivables,
Receivable Files, any insurance policies or any agreement or instrument relating
to any of them.
This Second-Tier Case Subsequent Transfer Assignment is made pursuant
to and upon the representations, warranties and agreements on the part of the
Seller contained in the Sale and Servicing Agreement (including the Officers'
Certificate of the Seller accompanying this Agreement) and is to be governed in
all respects by the Sale and Servicing Agreement. Capitalized terms used but not
otherwise defined herein shall have the meanings assigned to them in the Sale
and Servicing Agreement.
57
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Second-Tier Case
Subsequent Transfer Assignment to be duly executed as of ___________________,
_____.
CNH RECEIVABLES INC.,
By:
---------------------------------
Name:
----------------------------
Title:
----------------------------
58
<PAGE>
SCHEDULE A
to Second-Tier Case Subsequent Transfer Assignment
SCHEDULE OF SUBSEQUENT RECEIVABLES
[ATTACHED]
<PAGE>
ANNEX A
to Second-Tier Case Subsequent Transfer Assignment
OFFICERS' CERTIFICATE
---------------------
We, the undersigned officers of CNH Receivables Inc. (the "COMPANY"),
do hereby certify, pursuant to Section 2.2(b)(xv) of the Sale and Servicing
Agreement dated as of March 1, 2000, among the Company, CNH Equipment Trust
2000-A and Case Credit Corporation (the "AGREEMENT"), that all of the conditions
precedent to the transfer to the Issuer of the Subsequent Receivables listed on
Schedule A to the Second-Tier Case Subsequent Transfer Assignment delivered
herewith, and the other property and rights related to such Subsequent
Receivables as described in Section 2.2(a) of the Agreement, have been satisfied
on or prior to the related Subsequent Transfer Date.
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Agreement.
IN WITNESS WHEREOF, the undersigned have caused this certificate to be
duly executed this _____day of _____________, ______.
By:
---------------------------------
Name:
----------------------------
Title:
----------------------------
By:
---------------------------------
Name:
----------------------------
Title:
----------------------------
<PAGE>
EXHIBIT F
to Sale and Servicing Agreement
FORM OF ACCOUNTANTS' LETTER IN CONNECTION
WITH THE SECOND-TIER SUBSEQUENT TRANSFER ASSIGNMENT PURSUANT TO
SECTION 2.2(b)(xiv) OF THE SALE AND SERVICING AGREEMENT
[LETTERHEAD OF ARTHUR ANDERSEN]
- ----------------, ------
CNH Receivables Inc.
475 Half Day Road
Lincolnshire, Illinois 60069
CNH Equipment Trust 2000-A
700 State Street
Racine, Wisconsin 53404
Salomon Smith Barney Inc.
390 Greenwich Street
New York, NY 10013
Harris Trust and Savings Bank
311 West Monroe Street
Chicago, Illinois 60606
The Bank of New York
101 Barclay Street, Floor 12 E
New York, New York 10286
Dear Ladies and Gentlemen:
This letter is issued at the request of CNH Receivables Inc. (the "SELLER") with
respect to the sale of certain retail receivables (the "SUBSEQUENT RECEIVABLES")
to the CNH Equipment Trust 2000-A (the "Trust") pursuant to the Sale and
Servicing Agreement dated as of March 1, 2000 (the "SALE AND SERVICING
AGREEMENT") among the Trust, the Seller and Case Credit Corporation (the
"SERVICER"). The sale of the Subsequent Receivables is described in the
prospectus dated March 6, 2000 and the prospectus supplement dated March 9, 2000
(together, the "PROSPECTUS"), which relates to the offering by the Trust of
Class A-1 _____% Asset Backed Notes, Class A-2 _____% Asset Backed
<PAGE>
Page 2
- --------------, -----
Notes, Class A-4 _____% Asset-Backed Notes, Class A-3 _____% Asset-Backed Notes
and Class B Asset Backed Notes (collectively, the "NOTES") and the _____% Asset
Backed Certificates (the "CERTIFICATES"). Capitalized terms used herein and not
otherwise defined have the meaning described in the Prospectus or the Sale and
Servicing Agreement, as applicable. In connection therewith, we performed or
have previously performed certain agreed upon procedures as specified in the
items below:
1. As previously communicated in our letter to the Seller, the Trust,
____________________, the Indenture Trustee and the Trustee dated
_________, _______ relating to the sale of certain retail receivables
(the "INITIAL RECEIVABLES") and the offering of the Notes and the
Certificates, we performed several procedures based on a computer data
file (the "INITIAL FILE") received from the Servicer, including the
following:
a. We read certain fields on the Initial File to determine
whether the data pertaining to the Initial Receivables
complied with the selection criteria as noted in our previous
letter.
b. Proved the arithmetic accuracy of the Aggregate Contract Value
and the related percentage of Initial Receivables coded as
representing construction and forestry equipment and the Total
Aggregate Contract Value of the Initial Receivables as shown
on Schedule B.
c. Proved the arithmetic accuracy of the Weighted Average Original
Term of the Initial Receivables as shown in Schedule B.
2. On ______________, _____, we obtained a computer data file (the
"SUBSEQUENT FILE") produced by and represented by the Servicer to
contain the list of the Subsequent Receivables. The Subsequent File was
received directly by Arthur Andersen LLP from the Servicer. By use of
data retrieval software, we have performed the following with respect
to the information contained in the Subsequent File:
a. We read certain fields on the Subsequent File to determine
whether the data relating to the Subsequent Receivables
complied with selection criteria 1, 2 and 4 as shown on
Schedule A. For purposes of selection criteria 3, as shown on
Schedule A, we read certain fields from the Initial File and
Subsequent File to aggregate the total Contract Value for each
account number for the purpose of determining the Contract
Value for each Obligor. The total Contract Value for each
account number was then compared to the aggregate Contract
Value to determine if the selection criteria was achieved.
<PAGE>
Page 3
- --------------, -----
b. Proved the arithmetic accuracy of the Aggregate Contract Value
and the related percentage of the Subsequent Receivables coded
as representing construction and forestry equipment and the
Total Aggregate Contract Value of the Subsequent Receivables
as shown on Schedule B.
c. Proved the arithmetic accuracy of the Weighted Average
Original Term of the Subsequent Receivables as shown in
Schedule B.
3. We proved the arithmetic accuracy of the columnar totals for Aggregate
Contract Value of construction and forestry equipment and the Total
Aggregate Contract Value as shown on Schedule B.
4. We proved the arithmetic accuracy of the percent of total column as
shown in 1 on Schedule B by dividing the amount in the Total Aggregate
Contract Value of construction and forestry equipment column by the
amount in the Total Aggregate Contract Value column. We also proved the
arithmetic accuracy of the Weighted Average Original Term as shown in 2
on Schedule B by summing the products of Total Aggregate Contract Value
times Weighted Average Original Term for the Initial Receivables and
the Subsequent Receivables and dividing the resulting sum by the
columnar total of the Total Aggregate Contract Value.
The foregoing procedures do not constitute an audit conducted in accordance with
generally accepted auditing standards, and, therefore, we are unable to and do
not express an opinion on any individual balances or summaries of selected
transactions specifically set forth in this letter. Also, these procedures would
not necessarily reveal matters of significance with respect to the findings
described herein. Accordingly, we make no representations regarding the
sufficiency of the foregoing procedures for your purposes of for questions of
legal interpretation. Had we performed additional procedures, other matters
might have come to our attention that would have been reported to you. Further,
we have addressed ourselves solely to the foregoing data in the Sale and
Servicing Agreement and the Prospectus and make no representations regarding the
adequacy of disclosure regarding whether any material facts have been omitted.
This letter is solely for the information of the addressees and is not to be
used, circulated, quoted or otherwise referred to for any other purpose
including, but not limited to, the purchase or sale of Notes or Certificates,
nor is it to be referred to in any document. Furthermore, we undertake no
responsibility to update this letter for events and circumstances occurring
after the date of this letter.
Very truly yours,
ARTHUR ANDERSEN LLP
<PAGE>
Page 4
- --------------, -----
SCHEDULE A
to Accountant's Letter
Selection Criteria Results
------------------ -------
1. No Subsequent Receivables was more than 90 days
past due as of the applicable Subsequent Cutoff
Date.
2. Each Subsequent Receivable has an APR that is
equal to or greater than the sum of the weighted
average of the Interest Rates for the Class A
Notes and the Class B Notes plus the Servicing Fee.
3. Each Subsequent Receivable has a Contract Value as
of the Subsequent Cutoff Date that (when combined
with the Contract Value of any other Receivables with
the same or an affiliated Obligor) does not exceed 1%
of the aggregate Contract Value of all Receivables.
4. Each Subsequent Receivable has a remaining term to
maturity (i.e., the period from but excluding the
applicable Subsequent Cutoff Date to and including
the Receivables' maturity date) of not more than
72 months.
<PAGE>
Page 5
- --------------, -----
SCHEDULE B
to Accountant's Letter
1. Percentage of principal balance of the Receivables that represents
construction and forestry equipment:
Aggregate
Contract Value Construction
of Construction Total and Forestry
and Forestry Aggregate Equipment
Equipment Contract Value Percent of Total
-------------- -------------- ----------------
Initial Receivables $ $ %
Subsequent Receivables $ $ %
Total Receivables $ $ %
2. Weighted Average Original Term of the Receivables in the Trust.
Weighted
Total Aggregate Average Original
Contract Value Term
-------------- --------------
Initial Receivables $_____ _____ months
Subsequent Receivables $_____ _____ months
Total Receivables $_____ _____ months
As noted above, the Weighted Average Original Term does not exceed 55.0 months
as required by the Sale and Servicing Agreement.
------------------------------------------------------------------
CNH EQUIPMENT TRUST 2000-A
PURCHASE AGREEMENT
between
CASE CREDIT CORPORATION,
as Originator,
and
CNH RECEIVABLES INC.,
as Purchaser.
Dated as of March 1, 2000
------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE I CERTAIN DEFINITIONS
SECTION 1.1. DEFINITIONS.................................................2
SECTION 1.2. OTHER DEFINITIONAL PROVISIONS..............................2
ARTICLE II CONVEYANCE OF RECEIVABLES
SECTION 2.1. CONVEYANCE OF PURCHASED CONTRACTS...........................3
SECTION 2.2. CONVEYANCE OF SUBSEQUENT RECEIVABLES........................3
SECTION 2.3. INTENTION OF THE PARTIES....................................4
SECTION 2.4. THE CLOSING.................................................5
SECTION 2.5. PAYMENT OF THE PURCHASE PRICE...............................5
ARTICLE III REPRESENTATIONS AND WARRANTIES
SECTION 3.1. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.............6
SECTION 3.2. REPRESENTATIONS AND WARRANTIES OF THE ORIGINATOR............7
ARTICLE IV CONDITIONS
SECTION 4.1. CONDITIONS TO OBLIGATION OF THE PURCHASER..................14
SECTION 4.2. CONDITIONS TO OBLIGATION OF THE ORIGINATOR.................17
ARTICLE V COVENANTS OF THE ORIGINATOR
SECTION 5.1. PROTECTION OF RIGHT, TITLE AND INTEREST. ..................17
SECTION 5.2. OTHER LIENS OR INTERESTS...................................18
SECTION 5.3. CHIEF EXECUTIVE OFFICE.....................................18
SECTION 5.4. COSTS AND EXPENSES.........................................18
SECTION 5.5. INDEMNIFICATION............................................18
SECTION 5.6. TRANSFER OF SUBSEQUENT RECEIVABLES.........................19
ARTICLE VI MISCELLANEOUS PROVISIONS
SECTION 6.1. OBLIGATIONS OF ORIGINATOR..................................19
SECTION 6.2. REPURCHASE EVENTS..........................................19
SECTION 6.3. PURCHASER ASSIGNMENT OF REPURCHASED RECEIVABLES............19
SECTION 6.4. TRUST......................................................19
SECTION 6.5. AMENDMENT..................................................20
SECTION 6.6. ACCOUNTANTS' LETTERS.......................................20
SECTION 6.7. WAIVERS....................................................21
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TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 6.8. NOTICES...................................................21
SECTION 6.9. COSTS AND EXPENSES........................................21
SECTION 6.10. REPRESENTATIONS OF THE ORIGINATOR AND THE PURCHASER.......21
SECTION 6.11. CONFIDENTIAL INFORMATION..................................21
SECTION 6.12. HEADINGS AND CROSS-REFERENCES.............................21
SECTION 6.13. GOVERNING LAW.............................................21
SECTION 6.14. COUNTERPARTS..............................................22
SECTION 6.15. SEVERABILITY..............................................22
EXHIBITS
EXHIBIT A Form of First-Tier Case Assignment
EXHIBIT B Form of First-Tier Case Subsequent Transfer Assignment
||
ii
<PAGE>
PURCHASE AGREEMENT (as amended or supplemented from time to time, this
"AGREEMENT"), dated as of March 1, 2000, between CASE CREDIT CORPORATION, a
Delaware corporation (the "ORIGINATOR"), and CNH RECEIVABLES INC., a Delaware
corporation (the "PURCHASER").
