Exhibit 99(a)
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CNH WHOLESALE RECEIVABLES INC.,
Transferor
CASE CREDIT CORPORATION,
Servicer
and
CNH WHOLESALE MASTER NOTE TRUST,
Issuer
TRANSFER AND SERVICING AGREEMENT
Dated as of [ ]
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TABLE OF CONTENTS
PAGE
ARTICLE I Definitions.........................................................................................1
SECTION 1.01 Definitions..................................................................................1
SECTION 1.02 Other Definitional Provisions...............................................................14
ARTICLE II Conveyance of Receivables..........................................................................14
SECTION 2.01 Conveyance of Receivables...................................................................14
SECTION 2.02 Acceptance by Issuer; Issuance of Notes.....................................................16
SECTION 2.03 Representations and Warranties of the Transferor Relating
to the Transferor and the Agreement.........................................................16
SECTION 2.04 Representations and Warranties of the Transferor Relating to the Receivables................19
SECTION 2.05 (a) Automatic Additional Accounts...........................................................21
SECTION 2.06 Covenants of the Transferor.................................................................23
SECTION 2.07 Removal of Eligible Accounts................................................................26
SECTION 2.08 Sale of Ineligible Receivables..............................................................29
ARTICLE III Administration and Servicing of Receivables........................................................30
SECTION 3.01 Acceptance of Appointment and Other Matters Relating to the Servicer........................30
SECTION 3.02 Servicing Compensation......................................................................31
SECTION 3.03 Representations, Warranties and Covenants of the Servicer...................................31
SECTION 3.04 Reports and Records for the Indenture Trustee; Bank Account Statements......................34
SECTION 3.05 Annual Servicer's Certificate...............................................................34
SECTION 3.06 Annual Independent Public Accountants' Servicing Report.....................................34
SECTION 3.07 Tax Treatment...............................................................................35
SECTION 3.08 Notices to Case Credit......................................................................35
SECTION 3.09 Adjustments.................................................................................35
ARTICLE IV Other Matters Relating to the Transferor...........................................................36
SECTION 4.01 Liability of the Transferor.................................................................36
SECTION 4.02 Limitation on Liability of the Transferor...................................................36
SECTION 4.03 Transferor Indemnification of the Issuer, the Indenture Trustee and the Owner Trustee.......36
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TABLE OF CONTENTS
(continued)
PAGE
SECTION 4.04 Merger or Consolidation of, or Assumption of the Obligations of the Transferor..............37
SECTION 4.05 Transferor Interest.........................................................................38
ARTICLE V Other Matters Relating to the Servicer.............................................................38
SECTION 5.01 Liability of the Servicer...................................................................38
SECTION 5.02 Merger or Consolidation of, or Assumption, of the Obligations of the Servicer...............38
SECTION 5.03 Limitation on Liability of the Servicer and Others..........................................39
SECTION 5.04 Servicer Indemnification of the Issuer, the Indenture Trustee and the Owner Trustee.........39
SECTION 5.05 The Servicer Not To Resign..................................................................40
SECTION 5.06 Access to Certain Documentation and Information Regarding the Receivables...................40
SECTION 5.07 Delegation of Duties........................................................................40
SECTION 5.08 Examination of Records......................................................................40
ARTICLE VI Servicer Defaults..................................................................................41
SECTION 6.01 Servicer Defaults...........................................................................41
SECTION 6.02 Indenture Trustee to Act; Appointment of Successor..........................................42
ARTICLE VII Termination........................................................................................44
SECTION 7.01 Termination of Agreement....................................................................44
ARTICLE VIII Miscellaneous Provisions...........................................................................44
SECTION 8.01 Amendment...................................................................................44
SECTION 8.02 Protection of Right, Title and Interest to Receivables and Collateral Security..............45
SECTION 8.03 Actions by Noteholders......................................................................46
SECTION 8.04 No Bankruptcy Petition......................................................................46
SECTION 8.05 Rights of Indenture Trustee.................................................................46
SECTION 8.06 Rights of Owner Trustee.....................................................................47
SECTION 8.07 Governing Law...............................................................................47
SECTION 8.08 Notices.....................................................................................47
SECTION 8.09 Severability of Provisions..................................................................47
SECTION 8.10 Assignment..................................................................................47
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TABLE OF CONTENTS
(continued)
PAGE
SECTION 8.11 Further Assurances..........................................................................47
SECTION 8.12 No Waiver; Cumulative Remedies..............................................................47
SECTION 8.13 Counterparts................................................................................48
SECTION 8.14 Third-Party Beneficiaries...................................................................48
SECTION 8.15 Rule 144A Information.......................................................................48
SECTION 8.16 Merger and Integration......................................................................48
SECTION 8.17 Headings....................................................................................48
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TRANSFER AND SERVICING AGREEMENT dated as of [ ], among
CNH WHOLESALE
RECEIVABLES INC., a Delaware corporation, as Transferor, CASE CREDIT
CORPORATION, a Delaware corporation, as Servicer and CNH WHOLESALE MASTER NOTE
TRUST, a statutory trust organized under the laws of the State of Delaware, as
Issuer.
