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CNH EQUIPMENT TRUST 2000-A
PURCHASE AGREEMENT
between
CASE CREDIT CORPORATION,
as Originator,
and
CNH RECEIVABLES INC.,
as Purchaser.
Dated as of March 1, 2000
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TABLE OF CONTENTS
PAGE
ARTICLE I CERTAIN DEFINITIONS
SECTION 1.1. DEFINITIONS.................................................2
SECTION 1.2. OTHER DEFINITIONAL PROVISIONS..............................2
ARTICLE II CONVEYANCE OF RECEIVABLES
SECTION 2.1. CONVEYANCE OF PURCHASED CONTRACTS...........................3
SECTION 2.2. CONVEYANCE OF SUBSEQUENT RECEIVABLES........................3
SECTION 2.3. INTENTION OF THE PARTIES....................................4
SECTION 2.4. THE CLOSING.................................................5
SECTION 2.5. PAYMENT OF THE PURCHASE PRICE...............................5
ARTICLE III REPRESENTATIONS AND WARRANTIES
SECTION 3.1. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.............6
SECTION 3.2. REPRESENTATIONS AND WARRANTIES OF THE ORIGINATOR............7
ARTICLE IV CONDITIONS
SECTION 4.1. CONDITIONS TO OBLIGATION OF THE PURCHASER..................14
SECTION 4.2. CONDITIONS TO OBLIGATION OF THE ORIGINATOR.................17
ARTICLE V COVENANTS OF THE ORIGINATOR
SECTION 5.1. PROTECTION OF RIGHT, TITLE AND INTEREST. ..................17
SECTION 5.2. OTHER LIENS OR INTERESTS...................................18
SECTION 5.3. CHIEF EXECUTIVE OFFICE.....................................18
SECTION 5.4. COSTS AND EXPENSES.........................................18
SECTION 5.5. INDEMNIFICATION............................................18
SECTION 5.6. TRANSFER OF SUBSEQUENT RECEIVABLES.........................19
ARTICLE VI MISCELLANEOUS PROVISIONS
SECTION 6.1. OBLIGATIONS OF ORIGINATOR..................................19
SECTION 6.2. REPURCHASE EVENTS..........................................19
SECTION 6.3. PURCHASER ASSIGNMENT OF REPURCHASED RECEIVABLES............19
SECTION 6.4. TRUST......................................................19
SECTION 6.5. AMENDMENT..................................................20
SECTION 6.6. ACCOUNTANTS' LETTERS.......................................20
SECTION 6.7. WAIVERS....................................................21
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TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 6.8. NOTICES...................................................21
SECTION 6.9. COSTS AND EXPENSES........................................21
SECTION 6.10. REPRESENTATIONS OF THE ORIGINATOR AND THE PURCHASER.......21
SECTION 6.11. CONFIDENTIAL INFORMATION..................................21
SECTION 6.12. HEADINGS AND CROSS-REFERENCES.............................21
SECTION 6.13. GOVERNING LAW.............................................21
SECTION 6.14. COUNTERPARTS..............................................22
SECTION 6.15. SEVERABILITY..............................................22
EXHIBITS
EXHIBIT A Form of First-Tier Case Assignment
EXHIBIT B Form of First-Tier Case Subsequent Transfer Assignment
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PURCHASE AGREEMENT (as amended or supplemented from time to time, this
"AGREEMENT"), dated as of March 1, 2000, between CASE CREDIT CORPORATION, a
Delaware corporation (the "ORIGINATOR"), and CNH RECEIVABLES INC., a Delaware
corporation (the "PURCHASER").
RECITALS
WHEREAS, in the regular course of its business, the Originator
purchases, directly and indirectly, from equipment dealers and brokers, and
directly originates, Contracts; and
WHEREAS, in the regular course of its business, the Originator
purchases from Case Corporation certain Contracts originated by Case Corporation
in the ordinary course of business; and
WHEREAS, the Originator and the Purchaser wish to set forth the terms
pursuant to which: (1) Contracts having an aggregate Contract Value of
approximately $439,791,757.40 (the "PURCHASED CONTRACTS") as of Initial Cutoff
Date and the Originator's right, title and interest in any True Lease Equipment
related to such Contracts are to be sold by the Originator to the Purchaser on
the date hereof and (2) certain Subsequent Receivables and the Originator's
right, title and interest in any True Lease Equipment related to such Subsequent
Receivables are to be sold by the Originator to the Purchaser from time to time
on each Subsequent Transfer Date; and
WHEREAS, the Purchaser as of the Initial Cutoff Date, owned Contracts
previously purchased from the Originator pursuant to a Receivables Purchase
Agreement dated as of August 1, 1994 (as amended from time to time, the
"LIQUIDITY RECEIVABLES PURCHASE AGREEMENT"), between the Originator and the
Purchaser, having an aggregate Contract Value of approximately $282,391,930.06
(the "OWNED CONTRACTS", and together with the Purchased Contracts, the "INITIAL
RECEIVABLES"); and
WHEREAS, the Initial Receivables and the Subsequent Receivables
(collectively, the "RECEIVABLES") and any True Lease Equipment related to such
Receivables will be transferred by the Purchaser, pursuant to the Sale and
Servicing Agreement, to CNH Equipment Trust 2000-A (the "TRUST"), which Trust
will issue 7.32% Asset Backed Certificates representing fractional undivided
interests in, and 6.178% Class A-1 Asset Backed Notes, 6.80% Class A-2 Asset
Backed Notes, 7.14% Class A-3 Asset Backed Notes, 7.34% Class A-4 Asset Backed
Notes and 7.32% Class B Asset Backed Notes collateralized by, the Receivables
and the other property of the Trust; and
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WHEREAS, the Originator and the Purchaser wish to set forth herein
certain representations, warranties, covenants and indemnities of the Originator
with respect to the Receivables for the benefit of the Purchaser, the Trust, the
Noteholders and the Certificateholders.
NOW, THEREFORE, in consideration of the foregoing, other good and
valuable consideration and the mutual terms and covenants contained herein the
parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.1. DEFINITIONS. Capitalized terms used herein and not
otherwise defined herein are defined in Appendix A to the Indenture, dated as of
the date hereof, between CNH Equipment Trust 2000-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 accounting principles, the definitions contained in
this Agreement or in any such certificate or other document shall control.
(c) The words "hereof", "herein", "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section, Schedule and Exhibit
references contained in this Agreement are references to Sections, Schedules and
Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including, without limitation,".