RECITALS
WHEREAS, in the regular course of its business, the Originator
purchases, directly and indirectly, from equipment dealers and brokers, and
directly originates, Contracts; and
WHEREAS, in the regular course of its business, the Originator
purchases from Case Corporation certain Contracts originated by Case Corporation
in the ordinary course of business; and
WHEREAS, the Originator and the Purchaser wish to set forth the terms
pursuant to which: (1) Contracts having an aggregate Contract Value of
approximately $439,791,757.40 (the "PURCHASED CONTRACTS") as of Initial Cutoff
Date and the Originator's right, title and interest in any True Lease Equipment
related to such Contracts are to be sold by the Originator to the Purchaser on
the date hereof and (2) certain Subsequent Receivables and the Originator's
right, title and interest in any True Lease Equipment related to such Subsequent
Receivables are to be sold by the Originator to the Purchaser from time to time
on each Subsequent Transfer Date; and
WHEREAS, the Purchaser as of the Initial Cutoff Date, owned Contracts
previously purchased from the Originator pursuant to a Receivables Purchase
Agreement dated as of August 1, 1994 (as amended from time to time, the
"LIQUIDITY RECEIVABLES PURCHASE AGREEMENT"), between the Originator and the
Purchaser, having an aggregate Contract Value of approximately $282,391,930.06
(the "OWNED CONTRACTS", and together with the Purchased Contracts, the "INITIAL
RECEIVABLES"); and
WHEREAS, the Initial Receivables and the Subsequent Receivables
(collectively, the "RECEIVABLES") and any True Lease Equipment related to such
Receivables will be transferred by the Purchaser, pursuant to the Sale and
Servicing Agreement, to CNH Equipment Trust 2000-A (the "TRUST"), which Trust
will issue 7.32% Asset Backed Certificates representing fractional undivided
interests in, and 6.178% Class A-1 Asset Backed Notes, 6.80% Class A-2 Asset
Backed Notes, 7.14% Class A-3 Asset Backed Notes, 7.34% Class A-4 Asset Backed
Notes and 7.32% Class B Asset Backed Notes collateralized by, the Receivables
and the other property of the Trust; and
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WHEREAS, the Originator and the Purchaser wish to set forth herein
certain representations, warranties, covenants and indemnities of the Originator
with respect to the Receivables for the benefit of the Purchaser, the Trust, the
Noteholders and the Certificateholders.
NOW, THEREFORE, in consideration of the foregoing, other good and
valuable consideration and the mutual terms and covenants contained herein the
parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.1. DEFINITIONS. Capitalized terms used herein and not
otherwise defined herein are defined in Appendix A to the Indenture, dated as of
the date hereof, between CNH Equipment Trust 2000-A and Harris Trust and Savings
Bank.
SECTION 1.2. OTHER DEFINITIONAL PROVISIONS. (a) 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.
(b) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto, 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 as 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.
(c) 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, Schedule and Exhibit
references contained in this Agreement are references to Sections, Schedules and
Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including, without limitation,".
(d) 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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<PAGE>
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.1. CONVEYANCE OF PURCHASED CONTRACTS. In consideration of
the Purchaser's payment of $439,791,757.40 (the "INITIAL PURCHASE PRICE") in the
manner set out in Section 2.5(a), the Originator does hereby sell, transfer,
assign, set over and otherwise convey to the Purchaser, without recourse
(subject to the obligations herein), all of its right, title, interest and, with
respect to any Contracts that are Leases, obligations in, to and under
(collectively, the "INITIAL FIRST-TIER ASSETS"):
(i) the Purchased Contracts, including all documents
constituting chattel paper included therewith, and all obligations of
the Obligors thereunder, including all moneys paid thereunder on or
after the Initial Cutoff Date;
(ii) the security interests in the Financed Equipment granted
by Obligors pursuant to the Purchased Contracts and any other interest
of the Originator in such Financed Equipment;
(iii) any proceeds with respect to the Purchased Contracts
from claims on insurance policies covering Financed Equipment or
Obligors;
(iv) any proceeds from recourse to Dealers with respect to
the Purchased Contracts other than any interest in the Dealers'
reserve accounts maintained with the Originator or with NH Credit;
(v) any Financed Equipment that shall have secured the
Purchased Contracts and that shall have been acquired by or on behalf
of the Purchaser;
(vi) any True Lease Equipment that is subject to any
Purchased Contract; and
(vii) the proceeds of any and all of the foregoing.
SECTION 2.2. CONVEYANCE OF SUBSEQUENT RECEIVABLES. Subject to the
conditions set forth in Section 4.1(b), in consideration of the Purchaser's
delivery on the related Subsequent Transfer Date to or upon the order of the
Originator of the related Subsequent Purchase Price pursuant to Section 2.5, the
Originator does hereby sell, transfer, assign, set over and otherwise convey to
the Purchaser, without recourse (subject to the obligations herein), all of its
right, title, interest and, with respect to any Contracts that are Leases,
obligations in, to and under (collectively, the "SUBSEQUENT FIRST-TIER ASSETS";
and together with the Initial First-Tier Assets, the "FIRST-TIER ASSETS"):
3
<PAGE>
(i) the Subsequent Receivables listed on Schedule A to the
related First-Tier Case Subsequent Transfer Assignment, including all
documents constituting chattel paper included therewith, and all
obligations of the Obligors thereunder, including all moneys paid
thereunder on or after the related Subsequent Cutoff Date;
(ii) the security interests in the Financed Equipment granted
by Obligors pursuant to such Subsequent Receivables and any other
interest of the Originator in such Financed Equipment;
(iii) any proceeds with respect to such Subsequent
Receivables from claims on insurance policies covering Financed
Equipment or Obligors;
(iv) any proceeds with respect to such Subsequent Receivables
from recourse to Dealers other than any interest in the Dealers'
reserve accounts maintained with the Originator or with NH Credit;
(v) any Financed Equipment that shall have secured any such
Subsequent Receivable and that shall have been acquired by or on
behalf of the Purchaser;
(vi) any True Lease Equipment that is subject to any
Subsequent Receivable; and
(vii) the proceeds of any and all of the foregoing.
SECTION 2.3. INTENTION OF THE PARTIES. The parties to this Agreement
intend that the transactions contemplated hereby shall be, and shall be treated
as, a purchase by the Purchaser and a sale by the Originator of the Purchased
Contracts and the Subsequent Receivables and any True Lease Equipment related to
such Purchased Contracts or Subsequent Receivables, as the case may be, and not
as a lending transaction. The foregoing sale, assignment, transfer and
conveyance does not constitute, and is not intended to result in a creation or
assumption by the Purchaser of, any obligation or liability with respect to any
Purchased Contract or any Subsequent Receivables, nor shall the Purchaser be
obligated to perform or otherwise be responsible for any obligation of the
Originator or any other Person in connection with the Purchased Contracts or the
Subsequent Receivables or under any agreement or instrument relating thereto,
including any contract or any other obligation to any Obligor, except that the
Purchaser accepts any Contracts that are Leases subject to (and assumes) the
covenants benefitting the Obligors under such Leases.
If (but only to the extent) that the transfer of the First-Tier Assets
hereunder is characterized by a court or other governmental authority as a loan
rather than a sale, the Originator shall be deemed hereunder to have granted to
the Purchaser a
4
<PAGE>
security interest in all of Originator's right, title and interest in and to the
First-Tier Assets. Such security interest shall secure all of the Originator's
obligations (monetary or otherwise) under this Agreement and the other Basic
Documents to which it is a party, whether now or hereafter existing or arising,
due or to become due, direct or indirect, absolute or contingent. The Purchaser
shall have, with respect to the property described in Section 2.1 and Section
2.2, and in addition to all the other rights and remedies available to Purchaser
under this Agreement and applicable law, all the rights and remedies of a
secured party under any applicable UCC, and this Agreement shall constitute a
security agreement under applicable law.
SECTION 2.4. THE CLOSING. The sale and purchase of the Purchased
Contracts shall take place at a closing at the offices of Mayer, Brown & Platt,
190 South LaSalle Street, Chicago, Illinois 60603 on the Closing Date,
simultaneously with the closings under: (a) the Sale and Servicing Agreement,
(b) the Trust Agreement, (c) the Administration Agreement and (d) the Indenture.
SECTION 2.5. PAYMENT OF THE PURCHASE PRICE.
(a) Purchased Contracts. The Initial Purchase Price is payable as
follows: (i) $414,654,008.27 in cash on the Closing Date and (ii) the remainder
in cash, as provided in the subordinated note dated March 16, 2000, payable by
the Purchaser to the Originator.
(b) Subsequent Receivables. As consideration for the conveyance of
Subsequent Receivables pursuant to Section 2.2, the Purchaser shall pay or cause
to be paid to the Originator on each Subsequent Transfer Date an amount (a
"SUBSEQUENT PURCHASE PRICE") equal to the aggregate Contract Value of the
Subsequent Receivables as of the related Subsequent Cutoff Date, plus any
premium or minus any discount agreed upon by the Originator and the Purchaser.
Any Subsequent Purchase Price shall be payable as follows: (i) cash in the
amount released to the Purchaser from the Pre-Funding Account pursuant to
Section 5.7(a) of the Sale and Servicing Agreement shall be paid to the
Originator on the related Subsequent Transfer Date; and (ii) the balance shall
be paid in cash as and when amounts are released to, or otherwise realized by,
the Purchaser from the Spread Account, the Negative Carry Account, and the
Principal Supplement Account in accordance with the Sale and Servicing
Agreement, or otherwise are available for such purpose.
5
<PAGE>
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of the Purchaser. The
Purchaser hereby represents and warrants to the Originator as of the date hereof
and as of the Closing Date:
(a) Organization and Good Standing. The Purchaser has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with the power and
authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently
conducted, and had at all relevant times, and has, the power and
authority to acquire, own and sell the Receivables.
(b) Due Qualification. The Purchaser 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) Power and Authority. The Purchaser has the power and
authority to execute and deliver this Agreement and to carry out its
terms; and the execution, delivery and performance of this Agreement
have been duly authorized by the Purchaser by all necessary corporate
action.
(d) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of the Purchaser enforceable against the
Purchaser in accordance with its terms.
(e) No Violation. 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
Purchaser, or any indenture, agreement or other instrument to which
the Purchaser 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 the Sale and Servicing Agreement and the Indenture); or
violate any law or, to the best of the Purchaser's knowledge, any
order, rule or regulation applicable to the Purchaser of any court or
of any Federal or State regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the
Purchaser or its properties.
