Execution Copy
PERFORMANCE GUARANTY
THIS PERFORMANCE GUARANTY made as of the 1st day of March 2002
BETWEEN:
IHF - INTERNAZIONALE HOLDING FIAT S.A., a corporation incorporated
under the laws of Switzerland,
(hereinafter referred to as the "Performance Guarantor"),
- and -
BANK ONE, NATIONAL ASSOCIATION, as indenture trustee for the benefit
of the Noteholders,
(in such capacity, hereinafter referred to as the "Indenture Trustee")
WHEREAS Case Credit Corporation, a Delaware corporation ("Case Credit"),
CNH Capital Receivables Inc., a Delaware corporation ("CNHCR"), and CNH
Equipment Trust 2002-A, a Delaware business trust (the "Trust"), have
entered into a Sale and Servicing Agreement dated as of the date hereof (as
the same may be amended, restated, replaced, supplemented or otherwise
modified from time to time, the "Sale and Servicing Agreement") in
connection with an asset securitization transaction;
AND WHEREAS Case Credit is an Affiliate of the Performance Guarantor and is
the initial Servicer under the Sale and Servicing Agreement;
AND WHEREAS the Performance Guarantor has agreed to provide this guaranty
for the benefit of the Indenture Trustee, as indenture trustee under the
Indenture dated as of the date hereof between the Trust and the Indenture
Trustee.
AND WHEREAS the Performance Guarantor has agreed to guarantee for the
benefit of the Indenture Trustee the performance and payment of Case
Credit's covenants, agreements, liabilities and obligations under the Sale
and Servicing Agreement but only in its capacity as Servicer, on the terms
and conditions set forth herein.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
premises and the covenants and agreements of the parties herein contained
and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by each party, the parties hereby covenant
and agree as follows:
ARTICLE 1
INTERPRETATION
1.1 Definitions
In this Agreement, terms used herein and not otherwise defined shall have
the meanings ascribed thereto in the Sale and Servicing Agreement and the
following terms shall have the following meanings:
"Agreement" means this agreement, as the same may be amended, supplemented,
modified, restated or replaced from time to time, together with all
Schedules hereto and the expressions "hereof'", "herein", "hereto",
"hereunder" and "hereby" and similar expressions refer to this Agreement
and not to any particular Article, Section, paragraph, subparagraph or
clause hereof.
"Guaranteed Obligations" shall have the meaning ascribed thereto in
Section 2.1.
"Guarantor Event" means (i) the long term credit rating assigned to the
senior unsecured debt obligations of Case Credit Corporation is less than
BBB+ by Standard and Poor's and Baa1 by Xxxxx'x Investors Service, Inc. (or
its successor) or (ii) the Seller is not a direct or indirect wholly owned
subsidiary of Case Credit Corporation.
1.2 Extended Meanings
Words importing the singular shall include the plural and vice versa, words
importing gender shall include all genders, and words importing natural
persons shall include all Persons. Any defined term used in the singular
preceded by "any" or "each" shall be taken to indicate any number of the
members of the relevant class. Unless otherwise specified, any reference in
this Agreement to any statute will include all regulations made thereunder
or in connection therewith from time to time, and will include such statute
as the same may be amended, supplemented or replaced from time to time.
Every use of the word "including" herein shall be construed as meaning
"including, without limitation".
1.3 Headings, Sections, Etc.
The division of this Agreement into Articles and Sections, the insertion of
headings and the provision of a table of contents are for convenience of
reference only and shall not affect the construction or interpretation of
this Agreement. Unless something in the subject matter or context is
inconsistent therewith, references herein to Articles, Sections or
Schedules are references to Articles, Sections and Schedules of or to this
Agreement.
1.4 Payments
Unless otherwise indicated, all amounts required hereby to be paid to any
party or deposited to any account are to be paid or deposited, as the case
may be, in immediately available funds at the place specified for such
payment or deposit.
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1.5 Non-Business Days
Unless provided to the contrary herein, if any payment to be made hereunder
shall be due, any period of time would begin or end, any calculation is to
be made or any other action is to be taken on, or as of, or from a period
ending on, a day other than a Business Day, such payment shall be made,
such period of time shall begin or end, such calculation shall be made and
such other actions shall be taken, as the case may be, on or as of the next
succeeding Business Day.
