Exhibit 4.2


 




 





CNH
EQUIPMENT TRUST 2009-B


 


TRUST
AGREEMENT


 


between


 


CNH CAPITAL
RECEIVABLES LLC


 


and


 


WILMINGTON
TRUST COMPANY,


 


as Trustee


 


Dated as of
April 1, 2009


 




 




















 


TABLE OF
CONTENTS


 


	
  ARTICLE I Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  SECTION 1.1

  	
  Definitions

  	
  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

  	
  3

  
	
  SECTION 2.8

  	
  Title to Trust Property

  	
  3

  
	
  SECTION 2.9

  	
  Situs of Trust

  	
  4

  
	
  SECTION 2.10

  	
  Representations and Warranties of the Depositor

  	
  4

  
	
  SECTION 2.11

  	
  Federal Income Tax Allocations; Tax Treatment

  	
  5

  
	
   

  	
   

  	
   

  
	
  ARTICLE III Trust Certificates and Transfer of Interests

  	
  5

  
	
   

  	
   

  	
   

  
	
  SECTION 3.1

  	
  Initial Ownership

  	
  5

  
	
  SECTION 3.2

  	
  The Trust Certificates

  	
  5

  
	
  SECTION 3.3

  	
  Authentication of Trust Certificates

  	
  5

  
	
  SECTION 3.4

  	
  Registration of Transfer and Exchange of Trust Certificates

  	
  5

  
	
  SECTION 3.5

  	
  Mutilated, Destroyed, Lost or Stolen Trust Certificates

  	
  7

  
	
  SECTION 3.6

  	
  Persons Deemed Certificateholders

  	
  8

  
	
  SECTION 3.7

  	
  Access to List of Certificateholders’ Names and Addresses

  	
  8

  
	
  SECTION 3.8

  	
  Maintenance of Office or Agency

  	
  8

  
	
  SECTION 3.9

  	
  Appointment of Paying Agent

  	
  8

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV Actions by Trustee

  	
  9

  
	
   

  	
   

  	
   

  
	
  SECTION 4.1

  	
  Prior Notice to Certificateholders With Respect to Certain
  Matters

  	
  9

  
	
  SECTION 4.2

  	
  Action By Certificateholders With Respect to Certain
  Matters

  	
  10

  
	
  SECTION 4.3

  	
  Action By Certificateholders With Respect to Bankruptcy

  	
  10

  
	
  SECTION 4.4

  	
  Restrictions on Certificateholders’ Power

  	
  10

  
	
  SECTION 4.5

  	
  Majority Control

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE V Application of Trust Funds; Certain Duties

  	
  10

  
	
   

  	
   

  	
   

  
	
  SECTION 5.1

  	
  Establishment of Trust Account

  	
  10

  
	
  SECTION 5.2

  	
  Applications of Trust Funds

  	
  11

  
	
  SECTION 5.3

  	
  Method of Payment

  	
  12

  
	
  SECTION 5.4

  	
  No Segregation of Monies; No Interest

  	
  12

  
	
  SECTION 5.5

  	
  Accounting and Reports to the Noteholders,
  Certificateholders, the Internal Revenue Service and Others

  	
  12

  



 


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  SECTION 5.6

  	
  Signature on Returns; Tax Matters Partner

  	
  13

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI Authority and Duties of Trustee

  	
  13

  
	
   

  	
   

  	
   

  
	
  SECTION 6.1

  	
  General Authority

  	
  13

  
	
  SECTION 6.2

  	
  General Duties

  	
  13

  
	
  SECTION 6.3

  	
  Action upon Instruction

  	
  13

  
	
  SECTION 6.4

  	
  No Duties Except as Specified in This Agreement or in
  Instructions

  	
  14

  
	
  SECTION 6.5

  	
  No Action Except Under Specified Documents or Instructions

  	
  15

  
	
  SECTION 6.6

  	
  Restrictions

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII Concerning the Trustee

  	
  15

  
	
   

  	
   

  	
   

  
	
  SECTION 7.1

  	
  Acceptance of Trusts and Duties

  	
  15

  
	
  SECTION 7.2

  	
  Furnishing of Documents

  	
  16

  
	
  SECTION 7.3

  	
  Representations and Warranties

  	
  17

  
	
  SECTION 7.4

  	
  Information to be Provided by the Trustee

  	
  17

  
	
  SECTION 7.5

  	
  Reliance; Advice of Counsel

  	
  18

  
	
  SECTION 7.6

  	
  Not Acting in Individual Capacity

  	
  18

  
	
  SECTION 7.7

  	
  Trustee Not Liable For Trust Certificates or Receivables

  	
  18

  
	
  SECTION 7.8

  	
  Trustee May Not Own Notes

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII Compensation of Trustee

  	
  19

  
	
   

  	
   

  	
   

  
	
  SECTION 8.1

  	
  Trustee’s Fees and Expenses

  	
  19

  
	
  SECTION 8.2

  	
  Indemnification

  	
  19

  
	
  SECTION 8.3

  	
  Payments to the Trustee

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX Termination of Trust Agreement

  	
  20

  
	
   

  	
   

  	
   

  
	
  SECTION 9.1

  	
  Termination of Trust Agreement

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE X Successor Trustees and Additional Trustees

  	
  21

  
	
   

  	
   

  	
   

  
	
  SECTION 10.1

  	
  Eligibility Requirements for Trustee

  	
  21

  
	
  SECTION 10.2

  	
  Resignation or Removal of Trustee

  	
  21

  
	
  SECTION 10.3

  	
  Successor Trustee

  	
  22

  
	
  SECTION 10.4

  	
  Merger or Consolidation of Trustee

  	
  23

  
	
  SECTION 10.5

  	
  Appointment of Co-Trustee or Separate Trustee

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI Miscellaneous

  	
  24

  
	
   

  	
   

  	
   

  
	
  SECTION 11.1

  	
  Supplements and Amendments

  	
  24

  
	
  SECTION 11.2

  	
  No Legal Title To Trust Estate in Certificateholders

  	
  25

  
	
  SECTION 11.3

  	
  Limitations on Rights of Others

  	
  25

  
	
  SECTION 11.4

  	
  Notices

  	
  26

  
	
  SECTION 11.5

  	
  Severability

  	
  26

  
	
  SECTION 11.6

  	
  Separate Counterparts

  	
  26

  



 


ii

















 


	
  SECTION 11.7

  	
  Successors and Assigns

  	
  26

  
	
  SECTION 11.8

  	
  Covenants of The Depositor

  	
  26

  
	
  SECTION 11.9

  	
  No Petition

  	
  27

  
	
  SECTION 11.10

  	
  No Recourse

  	
  27

  
	
  SECTION 11.11

  	
  Headings

  	
  27

  
	
  SECTION 11.12

  	
  Governing Law

  	
  27

  
	
  SECTION 11.13

  	
  Administrator

  	
  27

  
	
  SECTION 11.14

  	
  Information to be Provided by the Trustee

  	
  27

  
	
  SECTION 11.15

  	
  Complete Information

  	
  28

  
	
  SECTION 11.16

  	
  Indemnification

  	
  29

  
	
  SECTION 11.17

  	
  Paying Agent Protection

  	
  31

  



 


iii

















 


EXHIBITS


 


	
  EXHIBIT
  A

  	
  Form of
  Trust Certificate

  
	
  EXHIBIT
  B

  	
  Form of
  Certificate of Trust

  



 


iv

















 


TRUST
AGREEMENT (as amended or supplemented from time to time, this
“Agreement”) dated as of April 1,
2009 between CNH CAPITAL RECEIVABLES LLC, a Delaware limited liability company,
as Depositor, and Wilmington Trust Company (“WTC”),
a Delaware 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 2009-B and
The Bank of New York Mellon Trust Company, N.A.


 


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.


 


(e)           References to any
law or regulation refer to that law or regulation as amended from time to time
and include any successor law or regulation.


