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CNH EQUIPMENT TRUST 2001-A
CASE PURCHASE AGREEMENT
between
CASE CREDIT CORPORATION
and
CNH CAPITAL RECEIVABLES INC.
Dated as of May 1, 2001
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TABLE OF CONTENTS
Page
ARTICLE I Certain Definitions.............................................2
SECTION 1.1. Definitions.........................................2
SECTION 1.2. Other Definitional Provisions.......................2
ARTICLE II Conveyance of Case Receivables..................................2
SECTION 2.1. Conveyance of Case Purchased Contracts..............2
SECTION 2.2. Conveyance of Subsequent Case Receivables...........3
SECTION 2.3. Intention of the Parties............................4
SECTION 2.4. The Closing.........................................4
SECTION 2.5. Payment of the Purchase Price.......................4
ARTICLE III Representations and Warranties.................................5
SECTION 3.1. Representations and Warranties of CNHCR.............5
SECTION 3.2. Representations and Warranties of Case Credit.......6
ARTICLE IV Conditions.....................................................12
SECTION 4.1. Conditions to Obligation of CNHCR..................12
SECTION 4.2. Conditions to Obligation of Case Credit............14
ARTICLE V Covenants of Case Credit........................................15
SECTION 5.1. Protection of Right, Title and Interest............15
SECTION 5.2. Other Liens or Interests...........................15
SECTION 5.3. Chief Executive Office.............................16
SECTION 5.4. Costs and Expenses.................................16
SECTION 5.5. Indemnification....................................16
SECTION 5.6. Transfer of Subsequent Case Receivables............16
ARTICLE VI Miscellaneous Provisions.......................................16
SECTION 6.1. Obligations of Case Credit.........................16
SECTION 6.2. Repurchase Event...................................16
SECTION 6.3. CNHCR Assignment of Repurchased Receivables........17
SECTION 6.4. Trust..............................................17
SECTION 6.5. Amendment..........................................17
SECTION 6.6. Accountants' Letters...............................18
SECTION 6.7. Waiver.............................................18
SECTION 6.8. Notices............................................18
SECTION 6.9. Costs and Expenses.................................18
SECTION 6.10. Representations of Case Credit and CNHCR...........18
SECTION 6.11. Confidential Information...........................18
SECTION 6.12. Headings and Cross-References......................19
SECTION 6.13. Governing Law......................................19
SECTION 6.14. Counterparts.......................................19
SECTION 6.15. Severability.......................................19
EXHIBITS
EXHIBIT A Form of Case Assignment
EXHIBIT B Form of Case Subsequent Transfer Assignment
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CASE PURCHASE AGREEMENT (as amended or supplemented from time to
time, this "Agreement") dated as of May 1, 2001 between CASE CREDIT
CORPORATION, a Delaware corporation ("Case Credit"), and CNH CAPITAL
RECEIVABLES Inc., a Delaware corporation ("CNHCR").
RECITALS
WHEREAS, in the regular course of its business, Case Credit
purchases, directly and indirectly, from equipment dealers and brokers, and
directly originates, Contracts; and
WHEREAS, in the regular course of its business, Case Credit
purchases from Case Corporation certain Contracts originated by Case
Corporation in the ordinary course of business; and
WHEREAS, Case Credit and CNHCR wish to set forth the terms
pursuant to which: (1) Contracts having an aggregate Contract Value of
approximately $140,238,443.16 (the "Case Purchased Contracts") as of
Initial Cutoff Date and Case Credit's right, title and interest in any True
Lease Equipment related to such Contracts are to be sold by Case Credit to
CNHCR on the date hereof and (2) certain Subsequent Case Receivables and
Case Credit's right, title and interest in any True Lease Equipment related
to such Subsequent Case Receivables are to be sold by Case Credit to CNHCR
from time to time on each Subsequent Transfer Date; and
WHEREAS, CNHCR, as of the Initial Cutoff Date, owned Contracts
previously purchased from Case Credit pursuant to an Amended and Restated
Receivables Purchase Agreement dated as of December 15, 2000 (as amended
from time to time, the "Case Liquidity Receivables Purchase Agreement")
between Case Credit and CNHCR, having an aggregate Contract Value of
approximately $250,769,757.41 (the "Case Owned Contracts", and together
with the Case Purchased Contracts, the "Initial Case Receivables"); and
WHEREAS, the Initial Case Receivables and the Subsequent Case
Receivables (collectively, the "Case Receivables"), the NH Receivables and
any True Lease Equipment related to such Case Receivables or NH Receivables
will be transferred by CNHCR, pursuant to the Sale and Servicing Agreement,
to CNH Equipment Trust 2001-A (the "Trust"), which Trust will issue 5.73%
Asset Backed Certificates representing fractional undivided interests in,
and 4.035% Class A-1 Asset Backed Notes, Floating Rate Class A-2 Asset
Backed Notes, Floating Rate Class A-3 Asset Backed Notes,5.38% Class A-4
Asset Backed Notes and 5.73% Class B Asset Backed Notes collateralized by,
the Receivables and the other property of the Trust; and
WHEREAS, Case Credit and CNHCR wish to set forth herein certain
representations, warranties, covenants and indemnities of Case Credit with
respect to the Case Receivables for the benefit of CNHCR, the Trust, the
Noteholders 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 2001-A and Bank One,
National Association.
SECTION 1.2. Other Definitional Provisions. (a)All terms defined in
this Agreement shall have the defined meanings when used in any certificate
or other document made or delivered pursuant hereto unless otherwise
defined therein.
(b) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles as in effect
on the date hereof. To the extent that the definitions of accounting terms
in this Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under generally accepted
accounting principles, the definitions contained in this Agreement or in
any such certificate or other document shall control.
(c) The words "hereof", "herein", "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section, Schedule and
Exhibit references contained in this Agreement are references to Sections,
Schedules and Exhibits in or to this Agreement unless otherwise specified;
and the term "including" shall mean "including, without limitation,".
(d) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
ARTICLE II
Conveyance of Case Receivables
SECTION 2.1. Conveyance of Case Purchased Contracts. In consideration
of CNHCR's payment of $140,238,443.16 (the "Initial Case Purchase Price")
in the manner set out in Section 2.5(a), Case Credit does hereby sell,
transfer, assign, set over and otherwise convey to CNHCR, without recourse
(subject to the obligations herein), all of its right, title, interest and,
with respect to any Contracts that are Leases, obligations in, to and under
(collectively, the "Initial Case Assets"):
(i) the Case Purchased Contracts, including all documents
constituting chattel paper included therewith, and all obligations of
the Obligors thereunder, including all moneys paid thereunder on or
after the Initial Cutoff Date;
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(ii) the security interests in the Financed Equipment granted by
Obligors pursuant to the Case Purchased Contracts and any other
interest of Case Credit in such Financed Equipment;
(iii) any proceeds with respect to the Case Purchased Contracts
from claims on insurance policies covering Financed Equipment or
Obligors;
(iv) any proceeds from recourse to Dealers with respect to the
Case Purchased Contracts other than any interest in the Dealers'
reserve accounts maintained with Case Credit;
(v) any Financed Equipment that shall have secured the Case
Purchased Contracts and that shall have been acquired by or on behalf
of CNHCR;
(vi) any True Lease Equipment that is subject to any Case
Purchased Contract; and
(vii) the proceeds of any and all of the foregoing.
