Exhibit 4.2


 


Execution Version


 


CNH EQUIPMENT TRUST 2007-C


 


TRUST AGREEMENT


 


between


 


CNH CAPITAL RECEIVABLES LLC


 


and


 


WILMINGTON TRUST COMPANY,


 


as Trustee


 


Dated as of November 1, 2007


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I Definitions

  	
  1

  
	
   

  	
   

  
	
  SECTION 1.1

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE II Organization

  	
  2

  
	
   

  	
   

  
	
  SECTION 2.1

  	
  Name

  	
  2

  
	
  SECTION 2.2

  	
  Office

  	
  2

  
	
  SECTION 2.3

  	
  Purposes and Powers

  	
  2

  
	
  SECTION 2.4

  	
  Appointment of Trustee

  	
  3

  
	
  SECTION 2.5

  	
  Initial Capital Contribution of
  Trust Estate

  	
  3

  
	
  SECTION 2.6

  	
  Declaration of Trust

  	
  3

  
	
  SECTION 2.7

  	
  Liability of the
  Certificateholders

  	
  3

  
	
  SECTION 2.8

  	
  Title to Trust Property

  	
  3

  
	
  SECTION 2.9

  	
  Situs of Trust

  	
  4

  
	
  SECTION 2.10

  	
  Representations and Warranties
  of the Depositor

  	
  4

  
	
  SECTION 2.11

  	
  Federal Income Tax Allocations;
  Tax Treatment

  	
  5

  
	
   

  	
   

  	
   

  
	
  ARTICLE III Trust Certificates and Transfer
  of Interests

  	
  5

  
	
   

  	
   

  	
   

  
	
  SECTION 3.1

  	
  Initial Ownership

  	
  5

  
	
  SECTION 3.2

  	
  The Trust Certificates

  	
  5

  
	
  SECTION 3.3

  	
  Authentication of Trust
  Certificates

  	
  5

  
	
  SECTION 3.4

  	
  Registration of Transfer and
  Exchange of Trust Certificates

  	
  5

  
	
  SECTION 3.5

  	
  Mutilated, Destroyed, Lost or
  Stolen Trust Certificates

  	
  7

  
	
  SECTION 3.6

  	
  Persons Deemed
  Certificateholders

  	
  8

  
	
  SECTION 3.7

  	
  Access to List of
  Certificateholders’ Names and Addresses

  	
  8

  
	
  SECTION 3.8

  	
  Maintenance of Office or Agency

  	
  8

  
	
  SECTION 3.9

  	
  Appointment of Paying Agent

  	
  8

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV Actions by Trustee

  	
  9

  
	
   

  	
   

  	
   

  
	
  SECTION 4.1

  	
  Prior Notice to
  Certificateholders With Respect to Certain Matters

  	
  9

  
	
  SECTION 4.2

  	
  Action By Certificateholders
  With Respect to Certain Matters

  	
  10

  
	
  SECTION 4.3

  	
  Action By Certificateholders
  With Respect to Bankruptcy

  	
  10

  
	
  SECTION 4.4

  	
  Restrictions on
  Certificateholders’ Power

  	
  10

  
	
  SECTION 4.5

  	
  Majority Control

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE V Application of Trust Funds;
  Certain Duties

  	
  10

  
	
   

  	
   

  
	
  SECTION 5.1

  	
  Establishment of Trust Account

  	
  10

  
	
  SECTION 5.2

  	
  Applications of Trust Funds

  	
  11

  
	
  SECTION 5.3

  	
  Method of Payment

  	
  12

  
	
  SECTION 5.4

  	
  No Segregation of Monies; No
  Interest

  	
  12

  
	
  SECTION 5.5

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

  	
  12

  



 


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  SECTION 5.6

  	
  Signature on Returns; Tax
  Matters Partner

  	
  13

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI Authority and Duties of Trustee

  	
  13

  
	
   

  	
   

  
	
  SECTION 6.1

  	
  General Authority

  	
  13

  
	
  SECTION 6.2

  	
  General Duties

  	
  13

  
	
  SECTION 6.3

  	
  Action upon Instruction.

