Exhibit 4.2




 





 


 


CNH
EQUIPMENT TRUST 2004-A


 


 


TRUST
AGREEMENT


 


 


between


 


 


CNH CAPITAL
RECEIVABLES INC.


 


 


and


 


 


THE
BANK OF NEW YORK,


as Trustee


 


 


Dated as of
September 1, 2004




 


 





 
















 


	
  ARTICLE I

  	
   

  
	
  Definitions

  	
   

  
	
   

  	
   

  
	
  SECTION 1.1.

  	
  Definitions

  	
   

  
	
  SECTION 1.2.

  	
  Other
  Definitional Provisions

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  
	
  Organization

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.1.

  	
  Name

  	
   

  
	
  SECTION 2.2.

  	
  Office

  	
   

  
	
  SECTION 2.3.

  	
  Purposes
  and Powers

  	
   

  
	
  SECTION 2.4.

  	
  Appointment
  of Trustee

  	
   

  
	
  SECTION 2.5.

  	
  Initial
  Capital Contribution of Trust Estate

  	
   

  
	
  SECTION 2.6.

  	
  Declaration
  of Trust

  	
   

  
	
  SECTION 2.7.

  	
  Liability
  of the Certificateholders

  	
   

  
	
  SECTION 2.8.

  	
  Title to
  Trust Property

  	
   

  
	
  SECTION 2.9.

  	
  Situs of
  Trust

  	
   

  
	
  SECTION 2.10.

  	
  Representations
  and Warranties of the Depositor

  	
   

  
	
  SECTION 2.11.

  	
  Federal
  Income Tax Allocations; Tax Treatment

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  
	
  Trust
  Certificates and Transfer of Interests

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.1.

  	
  Initial
  Ownership

  	
   

  
	
  SECTION 3.2.

  	
  The
  Trust Certificates

  	
   

  
	
  SECTION 3.3.

  	
  Authentication
  of Trust Certificates

  	
   

  
	
  SECTION 3.4.

  	
  Registration
  of Transfer and Exchange of Trust Certificates

  	
   

  
	
  SECTION 3.5.

  	
  Mutilated,
  Destroyed, Lost or Stolen Trust Certificates

  	
   

  
	
  SECTION 3.6.

  	
  Persons
  Deemed Certificateholders

  	
   

  
	
  SECTION 3.7.

  	
  Access
  to List of Certificateholders’ Names and Addresses

  	
   

  
	
  SECTION 3.8.

  	
  Maintenance
  of Office or Agency

  	
   

  
	
  SECTION 3.9.

  	
  Appointment
  of Paying Agent

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  
	
  Actions by Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.1.

  	
  Prior Notice
  to Certificateholders with Respect to Certain Matters

  	
   

  
	
  SECTION 4.2.

  	
  Action
  by Certificateholders with Respect to Certain Matters

  	
   

  
	
  SECTION 4.3.

  	
  Action
  by Certificateholders with Respect to Bankruptcy

  	
   

  
	
  SECTION 4.4.

  	
  Restrictions
  on Certificateholders’ Power

  	
   

  
	
  SECTION 4.5.

  	
  Majority
  Control

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  
	
  Application
  of Trust Funds; Certain Duties

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.1.

  	
  Establishment
  of Trust Account

  	
   

  
	
  SECTION 5.2.

  	
  Applications
  of Trust Funds

  	
   

  
	
  SECTION 5.3.

  	
  Method
  of Payment

  	
   

  
	
  SECTION 5.4.

  	
  No
  Segregation of Moneys; No Interest

  	
   

  



 


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  SECTION 5.5.

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

  	
   

  
	
  SECTION 5.6.

  	
  Signature
  on Returns; Tax Matters Partner

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  
	
  Authority and Duties of
  Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.1.

  	
  General
  Authority

  	
   

  
	
  SECTION 6.2.

  	
  General
  Duties

  	
   

  
	
  SECTION 6.3.

  	
  Action
  upon Instruction

  	
   

  
	
  SECTION 6.4.

  	
  No
  Duties Except as Specified in this Agreement or in Instructions

  	
   

  
	
  SECTION 6.5.

  	
  No
  Action Except Under Specified Documents or Instructions

  	
   

  
	
  SECTION 6.6.

  	
  Restrictions

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  
	
  Concerning the Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7.1.

  	
  Acceptance
  of Trusts and Duties

  	
   

  
	
  SECTION 7.2.

  	
  Furnishing
  of Documents

  	
   

  
	
  SECTION 7.3.

  	
  Representations
  and Warranties

  	
   

  
	
  SECTION 7.4.

  	
  Reliance;
  Advice of Counsel

  	
   

  
	
  SECTION 7.5.

  	
  Not
  Acting in Individual Capacity

  	
   

  
	
  SECTION 7.6.

  	
  Trustee
  Not Liable for Trust Certificates or Receivables

  	
   

  
	
  SECTION 7.7.

  	
  Trustee
  May Not Own Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  
	
  Compensation of Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.1.

  	
  Trustee’s
  Fees and Expenses

  	
   

  
	
  SECTION 8.2.

  	
  Indemnification

  	
   

  
	
  SECTION 8.3.

  	
  Payments
  to the Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
   

  
	
  Termination of Trust
  Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9.1.

  	
  Termination
  of Trust Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
   

  
	
  Successor
  Trustees and Additional Trustees

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.1.

  	
  Eligibility
  Requirements for Trustee

  	
   

  
	
  SECTION 10.2.

  	
  Resignation
  or Removal of Trustee

  	
   

  
	
  SECTION 10.3.

  	
  Successor
  Trustee

  	
   

  
	
  SECTION 10.4.

  	
  Merger
  or Consolidation of Trustee

  	
   

  
	
  SECTION 10.5.

  	
  Appointment
  of Co-Trustee or Separate Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
   

  
	
  Miscellaneous

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.1.

  	
  Supplements
  and Amendments

  	
   

  
	
  SECTION 11.2.

  	
  No
  Legal Title to Trust Estate in Certificateholders

  	
   

  



 


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  SECTION 11.3.

  	
  Limitations
  on Rights of Others

  	
   

  
	
  SECTION 11.4.