(d) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
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ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.1. CONVEYANCE OF PURCHASED CONTRACTS. In consideration of
the Purchaser's payment of $439,791,757.40 (the "INITIAL PURCHASE PRICE") in the
manner set out in Section 2.5(a), the Originator does hereby sell, transfer,
assign, set over and otherwise convey to the Purchaser, without recourse
(subject to the obligations herein), all of its right, title, interest and, with
respect to any Contracts that are Leases, obligations in, to and under
(collectively, the "INITIAL FIRST-TIER ASSETS"):
(i) the Purchased Contracts, including all documents
constituting chattel paper included therewith, and all obligations of
the Obligors thereunder, including all moneys paid thereunder on or
after the Initial Cutoff Date;
(ii) the security interests in the Financed Equipment granted
by Obligors pursuant to the Purchased Contracts and any other interest
of the Originator in such Financed Equipment;
(iii) any proceeds with respect to the Purchased Contracts
from claims on insurance policies covering Financed Equipment or
Obligors;
(iv) any proceeds from recourse to Dealers with respect to
the Purchased Contracts other than any interest in the Dealers'
reserve accounts maintained with the Originator or with NH Credit;
(v) any Financed Equipment that shall have secured the
Purchased Contracts and that shall have been acquired by or on behalf
of the Purchaser;
(vi) any True Lease Equipment that is subject to any
Purchased Contract; and
(vii) the proceeds of any and all of the foregoing.
SECTION 2.2. CONVEYANCE OF SUBSEQUENT RECEIVABLES. Subject to the
conditions set forth in Section 4.1(b), in consideration of the Purchaser's
delivery on the related Subsequent Transfer Date to or upon the order of the
Originator of the related Subsequent Purchase Price pursuant to Section 2.5, the
Originator does hereby sell, transfer, assign, set over and otherwise convey to
the Purchaser, without recourse (subject to the obligations herein), all of its
right, title, interest and, with respect to any Contracts that are Leases,
obligations in, to and under (collectively, the "SUBSEQUENT FIRST-TIER ASSETS";
and together with the Initial First-Tier Assets, the "FIRST-TIER ASSETS"):
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(i) the Subsequent Receivables listed on Schedule A to the
related First-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 Originator in such Financed Equipment;
(iii) any proceeds with respect to such Subsequent
Receivables from claims on insurance policies covering Financed
Equipment or Obligors;
(iv) any proceeds with respect to such Subsequent Receivables
from recourse to Dealers other than any interest in the Dealers'
reserve accounts maintained with the Originator or with NH Credit;
(v) any Financed Equipment that shall have secured any such
Subsequent Receivable and that shall have been acquired by or on
behalf of the Purchaser;
(vi) any True Lease Equipment that is subject to any
Subsequent Receivable; and
(vii) the proceeds of any and all of the foregoing.
SECTION 2.3. INTENTION OF THE PARTIES. The parties to this Agreement
intend that the transactions contemplated hereby shall be, and shall be treated
as, a purchase by the Purchaser and a sale by the Originator of the Purchased
Contracts and the Subsequent Receivables and any True Lease Equipment related to
such Purchased Contracts or Subsequent Receivables, as the case may be, and not
as a lending transaction. The foregoing sale, assignment, transfer and
conveyance does not constitute, and is not intended to result in a creation or
assumption by the Purchaser of, any obligation or liability with respect to any
Purchased Contract or any Subsequent Receivables, nor shall the Purchaser be
obligated to perform or otherwise be responsible for any obligation of the
Originator or any other Person in connection with the Purchased Contracts or the
Subsequent Receivables or under any agreement or instrument relating thereto,
including any contract or any other obligation to any Obligor, except that the
Purchaser accepts any Contracts that are Leases subject to (and assumes) the
covenants benefitting the Obligors under such Leases.
If (but only to the extent) that the transfer of the First-Tier Assets
hereunder is characterized by a court or other governmental authority as a loan
rather than a sale, the Originator shall be deemed hereunder to have granted to
the Purchaser a
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security interest in all of Originator's right, title and interest in and to the
First-Tier Assets. Such security interest shall secure all of the Originator'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 Purchaser
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 Purchaser
under this Agreement and applicable law, all the rights and remedies of a
secured party under any applicable UCC, and this Agreement shall constitute a
security agreement under applicable law.
SECTION 2.4. THE CLOSING. The sale and purchase of the Purchased
Contracts shall take place at a closing at the offices of Mayer, Brown & Platt,
190 South LaSalle Street, Chicago, Illinois 60603 on the Closing Date,
simultaneously with the closings under: (a) the Sale and Servicing Agreement,
(b) the Trust Agreement, (c) the Administration Agreement and (d) the Indenture.
SECTION 2.5. PAYMENT OF THE PURCHASE PRICE.
(a) Purchased Contracts. The Initial Purchase Price is payable as
follows: (i) $414,654,008.27 in cash on the Closing Date and (ii) the remainder
in cash, as provided in the subordinated note dated March 16, 2000, payable by
the Purchaser to the Originator.
(b) Subsequent Receivables. As consideration for the conveyance of
Subsequent Receivables pursuant to Section 2.2, the Purchaser shall pay or cause
to be paid to the Originator on each Subsequent Transfer Date an amount (a
"SUBSEQUENT PURCHASE PRICE") equal to the aggregate Contract Value of the
Subsequent Receivables as of the related Subsequent Cutoff Date, plus any
premium or minus any discount agreed upon by the Originator and the Purchaser.
Any Subsequent Purchase Price shall be payable as follows: (i) cash in the
amount released to the Purchaser from the Pre-Funding Account pursuant to
Section 5.7(a) of the Sale and Servicing Agreement shall be paid to the
Originator on the related Subsequent Transfer Date; and (ii) the balance shall
be paid in cash as and when amounts are released to, or otherwise realized by,
the Purchaser from the Spread Account, the Negative Carry Account, and the
Principal Supplement Account in accordance with the Sale and Servicing
Agreement, or otherwise are available for such purpose.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of the Purchaser. The
Purchaser hereby represents and warrants to the Originator as of the date hereof
and as of the Closing Date:
(a) Organization and Good Standing. The Purchaser has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with the power and
authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently
conducted, and had at all relevant times, and has, the power and
authority to acquire, own and sell the Receivables.
(b) Due Qualification. The Purchaser 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 Purchaser has the power and
authority to execute and deliver this Agreement and to carry out its
terms; and the execution, delivery and performance of this Agreement
have been duly authorized by the Purchaser by all necessary corporate
action.
