Execution Copy
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CNH EQUIPMENT TRUST 2003-A
CASE PURCHASE AGREEMENT
between
Case Credit Corporation
and
CNH Capital Receivables Inc.
Dated as of May 1, 2003
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TABLE OF CONTENTS
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Page
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ARTICLE I CERTAIN DEFINITIONS..............................................2
SECTION 1.1. Definitions..............................................2
SECTION 1.2. Other Definitional Provisions............................2
ARTICLE II CONVEYANCE OF CASE RECEIVABLES...................................3
SECTION 2.1. Conveyance of Case Purchased Contracts...................3
SECTION 2.2. Conveyance of Subsequent Case Receivables................3
SECTION 2.3. Intention of the Parties.................................4
SECTION 2.4. The Closing..............................................5
SECTION 2.5. Payment of the Purchase Price............................5
ARTICLE III REPRESENTATIONS AND WARRANTIES...................................5
SECTION 3.1. Representations and Warranties of CNHCR..................5
SECTION 3.2. Representations and Warranties of Case Credit............6
ARTICLE IV CONDITIONS......................................................13
SECTION 4.1. Conditions to Obligation of CNHCR.......................13
SECTION 4.2. Conditions to Obligation of Case Credit.................15
ARTICLE V COVENANTS OF CASE CREDIT........................................16
SECTION 5.1. Protection of Right, Title and Interest.................16
SECTION 5.2. Other Liens or Interests................................17
SECTION 5.3. Chief Executive Office..................................17
SECTION 5.4. Costs and Expenses......................................17
SECTION 5.5. Indemnification.........................................17
SECTION 5.6. Transfer of Subsequent Case Receivables.................18
ARTICLE VI MISCELLANEOUS PROVISIONS........................................18
SECTION 6.1. Obligations of Case Credit..............................18
SECTION 6.2. Repurchase Events.......................................18
SECTION 6.3. CNHCR Assignment of Repurchased Receivables.............18
SECTION 6.4. Trust...................................................18
SECTION 6.5. Amendment...............................................19
SECTION 6.6. Accountants' Letters....................................19
SECTION 6.7. Waivers.................................................20
SECTION 6.8. Notices.................................................20
SECTION 6.9. Costs and Expenses......................................20
SECTION 6.10. Representations of Case Credit and CNHCR................20
SECTION 6.11. Confidential Information................................20
SECTION 6.12. Headings and Cross-References...........................20
SECTION 6.13. Governing Law...........................................21
SECTION 6.14. Counterparts............................................21
SECTION 6.15. Severability............................................21
EXHIBITS
EXHIBIT A Form of Case Assignment
EXHIBIT B Form of Case Subsequent Transfer Assignment
SCHEDULES
SCHEDULE P Perfection Representation and Warranties
ii
CASE PURCHASE AGREEMENT (as amended or supplemented from time to time,
this "Agreement") dated as of May 1, 2003 between CASE CREDIT CORPORATION, a
Delaware corporation ("Case Credit"), and CNH CAPITAL RECEIVABLES INC., a
Delaware corporation ("CNHCR").
RECITALS
WHEREAS, in the regular course of its business, Case Credit purchases,
directly and indirectly, from equipment dealers and brokers, and directly
originates, Contracts; and
WHEREAS, in the regular course of its business, Case Credit purchases
from Case, LLC (f/k/a Case Corporation) certain Contracts originated by Case,
LLC (f/k/a Case Corporation) in the ordinary course of business; and
WHEREAS, Case Credit and CNHCR wish to set forth the terms pursuant to
which: (1) Contracts having an aggregate Contract Value of approximately
$107,979,185.60 (the "Case Purchased Contracts") as of the Initial Cutoff Date
and Case Credit's right, title and interest in any True Lease Equipment
related to such Contracts are to be sold by Case Credit to CNHCR on the date
hereof and (2) certain Subsequent Case Receivables and Case Credit's right,
title and interest in any True Lease Equipment related to such Subsequent Case
Receivables are to be sold by Case Credit to CNHCR from time to time on each
Subsequent Transfer Date; and
WHEREAS, CNHCR, as of the Initial Cutoff Date, owned Contracts previously
purchased from Case Credit pursuant to an Amended and Restated Receivables
Purchase Agreement dated as of December 15, 2000 (as amended from time to
time, the "Case Liquidity Receivables Purchase Agreement") between Case Credit
and CNHCR, having an aggregate Contract Value of approximately $228,937,781.21
(the "Case Owned Contracts", and together with the Case Purchased Contracts,
the "Initial Case Receivables"); and
WHEREAS, the Initial Case Receivables and the Subsequent Case Receivables
(collectively, the "Case Receivables"), the NH Receivables and any True Lease
Equipment related to such Case Receivables or NH Receivables will be
transferred by CNHCR, pursuant to the Sale and Servicing Agreement, to CNH
Equipment Trust 2003-A (the "Trust"), which Trust will issue Asset Backed
Certificates representing non-assessable, fully paid, undivided interests in,
and 1.26250% Class A-1 Asset Backed Notes, 1.46000% Class A-2 Asset Backed
Notes, Floating Rate Class A-3a Asset Backed Notes, 1.89000% Class A-3b Asset
Backed Notes, Floating Rate Class A-4a Asset Backed Notes, 2.57000% Class A-4b
Asset Backed Notes and 3.1300% Class B Asset Backed Notes collateralized by,
the Receivables and the other property of the Trust; and
WHEREAS, Case Credit and CNHCR wish to set forth herein certain
representations, warranties, covenants and indemnities of Case Credit with
respect to the Case Receivables for the benefit of CNHCR, the Trust, the
Noteholders, any Counterparty and the Certificateholders.
NOW, THEREFORE, in consideration of the foregoing, other good and
valuable consideration and the mutual terms and covenants contained herein the
parties hereto agree as follows:
ARTICLE I
Certain 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 2003-A and JPMorgan Chase Bank as Indenture
Trustee.
SECTION 1.2. Other Definitional Provisions. (a) All terms defined in this
Agreement shall have the defined meanings when used in any certificate or
other document made or delivered pursuant hereto unless otherwise defined
therein.
(b) As used in this Agreement and in any certificate or other document made or
delivered pursuant hereto, 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 as in effect on the date hereof. To the extent
that the definitions of accounting terms in this Agreement or in any such
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions contained in
this Agreement or in any such certificate or other document shall control.
(c) The words "hereof", "herein", "hereunder" and words of similar import when
used in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement; Section, Schedule and Exhibit
references contained in this Agreement are references to Sections, Schedules
and Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including, without limitation,".
(d) The definitions contained in this Agreement are applicable to the singular
as well as the plural forms of such terms and to the masculine as well as to
the feminine and neuter genders of such terms.
