Exhibit 4.4
CNH EQUIPMENT TRUST 2002-B
CASE PURCHASE AGREEMENT
between
Case Credit Corporation
and
CNH Capital Receivables Inc.
Dated as of November 1, 2002
TABLE OF CONTENTS
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Page
ARTICLE I Certain Definitions............................................2
SECTION 1.1. Definitions.........................................2
SECTION 1.2. Other Definitional Provisions.......................2
ARTICLE II Conveyance of Case Receivables.................................3
SECTION 2.1. Conveyance of Case Purchased Contracts..............3
SECTION 2.2. Conveyance of Subsequent Case Receivables...........3
SECTION 2.3. Intention of the Parties............................4
SECTION 2.4. The Closing.........................................5
SECTION 2.5. Payment of the Purchase Price.......................5
ARTICLE III Representations and Warranties.................................5
SECTION 3.1. Representations and Warranties of CNHCR.............5
SECTION 3.2. Representations and Warranties of Case Credit.......6
ARTICLE IV Conditions....................................................13
SECTION 4.1. Conditions to Obligation of CNHCR..................13
SECTION 4.2. Conditions to Obligation of Case Credit............15
ARTICLE V Covenants of Case Credit......................................16
SECTION 5.1. Protection of Right, Title and Interest............16
SECTION 5.2. Other Liens or Interests...........................17
SECTION 5.3. Chief Executive Office.............................17
SECTION 5.4. Costs and Expenses.................................17
SECTION 5.5. Indemnification....................................17
SECTION 5.6. Transfer of Subsequent Case Receivables............18
ARTICLE VI Miscellaneous Provisions......................................18
SECTION 6.1. Obligations of Case Credit.........................18
SECTION 6.2. Repurchase Events..................................18
SECTION 6.3. CNHCR Assignment of Repurchased Receivables........18
SECTION 6.4. Trust..............................................18
SECTION 6.5. Amendment..........................................19
SECTION 6.6. Accountants' Letters...............................19
SECTION 6.7. Waivers............................................20
SECTION 6.8. Notices............................................20
SECTION 6.9. Costs and Expenses.................................20
SECTION 6.10. Representations of Case Credit and CNHCR...........20
SECTION 6.11. Confidential Information...........................20
SECTION 6.12. Headings and Cross-References......................20
SECTION 6.13. Governing Law......................................21
SECTION 6.14. Counterparts.......................................21
SECTION 6.15. Severability.......................................21
EXHIBITS
EXHIBIT A Form of Case Assignment
EXHIBIT B Form of Case Subsequent Transfer Assignment
SCHEDULES
SCHEDULE P Perfection Representation and Warranties
ii
CASE PURCHASE AGREEMENT (as amended or supplemented from
time to time, this "Agreement") dated as of November 1, 2002
between CASE CREDIT CORPORATION, a Delaware corporation ("Case
Credit"), and CNH CAPITAL RECEIVABLES INC., a Delaware corporation
("CNHCR").
RECITALS
WHEREAS, in the regular course of its business, Case
Credit purchases, directly and indirectly, from equipment dealers
and brokers, and directly originates, Contracts; and
WHEREAS, in the regular course of its business, Case
Credit purchases from Case Corporation certain Contracts
originated by Case Corporation in the ordinary course of business;
and
WHEREAS, Case Credit and CNHCR wish to set forth the
terms pursuant to which: (1) Contracts having an aggregate
Contract Value of approximately $60,375,731.64 (the "Case
Purchased Contracts") as of Initial Cutoff Date and Case Credit's
right, title and interest in any True Lease Equipment related to
such Contracts are to be sold by Case Credit to CNHCR on the date
hereof and (2) certain Subsequent Case Receivables and Case
Credit's right, title and interest in any True Lease Equipment
related to such Subsequent Case Receivables are to be sold by Case
Credit to CNHCR from time to time on each Subsequent Transfer
Date; and
WHEREAS, CNHCR, as of the Initial Cutoff Date, owned
Contracts previously purchased from Case Credit pursuant to an
Amended and Restated Receivables Purchase Agreement dated as of
December 15, 2000 (as amended from time to time, the "Case
Liquidity Receivables Purchase Agreement") between Case Credit and
CNHCR, having an aggregate Contract Value of approximately
$419,214,696.91 (the "Case Owned Contracts", and together with the
Case Purchased Contracts, the "Initial Case Receivables"); and
WHEREAS, the Initial Case Receivables and the Subsequent
Case Receivables (collectively, the "Case Receivables"), the NH
Receivables and any True Lease Equipment related to such Case
Receivables or NH Receivables will be transferred by CNHCR,
pursuant to the Sale and Servicing Agreement, to CNH Equipment
Trust 2002-B (the "Trust"), which Trust will issue Asset Backed
Certificates representing non-assessable, fully paid, undivided
interests in, and 1.40625% Class A-1 Asset Backed Notes, 1.86000%
Class A-2 Asset Backed Notes, Floating Rate Class A-3 Asset Backed
Notes, Floating Rate Class A-4 Asset Backed Notes and 4.12000%
Class B Asset Backed Notes collateralized by, the Receivables and
the other property of the Trust; and
WHEREAS, Case Credit and CNHCR wish to set forth herein
certain representations, warranties, covenants and indemnities of
Case Credit with respect to the Case Receivables for the benefit
of CNHCR, the Trust, the Noteholders and the Certificateholders.
NOW, THEREFORE, in consideration of the foregoing, other
good and valuable consideration and the mutual terms and covenants
contained herein the parties hereto agree as follows:
ARTICLE I
Certain Definitions
SECTION 1.1. Definitions. Capitalized terms used herein and not
otherwise defined herein are defined in Appendix A to the
Indenture dated as of the date hereof between CNH Equipment Trust
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.
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ARTICLE II
Conveyance of Case Receivables
SECTION 2.1. Conveyance of Case Purchased Contracts. In
consideration of CNHCR's payment of $479,590,428.55 (the "Initial
Case Purchase Price") in the manner set out in Section 2.5(a),
Case Credit does hereby sell, transfer, assign, set over and
otherwise convey to CNHCR, without recourse (subject to the
obligations herein), all of its right, title, interest and, with
respect to any Contracts that are Leases, obligations in, to and
under (collectively, the "Initial Case Assets"):
(i) the Case Purchased Contracts, including all documents
constituting chattel paper included therewith, and all obligations
of the Obligors thereunder, including all moneys paid thereunder
on or after the Initial Cutoff Date;
(ii) the security interests in the Financed Equipment granted by
Obligors pursuant to the Case Purchased Contracts and any other
interest of Case Credit in such Financed Equipment;
(iii) any proceeds with respect to the Case Purchased Contracts
from claims on insurance policies covering Financed Equipment or
Obligors;
(iv) any proceeds from recourse to Dealers with respect to the
Case Purchased Contracts other than any interest in the Dealers'
reserve accounts maintained with Case Credit;
(v) any Financed Equipment that shall have secured the Case
Purchased Contracts and that shall have been acquired by or on
behalf of CNHCR;
(vi) any True Lease Equipment that is subject to any Case
Purchased Contract; and
(vii) the proceeds of any and all of the foregoing.
