EXHIBIT 4.4
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CNH EQUIPMENT TRUST 2003-B
CASE PURCHASE AGREEMENT
between
CASE CREDIT CORPORATION
and
CNH CAPITAL RECEIVABLES INC.
Dated as of November 1, 2003
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TABLE OF CONTENTS
PAGE
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ARTICLE I CERTAIN DEFINITIONS..................................................2
SECTION 1.1. Definitions..................................................2
SECTION 1.2. Other Definitional Provisions................................2
ARTICLE II CONVEYANCE OF CASE RECEIVABLES.......................................3
SECTION 2.1. Conveyance of Case Purchased Contracts.......................3
SECTION 2.2. Conveyance of Subsequent Case Receivables....................3
SECTION 2.3. Intention of the Parties.....................................4
SECTION 2.4. The Closing..................................................5
SECTION 2.5. Payment of the Purchase Price................................5
SECTION 2.6. Cross-Collateralization......................................6
ARTICLE III REPRESENTATIONS AND WARRANTIES.......................................6
SECTION 3.1. Representations and Warranties of CNHCR......................6
SECTION 3.2. Representations and Warranties of Case Credit................7
ARTICLE IV CONDITIONS..........................................................13
SECTION 4.1. Conditions to Obligation of CNHCR...........................13
SECTION 4.2. Conditions to Obligation of Case Credit.....................16
ARTICLE V COVENANTS OF CASE CREDIT............................................16
SECTION 5.1. Protection of Right, Title and Interest.....................17
SECTION 5.2. Other Liens or Interests....................................17
SECTION 5.3. Jurisdiction of Organization................................18
SECTION 5.4. Costs and Expenses..........................................18
SECTION 5.5. Indemnification.............................................18
SECTION 5.6. Transfer of Subsequent Case Receivables.....................18
SECTION 5.7. Cross-Collateralization.....................................18
ARTICLE VI MISCELLANEOUS PROVISIONS............................................19
SECTION 6.1. Obligations of Case Credit..................................19
SECTION 6.2. Repurchase Events...........................................19
SECTION 6.3. CNHCR Assignment of Repurchased Receivables.................19
SECTION 6.4. Trust.......................................................19
SECTION 6.5. Amendment...................................................19
SECTION 6.6. Accountants' Letters........................................20
SECTION 6.7. Waivers.....................................................20
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................................................21
SECTION 6.15. Severability................................................22
EXHIBITS
EXHIBIT A Form of Case Assignment
EXHIBIT B Form of Case Subsequent Transfer Assignment
SCHEDULES
SCHEDULE P Perfection Representation and Warranties
ii
CASE PURCHASE AGREEMENT (as amended or supplemented from time to time,
this "AGREEMENT") dated as of November 1, 2003 between CASE CREDIT
CORPORATION, a Delaware corporation ("CASE CREDIT"), and
CNH CAPITAL
RECEIVABLES INC., a Delaware corporation ("CNHCR").
RECITALS
WHEREAS, in the regular course of its business, Case Credit purchases,
directly and indirectly, from equipment dealers and brokers, and directly
originates, Contracts; and
WHEREAS, in the regular course of its business, Case Credit purchases
from Case, LLC (f/k/a Case Corporation) certain Contracts originated by
Case, LLC (f/k/a Case Corporation) in the ordinary course of business; and
WHEREAS, Case Credit and CNHCR wish to set forth the terms pursuant to
which: (1) Contracts having an aggregate Contract Value of approximately
$122,451,508.02 (the "CASE PURCHASED CONTRACTS") as of the Initial Cutoff
Date and Case Credit's right, title and interest in any True Lease
Equipment related to such Contracts are to be sold by Case Credit to CNHCR
on the date hereof and (2) certain Subsequent Case Receivables and Case
Credit's right, title and interest in any True Lease Equipment related to
such Subsequent Case Receivables are to be sold by Case Credit to CNHCR
from time to time on each Subsequent Transfer Date; and
WHEREAS, CNHCR, as of the Initial Cutoff Date, owned Contracts
