Execution Copy
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CNH EQUIPMENT TRUST 2003-A
NH PURCHASE AGREEMENT
between
New Holland Credit Company, LLC
and
CNH Capital Receivables Inc.
Dated as of May 1, 2003
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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 NH RECEIVABLES....................................2
SECTION 2.1 Conveyance of NH Purchased Contracts......................2
SECTION 2.2 Conveyance of Subsequent NH Receivables...................3
SECTION 2.3 Intention of the Parties..................................4
SECTION 2.4 The Closing...............................................4
SECTION 2.5 Payment of the Purchase Price.............................4
ARTICLE III REPRESENTATIONS AND WARRANTIES.................................5
SECTION 3.1 Representations and Warranties of CNHCR...................5
SECTION 3.2 Representations and Warranties of NH Credit...............6
ARTICLE IV CONDITIONS....................................................11
SECTION 4.1 Conditions to Obligation of CNHCR........................11
SECTION 4.2 Conditions to Obligation of NH Credit....................13
ARTICLE V COVENANTS OF NH CREDIT........................................13
SECTION 5.1 Protection of Right, Title and Interest..................13
SECTION 5.2 Other Liens or Interests.................................14
SECTION 5.3 Chief Executive Office...................................14
SECTION 5.4 Costs and Expenses.......................................14
SECTION 5.5 Indemnification..........................................14
SECTION 5.6 Transfer of Subsequent NH Receivables....................15
ARTICLE VI MISCELLANEOUS PROVISIONS......................................15
SECTION 6.1 Obligations of NH Credit.................................15
SECTION 6.2 Repurchase Events........................................15
SECTION 6.3 CNHCR Assignment of Repurchased Receivables..............15
SECTION 6.4 Trust....................................................15
SECTION 6.5 Amendment................................................16
SECTION 6.6 Accountants' Letters.....................................16
SECTION 6.7 Waivers..................................................16
SECTION 6.8 Notices..................................................16
SECTION 6.9 Costs and Expenses.......................................17
SECTION 6.10 Representations of NH Credit and CNHCR...................17
SECTION 6.11 Confidential Information.................................17
SECTION 6.12 Headings and Cross-References............................17
SECTION 6.13 Governing Law............................................17
SECTION 6.14 Counterparts.............................................17
SECTION 6.15 Severability.............................................18
EXHIBITS
EXHIBIT A Form of NH Assignment
EXHIBIT B Form of NH Subsequent Transfer Assignment
SCHEDULES
SCHEDULE P Perfection Representations and Warranties
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NH PURCHASE AGREEMENT (as amended or supplemented from time to time,
this "Agreement") dated as of May 1, 2003 between NEW HOLLAND CREDIT COMPANY,
LLC, a Delaware limited liability company ("NH Credit"), and CNH CAPITAL
RECEIVABLES INC., a Delaware corporation ("CNHCR").
RECITALS
WHEREAS, in the regular course of its business, NH Credit purchases,
directly and indirectly, from equipment dealers and brokers, and directly
originates, Contracts; and
WHEREAS, NH Credit and CNHCR wish to set forth the terms pursuant to
which: (1) Contracts having an aggregate Contract Value of approximately
$90,019,215.56 (the "NH Purchased Contracts") as of Initial Cutoff Date and NH
Credit's right, title and interest in any True Lease Equipment related to such
Contracts are to be sold by NH Credit to CNHCR on the date hereof and (2)
certain Subsequent NH Receivables and NH Credit's right, title and interest in
any True Lease Equipment related to such Subsequent NH Receivables are to be
sold by NH 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 NH Credit pursuant to a Receivables Purchase
Agreement dated as of December 15, 2000 (as amended from time to time, the "NH
Liquidity Receivables Purchase Agreement"), between NH Credit and CNHCR,
having an aggregate Contract Value of approximately $187,920,918.09 (the "NH
Owned Contracts", and together with the NH Purchased Contracts, the "Initial
NH Receivables"); and
WHEREAS, the Initial NH Receivables and the Subsequent NH Receivables
(collectively, the "NH Receivables"), the Case Receivables and any True Lease
Equipment related to such NH Receivables or Case Receivables will be
transferred by CNHCR, pursuant to the Sale and Servicing Agreement, to CNH
Equipment Trust 2003-A (the "Trust"), which Trust will issue Asset Backed
Certificates representing non-assessable, fully paid, fractional undivided
interests in, and 1.26250% Class A-1 Asset Backed Notes, 1.46000% Class A-2
Asset Backed Notes, Floating Rate Class A-3a Asset Backed Notes, 1.89000%
Class A-3b Asset Backed Notes, Floating Rate Class A-4a Asset Backed Notes,
2.57000% Class A-4b Asset Backed Notes and 3.13000% Class B Asset Backed Notes
collateralized by, the Receivables and the other property of the Trust; and
WHEREAS, NH Credit and CNHCR wish to set forth herein certain
representations, warranties, covenants and indemnities of NH Credit with
respect to the NH Receivables for the benefit of CNHCR, the Trust, the
Noteholders, any Counterparty 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 2003-A and JPMorgan Chase Bank,
as Indenture Trustee.