SECTION 2.2. Conveyance of Subsequent Case Receivables. Subject to
the conditions set forth in Section 4.1(b), in consideration of CNHCR's
delivery on the related Subsequent Transfer Date to or upon the order of
Case Credit of the related Subsequent Case Purchase Price pursuant to
Section 2.5, Case Credit does hereby sell, transfer, assign, set over and
otherwise convey to CNHCR, without recourse (subject to the obligations
herein), all of its right, title, interest and, with respect to any
Contracts that are Leases, obligations in, to and under (collectively, the
"Subsequent Case Assets"; and together with the Initial Case Assets, the
"Case Assets"):
(i) the Subsequent Case Receivables listed on Schedule A to the
related Case Subsequent Transfer Assignment, including all
documents constituting chattel paper included therewith, and all
obligations of the Obligors thereunder, including all moneys paid
thereunder on or after the related Subsequent Cutoff Date;
(ii) the security interests in the Financed Equipment granted by
Obligors pursuant to such Subsequent Case Receivables and any
other interest of Case Credit in such Financed Equipment;
(iii) any proceeds with respect to such Subsequent Case Receivables
from claims on insurance policies covering Financed Equipment or
Obligors;
(iv) any proceeds with respect to such Subsequent Case Receivables
from recourse to Dealers other than any interest in the Dealers'
reserve accounts maintained with Case Credit;
(v) any Financed Equipment that shall have secured any such
Subsequent Case Receivable and that shall have been acquired by or on
behalf of CNHCR;
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(vi) any True Lease Equipment that is subject to any Subsequent
Case Receivable; and
(vii) the proceeds of any and all of the foregoing.
SECTION 2.3. Intention of the Parties. The parties to this Agreement
intend that the transactions contemplated hereby shall be, and shall be treated
as, a purchase by CNHCR and a sale by Case Credit of the Case Purchased
Contracts and the Subsequent Case Receivables and any True Lease Equipment
related to such Case Purchased Contracts or Subsequent Case Receivables, as
the case may be, and not as a lending transaction. The foregoing sale,
assignment, transfer and conveyance does not constitute, and is not
intended to result in a creation or assumption by CNHCR of, any obligation
or liability with respect to any Case Purchased Contract or any Subsequent
Case Receivable, nor shall CNHCR be obligated to perform or otherwise be
responsible for any obligation of Case Credit or any other Person in
connection with the Case Purchased Contracts or the Subsequent Case
Receivables or under any agreement or instrument relating thereto,
including any contract or any other obligation to any Obligor, except that
CNHCR accepts any Contracts that are Leases subject to (and assumes) the
covenants benefitting the Obligors under such Leases.
If (but only to the extent) that the transfer of the Case Assets
hereunder is characterized by a court or other governmental authority as a
loan rather than a sale, Case Credit shall be deemed hereunder to have
granted to CNHCR a security interest in all of Case Credit's right, title
and interest in and to the Case Assets. Such security interest shall secure
all of Case Credit's obligations (monetary or otherwise) under this
Agreement and the other Basic Documents to which it is a party, whether now
or hereafter existing or arising, due or to become due, direct or indirect,
absolute or contingent. CNHCR shall have, with respect to the property
described in Section 2.1 and Section 2.2, and in addition to all the other
rights and remedies available to CNHCR under this Agreement and applicable
law, all the rights and remedies of a secured party under any applicable
UCC, and this Agreement shall constitute a security agreement under
applicable law.
SECTION 2.4. The Closing. The sale and purchase of the Case Purchased
Contracts shall take place at a closing at the offices of Mayer, Brown &
Platt, 190 South LaSalle Street, Chicago, Illinois 60603 on the Closing
Date, simultaneously with the closings under: (a) the NH Purchase
Agreement, (b) the Sale and Servicing Agreement, (c) the Trust Agreement,
(d) the Administration Agreement and (e) the Indenture.
SECTION 2.5. Payment of the Purchase Price.
(a) Case Purchased Contracts. The Initial Case Purchase Price is
payable as follows: (i) $118,381,127.94 in cash on the Closing Date, (ii)
$21,857,315.22 in cash, which comprises a portion of the subordinated note
dated May 22, 2001, payable by CNHCR to Case Credit in an amount of
$20,250,000.00 and (iii) the remainder, if any, shall be deemed to have
been paid by CNHCR to Case Credit and returned by Case Credit to CNHCR as a
contribution to capital.
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(b) Subsequent Case Receivables. As consideration for the conveyance of
Subsequent Case Receivables pursuant to Section 2.2, CNHCR shall pay or
cause to be paid to Case Credit on each Subsequent Transfer Date an amount
(a "Subsequent Case Purchase Price") equal to the aggregate Contract Value
of the Subsequent Case Receivables as of the related Subsequent Cutoff
Date, plus any premium or minus any discount agreed upon by Case Credit and
CNHCR. Any Subsequent Case Purchase Price shall be payable as follows: (i)
cash in the amount released to CNHCR in respect of the Subsequent Case
Receivables from the Pre-Funding Account pursuant to Section 5.7(a) of the
Sale and Servicing Agreement shall be paid to Case Credit on the related
Subsequent Transfer Date; and (ii) the balance shall be paid in cash as and
when amounts are released to, or otherwise realized by, CNHCR from the
Spread Account, the Negative Carry Account, and the Principal Supplement
Account in accordance with the Sale and Servicing Agreement, or otherwise
are available for such purpose.
ARTICLE III
Representations and Warranties
SECTION 3.1. Representations and Warranties of CNHCR. CNHCR hereby
represents and warrants to Case Credit as of the date hereof and as of the
Closing Date:
(a) Organization and Good Standing. CNHCR has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Delaware, with the power and authority to own its properties and
to conduct its business as such properties are currently owned and such
business is presently conducted, and had at all relevant times, and has,
the power and authority to acquire, own and sell the Case Receivables.
(b) Due Qualification. CNHCR is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease of property
or the conduct of its business shall require such qualifications.
