Common use of Advances; Creation, Purchase and Ownership of Receivables Clause in Contracts

Advances; Creation, Purchase and Ownership of Receivables. (a) Except as otherwise provided in Article 6, within 3 Business Days of receipt of an invoice from CNHi representing the sale of CNHi Parts or Wholegoods or other goods or services to a Dealer (in each case, an “Invoice”) that (i) have been delivered or provided to a Dealer or (ii) are in transit to a Dealer, CNHi Capital shall pay the amount of said invoice to CNHi in immediately available funds the amounts due or owing by the Dealer under the Invoice (collectively, the “CNHi Receivable”). CNHi Capital may net against such advances any amounts due it pursuant to this Agreement, including, without limitation, all CNHi Sales Incentives and any CNHi Subsidy; provided, however, that as between CNHi and the applicable Dealer, any amounts so deducted by CNHi Capital shall be deemed to have been received by CNHi and the Dealer’s obligations in respect of the related invoice shall be reduced in a like amount. (b) As provided in the related Wholesale Finance Plans, CNHi and CNHi Capital intend that each payment made by CNHi Capital to CNHi for in respect of a CNHi Receivable shall constitute: (i) in the case of a CNHi Receivable and Invoice arising from the sale of CNHi Parts and Wholegoods made by CNHi to a Dealer located in the provinces or territories of Canada other than the Province of Quebec (a “Non-Quebec Dealer”), an advance by CNHi Capital to the applicable Non-Quebec Dealer (an “Advance”) in an amount equal to the aggregate outstanding balance of the CNHi Receivable, the proceeds of which Advance are paid by CNHi Capital to CNHi on behalf of that Non-Quebec Dealer to pay the purchase price of the related CNHi Parts and Wholegoods; and (ii) in the case of a CNHi Receivable and Invoice arising from the sale of CNHi Parts and Wholegoods made by CNHi to a Dealer located in the Province of Quebec (a “Quebec Dealer”), payment of the purchase price of the CNHi Receivable and the related Invoice, which purchase price shall be equal to the aggregate outstanding balance of the CNHi Receivable (a “Purchase Price”). (c) Upon making an Advance and paying the proceeds of the Advance to CNHi (net of any amounts that CNHi Capital is entitled to deduct pursuant to Section 2.5(a)): (i) a receivable (a “CNHi Capital Receivable”) in the amount of the Advance becomes owing by the applicable Non-Quebec Dealer to CNHi Capital, (ii) such CNHi Capital Receivable (including all terms and conditions of or applicable to the CNHi Capital Receivable and the Invoice pursuant to the Wholesale Finance Plan and all other amounts due and owing thereunder and all rights to payment thereof or thereunder (including interest thereon in accordance with the Wholesale Finance Plan) is governed by the Wholesale Finance Plan, (iii) the CNHi Capital Receivable is owned by CNHi Capital, not by CNHi, (iv) the CNHi Capital Receivable shall be secured by a purchase money security interest in the CNHi Parts and Wholegoods financed under the CNHi Capital Receivable, and (v) the CNHi Receivable owing by the Non-Quebec Dealer to CNHi is extinguished. (d) Upon payment by CNHi Capital to CNHi of the Purchase Price of a CNHi Receivable owing by a Quebec Dealer to CNHi (net of any amounts that CNHi Capital is entitled to deduct pursuant to Section 2.5(a)): (i) all right, title and interest of CNHi in and to the CNHi Receivable and the related Collateral Security (including all terms and conditions of or applicable to the CNHi Receivable and the Invoice pursuant to the Wholesale Finance Plan and all other amounts due and owing thereunder and all rights to payment thereof or thereunder (including interest thereon in accordance with the Wholesale Finance Plan) and any and all proceeds thereof shall thereupon be sold, assigned, transferred and otherwise conveyed by CNHi to CNHi Capital without the need for any instrument or assignment, and such CNHi Receivable shall thereupon become a CNHi Capital Receivable, (ii) such CNHi Capital Receivable (including all terms and conditions of or applicable to the CNHi Capital Receivable and the Invoice pursuant to the Wholesale Finance Plan and all other amounts due and owing thereunder and all rights to payment thereof or thereunder (including interest thereon in accordance with the Wholesale Finance Plan) is governed by the Wholesale Finance Plan, (iii) the CNHi Capital Receivable is owned by CNHi Capital, not by CNHi, and (iv) the CNHi Capital Receivable shall be secured by a Security Interest in the CNHi Parts and Wholegoods financed under the CNHi Capital Receivable. (e) In connection with the foregoing: (i) on the date hereof, CNHi shall execute and deliver to CNHi Capital an assignment in the form annexed as Exhibit A hereto (the “CNHi