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CNH EQUIPMENT TRUST 2002-B
SALE AND SERVICING AGREEMENT
among
CNH Equipment Trust 2002-B,
as Issuer,
and
CNH Capital Receivables Inc.,
as Seller,
and
Case Credit Corporation,
as Servicer.
Dated as of November 1, 2002
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS...................................................1
SECTION 1.1. Definitions..........................................1
SECTION 1.2. Other Definitional Provisions........................1
ARTICLE II CONVEYANCE OF RECEIVABLES.....................................2
SECTION 2.1. Conveyance of Initial Receivables....................2
SECTION 2.2. Conveyance of Subsequent Receivables.................3
ARTICLE III THE RECEIVABLES...............................................6
SECTION 3.1. Representations and Warranties of Seller.............6
SECTION 3.2. Repurchase upon Breach...............................7
SECTION 3.3. Custody of Receivable Files..........................8
SECTION 3.4. Duties of Servicer as Custodian......................8
SECTION 3.5. Instructions; Authority To Act.......................9
SECTION 3.6. Custodian's Indemnification..........................9
SECTION 3.7. Effective Period and Termination.....................9
ARTICLE IV ADMINISTRATION AND SERVICING OF RECEIVABLES..................10
SECTION 4.1. Duties of Servicer..................................10
SECTION 4.2. Collection and Allocation of Receivable Payments....10
SECTION 4.3. Realization upon Receivables........................11
SECTION 4.4. Maintenance of Security Interests in Financed
Equipment..........................................11
SECTION 4.5. Covenants of Servicer...............................11
SECTION 4.6. Purchase of Receivables upon Breach.................12
SECTION 4.7. Servicing Fee.......................................12
SECTION 4.8. Servicer's Certificate..............................12
SECTION 4.9. Annual Statement as to Compliance; Notice of
Default............................................12
SECTION 4.10. Annual Independent Certified Public Accountants'
Report.............................................13
SECTION 4.11. Access to Certain Documentation and Information
Regarding Receivables..............................13
SECTION 4.12. Servicer Expenses...................................14
SECTION 4.13. Appointment of Subservicer..........................14
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ARTICLE V DISTRIBUTIONS: SPREAD ACCOUNT; STATEMENTS TO
CERTIFICATIEHOLDERS AND NOTEHOLDERS..........................14
SECTION 5.1. Establishment of Trust Accounts.....................14
SECTION 5.2. Interest Rate Swap Agreements.......................17
SECTION 5.3. Collections.........................................17
SECTION 5.4. Application of Collections..........................17
SECTION 5.5. Additional Deposits.................................18
SECTION 5.6. Distributions.......................................18
SECTION 5.7. Spread Account......................................19
SECTION 5.8. Pre-Funding Account.................................20
SECTION 5.9. Negative Carry Account..............................21
SECTION 5.10. Principal Supplement Account........................21
SECTION 5.11. Statements to Certificateholders and Noteholders....22
SECTION 5.12. Net Deposits........................................24
ARTICLE VI THE SELLER...................................................24
SECTION 6.1. Representations of Seller...........................24
SECTION 6.2. Corporate Existence.................................25
SECTION 6.3. Liability of Seller; Indemnities....................26
SECTION 6.4. Merger or Consolidation of, or Assumption of the
Obligations of, Seller.............................27
SECTION 6.5. Limitation on Liability of Seller and Others........27
SECTION 6.6. Seller May Own Certificates or Notes................28
ARTICLE VII THE SERVICER.................................................28
SECTION 7.1. Representations of Servicer.........................28
SECTION 7.2. Indemnities of Servicer.............................29
SECTION 7.3. Merger or Consolidation of, or Assumption of the
Obligations of, Servicer...........................31
SECTION 7.4. Limitation on Liability of Servicer and Others......32
SECTION 7.5. Case Credit Not to Resign as Servicer...............32
SECTION 7.6. Servicer to Act as Administrator....................32
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ARTICLE VIII DEFAULT......................................................33
SECTION 8.1. Servicer Default...................................33
SECTION 8.2. Appointment of Successor Servicer..................34
SECTION 8.3. Notification to Noteholders and
Certificateholders................................35
SECTION 8.4. Waiver of Past Defaults............................35
ARTICLE IX TERMINATION..................................................35
SECTION 9.1. Optional Purchase of All Receivables...............35
ARTICLE X MISCELLANEOUS PROVISIONS.....................................37
SECTION 10.1. Amendment..........................................37
SECTION 10.2. Protection of Title to Trust.......................38
SECTION 10.3. Notices............................................40
SECTION 10.4. Assignment.........................................41
SECTION 10.5. Limitations on Rights of Others....................41
SECTION 10.6. Severability.......................................41
SECTION 10.7. Separate Counterparts..............................41
SECTION 10.8. Headings...........................................41
SECTION 10.9. Governing Law......................................41
SECTION 10.10. Assignment to Indenture Trustee....................41
SECTION 10.11. Nonpetition Covenants..............................42
SECTION 10.12. Limitation of Liability of Trustee and Indenture
Trustee...........................................42
SECTION 10.13. Conditions Precedent to Other Financing
Transactions......................................42
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EXHIBITS
EXHIBIT A......... Form of Noteholder's Statement Pursuant to Section
5.10(a)
EXHIBIT B......... Form of Certificateholder's Statement Pursuant to
Section 5.10(a)
EXHIBIT C......... Form of Servicer's Certificate
EXHIBIT D......... Form of Assignment
EXHIBIT E......... Form of Subsequent Transfer Assignment
EXHIBIT F......... Form of Accountants' Letter in Connection with Subsequent
......... Transfer Assignment
EXHIBIT G......... Form of Initial Interest Rate Swap Agreement
SCHEDULES
SCHEDULE P........Perfection Representations & Warranties
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SALE AND SERVICING AGREEMENT (as amended or otherwise modified, this
"Agreement") dated as of November 1, 2002 among CNH EQUIPMENT TRUST 2002-B, a
Delaware statutory trust (the "Issuer"), CNH CAPITAL RECEIVABLES INC., a
Delaware corporation (the "Seller"), and CASE CREDIT CORPORATION, a Delaware
corporation (the "Servicer").
RECITALS
WHEREAS, the Issuer desires to purchase a portfolio of Contracts
purchased or originated by Case Credit Corporation ("Case Credit") or New
Holland Credit Company, LLC ("NH Credit"), in the ordinary course of business
and sold to the Seller on a monthly basis pursuant to the Liquidity
Receivables Purchase Agreements and/or the Purchase Agreements;
WHEREAS, the Seller is willing to sell such Contracts to the Issuer; and
WHEREAS, Case Credit is willing to service such Contracts.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.1. Definitions. Capitalized terms used herein and not otherwise
defined herein are defined in Appendix A to the Indenture, dated as of the
date hereof, between CNH Equipment Trust 2002-B and JPMorgan Chase 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.
ARTICLE II
Conveyance of Receivables
SECTION 2.1. Conveyance of Initial Receivables. In consideration of the
Issuer's delivery to or upon the order of the Seller on the Closing Date of
the net proceeds from the sale of the Notes and the Certificates and the other
amounts to be distributed from time to time to the Seller in accordance with
this Agreement, the Seller does hereby sell, transfer, assign, set over and
otherwise convey to the Issuer, without recourse (subject to the obligations
herein), all of its right, title and interest in, to and under the following
(collectively, the "Initial Assets"):
(a) the Initial Receivables, including all documents constituting
chattel paper included therewith, and all obligations of the Obligors
thereunder, including all moneys paid thereunder on or after the Initial
Cutoff Date;
(b) the security interests in the Financed Equipment granted by
Obligors pursuant to the Initial Receivables and any other interest of
the Seller in such Financed Equipment;
(c) any proceeds with respect to the Initial Receivables from claims
on insurance policies covering Financed Equipment or Obligors;
(d) the Liquidity Receivables Purchase Agreements (only with respect
to Case Owned Contracts or NH Owned Contracts included in the Initial
Receivables) and the Purchase Agreements, including the right of the
Seller to cause Case Credit or NH Credit, as the case may be, to
repurchase Initial Receivables from the Seller under the circumstances
described therein;
(e) any proceeds from recourse to Dealers with respect to the
Initial Receivables other than any interest in the Dealers' reserve
accounts maintained with Case Credit or with NH Credit;
(f) any Financed Equipment that shall have secured an Initial
Receivable and that shall have been acquired by or on behalf of the
Trust;
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(g) all funds on deposit from time to time in the Trust Accounts,
including the Spread Account Initial Deposit, any Principal Supplement
Account Deposit, the Negative Carry Account Initial Deposit and the
Pre-Funded Amount, and in all investments and proceeds thereof (including
all income thereon); and
(h) any True Lease Equipment that is subject to any Initial
Receivable; and
(i) the proceeds of any and all of the foregoing.
The above assignment shall be evidenced by a duly executed written
assignment in substantially the form of Exhibit D (the "Assignment"). The
Purchase Price for the Initial Receivables shall equal $816,865,722.13.
SECTION 2.2. Conveyance of Subsequent Receivables. (a) Subject to the
conditions set forth in clause (b) below and the proviso set forth in clause
(c) below, in consideration of the Trustee's delivery on the related
Subsequent Transfer Date to or upon the order of the Seller of the amount
described in Section 5.7(a) to be delivered to the Seller, the Seller does
hereby sell, transfer, assign, set over and otherwise convey to the Issuer,
without recourse (subject to the obligations herein), all of its right, title
and interest in, to and under (collectively, the "Subsequent Assets"; and
together with the Initial Assets, the "CNHCR Assets"):
(i) the Subsequent Receivables listed on Schedule A to the related
Subsequent Transfer Assignment, including all documents constituting
chattel paper included therewith, and all obligations of the Obligors
thereunder, including all moneys paid thereunder on or after the related
Subsequent Cutoff Date;
(ii) the security interests in the Financed Equipment granted by
Obligors pursuant to such Subsequent Receivables and any other interest
of the Seller in such Financed Equipment;
(iii) any proceeds with respect to such Subsequent Receivables from
claims on insurance policies covering Financed Equipment or Obligors;
(iv) the Liquidity Receivables Purchase Agreements (only with
respect to Subsequent Receivables purchased by the Seller pursuant to
those Agreements) and the Purchase Agreements, including the right of the
Seller to cause Case Credit or NH Credit, as the case may be, to
repurchase Subsequent Receivables from the Seller under the circumstances
described therein;
(v) any proceeds with respect to such Subsequent Receivables from
recourse to Dealers other than any interest in the Dealers' reserve
accounts maintained with Case Credit or with NH Credit;
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(vi) any Financed Equipment that shall have secured any such
Subsequent Receivable and that shall have been acquired by or on behalf
of the Trust;
(vii) any True Lease Equipment that is subject to any Subsequent
Receivable; and
(viii) the proceeds of any and all of the foregoing.
(b) Subject to the proviso set forth in clause (c) below, the Seller
shall transfer to the Issuer the Subsequent Receivables and the other property
and rights related thereto described in clause (a) only upon the satisfaction
of each of the following conditions precedent on or prior to the related
Subsequent Transfer Date:
(i) the Seller shall have delivered to the Trustee and the Indenture
Trustee a duly executed written assignment in substantially the form of
Exhibit E (the "Subsequent Transfer Assignment"), which shall include a
Schedule A to the Subsequent Transfer Assignment listing the Subsequent
Receivables;
(ii) the Seller shall, to the extent required by Section 5.2, have
deposited in the Collection Account all collections in respect of the
Subsequent Receivables;
(iii) as of such Subsequent Transfer Date: (A) the Seller was not
insolvent and will not become insolvent as a result of the transfer of
Subsequent Receivables on such Subsequent Transfer Date, (B) the Seller
did not intend to incur or believe that it would incur debts that would
be beyond the Seller's ability to pay as such debts matured, (C) such
transfer was not made with actual intent to hinder, delay or defraud any
Person and (D) the assets of the Seller did not constitute unreasonably
small capital to carry out its business as conducted;
(iv) the applicable Spread Account Initial Deposit for such
Subsequent Transfer Date shall have been made;
(v) the applicable Principal Supplement Account Deposit, if any, for
such Subsequent Transfer Date shall have been made;
(vi) the Receivables in the Trust, including the Subsequent
Receivables to be conveyed to the Trust on such Subsequent Transfer Date,
shall meet the following criteria: (A) each of the Receivables is a
Retail Installment Contract, (B) the weighted average original term of
the Receivables in the Trust will not be greater than 55 months, and (C)
not more than 35% of the aggregate Contract Value of the Receivables in
the Trust will represent Contracts for the financing of construction
equipment, (D) each Receivable has a remaining term to maturity of not
more than 72 months, (E) each Receivable has a Statistical Contract Value
as of the applicable Cutoff Date that (when combined with the Statistical
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Contract Value of any other Receivables with the same or an affiliated
Obligor) does not exceed 1% of the aggregate Statistical Contract Value
of all the Receivables and (F) none of the Receivables in the Trust will
represent Contracts originated through Case Credit's Soris financing
program;
(vii) the Funding Period shall not have terminated;
(viii) each of the representations and warranties made by the Seller
pursuant to Section 3.1 of this Agreement and by Case Credit and NH
Credit pursuant to Section 3.2(b) of the related Purchase Agreement, in
each case with respect to the Subsequent Receivables, shall be true and
correct as of such Subsequent Transfer Date, and the Seller shall have
performed all obligations to be performed by it hereunder on or prior to
such Subsequent Transfer Date;
(ix) the Seller shall, at its own expense, on or prior to such
Subsequent Transfer Date, indicate in its computer files that the
Subsequent Receivables identified in the related Subsequent Transfer
Assignment have been sold to the Issuer pursuant to this Agreement and
the Subsequent Transfer Assignment;
(x) the Seller shall have taken any action required to maintain the
first priority perfected ownership interest of the Issuer in the Trust
Estate and the first perfected security interest of the Indenture Trustee
in the Collateral;
(xi) no selection procedures believed by the Seller to be adverse to
the interests of the Trust, the Noteholders or the Certificateholders
shall have been utilized in selecting the Subsequent Receivables;
(xii) the addition of the Subsequent Receivables will not result in
a material adverse tax consequence to the Trust, the Noteholders or the
Certificateholders;
(xiii) the Seller shall have provided the Indenture Trustee, the
Trustee and the Rating Agencies a statement listing the aggregate
Contract Value of such Subsequent Receivables and any other information
reasonably requested by any of the foregoing with respect to such
Subsequent Receivables;
(xiv) [intentionally omitted]
(xv) the Seller shall have delivered to the Trustee and the
Indenture Trustee a letter of a firm of independent certified public
accountants confirming the satisfaction of the conditions set forth in
clause (vi) with respect to the Subsequent Receivables, and covering
substantially the same matters with respect to the Subsequent Receivables
as are set forth in Exhibit F hereto;
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(xvi) the Seller shall have delivered to the Indenture Trustee and
the Trustee an Officers' Certificate confirming the satisfaction of each
condition specified in this clause (b) (substantially in the form
attached hereto as Annex A to the Subsequent Transfer Assignment); and
(xvii) Moody's shall have received written notification from the
Seller of the addition of all such Subsequent Receivables.
(c) The Seller covenants to transfer to the Issuer pursuant to clause (a)
Subsequent Receivables with an aggregate Contract Value approximately equal to
$283,134,277.87 subject only to availability thereof.
ARTICLE III
The Receivables
SECTION 3.1. Representations and Warranties of Seller. The Seller makes
the following representations and warranties as to the Receivables on which
the Issuer is deemed to have relied in acquiring the Receivables. Such
representations and warranties speak as of the execution and delivery of this
Agreement and as of the Closing Date, in the case of the Initial Receivables,
and as of the applicable Subsequent Transfer Date, in the case of the
Subsequent Receivables, but shall survive the sale, transfer and assignment of
the Receivables to the Issuer and the pledge thereof to the Indenture Trustee
pursuant to the Indenture.
(a) Title. It is the intention of the Seller that the transfer and
assignment herein contemplated constitute a sale of the Receivables from the
Seller to the Issuer and that the beneficial interest in and title to the
Receivables not be part of the debtor's estate in the event of the filing of a
bankruptcy petition by or against the Seller under any bankruptcy or similar
law. No Receivable has been sold, transferred, assigned or pledged by the
Seller to any Person other than the Issuer. Immediately prior to the transfer
and assignment herein contemplated, the Seller had good title to each
Receivable, free and clear of all Liens and, immediately upon the transfer
thereof, the Issuer shall have good title to each Receivable, free and clear
of all Liens; and the transfer and assignment of the Receivables to the Issuer
has been perfected under the UCC.