  	
  13

  
	
  SECTION 6.4

  	
  No Duties Except as Specified in
  This Agreement or in Instructions

  	
  14

  
	
  SECTION 6.5

  	
  No Action Except Under Specified
  Documents or Instructions

  	
  15

  
	
  SECTION 6.6

  	
  Restrictions

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII Concerning the Trustee

  	
  15

  
	
   

  	
   

  
	
  SECTION 7.1

  	
  Acceptance of Trusts and Duties

  	
  15

  
	
  SECTION 7.2

  	
  Furnishing of Documents

  	
  16

  
	
  SECTION 7.3

  	
  Representations and Warranties

  	
  17

  
	
  SECTION 7.4

  	
  Information to be Provided by
  the Trustee

  	
  17

  
	
  SECTION 7.5

  	
  Reliance; Advice of Counsel

  	
  18

  
	
  SECTION 7.6

  	
  Not Acting in Individual Capacity

  	
  18

  
	
  SECTION 7.7

  	
  Trustee Not Liable For Trust
  Certificates or Receivables

  	
  18

  
	
  SECTION 7.8

  	
  Trustee May Not Own Notes

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII Compensation of Trustee

  	
  19

  
	
   

  	
   

  
	
  SECTION 8.1

  	
  Trustee’s Fees and Expenses

  	
  19

  
	
  SECTION 8.2

  	
  Indemnification

  	
  19

  
	
  SECTION 8.3

  	
  Payments to the Trustee

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX Termination of Trust Agreement

  	
  20

  
	
   

  	
   

  
	
  SECTION 9.1

  	
  Termination of Trust Agreement

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE X Successor Trustees and Additional Trustees 

  	
  21

  
	
   

  	
   

  
	
  SECTION 10.1

  	
  Eligibility Requirements for
  Trustee

  	
  21

  
	
  SECTION 10.2

  	
  Resignation or Removal of
  Trustee

  	
  21

  
	
  SECTION 10.3

  	
  Successor Trustee

  	
  22

  
	
  SECTION 10.4

  	
  Merger or Consolidation of
  Trustee

  	
  23

  
	
  SECTION 10.5

  	
  Appointment of Co-Trustee or
  Separate Trustee

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI Miscellaneous

  	
  24

  
	
   

  	
   

  
	
  SECTION 11.1

  	
  Supplements and Amendments

  	
  24

  
	
  SECTION 11.2

  	
  No Legal Title To Trust Estate
  in Certificateholders

  	
  26

  
	
  SECTION 11.3

  	
  Limitations on Rights of Others

  	
  26

  
	
  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

  	
  27

  
	
  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

  	
  28

  
	
  SECTION 11.15

  	
  Complete Information

  	
  29

  
	
  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 November 1, 2007 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 2007-C and The Bank of
New York 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 2007-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 fund the
Pre-Funding Account and to purchase the Receivables pursuant to the Sale and
Servicing Agreement;


 


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


 


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


 


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


 


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


 


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


 


2

















 


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


 


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


 


SECTION 2.6                          Declaration of Trust. The Trustee hereby declares
that it will hold the Trust Estate in trust upon and subject to the conditions
set forth herein for the use and benefit of the Certificateholders, subject to
the obligations of the Trust under the Basic Documents. It is the intention of
the parties hereto that the Trust constitute a statutory trust under the Trust
Statute and that this Agreement constitute the governing instrument of such
statutory trust. It is the intention of the parties hereto that, solely for
income and franchise tax purposes, until the Trust Certificates are held by a
Person other than the Depositor, the Trust be disregarded as an entity separate
from the Depositor and the Notes be treated as debt of the Depositor. At such
time that the Trust Certificates are held by more than one Person, it is the
intention of the parties hereto that, solely for income and franchise tax
purposes, the Trust be treated as a partnership, with the assets of the
partnership being the Receivables and other assets held by the Trust, the
partners of the partnership being the Certificateholders (including the
Depositor (or its successor in interest) in its capacity as recipient of
distributions from the Spread Account), and the Notes being debt of the
partnership. The parties agree that, unless otherwise required by appropriate
tax authorities, until the Trust Certificates are held by more than one Person
the Trust will not file or cause to be filed annual or other necessary returns,
reports and other forms consistent with the characterization of the Trust as an
entity separate from the Depositor (or other sole owner of the Trust
Certificates). Effective as of the date hereof, the Trustee shall have all
rights, powers and duties set forth herein and in the Trust Statute with
respect to accomplishing the purposes of the Trust. The Trustee shall file a
Certificate of Trust on behalf of the Trust with the Secretary of State
pursuant to Section 3810 of the Trust Statute.


 


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


 


SECTION 2.8                          Title to Trust Property. Subject to the Lien granted in
the Indenture, legal title to all the Trust Estate shall be vested at all times
in the Trust as a separate legal entity except where applicable law in any
jurisdiction requires title to any part of the Trust Estate to be vested in a
trustee or trustees, in which case title shall be deemed to be vested in the
Trustee, a co-trustee and/or a separate trustee, as the case may be.


 


3

















 


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


 


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


 


(a)                          The
Depositor is duly organized and validly existing as a limited liability company
in good standing under the laws of the State of Delaware, with power and
authority to own its properties and to conduct its business as such properties
are currently owned and such business is presently conducted.


