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CNH EQUIPMENT TRUST 2000-A
SALE AND SERVICING AGREEMENT
among
CNH EQUIPMENT TRUST 2000-A,
as Issuer,
and
CNH RECEIVABLES INC.,
as Seller,
and
CASE CREDIT CORPORATION,
as Servicer.
Dated as of March 1, 2000
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TABLE OF CONTENTS
Page
ARTICLE I Definitions.................................................1
SECTION 1.1. Definitions..............................................1
SECTION 1.2. Other Definitional Provisions............................1
ARTICLE II Conveyance of Receivables...................................2
SECTION 2.1. Conveyance of Initial Receivables........................2
SECTION 2.2. Conveyance of Subsequent Receivables.....................3
ARTICLE III The Receivables.............................................6
SECTION 3.1. Representations and Warranties of Seller.................6
SECTION 3.2. Repurchase upon Breach...................................7
SECTION 3.3. Custody of Receivable Files..............................8
SECTION 3.4. Duties of Servicer as Custodian..........................9
SECTION 3.5. Instructions; Authority To Act...........................9
SECTION 3.6. Custodian's Indemnification..............................9
SECTION 3.7. Effective Period and Termination........................10
ARTICLE IV Administration and Servicing of Receivables................10
SECTION 4.1. Duties of Servicer......................................10
SECTION 4.2. Collection and Allocation of Receivable Payments........11
SECTION 4.3. Realization upon Receivables............................11
SECTION 4.4. Maintenance of Security Interests in Financed Equipment.12
SECTION 4.5. Covenants of Servicer...................................12
SECTION 4.6. Purchase of Receivables upon Breach.....................12
SECTION 4.7. Servicing Fee...........................................13
SECTION 4.8. Servicer's Certificate..................................13
SECTION 4.9. Annual Statement as to Compliance; Notice of Default....13
SECTION 4.10. Annual Independent Certified Public Accountants' Report.13
SECTION 4.11. Access to Certain Documentation and Information
Regarding Receivables...................................14
SECTION 4.12. Servicer Expenses.......................................14
SECTION 4.13. Appointment of Subservicer..............................14
ARTICLE V Distributions: Spread Account; Statements to
Certificateholders and Noteholders.........................15
SECTION 5.1. Establishment of Trust Accounts.........................15
SECTION 5.2. Collections.............................................17
SECTION 5.3. Application of Collections..............................18
SECTION 5.4. Additional Deposits.....................................18
SECTION 5.5. Distributions...........................................18
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Page
SECTION 5.6. Spread Account..........................................19
SECTION 5.7. Pre-Funding Account.....................................21
SECTION 5.8. Negative Carry Account..................................21
SECTION 5.9. Principal Supplement Account............................22
SECTION 5.10. Statements to Certificateholders and Noteholders........22
SECTION 5.11. Net Deposits............................................24
ARTICLE VI The Seller.................................................24
SECTION 6.1. Representations of Seller...............................24
SECTION 6.2. Corporate Existence.....................................25
SECTION 6.3. Liability of Seller; Indemnities........................26
SECTION 6.4. Merger or Consolidation of, or Assumption of the
Obligations of, Seller..................................27
SECTION 6.5. Limitation on Liability of Seller and Others............27
SECTION 6.6. Seller May Own Certificates or Notes....................28
ARTICLE VII The Servicer...............................................28
SECTION 7.1. Representations of Servicer.............................28
SECTION 7.2. Indemnities of Servicer.................................30
SECTION 7.3. Merger or Consolidation of, or Assumption of the
Obligations of, Servicer................................31
SECTION 7.4. Limitation on Liability of Servicer and Others..........32
SECTION 7.5. Case Credit Not to Resign as Servicer...................32
SECTION 7.6. Servicer to Act as Administrator........................33
ARTICLE VIII Default....................................................33
SECTION 8.1. Servicer Default........................................33
SECTION 8.2. Appointment of Successor Servicer.......................34
SECTION 8.3. Notification to Noteholders and Certificateholders......35
SECTION 8.4. Waiver of Past Defaults.................................35
ARTICLE IX Termination................................................36
SECTION 9.1. Optional Purchase of All Receivables....................36
ARTICLE X Miscellaneous Provisions...................................37
SECTION 10.1. Amendment...............................................37
SECTION 10.2. Protection of Title to Trust............................38
SECTION 10.3. Notices.................................................41
SECTION 10.4. Assignment..............................................41
SECTION 10.5. Limitations on Rights of Others.........................41
SECTION 10.6. Severability............................................41
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Page
SECTION 10.7. Separate Counterparts......................................42
SECTION 10.8. Headings...................................................42
SECTION 10.9. Governing Law..............................................42
SECTION 10.10. Assignment to Indenture Trustee............................42
SECTION 10.11. Nonpetition Covenants......................................42
SECTION 10.12. Limitation of Liability of Trustee and Indenture Trustee...43
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EXHIBITS
EXHIBIT A Form of Noteholder's Statement Pursuant to Section 5.10(a)
EXHIBIT B Form of Certificateholder's Statement Pursuant to Section 5.10(a)
EXHIBIT C Form of Servicer's Certificate
EXHIBIT D Form of Second-Tier Case Assignment
EXHIBIT E Form of Second-Tier Case Subsequent Transfer Assignment
EXHIBIT F Form of Accountants' Letter in Connection with Second-Tier Case
Subsequent Transfer Assignment
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SALE AND SERVICING AGREEMENT (as amended or otherwise modified, this
"AGREEMENT") dated as of March 1, 2000, among CNH EQUIPMENT TRUST 2000-A, a
Delaware business trust (the "Issuer"), CNH RECEIVABLES INC., a Delaware
corporation (the "Seller"), and CASE CREDIT CORPORATION, a Delaware corporation
(the "Servicer").
RECITALS
WHEREAS, the Issuer desires to purchase a portfolio of Contracts
purchased or originated by Case Credit Corporation ("Case Credit"), in the
ordinary course of business and sold to the Seller on a monthly basis pursuant
to the Liquidity Receivables Purchase Agreement and/or the Purchase Agreement
dated the date hereof between Case Credit and the Seller;
WHEREAS, the Seller is willing to sell such Contracts to the Issuer;
and
WHEREAS, Case Credit is willing to service such Contracts.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. Capitalized terms used herein and not
otherwise defined herein are defined in Appendix A to the Indenture, dated as of
the date hereof, between CNH Equipment Trust 2000-A and Harris Trust and Savings
Bank.
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
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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.
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.1. CONVEYANCE OF INITIAL RECEIVABLES. In consideration of the
Issuer's delivery to or upon the order of the Seller on the Closing Date of the
net proceeds from the sale of the Notes and the Certificates and the other
amounts to be distributed from time to time to the Seller in accordance with
this Agreement, the Seller does hereby sell, transfer, assign, set over and
otherwise convey to the Issuer, without recourse (subject to the obligations
herein), all of its right, title and interest in, to and under the following
(collectively, the "INITIAL SECOND-TIER ASSETS"):
(a) the Initial Receivables, 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 Initial Receivables and any other interest
of the Seller in such Financed Equipment;
(c) any proceeds with respect to the Initial Receivables from
claims on insurance policies covering Financed Equipment or Obligors;
(d) the Liquidity Receivables Purchase Agreement (only with
respect to Owned Contracts included in the Initial Receivables) and the
Purchase Agreement, including the right of the Seller to cause Case
Credit to repurchase Initial Receivables from the Seller under the
circumstances described therein;
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(e) any proceeds from recourse to Dealers with respect to the
Initial Receivables other than any interest in the Dealers' reserve
accounts maintained with Case Credit or with NH Credit;
(f) any Financed Equipment that shall have secured an Initial
Receivable and that shall have been acquired by or on behalf of the
Trust;
(g) all funds on deposit from time to time in the Trust
Accounts, including the Spread Account Initial Deposit, any Principal
Supplement Account Deposit, the Negative Carry Account Initial Deposit
and the Pre-Funded Amount, and in all investments and proceeds thereof
(including all income thereon); and
(h) any True Lease Equipment that is subject to any Initial
Receivable; and
(i) the proceeds of any and all of the foregoing.
The above assignment shall be evidenced by a duly executed written assignment in
substantially the form of Exhibit D (the "SECOND-TIER CASE ASSIGNMENT"). The
Purchase Price for the Initial Receivables shall equal $722,183,687.46.
SECTION 2.2. CONVEYANCE OF SUBSEQUENT RECEIVABLES. (a) Subject to the
conditions set forth in clause (b) below, in consideration of the Trustee's
delivery on the related Subsequent Transfer Date to or upon the order of the
Seller of the amount described in Section 5.7(a) to be delivered to the Seller,
the Seller does hereby sell, transfer, assign, set over and otherwise convey to
the Issuer, without recourse (subject to the obligations herein), all of its
right, title and interest in, to and under (collectively, the "SUBSEQUENT
SECOND-TIER ASSETS"; and together with the Initial Second-Tier Assets, the
"Second-Tier Assets"):
(i) the Subsequent Receivables listed on Schedule A to the
related Second-Tier 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 Receivables and any other
interest of the Seller in such Financed Equipment;
(iii) any proceeds with respect to such Subsequent Receivables
from claims on insurance policies covering Financed Equipment or
Obligors;
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(iv) the Liquidity Receivables Purchase Agreement (only with
respect to Subsequent Receivables purchased by the Seller pursuant to
that Agreement) and the Purchase Agreement, including the right of the
Seller to cause Case Credit to repurchase Subsequent Receivables from
the Seller under the circumstances described therein;
(v) any proceeds with respect to such Subsequent Receivables
from recourse to Dealers other than any interest in the Dealers'
reserve accounts maintained with Case Credit or with NH Credit;
(vi) any Financed Equipment that shall have secured any such
Subsequent Receivable and that shall have been acquired by or on behalf
of the Trust;
(vii) any True Lease Equipment that is subject to any
Subsequent Receivable; and
(viii) the proceeds of any and all of the foregoing.
(b) The Seller shall transfer to the Issuer the Subsequent Receivables
and the other property and rights related thereto described in clause (a) only
upon the satisfaction of each of the following conditions precedent on or prior
to the related Subsequent Transfer Date:
(i) the Seller shall have delivered to the Trustee and the
Indenture Trustee a duly executed written assignment in substantially
the form of Exhibit E (the "Second-Tier Case Subsequent Transfer
Assignment"), which shall include a Schedule A to the Second-Tier Case
Subsequent Transfer Assignment listing the Subsequent Receivables;
(ii) the Seller shall, to the extent required by Section 5.2,
have deposited in the Collection Account all collections in respect of
the Subsequent Receivables;
(iii) as of such Subsequent Transfer Date: (A) the Seller was
not insolvent and will not become insolvent as a result of the transfer
of Subsequent Receivables on such Subsequent Transfer Date, (B) the
Seller did not intend to incur or believe that it would incur debts
that would be beyond the Seller'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 the Seller did not constitute
unreasonably small capital to carry out its business as conducted;
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(iv) the applicable Spread Account Initial Deposit for such
Subsequent Transfer Date shall have been made;
(v) the applicable Principal Supplement Account Deposit, if
any, for such Subsequent Transfer Date shall have been made;
(vi) the Receivables in the Trust, including the Subsequent
Receivables to be conveyed to the Trust on such Subsequent Transfer
Date, shall meet the following criteria: (A) the weighted average
original term of the Receivables in the Trust will not be greater than
55.0 months, and (B) not more than 50.00% of the aggregate Contract
Value of the Receivables in the Trust will represent Contracts for the
financing of construction equipment, (C) none of the Receivables in the
Trust will represent Contracts for the financing of all-terrain
vehicles, snowmobiles, marine vessels or forestry equipment, and (D)
none of the Receivables in the Trust will represent Contracts
originated through Case Credit's Soris financing program;
(vii) the Funding Period shall not have terminated;
(viii) each of the representations and warranties made by the
Seller pursuant to Section 3.1 of this Agreement and by the Originator
pursuant to Section 3.2(b) of the Purchase Agreement, in each case with
respect to the Subsequent Receivables, shall be true and correct as of
such Subsequent Transfer Date, and the Seller shall have performed all
obligations to be performed by it hereunder on or prior to such
Subsequent Transfer Date;
(ix) the Seller shall, at its own expense, on or prior to such
Subsequent Transfer Date, indicate in its computer files that the
Subsequent Receivables identified in the related Second-Tier Case
Subsequent Transfer Assignment have been sold to the Issuer pursuant to
this Agreement and the Second-Tier Case Subsequent Transfer Assignment;
(x) the Seller shall have taken any action required to
maintain the first priority perfected ownership interest of the Issuer
in the Trust Estate and the first perfected security interest of the
Indenture Trustee in the Collateral;
(xi) no selection procedures believed by the Seller to be
adverse to the interests of the Trust, the Noteholders or the
Certificateholders shall have been utilized in selecting the Subsequent
Receivables;
(xii) the addition of the Subsequent Receivables will not
result in a material adverse tax consequence to the Trust, the
Noteholders or the Certificateholders;
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(xiii) the Seller shall have provided the Indenture Trustee,
the Trustee and the Rating Agencies a statement listing the aggregate
Contract Value of such Subsequent Receivables and any other information
reasonably requested by any of the foregoing with respect to such
Subsequent Receivables;
(xiv) the Seller shall have delivered: (A) to the Rating
Agencies, an Opinion of Counsel with respect to the transfer of such
Subsequent Receivables substantially in the form of the Opinion of
Counsel delivered to the Rating Agencies on the Closing Date and (B) to
the Trustee and the Indenture Trustee, the Opinion of Counsel required
by Section 10.2(i)(1);
(xv) the Seller shall have delivered to the Trustee and the
Indenture Trustee a letter of a firm of independent certified public
accountants confirming the satisfaction of the conditions set forth in
clause (vi) with respect to the Subsequent Receivables, and covering
substantially the same matters with respect to the Subsequent
Receivables as are set forth in Exhibit F hereto;
(xvi) the Seller shall have delivered to the Indenture Trustee
and the Trustee an Officers' Certificate confirming the satisfaction of
each condition specified in this clause (b) (substantially in the form
attached hereto as Annex A to the Second-Tier Case Subsequent Transfer
Assignment); and
(xvii) Moody's shall have received written notification from
the Seller of the addition of all such Subsequent Receivables.
(c) The Seller covenants to transfer to the Issuer pursuant to clause
(a) Subsequent Receivables with an aggregate Contract Value equal to
$427,816,312.54 subject only to availability thereof.
ARTICLE III
THE RECEIVABLES
SECTION 3.1. REPRESENTATIONS AND WARRANTIES OF SELLER. The Seller makes
the following representations and warranties as to the Receivables on which the
Issuer is deemed to have relied in acquiring the Receivables. 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 the Issuer and the pledge thereof to the Indenture Trustee
pursuant to the Indenture.
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(a) TITLE. It is the intention of the Seller that the transfer and
assignment herein contemplated constitute a sale of the Receivables from the
Seller to the Issuer and that the beneficial interest in and title to the
Receivables not be part of the debtor's estate in the event of the filing of a
bankruptcy petition by or against the Seller under any bankruptcy or similar
law. No Receivable has been sold, transferred, assigned or pledged by the Seller
to any Person other than the Issuer. Immediately prior to the transfer and
assignment herein contemplated, the Seller had good title to each Receivable,
free and clear of all Liens and, immediately upon the transfer thereof, the
Issuer shall have good title to each Receivable, free and clear of all Liens;
and the transfer and assignment of the Receivables to the Issuer has been
perfected under the UCC.