In consideration of the mutual agreements herein contained, each party
agrees as follows for the benefit of the other parties and for the benefit of
the Noteholders, any Enhancement Provider and the Beneficiaries to the extent
provided herein, in the Indenture and in any Indenture Supplement:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS. Capitalized terms used herein but not otherwise
defined shall have the meaning set forth in the Indenture. In addition, the
following words shall have the following meanings:
"Account" shall mean each Initial Account and, from and after the related
Addition Date, each Additional Account and Automatic Additional Account. The
term "Account" shall not apply to any Removed Accounts reassigned or assigned to
the Transferor or the Servicer in accordance with the terms of this Agreement.
"Account Schedule" shall have the meaning specified in Section 2.01.
"Addition Date" shall mean (a) as to Additional Accounts, the date on which
the Receivables in such Additional Accounts are conveyed to the Issuer pursuant
to Section 2.05(b) or (c) of the
Transfer and Servicing Agreement, as applicable
and (b) as to Automatic Additional Accounts, the date on which such accounts are
created or otherwise become Automatic Additional Accounts.
"Addition Notice" shall have the meaning specified in Section 2.05(d).
"Additional Accounts" shall mean each individual wholesale financing
account established by an Originator with a Dealer pursuant to a Floorplan
Financing Agreement, which account is designated pursuant to Section 2.05(b) to
be included as an Account and is identified in the computer file or microfiche
or written list delivered to the Indenture Trustee by the Transferor pursuant to
Section 2.01 and 2.05(e).
"Additional Cut-Off Date" shall mean, with respect to Additional Accounts,
the day specified in the Addition Notice delivered with respect to such
Additional Accounts pursuant to Section 2.05(d) and with respect to Automatic
Additional Accounts, the related Addition Date.
"Adjusted Pool Balance" shall mean as of any Determination Date, (a) the
product of (i) the sum of the Pool Balance as of the end of the immediately
preceding Collection Period and (ii) the result of 1 minus the Reallocated Yield
Percentage on such date, plus (b) the amount then on deposit in the Excess
Funding Account (excluding amounts relating to investment earnings).
"Adjustment Payment" shall have the meaning specified in Section 3.09.
"Affiliate" shall mean, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent" shall mean, with respect to any Series, the Person so designated in
the related Indenture Supplement, if any.
"Agreement" shall mean this
Transfer and Servicing Agreement, as the same
may from time to time be amended, modified or otherwise supplemented, including,
with respect to any Series or Class, the related Indenture Supplement.
"Assignment" shall have the meaning specified in Section 2.05(e).
"Automatic Addition Suspension Date" shall have the meaning specified in
Section 2.05.
"Automatic Addition Termination Date" shall have the meaning specified in
Section 2.05.
"Automatic Additional Accounts" means each individual wholesale financing
account conveyed to the Issuer pursuant to Section 2.05(a).
"Available Subordinated Amount" shall mean, with respect to any Series at
any time of determination, an amount equal to the available subordinated amount
specified in the related Indenture Supplement at such time.
"Business Day" is defined in the Indenture.
"Case Credit" shall mean Case Credit Corporation, a Delaware corporation.
"Class" shall mean, with respect to any Series, any one of the classes of
Notes of that Series.
"Closing Date" shall mean, with respect to any Series, the Closing Date
specified in the related Indenture Supplement.
"Collateral Amount" shall mean, with respect to any Series and for any
date, an amount equal to the collateral amount specified in the related
Indenture Supplement.
"Collateral Security" shall mean, with respect to any Receivable, (a) a
security interest in the Equipment, (b) any other collateral provided by the
applicable Dealer or any other party and (c) any personal or corporate guarantee
supporting the Receivables, which may also support other obligations to other
parties and/or unrelated to the Receivables.
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"Collection Account" shall have the meaning specified in the Indenture.