 


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


 


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


 


(d)                         The
consummation of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof do not conflict with, result in any breach of
any of the terms and provisions of, or constitute (with or without notice or
lapse of time) a default under, the certificate of formation, limited liability
company agreement or by-laws of the Depositor, or any indenture, agreement or
other instrument to which the Depositor is a party or by which it is bound; or
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other instrument
(other than pursuant to the Basic Documents); or violate any law or, to the
best of the Depositor’s knowledge, any order, rule or regulation applicable to
the Depositor of any court or of any federal or State regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Depositor or its properties.


 


(e)                          The
Depositor has duly executed and delivered this Agreement, and this Agreement
constitutes a legal, valid and binding obligation of the Depositor, enforceable
in accordance with its terms, except as enforceability may be subject to or
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the


 


4

















 


enforcement of creditors’ rights generally
and by general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).


 


SECTION 2.11                    Federal Income Tax Allocations; Tax Treatment.
If the Trust Certificates and interests in the Spread Account are held by more
than one Person, this Agreement shall be amended to include such provisions as
are required or appropriate under Subchapter K of the Code in order for the
Trust to be treated as a partnership whose partners are the beneficial owners
of the Trust Certificates and the Depositor (or other holders of interests in
the Spread Account).


 


ARTICLE III

Trust Certificates and Transfer of Interests


 


SECTION 3.1                          Initial Ownership. Upon the
formation of the Trust by the contribution by the Depositor pursuant to Section 2.5, and until the issuance of the
Trust Certificates, the Depositor shall be the sole beneficiary of the Trust;
and upon the issuance of the Trust Certificates, the Depositor will no longer
be a beneficiary of the Trust, except to the extent that the Depositor is a
Certificateholder.


 


SECTION 3.2                          The Trust Certificates. The Trust
Certificates shall be substantially in the form of Exhibit A hereto and shall
be executed on behalf of the Trust by manual or facsimile signature of an
authorized officer of the Trustee. Trust Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall be,
when authenticated pursuant to Section 3.3,
validly issued, fully paid, non-assessable and entitled to the benefits of this
Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of such
Trust Certificates or did not hold such offices at the date of authentication
and delivery of such Trust Certificates.


 


SECTION 3.3                          Authentication of Trust Certificates.
Concurrently with the sale of the Receivables to the Trust pursuant to the Sale
and Servicing Agreement, the Trustee shall cause the Trust Certificate
evidencing the 100% beneficial interest in the Trust to be executed on behalf
of the Trust, authenticated and delivered to or upon the written order of the
Depositor, signed by its chairman of the board, its president, any vice
president, any secretary, any assistant secretary, any treasurer, or any
assistant treasurer, without further action by the Depositor. No Trust
Certificate shall entitle its holder to any benefit under this Agreement, or
shall be valid for any purpose, unless there shall appear on such Trust
Certificate a certificate of authentication substantially in the form set forth
in Exhibit A, executed by the Trustee by the manual signature of one of its
authorized signatories; such certificate of authentication shall constitute
conclusive evidence, and the only evidence, that such Trust Certificate shall
have been duly authenticated and delivered hereunder. All Trust Certificates
shall be dated the date of their authentication. No further Trust Certificates
shall be issued except pursuant to Section
3.4 or 3.5 hereunder.


 


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


 


5

















 


exchanges of
Trust Certificates. The Paying Agent shall be the  “Certificate
Registrar” for the purpose of registering Trust Certificates and the
transfers of Trust Certificates as herein provided. Upon any resignation of any
Certificate Registrar, the Depositor shall promptly appoint a successor or, if
it elects not to make such an appointment, assume the duties of the Certificate
Registrar. The initial Trust Certificate shall be registered in the name of “CNH Capital Receivables LLC” as the
initial registered owner thereof.


 


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


 


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


 


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


 


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


 


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


 


The Trust
Certificates and any beneficial interest in such Trust Certificates may not be
acquired by: (a) an employee benefit plan (as defined in Section 3(3) of ERISA)
that is subject to the provisions of Title I of ERISA, (b) a plan described in
Section 4975(e)(1) of the Code or (c) any entity whose underlying assets
include plan assets of any of the foregoing (each a “Benefit Plan”). By accepting and holding a Trust Certificate
or an interest therein, the Certificateholder


 


6

















 


thereof shall
be deemed to have represented and warranted that it is not a Benefit Plan. The
Trustee shall have no obligation to determine whether or not a
Certificateholder of a Trust Certificate is or is not a Benefit Plan.