 


(f)            References to any
agreement refer to that agreement as from time to time amended or supplemented
or as the terms of such agreement are waived or modified in accordance with its
terms.


 


(g)           References to any
Person include that Person’s successors and assigns.


 

















 


ARTICLE II

Organization


 


SECTION 2.1         Name.  The Trust created hereby shall be known as “CNH
Equipment Trust 2009-B”, in which name the Trustee may conduct the business of
the Trust, make and execute contracts and other instruments on behalf of the
Trust and 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
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/or the Trust Certificates in one or more
transactions;


 


(b)           with the proceeds of
the sale of the Notes and/or the Trust Certificates, to fund the Pre-Funding
Account and to purchase the Receivables pursuant to the Sale and Servicing
Agreement;


 


(c)           to assign, Grant,
transfer, pledge, mortgage and convey the Trust Estate pursuant to the
Indenture and to hold, manage and distribute to the Certificateholders pursuant
to the Sale and Servicing Agreement any portion of the Trust Estate released
from the Lien of, and remitted to the Trust pursuant to, the Indenture;


 


(d)           to enter into and
perform its obligations under the Basic Documents to which it is to be a party;


 


(e)           to engage in those
activities, including entering into agreements, that are necessary, suitable or
convenient to accomplish the foregoing or are incidental thereto or connected
therewith; and


 


(f)            subject to
compliance with the Basic Documents, to engage in such other activities as may
be required in connection with conservation of the Trust Estate and the making
of distributions to the Certificateholders and the Noteholders.


 


The Trust shall not engage
in any activity other than in connection with the foregoing or other than as
required or authorized by this Agreement or the Basic Documents.  The Trust shall have no power to hold any
derivative financial instrument unless such derivative financial instrument
complies with the requirements of paragraph 40 of Statement of Financial
Accounting Standards No. 140 issued by the Financial Accounting Standards
Board for “qualifying special purpose entities” (“FAS 140”), including any
interpretations thereof or any successor standard issued by the Financial
Accounting Standards Board.  The Trustee
shall have no obligation to determine whether or not any derivative financial
instrument complies with FAS 140.


 


2

















 


SECTION 2.4         Appointment of Trustee.  The Depositor hereby appoints
Wilmington Trust Company as Trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein.


 


SECTION 2.5         Initial Capital
Contribution of Trust Estate.  The Depositor hereby contributes
to the Trustee, as of the date hereof, the sum of $1.00. The Trustee hereby
acknowledges receipt in trust from the Depositor, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Trust Estate and
shall be deposited in the Certificate Distribution Account. The Depositor shall
pay organizational expenses of the Trust as they may arise or shall, upon the
request of the Trustee, promptly reimburse the Trustee for any such expenses
paid by the Trustee.  The Depositor may
also take steps necessary, including the execution and filing of any necessary
filings, to ensure that the Trust is in compliance with any applicable State
securities law.


 


SECTION 2.6         Declaration of Trust.  The
Trustee hereby declares that it will hold the Trust Estate in trust upon and
subject to the conditions set forth herein for the use and benefit of the
Certificateholders, subject to the obligations of the Trust under the Basic
Documents. It is the intention of the parties hereto that the Trust constitute
a statutory trust under the Trust Statute and that this Agreement constitute
the governing instrument of such statutory trust.  It is the intention of the parties hereto
that, solely for income and franchise tax purposes, until the Trust
Certificates are held by a Person other than the Depositor, the Trust be
disregarded as an entity separate from the Depositor and the Notes be treated
as debt of the Depositor.  At such time
that the Trust 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 be treated as a partnership, with the assets of the
partnership being the Receivables and other assets held by the Trust, the
partners of the partnership being the Certificateholders (including the
Depositor (or its successor in interest) 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 Trust
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 separate from
the Depositor (or other sole owner of the Trust Certificates). 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.  The Trustee shall file a
Certificate of Trust on behalf of the Trust with the Secretary of State
pursuant to Section 3810 of the Trust Statute.


 


SECTION 2.7         Liability of the
Certificateholders.  No Certificateholder shall have
any personal liability for any liability or obligation of the Trust. The
Certificateholders shall be entitled to the same limitation of personal
liability extended to stockholders of corporations under the Delaware General
Corporation Law.


 


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.


 


3
















 


SECTION 2.9         Situs of Trust.  The Trust will be located and administered in
the States of Delaware and Pennsylvania and/or in any other states to which the
Depositor consents in writing.  All bank
accounts maintained by the Trustee on behalf of the Trust shall be located in
the State of Delaware or New York and/or in any other states to which the
Depositor consents in writing.  The Trust
shall not have any employees.  Payments
will be received by the Trust only in Delaware or New York and/or in any other
states to which the Depositor consents in writing and payments will be made by
the Trust only from Delaware or New York and/or in any other states to which
the Depositor consents in writing.


 


SECTION 2.10       Representations and
Warranties of the Depositor. 
The Depositor hereby represents and warrants to the Trustee that as of
the date hereof:


 


(a)           The Depositor is
duly organized and validly existing as a limited liability company 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 limited liability company in good
standing, and has obtained all necessary licenses and approvals, in all
jurisdictions in which the ownership or lease of property or the conduct of its
business shall require such qualifications.


 


(c)           The Depositor has
the power and authority to execute and deliver this Agreement and to carry out
its terms; the Depositor has full power and authority to sell and assign the
property to be sold and assigned to and deposited with the Trust and the
Depositor has duly authorized such sale and assignment and deposit to the Trust
by all necessary limited liability company action; and the execution, delivery
and performance of this Agreement have been duly authorized by the Depositor by
all necessary limited liability company 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 formation, limited liability company
agreement 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


 


4

















 


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. 
If the Trust Certificates and interests in the Spread Account are held
by more than one Person, this Agreement shall be amended to include such
provisions as are required or appropriate under Subchapter K of the Code in
order for the Trust to be treated as a partnership whose partners are the
beneficial owners of the Trust Certificates and the Depositor (or other holders
of interests in the Spread Account).


 


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; and upon the issuance of the Trust Certificates,
the Depositor will no longer be a beneficiary of the Trust, except to the
extent that the Depositor is a Certificateholder.


 


SECTION 3.2         The Trust Certificates.  The Trust Certificates shall be substantially
in the form of Exhibit A hereto and 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, fully paid, non-assessable 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 Certificate
evidencing the 100% beneficial interest in the Trust 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, any vice
president, any secretary, any assistant secretary, any treasurer, or any
assistant treasurer, without further action by the Depositor.  No Trust Certificate shall entitle its holder
to any benefit under this Agreement, or shall be valid for any purpose, unless
there shall appear on such Trust Certificate a certificate of authentication
substantially in the form set forth in Exhibit A, executed by the Trustee
by the manual signature of one of its authorized signatories; such certificate
of authentication shall constitute conclusive evidence, and the only evidence,
that such Trust Certificate shall have been duly authenticated and delivered
hereunder. All Trust Certificates shall be dated the date of their
authentication.  No further Trust
Certificates shall be issued except pursuant to Section 3.4 or 3.5 hereunder.


 


SECTION 3.4         Registration of
Transfer and Exchange of Trust Certificates.  The Trust shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.8,
a register (the “Certificate Register”)
in which, subject to such reasonable regulations as it may prescribe, the Trust
shall provide for the registration of Trust Certificates and of transfers and


 


5

















 


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.  The initial Trust
Certificate shall be registered in the name of “CNH Capital Receivables LLC” as the initial registered owner
thereof.


 


Upon surrender for
registration of transfer of any Trust Certificate at the office or agency
maintained pursuant to Section 3.8,
the Trustee shall execute, authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Trust Certificates
evidencing such transferee’s beneficial interest in the Trust, which Trust
Certificates will be issued in amounts equal, in the aggregate, to the
percentage of beneficial interest in the Trust transferred by such transferor.