If (but only to the extent) that the transfer of the Second-Tier Assets
hereunder is characterized by a court or other governmental authority as a loan
rather than a sale, the Seller shall be deemed hereunder to have granted to the
Issuer a security interest in all of Seller's right, title and interest in and
to the Second-Tier Assets. Such security interest shall secure all of Seller'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. The Seller
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 Seller
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.
(b) ALL FILINGS MADE. All filings (including UCC filings) necessary in
any jurisdiction to give the Issuer a first priority perfected ownership
interest in the Receivables, and to give the Indenture Trustee a first priority
perfected security interest therein, have been made.
SECTION 3.2. REPURCHASE UPON BREACH. (a) The Seller, the Servicer or
the Trustee, as the case may be, shall inform the other parties to this
Agreement and the Indenture Trustee promptly, in writing, upon the discovery of
any breach of the Seller's representations and warranties made pursuant to
Section 3.1 or Section 6.1 or Case Credit's representations and warranties made
pursuant to Section 3.2(b) of the Liquidity Receivables Purchase Agreement or
Section 3.2(b) of the Purchase Agreement. Unless any such breach shall have been
cured by the last day of the second (or, if the Seller elects, the first)
Collection Period after such breach is discovered by the Trustee or in which the
Trustee receives written notice from the Seller or the Servicer of such breach,
the Seller shall be obligated, and, if necessary, the Seller or the Trustee
shall enforce the obligation of Case Credit under the Liquidity Receivables
Purchase Agreement or the Purchase Agreement, as applicable, to repurchase any
Receivable materially and adversely affected by any such breach as of such last
day. As consideration for the repurchase of the
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Receivable, the Seller shall remit the Purchase Amount in the manner specified
in Section 5.4; PROVIDED, HOWEVER, that the obligation of the Seller to
repurchase any Receivable arising solely as a result of a breach of Case
Credit's representations and warranties pursuant to Section 3.2(b) of the
Liquidity Receivables Purchase Agreement or Section 3.2(b) of the Purchase
Agreement is subject to the receipt by the Seller of the Purchase Amount from
Case Credit. Subject to the provisions of Section 6.3, the sole remedy of the
Issuer, the Trustee, the Indenture Trustee, the Noteholders or the
Certificateholders with respect to a breach of the representations and
warranties pursuant to Section 3.1 and the agreement contained in this Section
shall be to require the Seller to repurchase Receivables pursuant to this
Section, subject to the conditions contained herein, and to enforce Case
Credit's obligation to the Seller to repurchase such Receivables pursuant to the
Liquidity Receivables Purchase Agreement or the Purchase Agreement, as
applicable.
(b) With respect to all Receivables repurchased by the Seller pursuant
to this Agreement, the Issuer shall sell, transfer, assign, set over and
otherwise convey to the Seller, without recourse, representation or warranty,
all of the Issuer's right, title and interest in, to and under such Receivables,
and all security and documents relating thereto.
SECTION 3.3. CUSTODY OF RECEIVABLE FILES. To assure uniform quality in
servicing the Receivables and to reduce administrative costs, the Issuer hereby
revocably appoints the Servicer, and the Servicer hereby accepts such
appointment, to act for the benefit of the Issuer and the Indenture Trustee as
custodian of the following documents or instruments, which are hereby
constructively delivered to the Indenture Trustee, as pledgee of the Issuer (or,
in the case of the Subsequent Receivables, will as of the applicable Subsequent
Transfer Date be constructively delivered to the Indenture Trustee, as pledgee
of the Issuer) with respect to each Receivable:
(a) the original fully executed copy of the Receivable;
(b) a record or facsimile of the original credit application
fully executed by the Obligor;
(c) the original certificate of title or file stamped copy of
the UCC financing statement or such other documents that the Servicer
shall keep on file, in accordance with its customary procedures,
evidencing the security interest of Case Credit or, in the case of a NH
Receivable, NH Credit in the Financed Equipment; and
(d) any and all other documents that the Servicer or the
Seller or, in the case of NH Receivables, NH Credit shall keep on file,
in accordance with
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its customary procedures, relating to a Receivable, an Obligor or any
of the Financed Equipment.
SECTION 3.4. DUTIES OF SERVICER AS CUSTODIAN.
(a) SAFEKEEPING. The Servicer shall hold the Receivable Files for the
benefit of the Issuer and the Indenture Trustee and maintain such accurate and
complete accounts, records and computer systems pertaining to each Receivable
File as shall enable the Issuer to comply with this Agreement. In performing its
duties as custodian, the Servicer shall act with reasonable care, using that
degree of skill and attention that the Servicer exercises with respect to the
receivable files relating to all comparable equipment receivables that the
Servicer services for itself or others. The Servicer shall conduct, or cause to
be conducted, periodic audits of the Receivable Files and the related accounts,
records and computer systems, in such a manner as shall enable the Issuer or the
Indenture Trustee to verify the accuracy of the Servicer's record keeping. The
Servicer shall promptly report to the Issuer and the Indenture Trustee any
failure on its part to hold the Receivable Files and maintain its accounts,
records and computer systems as herein provided and promptly take appropriate
action to remedy any such failure. Nothing herein shall be deemed to require an
initial review or any periodic review by the Issuer, the Trustee or the
Indenture Trustee of the Receivable Files.
(b) MAINTENANCE OF AND ACCESS TO RECORDS. The Servicer shall maintain
each Receivable File at one of its offices or, in the case of a NH Receivable,
at one of NH Credit's offices; provided that at no time shall a Receivable File
be moved to an office or location outside the geographic boundaries of the
United States. The Servicer shall make available for inspection by the Seller,
the Issuer and the Indenture Trustee or their respective duly authorized
representatives, attorneys or auditors a list of locations of the Receivable
Files and the related accounts, records and computer systems maintained by the
Servicer at such times during normal business hours as the Seller, the Issuer or
the Indenture Trustee shall instruct.
SECTION 3.5. INSTRUCTIONS; AUTHORITY TO ACT. The Servicer shall be
deemed to have received proper instructions with respect to the Receivable Files
upon its receipt of written instructions signed by a Trust Officer of the
Indenture Trustee.
SECTION 3.6. CUSTODIAN'S INDEMNIFICATION. The Servicer as custodian
shall indemnify the Trust, the Trustee and the Indenture Trustee (and each of
their officers, directors, employees and agents) for any and all liabilities,
obligations, losses, compensatory damages, payments, costs or expenses of any
kind whatsoever that may be imposed on, incurred by or asserted against the
Trust, the Trustee or the Indenture Trustee (or any of their officers, directors
and agents) as the result of any improper act or omission in any way relating to
the maintenance and custody by the Servicer as custodian of the Receivable
Files; PROVIDED, HOWEVER, that the Servicer
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shall not be liable: (a) to the Trustee for any portion of any such amount
resulting from the willful misfeasance, bad faith or negligence of the Trustee,
and (b) to the Indenture Trustee for any portion of any such amount resulting
from the wilful misfeasance, bad faith or negligence of the Indenture Trustee;
and, PROVIDED FURTHER, that the Servicer shall only be liable pursuant to this
Section 3.6 for its acts or ommisions committed during the period it is serving
as custodian hereunder. Indemnification under this Section shall survive the
resignation or removal of the Servicer as custodian or the termination of this
Agreement.
SECTION 3.7. EFFECTIVE PERIOD AND TERMINATION. The Servicer's
appointment as custodian shall become effective as of the Initial Cutoff Date
and shall continue in full force and effect until terminated pursuant to this
Section. If any Servicer shall resign as Servicer in accordance with this
Agreement or if all of the rights and obligations of any Servicer shall have
been terminated under Section 8.1, the appointment of such Servicer as custodian
shall be terminated by: (a) the Indenture Trustee, (b) the Noteholders of Notes
evidencing not less than 25% of the Note Balance, (c) with the consent of
Noteholders of Notes evidencing not less than 25% of the Note Balance, the
Trustee or (d) Certificateholders evidencing not less than 25% of the
Certificate Balance, in the same manner as the Indenture Trustee or such Holders
may terminate the rights and obligations of the Servicer under Section 8.1. The
Indenture Trustee or, with the consent of the Indenture Trustee, the Trustee may
terminate the Servicer's appointment as custodian, with cause, at any time upon
written notification to the Servicer, and without cause upon 30 days' prior
written notification to the Servicer. As soon as practicable after any
termination of such appointment, the Servicer shall deliver the Receivable Files
to the Indenture Trustee or the Indenture Trustee's agent at such place(s) as
the Indenture Trustee may reasonably designate.
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 4.1. DUTIES OF SERVICER. The Servicer, for the benefit of the
Issuer, and (to the extent provided herein) the Indenture Trustee shall manage,
service, administer and make collections on the Receivables with reasonable
care, using that degree of skill and attention that the Servicer exercises with
respect to all comparable equipment receivables that it services for itself or
others. The Servicer's duties shall include collection and posting of all
payments, responding to inquiries of Obligors on such Receivables, investigating
delinquencies, sending payment coupons to Obligors, reporting tax information to
Obligors, accounting for collections and furnishing monthly and annual
statements to the Trustee and the Indenture Trustee with respect to
distributions. Subject to Section 4.2, the Servicer shall follow its customary
standards, policies and procedures in performing its duties as Servicer.
Notwithstanding anything herein to the contrary, it is understood and agreed
that,
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subject to Section 4.2, in servicing the NH Receivables the Servicer shall
follow NH Credit's customary standards, policies and procedures in performing
its duties as Servicer with respect to the NH Receivables.
Without limiting the generality of the foregoing, the Servicer is
authorized and empowered to execute and deliver, on behalf of itself, the
Issuer, the Trustee, the Indenture Trustee, the Certificateholders, the
Noteholders or any of them, any and all instruments of satisfaction or
cancellation, or partial or full release or discharge, and all other comparable
instruments, with respect to such Receivables or the Financed Equipment securing
such Receivables. If the Servicer shall commence a legal proceeding to enforce a
Receivable, the Issuer shall thereupon be deemed to have automatically assigned,
solely for the purpose of collection, such Receivable to the Servicer. If in any
enforcement suit or legal proceeding it shall be held that the Servicer may not
enforce a Receivable on the ground that it shall not be a real party in interest
or a holder entitled to enforce such Receivable, the Trustee shall, at the
Servicer's expense and direction, take steps to enforce such Receivable,
including bringing suit in its name or the name of the Trust, the Indenture
Trustee, the Certificateholders or the Noteholders. The Trustee or the Indenture
Trustee shall, upon the written request of the Servicer, furnish the Servicer
with any powers of attorney and other documents reasonably necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties hereunder.
SECTION 4.2. COLLECTION AND ALLOCATION OF RECEIVABLE PAYMENTS. The
Servicer shall make reasonable efforts to collect all payments called for under
the Receivables as and when the same shall become due and shall follow such
collection procedures as it (or, with respect to a NH Receivable, NH Credit)
follows with respect to all comparable equipment receivables that it services
for itself or others. The Servicer shall allocate collections between principal
and interest in accordance with the customary servicing procedures it follows
with respect to all comparable equipment receivables that it (or, with respect
to a NH Receivable, NH Credit) services for itself or others. The Servicer may
grant extensions or adjustments on a Receivable; PROVIDED, HOWEVER, that if the
Servicer extends the date for final payment by the Obligor of any Receivable
beyond the Final Scheduled Maturity Date, it shall promptly purchase the
Receivable from the Issuer in accordance with Section 4.6. The Servicer may, in
its discretion, waive any late payment charge or any other fees (other than
extension fees or any other fees that represent interest charges on deferred
Scheduled Payments) that may be collected in the ordinary course of servicing a
Receivable. The Servicer shall not agree to any decrease of the interest rate on
any Receivable or reduce the aggregate amount of the Scheduled Payments due on
any Receivable.
SECTION 4.3. REALIZATION UPON RECEIVABLES. For the benefit of the
Issuer and the Indenture Trustee, the Servicer shall use reasonable efforts,
consistent with its customary servicing procedures, to repossess or otherwise
convert the ownership
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of the Financed Equipment securing any Receivable as to which the Servicer shall
have determined eventual payment in full is unlikely. The Servicer shall follow
such customary and usual practices and procedures as it shall deem necessary or
advisable in its servicing of equipment receivables, which may include
reasonable efforts to realize upon any recourse to Dealers and selling the
Financed Equipment at public or private sale. The foregoing shall be subject to
the provision that, in any case in which the Financed Equipment shall have
suffered damage, the Servicer shall not expend funds in connection with the
repair or the repossession of such Financed Equipment unless it shall determine
in its discretion that such repair and/or repossession will increase the
Liquidation Proceeds by an amount greater than the amount of such expenses.
SECTION 4.4. MAINTENANCE OF SECURITY INTERESTS IN FINANCED EQUIPMENT.
The Servicer shall, in accordance with its customary servicing procedures, take
such steps as are necessary to maintain perfection of the security interest
created by each Receivable in the related Financed Equipment. The Servicer is
hereby authorized to take such steps as are necessary to re-perfect such
security interest for the benefit of the Issuer and the Indenture Trustee in the
event of the relocation of any Financed Equipment or for any other reason.
SECTION 4.5. COVENANTS OF SERVICER. The Servicer shall not release the
Financed Equipment securing any Receivable from the security interest granted by
such Receivable in whole or in part except in the event of payment in full by
the Obligor thereunder or repossession, nor shall the Servicer impair the rights
of the Issuer, the Indenture Trustee, the Certificateholders or the Noteholders
in such Receivables. The Servicer shall, in accordance with its customary
servicing procedures, require that each Obligor shall have obtained physical
damage insurance covering the Financed Equipment as of the execution of the
Receivable.
SECTION 4.6. PURCHASE OF RECEIVABLES UPON BREACH. The Servicer or the
Trustee shall inform the other party, the Indenture Trustee, the Seller and Case
Credit promptly, in writing, upon the discovery of any breach pursuant to
Section 4.2, 4.4 or 4.5. Unless the breach shall have been cured by the last day
of the Collection Period in which such breach is discovered, the Servicer shall
purchase any Receivable materially and adversely affected by such breach as of
such last day. If the Servicer takes any action during any Collection Period
pursuant to Section 4.2 that impairs the rights of the Issuer, the Indenture
Trustee, the Certificateholders or the Noteholders in any Receivable or as
otherwise provided in Section 4.2, the Servicer shall purchase such Receivable
as of the last day of such Collection Period. As consideration for the purchase
of any such Receivable pursuant to either of the two preceding sentences, the
Servicer shall remit the Purchase Amount in the manner specified in Section 5.4.
Subject to Section 7.2, the sole remedy of the Issuer, the Trustee, the
Indenture Trustee, the Certificateholders or the Noteholders with respect to a
breach pursuant to Section 4.2, 4.4 or 4.5 shall be to require the Servicer to
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purchase Receivables pursuant to this Section. The Trustee shall have no duty to
conduct any affirmative investigation as to the occurrence of any condition
requiring the purchase of any Receivable pursuant to this Section.
SECTION 4.7. SERVICING FEE. The Servicing Fee for each Collection
Period shall be equal to 1/12th of 1.00% of the Pool Balance as of the first day
of such Collection Period.