SECTION 2.2. Conveyance of Subsequent Case Receivables. Subject to
the conditions set forth in Section 4.1(b), in consideration of
CNHCR's delivery on the related Subsequent Transfer Date to or
upon the order of Case Credit of the related Subsequent Case
Purchase Price pursuant to Section 2.5, Case Credit does hereby
sell, transfer, assign, set over and otherwise convey to CNHCR,
without recourse (subject to the obligations herein), all of its
right, title, interest and, with respect to any Contracts that are
Leases, obligations in, to and under (collectively, the
"Subsequent Case Assets"; and together with the Initial Case
Assets, the "Case Assets"):
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(i) the Subsequent Case Receivables listed on Schedule A to the
related Case Subsequent Transfer Assignment, including all
documents constituting chattel paper included therewith, and all
obligations of the Obligors thereunder, including all moneys paid
thereunder on or after the related Subsequent Cutoff Date;
(ii) the security interests in the Financed Equipment granted by
Obligors pursuant to such Subsequent Case Receivables and any
other interest of Case Credit in such Financed Equipment;
(iii) any proceeds with respect to such Subsequent Case
Receivables from claims on insurance policies covering Financed
Equipment or Obligors;
(iv) any proceeds with respect to such Subsequent Case Receivables
from recourse to Dealers other than any interest in the Dealers'
reserve accounts maintained with Case Credit;
(v) any Financed Equipment that shall have secured any such
Subsequent Case Receivable and that shall have been acquired by or
on behalf of CNHCR;
(vi) any True Lease Equipment that is subject to any Subsequent
Case Receivable; and
(vii) the proceeds of any and all of the foregoing.
SECTION 2.3. Intention of the Parties. The parties to this
Agreement intend that the transactions contemplated hereby shall
be, and shall be treated as, a purchase by CNHCR and a sale by
Case Credit of the Case Purchased Contracts and the Subsequent
Case Receivables and any True Lease Equipment related to such Case
Purchased Contracts or Subsequent Case Receivables, as the case
may be, and not as a lending transaction. The foregoing sale,
assignment, transfer and conveyance does not constitute, and is
not intended to result in a creation or assumption by CNHCR of,
any obligation or liability with respect to any Case Purchased
Contract or any Subsequent Case Receivable, nor shall CNHCR be
obligated to perform or otherwise be responsible for any
obligation of Case Credit or any other Person in connection with
the Case Purchased Contracts or the Subsequent Case Receivables or
under any agreement or instrument relating thereto, including any
contract or any other obligation to any Obligor, except that CNHCR
accepts any Contracts that are Leases subject to (and assumes) the
covenants benefiting the Obligors under such Leases.
If (but only to the extent) that the transfer of the Case Assets
hereunder is characterized by a court or other governmental
authority as a loan rather than a sale, Case Credit shall be
deemed hereunder to have granted to CNHCR a security interest in
all of Case Credit's right, title and interest in and to the Case
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Assets. Such security interest shall secure all of Case Credit's
obligations (monetary or otherwise) under this Agreement and the
other Basic Documents to which it is a party, whether now or
hereafter existing or arising, due or to become due, direct or
indirect, absolute or contingent. CNHCR shall have, with respect
to the property described in Section 2.1 and Section 2.2, and in
addition to all the other rights and remedies available to CNHCR
under this Agreement and applicable law, all the rights and
remedies of a secured party under any applicable UCC, and this
Agreement shall constitute a security agreement under applicable
law.
SECTION 2.4. The Closing. The sale and purchase of the Case
Purchased Contracts shall take place at a closing at the offices
of Mayer, Brown, Rowe & Maw, 190 South LaSalle Street, Chicago,
Illinois 60603 on the Closing Date, simultaneously with the
closings under: (a) the NH Purchase Agreement, (b) the Sale and
Servicing Agreement, (c) the Trust Agreement, (d) the
Administration Agreement and (e) the Indenture.
SECTION 2.5. Payment of the Purchase Price.
(a) Case Purchased Contracts. The Initial Case Purchase Price is
payable as follows: (i) partially in cash on the Closing Date, and
(ii) the remainder shall be deemed to have been paid by CNHCR to
Case Credit and returned by Case Credit to CNHCR as a contribution
to capital.
(b) Subsequent Case Receivables. As consideration for the
conveyance of Subsequent Case Receivables pursuant to Section 2.2,
CNHCR shall pay or cause to be paid to Case Credit on each
Subsequent Transfer Date an amount (a "Subsequent Case Purchase
Price") equal to the aggregate Contract Value of the Subsequent
Case Receivables as of the related Subsequent Cutoff Date, plus
any premium or minus any discount agreed upon by Case Credit and
CNHCR. Any Subsequent Case Purchase Price shall be payable as
follows: (i) cash in the amount released to CNHCR in respect of
the Subsequent Case Receivables from the Pre-Funding Account
pursuant to Section 5.7(a) of the Sale and Servicing Agreement
shall be paid to Case Credit on the related Subsequent Transfer
Date; and (ii) the balance shall be paid in cash as and when
amounts are released to, or otherwise realized by, CNHCR from the
Spread Account, the Negative Carry Account, and the Principal
Supplement Account in accordance with the Sale and Servicing
Agreement, or otherwise are available for such purpose.
ARTICLE III
Representations and Warranties
SECTION 3.1. Representations and Warranties of CNHCR. CNHCR hereby
represents and warrants to Case Credit as of the date hereof and
as of the Closing Date:
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(a) Organization and Good Standing. CNHCR has been duly organized
and is validly existing as a corporation in good standing under
the laws of the State of Delaware, with the power and authority to
own its properties and to conduct its business as such properties
are currently owned and such business is presently conducted, and
had at all relevant times, and has, the power and authority to
acquire, own and sell the Case Receivables.
(b) Due Qualification. CNHCR is duly qualified to do business as a
foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which
the ownership or lease of property or the conduct of its business
shall require such qualifications.
(c) Power and Authority. CNHCR has the power and authority to
execute and deliver this Agreement and to carry out its terms; and
the execution, delivery and performance of this Agreement have
been duly authorized by CNHCR by all necessary corporate action.
(d) Binding Obligation. This Agreement constitutes a legal, valid
and binding obligation of CNHCR enforceable against CNHCR in
accordance with its terms.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms
hereof do not conflict with, result in any breach of any of the
terms and provisions of, or constitute (with or without notice or
lapse of time) a default under, the certificate of incorporation
or by-laws of CNHCR, or any indenture, agreement or other
instrument to which CNHCR is a party or by which it is bound; or
result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement
or other instrument (other than the Sale and Servicing Agreement
and the Indenture); or violate any law or, to the best of CNHCR's
knowledge, any order, rule or regulation applicable to CNHCR of
any court or of any Federal or State regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over CNHCR or its properties.
(f) No Proceedings. There are no proceedings or investigations
pending or, to CNHCR's best knowledge, threatened, before any
court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over CNHCR or its
properties: (i) asserting the invalidity of this Agreement, (ii)
seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or (iii) seeking any determination
or ruling that could reasonably be expected to materially and
adversely affect the performance by CNHCR of its obligations
under, or the validity or enforceability of, this Agreement.