"Collection Period" shall mean, with respect to any Payment Date, the
calendar month preceding the month in which such Payment Date occurs.
"Collections" shall mean, without duplication, all payments by or on behalf
of Dealers received by the Servicer in respect of the Receivables, in the form
of cash, checks, wire transfers or any other form of payment. Collections of
Non-Principal Receivables shall include all Recoveries.
"Cut-Off Date" shall mean [ ].
"CWRI" means
CNH Wholesale Receivables Inc., a Delaware corporation.
"Date of Processing" shall mean, with respect to any transaction, the date
on which such transaction is first recorded on the Servicer's computer file of
accounts (without regard to the effective date of such recordation).
"Dealer" shall mean a Person engaged generally in the business of
purchasing Equipment and holding such Equipment for sale, lease or rental in the
ordinary course of business.
"Dealer Overconcentration" on any Payment Date shall mean, with respect to
any Dealer or group of affiliated Dealers, the excess, if any, of (a) the
aggregate of all amounts of Principal Receivables due from such Dealer or group
of affiliated Dealers on the last day of the Collection Period immediately
preceding such Payment Date over (b) [ ]% of the Pool Balance on the last day of
such immediately preceding Collection Period.
"Dealer Termination Status " shall mean, with respect to an Account, that
the related Dealer been classified as a "terminated dealer" in accordance with
the Floorplan Financing Guidelines.
"Defaulted Amount" for any Collection Period shall mean an amount (which
shall not be less than zero) equal to (a) the sum for all the Accounts of the
amount of Principal Receivables which became Defaulted Receivables during the
immediately preceding Collection Period minus (b) the full amount of any such
Defaulted Receivables which are subject to reassignment or assignment to the
Transferor or the Servicer in accordance with the terms of this Agreement;
provided, however, that, if an Insolvency Event occurs with respect to the
Transferor, the amounts of such Defaulted Receivables which are subject to
reassignment to the Transferor shall not be added to the sum so subtracted and,
if an Insolvency Event occurs with respect to the Servicer, the amount of such
Defaulted Receivables which are subject to assignment to the Servicer shall not
be added to the sum so subtracted.
"Defaulted Receivables" on any Determination Date shall mean all
Receivables in an Account which are charged off as uncollectible in respect of
the immediately preceding Collection Period in accordance with the Servicer's
customary and usual servicing procedures for servicing Dealer floorplan
receivables comparable to the Receivables which have not been sold to third
parties.
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"Derivative Agreement" means any currency, interest rate or other swap,
cap, collar, guaranteed investment contract or other derivative agreement.
"Derivative Counterparty" means any party to any Derivative Agreement other
than the Issuer or the Indenture Trustee.
"Designated Account" shall have the meaning specified in Section 2.07(b).
"Designated Balance" shall have the meaning specified in Section 2.07(b).
"Designated Receivables" shall have the meaning specified in Section
2.07(c).
"Determination Date" with respect to any Payment Date shall mean the day
that is two Business Days prior to such Payment Date.
"Early Amortization Event" is defined in the Indenture.
"Eligible Account" shall mean each individual wholesale financing account
or line of credit established by an Originator, with a Dealer pursuant to a
Floorplan Financing Agreement in the ordinary course of business, which, as of
the date of determination with respect thereto: (a) is in favor of a Dealer
which is an Eligible Dealer, (b) is in existence and maintained and serviced by
the related Originator and (c) is an Account in respect of which no amounts have
been charged off as uncollectible.
"Eligible Deposit Account" shall mean either (a) a segregated account with
an Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution organized under the laws of the
United States of America or any one of the states thereof, including the
District of Columbia (or any domestic branch of a foreign bank), having
corporate trust powers and acting as trustee for funds deposited in such
account, so long as any of the securities of such depository institution shall
have a credit rating from each Rating Agency in one of its generic rating
categories which signifies investment grade.
"Eligible Dealer" shall mean a Dealer, as of the date of determination
thereof, (a) which is located in the United States of America (including its
territories and possessions), (b) which has not been identified by the Servicer
as being the subject of any voluntary or involuntary bankruptcy proceeding or in
voluntary or involuntary liquidation and (c) which is not in Dealer Termination
Status.
"Eligible Institution" shall mean (a) the corporate trust department of the
Trustee or (b) a depository institution organized under the laws of the United
States of America or any one of the states thereof, or the District of Columbia
(or any domestic branch of a foreign bank), which at all times (i) has either
(A) a long-term unsecured debt rating of A2 or better by ▇▇▇▇▇'▇ and of A or
better by S&P or (B) a certificate of deposit rating of P-1 by ▇▇▇▇▇'▇ or A-1 by
S&P and (ii) whose deposits are insured by the FDIC. If so qualified, the
Trustee may be considered an Eligible Institution for the purposes of clause (b)
this definition.
