EXHIBIT 4.5
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CNH EQUIPMENT TRUST 2003-B
NH PURCHASE AGREEMENT
between
NEW HOLLAND CREDIT COMPANY, LLC
and
CNH CAPITAL RECEIVABLES INC.
Dated as of November 1, 2003
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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
SECTION 2.6 Cross-Collateralization........................................5
ARTICLE III REPRESENTATIONS AND WARRANTIES......................................5
SECTION 3.1 Representations and Warranties of CNHCR........................5
SECTION 3.2 Representations and Warranties of NH Credit....................6
ARTICLE IV CONDITIONS.........................................................11
SECTION 4.1 Conditions to Obligation of CNHCR.............................11
SECTION 4.2 Conditions to Obligation of NH Credit.........................13
ARTICLE V COVENANTS OF NH CREDIT.............................................14
SECTION 5.1 Protection of Right, Title and Interest.......................14
SECTION 5.2 Other Liens or Interests......................................14
SECTION 5.3 Jurisdiction of Organization..................................15
SECTION 5.4 Costs and Expenses............................................15
SECTION 5.5 Indemnification...............................................15
SECTION 5.6 Transfer of Subsequent NH Receivables.........................15
SECTION 5.7 Cross-Collateralization.......................................15
TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE VI MISCELLANEOUS PROVISIONS...........................................15
SECTION 6.1 Obligations of NH Credit......................................15
SECTION 6.2 Repurchase Events.............................................16
SECTION 6.3 CNHCR Assignment of Repurchased Receivables...................16
SECTION 6.4 Trust.........................................................16
SECTION 6.5 Amendment.....................................................16
SECTION 6.6 Accountants' Letters..........................................17
SECTION 6.7 Waivers.......................................................17
SECTION 6.8 Notices.......................................................17
SECTION 6.9 Costs and Expenses............................................17
SECTION 6.10 Representations of NH Credit and CNHCR........................17
SECTION 6.11 Confidential Information......................................17
SECTION 6.12 Headings and Cross-References.................................18
SECTION 6.13 Governing Law.................................................18
SECTION 6.14 Counterparts..................................................18
SECTION 6.15 Severability..................................................19
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 November 1, 2003 between NEW HOLLAND CREDIT COMPANY,
LLC, a Delaware limited liability company ("NH CREDIT"), and
CNH CAPITAL
RECEIVABLES INC., a Delaware corporation ("CNHCR").
RECITALS
WHEREAS, in the regular course of its business, NH Credit purchases,
directly and indirectly, from equipment dealers and brokers, and directly
originates, Contracts; and
WHEREAS, NH Credit and CNHCR wish to set forth the terms pursuant to which:
(1) Contracts having an aggregate Contract Value of approximately $62,811,280.69
(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 $200,160,047.17 (the "NH OWNED
CONTRACTS", and together with the NH Purchased Contracts, the "INITIAL NH
RECEIVABLES"); and
WHEREAS, the Initial NH Receivables and the Subsequent NH Receivables
(collectively, the "NH RECEIVABLES"), the Case Receivables and any True Lease
Equipment related to such NH Receivables or Case Receivables will be transferred
by CNHCR, pursuant to the Sale and Servicing Agreement, to CNH Equipment Trust
2003-B (the "TRUST"), which Trust will issue Asset Backed Certificates
representing non-assessable, fully paid, fractional undivided interests in, and
1.230% Class A-1 Asset Backed Notes, 1.710% Class A-2 Asset Backed Notes,
Floating Rate Class A-3a Asset Backed Notes, 2.470% Class A-3b Asset Backed
Notes, Floating Rate Class A-4a Asset Backed Notes, 3.380% Class A-4b Asset
Backed Notes and 3.350% Class B Asset Backed Notes collateralized by, the
Receivables and the other property of the Trust; and
WHEREAS, NH Credit and CNHCR wish to set forth herein certain
representations, warranties, covenants and indemnities of NH Credit with respect
to the NH Receivables for the benefit of CNHCR, the Trust, the Noteholders, any
Counterparty and the Certificateholders.
NOW, THEREFORE, in consideration of the foregoing, other good and valuable
consideration and the mutual terms and covenants contained herein the parties
hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.1 DEFINITIONS. Capitalized terms used herein and not otherwise
defined herein are defined in Appendix A to the Indenture dated as of the date
hereof between CNH Equipment Trust 2003-B and JPMorgan Chase Bank, as Indenture
Trustee.