(f) No Proceedings. There are no proceedings or investiga-
tions pending or, to the Purchaser's best knowledge, threatened,
before any court,
6
<PAGE>
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Purchaser or its
properties: (i) asserting the invalidity of this Agreement, (ii)
seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or (iii) seeking any determination or
ruling that could reasonably be expected to materially and adversely
affect the performance by the Purchaser of its obligations under, or
the validity or enforceability of, this Agreement.
SECTION 3.2. REPRESENTATIONS AND WARRANTIES OF THE ORIGINATOR. (a) The
Originator hereby represents and warrants to the Purchaser as of the date hereof
and as of the Closing Date:
(i) Organization and Good Standing. The Originator has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with the power and
authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently
conducted, and had at all relevant times, and has, the power and
authority to acquire, own and sell the Receivables.
(ii) Due Qualification. The Originator 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.
(iii) Power and Authority. The Originator has the power and
authority to execute and deliver this Agreement and to carry out its
terms; the Originator has full power and authority to sell and assign
the property to be sold and assigned to the Purchaser hereby and has
duly authorized such sale and assignment to the Purchaser by all
necessary corporate action; and the execution, delivery and
performance of this Agreement have been, and the execution, delivery
and performance of each First-Tier Case Subsequent Transfer Assignment
have been or will be on or before the related Subsequent Transfer
Date, duly authorized by the Originator by all necessary corporate
action.
(iv) Binding Obligation. This Agreement constitutes, and each
First-Tier Case Subsequent Transfer Assignment when executed and
delivered by the Originator will constitute, a legal, valid and
binding obligation of the Originator enforceable against the
Originator in accordance with their terms.
(v) No Violation. 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
7
<PAGE>
certificate of incorporation or by-laws of the Originator, or any
indenture, agreement or other instrument to which the Originator 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 this
Agreement); or violate any law or, to the best of the Originator's
knowledge, any order, rule or regulation applicable to the Originator
of any court or of any Federal or State regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Originator or its properties.
(vi) No Proceedings. There are no proceedings or
investigations pending, or to the Originator's best knowledge,
threatened, before any court, regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the
Originator or its properties: (A) asserting the invalidity of this
Agreement, (B) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement, or (C) seeking any
determination or ruling that could reasonably be expected to
materially and adversely affect the performance by the Originator of
its obligations under, or the validity or enforceability of, this
Agreement.
(b) The Originator makes the following representations and warranties
as to the Receivables on which the Purchaser relies in accepting the Purchased
Contracts and the Subsequent Receivables and in transferring the Receivables to
the Trust. Such representations and warranties speak as of the execution and
delivery of this Agreement and as of the Closing Date, in the case of the
Purchased Contracts, and as of the applicable Subsequent Transfer Date, in the
case of the Subsequent Receivables, but shall survive the sale, transfer and
assignment of the Receivables to the Purchaser and the subsequent assignment and
transfer of such Receivables to the Trust pursuant to the Sale and Servicing
Agreement and pursuant to the Indenture:
(i) Characteristics of Receivables. Each Receivable: (A) (1)
(i) was originated in the United States of America by a Dealer in
connection with the retail sale or lease of Financed Equipment in the
ordinary course of such Dealer's business, and (ii) either (x) was
purchased by the Originator from a Dealer and validly assigned by such
Dealer to the Originator in accordance with its terms, or (y) was
purchased by the Originator from NH Credit and validly assigned to the
Originator in accordance with its terms, or (2) was originated in the
United States of America by Case Credit in connection with the
financing or lease of Financed Equipment in the ordinary course of
Case Credit's business and, in either case, was fully and properly
executed by the parties thereto, (B) has created a valid, subsisting
and enforceable first priority security interest in the Financed
Equipment in favor of the Originator or, in the case of a NH
Receivable, NH Credit, which (i) with respect to a NH
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<PAGE>
Receivable, has been assigned to the Originator, and (ii) with respect
to the Receivables (including any NH Receivable), as of the Closing
Date, has been assigned by the Originator to the Purchaser, by the
Purchaser to the Issuer and by the Issuer to the Indenture Trustee,
except that (x) no security interest against the Obligor is created in
True Lease Equipment, and (y) the Originator makes no representation
or warranty as to any such security interest granted by any Dealer to
secure the Dealer's obligations to make payments in respect of
Termination Values, (C) contains customary and enforceable provisions
such that the rights and remedies of the holder thereof are adequate
for realization against the collateral of the benefits of the
security, and (D) (i) in the case of Retail Installment Contracts,
provides for fixed payments on a periodic basis that fully amortize
the Amount Financed by maturity and yield interest at the Annual
Percentage Rate, and (ii) in the case of any Contracts sold, or to be
sold, hereunder that are Leases, provides for fixed payments on a
periodic basis that fully amortize the Amount Financed by maturity and
yield interest at the Annual Percentage Rate, except that any
Contracts sold, or to be sold, hereunder that are Leases also provide
for payments of the related Termination Values.
(ii) Schedule of Receivables. The information set forth on
Schedule A to the First-Tier Case Assignment delivered on the Closing
Date is true and correct in all material respects as of the opening of
business on the Initial Cutoff Date and the information set forth on
Schedule A to the related First-Tier Case Subsequent Transfer
Assignment will be true and correct on each Subsequent Transfer Date
related to such First-Tier Case Subsequent Transfer Assignment and no
selection procedures believed by the Originator to be adverse to the
interests of the Trust, the Noteholders or the Certificateholders were
or will be utilized in selecting the Receivables. The computer tape
regarding the Receivables made available to the Purchaser and its
assigns is true and correct in all respects.
(iii) Compliance With Law. Each Receivable and the sale or
lease of the related Financed Equipment complied in all material
respects at the time it was originated or made and at the execution of
this Agreement and each First-Tier Case Subsequent Transfer Assignment
complies in all material respects with all requirements of applicable
Federal, State and local laws and regulations thereunder, including
usury law, the Federal Truth-in-Lending Act, the Equal Credit
Opportunity Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the
Magnuson-Moss Warranty Act, the Federal Reserve Board's Regulations B
and Z, the Wisconsin Consumer Act and State adaptations of the
National Consumer Act and of the Uniform Consumer Credit Code, and
other consumer credit laws and equal credit opportunity and disclosure
laws.
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(iv) Binding Obligation. Each Receivable represents the
genuine, legal, valid and binding payment obligation in writing of the
Obligor, enforceable by the holder thereof in accordance with its
terms.
(v) No Government Obligor. None of the Receivables is due
from the United States of America or any State or from any agency,
department or instrumentality of the United States of America or any
State.
(vi) Security Interest in Financed Equipment. Immediately
prior to the sale, assignment and transfer thereof, each Receivable
shall be secured by a validly perfected first priority security
interest in the Financed Equipment in favor of the Originator as
secured party (or, in the case of a NH Receivable, as assignee of NH
Credit) or all necessary and appropriate actions have been commenced
that would result in the valid perfection of a first priority security
interest in the Financed Equipment in favor of the Originator as
secured party (or, in the case of a NH Receivable, as assignee of NH
Credit), except that (A) no security interest against the Obligor is
created in True Lease Equipment and (B) the Originator makes no
representation or warranty as to any security interest granted by any
Dealer to secure the Dealer's obligations to make payments in respect
of Termination Values.
(vii) Receivables in Force. No Receivable has been satisfied,
subordinated or rescinded, nor has any Financed Equipment been
released from the Lien granted by the related Receivable in whole or
in part.
(viii) No Amendment or Waiver. No provision of a Receivable
has been waived, altered or modified in any respect, except pursuant
to a document, instrument or writing included in the Receivable Files
and no such amendment, waiver, alteration or modification causes such
Receivable not to conform to the other warranties contained in this
Section.
(ix) No Defenses. No right of rescission, setoff,
counterclaim or defense has been asserted or threatened or exists with
respect to any Receivable.
(x) No Liens. To the best of the Originator's knowledge, no
Liens or claims, including claims for work, labor or materials,
relating to any of the Financed Equipment have been filed that are
Liens prior to, or equal or coordinate with, the security interest in
the Financed Equipment granted by any Receivable, except those
pursuant to the Basic Documents.
(xi) No Default. No Receivable is a non-performing Receivable
or has a payment that is more than 90 days overdue as of the Initial
Cutoff Date
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or Subsequent Cutoff Date, as applicable, and, except for a payment
default continuing for a period of not more than 90 days, no default,
breach, violation or event permitting acceleration under the terms of
any Receivable has occurred and is continuing; and no continuing
condition that with notice or the lapse of time would constitute such
a default, breach, violation or event permitting acceleration under
the terms of any Receivable has arisen; and the Originator has not
waived and shall not waive any of the foregoing.
(xii) Title. It is the intention of the Originator that the
transfers and assignments contemplated herein and in the Liquidity
Receivables Purchase Agreement constitute a sale of the Receivables
from the Originator to the Purchaser and that the beneficial interest
in and title to the Receivables and any True Lease Equipment related
to such Receivables not be part of the debtor's estate in the event of
the filing of a bankruptcy petition by or against the Originator under
any bankruptcy or similar law. No Receivable has been sold,
transferred, assigned or pledged by the Originator to any Person other
than the Purchaser. Immediately prior to the transfers and assignments
contemplated herein and in the Liquidity Receivables Purchase
Agreement, the Originator had good title to each Receivable and any
True Lease Equipment related to such Receivable, free and clear of all
Liens and, immediately upon the transfer thereof, the Purchaser shall
have good title to each Receivable and any True Lease Equipment, free
and clear of all Liens; and the transfer and assignment of the
Receivables to the Purchaser has been perfected under the UCC.
(xiii) Lawful Assignment. No Receivable has been originated
in, or is subject to the laws of, any jurisdiction under which the
sale, transfer and assignment of such Receivable or any Receivable
under this Agreement, the Sale Agreement, the Liquidity Receivables
Purchase Agreement, the Sale and Servicing Agreement or the Indenture
is unlawful, void or voidable.
(xiv) All Filings Made. All filings (including UCC filings)
necessary in any jurisdiction to give the Purchaser a first priority
perfected ownership interest in the Receivables have been made.
(xv) One Original. There is only one original executed copy
of each Receivable.
(xvi) Maturity of Receivables. Each Receivable has a
remaining term to maturity of not more than 72 months, in the case of
the Initial Receivables, and 72 months, in the case of the Subsequent
Receivables; the weighted average remaining term of the Initial
Receivables is approximately 49.28 months as of the Initial Cutoff
Date; the weighted average original term of the Receivables, including
as of each Subsequent Transfer Date all
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Subsequent Receivables previously transferred to the Purchaser, will
not be greater than 55.0 months.
(xvii) Scheduled Payments and APR. No Receivable has a final
scheduled payment date later than six months preceding the Final
Scheduled Maturity Date; each Receivable provides for payments that
fully amortize the Amount Financed over the original term of the
Receivable, except that Leases also provide for payments of the
related Termination Values, and is either a Precomputed Receivable or
a Simple Interest Receivable; each Receivable has an APR of at least
3.0%; as of each Subsequent Cutoff Date, the weighted average of the
Initial Cutoff Date APR and each Subsequent Cutoff Date APR (weighted
on the basis of the respective aggregate Contract Values of the
Receivables for which each such APR is used to calculate the Contract
Value) will not be less than the sum of the weighted average of the
Interest Rates for the Class A Notes and Class B Notes plus the
Servicing Fee.
(xviii) Insurance. The Obligor on each Receivable is required
to maintain physical damage insurance covering the Financed Equipment
and, in the case of any Lease, public liability insurance relating to
the use of such Financed Equipment, in each case in accordance with
the Originator's or, in the case of a NH Receivable, NH Credit's
normal requirements.