"Eligible Investments" mean book-entry securities, negotiable instruments
or securities represented by instruments in bearer or registered form that
evidence:
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(a) direct obligations of, and obligations fully guaranteed as to timely
payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit of any
depository institution or trust company incorporated under the laws of the
United States of America or any state (or any domestic branch of a foreign bank)
and subject to supervision and examination by Federal or state banking or
depository institution authorities; provided, however, that at the time of the
investment or contractual commitment to invest therein, the commercial paper or
other short-term senior unsecured debt obligations (other than such obligations
the rating of which is based on the credit of a Person other than such
depository institution or trust company) thereof shall have a credit rating from
each of the Rating Agencies in the highest investment category granted thereby;
(c) commercial paper having, at the time of the investment or contractual
commitment to invest therein, a rating from each of the Rating Agencies in the
highest investment category granted thereby;
(d) investments in money market funds having a rating from each of the
Rating Agencies in the highest investment category granted thereby (including
funds for which the Indenture Trustee or any of its Affiliates is investment
manager or advisor);
(e) bankers' acceptances issued by any depository institution or trust
company referred to in clause (b);
(f) repurchase obligations with respect to any security that is a direct
obligation of, or fully guaranteed as to timely payment by, the United States of
America or any agency or instrumentality thereof the obligations of which are
backed by the full faith and credit of the United States of America, in either
case entered into with a depository institution or trust company (acting as
principal) described in clause (b); and
(g) any other investment permitted by each of the Rating Agencies as set
forth in writing delivered to the Indenture Trustee; provided, that investments
described in clauses (d) and (g) shall be made only so long as making such
investments will not require the Issuer to register as an investment company
under the Investment Company Act of 1940, as amended; provided further, that
such investments shall have original or remaining maturities of 30 days or less,
but in no event occurring later than the Payment Date next succeeding the
Indenture Trustee's acquisition of Eligible Investments, except as otherwise
provided in the related Indenture Supplement.
"Eligible Receivable" shall mean each Receivable:
(a) which was originated by an Originator, in the ordinary course of
business;
(b) which arose under an Eligible Account and is payable in United States
dollars;
(c) which is owned by an Originator, at the time of sale by that entity to
the Transferor;
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(d) which represents the obligation of a Dealer to repay an advance made
to such Dealer to finance the acquisition of Equipment for (i) its floorplan or
inventory, (ii) its rental business or (iii) its rent-to-own program;
(e) which at the time of creation and at the time of transfer to the
Issuer is secured by, inter alia, a first priority perfected security interest
in the Equipment relating thereto;
(f) which was created in compliance in all respects with all Requirements
of Law applicable thereto and pursuant to a Floorplan Financing Agreement which
complies in all respects with all Requirements of Law applicable to any party
thereto;
(g) with respect to which all consents, licenses, approvals or
authorizations of, or registrations or declarations with, any Governmental
Authority required to be obtained, effected or given by the Originators or the
Transferor in connection with the creation of such Receivable or the transfer
thereof to the Issuer or the execution, delivery and performance by the
Originators or the Transferor of the Floorplan Financing Agreement pursuant to
which such Receivable was created, have been duly obtained, effected or given
and are in full force and effect;
(h) as to which at all times following the transfer of such Receivable to
the Issuer, the Issuer will have good and marketable title thereto free and
clear of all Liens arising prior to the transfer or arising at any time other
than Liens permitted by this Agreement or the related Receivables Purchase
Agreement;
(i) which has been the subject of a valid transfer and assignment from the
Transferor to the Issuer of all the Transferor's right, title and interest
therein (including any proceeds thereof);
(j) which will at all times be the legal, valid, binding and assignable
payment obligation of the Dealer relating thereto, enforceable against such
Dealer 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);
(k) which at the time of transfer to the Issuer is not subject to any
right of rescission, setoff, counterclaim or any other defense (including
defenses arising out of violations of usury laws) of the Dealer;
(l) as to which, at the time of transfer of such Receivable to the Issuer,
the Originators and the Transferor have satisfied all their respective
obligations with respect to such Receivable required to be satisfied at such
time;
(m) as to which, at the time of transfer of such Receivable to the Issuer,
neither the applicable Originator nor the Transferor has taken nor failed to
take any action which would impair the rights of the Issuer or the Noteholders
therein;
(n) which constitutes "chattel paper," "accounts," "general intangibles"
or "payment intangibles" as defined in Article 9 of the UCC as then in effect in
the State of
New York;
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(o) which, at the time of transfer to the Issuer, is not more than 90 days
past due;
(p) with respect to which the representations set forth in Sections
2.04(a)(i) and (ii) were correct as of the Transfer Date with respect thereto;
(q) the outstanding principal balance of which, when added to the Pool
Balance, does not cause the aggregate principal balance of all Receivables
relating to Equipment purchased by a Dealer for its rental business, to exceed
[ ]% of the Pool Balance;
(r) the outstanding principal balance of which, when added to the Pool
Balance, does not cause the aggregate principal balance of all Receivables
relating to (a) any of the three main dealers that have Accounts with the
highest outstanding principal balances to exceed [ ]% of the Pool Balance or (b)
any other single main Dealer to exceed [ ]% of the aggregate Pool Balance; and
(s) the outstanding principal balance of which, when added to the Pool
Balance, does not cause the aggregate principal balance of all Receivables
relating to used Equipment, to [ ]% of the Pool Balance.