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 NH Receivables
SECTION 2.1 Conveyance of NH Purchased Contracts. In consideration of
CNHCR's payment of $277,940,133.65 (the "Initial NH Purchase Price") in the
manner set out in Section 2.5(a), NH 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 NH Assets"):
(i) the NH Purchased Contracts, including all documents
constituting chattel paper included therewith, and all obligations of
the Obligors thereunder, including all moneys paid thereunder on or
after the Initial Cutoff Date;
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(ii) the security interests in the Financed Equipment
granted by Obligors pursuant to the NH Purchased Contracts and any
other interest of NH Credit in such Financed Equipment;
(iii) any proceeds with respect to the NH Purchased
Contracts from claims on insurance policies covering Financed
Equipment or Obligors;
(iv) any proceeds from recourse to Dealers with respect to
the NH Purchased Contracts other than any interest in the Dealers'
reserve accounts maintained with NH Credit;
(v) any Financed Equipment that shall have secured the NH
Purchased Contracts and that shall have been acquired by or on behalf
of CNHCR;
(vi) any True Lease Equipment that is subject to any NH
Purchased Contract; and
(vii) the proceeds of any and all of the foregoing.
SECTION 2.2 Conveyance of Subsequent NH 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 NH Credit of
the related Subsequent NH Purchase Price pursuant to Section 2.5, NH 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 NH Assets"; and together with the
Initial NH Assets, the "NH Assets"):
(i) the Subsequent NH Receivables listed on Schedule A to
the related NH 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 NH Receivables and
any other interest of NH Credit in such Financed Equipment;
(iii) any proceeds with respect to such Subsequent NH
Receivables from claims on insurance policies covering Financed
Equipment or Obligors;
(iv) any proceeds with respect to such Subsequent NH
Receivables from recourse to Dealers other than any interest in the
Dealers' reserve accounts maintained with NH Credit;
(v) any Financed Equipment that shall have secured any such
Subsequent NH Receivable and that shall have been acquired by or on
behalf of CNHCR;
(vi) any True Lease Equipment that is subject to any
Subsequent NH Receivable; and
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(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 NH Credit of the NH Purchased
Contracts and the Subsequent NH Receivables and any True Lease Equipment, in
each case, related thereto, as the case may be, and not as a lending
transaction, so that in the event of a filing of a petition for relief by or
against NH Credit under the Bankruptcy Code, (i) such NH Purchased Contracts,
Subsequent NH Receivables and True Lease Equipment would not be property of NH
Credit's bankruptcy estate under Section 541 of the Bankruptcy Code, (ii) the
bankruptcy court would not compel the turnover of such NH Purchased Contracts,
Subsequent NH Receivables and True Lease Equipment by CNHCR to NH Credit under
Section 542 of the Bankruptcy Code, and (iii) the bankruptcy court would
determine that payments on the NH Purchased Contracts, Subsequent NH
Receivables and True Lease Equipment not in the possession of NH Credit would
not be subject to the automatic stay provisions of Section 362(a) of the
Bankruptcy Code imposed upon the commencement of NH Credit's bankruptcy case.