(c) Power and Authority. CNHCR has the power and authority to execute
and deliver this Agreement and to carry out its terms; and the execution,
delivery and performance of this Agreement have been duly authorized by
CNHCR by all necessary corporate action.
(d) Binding Obligation. This Agreement constitutes a legal, valid
and binding obligation of CNHCR enforceable against CNHCR in accordance with
its terms.
(e) No Violation. The consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time) a default under, the certificate
of incorporation or by-laws of CNHCR, or any indenture, agreement or other
instrument to which CNHCR is a party or by which it is bound; or result in
the creation or imposition of any Lien upon any of its properties pursuant
to the terms of any such indenture, agreement or other instrument (other
than the Sale and Servicing Agreement and the Indenture); or violate any
law or, to the best of CNHCR's knowledge, any order, rule or regulation
applicable to CNHCR of any court or of any Federal or State regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over CNHCR or its properties.
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(f) No Proceedings. There are no proceedings or investigations pending
or, to CNHCR's best knowledge, threatened, before any court, regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over CNHCR or its properties: (i) asserting the invalidity of
this Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or (iii) seeking any
determination or ruling that could reasonably be expected to materially and
adversely affect the performance by CNHCR of its obligations under, or the
validity or enforceability of, this Agreement.
SECTION 3.2. Representations and Warranties of Case Credit. (a) Case
Credit hereby represents and warrants to CNHCR as of the date hereof and as of
the Closing Date:
(i) Organization and Good Standing. Case Credit has been duly
organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with the power
and authority to own its properties and to conduct its business as
such properties are currently owned and such business is presently
conducted, and had at all relevant times, and has, the power and
authority to acquire, own and sell the Case Receivables.
(ii) Due Qualification. Case Credit is duly qualified to do
business as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals, in all jurisdictions in which
the ownership or lease of property or the conduct of its business
shall require such qualifications.
(iii) Power and Authority. Case Credit has the power and authority
to execute and deliver this Agreement and to carry out its terms;
Case Credit has full power and authority to sell and assign the
property to be sold and assigned to CNHCR hereby and has duly
authorized such sale and assignment to CNHCR by all necessary
corporate action; and the execution, delivery and performance of
this Agreement have been, and the execution, delivery and
performance of each Case Subsequent Transfer Assignment have been
or will be on or before the related Subsequent Transfer Date, duly
authorized by Case Credit by all necessary corporate action.
(iv) Binding Obligation. This Agreement constitutes, and each
Case Subsequent Transfer Assignment when executed and delivered by Case
Credit will constitute, a legal, valid and binding obligation of
Case Credit enforceable against Case Credit in accordance with
their terms.
(v) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms
hereof do not conflict with, result in any breach of any of the
terms and provisions of, or constitute (with or without notice or
lapse of time) a default under, the certificate of incorporation
or by-laws of Case Credit, or any indenture, agreement or other
instrument to which Case Credit is a party or by which it is
bound; or result in the creation or imposition of any Lien upon
any of its properties pursuant to the terms of any such
indenture, agreement or other instrument (other than this
Agreement); or violate any law or, to the best of Case Credit's
knowledge, any order, rule or regulation applicable to Case
Credit of any court or of any Federal or State regulatory body,
administrative agency or other governmental instrumentality
having jurisdiction over Case Credit or its properties.
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(vi) No Proceedings. There are no proceedings or investigations
pending, or to Case Credit's best knowledge, threatened, before
any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over Case Credit
or its properties: (A) asserting the invalidity of this Agreement,
(B) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement, or (C) seeking any determination
or ruling that could reasonably be expected to materially and
adversely affect the performance by Case Credit of its obligations
under, or the validity or enforceability of, this Agreement.
(b) Case Credit makes the following representations and warranties as
to the Receivables on which CNHCR relies in accepting the Initial Receivables
and the Subsequent Receivables and in transferring the Receivables to the
Trust. Such representations and warranties speak as of the execution and
delivery of this Agreement and as of the Closing Date, in the case of the
Initial Receivables, and as of the applicable Subsequent Transfer Date, in
the case of the Subsequent Receivables, but shall survive the sale,
transfer and assignment of the Receivables to CNHCR and the subsequent
assignment and transfer of such Receivables to the Trust pursuant to the
Sale and Servicing Agreement and pursuant to the Indenture:
(i) Characteristics of Case Receivables. Each Case
Receivable: (A) (1) (i) was originated in the United States of
America by a Dealer in connection with the retail sale or lease
of Financed Equipment in the ordinary course of such Dealer's
business, and (ii) was purchased by Case Credit from a Dealer and
validly assigned by such Dealer to Case Credit in accordance with
its terms, or (2) was originated in the United States of America
by Case Credit in connection with the financing or lease of
Financed Equipment in the ordinary course of Case Credit's
business and, in either case, was fully and properly executed by
the parties thereto, (B) has created a valid, subsisting and
enforceable first priority security interest in the Financed
Equipment in favor of Case Credit that, as of the Closing Date,
has been assigned by Case Credit to CNHCR, by CNHCR to the Issuer
and by the Issuer to the Indenture Trustee, except that (x) no
security interest against the Obligor is created in True Lease
Equipment, and (y) Case Credit makes no representation or
warranty as to any such security interest granted by any Dealer
to secure the Dealer's obligations to make payments in respect of
Termination Values, (C) contains customary and enforceable
provisions such that the rights and remedies of the holder
thereof are adequate for realization against the collateral of
the benefits of the security, and (D) (i) in the case of Retail
Installment Contracts, provides for fixed payments on a periodic
basis that fully amortize the Amount Financed by maturity and
yield interest at the Annual Percentage Rate, and (ii) in the
case of any Contracts sold, or to be sold, hereunder that are
Leases, provides for fixed payments on a periodic basis that
fully amortize the Amount Financed by maturity and yield interest
at the Annual Percentage Rate, except that any Contracts sold, or
to be sold, hereunder that are Leases also provide for payments
of the related Termination Values.
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(ii) Schedule of Case Receivables. The information set forth
on Schedule A to the Case Assignment delivered on the Closing Date
is true and correct in all material respects as of
the opening of business on the Initial Cutoff Date and the
information set forth on Schedule A to the related Case
Subsequent Transfer Assignment will be true and correct on each
Subsequent Transfer Date related to such Case Subsequent Transfer
Assignment and no selection procedures believed by Case Credit to
be adverse to the interests of the Trust, the Noteholders or the
Certificateholders were or will be utilized in selecting the Case
Receivables. The computer tape regarding the Case Receivables
made available to CNHCR and its assigns is true and correct in
all respects.