If (but only to the extent) that the transfer of the CNHCR Assets
hereunder is characterized by a court or other governmental authority as a
loan rather than a sale, the Seller shall be deemed hereunder to have granted
to the Issuer a security interest in all of Seller's right, title and interest
in and to the CNHCR Assets. Such security interest shall secure all of
Seller's obligations (monetary or otherwise) under this Agreement and the
other Basic Documents to which it is a party, whether now or hereafter
existing or arising, due or to become due, direct or indirect, absolute or
contingent. The Seller shall have, with respect to the property described in
Section 2.1 and Section 2.2, and in addition to all the other rights and
remedies available to Seller under this Agreement and applicable law, all the
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rights and remedies of a secured party under any applicable UCC, and this
Agreement shall constitute a security agreement under applicable law.
(b) All Filings Made. All filings (including UCC filings) necessary in
any jurisdiction to give the Issuer a first priority perfected ownership
interest in the Receivables, and to give the Indenture Trustee a first
priority perfected security interest therein, have been made.
(c) Perfection Representation. The Seller further makes all the
representations, warranties and covenants set forth in Schedule P.
SECTION 3.2. Repurchase upon Breach. (a) The Seller, the Servicer or the
Trustee, as the case may be, shall inform the other parties to this Agreement
and the Indenture Trustee promptly, in writing, upon the discovery of any
breach of the Seller's representations and warranties made pursuant to Section
3.1 or Section 6.1, Case Credit's representations and warranties made pursuant
to Section 3.2(b) of the Case Liquidity Receivables Purchase Agreement or NH
Credit's representations and warranties made pursuant to Section 3.2(b) of the
NH Liquidity Receivables Purchase Agreement, Case Credit's representations and
warranties made pursuant to Section 3.2(b) of the Case Purchase Agreement or
NH Credit's representations and warranties made pursuant to Section 3.2(b) of
the NH Purchase Agreement. Unless any such breach shall have been cured by the
last day of the second (or, if the Seller elects, the first) Collection Period
after such breach is discovered by the Trustee or in which the Trustee
receives written notice from the Seller or the Servicer of such breach, the
Seller shall be obligated, and, if necessary, the Seller or the Trustee shall
enforce the obligation of Case Credit under the Case Liquidity Receivables
Purchase Agreement, of NH Credit under the NH Liquidity Receivables Purchase
Agreement, of Case Credit under the Case Purchase Agreement or of NH Credit
under the NH Purchase Agreement, as applicable, to repurchase any Receivable
materially and adversely affected by any such breach as of such last day. As
consideration for the repurchase of the Receivable, the Seller shall remit the
Purchase Amount in the manner specified in Section 5.4; provided, however,
that the obligation of the Seller to repurchase any Receivable arising solely
as a result of a breach of Case Credit's representations and warranties
pursuant to Section 3.2(b) of the Case Liquidity Receivables Purchase
Agreement, of NH Credit's representations and warranties pursuant to Section
3.2(b) of the NH Liquidity Receivables Purchase Agreement, of Case Credit's
representations and warranties pursuant to Section 3.2(b) of the Case Purchase
Agreement or NH Credit's representations and warranties pursuant to Section
3.2(b) of the NH Purchase Agreement is subject to the receipt by the Seller of
the Purchase Amount from Case Credit or NH Credit, as applicable. Subject to
the provisions of Section 6.3, the sole remedy of the Issuer, the Trustee, the
Indenture Trustee, the Noteholders or the Certificateholders with respect to a
breach of the representations and warranties pursuant to Section 3.1 and the
agreement contained in this Section shall be to require the Seller to
repurchase Receivables pursuant to this Section, subject to the conditions
contained herein, and to enforce Case Credit's or NH Credit's obligation to
the Seller to repurchase such Receivables pursuant to the Case Liquidity
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Receivables Purchase Agreement, NH Liquidity Receivables Purchase Agreement,
the Case Purchase Agreement or the NH Purchase Agreement, as applicable.
(b) With respect to all Receivables repurchased by the Seller pursuant to
this Agreement, the Issuer shall sell, transfer, assign, set over and
otherwise convey to the Seller, without recourse, representation or warranty,
all of the Issuer's right, title and interest in, to and under such
Receivables, and all security and documents relating thereto.
SECTION 3.3. Custody of Receivable Files. To assure uniform quality in
servicing the Receivables and to reduce administrative costs, the Issuer
hereby revocably appoints the Servicer, and the Servicer hereby accepts such
appointment, to act for the benefit of the Issuer and the Indenture Trustee as
custodian of the following documents or instruments, which are hereby
constructively delivered to the Indenture Trustee, as pledgee of the Issuer
(or, in the case of the Subsequent Receivables, will as of the applicable
Subsequent Transfer Date be constructively delivered to the Indenture Trustee,
as pledgee of the Issuer) with respect to each Receivable:
(a) the original fully executed copy of the Receivable;
(b) a record or facsimile of the original credit application fully
executed by the Obligor;
(c) the original certificate of title or file stamped copy of the
UCC financing statement or such other documents that the Servicer shall
keep on file, in accordance with its customary procedures, evidencing the
security interest of Case Credit or, in the case of a NH Receivable, NH
Credit in the Financed Equipment; and
(d) any and all other documents that the Servicer or the Seller or,
in the case of NH Receivables, NH Credit shall keep on file, in
accordance with its customary procedures, relating to a Receivable, an
Obligor or any of the Financed Equipment.
SECTION 3.4. Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer shall hold the Receivable Files for the
benefit of the Issuer and the Indenture Trustee and maintain such accurate and
complete accounts, records and computer systems pertaining to each Receivable
File as shall enable the Issuer to comply with this Agreement. In performing
its duties as custodian, the Servicer shall act with reasonable care, using
that degree of skill and attention that the Servicer exercises with respect to
the receivable files relating to all comparable equipment receivables that the
Servicer services for itself or others. The Servicer shall conduct, or cause
to be conducted, periodic audits of the Receivable Files and the related
accounts, records and computer systems, in such a manner as shall enable the
Issuer or the Indenture Trustee to verify the accuracy of the Servicer's
record keeping. The Servicer shall promptly report to the Issuer and the
Indenture Trustee any failure on its part to hold the Receivable Files and
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maintain its accounts, records and computer systems as herein provided and
promptly take appropriate action to remedy any such failure. Nothing herein
shall be deemed to require an initial review or any periodic review by the
Issuer, the Trustee or the Indenture Trustee of the Receivable Files.
(b) Maintenance of and Access to Records. The Servicer shall maintain
each Receivable File at one of its offices or, in the case of a NH Receivable,
at one of NH Credit's offices; provided that at no time shall a Receivable
File be moved to an office or location outside the geographic boundaries of
the United States. The Servicer shall make available for inspection by the
Seller, the Issuer and the Indenture Trustee or their respective duly
authorized representatives, attorneys or auditors a list of locations of the
Receivable Files and the related accounts, records and computer systems
maintained by the Servicer at such times during normal business hours as the
Seller, the Issuer or the Indenture Trustee shall instruct.
SECTION 3.5. Instructions; Authority To Act. The Servicer shall be deemed
to have received proper instructions with respect to the Receivable Files upon
its receipt of written instructions signed by a Trust Officer of the Indenture
Trustee.
SECTION 3.6. Custodian's Indemnification. The Servicer as custodian shall
indemnify the Trust, the Trustee and the Indenture Trustee (and each of their
officers, directors, employees and agents) for any and all liabilities,
obligations, losses, compensatory damages, payments, costs or expenses of any
kind whatsoever that may be imposed on, incurred by or asserted against the
Trust, the Trustee or the Indenture Trustee (or any of their officers,
directors and agents) as the result of any improper act or omission in any way
relating to the maintenance and custody by the Servicer as custodian of the
Receivable Files; provided, however, that the Servicer shall not be liable:
(a) to the Trustee for any portion of any such amount resulting from the
willful misfeasance, bad faith or negligence of the Trustee, and (b) to the
Indenture Trustee for any portion of any such amount resulting from the
willful misfeasance, bad faith or negligence of the Indenture Trustee; and,
provided further, that the Servicer shall only be liable pursuant to this
Section 3.6 for its acts or omissions committed during the period it is
serving as custodian hereunder. Indemnification under this Section shall
survive the resignation or removal of the Servicer as custodian, the
resignation or removal of the Indenture Trustee or the termination of this
Agreement.
SECTION 3.7. Effective Period and Termination. The Servicer's appointment
as custodian shall become effective as of the Initial Cutoff Date and shall
continue in full force and effect until terminated pursuant to this Section.
If any Servicer shall resign as Servicer in accordance with this Agreement or
if all of the rights and obligations of any Servicer shall have been
terminated under Section 8.1, the appointment of such Servicer as custodian
shall be terminated by: (a) the Indenture Trustee, (b) the Noteholders of
Notes evidencing not less than 25% of the Note Balance, (c) with the consent
of Noteholders of Notes evidencing not less than 25% of the Note Balance, the
Trustee or (d) Certificateholders evidencing not less than 25% of the
Certificate Balance, in the same manner as the Indenture Trustee or such
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Holders may terminate the rights and obligations of the Servicer under Section
8.1. The Indenture Trustee or, with the consent of the Indenture Trustee, the
Trustee may terminate the Servicer's appointment as custodian, with cause, at
any time upon written notification to the Servicer, and without cause upon 30
days' prior written notification to the Servicer. As soon as practicable after
any termination of such appointment, the Servicer shall deliver the Receivable
Files to the Indenture Trustee or the Indenture Trustee's agent at such
place(s) as the Indenture Trustee may reasonably designate.
ARTICLE IV
Administration and Servicing of Receivables
SECTION 4.1. Duties of Servicer. The Servicer, for the benefit of the
Issuer, and (to the extent provided herein) the Indenture Trustee shall
manage, service, administer and make collections on the Receivables with
reasonable care, using that degree of skill and attention that the Servicer
exercises with respect to all comparable equipment receivables that it
services for itself or others. The Servicer's duties shall include collection
and posting of all payments, responding to inquiries of Obligors on such
Receivables, investigating delinquencies, sending payment coupons to Obligors,
reporting tax information to Obligors, accounting for collections and
furnishing monthly and annual statements to the Trustee and the Indenture
Trustee with respect to distributions. Subject to Section 4.2, the Servicer
shall follow its customary standards, policies and procedures in performing
its duties as Servicer. Notwithstanding anything herein to the contrary, it is
understood and agreed that, subject to Section 4.2, in servicing the NH
Receivables the Servicer shall follow NH Credit's customary standards,
policies and procedures in performing its duties as Servicer with respect to
the NH Receivables.
Without limiting the generality of the foregoing, the Servicer is
authorized and empowered to execute and deliver, on behalf of itself, the
Issuer, the Trustee, the Indenture Trustee, the Certificateholders, the
Noteholders or any of them, any and all instruments of satisfaction or
cancellation, or partial or full release or discharge, and all other
comparable instruments, with respect to such Receivables or the Financed
Equipment securing such Receivables. If the Servicer shall commence a legal
proceeding to enforce a Receivable, the Issuer shall thereupon be deemed to
have automatically assigned, solely for the purpose of collection, such
Receivable to the Servicer. If in any enforcement suit or legal proceeding it
shall be held that the Servicer may not enforce a Receivable on the ground
that it shall not be a real party in interest or a holder entitled to enforce
such Receivable, the Trustee shall, at the Servicer's expense and direction,
take steps to enforce such Receivable, including bringing suit in its name or
the name of the Trust, the Indenture Trustee, the Certificateholders or the
Noteholders. The Trustee or the Indenture Trustee shall, upon the written
request of the Servicer, furnish the Servicer with any powers of attorney and
other documents reasonably necessary or appropriate to enable the Servicer to
carry out its servicing and administrative duties hereunder.
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SECTION 4.2. Collection and Allocation of Receivable Payments. The
Servicer shall make reasonable efforts to collect all payments called for
under the Receivables as and when the same shall become due and shall follow
such collection procedures as it (or, with respect to a NH Receivable, NH
Credit) follows with respect to all comparable equipment receivables that it
services for itself or others. The Servicer shall allocate collections between
principal and interest in accordance with the customary servicing procedures
it follows with respect to all comparable equipment receivables that it (or,
with respect to a NH Receivable, NH Credit) services for itself or others. The
Servicer may grant extensions or adjustments on a Receivable; provided,
however, that if the Servicer extends the date for final payment by the
Obligor of any Receivable beyond the Final Scheduled Maturity Date, it shall
promptly purchase the Receivable from the Issuer in accordance with Section
4.6. The Servicer may, in its discretion, waive any late payment charge or any
other fees (other than extension fees or any other fees that represent
interest charges on deferred Scheduled Payments) that may be collected in the
ordinary course of servicing a Receivable. The Servicer shall not agree to any
decrease of the interest rate on any Receivable or reduce the aggregate amount
of the Scheduled Payments due on any Receivable.
SECTION 4.3. Realization upon Receivables. For the benefit of the Issuer
and the Indenture Trustee, the Servicer shall use reasonable efforts,
consistent with its customary servicing procedures, to repossess or otherwise
convert the ownership of the Financed Equipment securing any Receivable as to
which the Servicer shall have determined eventual payment in full is unlikely.
The Servicer shall follow such customary and usual practices and procedures as
it shall deem necessary or advisable in its servicing of equipment
receivables, which may include reasonable efforts to realize upon any recourse
to Dealers and selling the Financed Equipment at public or private sale. The
foregoing shall be subject to the provision that, in any case in which the
Financed Equipment shall have suffered damage, the Servicer shall not expend
funds in connection with the repair or the repossession of such Financed
Equipment unless it shall determine in its discretion that such repair and/or
repossession will increase the Liquidation Proceeds by an amount greater than
the amount of such expenses.
SECTION 4.4. Maintenance of Security Interests in Financed Equipment. The
Servicer shall, in accordance with its customary servicing procedures, take
such steps as are necessary to maintain perfection of the security interest
created by each Receivable in the related Financed Equipment. The Servicer is
hereby authorized to take such steps as are necessary to re-perfect such
security interest for the benefit of the Issuer and the Indenture Trustee in
the event of the relocation of any Financed Equipment, any change to the UCC
or for any other reason.
SECTION 4.5. Covenants of Servicer. The Servicer shall not release the
Financed Equipment securing any Receivable from the security interest granted
by such Receivable in whole or in part except in the event of payment in full
by the Obligor thereunder or repossession, nor shall the Servicer impair the
rights of the Issuer, the Indenture Trustee, the Certificateholders or the
Noteholders in such Receivables. The Servicer shall, in accordance with its
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customary servicing procedures, require that each Obligor shall have obtained
physical damage insurance covering the Financed Equipment as of the execution
of the Receivable.
SECTION 4.6. Purchase of Receivables upon Breach. The Servicer or the
Trustee shall inform the other party, the Indenture Trustee, the Seller and
Case Credit promptly, in writing, upon the discovery of any breach pursuant to
Section 4.2, 4.4 or 4.5. Unless the breach shall have been cured by the last
day of the Collection Period in which such breach is discovered, the Servicer
shall purchase any Receivable materially and adversely affected by such breach
as of such last day. If the Servicer takes any action during any Collection
Period pursuant to Section 4.2 that impairs the rights of the Issuer, the
Indenture Trustee, the Certificateholders or the Noteholders in any Receivable
or as otherwise provided in Section 4.2, the Servicer shall purchase such
Receivable as of the last day of such Collection Period. As consideration for
the purchase of any such Receivable pursuant to either of the two preceding
sentences, the Servicer shall remit the Purchase Amount in the manner
specified in Section 5.4. Subject to Section 7.2, the sole remedy of the
Issuer, the Trustee, the Indenture Trustee, the Certificateholders or the
Noteholders with respect to a breach pursuant to Section 4.2, 4.4 or 4.5 shall
be to require the Servicer to purchase Receivables pursuant to this Section.
The Trustee shall have no duty to conduct any affirmative investigation as to
the occurrence of any condition requiring the purchase of any Receivable
pursuant to this Section.
SECTION 4.7. Servicing Fee. The Servicing Fee for each Collection Period
shall be equal to 1/12th of 1.00% of the Pool Balance as of the first day of
such Collection Period.
SECTION 4.8. Servicer's Certificate. On each Determination Date the
Servicer shall deliver to the Trustee, the Indenture Trustee and the Seller,
with a copy to the Rating Agencies, a Servicer's Certificate containing all
information necessary to make the distributions pursuant to Sections 5.5 and
5.6 and the deposits to the Collection Account pursuant to Section 5.2 for the
Collection Period preceding the date of such Servicer's Certificate.
Receivables to be repurchased by the Seller or purchased by the Servicer shall
be identified by the Servicer by account number with respect to such
Receivable (as specified in the schedule of Receivables delivered on the
Closing Date or attached to the applicable Subsequent Transfer Assignment).
SECTION 4.9. Annual Statement as to Compliance; Notice of Default. (a)
The Servicer shall deliver to the Trustee and the Indenture Trustee, on or
before April 30th of each year, an Officers' Certificate, dated as of December
31 of the preceding year, stating that: (i) a review of the activities of the
Servicer during the preceding 12-month period (or, in the case of the first
such certificate, from the Initial Cutoff Date to December 31, 2002) and of
its performance under this Agreement has been made under such officers'
supervision and (ii) to the best of such officers' knowledge, based on such
review, the Servicer has fulfilled all its obligations under this Agreement
throughout such year or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officers and the
nature and status thereof. The Indenture Trustee shall send a copy of such
Certificate and the report referred to in Section 4.10 to the Rating Agencies.