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ARTICLE II
Conveyance of Case Receivables
SECTION 2.1. Conveyance of Case Purchased Contracts. In consideration of
CNHCR's payment of $336,916,966.81 (the "Initial Case Purchase Price") in the
manner set out in Section 2.5(a), Case Credit does hereby sell, transfer,
assign, set over and otherwise convey to CNHCR, without recourse (subject to
the obligations herein), all of its right, title, interest and, with respect
to any Contracts that are Leases, obligations in, to and under (collectively,
the "Initial Case Assets"):
(i) the Case Purchased Contracts, including all documents constituting chattel
paper included therewith, and all obligations of the Obligors thereunder,
including all moneys paid thereunder on or after the Initial Cutoff Date;
(ii) the security interests in the Financed Equipment granted by Obligors
pursuant to the Case Purchased Contracts and any other interest of Case Credit
in such Financed Equipment;
(iii) any proceeds with respect to the Case Purchased Contracts from claims on
insurance policies covering Financed Equipment or Obligors;
(iv) any proceeds from recourse to Dealers with respect to the Case Purchased
Contracts other than any interest in the Dealers' reserve accounts maintained
with Case Credit;
(v) any Financed Equipment that shall have secured the Case Purchased
Contracts and that shall have been acquired by or on behalf of CNHCR;
(vi) any True Lease Equipment that is subject to any Case Purchased Contract;
and
(vii) the proceeds of any and all of the foregoing.
SECTION 2.2. Conveyance of Subsequent Case Receivables. Subject to the
conditions set forth in Section 4.1(b), in consideration of CNHCR's delivery
on the related Subsequent Transfer Date to or upon the order of Case Credit of
the related Subsequent Case Purchase Price pursuant to Section 2.5, Case
Credit does hereby sell, transfer, assign, set over and otherwise convey to
CNHCR, without recourse (subject to the obligations herein), all of its right,
title, interest and, with respect to any Contracts that are Leases,
obligations in, to and under (collectively, the "Subsequent Case Assets"; and
together with the Initial Case Assets, the "Case Assets"):
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(i) the Subsequent Case Receivables listed on Schedule A to the related Case
Subsequent Transfer Assignment, including all documents constituting chattel
paper included therewith, and all obligations of the Obligors thereunder,
including all moneys paid thereunder on or after the related Subsequent Cutoff
Date;
(ii) the security interests in the Financed Equipment granted by Obligors
pursuant to such Subsequent Case Receivables and any other interest of Case
Credit in such Financed Equipment;
(iii) any proceeds with respect to such Subsequent Case Receivables from
claims on insurance policies covering Financed Equipment or Obligors;
(iv) any proceeds with respect to such Subsequent Case Receivables from
recourse to Dealers other than any interest in the Dealers' reserve accounts
maintained with Case Credit;
(v) any Financed Equipment that shall have secured any such Subsequent Case
Receivable and that shall have been acquired by or on behalf of CNHCR;
(vi) any True Lease Equipment that is subject to any Subsequent Case
Receivable; and
(vii) the proceeds of any and all of the foregoing.
SECTION 2.3. Intention of the Parties. The parties to this Agreement intend
that the transactions contemplated hereby shall be, and shall be treated as, a
purchase by CNHCR and a sale by Case Credit of the Case Purchased Contracts
and the Subsequent Case Receivables and any True Lease Equipment related to
such Case Purchased Contracts or Subsequent Case Receivables, as the case may
be, and not as a lending transaction, such that in the event of a filing of a
petition for relief by or against Case Credit under the Bankruptcy Code, such
Case Purchased Contracts, Subsequent Case Receivables and True Lease Equipment
would not be property of Case Credit's bankruptcy estate under Section 541 of
the Bankruptcy Code, (ii) the bankruptcy court would not compel the turnover
of such Case Purchased Contracts, Subsequent Case Receivables and True Lease
Equipment or collections thereon by CNHCR to Case Credit under Section 542 of
the Bankruptcy Code, and (iii) the bankruptcy court would determine that
payments on such Case Purchased Contracts, Subsequent Case Receivables and
True Lease Equipment not in the possession of Case Credit would not be subject
to the automatic stay provisions of Section 362(a) of the Bankruptcy Code
imposed upon the commencement of Case Credit's bankruptcy case. The foregoing
sale, assignment, transfer and conveyance does not constitute, and is not
intended to result in a creation or assumption by CNHCR of, any obligation or
liability with respect to any Case Purchased Contract or any Subsequent Case
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Receivable, nor shall CNHCR be obligated to perform or otherwise be
responsible for any obligation of Case Credit or any other Person in
connection with the Case Purchased Contracts or the Subsequent Case
Receivables or under any agreement or instrument relating thereto, including
any contract or any other obligation to any Obligor, except that CNHCR accepts
any Contracts that are Leases subject to (and assumes) the covenants
benefiting the Obligors under such Leases.
If (but only to the extent) that the transfer of the Case Assets hereunder is
characterized by a court or other governmental authority as a loan rather than
a sale, Case Credit shall be deemed hereunder to have granted to CNHCR a
security interest in all of Case Credit's right, title and interest in and to
the Case Assets. Such security interest shall secure all of Case Credit's
obligations (monetary or otherwise) under this Agreement and the other Basic
Documents to which it is a party, whether now or hereafter existing or
arising, due or to become due, direct or indirect, absolute or contingent.
CNHCR shall have, with respect to the property described in Section 2.1 and
Section 2.2, and in addition to all the other rights and remedies available to
CNHCR under this Agreement and applicable law, all the rights and remedies of
a secured party under any applicable UCC, and this Agreement shall constitute
a security agreement under applicable law.
SECTION 2.4. The Closing. The sale and purchase of the Case Purchased
Contracts shall take place at a closing at the offices of Mayer, Brown, Xxxx &
Maw, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 on the Closing Date,
simultaneously with the closings under: (a) the NH Purchase Agreement, (b) the
Sale and Servicing Agreement, (c) the Trust Agreement, (d) the Administration
Agreement and (e) the Indenture.
SECTION 2.5. Payment of the Purchase Price.
(a) Case Purchased Contracts. The Initial Case Purchase Price is payable as
follows: (i) partially in cash on the Closing Date, and (ii) the remainder
shall be deemed to have been paid by CNHCR to Case Credit and returned by Case
Credit to CNHCR as a contribution to capital.
(b) Subsequent Case Receivables. As consideration for the conveyance of
Subsequent Case Receivables pursuant to Section 2.2, CNHCR shall pay or cause
to be paid to Case Credit on each Subsequent Transfer Date an amount (a
"Subsequent Case Purchase Price") equal to the aggregate Contract Value of the
Subsequent Case Receivables as of the related Subsequent Cutoff Date, plus any
premium or minus any discount agreed upon by Case Credit and CNHCR. Any
Subsequent Case Purchase Price shall be payable as follows: (i) cash in the
amount released to CNHCR in respect of the Subsequent Case Receivables from
the Pre-Funding Account pursuant to Section 5.7(a) of the Sale and Servicing
Agreement shall be paid to Case Credit on the related Subsequent Transfer
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Date; and (ii) the balance shall be paid in cash as and when amounts are
released to, or otherwise realized by, CNHCR from the Spread Account, the
Negative Carry Account, and the Principal Supplement Account in accordance
with the Sale and Servicing Agreement, or otherwise are available for such
purpose.
ARTICLE III
Representations and Warranties
SECTION 3.1. Representations and Warranties of CNHCR. CNHCR hereby represents
and warrants to Case Credit as of the date hereof and as of the Closing Date:
(a) Organization and Good Standing. CNHCR has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, with the power and authority to own its properties and to conduct
its business as such properties are currently owned and such business is
presently conducted, and had at all relevant times, and has, the power and
authority to acquire, own and sell the Case Receivables.