(xix) Concentrations. (A) No Receivable has a Contract Value
(when combined with the Contract Value of any other Receivable with
the same or an Affiliated Obligor) that exceeds 1% of the Initial Pool
Balance.
(B) [Reserved]
(xx) Financing. Approximately 56.21% of the aggregate
Contract Value of the Initial Receivables, constituting 58.99% of the
number of Initial Receivables as of the Initial Cutoff Date, were
secured by or constitute leases of equipment that was new at the time
the related Initial Receivable was originated; the remainder of the
Initial Receivables represent financing or leases of used equipment;
approximately 65.45% of the aggregate Contract Value of the Initial
Receivables, constituting 64.27% of the number of Initial Receivables
as of the Initial Cutoff Date, represent financing or leases of
agricultural equipment; the remainder of the Initial Receivables
represent financing or leases of construction or forestry equipment.
The aggregate Contract Value of the Receivables for the purposes of
the above calculations as of the Initial Cutoff Date is
$739,257,526.83 (and is calculated using the individual APR applicable
to each Initial Receivable). Additionally, not more than 50.00% of the
aggregate Contract Value of the Receivables, including, as of each
Subsequent Transfer Date, all Subsequent Receivables previously
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transferred to the Purchaser, will represent Contracts for the
financing or lease of construction and forestry equipment. No
Subsequent Receivable will represent the financing of truck equipment.
(xxi) No Bankruptcies. No Obligor on any Receivable as of the
Initial Cutoff Date or the Subsequent Cutoff Date, as applicable, was
noted in the related Receivable File as being the subject of a
bankruptcy proceeding.
(xxii) No Repossessions. None of the Financed Equipment
securing any Receivable is in repossession status.
(xxiii) Chattel Paper. Each Receivable constitutes "chattel
paper" as defined in the UCC of the State the law of which governs the
perfection of the interest granted in it.
(xxiv) U.S. Obligors. None of the Receivables is denominated
and payable in any currency other than United States Dollars or is due
from any Person that does not have a mailing address in the United
States of America.
(xxv) Payment Frequency. As of the Initial Cutoff Date and as
shown on the books of the Originator (or, in the case of the NH
Receivables, NH Credit): (A) Initial Receivables having an aggregate
Contract Value equal to 50.66% of the Initial Pool Balance had annual
scheduled payments, (B) Initial Receivables having an aggregate
Contract Value equal to 3.33% of the Initial Pool Balance had
semi-annual scheduled payments, (C) Initial Receivables having an
aggregate Contract Value equal to 0.66% of the Initial Pool Balance
had quarterly scheduled payments, (D) Initial Receivables having an
aggregate Contract Value equal to 43.18% of the Initial Pool Balance
had monthly scheduled payments, and (E) Initial Receivables having an
aggregate Contract Value equal to 2.17% of the Initial Pool Balance
had irregularly scheduled payments.
(xxvi) First Payment. As of the Initial Cutoff Date, Obligors
had not yet made the first payment in respect of Initial Receivables
representing less than 53.93% of the Initial Pool Balance.
(xxvii) Interest Accruing. Each Receivable, other than those
Receivables consisting of Contracts that contain interest waivers for
a specified period of time, is, as of the Closing Date or Subsequent
Transfer Date, as applicable, accruing interest; no Receivable
contains an interest waiver extending more than 12 months after the
Initial Cutoff Date.
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(xxviii) Leases. Each Lease included in the Initial
Receivables or the Subsequent Receivables has a Termination Value less
than or equal to 10% of the purchase price of the equipment subject to
such Lease and is a "lease intended as security" (rather than a true
lease) within the meaning of Section 1-201(37) of the UCC.
(xxix) Originator's Representations. The representations and
warranties of the Originator contained in Section 3.2(a) are true and
correct.
(xxx) Originator's Obligations. The Originator has no
obligations under any Contract, other than the covenant of quiet
enjoyment benefiting the Obligors under any Contracts that are Leases.
(xxxi) No Either/or Leases. No Lease included in the Initial
Receivables or the Subsequent Receivables is a Either/or Lease, and no
Financed Equipment transferred to the Purchaser on the Closing Date or
any Subsequent Transfer Date, as the case may be, constitutes True
Lease Equipment.
(xxxii) No Leases. Notwithstanding anything to the contrary
in the Basic Documents, none of the Initial Receivables or the
Subsequent Receivables shall be Leases.
ARTICLE IV
CONDITIONS
SECTION 4.1. CONDITIONS TO OBLIGATION OF THE PURCHASER.
(a) Purchased Contracts. The obligation of the Purchaser to purchase
the Purchased Contracts is subject to the satisfaction of the following
conditions:
(i) Representations and Warranties True. The representations
and warranties of the Originator hereunder shall be true and correct
on the Closing Date and the Originator shall have performed all
obligations to be performed by it hereunder on or prior to the Closing
Date.
(ii) Computer Files Marked. The Originator shall, at its own
expense, on or prior to the Closing Date, indicate in its computer
files that Receivables created in connection with the Purchased
Contracts have been sold to the Purchaser pursuant to this Agreement
and deliver to the Purchaser the Schedule of Receivables certified by
the Chairman, the President, a Vice President or the Treasurer of the
Originator to be true, correct and complete.
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(iii) Documents To Be Delivered by the Originator on the
Closing Date.
(A) The First-tier Case Assignment. On the Closing
Date (but only if the Contract Value of the Purchased
Contracts is greater than zero), the Originator will execute
and deliver the First-Tier Case Assignment, which shall be
substantially in the form of Exhibit A.
(B) Evidence of UCC Filing. On or prior to the
Closing Date (but only if the Contract Value of the Purchased
Contracts is greater than zero), the Originator shall execute
and file, at its own expense, a UCC financing statement in
each jurisdiction in which such action is required by
applicable law to fully perfect the Purchaser's right, title
and interest in the Purchased Contracts and the other
property sold hereunder, executed by the Originator, as
seller or debtor, and naming the Purchaser, as purchaser or
secured party, describing the Purchased Contracts and the
other property sold hereunder, meeting the requirements of
the laws of each such jurisdiction and in such manner as is
necessary to perfect the sale, transfer, assignment and
conveyance of such Purchased Contracts and such other
property to the Purchaser. It is understood and agreed,
however, that no filings will be made to perfect any security
interest of the Purchaser in the Originator's interests in
Financed Equipment. The Originator shall deliver (or cause to
be delivered) a file-stamped copy, or other evidence
satisfactory to the Purchaser of such filing, to the
Purchaser on or prior to the Closing Date.
(C) Other Documents. The Originator will deliver
such other documents as the Purchaser may reasonably request.
(iv) Other Transactions. The transactions contemplated by the
Sale and Servicing Agreement to be consummated on the Closing Date
shall be consummated on such date.
(b) Subsequent Receivables. The obligation of the Purchaser to
purchase any Subsequent Receivables is subject to the satisfaction of the
following conditions on or prior to the related Subsequent Transfer Date:
(i) the Originator shall have delivered to the Purchaser a
duly executed written assignment in substantially the form of Exhibit
B (the "FIRST-TIER CASE SUBSEQUENT TRANSFER ASSIGNMENT"), which shall
include supplements to the Schedule of Receivables listing the
Subsequent Receivables;
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(ii) the Originator shall, to the extent required by Section
5.2 of the Sale and Servicing Agreement, have delivered to the
Purchaser for deposit in the Collection Account all collections in
respect of the Subsequent Receivables;
(iii) as of such Subsequent Transfer Date: (A) the Originator
was not insolvent and will not become insolvent as a result of the
transfer of Subsequent Receivables on such Subsequent Transfer Date,
(B) the Originator did not intend to incur or believe that it would
incur debts that would be beyond the Originator's ability to pay as
such debts matured, (C) such transfer was not made with actual intent
to hinder, delay or defraud any Person and (D) the assets of the
Originator did not constitute unreasonably small capital to carry out
its business as conducted;
(iv) the applicable Spread Account Initial Deposit and
Principal Supplement Account Deposit, if any, for such Subsequent
Transfer Date shall have been made;
(v) the Funding Period shall not have terminated;
(vi) each of the representations and warranties made by the
Originator pursuant to Section 3.2(b) with respect to the Subsequent
Receivables shall be true and correct as of such Subsequent Transfer
Date, and the Originator shall have performed all obligations to be
performed by it hereunder on or prior to such Subsequent Transfer
Date;
(vii) the Originator shall, at its own expense, on or prior
to such Subsequent Transfer Date, indicate in its computer files that
the Subsequent Receivables identified in the related First-Tier Case
Subsequent Transfer Assignment have been sold to the Purchaser
pursuant to this Agreement and the First-Tier Case Subsequent Transfer
Assignment;
(viii) the Originator shall have taken any action required to
give the Purchaser a first priority perfected ownership interest in
the Subsequent Receivables;
(ix) no selection procedures believed by the Originator to be
adverse to the interests of the Purchaser, the Trust, the Noteholders
or the Certificateholders shall have been utilized in selecting the
Subsequent Receivables;
(x) the addition of the Subsequent Receivables will not
result in a material adverse tax consequence to the Purchaser, the
Trust, the Noteholders or the Certificateholders;
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(xi) the Originator shall have provided the Purchaser a
statement listing the aggregate Contract Value of such Subsequent
Receivables and any other information reasonably requested by the
Purchaser with respect to such Subsequent Receivables;
(xii) all the conditions to the transfer of the Subsequent
Receivables to the Issuer specified in the Sale and Servicing
Agreement shall have been satisfied; and
(xiii) the Originator shall have delivered to the Purchaser
an Officers' Certificate confirming the satisfaction of each condition
precedent specified in this clause (b) (substantially in the form
attached hereto as Annex A to the First-Tier Case Subsequent Transfer
Assignment).
SECTION 4.2. CONDITIONS TO OBLIGATION OF THE ORIGINATOR. The
obligation of the Originator to sell the Purchased Contracts and the Subsequent
Receivables to the Purchaser is subject to the satisfaction of the following
conditions:
(a) Representations and Warranties True. The representations
and warranties of the Purchaser hereunder shall be true and correct on
the Closing Date or the applicable Subsequent Transfer Date with the
same effect as if then made, and the Purchaser shall have performed
all obligations to be performed by it hereunder on or prior to the
Closing Date or such Subsequent Transfer Date.
(b) Receivables Purchase Price. On the Closing Date or the
applicable Subsequent Transfer Date, the Purchaser shall have
delivered to the Originator the portion of the Initial Purchase Price
or the Subsequent Purchase Price, as the case may be, payable on the
Closing Date or such Subsequent Transfer Date pursuant to Section 2.5.
ARTICLE V
COVENANTS OF THE ORIGINATOR
The Originator agrees with the Purchaser as follows; PROVIDED,
HOWEVER, that to the extent that any provision of this Article conflicts with
any provision of the Sale and Servicing Agreement, the Sale and Servicing
Agreement shall govern:
SECTION 5.1. PROTECTION OF RIGHT, TITLE AND INTEREST. (a) Filings. The
Originator shall cause all financing statements and continuation statements and
any other necessary documents covering the right, title and interest of the
Purchaser in and to the Receivables and the other property included in the Trust
Estate to be promptly filed, and at all times to be kept recorded, registered
and filed, all in such
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manner and in such places as may be required by law fully to preserve and
protect the right, title and interest of the Purchaser hereunder to the
Receivables and the other property sold hereunder. It is understood and agreed,
however, that no filings will be made to perfect any security interest of the
Purchaser in the Originator's interests in Financed Equipment. The Originator
shall deliver (or cause to be delivered) to the Purchaser file-stamped copies
of, or filing receipts for, any document recorded, registered or filed as
provided above as soon as available following such recordation, registration or
filing. The Purchaser shall cooperate fully with the Originator in connection
with the obligations set forth above and will execute any and all documents
reasonably required to fulfill the intent of this paragraph.
