Exhibit 99(c)
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CNH EQUIPMENT TRUST 200_-_
PURCHASE AGREEMENT
between
[_________________________],
as Originator,
and
CNH CAPITAL RECEIVABLES INC.,
as Purchaser.
Dated as of [____________]
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TABLE OF CONTENTS
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Page
ARTICLE I
Certain Definitions
SECTION 1.1. Definitions..........................................2
SECTION 1.2. Other Definitional Provisions.......................2
ARTICLE II
Conveyance of Receivables
SECTION 2.1. Conveyance of Purchased Contracts.....................3
SECTION 2.2. Conveyance of Subsequent Receivables..................3
SECTION 2.3. Intention of the Parties..............................4
SECTION 2.4. The Closing...........................................5
SECTION 2.5. Payment of the Purchase Price.........................5
ARTICLE III
Representations and Warranties
SECTION 3.1. Representations and Warranties of the Purchaser........6
SECTION 3.2. Representations and Warranties of the Originator.......7
ARTICLE IV
Conditions
SECTION 4.1. Conditions to Obligation of the Purchaser.............14
SECTION 4.2. Conditions to Obligation of the Originator............17
ARTICLE V
Covenants of the Originator
SECTION 5.1. Protection of Right, Title and Interest. .............17
SECTION 5.2. Other Liens or Interests..............................18
SECTION 5.3. Chief Executive Office................................18
SECTION 5.4. Costs and Expenses....................................18
SECTION 5.5. Indemnification.......................................18
SECTION 5.6. Transfer of Subsequent Receivables....................19
ARTICLE VI
Miscellaneous Provisions
SECTION 6.1. Obligations of Originator.............................19
SECTION 6.2. Repurchase Events.....................................19
SECTION 6.3. Purchaser Assignment of Repurchased Receivables.......19
SECTION 6.4. Trust.................................................19
SECTION 6.5. Amendment.............................................20
SECTION 6.6. Accountants' Letters..................................20
SECTION 6.7. Waivers...............................................21
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TABLE OF CONTENTS
(continued)
Page
SECTION 6.8. Notices...............................................21
SECTION 6.9. Costs and Expenses....................................21
SECTION 6.10. Representations of the Originator and the Purchaser..21
SECTION 6.11. Confidential Information.............................21
SECTION 6.12. Headings and Cross-References........................21
SECTION 6.13. Governing Law........................................21
SECTION 6.14. Counterparts.........................................22
SECTION 6.15. Severability.........................................22
EXHIBITS
EXHIBIT A Form of First-Tier [ ] Assignment
EXHIBIT B Form of First-Tier [ ] Subsequent Transfer Assignment
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PURCHASE AGREEMENT (as amended or supplemented from time to time,
this "Agreement"), dated as of [____________], between
[___________________________________], a [________________] corporation
(the "Originator"), and CNH CAPITAL RECEIVABLES INC., a Delaware corporation
(the "Purchaser").
RECITALS
WHEREAS, in the regular course of its business, the Originator
purchases, directly and indirectly, from equipment dealers and brokers, and
directly originates, Contracts; and
WHEREAS, in the regular course of its business, the Originator
purchases from Case Corporation certain Contracts originated by Case
Corporation in the ordinary course of business; and
WHEREAS, the Originator and the Purchaser wish to set forth the
terms pursuant to which: (1) Contracts having an aggregate Contract Value
of approximately $[____________] (the "Purchased Contracts") as of Initial
Cutoff Date and the Originator's right, title and interest in any True
Lease Equipment related to such Contracts are to be sold by the Originator
to the Purchaser on the date hereof and (2) certain Subsequent Receivables
and the Originator's right, title and interest in any True Lease Equipment
related to such Subsequent Receivables are to be sold by the Originator to
the Purchaser from time to time on each Subsequent Transfer Date; and
WHEREAS, the Purchaser as of the Initial Cutoff Date, owned
Contracts previously purchased from the Originator pursuant to a
Receivables Purchase Agreement dated as of [____________] (as amended from
time to time, the "Liquidity Receivables Purchase Agreement"), between the
Originator and the Purchaser, having an aggregate Contract Value of
approximately $[____________] (the "Owned Contracts", and together with the
Purchased Contracts, the "Initial Receivables"); and
WHEREAS, the Initial Receivables and the Subsequent Receivables
(collectively, the "Receivables") and any True Lease Equipment related to
such Receivables will be transferred by the Purchaser, pursuant to the Sale
and Servicing Agreement, to CNH Equipment Trust 200_-_ (the "Trust"), which
Trust will issue [___]% Asset Backed Certificates representing fractional
undivided interests in, and [___]% Class A-1 Asset Backed Notes, [___]%
Class A-2 Asset Backed Notes, [___]% Class A-3 Asset Backed Notes, [___]%
Class A-4 Asset Backed Notes and [___]% Class B Asset Backed Notes
collateralized by, the Receivables and the other property of the Trust; and
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WHEREAS, the Originator and the Purchaser wish to set forth herein
certain representations, warranties, covenants and indemnities of the
Originator with respect to the Receivables for the benefit of the
Purchaser, 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 200_-_ and [_________________].