 


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


 


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


 


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


 


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


 


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


 


SECTION 3.5                          Mutilated, Destroyed, Lost or Stolen Trust
Certificates. If:  (a) any
mutilated Trust Certificate shall be surrendered to the Certificate Registrar,
or if the Certificate Registrar shall receive evidence to its satisfaction of
the destruction, loss or theft of any Trust Certificate (provided, that the
Trustee shall not be required to verify the evidence provided to it), and (b)
there shall be delivered to the Certificate Registrar and the Trustee such
security or indemnity as may be required by them to hold each of them harmless,
then, in the absence of notice that such Trust Certificate shall have been
acquired by a bona fide purchaser, the Trustee on behalf of the Trust shall
execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Certificate, a replacement Trust
Certificate


 


7

















 


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


 


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


 


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


 


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


 


SECTION 3.7                          Access to List of Certificateholders’ Names and
Addresses. The Trustee shall furnish or cause to be furnished to
the Servicer and the Depositor, within 15 days after receipt by the Trustee of
a request therefor from the Servicer or the Depositor in writing, a list, in
such form as the Servicer or the Depositor may reasonably require, of the names
and addresses of the Certificateholders as of the most recent Record Date. If
three or more Certificateholders evidencing in the aggregate not less than 25%
of the beneficial interest in the Trust apply in writing to the Trustee, and
such application states that the applicants desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Trust Certificates and such application shall be accompanied by a copy of
the communication that such applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt of such application, afford
such applicants access during normal business hours to the current list of
Certificateholders. Each Certificateholder, by receiving and holding a Trust
Certificate, shall be deemed to have agreed not to hold any of the Depositor,
the Certificate Registrar or the Trustee accountable by reason of the
disclosure of its name and address, regardless of the source from which such
information was derived.


 


SECTION 3.8                          Maintenance of Office or Agency. The
Trustee shall maintain an office or offices or agency or agencies where Trust
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Trustee in respect of the Trust
Certificates and the Basic Documents may be served. The Trustee initially
designates its Corporate Trust Office as its principal corporate trust office
for such purposes. The Trustee shall give prompt written notice to the
Depositor and to the Certificateholders of any change in the location of the
Certificate Register or any such office or agency.


 


SECTION 3.9                          Appointment of Paying Agent. The
Paying Agent shall make distributions to Certificateholders from the
Certificate Distribution Account pursuant to Section


 


8

















 


5.2 and shall report the amounts of such
distributions to the Trustee. Any Paying Agent shall have the revocable power
to withdraw funds from the Certificate Distribution Account for the purpose of
making the distributions referred to above. The Trustee may revoke such power
and remove the Paying Agent if the Trustee determines in its sole discretion
that the Paying Agent shall have failed to perform its obligations under this
Agreement in any material respect. The Paying Agent shall initially be the
Indenture Trustee, and any co-paying agent chosen by and acceptable to the
Trustee. The Paying Agent shall be permitted to resign as Paying Agent upon 30
days’ written notice to the Trustee. In the event that the Indenture Trustee
shall not be the Paying Agent, the Trustee shall appoint a successor to act as
Paying Agent (which shall be a bank or trust company). The Trustee shall cause
such successor Paying Agent or any additional Paying Agent appointed by the
Trustee to execute and deliver to the Trustee an instrument in which such
successor Paying Agent or additional Paying Agent (other than the Indenture
Trustee or the Trustee as Paying Agent) shall agree with the Trustee that as
Paying Agent, such successor Paying Agent or additional Paying Agent will hold
all sums, if any, held by it for payment to the Certificateholders in trust for
the benefit of the Certificateholders entitled thereto until such sums shall be
paid to such Certificateholders. The Paying Agent shall return all unclaimed
funds to the Trustee and upon removal of a Paying Agent such Paying Agent shall
also return all funds in its possession to the Trustee. The provisions of Sections 7.1, 7.3, 7.4 and 8.1 shall apply to the Indenture Trustee
or Trustee to the extent the Indenture Trustee or Trustee is a Paying Agent,
for so long as the Indenture Trustee or Trustee, as applicable, shall act as
Paying Agent and, to the extent applicable, to any other paying agent appointed
hereunder. Any reference in this Agreement to the Paying Agent shall include
any co-paying agent unless the context requires otherwise.