(iii) Compliance with Law. Each Case Receivable and the sale
or lease of the related Financed Equipment complied in all
material respects at the time it was originated or made and at
the execution of this Agreement and each Case Subsequent Transfer
Assignment complies in all material respects with all
requirements of applicable Federal, State and local laws and
regulations thereunder, including usury law, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair
Credit Reporting Act, the Fair Debt Collection Practices Act, the
Federal Trade Commission Act, the 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.
(iv) Binding Obligation. Each Case Receivable represents the
genuine, legal, valid and binding payment obligation in writing
of the Obligor, enforceable by the holder thereof in accordance
with its terms.
(v) No Government Obligor. None of the Case Receivables is due
from the United States of America or any State or from any agency,
department or instrumentality of the United States of America or any
State.
(vi) Security Interest in Financed Equipment. Immediately
prior to the sale, assignment and transfer thereof, each Case
Receivable shall be secured by a validly perfected first priority
security interest in the Financed Equipment in favor of Case
Credit as secured party or all necessary and appropriate actions
have been commenced that would result in the valid perfection of
a first priority security interest in the Financed Equipment in
favor of Case Credit as secured party, except that (A) no
security interest against the Obligor is created in True Lease
Equipment and (B) Case Credit makes no representation or warranty
as to any security interest granted by any Dealer to secure the
Dealer's obligations to make payments in respect of Termination
Values.
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(vii) Case Receivables in Force. No Case Receivable has been
satisfied, subordinated or rescinded, nor has any Financed
Equipment been released from the Lien granted by the related Case
Receivable in whole or in part.
(viii) No Amendment or Waiver. No provision of a Case Receivable
has been waived, altered or modified in any respect, except pursuant
to a document, instrument or writing included in the Receivable Files
and no such amendment, waiver, alteration or modification causes
such Case Receivable not to conform to the other warranties
contained in this Section.
(ix) No Defenses. No right of rescission, setoff, counterclaim
or defense has been asserted or threatened or exists with respect to
any Case Receivable.
(x) No Liens. To the best of Case Credit's knowledge, no Liens or
claims, including claims for work, labor or materials, relating to
any of the Financed Equipment have been filed that are Liens prior
to, or equal or coordinate with, the security interest in the
Financed Equipment granted by any Case Receivable, except those
pursuant to the Basic Documents.
(xi) No Default. No Case Receivable is a non-performing Receivable
or has a payment that is more than 90 days overdue as of the Initial
Cutoff Date or Subsequent Cutoff Date, as applicable, and, except
for a payment default continuing for a period of not more than 90
days, no default, breach, violation or event permitting
acceleration under the terms of any Case Receivable has occurred
and is continuing; and no continuing condition that with notice or
the lapse of time would constitute such a default, breach,
violation or event permitting acceleration under the terms of any
Case Receivable has arisen; and Case Credit has not waived and
shall not waive any of the foregoing.
(xii) Title. It is the intention of Case Credit that the
transfers and assignments contemplated herein and in the Case
Liquidity Receivables Purchase Agreement constitute a sale of the
Case Receivables from Case Credit to CNHCR and that the beneficial
interest in and title to the Case Receivables and any True Lease
Equipment related to such Case Receivables not be part of the
debtor's estate in the event of the filing of a bankruptcy
petition by or against Case Credit under any bankruptcy or similar
law. No Case Receivable has been sold, transferred, assigned or
pledged by Case Credit to any Person other than CNHCR. Immediately
prior to the transfers and assignments contemplated herein and in
the Case Liquidity Receivables Purchase Agreement, Case Credit had
good title to each Case Receivable and any True Lease Equipment
related to such Case Receivable, free and clear of all Liens and,
immediately upon the transfer thereof, CNHCR shall have good title
to each Case Receivable and any True Lease Equipment, free and
clear of all Liens; and the transfer and assignment of the Case
Receivables to CNHCR has been perfected under the UCC.
(xiii) Lawful Assignment. No Case Receivable has been originated
in, or is subject to the laws of, any jurisdiction under which the
sale, transfer and assignment of such Case Receivable or any Case
Receivable under this Agreement, the Case Liquidity Receivables
Purchase Agreement, the Sale and Servicing Agreement or the
Indenture is unlawful, void or voidable.
(xiv) All Filings Made. All filings (including UCC filings)
necessary in any jurisdiction to give CNHCR a first priority perfected
ownership interest in the Case Receivables have been made.
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(xv) One Original. There is only one original executed copy of
each Case Receivable.
(xvi) Maturity of Receivables. Each Receivable has a remaining
term to maturity of not more than 72 months, in the case of the Initial
Receivables, and 72 months, in the case of the Subsequent
Receivables; the weighted average remaining term of the Initial
Receivables is approximately 48.21 months as of the Initial Cutoff
Date; the weighted average original term of the Receivables,
including as of each Subsequent Transfer Date all Subsequent
Receivables previously transferred to CNHCR, will not be greater
than 55.0 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 Case Receivable is required
to maintain physical damage insurance covering the Financed Equipment
and, in the case of any Lease, public liability insurance relating
to the use of such Financed Equipment, in each case in accordance
with Case Credit's normal requirements.
(xix) Concentrations. (A) No Receivable has a Statistical
Contract Value (when combined with the Statistical Contract Value of
any other Receivable with the same or an Affiliated Obligor) that
exceeds 1% of the Initial Aggregate Statistical Contract Value.
(xx) Financing. Approximately 48.40% of the aggregate
Statistical Contract Value of the Initial Receivables,
constituting 47.22% 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 67.54% of the
aggregate Statistical Contract Value of the Initial Receivables,
constituting 70.33% of the number of Initial Receivables as of the
Initial Cutoff Date, represent financing or leases of agricultural
equipment; the remainder of the Initial Receivables represent
financing or leases of construction equipment. The aggregate
Statistical Contract Value of the Receivables for the purposes of
the above calculations as of the Initial Cutoff Date is
$572,124,426.33. Additionally, not more than 50% of the aggregate
Contract Value of the Receivables, including, as of each
Subsequent Transfer Date, all Subsequent Receivables previously
transferred to CNHCR, will represent Contracts for the financing
or lease of construction equipment. No Subsequent Receivable will
represent the financing of truck equipment.
(xxi) No Bankruptcies. No Obligor on any Case Receivable as of the
Initial Cutoff Date or the Subsequent Cutoff Date, as applicable,
was noted in the related Receivable File as being the subject of a
bankruptcy proceeding.
10
(xxii) No Repossessions. None of the Financed Equipment
securing any Case Receivable is in repossession status.
(xxiii) Chattel Paper. Each Case Receivable constitutes
"chattel paper" as defined in the UCC of the State the law of
which governs the perfection of the interest granted in it.
