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CNH EQUIPMENT TRUST 2001-A
NH PURCHASE AGREEMENT
between
NEW HOLLAND CREDIT COMPANY, LLC
and
CNH CAPITAL RECEIVABLES INC.
Dated as of May 1, 2001
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TABLE OF CONTENTS
Page
ARTICLE I
Certain Definitions
SECTION 1.1 Definitions..........................................2
SECTION 1.2 Other Definitional Provisions........................2
ARTICLE II
Conveyance of NH Receivables
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........................5
ARTICLE III
Representations and Warranties
SECTION 3.1 Representations and Warranties of CNHCR..............5
SECTION 3.2 Representations and Warranties of NH Credit..........6
ARTICLE IV
Conditions
SECTION 4.1 Conditions to Obligation of CNHCR...................12
SECTION 4.2 Conditions to Obligation of NH Credit...............14
ARTICLE V
Covenants of NH Credit
SECTION 5.1 Protection of Right, Title and Interest.............15
SECTION 5.2 Other Liens or Interests............................15
SECTION 5.3 Chief Executive Office..............................16
SECTION 5.4 Costs and Expenses..................................16
SECTION 5.5 Indemnification.....................................16
SECTION 5.6 Transfer of Subsequent NH Receivables...............16
ARTICLE VI
Miscellaneous Provisions
SECTION 6.1 Obligations of NH Credit............................16
SECTION 6.2 Repurchase Events...................................16
SECTION 6.3 CNHCR Assignment of Repurchased Receivables.........17
SECTION 6.4 Trust...............................................17
SECTION 6.5 Amendment...........................................17
SECTION 6.6 Accountants' Letters................................18
SECTION 6.7 Waivers.............................................18
SECTION 6.8 Notices.............................................18
SECTION 6.9 Costs and Expenses..................................18
SECTION 6.10 Representations of NH Credit and CNHCR..............19
SECTION 6.11 Confidential Information............................19
SECTION 6.12 Headings and Cross-References.......................19
SECTION 6.13 Governing Law.......................................19
SECTION 6.14 Counterparts........................................19
SECTION 6.15 Severability........................................19
EXHIBITS
EXHIBIT A Form of NH Assignment
EXHIBIT B Form of NH Subsequent Transfer Assignment
ii
NH PURCHASE AGREEMENT (as amended or supplemented from time to
time, this "Agreement") dated as of May 1, 2001 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
$51,511,649.07 (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 $122,566,192.28
(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 2001-A (the "Trust"), which Trust will issue 5.73%
Asset Backed Certificates representing fractional undivided interests in,
and 4.035% Class A-1 Asset Backed Notes, Floating Rate Class A-2 Asset
Backed Notes, Floating Rate Class A-3 Asset Backed Notes, 5.38% Class A-4
Asset Backed Notes and 5.73% Class B Asset Backed Notes collateralized by,
the Receivables and the other property of the Trust; and
WHEREAS, 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 and the Certificateholders.
NOW, THEREFORE, in consideration of the foregoing, other good and
valuable consideration and the mutual terms and covenants contained herein
the parties hereto agree as follows:
ARTICLE I
Certain Definitions
SECTION 1.1 Definitions. Capitalized terms used herein and not
otherwise defined herein are defined in Appendix A to the Indenture dated
as of the date hereof between CNH Equipment Trust 2001-A and Bank One,
National Association.
SECTION 1.2 Other Definitional Provisions. (a) All terms defined in
this Agreement shall have the defined meanings when used in any certificate
or other document made or delivered pursuant hereto unless otherwise
defined therein.
(b) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles as in effect
on the date hereof. To the extent that the definitions of accounting terms
in this Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under generally accepted
accounting principles, the definitions contained in this Agreement or in
any such certificate or other document shall control.
(c) The words "hereof", "herein", "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section, Schedule and
Exhibit references contained in this Agreement are references to Sections,
Schedules and Exhibits in or to this Agreement unless otherwise specified;
and the term "including" shall mean "including, without limitation,".
(d) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
ARTICLE II
Conveyance of NH Receivables
SECTION 2.1 Conveyance of NH Purchased Contracts. In consideration of
CNHCR's payment of $51,511,649.07 (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"):
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(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;
(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;
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(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
(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
related to such NH Purchased Contracts or Subsequent NH 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 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.
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SECTION 2.4 The Closing. The sale and purchase of the NH Purchased
Contracts shall take place at a closing at the offices of Xxxxx, Xxxxx &
Xxxxx, 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.
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(a) NH Purchased Contracts. The Initial NH Purchase Price is
payable as $51,511,649.07 in cash on the Closing Date.
(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.
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(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 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.
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(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, 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.
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(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
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.
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(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.
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(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.
(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 "chattel
paper" as defined in the UCC of the State the law of which governs
the perfection of the interest granted in it.
(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.
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(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
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.
ARTICLE IV
Conditions
SECTION 4.1 Conditions to Obligation of CNHCR.
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(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.
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(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, 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;
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(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 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).
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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:
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.
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(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.
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 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.
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 $334,913,958.08 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.
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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
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 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.
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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.
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.
[CONFIRM/UPDATE NOTICE INFORMATION]
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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.
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.
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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)
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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. X'Xxxxx
-----------------------------------------
Name: Xxxxx X. X'Xxxxx
Title: Assistant Treasurer
NEW HOLLAND CREDIT COMPANY, LLC
By: /s/ L. Xxxxxxx Xxxx
----------------------------------------
Name: L. Xxxxxxx Xxxx
Title: President
S-1 NH Purchase Agreement
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, 2001.
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 , 2001.
NEW HOLLAND CREDIT COMPANY, LLC
By:________________________________________
Name:
Title:
B-2
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, 2001 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:________ _________________________
