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Exhibit 99(c)
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CNH WHOLESALE RECEIVABLES INC.,
Purchaser
and
CASE CREDIT CORPORATION,
Originator
RECEIVABLES PURCHASE AGREEMENT,
Dated as of [ ]
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TABLE OF CONTENTS
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PAGE
ARTICLE I DEFINITIONS.....................................................................1
Section 1.01 Certain Defined Terms......................................................1
Section 1.02 Other Definitional Provisions..............................................2
ARTICLE II CONVEYANCE OF RECEIVABLES.......................................................2
Section 2.01 Conveyance of Receivables..................................................2
Section 2.02 Representations and Warranties of the Originator Relating to the
Originator and the Agreement...............................................4
Section 2.03 Representations and Warranties of the Originator Relating to the
Receivables................................................................6
Section 2.04 Addition of Accounts.......................................................7
Section 2.05 Covenants of the Originator................................................8
Section 2.06 Removal of Eligible Accounts...............................................9
Section 2.07 Sale of Ineligible Receivables............................................11
ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES....................................11
Section 3.01 Acceptance of Appointment and Other Matters Relating to the Servicer......11
Section 3.02 Servicing.................................................................11
ARTICLE IV ALLOCATION AND APPLICATION OF COLLECTIONS......................................11
Section 4.01 Allocations and Applications of Collections and Other Funds...............11
ARTICLE V OTHER MATTERS RELATING TO THE ORIGINATOR.......................................11
Section 5.01 Merger or Consolidation of, or Assumption, of the Obligations of the
Originator................................................................12
Section 5.02 Originator Indemnification of the Purchaser...............................12
ARTICLE VI TERMINATION....................................................................12
ARTICLE VII MISCELLANEOUS PROVISIONS.......................................................13
Section 7.01 Amendment.................................................................13
Section 7.02 Protection of Right, Title and Interest to Receivables....................14
Section 7.03 Limited Recourse..........................................................15
Section 7.04 No Petition...............................................................15
Section 7.05 GOVERNING LAW.............................................................15
Section 7.06 Notices...................................................................15
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TABLE OF CONTENTS
(continued)
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PAGE
Section 7.07 Severability of Provisions................................................15
Section 7.08 Assignment................................................................15
Section 7.09 Further Assurances........................................................16
Section 7.10 No Waiver; Cumulative Remedies............................................16
Section 7.11 Counterparts..............................................................16
Section 7.12 Third-Party Beneficiaries.................................................16
Section 7.13 Merger and Integration....................................................16
Section 7.14 Headings..................................................................16
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RECEIVABLES PURCHASE AGREEMENT, dated as of [ ], between CNH WHOLESALE
RECEIVABLES INC., a corporation organized under the laws of the State of
Delaware (the "Purchaser"), and CASE CREDIT CORPORATION, a corporation organized
under the laws of the State of Delaware (the "Originator").
W I T N E S S E T H :
WHEREAS the Originator in the ordinary course of its business finances the
purchase of floorplan inventory by agricultural, construction and industrial
equipment dealers thereby generating certain payment obligations;
WHEREAS the Originator wishes to sell certain of such existing and future
payment obligations from time to time to the Purchaser; and
WHEREAS the Purchaser desires to sell such payment obligations to CNH
Wholesale Master Note Trust (the "Issuer"), pursuant to a Transfer and Servicing
Agreement dated as of [ ] (as the same may from time to time be amended,
supplemented or otherwise modified, the "Transfer and Servicing Agreement"),
among the Purchaser, as transferor, the Originator, as servicer, and the Issuer.
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 CERTAIN DEFINED TERMS. Capitalized terms used herein but not
otherwise defined shall have the meanings set forth in the Transfer and
Servicing Agreement or if not defined in the Transfer and Servicing Agreement,
shall have the meanings set forth in the Indenture. In addition, the term
"Agreement" means this Receivables Purchase Agreement, as the same may from time
to time be amended, supplemented or otherwise modified. In addition, the
following words shall have the following meanings:
"PURCHASER TANGIBLE EQUITY" means, at any date of determination, an amount
equal to:
(a) the Transferor Amount; PLUS
(b) the aggregate amount on deposit in all cash collateral amounts, spread
accounts or similar accounts established for the benefit of any Series or Class
of Notes; MINUS
(c) the outstanding balance of the Subordinated Notes.
"REQUIRED PURCHASER EQUITY" means, at any date of determination, the sum
of:
(a) the product of (i) the Transferor Amount, multiplied by (ii) the
higher of (A) [ ] and (B) such higher amount as the parties shall from time to
time determine to be the required percentage of credit enhancement that would be
required to obtain a rating of "BBB" (or an equivalent rating) by either Moody's
or S&P as a Class of Notes; PLUS
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(b) The "Required Purchaser Equity" or other similar amounts for any other
transaction to which the Purchaser is a party.
Section 1.02 OTHER DEFINITIONAL PROVISIONS. The words "hereof", "herein"
and "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, and Article, section, subsection, schedule, and exhibit references
are to this Agreement unless otherwise specified.
ARTICLE II
CONVEYANCE OF RECEIVABLES
Section 2.01 CONVEYANCE OF RECEIVABLES. (a) Originator hereby sells,
transfers, assigns, sets over and otherwise conveys to Purchaser without
recourse (except as expressly provided herein), and Purchaser purchases and/or
accepts as a capital contribution, as applicable, from Originator, all of
Originator's right, title and interest in and to the Receivables now existing
and arising from time to time in the Accounts and Collateral Security with
respect thereto; provided, however, that Principal Receivables originated after
the occurrence of an Insolvency Event with respect to Originator shall not be
conveyed hereunder.