SECTION 1.2. Other Definitional Provisions. (a) All terms defined
in this Agreement shall have the defined meanings when used in any certificate
or other document made or delivered pursuant hereto unless otherwise defined
therein.
(b) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles as in effect
on the date hereof. To the extent that the definitions of accounting terms
in this Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under generally accepted
accounting principles, the definitions contained in this Agreement or in
any such certificate or other document shall control.
(c) The words "hereof", "herein", "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement; Section, Schedule
and Exhibit references contained in this Agreement are references to
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified; and the term "including" shall mean "including, without
limitation,".
(d) The definitions contained in this Agreement are applicable to
the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such terms.
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ARTICLE II
Conveyance of Receivables
SECTION 2.1. Conveyance of Purchased Contracts. In consideration
of the Purchaser's payment of $[____________] (the "Initial Purchase
Price") in the manner set out in Section 2.5(a), the Originator does hereby
sell, transfer, assign, set over and otherwise convey to the Purchaser,
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 First-Tier
Assets"):
(i) the 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 Purchased Contracts and any
other interest of the Originator in such Financed Equipment;
(iii) any proceeds with respect to the Purchased
Contracts from claims on insurance policies covering Financed
Equipment or Obligors;
(iv) any proceeds from recourse to Dealers with respect
to the Purchased Contracts other than any interest in the Dealers'
reserve accounts maintained with the Originator;
(v) any Financed Equipment that shall have secured the
Purchased Contracts and that shall have been acquired by or on
behalf of the Purchaser;
(vi) any True Lease Equipment that is subject to any Purchased
Contract; and
(vii) the proceeds of any and all of the foregoing.
SECTION 2.2. Conveyance of Subsequent Receivables. Subject to the
conditions set forth in Section 4.1(b), in consideration of the Purchaser's
delivery on the related Subsequent Transfer Date to or upon the order of
the Originator of the related Subsequent Purchase Price pursuant to Section
2.5, the Originator does hereby sell, transfer, assign, set over and
otherwise convey to the Purchaser, 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 First-Tier Assets"; and together with the Initial
First-Tier Assets, the "First-Tier Assets"):
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(i) the Subsequent Receivables listed on Schedule A to
the related First-Tier [___________] Subsequent Transfer Assignment,
including all documents constituting chattel paper included
therewith, and all obligations of the Obligors thereunder,
including all moneys paid thereunder on or after the related
Subsequent Cutoff Date;
(ii) the security interests in the Financed Equipment
granted by Obligors pursuant to such Subsequent Receivables and
any other interest of the Originator in such Financed Equipment;
(iii) any proceeds with respect to such Subsequent
Receivables from claims on insurance policies covering Financed
Equipment or Obligors;
(iv) any proceeds with respect to such Subsequent
Receivables from recourse to Dealers other than any interest in
the Dealers' reserve accounts maintained with the Originator;
(v) any Financed Equipment that shall have secured any
such Subsequent Receivable and that shall have been acquired by or
on behalf of the Purchaser;
(vi) any True Lease Equipment that is subject to any
Subsequent 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 the Purchaser and a sale by the
Originator of the Purchased Contracts and the Subsequent Receivables and
any True Lease Equipment related to such Purchased Contracts or Subsequent
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 the Purchaser
of, any obligation or liability with respect to any Purchased Contract or
any Subsequent Receivables, nor shall the Purchaser be obligated to perform
or otherwise be responsible for any obligation of the Originator or any
other Person in connection with the Purchased Contracts or the Subsequent
Receivables or under any agreement or instrument relating thereto,
including any contract or any other obligation to any Obligor, except that
the Purchaser accepts any Contracts that are Leases subject to (and
assumes) the covenants benefitting the Obligors under such Leases.
If (but only to the extent) that the transfer of the First-Tier
Assets hereunder is characterized by a court or other governmental
authority as a loan rather than a sale, the Originator shall be deemed
hereunder to have granted to the Purchaser a
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security interest in all of Originator's right, title and interest in and
to the First-Tier Assets. Such security interest shall secure all of the
Originator's obligations (monetary or otherwise) under this Agreement and
the other Basic Documents to which it is a party, whether now or hereafter
existing or arising, due or to become due, direct or indirect, absolute or
contingent. The Purchaser 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 Purchaser 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 Purchased
Contracts shall take place at a closing at the offices of ▇▇▇▇▇, ▇▇▇▇▇ &
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ on the Closing
Date, simultaneously with the closings under: (a) the Sale and Servicing
Agreement, (b) the Trust Agreement, (c) the Administration Agreement and
(d) the Indenture.