(b) Name Change. Within 15 days after the Originator makes any change
in its name, identity or corporate structure that would, could or might make any
financing statement or continuation statement filed in accordance with paragraph
(a) seriously misleading within the applicable provisions of the UCC or any
title statute, the Originator shall give the Purchaser notice of any such
change, and no later than five days after the effective date thereof, shall file
such financing statements or amendments as may be necessary to continue the
perfection of the Purchaser's interest in the property included in the Trust
Estate.
SECTION 5.2. OTHER LIENS OR INTERESTS. Except for the conveyances
hereunder and pursuant to the Liquidity Receivables Purchase Agreement, the Sale
and Servicing Agreement, the Indenture and the other Basic Documents, the
Originator: (a) will not sell, pledge, assign or transfer to any Person, or
grant, create, incur, assume or suffer to exist any Lien on, any interest in, to
and under the Receivables, and (b) shall defend the right, title and interest of
the Purchaser in, to and under the Receivables against all claims of third
parties claiming through or under the Originator; PROVIDED, HOWEVER, that the
Originator's obligations under this Section shall terminate upon the termination
of the Trust pursuant to the Trust Agreement.
SECTION 5.3. CHIEF EXECUTIVE OFFICE. During the term of the
Receivables, the Originator will maintain its chief executive office in one of
the States.
SECTION 5.4. COSTS AND EXPENSES. The Originator agrees to pay all
reasonable costs and disbursements in connection with the perfection, as against
all third parties, of the Purchaser's right, title and interest in, to and under
the Receivables.
SECTION 5.5. INDEMNIFICATION. The Originator shall indemnify, defend
and hold harmless the Purchaser for any liability as a result of the failure of
a Receivable to be originated in compliance with all requirements of law and for
any breach of any of its representations and warranties contained herein. These
indemnity obligations
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shall be in addition to any obligation that the Originator may otherwise have.
The Originator shall indemnify, defend and hold harmless the Purchaser, the
Issuer, the Trustee and the Indenture Trustee (and their respective officers,
directors, employees and agents) from and against any taxes that may at any time
be asserted against such Person with respect to the sale of the Receivables to
the Purchaser hereunder or the sale of the Receivables to the Issuer by the
Purchaser or the issuance and original sale of the Certificates and the Notes,
including any sales, gross receipts, general corporation, tangible personal
property, privilege or license taxes (but, in the case of the Purchaser and the
Issuer, not including any taxes asserted with respect to ownership of the
Receivables on Federal or other income taxes arising out of the transactions
contemplated by this Agreement) and costs and expenses in defending against the
same.
SECTION 5.6. TRANSFER OF SUBSEQUENT RECEIVABLES. The Originator
covenants to transfer to the Purchaser, pursuant to Section 2.2, Subsequent
Receivables with an aggregate Contract Value equal to $427,816,312.54, subject
only to the availability of such Subsequent Receivables.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1. OBLIGATIONS OF ORIGINATOR. The obligations of the
Originator under this Agreement shall not be affected by reason of any
invalidity, illegality or irregularity of any Receivable.
SECTION 6.2. REPURCHASE EVENTS. The Originator hereby covenants and
agrees with the Purchaser for the benefit of the Purchaser, the Indenture
Trustee, the Noteholders, the Trustee and the Certificateholders that the
occurrence of a breach of any of the Originator's representations and warranties
contained in Section 3.2(b), shall constitute events obligating the Originator
to repurchase any Receivable materially and adversely affected by any such
breach ("REPURCHASE EVENTS") at the Purchase Amount from the Purchaser or from
the Trust. Except as set forth in Section 5.5, the repurchase obligation of the
Originator shall constitute the sole remedy of the Purchaser, the Indenture
Trustee, the Noteholders, the Trust, the Trustee or the Certificateholders
against the Originator with respect to any Repurchase Event.
SECTION 6.3. PURCHASER ASSIGNMENT OF REPURCHASED RECEIVABLES. With
respect to all Receivables repurchased by the Originator pursuant to this
Agreement, the Purchaser shall sell, transfer, assign, set over and otherwise
convey to the Originator, without recourse, representation or warranty, all of
the Purchaser's right, title and interest in, to and under such Receivables, and
all security and documents relating thereto.
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SECTION 6.4. TRUST. The Originator acknowledges and agrees that: (a)
the Purchaser will, pursuant to the Sale and Servicing Agreement, sell the
Receivables to the Trust and assign its rights under this Agreement to the
Trust, (b) the Trust will, pursuant to the Indenture, assign such Receivables
and such rights to the Indenture Trustee and (c) the representations, warranties
and covenants contained in this Agreement and the rights of the Purchaser under
this Agreement, including under Section 6.2, are intended to benefit the Trust,
the Certificateholders and the Noteholders. The Originator hereby consents to
all such sales and assignments and agrees that enforcement of a right or remedy
hereunder by the Indenture Trustee shall have the same force and effect as if
the right or remedy had been enforced or executed by the Purchaser.
SECTION 6.5. AMENDMENT. This Agreement may be amended from time to
time, with prior written notice to the Rating Agencies, by a written amendment
duly executed and delivered by the Originator and the Purchaser, without the
consent 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 of this Agreement or of modifying in any manner the rights of the
Noteholders or the Certificateholders; PROVIDED, HOWEVER, that such amendment
will not in the Opinion of Counsel, materially and adversely affect the interest
of any Noteholder or Certificateholder.
This Agreement may also be amended from time to time by the Originator
and the Purchaser, with prior written notice to the Rating Agencies, with the
written consent of (x) Noteholders holding Notes evidencing at least a majority
of the Note Balance and (y) the Holders of Certificates evidencing at least 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 may: (i) increase
or reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on Receivables or distributions that are required to be
made for the benefit of the Noteholders or the Certificateholders or (ii) reduce
the aforesaid percentage of the Notes and Certificates that are required to
consent to any such amendment, without the consent of the holders of all the
outstanding Notes and Certificates.
It shall not be necessary for the consent of Certificateholders or
Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof.
SECTION 6.6. ACCOUNTANTS' LETTERS. (a) A firm of independent certified
public accountants will review the characteristics of the Receivables described
in the
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Schedule of Receivables and will compare those characteristics to the
information with respect to the Receivables contained in the Prospectus, (b) the
Originator will cooperate with the Purchaser and such accounting firm in making
available all information and taking all steps reasonably necessary to permit
such accounting firm to complete the review set forth in clause (a) and to
deliver the letters required of them under the Underwriting Agreement, (c) such
accounting firm will deliver to the Purchaser a letter, dated the date of the
Prospectus, in the form previously agreed to by the Originator and the
Purchaser, with respect to the financial and statistical information contained
in the Prospectus and with respect to such other information as may be agreed in
the form of the letter.
SECTION 6.7. WAIVERS. No failure or delay on the part of the Purchaser
in exercising any power, right or remedy under this Agreement, the First-Tier
Case Assignment or any First-Tier Case Subsequent Transfer Assignment shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power, right or remedy preclude any other or further exercise thereof or
the exercise of any other power, right or remedy.
SECTION 6.8. NOTICES. All demands, notices and communications under
this Agreement shall be in writing, personally delivered or mailed by certified
mail, return receipt requested, and shall be deemed to have been duly given upon
receipt: (a) in the case of the Originator, to Case Credit Corporation, 233 Lake
Avenue, Racine, Wisconsin 53403, Attention: Treasurer (telephone (414)
636-6011); (b) in the case of the Purchaser, to CNH Receivables Inc., 475 Half
Day Road, Lincolnshire, Illinois 60069, Attention: Treasurer (telephone (847)
955-4904); (c) in the case of the Rating Agencies, at their respective addresses
set forth in Section 10.3 of the Sale and Servicing Agreement; or, as to each of
the foregoing, at such other address as shall be designated by written notice to
the other parties.
SECTION 6.9. COSTS AND EXPENSES. The Originator will pay all expenses
incident to the performance of its obligations under this Agreement and the
Originator agrees to pay all reasonable out-of-pocket costs and expenses of the
Purchaser, excluding fees and expenses of counsel, in connection with the
perfection as against third parties of the Purchaser's right, title and interest
in, to and under the Receivables and the enforcement of any obligation of the
Originator hereunder.
SECTION 6.10. REPRESENTATIONS OF THE ORIGINATOR AND THE PURCHASER. The
respective agreements, representations, warranties and other statements by the
Originator and the Purchaser set forth in or made pursuant to this Agreement
shall remain in full force and effect and will survive the closing under Section
2.4.
SECTION 6.11. CONFIDENTIAL INFORMATION. The Purchaser agrees that it
will neither use nor disclose to any Person the names and addresses of the
Obligors, except in connection with the enforcement of the Purchaser's rights
hereunder, under
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the Receivables, under the Sale and Servicing Agreement or the Indenture or any
other Basic Document or as required by any of the foregoing or by law.
SECTION 6.12. HEADINGS AND CROSS-REFERENCES. The various headings in
this Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement. References in this
Agreement to Section names or numbers are to such Sections of this Agreement
unless otherwise expressly indicated.
SECTION 6.13. GOVERNING LAW. This Agreement, the First-Tier Case
Assignment, and each First-Tier Case Subsequent Transfer Assignment shall be
construed in accordance with the laws of the State of New York, without
reference to its conflict of law provisions, and the obligations, rights and
remedies of the parties hereunder or thereunder shall be determined in
accordance with such laws.
SECTION 6.14. COUNTERPARTS. This Agreement may be executed in two or
more counterparts and by different parties on separate counterparts, each of
which shall be an original, but all of which together shall constitute but one
and the same instrument.
SECTION 6.15. 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.
22
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers duly authorized as of the date and year
first above written.
CNH RECEIVABLES INC.
By:/s/ Ralph A. Than
----------------------------------
Name: Ralph A. Than
Title: Vice President & Treasurer
CASE CREDIT CORPORATION
By:/s/ Ralph A. Than
---------------------------------
Name: Ralph A. Than
Title: Vice President & Treasurer
23
<PAGE>
EXHIBIT A
to Purchase Agreement
FORM OF
FIRST-TIER CASE ASSIGNMENT
For value received, in accordance with and subject to the Purchase
Agreement dated as of March 1, 2000 (the "PURCHASE AGREEMENT"), between the
undersigned and CNH Receivables Inc. (the "PURCHASER"), the undersigned does
hereby sell, assign, transfer, set over and otherwise convey unto the Purchaser,
without recourse, all of its right, title, interest and, with respect to any
Contracts that are Leases, obligations in, to and under: (a) the Purchased
Contracts, including all documents constituting chattel paper included
therewith, and all obligations of the Obligors thereunder, including all moneys
paid thereunder on or after the Initial Cutoff Date, (b) the security interests
in the Financed Equipment granted by Obligors pursuant to the Purchased
Contracts and any other interest of the undersigned in such Financed Equipment,
(c) any proceeds with respect to the Purchased Contracts from claims on
insurance policies covering Financed Equipment or Obligors, (d) any proceeds
from recourse to Dealers with respect to the Purchased Contracts other than any
interest in the Dealers' reserve accounts maintained with Case Credit
Corporation or with NH Credit, (e) any Financed Equipment that shall have
secured the Purchased Contracts and that shall have been acquired by or on
behalf of the Purchaser, (f) any True Lease Equipment that is subject to any
Purchased Contract, and (g) the proceeds of any and all of the foregoing. The
foregoing sale does not constitute and is not intended to result in any
assumption by the Purchaser of any obligation (other than the covenant of quiet
enjoyment benefitting the Obligors under any Contracts that are Leases) of the
undersigned to the Obligors, insurers or any other person in connection with the
Purchased Contracts, Receivables Files, any insurance policies or any agreement
or instrument relating to any of them.