(b) Due Qualification. CNHCR 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) Power and Authority. CNHCR has the power and authority to execute and
deliver this Agreement and to carry out its terms; and the execution, delivery
and performance of this Agreement have been duly authorized by CNHCR by all
necessary corporate action.
(d) Binding Obligation. This Agreement constitutes a legal, valid and binding
obligation of CNHCR enforceable against CNHCR in accordance with its terms.
(e) No Violation. 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 CNHCR, or any indenture, agreement or other
instrument to which CNHCR 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 the
Sale and Servicing Agreement and the Indenture); or violate any law or, to the
best of CNHCR's knowledge, any order, rule or regulation applicable to CNHCR
of any court or of any Federal or State regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over CNHCR or its
properties.
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(f) No Proceedings. There are no proceedings or investigations pending or, to
CNHCR's best knowledge, threatened, before any court, regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over CNHCR or its properties: (i) asserting the invalidity of
this Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or (iii) seeking any determination
or ruling that could reasonably be expected to materially and adversely affect
the performance by CNHCR of its obligations under, or the validity or
enforceability of, this Agreement.
SECTION 3.2. Representations and Warranties of Case Credit. (a) Case Credit
hereby represents and warrants to CNHCR as of the date hereof and as of the
Closing Date:
(i) Organization and Good Standing. Case Credit has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, with the power and authority to own its properties and to conduct
its business as such properties are currently owned and such business is
presently conducted, and had at all relevant times, and has, the power and
authority to acquire, own and sell the Case Receivables.
(ii) Due Qualification. Case Credit 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.
(iii) Power and Authority. Case Credit has the power and authority to execute
and deliver this Agreement and to carry out its terms; Case Credit has full
power and authority to sell and assign the property to be sold and assigned to
CNHCR hereby and has duly authorized such sale and assignment to CNHCR by all
necessary corporate action; and the execution, delivery and performance of
this Agreement have been, and the execution, delivery and performance of each
Case Subsequent Transfer Assignment have been or will be on or before the
related Subsequent Transfer Date, duly authorized by Case Credit by all
necessary corporate action.
(iv) Binding Obligation. This Agreement constitutes, and each Case Subsequent
Transfer Assignment when executed and delivered by Case Credit will
constitute, a legal, valid and binding obligation of Case Credit enforceable
against Case Credit in accordance with their terms.
(v) No Violation. 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 Case Credit, or any indenture, agreement or other
instrument to which Case Credit is a party or by which it is bound; or result
7
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
this Agreement); or violate any law or, to the best of Case Credit's
knowledge, any order, rule or regulation applicable to Case Credit of any
court or of any Federal or State regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over Case Credit or its
properties.
(vi) No Proceedings. There are no proceedings or investigations pending, or to
Case Credit's best knowledge, threatened, before any court, regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over Case Credit or its properties: (A) asserting the invalidity
of this Agreement, (B) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement, or (C) seeking any determination
or ruling that could reasonably be expected to materially and adversely affect
the performance by Case Credit of its obligations under, or the validity or
enforceability of, this Agreement.
(b) Case Credit makes the following representations and warranties as to the
Receivables on which CNHCR relies in accepting the Initial Receivables and the
Subsequent Receivables and in transferring the Receivables to the Trust. Such
representations and warranties speak as of the execution and delivery of this
Agreement and as of the Closing Date, in the case of the Initial Receivables,
and as of the applicable Subsequent Transfer Date, in the case of the
Subsequent Receivables, but shall survive the sale, transfer and assignment of
the Receivables to CNHCR and the subsequent assignment and transfer of such
Receivables to the Trust pursuant to the Sale and Servicing Agreement and
pursuant to the Indenture:
(i) Characteristics of Case Receivables. Each Case Receivable: (A) (1) (i) was
originated in the United States of America by a Dealer in connection with the
retail sale or lease of Financed Equipment in the ordinary course of such
Dealer's business, and (ii) was purchased by Case Credit from a Dealer and
validly assigned by such Dealer to Case Credit in accordance with its terms,
or (2) was originated in the United States of America by Case Credit in
connection with the financing or lease of Financed Equipment in the ordinary
course of Case Credit's business and, in either case, was fully and properly
executed by the parties thereto, (B) has created a valid, subsisting and
enforceable first priority security interest in the Financed Equipment in
favor of Case Credit that, as of the Closing Date, has been assigned by Case
Credit to CNHCR, by CNHCR to the Issuer and by the Issuer to the Indenture
Trustee, except that (x) no security interest against the Obligor is created
in True Lease Equipment, and (y) Case Credit makes no representation or
warranty as to any such security interest granted by any Dealer to secure the
Dealer's obligations to make payments in respect of Termination Values, (C)
contains customary and enforceable provisions such that the rights and
remedies of the holder thereof are adequate for realization against the
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collateral of the benefits of the security, and (D) (i) in the case of Retail
Installment Contracts, provides for fixed payments on a periodic basis that
fully amortize the Amount Financed by maturity and yield interest at the
Annual Percentage Rate, and (ii) in the case of any Contracts sold, or to be
sold, hereunder that are Leases, provides for fixed payments on a periodic
basis that fully amortize the Amount Financed by maturity and yield interest
at the Annual Percentage Rate, except that any Contracts sold, or to be sold,
hereunder that are Leases also provide for payments of the related Termination
Values.
(ii) Schedule of Case Receivables. The information set forth on Schedule A to
the Case Assignment delivered on the Closing Date is true and correct in all
material respects as of the opening of business on the Initial Cutoff Date and
the information set forth on Schedule A to the related Case Subsequent
Transfer Assignment will be true and correct on each Subsequent Transfer Date
related to such Case Subsequent Transfer Assignment and no selection
procedures believed by Case Credit to be adverse to the interests of the
Trust, the Noteholders or the Certificateholders were or will be utilized in
selecting the Case Receivables. The computer tape regarding the Case
Receivables made available to CNHCR and its assigns is true and correct in all
respects.
(iii) Compliance with Law. Each Case Receivable and the sale or lease of the
related Financed Equipment complied in all material respects at the time it
was originated or made and at the execution of this Agreement and each Case
Subsequent Transfer Assignment complies in all material respects with all
requirements of applicable Federal, State and local laws and regulations
thereunder, including usury law, the Federal Truth-in-Lending Act, the Equal
Credit Opportunity Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the Xxxxxxxx-Xxxx
Warranty Act, the Federal Reserve Board's Regulations B and Z, the Wisconsin
Consumer Act and State adaptations of the National Consumer Act and of the
Uniform Consumer Credit Code, and other consumer credit laws and equal credit
opportunity and disclosure laws.
(iv) Binding Obligation. Each Case Receivable represents the genuine, legal,
valid and binding payment obligation in writing of the Obligor, enforceable by
the holder thereof in accordance with its terms.
(v) No Government Obligor. None of the Case Receivables is due from the United
States of America or any State or from any agency, department or
instrumentality of the United States of America or any State.