 


ARTICLE IV

Actions by Trustee


 


SECTION 4.1                          Prior Notice to Certificateholders With Respect to
Certain Matters. With respect to the following matters, the
Trustee shall not take action unless, at least 30 days before the taking of
such action (or such shorter period as shall be agreed to in writing by all
Certificateholders), the Trustee shall have notified the Certificateholders in
writing of the proposed action and the Certificateholders shall not have
notified the Trustee in writing prior to the 30th day (or such agreed upon
shorter period) after such notice is given that such Certificateholders have
withheld consent or shall not have provided alternative direction:


 


(a)                          the
initiation of any claim or lawsuit by the Trust (except claims or lawsuits
brought in connection with the collection of the Receivables) and the
compromise of any action, claim or lawsuit brought by or against the Trust
(except with respect to the aforementioned claims or lawsuits for collection of
Receivables);


 


(b)                         the
amendment of the Indenture in circumstances where the consent of any Noteholder
is not required and such amendment materially adversely affects the interest of
the Certificateholders;


 


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


 


9

















 


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


 


(d)                         the
appointment pursuant to the Indenture of a successor Note Registrar, Paying
Agent or Indenture Trustee, or pursuant to this Agreement of a successor
Certificate Registrar (other than the Trustee), or the consent to the
assignment by the Note Registrar, Paying Agent or Indenture Trustee or
Certificate Registrar (other than to the Trustee) of its obligations under the
Indenture or this Agreement, as applicable.


 


SECTION 4.2                          Action By Certificateholders With Respect to
Certain Matters. The Trustee shall not have the power, except
upon the direction of the Certificateholders, to: (a) remove the
Administrator under the Administration Agreement, (b) appoint a successor
Administrator, (c) remove the Servicer under the Sale and Servicing
Agreement; or (d) except as expressly provided in the Basic Documents,
sell the Receivables after the termination of the Indenture. The Trustee shall
take the actions referred to in the preceding sentence only upon written
instructions signed by the Certificateholders.


 


SECTION 4.3                          Action By Certificateholders With Respect to
Bankruptcy. The Trustee shall not have the power to commence a
voluntary proceeding in bankruptcy relating to the Trust (i) until one year and
one day after the Outstanding Amount of all the Notes has been reduced to zero
and (ii) without the unanimous prior approval of all Certificateholders and
(iii) without the delivery to the Trustee by each such Certificateholder of a
certificate certifying that such Certificateholder reasonably believes that the
Trust is insolvent.


 


SECTION 4.4                          Restrictions on Certificateholders’ Power.
The Certificateholders shall not direct the Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any
obligation of the Trust or the Trustee under this Agreement or any of the Basic
Documents or would be contrary to Section
2.3, nor shall the Trustee be obligated to follow any such
direction, if given.


 


SECTION 4.5                          Majority Control. Except as
expressly provided herein, any action that may be taken by the
Certificateholders under this Agreement may be taken by the Certificateholders
holding in the aggregate more than 50% of the beneficial interest in the Trust
at the time of such action. Except as expressly provided herein, any written
notice of the Certificateholders delivered pursuant to this Agreement shall be
effective if signed by Certificateholders holding in the aggregate more than
50% of the beneficial interest in the Trust at the time of such action.


 


ARTICLE V

Application of Trust Funds; Certain Duties


 


SECTION 5.1                          Establishment of Trust Account. The
Trustee or the Paying Agent on the Trust’s behalf, for the benefit of the
Certificateholders, shall establish and maintain in the name of the Trust an
Eligible Deposit Account (the “Certificate
Distribution Account”), bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the
Certificateholders.


 


10

















 


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 amounts
are still due to the Counterparties) or the Trustee (if the Notes and all
payments to the Counterparties 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


 


11

















 


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


 


12

















 


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


 


SECTION 5.6                          Signature on Returns; Tax Matters Partner.


 


(a)                          The
Depositor, or if any Trust Certificates are held by any Person other than the
Depositor, the Trustee shall sign on behalf of the Trust the tax returns of the
Trust, unless applicable law requires a Certificateholder to sign such
documents, in which case such documents shall be signed by such
Certificateholder.


 


(b)                         In the
event the Trust is characterized as a partnership, in accordance with Section
2.6, the Depositor shall be designated the “tax matters partner” of the Trust
pursuant to Section 6231(a)(7)(A) of the Code and applicable Treasury
Regulations.


 


ARTICLE VI

Authority and Duties of Trustee


 


SECTION 6.1                          General Authority. The Trustee is
authorized and directed to execute and deliver the Basic Documents to which the
Trust is to be a party and each certificate or other document attached as an
exhibit to or contemplated by the Basic Documents to which the Trust is to be a
party, in each case in such form as the Depositor shall approve as evidenced
conclusively by the Trustee’s execution thereof, and, on behalf of the Trust,
to direct the Indenture Trustee to authenticate and deliver the Notes in the
aggregate principal amount specified in a letter of instruction from the
Depositor to the Trustee. In addition to the foregoing, the Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Basic Documents. The Trustee is further authorized from
time to time to take such action as the Administrator recommends with respect
to the Basic Documents.