  	
  Notices

  	
   

  
	
  SECTION 11.5.

  	
  Severability

  	
   

  
	
  SECTION 11.6.

  	
  Separate
  Counterparts

  	
   

  
	
  SECTION 11.7.

  	
  Successors
  and Assigns

  	
   

  
	
  SECTION 11.8.

  	
  Covenants
  of the Depositor

  	
   

  
	
  SECTION 11.9.

  	
  No
  Petition

  	
   

  
	
  SECTION 11.10.

  	
  No
  Recourse

  	
   

  
	
  SECTION 11.11.

  	
  Headings

  	
   

  
	
  SECTION 11.12.

  	
  Governing
  Law

  	
   

  
	
  SECTION 11.13.

  	
  Administrator

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
  EXHIBIT A

  	
  Form of Trust Certificate

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT B

  	
  Form of Certificate of Trust

  	
   

  



 


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TRUST AGREEMENT (as amended or supplemented from time to
time, this “Agreement”) dated as of September 1, 2004 between CNH CAPITAL RECEIVABLES
INC., a Delaware corporation, as Depositor, and THE BANK OF NEW YORK, a New
York banking corporation, as Trustee.


 


ARTICLE I

Definitions


 


SECTION 1.1.
Definitions.  Capitalized terms used herein and not
otherwise defined herein are defined in Appendix A to the Indenture dated as of
the date hereof between CNH Equipment Trust 2004-A and JPMorgan Chase Bank.


 


SECTION 1.2.
Other Definitional Provisions.  (a) 
All terms defined in this Agreement shall have the defined meanings when
used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.


 


(a) 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.


 


(b) 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”.


 
















 


(c) The definitions contained in this
Agreement are applicable to the singular as well as the plural forms of such
terms and to the masculine as well as to the feminine and neuter genders of
such terms.


 


ARTICLE II

Organization


 


SECTION 2.1.
Name.  The Trust created hereby shall be known as
“CNH Equipment Trust 2004-A”, in which name the Trustee may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued.


 


SECTION 2.2.
Office.  The office of the Trust shall be in care of
the Trustee at the Corporate Trust Office or at such other address in Delaware
as the Trustee may designate by written notice to the Certificateholders and
the Depositor.


 


SECTION 2.3.
Purposes and Powers.  The purpose of the Trust is, and the Trust
shall have the power and authority to, engage in the following activities:


 


(a) to issue the Notes pursuant to the
Indenture and the Trust Certificates pursuant to this Agreement and to sell the
Notes and the Trust Certificates in one or more transactions;


 


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


 


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


 


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


 


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


 


2
















 


(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”, including
any interpretations thereof or any successor standard issued by the Financial
Accounting Standards Board.


 


SECTION 2.4.
Appointment of Trustee.  The Depositor hereby appoints the Trustee as
trustee of the Trust effective as of the date hereof, to have all the rights,
powers and duties set forth herein. 
Pursuant to a Co-Trustee Agreement dated as of the date hereof (the “Co-Trustee Agreement”), the Depositor
shall appoint The Bank of New York (Delaware) to serve as the trustee (the “Delaware Trustee”) of the Trust in the
State of Delaware for the sole purpose of satisfying the requirement of
Section 3807 of the Trust Statute that the Trust have at least one trustee
with a principal place of business in Delaware. 
The Delaware Trustee shall have none of the rights, duties or
liabilities of the Trustee.  The rights,
duties and liabilities of the Delaware Trustee shall be limited to those
expressly set forth in the Co-Trustee Agreement.  To the extent that, at law or in equity, the
Delaware Trustee has rights, duties (including fiduciary duties) and
liabilities relating to the Trust or the Certificateholders, such rights, duties
and liabilities are replaced by the rights, duties and liabilities of the
Delaware Trustee expressly set forth in the Co-Trustee Agreement.


 


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


 


3
















 


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 and the Co-Trustee Agreement (as defined in Section 2.4)
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 Certificates are held by a Person other than the Depositor,
the Trust be disregarded as an entity separate from its Owner and the Notes be
treated as debt of the Depositor.  At
such time that the Certificates are held by more than one Person, it is the
intention of the parties hereto that, solely for income and franchise tax
purposes, the Trust 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 Certificates are held by a Person other than the
Depositor 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 its Owner.  Effective as of the date hereof, the Trustee
shall have all rights, powers and duties set forth herein and in the Trust
Statute with respect to accomplishing the purposes of the Trust.


 


SECTION 2.7.
Liability of the Certificateholders.  No Certificateholder shall have any personal
liability for any liability or obligation of the Trust.


 


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


 


SECTION 2.9.
Situs of Trust.  The Trust will be located and administered in
the State of New York. All bank accounts maintained by the Trustee on behalf of
the Trust shall be located in the State of Delaware or the State of New York.
The Trust shall not have any employees in any State other than New York; provided, however, that nothing herein
shall restrict or prohibit the Trustee from having employees within or without
the State of Delaware. Payments will be received by the Trust only in Delaware
or New York, and payments will be made by the Trust only from Delaware or New
York.


 


4
















 


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


 


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


 


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


 


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


 


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


 


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


 


5
















 


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
Certificates are held by more than one Person, interest payments on the Certificates
at the Pass-Through Rate (including interest on amounts previously due on the
Certificates but not yet distributed) shall be treated as “guaranteed payments”
under Section 707(c) of the Code. Net income of the Trust for any month as
determined for federal income tax purposes (and each item of income, gain, loss
and deduction entering into the computation thereof) shall be allocated:


 


(1) among the Certificateholders as of the
close of business on the last day of such month, in proportion to their
ownership of principal amount of Trust Certificates on such date, an amount of
net income up to the sum of: (i) the portion of the market discount on the
Receivables accrued during such month that is allocable to the excess, if any,
of the Initial Certificate Balance over their initial aggregate issue price,
and (ii) any other amounts of income payable to the Certificateholders for such
month; and such sum of amounts specified in clauses (i) and (ii) of this
sentence shall be reduced by any amortization by the Trust of premium on
Receivables that corresponds to any excess of the issue price of Trust
Certificates over their principal amount; and


 


(2) to the Depositor, and other holders of
interests in the Spread Account, to the extent of any remaining net income, in
accordance with their respective interests therein.