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS. (a) All terms defined in this
Agreement shall have the defined meanings when used in any certificate or other
document made or delivered pursuant hereto unless otherwise defined therein.
(b) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Agreement or in any such certificate or other document to
the extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles as in effect on the date hereof. To the
extent that the definitions of accounting terms in this Agreement or in any such
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions contained in
this Agreement or in any such certificate or other document shall control.
(c) The words "hereof", "herein", "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; Section, Schedule and Exhibit
references contained in this Agreement are references to Sections, Schedules and
Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including, without limitation,".
(d) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
ARTICLE II
CONVEYANCE OF NH RECEIVABLES
SECTION 2.1 CONVEYANCE OF NH PURCHASED CONTRACTS. In consideration of
CNHCR's payment of $262,971,327.86 (the "INITIAL NH PURCHASE PRICE") in the
manner set out in SECTION 2.5(a), NH Credit does hereby sell, transfer, assign,
set over and otherwise convey to CNHCR, without recourse (subject to the
obligations herein), all of its right, title, interest and, with respect to any
Contracts that are Leases, obligations in, to and under (collectively, the
"INITIAL NH ASSETS"):
(i) the NH PURCHASED CONTRACTS, including all documents constituting
chattel paper included therewith, and all obligations of the Obligors
thereunder, including all moneys paid thereunder on or after the Initial
Cutoff Date;
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(ii) the security interests in the Financed Equipment granted by
Obligors pursuant to the NH Purchased Contracts and any other interest of
NH Credit in such Financed Equipment;
(iii) any proceeds with respect to the NH Purchased Contracts from
claims on insurance policies covering Financed Equipment or Obligors;
(iv) any proceeds from recourse to Dealers with respect to the NH
Purchased Contracts other than any interest in the Dealers' reserve
accounts maintained with NH Credit;
(v) any Financed Equipment that shall have secured the NH Purchased
Contracts and that shall have been acquired by or on behalf of CNHCR;
(vi) any True Lease Equipment that is subject to any NH Purchased
Contract; and
(vii) the proceeds of any and all of the foregoing.
SECTION 2.2 CONVEYANCE OF SUBSEQUENT NH RECEIVABLES. Subject to the
conditions set forth in SECTION 4.1(b), in consideration of CNHCR's delivery on
the related Subsequent Transfer Date to or upon the order of NH Credit of the
related Subsequent NH Purchase Price pursuant to SECTION 2.5, NH Credit does
hereby sell, transfer, assign, set over and otherwise convey to CNHCR, without
recourse (subject to the obligations herein), all of its right, title, interest
and, with respect to any Contracts that are Leases, obligations in, to and under
(collectively, the "SUBSEQUENT NH ASSETS"; and together with the Initial NH
Assets, the "NH ASSETS"):
(i) the Subsequent NH Receivables listed on Schedule A to the related
NH Subsequent Transfer Assignment, including all documents constituting
chattel paper included therewith, and all obligations of the Obligors
thereunder, including all moneys paid thereunder on or after the related
Subsequent Cutoff Date;
(ii) the security interests in the Financed Equipment granted by
Obligors pursuant to such Subsequent NH Receivables and any other interest
of NH Credit in such Financed Equipment;
(iii) any proceeds with respect to such Subsequent NH Receivables from
claims on insurance policies covering Financed Equipment or Obligors;
(iv) any proceeds with respect to such Subsequent NH Receivables from
recourse to Dealers other than any interest in the Dealers' reserve
accounts maintained with NH Credit;
(v) any Financed Equipment that shall have secured any such Subsequent
NH Receivable and that shall have been acquired by or on behalf of CNHCR;
(vi) any True Lease Equipment that is subject to any Subsequent NH
Receivable; and
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(vii) the proceeds of any and all of the foregoing.