 


At the option of a
Certificateholder, upon surrender of the Trust Certificates to be exchanged at
the office or agency maintained pursuant to Section 3.8,
a Trust Certificate may be exchanged for a new Trust Certificate evidencing the
same percentage of beneficial interest in the Trust as the Trust Certificate so
exchanged.  Whenever any Trust
Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate and deliver the Trust Certificates that the Certificateholder
making the exchange is entitled to receive.


 


All Trust Certificates
issued upon any registration of transfer or exchange of Trust Certificates
shall be entitled to the same benefits under this Agreement as the Trust
Certificates surrendered upon such registration of transfer or exchange.


 


Every Trust Certificate
presented or surrendered for registration of transfer or exchange shall be duly
endorsed by, or be accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by, the
Certificateholder thereof or his attorney duly authorized in writing. No
transfer of a Trust Certificate shall be registered unless the transferee shall
have provided (i) if the transferee is not the Seller or an Affiliate of
the Seller and the transferor is not the Seller or an Affiliate of the Seller,
an opinion of counsel that no registration is required under the Securities Act
of 1933, as amended, or applicable State laws, and (ii) if the transferee
is the Seller or an Affiliate of the Seller, an Officer’s Certificate as to
compliance with Section 6.6
of the Sale and Servicing Agreement. 
Each Trust Certificate surrendered for registration of transfer or
exchange shall be canceled and subsequently disposed of by the Trustee in
accordance with its customary practice.


 


No service charge shall be
made to a Certificateholder for any registration of transfer or exchange of
Trust Certificates, but the Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Trust Certificates.


 


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 of
any of the foregoing (each a “Benefit Plan”).
By accepting and holding a Trust Certificate or an interest therein, the
Certificateholder


 


6

















 


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
Certificateholder of a Trust Certificate is or is not a Benefit Plan.


 


Notwithstanding any other
provision of this Agreement, no transfer of a Trust Certificate or beneficial
interest therein shall be allowed, and any such purported transfer shall be
void ab initio, if such transfer
would cause the Trust to have more than 100 partners within the meaning of
Treasury Regulation section 1.7704-1(h)(1). 
For purposes of determining the number of partners in the Trust under
Treasury Regulation section 1.7704-1(h)(1), a person owning an interest in a
partnership, grantor trust, or S corporation (a “flow-through entity”) that owns, directly or through other
flow-through entities, an interest in the Trust, will be treated as a partner
in the Trust if more than 50 percent of the value of such person’s interest in
the flow-through entity is attributable to the flow-through entity’s interest
(direct or indirect) in the Trust.


 


No transfer (or purported
transfer) of a Trust Certificate (or any beneficial interest therein), whether
to another Certificateholder or to a person who is not a Certificateholder,
shall be effective, and any such transfer (or purported transfer) shall be void
ab initio, and no person shall
otherwise become a Certificateholder, and none of the Trust, the Trustee, the
Certificate Registrar or any of the Certificateholders will recognize such
transfer (or purported transfer), unless the transferee has first represented
and warranted in writing to the Trust that:


 


(A)          it is acquiring the Trust Certificate for its own account
and is the sole beneficial owner of such Trust Certificate;


 


(B)           the transfer is not being effected on or through (x) an
“established securities market” within the meaning of Section 7704(a)(1) of
the Code, including without limitation, an over-the-counter market or an
interdealer quotation system that regularly disseminates firm buy or sell
quotations or (y) a “secondary market (or the substantial equivalent
thereof)” within the meaning of Section 7704(a)(2) of the Code and
any proposed, temporary or final Treasury Regulations thereunder; and


 


(C)           such transfer will not cause the Trust to be classified as
a publicly traded partnership for U.S. federal income tax purposes, and such
purchaser or transferee will not take any action, including any subsequent
disposition of such Trust Certificate (or any beneficial interest therein),
that would cause the Trust to be treated as a publicly traded partnership for
U.S. federal income tax purposes.


 


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, 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


 


7

















 


evidencing the same percentage of beneficial
interest in the Trust as the Trust Certificate so mutilated, destroyed, lost or
stolen.


 


In connection with the
issuance of any replacement Trust Certificate under this Section, the Trustee
and the Certificate Registrar may require the payment by the Certificateholder
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith.


 


Any replacement Trust
Certificate issued pursuant to this Section in replacement of any
mutilated, destroyed, lost or stolen Trust Certificate shall constitute
conclusive evidence of ownership in the Trust, as if originally issued, whether
or not the mutilated, lost, stolen or destroyed Trust Certificate shall be
found at any time, and shall be entitled to all the benefits of this Agreement.


 


SECTION 3.6         Persons Deemed
Certificateholders.  Prior
to due presentation of a Trust Certificate for registration of transfer of any
Trust Certificate, the Trustee or the Certificate Registrar may treat the
Person in whose name any Trust Certificate shall be registered in the
Certificate Register (as of the day of determination) as the owner of such
Trust Certificate for the purpose of receiving distributions pursuant to Section 5.2 and for all other
purposes whatsoever, and neither the Trustee nor the Certificate Registrar
shall be bound by any notice to the contrary.


 


SECTION 3.7         Access to List of
Certificateholders’ Names and Addresses.  The Trustee shall furnish or cause to be
furnished to the Servicer and the Depositor, within 15 days after receipt by
the Trustee of a request therefor from the Servicer or the Depositor in
writing, a list, in such form as the Servicer or the Depositor may reasonably
require, of the names and addresses of the Certificateholders as of the most
recent Record Date. If three or more Certificateholders evidencing in the
aggregate not less than 25% of the beneficial interest in the Trust 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 Certificateholder, 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 an office or offices or agency or agencies where Trust
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Trustee in respect of the Trust
Certificates and the Basic Documents may be served.  The Trustee initially designates its
Corporate Trust Office 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 


 


8

















 


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 Indenture 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 Indenture Trustee
shall not be the Paying Agent, the Trustee shall appoint a successor to act as
Paying Agent (which shall be a bank or trust company).  The Trustee shall cause such successor Paying
Agent or any additional Paying Agent appointed by the Trustee to execute and
deliver to the Trustee an instrument in which such successor Paying Agent or
additional Paying Agent (other than the Indenture Trustee or the Trustee as
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 Indenture Trustee
or Trustee to the extent the Indenture Trustee or Trustee is a Paying Agent,
for so long as the Indenture Trustee or Trustee, as applicable, 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 (or such shorter period as shall be agreed to in writing by all
Certificateholders), 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 (or such agreed upon
shorter period) 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 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;


 


(c)           the amendment,
change or modification of the Administration Agreement, except to cure any
ambiguity or to amend or supplement any provision in a


 


9

















 


manner, or add any provision, that would not materially adversely
affect the interests of the Certificateholders; or


 


(d)           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 (other than the Trustee), or the consent to the assignment by the
Note Registrar, Paying Agent or Indenture Trustee or Certificate Registrar
(other than to the Trustee) 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 (i) until
one year and one day after the Outstanding Amount of all the Notes has been
reduced to zero and (ii) without the unanimous prior approval of all
Certificateholders and (iii) without 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 Certificateholders holding in the aggregate more than 50% of the
beneficial interest in the Trust at the time of such action. Except as
expressly provided herein, any written notice of the Certificateholders
delivered pursuant to this Agreement shall be effective if signed by
Certificateholders holding in the aggregate more than 50% of the beneficial
interest in the Trust at the time of such action.


 


ARTICLE V

Application of Trust Funds; Certain Duties


 


SECTION 5.1         Establishment of Trust
Account.  The Trustee or
the Paying Agent on the Trust’s behalf, 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.


 


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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 or the Paying Agent 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 Paying Agent on the Trust’s behalf
(or the Depositor on behalf of the Trustee, if the Certificate Distribution
Account is not then held by the initial Paying Agent or 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 Indenture Trustee (if any Notes are Outstanding) or the Trustee (if
the Notes have been paid in full) will distribute to Certificateholders, on a
pro rata basis, amounts deposited in the Certificate Distribution Account
pursuant to Section 5.6 of
the Sale and Servicing Agreement.