(vi) Security Interest in Financed Equipment. Immediately prior to the sale,
assignment and transfer thereof, each Case Receivable shall be secured by a
validly perfected first priority security interest in the Financed Equipment
in favor of Case Credit as secured party or all necessary and appropriate
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actions have been commenced that would result in the valid perfection of a
first priority security interest in the Financed Equipment in favor of Case
Credit as secured party, except that (A) no security interest against the
Obligor is created in True Lease Equipment and (B) Case Credit makes no
representation or warranty as to any security interest granted by any Dealer
to secure the Dealer's obligations to make payments in respect of Termination
Values.
(vii) Case Receivables in Force. No Case Receivable has been satisfied,
subordinated or rescinded, nor has any Financed Equipment been released from
the Lien granted by the related Case Receivable in whole or in part.
(viii) No Amendment or Waiver. No provision of a Case Receivable has been
waived, altered or modified in any respect, except pursuant to a document,
instrument or writing included in the Receivable Files and no such amendment,
waiver, alteration or modification causes such Case Receivable not to conform
to the other warranties contained in this Section.
(ix) No Defenses. No right of rescission, setoff, counterclaim or defense has
been asserted or threatened or exists with respect to any Case Receivable.
(x) No Liens. To the best of Case Credit's knowledge, no Liens or claims,
including claims for work, labor or materials, relating to any of the Financed
Equipment have been filed that are Liens prior to, or equal or coordinate
with, the security interest in the Financed Equipment granted by any Case
Receivable, except those pursuant to the Basic Documents.
(xi) No Default. No Case Receivable is a non-performing Receivable or has a
payment that is more than 90 days overdue as of the Initial Cutoff Date or
Subsequent Cutoff Date, as applicable, and, except for a payment default
continuing for a period of not more than 90 days, no default, breach,
violation or event permitting acceleration under the terms of any Case
Receivable has occurred and is continuing; and no continuing condition that
with notice or the lapse of time would constitute such a default, breach,
violation or event permitting acceleration under the terms of any Case
Receivable has arisen; and Case Credit has not waived and shall not waive any
of the foregoing.
(xii) Title. It is the intention of Case Credit that the transfers and
assignments contemplated herein and in the Case Liquidity Receivables Purchase
Agreement constitute a sale of the Case Receivables from Case Credit to CNHCR
and that the beneficial interest in and title to the Case Receivables and any
True Lease Equipment related to such Case Receivables not be part of the
debtor's estate in the event of the filing of a bankruptcy petition by or
against Case Credit under any bankruptcy or similar law. No Case Receivable
has been sold, transferred, assigned or pledged by Case Credit to any Person
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other than CNHCR. Immediately prior to the transfers and assignments
contemplated herein and in the Case Liquidity Receivables Purchase Agreement,
Case Credit had good title to each Case Receivable and any True Lease
Equipment related to such Case Receivable, free and clear of all Liens and,
immediately upon the transfer thereof, CNHCR shall have good title to each
Case Receivable and any True Lease Equipment, free and clear of all Liens; and
the transfer and assignment of the Case Receivables to CNHCR has been
perfected under the UCC.
(xiii) Lawful Assignment. No Case Receivable has been originated in, or is
subject to the laws of, any jurisdiction under which the sale, transfer and
assignment of such Case Receivable or any Case Receivable under this
Agreement, the Case Liquidity Receivables Purchase Agreement, the Sale and
Servicing Agreement or the Indenture is unlawful, void or voidable.
(xiv) All Filings Made. All filings (including UCC filings) necessary in any
jurisdiction to give CNHCR a first priority perfected ownership interest in
the Case Receivables have been made.
(xv) One Original. There is only one original executed copy of each Case
Receivable.
(xvi) Maturity of Receivables. Each Receivable has a remaining term to
maturity of not more than 72 months, in the case of the Initial Receivables,
and 72 months, in the case of the Subsequent Receivables; the weighted average
remaining term of the Initial Receivables is approximately 44.96 months as of
the Initial Cutoff Date; the weighted average original term of the
Receivables, including as of each Subsequent Transfer Date all Subsequent
Receivables previously transferred to CNHCR, will not be greater than 55
months.
(xvii) Scheduled Payments. No Receivable has a final scheduled payment date
later than six months preceding the Final Scheduled Maturity Date; each
Receivable provides for payments that fully amortize the Amount Financed over
the original term of the Receivable, and is either a Precomputed Receivable or
a Simple Interest Receivable.
(xviii) Insurance. The Obligor on each Case Receivable is required to maintain
physical damage insurance covering the Financed Equipment and, in the case of
any Lease, public liability insurance relating to the use of such Financed
Equipment, in each case in accordance with Case Credit's normal requirements.
(xix) Concentrations. (A) No Receivable has a Statistical Contract Value (when
combined with the Statistical Contract Value of any other Receivable with the
same or an Affiliated Obligor) that exceeds 1% of the Initial Aggregate
Statistical Contract Value.
11
(xx) Financing. Approximately 63.33% of the aggregate Statistical Contract
Value of the Initial Receivables, constituting 65.75% of the number of Initial
Receivables as of the Initial Cutoff Date, were secured by or constitute
Receivables of equipment that was new at the time the related Initial
Receivable was originated; the remainder of the Initial Receivables represent
financing or leases of used equipment; approximately 71.40% of the aggregate
Statistical Contract Value of the Initial Receivables, constituting 76.53% of
the number of Initial Receivables as of the Initial Cutoff Date, represent
financing or leases of agricultural equipment; the remainder of the Initial
Receivables represent financing or leases of construction equipment. The
aggregate Statistical Contract Value of the Receivables for the purposes of
the above calculations as of the Initial Cutoff Date is $618,976,649.84.
Additionally, not more than 35% of the aggregate Contract Value of the
Receivables, including, as of each Subsequent Transfer Date, all Subsequent
Receivables previously transferred to CNHCR, will represent Contracts for the
financing or lease of construction equipment. No Subsequent Receivable will
represent the financing of truck equipment.
(xxi) No Bankruptcies. No Obligor on any Case Receivable as of the Initial
Cutoff Date or the Subsequent Cutoff Date, as applicable, was noted in the
related Receivable File as being the subject of a bankruptcy proceeding.
(xxii) No Repossessions. None of the Financed Equipment securing any Case
Receivable is in repossession status. (xxiii) Chattel Paper. Each Case
Receivable constitutes "chattel paper" as defined in the UCC of each State the
law of which governs the perfection of the interest granted in it and/or the
priority of such perfected interest.
(xxiv) U.S. Obligors. None of the Case Receivables is denominated and payable
in any currency other than United States Dollars or is due from any Person
that does not have a mailing address in the United States of America.
(xxv) Payment Frequency. As of the Initial Cutoff Date and as shown on the
books of Case Credit: (A) Initial Receivables having an aggregate Statistical
Contract Value equal to 42.23% of the Initial Aggregate Statistical Contract
Value had annual scheduled payments, (B) Initial Receivables having an
aggregate Statistical Contract Value equal to 3.38% of the Initial Aggregate
Statistical Contract Value had semi-annual scheduled payments, (C) Initial
Receivables having an aggregate Statistical Contract Value equal to 0.71% of
the Initial Aggregate Statistical Contract Value had quarterly scheduled
payments, (D) Initial Receivables having an aggregate Statistical Contract
Value equal to 48.94% of the Initial Aggregate Statistical Contract Value had
monthly scheduled payments, and (E) Initial Receivables having an aggregate
Statistical Contract Value equal to 4.74% of the Initial Aggregate Statistical
Contract Value had irregularly scheduled payments.