 


If the net income of the Trust for any month is insufficient for the
allocations described in clause (1),
subsequent net income shall first be allocated to make up such shortfall before
being allocated as provided in the preceding sentence. Net losses of the Trust,
if any, for any month as determined for federal income tax purposes (and each
item of income, gain, loss and deduction entering into the computation thereof)
shall be allocated to the Depositor (or other holders of interests in the
Spread Account) to the extent the Depositor (or such holders) are reasonably
expected to bear the economic burden of such net losses, and any remaining net
losses shall be allocated among the remaining Certificateholders as of the
close of business on the last day of such month in proportion to their
ownership of principal amount of Trust Certificates on such day. The Depositor
is authorized to modify the allocations in this paragraph if necessary or
appropriate, in its sole discretion, for the allocations to fairly reflect the
economic income, gain or loss to the Depositor (or other holders of interests
in the Spread Account) or to the Certificateholders, or as otherwise required
by the Code.


 


6
















 


Notwithstanding anything provided in this Section 2.11, if the
Certificates are held solely by the Depositor, the application of this Section 2.11
shall be disregarded.


 


ARTICLE III

Trust Certificates and Transfer of
Interests


 


SECTION 3.1.
Initial Ownership.  Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.5, and until the
issuance of the Trust Certificates, the Depositor shall be the sole beneficiary
of the Trust.


 


SECTION 3.2.
The Trust Certificates.  The Trust Certificates shall be issued in
denominations of $1,000 or in greater whole dollar denominations in excess
thereof and executed on behalf of the Trust by manual or facsimile signature of
an authorized officer of the Trustee. Trust Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall be,
when authenticated pursuant to Section 3.3, validly issued
and entitled to the benefits of this Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
authentication and delivery of such Trust Certificates or did not hold such
offices at the date of authentication and delivery of such Trust Certificates.


 


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


 


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SECTION 3.4.
Registration of Transfer and Exchange of
Trust Certificates.  The
Trust shall keep or cause to be kept, at the office or agency maintained
pursuant to Section 3.8,
a register (the “Certificate Register”) in which,
subject to such reasonable regulations as it may prescribe, the Issuer shall
provide for the registration of Trust Certificates and of transfers and
exchanges of Trust Certificates. The Paying Agent shall be the “Certificate Registrar” for the purpose
of registering Trust Certificates and the transfers of Trust Certificates as
herein provided. Upon any resignation of any Certificate Registrar, the
Depositor shall promptly appoint a successor or, if it elects not to make such
an appointment, assume the duties of the Certificate Registrar.


 


Upon surrender for registration of transfer of any Trust Certificate at
the office or agency maintained pursuant to Section 3.8, if the
requirements of Section 8-401(a) of the UCC are met, the Trustee shall
execute, authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Trust Certificates in authorized denominations of
a like aggregate principal amount.


 


At the option of a Holder, Trust Certificates may be exchanged for
other Trust Certificates of authorized denominations, of a like aggregate
principal amount, upon surrender of the Trust Certificates to be exchanged at
the office or agency maintained pursuant to Section 3.8. Whenever any
Trust Certificates are so surrendered for exchange, if the requirements of
Section 8-401(a) of the UCC are met, the Trustee shall execute,
authenticate and deliver the Trust Certificates that the Certificateholder
making the exchange is entitled to receive.


 


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


 


Every Trust Certificate presented or surrendered for registration of
transfer or exchange shall be duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by, the Holder thereof or his attorney duly authorized
in writing. No transfer of  a Trust
Certificate shall be registered unless the transferee shall have provided (i)
an opinion of counsel that no registration is required under the Securities Act
of 1933, as amended, or applicable State laws, and (ii) an Officer’s
Certificate as to compliance with Section 6.6 of the Sale and Servicing
Agreement.  Each Trust Certificate
surrendered for registration of transfer or exchange shall be canceled and
subsequently disposed of by the Trustee in accordance with its customary
practice.


 


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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 by reason of a plan’s
investment in the entity (each a “Benefit Plan”). By
accepting and holding a Trust Certificate or an interest therein, the Holder
thereof shall be deemed to have represented and warranted that it is not a
Benefit Plan. The Trustee shall have no obligation to determine whether or not
a Holder of a Trust Certificate is or is not a Benefit Plan.


 


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


 


9
















 


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, and provided that the requirements of Section 8-405
of the UCC are met, the Trustee on behalf of the Trust shall execute,
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Trust Certificate, a replacement Trust Certificate of
like tenor and denomination.


 


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


 


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


 


SECTION 3.6.
Persons Deemed Certificateholders.  Prior to due presentation of a Trust
Certificate for registration of transfer of any Trust Certificate, the Trustee
or the Certificate Registrar may treat the Person in whose name any Trust
Certificate shall be registered in the Certificate Register (as of the day of
determination) as the owner of such Trust Certificate for the purpose of
receiving distributions pursuant to Section 5.2 and for all
other purposes


 


10
















 


whatsoever, and neither the Trustee nor the Certificate Registrar shall
be bound by any notice to the contrary.


 


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


 


SECTION 3.8.
Maintenance of Office or Agency.  The Trustee shall maintain in the Borough of
Manhattan, City of  New York an office or
offices or agency or agencies where Trust Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon the
Trustee in respect of the Trust Certificates and the Basic Documents may be
served. The Trustee initially designates The Bank of New York, 101 Barclay
Street, Floor 8W, New York, New York 10286, Attention: Corporate Trust
Administration - Asset Backed Finance Unit, as its principal corporate trust
office for such purposes. The Trustee shall give prompt written notice to the
Depositor and to the Certificateholders of any change in the location of the
Certificate Register or any such office or agency.