 


SECTION 6.2                          General Duties. It shall be the duty
of the Trustee to discharge (or cause to be discharged) all of its
responsibilities pursuant to this Agreement and the Basic Documents to which
the Trust is a party and to administer the Trust in the interest of the
Certificateholders, subject to the Basic Documents and in accordance with this
Agreement. Notwithstanding the foregoing, the Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the Basic
Documents to the extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Trustee hereunder
or under any Basic Document, and the Trustee shall not be held liable for the
default or failure of the Administrator to carry out its obligations under the
Administration Agreement.


 


SECTION 6.3                          Action upon Instruction.


 


(a)                          Subject
to Article IV and in
accordance with the Basic Documents, the Certificateholders may by written
instruction direct the Trustee in the management of the Trust. Such direction
may be exercised at any time by written instruction of the Certificateholders
pursuant to Article IV.


 


(b)                         The
Trustee shall not be required to take any action hereunder or under any Basic
Document if the Trustee shall have reasonably determined, or shall have been


 


13

















 


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


 


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


 


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


 


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


 


14

















 


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


 


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


 


SECTION 6.5                          No Action Except Under Specified Documents or
Instructions. The
Trustee shall not manage, control, use, sell, dispose of or otherwise deal with
any part of the Trust Estate except: (i) in accordance with the powers granted
to and the authority conferred upon the Trustee pursuant to this Agreement,
(ii) in accordance with the Basic Documents and (iii) in accordance with any
document or instruction delivered to the Trustee pursuant to Section 6.3.


 


SECTION 6.6                          Restrictions. The Trustee shall not
take any action (a) that is inconsistent with the purposes of the Trust set
forth in Section 2.3 or (b) that,
to the actual knowledge of the Trustee, would result in the Trust’s becoming
taxable as a corporation for federal income tax purposes. The Certificateholders
shall not direct the Trustee to take action that would violate this Section.


 


ARTICLE VII

Concerning the Trustee


 


SECTION 7.1                          Acceptance of Trusts and Duties. The
Trustee accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts but only upon the terms of this Agreement. The
Trustee also agrees to disburse all monies actually received by it constituting
part of the Trust Estate upon the terms of the Basic Documents and this
Agreement. The Trustee shall not be answerable or accountable hereunder or
under any Basic Document under any circumstances, except: (i) for its own
willful misconduct or negligence or (ii) in the case of the inaccuracy of any
representation or warranty contained in Section
7.3 expressly made by the Trustee. In particular, but not by way of
limitation (and subject to the exceptions set forth in the preceding sentence):


 


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


 


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


 


15
















(c)                          no
provision of this Agreement or any Basic Document shall require the Trustee to
expend or risk funds or otherwise incur any financial liability in the
performance of any of its rights or powers hereunder or under any Basic
Document, if the Trustee shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured or provided to it;


 


(d)                         under no
circumstances shall the Trustee be liable for indebtedness evidenced by or
arising under any of the Basic Documents, including the principal of and
interest on the Notes;


 


(e)                          the
Trustee shall not be responsible for or in respect of the validity or
sufficiency of this Agreement or for the due execution hereof by the Depositor or
for the form, character, genuineness, sufficiency, value or validity of any of
the Trust Estate or for or in respect of the validity or sufficiency of the
Basic Documents, other than the certificate of authentication on the Trust
Certificates, and the Trustee shall in no event assume or incur any liability,
duty or obligation to any Noteholder or to any Certificateholder, other than as
expressly provided for herein and in the Basic Documents;


 


(f)                            the
Trustee shall not be liable for the default or misconduct of the Administrator,
the Depositor, the Indenture Trustee or the Servicer under any of the Basic
Documents or otherwise and the Trustee shall have no obligation or liability to
perform the obligations of the Trust under this Agreement or the Basic Documents
that are required to be performed by the Administrator under the Administration
Agreement, the Indenture Trustee under the Indenture or the Servicer under the
Sale and Servicing Agreement; and


 


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


 


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


 


16

















 


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


 


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


 


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


 


(c)                          the
execution and delivery of this Agreement, the consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under, the
certificate of incorporation or by-laws of the Trustee, or to the best of its
knowledge without independent investigation any indenture, agreement or other
instrument to which the Trustee is a party or by which it is bound; or violate
any federal or State law governing the banking or trust powers of the Trustee;
or, to the best of the Trustee’s knowledge, violate any order, rule or
regulation applicable to the Trustee of any court or of any federal or State
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Trustee or its properties,


 


(d)                         this
Agreement, assuming due authorization, execution and delivery by the Depositor,
constitutes a valid, legal and binding obligation of the Trustee, enforceable
against it in accordance with the terms hereof subject to applicable
bankruptcy, insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors’ rights generally and to general principles of equity,
regardless of whether such enforcement is considered in a proceeding in equity
or at law, and


 


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


 


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


 


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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


 


18

















 


Receivable to the Trust or of
any intervening assignment, (e) the completeness of any Receivable, (f) the
performance or enforcement of any Receivable, and (g) the compliance by the
Depositor or the Servicer with any warranty or representation made under any
Basic Document or in any related document or the accuracy of any such warranty
or representation or any action of the Administrator, the Indenture Trustee or
the Servicer or any subservicer taken in the name of the Trustee.