A copy of such Certificate and report may be obtained by any Certificateholder
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or Noteholder by a request in writing to the Trustee addressed to the
Corporate Trust Office. Upon the written request of the Trustee, the Indenture
Trustee will promptly furnish the Trustee a list of Noteholders as of the date
specified by the Trustee.
(b) The Servicer shall deliver to the Trustee, the Indenture Trustee and
the Rating Agencies, promptly after having obtained knowledge thereof, but in
no event later than five Business Days thereafter, written notice in an
Officers' Certificate of any event that, with the giving of notice or lapse of
time, or both, would become a Servicer Default under Section 8.1(a) or (b).
SECTION 4.10. Annual Independent Certified Public Accountants' Report.
The Servicer shall cause a firm of independent certified public accountants,
which may also render other services to the Servicer, the Seller or any other
Affiliate of CNH Global, to deliver to the Trustee and the Indenture Trustee
on or before April 30 of each year a report, addressed to the Board of
Directors of the Servicer, the Trustee and the Indenture Trustee, summarizing
the results of certain procedures with respect to certain documents and
records relating to the servicing of the Receivables during the preceding
calendar year (or, in the case of the first such report, during the period
from the Initial Cutoff Date to December 31, 2002). The procedures to be
performed and reported upon by the independent public accountants shall be
those agreed to by the Servicer.
In the event that such firm requires the Indenture Trustee to agree to
the procedures performed by such firm, the Servicer shall direct the Indenture
Trustee in writing to so agree; it being understood and agreed that the
Indenture Trustee will deliver such letter of agreement in conclusive reliance
upon the direction of the Servicer and the Indenture Trustee makes no
independent inquiry or investigation as to, and shall have no obligation or
liability in respect of, the sufficiency, validity or correctness of such
procedures.
Such report will also indicate that the firm is independent of the
Servicer within the meaning of the Code of Professional Ethics of the American
Institute of Certified Public Accountants.
SECTION 4.11. Access to Certain Documentation and Information Regarding
Receivables. The Servicer shall provide to the Trustee and the Indenture
Trustee access to the Receivable Files in such cases where the Trustee or the
Indenture Trustee shall be required by applicable statutes or regulations to
review such documentation. Access shall be afforded without charge, but only
upon reasonable request and during the normal business hours at the respective
offices of the Servicer (or, in the case of the NH Receivables, NH Credit).
Provided, however, at any time upon written request of the Indenture Trustee,
the Servicer will provide (within 10 days of receipt of such request) an
electronic data file containing all relevant loan level information on each
Receivable necessary for a replacement servicer to assume servicing
responsibilities, including current mailing address and telephone number,
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current balance, payment schedule and past due status of each obligor (such
request not to be made more frequently than one per month). Nothing in this
Section shall affect the obligation of the Servicer to observe any applicable
law prohibiting disclosure of information regarding the Obligors, and the
failure of the Servicer to provide access to information as a result of such
obligation shall not constitute a breach of this Section.
SECTION 4.12. Servicer Expenses. The Servicer shall be required to pay
all expenses incurred by it in connection with its activities hereunder,
including fees and disbursements of independent accountants, taxes imposed on
the Servicer and expenses incurred in connection with distributions and
reports to Certificateholders and the Noteholders.
SECTION 4.13. Appointment of Subservicer. The Servicer may at any time
appoint a subservicer to perform all or any portion of its obligations as
Servicer hereunder; provided, however, that the Rating Agency Condition shall
have been satisfied in connection therewith (other than with respect to the
appointment of NH Credit, as subservicer, with respect to the NH Receivables);
and provided further, that the Servicer shall remain obligated and be liable
to the Issuer, the Trustee, the Indenture Trustee, the Certificateholders and
the Noteholders for the servicing and administering of the Receivables in
accordance with the provisions hereof without diminution of such obligation
and liability by virtue of the appointment of such subservicer and to the same
extent and under the same terms and conditions as if the Servicer alone were
servicing and administering the Receivables. The fees and expenses of the
subservicer shall be as agreed between the Servicer and its subservicer from
time to time and none of the Issuer, the Trustee, the Indenture Trustee, the
Certificateholders or the Noteholders shall have any responsibility therefor.
ARTICLE V
Distributions: Spread Account;
Statements to Certificateholders and Noteholders
SECTION 5.1. Establishment of Trust Accounts. (a) (i) The Servicer, for
the benefit of the Noteholders and the Certificateholders, shall establish and
maintain in the name of the Indenture Trustee an Eligible Deposit Account (the
"Collection Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Noteholders and the
Certificateholders.
(ii) The Servicer, for the benefit of the Noteholders, shall
establish and maintain in the name of the Indenture Trustee an Eligible
Deposit Account (the "Note Distribution Account"), bearing a designation
clearly indicating that the funds deposited therein are held for the
benefit of the Noteholders.
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(iii) The Servicer, for the benefit of the Noteholders, shall
establish and maintain in the name of the Indenture Trustee an Eligible
Deposit Account (the "Spread Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of
the Noteholders.
(iv) The Servicer, for the benefit of the Noteholders and the
Certificateholders, shall establish and maintain in the name of the
Indenture Trustee an Eligible Deposit Account (the "Pre-Funding
Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Noteholders and the
Certificateholders; provided, however that the Servicer shall not be
required to establish such account so long as no amount greater than
$0.00 shall be required to be deposited into such account pursuant to
this Agreement or any other Basic Document.
(v) The Servicer, for the benefit of the Noteholders and the
Certificateholders, shall establish and maintain in the name of the
Indenture Trustee an Eligible Deposit Account (the "Negative Carry
Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Noteholders and the
Certificateholders; provided, however that the Servicer shall not be
required to establish such account so long as no amount greater than
$0.00 shall be required to be deposited into such account pursuant to
this Agreement or any other Basic Document.
(vi) The Servicer, for the benefit of the Noteholders and the
Certificateholders, shall establish and maintain in the name of the
Indenture Trustee an Eligible Deposit Account (the "Principal Supplement
Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Noteholders and the
Certificateholders; provided, however that the Servicer shall not be
required to establish such account so long as no amount greater than
$0.00 shall be required to be deposited into such account pursuant to
this Agreement or any other Basic Document.
(b) Funds on deposit in the Collection Account, the Note Distribution
Account, the Spread Account, the Pre-Funding Account, the Negative Carry
Account and the Principal Supplement Account, (collectively, the "Trust
Accounts") shall be invested or reinvested by the Indenture Trustee in
Eligible Investments selected by and as directed in writing by the Servicer
(which written direction may be in the form of standing instructions);
provided, however, it is understood and agreed that the Indenture Trustee
shall not be liable for the selection of, or any loss arising from such
investment in, Eligible Investments. All such Eligible Investments shall be
held or controlled by the Indenture Trustee for the benefit of the Noteholders
and the Certificateholders or the Noteholders, as applicable (and for the
purposes of Articles 8 and 9 of the UCC, each Eligible Investment is intended
to constitute a Financial Asset, and each of the Trust Accounts is intended to
constitute a Securities Account); provided, that on each Transfer Date, all
Investment Earnings on funds on deposit therein shall be deposited into the
Collection Account and shall be deemed to constitute a portion of the Total
Distribution Amount. Other than as permitted by the Rating Agencies, funds on
deposit in the Trust Accounts shall be invested in Eligible Investments that
15
will mature so that such funds will be available at the close of business on
the Transfer Date preceding the following Payment Date; provided, however,
that funds on deposit in Trust Accounts may be invested in Eligible
Investments of the entity serving as Indenture Trustee payable on demand or
that mature so that such funds will be available on the Payment Date. Funds
deposited in a Trust Account on the Transfer Date that precedes a Payment Date
upon the maturity or liquidation of any Eligible Investments are not required
to be invested overnight.
(c) (i) The Indenture Trustee shall possess or control all right, title
and interest in all funds on deposit from time to time in the Trust Accounts
and in all proceeds thereof (including all income thereon) and all such funds,
investments, proceeds and income shall be part of the Trust Estate. The Trust
Accounts shall be under the sole dominion and control of the Indenture Trustee
for the benefit of the Noteholders and the Certificateholders or the
Noteholders, as the case may be. If, at any time, any of the Trust Accounts
ceases to be an Eligible Deposit Account, the Indenture Trustee (or the
Servicer on its behalf) shall within 10 Business Days (or such longer period,
not to exceed 30 calendar days, as to which each Rating Agency may consent)
establish a new Trust Account as an Eligible Deposit Account and shall
transfer any cash and/or any investments held in the no-longer Eligible
Deposit Account to such new Trust Account.
(ii) With respect to the Trust Account Property, the Indenture
Trustee agrees, by its acceptance hereof, that:
(A) any Trust Account Property that is held in deposit accounts
shall be held solely in Eligible Deposit Accounts, subject to the
last sentence of Section 5.1(c)(i); and each such Eligible Deposit
Account shall be subject to the exclusive custody and control of the
Indenture Trustee, and the Indenture Trustee shall have sole
signature authority with respect thereto;
(B) any Trust Account Property that constitutes a Certificated
Security shall be delivered to the Indenture Trustee in accordance
with paragraph (i) of the definition of "Delivery" and shall be
held, pending maturity or disposition, solely by the Indenture
Trustee or its agent;
(C) any such Trust Account Property that constitutes an
Uncertificated Security (including any investments in money market
mutual funds, but excluding any Federal Book Entry Security) shall
be delivered to the Indenture Trustee in accordance with paragraph
(ii) of the definition of "Delivery" and shall be maintained,
pending maturity or disposition, through continued registration of
the Indenture Trustee's (or its custodian or nominee's) ownership of
such security; and
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(D) with respect to any Trust Account Property that constitutes
a Federal Book Entry Security, the Indenture Trustee shall maintain
and obtain Control over such property.
(iii) The Servicer shall have the power, revocable by the Indenture
Trustee or by the Trustee, with the consent of the Indenture Trustee, to
instruct the Indenture Trustee to make withdrawals and payments from the
Trust Accounts for the purpose of permitting the Servicer or the Trustee
to carry out its respective duties hereunder or permitting the Indenture
Trustee to carry out its duties under the Indenture.
(d) All Trust Accounts will initially be established at the Indenture
Trustee.
SECTION 5.2. Interest Rate Swap Agreements. (a) The Issuer shall on or
prior to the Closing Date enter into the Interest Rate Swap Agreements with
the Counterparties for the benefit of the Noteholders and Certificateholders,
such that the aggregate notional amount under the Interest Rate Swap
Agreements shall, at any time, be equal to the Outstanding Amount of the Class
A-3 and Class A-4 Notes at such time. Net Swap Receipts shall be deposited by
the Indenture Trustee into the Collection Account on the day received and
shall constitute part of the Total Distribution Amount. On any Payment Date
when there shall be a Net Swap Payment, the Indenture Trustee shall pay such
Net Swap Payment from the Total Distribution Amount.
(b) Each Interest Rate Swap Agreement shall be in substantially the same
form as the Interest Rate Swap Agreement attached hereto as Exhibit G.
(c) The Servicer, when required under any Interest Rate Swap Agreement,
shall cause the Issuer to enter into a replacement Interest Rate Swap
Agreement.
SECTION 5.3. Collections. The Servicer shall, and shall cause any
subservicer to, remit within two Business Days of receipt thereof to the
Collection Account all payments by or on behalf of the Obligors with respect
to the Receivables, and all Liquidation Proceeds, both as collected during the
Collection Period. Notwithstanding the foregoing, for so long as: (i) Case
Credit remains the Servicer, (ii) no Servicer Default shall have occurred and
be continuing and (iii) prior to ceasing daily remittances, the Rating Agency
Condition shall have been satisfied (and any conditions or limitations imposed
by the Rating Agencies in connection therewith are complied with), the
Servicer shall remit such collections with respect to the related Collection
Period to the Collection Account on the Transfer Date immediately following
the end of such Collection Period. For purposes of this Article V, the phrase
"payments by or on behalf of the Obligors" shall mean payments made with
respect to the Receivables by Persons other than the Servicer or the Seller.
SECTION 5.4. Application of Collections. (a) With respect to each
Receivable, all collections for the Collection Period shall be applied to the
related Scheduled Payment.
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(b) All Liquidation Proceeds shall be applied to the related Receivable.
SECTION 5.5. Additional Deposits. The Servicer and the Seller shall
deposit or cause to be deposited in the Collection Account the aggregate
Purchase Amount with respect to Purchased Receivables on the Transfer Date
related to the Collection Period on the last day of which the purchase occurs,
and the Servicer shall deposit therein all amounts to be paid under Section
9.1 on the Transfer Date falling in the Collection Period referred to in
Section 9.1. The Servicer shall deposit the aggregate Purchase Amount with
respect to Purchased Receivables when such obligations are due, unless the
Servicer shall not be required to make daily deposits pursuant to Section 5.2,
in which case such deposits shall be made on the Transfer Date following the
related Collection Period.
SECTION 5.6. Distributions. (a) On each Determination Date, the Servicer
shall calculate all amounts required to determine the amounts to be deposited
in the Note Distribution Account, the Certificate Distribution Account and the
Spread Account.
(b) On each Payment Date, the Servicer shall instruct the Indenture
Trustee (based on the information contained in the Servicer's Certificate
delivered on the related Determination Date pursuant to Section 4.8) to make
from the Collection Account the following deposits and distributions for
receipt by the Servicer or deposit in the applicable Trust Account or
Certificate Distribution Account, as applicable, by 10:00 a.m. (New York
time), to the extent of the Total Distribution Amount, in the following order
of priority:
(i) to the Administrator, the Administration Fee and all unpaid
Administration Fees from prior Collection Periods;
(ii) to the Note Distribution Account, the Net Swap Payments
(including interest on any overdue Net Swap Payments), if any;
(iii) to the Note Distribution Account, the Class Interest Amount
for each Class of Class A Notes and the Class A Swap Termination Payments
payable by the Issuer, if any;
(iv) to the Note Distribution Account, the Class Interest Amount for
the Class B Notes;
(v) to the Note Distribution Account, the Class Principal
Distributable Amount for each Class of Class A Notes;
(vi) to the Note Distribution Account, the Class B Noteholders'
Monthly Principal Distributable Amount;
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(vii) to the Spread Account to the extent necessary so that the
balance on deposit therein will equal the Specified Spread Account
Balance;
(viii) to the Certificate Distribution Account, the
Certificateholders' Interest Distributable Amount;
(ix) to the Certificate Distribution Account, the
Certificateholders' Monthly Principal Distributable Amount;
(x) to the Servicer, the Servicing Fee and all unpaid Servicing Fees
from prior Collection Periods; provided that if Case Credit or an
Affiliate of Case Credit is not the Servicer, the amounts described in
this clause (x) will be paid prior to any other application of funds on
deposit in the Collection Account; and
(xi) to the Seller, the remaining Total Distribution Amount;
(c) On the A-1 Note Final Scheduled Maturity Date, the Servicer shall
instruct the Indenture Trustee to deposit from the Collection Account into the
Note Distribution Account by 10:00 a.m. (New York time), to the extent of
available funds on such day, an amount equal to the sum of (i) the aggregate
accrued and unpaid interest on the Class A-1 Notes as of the A-1 Note Final
Scheduled Maturity Date, and (ii) the amount necessary to reduce the
outstanding principal amount of the Class A-1 Notes to zero.
It is understood and agreed that, with respect to the amounts to be
distributed pursuant to this Section 5.5(c), the Servicer shall, to the extent
necessary (i) deposit into the Collection Account any amounts received as
payments by or on behalf of any Obligor (and not previously deposited into the
Collection Account) on or prior to the A-1 Note Final Scheduled Maturity Date,
(ii) make each calculation that would otherwise be made on a Determination
Date (with appropriate adjustments) in accordance with Section 4.8 on the
Business Day immediately proceeding the A-1 Note Final Scheduled Maturity
Date, (iii) on the Payment Date immediately succeeding the A-1 Note Final
Scheduled Maturity Date, make any adjustments to the Class Principal
Distributable Amount, the Class Interest Amount and any other amount to be
paid on such Payment Date, and (iv) make any other calculation, adjustment or
correction that may be required as a result of any payment made on the A-1
Note Final Scheduled Maturity Date.
SECTION 5.7. Spread Account. (a) On the Closing Date and on each
Subsequent Transfer Date, the Seller shall deposit the applicable Spread
Account Initial Deposit into the Spread Account.