Assignment”) for the purposes of assigning and transferring to CNHi Capital: (A) the universality of all present and future CNHi Receivables owing by Quebec Dealers under the Accounts that are or have been purchased or are to be purchased under Sections 2.5(a), (b)(ii) and (d) above; (B) as a further assurance and to the extent that, notwithstanding the parties’ intent as stated above, CNHi is deemed to own any CNHi Capital Receivable (or any related Advance) created under Section 2.5(a), (b)(i) and (c) or any interest therein (and to the extent CNHi owns any similar receivables as to which it has received an advance from CNHi Capital), the universality of all present and future CNHi Capital Receivables owing by Dealers under the Accounts; (C) all present and future Collateral Security with respect to the foregoing; and (D) any and all proceeds of any of the foregoing. (ii) CNHi Capital is authorized to file appropriate PPSA financing statements or similar documents to perfect the foregoing sales and/or assignments and to take all actions necessary from time to time to continue the perfection of such sales and/or assignments. (f) CNHi acknowledges that CNHi Capital intends to securitize all or substantially all of the Receivables referred to in this Section 2.5, and to the extent provided below the terms of this Agreement are subject to any contrary terms of the agreements governing any such securitization from time to time (including the Sale and Servicing Agreement (as defined in the Assignment)(collectively, the “Securitization Agreements”). Receivables that are subject to the terms of the Securitization Agreements at any point in time are referred to below as “Securitized Receivables.” (g) It is the intention of the parties hereto that all conveyances of Receivables, Collateral Security and proceeds by CNHi to CNHi Capital contemplated hereunder and provided by the CNHi Assignment be, and be construed as, absolute sales without recourse (except as explicitly provided herein) of such Receivables and other property by CNHi to CNHi Capital and the beneficial interest in and to such Receivables and other property shall not be part of the CNHi’s estate in the event of any bankruptcy or insolvency proceeding by or against CNHi under any bankruptcy or insolvency law.

Advances; Creation, Purchase and Ownership of Receivables. (a) Except as otherwise provided in Article 6, within 3 three (3) Business Days of receipt of an invoice from CNHi CNH representing the sale of CNHi CNH Parts or Wholegoods or other goods or services to a Dealer (in each case, an “Invoice”) that (i) have been delivered or provided to a Dealer or (ii) are in In transit to a Dealer, CNHi CNH Capital shall pay the amount of said invoice to CNHi CNH in immediately available funds the amounts due or owing by the Dealer under the Invoice (collectively, the “CNHi CNH Receivable”). CNHi CNH Capital may net against such advances any amounts due it pursuant to this Agreement, including, without limitation, all CNHi CNH Sales Incentives and any CNHi CNH Subsidy; provided, however, that as between CNHi CNH and the applicable Dealer, any amounts so deducted by CNHi CNH Capital shall be deemed to have been received by CNHi CNH and the Dealer’s obligations in respect of the related invoice shall be reduced in a like amount. (b) As provided in the related Wholesale Finance Plans, CNHi CNH and CNHi CNH Capital intend that each payment made by CNHi CNH Capital to CNHi CNH for in respect of a CNHi CNH Receivable shall constitute: (i) in the case of a CNHi CNH Receivable and Invoice arising from the sale of CNHi CNH Parts and Wholegoods made by CNHi CNH to a Dealer located in the provinces or territories of Canada other than the Province of Quebec (a “Non-Quebec Dealer”), an advance by CNHi CNH Capital to the applicable Non-Quebec Dealer (an “Advance”) in an amount equal to the aggregate outstanding balance of the CNHi CNH Receivable, the proceeds of which Advance are paid by CNHi CNH Capital to CNHi CNH on behalf of that Non-Quebec Dealer to pay the purchase price of the related CNHi CNH Parts and Wholegoods; and (ii) in the case of a CNHi CNH Receivable and Invoice arising from the sale of CNHi CNH Parts and Wholegoods made by CNHi CNH to a Dealer located in the Province of Quebec (a “Quebec Dealer”), payment of the purchase price of the CNHi CNH Receivable and the related Invoice, which purchase price shall be equal to the aggregate outstanding balance of the CNHi CNH Receivable (a “Purchase Price”). (c) Upon making an Advance and paying the proceeds of the Advance to CNHi CNH (net of any amounts that CNHi CNH Capital is entitled to deduct pursuant to Section 2.5(a)): (i) a receivable (a “CNHi CNH Capital Receivable”) in the amount of the Advance becomes owing by the applicable Non-Quebec Dealer to CNHi CNH Capital, (ii) such