This First-Tier Case Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Purchase Agreement and is to be governed in all respects by the
Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the Purchase Agreement.
24
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this First-Tier Case
Assignment to be duly executed as of March __, 2000.
CASE CREDIT CORPORATION
By:
------------------------------
Name:
Title:
25
<PAGE>
EXHIBIT B
to Purchase Agreement
FORM OF
FIRST-TIER CASE SUBSEQUENT TRANSFER ASSIGNMENT
For value received, in accordance with and subject to the Purchase
Agreement dated as of March 1, 2000 (the "PURCHASE AGREEMENT"), between Case
Credit Corporation, a Delaware corporation (the "ORIGINATOR"), and CNH
Receivables Inc., a Delaware corporation (the "PURCHASER"), the Originator does
hereby sell, transfer, assign, set over and otherwise convey to the Purchaser,
without recourse, all of its right, title, interest and, with respect to any
Contracts that are Leases, obligations in, to and under: (a) the Subsequent
Receivables, with an aggregate Contract Value equal to $_______________, listed
on Schedule A hereto, including all documents constituting chattel paper
included therewith, and all obligations of the Obligors thereunder, including
all moneys paid thereunder on or after the Subsequent Cutoff Date, (b) the
security interests in the Financed Equipment granted by Obligors pursuant to
such Subsequent Receivables and any other interest of the Originator in such
Financed Equipment, (c) any proceeds with respect to such Subsequent Receivables
from claims on insurance policies covering Financed Equipment or Obligors, (d)
any proceeds from recourse to Dealers with respect to such Subsequent
Receivables other than any interest in the Dealers' reserve accounts maintained
with the Originator or with NH Credit, (e) any Financed Equipment that shall
have secured any such Subsequent Receivables and that shall have been acquired
by or on behalf of the Purchaser, (f) any True Lease Equipment that is subject
to any Subsequent Receivable, and (g) the proceeds of any and all of the
foregoing. The foregoing sale does not constitute and is not intended to result
in any assumption by the Purchaser of any obligation (other than the covenant of
quiet enjoyment benefitting the Obligors under any Contracts that are Leases) of
the Originator to the Obligors, insurers or any other person in connection with
such Subsequent Receivables, Receivable Files, any insurance policies or any
agreement or instrument relating to any of them.
This First-Tier Case Subsequent Transfer Assignment is made pursuant
to and upon the representations, warranties and agreements on the part of the
Originator contained in the Purchase Agreement (including the Officers'
Certificate of the Originator accompanying this Agreement) and is to be governed
in all respects by the Purchase Agreement.
Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to them in the Purchase Agreement.
26
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this First Tier Case
Subsequent Transfer Assignment to be duly executed as of _____________________
_________________.
CASE CREDIT CORPORATION
By:
-----------------------------------
Name:______________________________
Title:_____________________________
27
<PAGE>
SCHEDULE A
to First-Tier Case Subsequent Transfer Assignment
SCHEDULE OF SUBSEQUENT RECEIVABLES
[SEE ATTACHED LIST]
28
<PAGE>
ANNEX A
to First-Tier Case Subsequent Transfer Assignment
OFFICERS' CERTIFICATE
We, the undersigned officers of Case Credit Corporation (the
"COMPANY"), do hereby certify, pursuant to Section 4.1(b)(xiii) of the Purchase
Agreement dated as of March 1, 2000, among the Company, and CNH Receivables Inc.
(the "PURCHASE AGREEMENT"), that all of the conditions precedent to the transfer
to the Purchaser of the Subsequent Receivables listed on Schedule A to the
First-Tier Case Subsequent Transfer Assignment delivered herewith, and the other
property and rights related to such Subsequent Receivables as described in
Section 2.2 of the Purchase Agreement, have been satisfied on or prior to the
related Subsequent Transfer Date.
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned have caused this certificate to be
duly executed this ___ day of ___________, _____.
By:
-----------------------------------
Name:______________________________
Title:_____________________________
By:
-----------------------------------
Name:______________________________
Title:_____________________________
29
- --------------------------------------------------------------------------------
CNH EQUIPMENT TRUST 2000-A
ADMINISTRATION AGREEMENT
among
CNH EQUIPMENT TRUST 2000-A,
as Issuer,
and
CASE CREDIT CORPORATION,
as Administrator,
and
HARRIS TRUST AND SAVINGS BANK,
as Indenture Trustee.
Dated as of March 1, 2000
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
SECTION PAGE
1. DUTIES OF THE ADMINISTRATOR................................................2
(a) Duties with Respect to the Indenture and the Depository Agreement.....2
(b) Duties with Respect to the Trust......................................5
(c) Non-Ministerial Matters...............................................7
2. RECORDS....................................................................7
3. COMPENSATION...............................................................7
4. ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER.......................8
5. INDEPENDENCE OF THE ADMINISTRATOR..........................................8
6. NO JOINT VENTURE...........................................................8
7. OTHER ACTIVITIES OF THE ADMINISTRATOR......................................8
8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF THE ADMINISTRATOR............8
9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL...........................10
10. NOTICES..................................................................11
11. AMENDMENTS...............................................................11
12. SUCCESSORS AND ASSIGNS...................................................12
13. GOVERNING LAW............................................................13
14. HEADINGS.................................................................13
15. COUNTERPARTS.............................................................13
16. SEVERABILITY.............................................................13
17. NOT APPLICABLE TO CASE CREDIT CORPORATION IN OTHER CAPACITIES............13
18. LIMITATION OF LIABILITY OF THE TRUSTEE AND THE INDENTURE TRUSTEE.........13
i
<PAGE>
TABLE OF CONTENTS
(continued)
SECTION PAGE
19. THIRD-PARTY BENEFICIARY..................................................14
20. INDEMNIFICATION..........................................................14
ii
<PAGE>
ADMINISTRATION AGREEMENT dated as of March 1, 2000, among CNH EQUIPMENT
TRUST 2000-A, a Delaware business trust (the "ISSUER"), CASE CREDIT CORPORATION,
a Delaware corporation, as administrator (the "ADMINISTRATOR"), and HARRIS TRUST
AND SAVINGS BANK, an Illinois banking corporation, not in its individual
capacity but solely as Indenture Trustee (the "INDENTURE TRUSTEE").
RECITALS
WHEREAS, the Issuer is issuing: (a) 6.178% Class A-1 Asset Backed Notes,
6.80% Class A-2 Asset Backed Notes, 7.14% Class A-3 Asset Backed Notes, 7.34%
Class A-4 Asset Backed Notes (together, the "CLASS A NOTES") and 7.32% Class B
Asset Backed Notes (the "CLASS B NOTES," and, together with the Class A Notes,
the "NOTES") pursuant to the Indenture, dated as of the date hereof (as amended
and supplemented from time to time in accordance with the provisions thereof,
the "INDENTURE"), between the Issuer and the Indenture Trustee (capitalized
terms used herein and not otherwise defined herein are defined in Appendix A to
the Indenture);
WHEREAS, the Issuer has entered into certain agreements in connection with
the issuance of the Notes and of certain beneficial ownership interests of the
Issuer, including: (i) a Sale and Servicing Agreement, dated as of the date
hereof (as amended and supplemented from time to time, the "SALE AND SERVICING
AGREEMENT"), among the Issuer, Case Credit Corporation, as servicer (the
"SERVICER"), and CNH Receivables Inc., a Delaware corporation, as seller (the
"SELLER"), (ii) a Depository Agreement, dated March 16, 2000 (the "DEPOSITORY
AGREEMENT"), among the Issuer, the Indenture Trustee, the Administrator and The
Depository Trust Company, (iii) the Indenture and (iv) a Trust Agreement, dated
as of the date hereof (the "TRUST AGREEMENT"), between the Seller and the
Trustee (the Sale and Servicing Agreement, the Depository Agreement, the
Indenture and the Trust Agreement being hereinafter referred to collectively as
the "RELATED AGREEMENTS");
WHEREAS, pursuant to the Related Agreements, the Issuer and the Trustee are
required to perform certain duties in connection with: (a) the Notes and the
collateral therefor pledged pursuant to the Indenture (the "Collateral") and (b)
the beneficial ownership interests in the Issuer (the registered holders of such
interests being referred to herein as the "OWNERS");
WHEREAS, the Issuer and the Trustee desire to have the Administrator
perform certain of the duties of the Issuer and the Trustee referred to in the
preceding clause, and to provide such additional services consistent with this
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<PAGE>
Agreement and the Related Agreements as the Issuer and the Trustee may from time
to time request;
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual terms and covenants
contained herein, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. DUTIES OF THE ADMINISTRATOR.
(a) DUTIES WITH RESPECT TO THE INDENTURE AND THE DEPOSITORY AGREEMENT. The
Administrator shall perform all of its duties as Administrator and the duties of
the Issuer and the Trustee under the Depository Agreement. In addition, the
Administrator shall consult with the Trustee regarding the duties of the Issuer
and the Trustee under such documents. The Administrator shall monitor the
performance of the Issuer and shall advise the Trustee when action is necessary
to comply with the Issuer's or the Trustee's duties under such documents. The
Administrator shall prepare for execution by the Issuer or shall cause the
preparation by other appropriate persons of all such documents, reports,
filings, instruments, certificates and opinions as it shall be the duty of the
Issuer or the Trustee to prepare, file or deliver pursuant to such documents. In
furtherance of the foregoing, the Administrator shall take all appropriate
action that is the duty of the Issuer or the Trustee to take pursuant to such
documents, including, without limitation, such of the foregoing as are required
with respect to the following matters (references in this Section are to
sections of the Indenture):
(i) the duty to cause the Note Register to be kept and to give the
Indenture Trustee notice of any appointment of a new Note Registrar and the
location, or change in location, of the Note Register (Section 2.4);
(ii) the fixing or causing to be fixed of any specified record date
and the notification of the Indenture Trustee and Noteholders with respect
to special payment dates, if any (Section 2.7(c));
(iii) the preparation of or obtaining of the documents and instruments
required for authentication of the Notes and delivery of the same to the
Indenture Trustee (Section 2.2);
(iv) the preparation, obtaining or filing of the instruments,
opinions, certificates and other documents required for the release of the
Collateral (Section 2.9);
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<PAGE>
(v) the maintenance of an office in the Borough of Manhattan, City of
New York, for registration of transfer or exchange of Notes (Section 3.2);
(vi) the duty to cause newly appointed Paying Agents, if any, to
deliver to the Indenture Trustee the instrument specified in the Indenture
regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit moneys with the
Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuer's qualification to
do business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of the Indenture, the
Notes, the Collateral and each other instrument and agreement included in
the Trust Estate (Section 3.4);
(ix) the preparation of all supplements, amendments, financing
statements, continuation statements, instruments of further assurance and
other instruments, in accordance with Section 3.5 of the Indenture,
necessary to protect the Trust Estate (Section 3.5);
(x) the delivery of the Opinion of Counsel on the Closing Date and the
annual delivery of Opinions of Counsel, in accordance with Section 3.6 of
the Indenture, as to the Trust Estate, and the annual delivery of the
Officers' Certificate and certain other statements, in accordance with
Section 3.9 of the Indenture, as to compliance with the Indenture (Sections
3.6 and 3.9);
(xi) the identification to the Indenture Trustee in an Officers'
Certificate of a Person with whom the Issuer has contracted to perform its
duties under the Indenture (Section 3.7(b));
(xii) the notification of the Indenture Trustee and the Rating
Agencies of a Servicer Default pursuant to the Sale and Servicing Agreement
and, if such Servicer Default arises from the failure of the Servicer to
perform any of its duties under the Sale and Servicing Agreement, the
taking of all reasonable steps available to remedy such failure (Section
3.7(d));
(xiii) the preparation and obtaining of documents and instruments
required for the release of the Issuer from its obligations under the
Indenture (Section 3.10(b));
3
<PAGE>
(xiv) the delivery of notice to the Indenture Trustee of each Event of
Default and each default by the Servicer or Seller under the Sale and
Servicing Agreement (Section 3.19);
(xv) the monitoring of the Issuer's obligations as to the satisfaction
and discharge of the Indenture and the preparation of an Officers'
Certificate and the obtaining of the Opinion of Counsel and the Independent
Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive of the Indenture
Trustee with respect to the sale of the Trust Estate in a commercially
reasonable manner if an Event of Default shall have occurred and be
continuing (Section 5.4);
(xvii) the furnishing to the Indenture Trustee with the names and
addresses of Noteholders during any period when the Indenture Trustee is
not the Note Registrar (Section 7.1);
(xviii) the preparation, execution and filing with the Commission and
the Indenture Trustee of documents required to be filed on a periodic basis
with, and summaries thereof as may be required by rules and regulations
prescribed by, the Commission and the transmission of such summaries, as
necessary, to the Noteholders (Section 7.3);
(xix) the opening of one or more accounts in the Trust's name, the
preparation of Issuer Orders, Officers' Certificates and Opinions of
Counsel and all other actions necessary with respect to investment and
reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuer Request and Officers' Certificate
and the obtaining of an Opinion of Counsel and Independent Certificates, if
necessary, for the release of the Trust Estate as defined in the Indenture
(Sections 8.4 and 8.5);
(xxi) the preparation of Issuer Orders and the obtaining of Opinions
of Counsel with respect to the execution of supplemental indentures and the
mailing to the Noteholders of notices with respect to such supplemental
indentures (Sections 9.1, 9.2 and 9.3);
(xxii) the execution and delivery of new Notes conforming to any
supplemental indenture (Section 9.6);
4
<PAGE>
(xxiii) the notification of Noteholders of redemption of the Notes or
the duty to cause the Indenture Trustee to provide such notification
(Section 10.2);
(xxiv) the preparation of all Officers' Certificates, Opinions of
Counsel and Independent Certificates with respect to any requests by the
Issuer to the Indenture Trustee to take any action under the Indenture
(Section 11.1(a));
(xxv) the preparation and delivery of Officers' Certificates and the
obtaining of Independent Certificates, if necessary, for the release of
property from the lien of the Indenture (Section 11.1(b));
(xxvi) the preparation and delivery to Noteholders and the Indenture
Trustee of any agreements with respect to alternate payment and notice
provisions (Section 11.6); and
(xxvii) the recording of the Indenture, if applicable (Section 11.15).
