PERFORMANCE GUARANTY
THIS PERFORMANCE GUARANTY made as of the 1st day of May 2003
BETWEEN:
IHF - INTERNAZIONALE HOLDING FIAT S.A., a corporation
incorporated under the laws of Switzerland,
(hereinafter referred to as the "Performance Guarantor"),
- and -
JPMORGAN CHASE BANK, as indenture trustee for the benefit of
the Noteholders,
(in such capacity, hereinafter referred to as the "Indenture
Trustee")
WHEREAS Case Credit Corporation, a Delaware corporation ("Case Credit"), CNH
Capital Receivables Inc., a Delaware corporation ("CNHCR" or "Seller"), and CNH
Equipment Trust 2003-A, a Delaware statutory trust (the "Trust"), have entered
into a Sale and Servicing Agreement dated as of the date hereof (as the same may
be amended, restated, replaced, supplemented or otherwise modified from time to
time, the "Sale and Servicing Agreement") in connection with an asset
securitization transaction;
AND WHEREAS Case Credit is an Affiliate of the Performance Guarantor and is the
initial Servicer under the Sale and Servicing Agreement;
AND WHEREAS the Performance Guarantor has agreed to provide this guaranty for
the benefit of the Indenture Trustee, as indenture trustee under the Indenture
dated as of the date hereof between the Trust and the Indenture Trustee.
AND WHEREAS the Performance Guarantor has agreed to guarantee for the benefit of
the Indenture Trustee the performance and payment of Case Credit's covenants,
agreements, liabilities and obligations under the Sale and Servicing Agreement
but only in its capacity as Servicer, on the terms and conditions set forth
herein.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises and
the covenants and agreements of the parties herein contained and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by each party, the parties hereby covenant and agree as follows:
ARTICLE 1
INTERPRETATION
1.1 Definitions
In this Agreement, terms used herein and not otherwise defined shall have the
meanings ascribed thereto in the Sale and Servicing Agreement and the following
terms shall have the following meanings:
"Agreement" means this agreement, as the same may be amended, supplemented,
modified, restated or replaced from time to time, together with all Schedules
hereto and the expressions "hereof'", "herein", "hereto", "hereunder" and
"hereby" and similar expressions refer to this Agreement and not to any
particular Article, Section, paragraph, subparagraph or clause hereof.
"Guaranteed Obligations" shall have the meaning ascribed thereto in Section 2.1.
"Guarantor Event" means (i) the long term credit rating assigned to the senior
unsecured debt obligations of Case Credit Corporation is less than BBB+ by
Standard and Poor's and Baa1 by Xxxxx'x Investors Service, Inc. (or its
successor) or (ii) the Seller is not a direct or indirect wholly owned
subsidiary of Case Credit Corporation.
1.2 Extended Meanings
Words importing the singular shall include the plural and vice versa, words
importing gender shall include all genders, and words importing natural persons
shall include all Persons. Any defined term used in the singular preceded by
"any" or "each" shall be taken to indicate any number of the members of the
relevant class. Unless otherwise specified, any reference in this Agreement to
any statute will include all regulations made thereunder or in connection
therewith from time to time, and will include such statute as the same may be
amended, supplemented or replaced from time to time. Every use of the word
"including" herein shall be construed as meaning "including, without
limitation".
1.3 Headings, Sections, Etc.
The division of this Agreement into Articles and Sections, the insertion of
headings and the provision of a table of contents are for convenience of
reference only and shall not affect the construction or interpretation of this
Agreement. Unless something in the subject matter or context is inconsistent
therewith, references herein to Articles, Sections or Schedules are references
to Articles, Sections and Schedules of or to this Agreement.
1.4 Payments
Unless otherwise indicated, all amounts required hereby to be paid to any party
or deposited to any account are to be paid or deposited, as the case may be, in
immediately available funds at the place specified for such payment or deposit.
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1.5 Non-Business Days
Unless provided to the contrary herein, if any payment to be made hereunder
shall be due, any period of time would begin or end, any calculation is to be
made or any other action is to be taken on, or as of, or from a period ending
on, a day other than a Business Day, such payment shall be made, such period of
time shall begin or end, such calculation shall be made and such other actions
shall be taken, as the case may be, on or as of the next succeeding Business
Day.