SECTION 2.5. Payment of the Purchase Price.
(a) Purchased Contracts. The Initial Purchase Price is payable as
follows:(i) [_________] in cash on the Closing Date and (ii) the remainder in
cash, as provided in the subordinated note dated [____________], payable by the
Purchaser to the Originator.
(b) Subsequent Receivables. As consideration for the conveyance of
Subsequent Receivables pursuant to Section 2.2, the Purchaser shall pay or
cause to be paid to the Originator on each Subsequent Transfer Date an
amount (a "Subsequent Purchase Price") equal to the aggregate Contract
Value of the Subsequent Receivables as of the related Subsequent Cutoff
Date, plus any premium or minus any discount agreed upon by the Originator
and the Purchaser. Any Subsequent Purchase Price shall be payable as
follows: (i) cash in the amount released to the Purchaser from the
Pre-Funding Account pursuant to Section 5.7(a) of the Sale and Servicing
Agreement shall be paid to the Originator 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, the Purchaser 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.
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ARTICLE III
Representations and Warranties
SECTION 3.1. Representations and Warranties of the Purchaser. The
Purchaser hereby represents and warrants to the Originator as of the date
hereof and as of the Closing Date:
(a) Organization and Good Standing. The Purchaser 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 Receivables.
(b) Due Qualification. The Purchaser is duly qualified to
do business as a foreign corporation in good standing, and has
obtained all necessary licenses and approvals, in all
jurisdictions in which the ownership or lease of property or the
conduct of its business shall require such qualifications.
(c) Power and Authority. The Purchaser 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 the Purchaser by all
necessary corporate action.
(d) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of the Purchaser enforceable against the
Purchaser 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 the Purchaser, or any indenture, agreement or other
instrument to which the Purchaser 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 the Purchaser's knowledge, any order, rule or regulation
applicable to the Purchaser of any court or of any Federal or
State regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Purchaser or its
properties.
(f) No Proceedings. There are no proceedings or
investigations pending or, to the Purchaser's best knowledge,
threatened, before any court,
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regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Purchaser 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 the Purchaser of its
obligations under, or the validity or enforceability of, this
Agreement.
SECTION 3.2. Representations and Warranties of the Originator. (a)
The Originator hereby represents and warrants to the Purchaser as of the date
hereof and as of the Closing Date:
(i) Organization and Good Standing. The Originator has
been duly organized and is validly existing as a [___________] in good
standing under the laws of the State of [__________], 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 Receivables.
(ii) Due Qualification. The Originator is duly qualified
to do business as a foreign corporation in good standing, and has
obtained all necessary licenses and approvals, in all
jurisdictions in which the ownership or lease of property or the
conduct of its business shall require such qualifications.
(iii) Power and Authority. The Originator has the power
and authority to execute and deliver this Agreement and to carry
out its terms; the Originator has full power and authority to sell
and assign the property to be sold and assigned to the Purchaser
hereby and has duly authorized such sale and assignment to the
Purchaser by all necessary corporate action; and the execution,
delivery and performance of this Agreement have been, and the
execution, delivery and performance of each First-Tier [ ]
Subsequent Transfer Assignment have been or will be on or before
the related Subsequent Transfer Date, duly authorized by the
Originator by all necessary corporate action.
(iv) Binding Obligation. This Agreement constitutes, and
each First- Tier [ ] Subsequent Transfer Assignment when executed
and delivered by the Originator will constitute, a legal, valid
and binding obligation of the Originator enforceable against the
Originator 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
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[_____________] or by-laws of the Originator, or any indenture,
agreement or other instrument to which the Originator 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 the Originator's knowledge, any
order, rule or regulation applicable to the Originator of any
court or of any Federal or State regulatory body, administrative
agency or other governmental instrumentality having jurisdiction
over the Originator or its properties.
(vi) No Proceedings. There are no proceedings or
investigations pending, or to the Originator's best knowledge,
threatened, before any court, regulatory body, administrative
agency or other governmental instrumentality having jurisdiction
over the Originator 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 the Originator of its obligations under, or the
validity or enforceability of, this Agreement.
