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ADMINISTRATION AGREEMENT

Indenture Agreement

ADMINISTRATION AGREEMENT | Document Parties: CNH CAPITAL RECEIVABLES LLC | NEW HOLLAND CREDIT COMPANY, LLC | CNH EQUIPMENT TRUST 2008-B, You are currently viewing:
This Indenture Agreement involves

CNH CAPITAL RECEIVABLES LLC | NEW HOLLAND CREDIT COMPANY, LLC | CNH EQUIPMENT TRUST 2008-B,

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Title: ADMINISTRATION AGREEMENT
Date: 5/23/2008

ADMINISTRATION AGREEMENT, Parties: cnh capital receivables llc , new holland credit company  llc , cnh equipment trust 2008-b
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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

 

1.

Duties of the Administrator

2

 

(a)

Duties with Respect to the Indenture and the Depository Agreement

2

 

(b)

Duties with Respect to the Trust

5

 

(c)

Non-Ministerial Matters

6

 

 

 

2.

Records

6

 

 

 

3.

Compensation

7

 

 

 

4.

Additional Information to be Furnished to the Issuing Entity

7

 

 

 

5.

Independence of the Administrator

7

 

 

 

6.

No Joint Venture

7

 

 

 

7.

Other Activities of the Administrator

7

 

 

 

8.

Term of Agreement; Resignation and Removal of the Administrator

7

 

 

 

9.

Action upon Termination, Resignation or Removal

9

 

 

 

10.

Notices

9

 

 

 

11.

Amendments

11

 

 

 

12.

Successors and Assigns

12

 

 

 

13.

Governing Law

12

 

 

 

14.

Headings

12

 

 

 

15.

Counterparts

12

 

 

 

16.

Severability

12

 

 

 

17.

Not Applicable to New Holland Credit Company, LLC in Other Capacities

12

 

 

 

18.

Limitation of Liability of the Trustee and the Indenture Trustee

13

 

 

 

19.

Indemnification

13

 

 

 

20.

Information Requests

13

 

 

 

21.

Limitation of Rights

13

 

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);

 

2



 

(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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