 


(b)           On each Payment
Date, the Indenture Trustee or the Trustee shall send to each Certificateholder
the statement provided to the Indenture Trustee or the Trustee, as applicable,
by the Servicer pursuant to Section 5.11
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 Indenture Trustee and the Trustee, as
applicable, are 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 Indenture Trustee or the Trustee, as applicable, 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 Indenture Trustee
or the Trustee, as applicable, may, in its sole discretion, withhold such
amounts in accordance with this paragraph (c). 
Notwithstanding any other provision of this Agreement, the Trust shall
withhold and pay over to the Internal Revenue Service, pursuant to Sections
1441, 1442 and 1446 of the Code (or any successor provisions or any other
provision as may be enacted into law), at such times as required by such
provisions, such amounts as the Trust is required to withhold under such
provision on account of any foreign Certificateholder’s distributive share of
income of the Trust, as if the entire amount of such foreign Certificateholder’s
distributive share of such income is subject to withholding tax pursuant to
such provisions.  To the extent that a
foreign Certificateholder claims to be entitled to a reduced rate of, or
exemption from, U.S. withholding tax pursuant to an


 


11

















 


applicable income tax treaty, or otherwise, such foreign
Certificateholder shall furnish the Depositor and the Trustee with such
information and forms as it may require and are necessary to comply with the
regulations governing the obligations of withholding tax agents, which the
Depositor may forward to the Indenture Trustee. 
Each foreign Certificateholder represents and warrants that any such
information and form furnished by it shall be true and accurate and agrees to
indemnify the Trust and each of the other Certificateholders from any and all
damages, costs and expenses resulting from the filing of inaccurate or
incomplete information or forms relating to such withholding taxes.  In the event that a Certificateholder wishes
to apply for a refund of any such withholding tax, the Indenture Trustee or the
Trustee, as applicable, shall reasonably cooperate with such Certificateholder
in making such claim so long as such Certificateholder agrees to reimburse the
Indenture Trustee or the Trustee, as applicable, 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
Certificateholder 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 Certificateholder’s Trust Certificates aggregate not
less than $1,000,000, or, if not, by check mailed to such Certificateholder at
the address of such Certificateholder appearing in the Certificate Register.


 


SECTION 5.4         No Segregation of
Monies; No Interest. 
Subject to Sections 5.1 and 5.2, monies received by the Trustee or the
Paying Agent 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 or
the Paying Agent, as applicable, 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 Trust Certificates
are held by any Person other than the Depositor or its Affiliate, 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, if
applicable) to enable each Certificateholder to prepare its federal, State and
local income tax returns, (c) file such tax returns relating to the Trust
(including, if applicable, 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 disregarded entity or partnership for federal income tax
purposes, as applicable, (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


 


12

















 


Section 171 of the Code to amortize any bond premium with respect
to the Receivables.  The Trustee shall
not make the election provided under Section 754 of the Code.


 


SECTION 5.6         Signature on Returns; Tax Matters Partner.


 


(a)           The Depositor, or if
any Trust 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 such Certificateholder.


 


(b)           In the event the
Trust is characterized as a partnership, in accordance with Section 2.6,
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 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


 


13

















 


advised by counsel, that such action is likely to result in liability
on the part of the Trustee or is contrary to the terms hereof or of any Basic
Document or is otherwise contrary to law.


 


(c)           Whenever the Trustee
is unable to decide between alternative courses of action permitted or required
by this Agreement or any Basic Document, the Trustee shall promptly give notice
(in such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction as to the course of action to be
adopted, and to the extent the Trustee acts in good faith in accordance with
any written instruction of the Certificateholders received, the Trustee shall
not be liable on account of such action to any Person.  If the Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action, not inconsistent with this Agreement or the
Basic Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action
or inaction.


 


(d)           In the event that
the Trustee is unsure as to the application of any provision of this Agreement
or any Basic Document or any such provision is ambiguous as to its application,
or is, or appears to be, in conflict with any other applicable provision, or in
the event that this Agreement permits any determination by the Trustee or is
silent or is incomplete as to the course of action that the Trustee is required
to take with respect to a particular set of facts, the Trustee may give notice
(in such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction and, to the extent that the Trustee
acts or refrains from acting in good faith in accordance with any such
instruction received, the Trustee shall not be liable, on account of such
action or inaction, to any Person.  If
the Trustee shall not have received appropriate instruction within 10 days of
such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such action, not
inconsistent with this Agreement or the Basic Documents, as it shall deem to be
in the best interests of the Certificateholders, and shall have no liability to
any Person for such action or inaction.


 


SECTION 6.4         No Duties Except as
Specified in This Agreement or in Instructions.  The Trustee shall not have any duty or
obligation to manage, make any payment with respect to, register, record, sell,
dispose of or otherwise deal with the Trust Estate, or to otherwise take or
refrain from taking any action under, or in connection with, any document contemplated
hereby to which the Trustee is a party, except as expressly provided by this
Agreement or in any document or written instruction received by the Trustee
pursuant to Section 6.3; and
no implied duties or obligations shall be read into this Agreement or any Basic
Document against the Trustee.  The
Trustee shall have no responsibility for filing any financing or continuation
statement in any public office at any time or to otherwise perfect or maintain
the perfection of any security interest or Lien granted to it hereunder or to
prepare or file any Securities and Exchange Commission filing for the Trust or
to record this Agreement or any Basic Document. 
The Trustee nevertheless agrees that it will, at its own cost and
expense, promptly take all action


 


14

















 


as
may be necessary to discharge any Liens on any part of the Trust Estate arising
by, through or under the Trustee (including in its individual capacity) which
are unrelated to the administration or ownership of the Trust Estate.


 


Further, notwithstanding
anything to the contrary herein or in any other document, the Trustee shall not
be required to execute, deliver or certify on behalf of the Trust, the
Servicer, the Depositor or any other Person any filings, certificates,
affidavits or other instruments required under Section 302 of the
Sarbanes-Oxley Act of 2002. 
Notwithstanding any Person’s right to instruct the Trustee, neither the
Trustee nor any agent, employee, director or officer of the Trustee shall have
any obligation to execute any certificates or other documents required pursuant
to Section 302 of the Sarbanes-Oxley Act of 2002 or the rules and
regulations promulgated thereunder, and the refusal to comply with any such
instructions shall not constitute a default or breach under this Agreement or
any other document in connection herewith.


 


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 monies actually received by it constituting
part of the Trust Estate upon the terms of the Basic Documents and this
Agreement. The Trustee shall not be answerable or accountable hereunder or
under any Basic Document under any circumstances, except: (i) for its own
willful misconduct or negligence or (ii) in the case of the inaccuracy of
any representation or warranty contained in Section 7.3
expressly made by the Trustee. In particular, but not by way of limitation (and
subject to the exceptions set forth in the preceding sentence):


 


(a)           the Trustee shall
not be liable for any error of judgment made in good faith by a responsible
officer of the Trustee unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts;


 


(b)           the Trustee shall
not be liable with respect to any action taken or omitted to be taken by it in
accordance with the instructions of the Administrator, the Servicer or any
Certificateholder;


 


15

















 


(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
Depositor, the Indenture Trustee or the Servicer under any of the Basic
Documents or otherwise and the Trustee shall have no obligation or liability to
perform the obligations of the Trust under this Agreement or the Basic
Documents that are required to be performed by the Administrator under the
Administration Agreement, the Indenture Trustee under the Indenture or the
Servicer under the Sale and Servicing Agreement; and


 


(g)           the Trustee shall be
under no obligation to exercise any of the rights or powers vested in it by
this Agreement, or to institute, conduct or defend any litigation under this
Agreement or otherwise or in relation to this Agreement or any Basic Document,
at the request, order or direction of any of the Certificateholders unless such
Certificateholders have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that may be
incurred by the Trustee therein or thereby. 
The right of the Trustee to perform any discretionary act enumerated in
this Agreement or in any Basic Document shall not be construed as a duty, and
the Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of any such act.