SECTION 4.8. SERVICER'S CERTIFICATE. On each Determination Date the
Servicer shall deliver to the Trustee, the Indenture Trustee and the Seller,
with a copy to the Rating Agencies, a Servicer's Certificate containing all
information necessary to make the distributions pursuant to Sections 5.5 and 5.6
and the deposits to the Collection Account pursuant to Section 5.2 for the
Collection Period preceding the date of such Servicer's Certificate. Receivables
to be repurchased by the Seller or purchased by the Servicer shall be identified
by the Servicer by account number with respect to such Receivable (as specified
in the schedule of Receivables delivered on the Closing Date or attached to the
applicable Second-Tier Case Subsequent Transfer Assignment).
SECTION 4.9. ANNUAL STATEMENT AS TO COMPLIANCE; NOTICE OF DEFAULT. (a)
The Servicer shall deliver to the Trustee and the Indenture Trustee, on or
before April 30th of each year, an Officers' Certificate, dated as of December
31 of the preceding year, stating that: (i) a review of the activities of the
Servicer during the preceding 12-month period (or, in the case of the first such
certificate, from the Initial Cutoff Date to December 31, 2000) and of its
performance under this Agreement has been made under such officers' supervision
and (ii) to the best of such officers' knowledge, based on such review, the
Servicer has fulfilled all its obligations under this Agreement throughout such
year or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officers and the nature and status
thereof. The Indenture Trustee shall send a copy of such Certificate and the
report referred to in Section 4.10 to the Rating Agencies. A copy of such
Certificate and report may be obtained by any Certificateholder or Noteholder by
a request in writing to the Trustee addressed to the Corporate Trust Office.
Upon the written request of the Trustee, the Indenture Trustee will promptly
furnish the Trustee a list of Noteholders as of the date specified by the
Trustee.
(b) The Servicer shall deliver to the Trustee, the Indenture Trustee
and the Rating Agencies, promptly after having obtained knowledge thereof, but
in no event later than five Business Days thereafter, written notice in an
Officers' Certificate of any event that, with the giving of notice or lapse of
time, or both, would become a Servicer Default under Section 8.1(a) or (b).
SECTION 4.10. ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS' REPORT.
The Servicer shall cause a firm of independent certified public accountants,
which
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may also render other services to the Servicer, the Seller or any other
Affiliate of CNH Global, to deliver to the Trustee and the Indenture Trustee on
or before April 30 of each year a report, addressed to the Board of Directors of
the Servicer, the Trustee and the Indenture Trustee, summarizing the results of
certain procedures with respect to certain documents and records relating to the
servicing of the Receivables during the preceding calendar year (or, in the case
of the first such report, during the period from the Initial Cutoff Date to
December 31, 2000). The procedures to be performed and reported upon by the
independent public accountants shall be those agreed to by the Servicer and the
Indenture Trustee.
Such report will also indicate that the firm is independent of the
Servicer within the meaning of the Code of Professional Ethics of the American
Institute of Certified Public Accountants.
SECTION 4.11. ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING
RECEIVABLES. The Servicer shall provide to the Trustee and the Indenture Trustee
access to the Receivable Files in such cases where the Trustee or the Indenture
Trustee shall be required by applicable statutes or regulations to review such
documentation. Access shall be afforded without charge, but only upon reasonable
request and during the normal business hours at the respective offices of the
Servicer (or, in the case of the NH Receivables, NH Credit). Nothing in this
Section shall affect the obligation of the Servicer to observe any applicable
law prohibiting disclosure of information regarding the Obligors, and the
failure of the Servicer to provide access to information as a result of such
obligation shall not constitute a breach of this Section.
SECTION 4.12. SERVICER EXPENSES. The Servicer shall be required to pay
all expenses incurred by it in connection with its activities hereunder,
including fees and disbursements of independent accountants, taxes imposed on
the Servicer and expenses incurred in connection with distributions and reports
to Certificateholders and the Noteholders.
SECTION 4.13. APPOINTMENT OF SUBSERVICER. The Servicer may at any time
appoint a subservicer to perform all or any portion of its obligations as
Servicer hereunder; PROVIDED, HOWEVER, that the Rating Agency Condition shall
have been satisfied in connection therewith (other than with respect to the
appointment of NH Credit, as subservicer, with respect to the NH Receivables);
and PROVIDED FURTHER, that the Servicer shall remain obligated and be liable to
the Issuer, the Trustee, the Indenture Trustee the Certificateholders and the
Noteholders for the servicing and administering of the Receivables in accordance
with the provisions hereof without diminution of such obligation and liability
by virtue of the appointment of such subservicer and to the same extent and
under the same terms and conditions as if the Servicer alone were servicing and
administering the Receivables. The fees and expenses of the subservicer shall be
as agreed between the Servicer and its
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subservicer from time to time and none of the Issuer, the Trustee, the Indenture
Trustee, the Certificateholders or the Noteholders shall have any responsibility
therefor.
ARTICLE V
DISTRIBUTIONS: SPREAD ACCOUNT;
STATEMENTS TO CERTIFICATEHOLDERS AND NOTEHOLDERS
SECTION 5.1. ESTABLISHMENT OF TRUST ACCOUNTS. (a)(i) The Servicer, for
the benefit of the Noteholders and the Certificateholders, shall establish and
maintain in the name of the Indenture Trustee an Eligible Deposit Account (the
"Collection Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Noteholders and the
Certificateholders.
(ii) The Servicer, for the benefit of the Noteholders, shall
establish and maintain in the name of the Indenture Trustee an Eligible
Deposit Account (the "NOTE DISTRIBUTION ACCOUNT"), bearing a
designation clearly indicating that the funds deposited therein are
held for the benefit of the Noteholders.
(iii) The Servicer, for the benefit of the Noteholders, shall
establish and maintain in the name of the Indenture Trustee an Eligible
Deposit Account (the "SPREAD ACCOUNT"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of
the Noteholders.
(iv) The Servicer, for the benefit of the Noteholders and the
Certificateholders, shall establish and maintain in the name of the
Indenture Trustee an Eligible Deposit Account (the "PRE-FUNDING
ACCOUNT"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Noteholders and the
Certificateholders.
(v) The Servicer, for the benefit of the Noteholders and the
Certificateholders, shall establish and maintain in the name of the
Indenture Trustee an Eligible Deposit Account (the "NEGATIVE CARRY
ACCOUNT"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Noteholders and the
Certificateholders.
(vi) The Servicer, for the benefit of the Noteholders and the
Certificateholders, shall establish and maintain in the name of the
Indenture Trustee an Eligible Deposit Account (the "PRINCIPAL
SUPPLEMENT ACCOUNT"), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Noteholders and
the Certificateholders.
15
(b) Funds on deposit in the Collection Account, the Note Distribution
Account, the Spread Account, the Pre-Funding Account, the Negative Carry Account
and the Principal Supplement Account, (collectively, the "TRUST ACCOUNTS") shall
be invested or reinvested by the Indenture Trustee in Eligible Investments
selected by and as directed in writing by the Servicer (which written direction
may be in the form of standing instructions); PROVIDED, HOWEVER, it is
understood and agreed that the Indenture Trustee shall not be liable for the
selection of, or any loss arising from such investment in, Eligible Investments.
All such Eligible Investments shall be held by the Indenture Trustee for the
benefit of the Noteholders and the Certificateholders or the Noteholders, as
applicable (and for the purposes of Article 8 of the UCC, each Eligible
Investment is intended to constitute a Financial Asset, and each of the Trust
Accounts is intended to constitute a Securities Account); PROVIDED, that on each
Transfer Date, all Investment Earnings on funds on deposit therein shall be
deposited into the Collection Account and shall be deemed to constitute a
portion of the Total Distribution Amount. Other than as permitted by the Rating
Agencies, funds on deposit in the Trust Accounts shall be invested in Eligible
Investments that will mature so that such funds will be available at the close
of business on the Transfer Date preceding the following Payment Date; PROVIDED,
HOWEVER, that funds on deposit in Trust Accounts may be invested in Eligible
Investments of the entity serving as Indenture Trustee that may mature so that
such funds will be available on the Payment Date. Funds deposited in a Trust
Account on the Transfer Date that precedes a Payment Date upon the maturity of
any Eligible Investments are not required to be invested overnight.
(c)(i) The Indenture Trustee shall possess all right, title and
interest in all funds on deposit from time to time in the Trust Accounts and in
all proceeds thereof (including all income thereon) and all such funds,
investments, proceeds and income shall be part of the Trust Estate. The Trust
Accounts shall be under the sole dominion and control of the Indenture Trustee
for the benefit of the Noteholders and the Certificateholders or the
Noteholders, as the case may be. If, at any time, any of the Trust Accounts
ceases to be an Eligible Deposit Account, the Indenture Trustee (or the Servicer
on its behalf) shall within 10 Business Days (or such longer period, not to
exceed 30 calendar days, as to which each Rating Agency may consent) establish a
new Trust Account as an Eligible Deposit Account and shall transfer any cash
and/or any investments held in the no-longer Eligible Deposit Account to such
new Trust Account.
(ii) With respect to the Trust Account Property, the Indenture
Trustee agrees, by its acceptance hereof, that:
(A) any Trust Account Property that is held in
deposit accounts shall be held solely in Eligible Deposit
Accounts, subject to the last sentence of Section 5.1(c)(i);
and each such Eligible Deposit Account shall be subject to the
exclusive custody and control of the
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Indenture Trustee, and the Indenture Trustee shall have sole
signature authority with respect thereto;
(B) any Trust Account Property that constitutes a
Certificated Security shall be delivered to the Indenture
Trustee in accordance with paragraph (i) of the definition of
"Delivery" and shall be held, pending maturity or disposition,
solely by the Indenture Trustee;
(C) any such Trust Account Property that constitutes
an Uncertificated Security (including any investments in money
market mutual funds, but excluding any Federal Book Entry
Security) shall be delivered to the Indenture Trustee in
accordance with paragraph (ii) of the definition of "Delivery"
and shall be maintained, pending maturity or disposition,
through continued registration of the Indenture Trustee's (or
its nominee's) ownership of such security; and
(D) with respect to any Trust Account Property that
constitutes a Federal Book Entry Security, the Indenture
Trustee shall maintain and obtain Control over such property.
(iii) The Servicer shall have the power, revocable by the
Indenture Trustee or by the Trustee, with the consent of the Indenture
Trustee, to instruct the Indenture Trustee to make withdrawals and
payments from the Trust Accounts for the purpose of permitting the
Servicer or the Trustee to carry out its respective duties hereunder or
permitting the Indenture Trustee to carry out its duties under the
Indenture.
(d) All Trust Accounts will initially be established at the Indenture
Trustee.
SECTION 5.2. COLLECTIONS. The Servicer shall, and shall cause any
subservicer to, remit within two Business Days of receipt thereof to the
Collection Account all payments by or on behalf of the Obligors with respect to
the Receivables, and all Liquidation Proceeds, both as collected during the
Collection Period. Notwithstanding the foregoing, for so long as: (i) Case
Credit remains the Servicer, (ii) no Servicer Default shall have occurred and be
continuing and (iii) prior to ceasing daily remittances, the Rating Agency
Condition shall have been satisfied (and any conditions or limitations imposed
by the Rating Agencies in connection therewith are complied with), the Servicer
shall remit such collections with respect to the related Collection Period to
the Collection Account on the Transfer Date immediately following the end of
such Collection Period. For purposes of this Article V, the phrase "payments by
or on behalf of the Obligors" shall mean payments made with respect to the
Receivables by Persons other than the Servicer or the Seller.
17
SECTION 5.3. APPLICATION OF COLLECTIONS. (a) With respect to each
Receivable, all collections for the Collection Period shall be applied to the
related Scheduled Payment.
(b) All Liquidation Proceeds shall be applied to the related
Receivable.
SECTION 5.4. ADDITIONAL DEPOSITS. The Servicer and the Seller shall
deposit or cause to be deposited in the Collection Account the aggregate
Purchase Amount with respect to Purchased Receivables on the Transfer Date
related to the Collection Period on the last day of which the purchase occurs,
and the Servicer shall deposit therein all amounts to be paid under Section 9.1
on the Transfer Date falling in the Collection Period referred to in Section
9.1. The Servicer shall deposit the aggregate Purchase Amount with respect to
Purchased Receivables when such obligations are due, unless the Servicer shall
not be required to make daily deposits pursuant to Section 5.2, in which case
such deposits shall be made on the Transfer Date following the related
Collection Period.
SECTION 5.5. DISTRIBUTIONS. (a) On each Determination Date, the
Servicer shall calculate all amounts required to determine the amounts to be
deposited in the Note Distribution Account, the Certificate Distribution Account
and the Spread Account.
(b) On each Payment Date, the Servicer shall instruct the Indenture
Trustee (based on the information contained in the Servicer's Certificate
delivered on the related Determination Date pursuant to Section 4.8) to make
from the Collection Account the following deposits and distributions for receipt
by the Servicer or deposit in the applicable Trust Account or Certificate
Distribution Account, as applicable, by 10:00 a.m. (New York time), to the
extent of the Total Distribution Amount, in the following order of priority:
(i) to the Administrator, the Administration Fee and all
unpaid Administration Fees from prior Collection Periods;
(ii) to the Note Distribution Account, the Class Interest
Amount for each Class of Class A Notes;
(iii) to the Note Distribution Account, the Class Interest
Amount for the Class B Notes;
(iv) to the Note Distribution Account, the Class Principal
Distributable Amount for each Class of Class A Notes;
(v) to the Note Distribution Account, the Class B Noteholders'
Monthly Principal Distributable Amount;
18
(vi) to the Spread Account to the extent necessary so that the
balance on deposit therein will equal the Specified Spread Account
Balance;
(vii) to the Certificate Distribution Account, the Certifi-
cateholders' Interest Distributable Amount;
(viii) to the Certificate Distribution Account, the Certifi-
cateholders' Monthly Principal Distributable Amount;
(ix) to the Servicer, the Servicing Fee and all unpaid
Servicing Fees from prior Collection Periods; provided that if Case
Credit or an Affiliate of Case Credit is not the Servicer, the amounts
described in this clause (ix) will be paid prior to any other
application of funds on deposit in the Collection Account; and
(x) to the Seller, the remaining Total Distribution Amount;
(c) On the A-1 Note Final Scheduled Maturity Date, the Servicer shall
instruct the Indenture Trustee to deposit from the Collection Account into the
Note Distribution Account by 10:00 a.m. (New York time), to the extent of
available funds on such day, an amount equal to the sum of (i) the aggregate
accrued and unpaid interest on the Class A-1 Notes as of the A-1 Note Final
Scheduled Maturity Date, and (ii) the amount necessary to reduce the outstanding
principal amount of the Class A-1 Notes to zero.
It is understood and agreed that, with respect to the amounts to be
distributed pursuant to this Section 5.5(c), the Servicer shall, to the extent
necessary (i) deposit into the Collection Account any amounts received as
payments by or on behalf of any Obligor (and not previously deposited into the
Collection Account) on or prior to the A-1 Note Final Scheduled Maturity Date,
(ii) make each calculation that would otherwise be made on a Determination Date
(with appropriate adjustments) in accordance with Section 4.8 on the Business
Day immediately proceeding the A-1 Note Final Scheduled Maturity Date, (iii) on
the Payment Date immediately succeeding the A-1 Note Final Scheduled Maturity
Date, make any adjustments to the Class Principal Distributable Amount, the
Class Interest Amount and any other amount to be paid on such Payment Date, and
(iv) make any other calculation, adjustment or correction that may be required
as result of any payment made on the A-1 Note Final Scheduled Maturity Date.