SECTION 3.2. Representations and Warranties of Case Credit. (a)
Case Credit hereby represents and warrants to CNHCR as of the date
hereof and as of the Closing Date:
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(i) Organization and Good Standing. Case Credit has been duly
organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with the power
and authority to own its properties and to conduct its business as
such properties are currently owned and such business is presently
conducted, and had at all relevant times, and has, the power and
authority to acquire, own and sell the Case Receivables.
(ii) Due Qualification. Case Credit is duly qualified to do
business as a foreign corporation in good standing, and has
obtained all necessary licenses and approvals, in all
jurisdictions in which the ownership or lease of property or the
conduct of its business shall require such qualifications.
(iii) Power and Authority. Case Credit has the power and authority
to execute and deliver this Agreement and to carry out its terms;
Case Credit has full power and authority to sell and assign the
property to be sold and assigned to CNHCR hereby and has duly
authorized such sale and assignment to CNHCR by all necessary
corporate action; and the execution, delivery and performance of
this Agreement have been, and the execution, delivery and
performance of each Case Subsequent Transfer Assignment have been
or will be on or before the related Subsequent Transfer Date, duly
authorized by Case Credit by all necessary corporate action.
(iv) Binding Obligation. This Agreement constitutes, and each Case
Subsequent Transfer Assignment when executed and delivered by Case
Credit will constitute, a legal, valid and binding obligation of
Case Credit enforceable against Case Credit in accordance with
their terms.
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(v) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms
hereof do not conflict with, result in any breach of any of the
terms and provisions of, or constitute (with or without notice or
lapse of time) a default under, the certificate of incorporation
or by-laws of Case Credit, or any indenture, agreement or other
instrument to which Case Credit is a party or by which it is
bound; or result in the creation or imposition of any Lien upon
any of its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than this Agreement); or
violate any law or, to the best of Case Credit's knowledge, any
order, rule or regulation applicable to Case Credit of any court
or of any Federal or State regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over
Case Credit or its properties.
(vi) No Proceedings. There are no proceedings or investigations
pending, or to Case Credit's best knowledge, threatened, before
any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over Case Credit
or its properties: (A) asserting the invalidity of this Agreement,
(B) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement, or (C) seeking any determination
or ruling that could reasonably be expected to materially and
adversely affect the performance by Case Credit of its obligations
under, or the validity or enforceability of, this Agreement.
(b) Case Credit makes the following representations and warranties
as to the Receivables on which CNHCR relies in accepting the
Initial Receivables and the Subsequent Receivables and in
transferring the Receivables to the Trust. Such representations
and warranties speak as of the execution and delivery of this
Agreement and as of the Closing Date, in the case of the Initial
Receivables, and as of the applicable Subsequent Transfer Date, in
the case of the Subsequent Receivables, but shall survive the
sale, transfer and assignment of the Receivables to CNHCR and the
subsequent assignment and transfer of such Receivables to the
Trust pursuant to the Sale and Servicing Agreement and pursuant to
the Indenture:
(i) Characteristics of Case Receivables. Each Case Receivable: (A)
(1) (i) was originated in the United States of America by a Dealer
in connection with the retail sale or lease of Financed Equipment
in the ordinary course of such Dealer's business, and (ii) was
purchased by Case Credit from a Dealer and validly assigned by
such Dealer to Case Credit in accordance with its terms, or (2)
was originated in the United States of America by Case Credit in
connection with the financing or lease of Financed Equipment in
the ordinary course of Case Credit's business and, in either case,
was fully and properly executed by the parties thereto, (B) has
created a valid, subsisting and enforceable first priority
security interest in the Financed Equipment in favor of Case
Credit that, as of the Closing Date, has been assigned by Case
Credit to CNHCR, by CNHCR to the Issuer and by the Issuer to the
Indenture Trustee, except that (x) no security interest against
the Obligor is created in True Lease Equipment, and (y) Case
Credit makes no representation or warranty as to any such security
interest granted by any Dealer to secure the Dealer's obligations
to make payments in respect of Termination Values, (C) contains
customary and enforceable provisions such that the rights and
remedies of the holder thereof are adequate for realization
against the collateral of the benefits of the security, and (D)
(i) in the case of Retail Installment Contracts, provides for
fixed payments on a periodic basis that fully amortize the Amount
Financed by maturity and yield interest at the Annual Percentage
Rate, and (ii) in the case of any Contracts sold, or to be sold,
hereunder that are Leases, provides for fixed payments on a
periodic basis that fully amortize the Amount Financed by maturity
and yield interest at the Annual Percentage Rate, except that any
Contracts sold, or to be sold, hereunder that are Leases also
provide for payments of the related Termination Values.
(ii) Schedule of Case Receivables. The information set forth on
Schedule A to the Case Assignment delivered on the Closing Date is
true and correct in all material respects as of the opening of
business on the Initial Cutoff Date and the information set forth
on Schedule A to the related Case Subsequent Transfer Assignment
will be true and correct on each Subsequent Transfer Date related
to such Case Subsequent Transfer Assignment and no selection
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procedures believed by Case Credit to be adverse to the interests
of the Trust, the Noteholders or the Certificateholders were or
will be utilized in selecting the Case Receivables. The computer
tape regarding the Case Receivables made available to CNHCR and
its assigns is true and correct in all respects.
(iii) Compliance with Law. Each Case Receivable and the sale or
lease of the related Financed Equipment complied in all material
respects at the time it was originated or made and at the
execution of this Agreement and each Case Subsequent Transfer
Assignment complies in all material respects with all requirements
of applicable Federal, State and local laws and regulations
thereunder, including usury law, the Federal Truth-in-Lending Act,
the Equal Credit Opportunity Act, the Fair Credit Reporting Act,
the Fair Debt Collection Practices Act, the Federal Trade
Commission Act, the Magnuson-Moss Warranty Act, the Federal
Reserve Board's Regulations B and Z, the Wisconsin Consumer Act
and State adaptations of the National Consumer Act and of the
Uniform Consumer Credit Code, and other consumer credit laws and
equal credit opportunity and disclosure laws.
(iv) Binding Obligation. Each Case Receivable represents the
genuine, legal, valid and binding payment obligation in writing of
the Obligor, enforceable by the holder thereof in accordance with
its terms.
(v) No Government Obligor. None of the Case Receivables is due
from the United States of America or any State or from any agency,
department or instrumentality of the United States of America or
any State. (vi) Security Interest in Financed Equipment.
Immediately prior to the sale, assignment and transfer thereof,
each Case Receivable shall be secured by a validly perfected first
priority security interest in the Financed Equipment in favor of
Case Credit as secured party or all necessary and appropriate
actions have been commenced that would result in the valid
perfection of a first priority security interest in the Financed
Equipment in favor of Case Credit as secured party, except that
(A) no security interest against the Obligor is created in True
Lease Equipment and (B) Case Credit makes no representation or
warranty as to any security interest granted by any Dealer to
secure the Dealer's obligations to make payments in respect of
Termination Values.
(vii) Case Receivables in Force. No Case Receivable has been
satisfied, subordinated or rescinded, nor has any Financed
Equipment been released from the Lien granted by the related Case
Receivable in whole or in part.