 


SECTION 7.2         Furnishing of
Documents.  The Trustee
shall furnish to the Certificateholders promptly upon receipt of a written
request therefor, and at the expense of the Certificateholders, duplicates or
copies of all reports, notices, requests, demands, certificates, financial
statements and any other instruments furnished to the Trustee under the Basic
Documents.


 


16

















 


SECTION 7.3         Representations and
Warranties.  The Trustee
hereby represents and warrants to the Depositor, for the benefit of the
Certificateholders, that as of the date hereof (other than with respect to Section 7.3(e),
which is as of the dates specified therein):


 


(a)           it is a banking
corporation duly organized and validly existing in good standing under the laws
of the State of Delaware, with the requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement,


 


(b)           it has taken all
corporate action necessary to authorize the execution and delivery by it of
this Agreement, and this Agreement will be executed and delivered by one of its
officers who is duly authorized to execute and deliver this Agreement on its
behalf,


 


(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 to the best of its knowledge
without independent investigation 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 or other governmental instrumentality having
jurisdiction over the Trustee or its properties,


 


(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, and


 


(e)           as of the date of
the Underwriting Agreement, the Preliminary Prospectus Date, the Prospectus
Date and the Closing Date, to its knowledge without independent investigation,
there are no legal proceedings pending against the Trustee, or of which any
property of the Trustee is subject, that are material to the Noteholders, and
to the knowledge of the Trustee no such legal proceedings are contemplated by
any governmental authority.


 


SECTION 7.4         Information to be
Provided by the Trustee. 
The Trustee shall notify the Depositor promptly after the Trustee
becomes aware of (a) the initiation of any legal proceedings against the
Trustee, or of which any property of the Trustee is subject, that are material
to the Noteholders, (b) any developments in any such proceedings that are
material to the Noteholders and (c) any such proceedings that are
contemplated by any governmental authority.


 


17

















 


SECTION 7.5         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 (whether in its original or facsimile
form) 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, any treasurer, any assistant treasurer, any
secretary, any assistant secretary 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.


 


(a)           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 7.6         Not Acting in
Individual Capacity. 
Except as provided in this Article VII,
in accepting the trusts hereby created Wilmington Trust Company acts solely as
Trustee hereunder and not in its individual capacity and all Persons having any
claim against the Trustee by reason of the transactions contemplated by this
Agreement or any Basic Document shall look only to the Trust Estate for payment
or satisfaction thereof.


 


SECTION 7.7         Trustee Not Liable For
Trust Certificates or Receivables.  The recitals contained herein and in the
Trust 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


 


18

















 


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 7.8         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 Issuing
Entity.  The Trustee may otherwise deal
with the Depositor, the Administrator, the Indenture Trustee and the Servicer
with the same rights as it would have if it were not the Trustee.


 


ARTICLE VIII

Compensation of Trustee


 


SECTION 8.1         Trustee’s Fees and
Expenses.  The Trustee
shall receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Depositor and the
Trustee, and the Trustee shall be entitled to be reimbursed by the Depositor
for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Trustee may employ in connection with the exercise
and performance of its rights and its duties hereunder.


 


SECTION 8.2         Indemnification.  The Depositor shall be liable as primary
obligor for, and shall indemnify the Trustee and its successors, assigns,
agents and servants (collectively, the “Indemnified
Parties”) from and against, any and all liabilities, obligations,
losses, damages, taxes, claims, actions and suits, and any and all reasonable
costs, expenses and disbursements (including reasonable legal fees and
expenses) of any kind and nature whatsoever (collectively, “Expenses”), which may at any time be
imposed on, incurred by or asserted against the Trustee or any other
Indemnified Party in any way relating to or arising out of this Agreement, the
Basic Documents, the Trust Estate, the administration of the Trust Estate or
the action or inaction of the Trustee hereunder, except only that the Depositor
shall not be liable for or required to indemnify an Indemnified Party from and
against Expenses arising or resulting from: (a) such Indemnified Party’s
willful misconduct or negligence, (b) with respect to the Trustee, the
inaccuracy of any representation or warranty contained in Section 7.3 expressly made by the
Trustee or (c) any tax imposed on an Indemnified Party based on, measured
by or with respect to the net or gross income, capital or net worth, gross or
net receipts, franchise, excess profits or conduct of business by such
Indemnified Party (including, but not limited to, taxes imposed on, measured
by, or with respect to any fees or compensation received by the Trustee
hereunder).  The indemnities contained in
this Section shall survive the resignation or termination of the Trustee
or the termination of this Agreement. In any event of any claim, action or
proceeding for which indemnity will be sought pursuant to this Section, the
Trustee’s choice of legal counsel shall be subject to the approval of the
Depositor, which approval shall not be unreasonably withheld.


 


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SECTION 8.3         Payments to the
Trustee.  Any amounts paid
to the Trustee pursuant to this Article VIII
shall be deemed not to be a part of the Trust Estate immediately after such
payment.  The Trustee shall also be
entitled to interest on all fees and expenses that are due and unpaid for more
than sixty (60) days after they have been billed to the party responsible for
the payment of such amounts at a rate equal to the rate publicly announced by
Wilmington Trust Company as its prime rate from time to time.


 


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 monies
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
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; provided  however,
for the sake of clarity, no action is necessary by the Depositor, the
Certificateholder or any other Person as a prerequisite for a dissolution under
Section 9.1(a) to occur.


 


(c)           Notice of any
anticipated 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 anticipated dissolution from the
Servicer given pursuant to Section 9.1(c) of
the Sale and Servicing Agreement, and such notice from the Trustee shall state:
(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


 


20

















 


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 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.


 


(a)           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.  Other
than such instrument, and as provided in Section 10.2(b) and 10.3
below, no other documentation or action shall be required, and notwithstanding
anything to the contrary herein or in the Basic Documents, no consent shall be
required of any Person with respect to such appointment or entering into any
such agreement, and the amendment provisions hereof will not apply to such
instrument.  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 at
the expense of the Administrator any court of competent jurisdiction for the
appointment of a successor Trustee.


 


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If at any time the Trustee
shall cease to be eligible in accordance with Section 10.1
and shall fail to resign after written request therefor by the Administrator, or
if at any time the Trustee shall be legally unable to act, or shall be adjudged
bankrupt or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Administrator may remove the Trustee.  If the Administrator shall remove the Trustee
under the authority of the preceding sentence, the Administrator shall promptly
appoint a successor Trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the outgoing Trustee so removed and one
copy to the successor Trustee, and pay all fees owed to the outgoing Trustee.  Other than such instrument, and as provided
in Section 10.2(b) and 10.3 below, no other documentation or action
shall be required, and notwithstanding anything herein or in the Basic
Documents to the contrary, no consent shall be required of any Person with
respect to such appointment or entering into any such agreement, and the
amendment provisions hereof will not apply to such instrument.


 


(b)           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.  Such instrument shall
identify the situs of the Trust, locations where payments will be made and/or
received, and where bank accounts will be maintained for purposes of Section 2.9
hereof, if such locations are to change following such appointment.  As of the effective date of such instrument, Section 2.9
hereof shall be read to include such locations identified in such instrument.
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. Any successor Trustee shall file an amendment to the
Certificate of Trust as required by the Statutory Trust Act.


 


22
















 


SECTION 10.4       Merger or Consolidation
of Trustee.  Any
corporation or other entity into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder;
provided, such corporation shall be eligible pursuant to Section 10.1, without the execution
or filing of any instrument or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding; and provided
further, that the Trustee shall mail notice of such merger or consolidation to
the Rating Agencies.