"Eligible Servicer" shall mean the Indenture Trustee or an entity which, at
the time of its appointment as Servicer, (a) is legally qualified and has the
capacity to service the Accounts, (b) in the sole determination of the Indenture
Trustee, which determination shall be conclusive and binding, has demonstrated
the ability to professionally and competently service a portfolio of similar
accounts in accordance with high standards of skill and care and (c) is
qualified to use the software that is then currently being used to service the
Accounts or obtains the right to use or has its own software which is adequate
to perform its duties under this Agreement.
"Enhancement" shall mean the rights and benefits provided to the
Noteholders of any Series or Class pursuant to any letter of credit, surety
bond, cash collateral account, spread account, guaranteed rate agreement, swap,
including without limitation currency swaps, or other interest protection
agreement, repurchase obligation, cash deposit, reserve account, yield
supplement account or other similar arrangement. The subordination of any Series
or Class to any other Series or Class or of the Transferor's Interest to any
Series or Class shall be deemed to be an Enhancement.
"Enhancement Agreement" shall mean any agreement, instrument or document
governing the terms of any Enhancement for a Series or pursuant to which any
Enhancement for such Series is issued or outstanding, including any Derivative
Agreement.
"Enhancement Provider" shall mean the Person, including any Derivative
Counterparty, providing any Enhancement, other than any Noteholder, the Notes of
which are subordinated to any Series or Class.
"Excluded Series" shall mean any Series designated as such in the relevant
Indenture Supplement.
"Equipment" means new or used agricultural, construction and industrial
equipment and parts.
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"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor entity thereto.
"Floorplan Financing Agreement" shall mean, collectively, the group of
related agreements between and among an Originator, the Dealer with respect
thereto, pursuant to which (a) an Originator agrees to extend credit to such
Dealer to finance the acquisition of used Equipment and new Equipment, (b) such
Dealer grants to an Originator a security interest in the specific Equipment
financed by an Originator, certain other Equipment, certain other collateral and
the proceeds thereof and (c) such Dealer agrees to repay advances made by an
Originator pursuant to the terms of the related Floorplan Financing Agreement.
"Floorplan Financing Guidelines" shall mean the Originators' written
policies and procedures, as such policies and procedures may be amended from
time to time, (a) relating to the operation of their respective floorplan
financing business, including the written policies and procedures for
determining the interest rate charged to Dealers, the other terms and conditions
relating to the Originators' wholesale financing accounts, the creditworthiness
of Dealers and the extension of credit to Dealers, and (b) relating to the
maintenance of accounts and collection of receivables.
"GAAP" shall mean generally accepted accounting principles in the United
States of America in effect from time to time.
"Governmental Authority" shall mean the United States of America, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Holder" shall mean a Noteholder or a Person in whose name any one of the
Notes is registered.
"Indenture" shall mean the Indenture, dated as of [ ], 2003, by and between
the Issuer and the Indenture Trustee, as the same may from time to time be
amended, modified or otherwise supplemented.
"Indenture Supplement" shall mean, with respect to any Series, an Indenture
Supplement to the Indenture, executed and delivered in connection with the
original issuance of the Notes of such Series.
"Indenture Trustee" shall mean JPMorgan Chase Bank, or its successor in
interest, or any successor trustee appointed as herein provided.