(xxiv) U.S. Obligors. None of the Case Receivables is
denominated and payable in any currency other than United States
Dollars or is due from any Person that does not have a mailing
address in the United States of America.
(xxv) Payment Frequency. As of the Initial Cutoff Date and as
shown on the books of Case Credit: (A) Initial Receivables having
an aggregate Statistical Contract Value equal to 46.06% of the
Initial Aggregate Statistical Contract Value had annual scheduled
payments, (B) Initial Receivables having an aggregate Statistical
Contract Value equal to 3.61% of the Initial Aggregate Statistical
Contract Value had semi-annual scheduled payments, (C) Initial
Receivables having an aggregate Statistical Contract Value equal
to 0.71% of the Initial Aggregate Statistical Contract Value had
quarterly scheduled payments, (D) Initial Receivables having an
aggregate Statistical Contract Value equal to 44.41% of the
Initial Aggregate Statistical Contract Value had monthly scheduled
payments, and (E) Initial Receivables having an aggregate
Statistical Contract Value equal to 5.21% of the Initial Aggregate
Statistical Contract Value 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 60.08% of the Initial Pool Balance.
(xxvii) Interest Accruing. Each Case Receivable, other than those
Case Receivables consisting of Contracts that contain interest waivers
for a specified period of time, is, as of the Closing Date or
Subsequent Transfer Date, as applicable, accruing interest; no
Case Receivable contains an interest waiver extending more than 12
months after the Initial Cutoff Date.
(xxviii) Leases. Each Lease included in the Initial Case
Receivables or the Subsequent Case Receivables has a Termination Value
less than or equal to 10% of the purchase price of the equipment
subject to such Lease and is a "lease intended as security" (rather
than a true lease) within the meaning of Section 1-201(37) of the UCC.
(xxix) Case Credit's Representations. The representations and
warranties of Case Credit contained in Section 3.2(a) are true and
correct.
11
(xxx) Case Credit's Obligations. Case Credit has no
obligations under any Contract, other than the covenant of quiet
enjoyment benefiting the Obligors under any Contracts that are
Leases.
(xxxi) No Either/or Leases. No Lease included in the Initial Case
Receivables or the Subsequent Case Receivables is a Either/or
Lease, and no Financed Equipment transferred to CNHCR on the
Closing Date or any Subsequent Transfer Date, as the case may be,
constitutes True Lease Equipment.
(xxxii) No Leases Notwithstanding anything to the contrary in the
Basic Documents, none of the Initial Case Receivables or the Subsequent
Case Receivables shall be Leases.
ARTICLE IV
Conditions
SECTION 4.1. Conditions to Obligation of CNHCR.
(a) Case Purchased Contracts. The obligation of CNHCR to purchase the
Case Purchased Contracts is subject to the satisfaction of the following
conditions:
(i) Representations and Warranties True. The representations and
warranties of Case Credit hereunder shall be true and correct on
the Closing Date and Case Credit shall have performed all
obligations to be performed by it hereunder on or prior to the
Closing Date.
(ii) Computer Files Marked. Case Credit shall, at its own
expense, on or prior to the Closing Date, indicate in its computer
files that Case Receivables created in connection with the Case
Purchased Contracts have been sold to CNHCR pursuant to this Agreement
and deliver to CNHCR the Schedule of Case Receivables certified by the
Chairman, the President, a Vice President or the Treasurer of Case
Credit to be true, correct and complete.
(iii) Documents To Be Delivered by Case Credit on the Closing Date.
(A) The Case Assignment. On the Closing Date (but only if the
Contract Value of the Case Purchased Contracts is greater than
zero), Case Credit will execute and deliver the Case Assignment,
which shall be substantially in the form of Exhibit A.
12
(B) Evidence of UCC Filing. On or prior to the Closing Date
(but only if the Contract Value of the Case Purchased Contracts is
greater than zero), Case Credit shall execute and file, at its
own expense, a UCC financing statement in each jurisdiction in
which such action is required by applicable law to fully perfect
CNHCR's right, title and interest in the Case Purchased Contracts
and the other property sold hereunder, executed by Case Credit,
as seller or debtor, and naming CNHCR, as purchaser or secured
party, describing the Case Purchased Contracts and the other
property sold hereunder, meeting the requirements of the laws of
each such jurisdiction and in such manner as is necessary to
perfect the sale, transfer, assignment and conveyance of such
Case Purchased Contracts and such other property to CNHCR. It is
understood and agreed, however, that no filings will be made to
perfect any security interest of CNHCR in Case Credit's interests
in Financed Equipment. Case Credit shall deliver (or cause to be
delivered) a file-stamped copy, or other evidence satisfactory to
CNHCR of such filing, to CNHCR on or prior to the Closing Date.
(C) Other Documents. Case Credit will deliver such other
documents as CNHCR may reasonably request.
(iv) Other Transactions. The transactions contemplated by
the Sale and Servicing Agreement to be consummated on the Closing
Date shall be consummated on such date.
(b) Subsequent Case Receivables. The obligation of CNHCR to purchase
any Subsequent Case Receivables is subject to the satisfaction of the following
conditions on or prior to the related Subsequent Transfer Date:
(i) Case Credit shall have delivered to CNHCR a duly executed
written assignment in substantially the form of Exhibit B (the "Case
Subsequent Transfer Assignment"), which shall include supplements
to the Schedule of Case Receivables listing the Subsequent Case
Receivables;
(ii) Case Credit shall, to the extent required by Section 5.2 of
the Sale and Servicing Agreement, have delivered to CNHCR for deposit
in the Collection Account all collections in respect of the
Subsequent Case Receivables;
(iii) as of such Subsequent Transfer Date: (A) Case Credit was
not insolvent and will not become insolvent as a result of the
transfer of Subsequent Case Receivables on such Subsequent
Transfer Date, (B) Case Credit did not intend to incur or believe
that it would incur debts that would be beyond Case Credit's
ability to pay as such debts matured, (C) such transfer was not
made with actual intent to hinder, delay or defraud any Person and
(D) the assets of Case Credit did not constitute unreasonably
small capital to carry out its business as conducted;
13
(iv) the applicable Spread Account Initial Deposit and Principal
Supplement Account Deposit, if any, for such Subsequent Transfer
Date shall have been made;
(v) the Funding Period shall not have terminated;
(vi) each of the representations and warranties made by Case
Credit pursuant to Section 3.2(b) with respect to the Subsequent Case
Receivables or the Subsequent Receivables shall be true and
correct as of such Subsequent Transfer Date, and Case Credit shall
have performed all obligations to be performed by it hereunder on
or prior to such Subsequent Transfer Date;
(vii) Case Credit shall, at its own expense, on or prior to such
Subsequent Transfer Date, indicate in its computer files that the
Subsequent Case Receivables identified in the related Case
Subsequent Transfer Assignment have been sold to CNHCR pursuant to
this Agreement and the Case Subsequent Transfer Assignment;
(viii) Case Credit shall have taken any action required to give
CNHCR a first priority perfected ownership interest in the Subsequent
Case Receivables;
(ix) no selection procedures believed by Case Credit to be
adverse to the interests of CNHCR, the Trust, the Noteholders or the
Certificateholders shall have been utilized in selecting the
Subsequent Case Receivables;
(x) the addition of the Subsequent Case Receivables will not
result in a material adverse tax consequence to CNHCR, the Trust, the
Noteholders or the Certificateholders;
(xi) Case Credit shall have provided CNHCR a statement listing
the aggregate Contract Value of such Subsequent Case Receivables and
any other information reasonably requested by CNHCR with respect
to such Subsequent Case Receivables;
(xii) all the conditions to the transfer of the Subsequent Case
Receivables to the Issuer specified in the Sale and Servicing
Agreement shall have been satisfied; and
(xiii) Case Credit shall have delivered to CNHCR an Officers'
Certificate confirming the satisfaction of each condition precedent
specified in this clause (b) (substantially in the form attached hereto
as Annex A to the Case Subsequent Transfer Assignment).