 


SECTION 10.5       Appointment of
Co-Trustee or Separate Trustee. 
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust or any Financed Equipment may at the time be located, the
Administrator and the Trustee acting jointly shall have the power and may
execute and deliver all instruments to appoint one or more Person(s) approved
by the Trustee to act as co-trustee(s), jointly with the Trustee, or separate
trustee(s), of all or any part of the Trust Estate, and to vest in such
Person(s), in such capacity and for the benefit of the Certificateholders, such
title to the Trust Estate, or any part thereof, and, subject to the other provisions
of this Section, such powers, duties, obligations, rights and trusts as the
Administrator and the Trustee may consider necessary or desirable.  If the Administrator shall not have joined in
such appointment within 15 days after the receipt by it of a request so to do,
the Trustee alone shall have the power to make such appointment.  No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a successor
trustee pursuant to Section 10.1
and no notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to Section 10.3.


 


Each separate trustee and
co-trustee shall, to the extent permitted by law, be appointed and act subject
to the following provisions and conditions:


 


(i)            all rights, powers,
duties and obligations conferred or imposed upon the Trustee shall be conferred
or imposed upon and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate trustee
or co-trustee is not authorized to act separately without the Trustee joining
in such act), except to the extent that under any law of any jurisdiction in
which any particular act(s) are to be performed, the Trustee shall be
incompetent or unqualified to perform such act(s), in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
Estate or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;


 


(ii)           no trustee under
this Agreement shall be personally liable by reason of any act or omission of
any other trustee under this Agreement; and


 


(iii)          the Administrator
and the Trustee acting jointly may at any time accept the resignation of or
remove any separate trustee or co-trustee.


 


23

















 


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.  Any term or
provision of this Agreement may be amended by the Depositor and the Trustee
without the consent of the Indenture Trustee, any Noteholder, the Issuing
Entity or any other Person subject to the satisfaction of one of the following
conditions:


 


(i)            the Depositor
delivers an Opinion of Counsel to the Indenture Trustee to the effect that such
amendment will not materially and adversely affect the interests of the
Noteholders or the Certificateholders; or


 


(ii)           the Depositor delivers
an Officer’s Certificate of the Depositor to the Indenture Trustee to the
effect that such amendment will not materially and adversely affect the
interests of the Noteholders or the Certificateholders.


 


An
amendment shall be deemed not to adversely affect in any material respect the
interests of any Noteholders of a Class of Notes if the Rating Agency
Condition has been satisfied with respect to such amendment for such Class of
Notes.


 


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
Certificateholders holding in the aggregate more than 50% of the beneficial
interest in the Trust at the time of such action, 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:


 


24

















 


(a) reduce
the interest or principal of any Note or Certificate or delay the Final
Scheduled Maturity Date of any Note or (b) reduce the aforesaid percentage
of the Outstanding Amount and the beneficial interest in the Trust required to
consent to any such amendment, without the consent of the holders of all the
outstanding Notes and Trust Certificates.


 


Notwithstanding the above,
the permitted activities of the Trust set forth in Section 2.3 may not be significantly amended without
the consent of Noteholders, other than the Seller and its Affiliates as
Noteholders, evidencing not less than a majority of the Outstanding Amount of
the Notes held by parties exclusive of the Seller and its Affiliates.


 


Promptly after the execution
of any such amendment or consent (or, in the case of the Rating Agencies, prior
thereto), the Trustee shall furnish written notification of the substance of
such amendment or consent to each Certificateholder, the Indenture Trustee,
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
has been satisfied.  The Trustee may, but
shall not be obligated to, enter into any such amendment that affects the
Trustee’s own rights, duties or immunities under this Agreement or otherwise.


 


SECTION 11.2       No Legal Title To Trust
Estate in Certificateholders. 
The Certificateholders shall not have legal title to any part of the
Trust Estate. The Certificateholders shall be entitled to receive distributions
with respect to their undivided ownership interest therein only in accordance
with Articles V and IX. No transfer, by operation of law or
otherwise, of any right, title or interest of the Certificateholders in, to and
under their ownership interest in the Trust Estate shall operate to terminate
this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Trust
Estate.


 


SECTION 11.3       Limitations on Rights of
Others.  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.


 


25

















 


SECTION 11.4       Notices.  (a) Unless otherwise expressly specified
or permitted by the terms hereof, all notices shall be in writing, personally
delivered, by facsimile 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, Indenture Trustee or the Paying Agent, addressed to the
applicable Corporate Trust Office and (ii) if to the Depositor, addressed
to CNH Capital Receivables LLC, 6900 Veterans Boulevard, Burr Ridge, Illinois
60527, Attention: Assistant Treasurer, (telephone: (630) 887-2095) (facsimile:
(630) 887-5448); or, as to each party, at such other address or facsimile number
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 Certificateholder as shown in the
Certificate Register.  Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice.


 


SECTION 11.5       Severability.  Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


 


SECTION 11.6       Separate Counterparts.  This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.


 


SECTION 11.7       Successors and Assigns.  All covenants and agreements contained herein
shall be binding upon, and inure to the benefit of, the Depositor and its
successors, the Trustee and its successors and each Certificateholder and its
successors and permitted assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by a Certificateholder
shall bind the successors and assigns of such Certificateholder.


 


SECTION 11.8       Covenants of The
Depositor.  If 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 CNHCA, or make any distribution on or
in respect of its capital stock to CNHCA, or repay the principal amount of any
indebtedness of the Depositor held by CNHCA, 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.


 


26

















 


SECTION 11.9       No Petition.  The Trustee on behalf of the Trust, by
entering into this Agreement, each Certificateholder, by accepting a Trust
Certificate, the Trustee, 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 Depositor, the Servicer, the Administrator, the
Trustee, the Indenture Trustee or any Affiliate thereof and no recourse may be
had against such parties or their assets, except as may be expressly set forth
or contemplated in this Agreement, the Trust Certificates or the Basic
Documents.


 


SECTION 11.11     Headings.  The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.


 


SECTION 11.12     Governing Law.  This Agreement shall be construed in
accordance with the laws of the State of Delaware, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.


 


SECTION 11.13     Administrator.  The Administrator is authorized to execute on
behalf of the Trust all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Trust to prepare, file
or deliver pursuant to this Agreement and the Basic Documents.  Upon written request, the Trustee shall
execute and deliver to the Administrator a power of attorney appointing the
Administrator its agent and attorney-in-fact to execute all such documents,
reports, filings, instruments, certificates and opinions.


 


SECTION 11.14     Information to be Provided
by the Trustee.  For so
long as the Depositor is required to report under Regulation AB and the
Exchange Act, the Trustee shall, as promptly as practicable, but in any case no
later than each Payment Date, notify the Depositor, in writing, of: (i) the
commencement of or, if applicable, the termination of, any and all legal
proceedings pending against the Trustee or any and all proceedings of which any
property of the Trustee is the subject, that is material to the noteholders;
and (ii) the commencement of or, if applicable, the termination of, any
and all such proceedings known to be contemplated by governmental authorities
against the Trustee or any and all proceedings of which any property of the
Trustee is the subject, that is material to the noteholders.  The Trustee shall also notify the Depositor,
in writing, as promptly as practicable, but in any case no later than each
Payment Date, following notice to or discovery by a Responsible Officer of the
Trustee of any material changes to proceedings described in the preceding
sentence.  In addition, the Trustee will
furnish to the Depositor, in writing, the necessary disclosure regarding the
Trustee describing such proceedings required to be disclosed under Regulation
AB, including Item 1117 of Regulation AB, for inclusion in reports filed by or
on behalf of the Depositor pursuant to the Exchange Act.