(b) DUTIES WITH RESPECT TO THE TRUST. (i) In addition to the duties of the
Administrator set forth above, the Administrator shall perform such
calculations, and shall prepare for execution by the Issuer or the Trustee or
shall cause the preparation by other appropriate persons of all such documents,
reports, filings, instruments, certificates and opinions, as it shall be the
duty of the Issuer or the Trustee to perform, prepare, file or deliver pursuant
to the Related Agreements, and at the request of the Trustee shall take all
appropriate action that it is the duty of the Issuer or the Trustee to take
pursuant to the Related Agreements. Subject to Section 5 of this Agreement, and
in accordance with the directions of the Trustee, the Administrator shall
administer, perform or supervise the performance of such other activities in
connection with the Collateral (including the Related Agreements) as are not
covered by any of the foregoing and as are expressly requested by the Trustee
and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, if any Certificates are held by any Person
other than the Depositor the Administrator shall be responsible for
promptly notifying the Trustee in the event that any withholding tax is
imposed on the Trust's payments (or allocations of income) to an Owner as
contemplated in Section 5.2(c) of the Trust Agreement. Any such notice
shall specify the amount of any withholding tax required to be withheld by
the Trustee pursuant to such provision.
5
<PAGE>
(iii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
performance of the duties of the Trustee (if any) set forth in Sections
5.5(a), (b), (c) and (d), the penultimate sentence of Section 5.5 and
Section 5.6(a) of the Trust Agreement with respect to, among other things,
accounting and reports to Owners; PROVIDED, HOWEVER, that the Trustee shall
retain responsibility for the distribution of the Schedule K-1s necessary
to enable each Owner to prepare its Federal and State income tax returns.
(iv) If any Certificates are held by any Person other than the
Depositor, the Administrator shall satisfy its obligations with respect to
clauses (ii) and (iii) by retaining, at the expense of the Trust payable by
the Servicer, a firm of independent certified public accountants (the
"ACCOUNTANTS") acceptable to the Trustee, which Accountants shall perform
the obligations of the Administrator thereunder. In connection with clause
(ii), the Accountants will provide prior to March 16, 2000, a letter in
form and substance satisfactory to the Trustee as to whether any tax
withholding is then required and, if required, the procedures to be
followed with respect thereto to comply with the requirements of the Code.
The Accountants shall be required to update the letter in each instance
that any additional tax withholding is subsequently required or any
previously required tax withholding shall no longer be required.
(v) The Administrator shall perform the duties of the Administrator
specified in Section 10.2 of the Trust Agreement required to be performed
in connection with the resignation or removal of the Trustee, and any other
duties expressly required to be performed by the Administrator under the
Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions with or otherwise deal with any of its affiliates; PROVIDED,
HOWEVER, that the terms of any such transactions or dealings shall be in
accordance with any directions received from the Issuer and shall be, in
the Administrator's opinion, no less favorable to the Issuer than would be
available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the
Issuer all such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of the Issuer to prepare, file or deliver
pursuant to the Basic Documents or otherwise by law.
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<PAGE>
(c) Non-Ministerial Matters. (i) With respect to matters that in the
reasonable judgment of the Administrator are non-ministerial, the Administrator
shall not take any action unless within a reasonable time before the taking of
such action the Administrator shall have notified the Trustee of the proposed
action and the Trustee shall not have withheld consent or provided an
alternative direction. For the purpose of the preceding sentence,
"non-ministerial matters" shall include, without limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer and the
compromise of any action, claim or lawsuit brought by or against the Issuer
(other than in connection with the collection of the Receivables);
(C) the amendment, change or modification of the Related
Agreements;
(D) the appointment of successor Note Registrars, successor
Paying Agents and successor Trustees pursuant to the Indenture or the
appointment of successor Administrators or successor Servicers, or the consent
to the assignment by the Note Registrar, Paying Agent or Indenture Trustee of
its obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this Agreement,
the Administrator shall not be obligated to, and shall not: (x) make any
payments to the Noteholders under the Related Agreements, (y) sell the
Trust Estate pursuant to Section 5.4 of the Indenture or (z) take any
other action that the Issuer directs the Administrator not to take on
its behalf.
2. RECORDS. The Administrator shall maintain appropriate books of account
and records relating to services performed hereunder, which books of account and
records shall be accessible for inspection by the Issuer, the Indenture Trustee
and the Depositor at any time during normal business hours.
3. COMPENSATION. As compensation for the performance of the Administrator's
obligations under this Agreement and as reimbursement for its expenses related
thereto, the Administrator shall be entitled to $500 per quarter payable in
arrears on each Payment Date, which payment shall be solely an obligation of the
Issuer.
7
<PAGE>
4. ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER. The Administrator
shall furnish to the Issuer from time to time such additional information
regarding the Collateral as the Issuer shall reasonably request.
5. INDEPENDENCE OF THE ADMINISTRATOR. For all purposes of this Agreement,
the Administrator shall be an independent contractor and shall not be subject to
the supervision of the Issuer or the Trustee with respect to the manner in which
it accomplishes the performance of its obligations hereunder. Unless expressly
authorized by the Issuer, the Administrator shall have no authority to act for
or represent the Issuer or the Trustee in any way (other than as permitted
hereunder) and shall not otherwise be deemed an agent of the Issuer or the
Trustee.
6. NO JOINT VENTURE. Nothing contained in this Agreement: (i) shall
constitute the Administrator and either of the Issuer or the Trustee as members
of any partnership, joint venture, association, syndicate, unincorporated
business or other separate entity, (ii) shall be construed to impose any
liability as such on any of them or (iii) shall be deemed to confer on any of
them any express, implied or apparent authority to incur any obligation or
liability on behalf of the others.
7. OTHER ACTIVITIES OF THE ADMINISTRATOR. Nothing herein shall prevent the
Administrator or its Affiliates from engaging in other businesses or, in their
sole discretion, from acting in a similar capacity as an administrator for any
other Person even though such Person may engage in business activities similar
to those of the Issuer, the Trustee or the Indenture Trustee.
8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF THE ADMINISTRATOR. (a)
This Agreement shall continue in force until the dissolution of the Issuer, upon
which event this Agreement shall automatically terminate.
(b) Subject to Section 8(e), the Administrator may resign its duties
hereunder by providing the Issuer, the Indenture Trustee and the Servicer with
at least 60 days' prior written notice.
(c) Subject to Section 8(e), the Issuer may remove the Administrator
without cause by providing the Administrator, the Indenture Trustee and the
Servicer with at least 60 days' prior written notice.
8
<PAGE>
(d) Subject to Section 8(e), at the sole option of the Issuer, the
Administrator may be removed immediately upon written notice of termination from
the Issuer to the Administrator, the Indenture Trustee and the Servicer if any
of the following events shall occur:
(i) the Administrator shall default in the performance of any of its
duties under this Agreement and, after notice of such default, shall not
cure such default within ten days (or, if such default cannot be cured in
such time, shall not give within ten days such assurance of cure as shall
be reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall enter a decree
or order for relief, and such decree or order shall not have been vacated
within 60 days, in respect of the Administrator in any involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect or appoint a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official for the Administrator or any
substantial part of its property or order the winding-up or liquidation of
its affairs; or
(iii) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary
case under any such law, or shall consent to the appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or similar official
for the Administrator or any substantial part of its property, shall
consent to the taking of possession by any such official of any substantial
part of its property, shall make any general assignment for the benefit of
creditors or shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) of this subsection shall occur, it shall give written notice
thereof to the Issuer, the Servicer and the Indenture Trustee within seven days
after the happening of such event.
(e) Upon the Administrator's receipt of notice of termination, pursuant to
Sections 8(c) or (d), or the Administrator's resignation in accordance with this
Agreement, the predecessor Administrator shall continue to perform its functions
as Administrator under this Agreement, in the case of termination, only until
the date specified in such termination notice or, if no such date is specified
in a notice of termination, until receipt of such notice and, in the case of
resignation, until the later of: (x) the date 45 days from the delivery to the
Issuer, the Indenture Trustee and the Servicer of written notice of such
resignation (or written confirmation of such notice) in accordance with this
Agreement and (y)
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<PAGE>
the date upon which the predecessor Administrator shall become unable to act as
Administrator, as specified in the notice of resignation and accompanying
Opinion of Counsel. In the event of the Administrator's termination hereunder,
the Issuer shall appoint a successor Administrator acceptable to the Indenture
Trustee, and the successor Administrator shall accept its appointment by a
written assumption in form acceptable to the Indenture Trustee. In the event
that a successor Administrator has not been appointed at the time when the
predecessor Administrator has ceased to act as Administrator in accordance with
this Section, the Indenture Trustee without further action shall automatically
be appointed the successor Administrator and the Indenture Trustee shall be
entitled to the compensation specified in Section 3. Notwithstanding the above,
the Indenture Trustee shall, if it shall be unable so to act, appoint or
petition a court of competent jurisdiction to appoint any established
institution having a net worth of not less than $50,000,000 and whose regular
business shall include the performance of functions similar to those of the
Administrator, as the successor to the Administrator under this Agreement.