SECTION 4.2. Conditions to Obligation of Case Credit. The obligation of
Case Credit to sell the Case Purchased Contracts and the Subsequent Case
Receivables to CNHCR is subject to the satisfaction of the following
conditions:
(a) Representations and Warranties True. The representations and
warranties of CNHCR hereunder shall be true and correct on the Closing Date or
the applicable Subsequent Transfer Date with the same effect as if then made,
and CNHCR shall have performed all obligations to be performed by it
hereunder on or prior to the Closing Date or such Subsequent Transfer Date.
(b) Receivables Purchase Price. On the Closing Date or the applicable
Subsequent Transfer Date, CNHCR shall have delivered to Case Credit the
portion of the Initial Case Purchase Price or the Subsequent Case Purchase
Price, as the case may be, payable on the Closing Date or such Subsequent
Transfer Date pursuant to Section 2.5.
14
ARTICLE V
Covenants of Case Credit
Case Credit agrees with CNHCR as follows; provided, however, that
to the extent that any provision of this Article conflicts with any
provision of the Sale and Servicing Agreement, the Sale and Servicing
Agreement shall govern:
SECTION 5.1. Protection of Right, Title and Interest. (a) Filings. Case
Credit shall cause all financing statements and continuation statements and
any other necessary documents covering the right, title and interest of
CNHCR in and to the Case Receivables and the other property included in the
Trust Estate to be promptly filed, and at all times to be kept recorded,
registered and filed, all in such manner and in such places as may be
required by law fully to preserve and protect the right, title and interest
of CNHCR hereunder to the Case Receivables and the other property sold
hereunder. It is understood and agreed, however, that no filings will be
made to perfect any security interest of CNHCR in Case Credit's interests
in Financed Equipment. Case Credit shall deliver (or cause to be delivered)
to CNHCR file-stamped copies of, or filing receipts for, any document
recorded, registered or filed as provided above as soon as available
following such recordation, registration or filing. CNHCR shall cooperate
fully with Case Credit in connection with the obligations set forth above
and will execute any and all documents reasonably required to fulfill the
intent of this paragraph.
(b) Name Change. Within 15 days after Case Credit makes any change in
its name, identity or corporate structure that would, could or might make any
financing statement or continuation statement filed in accordance with
paragraph (a) seriously misleading within the applicable provisions of the
UCC or any title statute, Case Credit shall give CNHCR notice of any such
change, and no later than five days after the effective date thereof, shall
file such financing statements or amendments as may be necessary to
continue the perfection of CNHCR's interest in the property included in the
Trust Estate.
SECTION 5.2. Other Liens or Interests. Except for the conveyances
hereunder and pursuant to the Case Liquidity Receivables Purchase Agreement,
the Sale and Servicing Agreement, the Indenture and the other Basic Documents,
Case Credit: (a) will not sell, pledge, assign or transfer to any Person, or
grant, create, incur, assume or suffer to exist any Lien on, any interest
in, to and under the Case Receivables, and (b) shall defend the right,
title and interest of CNHCR in, to and under the Case Receivables against
all claims of third parties claiming through or under Case Credit;
provided, however, that Case Credit's obligations under this Section shall
terminate upon the termination of the Trust pursuant to the Trust
Agreement.
SECTION 5.3. Chief Executive Office. During the term of the Case
Receivables, Case Credit will maintain its chief executive office in one of the
States.
SECTION 5.4. Costs and Expenses. Case Credit agrees to pay all
reasonable costs and disbursements in connection with the perfection, as
against all third parties, of CNHCR's right, title and interest in, to and
under the Case Receivables.
15
SECTION 5.5. Indemnification. Case Credit shall indemnify, defend and
hold harmless CNHCR for any liability as a result of the failure of a Case
Receivable to be originated in compliance with all requirements of law and
for any breach of any of its representations and warranties contained
herein. These indemnity obligations shall be in addition to any obligation
that Case Credit may otherwise have. Case Credit shall indemnify, defend
and hold harmless CNHCR, the Issuer, the Trustee and the Indenture Trustee
(and their respective officers, directors, employees and agents) from and
against any taxes that may at any time be asserted against such Person with
respect to the sale of the Case Receivables to CNHCR hereunder or the sale
of the Case Receivables to the Issuer by CNHCR or the issuance and original
sale of the Certificates and the Notes, including any sales, gross
receipts, general corporation, tangible personal property, privilege or
license taxes (but, in the case of CNHCR and the Issuer, not including any
taxes asserted with respect to ownership of the Case Receivables on Federal
or other income taxes arising out of the transactions contemplated by this
Agreement) and costs and expenses in defending against the same.
SECTION 5.6. Transfer of Subsequent Case Receivables. Case Credit
covenants to transfer to CNHCR, pursuant to Section 2.2, Subsequent Case
Receivables with an aggregate Contract Value approximately equal to
$334,913,958.08 minus the aggregate Contract Value of any Receivables sold to
CNHCR by NH Credit pursuant to Section 5.6 of the NH Purchase Agreement, subject
only to the availability of such Subsequent Case Receivables.
ARTICLE VI
Miscellaneous Provisions
SECTION 6.1. Obligations of Case Credit. The obligations of Case
Credit under this Agreement shall not be affected by reason of any invalidity,
illegality or irregularity of any Case Receivable.