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 NH Purchased Contract or any
Subsequent NH Receivable, nor shall CNHCR be obligated to perform or otherwise
be responsible for any obligation of NH Credit or any other Person in
connection with the NH Purchased Contracts or the Subsequent NH 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 NH Assets
hereunder is characterized by a court or other governmental authority as a
loan rather than a sale, NH Credit shall be deemed hereunder to have granted
to CNHCR a security interest in all of NH Credit's right, title and interest
in and to the NH Assets. Such security interest shall secure all of NH
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 NH Purchased
Contracts shall take place at a closing at the offices of Mayer, Brown, Xxxx &
Maw, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 on the Closing Date,
simultaneously with the closings under: (a) the Case 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) NH Purchased Contracts. The Initial NH Purchase Price is payable
as $277,940,133.65 in cash on the Closing Date.
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(b)......Subsequent NH Receivables. As consideration for the
conveyance of Subsequent NH Receivables pursuant to Section 2.2, CNHCR shall
pay or cause to be paid to NH Credit on each Subsequent Transfer Date an
amount (a "Subsequent NH Purchase Price") equal to the aggregate Contract
Value of the Subsequent NH Receivables as of the related Subsequent Cutoff
Date, plus any premium or minus any discount agreed upon by NH Credit and
CNHCR. Any Subsequent NH Purchase Price shall be payable as follows: (i) cash
in the amount released to CNHCR in respect of the Subsequent NH Receivables
from the Pre-Funding Account pursuant to Section 5.7(a) of the Sale and
Servicing Agreement shall be paid to NH 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 NH Credit as of the date hereof and as of the
Closing Date:
(a) Organization and Good Standing. CNHCR has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with the power and authority
to own its properties and to conduct its business as such properties
are currently owned and such business is presently conducted, and had
at all relevant times, and has, the power and authority to acquire,
own and sell the NH 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
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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 NH Credit. (a) NH
Credit hereby represents and warrants to CNHCR as of the date hereof and as of
the Closing Date:
(i) Organization and Good Standing. NH Credit has been duly
organized and is validly existing as a limited liability company 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 NH Receivables.
(ii) Due Qualification. NH Credit is duly qualified to do
business as a foreign limited liability company 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. NH Credit has the power and
authority to execute and deliver this Agreement and to carry out its
terms; NH 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 limited
liability company action; and the execution, delivery and performance
of this Agreement have been, and the execution, delivery and
performance of each NH Subsequent Transfer Assignment have been or
will be on or before the related Subsequent Transfer Date, duly
authorized by NH Credit by all necessary limited liability company
action.
(iv) Binding Obligation. This Agreement constitutes, and
each NH Subsequent Transfer Assignment when executed and delivered by
NH Credit will constitute, a legal, valid and binding obligation of
NH Credit enforceable against NH Credit in accordance with their
terms.
(v) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms
hereof do not conflict with, result in any breach of any of the terms
and provisions of, or constitute (with or without notice or lapse of
time) a default under, the certificate of formation, by-laws or
limited liability company agreement of NH Credit, or any indenture,
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agreement or other instrument to which NH 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 NH Credit's knowledge, any
order, rule or regulation applicable to NH Credit of any court or of
any Federal or State regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over NH Credit or
its properties.
(vi) No Proceedings. There are no proceedings or
investigations pending, or to NH Credit's best knowledge, threatened,
before any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over NH 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 NH Credit of its obligations under, or the
validity or enforceability of, this Agreement.