(d) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of the Purchaser enforceable against the
Purchaser in accordance with its terms.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
do not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time)
a default under, the certificate of incorporation or by-laws of the
Purchaser, or any indenture, agreement or other instrument to which
the Purchaser is a party or by which it is bound; or result in the
creation or imposition of any Lien upon any of its properties pursuant
to the terms of any such indenture, agreement or other instrument
(other than the Sale and Servicing Agreement and the Indenture); or
violate any law or, to the best of the Purchaser's knowledge, any
order, rule or regulation applicable to the Purchaser of any court or
of any Federal or State regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the
Purchaser or its properties.
(f) No Proceedings. There are no proceedings or investiga-
tions pending or, to the Purchaser's best knowledge, threatened,
before any court,
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regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Purchaser or its
properties: (i) asserting the invalidity of this Agreement, (ii)
seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or (iii) seeking any determination or
ruling that could reasonably be expected to materially and adversely
affect the performance by the Purchaser of its obligations under, or
the validity or enforceability of, this Agreement.
SECTION 3.2. REPRESENTATIONS AND WARRANTIES OF THE ORIGINATOR. (a) The
Originator hereby represents and warrants to the Purchaser as of the date hereof
and as of the Closing Date:
(i) Organization and Good Standing. The Originator has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with the power and
authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently
conducted, and had at all relevant times, and has, the power and
authority to acquire, own and sell the Receivables.
(ii) Due Qualification. The Originator is duly qualified to
do business as a foreign corporation in good standing, and has
obtained all necessary licenses and approvals, in all jurisdictions in
which the ownership or lease of property or the conduct of its
business shall require such qualifications.
(iii) Power and Authority. The Originator has the power and
authority to execute and deliver this Agreement and to carry out its
terms; the Originator has full power and authority to sell and assign
the property to be sold and assigned to the Purchaser hereby and has
duly authorized such sale and assignment to the Purchaser by all
necessary corporate action; and the execution, delivery and
performance of this Agreement have been, and the execution, delivery
and performance of each First-Tier Case Subsequent Transfer Assignment
have been or will be on or before the related Subsequent Transfer
Date, duly authorized by the Originator by all necessary corporate
action.
(iv) Binding Obligation. This Agreement constitutes, and each
First-Tier Case Subsequent Transfer Assignment when executed and
delivered by the Originator will constitute, a legal, valid and
binding obligation of the Originator enforceable against the
Originator in accordance with their terms.
(v) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
do not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time)
a default under, the
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certificate of incorporation or by-laws of the Originator, or any
indenture, agreement or other instrument to which the Originator is a
party or by which it is bound; or result in the creation or imposition
of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement or other instrument (other than this
Agreement); or violate any law or, to the best of the Originator's
knowledge, any order, rule or regulation applicable to the Originator
of any court or of any Federal or State regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Originator or its properties.
(vi) No Proceedings. There are no proceedings or
investigations pending, or to the Originator's best knowledge,
threatened, before any court, regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the
Originator or its properties: (A) asserting the invalidity of this
Agreement, (B) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement, or (C) seeking any
determination or ruling that could reasonably be expected to
materially and adversely affect the performance by the Originator of
its obligations under, or the validity or enforceability of, this
Agreement.
(b) The Originator makes the following representations and warranties
as to the Receivables on which the Purchaser relies in accepting the Purchased
Contracts and the Subsequent Receivables and in transferring the Receivables to
the Trust. Such representations and warranties speak as of the execution and
delivery of this Agreement and as of the Closing Date, in the case of the
Purchased Contracts, 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 Purchaser and the subsequent assignment and
transfer of such Receivables to the Trust pursuant to the Sale and Servicing
Agreement and pursuant to the Indenture:
(i) Characteristics of Receivables. Each Receivable: (A) (1)
(i) was originated in the United States of America by a Dealer in
connection with the retail sale or lease of Financed Equipment in the
ordinary course of such Dealer's business, and (ii) either (x) was
purchased by the Originator from a Dealer and validly assigned by such
Dealer to the Originator in accordance with its terms, or (y) was
purchased by the Originator from NH Credit and validly assigned to the
Originator in accordance with its terms, or (2) was originated in the
United States of America by Case Credit in connection with the
financing or lease of Financed Equipment in the ordinary course of
Case Credit's business and, in either case, was fully and properly
executed by the parties thereto, (B) has created a valid, subsisting
and enforceable first priority security interest in the Financed
Equipment in favor of the Originator or, in the case of a NH
Receivable, NH Credit, which (i) with respect to a NH
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Receivable, has been assigned to the Originator, and (ii) with respect
to the Receivables (including any NH Receivable), as of the Closing
Date, has been assigned by the Originator to the Purchaser, by the
Purchaser to the Issuer and by the Issuer to the Indenture Trustee,
except that (x) no security interest against the Obligor is created in
True Lease Equipment, and (y) the Originator makes no representation
or warranty as to any such security interest granted by any Dealer to
secure the Dealer's obligations to make payments in respect of
Termination Values, (C) contains customary and enforceable provisions
such that the rights and remedies of the holder thereof are adequate
for realization against the collateral of the benefits of the
security, and (D) (i) in the case of Retail Installment Contracts,
provides for fixed payments on a periodic basis that fully amortize
the Amount Financed by maturity and yield interest at the Annual
Percentage Rate, and (ii) in the case of any Contracts sold, or to be
sold, hereunder that are Leases, provides for fixed payments on a
periodic basis that fully amortize the Amount Financed by maturity and
yield interest at the Annual Percentage Rate, except that any
Contracts sold, or to be sold, hereunder that are Leases also provide
for payments of the related Termination Values.
(ii) Schedule of Receivables. The information set forth on
Schedule A to the First-Tier Case Assignment delivered on the Closing
Date is true and correct in all material respects as of the opening of
business on the Initial Cutoff Date and the information set forth on
Schedule A to the related First-Tier Case Subsequent Transfer
Assignment will be true and correct on each Subsequent Transfer Date
related to such First-Tier Case Subsequent Transfer Assignment and no
selection procedures believed by the Originator to be adverse to the
interests of the Trust, the Noteholders or the Certificateholders were
or will be utilized in selecting the Receivables. The computer tape
regarding the Receivables made available to the Purchaser and its
assigns is true and correct in all respects.
(iii) Compliance With Law. Each Receivable and the sale or
lease of the related Financed Equipment complied in all material
respects at the time it was originated or made and at the execution of
this Agreement and each First-Tier Case Subsequent Transfer Assignment
complies in all material respects with all requirements of applicable
Federal, State and local laws and regulations thereunder, including
usury law, the Federal Truth-in-Lending Act, the Equal Credit
Opportunity Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the
Magnuson-Moss Warranty Act, the Federal Reserve Board's Regulations B
and Z, the Wisconsin Consumer Act and State adaptations of the
National Consumer Act and of the Uniform Consumer Credit Code, and
other consumer credit laws and equal credit opportunity and disclosure
laws.