 


SECTION 7.8                          Trustee May Not Own Notes. The
Trustee shall not, in its individual capacity, but may in a fiduciary capacity,
become the owner or pledgee of Notes or otherwise extend credit to the Issuing
Entity. The Trustee may otherwise deal with the Depositor, the Administrator,
the Indenture Trustee and the Servicer with the same rights as it would have if
it were not the Trustee.


 


ARTICLE VIII

Compensation of Trustee


 


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


 


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


 


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


 


ARTICLE IX

Termination of Trust Agreement


 


SECTION 9.1                          Termination of Trust Agreement. (a)
The Trust shall dissolve upon the final distribution by the Trustee of all
monies or other property or proceeds of the Trust Estate in accordance with the
Indenture, the Sale and Servicing Agreement and Article V. The bankruptcy, liquidation, dissolution, death
or incapacity of any Certificateholder shall not: (x) operate to dissolve
or terminate this Agreement or the Trust, (y) entitle such
Certificateholder’s legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of all
or any part of the Trust or Trust Estate or (z) otherwise affect the rights,
obligations and liabilities of the parties hereto.


 


(b)                         Except as
provided in Section 9.1(a), neither the Depositor nor any Certificateholder
shall be entitled to dissolve, revoke or terminate the Trust; provided  however,
for the sake of clarity, no action is necessary by the Depositor, the
Certificateholder or any other Person as a prerequisite for a dissolution under
Section 9.1(a) to occur.


 


(c)                          Notice
of any anticipated dissolution of the Trust, specifying the Payment Date upon
which the Certificateholders shall surrender their Trust Certificates to the
Paying Agent for payment of the final distribution and cancellation, shall be
given promptly by the Trustee by letter to Certificateholders mailed within
five Business Days of receipt of notice of such anticipated dissolution from
the Servicer given pursuant to Section
9.1(c) of the Sale and Servicing Agreement, and such notice from the
Trustee shall state: (i) the Payment Date upon which final payment of the Trust
Certificates shall be made upon presentation and surrender of the Trust
Certificates at the office of the Paying Agent therein designated, (ii) the
amount of any such final payment and (iii) that the Record Date otherwise
applicable to such Payment Date is not applicable, payments being made only
upon presentation and surrender of the Trust Certificates at the office of the
Paying Agent therein specified. The Trustee shall give such notice to the
Certificate Registrar (if other than the Trustee) and the Paying Agent at the
time such notice is given to Certificateholders. Upon presentation and
surrender of the Trust Certificates, the Paying Agent shall cause to be
distributed to Certificateholders amounts distributable on such Payment Date
pursuant to Section 5.2.


 


In the event
that all of the Certificateholders shall not surrender their Trust Certificates
for cancellation within six months after the date specified in the above
mentioned written notice, the Trustee shall give a second written notice to the
remaining Certificateholders to surrender their Trust Certificates for
cancellation and to receive the final distribution with respect thereto. If
within one year after the second notice all the Trust Certificates shall not
have


 


20

















 


been
surrendered for cancellation, the Trustee may take appropriate steps, or may
appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Trust Certificates, and the
cost thereof shall be paid out of the funds and other assets that shall remain
subject to this Agreement. Any funds remaining in the Trust after exhaustion of
such remedies shall be distributed by the Trustee to the Depositor.


 


(d)                         Upon the
dissolution of the Trust and the payment of all liabilities of the Trust in
accordance with applicable law, the Trustee shall cause the Certificate of
Trust to be canceled by filing a certificate of cancellation with the Secretary
of State in accordance with the provisions of Section 3810 (or successor
section) of the Trust Statute, at which time the Trust and this Agreement
(other than Article VIII) shall
terminate.


 


ARTICLE X

Successor Trustees and Additional Trustees


 


SECTION 10.1                    Eligibility Requirements for Trustee.
The Trustee shall at all times: 
(a) be a corporation satisfying the provisions of Section 26(a)(1)
of the Investment Company Act of 1940, as amended, (b) be authorized to
exercise corporate trust powers, (c) have a combined capital and surplus of at
least $50,000,000 and be subject to supervision or examination by federal or
State authorities, and (d) have (or have a parent that has) a rating of at
least “Baa3” by Moody’s. If such corporation shall publish reports of condition
at least annually, pursuant to law or the requirements of the aforesaid
supervising or examining authority, then for the purpose of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. At all times, at least one Trustee of the Trust shall
satisfy the requirements of Section 3807(a) of the Trust Statute. In case at
any time the Trustee shall cease to be eligible in accordance with this
Section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 10.2.


