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CNH EQUIPMENT TRUST 2002-A
NH PURCHASE AGREEMENT
between
NEW HOLLAND CREDIT COMPANY, LLC
and
CNH CAPITAL RECEIVABLES INC.
Dated as of March 1, 2002
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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........................................................1
SECTION 4.1 Conditions to Obligation of CNHCR...........................1
SECTION 4.2 Conditions to Obligation of NH Credit.......................3
ARTICLE V COVENANTS OF NH CREDIT...........................................13
SECTION 5.1 Protection of Right, Title and Interest.....................3
SECTION 5.2 Other Liens or Interests....................................4
SECTION 5.3 Chief Executive Office......................................4
SECTION 5.4 Costs and Expenses..........................................4
SECTION 5.5 Indemnification.............................................4
SECTION 5.6 Transfer of Subsequent NH Receivables.......................5
ARTICLE VI MISCELLANEOUS PROVISIONS.........................................15
SECTION 6.1 Obligations of NH Credit....................................5
SECTION 6.2 Repurchase Events...........................................5
SECTION 6.3 CNHCR Assignment of Repurchased Receivables.................5
SECTION 6.4 Trust.......................................................5
SECTION 6.5 Amendment...................................................6
SECTION 6.6 Accountants' Letters........................................6
SECTION 6.7 Waivers.....................................................6
SECTION 6.8 Notices.....................................................6
SECTION 6.9 Costs and Expenses..........................................7
TABLE OF CONTENTS
------------------
(continued)
SECTION 6.10 Representations of NH Credit and CNHCR......................7
SECTION 6.11 Confidential Information....................................7
SECTION 6.12 Headings and Cross-References...............................7
SECTION 6.13 Governing Law...............................................7
SECTION 6.14 Counterparts................................................7
SECTION 6.15 Severability................................................8
EXHIBITS
EXHIBIT A Form of NH Assignment
EXHIBIT B Form of NH Subsequent Transfer Assignment
SCHEDULES
SCHEDULE P Perfection Representations and Warranties
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NH PURCHASE AGREEMENT (as amended or supplemented from time to time, this
"Agreement") dated as of March 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 $51,251,385.42
(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 $197,920,764.74 (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-A (the "Trust"), which Trust will issue Asset Backed Certificates
representing non-assessable, fully paid, undivided interests in, and 2.0825%
Class A-1 Asset Backed Notes, 3.1300% Class A-2 Asset Backed Notes, Floating
Rate Class A-3 Asset Backed Notes, Floating Rate Class A-4 Asset Backed Notes,
Floating Rate Class B Asset Backed Notes and Floating Rate Class C 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-A and Bank One, National Association.
SECTION 1.2 Other Definitional Provisions. (a) All terms defined in this
Agreement shall have the defined meanings when used in any certificate or
other document made or delivered pursuant hereto unless otherwise defined
therein.
(b) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Agreement or in any such certificate or other document
to the extent not defined, shall have the respective meanings given to them
under generally accepted accounting principles as in effect on the date
hereof. To the extent that the definitions of accounting terms in this
Agreement or in any such certificate or other document are inconsistent with
the meanings of such terms under generally accepted accounting principles, the
definitions contained in this Agreement or in any such certificate or other
document shall control.
(c) The words "hereof", "herein", "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not
to any particular provision of this Agreement; Section, Schedule and Exhibit
references contained in this Agreement are references to Sections, Schedules
and Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including, without limitation,".
(d) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
ARTICLE II
CONVEYANCE OF NH RECEIVABLES
SECTION 2.1 Conveyance of NH Purchased Contracts. In consideration of
CNHCR's payment of $249,172,150.16 (the "Initial NH Purchase Price") in the
manner set out in Section 2.5(a), NH Credit does hereby sell, transfer,
assign, set over and otherwise convey to CNHCR, without recourse (subject to
the obligations herein), all of its right, title, interest and, with respect
to any Contracts that are Leases, obligations in, to and under (collectively,
the "Initial NH Assets"):
(i) the NH Purchased Contracts, including all documents constituting
chattel paper included therewith, and all obligations of the Obligors
thereunder, including all moneys paid thereunder on or after the Initial
Cutoff Date;
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(ii) the security interests in the Financed Equipment granted by
Obligors pursuant to the NH Purchased Contracts and any other interest of
NH Credit in such Financed Equipment;
(iii) any proceeds with respect to the NH Purchased Contracts from
claims on insurance policies covering Financed Equipment or Obligors;
(iv) any proceeds from recourse to Dealers with respect to the NH
Purchased Contracts other than any interest in the Dealers' reserve
accounts maintained with NH Credit;
(v) any Financed Equipment that shall have secured the NH Purchased
Contracts and that shall have been acquired by or on behalf of CNHCR;
(vi) any True Lease Equipment that is subject to any NH Purchased
Contract; and
(vii) the proceeds of any and all of the foregoing.