ARTICLE 2
PERFORMANCE GUARANTY
2.1 Performance Guaranty
The Performance Guarantor hereby unconditionally and irrevocably guarantees to
the Indenture Trustee, upon the occurrence and continuance of each Guarantor
Event, the due and punctual performance and observance by Case Credit in its
capacity as Servicer of all of the terms, covenants, conditions, agreements,
undertakings, indemnities and obligations on the part of Case Credit to be
performed or observed by Case Credit under the Sale and Servicing Agreement by
Case Credit in its capacity as Servicer in accordance with the terms hereof and
thereof (all such terms, covenants, conditions, agreements, undertakings,
indemnities and obligations on the part of Case Credit in its capacity as
Servicer to be performed and observed, being collectively called the "Guaranteed
Obligations"). In the event that Case Credit shall fail in any manner whatsoever
to perform or observe any of the Guaranteed Obligations when the same shall be
required to be performed or observed, the Performance Guarantor will itself duly
and punctually perform and observe, or will cause the due and punctual
performance and observance of, the Guaranteed Obligations, and it shall not be a
condition to the accrual of the obligation of the Performance Guarantor
hereunder to perform or observe any of the Guaranteed Obligations (or to cause
the same to be performed or observed) that the Indenture Trustee shall have
first made any request of or demand upon or give any notice to the Performance
Guarantor or to Case Credit or have initiated any action or proceeding against
the Performance Guarantor or Case Credit in respect thereof. The Indenture
Trustee may proceed to enforce the obligations of the Performance Guarantor
under this Section 2.1 without first pursuing or exhausting any right or remedy
which the Indenture Trustee may have against Case Credit, any other Person, the
Collateral or any other property.
2.2 Validity of the Performance Guarantor's Obligations
The obligations of the Performance Guarantor under this Agreement are
continuing, unconditional and absolute and, without limiting the generality of
the foregoing, the validity and enforceability of this Agreement shall not be
impaired or affected by:
(a) any extension, modification or renewal of, or indulgence with
respect to, or substitutions for, the Guaranteed Obligations
or any part thereof or any agreement relating thereto at any
time;
(b) any failure or omission to enforce any right, power or remedy
with respect to the Guaranteed Obligations or any part thereof
or any agreement relating thereto, or any collateral securing
the Guaranteed Obligations or any part thereof;
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(c) any waiver of any right, power or remedy or of any default
with respect to the Guaranteed Obligations or any part thereof
or any agreement relating thereto or with respect to any
collateral securing the Guaranteed Obligations or any part
thereof;
(d) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration,
of any collateral securing the Guaranteed Obligations or any
part thereof, any other guarantees with respect to the
Guaranteed Obligations or any part thereof, or any other
obligation of any person or entity with respect to the
Guaranteed Obligations or any part thereof;
(e) the enforceability or validity of the Guaranteed Obligations
or any part thereof or the genuineness, enforceability or
validity of any agreement relating thereto or with respect to
any collateral securing the Guaranteed Obligations or any part
thereof; or
(f) the application of payments received from any source to the
payment of indebtedness of Case Credit to the Indenture
Trustee other than the Guaranteed Obligations, any part
thereof or amounts which are not covered by this Agreement
even though the Indenture Trustee might lawfully have elected
to apply such payments to any part or all of the Guaranteed
Obligations or to amounts which are not covered by this
Agreement,
all whether or not the Performance Guarantor shall have had notice or knowledge
of any act or omission referred to in the foregoing clauses (a) through (f),
inclusive, of this Section 2.2. It is agreed that the Performance Guarantor's
liability and obligation hereunder is several and independent of any other
guarantees or other obligations at any time in effect with respect to the
Guaranteed Obligations or any part thereof and that the Performance Guarantor's
liability and obligation hereunder may be enforced regardless of the existence,
validity, enforcement or non-enforcement of any such other guarantees or other
obligations.
2.3 Subrogation
Until the Guaranteed Obligations are paid or performed in full, the Performance
Guarantor shall not exercise any right of subrogation with respect to any
payments made by it pursuant to this Agreement. The Performance Guarantor waives
any benefit of the collateral, if any, which may from time to time secure the
Guaranteed Obligations or any part thereof and authorizes the Indenture Trustee
to take any action or exercise any remedy with respect thereto, which the
Indenture Trustee in its sole discretion shall determine, without notice to the
Performance Guarantor.
2.4 Authorization by Performance Guarantor
The Trust may continue to purchase Receivables and other CNHCR Assets from time
to time pursuant to the Sale and Servicing Agreement and assign such CNHCR
Assets to the Indenture Trustee pursuant to the Indenture, all without notice to
or authorization from the Performance Guarantor regardless of Case Credit's
financial or other condition at the time of any such purchase. The Performance
Guarantor acknowledges to the Indenture Trustee that it has adequate means to
obtain from Case Credit on a continuing basis all information concerning the
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financial condition of Case Credit and the collectibility of the CNHCR Assets,
and agrees with the Indenture Trustee that the Indenture Trustee shall not have
any obligation to disclose or discuss with the Performance Guarantor any
information which the Indenture Trustee has respecting the financial condition
of Case Credit or the collectibility of any CNHCR Assets.