(b) If the amount on deposit in the Spread Account on any Payment Date
(after giving effect to all deposits or withdrawals therefrom on such Payment
Date) is greater than the Specified Spread Account Balance for such Payment
Date, the Servicer shall instruct the Indenture Trustee to distribute the
19
amount of the excess to the Seller (and its transferees and assignees in
accordance with their respective interests); provided, that if, after giving
effect to all payments made on the Notes on such Payment Date, the sum of the
Pool Balance and the Pre-Funded Amount as of the first day of the Collection
Period in which such Payment Date occurs is less than the sum of the Note
Balance and the Certificate Balance, such excess shall not be distributed to
the Seller (or such transferees or assignees) and shall be retained in the
Spread Account for application in accordance with this Agreement. Amounts
properly distributed pursuant to this Section 5.6(b) shall be deemed released
from the Trust and the security interest therein granted to the Indenture
Trustee, and the Seller (and such transferees and assignees) shall in no event
thereafter be required to refund any such distributed amounts.
(c) Following: (i) the payment in full of the aggregate Outstanding
Amount of the Notes and of all other amounts owing or to be distributed
hereunder or under the Indenture to the Noteholders, the Trustee and the
Indenture Trustee and (ii) the termination of the Trust, any amount remaining
on deposit in the Spread Account shall be distributed to the Seller or any
transferee or assignee pursuant to clause (g). The Seller (and such
transferees and assignees) shall in no event be required to refund any amounts
properly distributed pursuant to this Section 5.6(c).
(d) In the event that the sum of (x) the Noteholders' Distributable
Amount for a Payment Date, (y) the Net Swap Payments (including interest on
any overdue Net Swap Payments) for a Payment Date, if any, and (z) the Swap
Termination Payments payable by the Issuer, if any, exceeds the amount
deposited into the Note Distribution Account pursuant to Sections 5.5(b)(ii),
(iii), (iv), (v) and (vi) on such Payment Date, the Servicer shall instruct
the Indenture Trustee on such Payment Date to withdraw from the Spread Account
on such Payment Date an amount equal to such excess, to the extent of funds
available therein, and deposit such amount into the Note Distribution Account.
(e) The Seller may at any time, without consent of the Noteholders, sell,
transfer, convey or assign in any manner its rights to and interests in
distributions from the Spread Account, including interest and other investment
earnings thereon; provided, that the Rating Agency Condition is satisfied.
SECTION 5.8. Pre-Funding Account. (a) Subject to the proviso set forth in
Section 5.1(a)(iv), on the Closing Date, the Trustee will deposit, on behalf
of the Seller, in the Pre-Funding Account $283,134,277.87 from the net
proceeds of the sale of the Notes and the Certificates. On each Subsequent
Transfer Date, the Servicer shall instruct the Indenture Trustee to withdraw
from the Pre-Funding Account an amount equal to: (i) the aggregate Contract
Value of the Subsequent Receivables transferred to the Issuer on such
Subsequent Transfer Date less the amounts described in clause (ii) and clause
(iii) below, and distribute such amount to or upon the order of the Seller
upon satisfaction of the conditions set forth in Section 2.2(b) with respect
to such transfer, (ii) the Spread Account Initial Deposit for such Subsequent
Transfer Date and, on behalf of the Seller, deposit such amount in the Spread
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Account and (iii) the Principal Supplement Account Deposit for such Subsequent
Transfer Date, and, on behalf of the Seller, deposit such amount in the
Principal Supplement Account.
(b) If: (i) the Pre-Funded Amount has not been reduced to zero on the
Payment Date on which the Funding Period ends (or, if the Funding Period does
not end on a Payment Date, on the first Payment Date following the end of the
Funding Period) or (ii) the Pre-Funded Amount has been reduced to $200,000 or
less on any Determination Date, in either case after giving effect to any
reductions in the Pre-Funded Amount on such date pursuant to paragraph (a),
the Servicer shall instruct the Indenture Trustee to withdraw from the
Pre-Funding Account, in the case of clause (i), on such Payment Date or, in
the case of clause (ii), on the Payment Date immediately succeeding such
Determination Date, the amount remaining at the time in the Pre-Funding
Account (such remaining amount being the "Remaining Pre-Funded Amount") and
deposit such amounts in the Collection Account, for inclusion in the Total
Distribution Amount for that Payment Date.
SECTION 5.9. Negative Carry Account. Subject to the proviso set forth in
Section 5.1(a)(v), on the Closing Date, the Seller shall deposit the Negative
Carry Account Initial Deposit into the Negative Carry Account. On each Payment
Date, the Servicer will instruct the Indenture Trustee to withdraw from the
Negative Carry Account and deposit into the Collection Account an amount equal
to the Negative Carry Amount for such Collection Period. If the amount on
deposit in the Negative Carry Account on any Payment Date (after giving effect
to the withdrawal therefrom of the Negative Carry Amount for such Payment
Date) is greater than the Required Negative Carry Account Balance, the excess
will be released to the Seller.
SECTION 5.10. Principal Supplement Account. On each Subsequent Transfer
Date the Servicer shall calculate the amount, if any, of the Principal
Supplement Account Deposit applicable to such Subsequent Transfer Date, and,
if such amount is positive, the Seller shall deposit such amount into the
Principal Supplement Account (subject to the proviso set forth in Section
5.1(a)(vi)). In the event that the sum of (x) the Noteholders' Distributable
Amount for a Payment Date, (y) the Net Swap Payments (including interest on
any overdue Net Swap Payments) for a Payment Date, if any, and (z) the Swap
Termination Payments payable by the Issuer, if any, exceeds the amount
deposited into the Note Distribution Account pursuant to Sections 5.5(b)(ii),
(iii), (iv), (v) and (vi) on such Payment Date and Section 5.6(d) on such
Payment Date, the Servicer shall instruct the Indenture Trustee on such
Payment Date to withdraw from the Principal Supplement Account on such Payment
Date an amount equal to such excess, to the extent of funds available therein,
and deposit such amount into the Note Distribution Account. In the event that
the Class Principal Distributable Amount for any Class of Notes for the
applicable final scheduled maturity date for such Class of Notes exceeds the
remainder of the Total Distribution Amount and the amounts available in the
Spread Account pursuant to Section 5.6(e) for that Payment Date after
subtracting the Class Principal Distributable Amount for each Class of Notes
having priority over such Class of Notes, the Servicer shall instruct the
Indenture Trustee on such Payment Date to withdraw from the Principal
Supplement Account on such Payment Date an amount equal to such excess, to the
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extent of funds available therein, and deposit such amount into the Note
Distribution Account. Funds on deposit in the Principal Supplement Account may
be withdrawn and paid to the Seller on any day if each Rating Agency has
confirmed that such action will not result in a withdrawal or downgrade of its
rating of any Class of Notes.
SECTION 5.11. Statements to Certificateholders and Noteholders. (a) On
each Determination Date the Servicer shall provide to the Indenture Trustee
(with a copy to the Rating Agencies), for the Indenture Trustee to make
available to each Noteholder of record, and to the Trustee, for the Trustee to
forward to each Certificateholder of record, a statement substantially in the
form of Exhibits A and B, respectively, setting forth at least the following
information as to each Class of the Notes and the Certificates to the extent
applicable:
(i) the amount of such distribution allocable to principal of each
Class of Notes;
(ii) the amount of the distribution allocable to interest of each
Class of Notes;
(iii) the amount of the distribution allocable to principal of the
Certificates;
(iv) the amount of the distribution allocable to interest on the
Certificates;
(v) the Pool Balance as of the close of business on the last day of
the preceding Collection Period;
(vi) the aggregate Outstanding Amount and the Note Pool Factor for
each Class of Notes, and the Certificate Balance and the Certificate Pool
Factor as of such Payment Date, after giving effect to payments allocated
to principal reported under clauses (i) and (iii) above;
(vii) the amount of the Servicing Fee paid to the Servicer with
respect to the preceding Collection Period;
(viii) the amount of the Administration Fee paid to the
Administrator in respect of the preceding Collection Period;
(ix) the amount of the aggregate Realized Losses, if any, for such
Collection Period;
(x) the aggregate Purchase Amounts for Receivables, if any, that
were repurchased or purchased in such Collection Period;
(xi) the balance of the Spread Account on such Payment Date, after
giving effect to changes therein on such Payment Date;
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(xii) for Payment Dates during the Funding Period, the remaining
Pre-Funded Amount;
(xiii) for the final Payment Date with respect to the Funding
Period, the amount of any remaining Pre-Funded Amount that has not been
used to fund the purchase of Subsequent Receivables;
(xiv) the balance of the Principal Supplement Account on such
Payment Date, after giving effect to changes therein on such Payment
Date;
(xv) the balance of the Negative Carry Account on such Payment Date,
after giving effect to changes therein on such Payment Date;
(xvi) the amount of Net Swap Payments or Net Swap Receipts for such
Payment Date, and
(xvii) the amount of Swap Termination Payments paid by the Issuer on
such Payment Date.
Each amount set forth pursuant to clauses (i), (ii), (iii), (iv), (vii)
and (viii) shall be expressed as a dollar amount per $1,000 of original
principal balance of a Certificate or Note, as applicable.
The Indenture Trustee will make the Statement to Noteholders available
each month to Noteholders and other parties to the Basic Documents via the
Indenture Trustee's internet website, which is presently located at
www.jpmorgan.com/absmbs
Persons who are unable to use the above website are entitled to have a
paper copy mailed to them via first class mail by calling the Indenture
Trustee at 1-877-722-1095. The Indenture Trustee shall have the right to
change the way the Statement to Noteholders is distributed in order to make
such distribution more convenient and/or more accessible to the above parties
and to the Noteholders. The Indenture Trustee shall provide timely and
adequate notification to all above parties and to the Noteholders regarding
any such change.
In connection with any electronic transmissions of information, including
without limitation, the use of electronic mail or internet or intranet web
sites, the systems used in such transmissions are not fully tested by the
Indenture Trustee and may not be completely reliable as to stability,
robustness and accuracy. Accordingly, the parties hereto acknowledge and agree
that information electronically transmitted as described herein may not be
relied upon as timely, accurate or complete and that the Indenture Trustee
shall have no liability hereunder in connection with such information
transmitted electronically. The parties hereto further acknowledge that any
systems, software or hardware utilized in posting or retrieving any such
information is utilized on an "as is" basis without representation or warranty
as to the intended uses of such systems, software or hardware. The Indenture
Trustee makes no representation or warranty that the systems and the related
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software used in connection with the electronic transmission of information
are free and clear of threats known as software and hardware viruses, time
bombs, logic bombs, Trojan horses, worms, or other malicious computer
instructions, intentional devices or techniques which may cause a component or
system to become erased, damaged, inoperable, or otherwise incapable of being
used in the manner to which it is intended, or which would permit unauthorized
access thereto.
SECTION 5.12. Net Deposits. As an administrative convenience, unless the
Servicer is required to remit collections daily, the Servicer will be
permitted to make the deposit of collections net of distributions, if any, to
be made to the Servicer with respect to the Collection Period. The Servicer,
however, will account to the Trustee, the Indenture Trustee, the Noteholders
and the Certificateholders as if all deposits, distributions and transfers
were made individually.
ARTICLE VI
The Seller
SECTION 6.1. Representations of Seller. The Seller makes the following
representations on which the Issuer is deemed to have relied in acquiring the
Receivables. The representations speak as of the execution and delivery of
this Agreement and shall survive the sale of the Receivables to the Issuer and
the pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) Organization and Good Standing. The Seller is duly organized and
validly existing as a corporation in good standing under the laws of the
State of Delaware, with the corporate power and authority to own its
properties and to conduct its business as such properties are currently
owned and such business is presently conducted, and had at all relevant
times, and has, the corporate power, authority and legal right to
acquire, own and sell the Receivables.
(b) Due Qualification. The Seller is duly qualified to do business
as a foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business shall require such
qualifications.
(c) Power and Authority. The Seller has the power and authority to
execute and deliver this Agreement and to carry out its terms; the Seller
has full power and authority to sell and assign the property to be sold
and assigned to and deposited with the Issuer and has duly authorized
such sale and assignment to the Issuer by all necessary corporate action;
and the execution, delivery and performance of this Agreement have been,
and the execution, delivery and performance of each Subsequent Transfer
24
Assignment have been or will be on or before the related Subsequent
Transfer Date, duly authorized by the Seller by all necessary corporate
action.
(d) Binding Obligation. This Agreement constitutes, and each
Subsequent Transfer Assignment when executed and delivered by the Seller
will constitute, a legal, valid and binding obligation of the Seller
enforceable in accordance with their terms.
(e) No Violation. The consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under, the
certificate of incorporation or by-laws of the Seller, or any indenture,
agreement or other instrument to which the Seller is a party or by which
it shall be bound; or result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than the Basic Documents); or
violate any law or, to the best of the Seller's knowledge, any order,
rule or regulation applicable to the Seller of any court or of any
Federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Seller or its
properties.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the Seller's best knowledge, threatened, before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties:
(i) asserting the invalidity of this Agreement, the Indenture or any of
the other Basic Documents, the Notes or the Certificates, (ii) seeking to
prevent the issuance of the Notes or the Certificates or the consummation
of any of the transactions contemplated by this Agreement, the Indenture
or any of the other Basic Documents, (iii) seeking any determination or
ruling that could reasonably be expected to materially and adversely
affect the performance by the Seller of its obligations under, or the
validity or enforceability of, this Agreement, the Indenture, any of the
other Basic Documents, the Notes or the Certificates or (iv) that might
adversely affect the Federal or state income tax attributes of the Notes
or the Certificates.
SECTION 6.2. Corporate Existence. (a) During the term of this Agreement,
the Seller will keep in full force and effect its existence, rights and
franchises as a corporation under the laws of the jurisdiction of its
incorporation and will obtain and preserve its qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, the Basic Documents
and each other instrument or agreement necessary or appropriate to the proper
administration of this Agreement and the transactions contemplated hereby.
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(b) During the term of this Agreement, the Seller shall observe the
applicable legal requirements for the recognition of the Seller as a legal
entity separate and apart from its Affiliates, including as follows:
(i) the Seller shall maintain corporate records and books of account
separate from those of its Affiliates;
(ii) except as otherwise provided in this Agreement and similar
arrangements relating to other securitizations, the Seller shall not
commingle its assets and funds with those of its Affiliates;
(iii) the Seller shall hold such appropriate meetings or obtain such
appropriate consents of its Board of Directors as are necessary to
authorize all the Seller's corporate actions required by law to be
authorized by the Board of Directors, shall keep minutes of such meetings
and of meetings of its stockholder(s) and observe all other customary
corporate formalities (and any successor Seller not a corporation shall
observe similar procedures in accordance with its governing documents and
applicable law);
(iv) the Seller shall at all times hold itself out to the public
under the Seller's own name as a legal entity separate and distinct from
its Affiliates; and
(v) all transactions and dealings between the Seller and its
Affiliates will be conducted on an arm's-length basis.
SECTION 6.3. Liability of Seller; Indemnities. The Seller shall be liable
in accordance herewith only to the extent of the obligations specifically
undertaken by the Seller under this Agreement.
(a) The Seller shall indemnify, defend and hold harmless the Issuer,
the Trustee and the Indenture Trustee (and their officers, directors,
employees and agents) from and against any taxes that may at any time be
asserted against any of them with respect to the sale of the Receivables
to the Issuer or the issuance and original sale of the Certificates and
the Notes, including any sales, gross receipts, general corporation,
tangible personal property, privilege or license taxes (but, in the case
of the Issuer, not including any taxes asserted with respect to ownership
of the Receivables or Federal or other income taxes arising out of the
transactions contemplated by this Agreement) and costs and expenses in
defending against the same.
(b) The Seller shall indemnify, defend and hold harmless the Issuer,
the Trustee and the Indenture Trustee (and their officers, directors,
employees and agents) from and against any loss, liability or expense
incurred by reason of the Seller's willful misfeasance, bad faith or
26
negligence in the performance of its duties under this Agreement, or by
reason of reckless disregard of its obligations and duties under this
Agreement.
Indemnification under this Section shall survive the resignation or
removal of the Trustee or the Indenture Trustee or the termination of this
Agreement and the Indenture and shall include reasonable fees and expenses of
counsel and expenses of litigation. If the Seller shall have made any
indemnity payments pursuant to this Section and the Person to or on behalf of
whom such payments are made thereafter shall collect any of such amounts from
others, such Person shall promptly repay such amounts to the Seller, without
interest.