previously purchased from Case Credit pursuant to an Amended and Restated
Receivables Purchase Agreement dated as of December 15, 2000 (as amended
from time to time, the "CASE LIQUIDITY RECEIVABLES PURCHASE AGREEMENT")
between Case Credit and CNHCR, having an aggregate Contract Value of
approximately $278,975,617.46 (the "CASE OWNED CONTRACTS", and together
with the Case Purchased Contracts, the "INITIAL CASE RECEIVABLES"); and
WHEREAS, the Initial Case Receivables and the Subsequent Case
Receivables (collectively, the "CASE RECEIVABLES"), the NH Receivables and
any True Lease Equipment related to such Case Receivables or NH Receivables
will be transferred by CNHCR, pursuant to the Sale and Servicing Agreement,
to CNH Equipment Trust 2003-B (the "TRUST"), which Trust will issue Asset
Backed Certificates representing non-assessable, fully paid, undivided
interests in, and 1.230% Class A-1 Asset Backed Notes, 1.710% Class A-2
Asset Backed Notes, Floating Rate Class A-3a Asset Backed Notes, 2.470%
Class A-3b Asset Backed Notes, Floating Rate Class A-4a Asset Backed Notes,
3.380% Class A-4b Asset Backed Notes and 3.350% Class B Asset Backed Notes
collateralized by, the Receivables and the other property of the Trust; and
WHEREAS, Case Credit and CNHCR wish to set forth herein certain
representations, warranties, covenants and indemnities of Case Credit with
respect to the Case Receivables for the benefit of CNHCR, the Trust, the
Noteholders, any Counterparty and the Certificateholders.
NOW, THEREFORE, in consideration of the foregoing, other good and
valuable consideration and the mutual terms and covenants contained herein
the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.1. DEFINITIONS. Capitalized terms used herein and not otherwise
defined herein are defined in Appendix A to the Indenture dated as of the
date hereof between CNH Equipment Trust 2003-B and JPMorgan Chase Bank as
Indenture Trustee.
SECTION 1.2. OTHER DEFINITIONAL PROVISIONS. (a) All terms defined in this
Agreement shall have the defined meanings when used in any certificate or
other document made or delivered pursuant hereto unless otherwise defined
therein.
(b) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles as in effect
on the date hereof. To the extent that the definitions of accounting terms
in this Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under generally accepted
accounting principles, the definitions contained in this Agreement or in
any such certificate or other document shall control.
(c) The words "hereof", "herein", "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section, Schedule and
Exhibit references contained in this Agreement are references to Sections,
Schedules and Exhibits in or to this Agreement unless otherwise specified;
and the term "including" shall mean "including, without limitation,".
(d) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
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ARTICLE II
CONVEYANCE OF CASE RECEIVABLES
SECTION 2.1. CONVEYANCE OF CASE PURCHASED CONTRACTS. In consideration of
CNHCR's payment of $401,427,125.48 (the "INITIAL CASE PURCHASE PRICE") in
the manner set out in SECTION 2.5(a), Case Credit does hereby sell,
transfer, assign, set over and otherwise convey to CNHCR, without recourse
(subject to the obligations herein), all of its right, title, interest and,
with respect to any Contracts that are Leases, obligations in, to and under
(collectively, the "INITIAL CASE ASSETS"):
(i) the Case Purchased Contracts, including all documents
constituting chattel paper included therewith, and all obligations of the
Obligors thereunder, including all moneys paid thereunder on or after the
Initial Cutoff Date;
(ii) the security interests in the Financed Equipment granted by
Obligors pursuant to the Case Purchased Contracts and any other interest of
Case Credit in such Financed Equipment;
(iii) any proceeds with respect to the Case Purchased Contracts from
claims on insurance policies covering Financed Equipment or Obligors;
(iv) any proceeds from recourse to Dealers with respect to the Case
Purchased Contracts other than any interest in the Dealers' reserve
accounts maintained with Case Credit;
(v) any Financed Equipment that shall have secured the Case Purchased
Contracts and that shall have been acquired by or on behalf of CNHCR;
(vi) any True Lease Equipment that is subject to any Case Purchased
Contract; and
(vii) the proceeds of any and all of the foregoing.