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(iv) Binding Obligation. Each Receivable represents the
genuine, legal, valid and binding payment obligation in writing of the
Obligor, enforceable by the holder thereof in accordance with its
terms.
(v) No Government Obligor. None of the Receivables is due
from the United States of America or any State or from any agency,
department or instrumentality of the United States of America or any
State.
(vi) Security Interest in Financed Equipment. Immediately
prior to the sale, assignment and transfer thereof, each Receivable
shall be secured by a validly perfected first priority security
interest in the Financed Equipment in favor of the Originator as
secured party (or, in the case of a NH Receivable, as assignee of NH
Credit) or all necessary and appropriate actions have been commenced
that would result in the valid perfection of a first priority security
interest in the Financed Equipment in favor of the Originator as
secured party (or, in the case of a NH Receivable, as assignee of NH
Credit), except that (A) no security interest against the Obligor is
created in True Lease Equipment and (B) the Originator makes no
representation or warranty as to any security interest granted by any
Dealer to secure the Dealer's obligations to make payments in respect
of Termination Values.
(vii) Receivables in Force. No Receivable has been satisfied,
subordinated or rescinded, nor has any Financed Equipment been
released from the Lien granted by the related Receivable in whole or
in part.
(viii) No Amendment or Waiver. No provision of a Receivable
has been waived, altered or modified in any respect, except pursuant
to a document, instrument or writing included in the Receivable Files
and no such amendment, waiver, alteration or modification causes such
Receivable not to conform to the other warranties contained in this
Section.
(ix) No Defenses. No right of rescission, setoff,
counterclaim or defense has been asserted or threatened or exists with
respect to any Receivable.
(x) No Liens. To the best of the Originator's knowledge, no
Liens or claims, including claims for work, labor or materials,
relating to any of the Financed Equipment have been filed that are
Liens prior to, or equal or coordinate with, the security interest in
the Financed Equipment granted by any Receivable, except those
pursuant to the Basic Documents.
(xi) No Default. No Receivable is a non-performing Receivable
or has a payment that is more than 90 days overdue as of the Initial
Cutoff Date
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or Subsequent Cutoff Date, as applicable, and, except for a payment
default continuing for a period of not more than 90 days, no default,
breach, violation or event permitting acceleration under the terms of
any Receivable has occurred and is continuing; and no continuing
condition that with notice or the lapse of time would constitute such
a default, breach, violation or event permitting acceleration under
the terms of any Receivable has arisen; and the Originator has not
waived and shall not waive any of the foregoing.
(xii) Title. It is the intention of the Originator that the
transfers and assignments contemplated herein and in the Liquidity
Receivables Purchase Agreement constitute a sale of the Receivables
from the Originator to the Purchaser and that the beneficial interest
in and title to the Receivables and any True Lease Equipment related
to such Receivables not be part of the debtor's estate in the event of
the filing of a bankruptcy petition by or against the Originator under
any bankruptcy or similar law. No Receivable has been sold,
transferred, assigned or pledged by the Originator to any Person other
than the Purchaser. Immediately prior to the transfers and assignments
contemplated herein and in the Liquidity Receivables Purchase
Agreement, the Originator had good title to each Receivable and any
True Lease Equipment related to such Receivable, free and clear of all
Liens and, immediately upon the transfer thereof, the Purchaser shall
have good title to each Receivable and any True Lease Equipment, free
and clear of all Liens; and the transfer and assignment of the
Receivables to the Purchaser has been perfected under the UCC.
(xiii) Lawful Assignment. No Receivable has been originated
in, or is subject to the laws of, any jurisdiction under which the
sale, transfer and assignment of such Receivable or any Receivable
under this Agreement, the Sale Agreement, the Liquidity Receivables
Purchase Agreement, the Sale and Servicing Agreement or the Indenture
is unlawful, void or voidable.
(xiv) All Filings Made. All filings (including UCC filings)
necessary in any jurisdiction to give the Purchaser a first priority
perfected ownership interest in the Receivables have been made.
(xv) One Original. There is only one original executed copy
of each Receivable.
(xvi) Maturity of Receivables. Each Receivable has a
remaining term to maturity of not more than 72 months, in the case of
the Initial Receivables, and 72 months, in the case of the Subsequent
Receivables; the weighted average remaining term of the Initial
Receivables is approximately 49.28 months as of the Initial Cutoff
Date; the weighted average original term of the Receivables, including
as of each Subsequent Transfer Date all
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Subsequent Receivables previously transferred to the Purchaser, will
not be greater than 55.0 months.
(xvii) Scheduled Payments and APR. No Receivable has a final
scheduled payment date later than six months preceding the Final
Scheduled Maturity Date; each Receivable provides for payments that
fully amortize the Amount Financed over the original term of the
Receivable, except that Leases also provide for payments of the
related Termination Values, and is either a Precomputed Receivable or
a Simple Interest Receivable; each Receivable has an APR of at least
3.0%; as of each Subsequent Cutoff Date, the weighted average of the
Initial Cutoff Date APR and each Subsequent Cutoff Date APR (weighted
on the basis of the respective aggregate Contract Values of the
Receivables for which each such APR is used to calculate the Contract
Value) will not be less than the sum of the weighted average of the
Interest Rates for the Class A Notes and Class B Notes plus the
Servicing Fee.
(xviii) Insurance. The Obligor on each Receivable is required
to maintain physical damage insurance covering the Financed Equipment
and, in the case of any Lease, public liability insurance relating to
the use of such Financed Equipment, in each case in accordance with
the Originator's or, in the case of a NH Receivable, NH Credit's
normal requirements.
(xix) Concentrations. (A) No Receivable has a Contract Value
(when combined with the Contract Value of any other Receivable with
the same or an Affiliated Obligor) that exceeds 1% of the Initial Pool
Balance.
(B) [Reserved]
(xx) Financing. Approximately 56.21% of the aggregate
Contract Value of the Initial Receivables, constituting 58.99% of the
number of Initial Receivables as of the Initial Cutoff Date, were
secured by or constitute leases of equipment that was new at the time
the related Initial Receivable was originated; the remainder of the
Initial Receivables represent financing or leases of used equipment;
approximately 65.45% of the aggregate Contract Value of the Initial
Receivables, constituting 64.27% of the number of Initial Receivables
as of the Initial Cutoff Date, represent financing or leases of
agricultural equipment; the remainder of the Initial Receivables
represent financing or leases of construction or forestry equipment.