SECTION 6.4. Merger or Consolidation of, or Assumption of the Obligations
of, Seller. Any Person: (a) into which the Seller may be merged or
consolidated, (b) that may result from any merger or consolidation to which
the Seller shall be a party or (c) that may succeed to the properties and
assets of the Seller substantially as a whole, which Person (in any of the
foregoing cases) executes an agreement of assumption to perform every
obligation of the Seller under this Agreement (or is deemed by law to have
assumed such obligations), shall be the successor to the Seller hereunder
without the execution or filing of any document or any further act by any of
the parties to this Agreement; provided, however, that: (i) immediately after
giving effect to such transaction, no representation or warranty made pursuant
to Section 3.1 shall have been breached and no Servicer Default, and no event
that, after notice or lapse of time, or both, would become a Servicer Default
shall have occurred and be continuing, (ii) the Seller shall have delivered to
the Trustee and the Indenture Trustee an Officers' Certificate and an Opinion
of Counsel each stating that such consolidation, merger or succession and such
agreement of assumption comply with this Section and that all conditions
precedent, if any, provided for in this Agreement relating to such transaction
have been complied with, (iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction and (iv) the Seller shall have
delivered to the Trustee and the Indenture Trustee an Opinion of Counsel
either: (A) stating that, in the opinion of such counsel, all financing
statements, continuation statements and amendments thereto have been executed
and filed that are necessary fully to preserve and protect the interest of the
Trustee and Indenture Trustee, respectively, in the Receivables and reciting
the details of such filings, or (B) stating that, in the opinion of such
counsel, no such action shall be necessary to preserve and protect such
interests. Notwithstanding anything herein to the contrary, the execution of
the foregoing agreement of assumption and compliance with clauses (i), (ii),
(iii) and (iv) shall be conditions to the consummation of the transactions
referred to in clauses (a), (b) or (c).
SECTION 6.5. Limitation on Liability of Seller and Others. The Seller and
any director, officer, employee or agent of the Seller may rely in good faith
on the advice of counsel or on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
The Seller shall not be under any obligation to appear in, prosecute or defend
any legal action that shall not be incidental to its obligations under this
Agreement, and that in its opinion may involve it in any expense or liability.
27
SECTION 6.6. Seller May Own Certificates or Notes. The Seller and any
Affiliate thereof may in its individual or any other capacity become the owner
or pledgee of Certificates or the Notes with the same rights as it would have
if it were not the Seller or an Affiliate thereof, except as expressly
provided herein or in any other Basic Document.
Notwithstanding the foregoing, the Seller shall not sell the Certificates
except to an entity (a) that has provided an opinion of counsel to the effect
that such sale will not cause the Trust to be treated as a "publicly traded
partnership" under the Code and (b) that either (i) is not an Affiliate of the
Seller or (ii) is an Affiliate of the Seller that (A) is a subsidiary of Case
Credit or NH Credit, the Certificate of Incorporation of which contains
restrictions substantially similar to the restrictions contained in the
Certificate of Incorporation of the Seller and (B) has provided an opinion of
counsel regarding substantive consolidation of such Affiliate with Case Credit
or NH Credit in the event of a bankruptcy filing by Case Credit or NH Credit,
as applicable, which is substantially similar to the opinion of counsel
provided by Seller on the Closing Date, and which may be subject to the same
assumptions and qualifications as that opinion.
ARTICLE VII
The Servicer
SECTION 7.1. Representations of Servicer. The Servicer makes the
following representations on which the Issuer is deemed to have relied in
acquiring the Receivables. The representations speak as of the execution and
delivery of the Agreement and as of the Closing Date, in the case of the
Initial Receivables, and as of the applicable Subsequent Transfer Date, in the
case of the Subsequent Receivables, and shall survive the sale of the
Receivables to the Issuer and the pledge thereof to the Indenture Trustee
pursuant to the Indenture.
(a) Organization and Good Standing. The Servicer is duly organized
and validly existing as a corporation in good standing under the laws of
the state of its incorporation, with the corporate power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is presently conducted, and had at all
relevant times, and has, the power, authority and legal right to acquire,
own, sell and service the Receivables and to hold the Receivable Files as
custodian.
(b) Due Qualification. The Servicer is duly qualified to do business
as a foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business (including the servicing
of the Receivables as required by this Agreement) shall require such
qualifications.
(c) Power and Authority. The Servicer has the corporate power and
authority to execute and deliver this Agreement and to carry out its
28
terms; and the execution, delivery and performance of this Agreement have
been duly authorized by the Servicer by all necessary corporate action.
(d) Binding Obligation. This Agreement constitutes a legal, valid
and binding obligation of the Servicer enforceable against the Servicer
in accordance with its terms.
(e) No Violation. The consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms hereof shall not
conflict with, result in any breach of any of the terms and provisions
of, or constitute (with or without notice or lapse of time) a default
under, the articles of incorporation or by-laws of the Servicer, or any
indenture, agreement or other instrument to which the Servicer is a party
or by which it shall be bound; or result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of any such
indenture, agreement or other instrument (other than this Agreement); or
violate any law or, to the best of the Servicer's knowledge, any order,
rule or regulation applicable to the Servicer of any court or of any
Federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Servicer or its
properties.
(f) No Proceedings. There are no proceedings or investigations
pending, or, to the Servicer's best knowledge, threatened, before any
court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Servicer or its properties:
(i) asserting the invalidity of this Agreement, the Indenture, any of the
other Basic Documents, the Notes or the Certificates, (ii) seeking to
prevent the issuance of the Notes or the Certificates or the consummation
of any of the transactions contemplated by this Agreement, the Indenture
or any of the other Basic Documents, (iii) seeking any determination or
ruling that could reasonably be expected to materially and adversely
affect the performance by the Servicer of its obligations under, or the
validity or enforceability of, this Agreement, the Indenture, any of the
other Basic Documents, the Notes or the Certificates or (iv) relating to
the Servicer and that might adversely affect the Federal or state income
tax attributes of the Notes or the Certificates.
(g) No Insolvent Obligors. As of the Initial Cutoff Date or, in the
case of the Subsequent Receivables, as of the related Subsequent Cutoff
Date, no Obligor is shown on the Receivable Files as the subject of a
bankruptcy proceeding.
SECTION 7.2. Indemnities of Servicer. The Servicer shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer under this Agreement.
(a) The Servicer shall defend, indemnify and hold harmless the
Issuer, the Trustee, the Indenture Trustee, the Noteholders, the
29
Certificateholders and the Seller (and any of their officers, directors,
employees and agents) from and against any and all costs, expenses,
losses, damages, claims and liabilities, arising out of or resulting
from:
(i) the use, ownership or operation by the Servicer or any
Affiliate thereof of any of the Financed Equipment;
(ii) any taxes that may at any time be asserted against any
such Person with respect to the transactions contemplated herein,
including any sales, gross receipts, general corporation, tangible
personal property, privilege or license taxes (but, in the case of
the Issuer, not including any taxes asserted with respect to, and as
of the date of, the sale of the Receivables to the Issuer or the
issuance and original sale of the Certificates, the Notes, or
asserted with respect to ownership of the Receivables, or Federal or
other income taxes arising out of distributions on the Certificates
or the Notes) and costs and expenses in defending against the same;
(iii) the negligence, willful misfeasance or bad faith of the
Servicer in the performance of its duties under this Agreement or by
reason of reckless disregard of its obligations and duties under
this Agreement; and
(iv) the Seller's or the Issuer's violation of Federal or State
securities laws in connection with the offering or sale of the
Notes.
(b) The Servicer shall indemnify, defend and hold harmless the
Trustee and the Indenture Trustee (and their respective officers,
directors, employees and agents) from and against all costs, expenses,
losses, claims, damages and liabilities arising out of or incurred in
connection with the acceptance or performance of the trusts and duties
herein and, in the case of the Trustee, in the Trust Agreement contained,
and, in the case of the Indenture Trustee, in the Indenture contained,
except to the extent that such cost, expense, loss, claim, damage or
liability:
(i) shall be due to the willful misfeasance, bad faith or
negligence (except for errors in judgment) of the Trustee or the
Indenture Trustee as applicable; or
(ii) shall arise from the breach by the Trustee of any of its
representations or warranties set forth in Section 7.3 of the Trust
Agreement.
(c) The Servicer shall pay any and all taxes levied or assessed upon
all or any part of the Trust Estate.
(d) The Servicer shall pay the Indenture Trustee and the Trustee
from time to time reasonable compensation for all services rendered by
the Indenture Trustee under the Indenture or by the Trustee under the
30
Trust Agreement (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust).
(e) The Servicer shall, except as otherwise expressly provided in
the Indenture or the Trust Agreement, reimburse either the Indenture
Trustee or the Trustee, respectively, upon its request for all reasonable
expenses, disbursements and advances incurred or made in accordance with
the Indenture or the Trust Agreement, respectively, (including the
reasonable compensation, expenses and disbursements of its agents and
either in-house counsel or outside counsel, but not both), except any
such expense, disbursement or advance as may be attributable to the
Indenture Trustee's or the Trustee's, respectively negligence, bad faith
or willful misfeasance.
For purposes of this Section, in the event of the termination of the
rights and obligations of the Servicer pursuant to Section 8.1, or a
resignation by the Servicer pursuant to this Agreement, the Servicer shall be
deemed to be the Servicer pending appointment of a successor Servicer pursuant
to Section 8.2.
Indemnification under this Section shall survive the resignation or
removal of the Trustee or the Indenture Trustee or the termination of this
Agreement, the Trust Agreement and the Indenture and shall include reasonable
fees and expenses of counsel and expenses of litigation. If the Servicer shall
have made any indemnity payments pursuant to this Section and the Person to or
on behalf of whom such payments are made thereafter collects any of such
amounts from others, such Person shall promptly repay such amounts to the
Servicer, without interest.
SECTION 7.3. Merger or Consolidation of, or Assumption of the Obligations
of, Servicer. Any Person: (a) into which the Servicer may be merged or
consolidated, (b) that may result from any merger or consolidation to which
the Servicer shall be a party, or (c) that may succeed to the properties and
assets of the Servicer substantially as a whole, which Person (in any of the
foregoing circumstances) executes an agreement of assumption to perform every
obligation of the Servicer hereunder (or is deemed by law to have assumed such
obligations), shall be the successor to the Servicer under this Agreement
without further act on the part of any of the parties to this Agreement;
provided, however, that: (i) immediately after giving effect to such
transaction, no Servicer Default, and no event that, after notice or lapse of
time, or both, would become a Servicer Default shall have occurred and be
continuing, (ii) the Servicer shall have delivered to the Trustee and
Indenture Trustee an Officers' Certificate and an Opinion of Counsel each
stating that such consolidation, merger or succession and such agreement of
assumption comply with this Section and that all conditions precedent, if any,
provided for in this Agreement relating to such transaction have been complied
with, (iii) the Rating Agencies shall have received at least ten days' prior
written notice of such transaction and (iv) the Servicer shall have delivered
to the Trustee and the Indenture Trustee an Opinion of Counsel either: (A)
stating that, in the opinion of such counsel, all financing statements,
continuation statements and amendments thereto have been executed and filed
that are necessary fully to preserve and protect the interest of the Trustee
31
and the Indenture Trustee, respectively, in the Receivables and reciting the
details of such filings, or (B) stating that, in the opinion of such counsel,
no such action shall be necessary to preserve and protect such interests.
Notwithstanding anything herein to the contrary, the execution of the
foregoing agreement of assumption and compliance with clauses (i), (ii), (iii)
and (iv) shall be conditions to the consummation of the transactions referred
to in clauses (a), (b) or (c).
SECTION 7.4. Limitation on Liability of Servicer and Others. Neither the
Servicer nor any of the directors, officers, employees or agents of the
Servicer shall be under any liability to the Issuer, the Noteholders or the
Certificateholders, except as provided under this Agreement, for any action
taken or for refraining from the taking of any action pursuant to this
Agreement or for errors in judgment; provided, however, that this provision
shall not protect the Servicer or any such Person against any liability that
would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of its duties or by reason of reckless disregard
of obligations and duties under this Agreement. The Servicer and any director,
officer, employee or agent of the Servicer may rely in good faith on the
advice of counsel or on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising hereunder.
Except as provided in this Agreement, the Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action that shall not
be incidental to its duties to service the Receivables in accordance with this
Agreement, and that in its opinion may involve it in any expense or liability;
provided, however, that the Servicer may undertake any reasonable action that
it may deem necessary or desirable in respect of this Agreement, the Basic
Documents and the rights and duties of the parties to this Agreement, the
other Basic Documents and the interests of the Certificateholders under the
Trust Agreement and the Noteholders under the Indenture.
SECTION 7.5. Case Credit Not to Resign as Servicer. Subject to Section
7.3, Case Credit shall not resign from the obligations and duties imposed on
it as Servicer under this Agreement except upon determination that the
performance of its duties under this Agreement shall no longer be permissible
under applicable law and such impermissibility cannot be reasonably and
promptly cured. Notice of any such determination shall be communicated to the
Trustee and the Indenture Trustee at the earliest practicable time (and, if
such communication is not in writing, shall be confirmed in writing at the
earliest practicable time) and any such determination shall be evidenced by an
Opinion of Counsel to such effect delivered to the Trustee and the Indenture
Trustee concurrently with or promptly after such notice. No such resignation
shall become effective until the Indenture Trustee or a successor Servicer
shall have assumed the responsibilities and obligations of Case Credit in
accordance with Section 8.2.
SECTION 7.6. Servicer to Act as Administrator. In the event of the
resignation or removal of the Administrator and the failure of a successor
32
Administrator to have been appointed and to have accepted such appointment as
successor Administrator, the Servicer shall become the successor Administrator
and shall be bound by the terms of the Administration Agreement.
ARTICLE VIII
Default
SECTION 8.1. Servicer Default. If any one of the following events (a
"Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to deliver to the Indenture Trustee
for deposit in any of the Trust Accounts or the Certificate Distribution
Account any required payment or to direct the Indenture Trustee or the
Trustee to make any required distributions therefrom, which failure
continues unremedied for three Business Days after written notice of such
failure is received by the Servicer from the Trustee or the Indenture
Trustee or after discovery of such failure by an officer of the Servicer;
(b) any failure by the Servicer or the Seller, as the case may be,
duly to observe or to perform in any material respect any other covenants
or agreements (other than as set forth in clause (a)) of the Servicer or
the Seller (as the case may be) set forth in this Agreement or any other
Basic Document, which failure shall: (i) materially and adversely affect
the rights of Certificateholders or Noteholders and (ii) continue
unremedied for a period of 60 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been
given: (A) to the Servicer or the Seller (as the case may be) by the
Trustee or the Indenture Trustee or (B) to the Servicer or the Seller (as
the case may be) and to the Trustee and the Indenture Trustee, by the
Noteholders or Certificateholders, as applicable, evidencing not less
than 25% of the Outstanding Amount of the Notes or 25% of the Certificate
Balance; or
(c) an Insolvency Event occurs with respect to the Seller or the
Servicer;
then, and in each and every case, so long as the Servicer Default shall
not have been remedied, either the Indenture Trustee, or the Holders of Notes
evidencing not less than 25% of the Outstanding Amount of the Notes, by notice
then given in writing to the Servicer (and to the Indenture Trustee and the
Trustee if given by the Noteholders), may terminate all the rights and
obligations (other than the obligations set forth in Section 7.2) of the
Servicer under this Agreement. On or after the receipt by the Servicer of such
written notice, all authority and power of the Servicer under this Agreement,
whether with respect to the Notes, the Certificates, the Receivables or
otherwise, shall, without further action, pass to and be vested in the
Indenture Trustee or such successor Servicer as may be appointed under Section
8.2; and, without limitation, the Indenture Trustee and the Trustee are hereby
authorized and empowered to execute and deliver, on behalf of the predecessor
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement of the Receivables and related
33
documents, or otherwise. The predecessor Servicer shall cooperate with the
successor Servicer, the Indenture Trustee and the Trustee in effecting the
termination of the responsibilities and rights of the predecessor Servicer
under this Agreement, including the transfer to the successor Servicer for
administration by it of: (i) all cash amounts that shall at the time be held
by the predecessor Servicer for deposit, or shall thereafter be received by it
with respect to a Receivable and (ii) all Receivable Files. All reasonable
costs and expenses (including attorneys' fees) incurred in connection with
such transfer, including the costs of transferring the Receivable Files to the
successor Servicer and amending this Agreement to reflect its succession as
Servicer, shall be paid by the predecessor Servicer upon presentation of
reasonable documentation of such costs and expenses. Upon receipt of notice of
the occurrence of a Servicer Default, the Trustee shall give notice thereof to
the Rating Agencies.
SECTION 8.2. Appointment of Successor Servicer. (a) Upon the Servicer's
receipt of notice of termination, pursuant to Section 8.1, or the Servicer's
resignation in accordance with this Agreement, the predecessor Servicer shall
continue to perform its functions as Servicer under this Agreement, in the
case of termination, only until the date specified in such termination notice
or, if no such date is specified in a notice of termination, until receipt of
such notice and, in the case of resignation, until the earlier of: (x) the
date 45 days from the delivery to the Trustee and the Indenture Trustee of
written notice of such resignation (or written confirmation of such notice) in
accordance with this Agreement and (y) the date upon which the predecessor
Servicer shall become unable to act as Servicer, as specified in the notice of
resignation and accompanying Opinion of Counsel. In the event of the
Servicer's termination hereunder, the Issuer shall appoint a successor
Servicer acceptable to the Indenture Trustee, and the successor Servicer shall
accept its appointment by a written assumption in form acceptable to the
Indenture Trustee. In the event that a successor Servicer has not been
appointed at the time when the predecessor Servicer has ceased to act as
Servicer in accordance with this Section, the Indenture Trustee without
further action shall automatically be appointed the successor Servicer and
shall be entitled to the Servicing Fee. Notwithstanding the above, the
Indenture Trustee shall, if it shall be unable so to act, appoint or petition
a court of competent jurisdiction to appoint any established institution,
having a net worth of not less than $50,000,000 and whose regular business
shall include the servicing of equipment receivables, as the successor to the
Servicer under this Agreement.