SECTION 2.2 Conveyance of Subsequent NH Receivables. Subject to the
conditions set forth in Section 4.1(b), in consideration of CNHCR's delivery
on the related Subsequent Transfer Date to or upon the order of NH Credit of
the related Subsequent NH Purchase Price pursuant to Section 2.5, NH Credit
does hereby sell, transfer, assign, set over and otherwise convey to CNHCR,
without recourse (subject to the obligations herein), all of its right, title,
interest and, with respect to any Contracts that are Leases, obligations in,
to and under (collectively, the "Subsequent NH Assets"; and together with the
Initial NH Assets, the "NH Assets"):
(i) the Subsequent NH Receivables listed on Schedule A to the
related NH Subsequent Transfer Assignment, including all documents
constituting chattel paper included therewith, and all obligations of the
Obligors thereunder, including all moneys paid thereunder on or after the
related Subsequent Cutoff Date;
(ii) the security interests in the Financed Equipment granted by
Obligors pursuant to such Subsequent NH Receivables and any other
interest of NH Credit in such Financed Equipment;
(iii) any proceeds with respect to such Subsequent NH Receivables
from claims on insurance policies covering Financed Equipment or
Obligors;
(iv) any proceeds with respect to such Subsequent NH Receivables
from recourse to Dealers other than any interest in the Dealers' reserve
accounts maintained with NH Credit;
(v) any Financed Equipment that shall have secured any such
Subsequent NH Receivable and that shall have been acquired by or on
behalf of CNHCR;
(vi) any True Lease Equipment that is subject to any Subsequent NH
Receivable; and
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(vii) the proceeds of any and all of the foregoing.
SECTION 2.3 Intention of the Parties. The parties to this Agreement
intend that the transactions contemplated hereby shall be, and shall be
treated as, a purchase by CNHCR and a sale by NH Credit of the NH Purchased
Contracts and the Subsequent NH Receivables and any True Lease Equipment
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
$249,172,150.16 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
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shall be paid in cash as and when amounts are released to, or otherwise
realized by, CNHCR from the Spread Account, the Negative Carry Account, and
the Principal Supplement Account in accordance with the Sale and Servicing
Agreement, or otherwise are available for such purpose.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of CNHCR. CNHCR hereby
represents and warrants to NH Credit as of the date hereof and as of the
Closing Date:
(a) Organization and Good Standing. CNHCR has been duly organized
and is validly existing as a corporation in good standing under the laws
of the State of Delaware, with the power and authority to own its
properties and to conduct its business as such properties are currently
owned and such business is presently conducted, and had at all relevant
times, and has, the power and authority to acquire, own and sell the NH
Receivables.
(b) Due Qualification. CNHCR is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business shall require such
qualifications.
(c) Power and Authority. CNHCR has the power and authority to
execute and deliver this Agreement and to carry out its terms; and the
execution, delivery and performance of this Agreement have been duly
authorized by CNHCR by all necessary corporate action.
(d) Binding Obligation. This Agreement constitutes a legal, valid
and binding obligation of CNHCR enforceable against CNHCR in accordance
with its terms.
(e) No Violation. The consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under, the
certificate of incorporation or by-laws of CNHCR, or any indenture,
agreement or other instrument to which CNHCR is a party or by which it is
bound; or result in the creation or imposition of any Lien upon any of
its properties pursuant to the terms of any such indenture, agreement or
other instrument (other than the Sale and Servicing Agreement and the
Indenture); or violate any law or, to the best of CNHCR's knowledge, any
order, rule or regulation applicable to CNHCR of any court or of any
Federal or State regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over CNHCR or its
properties.
(f) No Proceedings. There are no proceedings or investigations
pending or, to CNHCR's best knowledge, threatened, before any court,
regulatory body, administrative agency or other governmental
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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.
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(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
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related NH Subsequent Transfer Assignment will be true and correct on
each Subsequent Transfer Date related to such NH Subsequent Transfer
Assignment and no selection procedures believed by NH Credit to be
adverse to the interests of the Trust, the Noteholders or the
Certificateholders were or will be utilized in selecting the NH
Receivables. The computer tape regarding the NH Receivables made
available to CNHCR and its assigns is true and correct in all respects.
(iii) Compliance with Law. Each NH Receivable and the sale or lease
of the related Financed Equipment complied in all material respects at
the time it was originated or made and at the execution of this Agreement
and each NH Subsequent Transfer Assignment complies in all material
respects with all requirements of applicable Federal, State and local
laws and regulations thereunder, including usury law, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit
Reporting Act, the Fair Debt Collection Practices Act, the Federal Trade
Commission Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇ 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.
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(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.
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(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:
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
13
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, general corporation, tangible personal
14
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 $352,897,821.32 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,
16
LLC, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Finance Manager (telephone (▇▇▇) ▇▇▇-▇▇▇▇); with a copy to Senior
Counsel; (b) in the case of CNHCR, 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. 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: Vice President & Treasurer
NEW HOLLAND CREDIT COMPANY, LLC
By: /s/ L. ▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------------------
Name: L. ▇▇▇▇▇▇▇ ▇▇▇▇
Title: President
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 March 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 March 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 March 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 March 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.