The aggregate Contract Value of the Receivables for the purposes of
the above calculations as of the Initial Cutoff Date is
$739,257,526.83 (and is calculated using the individual APR applicable
to each Initial Receivable). Additionally, not more than 50.00% of the
aggregate Contract Value of the Receivables, including, as of each
Subsequent Transfer Date, all Subsequent Receivables previously
12
transferred to the Purchaser, will represent Contracts for the
financing or lease of construction and forestry equipment. No
Subsequent Receivable will represent the financing of truck equipment.
(xxi) No Bankruptcies. No Obligor on any Receivable as of the
Initial Cutoff Date or the Subsequent Cutoff Date, as applicable, was
noted in the related Receivable File as being the subject of a
bankruptcy proceeding.
(xxii) No Repossessions. None of the Financed Equipment
securing any Receivable is in repossession status.
(xxiii) Chattel Paper. Each Receivable constitutes "chattel
paper" as defined in the UCC of the State the law of which governs the
perfection of the interest granted in it.
(xxiv) U.S. Obligors. None of the Receivables is denominated
and payable in any currency other than United States Dollars or is due
from any Person that does not have a mailing address in the United
States of America.
(xxv) Payment Frequency. As of the Initial Cutoff Date and as
shown on the books of the Originator (or, in the case of the NH
Receivables, NH Credit): (A) Initial Receivables having an aggregate
Contract Value equal to 50.66% of the Initial Pool Balance had annual
scheduled payments, (B) Initial Receivables having an aggregate
Contract Value equal to 3.33% of the Initial Pool Balance had
semi-annual scheduled payments, (C) Initial Receivables having an
aggregate Contract Value equal to 0.66% of the Initial Pool Balance
had quarterly scheduled payments, (D) Initial Receivables having an
aggregate Contract Value equal to 43.18% of the Initial Pool Balance
had monthly scheduled payments, and (E) Initial Receivables having an
aggregate Contract Value equal to 2.17% of the Initial Pool Balance
had irregularly scheduled payments.
(xxvi) First Payment. As of the Initial Cutoff Date, Obligors
had not yet made the first payment in respect of Initial Receivables
representing less than 53.93% of the Initial Pool Balance.
(xxvii) Interest Accruing. Each Receivable, other than those
Receivables consisting of Contracts that contain interest waivers for
a specified period of time, is, as of the Closing Date or Subsequent
Transfer Date, as applicable, accruing interest; no Receivable
contains an interest waiver extending more than 12 months after the
Initial Cutoff Date.
13
(xxviii) Leases. Each Lease included in the Initial
Receivables or the Subsequent Receivables has a Termination Value less
than or equal to 10% of the purchase price of the equipment subject to
such Lease and is a "lease intended as security" (rather than a true
lease) within the meaning of Section 1-201(37) of the UCC.
(xxix) Originator's Representations. The representations and
warranties of the Originator contained in Section 3.2(a) are true and
correct.
(xxx) Originator's Obligations. The Originator has no
obligations under any Contract, other than the covenant of quiet
enjoyment benefiting the Obligors under any Contracts that are Leases.
(xxxi) No Either/or Leases. No Lease included in the Initial
Receivables or the Subsequent Receivables is a Either/or Lease, and no
Financed Equipment transferred to the Purchaser on the Closing Date or
any Subsequent Transfer Date, as the case may be, constitutes True
Lease Equipment.
(xxxii) No Leases. Notwithstanding anything to the contrary
in the Basic Documents, none of the Initial Receivables or the
Subsequent Receivables shall be Leases.
ARTICLE IV
CONDITIONS
SECTION 4.1. CONDITIONS TO OBLIGATION OF THE PURCHASER.
(a) Purchased Contracts. The obligation of the Purchaser to purchase
the Purchased Contracts is subject to the satisfaction of the following
conditions:
(i) Representations and Warranties True. The representations
and warranties of the Originator hereunder shall be true and correct
on the Closing Date and the Originator shall have performed all
obligations to be performed by it hereunder on or prior to the Closing
Date.
(ii) Computer Files Marked. The Originator shall, at its own
expense, on or prior to the Closing Date, indicate in its computer
files that Receivables created in connection with the Purchased
Contracts have been sold to the Purchaser pursuant to this Agreement
and deliver to the Purchaser the Schedule of Receivables certified by
the Chairman, the President, a Vice President or the Treasurer of the
Originator to be true, correct and complete.
14
(iii) Documents To Be Delivered by the Originator on the
Closing Date.
(A) The First-tier Case Assignment. On the Closing
Date (but only if the Contract Value of the Purchased
Contracts is greater than zero), the Originator will execute
and deliver the First-Tier Case Assignment, which shall be
substantially in the form of Exhibit A.
(B) Evidence of UCC Filing. On or prior to the
Closing Date (but only if the Contract Value of the Purchased
Contracts is greater than zero), the Originator shall execute
and file, at its own expense, a UCC financing statement in
each jurisdiction in which such action is required by
applicable law to fully perfect the Purchaser's right, title
and interest in the Purchased Contracts and the other
property sold hereunder, executed by the Originator, as
seller or debtor, and naming the Purchaser, as purchaser or
secured party, describing the Purchased Contracts and the
other property sold hereunder, meeting the requirements of
the laws of each such jurisdiction and in such manner as is
necessary to perfect the sale, transfer, assignment and
conveyance of such Purchased Contracts and such other
property to the Purchaser. It is understood and agreed,
however, that no filings will be made to perfect any security
interest of the Purchaser in the Originator's interests in
Financed Equipment. The Originator shall deliver (or cause to
be delivered) a file-stamped copy, or other evidence
satisfactory to the Purchaser of such filing, to the
Purchaser on or prior to the Closing Date.
(C) Other Documents. The Originator will deliver
such other documents as the Purchaser may reasonably request.
(iv) Other Transactions. The transactions contemplated by the
Sale and Servicing Agreement to be consummated on the Closing Date
shall be consummated on such date.
