Exhibit 4.2


 




 





CNH EQUIPMENT TRUST 2009-C


 


TRUST AGREEMENT


 


between


 


CNH CAPITAL RECEIVABLES LLC


 


and


 


WILMINGTON TRUST COMPANY,


 


as Trustee


 


Dated as of October 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

  



 


i

















 


	
  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 October 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-C 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-C”, 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 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.


 

















 


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.


 
















 


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 


 

















 


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 


 

















 


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 


 

















 


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 


 

















 


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 


 

















 


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 


 

















 


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.


 

















 


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 


 

















 


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 


 

















 


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 


 

















 


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


 


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


 


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


 


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


 

















 


as may be necessary to discharge any Liens on any part of the Trust
Estate 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;


 
















 


(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.


 

















 


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.


 

















 


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.


 


(b)                                 In the exercise
or administration of the trusts hereunder and in the performance of its duties
and obligations under this Agreement or the Basic Documents, the Trustee: (i) may
act directly or through its agents or attorneys pursuant to agreements entered
into with any of them, and the Trustee shall not be liable for the conduct or
misconduct of such agents or attorneys if such agents or attorneys shall have
been selected by the Trustee with reasonable care, and (ii) may consult
with counsel, accountants and other skilled Persons to be selected with
reasonable care and employed by it.  The
Trustee shall not be liable for anything done, suffered or omitted in good
faith by it in accordance with the written opinion or advice of any such
counsel, accountants or other such Persons and which opinion or advice states
that such action is not contrary to this Agreement or any Basic Document.


 


SECTION 7.6                          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 


 

















 


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.


 

















 


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 


 

















 


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.


 

















 


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.


 

















 


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


 


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


 


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


 


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


 


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


 


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


 

















 


Any notice, request or other
writing given to the Trustee shall be deemed to have been given to each of the
then separate trustees and co-trustees, as effectively as if given to each of
them. Every instrument appointing any separate trustee or co-trustee shall
refer to this Agreement and the conditions of this Article. Each separate
trustee and co-trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument of appointment,
either jointly with the Trustee or separately, as may be provided therein,
subject to all the provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting the liability
of, or affording protection to, the Trustee. Each such instrument shall be
filed with the Trustee and a copy thereof given to the Administrator.


 


Any separate trustee or
co-trustee may at any time appoint the Trustee as its agent or attorney-in-fact
with full power and authority, to the extent not prohibited by law, to do any lawful
act under or in respect of this Agreement on its behalf and in its name.  If any separate trustee or co-trustee shall
die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.


 


The Trustee shall have no
obligation to determine whether a co-trustee or separate trustee is legally
required in any jurisdiction in which any part of the Trust Estate may be
located.


 


ARTICLE
XI


Miscellaneous


 


SECTION 11.1                    Supplements
and Amendments.  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: 


 

















 


(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.


 
















 


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.


 

















 


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.


 

















 


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 


 

















 


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.


 

















 


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 


 

















 


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.


 


*   *   *  
*   *


 

















 


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/
  J. Christopher Murphy

  
	
   

  	
   

  	
  Name:

  	
  J.
  Christopher Murphy

  
	
   

  	
   

  	
  Title:

  	
  Financial
  Services Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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/
  Robert Castle

  	
   

  
	
   

  	
  Name:
  Robert Castle

  	
   

  
	
   

  	
  Title:
  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-C


 


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-C (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 October 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
[         ], 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 [         ],
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-C,

  
	
   

  	
   

  
	
   

  	
  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-C


 


THIS
CERTIFICATE OF TRUST of CNH EQUIPMENT TRUST 2009-C (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-C.


 


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 [         ],
  2009

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


B-2