(b) Upon appointment, the successor Servicer (including the Indenture
Trustee acting as successor Servicer) shall be the successor in all respects
to the predecessor Servicer (except with respect to responsibilities and
obligations of the predecessor Servicer set forth in Section 7.2) and shall be
subject to all the responsibilities, duties and liabilities arising thereafter
relating thereto placed on the predecessor Servicer and shall be entitled to
the Servicing Fee and all the rights granted to the predecessor Servicer by
this Agreement. Neither the Indenture Trustee nor any other successor Servicer
shall be deemed to be in default hereunder due to any act or omission of a
predecessor Servicer, including but not limited to failure of such predecessor
34
Servicer to timely deliver to the Indenture Trustee any required information
pertaining to the Receivables, any funds required to be deposited with the
Indenture Trustee, or any breach of duty of such predecessor Servicer to
cooperate with a transfer of servicing as required hereunder. Any successor
Servicer shall from time to time provide to Case Credit such information as
Case Credit shall request with respect to the Receivables and collections
thereon.
(c) Subject to the last sentence of clause (a), the Servicer may not
resign unless it is prohibited from serving as such by law as evidenced by an
Opinion of Counsel to such effect delivered to the Indenture Trustee and the
Trustee.
SECTION 8.3. Notification to Noteholders and Certificateholders. Upon any
termination of, or appointment of a successor to, the Servicer pursuant to
this Article VIII, the Trustee shall give prompt written notice thereof to the
Certificateholders and the Indenture Trustee shall give prompt written notice
thereof to the Noteholders and the Rating Agencies.
SECTION 8.4. Waiver of Past Defaults. The Noteholders of Notes evidencing
not less than a majority of the Note Balance (or the Holders of Certificates
evidencing not less than a majority of the Certificate Balance, in the case of
any default that does not adversely affect the Indenture Trustee or the
Noteholders) may, on behalf of all the Noteholders and Certificateholders,
waive in writing any default by the Servicer in the performance of its
obligations hereunder and its consequences, except a default in making any
required deposits to or payments from any of the Trust Accounts in accordance
with this Agreement. Upon any such waiver of a past default, such default
shall cease to exist, and any Servicer Default arising therefrom shall be
deemed to have been remedied for every purpose of this Agreement. No such
waiver shall extend to any subsequent or other default or impair any right
consequent thereto.
ARTICLE IX
Termination
SECTION 9.1. Optional Purchase of All Receivables. (a) As of the first
day of any Collection Period immediately preceding a Payment Date as of which
the Pool Balance is 10% or less of the Initial Pool Balance, the Servicer
shall have the option to purchase all of the Trust Estate, other than the
Trust Accounts. To exercise such option, the Servicer shall deposit, pursuant
to Section 5.4, in the Collection Account an amount equal to the aggregate
Purchase Amount for the Receivables plus the appraised value of any such other
property held by the Trust, such value to be determined by an appraiser
mutually agreed upon by the Servicer, the Trustee and the Indenture Trustee,
and shall succeed to all interests in, to and under the Trust Estate, other
than the Trust Accounts.
35
(b) Upon any sale of the assets of the Trust, the Servicer shall instruct
the Indenture Trustee to deposit the proceeds from such sale after all
payments and reserves therefrom have been made (the "Sale Proceeds") in the
Collection Account. On the Payment Date on, or, if such proceeds are not so
deposited on a Payment Date, on the first Payment Date following the date on
which the Sale Proceeds are deposited in the Collection Account, the Servicer
shall instruct the Indenture Trustee to make the following deposits (after the
application on such Payment Date of the Total Distribution Amount and funds on
deposit in the Spread Account pursuant to Sections 5.5 and 5.6) from the Sale
Proceeds and any funds remaining on deposit in the Spread Account (including
the proceeds of any sale of investments therein as described in the following
sentence):
(i) first, to the Note Distribution Account, any portion of the
Class A Noteholders' Class Interest Amount and the Outstanding Amount of
the Class A Notes (after giving effect to the reduction resulting from
the deposits made in the Note Distribution Account on such Payment Date
and on prior Payment Dates) not otherwise deposited into the Note
Distribution Account on such Payment Date;
(ii) second, to the Note Distribution Account, any portion of the
Class B Noteholders' Class Interest Amount and the Outstanding Amount of
the Class B Notes (after giving effect to the reduction resulting from
the deposits made in the Note Distribution Account on such Payment Date
and on prior Payment Dates) not otherwise deposited into the Note
Distribution Account on such Payment Date;
(iii) third, to the Certificate Distribution Account, any portion of
the Certificateholders' Interest Distributable Amount not otherwise
deposited in the Certificate Distribution Account on such Payment Date;
and
(iv) fourth, to the Certificate Distribution Account, the
Certificate Balance (after giving effect to the reduction resulting from
the deposits made in the Certificate Distribution Account on such Payment
Date).
Any investments on deposit in the Spread Account that will not mature on
or before such Payment Date shall be sold by the Indenture Trustee at such
time as will result in the Indenture Trustee receiving the proceeds from such
sale not later than the Transfer Date preceding such Payment Date. Any Sale
Proceeds remaining after the deposits described above shall be paid to the
Seller.
(c) As described in Article IX of the Trust Agreement, notice of any
termination of the Trust shall be given by the Servicer to the Trustee and the
Indenture Trustee as soon as practicable after the Servicer has received
notice thereof.
36
(d) Following the satisfaction and discharge of the Indenture and the
payment in full of the principal of and interest on the Notes, the
Certificateholders will succeed to the rights of the Noteholders hereunder and
the Trustee will succeed to the rights of, and assume the obligations of, the
Indenture Trustee pursuant to this Agreement.
ARTICLE X
Miscellaneous Provisions
SECTION 10.1. Amendment. The Agreement may be amended from time to time
by a written amendment duly executed and delivered by the Seller, the Servicer
and the Issuer, with the written consent of the Indenture Trustee, but without
the consent of any of the Noteholders or the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions in this Agreement or for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions in this Agreement or of modifying in any
manner the rights of the Noteholders or the Certificateholders; provided,
however, that such action shall not, as evidenced by an Opinion of Counsel
delivered to the Trustee and the Indenture Trustee, adversely affect in any
material respect the interests of any Noteholder or Certificateholder.
The Specified Spread Account Balance may be reduced or the definition
thereof otherwise modified without the consent of any of the Noteholders or
the Certificateholders if the Rating Agency Condition is satisfied.
This Agreement may also be amended from time to time by the Seller, the
Servicer and the Issuer, with the written consent of the Indenture Trustee,
but without the consent of any of the Noteholders or the Certificateholders,
to: (x) replace the Spread Account with another form of credit enhancement as
long as such substitution will not result in a reduction or withdrawal of the
rating of any Class of the Notes or the Certificates or (y) add credit
enhancement for the benefit of any Class of the Notes or the Certificates.
This Agreement may also be amended from time to time by the Seller, the
Servicer and the Issuer, with the written consent of (a) the Indenture
Trustee, (b) Noteholders holding Notes evidencing not less than a majority of
the Note Balance, and (c) the Holders of Certificates evidencing not less than
a majority of the Certificate Balance, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Noteholders
or the Certificateholders; provided, however, that no such amendment shall:
(a) increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that shall
be required to be made for the benefit of the Noteholders or the
Certificateholders or (b) reduce the aforesaid percentage of the Notes and the
Certificates that are required to consent to any such amendment, without the
consent of the holders of all the outstanding Notes and Certificates.
37
Promptly after the execution of any such amendment or consent (or, in the
case of the Rating Agencies, 10 days prior thereto), the Trustee shall furnish
written notification of the substance of such amendment or consent to each
Certificateholder, the Indenture Trustee and each of the Rating Agencies.
It shall not be necessary for the consent of Certificateholders or the
Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof.
Prior to the execution of any amendment to this Agreement, the Trustee
and the Indenture Trustee shall be entitled to receive and rely upon: (i) an
Opinion of Counsel stating that the execution of such amendment is authorized
or permitted by this Agreement and the other Basic Documents and that all
conditions precedent to such execution and delivery by the Trustee and the
Indenture Trustee have been satisfied and (ii) the Opinion of Counsel referred
to in Section 10.2(i)(1). The Trustee and the Indenture Trustee may, but shall
not be obligated to, enter into any such amendment that affects the Trustee's
or the Indenture Trustee's, as applicable, own rights, duties or immunities
under this Agreement or otherwise.
SECTION 10.2. Protection of Title to Trust. (a) The Seller shall execute
and file such financing statements, and cause to be executed and filed such
continuation statements, all in such manner and in such places as may be
required by applicable law fully to preserve, maintain and protect the right,
title and interest of the Issuer and the interests of the Indenture Trustee in
the Receivables, the other property sold hereunder and in the proceeds
thereof. The Seller shall deliver (or cause to be delivered) to the Trustee
and the Indenture Trustee file-stamped copies of, or filing receipts for, any
document filed as provided above as soon as available following such filing.
It is understood and agreed, however, that no filings will be made to perfect
any security interest of the Issuer or the Indenture Trustee in the Seller's
interests in True Lease Equipment. The Issuer and the Indenture Trustee shall
cooperate fully with the Seller in connection with the obligations set forth
above and will execute any and all documents reasonably required to fulfill
the intent of this paragraph.
(b) Neither the Seller nor the Servicer shall change its name, identity
or corporate structure in any manner that would, could or might make any
financing statement or continuation statement filed in accordance with
paragraph (a) seriously misleading within the applicable provisions of the
UCC, unless it shall have given the Trustee and the Indenture Trustee at least
five days' prior written notice thereof and shall have promptly filed
appropriate amendments to all previously filed financing statements or
continuation statements.
(c) Each of the Seller and the Servicer shall have an obligation to give
the Trustee and the Indenture Trustee at least 60 days' prior written notice
of any relocation of its principal executive office or its "location" as
defined in Section 9-307 of the UCC if, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new
38
financing statement and shall promptly file any such amendment. The Servicer
shall at all times maintain each office from which it shall service
Receivables, and its principal executive office, within the United States of
America.
(d) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit: (i) the reader
thereof to know at any time the status of such Receivable, including payments
and recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Collection
Account in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so that, from and
after the time of sale under this Agreement of the Receivables, the Servicer's
master computer records (including any backup archives) that refer to a
Receivable shall indicate clearly the interest of the Issuer and the Indenture
Trustee in such Receivable and that such Receivable is owned by the Issuer and
has been pledged to JPMorgan Chase Bank, as Indenture Trustee. Indication of
the Issuer's and the Indenture Trustee's interest in a Receivable may be
deleted from or modified on the Servicer's computer systems when, and only
when, the related Receivable shall have been paid in full or repurchased.
(f) If at any time the Seller or the Servicer shall propose to sell,
grant a security interest in, or otherwise transfer any interest in equipment
receivables to any prospective purchaser, lender or other transferee, the
Servicer shall give to such prospective purchaser, lender or other transferee
computer tapes, records or printouts (including any restored from backup
archives) that, if they shall refer in any manner whatsoever to any
Receivable, shall indicate clearly that such Receivable has been sold and is
owned by the Issuer and has been pledged to the Indenture Trustee.
(g) The Servicer shall permit the Indenture Trustee and its agents at any
time during normal business hours to inspect, audit and make copies of and
abstracts from the Servicer's records regarding any Receivable.
(h) Upon request, the Servicer shall furnish to the Trustee or to the
Indenture Trustee, within five Business Days, a list of all Receivables (by
contract number and name of Obligor) then held as part of the Trust, together
with a reconciliation of such list to the Schedule of Receivables and to each
of the Servicer's Certificates furnished before such request indicating
removal of Receivables from the Trust.
(i) The Servicer shall deliver to the Trustee and the Indenture Trustee:
39
(1) promptly after the execution and delivery of this Agreement and
of each amendment hereto, an Opinion of Counsel either: (A) stating that,
in the opinion of such counsel, all financing statements and continuation
statements have been executed and filed that are necessary fully to
preserve and protect the interest of the Trustee and the Indenture
Trustee in the Receivables, and reciting the details of such filings or
referring to prior Opinions of Counsel in which such details are given,
or (B) stating that, in the opinion of such counsel, no such action shall
be necessary to preserve and protect such interest; and
(2) within 90 days after the beginning of each calendar year
beginning with the first calendar year beginning more than three months
after the Initial Cutoff Date, an Opinion of Counsel, dated as of a date
during such 90-day period, either: (A) stating that, in the opinion of
such counsel, all financing statements and continuation statements have
been executed and filed that are necessary fully to preserve and protect
the interest of the Trustee and the Indenture Trustee in the Receivables,
and reciting the details of such filings or referring to prior Opinions
of Counsel in which such details are given, or (B) stating that, in the
opinion of such counsel, no such action shall be necessary to preserve
and protect such interest.
Each Opinion of Counsel referred to in clause (1) or (2) shall specify
any action necessary (as of the date of such opinion) to be taken in the
following year to preserve and protect such interest.
(j) The Seller shall, to the extent required by applicable law, cause the
Certificates and the Notes to be registered with the Commission pursuant to
Section 12(b) or Section 12(g) of the Exchange Act within the time periods
specified in such sections.
SECTION 10.3. Notices. All demands, notices, directions, instructions and
communications upon or to the Seller, the Servicer, the Issuer, the Trustee,
the Indenture Trustee or the Rating Agencies under this Agreement shall be in
writing, personally delivered or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt: (a) in
the case of the Seller, to CNH Capital Receivables Inc., 100 South Saunders
Road, Lake Forest, Illinois 60045, Attention of: Treasurer (telephone (847)
735-9200 and facsimile (847) 955-4943, (b) in the case of the Servicer, to
Case Credit Corporation, 233 Lake Avenue, Racine, Wisconsin 53403, Attention:
Treasurer (telephone (262) 636-6011 and facsimile (262) 636-6284), (c) in the
case of the Issuer or the Trustee, at its Corporate Trust Office, (d) in the
case of the Indenture Trustee, at its Corporate Trust Office, (e) in the case
of Moody's, to Moody's Investors Service, Inc., ABS Monitoring Department, 99
Church Street, New York, New York 10007, (f) in the case of Standard & Poor's,
to Standard & Poor's Ratings Services, a division of McGraw-Hill Companies,
Inc., 55 Water Street, New York, New York 10041, Attention of Asset Backed
Surveillance Department, and (g) in the case of Fitch, to Fitch, Inc., 55 East
Monroe Street, Suite 3500, Chicago, IL 60603, Attention: ABS Monitoring -
40
Equipment Loans; or, as to each of the foregoing, at such other address as
shall be designated by written notice to the other parties.
SECTION 10.4. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 6.4 and 7.3 and as provided
in the provisions of this Agreement concerning the resignation of the
Servicer, this Agreement may not be assigned by the Seller or the Servicer.
SECTION 10.5. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Seller, the Servicer, the Issuer,
the Trustee, the Certificateholders, the Indenture Trustee and the
Noteholders, and nothing in this Agreement, whether express or implied, shall
be construed to give to any other Person any legal or equitable right, remedy
or claim in the Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
SECTION 10.6. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
SECTION 10.7. Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 10.8. Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 10.9. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
SECTION 10.10. Assignment to Indenture Trustee. The Seller hereby
acknowledges and consents to any mortgage, pledge, assignment and grant of a
security interest by the Issuer to the Indenture Trustee pursuant to the
Indenture for the benefit of the Noteholders of all right, title and interest
of the Issuer in, to and under the Receivables and/or the assignment of any or
all of the Issuer's rights and obligations hereunder to the Indenture Trustee,
and agrees that enforcement of a right or remedy hereunder by the Indenture
Trustee shall have the same force and effect as if the right or remedy had
been enforced or executed by the Issuer.
41
SECTION 10.11. Nonpetition Covenants. (a) Notwithstanding any prior
termination of this Agreement, the Servicer and the Seller shall not, prior to
the date that is one year and one day after the termination of this Agreement,
with respect to the Issuer, acquiesce, petition or otherwise invoke or cause
the Issuer to invoke the process of any court or governmental authority for
the purpose of commencing or sustaining a case against the Issuer under any
Federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Issuer or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Issuer. The
foregoing shall not limit the right of the Servicer and the Seller to file any
claim in or otherwise take any action with respect to any such insolvency
proceeding that was instituted against the Issuer by any Person other than the
Servicer or the Seller.
(b) Notwithstanding any prior termination of this Agreement, the Servicer
shall not, prior to the date that is one year and one day after the
termination of this Agreement, with respect to the Seller, acquiesce, petition
or otherwise invoke or cause the Seller to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Seller under any Federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Seller or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Seller. The foregoing shall not limit the right of the
Servicer to file any claim in or otherwise take any action with respect to any
such insolvency proceeding that was instituted against the Seller by any
Person other than the Servicer.