(viii) No Amendment or Waiver. No provision of a Case Receivable
has been waived, altered or modified in any respect, except
pursuant to a document, instrument or writing included in the
Receivable Files and no such amendment, waiver, alteration or
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modification causes such Case Receivable not to conform to the
other warranties contained in this Section.
(ix) No Defenses. No right of rescission, setoff, counterclaim or
defense has been asserted or threatened or exists with respect to
any Case Receivable.
(x) No Liens. To the best of Case Credit's knowledge, no Liens or
claims, including claims for work, labor or materials, relating to
any of the Financed Equipment have been filed that are Liens prior
to, or equal or coordinate with, the security interest in the
Financed Equipment granted by any Case Receivable, except those
pursuant to the Basic Documents.
(xi) No Default. No Case Receivable is a non-performing Receivable
or has a payment that is more than 90 days overdue as of the
Initial Cutoff Date or Subsequent Cutoff Date, as applicable, and,
except for a payment default continuing for a period of not more
than 90 days, no default, breach, violation or event permitting
acceleration under the terms of any Case Receivable has occurred
and is continuing; and no continuing condition that with notice or
the lapse of time would constitute such a default, breach,
violation or event permitting acceleration under the terms of any
Case Receivable has arisen; and Case Credit has not waived and
shall not waive any of the foregoing.
(xii) Title. It is the intention of Case Credit that the transfers
and assignments contemplated herein and in the Case Liquidity
Receivables Purchase Agreement constitute a sale of the Case
Receivables from Case Credit to CNHCR and that the beneficial
interest in and title to the Case Receivables and any True Lease
Equipment related to such Case Receivables not be part of the
debtor's estate in the event of the filing of a bankruptcy
petition by or against Case Credit under any bankruptcy or similar
law. No Case Receivable has been sold, transferred, assigned or
pledged by Case Credit to any Person other than CNHCR. Immediately
prior to the transfers and assignments contemplated herein and in
the Case Liquidity Receivables Purchase Agreement, Case Credit had
good title to each Case Receivable and any True Lease Equipment
related to such Case Receivable, free and clear of all Liens and,
immediately upon the transfer thereof, CNHCR shall have good title
to each Case Receivable and any True Lease Equipment, free and
clear of all Liens; and the transfer and assignment of the Case
Receivables to CNHCR has been perfected under the UCC.
(xiii) Lawful Assignment. No Case Receivable has been originated
in, or is subject to the laws of, any jurisdiction under which the
sale, transfer and assignment of such Case Receivable or any Case
Receivable under this Agreement, the Case Liquidity Receivables
Purchase Agreement, the Sale and Servicing Agreement or the
Indenture is unlawful, void or voidable.
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(xiv) All Filings Made. All filings (including UCC filings)
necessary in any jurisdiction to give CNHCR a first priority
perfected ownership interest in the Case Receivables have been
made.
(xv) One Original. There is only one original executed copy of
each Case Receivable.
(xvi) Maturity of Receivables. Each Receivable has a remaining
term to maturity of not more than 72 months, in the case of the
Initial Receivables, and 72 months, in the case of the Subsequent
Receivables; the weighted average remaining term of the Initial
Receivables is approximately 44.33 months as of the Initial Cutoff
Date; the weighted average original term of the Receivables,
including as of each Subsequent Transfer Date all Subsequent
Receivables previously transferred to CNHCR, will not be greater
than 55 months.
(xvii) Scheduled Payments. No Receivable has a final scheduled
payment date later than six months preceding the Final Scheduled
Maturity Date; each Receivable provides for payments that fully
amortize the Amount Financed over the original term of the
Receivable, and is either a Precomputed Receivable or a Simple
Interest Receivable.
(xviii) Insurance. The Obligor on each Case Receivable is required
to maintain physical damage insurance covering the Financed
Equipment and, in the case of any Lease, public liability
insurance relating to the use of such Financed Equipment, in each
case in accordance with Case Credit's normal requirements.
(xix) Concentrations. (A) No Receivable has a Statistical Contract
Value (when combined with the Statistical Contract Value of any
other Receivable with the same or an Affiliated Obligor) that
exceeds 1% of the Initial Aggregate Statistical Contract Value.
(xx) Financing. Approximately 64.32% of the aggregate Statistical
Contract Value of the Initial Receivables, constituting 64.31% of
the number of Initial Receivables as of the Initial Cutoff Date,
were secured by or constitute Receivables of equipment that was
new at the time the related Initial Receivable was originated; the
remainder of the Initial Receivables represent financing or leases
of used equipment; approximately 69.58% of the aggregate
Statistical Contract Value of the Initial Receivables,
constituting 77.79% of the number of Initial Receivables as of the
Initial Cutoff Date, represent financing or leases of agricultural
equipment; the remainder of the Initial Receivables represent
financing or leases of construction equipment. The aggregate
Statistical Contract Value of the Receivables for the purposes of
the above calculations as of the Initial Cutoff Date is
$822,141,207.04. Additionally, not more than 35% of the aggregate
Contract Value of the Receivables, including, as of each
Subsequent Transfer Date, all Subsequent Receivables previously
transferred to CNHCR, will represent Contracts for the financing
or lease of construction equipment. No Subsequent Receivable will
represent the financing of truck equipment.
11
(xxi) No Bankruptcies. No Obligor on any Case Receivable as of the
Initial Cutoff Date or the Subsequent Cutoff Date, as applicable,
was noted in the related Receivable File as being the subject of a
bankruptcy proceeding.
(xxii) No Repossessions. None of the Financed Equipment securing
any Case Receivable is in repossession status.
(xxiii) Chattel Paper. Each Case Receivable constitutes "chattel
paper" as defined in the UCC of each State the law of which
governs the perfection of the interest granted in it and/or the
priority of such perfected interest.
(xxiv) U.S. Obligors. None of the Case Receivables is denominated
and payable in any currency other than United States Dollars or is
due from any Person that does not have a mailing address in the
United States of America.
(xxv) Payment Frequency. As of the Initial Cutoff Date and as
shown on the books of Case Credit: (A) Initial Receivables having
an aggregate Statistical Contract Value equal to 40.29% of the
Initial Aggregate Statistical Contract Value had annual scheduled
payments, (B) Initial Receivables having an aggregate Statistical
Contract Value equal to 3.38% of the Initial Aggregate Statistical
Contract Value had semi-annual scheduled payments, (C) Initial
Receivables having an aggregate Statistical Contract Value equal
to 0.94% of the Initial Aggregate Statistical Contract Value had
quarterly scheduled payments, (D) Initial Receivables having an
aggregate Statistical Contract Value equal to 51.22% of the
Initial Aggregate Statistical Contract Value had monthly scheduled
payments, and (E) Initial Receivables having an aggregate
Statistical Contract Value equal to 4.17% of the Initial Aggregate
Statistical Contract Value had irregularly scheduled payments.
(xxvi) Interest Accruing. Each Case Receivable, other than those
Case Receivables consisting of Contracts that contain interest
waivers for a specified period of time, is, as of the Closing Date
or Subsequent Transfer Date, as applicable, accruing interest; no
Case Receivable contains an interest waiver extending more than 12
months after the Initial Cutoff Date.
(xxvii) Leases. Each Lease included in the Initial Case
Receivables or the Subsequent Case Receivables has a Termination
Value less than or equal to 10% of the purchase price of the
equipment subject to such Lease and is a "lease intended as
security" (rather than a true lease) within the meaning of Section
1-201(37) of the UCC.