Originator agrees to record and file, at its own expense, financing
statements (and continuation statements when applicable) with respect to the
Receivables now existing and hereafter created, meeting the requirements of
applicable state law in such manner and in such jurisdictions as are necessary
to perfect, and maintain perfection of, the conveyance of the Receivables to
Purchaser and the first priority nature of Purchaser's interest in the
Receivables and to deliver a file-stamped copy of such financing statements or
other evidence of such filings to Purchaser and Indenture Trustee (which
evidence may, for purposes of this Section 2.01, consist of telephone
confirmation of such filing to Purchaser and Indenture Trustee, followed by
delivery of a file stamped copy to Indenture Trustee with a copy to Purchaser as
soon as is practicable after filing) on or prior to the Effective Date, and in
the case of any continuation statements filed pursuant to this Section 2.01, as
soon as practicable after receipt thereof by Originator.
Originator further agrees, at its own expense, (i) on or prior to (A) the
Automatic Addition Termination Date or an Automatic Addition Suspension Date, or
subsequent to a Restart Date, in the case of any Accounts designated pursuant
hereto prior to such date, (B) the applicable Addition Date, in the case of
Additional Accounts, and (C) the applicable Removal Date, in the case of Removed
Accounts, to indicate in its appropriate computer files that Receivables created
in connection with the Accounts (other than Removed Accounts) have been sold
and/or contributed to Purchaser pursuant to this Agreement and transferred by
Purchaser to the Issuer pursuant to the Transfer and Servicing Agreement for the
benefit of the Holders (or conveyed to the Purchaser or its designee in
accordance with Section 2.07 of the Transfer and Servicing Agreement in the case
of Removed Accounts) by including in such computer files a notation identifying
each such Account (or, in the case of Removed Accounts, either including such
notation identifying the Removed Accounts only if the removal occurs prior to
the Automatic Addition Termination Date or Automatic Addition Suspension Date or
subsequent to a Restart Date, or deleting such notation thereafter), and (ii) on
or prior to the date referred to in clauses (i)(A), (B) or (C) as applicable, to
deliver to Purchaser and Indenture Trustee an account
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schedule (provided that such account schedule shall be provided in respect of
Automatic Additional Accounts on or prior to the Determination Date relating to
the Monthly Period during which the respective Addition Dates occur) specifying
for each such Account, as of the Automatic Addition Termination Date or
Automatic Addition Suspension Date, in the case of clause (i)(A), the applicable
Additional Cut-Off Date, in the case of Additional Accounts, and the Removal
Date, in the case of Removed Accounts, its account number, the aggregate amount
outstanding in such Account and the aggregate amount of Principal Receivables in
such Account. Such account schedule shall be supplemented from time to time to
reflect Additional Accounts and Removed Accounts. Once the notation referenced
in clause (i) of this paragraph has been included with respect to any Account,
Originator further agrees not to alter such or other mark during the term of
this Agreement unless and until (x) such Account becomes a Removed Account, (y)
a Restart Date has occurred on which Purchaser starts including Automatic
Additional Accounts as Accounts or (z) Originator shall have delivered to
Purchaser, the Issuer and the Indenture Trustee at least 30 days prior written
notice of its intention to do so and has taken such action as is necessary or
advisable to cause the respective interests of Purchaser, the Issuer and
Indenture Trustee in the Receivables and other Trust Assets to continue to be
perfected with the priority required by this Agreement, the Transfer and
Servicing Agreement and the Indenture, respectively.
It is the intention of the parties hereto that the conveyances of the
Receivables and the other Collateral Security by Originator to Purchaser as
provided in this Section 2.01 be, and be construed as, an absolute sales or
capital contributions, including for accounting purposes, without recourse
except as explicitly provided herein, of the Receivables and the other
Collateral Security by Originator to Purchaser. Furthermore, it is not intended
that such conveyance be deemed a pledge of the Receivables and the other
Collateral Security by Originator to Purchaser to secure a debt or other
obligation of Originator. If, however, notwithstanding the intention of the
parties, the conveyance provided for in this Section 2.01 is determined to be a
transfer for security, then this Agreement shall also be deemed to be a security
agreement and Originator hereby grants to Purchaser a security interest in all
of Originator's right, title and interest in and to the Receivables and the
Collateral Security with respect thereto.
(b) The "Purchase Price" for the Receivables (including Receivables in
Additional Accounts) to be conveyed to Purchaser under this Agreement that come
into existence on or after the Closing Date shall be payable on each Business
Day on which such Receivables are conveyed by Originator to Purchaser in an
amount equal to 100% of the Principal Receivables so conveyed, adjusted from
time to time with respect to Principal Receivables originated hereafter to
reflect such factors as Originator and Purchaser mutually agree will result in a
Purchase Price determined to approximate the fair market value of such Principal
Receivables. If and to the extent that Purchaser shall not have funds available
to pay Originator the Purchase Price for the Receivables transferred on any day,
an amount equal to the portion of the Purchase Price for such Receivables for
which Purchaser shall not have funds shall be deemed to be a borrowing by
Purchaser from Originator under the Subordinated Note in the amount of such
deficiency; provided that no borrowing may be made under the Subordinated Note
if, after giving effect to such borrowing, Purchaser Tangible Equity would be
less than Required Purchaser Equity; and provided, further, that Originator may,
in its discretion, contribute Receivables on any Business Day and the Purchase
Price of such Receivables shall be deemed to be a capital contribution from
Originator to Purchaser.