"Ineligible Account" shall mean an Account that at the time of
determination is not an Eligible Account.
"Ineligible Amount" on any Determination Date shall mean the amount of
Ineligible Receivables included in the Issuer on such Determination Date
pursuant to Section 2.08.
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"Ineligible Receivable" shall mean any Receivable that arises in an
Eligible Account, was not an Eligible Receivable at the time of its transfer to
the Issuer and was transferred to the Issuer in accordance with Section 2.08.
"Initial Account" shall mean each individual wholesale financing account
established by an Originator with a Dealer pursuant to a Floorplan Financing
Agreement which is identified in the computer file or microfiche or written list
delivered to the Indenture Trustee on the first Closing Date by the Transferor
pursuant to Section 2.01.
"Initial Collateral Amount" shall mean, with respect to any Series and for
any date, an amount equal to the initial collateral amount specified in the
related Indenture Supplement. The Initial Collateral Amount for any Series may
be increased or decreased from time to time as specified in the related
Indenture Supplement.
"Insolvency Event" means, with respect to any Person, that such person
shall consent or fail to object to the appointment of a bankruptcy trustee or
conservator, receiver or liquidator in any bankruptcy proceeding or other
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings of or relating to such Person or relating to all or
substantially all of such Person's property, or the commencement of an action
seeking a decree or order of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a bankruptcy trustee or
conservator, receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up, insolvency, bankruptcy, reorganization, conservatorship,
receivership or liquidation of such entity's affairs, or notwithstanding an
objection by such Person any such action shall have remained undischarged or
unstayed for a period of sixty (60) days or upon entry of any order or decree
providing for such relief; or such Person shall admit in writing its inability
to pay its debts generally as they become due, file, or consent or fail to
object (or object without dismissal of any such filing within sixty (60) days of
such filing) to the filing of, a petition to take advantage of any applicable
bankruptcy, insolvency or reorganization, receivership or conservatorship
statute, make an assignment for the benefit of its creditors or voluntarily
suspend payment of its obligations.
"Insurance Proceeds" with respect to an Account shall mean any amounts
received by the Servicer pursuant to any policy of insurance which is required
to be paid to an Originator pursuant to a Floorplan Financing Agreement.
"Investor Dilution Amount" is defined in Section 3.09.
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, participation interest, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever, including any
conditional sale or other title retention agreement and any financing lease
having substantially the same economic effect as any of the foregoing other than
tax liens, mechanics liens and any liens that attach to the related Receivable
by operation of law as a result of any act or omission by the related Dealer.
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"Monthly Servicing Fee" shall mean, with respect to any Series, the amount
specified therefor in the related Indenture Supplement.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc., or its successor.
"NH Credit" shall mean New Holland Credit Company, LLC, a Delaware limited
liability company.
"Non-Principal Receivables" with respect to any Account shall mean all
amounts billed to the related Dealer in respect of interest and all other
non-principal charges, including insurance service fees and handling fees.
"Notice Date" shall have the meaning specified in Section 2.05(d).
"Officers' Certificate" with respect to any corporation shall mean, unless
otherwise specified in this Agreement, a certificate signed by the President or
any Vice President, a Treasurer, Assistant Treasurer, Secretary or Assistant
Secretary of such corporation.
"Opinion of Counsel" shall mean a written opinion of counsel, who may be
counsel of the Transferor or an Originator and who shall be reasonably
acceptable to the Indenture Trustee.
"Originator" means on the Closing Date, each of Case Credit and NH Credit.
"Overconcentration Amount" on any Determination Date shall mean the sum of
the Dealer Overconcentrations on such Determination Date.
"Owner Trustee" shall mean The Bank of
New York, or its successor in
interest, or any successor owner trustee appointed pursuant to the terms of the
Transaction Documents.
"Payment Date" is defined in the applicable Indenture Supplement.
"Payment Date Statement" shall mean, with respect to any Series, a report
prepared by the Servicer on each Determination Date for the immediately
preceding Collection Period in substantially the form set forth in the related
Indenture Supplement.
"Permitted Transaction" shall have the meaning specified in Section
2.06(f).
"Person" shall mean any legal person, including any individual,
corporation, partnership, association, joint-stock company, trust,
unincorporated organization, governmental entity or other entity of similar
nature.
"Pool Balance" shall mean, as of the time of determination thereof, the
aggregate of Principal Receivables in the Issuer at such time.
"Prime Rate" shall mean the rate designated as the "prime rate" from time
to time by certain financial institutions selected by an Originator.