SECTION 6.2. Repurchase Events. Case Credit hereby covenants and
agrees with CNHCR for the benefit of CNHCR, the Indenture Trustee, the
Noteholders, the Trustee and the Certificateholders that the occurrence of
a breach of any of Case Credit's representations and warranties contained
in Section 3.2(b), shall constitute events obligating Case Credit to
repurchase any Case Receivable and, with respect to a breach of any of Case
Credit's representations and warranties contained in Sections 3.2(b)(xvi),
(xvii), (xix), (xx), (xxv) and (xxvi), any NH Receivable materially and
adversely affected by any such breach ("Repurchase Events") at the Purchase
Amount from CNHCR or from the Trust. Except as set forth in Section 5.5,
the repurchase obligation of Case Credit shall constitute the sole remedy
of CNHCR, the Indenture Trustee, the Noteholders, the Trust, the Trustee or
the Certificateholders against Case Credit with respect to any Repurchase
Event.
SECTION 6.3. CNHCR Assignment of Repurchased Receivables. With respect
to all Receivables repurchased by Case Credit pursuant to this Agreement,
CNHCR shall sell, transfer, assign, set over and otherwise convey to Case
Credit, without recourse, representation or warranty, all of CNHCR's right,
title and interest in, to and under such Receivables, and all security and
documents relating thereto.
SECTION 6.4. Trust. Case Credit acknowledges and agrees that: (a)
CNHCR will, pursuant to the Sale and Servicing Agreement, sell the Case
Receivables to the Trust and assign its rights under this Agreement to the
Trust, (b) the Trust will, pursuant to the Indenture, assign such Case
Receivables and such rights to the Indenture Trustee and (c) the
representations, warranties and covenants contained in this Agreement and
the rights of CNHCR under this Agreement, including under Section 6.2, are
intended to benefit the Trust, the Certificateholders and the Noteholders.
Case Credit hereby consents to all such sales and assignments and agrees
that enforcement of a right or remedy hereunder by the Indenture Trustee
shall have the same force and effect as if the right or remedy had been
enforced or executed by CNHCR.
16
SECTION 6.5. Amendment. This Agreement may be amended from time to
time, with prior written notice to the Rating Agencies, by a written amendment
duly executed and delivered by Case Credit and CNHCR, without the consent
of the Noteholders or the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions in this Agreement or for the purpose
of adding any provisions to or changing in any manner or eliminating any of
the provisions of this Agreement or of modifying in any manner the rights
of the Noteholders or the Certificateholders; provided, however, that such
amendment will not in the Opinion of Counsel, materially and adversely
affect the interest of any Noteholder or Certificateholder.
This Agreement may also be amended from time to time by Case
Credit and CNHCR, with prior written notice to the Rating Agencies, with
the written consent of (x) Noteholders holding Notes evidencing at least a
majority of the Note Balance and (y) the Holders of Certificates evidencing
at least a majority of the Certificate Balance, for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of
the Noteholders or the Certificateholders; provided, however, that no such
amendment may: (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Case
Receivables or distributions that are required to be made for the benefit
of the Noteholders or the Certificateholders or (ii) reduce the aforesaid
percentage of the Notes and Certificates that are required to consent to
any such amendment, without the consent of the holders of all the
outstanding Notes and Certificates.
It shall not be necessary for the consent of Certificateholders or
Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof.
SECTION 6.6. Accountants' Letters. (a) A firm of independent certified
public accountants will review the characteristics of the Receivables
described in the Schedule of Receivables and will compare those
characteristics to the information with respect to the Receivables
contained in the Prospectus, (b) Case Credit will cooperate with CNHCR and
such accounting firm in making available all information and taking all
steps reasonably necessary to permit such accounting firm to complete the
review set forth in clause (a) and to deliver the letters required of them
under the Underwriting Agreement, (c) such accounting firm will deliver to
CNHCR a letter, dated the date of the Prospectus, in the form previously
agreed to by Case Credit, NH Credit and CNHCR, with respect to the
financial and statistical information contained in the Prospectus and with
respect to such other information as may be agreed in the form of the
letter.
SECTION 6.7. Waivers. No failure or delay on the part of CNHCR in
exercising any power, right or remedy under this Agreement, the Case
Assignment or any Case Subsequent Transfer Assignment shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude any other or further exercise thereof or the
exercise of any other power, right or remedy.
SECTION 6.8. Notices. All demands, notices and communications under
this Agreement shall be in writing, personally delivered or mailed by certified
mail, return receipt requested, and shall be deemed to have been duly given
upon receipt: (a) in the case of Case Credit, to Case Credit Corporation,
233 Lake Avenue, Racine, Wisconsin 53403, Attention: Treasurer (telephone
(262) 636-6011); (b) in the case of CNHCR, to CNH Capital Receivables Inc.,
100 South Saunders Road, Lake Forest, Illinois 60045, Attention: Treasurer
(telephone (847) 735-9200); (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.
17
SECTION 6.9. Costs and Expenses. Case Credit will pay all expenses
incident to the performance of its obligations under this Agreement and Case
Credit agrees to pay all reasonable out-of-pocket costs and expenses of CNHCR,
excluding fees and expenses of counsel, in connection with the perfection
as against third parties of CNHCR's right, title and interest in, to and
under the Case Receivables and the enforcement of any obligation of Case
Credit hereunder.
SECTION 6.10. Representations of Case Credit and CNHCR. The respective
agreements, representations, warranties and other statements by Case Credit
and CNHCR set forth in or made pursuant to this Agreement shall remain in
full force and effect and will survive the closing under Section 2.4.
SECTION 6.11. Confidential Information. CNHCR agrees that it will
neither use nor disclose to any Person the names and addresses of the Obligors,
except in connection with the enforcement of CNHCR's rights hereunder,
under the Case Receivables, under the Sale and Servicing Agreement or the
Indenture or any other Basic Document or as required by any of the
foregoing or by law.
SECTION 6.12. Headings and Cross-References. The various headings in
this Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement. References in
this Agreement to Section names or numbers are to such Sections of this
Agreement unless otherwise expressly indicated.
SECTION 6.13. Governing Law. This Agreement, the Case Assignment, and
each Case Subsequent Transfer Assignment shall be construed in accordance with
the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties
hereunder or thereunder shall be determined in accordance with such laws.
SECTION 6.14. Counterparts. This Agreement may be executed in two or
more counterparts and by different parties on separate counterparts, each of
which shall be an original, but all of which together shall constitute
but one and the same instrument.
SECTION 6.15. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
(signature pages follow)
18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers duly authorized as of the date
and year first above written.
CNH CAPITAL RECEIVABLES INC.