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Section 2.02 REPRESENTATIONS AND WARRANTIES OF THE ORIGINATOR RELATING TO
THE ORIGINATOR AND THE AGREEMENT. The Originator hereby represents and warrants
to the Purchaser as of each Closing Date that:
(a) ORGANIZATION AND GOOD STANDING. The Originator is a corporation duly
organized and validly existing and in good standing under the law of the State
of Delaware and has, in all material respects, full corporate power, authority
and legal right to own its properties and conduct its business as such
properties are presently owned and such business is presently conducted, and to
execute, deliver and perform its obligations under this Agreement.
(b) DUE QUALIFICATION. The Originator is duly qualified to do business
and, where necessary, is in good standing as a foreign corporation (or is exempt
from such requirement) and has obtained all necessary licenses and approvals in
each jurisdiction in which the conduct of its business requires such
qualification except where the failure to so qualify or obtain licenses or
approvals would not have a material adverse effect on its ability to perform its
obligations hereunder.
(c) DUE AUTHORIZATION. The execution and delivery of this Agreement and
the consummation of the transactions provided for or contemplated by this
Agreement have been duly authorized by the Originator by all necessary corporate
action on the part of the Originator.
(d) NO CONFLICT. The execution and delivery of this Agreement, the
performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof and thereof, will not conflict with, result in
any breach of any of the material terms and provisions of, or constitute (with
or without notice or lapse of time or both) a material default under, any
indenture, contract, agreement, mortgage, deed of trust, or other instrument to
which the Originator is a party or by which it or its properties are bound.
(e) NO VIOLATION. The execution and delivery of this Agreement, the
performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof and thereof applicable to the Originator, will
not conflict with or violate any material Requirements of Law applicable to the
Originator.
(f) NO PROCEEDINGS. There are no proceedings or, to the best knowledge of
the Originator, investigations, pending or threatened against the Originator,
before any Governmental Authority (i) asserting the invalidity of this
Agreement, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement, (iii) seeking any determination or ruling that,
in the reasonable judgment of the Originator, would materially and adversely
affect the performance by the Originator of its obligations under this
Agreement, (iv) seeking any determination or ruling that would materially and
adversely affect the validity or enforceability of this Agreement or (v) seeking
to affect adversely the income tax attributes of the Issuer under the United
States federal or any state income, single business or franchise tax systems.
(g) ALL CONSENTS REQUIRED. All appraisals, authorizations, consents,
orders, approvals or other actions of any Person or of any governmental body or
official required in connection with the execution and delivery of this
Agreement, the performance of the transactions
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contemplated by this Agreement, and the fulfillment of the terms hereof or
thereof, have been obtained.
(h) ENFORCEABILITY. This Agreement constitutes a legal, valid and binding
obligation of the Originator enforceable against the Originator in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights in general
and except as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity).
(i) RECORD OF ACCOUNTS. As of the first Closing Date, in the case of
initial Accounts and, as of the applicable Addition Date, in the case of the
Additional Accounts and Automatic Additional Accounts, Schedule 1 to this
Agreement is an accurate and complete listing in all material respects of all
the Accounts as of the Cut-Off Date or the applicable Additional Cut-Off Date,
as the case may be, and the information contained therein with respect to the
identity of such Accounts and the Receivables existing thereunder is true and
correct in all material respects as of the Cut-Off Date or such applicable
Additional Cut-Off Date, as the case may be.
(j) VALID TRANSFER. This Agreement or, in the case of Additional Accounts,
the related Assignment constitutes a valid sale, transfer and assignment to the
Purchaser of all right, title and interest of the Originator in the Receivables
and the Collateral Security and the proceeds thereof. Upon the filing of the
financing statements described in Section 2.01 with the Secretary of State of
the State of Delaware and, in the case of the Receivables hereafter created and
the proceeds thereof, upon the creation thereof, the Purchaser shall have a
first priority perfected ownership interest in such property, except for Liens
permitted under Section 2.05(a).
Except as otherwise provided in the Transfer and Servicing Agreement,
neither the Originator nor any Person claiming through or under the Originator
has any claim to or interest in the Trust Assets.
The representations and warranties set forth in this Section 2.02 shall
survive the transfer and assignment of the Receivables to the Purchaser. Upon
discovery by the Originator or the Purchaser of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other party.
In the event of any breach of any of the representations and warranties set
forth in this Section 2.02 and if, in connection therewith, the Purchaser shall
be obligated to purchase Receivables pursuant to Section 2.03 of the Transfer
and Servicing Agreement, the Originator shall repurchase the Receivables and the
Collateral Security and shall pay to the Purchaser on the Business Day preceding
the Distribution Date on which such purchase of Receivables is to be made an
amount equal to the Purchase Price for the Receivables as specified in the
Transfer and Servicing Agreement. The obligation of the Originator to purchase
the Receivables pursuant to this Section 2.02 shall constitute the sole remedy
against the Originator respecting an event of the type specified in the first
sentence of this Section 2.02 available to the Purchaser and to the Noteholders
(or the Indenture Trustee on behalf of the Noteholders).
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Section 2.03 REPRESENTATIONS AND WARRANTIES OF THE ORIGINATOR RELATING TO
THE RECEIVABLES.
(a) REPRESENTATIONS AND WARRANTIES. The Originator hereby represents and
warrants to the Purchaser that:
(i) Each Receivable and all Collateral Security existing on the
first Closing Date or, in the case of Additional Accounts and Automatic
Additional Accounts, on the applicable Addition Date, and on each Transfer
Date, has been conveyed to the Purchaser free and clear of any Lien.