"Principal Collections" shall mean Collections of principal under the
Receivables.
10
"Principal Receivables" with respect to an Account shall mean amounts shown
on the Servicer's records as Receivables (other than such amounts which
represent Non-Principal Receivables) payable by the related Dealer.
"Purchase Price" shall mean, with respect to any Receivable for any date on
which such Receivable is to be purchased pursuant to Section 3.03, (a) an amount
equal to the amount payable by the Dealer in respect thereof as reflected in the
records of the Servicer as of the date of purchase plus (b) interest accrued
from the end of the last Collection Period in respect of which interest on such
Receivable was billed by the Servicer, at a per annum rate equal to the Prime
Rate.
"Rating Agency" shall mean, with respect to any outstanding Series or
Class, each statistical rating agency selected by the Transferor to rate the
Notes of such Series or Class, as specified in the related Indenture Supplement.
"Rating Agency Condition" shall mean, with respect to any action, that each
Rating Agency shall have notified the Transferor, the Servicer and the Indenture
Trustee in writing that such action will not result in a reduction or withdrawal
of the rating of any outstanding Series or Class with respect to which it is a
Rating Agency.
"Reallocated Yield Amounts" means the Reallocated Yield Percentage
MULTIPLIED BY the Principal Collections during the Collection Period.
"Reallocated Yield Percentage" means the percentage established from time
to time by the Servicer. The initial Reallocation Percentage shall be 0%, and
shall in no event be greater than [ ]% unless the Rating Agency Condition shall
have been satisfied with respect to such greater percentage.
"Reassignment" shall have the meaning specified in Section 2.07(d).
"Receivables" shall mean, with respect to an Account, all amounts shown on
the Servicer's records as amounts payable by the related Dealer, from time to
time in respect of advances made by an Originator to such Dealer or advances
made by an Originator to such Dealer and purchased by an Originator, in each
case to finance the acquisition of Equipment by such Dealer, together with the
group of writings evidencing such amounts and the security interest created in
connection therewith. Receivables which become Defaulted Receivables shall not
be shown on the Servicer's records as amounts payable (and will cease to be
included as Receivables) on the day on which they become Defaulted Receivables.
Receivables which an Originator is unable to transfer to the Transferor pursuant
to the Receivables Purchase Agreement or which the Transferor is unable to
transfer to the Issuer as provided in Section 2.06(b) and Receivables which
arise in Designated Accounts from and after the related Removal Commencement
Date shall not be included in calculating the amount of Receivables.
"Receivables Purchase Agreements" shall mean each of the receivables
purchase agreements between an Originator and the Transferor, in substantially
the form attached hereto as Exhibit I, dated as of the date, hereof, governing
the terms and conditions upon which the Transferor is acquiring the initial
Receivables transferred to the Issuer on the Closing Date and
11
all Receivables acquired thereafter, as the same may from time to time be
amended, modified or otherwise supplemented.
"Recoveries" on any Determination Date shall mean all amounts received,
including Insurance Proceeds, by the Servicer during the Collection Period
immediately preceding such Determination Date with respect to Receivables which
have previously become Defaulted Receivables.
"Removal and Repurchase Date" shall have the meaning specified in Section
2.07(c).
"Removal and Repurchase Notice Date" shall have the meaning specified in
Section 2.07(c).
"Removal Commencement Date" shall have the meaning specified in Section
2.07(b).
"Removal Date" shall have the meaning specified in Section 2.07(b).
"Removal Notice" shall have the meaning specified in Section 2.07(b).
"Removed Account" shall have the meaning specified in Section 2.07(d).
"Rental Overconcentration Amount" on any Payment Date means the excess, if
any, of:
(a) the aggregate principal amount of Receivables relating to Equipment
purchased by a Dealer for its rental business on the last day of the Collection
Period immediately preceding that Payment Date; over
(b) ___% of the Pool Balance on the last day of the immediately preceding
Collection Period.
"Repurchased Receivables Purchase Price" shall have the meaning specified
in Section 2.07(c).
"Required Pool Balance" shall mean, at any time of determination, an amount
equal to (a) the sum of the amounts for each Series (other than any Series or
portion thereof which is designated in the relevant Indenture Supplement as
being an Excluded Series until the Collateral Amount of the Series relating to
such Excluded Series is reduced to $0) obtained by multiplying the Required Pool
Percentage for such Series by the Initial Collateral Amount for such Series plus
(b) the Required Subordinated Amount (as defined in the related Indenture
Supplement) for each Series on the immediately preceding Payment Date (after
giving effect to the allocations, distributions, withdrawals and deposits to be
made on such Payment Date).
