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CNH EQUIPMENT TRUST 2000-B
CASE PURCHASE AGREEMENT
between
CASE CREDIT CORPORATION
and
CNH CAPITAL RECEIVABLES INC.
Dated as of September 1, 2000
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TABLE OF CONTENTS
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Page
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ARTICLE I
Certain Definitions
SECTION 1.1. Definitions.............................................2
SECTION 1.2. Other Definitional Provisions...........................2
ARTICLE II
Conveyance of Case Receivables
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
SECTION 3.1. Representations and Warranties of CNHCR.................6
SECTION 3.2. Representations and Warranties of Case Credit...........7
ARTICLE IV
Conditions
SECTION 4.1. Conditions to Obligation of CNHCR......................14
SECTION 4.2. Conditions to Obligation of Case Credit................17
ARTICLE V
Covenants of Case Credit
SECTION 5.1. Protection of Right, Title and Interest. ..............17
SECTION 5.2. Other Liens or Interests...............................18
SECTION 5.3. Chief Executive Office.................................18
SECTION 5.4. Costs and Expenses.....................................18
SECTION 5.5. Indemnification........................................18
SECTION 5.6. Transfer of Subsequent Case Receivables................19
ARTICLE VI
Miscellaneous Provisions
SECTION 6.1. Obligations of Case Credit.............................19
SECTION 6.2. Repurchase Events......................................19
SECTION 6.3. CNHCR Assignment of Repurchased Case Receivables.......19
SECTION 6.4. Trust..................................................19
SECTION 6.5. Amendment..............................................20
SECTION 6.6. Accountants' Letters...................................20
SECTION 6.7. Waivers................................................21
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TABLE OF CONTENTS
(continued)
Page
SECTION 6.8. Notices...............................................21
SECTION 6.9. Costs and Expenses....................................21
SECTION 6.10. Representations of Case Credit and CNHCR..............21
SECTION 6.11. Confidential Information..............................21
SECTION 6.12. Headings and Cross-References.........................21
SECTION 6.13. Governing Law.........................................21
SECTION 6.14. Counterparts..........................................22
SECTION 6.15. Severability..........................................22
EXHIBITS
EXHIBIT A Form of Case Assignment
EXHIBIT B Form of Case Subsequent Transfer Assignment
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CASE PURCHASE AGREEMENT (as amended or supplemented from time to
time, this "Agreement"), dated as of September 1, 2000, 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 Corporation certain Contracts originated by 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 $94,987,048.11 (the "Case Purchased Contracts") as of 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 a Receivables Purchase
Agreement dated as of June 28, 2000 (as amended from time to time, the
"Liquidity Receivables Purchase Agreement"), between Case Credit and CNHCR,
having an aggregate Contract Value of approximately $182,664,749.16 (the
"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 2000-B (the "Trust"), which Trust will issue 7.14%
Asset Backed Certificates representing fractional undivided interests in,
and 6.66% Class A-1 Asset Backed Notes, 6.87% Class A-2 Asset Backed Notes,
6.88% Class A-3 Asset Backed Notes, 6.95% Class A-4 Asset Backed Notes and
7.14% 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 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 2000-B and Bank One,
National Association.
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 $94,987,048.11 (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. 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 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 benefitting 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,
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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 Xxxxx,
Xxxxx & Xxxxx, 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) $70,638,086.77 in cash on the Closing Date, (ii)
$24,348,961.34 in cash, which comprises a portion of the subordinated note
dated September 21, 2000, payable by CNHCR to Case Credit in an amount of
$44,696,249.35 and (iii) the remainder, if any, 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 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.
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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.
(f) No Proceedings. There are no proceedings or
investigations pending or, to CNHCR's best knowledge, threatened,
before any court,
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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,
7
agreement or other instrument to which Case Credit 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 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
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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 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.
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(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 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,
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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 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 other than CNHCR. Immediately
prior to the transfers and assignments contemplated herein and in
the 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
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 47.52 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 55.0 months.
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(xvii) Scheduled Payments and APR. 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, except that Leases also provide for
payments of the related Termination Values, and is either a
Precomputed Receivable or a Simple Interest Receivable; each
Receivable has an APR of at least 3.0%; as of each Subsequent
Cutoff Date, the weighted average of the Initial Cutoff Date APR
and each Subsequent Cutoff Date APR (weighted on the basis of the
respective aggregate Contract Values of the Receivables for which
each such APR is used to calculate the Contract Value) will not be
less than the sum of the weighted average of the Interest Rates
for the Class A Notes and Class B Notes plus the Servicing Fee.
(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.
(xx) Financing. Approximately 57.87% of the aggregate
Statistical Contract Value of the Initial Receivables,
constituting 56.16% of the number of Initial Receivables as of the
Initial Cutoff Date, were secured by or constitute leases 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 65.29% of the
aggregate Statistical Contract Value of the Initial Receivables,
constituting 72.24% 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
$501,087,712.93. Additionally, not more than 50% 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.
12
(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 the State the law of which
governs the perfection of the interest granted in it.
(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 40.68% of
the Initial Aggregate Statistical Contract Value had annual
scheduled payments, (B) Initial Receivables having an aggregate
Statistical Contract Value equal to 4.62% of the Initial Aggregate
Statistical Contract Value had semi-annual scheduled payments, (C)
Initial Receivables having an aggregate Statistical Contract Value
equal to 0.98% of the Initial Aggregate Statistical Contract Value
had quarterly scheduled payments, (D) Initial Receivables having
an aggregate Statistical Contract Value equal to 52.44% of the
Initial Aggregate Statistical Contract Value had monthly scheduled
payments, and (E) Initial Receivables having an aggregate
Statistical Contract Value equal to 1.29% of the Initial Aggregate
Statistical Contract Value had irregularly scheduled payments.
(xxvi) First Payment. As of the Initial Cutoff Date,
Obligors had not yet made the first payment in respect of Initial
Receivables representing less than 52.47% of the Initial Pool
Balance.
(xxvii) 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.
(xxviii) 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
13
and is a "lease intended as security" (rather than a true lease)
within the meaning of Section 1-201(37) of the UCC.
(xxix) Case Credit's Representations. The representations
and warranties of Case Credit contained in Section 3.2(a) are true
and correct.
(xxx) 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.
(xxxi) 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.
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.
(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.
14
(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;
(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
15
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;
(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
16
(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
shall cooperate fully with Case Credit in connection with the
17
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.
SECTION 5.2. Other Liens or Interests. Except for the conveyances
hereunder and pursuant to the 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 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 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
18
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
$499,968,399.49 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 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
19
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.
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
20
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 (000) 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.
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.
21
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.
22
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. Xxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President and Chief
Financial Officer
CASE CREDIT CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President and Chief
Financial Officer
23
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 September 1, 2000 (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, 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 benefitting 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.
24
IN WITNESS WHEREOF, the undersigned has caused this Case
Assignment to be duly executed as of September ___, 2000.
CASE CREDIT CORPORATION
By: ___________________________________
Name:
Title:
25
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 September 1, 2000 (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 benefitting 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.
26
IN WITNESS WHEREOF, the undersigned has caused this Case
Subsequent Transfer Assignment to be duly executed as of the __ day of
September, 2000.
CASE CREDIT CORPORATION
By: _____________________________________
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President &
Chief Financial Officer
27
SCHEDULE A
to Case Subsequent Transfer Assignment
SCHEDULE OF SUBSEQUENT CASE RECEIVABLES
[See attached list]
28
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 September 1, 2000, among the Company, and
CNH Capital Receivables Inc. (the "Case Purchase Agreement"), that 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.
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: _________________________________
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