SECTION 2.2. CONVEYANCE OF SUBSEQUENT CASE RECEIVABLES. Subject to the
conditions set forth in SECTION 4.1(b), in consideration of CNHCR's
delivery on the related Subsequent Transfer Date to or upon the order of
Case Credit of the related Subsequent Case Purchase Price pursuant to
SECTION 2.5, Case Credit does hereby sell, transfer, assign, set over and
otherwise convey to CNHCR, without recourse (subject to the obligations
herein), all of its right, title, interest and, with respect to any
Contracts that are Leases, obligations in, to and under (collectively, the
"SUBSEQUENT CASE ASSETS"; and together with the Initial Case Assets, the
"CASE ASSETS"):
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(i) the Subsequent Case Receivables listed on Schedule A to the
related Case Subsequent Transfer Assignment, including all documents
constituting chattel paper included therewith, and all obligations of the
Obligors thereunder, including all moneys paid thereunder on or after the
related Subsequent Cutoff Date;
(ii) the security interests in the Financed Equipment granted by
Obligors pursuant to such Subsequent Case Receivables and any other
interest of Case Credit in such Financed Equipment;
(iii) any proceeds with respect to such Subsequent Case Receivables
from claims on insurance policies covering Financed Equipment or Obligors;
(iv) any proceeds with respect to such Subsequent Case Receivables
from recourse to Dealers other than any interest in the Dealers' reserve
accounts maintained with Case Credit;
(v) any Financed Equipment that shall have secured any such
Subsequent Case Receivable and that shall have been acquired by or on
behalf of CNHCR;
(vi) any True Lease Equipment that is subject to any Subsequent Case
Receivable; and
(vii) the proceeds of any and all of the foregoing.
SECTION 2.3. INTENTION OF THE PARTIES. The parties to this Agreement intend
that the transactions contemplated hereby shall be, and shall be treated
as, a purchase by CNHCR and a sale by Case Credit of the Case Purchased
Contracts and the Subsequent Case Receivables and any True Lease Equipment
related to such Case Purchased Contracts or Subsequent Case Receivables, as
the case may be, and not as a lending transaction, such that in the event
of a filing of a petition for relief by or against Case Credit under the
Bankruptcy Code, such Case Purchased Contracts, Subsequent Case Receivables
and True Lease Equipment would not be property of Case Credit's bankruptcy
estate under Section 541 of the Bankruptcy Code, (ii) the bankruptcy court
would not compel the turnover of such Case Purchased Contracts, Subsequent
Case Receivables and True Lease Equipment or collections thereon by CNHCR
to Case Credit under Section 542 of the Bankruptcy Code, and (iii) the
bankruptcy court would determine that payments on such Case Purchased
Contracts, Subsequent Case Receivables and True Lease Equipment not in the
possession of Case Credit would not be subject to the automatic stay
provisions of Section 362(a) of the Bankruptcy Code imposed upon the
commencement of Case Credit's bankruptcy case. The foregoing sale,
assignment, transfer and conveyance does not constitute, and is not
intended to result in a creation or assumption by CNHCR of, any obligation
or liability with
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respect to any Case Purchased Contract or any Subsequent Case Receivables,
nor shall CNHCR be obligated to perform or otherwise be responsible for any
obligation of Case Credit or any other Person in connection with the Case
Purchased Contracts or the Subsequent Case Receivables or under any
agreement or instrument relating thereto, including any contract or any
other obligation to any Obligor, except that CNHCR accepts any Contracts
that are Leases subject to (and assumes) the covenants benefiting the
Obligors under such Leases.
If (but only to the extent) that the transfer of the Case Assets hereunder
is characterized by a court or other governmental authority as a loan
rather than a sale, Case Credit shall be deemed hereunder to have granted
to CNHCR a security interest in all of Case Credit's right, title and
interest in and to the Case Assets. Such security interest shall secure all
of Case Credit's obligations (monetary or otherwise) under this Agreement
and the other Basic Documents to which it is a party, whether now or
hereafter existing or arising, due or to become due, direct or indirect,
absolute or contingent. CNHCR shall have, with respect to the property
described in SECTION 2.1 and SECTION 2.2, and in addition to all the other
rights and remedies available to CNHCR under this Agreement and applicable
law, all the rights and remedies of a secured party under any applicable
UCC, and this Agreement shall constitute a security agreement under
applicable law.