12
(xxvi) Interest Accruing. Each Case Receivable, other than those Case
Receivables consisting of Contracts that contain interest waivers for a
specified period of time, is, as of the Closing Date or Subsequent Transfer
Date, as applicable, accruing interest; no Case Receivable contains an
interest waiver extending more than 12 months after the Initial Cutoff Date.
(xxvii) Leases. Each Lease included in the Initial Case Receivables or the
Subsequent Case Receivables has a Termination Value less than or equal to 10%
of the purchase price of the equipment subject to such Lease and is a "lease
intended as security" (rather than a true lease) within the meaning of Section
1-201(37) of the UCC.
(xxviii) Case Credit's Representations. The representations and warranties of
Case Credit contained in Section 3.2(a) are true and correct.
(xxix) Case Credit's Obligations. Case Credit has no obligations under any
Contract, other than the covenant of quiet enjoyment benefiting the Obligors
under any Contracts that are Leases.
(xxx) No Either/or Leases. No Lease included in the Initial Case Receivables
or the Subsequent Case Receivables is a Either/or Lease, and no Financed
Equipment transferred to CNHCR on the Closing Date or any Subsequent Transfer
Date, as the case may be, constitutes True Lease Equipment.
(xxxi) No Leases. Notwithstanding anything to the contrary in the Basic
Documents, none of the Initial Case Receivables or the Subsequent Case
Receivables shall be Leases.
(xxxii) Perfection Representations. Case Credit further makes all the
representations, warranties and covenants set forth in Schedule P.
ARTICLE IV
Conditions
SECTION 4.1. Conditions to Obligation of CNHCR.
(a) Case Purchased Contracts. The obligation of CNHCR to purchase the Case
Purchased Contracts is subject to the satisfaction of the following
conditions:
(i) Representations and Warranties True. The representations and warranties of
Case Credit hereunder shall be true and correct on the Closing Date and Case
Credit shall have performed all obligations to be performed by it hereunder on
or prior to the Closing Date.
13
(ii) Computer Files Marked. Case Credit shall, at its own expense, on or prior
to the Closing Date, indicate in its computer files that Case Receivables
created in connection with the Case Purchased Contracts have been sold to
CNHCR pursuant to this Agreement and deliver to CNHCR the Schedule of Case
Receivables certified by the Chairman, the President, a Vice President or the
Treasurer of Case Credit to be true, correct and complete.
(iii) Documents To Be Delivered by Case Credit on the Closing Date.
(A) The Case Assignment. On the Closing Date (but only if the Contract Value
of the Case Purchased Contracts is greater than zero), Case Credit will
execute and deliver the Case Assignment, which shall be substantially in the
form of Exhibit A.
(B) Evidence of UCC Filing. On or prior to the Closing Date (but only if the
Contract Value of the Case Purchased Contracts is greater than zero), Case
Credit shall execute and file, at its own expense, a UCC financing statement
in each jurisdiction in which such action is required by applicable law to
fully perfect CNHCR's right, title and interest in the Case Purchased
Contracts and the other property sold hereunder, executed by Case Credit, as
seller or debtor, and naming CNHCR, as purchaser or secured party, describing
the Case Purchased Contracts and the other property sold hereunder, meeting
the requirements of the laws of each such jurisdiction and in such manner as
is necessary to perfect the sale, transfer, assignment and conveyance of such
Case Purchased Contracts and such other property to CNHCR. It is understood
and agreed, however, that no filings will be made to perfect any security
interest of CNHCR in Case Credit's interests in Financed Equipment. Case
Credit shall deliver (or cause to be delivered) a file-stamped copy, or other
evidence satisfactory to CNHCR of such filing, to CNHCR on or prior to the
Closing Date.
(C) Other Documents. Case Credit will deliver such other documents as CNHCR
may reasonably request.
(iv) Other Transactions. The transactions contemplated by the Sale and
Servicing Agreement to be consummated on the Closing Date shall be consummated
on such date.
(b) Subsequent Case Receivables. The obligation of CNHCR to purchase any
Subsequent Case Receivables is subject to the satisfaction of the following
conditions on or prior to the related Subsequent Transfer Date:
(i) Case Credit shall have delivered to CNHCR a duly executed written
assignment in substantially the form of Exhibit B (the "Case Subsequent
Transfer Assignment"), which shall include supplements to the Schedule of Case
Receivables listing the Subsequent Case Receivables;
14
(ii) Case Credit shall, to the extent required by Section 5.2 of the Sale and
Servicing Agreement, have delivered to CNHCR for deposit in the Collection
Account all collections in respect of the Subsequent Case Receivables;
(iii) as of such Subsequent Transfer Date: (A) Case Credit was not insolvent
and will not become insolvent as a result of the transfer of Subsequent Case
Receivables on such Subsequent Transfer Date, (B) Case Credit did not intend
to incur or believe that it would incur debts that would be beyond Case
Credit's ability to pay as such debts matured, (C) such transfer was not made
with actual intent to hinder, delay or defraud any Person and (D) the assets
of Case Credit did not constitute unreasonably small capital to carry out its
business as conducted;
(iv) the applicable Spread Account Initial Deposit and Principal Supplement
Account Deposit, if any, for such Subsequent Transfer Date shall have been
made;
(v) the Funding Period shall not have terminated;
(vi) each of the representations and warranties made by Case Credit pursuant
to Section 3.2(b) with respect to the Subsequent Case Receivables or the
Subsequent Receivables shall be true and correct as of such Subsequent
Transfer Date, and Case Credit shall have performed all obligations to be
performed by it hereunder on or prior to such Subsequent Transfer Date;
(vii) Case Credit shall, at its own expense, on or prior to such Subsequent
Transfer Date, indicate in its computer files that the Subsequent Case
Receivables identified in the related Case Subsequent Transfer Assignment have
been sold to CNHCR pursuant to this Agreement and the Case Subsequent Transfer
Assignment;
(viii) Case Credit shall have taken any action required to give CNHCR a first
priority perfected ownership interest in the Subsequent Case Receivables;
(ix) no selection procedures believed by Case Credit to be adverse to the
interests of CNHCR, the Trust, the Noteholders or the Certificateholders shall
have been utilized in selecting the Subsequent Case Receivables;
(x) the addition of the Subsequent Case Receivables will not result in a
material adverse tax consequence to CNHCR, the Trust, the Noteholders or the
Certificateholders;
(xi) Case Credit shall have provided CNHCR a statement listing the aggregate
Contract Value of such Subsequent Case Receivables and any other information
reasonably requested by CNHCR with respect to such Subsequent Case
Receivables;
15
(xii) all the conditions to the transfer of the Subsequent Case Receivables to
the Issuer specified in the Sale and Servicing Agreement shall have been
satisfied; and
(xiii) Case Credit shall have delivered to CNHCR an Officers' Certificate
confirming the satisfaction of each condition precedent specified in this
clause (b) (substantially in the form attached hereto as Annex A to the Case
Subsequent Transfer Assignment).