 


SECTION 10.2                    Resignation or Removal of Trustee.


 


(a)                          The
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Administrator. Upon receiving such
notice of resignation, the Administrator shall promptly appoint a successor Trustee
by written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor Trustee. Other
than such instrument, and as provided in Section 10.2(b) and 10.3 below, no
other documentation or action shall be required, and notwithstanding anything
to the contrary herein or in the Basic Documents, no consent shall be required
of any Person with respect to such appointment or entering into any such
agreement, and the amendment provisions hereof will not apply to such
instrument. If no successor Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition at the expense of the
Administrator any court of competent jurisdiction for the appointment of a
successor Trustee.


 


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


 


(b)                         Any
resignation or removal of the Trustee and appointment of a successor Trustee
pursuant to this Section shall not become effective until acceptance of
appointment by the successor Trustee pursuant to Section 10.3 and payment of all fees and expenses owed to
the outgoing Trustee. The Administrator shall provide notice of such
resignation or removal of the Trustee to each of the Rating Agencies and the
Counterparties.


 


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 Counterparties, 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.


 


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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 and the Counterparties.


 


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


 


23

















 


(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 and the Counterparties, 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


 


24

















 


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 and the Counterparties, 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 and the
Counterparties.


 


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.


 


With respect
to any amendment pursuant to this Section 11.1,
if any amendment or supplement would either: (a) materially and adversely
affect any of the Counterparties’ rights or obligations under an Interest Rate
Swap Agreement or any other Basic Document; or (b) materially and adversely
modify the obligations of, or materially and adversely impact the ability of,
the Trust to fully perform any of the Trust’s obligations under an Interest
Rate Swap Agreement, the Trust and the Indenture Trustee shall be required to
first obtain the written consent of the applicable Counterparties to the affected
Interest Rate Swap Agreements before entering into any such amendment or
supplement (which consent shall not be unreasonably withheld).


 


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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, the Counterparties 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, (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), and (iii) if to the Counterparties,
addressed to the addresses set forth in Section 11.4 of
the Indenture; 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.


 


26

















 


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, 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.


 


27

















 


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


 


28

















 


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,


 


29

















 


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


 


“Wilmington Trust Company is a Delaware banking corporation with trust
powers incorporated in 1903.  Wilmington Trust’s principal place of
business is located at 1100 North Market Street, Rodney Square North,
Wilmington, Delaware 19890. Wilmington Trust 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 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


 


30
















 


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.


 


*  
*   *   *   *


 


31

















 


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


 


	
   

  	
  Wilmington Trust Company,

  
	
   

  	
  in its individual capacity and

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dorri E. Wolhar

  	
   

  
	
   

  	
   

  	
  Name: Dorri E. Wolhar

  
	
   

  	
   

  	
  Title: Financial Services Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CNH Capital Receivables LLC

  
	
   

  	
  as Depositor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas N. Beckmann

  	
   

  
	
   

  	
   

  	
  Name: Thomas N. Beckmann

  
	
   

  	
   

  	
  Title: Assistant Treasurer

  



 


S-1

















 


ACKNOWLEDGED AND ACCEPTED:


 


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


As Indenture Trustee and as Paying Agent,


 


 


	
  By:

  	
  /s/ Keith Richardson

  	
   

  
	
   

  	
  Name: Keith Richardson

  
	
   

  	
  Title: Vice President

  



 


2

















 


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 2007-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 (including consumer 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 2007-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 November 1, 2007 (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
November 1, 2007 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 November 1, 2007 between the Trust and The Bank Of
New York Trust Company, N.A., as Indenture Trustee, are notes designated as “[    ]% Class A-1 Asset Backed Notes,” “[     ]% Class A-2a Asset Backed Notes,” “Floating
Rate Class A-2b Asset Backed Notes,” “[    
]% Class A-3a Asset Backed Notes,” “Floating Rate Class A-3b Asset
Backed Notes,” “[    ]% Class A-4a Asset
Backed Notes,” “Floating Rate Class A-4b 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


 


A-1

















 


are subordinated to the rights of the Noteholders as described in the
Sale and Servicing Agreement and the Indenture.


 


It is the
intent of the 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


 


A-2

















 


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.


 


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 2007-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:    November      ,
  2007

  	
   

  	
   

  



 


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 2007-C


 


THIS
CERTIFICATE OF TRUST of CNH EQUIPMENT TRUST 2007-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 2007-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 November 1, 2007

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
      Name:

  
	
   

  	
      Title:

  



 


B-2