(b) NH Credit makes the following representations and warranties as
to the NH Receivables on which CNHCR relies in accepting the Initial NH
Receivables and the Subsequent NH Receivables and in transferring the NH
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 NH Receivables, and as of the applicable Subsequent
Transfer Date, in the case of the Subsequent NH Receivables, but shall survive
the sale, transfer and assignment of the NH Receivables to CNHCR and the
subsequent assignment and transfer of such NH Receivables to the Trust
pursuant to the Sale and Servicing Agreement and pursuant to the Indenture:
(i) Characteristics of NH Receivables. Each NH 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 NH Credit from a Dealer and validly assigned by such
Dealer to NH Credit in accordance with its terms, or (2) was
originated in the United States of America by NH Credit in connection
with the financing or lease of Financed Equipment in the ordinary
course of NH 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 NH Credit that, as of the Closing
Date, has been assigned by NH 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) NH 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
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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 NH Receivables. The information set forth
on Schedule A to the NH 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 NH Subsequent Transfer Assignment will be
true and correct on each Subsequent Transfer Date related to such NH
Subsequent Transfer Assignment and no selection procedures believed
by NH Credit to be adverse to the interests of the Trust, the
Noteholders or the Certificateholders were or will be utilized in
selecting the NH Receivables. The computer tape regarding the NH
Receivables made available to CNHCR and its assigns is true and
correct in all respects.
(iii) Compliance with Law. Each NH 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 NH 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 Xxxxxxxx-Xxxx Warranty
Act, the Federal Reserve Board's Regulations B and Z, 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 NH 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 NH 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 NH
Receivable shall be secured by a validly perfected first priority
security interest in the Financed Equipment in favor of NH 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 NH
Credit as secured party, except that (A) no security interest against
the Obligor is created in True Lease Equipment and (B) NH 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) NH Receivables in Force. No NH Receivable has been
satisfied, subordinated or rescinded, nor has any Financed Equipment
been released from the Lien granted by the related NH Receivable in
whole or in part.
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(viii) No Amendment or Waiver. No provision of a NH
Receivable has been waived, altered or modified in any respect,
except pursuant to a document, instrument or writing included in the
Receivable Files and no such amendment, waiver, alteration or
modification causes such NH 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 NH Receivable.
(x) No Liens. To the best of NH 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 NH Receivable, except those
pursuant to the Basic Documents.
(xi) No Default. No NH 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 NH 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 NH Receivable has
arisen; and NH Credit has not waived and shall not waive any of the
foregoing.
(xii) Title. It is the intention of NH Credit that the
transfers and assignments contemplated herein and in the NH Liquidity
Receivables Purchase Agreement constitute a sale of the NH
Receivables from NH Credit to CNHCR and that the beneficial interest
in and title to the NH Receivables and any True Lease Equipment
related to such NH Receivables not be part of the debtor's estate in
the event of the filing of a bankruptcy petition by or against NH
Credit under any bankruptcy or similar law. No NH Receivable has been
sold, transferred, assigned or pledged by NH Credit to any Person
other than CNHCR. Immediately prior to the transfers and assignments
contemplated herein and in the NH Liquidity Receivables Purchase
Agreement, NH Credit had good title to each NH Receivable and any
True Lease Equipment related to such NH Receivable, free and clear of
all Liens and, immediately upon the transfer thereof, CNHCR shall
have good title to each NH Receivable and any True Lease Equipment,
free and clear of all Liens; and the transfer and assignment of the
NH Receivables to CNHCR has been perfected under the UCC.
(xiii) Lawful Assignment. No NH Receivable has been
originated in, or is subject to the laws of, any jurisdiction under
which the sale, transfer and assignment of such NH Receivable or any
NH Receivable under this Agreement, the NH 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 NH Receivables have been made.
(xv) One Original. There is only one original executed copy
of each NH Receivable.
(xvi) Insurance. The Obligor on each NH 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 NH Credit's normal requirements.
(xvii) No Bankruptcies. No Obligor on any NH 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.
(xviii) No Repossessions. None of the Financed Equipment
securing any NH Receivable is in repossession status.
(xix) Chattel Paper. Each NH Receivable constitutes tangible
"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.
(xx) U.S. Obligors. None of the NH 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.
(xxi) Interest Accruing. Each NH Receivable, other than
those NH 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 NH
Receivable contains an interest waiver extending more than 12 months
after the Initial Cutoff Date.
(xxii) Leases. Each Lease included in the Initial NH
Receivables or the Subsequent NH 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.
(xxiii) NH Credit's Representations. The representations and
warranties of NH Credit contained in Section 3.2(a) are true and
correct.