SECTION 2.4. THE CLOSING. The sale and purchase of the Case Purchased
Contracts shall take place at a closing at the offices of Mayer, Brown,
▇▇▇▇ & Maw LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 5.8(a) of the
Sale and Servicing Agreement shall be paid to Case Credit on the related
Subsequent Transfer Date;
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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.
SECTION 2.6. CROSS-COLLATERALIZATION. To the extent Case Credit retains any
interest in any item of Financed Equipment securing the repayment of any
Case Receivable, as a result of the related Obligor agreeing to
cross-collateralize all obligations owed by such Obligor to Case Credit or
otherwise, Case Credit acknowledges and agrees that its interest in the
Financed Equipment shall be expressly subordinate and junior in priority to
the repayment of all amounts outstanding under such Case Receivable prior
to becoming available to pay any amount outstanding under any other
obligation owed by such Obligor to Case Credit.
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
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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:
(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
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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.
(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
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security interest in the Financed Equipment in favor of Case Credit (except
to the extent that such security interest 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.
(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
▇▇▇▇▇▇▇▇-▇▇▇▇ 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, 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.
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(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.
(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 will be made on or prior to the Closing
Date.
(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
48.80 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
11
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 61.18% of the aggregate Statistical
Contract Value of the Initial Receivables, 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 73.26% of
the aggregate Statistical Contract Value of the Initial Receivables,
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
$687,386,393.54. Additionally, not more than 35% of the aggregate Contract
Value of the Receivables, including, as of each Subsequent Transfer Date,
all Subsequent Receivables previously transferred to CNHCR, will represent
Contracts for the financing or lease of construction equipment. No
Subsequent Receivable will represent the financing of truck equipment.
(xxi) NO BANKRUPTCIES. No Obligor on any Case Receivable as of the
Initial Cutoff Date or the Subsequent Cutoff Date, as applicable, was noted
in the related Receivable File as being the subject of a bankruptcy
proceeding.
(xxii) NO REPOSSESSIONS. None of the Financed Equipment securing any
Case Receivable is in repossession status.
(xxiii) CHATTEL PAPER. Each Case Receivable constitutes "chattel paper"
as defined in the UCC of each State the law of which governs the perfection
of the interest granted in it and/or the priority of such perfected
interest.
(xxiv) U.S. OBLIGORS. None of the Case Receivables is denominated and
payable in any currency other than United States Dollars or is due from any
Person that does not have a mailing address in the United States of
America.
(xxv) PAYMENT FREQUENCY. As of the Initial Cutoff Date and as shown on
the books of Case Credit: (A) Initial Receivables having an aggregate
Statistical Contract Value equal to 42.78% of the Initial Aggregate
Statistical Contract Value had annual scheduled payments, (B) Initial
Receivables having an aggregate Statistical Contract Value equal to 2.80%
of the Initial Aggregate Statistical Contract Value had semi-annual
scheduled payments, (C) Initial Receivables having an aggregate Statistical
Contract Value equal to 0.76% of the Initial
▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Value had quarterly scheduled payments, (D)
Initial Receivables having an aggregate Statistical Contract Value equal to
46.51% of the Initial Aggregate Statistical Contract Value had monthly
scheduled payments, and (E) Initial Receivables having an aggregate
Statistical Contract Value equal to 7.14% 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 a Subsequent
Transfer Date, as applicable, accruing interest; no Case Receivable
contains an interest waiver extending more than 12 months after the Initial
Cutoff Date.
(xxvii) LEASES. Each Lease included in the Initial Case Receivables or
the Subsequent Case Receivables has a Termination Value less than or equal
to 10% of the purchase price of the equipment subject to such Lease and is
a "lease intended as security" (rather than a true lease) within the
meaning of Section 1-201(37) of the UCC.
(xxviii) CASE CREDIT'S REPRESENTATIONS. The representations and warranties
of Case Credit contained in SECTION 3.2(a) are true and correct.
(xxix) CASE CREDIT'S OBLIGATIONS. Case Credit has no obligations under
any Contract, other than the covenant of quiet enjoyment benefiting the
Obligors under any Contracts that are Leases.
(xxx) NO EITHER/OR LEASES. No Lease included in the Initial Case
Receivables or the Subsequent Case Receivables is a Either/or Lease, and no
Financed Equipment transferred to CNHCR on the Closing Date or any
Subsequent Transfer Date, as the case may be, constitutes True Lease
Equipment.