(xxviii) Case Credit's Representations. The representations and
warranties of Case Credit contained in Section 3.2(a) are true and
correct.
12
(xxix) Case Credit's Obligations. Case Credit has no obligations
under any Contract, other than the covenant of quiet enjoyment
benefiting the Obligors under any Contracts that are Leases.
(xxx) No Either/or Leases. No Lease included in the Initial Case
Receivables or the Subsequent Case Receivables is a Either/or
Lease, and no Financed Equipment transferred to CNHCR on the
Closing Date or any Subsequent Transfer Date, as the case may be,
constitutes True Lease Equipment.
(xxxi) No Leases Notwithstanding anything to the contrary in the
Basic Documents, none of the Initial Case Receivables or the
Subsequent Case Receivables shall be Leases.
(xxxii) Perfection Representations Case Credit further makes all
the representations, warranties and covenants set forth in
Schedule P.
ARTICLE IV
Conditions
SECTION 4.1. Conditions to Obligation of CNHCR.
(a) Case Purchased Contracts. The obligation of CNHCR to purchase
the Case Purchased Contracts is subject to the satisfaction of the
following conditions:
(i) Representations and Warranties True. The representations and
warranties of Case Credit hereunder shall be true and correct on
the Closing Date and Case Credit shall have performed all
obligations to be performed by it hereunder on or prior to the
Closing Date.
(ii) Computer Files Marked. Case Credit shall, at its own expense,
on or prior to the Closing Date, indicate in its computer files
that Case Receivables created in connection with the Case
Purchased Contracts have been sold to CNHCR pursuant to this
Agreement and deliver to CNHCR the Schedule of Case Receivables
certified by the Chairman, the President, a Vice President or the
Treasurer of Case Credit to be true, correct and complete.
(iii) Documents To Be Delivered by Case Credit on the Closing
Date.
(A) The Case Assignment. On the Closing Date (but only if the
Contract Value of the Case Purchased Contracts is greater than
zero), Case Credit will execute and deliver the Case Assignment,
which shall be substantially in the form of Exhibit A.
(B) Evidence of UCC Filing. On or prior to the Closing Date (but
only if the Contract Value of the Case Purchased Contracts is
greater than zero), Case Credit shall execute and file, at its own
expense, a UCC financing statement in each jurisdiction in which
such action is required by applicable law to fully perfect CNHCR's
13
right, title and interest in the Case Purchased Contracts and the
other property sold hereunder, executed by Case Credit, as seller
or debtor, and naming CNHCR, as purchaser or secured party,
describing the Case Purchased Contracts and the other property
sold hereunder, meeting the requirements of the laws of each such
jurisdiction and in such manner as is necessary to perfect the
sale, transfer, assignment and conveyance of such Case Purchased
Contracts and such other property to CNHCR. It is understood and
agreed, however, that no filings will be made to perfect any
security interest of CNHCR in Case Credit's interests in Financed
Equipment. Case Credit shall deliver (or cause to be delivered) a
file-stamped copy, or other evidence satisfactory to CNHCR of such
filing, to CNHCR on or prior to the Closing Date.
(C) Other Documents. Case Credit will deliver such other documents
as CNHCR may reasonably request.
(iv) Other Transactions. The transactions contemplated by the Sale
and Servicing Agreement to be consummated on the Closing Date
shall be consummated on such date.
(b) Subsequent Case Receivables. The obligation of CNHCR to
purchase any Subsequent Case Receivables is subject to the
satisfaction of the following conditions on or prior to the
related Subsequent Transfer Date:
(i) Case Credit shall have delivered to CNHCR a duly executed
written assignment in substantially the form of Exhibit B (the
"Case Subsequent Transfer Assignment"), which shall include
supplements to the Schedule of Case Receivables listing the
Subsequent Case Receivables;
(ii) Case Credit shall, to the extent required by Section 5.2 of
the Sale and Servicing Agreement, have delivered to CNHCR for
deposit in the Collection Account all collections in respect of
the Subsequent Case Receivables;
(iii) as of such Subsequent Transfer Date: (A) Case Credit was not
insolvent and will not become insolvent as a result of the
transfer of Subsequent Case Receivables on such Subsequent
Transfer Date, (B) Case Credit did not intend to incur or believe
that it would incur debts that would be beyond Case Credit's
ability to pay as such debts matured, (C) such transfer was not
made with actual intent to hinder, delay or defraud any Person and
(D) the assets of Case Credit did not constitute unreasonably
small capital to carry out its business as conducted;
14
(iv) the applicable Spread Account Initial Deposit and Principal
Supplement Account Deposit, if any, for such Subsequent Transfer
Date shall have been made;
(v) the Funding Period shall not have terminated;
(vi) each of the representations and warranties made by Case
Credit pursuant to Section 3.2(b) with respect to the Subsequent
Case Receivables or the Subsequent Receivables shall be true and
correct as of such Subsequent Transfer Date, and Case Credit shall
have performed all obligations to be performed by it hereunder on
or prior to such Subsequent Transfer Date;
(vii) Case Credit shall, at its own expense, on or prior to such
Subsequent Transfer Date, indicate in its computer files that the
Subsequent Case Receivables identified in the related Case
Subsequent Transfer Assignment have been sold to CNHCR pursuant to
this Agreement and the Case Subsequent Transfer Assignment;
(viii) Case Credit shall have taken any action required to give
CNHCR a first priority perfected ownership interest in the
Subsequent Case Receivables;
(ix) no selection procedures believed by Case Credit to be adverse
to the interests of CNHCR, the Trust, the Noteholders or the
Certificateholders shall have been utilized in selecting the
Subsequent Case Receivables;
(x) the addition of the Subsequent Case Receivables will not
result in a material adverse tax consequence to CNHCR, the Trust,
the Noteholders or the Certificateholders;
(xi) Case Credit shall have provided CNHCR a statement listing the
aggregate Contract Value of such Subsequent Case Receivables and
any other information reasonably requested by CNHCR with respect
to such Subsequent Case Receivables;
(xii) all the conditions to the transfer of the Subsequent Case
Receivables to the Issuer specified in the Sale and Servicing
Agreement shall have been satisfied; and
(xiii) Case Credit shall have delivered to CNHCR an Officers'
Certificate confirming the satisfaction of each condition
precedent specified in this clause (b) (substantially in the form
attached hereto as Annex A to the Case Subsequent Transfer
Assignment).
SECTION 4.2. Conditions to Obligation of Case Credit. The
obligation of Case Credit to sell the Case Purchased Contracts and
the Subsequent Case Receivables to CNHCR is subject to the
satisfaction of the following conditions:
15
(a) Representations and Warranties True. The representations and
warranties of CNHCR hereunder shall be true and correct on the
Closing Date or the applicable Subsequent Transfer Date with the
same effect as if then made, and CNHCR shall have performed all
obligations to be performed by it hereunder on or prior to the
Closing Date or such Subsequent Transfer Date.