 


SECTION 3.9.
Appointment of Paying Agent.  The Paying Agent shall make distributions to
Certificateholders from the Certificate Distribution Account pursuant to Section 5.2
and shall report the amounts of such distributions to the Trustee. Any Paying
Agent shall have the revocable power to withdraw funds from the Certificate
Distribution Account for the purpose of making the distributions referred to
above. The Trustee may revoke such power and remove the Paying Agent if the
Trustee determines in its sole discretion that the Paying Agent shall have failed
to perform its obligations under this Agreement in any


 


11
















 


material respect. The Paying Agent shall initially be the Trustee, and
any co-paying agent chosen by and acceptable to the Trustee. The Paying Agent
shall be permitted to resign as Paying Agent upon 30 days’ written notice to
the Trustee. In the event that the Trustee shall not be the Paying Agent, the
Trustee shall appoint a successor to act as Paying Agent (which shall be a bank
or trust company). The Trustee shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Trustee to execute and deliver to the
Trustee an instrument in which such successor Paying Agent or additional Paying
Agent shall agree with the Trustee that as Paying Agent, such successor Paying
Agent or additional Paying Agent will hold all sums, if any, held by it for
payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders. The Paying Agent shall return all unclaimed funds to the
Trustee and upon removal of a Paying Agent such Paying Agent shall also return
all funds in its possession to the Trustee. The provisions of Sections 7.1,
7.3, 7.4 and 8.1 shall
apply to the Trustee also in its role as Paying Agent, for so long as the
Trustee shall act as Paying Agent and, to the extent applicable, to any other
paying agent appointed hereunder. Any reference in this Agreement to the Paying
Agent shall include any co-paying agent unless the context requires otherwise.


 


ARTICLE IV

Actions by Trustee


 


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


 


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


 


(b) the election by the Trust to file an
amendment to the Certificate of Trust;


 


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(c) the amendment of the Indenture in
circumstances where the consent of any Noteholder is required;


 


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


 


(e) the amendment, change or modification of
the Administration Agreement, except to cure any ambiguity or to amend or
supplement any provision in a manner, or add any provision, that would not
materially adversely affect the interests of the Certificateholders; or


 


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


 


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


 


SECTION 4.3.
Action by Certificateholders with Respect
to Bankruptcy.  The
Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
Certificateholders and the delivery to the Trustee by each such
Certificateholder of a certificate certifying that such Certificateholder
reasonably believes that the Trust is insolvent.


 


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


 


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SECTION 4.5.
Majority Control.  Except as expressly provided herein, any
action that may be taken by the Certificateholders under this Agreement may be
taken by the Holders of Trust Certificates evidencing not less than a majority
of the Certificate Balance. Except as expressly provided herein, any written
notice of the Certificateholders delivered pursuant to this Agreement shall be
effective if signed by Holders of Trust Certificates evidencing not less than a
majority of the Certificate Balance at the time of the delivery of such notice.


 


ARTICLE V

Application of Trust Funds; Certain
Duties


 


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


 


The Trust shall possess all right, title and interest in all funds on
deposit from time to time in the Certificate Distribution Account and in all
proceeds thereof. Except as otherwise expressly provided herein, the
Certificate Distribution Account shall be under the sole dominion and control
of the Trustee for the benefit of the Certificateholders. If, at any time, the
Certificate Distribution Account ceases to be an Eligible Deposit Account, the
Trustee (or the Depositor on behalf of the Trustee, if the Certificate
Distribution Account is not then held by the Trustee or an affiliate thereof)
shall, within 10 Business Days (or such longer period, not to exceed 30
calendar days, as to which the Rating Agency Condition shall be satisfied),
establish a new Certificate Distribution Account as an Eligible Deposit Account
and shall transfer any cash and/or any investments to such new Certificate
Distribution Account.


 


SECTION 5.2.
Applications of Trust Funds.  (a)  On
each Payment Date, the Trustee will distribute to Certificateholders, on a pro
rata basis, amounts deposited in the Certificate Distribution Account pursuant
to Sections 5.5, 5.6 and 5.7 of the Sale and Servicing Agreement.


 


(b) On each Payment Date, the Trustee shall
send to each Certificateholder the statement provided to the Trustee by the
Servicer pursuant to Section 5.10 of the Sale and Servicing Agreement.


 


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(c) In the event that any withholding tax is
imposed on the Trust’s payment (or allocations of income) to a
Certificateholder, such tax shall reduce the amount otherwise distributable to
the Certificateholder in accordance with this Section. The Trustee is hereby
authorized and directed to retain from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any tax that is legally
owed by the Trust (but such authorization shall not prevent the Trustee from
contesting any such tax in appropriate proceedings, and withholding payment of
such tax, if permitted by law, pending the outcome of such proceedings). The
amount of any withholding tax imposed with respect to a Certificateholder shall
be treated as cash distributed to such Certificateholder at the time it is
withheld by the Trust. If there is a possibility that withholding tax is
payable with respect to a distribution (such as a distribution to a non-U.S.
Certificateholder), the Trustee may, in its sole discretion, withhold such
amounts in accordance with this paragraph (c).  Notwithstanding any other provision of this
Agreement, the Trust shall withhold and pay over to the Internal Revenue
Service, pursuant to Sections 1441, 1442 and 1446 of the Code (or any successor
provisions or any other provision as may be enacted into law), at such times as
required by such provisions, such amounts as the Trust is required to withhold
under such provision on account of any foreign Certificateholder’s distributive
share of income of the Trust, as if the entire amount of such foreign
Certificateholder’s distributive share of such income is subject to withholding
tax pursuant to such provisions.  To the
extent that a foreign Certificateholder claims to be entitled to a reduced rate
of, or exemption from, U.S. withholding tax pursuant to an applicable income
tax treaty, or otherwise, such foreign Certificateholder shall furnish the
Depositor and the Trustee with such information and forms as it may require and
are necessary to comply with the regulations governing the obligations of
withholding tax agents.  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 Trustee shall
reasonably cooperate with such Certificateholder in making such claim so long
as such Certificateholder agrees to reimburse the Trustee for any out-of-pocket
expenses incurred.


 


15
















 


SECTION 5.3.
Method of Payment.  Subject to Section 9.1(c),
distributions required to be made to Certificateholders on any Payment Date
shall be made to each Certificateholder of record on the preceding Record Date
either by wire transfer, in immediately available funds, to the account of such
Holder at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided to the Certificate Registrar
appropriate written instructions at least five Business Days prior to such
Payment Date and such Holder’s Trust Certificates aggregate not less than
$1,000,000, or, if not, by check mailed to such Certificateholder at the
address of such Holder appearing in the Certificate Register.