ARTICLE 2
PERFORMANCE GUARANTY
2.1 Performance Guaranty
The Performance Guarantor hereby unconditionally and irrevocably guarantees
to the Indenture Trustee, upon the occurrence and continuance of each
Guarantor Event, the due and punctual performance and observance by Case
Credit in its capacity as Servicer of all of the terms, covenants,
conditions, agreements, undertakings, indemnities and obligations on the
part of Case Credit to be performed or observed by Case Credit under the
Sale and Servicing Agreement by Case Credit in its capacity as Servicer in
accordance with the terms hereof and thereof (all such terms, covenants,
conditions, agreements, undertakings, indemnities and obligations on the
part of Case Credit in its capacity as Servicer to be performed and
observed, being collectively called the "Guaranteed Obligations"). In the
event that Case Credit shall fail in any manner whatsoever to perform or
observe any of the Guaranteed Obligations when the same shall be required
to be performed or observed, the Performance Guarantor will itself duly and
punctually perform and observe, or will cause the due and punctual
performance and observance of, the Guaranteed Obligations, and it shall not
be a condition to the accrual of the obligation of the Performance
Guarantor hereunder to perform or observe any of the Guaranteed Obligations
(or to cause the same to be performed or observed) that the Indenture
Trustee shall have first made any request of or demand upon or give any
notice to the Performance Guarantor or to Case Credit or have initiated any
action or proceeding against the Performance Guarantor or Case Credit in
respect thereof. The Indenture Trustee may proceed to enforce the
obligations of the Performance Guarantor under this Section 2.1 without
first pursuing or exhausting any right or remedy which the Indenture
Trustee may have against Case Credit, any other Person, the Collateral or
any other property.
2.2 Validity of the Performance Guarantor's Obligations
The obligations of the Performance Guarantor under this Agreement are
continuing, unconditional and absolute and, without limiting the generality
of the foregoing, the validity and enforceability of this Agreement shall
not be impaired or affected by:
(a) any extension, modification or renewal of, or indulgence
with respect to, or substitutions for, the Guaranteed
Obligations or any part thereof or any agreement relating
thereto at any time;
(b) any failure or omission to enforce any right, power or
remedy with respect to the Guaranteed Obligations or any
part thereof or any agreement relating thereto, or any
collateral securing the Guaranteed Obligations or any
part thereof;
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(c) any waiver of any right, power or remedy or of any
default with respect to the Guaranteed Obligations or any
part thereof or any agreement relating thereto or with
respect to any collateral securing the Guaranteed
Obligations or any part thereof;
(d) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without
consideration, of any collateral securing the Guaranteed
Obligations or any part thereof, any other guarantees
with respect to the Guaranteed Obligations or any part
thereof, or any other obligation of any person or entity
with respect to the Guaranteed Obligations or any part
thereof;
(e) the enforceability or validity of the Guaranteed
Obligations or any part thereof or the genuineness,
enforceability or validity of any agreement relating
thereto or with respect to any collateral securing the
Guaranteed Obligations or any part thereof; or
(f) the application of payments received from any source to
the payment of indebtedness of Case Credit to the
Indenture Trustee other than the Guaranteed Obligations,
any part thereof or amounts which are not covered by this
Agreement even though the Indenture Trustee might
lawfully have elected to apply such payments to any part
or all of the Guaranteed Obligations or to amounts which
are not covered by this Agreement,
all whether or not the Performance Guarantor shall have had notice or
knowledge of any act or omission referred to in the foregoing clauses (a)
through (f), inclusive, of this Section 2.2. It is agreed that the
Performance Guarantor's liability and obligation hereunder is several and
independent of any other guarantees or other obligations at any time in
effect with respect to the Guaranteed Obligations or any part thereof and
that the Performance Guarantor's liability and obligation hereunder may be
enforced regardless of the existence, validity, enforcement or
non-enforcement of any such other guarantees or other obligations.
2.3 Subrogation
Until the Guaranteed Obligations are paid or performed in full, the
Performance Guarantor shall not exercise any right of subrogation with
respect to any payments made by it pursuant to this Agreement. The
Performance Guarantor waives any benefit of the collateral, if any, which
may from time to time secure the Guaranteed Obligations or any part thereof
and authorizes the Indenture Trustee to take any action or exercise any
remedy with respect thereto, which the Indenture Trustee in its sole
discretion shall determine, without notice to the Performance Guarantor.
2.4 Authorization by Performance Guarantor
The Trust may continue to purchase Receivables and other CNHCR Assets from
time to time pursuant to the Sale and Servicing Agreement and assign such
CNHCR Assets to the Indenture Trustee pursuant to the Indenture, all
without notice to or authorization from the Performance Guarantor
regardless of Case Credit's financial or other condition at the time of any
such purchase. The Performance Guarantor acknowledges to the Indenture
Trustee that it has adequate means to obtain from Case Credit on a
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continuing basis all information concerning the financial condition of Case
Credit and the collectibility of the CNHCR Assets, and agrees with the
Indenture Trustee that the Indenture Trustee shall not have any obligation
to disclose or discuss with the Performance Guarantor any information which
the Indenture Trustee has respecting the financial condition of Case Credit
or the collectibility of any CNHCR Assets.