(b) The Originator makes the following representations and
warranties as to the Receivables on which the Purchaser relies in accepting
the Purchased Contracts and the Subsequent Receivables and in transferring
the Receivables to the Trust. Such representations and warranties speak as
of the execution and delivery of this Agreement and as of the Closing Date,
in the case of the Purchased Contracts, and as of the applicable Subsequent
Transfer Date, in the case of the Subsequent Receivables, but shall survive
the sale, transfer and assignment of the Receivables to the Purchaser and
the subsequent assignment and transfer of such Receivables to the Trust
pursuant to the Sale and Servicing Agreement and pursuant to the Indenture:
(i) Characteristics of Receivables. Each 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 the Originator from a Dealer and validly assigned by
such Dealer to the Originator in accordance with its terms, or (2)
was originated in the United States of America by [_____________]
in connection with the financing or lease of Financed Equipment in
the ordinary course of [_______________]'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 the
Originator which with respect to the Receivables, as of the
Closing Date, has been assigned by the Originator to the
Purchaser, by the Purchaser to the Issuer and by the Issuer to the
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Indenture Trustee, except that (x) no security interest against
the Obligor is created in True Lease Equipment, and (y) the
Originator 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 Receivables. The information set forth
on Schedule A to the First-Tier [_____________] 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 First- Tier
[____________] Subsequent Transfer Assignment will be true and correct
on each Subsequent Transfer Date related to such First-Tier [________]
Subsequent Transfer Assignment and no selection procedures believed
by the Originator to be adverse to the interests of the Trust, the
Noteholders or the Certificateholders were or will be utilized in
selecting the Receivables. The computer tape regarding the
Receivables made available to the Purchaser and its assigns is
true and correct in all respects.
(iii) Compliance with Law. Each 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 First-Tier [___________]
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, the Wisconsin
Consumer Act and State adaptations of the National Consumer Act
and of the Uniform Consumer Credit Code, and other consumer credit
laws and equal credit opportunity and disclosure laws.
(iv) Binding Obligation. Each 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.
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(v) No Government Obligor. None of the 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
Receivable shall be secured by a validly perfected first priority
security interest in the Financed Equipment in favor of the
Originator 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 the Originator as secured party, except that
(A) no security interest against the Obligor is created in True
Lease Equipment and (B) the Originator 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) Receivables in Force. No Receivable has been
satisfied, subordinated or rescinded, nor has any Financed
Equipment been released from the Lien granted by the related
Receivable in whole or in part.
(viii) No Amendment or Waiver. No provision of a
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 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 Receivable.
(x) No Liens. To the best of the Originator'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 Receivable, except those
pursuant to the Basic Documents.
(xi) No Default. No 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 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
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event permitting acceleration under the terms of any Receivable
has arisen; and the Originator has not waived and shall not waive
any of the foregoing.
(xii) Title. It is the intention of the Originator that
the transfers and assignments contemplated herein and in the
Liquidity Receivables Purchase Agreement constitute a sale of the
Receivables from the Originator to the Purchaser and that the
beneficial interest in and title to the Receivables and any True
Lease Equipment related to such Receivables not be part of the
debtor's estate in the event of the filing of a bankruptcy
petition by or against the Originator under any bankruptcy or
similar law. No Receivable has been sold, transferred, assigned or
pledged by the Originator to any Person other than the Purchaser.
Immediately prior to the transfers and assignments contemplated
herein and in the Liquidity Receivables Purchase Agreement, the
Originator had good title to each Receivable and any True Lease
Equipment related to such Receivable, free and clear of all Liens
and, immediately upon the transfer thereof, the Purchaser shall
have good title to each Receivable and any True Lease Equipment,
free and clear of all Liens; and the transfer and assignment of
the Receivables to the Purchaser has been perfected under the UCC.
(xiii) Lawful Assignment. No Receivable has been
originated in, or is subject to the laws of, any jurisdiction
under which the sale, transfer and assignment of such Receivable
or any Receivable under this Agreement, the Sale Agreement, the
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 the Purchaser a
first priority perfected ownership interest in the Receivables
have been made.
(xv) One Original. There is only one original executed copy
of each Receivable.
(xvi) Maturity of Receivables. Each Receivable has a
remaining term to maturity of not more than [__] months, in the
case of the Initial Receivables, and [__] months, in the case of
the Subsequent Receivables; the weighted average remaining term of
the Initial Receivables is approximately [__] months as of the
Initial Cutoff Date; the weighted average original term of the
Receivables, including as of each Subsequent Transfer Date all
Subsequent Receivables previously transferred to the Purchaser,
will not be greater than [__] months.
(xvii) Scheduled Payments and APR. No Receivable has a final
scheduled payment date later than six months preceding the Final
Scheduled
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Maturity Date; each Receivable provides for payments that fully
amortize the Amount Financed over the original term of the
Receivable, except that Leases also provide for payments of the
related Termination Values, and is either a Precomputed Receivable
or a Simple Interest Receivable; each Receivable has an APR of at
least [__]%; as of each Subsequent Cutoff Date, the weighted
average of the Initial Cutoff Date APR and each Subsequent Cutoff
Date APR (weighted on the basis of the respective aggregate
Contract Values of the Receivables for which each such APR is used
to calculate the Contract Value) will not be less than the sum of
the weighted average of the Interest Rates for the Class A Notes
and Class B Notes plus the Servicing Fee.
(xviii) Insurance. The Obligor on each 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 the Originator's normal requirements.