(xxxi) NO LEASES. Notwithstanding anything to the contrary in the Basic
Documents, none of the Initial Case Receivables or the Subsequent Case
Receivables shall be Leases.
(xxxii) PERFECTION REPRESENTATIONS. Case Credit further makes all the
representations, warranties and covenants set forth in Schedule P.
ARTICLE IV
CONDITIONS
SECTION 4.1. CONDITIONS TO OBLIGATION OF CNHCR.
(a) CASE PURCHASED CONTRACTS. The obligation of CNHCR to purchase the Case
Purchased Contracts is subject to the satisfaction of the following
conditions:
13
(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.
(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 authorize 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 promptly upon Case Credit's receipt thereof.
(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:
14
(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;
(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 take any action required to give CNHCR a first
priority perfected ownership interest in the Subsequent Case Receivables on
or prior to the applicable Subsequent Transfer Date;
(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;
15
(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 Officer's
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
16
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.
(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. JURISDICTION OF ORGANIZATION. During the term of the Case
Receivables, Case Credit will maintain its "location" (as defined in
Section 9-307 of 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
17
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.
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 $485,601,546.66
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.
SECTION 5.7. CROSS-COLLATERALIZATION. To the extent that Case Credit
transfers, sells, assigns or otherwise pledges any contract to a third
party and retains any interest in any item of Financed Equipment securing
the repayment of any Case Receivable, as a result of the related Obligor
agreeing to cross-collateralize all obligations owed by such Obligor to
Case Credit and its assigns or otherwise, Case Credit acknowledges and
agrees that it shall obtain from such third party an agreement that such
third party's interest in the Financed Equipment shall be expressly
subordinate and junior in priority to the repayment of all amounts
outstanding under such Case Receivable prior to becoming available to pay
any amount outstanding under any other obligation owed by such Obligor to
such third party.
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.
18
SECTION 6.2. REPURCHASE EVENTS. Case Credit hereby covenants and agrees
with CNHCR for the benefit of CNHCR, the Indenture Trustee, the
Noteholders, the Trust, 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, the Counterparties
and the Noteholders. Case Credit hereby consents to all such sales and
assignments and agrees that enforcement of a right or remedy hereunder by
the Indenture Trustee shall have the same force and effect as if the right
or remedy had been enforced or executed by CNHCR.
SECTION 6.5. AMENDMENT. This Agreement may be amended from time to time,
with prior written notice to the Rating Agencies, by a written amendment
duly executed and delivered by Case Credit and CNHCR, without the consent
of the Noteholders or the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions in this Agreement or for the purpose
of adding any provisions to or changing in any manner or eliminating any of
the provisions of this Agreement or of modifying in any manner the rights
of the Noteholders or the Certificateholders; PROVIDED, HOWEVER, that such
amendment will not in the Opinion of Counsel, materially and adversely
affect the interest of any Noteholder or Certificateholder.
19
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.
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,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer (telephone
(▇▇▇) ▇▇▇-▇▇▇▇);
20
(b) in the case of CNHCR, to
CNH Capital Receivables Inc., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer (telephone
(▇▇▇) ▇▇▇-▇▇▇▇); (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.
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
21
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)
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/ ▇▇▇▇▇ ▇'▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Assistant Treasurer
CASE CREDIT CORPORATION
By: /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Assistant Treasurer
S-1
CASE PURCHASE AGREEMENT
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 November 1, 2003 (the "
CASE PURCHASE AGREEMENT"),
between the undersigned and
CNH Capital Receivables Inc. ("CNHCR"), the
undersigned does hereby sell, assign, transfer, set over and otherwise
convey unto CNHCR, without recourse, all of its right, title, interest and,
with respect to any Contracts that are Leases, obligations in, to and
under: (a) the Case Purchased Contracts, which are listed on SCHEDULE A
hereto, including all documents constituting chattel paper included
therewith, and all obligations of the Obligors thereunder, including all
moneys paid thereunder on or after the Initial Cutoff Date, (b) the
security interests in the Financed Equipment granted by Obligors pursuant
to the Case Purchased Contracts and any other interest of the undersigned
in such Financed Equipment, (c) any proceeds with respect to the Case
Purchased Contracts from claims on insurance policies covering Financed
Equipment or Obligors, (d) any proceeds from recourse to Dealers with
respect to the Case Purchased Contracts other than any interest in the
Dealers' reserve accounts maintained with Case Credit Corporation, (e) any
Financed Equipment that shall have secured the Case Purchased Contracts and
that shall have been acquired by or on behalf of CNHCR, (f) any True Lease
Equipment that is subject to any Case Purchased Contract, and (g) the
proceeds of any and all of the foregoing. The foregoing sale does not
constitute and is not intended to result in any assumption by CNHCR of any
obligation (other than the covenant of quiet enjoyment benefiting the
Obligors under any Contracts that are Leases) of the undersigned to the
Obligors, insurers or any other person in connection with the Case
Purchased Contracts, Receivables Files, any insurance policies or any
agreement or instrument relating to any of them.