2.5 Changes in Case Credit
This Agreement shall not be discharged or otherwise affected by any change
in the name of Case Credit or in the objects, capital structure or
constitution of Case Credit, or by Case Credit being amalgamated or merged
with another corporation, but shall, notwithstanding any such event,
continue to apply to all Guaranteed Obligations whether theretofore or
thereafter incurred, and in the case of Case Credit being merged,
consolidated or amalgamated with another corporation, this Agreement shall
apply to the liabilities of the resulting corporation and the terms "Case
Credit" and "the Servicer" (for as long as Case Credit is the Servicer)
shall include each such resulting corporation.
2.6 Taxes
All payments to be made by the Performance Guarantor hereunder shall be
made in full without set-off or counter-claim, free and clear of any fees,
levies, duties, deductions, withholdings taxes or other restrictions or
conditions of any nature whatsoever. If the Performance Guarantor is
required by law to make any deduction or withholding on account of Taxes or
otherwise from any such payment, the sum due from it in respect of such
payment shall be increased to the extent necessary to ensure that after the
making of such deduction or withholding, the Indenture Trustee receives a
net sum equal to the sum which it would otherwise have received had no
deduction or withholding been made, and the Performance Guarantor shall
indemnify the Indenture Trustee on an after tax basis with respect to any
such deduction or withholding including with respect to any taxes payable
by the Indenture Trustee on any increased amounts payable under this
Section 2.6.
ARTICLE 3
representations and warranties of
performance guarantor
3.1
The Performance Guarantor represents and warrants to the Indenture Trustee
as follows which representations and warranties shall continue until the
Guaranteed Obligations have been performed, observed or paid in full:
(a) the Performance Guarantor is a corporation validly
existing under the laws of its jurisdiction of
incorporation, has full power and authority to own its
properties and assets and to carry on its businesses in
every jurisdiction in which it is currently carrying on
business where the failure to be so qualified would have
a material adverse effect on the ability of the
Performance Guarantor to perform its obligations under
this Agreement;
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(b) the Performance Guarantor has full corporate power and
capacity to execute and deliver this Agreement and to
perform all of its obligations hereunder;
(c) the Performance Guarantor has taken all necessary
action to authorize the execution and delivery of this
Agreement and the performance of its obligations
hereunder;
(d) this Agreement is a legal and binding obligation of
the Performance Guarantor and is enforceable against
the Performance Guarantor in accordance with its terms.
(e) the consummation of the transactions contemplated by
this Agreement and the fulfilment of the terms thereof 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 or both) a default under the
constating documents of the Performance Guarantor, or any
indenture, agreement or other instrument to which the
Performance Guarantor is a party or by which it shall be
bound; or result in the creation or imposition of any
encumbrance upon any of its properties pursuant to the
terms of any such indenture, agreement or other
instrument; or violate any law, order, rule or regulation
applicable to the Performance Guarantor; and
(f) there are no actions, suits or proceedings pending or,
to the knowledge of the Performance Guarantor, threatened
against the Performance Guarantor or any of its
undertakings, property and assets, at law or in equity or
before any arbitrator of by an governmental authority,
body, agency, commission or instrumentality having
jurisdiction in respect of which could materially and
adversely affect the ability of the Performance Guarantor
to perform any of its obligations hereunder.
3.2 Covenants of the Performance Guarantor
The Performance Guarantor covenants with the Indenture Trustee that it
shall:
(a) comply in all material respects with all laws, rules,
regulations and orders applicable to it and all or any of
its businesses and properties;
(b) preserve and maintain its corporate existence;
(c) furnish to the Indenture Trustee:
(i) as soon as available and in any event within 150
days after the end of each semi-annual period in
each fiscal year, the balance sheet of Fiat
S.p.A. as of the end of such semi-annual period
and any statements of income, retained earnings
and cash flows for the period commencing at the
end of the previous semi-annual period ending
with the end of such semi-annual period,
certified by the senior financial officer of
Fiat S.p.A. as to the accuracy of the
information contained therein; and
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(ii) as soon as available and in any event within 180
days after the end of each fiscal year, a copy
of the financial statements of the Performance
Guarantor for such year, such financial
statements to contain at least a balance sheet,
an earning statement and a statement of retained
earnings, and to be certified by the senior
financial officer of the Performance Guarantor
as to the accuracy of the information contained
therein.