(xix) Concentrations. (A) No Receivable has a Contract
Value (when combined with the Contract Value of any other
Receivable with the same or an Affiliated Obligor) that exceeds
[_]% of the Initial Pool Balance.
(B) [Reserved]
(xx) Financing. Approximately [____]% of the aggregate
Contract Value of the Initial Receivables, constituting [____]% of
the number of Initial Receivables as of the Initial Cutoff Date,
were secured by or constitute leases of equipment that was new at
the time the related Initial Receivable was originated; the
remainder of the Initial Receivables represent financing or leases
of used equipment; approximately [____]% of the aggregate Contract
Value of the Initial Receivables, constituting [____]% of the
number of Initial Receivables as of the Initial Cutoff Date,
represent financing or leases of agricultural equipment; the
remainder of the Initial Receivables represent financing or leases
of construction or forestry equipment. The aggregate Contract
Value of the Receivables for the purposes of the above
calculations as of the Initial Cutoff Date is $[____________] (and
is calculated using the individual APR applicable to each Initial
Receivable). Additionally, not more than [____]% of the aggregate
Contract Value of the Receivables, including, as of each
Subsequent Transfer Date, all Subsequent Receivables previously
transferred to the Purchaser, will represent Contracts for the
financing or lease of construction and forestry equipment. No
Subsequent Receivable will represent the financing of truck
equipment.
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(xxi) No Bankruptcies. No Obligor on any Receivable as of
the Initial Cutoff Date or the Subsequent Cutoff Date, as
applicable, was noted in the related Receivable File as being the
subject of a bankruptcy proceeding.
(xxii) No Repossessions. None of the Financed Equipment
securing any Receivable is in repossession status.
(xxiii) Chattel Paper. Each 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.
(xxiv) U.S. Obligors. None of the Receivables is denominated
and payable in any currency other than United States Dollars or is due
from any Person that does not have a mailing address in the United
States of America.
(xxv) Payment Frequency. As of the Initial Cutoff Date
and as shown on the books of the Originator (or, in the case of
the NH Receivables, NH Credit): (A) Initial Receivables having an
aggregate Contract Value equal to [____]% of the Initial Pool
Balance had annual scheduled payments, (B) Initial Receivables
having an aggregate Contract Value equal to [___]% of the Initial
Pool Balance had semi-annual scheduled payments, (C) Initial
Receivables having an aggregate Contract Value equal to [___]% of
the Initial Pool Balance had quarterly scheduled payments, (D)
Initial Receivables having an aggregate Contract Value equal to
[____]% of the Initial Pool Balance had monthly scheduled
payments, and (E) Initial Receivables having an aggregate Contract
Value equal to [___]% of the Initial Pool Balance had irregularly
scheduled payments.
(xxvi) First Payment. As of the Initial Cutoff Date,
Obligors had not yet made the first payment in respect of Initial
Receivables representing less than [____]% of the Initial Pool Balance.
(xxvii) Interest Accruing. Each Receivable, other than
those 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
Receivable contains an interest waiver extending more than [___]
months after the Initial Cutoff Date.
(xxviii) Leases. Each Lease included in the Initial
Receivables or the Subsequent Receivables has a Termination Value
less than or equal to [___]% 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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(xxix) Originator's Representations. The representations and
warranties of the Originator contained in Section 3.2(a) are true and
correct.
(xxx) Originator's Obligations. The Originator has no
obligations under any Contract, other than the covenant of quiet
enjoyment benefiting the Obligors under any Contracts that are Leases.
(xxxi) No Either/or Leases. No Lease included in the
Initial Receivables or the Subsequent Receivables is a Either/or
Lease, and no Financed Equipment transferred to the Purchaser on
the Closing Date or any Subsequent Transfer Date, as the case may
be, constitutes True Lease Equipment.
(xxxii) No Leases. Notwithstanding anything to the contrary
in the Basic Documents, none of the Initial Receivables or the
Subsequent Receivables shall be Leases.
ARTICLE IV
Conditions
SECTION 4.1. Conditions to Obligation of the Purchaser.
(a) Purchased Contracts. The obligation of the Purchaser to purchase
the Purchased Contracts is subject to the satisfaction of the following
conditions:
(i) Representations and Warranties True. The
representations and warranties of the Originator hereunder shall
be true and correct on the Closing Date and the Originator shall
have performed all obligations to be performed by it hereunder on
or prior to the Closing Date.
(ii) Computer Files Marked. The Originator shall, at its
own expense, on or prior to the Closing Date, indicate in its
computer files that Receivables created in connection with the
Purchased Contracts have been sold to the Purchaser pursuant to
this Agreement and deliver to the Purchaser the Schedule of
Receivables certified by the Chairman, the President, a Vice
President or the Treasurer of the Originator to be true, correct
and complete.
(iii) Documents To Be Delivered by the Originator on the
Closing Date.