(ii) With respect to each Receivable and all Collateral Security
existing on the first Closing Date or, in the case of Additional Accounts
and Automatic Additional Accounts, on the applicable Addition Date, and on
each Transfer Date, all consents, licenses, approvals or authorizations of
or registrations or declarations with any Governmental Authority required
to be obtained, effected or given by the Originator in connection with the
conveyance of such Receivable or Collateral Security to the Purchaser have
been duly obtained, effected or given and are in full force and effect.
(iii) On the Cut-off Date and each Closing Date, each Initial
Account is an Eligible Account and, in the case of Additional Accounts and
Automatic Additional Accounts, on the applicable Additional Cut-Off Date
and each subsequent Closing Date, each such Additional Account is an
Eligible Account.
(iv) On the first Closing Date, in the case of the Initial
Accounts, and, in the case of the Additional Accounts and Automatic
Additional Accounts, on the applicable Additional Cut-Off Date, and on each
Transfer Date, each Receivable conveyed to the Purchaser on such date is an
Eligible Receivable or, if such Receivable is not an Eligible Receivable,
such Receivable is conveyed to the Purchaser in accordance with Section
2.07.
(b) NOTICE OF BREACH. The representations and warranties set forth in this
Section 2.03 shall survive the transfer and assignment of the Receivables to the
Purchaser. Upon discovery by the Originator or the Purchaser of a breach of any
of the representations and warranties set forth in this Section 2.03, the party
discovering such breach shall give prompt written notice to the other party.
(c) REPURCHASE. In the event any representation or warranty under Section
2.03(a) is not true and correct as of the date specified therein with respect to
any Receivable or Account and the Purchaser is, in connection therewith,
required to purchase such Receivable or all Receivables in such Account pursuant
to Section 2.04(c) of the Transfer and Servicing Agreement, then, within [60]
days (or such longer period as may be agreed to by the Purchaser) of the earlier
to occur of the discovery of any such event by the Originator or the Purchaser,
or receipt by the Originator or the Purchaser of written notice of any such
event given by the Indenture Trustee or any Enhancement Providers, the
Originator shall repurchase the Receivable or Receivables of which the Purchaser
is required to accept reassignment pursuant to the
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Transfer and Servicing Agreement on the Business Day preceding the Determination
Date on which such reassignment is to occur.
The Originator shall purchase each such Receivable by making a payment to
the Purchaser in immediately available funds on the Business Day preceding the
Determination Date on which such reassignment is to occur in an amount equal to
the Purchase Price for such Receivable. Upon payment of the Purchase Price, the
Purchaser shall automatically and without further action be deemed to sell,
transfer, assign, set over and otherwise convey to the Originator, without
recourse, representation or warranty, all the right, title and interest of the
Purchaser in and to such Receivable, all Collateral Security and all monies due
or to become due with respect thereto and all proceeds thereof. The Purchaser
shall execute such documents and instruments of transfer or assignment and take
such other actions as shall reasonably be requested by the Originator to effect
the conveyance of such Receivables pursuant to this Section. The obligation of
the Originator to repurchase any such Receivable shall constitute the sole
remedy respecting the event giving rise to such obligation available to the
Purchaser and to the Noteholders (or the Indenture Trustee on behalf of
Noteholders).
Section 2.04 ADDITION OF ACCOUNTS. (a) In addition to the conveyance of
Automatic Additional Accounts pursuant to Section 2.01, the Originator may from
time to time offer to voluntarily designate additional Eligible Accounts to be
included as Accounts, subject to the conditions specified in paragraph (b)
below. If any such offer is accepted by the Purchaser, Receivables and
Collateral Security from such Additional Accounts shall be sold to the Purchaser
effective on a date (the "Addition Date") specified in a written notice provided
by the Originator (or the Servicer on its behalf) to the Purchaser and any
Enhancement Providers specifying the Additional Cut-Off Date and the Addition
Date for such Additional Accounts (the "Addition Notice") on or before the fifth
Business Day but not more than 30th day prior to the related Addition Date (the
"Notice Date").
(b) The Originator shall be permitted to convey to the Purchaser the
Receivables and all Collateral Security related thereto in any Additional
Accounts designated by the Originator as such pursuant to Section 2.04(a) only
upon satisfaction of each of the following conditions on or prior to the related
Addition Date:
(i) The Originator shall provide the Purchaser and any Enhancement
Providers with a timely Addition Notice.
(ii) Such Additional Accounts shall all be Eligible Accounts.
(iii) The Originator shall have delivered to the Purchaser a duly
executed written assignment (including an acceptance by the Purchaser) in
substantially the form of Exhibit A (the "Assignment") and the computer
file microfiche or written list required to be delivered pursuant to
Section 2.01.
(iv) The Originator shall have delivered to the Purchaser for
deposit in the Collection Account all Collections with respect to such
Additional Accounts since the Additional Cut-Off Date.
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(v) (A) No selection procedures believed by the Originator to be
adverse to the interests of the Purchaser or the Noteholders were used in
selecting such Additional Accounts; (B) the list of Additional Accounts
delivered pursuant to clause (iii) above is true and correct in all
material respects as of the Additional Cut-Off Date and (C) as of each of
the Notice Date and the Addition Date, neither the Originator, the
Purchaser nor the Servicer are insolvent nor will have been made insolvent
by such transfer nor are aware of any pending insolvency.
(vi) The Rating Agency Condition shall have been satisfied.
