Exhibit 4.7
MBR&M Draft 9/25/03
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CNH WHOLESALE RECEIVABLES INC.,
Purchaser
and
NEW HOLLAND CREDIT COMPANY, LLC,
Originator
NH RECEIVABLES PURCHASE AGREEMENT,
Dated as of September 1, 2003
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NH 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 NH RECEIVABLES.......................................................... 2
Section 2.01 Conveyance of NH 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 NH Receivables............................................................... 6
Section 2.04 Addition of Accounts............................................................. 7
Section 2.05 Covenants of the Originator...................................................... 9
Section 2.06 Sale of Ineligible Receivables.................................................. 10
ARTICLE III ADMINISTRATION AND SERVICING OF NH RECEIVABLES....................................... 10
Section 3.01 Acceptance of Appointment and Other Matters Relating to the Servicer............ 10
Section 3.02 Servicing Compensation.......................................................... 10
ARTICLE IV ALLOCATION AND APPLICATION OF COLLECTIONS............................................ 10
Section 4.01 Allocations and Applications of Collections and Other Funds..................... 10
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.......................................................................... 11
ARTICLE VII MISCELLANEOUS PROVISIONS............................................................. 12
Section 7.01 Amendment....................................................................... 12
Section 7.02 Protection of Right, Title and Interest to NH Receivables....................... 13
Section 7.03 Limited Recourse................................................................ 14
Section 7.04 No Petition..................................................................... 14
Section 7.05 GOVERNING LAW................................................................... 14
Section 7.06 Notices......................................................................... 14
Section 7.07 Severability of Provisions...................................................... 00
-x- XX
RECEIVABLES 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.......................................................... 15
Section 7.14 Headings........................................................................ 15
-ii- NH
RECEIVABLES PURCHASE AGREEMENT
NH
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 NEW HOLLAND CREDIT COMPANY, LLC, a
limited liability company 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, Case Credit Corporation ("Case
Credit"), 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 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
Xxxxx'x or S&P as a Class of Notes; PLUS
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RECEIVABLES PURCHASE AGREEMENT
(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 NH RECEIVABLES
Section 2.01 CONVEYANCE OF NH RECEIVABLES. (a) Originator hereby sells,
transfers, assigns, sets over and otherwise conveys to Purchaser without
recourse (except as expressly provided herein), and Purchaser purchases 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 "NH Receivables") and Collateral Security with respect
thereto (collectively the "NH 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 NH
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 NH Receivables to
Purchaser and the first priority nature of Purchaser's interest in the NH
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 NH Receivables
created in connection with the Accounts (other than Removed Accounts) have been
sold 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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RECEIVABLES PURCHASE AGREEMENT
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 xxxx 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 NH 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 NH
Transferred Assets by Originator to Purchaser as provided in this Section 2.01
be, and be construed as, an absolute sales, including for accounting purposes,
without recourse except as explicitly provided herein, of the NH Transferred
Assets by Originator to Purchaser. Furthermore, it is not intended that such
conveyance be deemed a pledge of the NH 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 NH Transferred Assets.
(b) The "Purchase Price" for the NH Receivables (including NH 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 NH 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 NH Receivables
transferred on any day, an amount equal to the portion of the Purchase Price for
such NH 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.
NH
RECEIVABLES PURCHASE AGREEMENT
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 limited liability
company 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
NH
RECEIVABLES PURCHASE AGREEMENT
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 NH 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 NH
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 NH 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 NH 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 NH Receivables pursuant to Section 2.03 of the Transfer
and Servicing Agreement, the Originator shall repurchase the NH Receivables and
the Collateral Security and shall pay to the Purchaser on the Business Day
preceding the Distribution Date on which such purchase of NH Receivables is to
be made an amount equal to the Purchase Price for the NH Receivables as
specified in the Transfer and Servicing Agreement. The obligation of the
Originator to purchase the NH 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).
NH RECEIVABLES PURCHASE AGREEMENT
Section 2.03 REPRESENTATIONS AND WARRANTIES OF THE ORIGINATOR RELATING TO
THE NH RECEIVABLES.