SECTION 5.6. SPREAD ACCOUNT. (a) On the Closing Date and on each
Subsequent Transfer Date, the Seller shall deposit the applicable Spread Account
Initial Deposit into the Spread Account.
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(b) If the amount on deposit in the Spread Account on any Payment Date
(after giving effect to all deposits or withdrawals therefrom on such Payment
Date) is greater than the Specified Spread Account Balance for such Payment
Date, the Servicer shall instruct the Indenture Trustee to distribute the amount
of the excess to the Seller (and its transferees and assignees in accordance
with their respective interests); PROVIDED, that if, after giving effect to all
payments made on the Notes on such Payment Date, the sum of the Pool Balance and
the Pre-Funded Amount as of the first day of the Collection Period in which such
Payment Date occurs is less than the sum of the Note Balance and the Certificate
Balance, such excess shall not be distributed to the Seller (or such transferees
or assignees) and shall be retained in the Spread Account for application in
accordance with this Agreement. Amounts properly distributed pursuant to this
Section 5.6(b) shall be deemed released from the Trust and the security interest
therein granted to the Indenture Trustee, and the Seller (and such transferees
and assignees) shall in no event thereafter be required to refund any such
distributed amounts.
(c) Following: (i) the payment in full of the aggregate Outstanding
Amount of the Notes and of all other amounts owing or to be distributed
hereunder or under the Indenture to the Noteholders, the Trustee and the
Indenture Trustee and (ii) the termination of the Trust, any amount remaining on
deposit in the Spread Account shall be distributed to the Seller or any
transferee or assignee pursuant to clause (g). The Seller (and such transferees
and assignees) shall in no event be required to refund any amounts properly
distributed pursuant to this Section 5.6(c).
(d) In the event that the Noteholders' Distributable Amount for a
Payment Date exceeds the amount deposited into the Note Distribution Account
pursuant to Sections 5.5(b)(ii), (iii), (iv) and (v) on such Payment Date, the
Servicer shall instruct the Indenture Trustee on such Payment Date to withdraw
from the Spread Account on such Payment Date an amount equal to such excess, to
the extent of funds available therein, and deposit such amount into the Note
Distribution Account.
(e) In the event that the Class Principal Distributable Amount for any
Class of Notes for the applicable final scheduled maturity date for such Class
of Notes exceeds the remainder of the Total Distribution Amount for that Payment
Date after subtracting the Class Principal Distributable Amount for each Class
of Notes having priority over such Class of Notes, the Servicer shall instruct
the Indenture Trustee on such Payment Date to withdraw from the Spread Account
on such Payment Date an amount equal to such excess, to the extent of funds
available therein, and deposit such amount into the Note Distribution Account.
(f) [Reserved]
(g) The Seller may at any time, without consent of the Noteholders,
sell, transfer, convey or assign in any manner its rights to and interests in
distributions
20
from the Spread Account, including interest and other investment earnings
thereon; PROVIDED, that the Rating Agency Condition is satisfied.
SECTION 5.7. PRE-FUNDING ACCOUNT. (a) On the Closing Date, the Trustee
will deposit, on behalf of the Seller, in the Pre-Funding Account
$427,816,312.54 from the net proceeds of the sale of the Notes and the
Certificates. On each Subsequent Transfer Date, the Servicer shall instruct the
Indenture Trustee to withdraw from the Pre-Funding Account an amount equal to:
(i) the aggregate Contract Value of the Subsequent Receivables transferred to
the Issuer on such Subsequent Transfer Date LESS the amounts described in clause
(ii) and clause (iii) below, and distribute such amount to or upon the order of
the Seller upon satisfaction of the conditions set forth in Section 2.2(b) with
respect to such transfer, (ii) the Spread Account Initial Deposit for such
Subsequent Transfer Date and, on behalf of the Seller, deposit such amount in
the Spread Account and (iii) the Principal Supplement Account Deposit for such
Subsequent Transfer Date, and, on behalf of the Seller, deposit such amount in
the Principal Supplement Account.
(b) If: (i) the Pre-Funded Amount has not been reduced to zero on the
Payment Date on which the Funding Period ends (or, if the Funding Period does
not end on a Payment Date, on the first Payment Date following the end of the
Funding Period) or (ii) the Pre-Funded Amount has been reduced to $100,000 or
less on any Determination Date, in either case after giving effect to any
reductions in the Pre-Funded Amount on such date pursuant to paragraph (a), the
Servicer shall instruct the Indenture Trustee to withdraw from the Pre-Funding
Account, in the case of clause (i), on such Payment Date or, in the case of
clause (ii), on the Payment Date immediately succeeding such Determination Date,
the amount remaining at the time in the Pre-Funding Account (such remaining
amount being the "REMAINING PRE-FUNDED AMOUNT") and deposit such amounts in the
Collection Account, for inclusion in the Total Distribution Amount for that
Payment Date.
SECTION 5.8. NEGATIVE CARRY ACCOUNT. On the Closing Date, the Seller
shall deposit the Negative Carry Account Initial Deposit into the Negative Carry
Account. On each Payment Date, the Servicer will instruct the Indenture Trustee
to withdraw from the Negative Carry Account and deposit into the Collection
Account an amount equal to the Negative Carry Amount for such Collection Period.
If the amount on deposit in the Negative Carry Account on any Payment Date
(after giving effect to the withdrawal therefrom of the Negative Carry Amount
for such Payment Date) is greater than the Required Negative Carry Account
Balance, the excess will be released to the Seller.
SECTION 5.9. PRINCIPAL SUPPLEMENT ACCOUNT. On each Subsequent Transfer
Date the Servicer shall calculate the amount, if any, of the Principal
Supplement Account Deposit applicable to such Subsequent Transfer Date, and, if
such amount is positive, the Seller shall deposit such amount into the Principal
Supplement
21
Account. In the event that the Noteholders' Distributable Amount for a Payment
Date exceeds the amount deposited into the Note Distribution Account pursuant to
Sections 5.5(b)(ii), (iii), (iv) and (v) and Section 5.6(d) on such Payment
Date, the Servicer shall instruct the Indenture Trustee on such Payment Date to
withdraw from the Principal Supplement Account on such Payment Date an amount
equal to such excess, to the extent of funds available therein, and deposit such
amount into the Note Distribution Account. In the event that the Class Principal
Distributable Amount for any Class of Notes for the applicable final scheduled
maturity date for such Class of Notes exceeds the remainder of the Total
Distribution Amount and the amounts available in the Spread Account pursuant to
Section 5.6(e) for that Payment Date after subtracting the Class Principal
Distributable Amount for each Class of Notes having priority over such Class of
Notes, the Servicer shall instruct the Indenture Trustee on such Payment Date to
withdraw from the Principal Supplement Account on such Payment Date an amount
equal to such excess, to the extent of funds available therein, and deposit such
amount into the Note Distribution Account. Funds on deposit in the Principal
Supplement Account may be withdrawn and paid to the Seller on any day if each
Rating Agency has confirmed that such action will not result in a withdrawal or
downgrade of its rating of any Class of Notes.
SECTION 5.10. STATEMENTS TO CERTIFICATEHOLDERS AND NOTEHOLDERS. (a) On
each Determination Date the Servicer shall provide to the Indenture Trustee
(with a copy to the Rating Agencies), for the Indenture Trustee to forward to
each Noteholder of record, and to the Trustee, for the Trustee to forward to
each Certificateholder of record, a statement substantially in the form of
Exhibits A and B, respectively, setting forth at least the following information
as to each Class of the Notes and the Certificates to the extent applicable:
(i) the amount of such distribution allocable to principal of
each Class of Notes;
(ii) the amount of the distribution allocable to interest of
each Class of Notes;
(iii) the amount of the distribution allocable to principal of
the Certificates;
(iv) the amount of the distribution allocable to interest on
the Certificates;
(v) the Pool Balance as of the close of business on the last
day of the preceding Collection Period;
(vi) the aggregate Outstanding Amount and the Note Pool Factor
for each Class of Notes, and the Certificate Balance and the
Certificate Pool
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Factor as of such Payment Date, after giving effect to payments
allocated to principal reported under clauses (i) and (iii) above;
(vii) the amount of the Servicing Fee paid to the Servicer
with respect to the preceding Collection Period;
(viii) the amount of the Administration Fee paid to the
Administrator in respect of the preceding Collection Period;
(ix) the amount of the aggregate Realized Losses, if any, for
such Collection Period;
(x) the aggregate Purchase Amounts for Receivables, if any,
that were repurchased or purchased in such Collection Period;
(xi) the balance of the Spread Account on such Payment Date,
after giving effect to changes therein on such Payment Date;
(xii) for Payment Dates during the Funding Period, the
remaining Pre-Funded Amount;
(xiii) for the final Payment Date with respect to the Funding
Period, the amount of any remaining Pre-Funded Amount that has not been
used to fund the purchase of Subsequent Receivables;
(xiv) the balance of the Principal Supplement Account on such
Payment Date, after giving effect to changes therein on such Payment
Date; and
(xv) the balance of the Negative Carry Account on such Payment
Date, after giving effect to changes therein on such Payment Date.
Each amount set forth pursuant to clauses (i), (ii), (iii), (iv), (vii) and
(viii) shall be expressed as a dollar amount per $1,000 of original principal
balance of a Certificate or Note, as applicable.
SECTION 5.11. NET DEPOSITS. As an administrative convenience, unless
the Servicer is required to remit collections daily, the Servicer will be
permitted to make the deposit of collections net of distributions, if any, to be
made to the Servicer with respect to the Collection Period. The Servicer,
however, will account to the Trustee, the Indenture Trustee, the Noteholders and
the Certificateholders as if all deposits, distributions and transfers were made
individually.
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ARTICLE VI
THE SELLER
SECTION 6.1. REPRESENTATIONS OF SELLER. The Seller makes the following
representations on which the Issuer is deemed to have relied in acquiring the
Receivables. The representations speak as of the execution and delivery of this
Agreement and shall survive the sale of the Receivables to the Issuer and the
pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) ORGANIZATION AND GOOD STANDING. The Seller is duly
organized and validly existing as a corporation in good standing under
the laws of the State of Delaware, with the corporate 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 corporate power,
authority and legal right to acquire, own and sell the Receivables.
(b) DUE QUALIFICATION. The Seller 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. The Seller has the power and
authority to execute and deliver this Agreement and to carry out its
terms; the Seller has full power and authority to sell and assign the
property to be sold and assigned to and deposited with the Issuer and
has duly authorized such sale and assignment to the Issuer by all
necessary corporate action; and the execution, delivery and performance
of this Agreement have been, and the execution, delivery and
performance of each Second-Tier Case Subsequent Transfer Assignment
have been or will be on or before the related Subsequent Transfer Date,
duly authorized by the Seller by all necessary corporate action.
(d) BINDING OBLIGATION. This Agreement constitutes, and each
Second-Tier Case Subsequent Transfer Assignment when executed and
delivered by the Seller will constitute, a legal, valid and binding
obligation of the Seller enforceable in accordance with their 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 the
Seller, or any indenture, agreement or other instrument to which the
Seller is a party or by which it
24
shall be 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 Basic Documents); or
violate any law or, to the best of the Seller's knowledge, any order,
rule or regulation applicable to the Seller of any court or of any
Federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Seller or its
properties.
(f) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the Seller's best knowledge, threatened, before any
court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties:
(i) asserting the invalidity of this Agreement, the Indenture or any of
the other Basic Documents, the Notes or the Certificates, (ii) seeking
to prevent the issuance of the Notes or the Certificates or the
consummation of any of the transactions contemplated by this Agreement,
the Indenture or any of the other Basic Documents, (iii) seeking any
determination or ruling that could reasonably be expected to materially
and adversely affect the performance by the Seller of its obligations
under, or the validity or enforceability of, this Agreement, the
Indenture, any of the other Basic Documents, the Notes or the
Certificates or (iv) that might adversely affect the Federal or state
income tax attributes of the Notes or the Certificates.
SECTION 6.2. CORPORATE EXISTENCE. (a) During the term of this
Agreement, the Seller will keep in full force and effect its existence, rights
and franchises as a corporation under the laws of the jurisdiction of its
incorporation and will obtain and preserve its qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, the Basic Documents
and each other instrument or agreement necessary or appropriate to the proper
administration of this Agreement and the transactions contemplated hereby.
(b) During the term of this Agreement, the Seller shall observe the
applicable legal requirements for the recognition of the Seller as a legal
entity separate and apart from its Affiliates, including as follows:
(i) the Seller shall maintain corporate records and books of
account separate from those of its Affiliates;
(ii) except as otherwise provided in this Agreement and
similar arrangements relating to other securitizations, the Seller
shall not commingle its assets and funds with those of its Affiliates;
25
(iii) the Seller shall hold such appropriate meetings or
obtain such appropriate consents of its Board of Directors as are
necessary to authorize all the Seller's corporate actions required by
law to be authorized by the Board of Directors, shall keep minutes of
such meetings and of meetings of its stockholder(s) and observe all
other customary corporate formalities (and any successor Seller not a
corporation shall observe similar procedures in accordance with its
governing documents and applicable law);
(iv) the Seller shall at all times hold itself out to the
public under the Seller's own name as a legal entity separate and
distinct from its Affiliates; and
(v) all transactions and dealings between the Seller and its
Affiliates will be conducted on an arm's-length basis.
SECTION 6.3. LIABILITY OF SELLER; INDEMNITIES. The Seller shall be
liable in accordance herewith only to the extent of the obligations specifically
undertaken by the Seller under this Agreement.
(a) The Seller shall indemnify, defend and hold harmless the
Issuer, the Trustee and the Indenture Trustee (and their officers,
directors, employees and agents) from and against any taxes that may at
any time be asserted against any of them with respect to the sale of
the Receivables to the Issuer 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 the Issuer, not including any taxes asserted
with respect to ownership of the Receivables or Federal or other income
taxes arising out of the transactions contemplated by this Agreement)
and costs and expenses in defending against the same.
(b) The Seller shall indemnify, defend and hold harmless the
Issuer, the Trustee and the Indenture Trustee (and their officers,
directors, employees and agents) from and against any loss, liability
or expense incurred by reason of the Seller's willful misfeasance, bad
faith or negligence in the performance of its duties under this
Agreement, or by reason of reckless disregard of its obligations and
duties under this Agreement.
Indemnification under this Section shall survive the resignation or
removal of the Trustee or the Indenture Trustee or the termination of this
Agreement and the Indenture and shall include reasonable fees and expenses of
counsel and expenses of litigation. If the Seller shall have made any indemnity
payments pursuant to this Section and the Person to or on behalf of whom such
payments are made thereafter shall collect any of such amounts from others, such
Person shall promptly repay such amounts to the Seller, without interest.