(vii) The addition of the Receivables arising in such Additional
Accounts shall not result in the occurrence of an Early Amortization Event.
(viii) The Originator shall have delivered to the Purchaser, the
Indenture Trustee and any Enhancement Providers a certificate of a Vice
President or more senior officer confirming the items set forth in
paragraphs (ii) through (vii) above.
(ix) On or before each Addition Date, the Originator shall deliver
to the Purchaser, the Indenture Trustee and any Enhancement Providers an
Opinion of Counsel with respect to the Receivables in the Additional
Accounts substantially in the form of Exhibit B.
(c) The Originator hereby represents and warrants as of the applicable
Addition Date as to the matters set forth in Section 2.04(b)(v). The
representations and warranties set forth in Section 2.04(b)(v) shall survive the
sale and assignment of the respective Receivables and Collateral Security to the
Purchaser. Upon discovery by the Originator or the Purchaser of a breach of any
of the foregoing representations and warranties, the party discovering the
breach shall give prompt written notice to the other party and to any
Enhancement Providers.
(d) At least 20 days prior to each Addition Date in respect of the
designation of any Additional Accounts pursuant to this Section 2.04, the
Originator shall have given written notice of such designation to the Rating
Agencies.
Section 2.05 COVENANTS OF THE ORIGINATOR. The Originator hereby covenants
that:
(a) NO LIENS. Except for the conveyances hereunder, the Originator shall
not sell, pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any Lien on, any Receivable or any Collateral
Security, whether now existing or hereafter created, or any interest therein,
and the Originator shall defend the right, title and interest of the Purchaser
and the Issuer in, to and under the Receivables and the Collateral Security,
whether now existing or hereafter created, against all claims of third parties
claiming through or under the Originator.
(b) FLOORPLAN FINANCING AGREEMENTS AND GUIDELINES. The Originator shall
comply with and perform its servicing obligations with respect to the Accounts
and Receivables in accordance with the Floorplan Financing Agreements relating
to the Accounts and the Floorplan Financing Guidelines, except insofar as any
failure to so comply or perform would not materially and adversely affect the
rights of the Issuer, the Noteholders or any of the Beneficiaries. Subject
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to compliance with all Requirements of Law, the Originator may change the terms
and provisions of the Floorplan Financing Agreement or the Floorplan Financing
Guidelines if and only if such change would be permitted pursuant to Section
3.01(d) of the Transfer and Servicing Agreement.
(c) ACCOUNT ALLOCATIONS. In the event that the Originator is unable for
any reason to transfer Receivables to the Purchaser then the Originator agrees
that it shall allocate, after the occurrence of such event, payments on each
Account with respect to the principal balance of such Account first to the
oldest principal balance of such Account and to have such payments applied as
Collections in accordance with the terms of the Transfer and Servicing
Agreement. The parties hereto agree that Non-Principal Receivables, whenever
created, accrued in respect of Principal Receivables which have been conveyed to
the Purchaser and by the Purchaser to the Issuer shall continue to be a part of
the Issuer notwithstanding any cessation of the transfer of additional Principal
Receivables to the Purchaser and Collections with respect thereto shall continue
to be allocated and paid in accordance with Article IV of the Indenture.
(d) DELIVERY OF COLLECTIONS. In the event that the Originator receives
Collections, the Originator agrees to pay the Servicer or any Successor Servicer
all payments received by the Originator in respect of the Receivables as soon as
practicable after receipt thereof by the Originator, but in no event later than
two days after the receipt by the Originator thereof.
(e) NOTICE OF LIENS. The Originator shall notify the Purchaser and the
Indenture Trustee in writing promptly after becoming aware of any Lien on any
Receivable other than the conveyances hereunder or under the Transfer and
Servicing Agreement.
(f) COMPLIANCE WITH LAW. The Originator hereby agrees to comply in all
material respects with all Requirements of Law applicable to the Originator.
(g) REALIZATION OF SECURITY INTEREST IN EQUIPMENT. The Originator hereby
agrees not to realize upon any security interest in any Equipment financed with
the proceeds of any Receivable that it may have in respect of advances or loans
to Dealers until the Issuer has fully realized on its security interest in such
Equipment.
Section 2.06 REMOVAL OF ELIGIBLE ACCOUNTS. (a) On each Determination Date
on which Accounts are removed from the Issuer pursuant to Section 2.07 of the
Transfer and Servicing Agreement, the Purchaser shall be deemed to have offered
to the Originator automatically and without notice to or action by or on behalf
of the Purchaser, the right to remove Eligible Accounts from the operation of
this Agreement in the manner prescribed in Section 2.06(b).
