Exhibit 4.5
EXECUTION COPY
CNH EQUIPMENT TRUST
2008-B
ADMINISTRATION
AGREEMENT
among
CNH EQUIPMENT TRUST
2008-B,
as Issuing
Entity,
and
NEW HOLLAND CREDIT COMPANY,
LLC,
as
Administrator,
and
THE BANK OF NEW YORK TRUST
COMPANY, N.A.,
as Indenture
Trustee,
and
WILMINGTON TRUST
COMPANY,
as Trustee
Dated as of May 1,
2008
TABLE OF
CONTENTS
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1.
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Duties of the
Administrator
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2
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(a)
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Duties with
Respect to the Indenture and the Depository Agreement
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2
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(b)
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Duties with
Respect to the Trust
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5
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(c)
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Non-Ministerial Matters
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6
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2.
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Records
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6
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3.
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Compensation
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7
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4.
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Additional
Information to be Furnished to the Issuing Entity
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7
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5.
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Independence
of the Administrator
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7
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6.
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No Joint
Venture
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7
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7.
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Other
Activities of the Administrator
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7
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8.
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Term of
Agreement; Resignation and Removal of the Administrator
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7
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9.
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Action upon
Termination, Resignation or Removal
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9
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10.
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Notices
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9
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11.
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Amendments
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11
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12.
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Successors and
Assigns
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12
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13.
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Governing
Law
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12
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14.
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Headings
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12
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15.
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Counterparts
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12
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16.
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Severability
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12
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17.
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Not Applicable
to New Holland Credit Company, LLC in Other Capacities
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12
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18.
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Limitation of
Liability of the Trustee and the Indenture Trustee
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13
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19.
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Indemnification
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13
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20.
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Information
Requests
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13
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21.
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Limitation of
Rights
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13
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i
ADMINISTRATION
AGREEMENT dated
as of May 1, 2008, among CNH EQUIPMENT TRUST 2008-B, a
Delaware statutory trust (the “Issuing Entity”), NEW
HOLLAND CREDIT COMPANY, LLC, a Delaware limited liability company,
as administrator (the “Administrator”), THE BANK OF NEW
YORK TRUST COMPANY, N.A., a national banking association, not in
its individual capacity but solely as Indenture Trustee (the
“Indenture Trustee”), and Wilmington Trust Company, not
in its individual capacity but solely as Trustee under the Trust
Agreement (the “Trustee”).
RECITALS
WHEREAS
, the Issuing Entity is
issuing: (a) 2.91675% Class A-1 Asset Backed Notes, 4.04%
Class A-2a Asset Backed Notes, Floating Rate Class A-2b
Asset Backed Notes, 4.78% Class A-3a Asset Backed Notes,
Floating Rate Class A-3b Asset Backed Notes, 5.60%
Class A-4a Asset Backed Notes, Floating Rate Class A-4b
Asset Backed Notes (collectively, the “Class A
Notes”) and 0.00% Class B Asset Backed Notes (the
“Class B Notes” and, together with the
Class A Notes, the “Notes”) pursuant to the
Indenture, dated as of the date hereof (as amended and supplemented
from time to time in accordance with the provisions thereof, the
“Indenture”), between the Issuing Entity and the
Indenture Trustee (capitalized terms used herein and not otherwise
defined herein are defined in Appendix A to the Indenture, and the
provisions of Section 1.3 of the Indenture shall be
incorporated herein).
WHEREAS
, the Issuing Entity has
entered into certain agreements in connection with the issuance of
the Notes and of certain beneficial ownership interests of the
Issuing Entity, including: (i) a Sale and Servicing Agreement,
dated as of the date hereof (as amended and supplemented from time
to time, the “Sale and Servicing Agreement”), among the
Issuing Entity, New Holland Credit Company, LLC, as servicer (the
“Servicer”), and CNH Capital Receivables LLC, a
Delaware limited liability company, as seller (the
“Seller”), (ii) a Depository Agreement, dated
May 22, 2008 (the “Depository Agreement”), among
the Issuing Entity and The Depository Trust Company, (iii) the
Indenture, (iv) a Trust Agreement, dated as of the date hereof
(the “Trust Agreement”), between the Seller and the
Trustee, and (v) the Interest Rate Swap Agreements (the Sale
and Servicing Agreement, the Depository Agreement, the Indenture,
the Interest Rate Swap Agreements and the Trust Agreement being
hereinafter referred to collectively as the “Related
Agreements”);
WHEREAS
, pursuant to the Related
Agreements, the Issuing Entity and the Trustee are required to
perform certain duties in connection with: (a) the Notes and
the collateral therefor pledged pursuant to the Indenture (the
“Collateral”) and (b) the beneficial ownership
interests in the Issuing Entity (the registered holders of such
interests being referred to herein as the
“Owners”);
WHEREAS
, the Issuing Entity and
the Trustee desire to have the Administrator perform certain of the
duties of the Issuing Entity and the Trustee referred to in the
preceding clause, and to provide such additional services
consistent with this Agreement and the Related Agreements as the
Issuing Entity and the Trustee may from time to time
request;
WHEREAS
, the Administrator has
the capacity to provide the services required hereby and is willing
to perform such services for the Issuing Entity and the Trustee on
the terms set forth herein;
NOW
, THEREFORE , in consideration of the
mutual terms and covenants contained herein, and other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
1.