(b) Receivables Purchase Price. On the Closing Date or the
applicable Subsequent Transfer Date, CNHCR shall have delivered to
Case Credit the portion of the Initial Case Purchase Price or the
Subsequent Case Purchase Price, as the case may be, payable on the
Closing Date or such Subsequent Transfer Date pursuant to Section
2.5.
ARTICLE V
Covenants of Case Credit
Case Credit agrees with CNHCR as follows; provided, however, that
to the extent that any provision of this Article conflicts with
any provision of the Sale and Servicing Agreement, the Sale and
Servicing Agreement shall govern:
SECTION 5.1. Protection of Right, Title and Interest. (a) Filings.
Case Credit shall cause all financing statements and continuation
statements and any other necessary documents covering the right,
title and interest of CNHCR in and to the Case Receivables and the
other property included in the Trust Estate to be promptly filed,
and at all times to be kept recorded, registered and filed, all in
such manner and in such places as may be required by law fully to
preserve and protect the right, title and interest of CNHCR
hereunder to the Case Receivables and the other property sold
hereunder. It is understood and agreed, however, that no filings
will be made to perfect any security interest of CNHCR in Case
Credit's interests in Financed Equipment. Case Credit shall
deliver (or cause to be delivered) to CNHCR file-stamped copies
of, or filing receipts for, any document recorded, registered or
filed as provided above as soon as available following such
recordation, registration or filing. CNHCR shall cooperate fully
with Case Credit in connection with the obligations set forth
above and will execute any and all documents reasonably required
to fulfill the intent of this paragraph.
(b) Name Change. Within 15 days after Case Credit makes any change
in its name, identity or corporate structure that would, could or
might make any financing statement or continuation statement filed
in accordance with paragraph (a) seriously misleading within the
applicable provisions of the UCC or any title statute, Case Credit
shall give CNHCR notice of any such change, and no later than five
days after the effective date thereof, shall file such financing
statements or amendments as may be necessary to continue the
perfection of CNHCR's interest in the property included in the
Trust Estate.
16
(c) Location Change. Within 15 days after Case Credit makes any
change to its "location" as defined in Section 9-307 of the UCC,
Case Credit shall give CNHCR notice of any such change, and no
later than five days after the effective date thereof, shall file
such financing statements or amendments as may be necessary to
continue the perfection of CNHCR's interest in the property
included in the Trust Estate
SECTION 5.2. Other Liens or Interests. Except for the conveyances
hereunder and pursuant to the Case Liquidity Receivables Purchase
Agreement, the Sale and Servicing Agreement, the Indenture and the
other Basic Documents, Case Credit: (a) will not sell, pledge,
assign or transfer to any Person, or grant, create, incur, assume
or suffer to exist any Lien on, any interest in, to and under the
Case Receivables, and (b) shall defend the right, title and
interest of CNHCR in, to and under the Case Receivables against
all claims of third parties claiming through or under Case Credit;
provided, however, that Case Credit's obligations under this
Section shall terminate upon the termination of the Trust pursuant
to the Trust Agreement.
SECTION 5.3. Chief Executive Office. During the term of the Case
Receivables, Case Credit will maintain its chief executive office
and "location," as defined in the UCC, in one of the States.
SECTION 5.4. Costs and Expenses. Case Credit agrees to pay all
reasonable costs and disbursements in connection with the
perfection, as against all third parties, of CNHCR's right, title
and interest in, to and under the Case Receivables.
SECTION 5.5. Indemnification. Case Credit shall indemnify, defend
and hold harmless CNHCR for any liability as a result of the
failure of a Case Receivable to be originated in compliance with
all requirements of law and for any breach of any of its
representations and warranties contained herein. These indemnity
obligations shall be in addition to any obligation that Case
Credit may otherwise have. Case Credit shall indemnify, defend and
hold harmless CNHCR, the Issuer, the Trustee and the Indenture
Trustee (and their respective officers, directors, employees and
agents) from and against any taxes that may at any time be
asserted against such Person with respect to the sale of the Case
Receivables to CNHCR hereunder or the sale of the Case Receivables
to the Issuer by CNHCR or the issuance and original sale of the
Certificates and the Notes, including any sales, gross receipts,
general corporation, tangible personal property, privilege or
license taxes (but, in the case of CNHCR and the Issuer, not
including any taxes asserted with respect to ownership of the Case
Receivables on Federal or other income taxes arising out of the
transactions contemplated by this Agreement) and costs and
expenses in defending against the same.
17
SECTION 5.6. Transfer of Subsequent Case Receivables. Case Credit
covenants to transfer to CNHCR, pursuant to Section 2.2,
Subsequent Case Receivables with an aggregate Contract Value
approximately equal to $283,134,277.87 minus the aggregate
Contract Value of any Receivables sold to CNHCR by NH Credit
pursuant to Section 5.6 of the NH Purchase Agreement, subject only
to the availability of such Subsequent Case Receivables.
ARTICLE VI
Miscellaneous Provisions
SECTION 6.1. Obligations of Case Credit. The obligations of Case
Credit under this Agreement shall not be affected by reason of any
invalidity, illegality or irregularity of any Case Receivable.
SECTION 6.2. Repurchase Events. Case Credit hereby covenants and
agrees with CNHCR for the benefit of CNHCR, the Indenture Trustee,
the Noteholders, the Trustee and the Certificateholders that the
occurrence of a breach of any of Case Credit's representations and
warranties contained in Section 3.2(b), shall constitute events
obligating Case Credit to repurchase any Case Receivable and, with
respect to a breach of any of Case Credit's representations and
warranties contained in Sections 3.2(b)(xvi), (xvii), (xix), (xx),
(xxv) and (xxvi), any NH Receivable materially and adversely
affected by any such breach ("Repurchase Events") at the Purchase
Amount from CNHCR or from the Trust. Except as set forth in
Section 5.5, the repurchase obligation of Case Credit shall
constitute the sole remedy of CNHCR, the Indenture Trustee, the
Noteholders, the Trust, the Trustee or the Certificateholders
against Case Credit with respect to any Repurchase Event.
SECTION 6.3. CNHCR Assignment of Repurchased Receivables. With
respect to all Receivables repurchased by Case Credit pursuant to
this Agreement, CNHCR shall sell, transfer, assign, set over and
otherwise convey to Case Credit, without recourse, representation
or warranty, all of CNHCR's right, title and interest in, to and
under such Receivables, and all security and documents relating
thereto.
SECTION 6.4. Trust. Case Credit acknowledges and agrees that: (a)
CNHCR will, pursuant to the Sale and Servicing Agreement, sell the
Case Receivables to the Trust and assign its rights under this
Agreement to the Trust, (b) the Trust will, pursuant to the
Indenture, assign such Case Receivables and such rights to the
Indenture Trustee and (c) the representations, warranties and
covenants contained in this Agreement and the rights of CNHCR
under this Agreement, including under Section 6.2, are intended to
benefit the Trust, the Certificateholders and the Noteholders.
Case Credit hereby consents to all such sales and assignments and
agrees that enforcement of a right or remedy hereunder by the
Indenture Trustee shall have the same force and effect as if the
right or remedy had been enforced or executed by CNHCR.