(b) Subsequent Receivables. The obligation of the Purchaser to
purchase any Subsequent Receivables is subject to the satisfaction of the
following conditions on or prior to the related Subsequent Transfer Date:
(i) the Originator shall have delivered to the Purchaser a
duly executed written assignment in substantially the form of Exhibit
B (the "FIRST-TIER CASE SUBSEQUENT TRANSFER ASSIGNMENT"), which shall
include supplements to the Schedule of Receivables listing the
Subsequent Receivables;
15
(ii) the Originator shall, to the extent required by Section
5.2 of the Sale and Servicing Agreement, have delivered to the
Purchaser for deposit in the Collection Account all collections in
respect of the Subsequent Receivables;
(iii) as of such Subsequent Transfer Date: (A) the Originator
was not insolvent and will not become insolvent as a result of the
transfer of Subsequent Receivables on such Subsequent Transfer Date,
(B) the Originator did not intend to incur or believe that it would
incur debts that would be beyond the Originator'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
Originator did not constitute unreasonably small capital to carry out
its business as conducted;
(iv) the applicable Spread Account Initial Deposit and
Principal Supplement Account Deposit, if any, for such Subsequent
Transfer Date shall have been made;
(v) the Funding Period shall not have terminated;
(vi) each of the representations and warranties made by the
Originator pursuant to Section 3.2(b) with respect to the Subsequent
Receivables shall be true and correct as of such Subsequent Transfer
Date, and the Originator shall have performed all obligations to be
performed by it hereunder on or prior to such Subsequent Transfer
Date;
(vii) the Originator 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 First-Tier Case
Subsequent Transfer Assignment have been sold to the Purchaser
pursuant to this Agreement and the First-Tier Case Subsequent Transfer
Assignment;
(viii) the Originator shall have taken any action required to
give the Purchaser a first priority perfected ownership interest in
the Subsequent Receivables;
(ix) no selection procedures believed by the Originator to be
adverse to the interests of the Purchaser, the Trust, the Noteholders
or the Certificateholders shall have been utilized in selecting the
Subsequent Receivables;
(x) the addition of the Subsequent Receivables will not
result in a material adverse tax consequence to the Purchaser, the
Trust, the Noteholders or the Certificateholders;
16
(xi) the Originator shall have provided the Purchaser a
statement listing the aggregate Contract Value of such Subsequent
Receivables and any other information reasonably requested by the
Purchaser with respect to such Subsequent Receivables;
(xii) all the conditions to the transfer of the Subsequent
Receivables to the Issuer specified in the Sale and Servicing
Agreement shall have been satisfied; and
(xiii) the Originator shall have delivered to the Purchaser
an Officers' Certificate confirming the satisfaction of each condition
precedent specified in this clause (b) (substantially in the form
attached hereto as Annex A to the First-Tier Case Subsequent Transfer
Assignment).
SECTION 4.2. CONDITIONS TO OBLIGATION OF THE ORIGINATOR. The
obligation of the Originator to sell the Purchased Contracts and the Subsequent
Receivables to the Purchaser is subject to the satisfaction of the following
conditions:
(a) Representations and Warranties True. The representations
and warranties of the Purchaser hereunder shall be true and correct on
the Closing Date or the applicable Subsequent Transfer Date with the
same effect as if then made, and the Purchaser shall have performed
all obligations to be performed by it hereunder on or prior to the
Closing Date or such Subsequent Transfer Date.
(b) Receivables Purchase Price. On the Closing Date or the
applicable Subsequent Transfer Date, the Purchaser shall have
delivered to the Originator the portion of the Initial Purchase Price
or the Subsequent Purchase Price, as the case may be, payable on the
Closing Date or such Subsequent Transfer Date pursuant to Section 2.5.
ARTICLE V
COVENANTS OF THE ORIGINATOR
The Originator agrees with the Purchaser as follows; PROVIDED,
HOWEVER, that to the extent that any provision of this Article conflicts with
any provision of the Sale and Servicing Agreement, the Sale and Servicing
Agreement shall govern:
SECTION 5.1. PROTECTION OF RIGHT, TITLE AND INTEREST. (a) Filings. The
Originator shall cause all financing statements and continuation statements and
any other necessary documents covering the right, title and interest of the
Purchaser in and to the Receivables and the other property included in the Trust
Estate to be promptly filed, and at all times to be kept recorded, registered
and filed, all in such
17
manner and in such places as may be required by law fully to preserve and
protect the right, title and interest of the Purchaser hereunder to the
Receivables and the other property sold hereunder. It is understood and agreed,
however, that no filings will be made to perfect any security interest of the
Purchaser in the Originator's interests in Financed Equipment. The Originator
shall deliver (or cause to be delivered) to the Purchaser file-stamped copies
of, or filing receipts for, any document recorded, registered or filed as
provided above as soon as available following such recordation, registration or
filing. The Purchaser shall cooperate fully with the Originator in connection
with the obligations set forth above and will execute any and all documents
reasonably required to fulfill the intent of this paragraph.
(b) Name Change. Within 15 days after the Originator makes any change
in its name, identity or corporate structure that would, could or might make any
financing statement or continuation statement filed in accordance with paragraph
(a) seriously misleading within the applicable provisions of the UCC or any
title statute, the Originator shall give the Purchaser notice of any such
change, and no later than five days after the effective date thereof, shall file
such financing statements or amendments as may be necessary to continue the
perfection of the Purchaser's interest in the property included in the Trust
Estate.
SECTION 5.2. OTHER LIENS OR INTERESTS. Except for the conveyances
hereunder and pursuant to the Liquidity Receivables Purchase Agreement, the Sale
and Servicing Agreement, the Indenture and the other Basic Documents, the
Originator: (a) will not sell, pledge, assign or transfer to any Person, or
grant, create, incur, assume or suffer to exist any Lien on, any interest in, to
and under the Receivables, and (b) shall defend the right, title and interest of
the Purchaser in, to and under the Receivables against all claims of third
parties claiming through or under the Originator; PROVIDED, HOWEVER, that the
Originator's obligations under this Section shall terminate upon the termination
of the Trust pursuant to the Trust Agreement.
SECTION 5.3. CHIEF EXECUTIVE OFFICE. During the term of the
Receivables, the Originator will maintain its chief executive office in one of
the States.
SECTION 5.4. COSTS AND EXPENSES. The Originator agrees to pay all
reasonable costs and disbursements in connection with the perfection, as against
all third parties, of the Purchaser's right, title and interest in, to and under
the Receivables.
SECTION 5.5. INDEMNIFICATION. The Originator shall indemnify, defend
and hold harmless the Purchaser for any liability as a result of the failure of
a Receivable to be originated in compliance with all requirements of law and for
any breach of any of its representations and warranties contained herein. These
indemnity obligations
18
shall be in addition to any obligation that the Originator may otherwise have.
The Originator shall indemnify, defend and hold harmless the Purchaser, the
Issuer, the Trustee and the Indenture Trustee (and their respective officers,
directors, employees and agents) from and against any taxes that may at any time
be asserted against such Person with respect to the sale of the Receivables to
the Purchaser hereunder or the sale of the Receivables to the Issuer by the
Purchaser 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 Purchaser and the
Issuer, not including any taxes asserted with respect to ownership of the
Receivables on Federal or other income taxes arising out of the transactions
contemplated by this Agreement) and costs and expenses in defending against the
same.