(A) The First-Tier [_________] Assignment. On the
Closing Date (but only if the Contract Value of the Purchased Contracts
is greater
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than zero), the Originator will execute and deliver the
First-Tier [ ] 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
Purchased Contracts is greater than zero), the Originator
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 the
Purchaser's right, title and interest in the Purchased
Contracts and the other property sold hereunder, executed
by the Originator, as seller or debtor, and naming the
Purchaser, as purchaser or secured party, describing the
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 Purchased Contracts and such other property to the
Purchaser. It is understood and agreed, however, that no
filings will be made to perfect any security interest of
the Purchaser in the Originator's interests in Financed
Equipment. The Originator shall deliver (or cause to be
delivered) a file-stamped copy, or other evidence
satisfactory to the Purchaser of such filing, to the
Purchaser on or prior to the Closing Date.
(C) Other Documents. The Originator will deliver
such other documents as the Purchaser 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 Receivables. The obligation of the Purchaser to
purchase any Subsequent Receivables is subject to the satisfaction of the
following conditions on or prior to the related Subsequent Transfer Date:
(i) the Originator shall have delivered to the Purchaser
a duly executed written assignment in substantially the form of
Exhibit B (the "First-Tier [______________] Subsequent Transfer
Assignment"), which shall include supplements to the Schedule of
Receivables listing the Subsequent Receivables;
(ii) the Originator shall, to the extent required by
Section 5.2 of the Sale and Servicing Agreement, have delivered to
the Purchaser for deposit in the Collection Account all
collections in respect of the Subsequent Receivables;
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(iii) as of such Subsequent Transfer Date: (A) the
Originator was not insolvent and will not become insolvent as a
result of the transfer of Subsequent Receivables on such
Subsequent Transfer Date, (B) the Originator did not intend to
incur or believe that it would incur debts that would be beyond
the Originator's ability to pay as such debts matured, (C) such
transfer was not made with actual intent to hinder, delay or
defraud any Person and (D) the assets of the Originator 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
the Originator pursuant to Section 3.2(b) with respect to the
Subsequent Receivables shall be true and correct as of such
Subsequent Transfer Date, and the Originator shall have performed
all obligations to be performed by it hereunder on or prior to
such Subsequent Transfer Date;
(vii) the Originator shall, at its own expense, on or
prior to such Subsequent Transfer Date, indicate in its computer
files that the Subsequent Receivables identified in the related
First-Tier [____________] Subsequent Transfer Assignment have been
sold to the Purchaser pursuant to this Agreement and the First-Tier
[___________] Subsequent Transfer Assignment;
(viii) the Originator shall have taken any action
required to give the Purchaser a first priority perfected
ownership interest in the Subsequent Receivables;
(ix) no selection procedures believed by the Originator
to be adverse to the interests of the Purchaser, the Trust, the
Noteholders or the Certificateholders shall have been utilized in
selecting the Subsequent Receivables;
(x) the addition of the Subsequent Receivables will not
result in a material adverse tax consequence to the Purchaser, the
Trust, the Noteholders or the Certificateholders;
(xi) the Originator shall have provided the Purchaser a
statement listing the aggregate Contract Value of such Subsequent
Receivables and any other information reasonably requested by the
Purchaser with respect to such Subsequent Receivables;
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(xii) all the conditions to the transfer of the
Subsequent Receivables to the Issuer specified in the Sale and
Servicing Agreement shall have been satisfied; and
(xiii) the Originator shall have delivered to the
Purchaser 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
First-Tier [____________] Subsequent Transfer Assignment).
SECTION 4.2. Conditions to Obligation of the Originator. The
obligation of the Originator to sell the Purchased Contracts and the
Subsequent Receivables to the Purchaser is subject to the satisfaction of
the following conditions:
(a) Representations and Warranties True. The
representations and warranties of the Purchaser 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 the
Purchaser 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, the Purchaser shall have
delivered to the Originator the portion of the Initial Purchase
Price or the Subsequent 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 the Originator
The Originator agrees with the Purchaser 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.
The Originator shall cause all financing statements and continuation
statements and any other necessary documents covering the right, title and
interest of the Purchaser in and to the 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 the Purchaser hereunder to the 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 the Purchaser in
the Originator's interests in Financed Equipment. The Originator shall
deliver (or cause to be
17
delivered) to the Purchaser 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. The Purchaser
shall cooperate fully with the Originator 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 the Originator makes any
change in its name, identity or corporate structure that would, could or
might make any financing statement or continuation statement filed in
accordance with paragraph (a) seriously misleading within the applicable
provisions of the UCC or any title statute, the Originator shall give the
Purchaser 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 the Purchaser'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 Liquidity Receivables Purchase Agreement, the
Sale and Servicing Agreement, the Indenture and the other Basic Documents,
the Originator: (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 Receivables, and (b) shall defend the right,
title and interest of the Purchaser in, to and under the Receivables
against all claims of third parties claiming through or under the
Originator; provided, however, that the Originator'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
Receivables, the Originator will maintain its chief executive office in one
of the States.