SECTION 2.3 INTENTION OF THE PARTIES. The parties to this Agreement intend
that the transactions contemplated hereby shall be, and shall be treated as, a
purchase by CNHCR and a sale by NH Credit of the NH Purchased Contracts and the
Subsequent NH Receivables and any True Lease Equipment, in each case, related
thereto, as the case may be, and not as a lending transaction, so that in the
event of a filing of a petition for relief by or against NH Credit under the
Bankruptcy Code, (i) such NH Purchased Contracts, Subsequent NH Receivables and
True Lease Equipment would not be property of NH Credit's bankruptcy estate
under Section 541 of the Bankruptcy Code, (ii) the bankruptcy court would not
compel the turnover of such NH Purchased Contracts, Subsequent NH Receivables
and True Lease Equipment by CNHCR to NH Credit under Section 542 of the
Bankruptcy Code, and (iii) the bankruptcy court would determine that payments on
the NH Purchased Contracts, Subsequent NH Receivables and True Lease Equipment
not in the possession of NH Credit would not be subject to the automatic stay
provisions of Section 362(a) of the Bankruptcy Code imposed upon the
commencement of NH Credit's bankruptcy case. The foregoing sale, assignment,
transfer and conveyance does not constitute, and is not intended to result in a
creation or assumption by CNHCR of, any obligation or liability with respect to
any NH Purchased Contract or any Subsequent NH Receivable, nor shall CNHCR be
obligated to perform or otherwise be responsible for any obligation of NH Credit
or any other Person in connection with the NH Purchased Contracts or the
Subsequent NH Receivables or under any agreement or instrument relating thereto,
including any contract or any other obligation to any Obligor, except that CNHCR
accepts any Contracts that are Leases subject to (and assumes) the covenants
benefiting the Obligors under such Leases.
If (but only to the extent) that the transfer of the NH Assets hereunder is
characterized by a court or other governmental authority as a loan rather than a
sale, NH Credit shall be deemed hereunder to have granted to CNHCR a security
interest in all of NH Credit's right, title and interest in and to the NH
Assets. Such security interest shall secure all of NH Credit's obligations
(monetary or otherwise) under this Agreement and the other Basic Documents to
which it is a party, whether now or hereafter existing or arising, due or to
become due, direct or indirect, absolute or contingent. CNHCR shall have, with
respect to the property described in SECTION 2.1 and SECTION 2.2, and in
addition to all the other rights and remedies available to CNHCR under this
Agreement and applicable law, all the rights and remedies of a secured party
under any applicable UCC, and this Agreement shall constitute a security
agreement under applicable law.
SECTION 2.4 THE CLOSING. The sale and purchase of the NH Purchased
Contracts shall take place at a closing at the offices of Mayer, Brown, ▇▇▇▇ &
Maw LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 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
$262,971,327.86 in cash on the Closing Date.
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(b) SUBSEQUENT NH RECEIVABLES. As consideration for the conveyance of
Subsequent NH Receivables pursuant to SECTION 2.2, CNHCR shall pay or cause to
be paid to NH Credit on each Subsequent Transfer Date an amount (a "SUBSEQUENT
NH PURCHASE PRICE") equal to the aggregate Contract Value of the Subsequent NH
Receivables as of the related Subsequent Cutoff Date, plus any premium or minus
any discount agreed upon by NH Credit and CNHCR. Any Subsequent NH Purchase
Price shall be payable as follows: (i) cash in the amount released to CNHCR in
respect of the Subsequent NH Receivables from the Pre-Funding Account pursuant
to Section 5.8(a) of the Sale and Servicing Agreement shall be paid to NH Credit
on the related Subsequent Transfer Date; and (ii) the balance shall be paid in
cash as and when amounts are released to, or otherwise realized by, CNHCR from
the Spread Account, the Negative Carry Account, and the Principal Supplement
Account in accordance with the Sale and Servicing Agreement, or otherwise are
available for such purpose.
SECTION 2.6 CROSS-COLLATERALIZATION. To the extent NH Credit retains any
interest in any item of Financed Equipment securing the repayment of any NH
Receivable, as a result of the related Obligor agreeing to cross-collateralize
all obligations owed by such Obligor to NH Credit or otherwise, NH Credit
acknowledges and agrees that its interest in the Financed Equipment shall be
expressly subordinate and junior in priority to the repayment of all amounts
outstanding under such NH Receivable prior to becoming available to pay any
amount outstanding under any other obligation owed by such Obligor to NH Credit.
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.