26
SECTION 6.4. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, SELLER. Any Person: (a) into which the Seller may be merged or
consolidated, (b) that may result from any merger or consolidation to which the
Seller shall be a party or (c) that may succeed to the properties and assets of
the Seller substantially as a whole, which Person (in any of the foregoing
cases) executes an agreement of assumption to perform every obligation of the
Seller under this Agreement (or is deemed by law to have assumed such
obligations), shall be the successor to the Seller hereunder without the
execution or filing of any document or any further act by any of the parties to
this Agreement; PROVIDED, HOWEVER, that: (i) immediately after giving effect to
such transaction, no representation or warranty made pursuant to Section 3.1
shall have been breached and no Servicer Default, and no event that, after
notice or lapse of time, or both, would become a Servicer Default shall have
occurred and be continuing, (ii) the Seller shall have delivered to the Trustee
and the Indenture Trustee an Officers' Certificate and an Opinion of Counsel
each stating that such consolidation, merger or succession and such agreement of
assumption comply with this Section and that all conditions precedent, if any,
provided for in this Agreement relating to such transaction have been complied
with, (iii) the Rating Agency Condition shall have been satisfied with respect
to such transaction and (iv) the Seller shall have delivered to the Trustee and
the Indenture Trustee an Opinion of Counsel either: (A) stating that, in the
opinion of such counsel, all financing statements, continuation statements and
amendments thereto have been executed and filed that are necessary fully to
preserve and protect the interest of the Trustee and Indenture Trustee,
respectively, in the Receivables and reciting the details of such filings, or
(B) stating that, in the opinion of such counsel, no such action shall be
necessary to preserve and protect such interests. Notwithstanding anything
herein to the contrary, the execution of the foregoing agreement of assumption
and compliance with clauses (i), (ii), (iii) and (iv) shall be conditions to the
consummation of the transactions referred to in clauses (a), (b) or (c).
SECTION 6.5. LIMITATION ON LIABILITY OF SELLER AND OTHERS. The Seller
and any director, officer, employee or agent of the Seller may rely in good
faith on the advice of counsel or on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Seller shall not be under any obligation to appear in, prosecute
or defend any legal action that shall not be incidental to its obligations under
this Agreement, and that in its opinion may involve it in any expense or
liability.
SECTION 6.6. SELLER MAY OWN CERTIFICATES OR NOTES. The Seller and any
Affiliate thereof may in its individual or any other capacity become the owner
or pledgee of Certificates or the Notes with the same rights as it would have if
it were not the Seller or an Affiliate thereof, except as expressly provided
herein or in any other Basic Document.
27
Notwithstanding the foregoing, the Seller shall not sell the
Certificates except to an entity (a) that has provided an opinion of counsel to
the effect that such sale will not cause the Trust to be treated as a "publicly
traded partnership" under the Code and (b) that either (i) is not an Affiliate
of the Seller or (ii) is an Affiliate of the Seller that (A) is a subsidiary of
Case Credit, the Certificate of Incorporation of which contains restrictions
substantially similar to the restrictions contained in the Certificate of
Incorporation of the Seller and (B) has provided an opinion of counsel regarding
substantive consolidation of such Affiliate with Case Credit in the event of a
bankruptcy filing by Case Credit which is substantially similar to the opinion
of counsel provided by Seller on the Closing Date, and which may be subject to
the same assumptions and qualifications as that opinion.
ARTICLE VII
The Servicer
SECTION 7.1. REPRESENTATIONS OF SERVICER. The Servicer makes the
following representations on which the Issuer is deemed to have relied in
acquiring the Receivables. The representations speak as of the execution and
delivery of the 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, and shall survive the sale of the Receivables to the
Issuer and the pledge thereof to the Indenture Trustee pursuant to the
Indenture.
(a) Organization and Good Standing. The Servicer is duly
organized and validly existing as a corporation in good standing under
the laws of the state of its incorporation, with the corporate 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, authority
and legal right to acquire, own, sell and service the Receivables and
to hold the Receivable Files as custodian.
(b) Due Qualification. The Servicer 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
(including the servicing of the Receivables as required by this
Agreement) shall require such qualifications.
(c) Power and Authority. The Servicer has the corporate 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 the Servicer by all necessary
corporate action.
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(d) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of the Servicer enforceable against the
Servicer in accordance with its terms.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
shall 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 articles of incorporation or by-laws of the
Servicer, or any indenture, agreement or other instrument to which the
Servicer is a party or by which it shall be 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 the
Servicer's knowledge, any order, rule or regulation applicable to the
Servicer of any court or of any Federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Servicer or its properties.
(f) No Proceedings. There are no proceedings or investigations
pending, or, to the Servicer's best knowledge, threatened, before any
court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Servicer or its
properties: (i) asserting the invalidity of this Agreement, the
Indenture, any of the other Basic Documents, the Notes or the
Certificates, (ii) seeking to prevent the issuance of the Notes or the
Certificates or the consummation of any of the transactions
contemplated by this Agreement, the Indenture or any of the other Basic
Documents, (iii) seeking any determination or ruling that could
reasonably be expected to materially and adversely affect the
performance by the Servicer of its obligations under, or the validity
or enforceability of, this Agreement, the Indenture, any of the other
Basic Documents, the Notes or the Certificates or (iv) relating to the
Servicer and that might adversely affect the Federal or state income
tax attributes of the Notes or the Certificates.
(g) No Insolvent Obligors. As of the Initial Cutoff Date or,
in the case of the Subsequent Receivables, as of the related Subsequent
Cutoff Date, no Obligor is shown on the Receivable Files as the subject
of a bankruptcy proceeding.
SECTION 7.2. Indemnities of Servicer. The Servicer shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer under this Agreement.
29
(a) The Servicer shall defend, indemnify and hold harmless the
Issuer, the Trustee, the Indenture Trustee, the Noteholders, the
Certificateholders and the Seller (and any of their officers,
directors, employees and agents) from and against any and all costs,
expenses, losses, damages, claims and liabilities, arising out of or
resulting from:
(i) the use, ownership or operation by the Servicer
or any Affiliate thereof of any of the Financed Equipment;
(ii) any taxes that may at any time be asserted
against any such Person with respect to the transactions
contemplated herein, including any sales, gross receipts,
general corporation, tangible personal property, privilege or
license taxes (but, in the case of the Issuer, not including
any taxes asserted with respect to, and as of the date of, the
sale of the Receivables to the Issuer or the issuance and
original sale of the Certificates, the Notes, or asserted with
respect to ownership of the Receivables, or Federal or other
income taxes arising out of distributions on the Certificates
or the Notes) and costs and expenses in defending against the
same;
(iii) the negligence, willful misfeasance or bad
faith of the Servicer in the performance of its duties under
this Agreement or by reason of reckless disregard of its
obligations and duties under this Agreement; and
(iv) the Seller's or the Issuer's violation of
Federal or State securities laws in connection with the
offering or sale of the Notes.
(b) The Servicer shall indemnify, defend and hold harmless the
Trustee and the Indenture Trustee (and their respective officers,
directors, employees and agents) from and against all costs, expenses,
losses, claims, damages and liabilities arising out of or incurred in
connection with the acceptance or performance of the trusts and duties
herein and, in the case of the Trustee, in the Trust Agreement
contained, and, in the case of the Indenture Trustee, in the Indenture
contained, except to the extent that such cost, expense, loss, claim,
damage or liability:
(i) shall be due to the willful misfeasance, bad
faith or negligence (except for errors in judgment) of the
Trustee or the Indenture Trustee as applicable; or
(ii) shall arise from the breach by the Trustee of
any of its representations or warranties set forth in Section
7.3 of the Trust Agreement.
30
(c) The Servicer shall pay any and all taxes levied or
assessed upon all or any part of the Trust Estate.
(d) The Servicer shall pay the Indenture Trustee and the
Trustee from time to time reasonable compensation for all services
rendered by the Indenture Trustee under the Indenture or by the Trustee
under the Trust Agreement (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an
express trust).
(e) The Servicer shall, except as otherwise expressly provided
in the Indenture or the Trust Agreement, reimburse either the Indenture
Trustee or the Trustee, respectively, upon its request for all
reasonable expenses, disbursements and advances incurred or made in
accordance with the Indenture or the Trust Agreement, respectively,
(including the reasonable compensation, expenses and disbursements of
its agents and either in-house counsel or outside counsel, but not
both), except any such expense, disbursement or advance as may be
attributable to the Indenture Trustee's or the Trustee's, respectively
negligence, bad faith or willful misfeasance.
For purposes of this Section, in the event of the termination of the
rights and obligations of the Servicer pursuant to Section 8.1, or a resignation
by the Servicer pursuant to this Agreement, the Servicer shall be deemed to be
the Servicer pending appointment of a successor Servicer pursuant to
Section 8.2.
Indemnification under this Section shall survive the resignation or
removal of the Trustee or the Indenture Trustee or the termination of this
Agreement, the Trust Agreement and the Indenture and shall include reasonable
fees and expenses of counsel and expenses of litigation. If the Servicer shall
have made any indemnity payments pursuant to this Section and the Person to or
on behalf of whom such payments are made thereafter collects any of such amounts
from others, such Person shall promptly repay such amounts to the Servicer,
without interest.
SECTION 7.3. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, SERVICER. Any Person: (a) into which the Servicer may be merged
or consolidated, (b) that may result from any merger or consolidation to which
the Servicer shall be a party, or (c) that may succeed to the properties and
assets of the Servicer substantially as a whole, which Person (in any of the
foregoing circumstances) executes an agreement of assumption to perform every
obligation of the Servicer hereunder (or is deemed by law to have assumed such
obligations), shall be the successor to the Servicer under this Agreement
without further act on the part of any of the parties to this Agreement;
provided, however, that: (i) immediately after giving effect to such
transaction, no Servicer Default, and no event that, after notice or lapse of
time, or both, would become a Servicer Default shall have occurred and be
continuing, (ii) the Servicer shall have delivered to the Trustee and Indenture
31
Trustee an Officers' Certificate and an Opinion of Counsel each stating that
such consolidation, merger or succession and such agreement of assumption comply
with this Section and that all conditions precedent, if any, provided for in
this Agreement relating to such transaction have been complied with, (iii) the
Rating Agencies shall have received at least ten days' prior written notice of
such transaction and (iv) the Servicer shall have delivered to the Trustee and
the Indenture Trustee an Opinion of Counsel either: (A) stating that, in the
opinion of such counsel, all financing statements, continuation statements and
amendments thereto have been executed and filed that are necessary fully to
preserve and protect the interest of the Trustee and the Indenture Trustee,
respectively, in the Receivables and reciting the details of such filings, or
(B) stating that, in the opinion of such counsel, no such action shall be
necessary to preserve and protect such interests. Notwithstanding anything
herein to the contrary, the execution of the foregoing agreement of assumption
and compliance with clauses (i), (ii), (iii) and (iv) shall be conditions to the
consummation of the transactions referred to in clauses (a), (b) or (c).
SECTION 7.4. LIMITATION ON LIABILITY OF SERVICER AND OTHERS. Neither
the Servicer nor any of the directors, officers, employees or agents of the
Servicer shall be under any liability to the Issuer, the Noteholders or the
Certificateholders, except as provided under this Agreement, for any action
taken or for refraining from the taking of any action pursuant to this Agreement
or for errors in judgment; PROVIDED, HOWEVER, that this provision shall not
protect the Servicer or any such Person against any liability that would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in the performance of its duties or by reason of reckless disregard of
obligations and duties under this Agreement. The Servicer and any director,
officer, employee or agent of the Servicer may rely in good faith on the advice
of counsel or on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder.
Except as provided in this Agreement, the Servicer shall not be under
any obligation to appear in, prosecute or defend any legal action that shall not
be incidental to its duties to service the Receivables in accordance with this
Agreement, and that in its opinion may involve it in any expense or liability;
PROVIDED, HOWEVER, that the Servicer may undertake any reasonable action that it
may deem necessary or desirable in respect of this Agreement, the Basic
Documents and the rights and duties of the parties to this Agreement, the other
Basic Documents and the interests of the Certificateholders under this Agreement
and the Noteholders under the Indenture.
SECTION 7.5. CASE CREDIT NOT TO RESIGN AS SERVICER. Subject to Section
7.3, Case Credit shall not resign from the obligations and duties imposed on it
as Servicer under this Agreement except upon determination that the performance
of its duties under this Agreement shall no longer be permissible under
applicable law. Notice of any such determination shall be communicated to the
Trustee and the Indenture Trustee at the earliest practicable time (and, if such
communication is not in writing,
32
shall be confirmed in writing at the earliest practicable time) and any such
determination shall be evidenced by an Opinion of Counsel to such effect
delivered to the Trustee and the Indenture Trustee concurrently with or promptly
after such notice. No such resignation shall become effective until the
Indenture Trustee or a successor Servicer shall have assumed the
responsibilities and obligations of Case Credit in accordance with Section 8.2.
SECTION 7.6. SERVICER TO ACT AS ADMINISTRATOR. In the event of the
resignation or removal of the Administrator and the failure of a successor
Administrator to have been appointed and to have accepted such appointment as
successor Administrator, the Servicer shall become the successor Administrator
and shall be bound by the terms of the Administration Agreement.
ARTICLE VIII
DEFAULT
SECTION 8.1. SERVICER DEFAULT. If any one of the following events (a
"SERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to deliver to the Indenture
Trustee for deposit in any of the Trust Accounts or the Certificate
Distribution Account any required payment or to direct the Indenture
Trustee or the Trustee to make any required distributions therefrom,
which failure continues unremedied for three Business Days after
written notice of such failure is received by the Servicer from the
Trustee or the Indenture Trustee or after discovery of such failure by
an officer of the Servicer;
(b) any failure by the Servicer or the Seller, as the case may
be, duly to observe or to perform in any material respect any other
covenants or agreements (other than as set forth in clause (a)) of the
Servicer or the Seller (as the case may be) set forth in this Agreement
or any other Basic Document, which failure shall: (i) materially and
adversely affect the rights of Certificateholders or Noteholders and
(ii) continue unremedied for a period of 60 days after the date on
which written notice of such failure, requiring the same to be
remedied, shall have been given: (A) to the Servicer or the Seller (as
the case may be) by the Trustee or the Indenture Trustee or (B) to the
Servicer or the Seller (as the case may be) and to the Trustee and the
Indenture Trustee, by the Noteholders or Certificateholders, as
applicable, evidencing not less than 25% of the Outstanding Amount of
the Notes or 25% of the Certificate Balance; or
(c) an Insolvency Event occurs with respect to the Seller or
the Servicer;
33
then, and in each and every case, so long as the Servicer Default shall not have
been remedied, either the Indenture Trustee, or the Holders of Notes evidencing
not less than 25% of the Outstanding Amount of the Notes, by notice then given
in writing to the Servicer (and to the Indenture Trustee and the Trustee if
given by the Noteholders), may terminate all the rights and obligations (other
than the obligations set forth in Section 7.2) of the Servicer under this
Agreement. On or after the receipt by the Servicer of such written notice, all
authority and power of the Servicer under this Agreement, whether with respect
to the Notes, the Certificates, the Receivables or otherwise, shall, without
further action, pass to and be vested in the Indenture Trustee or such successor
Servicer as may be appointed under Section 8.2; and, without limitation, the
Indenture Trustee and the Trustee are hereby authorized and empowered to execute
and deliver, for the benefit of the predecessor Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement of the
Receivables and related documents, or otherwise. The predecessor Servicer shall
cooperate with the successor Servicer, the Indenture Trustee and the Trustee in
effecting the termination of the responsibilities and rights of the predecessor
Servicer under this Agreement, including the transfer to the successor Servicer
for administration by it of: (i) all cash amounts that shall at the time be held
by the predecessor Servicer for deposit, or shall thereafter be received by it
with respect to a Receivable and (ii) all Receivable Files. All reasonable costs
and expenses (including attorneys' fees) incurred in connection with
transferring the Receivable Files to the successor Servicer and amending this
Agreement to reflect its succession as Servicer shall be paid by the predecessor
Servicer upon presentation of reasonable documentation of such costs and
expenses. Upon receipt of notice of the occurrence of a Servicer Default, the
Trustee shall give notice thereof to the Rating Agencies.