CNHi CNH Capital Receivable (including all terms and conditions of or applicable to the CNHi CNH Capital Receivable and the Invoice pursuant to the Wholesale Finance Plan and all other amounts due and owing thereunder and all rights to payment thereof or thereunder (including interest thereon in accordance with the Wholesale Finance Plan) is governed by the Wholesale Finance Plan, (iii) the CNHi CNH Capital Receivable is owned by CNHi CNH Capital, not by CNHiCNH, (iv) the CNHi CNH Capital Receivable shall be secured by a purchase money security interest in the CNHi CNH Parts and Wholegoods financed under the CNHi CNH Capital Receivable, Receivable and (v) the CNHi CNH Receivable owing by the Non-Quebec Dealer to CNHi CNH is extinguished. (d) Upon payment by CNHi CNH Capital to CNHi CNH of the Purchase Price of a CNHi CNH Receivable owing by a Quebec Dealer to CNHi CNH (net of any amounts that CNHi CNH Capital is entitled to deduct pursuant to Section 2.5(a)): (i) all right, title and interest of CNHi CNH in and to the CNHi CNH Receivable and the related Collateral Security (including all terms and conditions of or applicable to the CNHi CNH Receivable and the Invoice pursuant to the Wholesale Finance Plan and all other amounts due and owing thereunder and all rights to payment thereof or thereunder (including interest thereon in accordance with the Wholesale Finance Plan) and any and all proceeds thereof shall thereupon be sold, assigned, transferred and otherwise conveyed by CNHi CNH to CNHi CNH Capital without the need for any instrument or assignment, and such CNHi CNH Receivable shall thereupon become a CNHi CNH Capital Receivable, (ii) such CNHi CNH Capital Receivable (including all terms and conditions of or applicable to the CNHi CNH Capital Receivable and the Invoice pursuant to the Wholesale Finance Plan and all other amounts due and owing thereunder and all rights to payment thereof or thereunder (including interest thereon in accordance with the Wholesale Finance Plan) is governed by the Wholesale Finance Plan, (iii) the CNHi CNH Capital Receivable is owned by CNHi CNH Capital, not by CNHiCNH, and (iv) the CNHi CNH Capital Receivable shall be secured by a Security Interest in the CNHi CNH Parts and Wholegoods financed under the CNHi CNH Capital Receivable. (e) In connection with the foregoing: (i) on the date hereof, CNHi CNH shall execute and deliver to CNHi CNH Capital an assignment in the form annexed as Exhibit A B hereto (the “CNHi CNH Assignment”) for the purposes of assigning and transferring to CNHi CNH Capital: (A) the universality of all present and future CNHi CNH Receivables owing by Quebec Dealers under the Accounts that are or have been purchased or are to be purchased under Sections 2.5(a), (b)(ii) and (d) above; (B) as a further assurance and to the extent that, notwithstanding the parties’ intent as stated above, CNHi CNH is deemed to own any CNHi CNH Capital Receivable (or any related Advance) created under Section 2.5(a), (b)(i) and (c) or any interest therein (and to the extent CNHi CNH owns any similar receivables as to which it has received an advance from CNHi CNH Capital), the universality of all present and future CNHi CNH Capital Receivables owing by Dealers under the Accounts; (C) all present and future Collateral Security with respect to the foregoing; and (D) any and all proceeds of any of the foregoing. (ii) CNHi CNH Capital is authorized to file appropriate PPSA financing statements or similar documents to perfect the foregoing sales and/or assignments and to take all actions necessary from time to time to continue the perfection of such sales and/or assignments. (f) CNHi CNH acknowledges that CNHi CNH Capital intends to securitize all or substantially all of the Receivables referred to in this Section 2.5, and to the extent provided below the terms of this Agreement are subject to any contrary terms of the agreements governing any such securitization from time to time (including the Sale and Servicing Agreement (as defined in the Assignment)(collectively, the “Securitization Agreements”). Receivables that are subject to the terms of the Securitization Agreements at any point in time are referred to below as “Securitized Receivables.” (g) It is the intention of the parties hereto that all conveyances of Receivables, Collateral Security and proceeds by CNHi CNH to CNHi CNH Capital contemplated hereunder and provided by the CNHi CNH Assignment be, and be construed as, absolute sales without recourse (except as explicitly provided herein) of such Receivables and other property by CNHi CNH to CNHi CNH Capital and the beneficial interest in and to such Receivables and other property shall not be part of the CNHiCNH’s estate in the event of any bankruptcy or insolvency proceeding by or against CNHi CNH under any bankruptcy or insolvency law.