(xxiv) NH Credit's Obligations. NH Credit has no obligations
under any Contract, other than the covenant of quiet enjoyment
benefiting the Obligors under any Contracts that are Leases.
(xxv) No Either/or Leases. No Lease included in the Initial
NH Receivables or the Subsequent NH Receivables is an Either/or
10
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.
(xxvi) No Leases. Notwithstanding anything to the contrary
in the Basic Documents, none of the Initial NH Receivables or the
Subsequent NH Receivables shall be Leases.
(xxvii) Perfection Representations. NH Credit further makes
all of the representations, warranties and covenants set forth in
Schedule P.
ARTICLE IV
CONDITIONS
SECTION 4.1 Conditions to Obligation of CNHCR.
(a) NH Purchased Contracts. The obligation of CNHCR to purchase the
NH Purchased Contracts is subject to the satisfaction of the following
conditions:
(i) Representations and Warranties True. The representations
and warranties of NH Credit hereunder shall be true and correct on
the Closing Date and NH Credit shall have performed all obligations
to be performed by it hereunder on or prior to the Closing Date.
(ii) Computer Files Marked. NH Credit shall, at its own
expense, on or prior to the Closing Date, indicate in its computer
files that NH Receivables created in connection with the NH Purchased
Contracts have been sold to CNHCR pursuant to this Agreement and
deliver to CNHCR the Schedule of NH Receivables certified by the
Chairman, the President, a Vice President or the Treasurer of NH
Credit to be true, correct and complete.
(iii) Documents To Be Delivered by NH Credit on the Closing
Date.
(A) The NH Assignment. On the Closing Date (but
only if the Contract Value of the NH Purchased Contracts is
greater than zero), NH Credit will execute and deliver the
NH 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 NH
Purchased Contracts is greater than zero), NH Credit shall
execute and file, at its own expense, a UCC financing
statement in each jurisdiction in which such action is
required by applicable law to fully perfect CNHCR's right,
title and interest in the NH Purchased Contracts and the
other property sold hereunder, executed by NH Credit, as
seller or debtor, and naming CNHCR, as CNHCR or secured
party, describing the NH 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 NH Purchased Contracts and such other
property to CNHCR. It is understood and agreed, however,
11
that no filings will be made to perfect any security
interest of CNHCR in NH Credit's interests in Financed
Equipment. NH 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. NH 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 NH Receivables. The obligation of CNHCR to purchase
any Subsequent NH Receivables is subject to the satisfaction of the following
conditions on or prior to the related Subsequent Transfer Date:
(i) NH Credit shall have delivered to CNHCR a duly executed
written assignment in substantially the form of Exhibit B (the "NH
Subsequent Transfer Assignment"), which shall include supplements to
the Schedule of NH Receivables listing the Subsequent NH Receivables;
(ii) NH 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 NH Receivables;
(iii) as of such Subsequent Transfer Date: (A) NH Credit was
not insolvent and will not become insolvent as a result of the
transfer of Subsequent NH Receivables on such Subsequent Transfer
Date, (B) NH Credit did not intend to incur or believe that it would
incur debts that would be beyond NH 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 NH Credit
did not constitute unreasonably small capital to carry out its
business as conducted;
(iv) the applicable Spread Account Initial Deposit and
Principal Supplement Account Deposit, if any, for such Subsequent
Transfer Date shall have been made;
(v) the Funding Period shall not have terminated;
(vi) each of the representations and warranties made by NH
Credit pursuant to Section 3.2(b) with respect to the Subsequent NH
Receivables shall be true and correct as of such Subsequent Transfer
Date, and NH Credit shall have performed all obligations to be
performed by it hereunder on or prior to such Subsequent Transfer
Date;
(vii) NH Credit shall, at its own expense, on or prior to
such Subsequent Transfer Date, indicate in its computer files that
12
the Subsequent NH Receivables identified in the related NH Subsequent
Transfer Assignment have been sold to CNHCR pursuant to this
Agreement and the NH Subsequent Transfer Assignment;
(viii) NH Credit shall have taken any action required to
give CNHCR a first priority perfected ownership interest in the
Subsequent NH Receivables;
(ix) no selection procedures believed by NH Credit to be
adverse to the interests of CNHCR, the Trust, the Noteholders or the
Certificateholders shall have been utilized in selecting the
Subsequent NH Receivables;
(x) the addition of the Subsequent NH Receivables will not
result in a material adverse tax consequence to CNHCR, the Trust, the
Noteholders or the Certificateholders;
(xi) NH Credit shall have provided CNHCR a statement listing
the aggregate Contract Value of such Subsequent NH Receivables and
any other information reasonably requested by CNHCR with respect to
such Subsequent NH Receivables;
(xii) all the conditions to the transfer of the Subsequent
NH Receivables to the Issuer specified in the Sale and Servicing
Agreement shall have been satisfied; and
(xiii) NH 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 NH Subsequent Transfer Assignment).