SECTION 8.2. APPOINTMENT OF SUCCESSOR SERVICER. (a) Upon the Servicer's
receipt of notice of termination, pursuant to Section 8.1, or the Servicer's
resignation in accordance with this Agreement, the predecessor Servicer shall
continue to perform its functions as Servicer under this Agreement, in the case
of termination, only until the date specified in such termination notice or, if
no such date is specified in a notice of termination, until receipt of such
notice and, in the case of resignation, until the earlier of: (x) the date 45
days from the delivery to the Trustee and the Indenture Trustee of written
notice of such resignation (or written confirmation of such notice) in
accordance with this Agreement and (y) the date upon which the predecessor
Servicer shall become unable to act as Servicer, as specified in the notice of
resignation and accompanying Opinion of Counsel. In the event of the Servicer's
termination hereunder, the Issuer shall appoint a successor Servicer acceptable
to the Indenture Trustee, and the successor Servicer shall accept its
appointment by a written assumption in form acceptable to the Indenture Trustee.
In the event that a successor Servicer has not been appointed at the time when
the predecessor Servicer
34
has ceased to act as Servicer in accordance with this Section, the Indenture
Trustee without further action shall automatically be appointed the successor
Servicer and shall be entitled to the Servicing Fee. Notwithstanding the above,
the Indenture Trustee shall, if it shall be unable so to act, appoint or
petition a court of competent jurisdiction to appoint any established
institution, having a net worth of not less than $50,000,000 and whose regular
business shall include the servicing of receivables, as the successor to the
Servicer under this Agreement.
(b) Upon appointment, the successor Servicer (including the Indenture
Trustee acting as successor Servicer) shall be the successor in all respects to
the predecessor Servicer (except with respect to responsibilities and
obligations of the predecessor Servicer set forth in Section 7.2) and shall be
subject to all the responsibilities, duties and liabilities arising thereafter
relating thereto placed on the predecessor Servicer and shall be entitled to the
Servicing Fee and all the rights granted to the predecessor Servicer by this
Agreement. Any successor Servicer shall from time to time provide to Case Credit
such information as Case Credit shall request with respect to the Receivables
and collections thereon.
(c) Subject to the last sentence of clause (a), the Servicer may not
resign unless it is prohibited from serving as such by law as evidenced by an
Opinion of Counsel to such effect delivered to the Indenture Trustee and the
Trustee.
SECTION 8.3. NOTIFICATION TO NOTEHOLDERS AND CERTIFICATEHOLDERS. Upon
any termination of, or appointment of a successor to, the Servicer pursuant to
this Article VIII, the Trustee shall give prompt written notice thereof to the
Certificateholders and the Indenture Trustee shall give prompt written notice
thereof to the Noteholders and the Rating Agencies.
SECTION 8.4. WAIVER OF PAST DEFAULTS. The Noteholders of Notes
evidencing not less than a majority of the Note Balance (or the Holders of
Certificates evidencing not less than a majority of the Certificate Balance, in
the case of any default that does not adversely affect the Indenture Trustee or
the Noteholders) may, on behalf of all the Noteholders and Certificateholders,
waive in writing any default by the Servicer in the performance of its
obligations hereunder and its consequences, except a default in making any
required deposits to or payments from any of the Trust Accounts in accordance
with this Agreement. Upon any such waiver of a past default, such default shall
cease to exist, and any Servicer Default arising therefrom shall be deemed to
have been remedied for every purpose of this Agreement. No such waiver shall
extend to any subsequent or other default or impair any right consequent
thereto.
35
ARTICLE IX
TERMINATION
SECTION 9.1. OPTIONAL PURCHASE OF ALL RECEIVABLES. (a) As of the first
day of any Collection Period immediately preceding a Payment Date as of which
the Pool Balance is 10% or less of the Initial Pool Balance, the Servicer shall
have the option to purchase all of the Trust Estate, other than the Trust
Accounts. To exercise such option, the Servicer shall deposit, pursuant to
Section 5.4, in the Collection Account an amount equal to the aggregate Purchase
Amount for the Receivables plus the appraised value of any such other property
held by the Trust, such value to be determined by an appraiser mutually agreed
upon by the Servicer, the Trustee and the Indenture Trustee, and shall succeed
to all interests in, to and under the Trust Estate, other than the Trust
Accounts.
(b) Upon any sale of the assets of the Trust, the Servicer shall
instruct the Indenture Trustee to deposit the proceeds from such sale after all
payments and reserves therefrom have been made (the "Sale Proceeds") in the
Collection Account. On the Payment Date on, or, if such proceeds are not so
deposited on a Payment Date, on the first Payment Date following the date on
which the Sale Proceeds are deposited in the Collection Account, the Servicer
shall instruct the Indenture Trustee to make the following deposits (after the
application on such Payment Date of the Total Distribution Amount and funds on
deposit in the Spread Account pursuant to Sections 5.5 and 5.6) from the Sale
Proceeds and any funds remaining on deposit in the Spread Account (including the
proceeds of any sale of investments therein as described in the following
sentence):
(i) FIRST, to the Note Distribution Account, any portion of
the Class A Noteholders' Class Interest Amount and the Outstanding
Amount of the Class A Notes (after giving effect to the reduction
resulting from the deposits made in the Note Distribution Account on
such Payment Date and on prior Payment Dates) not otherwise deposited
into the Note Distribution Account on such Payment Date;
(ii) SECOND, to the Note Distribution Account, any portion of
the Class B Noteholders' Class Interest Amount and the Outstanding
Amount of the Class B Notes (after giving effect to the reduction
resulting from the deposits made in the Note Distribution Account on
such Payment Date and on prior Payment Dates) not otherwise deposited
into the Note Distribution Account on such Payment Date;
(iii) THIRD, to the Certificate Distribution Account, any
portion of the Certificateholders' Interest Distributable Amount not
otherwise deposited into the Certificate Distribution Account on such
Payment Date; and
36
(iv) FOURTH, to the Certificate Distribution Account, the
Certificate Balance (after giving effect to the reduction resulting
from the deposits made in the Certificate Distribution Account on such
Payment Date).
Any investments on deposit in the Spread Account that will not mature on or
before such Payment Date shall be sold by the Indenture Trustee at such time as
will result in the Indenture Trustee receiving the proceeds from such sale not
later than the Transfer Date preceding such Payment Date. Any Sale Proceeds
remaining after the deposits described above shall be paid to the Seller.
(c) As described in Article IX of the Trust Agreement, notice of any
termination of the Trust shall be given by the Servicer to the Trustee and the
Indenture Trustee as soon as practicable after the Servicer has received notice
thereof.
(d) Following the satisfaction and discharge of the Indenture and the
payment in full of the principal of and interest on the Notes, the
Certificateholders will succeed to the rights of the Noteholders hereunder and
the Trustee will succeed to the rights of, and assume the obligations of, the
Indenture Trustee pursuant to this Agreement.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. AMENDMENT. The Agreement may be amended from time to time
by a written amendment duly executed and delivered by the Seller, the Servicer
and the Issuer, with the written consent of the Indenture Trustee, but without
the consent of any 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 in this Agreement or of modifying in any manner the rights of
the Noteholders or the Certificateholders; PROVIDED, HOWEVER, that such action
shall not, as evidenced by an Opinion of Counsel delivered to the Trustee and
the Indenture Trustee, adversely affect in any material respect the interests of
any Noteholder or Certificateholder.
The Specified Spread Account Balance may be reduced or the definition
thereof otherwise modified without the consent of any of the Noteholders or the
Certificateholders if the Rating Agency Condition is satisfied.
This Agreement may also be amended from time to time by the Seller, the
Servicer and the Issuer, with the written consent of the Indenture Trustee, but
without the consent of any of the Noteholders or the Certificateholders, to:
37
(x) replace the Spread Account with another form of credit enhancement as long
as such substitution will not result in a reduction or withdrawal of the rating
of any Class of the Notes or the Certificates or (y) add credit enhancement for
the benefit of any Class of the Notes or the Certificates.
This Agreement may also be amended from time to time by the Seller, the
Servicer and the Issuer, with the written consent of (a) the Indenture Trustee,
(b) Noteholders holding Notes evidencing not less than a majority of the Note
Balance, and (c) the Holders of Certificates evidencing not less than 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 shall: (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that shall be
required to be made for the benefit of the Noteholders or the Certificateholders
or (b) reduce the aforesaid percentage of the Notes and the Certificates that
are required to consent to any such amendment, without the consent of the
holders of all the outstanding Notes and Certificates.
Promptly after the execution of any such amendment or consent (or, in
the case of the Rating Agencies, 10 days prior thereto), the Trustee shall
furnish written notification of the substance of such amendment or consent to
each Certificateholder, the Indenture Trustee and each of the Rating Agencies.
It shall not be necessary for the consent of Certificateholders or the
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.
Prior to the execution of any amendment to this Agreement, the Trustee
and the Indenture Trustee shall be entitled to receive and rely upon: (i) an
Opinion of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement and that all conditions precedent to such execution
and delivery by the Trustee and the Indenture Trustee have been satisfied and
(ii) the Opinion of Counsel referred to in Section 10.2(i)(1). The Trustee and
the Indenture Trustee may, but shall not be obligated to, enter into any such
amendment that affects the Trustee's or the Indenture Trustee's, as applicable,
own rights, duties or immunities under this Agreement or otherwise.
SECTION 10.2. PROTECTION OF TITLE TO TRUST. (a) The Seller shall
execute and file such financing statements, and cause to be executed and filed
such continuation statements, all in such manner and in such places as may be
required by applicable law fully to preserve, maintain and protect the right,
title and interest of the Issuer and the interests of the Indenture Trustee in
the Receivables, the other property sold
38
hereunder and in the proceeds thereof. The Seller shall deliver (or cause to be
delivered) to the Trustee and the Indenture Trustee file-stamped copies of, or
filing receipts for, any document filed as provided above as soon as available
following such filing. It is understood and agreed, however, that no filings
will be made to perfect any security interest of the Issuer or the Indenture
Trustee in the Seller's interests in True Lease Equipment. The Issuer and the
Indenture Trustee shall cooperate fully with the Seller 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) Neither the Seller nor the Servicer shall change its name, identity
or corporate structure in any manner 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, unless it
shall have given the Trustee and the Indenture Trustee at least five days' prior
written notice thereof and shall have promptly filed appropriate amendments to
all previously filed financing statements or continuation statements.
(c) Each of the Seller and the Servicer shall have an obligation to
give the Trustee and the Indenture Trustee at least 60 days' prior written
notice of any relocation of its principal executive office if, as a result of
such relocation, the applicable provisions of the UCC would require the filing
of any amendment of any previously filed financing or continuation statement or
of any new financing statement and shall promptly file any such amendment. The
Servicer shall at all times maintain each office from which it shall service
Receivables, and its principal executive office, within the United States of
America.
(d) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit: (i) the reader thereof
to know at any time the status of such Receivable, including payments and
recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Collection Account
in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so that, from and
after the time of sale under this Agreement of the Receivables, the Servicer's
master computer records (including any backup archives) that refer to a
Receivable shall indicate clearly the interest of the Issuer and the Indenture
Trustee in such Receivable and that such Receivable is owned by the Issuer and
has been pledged to Harris, as Indenture Trustee. Indication of the Issuer's and
the Indenture Trustee's interest in a Receivable may be deleted from or modified
on the Servicer's computer systems when, and only when, the related Receivable
shall have been paid in full or repurchased.
39
(f) If at any time the Seller or the Servicer shall propose to sell,
grant a security interest in, or otherwise transfer any interest in equipment
receivables to any prospective purchaser, lender or other transferee, the
Servicer shall give to such prospective purchaser, lender or other transferee
computer tapes, records or printouts (including any restored from backup
archives) that, if they shall refer in any manner whatsoever to any Receivable,
shall indicate clearly that such Receivable has been sold and is owned by the
Issuer and has been pledged to the Indenture Trustee.
(g) The Servicer shall permit the Indenture Trustee and its agents at
any time during normal business hours to inspect, audit and make copies of and
abstracts from the Servicer's records regarding any Receivable.
(h) Upon request, the Servicer shall furnish to the Trustee or to the
Indenture Trustee, within five Business Days, a list of all Receivables (by
contract number and name of Obligor) then held as part of the Trust, together
with a reconciliation of such list to the Schedule of Receivables and to each of
the Servicer's Certificates furnished before such request indicating removal of
Receivables from the Trust.
(i) The Servicer shall deliver to the Trustee and the Indenture
Trustee:
(1) promptly after the execution and delivery of this
Agreement and of each amendment hereto, an Opinion of Counsel either:
(A) stating that, in the opinion of such counsel, all financing
statements and continuation statements have been executed and filed
that are necessary fully to preserve and protect the interest of the
Trustee and the Indenture Trustee in the Receivables, and reciting the
details of such filings or referring to prior Opinions of Counsel in
which such details are given, or (B) stating that, in the opinion of
such counsel, no such action shall be necessary to preserve and protect
such interest; and
(2) within 90 days after the beginning of each calendar year
beginning with the first calendar year beginning more than three months
after the Initial Cutoff Date, an Opinion of Counsel, dated as of a
date during such 90-day period, either: (A) stating that, in the
opinion of such counsel, all financing statements and continuation
statements have been executed and filed that are necessary fully to
preserve and protect the interest of the Trustee and the Indenture
Trustee in the Receivables, and reciting the details of such filings or
referring to prior Opinions of Counsel in which such details are given,
or (B) stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interest.
Each Opinion of Counsel referred to in clause (1) or (2) shall specify
any action necessary (as of the date of such opinion) to be taken in the
following year to preserve and protect such interest.
40
(j) The Seller shall, to the extent required by applicable law, cause
the Certificates and the Notes to be registered with the Commission pursuant to
Section 12(b) or Section 12(g) of the Exchange Act within the time periods
specified in such sections.
SECTION 10.3. NOTICES. All demands, notices, directions, instructions
and communications upon or to the Seller, the Servicer, the Issuer, the Trustee,
the Indenture Trustee or the Rating Agencies 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 the Seller, to CNH Receivables Inc., 475 Half Day Road, Lincolnshire,
Illinois 60069, Attention of: Treasurer (telephone (847) 955-4904 and facsimile
(847) 955-1006, (b) in the case of the Servicer, to Case Credit Corporation, 233
Lake Avenue, Racine, Wisconsin 53403, Attention: Treasurer (telephone (414)
636-6011 and facsimile (414) 636- 6284), (c) in the case of the Issuer or the
Trustee, at its Corporate Trust Office, (d) in the case of the Indenture
Trustee, at its Corporate Trust Office, (e) in the case of Moody's, to Moody's
Investors Service, Inc., ABS Monitoring Department, 99 Church Street, New York,
New York 10007, and (f) in the case of Standard & Poor's, to Standard & Poor's
Ratings Services, a division of McGraw-Hill Companies, Inc., 55 Water Street,
New York, New York 10041, Attention of Asset Backed Surveillance Department; or,
as to each of the foregoing, at such other address as shall be designated by
written notice to the other parties.
