Exhibit 4.6
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CNH WHOLESALE RECEIVABLES INC.,
Purchaser
and
CASE CREDIT CORPORATION,
Originator
CASE RECEIVABLES PURCHASE AGREEMENT,
Dated as of September 1, 2003
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CASE RECEIVABLES PURCHASE AGREEMENT
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS........................................................................... 1
Section 1.01 Certain Defined Terms............................................................ 1
Section 1.02 Other Definitional Provisions.................................................... 2
ARTICLE II CONVEYANCE OF CASE RECEIVABLES........................................................ 2
Section 2.01 Conveyance of Case 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 Case Receivables............................................................. 6
Section 2.04 Addition of Accounts............................................................. 8
Section 2.05 Covenants of the Originator...................................................... 9
Section 2.06 Sale of Ineligible Receivables.................................................. 10
ARTICLE III ADMINISTRATION AND SERVICING OF CASE RECEIVABLES..................................... 10
Section 3.01 Acceptance of Appointment and Other Matters Relating to the Servicer............ 10
Section 3.02 Servicing Compensation.......................................................... 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............................................................... 11
Section 5.02 Originator Indemnification of the Purchaser..................................... 11
ARTICLE VI TERMINATION.......................................................................... 12
ARTICLE VII MISCELLANEOUS PROVISIONS............................................................. 12
Section 7.01 Amendment....................................................................... 12
Section 7.02 Protection of Right, Title and Interest to Case Receivables..................... 13
Section 7.03 Limited Recourse................................................................ 14
Section 7.04 No Petition..................................................................... 14
Section 7.05 GOVERNING LAW................................................................... 15
Section 7.06 Notices......................................................................... 15
Section 7.07 Severability of Provisions...................................................... ▇▇
-▇- ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ PURCHASE AGREEMENT
TABLE OF CONTENTS
(continued)
PAGE
Section 7.08 Assignment...................................................................... 15
Section 7.09 Further Assurances.............................................................. 15
Section 7.10 No Waiver; Cumulative Remedies.................................................. 15
Section 7.11 Counterparts.................................................................... 15
Section 7.12 Third-Party Beneficiaries....................................................... 15
Section 7.13 Merger and Integration.......................................................... 16
Section 7.14 Headings........................................................................ 16
-ii- CASE
RECEIVABLES PURCHASE AGREEMENT
CASE
RECEIVABLES PURCHASE AGREEMENT, dated as of September 1, 2003, 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 September 1, 2003 (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:
"CASE RECEIVABLES" is defined in Section 2.01.
"CASE TRANSFERRED ASSETS" is defined is Section 2.01.
"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:
CASE
RECEIVABLES PURCHASE AGREEMENT
(a) the product of (i) the Pool Balance, multiplied by (ii) the higher of
(A) 8.00% 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
▇▇▇▇▇'▇ or S&P as a Class of Notes; PLUS
(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 CASE RECEIVABLES
Section 2.01 CONVEYANCE OF CASE 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 (collectively, the "Case
Receivables") and Collateral Security with respect thereto (collectively, the
"Case Transferred Assets"); 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
Case 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 Case Receivables
to Purchaser and the first priority nature of Purchaser's interest in the Case
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 Case 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
2 CASE
RECEIVABLES PURCHASE AGREEMENT
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 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 ▇▇▇▇ 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 Case Receivables and other
Case Transferred 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 Case
Transferred Assets 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 Case Transferred Assets by Originator to Purchaser. Furthermore, it is
not intended that such conveyance be deemed a pledge of the Case Transferred
Assets 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 Case Transferred Assets.
(b) The "Purchase Price" for the Case Receivables (including Case
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 Case 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 Case Receivables transferred on any day, an amount equal to the portion
of the Purchase Price for such Case Receivables for which Purchaser shall not
have funds shall be deemed to be a borrowing by Purchaser from Originator under
the Subordinated
3 CASE
RECEIVABLES PURCHASE AGREEMENT
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 Case Receivables on
any Business Day and the Purchase Price of such Case Receivables shall be deemed
to be a capital contribution from Originator to Purchaser.
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
4 CASE
RECEIVABLES PURCHASE AGREEMENT
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 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 Initial 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 Case 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 Case
Receivables and the other Case Transferred Assets 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 Case
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 Case 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 Case Receivables pursuant to Section 2.03 of the
Transfer and Servicing Agreement, the Originator shall repurchase the Case
Receivables and the Collateral Security and shall pay to the Purchaser
5 CASE
RECEIVABLES PURCHASE AGREEMENT
on the Business Day preceding the Distribution Date on which such purchase of
Case Receivables is to be made an amount equal to the Purchase Price for the
Case Receivables as specified in the Transfer and Servicing Agreement. The
obligation of the Originator to purchase the Case 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).
Section 2.03 REPRESENTATIONS AND WARRANTIES OF THE ORIGINATOR RELATING TO
THE CASE RECEIVABLES.
(a) REPRESENTATIONS AND WARRANTIES. The Originator hereby represents and
warrants to the Purchaser that:
(i) Each Case Receivable and all Collateral Security existing on
the Initial 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 Case Receivable and all Collateral
Security existing on the Initial 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 Case 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 Initial 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 Case Receivable conveyed to the Purchaser on such date
is an Eligible Receivable or, if such Case Receivable is not an Eligible
Receivable, such Case Receivable is conveyed to the Purchaser in accordance
with Section 2.07.