SECTION 10.12. Limitation of Liability of Trustee and Indenture Trustee.
(a) Notwithstanding anything contained herein to the contrary, this Agreement
has been countersigned by The Bank of New York, not in its individual capacity
but solely in its capacity as Trustee of the Issuer, and in no event shall The
Bank of New York, in its individual capacity or, except as expressly provided
in the Trust Agreement, any beneficial owner of the Issuer have any liability
for the representations, warranties, covenants, agreements or other
obligations of the Issuer hereunder or in any of the certificates, notices or
agreements delivered pursuant hereto, as to all of which recourse shall be had
solely to the assets of the Issuer.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been accepted by JPMorgan Chase Bank, not in its individual
capacity but solely as Indenture Trustee, and in no event shall JPMorgan Chase
Bank have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer.
SECTION 10.13. Conditions Precedent to Other Financing Transactions. The
Seller shall not enter into any receivables sale or other financing
transaction unless either the appropriate documents relating thereto contain
42
provisions substantially to the effect set out in Sections 11.17 and 11.19 of
the Indenture or such transaction otherwise shall have satisfied the Rating
Agency Condition.
(signature page follows)
43
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
CNH EQUIPMENT TRUST 2002-B
By: THE BANK OF NEW YORK,
not its individual capacity but solely
as Trustee of the Trust
By: /s/ Erwin Soriano
-----------------------------------------
Name: Erwin Soriano
Title: Assistant Treasurer
CNH CAPITAL RECEIVABLES INC.,
as Seller
By: /s/ Brian O'Keane
-----------------------------------------
Name: Brian O'Keane
Title: Assistant Treasurer
CASE CREDIT CORPORATION,
as Servicer
By: /s/ Brian O'Keane
-----------------------------------------
Name: Brian O'Keane
Title: Assistant Treasurer
Acknowledged and Accepted:
JPMorgan Chase Bank,
not in its individual capacity
but solely as Indenture Trustee
By: /s/ Jennifer H. Baran
------------------------------
Name: Jennifer H. Baran
Title: Vice President
S-1 Sale and Servicing Agreement
EXHIBIT A
to Sale and Servicing Agreement
FORM OF NOTEHOLDER'S
STATEMENT PURSUANT TO SECTION 5.10(a)
Payment Date: ______________________
(i) Amount of principal being paid on Notes:
A-1 Notes: __________ ($_____ per $1,000 original principal amount)
A-2 Notes: __________ ($_____ per $1,000 original principal amount)
A-3 Notes: __________ ($_____ per $1,000 original principal amount)
A-4 Notes: __________ ($_____ per $1,000 original principal amount)
Class B Notes: __________ ($_____ per $1,000 original principal amount)
(ii) Amount of interest being paid on Notes:
A-1 Notes: __________ ($_____ per $1,000 original principal amount)
A-2 Notes: __________ ($_____ per $1,000 original principal amount)
A-3 Notes: __________ ($_____ per $1,000 original principal amount)
A-4 Notes: __________ ($_____ per $1,000 original principal amount)
Class B Notes: __________ ($_____ per $1,000 original principal amount)
(iii) Pool Balance at end of the preceding Collection Period: _____
(iv) After giving effect to distributions on this Payment Date:
(a) (1) Outstanding Amount of A-1 Notes: _______
(2) Outstanding Amount of A-2 Notes: _______
(3) Outstanding Amount of A-3 Notes: _______
(4) Outstanding Amount of A-4 Notes: _______
(5) Outstanding Amount of Class B Notes: ________
(6) A-1 Note Pool Factor: _____
(7) A-2 Note Pool Factor: _____
A-1
(8) A-3 Note Pool Factor: _____
(9) A-4 Note Pool Factor: _____
(10) Class B Note Pool Factor: _____
(b) (1) Certificate Balance: __________
(2) Certificate Pool Factor: __________
(v) Amount of Servicing Fee: ____ ($_____ per $1,000 original
principal amount)
(vi) Amount of Administration Fee: ____ ($____ per $1,000 original
principal amount)
(vii) Aggregate Amount of Realized Losses for the
Collection Period: __________
(viii) Aggregate Purchase Amounts for the Collection Period: __________
(ix) Balance of Spread Account: __________
(x) Pre-funded Amount: __________
(xi) Balance of Principal Supplement Account:__________
(xii) Balance of Negative Carry Account: __________
(xiii) Amount of Net Swap Payments or Net Swap Receipts: __________
(xiv) Amount of Swap Termination Payments paid by the Issuer: __________
A-2
EXHIBIT B
to Sale and Servicing Agreement
FORM OF CERTIFICATEHOLDER'S
STATEMENT PURSUANT TO SECTION 5.10(A)
-------------------------------------
Payment Date: ______________________
(i) Amount of principal being paid or distributed:
(a) (1) A-1 Notes: __________
(2) A-2 Notes: __________
(3) A-3 Notes: __________
(4) A-4 Notes: __________
(5) Class B Notes: __________
(b) Certificates: ___________ ($_____ per $1,000 original
principal amount)
(c) Total: __________
(ii) Amount of interest being paid or distributed:
(a) (1) A-1 Notes: __________
(2) A-2 Notes: __________
(3) A-3 Notes: __________
(4) A-4 Notes: __________
(5) Class B Notes: __________
(b) Certificates: ___________ ($_____ per $1,000 original
principal amount)
(c) Total: __________
(iii) Pool Balance at end of the preceding Collection Period: _____
(iv) After giving effect to distributions on this Payment Date:
(a) (1) Outstanding Amount of A-1 Notes: _______
(2) Outstanding Amount of A-2 Notes: _______
(3) Outstanding Amount of A-3 Notes: _______
(4) Outstanding Amount of A-4 Notes: _______
(5) Outstanding Amount of Class B Notes: _______
(6) A-1 Note Pool Factor: _____
(7) A-2 Note Pool Factor: _____
B-1
(8) A-3 Note Pool Factor: _____
(9) A-4 Note Pool Factor: _____
(10) Class B Note Pool Factor: _____
(b) (1) Certificate Balance: __________
(2) Certificate Pool Factor: __________
(v) Amount of Servicing Fee: ____ ($_____ per $1,000 original principal
amount)
(vi) Amount of Administration Fee: ____ ($____ per $1,000 original
principal amount)
(vii) Aggregate amount of Realized Losses for the Collection
Period: __________
(viii) Aggregate Purchase Amounts for the Collection Period: __________
(ix) Balance of Spread Account: __________
(x) Pre-Funded Amount:__________
(xi) Balance of Negative Carry Account: __________
(xiii) Amount of Net Swap Payments or Net Swap Receipts: __________
((xiv) Amount of Swap Termination Payments paid by the Issuer: __________
B-2
EXHIBIT C
to Sale and Servicing Agreement
FORM OF SERVICER'S CERTIFICATE
------------------------------
The Bank of New York
101 Barclay Street, 12E
New York, New York 10286
Attention: Corporate Trust Administration - Asset Backed Finance Unit
JPMorgan Chase Bank
4 New York Plaza, 6th Floor
New York, New York 10004
Attention: Institutional Trust Services Group
CNH Capital Receivables Inc.
100 South Saunders Road
Lake Forest, Illinois 60045
Attention: Secretary
Fitch, Inc.
55 East Monroe Street,
Suite 3500,
Chicago, Illinois 60603
Attention: ABS Monitoring - Equipment Loans
Moody's Investors Service, Inc.
ABS Monitoring Department
99 Church Street
New York, New York 10007
Standard & Poor's Ratings Services,
a division of McGraw-Hill Companies, Inc.
55 Water Street
New York, New York 10041
Attention: Asset Backed Surveillance Department
C-1
Class A-1 Asset-Backed Notes
Class A-2 Asset-Backed Notes
Class A-3 Asset-Backed Notes
Class A-4 Asset-Backed Notes
Class B Asset-Backed Notes
Certificates
--------------------
Determination Date: __-
DISTRIBUTIONS
___-___ -------------
(1) Total Distribution Amount $________
(2) Servicing Fee $________
(3) Administration Fee $________
(4) Net Swap Payments $________
(5) Swap Termination Payments payable by the Issuer $________
(6) Class A Noteholder's Class Interest Amount: $________
o Interest on Class A Notes ($_______________)
o Class A Noteholder's Class Interest Shortfall, if any
($__________)
(7) Class B Noteholders' Class Interest Amount $________
o Interest on Class B Notes ($___________)
o Class B Noteholders' Class Interest Shortfall
($_____________)
(8) Class Principal Distributable Amount $________
o Class A Noteholders' Monthly Principal Distributable
Amount
o Class Principal Distributable Amount for each Class of
Class A Notes having priority of payment over such Class
of Class A Notes
o Outstanding principal amount of that Class
(9) Class A Noteholders' Monthly Principal Distributable
Amount $________
o Aggregate scheduled principal payments on the
Receivables received
during the Collection Period ($____________)
o Outstanding principal balance of the Class A Notes and
Certificates ($________)
C-2
o Pool Balance ($_________)
o Amounts on deposit in the Pre-Funding
Account ($__________)
o Outstanding amount of Class A Notes ($__________)
(10) A-1 Noteholders' Class Principal Distributable
Amount $________
o Class A Noteholders' Monthly Principal Distributable
Amount ($________)
o A-1 Noteholders' outstanding principal amount ($__________)
(11) A-2 Noteholders' Class Principal Distributable Amount $________
o Class A Noteholders' Monthly Principal Distributable
Amount ($__________)
o A-1 Noteholders' Class Principal Distributable
Amount ($__________)
o A-2 Noteholders' Outstanding Amount ($__________)
(12) A-3 Noteholders' Class Principal Distributable Amount $________
o Class A Noteholders' Monthly Principal Distributable
Amount ($__________)
o A-1 Noteholders' Class Principal Distributable
Amount ($__________)
o A-2 Noteholders' Class Principal
Distributable Amount ($__________)
o A-3 Noteholders' Outstanding Amount ($__________)
(13) A-4 Noteholders' Class Principal Distributable Amount $________
o Class A Noteholders' Monthly Principal Distributable
Amount ($__________)
o A-1 Noteholders' Class Principal Distributable
Amount ($__________)
o A-2 Noteholders' Class Principal
Distributable Amount ($__________)
o A-3 Noteholders' Class
Principal Distributable Amount ($__________)
o A-4 Noteholders' Outstanding Amount ($__________)
(14) Class B Noteholders' Class Principal Distributable Amount
(15) NOTEHOLDERS' DISTRIBUTABLE AMOUNT $________
(6)+(7)+(9)+(10)+(11)+(12) +(13) +(14)
(16) Deposit to Note Distribution Account $________
o Excess, if any, of Total Distribution Amount
(1), less the Administration Fee (3), less
the Servicing Fee (2*)
o Withdrawal from Spread Account pursuant to
Section 5.6(d) (see (25) below)
C-3
o Withdrawal from Spread Account pursuant to 5.6(e)
(see(26) below) o Withdrawal from Principal
Supplement Accounts pursuant to Section 5.9
o But not greater than the Noteholders'
Distributable Amount (15)
(17) Deposit to Spread Account pursuant to Section 5.5(b)(vi) $________
o Excess, if any, of Total Distribution Amount
(1), less the Administration Fee (3), less the Servicing
Fee (2*), less the Noteholders' Distributable Amount (15)
o But not greater than Item (21) below
(18) Deposit to Certificate Distribution Account $________
o Excess, if any, of Total Distribution Amount (1), less the
Administration Fee(3), less the Servicing Fee (2*), less the
Noteholders' Distributable Amount (15), less the Deposit to
Spread Account (17)
o But not greater than the Certificateholders' Distributable
Amount (18)
* The Servicing Fee (2) shall not be included if Case Credit or an
Affiliate of Case Credit is the Servicer.
SPREAD ACCOUNT
--------------
(19) Spread Account Balance as of Determination Date $________
(prior to any deposits or withdrawals)
(20) Specified Spread Account Balance (after all distributions
and adjustments) $________
(21) Limit on Deposit to the Spread Account $________
o The excess, if any, of the Specified Spread Account
Balance (20) less the Spread Account Balance as of
the Determination Date (prior to any deposits or
withdrawals) (19)
(22) Withdrawal from Spread Account distributed to Seller
(as permitted in Sections 5.6(b) and (c) $________
of the Sale and Servicing Agreement)
C-4
o The excess, if any, of the Spread Account Balance as of the
Determination Date (prior to any deposits or withdrawals) (19)
less the Specified Spread Account Balance (20)
o But zero, if (a) the sum of the Pool Balance (26) and the
Pre-Funded Amount as of the first day of the Collection Period;
is less than (b) the sum of the Note Balance and the Certificate
Balance
(23) Withdrawal from Spread Account pursuant to
Section 5.6(d) $________
to be deposited in the Note Distribution Account
o Excess, if any, of the sum of the Noteholders' Distributable
Amount (15), the Net Swap Payments (4) and the Swap Termination
Payments payable by the Issuer(5), less the Total Distribution
Amount (1), less the Administration Fee(3), less the Servicing
Fee (2*)
o But not Greater than the Spread Account Balance (19)
(24) Withdrawal from Spread Account pursuant to
Section 5.6(e) $________
to be deposited in the Note Distribution Account
o Excess, if any, of Class Principal Distributable Amount for any
Class of Notes for the applicable final scheduled maturity date
for such Class of Notes, less the Total Distribution Amount (1),
less the Class Principal Distributable Amount for each Class of
Notes having priority over such Class of Notes
o But not Greater than the Spread Account Balance (19)
(25) Final Spread Account Balance (19) + (21) - (22)
- (23) - (24) $________
MISCELLANEOUS
-------------
(26) Pool Balance at the beginning of this
Collection Period $________
(27) After giving effect to all distributions on the
Payment Date during this Collection Period:
(a) Outstanding Amount of A-1 Notes $________
A-1 Note Pool Factor (__._______)
(b) Outstanding Amount of A-2 Notes $________
A-2 Note Pool Factor (__.______)
(c) Outstanding Amount of A-3 Notes $________
A-3 Note Pool Factor (__.______)
(d) Outstanding Amount of A-4 Notes $________
A-4 Note Pool Factor (__.______)
(e) Outstanding Amount of Class B Notes $________
Class B Note Pool Factor (___.______)
(f) Outstanding Amount of Certificates $________
Certificate Pool Factor (___._______)
(28) Aggregate Purchase Amounts for the preceding
Collection Period $________
C-5
EXHIBIT D
to Sale and Servicing Agreement
FORM OF ASSIGNMENT
------------------
For value received, in accordance with and subject to the Sale and
Servicing Agreement dated as of November 1, 2002 (the "Sale and Servicing
Agreement") among the undersigned, Case Credit Corporation ("Case Credit") and
CNH Equipment Trust 2002-B (the "Issuer"), the undersigned does hereby sell,
assign, transfer set over and otherwise convey unto the Issuer, without
recourse, all of its right, title and interest in, to and under: (a) the
Initial Receivables, including all documents constituting chattel paper
included therewith, and all obligations of the Obligors thereunder, including
all moneys paid thereunder on or after the Initial Cutoff Date, (b) the
security interests in the Financed Equipment granted by Obligors pursuant to
the Initial Receivables and any other interest of the undersigned in such
Financed Equipment, (c) any proceeds with respect to the Initial Receivables
from claims on insurance policies covering Financed Equipment or Obligors, (d)
the Liquidity Receivables Purchase Agreements (only with respect to Case Owned
Contracts or NH Owned Contracts included in the Initial Receivables) and the
Purchase Agreements, including the right of the undersigned to cause Case
Credit or NH Credit, as the case may be, to repurchase Receivables from the
undersigned under the circumstances described therein, (e) any proceeds from
recourse to Dealers with respect to the Initial Receivables other than any
interest in the Dealers' reserve accounts maintained with Case Credit or with
NH Credit, (f) any Financed Equipment that shall have secured an Initial
Receivable and that shall have been acquired by or on behalf of the Trust, (g)
all funds on deposit from time to time in the Trust Accounts, including the
Spread Account Initial Deposit, any Principal Supplement Account Deposit, the
Negative Carry Account Initial Deposit and the Pre-Funded Amount, and in all
investments and proceeds thereof (including all income thereon), (h) any True
Lease Equipment that is subject to any Initial Receivable, and (i) the
proceeds of any and all of the foregoing. The foregoing sale does not
constitute and is not intended to result in any assumption by the Issuer of
any obligation of the undersigned to the Obligors, insurers or any other
person in connection with the Initial Receivables, Receivables Files, any
insurance policies or any agreement or instrument relating to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the Sale
and Servicing Agreement and is to be governed in all respects by the Sale and
Servicing Agreement. Capitalized terms used herein and not otherwise defined
shall have the meanings assigned to them in the Sale and Servicing Agreement.
D-1
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed as of November 1, 2002.