(f) Upon appointment, the successor Administrator (including the Indenture
Trustee acting as successor Administrator) shall be the successor in all
respects to the predecessor Administrator and shall be subject to all the
responsibilities, duties and liabilities arising thereafter relating thereto
placed on the predecessor Administrator and shall be entitled to the
compensation specified in Section 3 and all the rights granted to the
predecessor Administrator by the terms and provisions of this Agreement.
(g) Except when and if the Indenture Trustee is appointed successor
Administrator, the Administrator may not resign unless it is prohibited from
serving as such by law as evidenced by an Opinion of Counsel to such effect
delivered to the Indenture Trustee. No resignation or removal of the
Administrator pursuant to this Section shall be effective until: (i) a successor
Administrator shall have been appointed by the Issuer and (ii) such successor
Administrator shall have agreed in writing to be bound by the terms of this
Agreement in the same manner as the Administrator is bound hereunder.
(h) The appointment of any successor Administrator shall be effective only
after satisfaction of the Rating Agency Condition with respect to the proposed
appointment.
9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL. Promptly upon the
effective date of termination of this Agreement pursuant to Section 8(a), or the
resignation or removal of the Administrator pursuant to Section 8(b) or (c),
respectively, the Administrator shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to
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Section 8(a) deliver to the Issuer all property and documents of or relating to
the Collateral then in the custody of the Administrator. In the event of the
resignation or removal of the Administrator pursuant to Section 8(b) or (c),
respectively, the Administrator shall cooperate with the Issuer and the
Indenture Trustee and take all reasonable steps requested to assist the Issuer
and the Indenture Trustee in making an orderly transfer of the duties of the
Administrator.
10. NOTICES. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
(a) if to the Issuer or the Trustee, to:
CNH Equipment Trust 2000-A
c/o The Bank of New York
101 Barclay Street, Floor 12E
New York, New York 10286
Attn: Corporate Trust Administration - Asset Backed
Finance Unit
(b) if to the Administrator, to:
Case Credit Corporation
233 Lake Avenue
Racine, Wisconsin 53403
Attention: Treasurer
(c) if to the Indenture Trustee, to:
Harris Trust and Savings Bank
311 West Monroe Street, 12th Floor
Chicago, Illinois 60606
Attention: Indenture Trust Department
or to such other address as any party shall have provided to the other
parties in writing. Any notice required to be in writing hereunder shall be
deemed given if such notice is mailed by certified mail, postage prepaid, or
hand-delivered to the address of such party as provided above.
11. AMENDMENTS. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Issuer, the Administrator
and the Indenture Trustee, with the written consent of the Trustee, but without
the consent of any of the Noteholders or the Certificateholders, to cure any
ambiguity, to correct or supplement provisions of this Agreement or for the
purpose of adding any provisions to or changing in any manner or eliminating any
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of the provisions of this Agreement or of modifying in any manner the rights of
the Noteholders or the Certificateholders; PROVIDED, HOWEVER, that such
amendment shall not, as evidenced by an Opinion of Counsel satisfactory to the
Indenture Trustee, 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 Issuer, the
Administrator and the Indenture Trustee with the written consent of (w) the
Trustee, (x) Noteholders holding Notes evidencing not less than a majority of
the Note Balance and (y) the Holders of Certificates evidencing not less than a
majority of the Certificate Balance, for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Noteholders or the
Certificateholders; PROVIDED, HOWEVER, that no such amendment shall: (i)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that are
required to be made for the benefit of the Noteholders or the Certificateholders
or (ii) reduce the aforesaid percentage of the Holders of Notes and Certificates
that are required to consent to any such amendment, without the consent of the
holders of all the outstanding Notes and Certificates. Notwithstanding the
foregoing, the Administrator may not amend this Agreement without the permission
of the Depositor, which permission shall not be unreasonably withheld.
Promptly after the execution of any such amendment or consent (or, in the
case of the Rating Agencies, 10 days prior thereto), the Administrator shall
furnish written notification of the substance of such amendment or consent to
each Certificateholder, the Trustee and each of the Rating Agencies.
It shall not be necessary for the consent of the Certificateholders or the
Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof.
12. SUCCESSORS AND ASSIGNS. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
the Issuer and the Trustee and subject to the satisfaction of the Rating Agency
Condition in respect thereof. An assignment with such consent and satisfaction,
if accepted by the assignee, shall bind the assignee hereunder in the same
manner as the Administrator is bound hereunder. Notwithstanding the foregoing,
this Agreement may be assigned by the Administrator without the consent of the
Issuer or the Trustee to a corporation or other organization that is a successor
(by merger, consolidation or purchase of assets) to the Administrator, provided
that such successor organization executes and delivers to the Issuer, the
Trustee and the Indenture Trustee an agreement in which such corporation or
other
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organization agrees to be bound hereunder by the terms of said assignment in the
same manner as the Administrator is bound hereunder. Subject to the foregoing,
this Agreement shall bind any successors or assigns of the parties hereto.
13. Governing Law. This Agreement shall be construed in accordance with the
laws of the State of New York, 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.
14. HEADINGS. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
15. COUNTERPARTS. This Agreement may be executed in counterparts, all of
which when so executed shall together constitute but one and the same agreement.
16. 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.
17. NOT APPLICABLE TO CASE CREDIT CORPORATION IN OTHER CAPACITIES. Nothing
in this Agreement shall affect any obligation Case Credit Corporation may have
in any other capacity.
18. LIMITATION OF LIABILITY OF THE TRUSTEE AND THE INDENTURE TRUSTEE. (a)
Notwithstanding anything contained herein to the contrary, this instrument has
been countersigned by The Bank of New York, not in its individual capacity but
solely in its capacity as Trustee of the Issuer, and in no event shall The Bank
of New York, in its individual capacity, or any beneficial owner of the Issuer
have any liability for the representations, warranties, covenants, agreements or
other obligations of the Issuer hereunder, as to all of which recourse shall be
had solely to the assets of the Issuer. For all purposes of this Agreement, in
the performance of any duties or obligations of the Issuer thereunder, the
Trustee shall be subject to, and entitled to the benefits of, the terms and
provisions of Articles VI, VII and VIII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by Harris Trust and Savings Bank, not in its
individual capacity but solely as Indenture Trustee, and in no event shall
Harris Trust and Savings Bank have any liability for the representations,
warranties,
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covenants, agreements or other obligations of the Issuer hereunder or in any
of the certificates, notices or agreements delivered pursuant hereto, as to all
of which recourse shall be had solely to the assets of the Issuer.
19. THIRD-PARTY BENEFICIARY. The Trustee is a third-party beneficiary to
this Agreement and is entitled to the rights and benefits hereunder and may
enforce the provisions hereof as if it were a party hereto.
20. INDEMNIFICATION. The Administrator shall indemnify the Trustee and the
Indenture Trustee (and their officers, directors, employees and agents) for, and
hold them harmless against, any losses, liability or expense, including
attorneys' fees reasonably incurred by them, incurred without negligence or bad
faith on their part, arising out of or in connection with: (i) actions taken by
either of them pursuant to instructions given by the Administrator pursuant to
this Agreement or (ii) the failure of the Administrator to perform its
obligations hereunder. The indemnities contained in this Section shall survive
the termination of this Agreement and the resignation or removal of the
Administrator, the Trustee or the Indenture Trustee.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
CNH EQUIPMENT TRUST 2000-A
By: THE BANK OF NEW YORK,
not in its individual capacity but solely as
Trustee on behalf of the Issuer
/s/ Erwin Soriano
By:_________________________
Name: Erwin Soriano
Title: Assistant Treasurer
HARRIS TRUST AND SAVINGS BANK,
not in its individual capacity but solely as
Indenture Trustee
/s/ Rory Nowakowski
By:____________________________
Name: Rory Nowakowski
Title: Assistant Vice President
CASE CREDIT CORPORATION,
as Administrator
/s/ Ralph A. Than
By:_____________________________
Name: Ralph A. Than
Title: Vice President and
Treasurer
Accepted and agreed:
THE BANK OF NEW YORK,
not in its individual capacity but
solely as Trustee under the Trust Agreement
/s/ Erwin Soriano
By:________________________
Name: Erwin Soriano
Title: Assistant Treasurer
15
March 16, 2000
Salomon Smith Barney Inc.,
as Representative of the
Several Underwriters
390 Greenwich Street
New York, New York 10013
Re: CNH Equipment Trust 2000-A
Ladies and Gentlemen:
We have acted as special Federal tax counsel for CNH Equipment Trust
2000-A, a Delaware business trust (the "TRUST"), in connection with the issuance
and sale of Class A-1 Asset Backed Notes (the "CLASS A-1 NOTES"), Class A-2
Asset Backed Notes (the "CLASS A-2 NOTES"), Class A-3 Asset Backed Notes (the
"CLASS A-3 NOTES"), Class A-4 Asset Backed Notes (the "CLASS A-4 NOTES") and
Class B Asset Backed Notes (the "CLASS B NOTES"; together with the Class A-1
Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes, the
"NOTES"), to be issued pursuant to the Indenture, dated as of March 1, 2000 (the
"INDENTURE"), between the Trust and Harris Trust and Savings Bank, as Indenture
Trustee. Capitalized terms not otherwise defined herein are used as defined in
the Sale and Servicing Agreement, dated as of March 1, 2000 (the "SALE AND
SERVICING AGREEMENT"), among the Trust, as Issuer, CNH Receivables Inc.
("CNHR"), as Seller, and Case Credit Corporation ("CASE CREDIT"), as the
Servicer.
In that connection, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of such documents, corporate records
and other instruments as we have deemed necessary or appropriate for the
purposes of this opinion, including: (a) the Prospectus, dated March 6, 2000
(the "PROSPECTUS"), and the Prospectus Supplement (to the Prospectus), dated
March 9, 2000 (the "PROSPECTUS SUPPLEMENT"), relating to the Notes, as filed
with the
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March 16, 2000
Page 2
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended, (b) the Sale Agreement, dated as of March 1, 2000, between New Holland
Credit Company, L.L.C. and Case Credit, (c) the Purchase Agreement, dated as of
March 1, 2000, between Case Credit and CNHR, (d) the Sale and Servicing
Agreement, (e) the Trust Agreement, dated as of March 1, 2000, (the "Trust
Agreement"), between CNHR, as Depositor, and The Bank of New York, as trustee
(the "Trustee"), (f) the Indenture and (g) specimens of the Notes.
The opinion set forth in this letter is based on reasoning from legal
principles based on the relevant provisions of the Internal Revenue Code of
1986, as amended, the legislative history thereof, currently applicable Treasury
regulations, judicial decisions, administrative rulings and such other
authorities as we have considered relevant. There can be no assurance that the
opinions expressed below could not be successfully challenged by the Internal
Revenue Service, or significantly altered by legislative changes, changes in
administrative positions or judicial decisions, any of which may be applied
retroactively with respect to the completed transactions. Any such change could
render the affected provisions of this opinion inoperative. No tax rulings will
be sought from the IRS with respect to any of the matters discussed herein.
Based upon the foregoing, we hereby confirm that: (i) the statements
set forth in the Prospectus under the heading "U.S. Federal Income Tax
Consequences" and in the Prospectus Supplement under the heading "Summary of
Terms--Tax Status" (to the extent relating to Federal income tax consequences)
accurately reflect our opinion; (ii) the statements set forth in the Prospectus
under the heading "Illinois State Tax Consequences" and in the Prospectus
Supplement under the heading "Summary of Terms--Tax Status" (to the extent
relating to Illinois state income tax consequences) accurately reflect our
opinion; and (iii) the statements set forth in the Prospectus under the heading
"ERISA Considerations" and in the Prospectus Supplement under the headings
"ERISA Considerations" and "Summary of Terms--ERISA Considerations" accurately
reflect our opinion.
Very truly yours,
/s/ MAYER, BROWN & PLATT
RFH:BCB