Duties of the
Administrator .
(a)
Duties with Respect to
the Indenture and the Depository Agreement . The Administrator shall
perform all of its duties as Administrator and the duties of the
Issuing Entity and the Trustee under the Indenture and the
Depository Agreement. In addition, the Administrator shall consult
with the Trustee regarding the duties of the Issuing Entity and the
Trustee under such documents. The Administrator shall monitor the
performance of the Issuing Entity and shall advise the Trustee when
action is necessary to comply with the Issuing Entity’s or
the Trustee’s duties under such documents. The Administrator
shall prepare for execution by the Issuing Entity or shall cause
the preparation by other appropriate persons of all such documents,
reports, filings, instruments, certificates and opinions as it
shall be the duty of the Issuing Entity or the Trustee to prepare,
file or deliver pursuant to such documents. In furtherance of the
foregoing, the Administrator shall take all appropriate action that
is the duty of the Issuing Entity or the Trustee to take pursuant
to such documents, including, without limitation, such of the
foregoing as are required with respect to the following matters
(references in this Section are to sections of the
Indenture):
(i)
the duty to cause the Note
Register to be kept and to give the Indenture Trustee notice of any
appointment of a new Note Registrar and the location, or change in
location, of the Note Register (Section 2.4);
(ii)
the fixing or causing to
be fixed of any specified record date and the notification of the
Indenture Trustee and Noteholders with respect to special payment
dates, if any (Section 2.7(c));
(iii)
the preparation of or
obtaining of the documents and instruments required for
authentication of the Notes and delivery of the same to the
Indenture Trustee (Section 2.2);
(iv)
the preparation, obtaining
or filing of the instruments, opinions, certificates and other
documents required for the release of the Collateral
(Section 2.9);
(v)
[reserved];
(vi)
the duty to cause newly
appointed Paying Agents, if any, to deliver to the Indenture
Trustee the instrument specified in the Indenture regarding funds
held in trust (Section 3.3);
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(vii)
the direction to the
Paying Agents to deposit monies with the Indenture Trustee
(Section 3.3);
(viii)
the obtaining and
preservation of the Issuing Entity’s qualification to do
business in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of
the Indenture, the Notes, the Collateral and each other instrument
and agreement included in the Trust Estate
(Section 3.4);
(ix)
the preparation of all
supplements, amendments, financing statements, continuation
statements, instruments of further assurance and other instruments,
in accordance with Section 3.5 of the Indenture, necessary to
protect the Trust Estate (Section 3.5);
(x)
the delivery of the
Opinion of Counsel on the Closing Date and the annual delivery of
Opinions of Counsel, in accordance with Section 3.6 of the
Indenture, as to the Trust Estate, and the annual delivery of the
Officer’s Certificate and certain other statements, in
accordance with Section 3.9 of the Indenture, as to compliance
with the Indenture (Sections 3.6 and 3.9);
(xi)
the identification to the
Indenture Trustee in an Officer’s Certificate of a Person
with whom the Issuing Entity has contracted to perform its duties
under the Indenture (Section 3.7(b));
(xii)
the notification of the
Indenture Trustee, the Counterparties and the Rating Agencies of a
Servicer Default pursuant to the Sale and Servicing Agreement and,
if such Servicer Default arises from the failure of the Servicer to
perform any of its duties under the Sale and Servicing Agreement,
the taking of all reasonable steps available to remedy such failure
(Section 3.7(d));
(xiii)
the preparation and
obtaining of documents and instruments required for the release of
the Issuing Entity from its obligations under the Indenture
(Section 3.10(b));
(xiv)
the delivery of notice to
the Indenture Trustee, the Counterparties and the Rating Agencies
of (a) each Event of Default under the Indenture,
(b) each default by the Servicer or Seller under the Sale and
Servicing Agreement and (c) each default by CNHCA under the
Purchase Agreement (Section 3.19);
(xv)
the monitoring of the
Issuing Entity’s obligations as to the satisfaction and
discharge of the Indenture and the preparation of an
Officer’s Certificate and the obtaining of the Opinion of
Counsel and the Independent Certificate relating thereto
(Section 4.1);
(xvi)
the compliance with any
written directive of the Indenture Trustee with respect to the sale
of the Trust Estate in a commercially reasonable manner if an Event
of Default shall have occurred and be continuing
(Section 5.4);
3
(xvii)
the furnishing to the
Indenture Trustee of the names and addresses of Noteholders during
any period when the Indenture Trustee is not the Note Registrar
(Section 7.1);
(xviii)
the preparation, execution
and filing with the Commission and the Indenture Trustee of
documents required to be filed on a periodic basis with, and
summaries thereof as may be required by rules and regulations
prescribed by, the Commission and the transmission of such
summaries, as necessary, to the Noteholders
(Section 7.3);
(xix)
the opening of one or more
accounts in the Trust’s name, the preparation of Issuing