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(e) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof do
not conflict with, result in any breach of any of the terms and provisions
of, or constitute (with or without notice or lapse of time) a default
under, the certificate of incorporation or by-laws of CNHCR, or any
indenture, agreement or other instrument to which CNHCR is a party or by
which it is bound; or result in the creation or imposition of any Lien upon
any of its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than the Sale and Servicing Agreement
and the Indenture); or violate any law or, to the best of CNHCR's
knowledge, any order, rule or regulation applicable to CNHCR of any court
or of any federal or State regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over CNHCR or its
properties.
(f) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to CNHCR's best knowledge, threatened, before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over CNHCR or its properties: (i)
asserting the invalidity of this Agreement, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or
(iii) seeking any determination or ruling that could reasonably be expected
to materially and adversely affect the performance by CNHCR of its
obligations under, or the validity or enforceability of, this Agreement.
SECTION 3.2 REPRESENTATIONS AND WARRANTIES OF NH CREDIT. (a) NH Credit
hereby represents and warrants to CNHCR as of the date hereof and as of the
Closing Date:
(i) ORGANIZATION AND GOOD STANDING. NH Credit has been duly organized
and is validly existing as a limited liability company in good standing
under the laws of the State of Delaware, with the power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is presently conducted, and had at all
relevant times, and has, the power and authority to acquire, own and sell
the NH Receivables.
(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,
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valid and binding obligation of NH Credit enforceable against NH Credit in
accordance with their terms.
(v) NO VIOLATION. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under, the
certificate of formation, by-laws or limited liability company agreement of
NH Credit, or any indenture, agreement or other instrument to which NH
Credit is a party or by which it is bound; or result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of
any such indenture, agreement or other instrument (other than this
Agreement); or violate any law or, to the best of NH Credit's knowledge,
any order, rule or regulation applicable to NH Credit of any court or of
any federal or State regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over NH Credit or its
properties.
(vi) NO PROCEEDINGS. There are no proceedings or investigations
pending, or to NH Credit's best knowledge, threatened, before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over NH Credit or its properties: (A)
asserting the invalidity of this Agreement, (B) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement, or
(C) seeking any determination or ruling that could reasonably be expected
to materially and adversely affect the performance by NH Credit of its
obligations under, or the validity or enforceability of, this Agreement.
(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 (except to the extent that such security
interest 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
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secure the Dealer's obligations to make payments in respect of Termination
Values, (C) contains customary and enforceable provisions such that the
rights and remedies of the holder thereof are adequate for realization
against the collateral of the benefits of the security, and (D) (i) in the
case of Retail Installment Contracts, provides for fixed payments on a
periodic basis that fully amortize the Amount Financed by maturity and
yield interest at the Annual Percentage Rate, and (ii) in the case of any
Contracts sold, or to be sold, hereunder that are Leases, provides for
fixed payments on a periodic basis that fully amortize the Amount Financed
by maturity and yield interest at the Annual Percentage Rate, except that
any Contracts sold, or to be sold, hereunder that are Leases also provide
for payments of the related Termination Values.
(ii) SCHEDULE OF NH RECEIVABLES. The information set forth on Schedule
A to the NH Assignment delivered on the Closing Date is true and correct in
all material respects as of the opening of business on the Initial Cutoff
Date and the information set forth on Schedule A to the related NH
Subsequent Transfer Assignment will be true and correct on each Subsequent
Transfer Date related to such NH Subsequent Transfer Assignment and no
selection procedures believed by NH Credit to be adverse to the interests
of the Trust, the Noteholders or the Certificateholders were or will be
utilized in selecting the NH Receivables. The computer tape regarding the
NH Receivables made available to CNHCR and its assigns is true and correct
in all respects.
(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
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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.
(x) NO LIENS. To the best of NH Credit's knowledge, no Liens or
claims, including claims for work, labor or materials, relating to any of
the Financed Equipment have been filed that are Liens prior to, or equal or
coordinate with, the security interest in the Financed Equipment granted by
any NH Receivable, except those pursuant to the Basic Documents.
(xi) NO DEFAULT. No NH Receivable is a non-performing Receivable or
has a payment that is more than 90 days overdue as of the Initial Cutoff
Date or Subsequent Cutoff Date, as applicable, and, except for a payment
default continuing for a period of not more than 90 days, no default,
breach, violation or event permitting acceleration under the terms of any
NH Receivable has occurred and is continuing; and no continuing condition
that with notice or the lapse of time would constitute such a default,
breach, violation or event permitting acceleration under the terms of any
NH Receivable has arisen; and NH Credit has not waived and shall not waive
any of the foregoing.