 


SECTION 5.4.
No Segregation of Moneys; No Interest.  Subject to Sections 5.1 and 5.2, moneys
received by the Trustee hereunder need not be segregated in any manner except
to the extent required by law or the Sale and Servicing Agreement and may be
deposited under such general conditions as may be prescribed by law, and the
Trustee shall not be liable for any interest thereon.


 


SECTION 5.5.
Accounting and Reports to the
Noteholders, Certificateholders, the Internal Revenue Service and Others.  The Depositor or, if any Certificates are
held by any Person other than the Depositor, the Trustee, shall: (a) maintain
(or cause to be maintained) the books of the Trust on a calendar year basis on
the accrual method of accounting, (b) deliver to each Certificateholder, as may
be required by the Code and applicable Treasury Regulations, such information
as may be required (including Schedule K-1) to enable each
Certificateholder to prepare its federal, State and local income tax returns,
(c) file such tax returns relating to the Trust (including a partnership
information return on Internal Revenue Service Form 1065 or its successor), and
make such elections as may from time to time be required or appropriate under
any applicable State or federal statute or rule or regulation thereunder so as
to maintain the Trust’s characterization as a partnership for federal income
tax purposes, (d) cause such tax returns to be signed in the manner required by
law and (e) collect or cause to be collected any withholding tax as described
in and in accordance with Section 5.2(c) with respect
to income or distributions to Certificateholders. The Trustee shall elect under
Section 1278 of the Code to include in income currently any market
discount that accrues with respect to the Receivables and shall elect under
Section 171 of the Code to amortize any bond premium with respect to the
Receivables. The Trustee shall not make the election provided under
Section 754 of the Code.


 


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SECTION 5.6.
Signature on Returns; Tax Matters Partner.


 


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


 


(b) The Depositor shall be designated the
“tax matters partner” of the Trust pursuant to Section 6231(a)(7)(A) of
the Code and applicable Treasury Regulations.


 


ARTICLE VI

Authority and Duties of Trustee


 


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


 


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


 


17
















 


SECTION 6.3.
Action upon Instruction.  (a) 
Subject to Article IV
and in accordance with the Basic Documents, the Certificateholders may by
written instruction direct the Trustee in the management of the Trust. Such
direction may be exercised at any time by written instruction of the
Certificateholders pursuant to Article IV.


 


(b) The Trustee shall not be required to take
any action hereunder or under any Basic Document if the Trustee shall have
reasonably determined, or shall have been advised by counsel, that such action
is likely to result in liability on the part of the Trustee or is contrary to
the terms hereof or of any Basic Document or is otherwise contrary to law.


 


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


 


(d) In the event that the Trustee is unsure
as to the application of any provision of this Agreement or any Basic Document
or any such provision is ambiguous as to its application, or is, or appears to
be, in conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Trustee or is silent or is
incomplete as to the course of action that the Trustee is required to take with
respect to a particular set of facts, the Trustee may give notice (in such form
as shall be appropriate under the circumstances) to the Certificateholders
requesting instruction and, to the extent that the Trustee acts or refrains
from acting in good faith in accordance with any such instruction received, the
Trustee shall not be liable, on account of such action or inaction, to any
Person. If the Trustee shall not have received appropriate instruction within
10 days of such notice (or within such shorter period of time as reasonably may
be specified in such notice or


 


18
















 


may be necessary under the circumstances) it may, but shall be under no
duty to, take or refrain from taking such action, not inconsistent with this
Agreement or the Basic Documents, as it shall deem to be in the best interests
of the Certificateholders, and shall have no liability to any Person for such
action or inaction.


 


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


 


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.


 


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ARTICLE VII

Concerning the Trustee


 


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


 


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


 


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


 


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


 


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


 


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


 


(f) the Trustee shall not be liable for the
default or misconduct of the Administrator, the Depositor, the Indenture
Trustee or the Servicer


 


20
















 


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


 


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


 


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


 


SECTION 7.3.
Representations and Warranties.  The Trustee hereby represents and warrants to
the Depositor, for the benefit of the Certificateholders, that:


 


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


 


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


 


(c) the execution and delivery of this
Agreement, the consummation of the transactions contemplated by this Agreement
and the fulfillment of the terms hereof do not conflict with, result in any
breach of


 


21
















 


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, and


 


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


 


SECTION 7.4.
Reliance; Advice of Counsel.  (a) 
Except to the extent otherwise provided in Section 7.1, the Trustee
shall incur no liability to anyone in acting upon any signature, instrument,
notice, resolution, request, consent, order, certificate, report, opinion, bond
or other document or paper (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, the
treasurer or other authorized officers of the relevant party as to such fact or
matter, and such certificate shall constitute full protection to the Trustee
for any action taken or omitted to be taken by it in good faith in reliance
thereon.


 


(b) In the exercise or administration of the
trusts hereunder and in the performance of its duties and obligations under
this Agreement or the Basic Documents, the Trustee: (i) may act directly or
through its agents or attorneys pursuant to agreements entered into with any of
them, and the Trustee shall not be liable for the conduct or misconduct of such
agents or attorneys if such agents or attorneys shall have been selected by the
Trustee with reasonable care, and (ii) may consult with counsel, accountants
and other skilled Persons to be selected with reasonable care


 


22
















 


and employed by it. The Trustee shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the written opinion
or advice of any such counsel, accountants or other such Persons and which
opinion or advice states that such action is not contrary to this Agreement or
any Basic Document.


 


SECTION 7.5.
Not Acting in Individual Capacity.  Except as provided in this Article VII, in accepting the trusts
hereby created The Bank of New York acts solely as Trustee hereunder and not in
its individual capacity and all Persons having any claim against the Trustee by
reason of the transactions contemplated by this Agreement or any Basic Document
shall look only to the Trust Estate for payment or satisfaction thereof.