(b) To accept such offer and remove Accounts, the Originator (or the
Servicer on its behalf) shall take the following actions and make the following
determinations:
(i) not less than five Business Days prior to the Removal
Commencement Date, furnish to the Purchaser, the Indenture Trustee, any
Enhancement Providers and the Rating Agencies a written notice (the
"Removal Notice") specifying the Determination Date (which may be the
Determination Date on which such notice is given) on which removal of the
Receivables of one or more Accounts shall commence (a "Removal
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Commencement Date") and the Accounts the future generated Receivables of
which are to be removed from the Issuer and retransferred (the "Designated
Accounts");
(ii) determine on the Removal Commencement Date with respect to
such Designated Accounts the aggregate balance of Principal Receivables in
respect of each such Designated Account (the "Designated Balance") and
amend Schedule 1 by delivering to the Purchaser a computer file or
microfiche or written list containing a true and complete list of the
Removed Accounts specifying for each such Account, as of the Removal
Commencement Date, its account number, the aggregate amount of Receivables
outstanding in such Account and the Designated Balance;
(iii) from and after such Removal Commencement Date, cease to
transfer to the Purchaser any and all Receivables arising in such
Designated Accounts;
(iv) from and after such Removal Commencement Date, allocate all
Collections of Principal Receivables in respect of each Designated Account,
first to the oldest outstanding principal balance of such Designated
Account, until the Determination Date on which the Designated Balance with
respect to such Designated Account is reduced to zero (the "Removal Date");
(v) on each Business Day from and after such Removal Commencement
Date to and until the related Removal Date, allocate (A) to the Purchaser
Defaulted Receivables and Collections of Non-Principal Receivables in
respect of each Designated Account, based on the ratio of the aggregate
amount of Principal Receivables in all Designated Accounts sold to the
Purchaser on such Business Day to the total aggregate amount of Principal
Receivables in all such Designated Accounts on such Business Day and (B) to
the Originator, the remainder of the Defaulted Receivables and Collections
of Non-Principal Receivables in all such Designated Accounts on such
Business Day;
(vi) represent and warrant that the removal of any such Eligible
Account on any Removal Date shall not, in the reasonable belief of the
Originator, cause an Early Amortization Event to occur or cause the Pool
Balance to be less than the Required Pool Balance;
(vii) represent and warrant that no selection procedures believed by
the Originator to be adverse to the interests of the Noteholders were
utilized in selecting the Designated Accounts;
(viii) represent and warrant as of the Removal Commencement Date that
the list of Removed Accounts delivered pursuant to clause (ii) above, as of
the Removal Commencement Date, is true and complete in all material
respects; and
(ix) on or before the related Removal Commencement Date, deliver to
Purchaser, the Indenture Trustee and any Enhancement Providers an Officers'
Certificate confirming the items set forth in clauses (vi), (vii) and
(viii) above and confirming that the Originator reasonably believes that
the removal of the Removed Accounts will not result in the occurrence of an
Early Amortization Event; the Purchaser may conclusively
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rely on such officers' Certificate and shall have no duty to make inquiries
with regard to the matters set forth therein and shall incur no liability
in so relying.
(c) Subject to Section 2.06(b), on the Removal Date with respect to any
such Designated Account, the Originator shall cease to allocate any Collections
therefrom in accordance with Section 2.06(b) and such Designated Account shall
be deemed removed by operation of this Agreement for all purposes (a "Removed
Account"). After the Removal Date and upon the written request of the Servicer,
the Purchaser shall deliver to the Originator a reassignment in substantially
the form of Exhibit D (the "Reassignment").
Section 2.07 SALE OF INELIGIBLE RECEIVABLES. The Originator shall sell to
Purchaser on each Transfer Date any and all Receivables arising in any Eligible
Accounts that are Ineligible Receivables, provided that on the Cut-Off Date or,
in the case of Receivables arising in Additional Accounts or Automatic
Additional Accounts, on the related Additional Cut-Off Date, and on the
applicable Transfer Date, the Account in which such Receivables arise is an
Eligible Account.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 3.01 ACCEPTANCE OF APPOINTMENT AND OTHER MATTERS RELATING TO THE
SERVICER. (a) The Originator agrees to act as the Servicer under this Agreement
and the Transfer and Servicing Agreement, and the Purchaser consents to the
Originator acting as Servicer. The Originator shall have ultimate responsibility
for servicing and making collections on the Receivables and shall have the
authority to make any servicing related decisions relating to such Receivables,
to the extent such authority is granted to the Servicer under this Agreement and
the Transfer and Servicing Agreement.
(b) The servicer shall service and administer the Receivables in
accordance with the provisions of the Transfer and Servicing Agreement.
Section 3.02 SERVICING. COMPENSATION. As full compensation for its
servicing activities hereunder and under the Transfer and Servicing Agreement,
the Servicer shall be entitled to receive the Servicing Fee on each Distribution
Date. The Servicing Fee shall be paid in accordance with the terms of the
Indenture.
ARTICLE IV
ALLOCATION AND APPLICATION OF COLLECTIONS
Section 4.01 ALLOCATIONS AND APPLICATIONS OF COLLECTIONS AND OTHER FUNDS.
The Servicer shall apply all Collections with respect to the Receivables and all
funds on deposit in the Collection Account as described in Article IV of the
Indenture.
ARTICLE V
OTHER MATTERS RELATING TO THE ORIGINATOR
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Section 5.01 MERGER OR CONSOLIDATION OF, OR ASSUMPTION, OF THE OBLIGATIONS
OF THE ORIGINATOR. The Originator shall not consolidate with or merge into any
other Person or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(a) the Person formed by such consolidation or into which the
Originator is merged or the Person which acquires by conveyance or transfer the
properties and assets of the Originator substantially as an entirety shall be a
Person organized and existing under the laws of the United States of America or
any State or the District of Columbia and, if the Servicer is not the surviving
entity, such Person shall assume, by execution of a supplemental agreement
hereto, the performance of every covenant and obligation of the Originator
hereunder;
(b) the Originator shall have given the Rating Agencies at least
10 days prior notice and the Rating Agency Condition shall have been satisfied
with respect to such transaction; and
(c) the Originator has delivered to the Purchaser, the Indenture
Trustee and the Owner Trustee an Officers' Certificate stating that such
consolidation, merger, conveyance or transfer complies with this Section 5.01
and that all conditions precedent herein provided for relating to such
transaction have been complied with, and an Opinion of Counsel to the effect
that the supplemental agreement referred to in clause (a) above is the legal,
valid and binding obligation of the Originator and the successor Person.