(xii) TITLE. It is the intention of NH Credit that the transfers and
assignments contemplated herein and in the NH Liquidity Receivables
Purchase Agreement constitute a sale of the NH Receivables from NH Credit
to CNHCR and that the beneficial interest in and title to the NH
Receivables and any True Lease Equipment related to such NH Receivables not
be part of the debtor's estate in the event of the filing of a bankruptcy
petition by or against NH Credit under any bankruptcy or similar law. No NH
Receivable has been sold, transferred, assigned or pledged by NH Credit to
any Person other than CNHCR. Immediately prior to the transfers and
assignments contemplated herein and in the NH Liquidity Receivables
Purchase Agreement, NH Credit had good title to each NH Receivable and any
True Lease Equipment related to such NH Receivable, free and clear of all
Liens and, immediately upon the transfer thereof, CNHCR shall have good
title to each NH Receivable and any True Lease Equipment, free and clear of
all Liens; and the transfer and assignment of the NH Receivables to CNHCR
has been perfected under the UCC.
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(xiii) LAWFUL ASSIGNMENT. No NH Receivable has been originated in, or
is subject to the laws of, any jurisdiction under which the sale, transfer
and assignment of such NH Receivable or any NH Receivable under this
Agreement, the NH Liquidity Receivables Purchase Agreement, the Sale and
Servicing Agreement or the Indenture is unlawful, void or voidable.
(xiv) ALL FILINGS MADE. All filings (including UCC filings) necessary
in any jurisdiction to give CNHCR a first priority perfected ownership
interest in the NH Receivables will be made on or prior to the Closing
Date.
(xv) ONE ORIGINAL. There is only one original executed copy of each NH
Receivable.
(xvi) INSURANCE. The Obligor on each NH Receivable is required to
maintain physical damage insurance covering the Financed Equipment and, in
the case of any Lease, public liability insurance relating to the use of
such Financed Equipment, in each case in accordance with NH Credit's normal
requirements.
(xvii) NO BANKRUPTCIES. No Obligor on any NH Receivable as of the
Initial Cutoff Date or the Subsequent Cutoff Date, as applicable, was noted
in the related Receivable File as being the subject of a bankruptcy
proceeding.
(xviii) NO REPOSSESSIONS. None of the Financed Equipment securing any
NH Receivable is in repossession status.
(xix) CHATTEL PAPER. Each NH Receivable constitutes tangible "chattel
paper" as defined in the UCC of each State the law of which governs the
perfection of the interest granted in it and/or the priority of such
perfected interest.
(xx) U.S. OBLIGORS. None of the NH Receivables is denominated and
payable in any currency other than United States Dollars or is due from any
Person that does not have a mailing address in the United States of
America.
(xxi) INTEREST ACCRUING. Each NH Receivable, other than those NH
Receivables consisting of Contracts that contain interest waivers for a
specified period of time, is, as of the Closing Date or a 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.
10
(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.
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 authorize and file, at its own
expense, a UCC financing statement in
11
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 purchaser 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 promptly upon
NH Credit's receipt thereof.
(C) OTHER DOCUMENTS. NH Credit will deliver such other
documents as CNHCR may reasonably request.
(iv) OTHER TRANSACTIONS. The transactions contemplated by the Sale and
Servicing Agreement to be consummated on the Closing Date shall be
consummated on such date.