 


27

















 


For so long as the Notes are
outstanding and the Depositor is required to report under Regulation AB and the
Exchange Act, the Trustee shall (i) on or before the fifth Business Day of
each January, April, July and October provide to the Depositor, in
writing, such information regarding or relating to the Trustee as is required
for the purpose of compliance by the Depositor with Regulation AB, including
Items 1109(a), 1109(b), 1119(a) and 1119(b) of Regulation AB; and (ii) as
promptly as practicable following notice to or discovery by a Responsible
Officer of the Trustee of any changes to such information (but in any case no
later than the next March 15 following such change), provide to the
Depositor, in writing, such updated information.  Such information shall include, at a minimum:


 


(A)          the Trustee’s name and form of organization;


 


(B)           a description of the extent to which the Trustee has had
prior experience serving as a trustee for asset-backed securities transactions
involving equipment receivables; and


 


(C)           a description of any affiliation between the Trustee and
any of the following parties (the “Affiliation Parties”), as such parties are
identified by legal name to the Trustee by the Depositor on the Closing Date:


 


(1)           the sponsor;


(2)           any depositor;


(3)           the issuing entity;


(4)           any servicer;


(5)           any other trustee;


(6)           any originator;


(7)           any significant obligor;


(8)           any enhancement or support provider;
and


(9)           any other material party related to
the transaction.


 


In addition, the Trustee
shall provide a description of whether there is, and if so the general
character of, any business relationship, agreement, arrangement, transaction or
understanding between the Trustee and any above-listed party that is entered
into outside the ordinary course of business or is on terms other than would be
obtained in an arm’s length transaction with an unrelated third party, apart
from this transaction, that currently exists or that existed during the past
two years and that is material to an investor’s understanding of the Notes.


 


For so long as the Notes are
outstanding and the Depositor is required to report under the Exchange Act, to
the extent that there is a change in any of the Affiliation Parties, the
Depositor will notify the Trustee in writing of a change or addition to any
such Affiliation Parties, to the extent that an Authorized Officer of the
Depositor has actual knowledge of such change or addition.


 


SECTION 11.15     Complete
Information.  The Disclosure
Information (as defined in Section 11.16) provided by WTC for inclusion in
the Prospectus and the Preliminary Prospectus is true and accurate in all
material respects.  As of the Preliminary
Prospectus Date and the Prospectus Date (a) there are no legal proceedings
pending or known to be contemplated by governmental authorities against WTC or
against any property of WTC, that would be material


 


28

















 


to the Noteholders, (b) WTC is not
affiliated with any of the Affiliation Parties, and (c) there is no
business relationship, agreement, arrangement, transaction or understanding
between the Trustee and any of the Affiliation Parties that is entered into
outside the ordinary course of business or is on terms other than would be
obtained in an arm’s length transaction with an unrelated third party, apart
from this transaction, that currently exists or that existed during the past
two years and that is material to an investor’s understanding of the Notes.


 


SECTION 11.16     Indemnification.


 


(a)           WTC agrees to pay,
and to protect, indemnify and save harmless Depositor and CNHCA from and
against, any and all claims, losses, liabilities (including penalties),
actions, suits, judgments, demands, damages, costs or expenses (including
reasonable fees and expenses of attorneys or, as necessary consultants and
auditors and reasonable costs of investigations) (collectively, “Losses”)
of any nature to the extent such Losses result from:


 


(i)            any untrue
statement of a material fact contained in (x) the information provided by
the Trustee pursuant to Section 11.14
(“Periodic Information”) or (y) the language set forth in Section 11.16(b) that was furnished by WTC for use under the
heading “The Trustee” in the prospectus supplement contained in the Prospectus
and the Preliminary Prospectus (the “Disclosure Information”, and
together with the Periodic Information and the 11.15 Information, the “Trustee
Information”) or (z) Section 11.15 (the
“11.15 Information”), or


 


(ii)           the omission to
state in the Trustee Information a material fact required to be stated in the
Trustee Information, or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading,


 


(b)           The Disclosure
Information for purposes of Section 11.16(a)(ii) is
as follows:


 


“Wilmington Trust Company is the trustee
under the trust agreement.  Wilmington
Trust Company is a Delaware banking corporation with trust powers incorporated
in 1903. Wilmington Trust Company’s principal place of business is located at
1100 North Market Street, Wilmington, Delaware, 19890. Wilmington Trust Company
has served as trustee in numerous asset-backed securities transactions
involving equipment retail installment loans, consumer installment loans and
retail installment sale contracts. 
Wilmington Trust Company has served as trustee for trusts involving
securitizations of retail installment sale contracts, retail installment loans
and consumer installment loans by the depositor since 2007.


 


Wilmington Trust Company
is subject to various legal proceedings that arise from time to time in the
ordinary course of business. Wilmington Trust Company does not believe that the
ultimate resolution of any of these proceedings will have a materially adverse
effect on its services as trustee or on the noteholders.


 


29

















 


Wilmington
Trust Company has provided the above information for purposes of complying with
Regulation AB. Other than the above two paragraphs, Wilmington Trust
Company has not participated in the preparation of, and is not responsible for,
any other information contained in this prospectus.”


 


(c)           With respect to the indemnification provided in Section 11.16(a),
in no event will WTC be liable for special, indirect or consequential damages
relating to such indemnification.  In
case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant thereto, such person (the “indemnified party”) shall promptly notify
WTC in writing.  In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the reasonable fees and expenses of
such counsel shall be at the expense of such indemnified party.  WTC may, at its option, at any time upon
written notice to the indemnified party, assume the defense of any proceeding
relating to such indemnity and may designate counsel reasonably satisfactory to
the indemnified party in connection therewith provided that the counsel so
designated would have no actual or potential conflict of interest in connection
with such representation.  Unless it shall assume the defense of any
proceeding WTC shall not be liable for any settlement of any proceeding
effected without its written consent.  If WTC assumes the defense of any
proceeding, it shall be entitled to settle such proceeding with the consent of
the indemnified party or, if such settlement provides for release of the
indemnified party in connection with all matters relating to the proceeding
which have been asserted against the indemnified party in such proceeding by
the other parties to such settlement, without the consent of the indemnified
party.


 


(d)           Depositor agrees to pay, and to
protect, indemnify and save harmless WTC, and its respective officers,
directors, shareholders, employees, agents and each person, if any, who
controls WTC, within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, from and against, any and all
claims, losses, liabilities (including penalties), actions, suits, judgments,
demands, damages, costs or expenses (including reasonable fees and expenses of
attorneys or, as necessary, consultants and auditors and reasonable costs of
investigations) (collectively, “WTC Losses”) of any nature to the extent such
WTC Losses result from any untrue statement of a material fact contained under
the heading “Depositor” in the base prospectus contained in the Preliminary
Prospectus and the Prospectus, any omission to state under the heading “Depositor”
in the base prospectus contained in the Preliminary Prospectus and the
Prospectus a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstance under which they were
made, not misleading, or any untrue information with respect to Affiliation
Parties provided by the Depositor pursuant to the last paragraph of Section 11.14
(unless WTC has actual knowledge that such Affiliation Party information is
incorrect).


 


(e)           With respect to the indemnification provided in Section 11.16(d),
in no event will Depositor be liable for special, indirect or consequential
damages relating to such indemnification. 
In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant thereto, such person (the “indemnified party”) shall promptly notify
Depositor


 


30

















 


in
writing.  In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the reasonable fees and expenses of such
counsel shall be at the expense of such indemnified party.  Depositor may, at its option, at any time
upon written notice to the indemnified party, assume the defense of any
proceeding relating to such indemnity and may designate counsel reasonably satisfactory
to the indemnified party in connection therewith provided that the counsel so
designated would have no actual or potential conflict of interest in connection
with such representation.  Unless it shall assume the defense of any
proceeding Depositor shall not be liable for any settlement of any proceeding
effected without its written consent.  If Depositor assumes the defense of
any proceeding, it shall be entitled to settle such proceeding with the consent
of the indemnified party or, if such settlement provides for release of the
indemnified party in connection with all matters relating to the proceeding
which have been asserted against the indemnified party in such proceeding by
the other parties to such settlement, without the consent of the indemnified
party.


 


SECTION 11.17     Paying Agent Protection.  The Paying Agent shall be entitled to all the
same rights, protections, immunities and indemnities as the Indenture Trustee
under the Indenture as if specifically set forth herein.


 


*  
*   *   *   *


 


31
















 


IN WITNESS WHEREOF, the
parties hereto have caused this Trust Agreement to be duly executed by their
respective officers hereunto duly authorized as of the day and year first above
written.