SECTION 5.4. Costs and Expenses. The Originator agrees to pay all
reasonable costs and disbursements in connection with the perfection, as
against all third parties, of the Purchaser's right, title and interest in,
to and under the Receivables.
SECTION 5.5. Indemnification. The Originator shall indemnify,
defend and hold harmless the Purchaser for any liability as a result of the
failure of a 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 the Originator may otherwise have. The
Originator shall indemnify, defend and hold harmless the Purchaser, 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 Receivables to the Purchaser hereunder or the
18
sale of the Receivables to the Issuer by the Purchaser or the issuance and
original sale of the Certificates and the Notes, including any sales, gross
receipts, general corporation, tangible personal property, privilege or
license taxes (but, in the case of the Purchaser and the Issuer, not
including any taxes asserted with respect to ownership of the 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 Receivables. The Originator
covenants to transfer to the Purchaser, pursuant to Section 2.2, Subsequent
Receivables with an aggregate Contract Value equal to $[____________],
subject only to the availability of such Subsequent Receivables.
ARTICLE VI
Miscellaneous Provisions
SECTION 6.1. Obligations of Originator. The obligations of the
Originator under this Agreement shall not be affected by reason of any
invalidity, illegality or irregularity of any Receivable.
SECTION 6.2. Repurchase Events. The Originator hereby covenants
and agrees with the Purchaser for the benefit of the Purchaser, the
Indenture Trustee, the Noteholders, the Trustee and the Certificateholders
that the occurrence of a breach of any of the Originator's representations
and warranties contained in Section 3.2(b), shall constitute events
obligating the Originator to repurchase any Receivable materially and
adversely affected by any such breach ("Repurchase Events") at the Purchase
Amount from the Purchaser or from the Trust. Except as set forth in Section
5.5, the repurchase obligation of the Originator shall constitute the sole
remedy of the Purchaser, the Indenture Trustee, the Noteholders, the Trust,
the Trustee or the Certificateholders against the Originator with respect
to any Repurchase Event.
SECTION 6.3. Purchaser Assignment of Repurchased Receivables. With
respect to all Receivables repurchased by the Originator pursuant to this
Agreement, the Purchaser shall sell, transfer, assign, set over and
otherwise convey to the Originator, without recourse, representation or
warranty, all of the Purchaser's right, title and interest in, to and under
such Receivables, and all security and documents relating thereto.
SECTION 6.4. Trust. The Originator acknowledges and agrees that:
(a) the Purchaser will, pursuant to the Sale and Servicing Agreement, sell the
Receivables to the Trust and assign its rights under this Agreement to the
Trust, (b) the Trust will, pursuant to the Indenture, assign such Receivables
and such rights to the Indenture
19
Trustee and (c) the representations, warranties and covenants contained in
this Agreement and the rights of the Purchaser under this Agreement,
including under Section 6.2, are intended to benefit the Trust, the
Certificateholders and the Noteholders. The Originator 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 the
Purchaser.
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 the Originator and the Purchaser,
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 the
Originator and the Purchaser, 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 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) the Originator will cooperate with the
Purchaser and such accounting firm in making available all information and
taking all steps reasonably necessary to permit such accounting firm
20
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 the Purchaser a letter, dated the date of the Prospectus,
in the form previously agreed to by the Originator and the Purchaser, 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 the
Purchaser in exercising any power, right or remedy under this Agreement,
the First-Tier [_____________] Assignment or any First-Tier [___________]
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 the Originator, to
[______________________], [Address], Attention: [Title (telephone
________________)]; (b) in the case of the Purchaser, to CNH Capital
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. The Originator will pay all
expenses incident to the performance of its obligations under this
Agreement and the Originator agrees to pay all reasonable out-of-pocket
costs and expenses of the Purchaser, excluding fees and expenses of
counsel, in connection with the perfection as against third parties of the
Purchaser's right, title and interest in, to and under the Receivables and
the enforcement of any obligation of the Originator hereunder.
SECTION 6.10. Representations of the Originator and the Purchaser.
The respective agreements, representations, warranties and other statements
by the Originator and the Purchaser 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. The Purchaser 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 the Purchaser's
rights hereunder, under the 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.
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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 First-Tier [_________]
Assignment, and each First-Tier [__________] 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.