(b) SUBSEQUENT NH RECEIVABLES. The obligation of CNHCR to purchase any
Subsequent NH Receivables is subject to the satisfaction of the following
conditions on or prior to the related Subsequent Transfer Date:
(i) NH Credit shall have delivered to CNHCR a duly executed written
assignment in substantially the form of EXHIBIT B (the "NH SUBSEQUENT
TRANSFER ASSIGNMENT"), which shall include supplements to the Schedule of
NH Receivables listing the Subsequent NH Receivables;
(ii) NH Credit shall, to the extent required by Section 5.2 of the
Sale and Servicing Agreement, have delivered to CNHCR for deposit in the
Collection Account all collections in respect of the Subsequent NH
Receivables;
(iii) as of such Subsequent Transfer Date: (A) NH Credit was not
insolvent and will not become insolvent as a result of the transfer of
Subsequent NH Receivables on such Subsequent Transfer Date, (B) NH Credit
did not intend to incur or believe that it would incur debts that would be
beyond NH Credit's ability to pay as such debts matured, (C) such transfer
was not made with actual intent to hinder, delay or defraud any Person and
(D) the assets of NH Credit did not constitute unreasonably small capital
to carry out its business as conducted;
(iv) the applicable Spread Account Initial Deposit and Principal
Supplement Account Deposit, if any, for such Subsequent Transfer Date shall
have been made;
(v) the Funding Period shall not have terminated;
(vi) each of the representations and warranties made by NH Credit
pursuant to SECTION 3.2(b) with respect to the Subsequent NH Receivables
shall be true and correct as
12
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 take any action required to give CNHCR a first
priority perfected ownership interest in the Subsequent NH Receivables on
or prior to the applicable Subsequent Transfer Date;
(ix) no selection procedures believed by NH Credit to be adverse to
the interests of CNHCR, the Trust, the Noteholders or the
Certificateholders shall have been utilized in selecting the Subsequent NH
Receivables;
(x) the addition of the Subsequent NH Receivables will not result in a
material adverse tax consequence to CNHCR, the Trust, the Noteholders or
the Certificateholders;
(xi) NH Credit shall have provided CNHCR a statement listing the
aggregate Contract Value of such Subsequent NH Receivables and any other
information reasonably requested by CNHCR with respect to such Subsequent
NH Receivables;
(xii) all the conditions to the transfer of the Subsequent NH
Receivables to the Issuer specified in the Sale and Servicing Agreement
shall have been satisfied; and
(xiii) NH Credit shall have delivered to CNHCR an Officer's
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.
13
ARTICLE V
COVENANTS OF NH CREDIT
NH Credit agrees with CNHCR as follows; PROVIDED, HOWEVER, that to the
extent that any provision of this Article conflicts with any provision of the
Sale and Servicing Agreement, the Sale and Servicing Agreement shall govern:
SECTION 5.1 PROTECTION OF RIGHT, TITLE AND INTEREST.
(a) FILINGS. NH Credit shall cause all financing statements and
continuation statements and any other necessary documents covering the right,
title and interest of CNHCR in and to the NH Receivables and the other property
included in the Trust Estate to be promptly filed, and at all times to be kept
recorded, registered and filed, all in such manner and in such places as may be
required by law fully to preserve and protect the right, title and interest of
CNHCR hereunder to the NH Receivables and the other property sold hereunder. It
is understood and agreed, however, that no filings will be made to perfect any
security interest of CNHCR in NH Credit's interests in Financed Equipment. NH
Credit shall deliver (or cause to be delivered) to CNHCR file-stamped copies of,
or filing receipts for, any document recorded, registered or filed as provided
above as soon as available following such recordation, registration or filing.
CNHCR shall cooperate fully with NH Credit in connection with the obligations
set forth above and will execute any and all documents reasonably required to
fulfill the intent of this paragraph.
(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.
14
SECTION 5.3 JURISDICTION OF ORGANIZATION. During the term of the NH
Receivables, NH Credit will maintain its "location" (as defined in Section 9-307
of 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 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 or
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 $485,601,546.66 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.
SECTION 5.7 CROSS-COLLATERALIZATION. To the extent that NH Credit
transfers, sells, assigns or otherwise pledges any contract to a third party and
such third party retains any interest in any item of Financed Equipment securing
the repayment of any NH Receivable, as a result of the related Obligor agreeing
to cross-collateralize all obligations owed by such Obligor to NH Credit and its
assigns or otherwise, NH Credit acknowledges and agrees that it shall obtain
from such third party an agreement that such third party's interest in the
Financed Equipment shall be expressly subordinate and junior in priority to the
repayment of all amounts outstanding under such NH Receivable prior to becoming
available to pay any amount outstanding under any other obligation owed by such
Obligor to such third party.
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.
15
SECTION 6.2 REPURCHASE EVENTS. NH Credit hereby covenants and agrees with
CNHCR for the benefit of CNHCR, the Indenture Trustee, the Noteholders, the
Trust, 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, the Counterparties and the Noteholders. NH Credit hereby
consents to all such sales and assignments and agrees that enforcement of a
right or remedy hereunder by the Indenture Trustee shall have the same force and
effect as if the right or remedy had been enforced or executed by CNHCR.