SECTION 4.2 Conditions to Obligation of NH Credit. The obligation of
NH Credit to sell the NH Purchased Contracts and the Subsequent NH Receivables
to CNHCR is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations
and warranties of CNHCR hereunder shall be true and correct on the
Closing Date or the applicable Subsequent Transfer Date with the same
effect as if then made, and CNHCR shall have performed all
obligations to be performed by it hereunder on or prior to the
Closing Date or such Subsequent Transfer Date.
(b) Receivables Purchase Price. On the Closing Date or the
applicable Subsequent Transfer Date, CNHCR shall have delivered to NH
Credit the portion of the Initial NH Purchase Price or the Subsequent
NH 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 NH CREDIT
NH 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:
13
SECTION 5.1 Protection of Right, Title and Interest.
(a) Filings. NH 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 NH 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 NH 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 NH Credit's
interests in Financed Equipment. NH 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 NH 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 NH Credit makes any change in
its name, identity or limited liability company 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, NH 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.
(c) Location Change. Within 15 days after NH Credit makes any change
to its "location" as defined in Section 9-307 of the UCC, NH 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 NH Liquidity Receivables Purchase Agreement, the
Sale and Servicing Agreement, the Indenture and the other Basic Documents, NH
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 NH Receivables, and (b) shall defend the right, title and interest
of CNHCR in, to and under the NH Receivables against all claims of third
parties claiming through or under NH Credit; provided, however, that NH
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 NH
Receivables, NH 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. NH 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 NH Receivables.
14
SECTION 5.5 Indemnification. NH Credit shall indemnify, defend and
hold harmless CNHCR for any liability as a result of the failure of a NH
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 NH
Credit may otherwise have. NH 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 NH
Receivables to CNHCR hereunder or the sale of the NH 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 NH
Receivables on Federal or other income taxes arising out of the transactions
contemplated by this Agreement) and costs and expenses in defending against
the same.
SECTION 5.6 Transfer of Subsequent NH Receivables. NH Credit
covenants to transfer to CNHCR, pursuant to Section 2.2, Subsequent NH
Receivables with an aggregate Contract Value approximately equal to
$385,142,899.54 minus the aggregate Contract Value of any Receivables sold to
CNHCR by Case Credit pursuant to Section 5.6 of the Case Purchase Agreement,
subject only to the availability of such Subsequent NH Receivables.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1 Obligations of NH Credit. The obligations of NH Credit
under this Agreement shall not be affected by reason of any invalidity,
illegality or irregularity of any NH Receivable.
SECTION 6.2 Repurchase Events. NH 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 NH Credit's representations and warranties contained in Section 3.2(b),
shall constitute events obligating NH Credit to repurchase 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 NH Credit shall constitute the sole
remedy of CNHCR, the Indenture Trustee, the Noteholders, the Trust, the
Trustee or the Certificateholders against NH Credit with respect to any
Repurchase Event.
SECTION 6.3 CNHCR Assignment of Repurchased Receivables. With respect
to all NH Receivables repurchased by NH Credit pursuant to this Agreement,
CNHCR shall sell, transfer, assign, set over and otherwise convey to NH
Credit, without recourse, representation or warranty, all of CNHCR's right,
title and interest in, to and under such NH Receivables, and all security and
documents relating thereto.