SECTION 10.4. ASSIGNMENT. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 6.4 and 7.3 and as provided in
the provisions of this Agreement concerning the resignation of the Servicer,
this Agreement may not be assigned by the Seller or the Servicer.
SECTION 10.5. LIMITATIONS ON RIGHTS OF OTHERS. The provisions of this
Agreement are solely for the benefit of the Seller, the Servicer, the Issuer,
the Trustee, the Certificateholders, the Indenture Trustee and the Noteholders,
and nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
SECTION 10.6. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
41
SECTION 10.7. SEPARATE COUNTERPARTS. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 10.8. HEADINGS. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 10.9. GOVERNING LAW. This Agreement 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.
SECTION 10.10. ASSIGNMENT TO INDENTURE TRUSTEE. The Seller hereby
acknowledges and consents to any mortgage, pledge, assignment and grant of a
security interest by the Issuer to the Indenture Trustee pursuant to the
Indenture for the benefit of the Noteholders of all right, title and interest of
the Issuer in, to and under the Receivables and/or the assignment of any or all
of the Issuer's rights and obligations hereunder to the Indenture Trustee, 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 the Issuer.
SECTION 10.11. NONPETITION COVENANTS. (a) Notwithstanding any prior
termination of this Agreement, the Servicer and the Seller shall not, prior to
the date that is one year and one day after the termination of this Agreement,
with respect to the Issuer, acquiesce, petition or otherwise invoke or cause the
Issuer to invoke the process of any court or governmental authority for the
purpose of commencing or sustaining a case against the Issuer under any Federal
or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Issuer or any substantial part of its property, or ordering the winding
up or liquidation of the affairs of the Issuer. The foregoing shall not limit
the right of the Servicer and the Seller to file any claim in or otherwise take
any action with respect to any such insolvency proceeding that was instituted
against the Issuer by any Person other than the Servicer or the Seller.
(b) Notwithstanding any prior termination of this Agreement, the
Servicer shall not, prior to the date that is one year and one day after the
termination of this Agreement, with respect to the Seller, acquiesce, petition
or otherwise invoke or cause the Seller to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Seller under any Federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Seller or any substantial part of
its property, or ordering the winding up or liquidation of the
42
affairs of the Seller. The foregoing shall not limit the right of the Servicer
to file any claim in or otherwise take any action with respect to any such
insolvency proceeding that was instituted against the Seller by any Person other
than the Servicer.
SECTION 10.12. LIMITATION OF LIABILITY OF TRUSTEE AND INDENTURE
TRUSTEE. (a) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by The Bank of New York, not in its individual
capacity but solely in its capacity as Trustee of the Issuer, and in no event
shall The Bank of New York, in its individual capacity or, except as expressly
provided in the Trust Agreement, any beneficial owner of the Issuer have any
liability for the representations, warranties, covenants, agreements or other
obligations of the Issuer hereunder or in any of the certificates, notices or
agreements delivered pursuant hereto, as to all of which recourse shall be had
solely to the assets of the Issuer.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been accepted by Harris Trust and Savings Bank, not in its
individual capacity but solely as Indenture Trustee, and in no event shall
Harris Trust and Savings Bank have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder
or in any of the certificates, notices or agreements delivered pursuant hereto,
as to all of which recourse shall be had solely to the assets of the Issuer.
43
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
CNH EQUIPMENT TRUST 2000-A
By: THE BANK OF NEW YORK,
not in its individual capacity but
solely as Trustee of the Trust
By: /s/ Erwin Soriano
--------------------------------------
Name: Erwin Soriano
Title Assistant Treasurer
CNH RECEIVABLES INC.,
as Seller
By: /s/ Ralph A. Than
--------------------------------------
Name: Ralph A. Than
Title: Vice President and Treasurer
CASE CREDIT CORPORATION,
as Servicer
By: /s/ Ralph A. Than
----------------------------------------
Name: Ralph A. Than
Title: Vice President and Treasurer
Acknowledged and Accepted:
HARRIS TRUST AND SAVINGS BANK,
not in its individual capacity
but solely as Indenture Trustee
By: /s/ Rory Nowakowski
------------------------
Name: Rory Nowakowski
Title: Assistant Vice President
EXHIBIT A
to Sale and Servicing Agreement
FORM OF NOTEHOLDER'S
STATEMENT PURSUANT TO SECTION 5.10(a)
Payment Date: ______________________
(i) Amount of principal being paid on Notes:
A-1 Notes: ____________ ($_____ per $1,000 original principal amount)
A-2 Notes: ____________ ($_____ per $1,000 original principal amount)
A-3 Notes: ____________ ($_____ per $1,000 original principal amount)
A-4 Notes: ____________ ($_____ per $1,000 original principal amount)
Class B Notes: ____________ ($_____ per $1,000 original principal amount)
(ii) Amount of interest being paid on Notes:
A-1 Notes: ____________ ($_____ per $1,000 original principal amount)
A-2 Notes: ____________ ($_____ per $1,000 original principal amount)
A-3 Notes: ____________ ($_____ per $1,000 original principal amount)
A-4 Notes: ____________ ($_____ per $1,000 original principal amount)
Class B Notes: ____________ ($_____ per $1,000 original principal amount)
(iii)Pool Balance at end of the preceding Collection Period: _____
(iv) After giving effect to distributions on this Payment Date:
(a) (1) Outstanding Amount of A-1 Notes: _______
(2) Outstanding Amount of A-2 Notes: _______
(3) Outstanding Amount of A-3 Notes: _______
(4) Outstanding Amount of A-4 Notes: _______
(5) Outstanding Amount of Class B Notes: _______
(6) A-1 Note Pool Factor: _____
(7) A-2 Note Pool Factor: _____
(8) A-3 Note Pool Factor: _____
(9) A-4 Note Pool Factor: _____
45
(10) Class B Note Pool Factor: _____
(b) (1) Certificate Balance: __________
(2) Certificate Pool Factor: __________
(v) Amount of Servicing Fee:____ ($_____ per $1,000 original principal
amount)
(vi) Amount of Administration Fee:____ ($____ per $1,000 original principal
amount)
(vii) Aggregate Amount of Realized Losses for the Collection Period: _________
(viii) Aggregate Purchase Amounts for the Collection Period: __________
(ix) Balance of Spread Account: __________
(x) Pre-funded Amount: __________
(xi) Balance of Principal Supplement Account:__________
(xii) Balance of Negative Carry Account: __________
46
EXHIBIT B
to Sale and Servicing Agreement
FORM OF CERTIFICATEHOLDER'S
STATEMENT PURSUANT TO SECTION 5.10(a)
Payment Date: ______________________
(i) Amount of principal being paid or distributed:
(a) (1) A-1 Notes: __________
(2) A-2 Notes: __________
(3) A-3 Notes: __________
(4) A-4 Notes: __________
(5) Class B Notes: __________
(b) Certificates: ___________ ($_____ per $1,000 original principal
amount)
(c) Total: __________
(ii) Amount of interest being paid or distributed:
(a) (1) A-1 Notes: __________
(2) A-2 Notes: __________
(3) A-3 Notes: __________
(4) A-4 Notes: __________
(5) Class B Notes: __________
(b) Certificates: ___________ ($_____ per $1,000 original principal
amount)
(c) Total: __________
(iii) Pool Balance at end of the preceding Collection Period: _____
(iv) After giving effect to distributions on this Payment Date:
(a) (1) Outstanding Amount of A-1 Notes: _______
(2) Outstanding Amount of A-2 Notes: _______
(3) Outstanding Amount of A-3 Notes: _______
(4) Outstanding Amount of A-4 Notes: _______
(5) Outstanding Amount of Class B Notes: _______
(6) A-1 Note Pool Factor: _____
(7) A-2 Note Pool Factor: _____
(8) A-3 Note Pool Factor: _____
47
(9) A-4 Note Pool Factor: _____
(10) Class B Note Pool Factor: _____
(b) (1) Certificate Balance: __________
(2) Certificate Pool Factor: __________
(v) Amount of Servicing Fee: ____ ($_____ per $1,000 original principal
amount)
(vi) Amount of Administration Fee: ____ ($____ per $1,000 original principal
amount)
(vii) Aggregate amount of Realized Losses for the Collection Period:
__________
(viii) Aggregate Purchase Amounts for the Collection Period: __________
(ix) Balance of Spread Account: __________
(x) Pre-Funded Amount:__________
(xi) Balance of Negative Carry Account: __________
48
EXHIBIT C
to Sale and Servicing Agreement
FORM OF SERVICER'S CERTIFICATE
The Bank of New York
101 Barclay Street, Floor 12E
New York, New York 10286
Attention: Corporate Trust Administration - Asset Backed Finance Unit
Harris Trust and Savings Bank
311 West Monroe Street
12th Floor
Chicago, Illinois 60606
Attention: Indenture Trust Administration
CNH Receivables Inc.
475 Half Day Road
Lincolnshire, Illinois 60069
Attention: Secretary
Moody's Investors Service, Inc.
ABS Monitoring Department
99 Church Street
New York, New York 10007
Standard & Poor's Ratings Services,
a division of McGraw-Hill Companies, Inc.
55 Water Street
New York, New York 10041
Attention: Asset Backed Surveillance Department
49
Class A-1 Asset-Backed Notes
Class A-2 Asset-Backed Notes
Class A-3 Asset-Backed Notes
Class A-4 Asset-Backed Notes
Class B Asset-Backed Notes
Certificates
----------------------------
Determination Date: __-___-__
DISTRIBUTIONS
(1) Total Distribution Amount $________
(2) Servicing Fee $________
(3) Administration Fee $________
(4) Class A Noteholder's Class Interest Amount: $________
o Interest on Class A Notes ($________)
o Class A Noteholder's Class Interest Shortfall, if any ($___________)
(5) Class B Noteholders' Class Interest Amount $________
o Interest on Class B Notes ($_________)
o Class B Noteholders' Class
Interest Shortfall ($_______)
(6) Class Principal Distributable Amount $________
o Class A Noteholders' Monthly Principal Distributable Amount
o Class Principal Distributable Amount for each Class of Class A Notes
having priority of payment over such Class of Class A Notes
o Outstanding principal amount of that Class
(7) Class A Noteholders' Monthly Principal Distributable Amount $________
o Aggregate scheduled principal payments on the Receivables received
during the Collection Period ($_________)
o Outstanding principal balance of the Class A Notes and Certificates
($________)
o Pool Balance ($________)
o Amounts on deposit in the Pre-Funding
Account ($________)
o Outstanding amount of Class A Notes ($________)
50
(8) A-1 Noteholders' Class Principal Distributable Amount $________
o Class A Noteholders' Monthly Principal
Distributable Amount ($________)
o A-1 Noteholders' outstanding principal amount ($________)
(9) A-2 Noteholders' Class Principal Distributable Amount $________
o Class A Noteholders' Monthly Principal
Distributable Amount ($________)
o A-1 Noteholders' Class Principal Distributable Amount ($________)
o A-2 Noteholders' Outstanding Amount ($________)
(10) A-3 Noteholders' Class Principal Distributable Amount $________
o Class A Noteholders' Monthly Principal
Distributable Amount ($________)
o A-1 Noteholders' Class Principal Distributable Amount ($________)
o A-2 Noteholders' Class Principal Distributable Amount ($________)
o A-3 Noteholders' Outstanding Amount ($________)
(11) A-4 Noteholders' Class Principal Distributable Amount $________
o Class A Noteholders' Monthly Principal
Distributable Amount ($________)
o A-1 Noteholders' Class Principal Distributable Amount ($________)
o A-2 Noteholders' Class Principal Distributable Amount ($________)
o A-3 Noteholders' Class Principal Distributable Amount ($________)
o A-4 Noteholders' Outstanding Amount ($________)
(12) Class B Noteholders' Monthly Principal Distributable Amount $________
o Outstanding principal balance of the Class A Notes (after giving
effect to payments on the Class A Notes), Class B Notes and the
Certificates ($________)
o Pool Balance ($________)
o Amounts on deposit in the Pre-Funding Account ($________)
o Outstanding amount of Class B Notes ($________)
(13) NOTEHOLDERS' DISTRIBUTABLE AMOUNT $________
(4)+ (5)+(8)+(9)+(10)+(11)+(12)
51
(14) Certificateholders' Interest Distributable Amount $________
o Interest at the Pass-Through Rate on Certificate Balance ($________)
o Certificateholders' Interest Shortfall ($________)
(15) Certificateholders' Monthly Principal Distributable Amount $________
o Outstanding principal balances of the Class A Notes and the Class B
Notes (after giving effect to payments on the Class A Notes and
Class B Notes) and the Certificates ($________)
o Pool Balance ($________)
o Amounts on deposit in the Pre-Funding Account ($________)
o Outstanding amount of Certificates ($________)
(16) CERTIFICATEHOLDERS' DISTRIBUTABLE AMOUNT (14)+(15) $________
(17) Deposit to Note Distribution Account $________
o Excess, if any, of Total Distribution Amount (1), less the
Administration Fee (3), less the Servicing Fee (2*)
o Withdrawal from Spread Account pursuant to Section 5.6(d)
(see (24) below)
o Withdrawal from Spread Account pursuant to Section 5.6(e)
(see (25) below)
o Withdrawal from Principal Supplement Accounts pursuant to Section 5.9
o But not greater than the Noteholders' Distributable Amount (13)
(18) Deposit to Spread Account pursuant to Section 5.5(b)(vi) $________
o Excess, if any, of Total Distribution Amount (1), less the
Administration Fee (3), less the Servicing Fee (2*), less the
Noteholders' Distributable Amount (13)
o But not greater than Item (22) below
(19) Deposit to Certificate Distribution Account $________
o Excess, if any, of Total Distribution Amount (1), less the
Administration Fee (3), less the Servicing Fee (2*), less the
Noteholders' Distributable Amount (13), less the Deposit to Spread
Account (18)
o But not greater than the Certificateholders' Distributable Amount (16)
* The Servicing Fee (2) shall not be included if Case Credit or an
Affiliate of Case Credit is the Servicer.