SECTION 4.2. Conditions to Obligation of Case Credit. The obligation of Case
Credit to sell the Case Purchased Contracts and the Subsequent Case
Receivables to CNHCR is subject to the satisfaction of the following
conditions:
(a) Representations and Warranties True. The representations and warranties of
CNHCR hereunder shall be true and correct on the Closing Date or the
applicable Subsequent Transfer Date with the same effect as if then made, and
CNHCR shall have performed all obligations to be performed by it hereunder on
or prior to the Closing Date or such Subsequent Transfer Date.
(b) Receivables Purchase Price. On the Closing Date or the applicable
Subsequent Transfer Date, CNHCR shall have delivered to Case Credit the
portion of the Initial Case Purchase Price or the Subsequent Case Purchase
Price, as the case may be, payable on the Closing Date or such Subsequent
Transfer Date pursuant to Section 2.5.
ARTICLE V
Covenants of Case Credit
Case Credit agrees with CNHCR as follows; provided, however, that to the
extent that any provision of this Article conflicts with any provision of the
Sale and Servicing Agreement, the Sale and Servicing Agreement shall govern:
SECTION 5.1. Protection of Right, Title and Interest. (a) Filings. Case Credit
shall cause all financing statements and continuation statements and any other
necessary documents covering the right, title and interest of CNHCR in and to
the Case Receivables and the other property included in the Trust Estate to be
promptly filed, and at all times to be kept recorded, registered and filed,
all in such manner and in such places as may be required by law fully to
preserve and protect the right, title and interest of CNHCR hereunder to the
Case Receivables and the other property sold hereunder. It is understood and
agreed, however, that no filings will be made to perfect any security interest
of CNHCR in Case Credit's interests in Financed Equipment. Case Credit shall
deliver (or cause to be delivered) to CNHCR file-stamped copies of, or filing
receipts for, any document recorded, registered or filed as provided above as
soon as available following such recordation, registration or filing. CNHCR
16
shall cooperate fully with Case Credit in connection with the obligations set
forth above and will execute any and all documents reasonably required to
fulfill the intent of this paragraph.
(b) Name Change. Within 15 days after Case Credit makes any change in its
name, identity or corporate structure that would, could or might make any
financing statement or continuation statement filed in accordance with
paragraph (a) seriously misleading within the applicable provisions of the UCC
or any title statute, Case Credit shall give CNHCR notice of any such change,
and no later than five days after the effective date thereof, shall file such
financing statements or amendments as may be necessary to continue the
perfection of CNHCR's interest in the property included in the Trust Estate.
(c) Location Change. Within 15 days after Case Credit makes any change to its
"location" as defined in Section 9-307 of the UCC, Case Credit shall give
CNHCR notice of any such change, and no later than five days after the
effective date thereof, shall file such financing statements or amendments as
may be necessary to continue the perfection of CNHCR's interest in the
property included in the Trust Estate
SECTION 5.2. Other Liens or Interests. Except for the conveyances hereunder
and pursuant to the Case Liquidity Receivables Purchase Agreement, the Sale
and Servicing Agreement, the Indenture and the other Basic Documents, Case
Credit: (a) will not sell, pledge, assign or transfer to any Person, or grant,
create, incur, assume or suffer to exist any Lien on, any interest in, to and
under the Case Receivables, and (b) shall defend the right, title and interest
of CNHCR in, to and under the Case Receivables against all claims of third
parties claiming through or under Case Credit; provided, however, that Case
Credit's obligations under this Section shall terminate upon the termination
of the Trust pursuant to the Trust Agreement.
SECTION 5.3. Chief Executive Office. During the term of the Case Receivables,
Case Credit will maintain its chief executive office and "location," as
defined in the UCC, in one of the States.
SECTION 5.4. Costs and Expenses. Case Credit agrees to pay all reasonable
costs and disbursements in connection with the perfection, as against all
third parties, of CNHCR's right, title and interest in, to and under the Case
Receivables.
SECTION 5.5. Indemnification. Case Credit shall indemnify, defend and hold
harmless CNHCR for any liability as a result of the failure of a Case
Receivable to be originated in compliance with all requirements of law and for
any breach of any of its representations and warranties contained herein.
These indemnity obligations shall be in addition to any obligation that Case
Credit may otherwise have. Case Credit shall indemnify, defend and hold
17
harmless CNHCR, the Issuer, the Trustee and the Indenture Trustee (and their
respective officers, directors, employees and agents) from and against any
taxes that may at any time be asserted against such Person with respect to the
sale of the Case Receivables to CNHCR hereunder or the sale of the Case
Receivables to the Issuer by CNHCR or the issuance and original sale of the
Certificates and the Notes, including any sales, gross receipts, general
corporation, tangible personal property, privilege or license taxes (but, in
the case of CNHCR and the Issuer, not including any taxes asserted with
respect to ownership of the Case Receivables on Federal or other income taxes
arising out of the transactions contemplated by this Agreement) and costs and
expenses in defending against the same.
SECTION 5.6. Transfer of Subsequent Case Receivables. Case Credit covenants to
transfer to CNHCR, pursuant to Section 2.2, Subsequent Case Receivables with
an aggregate Contract Value approximately equal to $385,142,899.54 minus the
aggregate Contract Value of any Receivables sold to CNHCR by NH Credit
pursuant to Section 5.6 of the NH Purchase Agreement, subject only to the
availability of such Subsequent Case Receivables.
ARTICLE VI
Miscellaneous Provisions
SECTION 6.1. Obligations of Case Credit. The obligations of Case Credit under
this Agreement shall not be affected by reason of any invalidity, illegality
or irregularity of any Case Receivable.
SECTION 6.2. Repurchase Events. Case Credit hereby covenants and agrees with
CNHCR for the benefit of CNHCR, the Indenture Trustee, the Noteholders, the
Trustee and the Certificateholders that the occurrence of a breach of any of
Case Credit's representations and warranties contained in Section 3.2(b),
shall constitute events obligating Case Credit to repurchase any Case
Receivable and, with respect to a breach of any of Case Credit's
representations and warranties contained in Sections 3.2(b)(xvi), (xvii),
(xix), (xx), (xxv) and (xxvi), any NH Receivable materially and adversely
affected by any such breach ("Repurchase Events") at the Purchase Amount from
CNHCR or from the Trust. Except as set forth in Section 5.5, the repurchase
obligation of Case Credit shall constitute the sole remedy of CNHCR, the
Indenture Trustee, the Noteholders, the Trust, the Trustee or the
Certificateholders against Case Credit with respect to any Repurchase Event.
SECTION 6.3. CNHCR Assignment of Repurchased Receivables. With respect to all
Receivables repurchased by Case Credit pursuant to this Agreement, CNHCR shall
sell, transfer, assign, set over and otherwise convey to Case Credit, without
18
recourse, representation or warranty, all of CNHCR's right, title and interest
in, to and under such Receivables, and all security and documents relating
thereto.