18
SECTION 6.5. Amendment. This Agreement may be amended from time to
time, with prior written notice to the Rating Agencies, by a
written amendment duly executed and delivered by Case Credit and
CNHCR, without the consent of the Noteholders or the
Certificateholders, to cure any ambiguity, to correct or
supplement any provisions in this Agreement or for the purpose of
adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any
manner the rights of the Noteholders or the Certificateholders;
provided, however, that such amendment will not in the Opinion of
Counsel, materially and adversely affect the interest of any
Noteholder or Certificateholder.
This Agreement may also be amended from time to time by Case
Credit and CNHCR, with prior written notice to the Rating
Agencies, with the written consent of (x) Noteholders holding
Notes evidencing at least a majority of the Note Balance and (y)
the Holders of Certificates evidencing at least a majority of the
Certificate Balance, for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the
Noteholders or the Certificateholders; provided, however, that no
such amendment may: (i) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections of
payments on Case Receivables or distributions that are required to
be made for the benefit of the Noteholders or the
Certificateholders or (ii) reduce the aforesaid percentage of the
Notes and Certificates that are required to consent to any such
amendment, without the consent of the holders of all the
outstanding Notes and Certificates.
It shall not be necessary for the consent of Certificateholders or
Noteholders pursuant to this Section to approve the particular
form of any proposed amendment or consent, but it shall be
sufficient if such consent shall approve the substance thereof.
SECTION 6.6. Accountants' Letters. (a) A firm of independent
certified public accountants will review the characteristics of
the Receivables described in the Schedule of Receivables and will
compare those characteristics to the information with respect to
the Receivables contained in the Prospectus, (b) Case Credit will
cooperate with CNHCR and such accounting firm in making available
all information and taking all steps reasonably necessary to
permit such accounting firm to complete the review set forth in
clause (a) and to deliver the letters required of them under the
Underwriting Agreement, (c) such accounting firm will deliver to
CNHCR a letter, dated the date of the Prospectus, in the form
previously agreed to by Case Credit, NH Credit and CNHCR, with
respect to the financial and statistical information contained in
the Prospectus and with respect to such other information as may
be agreed in the form of the letter.
19
SECTION 6.7. Waivers. No failure or delay on the part of CNHCR in
exercising any power, right or remedy under this Agreement, the
Case Assignment or any Case Subsequent Transfer Assignment shall
operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or remedy preclude any other or
further exercise thereof or the exercise of any other power, right
or remedy.
SECTION 6.8. Notices. All demands, notices and communications
under this Agreement shall be in writing, personally delivered or
mailed by certified mail, return receipt requested, and shall be
deemed to have been duly given upon receipt: (a) in the case of
Case Credit, to Case Credit Corporation, 233 Lake Avenue, Racine,
Wisconsin 53403, Attention: Treasurer (telephone (262) 636-6011);
(b) in the case of CNHCR, to CNH Capital Receivables Inc., 100
South Saunders Road, Lake Forest, Illinois 60045, Attention:
Treasurer (telephone (847) 735-9200); (c) in the case of the
Rating Agencies, at their respective addresses set forth in
Section 10.3 of the Sale and Servicing Agreement; or, as to each
of the foregoing, at such other address as shall be designated by
written notice to the other parties.
SECTION 6.9. Costs and Expenses. Case Credit will pay all expenses
incident to the performance of its obligations under this
Agreement and Case Credit agrees to pay all reasonable
out-of-pocket costs and expenses of CNHCR, excluding fees and
expenses of counsel, in connection with the perfection as against
third parties of CNHCR's right, title and interest in, to and
under the Case Receivables and the enforcement of any obligation
of Case Credit hereunder.
SECTION 6.10. Representations of Case Credit and CNHCR. The
respective agreements, representations, warranties and other
statements by Case Credit and CNHCR set forth in or made pursuant
to this Agreement shall remain in full force and effect and will
survive the closing under Section 2.4.
SECTION 6.11. Confidential Information. CNHCR agrees that it will
neither use nor disclose to any Person the names and addresses of
the Obligors, except in connection with the enforcement of CNHCR's
rights hereunder, under the Case Receivables, under the Sale and
Servicing Agreement or the Indenture or any other Basic Document
or as required by any of the foregoing or by law.
SECTION 6.12. Headings and Cross-References. The various headings
in this Agreement are included for convenience only and shall not
affect the meaning or interpretation of any provision of this
Agreement. References in this Agreement to Section names or
numbers are to such Sections of this Agreement unless otherwise
expressly indicated.
20
SECTION 6.13. Governing Law. This Agreement, the Case Assignment,
and each Case Subsequent Transfer Assignment shall be construed in
accordance with the laws of the State of New York, without
reference to its conflict of law provisions, and the obligations,
rights and remedies of the parties hereunder or thereunder shall
be determined in accordance with such laws.
SECTION 6.14. Counterparts. This Agreement may be executed in two
or more counterparts and by different parties on separate
counterparts, each of which shall be an original, but all of which
together shall constitute but one and the same instrument.
SECTION 6.15. Severability. Any provision of this Agreement that
is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
(signature pages follow)
21
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers duly
authorized as of the date and year first above written.
CNH Capital Receivables Inc.
By: /s/ Brian O'Keane
------------------------------
Name: Brian O'Keane
Title: Assistant Treasurer
Case Credit Corporation
By: /s/ Brian O'Keane
------------------------------
Name: Brian O'Keane
Title: Assistant Treasurer
S-1
EXHIBIT A
to Case Purchase Agreement
FORM OF
CASE ASSIGNMENT
---------------
For value received, in accordance with and subject to the Case
Purchase Agreement dated as of November 1, 2002 (the "Case
Purchase Agreement"), between the undersigned and CNH Capital
Receivables Inc. ("CNHCR"), the undersigned does hereby sell,
assign, transfer, set over and otherwise convey unto CNHCR,
without recourse, all of its right, title, interest and, with
respect to any Contracts that are Leases, obligations in, to and
under: (a) the Case Purchased Contracts, which are listed on
Schedule A hereto, including all documents constituting chattel
paper included therewith, and all obligations of the Obligors
thereunder, including all moneys paid thereunder on or after the
Initial Cutoff Date, (b) the security interests in the Financed
Equipment granted by Obligors pursuant to the Case Purchased
Contracts and any other interest of the undersigned in such
Financed Equipment, (c) any proceeds with respect to the Case
Purchased Contracts from claims on insurance policies covering
Financed Equipment or Obligors, (d) any proceeds from recourse to
Dealers with respect to the Case Purchased Contracts other than
any interest in the Dealers' reserve accounts maintained with Case
Credit Corporation, (e) any Financed Equipment that shall have
secured the Case Purchased Contracts and that shall have been
acquired by or on behalf of CNHCR, (f) any True Lease Equipment
that is subject to any Case Purchased Contract, and (g) the
proceeds of any and all of the foregoing. The foregoing sale does
not constitute and is not intended to result in any assumption by
CNHCR of any obligation (other than the covenant of quiet
enjoyment benefiting the Obligors under any Contracts that are
Leases) of the undersigned to the Obligors, insurers or any other
person in connection with the Case Purchased Contracts,
Receivables Files, any insurance policies or any agreement or
instrument relating to any of them.
This Case Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the
undersigned contained in the Case Purchase Agreement and is to be
governed in all respects by the Case Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have
the meanings assigned to them in the Case Purchase Agreement.