SECTION 6.5 AMENDMENT. This Agreement may be amended from time to time,
with prior written notice to the Rating Agencies, by a written amendment duly
executed and delivered by NH Credit and CNHCR, without the consent of the
Noteholders or the Certificateholders, to cure any ambiguity, to correct or
supplement any provisions in this Agreement or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Noteholders or
the Certificateholders; PROVIDED, HOWEVER, that such amendment will not, in the
Opinion of Counsel, materially and adversely affect the interest of any
Noteholder or Certificateholder.
This Agreement may also be amended from time to time by NH Credit and
CNHCR, with prior written notice to the Rating Agencies, with the written
consent of (x) Noteholders holding Notes evidencing at least a majority of the
Note Balance and (y) the Holders of Certificates evidencing at least a majority
of the Certificate Balance, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Noteholders or the
Certificateholders; PROVIDED, HOWEVER, that no such amendment may: (i) increase
or reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on NH Receivables or distributions that are required to
be made for the benefit of the Noteholders or the Certificateholders or (ii)
reduce the aforesaid percentage of the Notes and Certificates that are required
to consent to any such amendment, without the consent of the holders of all the
outstanding Notes and Certificates.
16
It shall not be necessary for the consent of Certificateholders or
Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof.
SECTION 6.6 ACCOUNTANTS' LETTERS. (a) A firm of independent certified
public accountants will review the characteristics of the Receivables described
in the Schedule of Receivables and will compare those characteristics to the
information with respect to the Receivables contained in the Prospectus, (b) NH
Credit will cooperate with CNHCR and such accounting firm in making available
all information and taking all steps reasonably necessary to permit such
accounting firm to complete the review set forth in CLAUSE (a) and to deliver
the letters required of them under the Underwriting Agreement, (c) such
accounting firm will deliver to CNHCR a letter, dated the date of the
Prospectus, in the form previously agreed to by Case Credit, NH Credit and
CNHCR, with respect to the financial and statistical information contained in
the Prospectus and with respect to such other information as may be agreed in
the form of the letter.
SECTION 6.7 WAIVERS. No failure or delay on the part of CNHCR in
exercising any power, right or remedy under this Agreement, the NH Assignment or
any NH Subsequent Transfer Assignment shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power, right or remedy preclude
any other or further exercise thereof or the exercise of any other power, right
or remedy.
SECTION 6.8 NOTICES. All demands, notices and communications under this
Agreement shall be in writing, personally delivered or mailed by certified mail,
return receipt requested, and shall be deemed to have been duly given upon
receipt: (a) in the case of NH Credit, to New Holland Credit Company, LLC, ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Finance
Manager (telephone (▇▇▇) ▇▇▇-▇▇▇▇); with a copy to Senior Finance 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
17
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.
18
SECTION 6.15 SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(SIGNATURE PAGE FOLLOWS)
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers duly authorized as of the date and year
first above written.
CNH CAPITAL RECEIVABLES INC.
By: /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Assistant Treasurer
NEW HOLLAND CREDIT COMPANY, LLC
By: /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Assistant Treasurer
S-1
NH PURCHASE AGREEMENT
EXHIBIT A
to
NH Purchase Agreement
FORM OF
NH ASSIGNMENT
For value received, in accordance with and subject to the
NH Purchase
Agreement dated as of November 1, ▇▇▇▇ (▇▇▇ "▇▇ PURCHASE AGREEMENT") between the
undersigned and
CNH Capital Receivables Inc. ("CNHCR"), the undersigned does
hereby sell, assign, transfer, set over and otherwise convey unto CNHCR, without
recourse, all of its right, title, interest and, with respect to any Contracts
that are Leases, obligations in, to and under: (a) the NH Purchased Contracts,
which are listed on SCHEDULE A hereto, including all documents constituting
chattel paper included therewith, and all obligations of the Obligors
thereunder, including all moneys paid thereunder on or after the Initial Cutoff
Date, (b) the security interests in the Financed Equipment granted by Obligors
pursuant to the NH Purchased Contracts and any other interest of the undersigned
in such Financed Equipment, (c) any proceeds with respect to the NH Purchased
Contracts from claims on insurance policies covering Financed Equipment or
Obligors, (d) any proceeds from recourse to Dealers with respect to the NH
Purchased Contracts other than any interest in the Dealers' reserve accounts
maintained with NH Credit, (e) any Financed Equipment that shall have secured
the NH Purchased Contracts and that shall have been acquired by or on behalf of
CNHCR, (f) any True Lease Equipment that is subject to any NH Purchased
Contract, and (g) the proceeds of any and all of the foregoing. The foregoing
sale does not constitute and is not intended to result in any assumption by
CNHCR of any obligation (other than the covenant of quiet enjoyment benefiting
the Obligors under any Contracts that are Leases) of the undersigned to the
Obligors, insurers or any other person in connection with the NH Purchased
Contracts, Receivables Files, any insurance policies or any agreement or
instrument relating to any of them.