CNH CAPITAL RECEIVABLES INC.,
By: _____________________________________
Name: ___________________________________
Title: __________________________________
D-2
EXHIBIT E
to Sale and Servicing Agreement
FORM OF SUBSEQUENT TRANSFER ASSIGNMENT
--------------------------------------
For value received, in accordance with and subject to the Sale and
Servicing Agreement dated as of November 1, 2002 (the "Sale and Servicing
Agreement") among CNH Equipment Trust 2002-B, a Delaware statutory trust (the
"Issuer"), CNH Capital Receivables Inc., a Delaware corporation (the
"Seller"), and Case Credit Corporation, a Delaware corporation ("Case
Credit"), the Seller does hereby sell, transfer, assign, set over and
otherwise convey to the Issuer, without recourse, all of its right, title and
interest in, to and under: (a) the Subsequent Receivables, with an aggregate
Contract Value equal to $[ ], listed on Schedule A hereto, including all
documents constituting chattel paper included therewith, and all obligations
of the Obligors thereunder including all moneys paid thereunder on or after
the Subsequent Cutoff Date, (b) the security interests in the Financed
Equipment granted by Obligors pursuant to such Subsequent Receivables and any
other interest of the Seller in such Financed Equipment, (c) any proceeds with
respect to such Subsequent Receivables from claims on insurance policies
covering Financed Equipment or Obligors, (d) the Liquidity Receivables
Purchase Agreements (only with respect to Subsequent Receivables purchased by
the Seller pursuant to those Agreements) and the Purchase Agreements,
including the right of the Seller to cause Case Credit or NH Credit, as the
case may be, to repurchase Subsequent Receivables from the Seller under the
circumstances described therein, (e) any proceeds from recourse to Dealers
with respect to such Subsequent Receivables other than any interest in the
Dealers' reserve accounts maintained with Case Credit or NH Credit, (f) any
Financed Equipment that shall have secured any such Subsequent Receivables and
that shall have been acquired by or on behalf of the Trust, (g) any True Lease
Equipment that is subject to any Subsequent Receivable, and (h) the proceeds
of any and all of the foregoing. The foregoing sale does not constitute and is
not intended to result in any assumption by the Issuer of any obligation of
the Seller to the Obligors, insurers or any other person in connection with
such Subsequent Receivables, Receivable Files, any insurance policies or any
agreement or instrument relating to any of them.
This Subsequent Transfer Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the Seller contained
in the Sale and Servicing Agreement (including the Officers' Certificate of
the Seller accompanying this Agreement) and is to be governed in all respects
by the Sale and Servicing Agreement. Capitalized terms used but not otherwise
defined herein shall have the meanings assigned to them in the Sale and
Servicing Agreement.
E-1
IN WITNESS WHEREOF, the undersigned has caused this Subsequent Transfer
Assignment to be duly executed as of -------------------, -----.
CNH CAPITAL RECEIVABLES INC.,
By: _____________________________________
Name: ___________________________________
Title: __________________________________
E-2
SCHEDULE A
to Subsequent Transfer Assignment
SCHEDULE OF SUBSEQUENT RECEIVABLES
----------------------------------
[Attached]
ANNEX A
to Subsequent Transfer Assignment
OFFICERS' CERTIFICATE
---------------------
We, the undersigned officers of CNH Capital Receivables Inc. (the
"Company"), do hereby certify, pursuant to Section 2.2(b)(xv) of the Sale and
Servicing Agreement dated as of November 1, 2002 among the Company, CNH
Equipment Trust 2002-B and Case Credit Corporation (the "Agreement"), that (i)
all of the conditions precedent to the transfer to the Issuer of the
Subsequent Receivables listed on Schedule A to the Subsequent Transfer
Assignment delivered herewith, and the other property and rights related to
such Subsequent Receivables as described in Section 2.2(a) of the Agreement,
have been satisfied on or prior to the related Subsequent Transfer Date 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 Receivables shall be true and correct as of the date hereof with respect
to the Subsequent Receivables listed on the aforementioned Schedule A.
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Agreement.
IN WITNESS WHEREOF, the undersigned have caused this certificate to be
duly executed this _____day of _____________, ______.
By: ______________________________________
Name: _______________________________
Title: ______________________________
By: ______________________________________
Name: _______________________________
Title: ______________________________
EXHIBIT F
to Sale and Servicing Agreement
FORM OF ACCOUNTANTS' LETTER IN CONNECTION
WITH THE SUBSEQUENT TRANSFER ASSIGNMENT PURSUANT TO
SECTION 2.2(b)(xiv) OF THE SALE AND SERVICING AGREEMENT
-------------------------------------------------------
[Letterhead of Deloitte &Touche]
----------------, ------
CNH Capital Receivables Inc.
100 South Saunders Road
Lake Forest, Illinois 60045
CNH Equipment Trust 2002-B
c/o The Bank of New York
5 Penn Plaza, 16th Floor
New York, New York 10001
JPMorgan Chase Bank
4 New York Plaza, 6th Floor
New York, New York 10004
Attention: Institutional Trust Services Group
The Bank of New York
5 Penn Plaza, 16th Floor
New York, New York 10001
Dear Ladies and Gentlemen:
This letter is issued at the request of CNH Capital Receivables Inc. (the
"Seller") with respect to the sale of certain retail receivables (the
"Subsequent Receivables") to the CNH Equipment Trust 2002-B (the "Trust")
pursuant to the Sale and Servicing Agreement dated as of November 1, 2002 (the
"Sale and Servicing Agreement") among the Trust, the Seller and Case Credit
Corporation (the "Servicer"). The sale of the Subsequent Receivables is
described in the prospectus dated November 8, 2002 and the prospectus
supplement dated November 8, 2002 (together, the "Prospectus"), which relates
to the offering by the Trust of 1.40625% Class A-1 Asset Backed Notes,
1.86000% Class A-2 Asset Backed Notes and Floating Rate Class A-3 Asset Backed
Notes, Floating Rate Class A-4 Asset Backed Notes and 4.12000% Class B Asset
Backed Notes (collectively, the "Notes") and the 4.12000% Asset Backed
Certificates (the "Certificates"). Capitalized terms used herein and not
Page 2
________________, _______
otherwise defined have the meaning described in the Prospectus or the Sale and
Servicing Agreement, as applicable. In connection therewith, we performed or
have previously performed certain agreed upon procedures as specified in the
items below:
1. As previously communicated in our letter to the Seller, the Trust,
____________________, the Indenture Trustee and the Trustee dated
_________, _______ relating to the sale of certain retail receivables
(the "Initial Receivables") and the offering of the Notes and the
Certificates, we performed several procedures based on a computer data
file (the "Initial File") received from the Servicer, including the
following:
a. We read certain fields on the Initial File to determine
whether the data pertaining to the Initial Receivables
complied with the selection criteria as noted in our previous
letter.
b. Proved the arithmetic accuracy of the Aggregate Contract Value
and the related percentage of Initial Receivables coded as
representing construction equipment and the Total Aggregate
Contract Value of the Initial Receivables as shown on Schedule
B.
c. Proved the arithmetic accuracy of the Weighted Average
Original Term of the Initial Receivables as shown in Schedule
B.
2. On ______________, _____, we obtained a computer data file (the
"Subsequent File") produced by and represented by the Servicer to
contain the list of the Subsequent Receivables. The Subsequent File was
received directly by Deloitte & Touche from the Servicer. By use of
data retrieval software, we have performed the following with respect
to the information contained in the Subsequent File:
a. We read certain fields on the Subsequent File to determine
whether the data relating to the Subsequent Receivables
complied with selection criteria 1, 2 and 4 as shown on
Schedule A. For purposes of selection criteria 3, as shown on
Schedule A, we read certain fields from the Initial File and
Subsequent File to aggregate the total Contract Value for each
account number for the purpose of determining the Contract
Value for each Obligor. The total Contract Value for each
account number was then compared to the aggregate Contract
Value to determine if the selection criteria was achieved.
b. Proved the arithmetic accuracy of the Aggregate Contract Value
and the related percentage of the Subsequent Receivables coded
Page 3
________________, _______
as representing construction and the Total Aggregate Contract
Value of the Subsequent Receivables as shown on Schedule B.
c. Proved the arithmetic accuracy of the Weighted Average
Original Term of the Subsequent Receivables as shown in
Schedule B.
3. We proved the arithmetic accuracy of the columnar totals for Aggregate
Contract Value of construction equipment and the Total Aggregate
Contract Value as shown on Schedule B.
4. We proved the arithmetic accuracy of the percent of total column as
shown in 1 on Schedule B by dividing the amount in the Total Aggregate
Contract Value of construction equipment column by the amount in the
Total Aggregate Contract Value column. We also proved the arithmetic
accuracy of the Weighted Average Original Term as shown in 2 on
Schedule B by summing the products of Total Aggregate Contract Value
times Weighted Average Original Term for the Initial Receivables and
the Subsequent Receivables and dividing the resulting sum by the
columnar total of the Total Aggregate Contract Value.
The foregoing procedures do not constitute an audit conducted in
accordance with generally accepted auditing standards, and, therefore, we are
unable to and do not express an opinion on any individual balances or
summaries of selected transactions specifically set forth in this letter.
Also, these procedures would not necessarily reveal matters of significance
with respect to the findings described herein. Accordingly, we make no
representations regarding the sufficiency of the foregoing procedures for your
purposes of for questions of legal interpretation. Had we performed additional
procedures, other matters might have come to our attention that would have
been reported to you. Further, we have addressed ourselves solely to the
foregoing data in the Sale and Servicing Agreement and the Prospectus and make
no representations regarding the adequacy of disclosure regarding whether any
material facts have been omitted.
This letter is solely for the information of the addressees and is not
to be used, circulated, quoted or otherwise referred to for any other purpose
including, but not limited to, the purchase or sale of Notes or Certificates,
nor is it to be referred to in any document. Furthermore, we undertake no
responsibility to update this letter for events and circumstances occurring
after the date of this letter.
Very truly yours,
Deloitte & Touche
SCHEDULE A
to Accountant's Letter
Page 4
_______________, ____
Selection Criteria Results
------------------ -------
1. No Subsequent Receivables was more than 90 days past due as of the
applicable Subsequent Cutoff Date.
2. Each Subsequent Receivable has a Statistical Contract Value as of the
Subsequent Cutoff Date that (when combined with the Statistical
Contract Value of any other Receivables with the same or an affiliated
Obligor) does not exceed 1% of the aggregate Contract Value of all
Receivables.
3. Each Subsequent Receivable has a remaining term to maturity (i.e., the
period from but excluding the applicable Subsequent Cutoff Date to and
including the Receivables' maturity date) of not more than 72 months.
SCHEDULE B
to Accountant's Letter
Page 5
_______________, ____
1. Percentage of principal balance of the Receivables that represents
construction equipment:
Aggregate
Contract Value of Construction
Construction Total Aggregate Equipment
Equipment Contract Value Percent of Total
--------- -------------- ----------------
Initial Receivables $ $ %
Subsequent Receivables $ $ %
Total Receivables $ $ %
2. Weighted Average Original Term of the Receivables in the Trust.
Weighted
Total Aggregate Average Original
Contract Value Term
--------------- -----------------
Initial Receivables $_____ _____ months
Subsequent Receivables $_____ _____ months
Total Receivables $_____ _____ months
As noted above, the Weighted Average Original Term does not exceed 55.0
months as required by the Sale and Servicing Agreement.
Schedule P
1. General. The Sale and Servicing Agreement creates, or with
respect to the Receivables that are Subsequent Receivables upon the transfer
of such Subsequent Receivables pursuant to the Subsequent Transfer Assignment
will create, a valid and continuing security interest (as defined in the
applicable UCC) in all of CNHCR's right, title and interest in, to and under
(i) the Receivables, (ii) the Financed Equipment granted by Obligors pursuant
to the Receivables and (iii) the Liquidity Receivables Purchase Agreements
(only with respect to Case Owned Contracts or NH Owned Contracts included in
the Receivables) in favor of the Issuer, which, (a) is enforceable upon
execution of the Sale and Servicing Agreement against creditors of and
purchasers from CNHCR, as such enforceability may be limited by applicable
Debtor Relief Laws, now or hereafter in effect, and by general principles of
equity (whether considered in a suit at law or in equity), and (b) upon filing
of the financing statements described in clause 4 below will be prior to all
other Liens (other than Liens permitted pursuant to clause 5 below).
2. Characterization. The Receivables constitute "tangible chattel
paper" within the meaning of UCC Section 9-102. The rights granted under the
agreements described in clause 1 (ii) and (iii) constitute "general
intangibles" within the meaning of UCC Section 9-102. CNHCR has taken all
steps necessary to perfect its security interest in the property securing the
Receivables.
3. Creation. Immediately prior to the conveyance of the Receivables
pursuant to the Sale and Servicing Agreement, CNCHR own and has good and
marketable title to, or has a valid security interest in, the Receivables free
and clear of any Lien, claim or encumbrance of any Person.
4. Perfection. CNHCR has caused or will have caused, within ten
days of the Closing Date, the filing of all appropriate financing statements
in the proper filing office in the appropriate jurisdictions under applicable
law in order to perfect the security interest granted to the Issuer under the
Sale and Servicing Agreement in the Receivables. With respect to the
Receivables that constitute tangible chattel paper, the Servicer or a
Subservicer, as custodian, received possession of such original tangible
chattel paper after the Issuer received a written acknowledgment from such
custodian that it is acting solely as agent of the Indenture Trustee. All
financing statements filed under this clause 4 contain a statement that "A
purchase of or security interest in any collateral described in this financing
statement will violate the rights of the Secured Party".
5. Priority. Other than the security interests granted to the
Issuer pursuant to the Sale and Servicing Agreement and the security interests
granted under the Liquidity Receivables Purchase Agreements, which have been
released, CNHCR has not pledged, assigned, sold, granted a security interest
in, or otherwise conveyed any of the Receivables. CNHCR has not authorized the
filing of and is not aware of any financing statements against CNHCR that
include a description of collateral covering the Receivables other than any
financing statement (i) relating to the security interests granted to the
Issuer under the Sale and Servicing Agreement and the security interests
granted under the Liquidity Receivables Purchase Agreements, which have been
released (ii) that has been terminated, or (iii) that has been granted
pursuant to the terms of the Basic Documents. None of the tangible chattel
paper that constitutes or evidences the Receivables has any marks or notations
indicating that they have pledged, assigned or otherwise conveyed to any
Person other than the Indenture Trustee. CNHCR is not aware of any judgment,
ERISA or tax lien filings against it.
6. Survival of Perfection Representations. Notwithstanding any
other provision of the Sale and Servicing Agreement or any other Basic
Document, the Perfection Representations contained in this Schedule P shall be
continuing, and remain in full force and effect.
7. No Waiver. The parties to the Sale and Servicing Agreement: (i)
shall not, without obtaining a confirmation of the then-current rating of the
Notes, waive any of the representations and warranties in this Schedule P (the
"Perfection Representations"); (ii) shall provide the Ratings Agencies with
prompt written notice of any breach of the Perfection Representations, and
shall not, without obtaining a confirmation of the then-current rating of the
Notes (as determined after any adjustment or withdrawal of the ratings
following notice of such breach) waive a breach of any of the Perfection
Representations.
8. Servicer to Maintain Perfection and Priority. The Servicer
covenants that, in order to evidence the interests of CNHCR and Issuer under
this Agreement, Servicer shall take such action, or execute and deliver such
instruments (other than effecting a Filing (as defined below), unless such
Filing is effected in accordance with this paragraph) as may be necessary or
advisable (including, without limitation, such actions as are requested by
Issuer) to maintain and perfect, as a first priority interest, Issuer's
security interest in the Receivables. Servicer shall, from time to time and
within the time limits established by law, prepare and present to Issuer for
Issuer to authorize (based in reliance on the Opinion of Counsel hereinafter
provided for) the Servicer to file, all financing statements, amendments,
continuations, financing statements in lieu of a continuation statement,
terminations, partial terminations, releases or partial releases, or any other
filings necessary or advisable to continue, maintain and perfect the Issuer's
security interest in the Receivables as a first-priority interest (each a
"Filing"). Servicer shall present each such Filing to the Issuer together with
(x) an Opinion of Counsel to the effect that such Filing is (i) consistent
with grant of the security interest to the Issuer pursuant to the Granting
Clause of this Agreement, (ii) satisfies all requirements and conditions to
such Filing in this Agreement and (iii) satisfies the requirements for a
Filing of such type under the Uniform Commercial Code in the applicable
jurisdiction (or if the Uniform Commercial Code does not apply, the applicable
statute governing the perfection of security interests), and (y) a form of
authorization for Issuer's signature. Upon receipt of such Opinion of Counsel
and form of authorization, Issuer shall promptly authorize in writing Servicer
to, and Servicer shall, effect such Filing under the Uniform Commercial Code
without the signature of CNHCR or Issuer where allowed by applicable law.
Notwithstanding anything else in the Indenture to the contrary, the Servicer
shall not have any authority to effect a Filing without obtaining written
authorization from the Issuer in accordance with this paragraph (c).