 


	
   

  	
  Wilmington Trust Company, in
  its individual capacity and as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Erik E. Overcash

  
	
   

  	
   

  	
  Name: 

  	
  Erik E. Overcash

  
	
   

  	
   

  	
  Title:  

  	
  Assistant Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CNH Capital Receivables LLC as Depositor

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Thomas N. Beckmann

  
	
   

  	
   

  	
  Name: 

  	
  Thomas N. Beckmann

  
	
   

  	
   

  	
  Title:  

  	
  Assistant Treasurer

  



 

















 


ACKNOWLEDGED
AND ACCEPTED:


 


The
Bank of New York Mellon Trust Company, N.A.,


As
Indenture Trustee and as Paying Agent,


 


 


	
  By:
  

  	
  /s/
  David H. Hill

  	
   

  
	
   

  	
  Name:
  

  	
  David
  H. Hill

  	
   

  
	
   

  	
  Title:
  

  	
  Assistant
  Vice President

  	
   

  



 

















 


EXHIBIT A


 


FORM OF TRUST
CERTIFICATE


 


REGISTERED


 


	
  NUMBER
  R- [    ]

  	
   

  	
   

  	
   

  	
  100% Beneficial Interest

  



 


THIS CERTIFICATE MAY NOT BE
ACQUIRED BY OR FOR THE ACCOUNT OF A BENEFIT
PLAN (AS DEFINED BELOW).


 


CNH
EQUIPMENT TRUST 2009-B


 


TRUST
CERTIFICATE


 


evidencing a fractional
undivided beneficial interest in the Trust (as defined below), the property of
which includes a pool of retail installment sale contracts and retail
installment loans secured by new and used agricultural, construction and/or
other equipment and sold to the Trust by CNH Capital Receivables LLC.


 


(This Trust Certificate does
not represent an interest in or obligation of CNH Capital Receivables LLC, CNH
Capital America LLC, New Holland Credit Company, LLC, CNH Global N.V. or CNH
America LLC, or any of their respective affiliates, except to the extent
described below.)


 


THIS CERTIFIES THAT CNH
CAPITAL RECEIVABLES LLC is the registered owner of a nonassessable, fully-paid,
fractional undivided interest in CNH Equipment Trust 2009-B (the “Trust”) formed by CNH Capital Receivables
LLC, a Delaware limited liability company (the “Depositor”).


 


The Trust was created
pursuant to a Trust Agreement dated as of April 1, 2009 (the “Trust Agreement”)
between the Depositor and Wilmington Trust Company, 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 April 1, 2009 among the
Trust, the Depositor and New Holland Credit Company, LLC, as servicer (the “Servicer”), as applicable.  This Trust Certificate is one of the duly
authorized Trust Certificates (herein called the “Trust Certificates”) issued under and 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.  The provisions
and conditions of the Trust Agreement are hereby incorporated by reference as
though set forth in their entirety herein.


 


Issued under the Indenture
dated as of April 1, 2009 between the Trust and The Bank Of New York
Mellon Trust Company, N.A., 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”.  The 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.


 


A-1

















 


It is the intent of the
Depositor, Servicer and the holder of this Trust Certificate 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 a Person other than the Depositor, the Trust be disregarded as an
entity separate from the Depositor.  At
such time that the Trust Certificates are held by more than one person, it is
the intent of the Depositor, 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 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 holder of this Trust Certificate, by acceptance of
this Trust Certificate, agree to treat, and to take no action inconsistent with
the treatment of, the Trust Certificates as such for tax purposes.


 


The Certificateholder, by
its acceptance of this Trust Certificate, covenants and agrees that such
Certificateholder will not at any time institute against the Depositor or the
Trust, or join in any institution against the Depositor or the Trust, 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 this Trust
Certificate, the Notes, the Trust Agreement or any of the Basic Documents.


 


The Certificateholder, by
its acceptance of this Trust Certificate, represents and warrants in writing
that: (a) it is acquiring this Trust Certificate for its own account and
is the sole beneficial owner of such Trust Certificate; (b) the transfer
is not being effected on or through (x) an “established securities market”
within the meaning of Section 7704(a)(1) of the Code, including
without limitation, an over-the-counter market or an interdealer quotation
system that regularly disseminates firm buy or sell quotations or (y) a “secondary
market (or the substantial equivalent thereof)” within the meaning of Section 7704(a)(2) of
the Code and any proposed, temporary or final Treasury regulations thereunder;
and (c) such transfer will not cause the Trust to be classified as a
publicly traded partnership for U.S. federal income tax purposes, and such
purchaser or transferee will not take any action, including any subsequent
disposition of such Trust Certificate (or any beneficial interest therein),
that would cause the Trust to be treated as a publicly traded partnership for
U.S. federal income tax purposes.


 


This Trust Certificate may
not be acquired by or for the account of: (i) an employee benefit plan (as
defined in Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”)), that is subject to the provisions of Title
I 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 of any of the foregoing (a “Benefit Plan”). By accepting and holding
this Certificate, the Certificateholder shall be deemed to have represented and
warranted that it is not a Benefit Plan.


 


This Trust Certificate does
not represent an obligation of, or an interest in, the Depositor, the Servicer,
CNH Capital America LLC, New Holland Credit Company, LLC, CNH America LLC, CNH
Global N.V., the Trustee or any affiliates of any of them and no recourse may
be had against such parties or their assets, except as may be expressly set
forth or contemplated herein or in the Trust Agreement or the Basic Documents.


 


A-2

















 


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, the Sale and Servicing
Agreement or any of the Basic Documents 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

















 


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 2009-B,

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  Wilmington Trust Company, not
  in its individual capacity, but solely as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 


A-4

















 


TRUSTEE’S
CERTIFICATE OF AUTHENTICATION


 


This is one of the Trust
Certificates referred to in the within-mentioned Trust Agreement.


 


	
   

  	
  Wilmington Trust Company, as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Date:  [       ],
  2009

  	
   

  



 


A-5

















 


ASSIGNMENT


 


FOR VALUE RECEIVED the
undersigned hereby sells, assigns and transfers unto


 


PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


 


____________________________________________________________________________________________________________


(Please
print or type name and address, including postal zip code, of assignee) the
within Trust Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing Attorney to transfer said Trust Certificate on the
books of the Certificate Registrar, with full power of substitution in the
premises.


 


	
  Dated:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature
  Guaranteed:

  	
   

  



 


*NOTICE: The signature to
this assignment must correspond with the name as it appears upon the face of
the within Trust Certificate in every particular, without alteration,
enlargement or any change whatever. Such signature must be guaranteed by a
member firm of the New York Stock Exchange or a commercial bank or trust
company.


 


A-6

















 


EXHIBIT B

to the Trust Agreement


 


CERTIFICATE
OF TRUST


 


OF


 


CNH
EQUIPMENT TRUST 2009-B


 


THIS CERTIFICATE OF TRUST of
CNH EQUIPMENT TRUST 2009-B (the “Trust”),
is being duly executed and filed by Wilmington Trust Company, a Delaware
banking corporation, as trustee, to form a statutory trust under the Delaware
Statutory Trust Act (12 Del. C.  §3801,
et seq. (the “Act”).


 


Name.  The name of the statutory trust being formed
hereby is CNH Equipment Trust 2009-B.


 


Delaware Trustee.  The name and business address of the trustee
of the Trust in the State of Delaware are Wilmington Trust Company, Rodney
Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001.  Attention: Corporate Trust Administration.


 


Effective Date.  This Certificate of Trust shall be effective
as of its filing.


 


B-1

















 


IN WITNESS WHEREOF, the
undersigned, being the trustee of the Trust, has executed this Certificate of
Trust in accordance with Section 3811(a)(1) of the Act.


 


	
   

  	
  Wilmington Trust Company, not
  in its individual capacity, but solely as Trustee under a Trust Agreement
  dated as of April 1, 2009

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


B-2