SECTION 6.4 Trust. NH Credit acknowledges and agrees that: (a) CNHCR
will, pursuant to the Sale and Servicing Agreement, sell the NH Receivables to
15
the Trust and assign its rights under this Agreement to the Trust, (b) the
Trust will, pursuant to the Indenture, assign such NH 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, the Counterparties and the Noteholders. NH 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.
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 NH 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 NH 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 NH 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) NH 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.
16
SECTION 6.7 Waivers. No failure or delay on the part of CNHCR in
exercising any power, right or remedy under this Agreement, the NH Assignment
or any NH 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 NH Credit, to New Holland Credit
Company, LLC, 00 Xxxxx Xxxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxxxx 00000-0000,
Attention: Finance Manager (telephone (000) 000-0000); with a copy to Senior
Counsel; (b) in the case of CNHCR, to CNH Capital Receivables Inc., 000 Xxxxx
Xxxxxxxx Xxxx, Xxxx Xxxxxx, Xxxxxxxx 00000, Attention: Treasurer (telephone
(000) 000-0000); (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. NH Credit will pay all expenses
incident to the performance of its obligations under this Agreement and NH
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 NH Receivables and the enforcement of any obligation of NH Credit
hereunder.
SECTION 6.10 Representations of NH Credit and CNHCR. The respective
agreements, representations, warranties and other statements by NH 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 NH Receivables, under the Sale and Servicing Agreement or
the Indenture or any other Basic Document or as required by any of the
foregoing or by law.
SECTION 6.12 Headings and Cross-References. The various headings in
this Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement. References in
this Agreement to Section names or numbers are to such Sections of this
Agreement unless otherwise expressly indicated.
SECTION 6.13 Governing Law. This Agreement, the NH Assignment, and
each NH 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.
17
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.
18
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 page follows)
19
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/ Xxxxx X'Xxxxx
---------------------------
Name: Xxxxx X'Xxxxx
Title:
NEW HOLLAND CREDIT COMPANY, LLC
By: /s/ Xxxxx X'Xxxxx
---------------------------
Name: Xxxxx X'Xxxxx
Title:
S-1
EXHIBIT A
to NH Purchase Agreement
FORM OF
NH ASSIGNMENT
-------------
For value received, in accordance with and subject to the NH Purchase
Agreement dated as of May 1, 0000 (xxx "XX 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 NH 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 NH Purchased Contracts and any other
interest of the undersigned in such Financed Equipment, (c) any proceeds with
respect to the NH Purchased Contracts from claims on insurance policies
covering Financed Equipment or Obligors, (d) any proceeds from recourse to
Dealers with respect to the NH Purchased Contracts other than any interest in
the Dealers' reserve accounts maintained with NH Credit, (e) any Financed
Equipment that shall have secured the NH Purchased Contracts and that shall
have been acquired by or on behalf of CNHCR, (f) any True Lease Equipment that
is subject to any NH 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 NH Purchased Contracts, Receivables Files, any
insurance policies or any agreement or instrument relating to any of them.
This NH Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the NH
Purchase Agreement and is to be governed in all respects by the NH Purchase
Agreement.
Capitalized terms used herein and not otherwise defined shall have
the meanings assigned to them in the NH Purchase Agreement.
A-1
IN WITNESS WHEREOF, the undersigned has caused this NH Assignment to
be duly executed as of May 1, 2003.