SECTION 5.6. TRANSFER OF SUBSEQUENT RECEIVABLES. The Originator
covenants to transfer to the Purchaser, pursuant to Section 2.2, Subsequent
Receivables with an aggregate Contract Value equal to $427,816,312.54, subject
only to the availability of such Subsequent Receivables.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1. OBLIGATIONS OF ORIGINATOR. The obligations of the
Originator under this Agreement shall not be affected by reason of any
invalidity, illegality or irregularity of any Receivable.
SECTION 6.2. REPURCHASE EVENTS. The Originator hereby covenants and
agrees with the Purchaser for the benefit of the Purchaser, the Indenture
Trustee, the Noteholders, the Trustee and the Certificateholders that the
occurrence of a breach of any of the Originator's representations and warranties
contained in Section 3.2(b), shall constitute events obligating the Originator
to repurchase any Receivable materially and adversely affected by any such
breach ("REPURCHASE EVENTS") at the Purchase Amount from the Purchaser or from
the Trust. Except as set forth in Section 5.5, the repurchase obligation of the
Originator shall constitute the sole remedy of the Purchaser, the Indenture
Trustee, the Noteholders, the Trust, the Trustee or the Certificateholders
against the Originator with respect to any Repurchase Event.
SECTION 6.3. PURCHASER ASSIGNMENT OF REPURCHASED RECEIVABLES. With
respect to all Receivables repurchased by the Originator pursuant to this
Agreement, the Purchaser shall sell, transfer, assign, set over and otherwise
convey to the Originator, without recourse, representation or warranty, all of
the Purchaser's right, title and interest in, to and under such Receivables, and
all security and documents relating thereto.
19
SECTION 6.4. TRUST. The Originator acknowledges and agrees that: (a)
the Purchaser will, pursuant to the Sale and Servicing Agreement, sell the
Receivables to the Trust and assign its rights under this Agreement to the
Trust, (b) the Trust will, pursuant to the Indenture, assign such Receivables
and such rights to the Indenture Trustee and (c) the representations, warranties
and covenants contained in this Agreement and the rights of the Purchaser under
this Agreement, including under Section 6.2, are intended to benefit the Trust,
the Certificateholders and the Noteholders. The Originator hereby consents to
all such sales and assignments and agrees that enforcement of a right or remedy
hereunder by the Indenture Trustee shall have the same force and effect as if
the right or remedy had been enforced or executed by the Purchaser.
SECTION 6.5. AMENDMENT. This Agreement may be amended from time to
time, with prior written notice to the Rating Agencies, by a written amendment
duly executed and delivered by the Originator and the Purchaser, without the
consent of the Noteholders or the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions in this Agreement or for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Noteholders or the Certificateholders; PROVIDED, HOWEVER, that such amendment
will not in the Opinion of Counsel, materially and adversely affect the interest
of any Noteholder or Certificateholder.
This Agreement may also be amended from time to time by the Originator
and the Purchaser, with prior written notice to the Rating Agencies, with the
written consent of (x) Noteholders holding Notes evidencing at least a majority
of the Note Balance and (y) the Holders of Certificates evidencing at least a
majority of the Certificate Balance, for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Noteholders or the
Certificateholders; PROVIDED, HOWEVER, that no such amendment may: (i) increase
or reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on Receivables or distributions that are required to be
made for the benefit of the Noteholders or the Certificateholders or (ii) reduce
the aforesaid percentage of the Notes and Certificates that are required to
consent to any such amendment, without the consent of the holders of all the
outstanding Notes and Certificates.
It shall not be necessary for the consent of Certificateholders or
Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof.
SECTION 6.6. ACCOUNTANTS' LETTERS. (a) A firm of independent certified
public accountants will review the characteristics of the Receivables described
in the
20
Schedule of Receivables and will compare those characteristics to the
information with respect to the Receivables contained in the Prospectus, (b) the
Originator will cooperate with the Purchaser and such accounting firm in making
available all information and taking all steps reasonably necessary to permit
such accounting firm to complete the review set forth in clause (a) and to
deliver the letters required of them under the Underwriting Agreement, (c) such
accounting firm will deliver to the Purchaser a letter, dated the date of the
Prospectus, in the form previously agreed to by the Originator and the
Purchaser, with respect to the financial and statistical information contained
in the Prospectus and with respect to such other information as may be agreed in
the form of the letter.
SECTION 6.7. WAIVERS. No failure or delay on the part of the Purchaser
in exercising any power, right or remedy under this Agreement, the First-Tier
Case Assignment or any First-Tier Case Subsequent Transfer Assignment shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power, right or remedy preclude any other or further exercise thereof or
the exercise of any other power, right or remedy.
SECTION 6.8. NOTICES. All demands, notices and communications under
this Agreement shall be in writing, personally delivered or mailed by certified
mail, return receipt requested, and shall be deemed to have been duly given upon
receipt: (a) in the case of the Originator, to Case Credit Corporation, 233 Lake
Avenue, Racine, Wisconsin 53403, Attention: Treasurer (telephone (414)
636-6011); (b) in the case of the Purchaser, to CNH Receivables Inc., 475 Half
Day Road, Lincolnshire, Illinois 60069, Attention: Treasurer (telephone (847)
955-4904); (c) in the case of the Rating Agencies, at their respective addresses
set forth in Section 10.3 of the Sale and Servicing Agreement; or, as to each of
the foregoing, at such other address as shall be designated by written notice to
the other parties.
SECTION 6.9. COSTS AND EXPENSES. The Originator will pay all expenses
incident to the performance of its obligations under this Agreement and the
Originator agrees to pay all reasonable out-of-pocket costs and expenses of the
Purchaser, excluding fees and expenses of counsel, in connection with the
perfection as against third parties of the Purchaser's right, title and interest
in, to and under the Receivables and the enforcement of any obligation of the
Originator hereunder.
SECTION 6.10. REPRESENTATIONS OF THE ORIGINATOR AND THE PURCHASER. The
respective agreements, representations, warranties and other statements by the
Originator and the Purchaser set forth in or made pursuant to this Agreement
shall remain in full force and effect and will survive the closing under Section
2.4.
SECTION 6.11. CONFIDENTIAL INFORMATION. The Purchaser agrees that it
will neither use nor disclose to any Person the names and addresses of the
Obligors, except in connection with the enforcement of the Purchaser's rights
hereunder, under
21
the Receivables, under the Sale and Servicing Agreement or the Indenture or any
other Basic Document or as required by any of the foregoing or by law.