 


SECTION 7.6.
Trustee Not Liable for Trust Certificates
or Receivables.  The
recitals contained herein and in the Certificates (other than the signature and
counter-signature of the Trustee on the Trust Certificates) shall be taken as
the statements of the Depositor, and the Trustee assumes no responsibility for
the correctness thereof. The Trustee makes no representations as to the
validity or sufficiency of this Agreement, of any Basic Document, of the Trust
Certificates (other than the signature and countersignature, if any, of the
Trustee on the Trust Certificates) or of the Notes, or of any Receivable or
related documents. The Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Receivable, or the perfection and priority of any security interest created
by any Receivable in any of the Financed Equipment or the maintenance of any
such perfection and priority, or for or with respect to the sufficiency of the
Trust Estate or its ability to generate the payments to be distributed to
Certificateholders under this Agreement or the Noteholders under the Indenture,
including: (a) the existence, condition and ownership of any Financed
Equipment, (b) the existence and enforceability of any insurance thereon, (c)
the existence and contents of any Receivable on any computer or other record
thereof, (d) the validity of the assignment of any Receivable to the Trust or
of any intervening assignment, (e) the completeness of any Receivable, (f) the
performance or enforcement of any Receivable, and (g) the compliance by the
Depositor or the Servicer with any warranty or representation made under any
Basic Document or in any related document or the accuracy of any such warranty
or representation or any action of the Administrator, the Indenture Trustee or
the Servicer or any subservicer taken in the name of the Trustee.


 


SECTION 7.7.
Trustee May Not Own Notes.  The Trustee shall not, in its individual
capacity, but may in a fiduciary capacity, become the owner or pledgee of Notes
or otherwise extend credit to the Issuer. The Trustee may otherwise deal


 


23
















 


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 or (b) with respect to the Trustee, the
inaccuracy of any representation or warranty contained in Section 7.3
expressly made by the Trustee. The indemnities contained in this
Section shall survive the resignation or termination of the Trustee or the
termination of this Agreement. In any event of any claim, action or proceeding
for which indemnity will be sought pursuant to this Section, the Trustee’s
choice of legal counsel shall be subject to the approval of the Depositor,
which approval shall not be unreasonably withheld.


 


SECTION 8.3.
Payments to the Trustee.  Any amounts paid to the Trustee pursuant to
this Article VIII shall
be deemed not to be a part of the Trust Estate immediately after such payment.
The Trustee shall also be entitled to interest on all fees and expenses that
are due and unpaid for more than sixty (60) days after


 


24
















 


they have been billed to the party responsible for the payment of such
amounts at a rate equal to: (a) the rate publicly announced by The Bank of New
York, as its prime rate from time to time plus
(b) 3.5%.


 


ARTICLE IX

Termination of Trust Agreement


 


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


 


(b) Except as provided in Section 9.1(a),
neither the Depositor nor any Certificateholder shall be entitled to dissolve,
revoke or terminate the Trust.


 


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


 


25
















 


Certificateholders amounts distributable on such Payment Date pursuant
to Section 5.2.


 


In the event that all of the Certificateholders shall not surrender
their Trust Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Trust Certificates for cancellation and to receive the final distribution with
respect thereto. If within one year after the second notice all the Trust
Certificates shall not have been surrendered for cancellation, the Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their Trust
Certificates, and the cost thereof shall be paid out of the funds and other assets
that shall remain subject to this Agreement. Any funds remaining in the Trust
after exhaustion of such remedies shall be distributed by the Trustee to the
Depositor.


 


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


 


ARTICLE X

Successor Trustees and Additional
Trustees


 


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


 


26
















 


with this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 10.2.


 


SECTION 10.2.
Resignation or Removal of Trustee.  The Trustee may at any time resign and be
discharged from the trusts hereby created by giving written notice thereof to
the Administrator. Upon receiving such notice of resignation, the Administrator
shall promptly appoint a successor Trustee by written instrument, in duplicate,
one copy of which instrument shall be delivered to the resigning Trustee and
one copy to the successor Trustee. If no successor Trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition at the expense of the
Administrator any court of competent jurisdiction for the appointment of a
successor Trustee.


 


If at any time the Trustee shall cease to be eligible in accordance
with Section 10.1
and shall fail to resign after written request therefor by the Administrator,
or if at any time the Trustee shall be legally unable to act, or shall be
adjudged bankrupt or insolvent, or a receiver of the Trustee or of its property
shall be appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Administrator may remove the Trustee. If
the Administrator shall remove the Trustee under the authority of the preceding
sentence, the Administrator shall promptly appoint a successor Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to
the outgoing Trustee so removed and one copy to the successor Trustee, and pay
all fees owed to the outgoing Trustee.


 


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


 


SECTION 10.3.
Successor Trustee.  Any successor Trustee appointed pursuant to Section 10.2
shall execute, acknowledge and deliver to the Administrator and to its predecessor
Trustee an instrument accepting such appointment under this Agreement, and
thereupon the resignation or removal of the predecessor Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties, and
obligations of its predecessor under this Agreement, with like effect as if
originally named as the Trustee. The predecessor


 


27
















 


Trustee shall upon payment of its fees and expenses deliver to the
successor Trustee all documents and statements and monies held by it under this
Agreement; and the Administrator and the predecessor Trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for fully and certainly vesting and confirming in the successor Trustee all
such rights, powers, duties and obligations.


 


No successor Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Trustee shall
be eligible pursuant to Section 10.1.


 


Upon acceptance of appointment by a successor Trustee pursuant to this
Section, the Administrator shall mail notice of such appointment to all
Certificateholders, the Indenture Trustee, the Noteholders and the Rating
Agencies. If the Administrator shall fail to mail such notice within 10 days
after acceptance of appointment by the successor Trustee, the successor Trustee
shall cause such notice to be mailed at the expense of the Administrator.


 


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


 


SECTION 10.5.
Appointment of Co-Trustee or Separate
Trustee.  Notwithstanding
any other provisions of this Agreement, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Trust or
any Financed Equipment may at the time be located, the Administrator and the
Trustee acting jointly shall have the power and may execute and deliver all
instruments to appoint one or more Person(s) approved by the Trustee to act as
co-trustee(s), jointly with the Trustee, or separate trustee(s), of all or any
part of the Trust Estate, and to vest in such Person(s), in such capacity and
for the benefit of the Certificateholders, such title to the Trust Estate, or
any part thereof, and, subject to the other provisions of this Section, such
powers, duties, obligations, rights and trusts as the Administrator and the
Trustee may consider necessary or desirable. If the Administrator shall not
have joined in such appointment within 15 days after the receipt by it of a
request so to do, the


 


28
















 


Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee under this Agreement shall be required to meet
the terms of eligibility as a successor trustee pursuant to Section 10.1
and no notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to Section 10.3.