2.5 Changes in Case Credit
This Agreement shall not be discharged or otherwise affected by any change in
the name of Case Credit or in the objects, capital structure or constitution of
Case Credit, or by Case Credit being amalgamated or merged with another
corporation, but shall, notwithstanding any such event, continue to apply to all
Guaranteed Obligations whether theretofore or thereafter incurred, and in the
case of Case Credit being merged, consolidated or amalgamated with another
corporation, this Agreement shall apply to the liabilities of the resulting
corporation and the terms "Case Credit" and "the Servicer" (for as long as Case
Credit is the Servicer) shall include each such resulting corporation.
2.6 Taxes
All payments to be made by the Performance Guarantor hereunder shall be made in
full without set-off or counter-claim, free and clear of any fees, levies,
duties, deductions, withholdings taxes or other restrictions or conditions of
any nature whatsoever. If the Performance Guarantor is required by law to make
any deduction or withholding on account of Taxes or otherwise from any such
payment, the sum due from it in respect of such payment shall be increased to
the extent necessary to ensure that after the making of such deduction or
withholding, the Indenture Trustee receives a net sum equal to the sum which it
would otherwise have received had no deduction or withholding been made, and the
Performance Guarantor shall indemnify the Indenture Trustee on an after tax
basis with respect to any such deduction or withholding including with respect
to any taxes payable by the Indenture Trustee on any increased amounts payable
under this Section 2.6.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF
PERFORMANCE GUARANTOR
3.1
The Performance Guarantor represents and warrants to the Indenture Trustee as
follows which representations and warranties shall continue until the Guaranteed
Obligations have been performed, observed or paid in full:
(a) the Performance Guarantor is a corporation validly existing
under the laws of its jurisdiction of incorporation, has full
power and authority to own its properties and assets and to
carry on its businesses in every jurisdiction in which it is
currently carrying on business where the failure to be so
qualified would have a material adverse effect on the ability
of the Performance Guarantor to perform its obligations under
this Agreement;
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(b) the Performance Guarantor has full corporate power and
capacity to execute and deliver this Agreement and to perform
all of its obligations hereunder;
(c) the Performance Guarantor has taken all necessary action to
authorize the execution and delivery of this Agreement and the
performance of its obligations hereunder;
(d) this Agreement is a legal and binding obligation of the
Performance Guarantor and is enforceable against the
Performance Guarantor in accordance with its terms.
(e) the consummation of the transactions contemplated by this
Agreement and the fulfilment of the terms thereof do not
conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse
of time or both) a default under the constating documents of
the Performance Guarantor, or any indenture, agreement or
other instrument to which the Performance Guarantor is a party
or by which it shall be bound; or result in the creation or
imposition of any encumbrance upon any of its properties
pursuant to the terms of any such indenture, agreement or
other instrument; or violate any law, order, rule or
regulation applicable to the Performance Guarantor; and
(f) there are no actions, suits or proceedings pending or, to the
knowledge of the Performance Guarantor, threatened against the
Performance Guarantor or any of its undertakings, property and
assets, at law or in equity or before any arbitrator of by an
governmental authority, body, agency, commission or
instrumentality having jurisdiction in respect of which could
materially and adversely affect the ability of the Performance
Guarantor to perform any of its obligations hereunder.
3.2 Covenants of the Performance Guarantor
The Performance Guarantor covenants with the Indenture Trustee that it shall:
(a) comply in all material respects with all laws, rules,
regulations and orders applicable to it and all or any of its
businesses and properties, provided, however, that any
non-compliance that does not materially and adversely affect
the ability of the Performance Guarantor to perform any of its
obligations hereunder shall not be a breach of this covenant;
(b) preserve and maintain its corporate existence;
(c) make available to the Indenture Trustee, via its website
xxx.xxxxxxxxx.xxx, as soon as available and in any event
within 180 days after the end of each fiscal year, a copy of
the financial statements of the Performance Guarantor for such
year, such financial statements to contain at least a balance
sheet, an earning statement and a statement of retained
earnings.