SECTION 6.4. Trust. Case Credit acknowledges and agrees that: (a) CNHCR will,
pursuant to the Sale and Servicing Agreement, sell the Case Receivables to the
Trust and assign its rights under this Agreement to the Trust, (b) the Trust
will, pursuant to the Indenture, assign such Case Receivables and such rights
to the Indenture Trustee and (c) the representations, warranties and covenants
contained in this Agreement and the rights of CNHCR under this Agreement,
including under Section 6.2, are intended to benefit the Trust, the
Certificateholders, the Counterparties and the Noteholders. Case Credit hereby
consents to all such sales and assignments and agrees that enforcement of a
right or remedy hereunder by the Indenture Trustee shall have the same force
and effect as if the right or remedy had been enforced or executed by CNHCR.
SECTION 6.5. Amendment. This Agreement may be amended from time to time, with
prior written notice to the Rating Agencies, by a written amendment duly
executed and delivered by Case Credit and CNHCR, without the consent 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
of this Agreement or of modifying in any manner the rights of the Noteholders
or the Certificateholders; provided, however, that such amendment will not in
the Opinion of Counsel, materially and adversely affect the interest of any
Noteholder or Certificateholder.
This Agreement may also be amended from time to time by Case Credit and CNHCR,
with prior written notice to the Rating Agencies, with the written consent of
(x) Noteholders holding Notes evidencing at least a majority of the Note
Balance and (y) the Holders of Certificates evidencing at least 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 may: (i)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Case Receivables or distributions that
are required to be made for the benefit of the Noteholders or the
Certificateholders or (ii) reduce the aforesaid percentage of the Notes and
Certificates that are required to consent to any such amendment, without the
consent of the holders of all the outstanding Notes and Certificates.
It shall not be necessary for the consent of Certificateholders or Noteholders
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.
19
SECTION 6.6. Accountants' Letters. (a) A firm of independent certified public
accountants will review the characteristics of the Receivables described in
the Schedule of Receivables and will compare those characteristics to the
information with respect to the Receivables contained in the Prospectus, (b)
Case Credit will cooperate with CNHCR and such accounting firm in making
available all information and taking all steps reasonably necessary to permit
such accounting firm to complete the review set forth in clause (a) and to
deliver the letters required of them under the Underwriting Agreement, (c)
such accounting firm will deliver to CNHCR a letter, dated the date of the
Prospectus, in the form previously agreed to by Case Credit, NH Credit and
CNHCR, with respect to the financial and statistical information contained in
the Prospectus and with respect to such other information as may be agreed in
the form of the letter.
SECTION 6.7. Waivers. No failure or delay on the part of CNHCR in exercising
any power, right or remedy under this Agreement, the Case Assignment or any
Case Subsequent Transfer Assignment shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power, right or remedy
preclude any other or further exercise thereof or the exercise of any other
power, right or remedy.
SECTION 6.8. Notices. All demands, notices and communications under this
Agreement shall be in writing, personally delivered or mailed by certified
mail, return receipt requested, and shall be deemed to have been duly given
upon receipt: (a) in the case of Case Credit, to Case Credit Corporation, 000
Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxx 00000, Attention: Treasurer (telephone (262)
000-0000); (b) in the case of CNHCR, to CNH Capital Receivables Inc., 000
Xxxxx Xxxxxxxx Xxxx, Xxxx Xxxxxx, Xxxxxxxx 00000, Attention: Treasurer
(telephone (000) 000-0000); (c) in the case of the Rating Agencies, at their
respective addresses set forth in Section 10.3 of the Sale and Servicing
Agreement; or, as to each of the foregoing, at such other address as shall be
designated by written notice to the other parties.
SECTION 6.9. Costs and Expenses. Case Credit will pay all expenses incident to
the performance of its obligations under this Agreement and Case Credit agrees
to pay all reasonable out-of-pocket costs and expenses of CNHCR, excluding
fees and expenses of counsel, in connection with the perfection as against
third parties of CNHCR's right, title and interest in, to and under the Case
Receivables and the enforcement of any obligation of Case Credit hereunder.
SECTION 6.10. Representations of Case Credit and CNHCR. The respective
agreements, representations, warranties and other statements by Case Credit
and CNHCR set forth in or made pursuant to this Agreement shall remain in full
force and effect and will survive the closing under Section 2.4.
20
SECTION 6.11. Confidential Information. CNHCR agrees that it will neither use
nor disclose to any Person the names and addresses of the Obligors, except in
connection with the enforcement of CNHCR's rights hereunder, under the Case
Receivables, under the Sale and Servicing Agreement or the Indenture or any
other Basic Document or as required by any of the foregoing or by law.
SECTION 6.12. Headings and Cross-References. The various headings in this
Agreement are included for convenience only and shall not affect the meaning
or interpretation of any provision of this Agreement. References in this
Agreement to Section names or numbers are to such Sections of this Agreement
unless otherwise expressly indicated.
SECTION 6.13. Governing Law. This Agreement, the Case Assignment, and each
Case Subsequent Transfer Assignment shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
or thereunder shall be determined in accordance with such laws.
SECTION 6.14. Counterparts. This Agreement may be executed in two or more
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute but one and
the same instrument.
SECTION 6.15. 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.
(signature pages follow)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers duly authorized as of the date and year
first above written.
CNH CAPITAL RECEIVABLES INC.
By: /s/ Xxxxx X'Xxxxx
-------------------------
Name: Xxxxx X'Xxxxx
Title: Assistant Treasurer
CASE CREDIT CORPORATION,
By: /s/ Xxxxx X'Xxxxx
-------------------------
Name: Xxxxx X'Xxxxx
Title: Assistant Treasurer
S-1
EXHIBIT A
to Case Purchase Agreement
FORM OF
CASE ASSIGNMENT
---------------
For value received, in accordance with and subject to the Case Purchase
Agreement dated as of May 1, 2003 (the "Case Purchase Agreement"), between the
undersigned and CNH Capital Receivables Inc. ("CNHCR"), the undersigned does
hereby sell, assign, transfer, set over and otherwise convey unto CNHCR,
without recourse, all of its right, title, interest and, with respect to any
Contracts that are Leases, obligations in, to and under: (a) the Case
Purchased Contracts, which are listed on Schedule A hereto, including all
documents constituting chattel paper included therewith, and all obligations
of the Obligors thereunder, including all moneys paid thereunder on or after
the Initial Cutoff Date, (b) the security interests in the Financed Equipment
granted by Obligors pursuant to the Case Purchased Contracts and any other
interest of the undersigned in such Financed Equipment, (c) any proceeds with
respect to the Case Purchased Contracts from claims on insurance policies
covering Financed Equipment or Obligors, (d) any proceeds from recourse to
Dealers with respect to the Case Purchased Contracts other than any interest
in the Dealers' reserve accounts maintained with Case Credit Corporation, (e)
any Financed Equipment that shall have secured the Case Purchased Contracts
and that shall have been acquired by or on behalf of CNHCR, (f) any True Lease
Equipment that is subject to any Case Purchased Contract, and (g) the proceeds
of any and all of the foregoing. The foregoing sale does not constitute and is
not intended to result in any assumption by CNHCR of any obligation (other
than the covenant of quiet enjoyment benefiting the Obligors under any
Contracts that are Leases) of the undersigned to the Obligors, insurers or any
other person in connection with the Case Purchased Contracts, Receivables
Files, any insurance policies or any agreement or instrument relating to any
of them.