 


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


 


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


 


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


 


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


 


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


 


29
















 


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


 


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


 


ARTICLE XI

Miscellaneous


 


SECTION 11.1.
Supplements and Amendments.  This Agreement may be amended from time to
time by a written amendment duly executed and delivered by the Depositor and
the Trustee, with prior written notice to the Rating Agencies, without the
consent of any of the Noteholders or the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions in this Agreement or for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions in this Agreement or of modifying in any manner the
rights of the Noteholders or the Certificateholders; provided,
however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
any Noteholder or Certificateholder.


 


This Agreement may also be amended from time to time by the Depositor
and the Trustee, with prior written notice to the Rating Agencies, with the
written consent of (x) Noteholders holding Notes evidencing not less than a
majority of the Note Balance and (y) the Holders of Certificates evidencing not
less than a majority of the Certificate Balance, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Noteholders or
the Certificateholders; provided, however, that
no such amendment shall: (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Receivables or
distributions that shall be required to be made for the benefit of the
Noteholders or the Certificateholders or (b) reduce the aforesaid percentage of
the Outstanding Amount and the Certificate Balance


 


30
















 


required to consent to any such amendment, without the consent of the
holders of all the outstanding Notes and 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, 10 days prior thereto), the Trustee shall
furnish written notification of the substance of such amendment or consent to
each Certificateholder, the Indenture Trustee and each of the Rating Agencies.


 


It shall not be necessary for the consent of Certificateholders, the
Noteholders or the Indenture Trustee pursuant to this Section to approve
the particular form of any proposed amendment or consent, but it shall be sufficient
if such consent shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of Certificateholders provided for in
this Agreement or in any other Basic Document) and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject
to such reasonable requirements as the Trustee may prescribe.


 


Promptly after the execution of any amendment to the Certificate of
Trust, the Trustee shall cause the filing of such amendment with the Secretary
of State.


 


Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Trustee shall be entitled to receive and rely upon an
Opinion of Counsel stating that the execution of such amendment is authorized
or permitted by this Agreement and that all conditions precedent to the
execution and delivery of such amendment have been satisfied. The Trustee may,
but shall not be obligated to, enter into any such amendment that affects the
Trustee’s own rights, duties or immunities under this Agreement or otherwise.


 


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


 


31
















 


transferee to an accounting or to the transfer to it of legal title to
any part of the Trust Estate.


 


SECTION 11.3.
Limitations on Rights of Others.  The provisions of this Agreement are solely
for the benefit of the Trustee, the Depositor, the Certificateholders, the
Administrator and, to the extent expressly provided herein, the Indenture
Trustee and the Noteholders, and nothing in this Agreement, whether express or
implied, shall be construed to give to any other Person any legal or equitable
right, remedy or claim in the Trust Estate or under or in respect of this
Agreement or any covenants, conditions or provisions contained herein.


 


SECTION 11.4.
Notices.  (a) 
Unless otherwise expressly specified or permitted by the terms hereof,
all notices shall be in writing, personally delivered or mailed by certified
mail, postage prepaid and return receipt requested, and shall be deemed to have
been duly given upon receipt: (i) if to the Trustee or the Paying Agent,
addressed to the Corporate Trust Office, and (ii) if to the Depositor,
addressed to CNH Capital Receivables Inc., 100 South Saunders Road, Lake
Forest, Illinois 60045, Attention: Assistant Treasurer; or, as to each party,
at such other address as shall be designated by such party in a written notice
to the other party.


 


(b) Any notice required or permitted to be
given to a Certificateholder shall be given by first-class mail, postage
prepaid, at the address of such Holder as shown in the Certificate Register.
Any notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the Certificateholder
receives such notice.


 


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


 


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


 


SECTION 11.7.
Successors and Assigns.  All covenants and agreements contained herein
shall be binding upon, and inure to the benefit of, the Depositor


 


32
















 


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 an Certificateholder shall bind the successors and assigns of such
Certificateholder.


 


SECTION 11.8.
Covenants of the Depositor.  If: (a) the Certificate Balance shall be
reduced by Realized Losses and (b) any litigation with claims in excess of
$1,000,000 to which the Depositor is a party that shall be reasonably likely to
result in a material judgment against the Depositor that the Depositor will not
be able to satisfy shall be commenced by a Certificateholder during the period
beginning nine months following the commencement of such litigation and
continuing until such litigation is dismissed or otherwise terminated (and, if
such litigation has resulted in a final judgment against the Depositor, such
judgment has been satisfied), the Depositor shall not pay any dividend to
Credit, or make any distribution on or in respect of its capital stock to
Credit, or repay the principal amount of any indebtedness of the Depositor held
by Credit, unless: (i) after giving effect to such payment, distribution or
repayment, the Depositor’s liquid assets shall not be less than the amount of
actual damages claimed in such litigation or (ii) the Rating Agency Condition
shall have been satisfied with respect to any such payment, distribution or
repayment. The Depositor will not at any time institute against the Trust any
bankruptcy proceedings under any United States federal or State bankruptcy or similar
law in connection with any obligations relating to the Trust Certificates, the
Notes, the Trust Agreement or any of the Basic Documents.


 


SECTION 11.9.
No Petition.  The Trustee on behalf of the Trust, by
entering into this Agreement, each Certificateholder, by accepting a Trust
Certificate, and the Indenture Trustee and each Noteholder, by accepting the
benefits of this Agreement, hereby covenant and agree that they will not at any
time institute against the Depositor or the Trust, or join in any institution
against the Depositor or the Trust of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any federal or State bankruptcy or similar law in connection with any
obligations relating to the Trust Certificates, the Notes, this Agreement or
any of the Basic Documents.