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ARTICLE 4
MISCELLANEOUS
4.1 Amendments, Waivers, Etc.
No termination of this Agreement or any amendment or waiver of any provision of
this Agreement, or any consent to any departure by any party therefrom or any
approval or direction to be given by any party hereunder shall be effective in
whole or in part unless the termination, amendment, waiver, consent, approval or
direction shall be (a) in writing and signed by the Indenture Trustee and the
Performance Guarantor and (b) approved by the Rating Agencies and Noteholders
holding Notes evidencing not less than a majority of the Note Balance, and then
such waiver, consent, approval or direction shall be effective only in the
specific instance and for the specific purpose for which it was given.
4.2 No Waiver; Remedies
No failure on the part of any party to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
4.3 Time of the Essence
Time shall be of the essence of this Agreement and of every provision hereof.
4.4 Notices
All notices or other communications authorized or required to be given pursuant
to this Agreement, or pursuant to which any rights or obligations may arise
hereunder, shall be in writing (including telecopied communication and such
other method of recorded or recordable electronic communications as to which the
parties may hereafter agree) and shall be either personally delivered or sent by
telecopier as follows:
(a) to the Indenture Trustee at:
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services Group
Fax No.: (000) 000-0000
(b) to the Performance Guarantor at:
IHF - INTERNATIONALE HOLDING FIAT S.A.
Xxxx Xxxxxxxx, 00
0000 - Xxxxxx Xxxxxxxx (XX)
Attention: Finance Director
Fax No.: 00 00 0000000
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Any notice or other communication given by personal delivery will be
conclusively deemed to have been given and received on the day of actual
delivery thereof and, if given by telecopier, on the day of transmittal thereof
if given during the normal business hours of the recipient and on the next
Business Day if not given during such business hours on any day. A party may
change its address for receipt of notices or other communications hereunder by
giving notice thereof to each of the other parties in the manner aforesaid.
4.5 Binding Effect, Assignability, Etc.
This Agreement shall be binding upon and enure to the benefit of the Indenture
Trustee and their respective successors and assigns. The Performance Guarantor
may not assign its rights or obligations hereunder or any interest herein
without obtaining the prior written consent of the Indenture Trustee hereto.
4.6 Governing Law
This Guaranty shall be construed in accordance with the laws of the State of New
York, without reference to its conflict of law provisions, and the obligations,
rights and remedies of the parties hereunder shall be determined in accordance
with such laws.
4.7 Consent to Jurisdiction; Waiver of Immunities
(a) Each of the parties hereby irrevocably submits to the
jurisdiction of any court sitting in the State of New York in
any action or proceeding arising out of or relating to this
Agreement, and each of the parties hereby irrevocably agrees
that all claims in respect of such action or proceeding may be
heard and determined in such court. Each of the parties hereby
irrevocably waives, to the extent permitted by law, the
defence of an inconvenient forum to the maintenance of such
action or proceeding. Each of the parties agrees that a final
judgment in any action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law.
(b) Nothing in this Section 4.7 shall affect (i) the right to
serve legal process in any other manner permitted by Law, or
(ii) the right of any party to bring any action or proceeding
in the courts of other jurisdictions.
(c) To the extent that any party has or hereafter may acquire any
immunity from the jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior
to judgment, attachment in aid of execution, execution or
otherwise) with respect to itself or its property, it hereby
irrevocably waives, to the extent permitted by law, such
immunity in respect of its obligations hereunder.
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4.8 Severability
Any provision hereof that is prohibited or unenforceable in whole or in part in
any jurisdiction shall, as to such provision and such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
4.9 Further Assurances
Each of the parties, upon the request of any other party, shall do, execute,
acknowledge and deliver or cause to be done, executed, acknowledged or delivered
all such further acts, deeds, documents, assignments, transfers, conveyances,
powers of attorney and assurances as may be reasonably necessary or desirable to
effect complete consummation of the objects and intent of and the transactions
contemplated by this Agreement.
4.10 Counterparts
This Agreement may be executed in counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument. For all purposes of this Agreement and
all other documents and agreements contemplated hereby, the signature of any
party hereto or thereto, evidenced by a telecopy showing such signature or other
electronically transmitted version of such signature, shall constitute
conclusive proof for all purposes of the signature of such party to such
documents and agreements, to the same extent in all respects as a copy of such
documents and agreements showing the original signature of such party.
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IN WITNESS WHEREOF the Performance Guarantor has executed this Agreement.
IHF - INTERNAZIONALE HOLDING FIAT S.A.
By: /s/ Xxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxx
Title: Manager
By: /s/ Xxxxxx Giamboni
-----------------------------
Name: Xxxxxx Giamboni
Title: Manager
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