Entity Orders, Officer’s Certificates and Opinions of Counsel
and all other actions necessary with respect to investment and
reinvestment of funds in the Trust Accounts (Sections 8.2 and
8.3);
(xx)
the preparation of an
Issuing Entity Request and Officer’s Certificate and the
obtaining of an Opinion of Counsel and Independent Certificates, if
necessary, for the release of the Trust Estate as defined in the
Indenture (Sections 8.4 and 8.5);
(xxi)
the preparation of Issuing
Entity Orders and the obtaining of Opinions of Counsel with respect
to the execution of supplemental indentures and the mailing to the
Noteholders of notices with respect to such supplemental indentures
(Sections 9.1, 9.2 and 9.3);
(xxii)
the execution and delivery
of new Notes conforming to any supplemental indenture
(Section 9.6);
(xxiii)
the notification of
Noteholders of redemption of the Notes or the duty to cause the
Indenture Trustee to provide such notification
(Section 10.2);
(xxiv)
the preparation of all
Officer’s Certificates, Opinions of Counsel and Independent
Certificates with respect to any requests by the Issuing Entity to
the Indenture Trustee to take any action under the Indenture
(Section 11.1(a));
(xxv)
the preparation and
delivery of Officer’s Certificates and the obtaining of
Independent Certificates, if necessary, for the release of property
from the Lien of the Indenture (Section 11.1(b));
(xxvi)
the preparation and
delivery to Noteholders and the Indenture Trustee of any agreements
with respect to alternate payment and notice provisions
(Section 11.6); and
(xxvii)
the recording of the
Indenture, if applicable (Section 11.15).
4
(b)
Duties with Respect to
the Trust .
(i)
In addition to the duties
of the Administrator set forth above, the Administrator shall
perform such calculations, and shall prepare for execution by the
Issuing Entity or the Trustee or shall cause the preparation by
other appropriate persons of all such documents, reports, filings,
instruments, certificates and opinions, as it shall be the duty of
the Issuing Entity or the Trustee to perform, prepare, file or
deliver pursuant to the Related Agreements, and at the request of
the Trustee shall take all appropriate action that it is the duty
of the Issuing Entity or the Trustee to take pursuant to the
Related Agreements (other than with respect to Sections 11.14,
11.15 and 11.16 of the Trust Agreement). Subject to
Section 5 of this Agreement, the Administrator shall
administer, perform or supervise the performance of such other
activities in connection with the Collateral (including the Related
Agreements) as are not covered by any of the foregoing and as are
expressly requested by the Trustee and are reasonably within the
capability of the Administrator.
(ii)
Notwithstanding anything
in this Agreement or the Related Agreements to the contrary, if any
Certificates are held by any Person other than the Depositor, the
Administrator shall be responsible for promptly notifying the
Trustee in the event that any withholding tax is imposed on the
Trust’s payments (or allocations of income) to an Owner as
contemplated in Section 5.2(c) of the Trust Agreement.
Any such notice shall specify the amount of any withholding tax
required to be withheld by the Trustee pursuant to such
provision.
(iii)
Notwithstanding anything
in this Agreement or the Related Agreements to the contrary, the
Administrator shall be responsible for performance of the duties of
the Trustee (if any) set forth in Sections 5.2(a), (b) and
(c), the first sentence of Section 5.5 and
Section 5.6(a) of the Trust Agreement with respect to,
among other things, accounting and reports to Owners; provided,
however, that the Trustee shall retain responsibility for the
distribution of the Schedule K-1s necessary to enable each Owner to
prepare its federal and state income tax returns.
(iv)
If any Certificates are
held by any Person other than the Depositor, the Administrator
shall satisfy its obligations with respect to clauses (ii)
and (iii) by retaining, at the expense of the Trust payable
by the Servicer, a firm of Independent certified public accountants
(the “Accountants”) reasonably acceptable to the
Trustee, which Accountants shall perform the obligations of the
Administrator thereunder. In connection with clause (ii) , the
Accountants will provide, on or prior to the date on which the
Trustee receives its notice from the Administrator under such
clause, a letter in form and substance satisfactory to the Trustee
as to whether any tax withholding is then required and, if
required, the procedures to be followed with respect thereto to
comply with the requirements of the Code. The Accountants shall be
required to update the letter in each instance that any additional
tax withholding is subsequently required or any previously required
tax withholding shall no longer be required.
5
(v)
The Administrator shall
perform the duties of the Administrator specified in
Section 10.2 of the Trust Agreement required to be performed
in connection with the resignation or removal of the Trustee, and
any other duties expressly required to be performed by the
Administrator under the Trust Agreement.
(vi)
In carrying out the
foregoing duties or any of its other obligations under this
Agreement, the Administrator may enter into transactions with or
otherw
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