(v) With respect to each Case Receivable and all Collateral
Security existing on the Initial Closing Date, no selection procedures
believed by the Originator to be adverse to the interests of the
Noteholders were utilized in selecting the Initial Accounts.
(b) NOTICE OF BREACH. The representations and warranties set forth in this
Section 2.03 shall survive the transfer and assignment of the Case Receivables
to the Purchaser. Upon discovery by the Originator or the Purchaser of a breach
of any of the representations and
6 CASE RECEIVABLES PURCHASE AGREEMENT
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 Case Receivable or Account and the Purchaser is, in connection therewith,
required to purchase such Case Receivable or all Case 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 Case Receivable or
Case Receivables of which the Purchaser is required to accept reassignment
pursuant to the 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 Case 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 Case 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 Case 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 Case Receivables pursuant to this Section. The
obligation of the Originator to repurchase any such Case 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).
(d) PERFECTION REPRESENTATIONS AND WARRANTIES. Debtor hereby makes the
Perfection Representations and Warranties to the Secured Party. For purposes of
this Section 2.03(d) Debtor shall mean Originator, Secured Party shall mean
Purchaser, and Specified Agreement shall mean this Agreement. The rights and
remedies with respect to any breach of the Perfection Representations and
Warranties made under this Section 2.03(d) shall be continuing and shall survive
any termination of the Specified Agreement. Secured Party shall not waive a
breach of any Perfection Representation and Warranty. In order to evidence the
interests of Debtor and Secured Party under the Specified Agreement, the Debtor
and Servicer shall, from time to time take such action, and execute and deliver
such instruments (including, without limitation, such actions or filings as are
requested by the Secured Party and financing statements under the UCC as enacted
and then in effect in any other jurisdiction in which the Debtor is organized,
has its principal place of business or maintains any books, records, files or
other information concerning the Case Receivables) in order to maintain and
perfect, as a first priority interest, the Secured Party's security interest in
the Case Receivables. The Debtor hereby authorizes Servicer to file financing
statements under the UCC without the Debtor's signature where allowed by
applicable law.
7 CASE RECEIVABLES PURCHASE AGREEMENT
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, Case 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 Case
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.
(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 Case 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.
8 CASE RECEIVABLES PURCHASE AGREEMENT
(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 Case 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 Case 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 Case 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 Case 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 Case 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
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 Case 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.
9 CASE RECEIVABLES PURCHASE AGREEMENT
(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 Case 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
Case 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 Case 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.
(h) REMOVAL OF ELIGIBLE ACCOUNTS. (i) 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 and the Originator may, but shall not be
required to, by mutual agreement, remove Accounts from the operation of this
Agreement (each a "Removed Account"), Originator agrees to provide to Purchaser
such information, certificates, financing statement, opinions and other
materials as are reasonably necessary to enable Purchaser to satisfy its
obligations under Section 2.07 of the Transfer and Servicing Agreement with
respect to the removal of Accounts.
Section 2.06 SALE OF INELIGIBLE RECEIVABLES. The Originator shall sell to
Purchaser on each Transfer Date any and all Case Receivables arising in any
Eligible Accounts that are Ineligible Receivables, provided that on the Cut-Off
Date or, in the case of Case 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 Case Receivables arise
is an Eligible Account.
ARTICLE III
ADMINISTRATION AND SERVICING OF CASE 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 Case Receivables and shall have the
authority to make any servicing related decisions relating to such Case
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 Case Receivables in
accordance with the provisions of the Transfer and Servicing Agreement.
10 CASE RECEIVABLES PURCHASE 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 Case 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
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
11 CASE RECEIVABLES PURCHASE AGREEMENT
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
Case 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 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 Case
Receivables and shall hold all Collections of Principal Receivables that would
have been available to purchase Case 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 Case
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
Case 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 Case Receivables, and the Purchaser
may continue purchasing Case 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 Case 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 Case Receivables. During such period, Case
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 Case Receivables to the Purchaser
and the Purchaser shall immediately cease buying Case 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 Case 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
12 CASE RECEIVABLES PURCHASE AGREEMENT
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 prior written notice to each Rating Agency and 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 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, (i) 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 and (ii) no amendment may be made to this Agreement
for the purpose of adding one or more Originators or one or more Purchasers
hereunder unless the Rating Agency Condition shall have been satisfied with
respect thereto.
Section 7.02 PROTECTION OF RIGHT, TITLE AND INTEREST TO CASE 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 Case
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,
13 CASE RECEIVABLES PURCHASE AGREEMENT
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 Case 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 Case
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
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 Case 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, 2005, 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.
14 CASE RECEIVABLES PURCHASE AGREEMENT
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.
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 Case 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.
15 CASE RECEIVABLES PURCHASE AGREEMENT
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.
16 CASE RECEIVABLES PURCHASE AGREEMENT
IN WITNESS WHEREOF, the Originator and the Purchaser have caused this Case
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: /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Assistant Treasurer
CASE CREDIT CORPORATION, Originator
By: /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Assistant Treasurer
17 CASE RECEIVABLES PURCHASE AGREEMENT