Section 5.02 ORIGINATOR INDEMNIFICATION OF THE PURCHASER. The Originator
shall indemnify and hold harmless the Purchaser, from and against any loss,
liability, expense, claim, damage or injury suffered or sustained by reason of
any acts, omissions or alleged acts or omissions arising out of activities of
the Originator pursuant to this Agreement arising out of or based on the
arrangement created by this Agreement and the activities of the Originator taken
pursuant thereto, including any judgment, award, settlement, reasonable
attorneys' fees and other costs or expenses incurred in connection with the
defense of any actual or threatened action, proceeding or claim; provided,
however, that the Originator shall not indemnify the Purchaser if such acts,
omissions or alleged acts or omissions constitute fraud, gross negligence or
willful misconduct by the Purchaser: and provided further, that the Originator
shall not indemnify the Purchaser for any liabilities, cost or expense of the
Purchaser with respect to any Federal, state or local income or franchise taxes
(or any interest or penalties with respect thereto) required to be paid by the
Purchaser in connection herewith to any taxing authority. Any indemnification
under this Article V shall survive the termination of the Agreement.
ARTICLE VI
TERMINATION
This Agreement will terminate immediately after the Issuer terminates
pursuant to the Trust Agreement. In addition, the Purchaser shall not purchase
Receivables nor shall the Originator designate Additional Accounts if the
Originator shall become an involuntary party to (or be made the subject of) any
proceeding provided for by any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings of or relating to the Originator
or relating to all or substantially all of its property (an "Involuntary Case")
and such Involuntary Case shall have continued for a period of ten Business Days
from and including the day of
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receipt by the Originator at its principal corporate office of notice of such
Involuntary case; provided, that during such ten Business Day period, the
Purchaser shall suspend its purchase of Receivables and shall hold all
Collections of Principal Receivables that would have been available to purchase
Receivables in the Collection Account and (a) if by the first Business Day after
such ten Business Day period, the Purchaser has not obtained an order from the
court having jurisdiction of such case or filing which order approves the
continuation of the sale of Receivables by the Originator to the Purchaser and
which provided that the Purchaser and any of its transferees (including the
Indenture Trustee) may rely on such order for the validity and nonavoidance of
such transfer (the "Order"), the Purchaser shall hold such Collections in the
Collection Account until such time as they may be paid as elsewhere provided
herein and shall not purchase Receivables thereafter or designate Additional
Accounts for transfer to the Purchaser, or (b) if by such first Business Day,
the Purchaser has obtained such Order, the Originator may continue selling
Receivables, and the Purchaser may continue purchasing Receivables, pursuant to
the terms hereof, as modified by the immediately succeeding sentence. During the
period after the 10 Business Day period described above and before the 60-day
period before filing described below, the purchase price of the Receivables
transferred during such period, notwithstanding anything in this Agreement to
the contrary, shall be paid to the Originator by the Purchaser in cash not later
than the same Business Day of any sale of Receivables. During such period,
Receivables shall be considered transferred to the Purchaser only to the extent
that the purchase price therefor has been paid in cash on the same Business Day.
If an order is obtained but subsequently is reversed or rescinded or expires,
the Originator shall immediately cease selling Receivables to the Purchaser and
the Purchaser shall immediately cease buying Receivables. If by the first
Business Day after the sixty-day period after such involuntary filing, such
Involuntary Case has not been dismissed, the Purchaser shall not purchase
thereafter Receivables or designated Additional Accounts for transfer to the
Issuer.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01 AMENDMENT. (a) This Agreement may be amended from time to time
by the Originator and the Purchaser without the consent of any of the
Noteholders; provided, however, that such action shall not, as evidenced by an
Opinion of Counsel for the Originator addressed and delivered to the Indenture
Trustee, adversely affect in any material respect the interests of any
Noteholder.
(b) This Agreement may also be amended from time to time by the Purchaser
and Originator with the consent of the Noteholders evidencing not less than
66-2/3% of the Outstanding Dollar Principal Amount of the Notes of all adversely
affected Series, 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 Originator; provided, however, that no such
amendment shall (i) reduce in any manner the amount of or delay the timing of
any distributions to be made to Noteholders or deposits of amounts to be so
distributed with the amount available under any Enhancement without the consent
of each affected Noteholder, (ii) change the definition of or the manner of
calculating the interest of any Noteholder without the consent of each affected
Noteholder, (iii) reduce the aforesaid percentage required to consent to any
such amendment without the consent of each Noteholder or (iv) adversely affect
the rating of any Series or Class by each Rating Agency without the consent of
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the Holders of Notes of such Series or Class evidencing not less than 66-2/3% of
the aggregate unpaid principal amount of the Notes of such Series or Class. Any
amendment to be effected pursuant to this paragraph shall be deemed to adversely
affect all outstanding Series, other than any series with respect to which such
action shall not, as evidenced by an Opinion of Counsel for the Originator,
addressed and delivered to the Indenture Trustee, adversely affect in any
material respect the interests of any Noteholder of such Series. The Indenture
Trustee may, but shall not be obligated to, enter into any such amendment which
affects the Indenture Trustee's rights, duties or immunities under this
Agreement or otherwise.
(c) Promptly after the execution of any such amendment or consent (other
than an amendment pursuant to paragraph (a)), the Originator shall furnish
notification of the substance of such amendment to each Enhancement Provider and
to each Rating Agency.