New Holland Credit Company, LLC
By: _______________________________
Name:
Title:
A-2
EXHIBIT B
to NH Purchase Agreement
FORM OF
NH SUBSEQUENT TRANSFER ASSIGNMENT
---------------------------------
For value received, in accordance with and subject to the NH Purchase
Agreement dated as of May 1, 0000 (xxx "XX Purchase Agreement") between New
Holland Credit Company LLC, a Delaware limited liability company ("NH
Credit"), and CNH Capital Receivables Inc., a Delaware corporation ("CNHCR"),
NH 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 NH 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 NH Receivables and any other interest of NH Credit
in such Financed Equipment, (c) any proceeds with respect to such Subsequent
NH Receivables from claims on insurance policies covering Financed Equipment
or Obligors, (d) any proceeds from recourse to Dealers with respect to such
Subsequent NH Receivables other than any interest in the Dealers' reserve
accounts maintained with NH Credit, (e) any Financed Equipment that shall have
secured any such Subsequent NH Receivables and that shall have been acquired
by or on behalf of CNHCR, (f) any True Lease Equipment that is subject to any
Subsequent NH 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 NH Credit to the Obligors, insurers or any other person in
connection with such Subsequent NH Receivables, Receivable Files, any
insurance policies or any agreement or instrument relating to any of them.
This NH Subsequent Transfer Assignment is made pursuant to and upon
the representations, warranties and agreements on the part of NH Credit
contained in the NH Purchase Agreement (including the Officers' Certificate of
NH Credit accompanying this Agreement) and is to be governed in all respects
by the NH Purchase Agreement.
Capitalized terms used but not otherwise defined herein shall have
the meanings assigned to them in the NH Purchase Agreement.
B-1
IN WITNESS WHEREOF, the undersigned has caused this NH Subsequent
Transfer Assignment to be duly executed as of the __ day of , 2003.
New Holland Credit Company, LLC
By:________________________________
Name:
Title:
SCHEDULE A
to NH Subsequent Transfer Assignment
SCHEDULE OF SUBSEQUENT NH RECEIVABLES
-------------------------------------
[See attached list]
ANNEX A
to NH Subsequent Transfer Assignment
OFFICERS' CERTIFICATE
---------------------
We, the undersigned officers of New Holland Credit Company, LLC (the
"Company"), do hereby certify, pursuant to Section 4.1(b)(xiii) of the NH
Purchase Agreement dated as of May 1, 2003 among the Company, and CNH Capital
Receivables Inc. (the "NH Purchase Agreement"), that (i) all of the conditions
precedent to the transfer to CNHCR of the Subsequent NH Receivables listed on
Schedule A to the NH Subsequent Transfer Assignment delivered herewith, and
the other property and rights related to such Subsequent NH Receivables as
described in Section 2.2 of the NH 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 NH Receivables
shall be true and correct as of the date hereof with respect to the Subsequent
NH Receivables listed on the aforementioned Schedule A.
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the NH 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 NH Purchase Agreement creates, or with respect
to the NH 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 the NH Receivables in favor of CNHCR, which, (a) is
enforceable upon execution of the NH Purchase Agreement against creditors of
and purchasers from NH 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 5
below).
2._______General. The NH Receivables constitute "tangible chattel
paper" within the meaning of UCC Section 9-102. NH Credit has taken all steps
necessary to perfect its security interest against the Obligor in the Financed
Equipment securing the NH Receivables.
3._______Creation. Immediately prior to the conveyance of the NH
Receivables pursuant to the NH Purchase Agreement, NH Credit owns and has good
and marketable title to, or has a valid security interest in, the NH
Receivables free and clear of any Lien, claim or encumbrance of any Person.
4._______Perfection. NH 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 NH Purchase Agreement in the NH Receivables. With respect to the NH
Receivables that constitute tangible chattel paper, NH Credit has in its
possession the original copies of such tangible chattel paper that constitute
or evidence the NH Receivables, and NH Credit has caused, or will have caused
within ten days of the effective date of the NH Agreement, the filing of
financing statements against NH Credit in favor of CNHCR in connection
herewith describing such NH 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 NH Purchase Agreement and the NH Liquidity Receivables
Purchase Agreement, NH Credit has not pledged, assigned, sold, granted a
security interest in, or otherwise conveyed any of the NH Receivables. NH
Credit has not authorized the filing of and is not aware of any financing
statements against NH Credit that include a description of collateral covering
the NH Receivables other than any financing statement (i) relating to the
security interests granted to CNHCR under the NH Purchase Agreement and the NH
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 NH Receivables
has any marks or notations indicating that they have pledged, assigned or
otherwise conveyed to any Person other than the Indenture Trustee.