A-1
IN WITNESS WHEREOF, the undersigned has caused this Case
Assignment to be duly executed as of November 1, 2002.
CASE CREDIT CORPORATION
By: _________________________________________________________
Name:
Title:
A-2
EXHIBIT B
to Case Purchase Agreement
FORM OF
CASE SUBSEQUENT TRANSFER ASSIGNMENT
-----------------------------------
For value received, in accordance with and subject to the Case
Purchase Agreement dated as of November 1, 2002 (the "Case
Purchase Agreement"), between Case Credit Corporation, a Delaware
corporation ("Case Credit"), and CNH Capital Receivables Inc., a
Delaware corporation ("CNHCR"), Case Credit does hereby sell,
transfer, assign, set over and otherwise convey to CNHCR, without
recourse, all of its right, title, interest and, with respect to
any Contracts that are Leases, obligations in, to and under: (a)
the Subsequent Case Receivables, with an aggregate Contract Value
equal to $___, listed on Schedule A hereto, including all documents
constituting chattel paper included therewith, and all obligations
of the Obligors thereunder, including all moneys paid thereunder
on or after the Subsequent Cutoff Date, (b) the security interests
in the Financed Equipment granted by Obligors pursuant to such
Subsequent Case Receivables and any other interest of Case Credit
in such Financed Equipment, (c) any proceeds with respect to such
Subsequent Case Receivables from claims on insurance policies
covering Financed Equipment or Obligors, (d) any proceeds from
recourse to Dealers with respect to such Subsequent Case
Receivables other than any interest in the Dealers' reserve
accounts maintained with Case Credit, (e) any Financed Equipment
that shall have secured any such Subsequent Case Receivables and
that shall have been acquired by or on behalf of CNHCR, (f) any
True Lease Equipment that is subject to any Subsequent Case
Receivable, and (g) the proceeds of any and all of the foregoing.
The foregoing sale does not constitute and is not intended to
result in any assumption by CNHCR of any obligation (other than
the covenant of quiet enjoyment benefiting the Obligors under any
Contracts that are Leases) of Case Credit to the Obligors,
insurers or any other person in connection with such Subsequent
Case Receivables, Receivable Files, any insurance policies or any
agreement or instrument relating to any of them.
This Case Subsequent Transfer Assignment is made pursuant to and
upon the representations, warranties and agreements on the part of
Case Credit contained in the Case Purchase Agreement (including
the Officers' Certificate of Case Credit accompanying this
Agreement) and is to be governed in all respects by the Case
Purchase Agreement.
Capitalized terms used but not otherwise defined herein shall have
the meanings assigned to them in the Case Purchase Agreement.
B-1
IN WITNESS WHEREOF, the undersigned has caused this Case
Subsequent Transfer Assignment to be duly executed as of the __
day of __________, _____.
Case Credit Corporation
By: _________________________________________________________
Name:
Title:
B-2
SCHEDULE A
to Case Subsequent Transfer Assignment
SCHEDULE OF SUBSEQUENT CASE RECEIVABLES
---------------------------------------
[See attached list]
ANNEX A
to Case Subsequent Transfer Assignment
OFFICERS' CERTIFICATE
We, the undersigned officers of Case Credit Corporation (the
"Company"), do hereby certify, pursuant to Section 4.1(b)(xiii) of
the Case Purchase Agreement dated as of November 1, 2002, among
the Company, and CNH Capital Receivables Inc. (the "Case Purchase
Agreement"), that (i) all of the conditions precedent to the
transfer to CNHCR of the Subsequent Case Receivables listed on
Schedule A to the Case Subsequent Transfer Assignment delivered
herewith, and the other property and rights related to such
Subsequent Case Receivables as described in Section 2.2 of the
Case Purchase Agreement, have been satisfied on or prior to the
related Subsequent Transfer Date and (ii) each statement of fact
set forth in any officers' certificate executed by an officer of
the Company in connection with an Opinion of Counsel delivered on
the Closing Date with respect to a transfer of, or a security
interest in, the Case Receivables shall be true and correct as of
the date hereof with respect to the Subsequent Case Receivables
listed on the aforementioned Schedule A.
Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Case Purchase Agreement.
IN WITNESS WHEREOF, the undersigned have caused this certificate
to be duly executed this ___ day of ___________, _____.
By: ____________________________________________________________
Name:___________________________________________________________
Title:__________________________________________________________
By: ____________________________________________________________
Name:___________________________________________________________
Title:__________________________________________________________
Schedule P
1. General. The Case Purchase Agreement creates, or with respect
to Case Receivables that are Subsequent Receivables upon the
transfer of such Subsequent Receivables pursuant to the Subsequent
Transfer Assignment will create, a valid and continuing security
interest (as defined in the UCC) in the Case Receivables in favor
of CNHCR, which, (a) is enforceable upon execution of the Case
Purchase Agreement against creditors of and purchasers from Case
Credit, as such enforceability may be limited by applicable Debtor
Relief Laws, now or hereafter in effect, and by general principles
of equity (whether considered in a suit at law or in equity), and
(b) upon filing of the financing statements described in clause 4
below will be prior to all other Liens (other than Liens permitted
pursuant to clause 3 below).
2. General. The Case Receivables constitute "tangible chattel
paper" within the meaning of UCC Section 9-102. Case Credit has
taken all steps necessary to perfect its security interest against
the Obligor in the Financed Equipment securing the Case
Receivables.
3. Creation. Immediately prior to the conveyance of the Case
Receivables pursuant to the Case Purchase Agreement, Case Credit
owns and has good and marketable title to, or has a valid security
interest in, the Case Receivables free and clear of any Lien,
claim or encumbrance of any Person.
4. Perfection. Case Credit has caused or will have caused, within
ten days of the Closing Date, the filing of all appropriate
financing statements in the proper filing office in the
appropriate jurisdictions under applicable law in order to perfect
the security interest granted to CNHCR under the Case Purchase
Agreement in the Case Receivables. With respect to the Case
Receivables that constitute tangible chattel paper, Case Credit
has in its possession the original copies of such tangible chattel
paper that constitute or evidence the Case Receivables, and Case
Credit has caused, or will have caused within ten days of the
effective date of the Case Purchase Agreement, the filing of
financing statements against Case Credit and such originator in
favor of CNHCR in connection herewith describing such Case
Receivables and containing a statement that: "A purchase of or
security interest in any collateral described in this financing
statement will violate the rights of CNHCR."
5. Priority. Other than the security interests granted to CNHCR
pursuant to the Case Purchase Agreement and the Case Liquidity
Receivables Purchase Agreement, Case Credit has not pledged,
assigned, sold, granted a security interest in, or otherwise
conveyed any of the Case Receivables. Case Credit has not
authorized the filing of and is not aware of any financing
statements against Case Credit that include a description of
collateral covering the Case Receivables other than any financing
statement (i) relating to the security interests granted to CNHCR
under the Case Purchase Agreement and the Case Liquidity
Receivables Purchase Agreement (ii) that has been terminated, or
(iii) that has been granted pursuant to the terms of the Basic
Documents. None of the tangible chattel paper that constitutes or
evidences the Case Receivables has any marks or notations
indicating that they have pledged, assigned or otherwise conveyed
to any Person other than Indenture Trustee.