EXECUTION COPY
CNH EQUIPMENT TRUST 2002-A
CASE PURCHASE AGREEMENT
between
CASE CREDIT CORPORATION
and
CNH CAPITAL RECEIVABLES INC.
Dated as of March 1, 2002
vii
CASE PURCHASE AGREEMENT (as amended or supplemented from
time to time, this "Agreement") dated as of March 1, 2002 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 $67,639,501.99 (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 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
$330,290,526.53 (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 2002-A (the "Trust"), which Trust will issue Asset Backed
Certificates representing non-assessable, fully paid, undivided
interests in, and 2.0825% Class A-1 Asset Backed Notes, 3.1300%
Class A-2 Asset Backed Notes, Floating Rate Class A-3 Asset Backed
Notes, Floating Rate Class A-4 Asset Backed Notes, Floating Rate
Class B Asset Backed Notes and Floating Rate Class C 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
2002-A 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 $397,930,028.52 (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 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
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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
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:
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(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, 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:
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(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 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.
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(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 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.
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(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 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.
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(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 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.
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(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 47.5 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.
(xx) Financing. Approximately 58.25% of the aggregate Statistical
Contract Value of the Initial Receivables, constituting 59.48% 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 71.98% of the aggregate
Statistical Contract Value of the Initial Receivables,
constituting 74.55% 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 $674,351,153.55. 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.
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(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 47.55% of the
Initial Aggregate Statistical Contract Value had annual scheduled
payments, (B) Initial Receivables having an aggregate Statistical
Contract Value equal to 3.15% of the Initial Aggregate
Statistical Contract Value had semi-annual scheduled payments,
(C) Initial Receivables having an aggregate Statistical Contract
Value equal to 0.77% of the Initial Aggregate Statistical
Contract Value had quarterly scheduled payments, (D) Initial
Receivables having an aggregate Statistical Contract Value equal
to 42.49% of the Initial Aggregate Statistical Contract Value had
monthly scheduled payments, and (E) Initial Receivables having an
aggregate Statistical Contract Value equal to 6.04% of the
Initial Aggregate Statistical Contract Value had irregularly
scheduled payments.
(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.
12
(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.
(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.
13
(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 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;
14
(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
(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:
15
(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 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.
16
(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 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.
17
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 $352,897,821.32 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 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.
18
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 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.
19
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.
20
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)
21
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/ Xxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President & Treasurer
CASE CREDIT CORPORATION
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President & 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 March 1, 2002 (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 March ___, 2002.
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 March 1, 2002 (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 March 1, 2002, 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.