ARTICLE 4
MISCELLANEOUS
4.1 Amendments, Waivers, Etc.
No termination of this Agreement or any amendment or waiver of any
provision of this Agreement, or any consent to any departure by any party
therefrom or any approval or direction to be given by any party hereunder
shall be effective in whole or in part unless the termination, amendment,
waiver, consent, approval or direction shall be (a) in writing and signed
by the Indenture Trustee and the Performance Guarantor and (b) approved by
the Rating Agencies and Noteholders holding Notes evidencing not less than
a majority of the Note Balance, and then such waiver, consent, approval or
direction shall be effective only in the specific instance and for the
specific purpose for which it was given.
4.2 No Waiver; Remedies
No failure on the part of any party to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any right hereunder preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
4.3 Time of the Essence
Time shall be of the essence of this Agreement and of every provision
hereof.
4.4 Notices
All notices or other communications authorized or required to be given
pursuant to this Agreement, or pursuant to which any rights or obligations
may arise hereunder, shall be in writing (including telecopied
communication and such other method of recorded or recordable electronic
communications as to which the parties may hereafter agree) and shall be
either personally delivered or sent by telecopier as follows:
(a) to the Indenture Trustee at:
Bank One, National Association
0 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Corporate Trust Services
Fax No.: (000) 000-0000
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(b) to the Performance Guarantor at:
IHF - INTERNATIONALE HOLDING FIAT S.A.
Xxxx Xxxxxxxx, 00
0000 - Xxxxxx Xxxxxxxx (XX)
Attention: Finance Director
Fax No.: 00 00 0000000
Any notice or other communication given by personal delivery will be
conclusively deemed to have been given and received on the day of actual
delivery thereof and, if given by telecopier, on the day of transmittal
thereof if given during the normal business hours of the recipient and on
the next Business Day if not given during such business hours on any day. A
party may change its address for receipt of notices or other communications
hereunder by giving notice thereof to each of the other parties in the
manner aforesaid.
4.5 Binding Effect, Assignability, Etc.
This Agreement shall be binding upon and enure to the benefit of the
Indenture Trustee and their respective successors and assigns. The
Performance Guarantor may not assign its rights or obligations hereunder or
any interest herein without obtaining the prior written consent of the
Indenture Trustee hereto.
4.6 Governing Law
This Guaranty 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 shall be
determined in accordance with such laws.
4.7 Consent to Jurisdiction; Waiver of Immunities
(a) Each of the parties hereby irrevocably submits to the
jurisdiction of any court sitting in the State of New
York in any action or proceeding arising out of or
relating to this Agreement, and each of the parties
hereby irrevocably agrees that all claims in respect of
such action or proceeding may be heard and determined in
such court. Each of the parties hereby irrevocably
waives, to the extent permitted by law, the defence of an
inconvenient forum to the maintenance of such action or
proceeding. Each of the parties agrees that a final
judgment in any action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
(b) Nothing in this Section 4.7 shall affect (i) the right to
serve legal process in any other manner permitted by Law,
or (ii) the right of any party to bring any action or
proceeding in the courts of other jurisdictions.
(c) To the extent that any party has or hereafter may acquire
any immunity from the jurisdiction of any court or from
any legal process (whether through service or notice,
attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself
or its property, it hereby irrevocably waives, to the
extent permitted by law, such immunity in respect of its
obligations hereunder.
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4.8 Severability
Any provision hereof that is prohibited or unenforceable in whole or in
part in any jurisdiction shall, as to such provision and such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of such provision in any other
jurisdiction.
4.9 Further Assurances
Each of the parties, upon the request of any other party, shall do,
execute, acknowledge and deliver or cause to be done, executed,
acknowledged or delivered all such further acts, deeds, documents,
assignments, transfers, conveyances, powers of attorney and assurances as
may be reasonably necessary or desirable to effect complete consummation of
the objects and intent of and the transactions contemplated by this
Agreement.
4.10 Counterparts
This Agreement may be executed in counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same instrument. For all purposes of this
Agreement and all other documents and agreements contemplated hereby, the
signature of any party hereto or thereto, evidenced by a telecopy showing
such signature or other electronically transmitted version of such
signature, shall constitute conclusive proof for all purposes of the
signature of such party to such documents and agreements, to the same
extent in all respects as a copy of such documents and agreements showing
the original signature of such party.
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IN WITNESS WHEREOF the Performance Guarantor has executed this Agreement.
IHF - INTERNAZIONALE HOLDING FIAT S.A.
By: /s/ Xxxxxx Giamboni
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Name: Xxxxxx Giamboni
Title: Deputy Manager
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Proxy Holder