(a) REPRESENTATIONS AND WARRANTIES. The Originator hereby represents and
warrants to the Purchaser that:
(i) Each NH 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 NH 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 NH 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 NH Receivable conveyed to the Purchaser on such date is
an Eligible Receivable or, if such NH Receivable is not an Eligible
Receivable, such NH 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 NH 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 NH Receivable or Account and the Purchaser is, in connection therewith,
required to purchase such NH Receivable or all NH 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 NH Receivable or NH Receivables of which the
Purchaser is required to accept reassignment
NH RECEIVABLES PURCHASE AGREEMENT
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 NH 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 NH 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 NH 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 NH Receivables pursuant to this Section. The
obligation of the Originator to repurchase any such NH 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 NH Receivables) in order to maintain and
perfect, as a first priority interest, the Secured Party's security interest in
the NH Receivables. The Debtor hereby authorizes Servicer to file financing
statements under the UCC without the Debtor's signature where allowed by
applicable law.
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, NH 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 NH
Receivables and all Collateral Security related thereto in any Additional
Accounts designated by the
NH RECEIVABLES PURCHASE AGREEMENT
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 NH 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 NH 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 NH 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.
NH RECEIVABLES PURCHASE AGREEMENT
(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 NH 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 NH 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 subservicing obligations with respect to the
Accounts and NH 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 NH 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 NH 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 NH
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.
NH RECEIVABLES PURCHASE AGREEMENT
(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 NH 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 NH Receivables arising in any
Eligible Accounts that are Ineligible Receivables, provided that on the Cut-Off
Date or, in the case of NH 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 NH Receivables arise is
an Eligible Account.
ARTICLE III
ADMINISTRATION AND SERVICING OF NH RECEIVABLES
Section 3.01 ACCEPTANCE OF APPOINTMENT AND OTHER MATTERS RELATING TO THE
SERVICER. (a) Case Credit agrees to act as the Servicer under this Agreement and
the Transfer and Servicing Agreement, and each of the Purchaser and the
Originator consents to Case Credit acting as Servicer. The Servicer shall have
ultimate responsibility for servicing and making collections on the NH
Receivables and shall have the authority to make any servicing related decisions
relating to such NH 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 NH 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 NH Receivables and
all funds on deposit in the Collection Account as described in Article IV of the
Indenture.
NH RECEIVABLES PURCHASE AGREEMENT
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 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
NH 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,
NH RECEIVABLES PURCHASE AGREEMENT
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 NH Receivables and shall hold all Collections of Principal
Receivables that would have been available to purchase NH 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 NH 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 NH 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 NH Receivables, and the
Purchaser may continue purchasing NH 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 NH 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 NH Receivables. During such period, NH 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 NH Receivables to the Purchaser and
the Purchaser shall immediately cease buying NH 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 NH 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 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
NH RECEIVABLES PURCHASE AGREEMENT
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 NH 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 NH
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
NH RECEIVABLES PURCHASE AGREEMENT
financing statements or amendments as may be necessary to continue the
perfection of the Purchaser's security interest in the NH 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 NH 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 NH 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.
NH RECEIVABLES PURCHASE 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 NH 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.
NH RECEIVABLES PURCHASE AGREEMENT
IN WITNESS WHEREOF, the Originator and the Purchaser have caused this NH
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/ Xxxxx X'Xxxxx
-----------------------------------------
Name: Xxxxx X'Xxxxx
Title: Assistant Treasurer
NEW HOLLAND CREDIT COMPANY, LLC,
Originator
By: /s/ Xxxxx X'Xxxxx
-----------------------------------------
Name: Xxxxx X'Xxxxx
Title: Assistant Treasurer
Acknowledged and Agreed:
CASE CREDIT CORPORATION
By: /s/ Xxxxx X'Xxxxx
------------------------------
Name: Xxxxx X'Xxxxx
Title: Assistant Treasurer
NH RECEIVABLES PURCHASE AGREEMENT
