Exhibit 4.5
-------------------------------------------------------------------------------
CNH EQUIPMENT TRUST 2002-B
NH PURCHASE AGREEMENT
between
NEW HOLLAND CREDIT COMPANY, LLC
and
CNH CAPITAL RECEIVABLES INC.
Dated as of November 1, 2002
-------------------------------------------------------------------------------
Table of Contents
Page
ARTICLE I Certain Definitions.............................................2
SECTION 1.1 Definitions...........................................2
SECTION 1.2 Other Definitional Provisions.........................2
ARTICLE II Conveyance of 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
TABLE OF CONTENTS
-----------------
(continued)
EXHIBITS
EXHIBIT A Form of NH Assignment
EXHIBIT B Form of NH Subsequent Transfer Assignment
SCHEDULES
SCHEDULE P Perfection Representations and Warranties
ii
NH PURCHASE AGREEMENT (as amended or supplemented from time to
time, this "Agreement") dated as of November 1, 2002 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
$44,223,365.49 (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 $293,051,928.09
(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 2002-B (the "Trust"), which Trust will issue Asset
Backed Certificates representing non-assessable, fully paid, fractional
undivided interests in, and 1.40625% Class A-1 Asset Backed Notes, 1.86000%
Class A-2 Asset Backed Notes, Floating Rate Class A-3 Asset Backed Notes,
Floating Rate Class A-4 Asset Backed Notes and 4.12000% Class B Asset
Backed Notes collateralized by, the Receivables and the other property of
the Trust; and
WHEREAS, 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 2002-B and JPMorgan Chase
Bank.
SECTION 1.2 Other Definitional Provisions. (a) All terms defined
in this Agreement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto unless
otherwise defined therein.
(b) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles as in effect
on the date hereof. To the extent that the definitions of accounting terms
in this Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under generally accepted
accounting principles, the definitions contained in this Agreement or in
any such certificate or other document shall control.
(c) The words "hereof", "herein", "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement; Section, Schedule
and Exhibit references contained in this Agreement are references to
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified; and the term "including" shall mean "including, without
limitation,".
(d) The definitions contained in this Agreement are applicable to
the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such terms.
ARTICLE II
Conveyance of NH Receivables
SECTION 2.1 Conveyance of NH Purchased Contracts. In consideration
of CNHCR's payment of $337,275,293.58 (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;
2
(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
3
(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.
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,
▇▇▇▇ & Maw, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 $337,275,293.58 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.
4
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 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.
5
(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, 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.
6
(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
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.
7
(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 ▇▇▇▇▇▇▇▇-▇▇▇▇ 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.
(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.
8
(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.
(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.
9
(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
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.
10
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, 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.
11
(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
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;
12
(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.
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,
14
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
$283,134,277.87 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 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.
15
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.
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, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Finance Manager (telephone (▇▇▇) ▇▇▇-▇▇▇▇); with a
copy to Senior Counsel; (b) in the case of CNHCR, to CNH Capital
16
Receivables Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Treasurer (telephone (▇▇▇) ▇▇▇-▇▇▇▇); (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.
SECTION 6.14 Counterparts. This Agreement may be executed in two
or more counterparts and by different parties on separate counterparts,
each of which shall be an original, but all of which together shall
constitute but one and the same instrument.
SECTION 6.15 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
(signature page follows)
17
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/ ▇▇▇▇▇ ▇'▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Assistant Treasurer
NEW HOLLAND CREDIT COMPANY, LLC
By: /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Assistant Treasurer
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 November 1, ▇▇▇▇ (▇▇▇ "▇▇ 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 November 1, 2002.
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 November 1, ▇▇▇▇ (▇▇▇ "▇▇ 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 ___________, 2002.
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 November 1, 2002 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.