This Case Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the Case
Purchase Agreement and is to be governed in all respects by the Case Purchase
Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the Case Purchase Agreement.
A-1
IN WITNESS WHEREOF, the undersigned has caused this Case Assignment to be
duly executed as of May 1, 2003.
CASE CREDIT CORPORATION
By: __________________________________
Name:
Title:
A-2
EXHIBIT B
to Case Purchase Agreement
FORM OF
CASE SUBSEQUENT TRANSFER ASSIGNMENT
For value received, in accordance with and subject to the Case Purchase
Agreement dated as of May 1, 2003 (the "Case Purchase Agreement"), between
Case Credit Corporation, a Delaware corporation ("Case Credit"), and CNH
Capital Receivables Inc., a Delaware corporation ("CNHCR"), Case Credit does
hereby sell, transfer, assign, set over and otherwise convey to CNHCR, without
recourse, all of its right, title, interest and, with respect to any Contracts
that are Leases, obligations in, to and under: (a) the Subsequent Case
Receivables, with an aggregate Contract Value equal to $ , listed on Schedule
A hereto, including all documents constituting chattel paper included
therewith, and all obligations of the Obligors thereunder, including all
moneys paid thereunder on or after the Subsequent Cutoff Date, (b) the
security interests in the Financed Equipment granted by Obligors pursuant to
such Subsequent Case Receivables and any other interest of Case Credit in such
Financed Equipment, (c) any proceeds with respect to such Subsequent Case
Receivables from claims on insurance policies covering Financed Equipment or
Obligors, (d) any proceeds from recourse to Dealers with respect to such
Subsequent Case Receivables other than any interest in the Dealers' reserve
accounts maintained with Case Credit, (e) any Financed Equipment that shall
have secured any such Subsequent Case Receivables and that shall have been
acquired by or on behalf of CNHCR, (f) any True Lease Equipment that is
subject to any Subsequent Case Receivable, and (g) the proceeds of any and all
of the foregoing. The foregoing sale does not constitute and is not intended
to result in any assumption by CNHCR of any obligation (other than the
covenant of quiet enjoyment benefiting the Obligors under any Contracts that
are Leases) of Case Credit to the Obligors, insurers or any other person in
connection with such Subsequent Case Receivables, Receivable Files, any
insurance policies or any agreement or instrument relating to any of them.
This Case Subsequent Transfer Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of Case Credit
contained in the Case Purchase Agreement (including the Officers' Certificate
of Case Credit accompanying this Agreement) and is to be governed in all
respects by the Case Purchase Agreement.
Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to them in the Case Purchase Agreement.
B-1
IN WITNESS WHEREOF, the undersigned has caused this Case Subsequent Transfer
Assignment to be duly executed as of the __ day of __________, _____.
CASE CREDIT CORPORATION
By: __________________________________
Name:
Title:
B-2
SCHEDULE A
to Case Subsequent Transfer Assignment
SCHEDULE OF SUBSEQUENT CASE RECEIVABLES
---------------------------------------
[See attached list]
ANNEX A
to Case Subsequent Transfer Assignment
OFFICERS' CERTIFICATE
---------------------
We, the undersigned officers of Case Credit Corporation (the "Company"), do
hereby certify, pursuant to Section 4.1(b)(xiii) of the Case Purchase
Agreement dated as of May 1, 2003, among the Company, and CNH Capital
Receivables Inc. (the "Case Purchase Agreement"), that (i) all of the
conditions precedent to the transfer to CNHCR of the Subsequent Case
Receivables listed on Schedule A to the Case Subsequent Transfer Assignment
delivered herewith, and the other property and rights related to such
Subsequent Case Receivables as described in Section 2.2 of the Case Purchase
Agreement, have been satisfied on or prior to the related Subsequent Transfer
Date and (ii) each statement of fact set forth in any officers' certificate
executed by an officer of the Company in connection with an Opinion of Counsel
delivered on the Closing Date with respect to a transfer of, or a security
interest in, the Case Receivables shall be true and correct as of the date
hereof with respect to the Subsequent Case Receivables listed on the
aforementioned Schedule A.
Capitalized terms used but not defined herein shall have the meanings assigned
to such terms in the Case Purchase Agreement.
IN WITNESS WHEREOF, the undersigned have caused this certificate to be duly
executed this ___ day of ___________, ________.
By: _____________________________________
Name:____________________________________
Title:___________________________________
By: _____________________________________
Name:____________________________________
Title:___________________________________
Schedule P
1. General. The Case Purchase Agreement creates, or with respect to Case
Receivables that are Subsequent Receivables upon the transfer of such
Subsequent Receivables pursuant to the Subsequent Transfer Assignment will
create, a valid and continuing security interest (as defined in the UCC) in
the Case Receivables in favor of CNHCR, which, (a) is enforceable upon
execution of the Case Purchase Agreement against creditors of and purchasers
from Case Credit, as such enforceability may be limited by applicable Debtor
Relief Laws, now or hereafter in effect, and by general principles of equity
(whether considered in a suit at law or in equity), and (b) upon filing of the
financing statements described in clause 4 below will be prior to all other
Liens (other than Liens permitted pursuant to clause 3 below).
2. General. The Case Receivables constitute "tangible chattel paper" within
the meaning of UCC Section 9-102. Case Credit has taken all steps necessary to
perfect its security interest against the Obligor in the Financed Equipment
securing the Case Receivables.
3. Creation. Immediately prior to the conveyance of the Case Receivables
pursuant to the Case Purchase Agreement, Case Credit owns and has good and
marketable title to, or has a valid security interest in, the Case Receivables
free and clear of any Lien, claim or encumbrance of any Person.
4. Perfection. Case Credit has caused or will have caused, within ten days of
the Closing Date, the filing of all appropriate financing statements in the
proper filing office in the appropriate jurisdictions under applicable law in
order to perfect the security interest granted to CNHCR under the Case
Purchase Agreement in the Case Receivables. With respect to the Case
Receivables that constitute tangible chattel paper, Case Credit has in its
possession the original copies of such tangible chattel paper that constitute
or evidence the Case Receivables, and Case Credit has caused, or will have
caused within ten days of the effective date of the Case Purchase Agreement,
the filing of financing statements against Case Credit and such originator in
favor of CNHCR in connection herewith describing such Case Receivables and
containing a statement that: "A purchase of or security interest in any
collateral described in this financing statement will violate the rights of
CNHCR."
5. Priority. Other than the security interests granted to CNHCR pursuant to
the Case Purchase Agreement and the Case Liquidity Receivables Purchase
Agreement, Case Credit has not pledged, assigned, sold, granted a security
interest in, or otherwise conveyed any of the Case Receivables. Case Credit
has not authorized the filing of and is not aware of any financing statements
against Case Credit that include a description of collateral covering the Case
Receivables other than any financing statement (i) relating to the security
interests granted to CNHCR under the Case Purchase Agreement and the Case
Liquidity Receivables Purchase Agreement (ii) that has been terminated, or
(iii) that has been granted pursuant to the terms of the Basic Documents. None
of the tangible chattel paper that constitutes or evidences the Case
Receivables has any marks or notations indicating that they have pledged,
assigned or otherwise conveyed to any Person other than Indenture Trustee.