This NH Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
NH
Purchase Agreement and is to be governed in all respects by the
NH Purchase
Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the
NH Purchase Agreement.
A-1
IN WITNESS WHEREOF, the undersigned has caused this NH Assignment to be
duly executed as of November 1, 2003.
NEW HOLLAND CREDIT COMPANY, LLC
By:
--------------------------------
Name:
Title:
A-2
EXHIBIT B
to
NH Purchase Agreement
FORM OF
NH SUBSEQUENT TRANSFER ASSIGNMENT
For value received, in accordance with and subject to the
NH Purchase
Agreement dated as of November 1, ▇▇▇▇ (▇▇▇ "▇▇ PURCHASE AGREEMENT") between New
Holland Credit Company LLC, a Delaware limited liability company ("NH CREDIT"),
and
CNH Capital Receivables Inc., a Delaware corporation ("CNHCR"), NH Credit
does hereby sell, transfer, assign, set over and otherwise convey to CNHCR,
without recourse, all of its right, title, interest and, with respect to any
Contracts that are Leases, obligations in, to and under: (a) the Subsequent NH
Receivables, with an aggregate Contract Value equal to $______, listed on
SCHEDULE A hereto, including all documents constituting chattel paper included
therewith, and all obligations of the Obligors thereunder, including all moneys
paid thereunder on or after the Subsequent Cutoff Date, (b) the security
interests in the Financed Equipment granted by Obligors pursuant to such
Subsequent NH Receivables and any other interest of NH Credit in such Financed
Equipment, (c) any proceeds with respect to such Subsequent NH Receivables from
claims on insurance policies covering Financed Equipment or Obligors, (d) any
proceeds from recourse to Dealers with respect to such Subsequent NH Receivables
other than any interest in the Dealers' reserve accounts maintained with NH
Credit, (e) any Financed Equipment that shall have secured any such Subsequent
NH Receivables and that shall have been acquired by or on behalf of CNHCR, (f)
any True Lease Equipment that is subject to any Subsequent NH Receivable, and
(g) the proceeds of any and all of the foregoing. The foregoing sale does not
constitute and is not intended to result in any assumption by CNHCR of any
obligation (other than the covenant of quiet enjoyment benefiting the Obligors
under any Contracts that are Leases) of NH Credit to the Obligors, insurers or
any other person in connection with such Subsequent NH Receivables, Receivable
Files, any insurance policies or any agreement or instrument relating to any of
them.
This NH Subsequent Transfer Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of NH Credit contained in
the NH Purchase Agreement (including the Officer's 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 _______, 200_.
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
OFFICER'S CERTIFICATE
I, the undersigned officer of New Holland Credit Company, LLC (the
"COMPANY"), do hereby certify, pursuant to Section 4.1(b)(xiii) of the NH
Purchase Agreement dated as of November 1, 2003 among the Company, and
CNH
Capital Receivables Inc. (the "NH PURCHASE AGREEMENT"), that (i) all of the
conditions precedent to the transfer to CNHCR of the Subsequent NH Receivables
listed on Schedule A to the NH Subsequent Transfer Assignment delivered
herewith, and the other property and rights related to such Subsequent NH
Receivables as described in Section 2.2 of the NH Purchase Agreement, have been
satisfied on or prior to the related Subsequent Transfer Date and (ii) each
statement of fact set forth in any officer's 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:
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Name:
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Title:
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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 the Secured Party/Buyer."
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.