(d) It shall not be necessary for the consent of Noteholders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents and of evidencing the authorization of the execution
thereof by Noteholders shall be subject to such reasonable requirements as the
Indenture Trustee may prescribe.
(e) Notwithstanding anything in this Section to the contrary, no amendment
may be made to this Agreement which would adversely affect in any material
respect the interests of any Enhancement Provider without the consent of such
Enhancement Provider.
Section 7.02 PROTECTION OF RIGHT, TITLE AND INTEREST TO RECEIVABLES. (a)
The Originator shall cause this Agreement, all amendments hereto and/or all
financing statements and continuation statements and any other necessary
documents covering the Purchaser's right, title and interest to the Receivables
and Collateral Security relating thereto to be promptly recorded, registered and
filed, and at all times to be kept recorded, registered and filed, all in such
manner and in such places as may be required by law fully to preserve and
protect the right, title and interest of the Purchaser hereunder. The Originator
shall deliver to the Purchaser or the Servicer, on the Purchaser's behalf,
file-stamped copies of, or filing receipts for, any document recorded,
registered or filed as provided above, as soon as available following such
recording, registration or filing. The Purchaser shall cooperate fully with the
Originator in connection with the obligations set forth above and shall execute
any and all documents reasonably required to fulfill the intent of this Section
7.02(a).
(b) Within 30 days after the Originator makes any change in its name,
identity or corporate structure which would make any financing statement or
continuation statement filed in accordance with Section 7.02(a) seriously
misleading within the meaning of Section 9-506 of the UCC, the Originator shall
give the Purchaser notice of any such change and shall file such financing
statements or amendments as may be necessary to continue the perfection of the
Purchaser's security interest in the Receivables and the proceeds thereof.
(c) The Originator shall give the Purchaser prompt written notice of any
relocation of any office at which it keeps records concerning the Receivables or
of its principal executive office or any change in its form of, or jurisdiction
of, organization and whether, as a result of such relocation or change, the
applicable provisions of the UCC would require the filing of any
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amendment of any previously filed financing or continuation statement or of any
new financing statement and shall file such financing statements or amendments
as may be necessary to perfect or to continue the perfection of the Purchaser's
security interest in the Receivables and the proceeds thereof. The Originator
shall at all times maintain its principal executive office within, and be
organized under the laws of one of the states of, the United States of America.
(d) The Originator shall deliver to the Purchaser: (i) upon the execution
and delivery of each amendment of this Agreement, an Opinion of Counsel to the
effect specified in Exhibit B; (ii) on each Addition Date on which any
Additional Accounts are to be included as the Accounts pursuant to Section 2.04
hereof, an Opinion of Counsel substantially in the form of Exhibit C; and (iii)
on or before April 30 of each year, beginning with April 30, [ ], an opinion of
Counsel dated as of a date during such 120-day period, substantially in the form
of Exhibit C.
Section 7.03 LIMITED RECOURSE. Notwithstanding anything to the contrary
contained herein, the obligations of the Purchaser hereunder shall not be
recourse to the Purchaser (or any person or organization acting on behalf of the
Purchaser or any affiliate, officer or director of the Purchaser), other than to
(a) the portion of the Originator's Interest on any date of determination which
is in excess of the Required Pool Balance and (b) any other assets of the
Purchaser not pledged to third parties or otherwise encumbered in a manner
permitted by the Originator's Certificate of Incorporation; provided, however,
that any payment by the Originator made in accordance with this Section 7.03
shall be made only after payment in full of any amounts that the Originator is
obligated to deposit in the Collection Account pursuant to this Agreement.
Section 7.04 NO PETITION. The Originator hereby covenants and agrees that
it will not at any time institute against the Purchaser any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar law.
Section 7.05 GOVERNING LAW. THIS AGREEMENT 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
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7.06 NOTICES. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at, mailed by registered mail, return receipt requested, sent by a
nationally recognized overnight courier service, or sent by facsimile
transmissions to the parties at such addresses specified in the Transfer and
Servicing Agreement.
Section 7.07 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement and of the Notes or
rights of the Noteholders.
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Section 7.08 ASSIGNMENT. Notwithstanding anything to the contrary contained
herein, this Agreement may not be assigned by the Originator without the prior
consent of the Purchaser and the Indenture Trustee. The Purchaser may assign its
rights, remedies, powers and privileges under this Agreement to the Issuer
pursuant to the Transfer and Servicing Agreement.
Section 7.09 FURTHER ASSURANCES. The Originator agrees to do and perform,
from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by the Purchaser more fully to
effect the purposes of this Agreement, including the execution of any financing
statements or continuation statements relating to the Receivables for filing
under the provisions of the UCC of any applicable jurisdiction.
Section 7.10 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of the Purchaser, any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege under this
Agreement preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
Section 7.11 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 one and the
same instrument.
Section 7.12 THIRD-PARTY BENEFICIARIES. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, the Noteholders and the other
Beneficiaries and their respective successors and permitted assigns. Except as
otherwise provided in this Agreement, no other Person shall have any right or
obligation hereunder.
Section 7.13 MERGER AND INTEGRATION. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
Section 7.14 HEADINGS. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
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IN WITNESS WHEREOF, the Originator and the Purchaser have caused this
Receivables Purchase Agreement to be duly executed by their respective officers
as of the day and year first above written.
CNH WHOLESALE RECEIVABLES INC.,
Purchaser
By:
-----------------------------------------
Name:
Title:
CASE CREDIT CORPORATION, Originator
By:
-----------------------------------------
Name:
Title:
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