 


SECTION 11.10.
No Recourse.  Each Certificateholder by accepting a Trust
Certificate acknowledges that such Certificateholder’s Trust Certificates
represent beneficial interests in the Trust only and do not represent interests
in or obligations of the 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.


 


33
















 


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.


 


34
















 


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


 


	
   

  	
  THE BANK OF NEW YORK,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  JAMES BOWDEN

  	
   

  
	
   

  	
   

  	
  Name:  James P. Bowden

  
	
   

  	
   

  	
  Title:  Assistant Treasurer

  
	
   

  	
   

  
	
   

  	
  CNH CAPITAL
  RECEIVABLES INC.,

  
	
   

  	
  as Depositor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  BRIAN O’KEANE

  	
   

  
	
   

  	
   

  	
  Name:  Brian O’Keane

  
	
   

  	
   

  	
  Title:  Assistant Treasurer

  



 


S-1
















 


EXHIBIT A

to Trust Agreement


 


FORM OF TRUST CERTIFICATES


 


	
  REGISTERED

  	
   

  	
  $26,250,000(1)

  
	
  NUMBER
  R-     

  	
   

  	
   

  



 


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


 


CNH EQUIPMENT TRUST 2004-A

3.31% ASSET BACKED CERTIFICATE


 


evidencing a fractional undivided interest in the Trust, as defined
below, the property of which includes a pool of retail installment sale
contracts secured by new and used agricultural and construction equipment and
sold to the Trust by CNH Capital Receivables Inc.


 


(This Trust Certificate does not represent an interest in or obligation
of CNH Capital Receivables Inc., Case Credit Corporation, 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 INC. is the fractional
registered owner of a


 


TWENTY-SIX MILLION TWO HUNDRED FIFTY THOUSAND DOLLARS ($26,250,000)
nonassessable, fully-paid, fractional undivided interest in the CNH Equipment
Trust 2004-A (the “Trust”) formed by CNH Capital
Receivables Inc., a Delaware corporation (the “Depositor”).


 


The Trust was created pursuant to a Trust Agreement dated as of
September 1, 2004 (the “Trust Agreement”) between the
Depositor and The Bank of New York, as trustee (the “Trustee”).
To the extent not otherwise defined herein, the capitalized terms used herein
have the meanings assigned to them in the Trust Agreement or the Sale and
Servicing Agreement (the “Sale and Servicing Agreement”)
dated as of September 1, 2004
among the Trust, the Depositor and Case Credit Corporation, as servicer (the “Servicer”), as applicable.


 










(1)  Denominations of $1,000 and
in greater whole dollar denominations in excess thereof.


 


A-1
















 


This Trust Certificate is one of the duly authorized Certificates
designated as “Asset Backed 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.


 


Issued under the Indenture dated as of September 1, 2004 between
the Trust and JPMorgan Chase Bank, as Indenture Trustee, are notes designated
as “2.0008% Class A-1 Asset Backed Notes,” “2.42% Class A-2 Asset Backed
Notes,” “Floating Rate Class A-3a Asset Backed Notes,” “2.94% Class A-3b Asset
Backed Notes,” “Floating Rate Class A-4a Asset Backed Notes”, “3.48% Class A-4b
Asset Backed Notes” and “3.31% Class B Asset Backed Notes”.  Each Holder of this Trust Certificate
acknowledges and agrees that its rights to receive distributions in respect of
this Trust Certificate are subordinated to the rights of the Noteholders as
described in the Sale and Servicing Agreement and the Indenture.


 


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


 


Each Certificateholder, by its acceptance of a Trust Certificate,
covenants and agrees that such Certificateholder will not at any time institute
against the 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 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.


 


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Each Certificateholder, by its acceptance of a Trust Certificate,
represents and warrants in writing 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.


 


The Certificates may not be acquired by or for the account of: (i) an
employee benefit plan (as defined in Section 3(3) of ERISA) that is
subject to the provisions of Title 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 by reason of a
plan’s investment in the entity (a “Benefit Plan”). By
accepting and holding this Certificate, each of the Holder shall be deemed to
have represented and warranted that it is not a Benefit Plan.


 


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


 


Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Trustee, by manual signature, this
Trust Certificate shall not entitle the holder hereof to any benefit under the
Trust Agreement or the Sale and Servicing Agreement or be valid for any
purpose.


 


This Trust Certificate shall be construed in accordance with the laws
of the state of Delaware, without reference to its conflict of law provisions,
and the obligations, rights and remedies of the parties hereunder shall be
determined in accordance with such laws.


 


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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 2004-A

  
	
   

  	
   

  
	
   

  	
  By:

  	
  THE
  BANK OF NEW YORK,

  not in its
  individual capacity, but

  solely as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
							



 


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TRUSTEE’S CERTIFICATE OF AUTHENTICATION


 


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


 


 


	
  THE BANK OF NEW YORK,

  
	
  as Trustee

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Authorized Officer

  
	
   

  
	
   

  
	
  Date:  September     ,
  2004

  



 


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.


 


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EXHIBIT B

to Trust Agreement


 


CERTIFICATE OF TRUST

OF

CNH EQUIPMENT TRUST 2004-A


 


THIS CERTIFICATE OF TRUST of CNH EQUIPMENT TRUST 2004-A (the “Trust”), is being duly executed and filed
by The Bank of New York, a New York banking corporation, and The Bank of New
York (Delaware), a Delaware banking corporation, as trustees, to form a
statutory trust under the Delaware Statutory Trust Act (12 Del. C.
§3801, et
seq.).


 


(i)                                     Name.  The name of the statutory trust being formed
hereby is CNH EQUIPMENT TRUST 2004-A.


 


(ii)                                  Delaware
Trustee.  The name and business
address of the trustee of the Trust in the State of Delaware are The Bank of
New York (Delaware), White Clay Center, Route 273, Newark, Delaware 19711.


 


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


 


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


 


	
   

  	
  THE BANK OF NEW
  YORK

  
	
   

  	
  not in its
  individual capacity, but solely as

  trustee under a Trust Agreement dated as of

  September 1, 2004

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NEW
  YORK (DELAWARE),

  
	
   

  	
  not in its
  individual capacity, but solely as

  co-trustee under a Co-Trustee Agreement

  dated as of September 1, 2004

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
										



 


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