SECTION 6.12. HEADINGS AND CROSS-REFERENCES. The various headings in
this Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement. References in this
Agreement to Section names or numbers are to such Sections of this Agreement
unless otherwise expressly indicated.
SECTION 6.13. GOVERNING LAW. This Agreement, the First-Tier Case
Assignment, and each First-Tier Case Subsequent Transfer Assignment shall be
construed in accordance with the laws of the State of New York, without
reference to its conflict of law provisions, and the obligations, rights and
remedies of the parties hereunder or thereunder shall be determined in
accordance with such laws.
SECTION 6.14. COUNTERPARTS. This Agreement may be executed in two or
more counterparts and by different parties on separate counterparts, each of
which shall be an original, but all of which together shall constitute but one
and the same instrument.
SECTION 6.15. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
22
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers duly authorized as of the date and year
first above written.
CNH RECEIVABLES INC.
By:/s/ Ralph A. Than
----------------------------------
Name: Ralph A. Than
Title: Vice President & Treasurer
CASE CREDIT CORPORATION
By:/s/ Ralph A. Than
---------------------------------
Name: Ralph A. Than
Title: Vice President & Treasurer
23
EXHIBIT A
to Purchase Agreement
FORM OF
FIRST-TIER CASE ASSIGNMENT
For value received, in accordance with and subject to the Purchase
Agreement dated as of March 1, 2000 (the "PURCHASE AGREEMENT"), between the
undersigned and CNH Receivables Inc. (the "PURCHASER"), the undersigned does
hereby sell, assign, transfer, set over and otherwise convey unto the Purchaser,
without recourse, all of its right, title, interest and, with respect to any
Contracts that are Leases, obligations in, to and under: (a) the Purchased
Contracts, including all documents constituting chattel paper included
therewith, and all obligations of the Obligors thereunder, including all moneys
paid thereunder on or after the Initial Cutoff Date, (b) the security interests
in the Financed Equipment granted by Obligors pursuant to the Purchased
Contracts and any other interest of the undersigned in such Financed Equipment,
(c) any proceeds with respect to the Purchased Contracts from claims on
insurance policies covering Financed Equipment or Obligors, (d) any proceeds
from recourse to Dealers with respect to the Purchased Contracts other than any
interest in the Dealers' reserve accounts maintained with Case Credit
Corporation or with NH Credit, (e) any Financed Equipment that shall have
secured the Purchased Contracts and that shall have been acquired by or on
behalf of the Purchaser, (f) any True Lease Equipment that is subject to any
Purchased Contract, and (g) the proceeds of any and all of the foregoing. The
foregoing sale does not constitute and is not intended to result in any
assumption by the Purchaser of any obligation (other than the covenant of quiet
enjoyment benefitting the Obligors under any Contracts that are Leases) of the
undersigned to the Obligors, insurers or any other person in connection with the
Purchased Contracts, Receivables Files, any insurance policies or any agreement
or instrument relating to any of them.
This First-Tier Case Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Purchase Agreement and is to be governed in all respects by the
Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the Purchase Agreement.
24
IN WITNESS WHEREOF, the undersigned has caused this First-Tier Case
Assignment to be duly executed as of March __, 2000.
CASE CREDIT CORPORATION
By:
------------------------------
Name:
Title:
25
EXHIBIT B
to Purchase Agreement
FORM OF
FIRST-TIER CASE SUBSEQUENT TRANSFER ASSIGNMENT
For value received, in accordance with and subject to the Purchase
Agreement dated as of March 1, 2000 (the "PURCHASE AGREEMENT"), between Case
Credit Corporation, a Delaware corporation (the "ORIGINATOR"), and CNH
Receivables Inc., a Delaware corporation (the "PURCHASER"), the Originator does
hereby sell, transfer, assign, set over and otherwise convey to the Purchaser,
without recourse, all of its right, title, interest and, with respect to any
Contracts that are Leases, obligations in, to and under: (a) the Subsequent
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 Originator in such
Financed Equipment, (c) any proceeds with respect to such Subsequent Receivables
from claims on insurance policies covering Financed Equipment or Obligors, (d)
any proceeds from recourse to Dealers with respect to such Subsequent
Receivables other than any interest in the Dealers' reserve accounts maintained
with the Originator or with NH Credit, (e) any Financed Equipment that shall
have secured any such Subsequent Receivables and that shall have been acquired
by or on behalf of the Purchaser, (f) any True Lease Equipment that is subject
to any Subsequent Receivable, and (g) the proceeds of any and all of the
foregoing. The foregoing sale does not constitute and is not intended to result
in any assumption by the Purchaser of any obligation (other than the covenant of
quiet enjoyment benefitting the Obligors under any Contracts that are Leases) of
the Originator 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 First-Tier Case Subsequent Transfer Assignment is made pursuant
to and upon the representations, warranties and agreements on the part of the
Originator contained in the Purchase Agreement (including the Officers'
Certificate of the Originator accompanying this Agreement) and is to be governed
in all respects by the Purchase Agreement.
Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to them in the Purchase Agreement.
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IN WITNESS WHEREOF, the undersigned has caused this First Tier Case
Subsequent Transfer Assignment to be duly executed as of _____________________
_________________.
CASE CREDIT CORPORATION
By:
-----------------------------------
Name:______________________________
Title:_____________________________
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SCHEDULE A
to First-Tier Case Subsequent Transfer Assignment
SCHEDULE OF SUBSEQUENT RECEIVABLES
[SEE ATTACHED LIST]
28
ANNEX A
to First-Tier Case Subsequent Transfer Assignment
OFFICERS' CERTIFICATE
We, the undersigned officers of Case Credit Corporation (the
"COMPANY"), do hereby certify, pursuant to Section 4.1(b)(xiii) of the Purchase
Agreement dated as of March 1, 2000, among the Company, and CNH Receivables Inc.
(the "PURCHASE AGREEMENT"), that all of the conditions precedent to the transfer
to the Purchaser of the Subsequent Receivables listed on Schedule A to the
First-Tier Case Subsequent Transfer Assignment delivered herewith, and the other
property and rights related to such Subsequent Receivables as described in
Section 2.2 of the Purchase Agreement, have been satisfied on or prior to the
related Subsequent Transfer Date.
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned have caused this certificate to be
duly executed this ___ day of ___________, _____.
By:
-----------------------------------
Name:______________________________
Title:_____________________________
By:
-----------------------------------
Name:______________________________
Title:_____________________________
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