52
SPREAD ACCOUNT
(20) Spread Account Balance as of Determination Date $________
(prior to any deposits or withdrawals)
(21) Specified Spread Account Balance (after all distributions and $________
adjustments)
(22) Limit on Deposit to the Spread Account $________
o The excess, if any, of the Specified Spread Account Balance (21)
less the Spread Account Balance as of the Determination Date (prior
to any deposits or withdrawals) (20)
(23) Withdrawal from Spread Account distributed to Seller (as $________
permitted in Sections 5.6(b) and (c) of the Sale and Servicing
Agreement)
o The excess, if any, of the Spread Account Balance as of the
Determination Date (prior to any deposits or withdrawals) (20) less
the Specified Spread Account Balance (21)
o But zero, if (a) the sum of the Pool Balance (23) and the
Pre-Funded Amount as of the first day of the Collection Period; is
less than (b) the sum of the Note Balance and the Certificate
Balance
(24) Withdrawal from Spread Account pursuant to Section 5.6(d) $________
to be deposited in the Note Distribution Account
o Excess, if any, of the Noteholders' Distributable Amount (13), less
the Total Distribution Amount (1), less the Administration Fee (3),
less the Servicing Fee (2*)
o But not Greater than the Spread Account Balance (20)
(25) Withdrawal from Spread Account pursuant to Section 5.6(e) $________
to be deposited in the Note Distribution Account
o Excess, if any, of Class Principal Distributable Amount for any
Class of Notes for the applicable final scheduled maturity date for
such Class of Notes, less the Total Distribution Amount (1), less
the Class Principal Distributable Amount for each Class of Notes
having priority over such Class of Notes
o But not Greater than the Spread Account Balance (20)
(26) Final Spread Account Balance (20) + (18) - (23)-(24)-(25) $________
53
MISCELLANEOUS
(27) Pool Balance at the beginning of this Collection Period $________
(28) After giving effect to all distributions on the Payment Date during
this Collection Period:
(a) Outstanding Amount of A-1 Notes $________
A-1 Note Pool Factor (_._______)
(b) Outstanding Amount of A-2 Notes $________
A-2 Note Pool Factor (_._______)
(c) Outstanding Amount of A-3 Notes $________
A-3 Note Pool Factor (_._______)
(d) Outstanding Amount of A-4 Notes $________
A-4 Note Pool Factor (_._______)
(e) Outstanding Amount of Class B Notes
Class B Note Pool Factor (_._______)
(f) Outstanding Amount of Certificates $________
Certificate Pool Factor (_._______)
(29) Aggregate Purchase Amounts for the preceding Collection Period $________
54
EXHIBIT D
to Sale and Servicing Agreement
FORM OF SECOND-TIER CASE ASSIGNMENT
-----------------------------------
For value received, in accordance with and subject to the Sale and
Servicing Agreement dated as of March 1, 2000 (the "SALE AND SERVICING
AGREEMENT"), among the undersigned, Case Credit Corporation ("CASE CREDIT") and
CNH Equipment Trust 2000-A (the "ISSUER"), the undersigned does hereby sell,
assign, transfer set over and otherwise convey unto the Issuer, without
recourse, all of its right, title and interest in, to and under: (a) the Initial
Receivables, 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 Initial
Receivables and any other interest of the undersigned in such Financed
Equipment, (c) any proceeds with respect to the Initial Receivables from claims
on insurance policies covering Financed Equipment or Obligors, (d) the Liquidity
Receivables Purchase Agreement (only with respect to Contracts included in the
Initial Receivables) and the Purchase Agreement, including the right of the
undersigned to cause Case Credit Corporation to repurchase Receivables from the
undersigned under the circumstances described therein, (e) any proceeds from
recourse to Dealers with respect to the Initial Receivables other than any
interest in the Dealers' reserve accounts maintained with Case Credit
Corporation or with NH Credit, (f) any Financed Equipment that shall have
secured an Initial Receivable and that shall have been acquired by or on behalf
of the Trust, (g) all funds on deposit from time to time in the Trust Accounts,
including the Spread Account Initial Deposit, any Principal Supplement Account
Deposit, the Negative Carry Account Initial Deposit and the Pre-Funded Amount,
and in all investments and proceeds thereof (including all income thereon), (h)
any True Lease Equipment that is subject to any Initial Receivable, and (i) 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 the Issuer of any obligation
of the undersigned to the Obligors, insurers or any other person in connection
with the Initial Receivables, Receivables Files, any insurance policies or any
agreement or instrument relating to any of them.
This Second-Tier Case Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Sale and Servicing Agreement and is to be governed in all
respects by the Sale and Servicing Agreement. Capitalized terms used herein and
not otherwise defined shall have the meanings assigned to them in the Sale and
Servicing Agreement.
55
IN WITNESS WHEREOF, the undersigned has caused this Second-Tier Case
Assignment to be duly executed as of March ____, 2000.
CNH RECEIVABLES INC.,
By:
---------------------------------
Name:
----------------------------
Title:
----------------------------
56
EXHIBIT E
to Sale and Servicing Agreement
FORM OF SECOND-TIER CASE SUBSEQUENT TRANSFER ASSIGNMENT
-------------------------------------------------------
For value received, in accordance with and subject to the Sale and
Servicing Agreement dated as of March 1, 2000 (the "SALE AND SERVICING
AGREEMENT"), among CNH Equipment Trust 2000-A, a Delaware business trust (the
"ISSUER"), CNH Receivables Inc., a Delaware corporation (the "Seller"), and Case
Credit Corporation, a Delaware corporation ("Case Credit"), the Seller does
hereby sell, transfer, assign, set over and otherwise convey to the Issuer,
without recourse, all of its right, title and interest in, to and under: (a) the
Subsequent 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 Receivables and any other interest of the Seller in such Financed
Equipment, (c) any proceeds with respect to such Subsequent Receivables from
claims on insurance policies covering Financed Equipment or Obligors, (d) the
Liquidity Receivables Purchase Agreement (only with respect to Subsequent
Receivables purchased by the Seller pursuant to that Agreement) and the Purchase
Agreement, including the right of the Seller to cause Case Credit Corporation to
repurchase Subsequent Receivables from the Seller under the circumstances
described therein, (e) any proceeds from recourse to Dealers with respect to
such Subsequent Receivables other than any interest in the Dealers' reserve
accounts maintained with Case Credit Corporation, (f) any Financed Equipment
that shall have secured any such Subsequent Receivables and that shall have been
acquired by or on behalf of the Trust, (g) any True Lease Equipment that is
subject to any Subsequent Receivable, and (h) 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 the Issuer of any obligation of the Seller to the Obligors,
insurers or any other person in connection with such Subsequent Receivables,
Receivable Files, any insurance policies or any agreement or instrument relating
to any of them.
This Second-Tier Case Subsequent Transfer Assignment is made pursuant
to and upon the representations, warranties and agreements on the part of the
Seller contained in the Sale and Servicing Agreement (including the Officers'
Certificate of the Seller accompanying this Agreement) and is to be governed in
all respects by the Sale and Servicing Agreement. Capitalized terms used but not
otherwise defined herein shall have the meanings assigned to them in the Sale
and Servicing Agreement.
57
IN WITNESS WHEREOF, the undersigned has caused this Second-Tier Case
Subsequent Transfer Assignment to be duly executed as of ___________________,
_____.
CNH RECEIVABLES INC.,
By:
---------------------------------
Name:
----------------------------
Title:
----------------------------
58
SCHEDULE A
to Second-Tier Case Subsequent Transfer Assignment
SCHEDULE OF SUBSEQUENT RECEIVABLES
[ATTACHED]
ANNEX A
to Second-Tier Case Subsequent Transfer Assignment
OFFICERS' CERTIFICATE
---------------------
We, the undersigned officers of CNH Receivables Inc. (the "COMPANY"),
do hereby certify, pursuant to Section 2.2(b)(xv) of the Sale and Servicing
Agreement dated as of March 1, 2000, among the Company, CNH Equipment Trust
2000-A and Case Credit Corporation (the "AGREEMENT"), that all of the conditions
precedent to the transfer to the Issuer of the Subsequent Receivables listed on
Schedule A to the Second-Tier Case Subsequent Transfer Assignment delivered
herewith, and the other property and rights related to such Subsequent
Receivables as described in Section 2.2(a) of the Agreement, have been satisfied
on or prior to the related Subsequent Transfer Date.
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Agreement.
IN WITNESS WHEREOF, the undersigned have caused this certificate to be
duly executed this _____day of _____________, ______.
By:
---------------------------------
Name:
----------------------------
Title:
----------------------------
By:
---------------------------------
Name:
----------------------------
Title:
----------------------------
EXHIBIT F
to Sale and Servicing Agreement
FORM OF ACCOUNTANTS' LETTER IN CONNECTION
WITH THE SECOND-TIER SUBSEQUENT TRANSFER ASSIGNMENT PURSUANT TO
SECTION 2.2(b)(xiv) OF THE SALE AND SERVICING AGREEMENT
[LETTERHEAD OF ARTHUR ANDERSEN]
- ----------------, ------
CNH Receivables Inc.
475 Half Day Road
Lincolnshire, Illinois 60069
CNH Equipment Trust 2000-A
700 State Street
Racine, Wisconsin 53404
Salomon Smith Barney Inc.
390 Greenwich Street
New York, NY 10013
Harris Trust and Savings Bank
311 West Monroe Street
Chicago, Illinois 60606
The Bank of New York
101 Barclay Street, Floor 12 E
New York, New York 10286
Dear Ladies and Gentlemen:
This letter is issued at the request of CNH Receivables Inc. (the "SELLER") with
respect to the sale of certain retail receivables (the "SUBSEQUENT RECEIVABLES")
to the CNH Equipment Trust 2000-A (the "Trust") pursuant to the Sale and
Servicing Agreement dated as of March 1, 2000 (the "SALE AND SERVICING
AGREEMENT") among the Trust, the Seller and Case Credit Corporation (the
"SERVICER"). The sale of the Subsequent Receivables is described in the
prospectus dated March 6, 2000 and the prospectus supplement dated March 9, 2000
(together, the "PROSPECTUS"), which relates to the offering by the Trust of
Class A-1 _____% Asset Backed Notes, Class A-2 _____% Asset Backed
Page 2
- --------------, -----
Notes, Class A-4 _____% Asset-Backed Notes, Class A-3 _____% Asset-Backed Notes
and Class B Asset Backed Notes (collectively, the "NOTES") and the _____% Asset
Backed Certificates (the "CERTIFICATES"). Capitalized terms used herein and not
otherwise defined have the meaning described in the Prospectus or the Sale and
Servicing Agreement, as applicable. In connection therewith, we performed or
have previously performed certain agreed upon procedures as specified in the
items below:
1. As previously communicated in our letter to the Seller, the Trust,
____________________, the Indenture Trustee and the Trustee dated
_________, _______ relating to the sale of certain retail receivables
(the "INITIAL RECEIVABLES") and the offering of the Notes and the
Certificates, we performed several procedures based on a computer data
file (the "INITIAL FILE") received from the Servicer, including the
following:
a. We read certain fields on the Initial File to determine
whether the data pertaining to the Initial Receivables
complied with the selection criteria as noted in our previous
letter.
b. Proved the arithmetic accuracy of the Aggregate Contract Value
and the related percentage of Initial Receivables coded as
representing construction and forestry equipment and the Total
Aggregate Contract Value of the Initial Receivables as shown
on Schedule B.
c. Proved the arithmetic accuracy of the Weighted Average Original
Term of the Initial Receivables as shown in Schedule B.
2. On ______________, _____, we obtained a computer data file (the
"SUBSEQUENT FILE") produced by and represented by the Servicer to
contain the list of the Subsequent Receivables. The Subsequent File was
received directly by Arthur Andersen LLP from the Servicer. By use of
data retrieval software, we have performed the following with respect
to the information contained in the Subsequent File:
a. We read certain fields on the Subsequent File to determine
whether the data relating to the Subsequent Receivables
complied with selection criteria 1, 2 and 4 as shown on
Schedule A. For purposes of selection criteria 3, as shown on
Schedule A, we read certain fields from the Initial File and
Subsequent File to aggregate the total Contract Value for each
account number for the purpose of determining the Contract
Value for each Obligor. The total Contract Value for each
account number was then compared to the aggregate Contract
Value to determine if the selection criteria was achieved.
Page 3
- --------------, -----
b. Proved the arithmetic accuracy of the Aggregate Contract Value
and the related percentage of the Subsequent Receivables coded
as representing construction and forestry equipment and the
Total Aggregate Contract Value of the Subsequent Receivables
as shown on Schedule B.
c. Proved the arithmetic accuracy of the Weighted Average
Original Term of the Subsequent Receivables as shown in
Schedule B.
3. We proved the arithmetic accuracy of the columnar totals for Aggregate
Contract Value of construction and forestry equipment and the Total
Aggregate Contract Value as shown on Schedule B.
4. We proved the arithmetic accuracy of the percent of total column as
shown in 1 on Schedule B by dividing the amount in the Total Aggregate
Contract Value of construction and forestry equipment column by the
amount in the Total Aggregate Contract Value column. We also proved the
arithmetic accuracy of the Weighted Average Original Term as shown in 2
on Schedule B by summing the products of Total Aggregate Contract Value
times Weighted Average Original Term for the Initial Receivables and
the Subsequent Receivables and dividing the resulting sum by the
columnar total of the Total Aggregate Contract Value.
The foregoing procedures do not constitute an audit conducted in accordance with
generally accepted auditing standards, and, therefore, we are unable to and do
not express an opinion on any individual balances or summaries of selected
transactions specifically set forth in this letter. Also, these procedures would
not necessarily reveal matters of significance with respect to the findings
described herein. Accordingly, we make no representations regarding the
sufficiency of the foregoing procedures for your purposes of for questions of
legal interpretation. Had we performed additional procedures, other matters
might have come to our attention that would have been reported to you. Further,
we have addressed ourselves solely to the foregoing data in the Sale and
Servicing Agreement and the Prospectus and make no representations regarding the
adequacy of disclosure regarding whether any material facts have been omitted.
This letter is solely for the information of the addressees and is not to be
used, circulated, quoted or otherwise referred to for any other purpose
including, but not limited to, the purchase or sale of Notes or Certificates,
nor is it to be referred to in any document. Furthermore, we undertake no
responsibility to update this letter for events and circumstances occurring
after the date of this letter.
Very truly yours,
ARTHUR ANDERSEN LLP
Page 4
- --------------, -----
SCHEDULE A
to Accountant's Letter
Selection Criteria Results
------------------ -------
1. No Subsequent Receivables was more than 90 days
past due as of the applicable Subsequent Cutoff
Date.
2. Each Subsequent Receivable has an APR that is
equal to or greater than the sum of the weighted
average of the Interest Rates for the Class A
Notes and the Class B Notes plus the Servicing Fee.
3. Each Subsequent Receivable has a Contract Value as
of the Subsequent Cutoff Date that (when combined
with the Contract Value of any other Receivables with
the same or an affiliated Obligor) does not exceed 1%
of the aggregate Contract Value of all Receivables.
4. Each Subsequent Receivable has a remaining term to
maturity (i.e., the period from but excluding the
applicable Subsequent Cutoff Date to and including
the Receivables' maturity date) of not more than
72 months.
Page 5
- --------------, -----
SCHEDULE B
to Accountant's Letter
1. Percentage of principal balance of the Receivables that represents
construction and forestry equipment:
Aggregate
Contract Value Construction
of Construction Total and Forestry
and Forestry Aggregate Equipment
Equipment Contract Value Percent of Total
-------------- -------------- ----------------
Initial Receivables $ $ %
Subsequent Receivables $ $ %
Total Receivables $ $ %
2. Weighted Average Original Term of the Receivables in the Trust.
Weighted
Total Aggregate Average Original
Contract Value Term
-------------- --------------
Initial Receivables $_____ _____ months
Subsequent Receivables $_____ _____ months
Total Receivables $_____ _____ months
As noted above, the Weighted Average Original Term does not exceed 55.0 months
as required by the Sale and Servicing Agreement.