This Case Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Case Purchase Agreement and is to be governed in all respects by the
Case
Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the
Case Purchase Agreement.
A-1
IN WITNESS WHEREOF, the undersigned has caused this Case Assignment to be
duly executed as of November 1, 2003.
CASE CREDIT CORPORATION
By:
---------------------------
Name:
Title:
A-2
EXHIBIT B
to
Case Purchase Agreement
FORM OF
CASE SUBSEQUENT TRANSFER ASSIGNMENT
For value received, in accordance with and subject to the Case Purchase
Agreement dated as of November 1, 2003 (the "CASE PURCHASE AGREEMENT"),
between Case Credit Corporation, a Delaware corporation ("CASE CREDIT"),
and
CNH Capital Receivables Inc., a Delaware corporation ("CNHCR"), Case
Credit does hereby sell, transfer, assign, set over and otherwise convey to
CNHCR, without recourse, all of its right, title, interest and, with
respect to any Contracts that are Leases, obligations in, to and under: (a)
the Subsequent Case Receivables, with an aggregate Contract Value equal to
$____ , listed on SCHEDULE A hereto, including all documents constituting
chattel paper included therewith, and all obligations of the Obligors
thereunder, including all moneys paid thereunder on or after the Subsequent
Cutoff Date, (b) the security interests in the Financed Equipment granted
by Obligors pursuant to such Subsequent Case Receivables and any other
interest of Case Credit in such Financed Equipment, (c) any proceeds with
respect to such Subsequent Case Receivables from claims on insurance
policies covering Financed Equipment or Obligors, (d) any proceeds from
recourse to Dealers with respect to such Subsequent Case Receivables other
than any interest in the Dealers' reserve accounts maintained with Case
Credit, (e) any Financed Equipment that shall have secured any such
Subsequent Case Receivables and that shall have been acquired by or on
behalf of CNHCR, (f) any True Lease Equipment that is subject to any
Subsequent Case Receivable, and (g) the proceeds of any and all of the
foregoing. The foregoing sale does not constitute and is not intended to
result in any assumption by CNHCR of any obligation (other than the
covenant of quiet enjoyment benefiting the Obligors under any Contracts
that are Leases) of Case Credit to the Obligors, insurers or any other
person in connection with such Subsequent Case Receivables, Receivable
Files, any insurance policies or any agreement or instrument relating to
any of them.
This Case Subsequent Transfer Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of Case Credit
contained in the Case Purchase Agreement (including the Officer's
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
OFFICER'S CERTIFICATE
I, the undersigned officer of Case Credit Corporation (the "COMPANY"), do
hereby certify, pursuant to Section 4.1(b)(xiii) of the Case Purchase
Agreement dated as of November 1, 2003, among the Company, and
CNH Capital
Receivables Inc. (the "CASE PURCHASE AGREEMENT"), that (i) all of the
conditions precedent to the transfer to CNHCR of the Subsequent Case
Receivables listed on Schedule A to the Case Subsequent Transfer Assignment
delivered herewith, and the other property and rights related to such
Subsequent Case Receivables as described in Section 2.2 of the Case
Purchase Agreement, have been satisfied on or prior to the related
Subsequent Transfer Date and (ii) each statement of fact set forth in any
officer's 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 has 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 the Secured Party/Buyer."
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.