By: /s/ Brian J. O'Keane
--------------------------------------------------
Name: Brian J. O'Keane
Title: Assistant Treasurer
CASE CREDIT CORPORATION
By: /s/ Brian J. O'Keane
--------------------------------------------------
Name: Brian J. O'Keane
Title: Assistant Treasurer
S-1 Case Purchase Agreement
EXHIBIT A
to Case Purchase Agreement
FORM OF
CASE ASSIGNMENT
For value received, in accordance with and subject to the Case
Purchase Agreement dated as of May 1, 2001 (the "Case Purchase Agreement"),
between the undersigned and CNH Capital Receivables Inc. ("CNHCR"), the
undersigned does hereby sell, assign, transfer, set over and otherwise
convey unto CNHCR, without recourse, all of its right, title, interest and,
with respect to any Contracts that are Leases, obligations in, to and
under: (a) the Case Purchased Contracts, which are listed on Schedule A
hereto, including all documents constituting chattel paper included
therewith, and all obligations of the Obligors thereunder, including all
moneys paid thereunder on or after the Initial Cutoff Date, (b) the
security interests in the Financed Equipment granted by Obligors pursuant
to the Case Purchased Contracts and any other interest of the undersigned
in such Financed Equipment, (c) any proceeds with respect to the Case
Purchased Contracts from claims on insurance policies covering Financed
Equipment or Obligors, (d) any proceeds from recourse to Dealers with
respect to the Case Purchased Contracts other than any interest in the
Dealers' reserve accounts maintained with Case Credit Corporation, (e) any
Financed Equipment that shall have secured the Case Purchased Contracts and
that shall have been acquired by or on behalf of CNHCR, (f) any True Lease
Equipment that is subject to any Case Purchased Contract, and (g) the
proceeds of any and all of the foregoing. The foregoing sale does not
constitute and is not intended to result in any assumption by CNHCR of any
obligation (other than the covenant of quiet enjoyment benefitting the
Obligors under any Contracts that are Leases) of the undersigned to the
Obligors, insurers or any other person in connection with the Case
Purchased Contracts, Receivables Files, any insurance policies or any
agreement or instrument relating to any of them.
This Case Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Case Purchase Agreement and is to be governed in all
respects by the Case Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have
the meanings assigned to them in the Case Purchase Agreement.
A-1
IN WITNESS WHEREOF, the undersigned has caused this Case
Assignment to be duly executed as of May ___, 2001.
CASE CREDIT CORPORATION
By: ________________________________________________
Name:
Title:
A-2
EXHIBIT B
to Case Purchase Agreement
FORM OF
CASE SUBSEQUENT TRANSFER ASSIGNMENT
For value received, in accordance with and subject to the Case
Purchase Agreement dated as of May 1, 2001 (the "Case Purchase Agreement"),
between Case Credit Corporation, a Delaware corporation ("Case Credit"),
and CNH Capital Receivables Inc., a Delaware corporation ("CNHCR"), Case
Credit does hereby sell, transfer, assign, set over and otherwise convey to
CNHCR, without recourse, all of its right, title, interest and, with
respect to any Contracts that are Leases, obligations in, to and under: (a)
the Subsequent Case Receivables, with an aggregate Contract Value equal to
$_______________, listed on Schedule A hereto, including all documents
constituting chattel paper included therewith, and all obligations of the
Obligors thereunder, including all moneys paid thereunder on or after the
Subsequent Cutoff Date, (b) the security interests in the Financed
Equipment granted by Obligors pursuant to such Subsequent Case Receivables
and any other interest of Case Credit in such Financed Equipment, (c) any
proceeds with respect to such Subsequent Case Receivables from claims on
insurance policies covering Financed Equipment or Obligors, (d) any
proceeds from recourse to Dealers with respect to such Subsequent Case
Receivables other than any interest in the Dealers' reserve accounts
maintained with Case Credit, (e) any Financed Equipment that shall have
secured any such Subsequent Case Receivables and that shall have been
acquired by or on behalf of CNHCR, (f) any True Lease Equipment that is
subject to any Subsequent Case Receivable, and (g) the proceeds of any and
all of the foregoing. The foregoing sale does not constitute and is not
intended to result in any assumption by CNHCR of any obligation (other than
the covenant of quiet enjoyment benefitting the Obligors under any
Contracts that are Leases) of Case Credit to the Obligors, insurers or any
other person in connection with such Subsequent Case Receivables,
Receivable Files, any insurance policies or any agreement or instrument
relating to any of them.
This Case Subsequent Transfer Assignment is made pursuant to and
upon the representations, warranties and agreements on the part of Case
Credit contained in the Case Purchase Agreement (including the Officers'
Certificate of Case Credit accompanying this Agreement) and is to be
governed in all respects by the Case Purchase Agreement.
Capitalized terms used but not otherwise defined herein shall have
the meanings assigned to them in the Case Purchase Agreement.
B-1
IN WITNESS WHEREOF, the undersigned has caused this Case
Subsequent Transfer Assignment to be duly executed as of the __ day of
__________, _____.
CASE CREDIT CORPORATION
By: ________________________________________________
Name:
Title:
B-2
SCHEDULE A
to Case Subsequent Transfer Assignment
SCHEDULE OF SUBSEQUENT CASE RECEIVABLES
[See attached list]
ANNEX A
to Case Subsequent Transfer Assignment
OFFICERS' CERTIFICATE
We, the undersigned officers of Case Credit Corporation (the
"Company"), do hereby certify, pursuant to Section 4.1(b)(xiii) of the Case
Purchase Agreement dated as of May 1, 2001, among the Company, and CNH
Capital Receivables Inc. (the "Case Purchase Agreement"), that (i) all of
the conditions precedent to the transfer to CNHCR of the Subsequent Case
Receivables listed on Schedule A to the Case Subsequent Transfer Assignment
delivered herewith, and the other property and rights related to such
Subsequent Case Receivables as described in Section 2.2 of the Case
Purchase Agreement, have been satisfied on or prior to the related
Subsequent Transfer Date and (ii) each statement of fact set forth in any
officers' certificate executed by an officer of the Company in connection
with an Opinion of Counsel delivered on the Closing Date with respect to a
transfer of, or a security interest in, the Case Receivables shall be true
and correct as of the date hereof with respect to the Subsequent Case
Receivables listed on the aforementioned Schedule A.
Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Case Purchase Agreement.
IN WITNESS WHEREOF, the undersigned have caused this certificate
to be duly executed this ___ day of __________, _______.
By: _______________________________________________
Name:__________________________________________
Title:_________________________________________
By: _______________________________________________
Name:__________________________________________
Title:_________________________________________