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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:_____________________________________
Name:
Title:
[________________________________]
By:_____________________________________
Name:
Title:
23
EXHIBIT A
to Purchase Agreement
FORM OF
FIRST-TIER [ ] ASSIGNMENT
For value received, in accordance with and subject to the Purchase
Agreement dated as of [____________] (the "Purchase Agreement"), between
the undersigned and CNH Capital Receivables Inc. (the "Purchaser"), the
undersigned does hereby sell, assign, transfer, set over and otherwise
convey unto the Purchaser, without recourse, all of its right, title,
interest and, with respect to any Contracts that are Leases, obligations
in, to and under: (a) the 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, (b) the security interests in the Financed Equipment
granted by Obligors pursuant to the Purchased Contracts and any other
interest of the undersigned in such Financed Equipment, (c) any proceeds
with respect to the Purchased Contracts from claims on insurance policies
covering Financed Equipment or Obligors, (d) any proceeds from recourse to
Dealers with respect to the Purchased Contracts other than any interest in
the Dealers' reserve accounts maintained with [________________________],
(e) any Financed Equipment that shall have secured the Purchased Contracts
and that shall have been acquired by or on behalf of the Purchaser, (f) any
True Lease Equipment that is subject to any 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 the Purchaser
of any obligation (other than the covenant of quiet enjoyment benefitting
the Obligors under any Contracts that are Leases) of the undersigned to the
Obligors, insurers or any other person in connection with the Purchased
Contracts, Receivables Files, any insurance policies or any agreement or
instrument relating to any of them.
This First-Tier [_________] Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Purchase Agreement and is to be governed in all respects
by the Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have
the meanings assigned to them in the Purchase Agreement.
24
IN WITNESS WHEREOF, the undersigned has caused this First-Tier
[___________] Assignment to be duly executed as of [____________].
[__________________________]
By:_________________________________
Name:
Title:
25
EXHIBIT B
to Purchase Agreement
FORM OF
FIRST-TIER [ ] SUBSEQUENT TRANSFER ASSIGNMENT
For value received, in accordance with and subject to the Purchase
Agreement dated as of [____________] (the "Purchase Agreement"), between
[______________________], a [__________] corporation (the "Originator"), and
CNH Capital Receivables Inc., a Delaware corporation (the "Purchaser"), the
Originator does hereby sell, transfer, assign, set over and otherwise convey to
the Purchaser, 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 Receivables, with an aggregate Contract Value equal to
$_______________, listed on Schedule A hereto, including all documents
constituting chattel paper included therewith, and all obligations of the
Obligors thereunder, including all moneys paid thereunder on or after the
Subsequent Cutoff Date, (b) the security interests in the Financed
Equipment granted by Obligors pursuant to such Subsequent Receivables and
any other interest of the Originator in such Financed Equipment, (c) any
proceeds with respect to such Subsequent Receivables from claims on
insurance policies covering Financed Equipment or Obligors, (d) any
proceeds from recourse to Dealers with respect to such Subsequent
Receivables other than any interest in the Dealers' reserve accounts
maintained with the Originator, (e) any Financed Equipment that shall have
secured any such Subsequent Receivables and that shall have been acquired
by or on behalf of the Purchaser, (f) any True Lease Equipment that is
subject to any Subsequent 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 the Purchaser of any obligation
(other than the covenant of quiet enjoyment benefitting the Obligors under
any Contracts that are Leases) of the Originator to the Obligors, insurers
or any other person in connection with such Subsequent Receivables,
Receivable Files, any insurance policies or any agreement or instrument
relating to any of them.
This First-Tier [__________] Subsequent Transfer Assignment is made
pursuant to and upon the representations, warranties and agreements on the
part of the Originator contained in the Purchase Agreement (including the
Officers' Certificate of the Originator accompanying this Agreement) and is
to be governed in all respects by the Purchase Agreement.
Capitalized terms used but not otherwise defined herein shall have
the meanings assigned to them in the Purchase Agreement.
26
IN WITNESS WHEREOF, the undersigned has caused this First-Tier
[____________] Subsequent Transfer Assignment to be duly executed as of
________________________, ________.
[________________________]
By:_______________________
Name:_________________
Title:________________
27
SCHEDULE A
to First-Tier [________] Subsequent Transfer Assignment
SCHEDULE OF SUBSEQUENT RECEIVABLES
[See attached list]
28
ANNEX A
to First-Tier [________] Subsequent Transfer Assignment
OFFICERS' CERTIFICATE
We, the undersigned officers of [_____________________] (the
"Company"), do hereby certify, pursuant to Section 4.1(b)(xiii) of the
Purchase Agreement dated as of [____________], among the Company, and CNH
Capital Receivables Inc. (the "Purchase Agreement"), that all of the
conditions precedent to the transfer to the Purchaser of the Subsequent
Receivables listed on Schedule A to the First-Tier [ ] Subsequent Transfer
Assignment delivered herewith, and the other property and rights related to
such Subsequent Receivables as described in Section 2.2 of the Purchase
Agreement, have been satisfied on or prior to the related Subsequent
Transfer Date.
Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned have caused this certificate
to be duly executed this ___ day of ___________, _____.
By:______________________________
Name:________________________
Title:_______________________
By:______________________________
Name:________________________
Title:_______________________
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