"Required Pool Percentage" shall mean, with respect to any Series, the
percentage specified therefor in the related Indenture Supplement.
"Requirements of Law" for any Person shall mean the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or Governmental Authority, in each case applicable
12
to or binding upon such Person or to which such Person is subject, whether
federal, state or local (including usury laws and the federal Truth in Lending
Act).
"Restart Date" shall have the meaning specified in Section 2.05.
"Series" shall mean any series of Notes.
"Series Account" shall mean any deposit, trust, escrow, reserve or similar
account maintained for the benefit of the Noteholders of any Series or class, as
specified in any Indenture Supplement.
"Series Security Amount" with respect to each Series, is defined in the
applicable Indenture Supplement.
"Servicer Default" shall have the meaning specified in Section 6.01.
"Service Transfer" shall have the meaning specified in Section 6.01.
"Servicer" shall initially mean Case Credit, in its capacity as Servicer
under this Agreement, and after any Service Transfer, the Successor Servicer.
"Servicing Fee" shall have the meaning specified in Section 3.02.
"S&P" shall mean Standard & Poor's Ratings Services or its successor.
"Subordinated Note" shall mean each subordinated note of the Transferor the
form of which is attached hereto as Exhibit J.
"Successor Servicer" shall have the meaning specified in Section 6.02(a).
"Supplemental Certificate" shall have the meaning specified in Section
6.03.
"Tax Opinion" shall mean, with respect to any action, an external Opinion
of Counsel to the effect that, for federal income and Illinois state income and
tax purposes, (a) such action will not adversely affect the characterization of
the Notes of any outstanding Series or Class as debt of the Issuer, (b) such
action will not cause or constitute a taxable event with respect to any
Noteholders or the Issuer and (c) in the case of the issuance of any new Series,
the Notes of the new Series will be characterized as debt of the Issuer.
"Termination Date" shall mean, with respect to any Series, the termination
date specified in the related Indenture Supplement.
"Transaction Document" shall have the meaning specified in the Indenture.
"Transferor" shall mean
CNH Wholesale Receivables Inc. and its successors
in interest to the extent permitted hereunder
"Transferor Amount" is defined in the Indenture.
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"Transferor Deposit Amount" shall mean, with respect to any Receivable
reassigned or assigned to the Transferor or the Servicer, as applicable,
pursuant to Section 2.04 (c) or Section 3.03, the amounts specified in such
Sections.
"Trust Assets" shall have the meaning specified in Section 2.01.
"Trust Available Subordinated Amount" shall mean, at any time of
determination, the sum of the Available Subordinated Amounts, if any, for all
outstanding Series at such time.
"Trust Termination Date" shall have the meaning specified in the Trust
Agreement.
"UCC" shall mean the Uniform Commercial Code, as amended from time to time,
as in effect in any specified jurisdiction.
"Used Equipment Overconcentration Amount" on any Payment Date means the
excess, if any, of:
(a) the aggregate principal amount of Receivables relating to used
Equipment on the last day of the Collection Period immediately preceding that
Payment Date; over
(b) ___% of the Pool Balance on the last day of the immediately preceding
Collection Period.
SECTION 1.02 OTHER DEFINITIONAL PROVISIONS.
All terms defined directly or by reference in this Agreement shall have the
defined meanings when used in any certificate or other document delivered
pursuant hereto unless otherwise defined therein. For purposes of this Agreement
and all such certificates and other documents, unless the context otherwise
requires: (a) accounting terms not otherwise defined in this Agreement, and
accounting terms partly defined in this Agreement to the extent not defined,
shall have the respective meanings given to them under GAAP; (b) terms defined
in Article 9 of the UCC as in effect in the State of
New York and not otherwise
defined in this Agreement are used as defined in that Article; (c) any reference
to each Rating Agency shall only apply to any specific rating agency if such
rating agency is then rating any outstanding Series; (d) references to any
amount as on deposit or outstanding on any particular date means such amount at
the close of business on such day; (e) the words "hereof," "herein" and
"hereunder" and words of similar import refer to this Agreement (or the
certificate or other document in which they are used) as a whole and not to any
particular provision of this Agreement (or such certificate or document); (f)
references to any Section, Schedule or Exhibit are references to Sections,
Schedules and Exhibits in or to this Agreement (or the certificate or other
document in which the reference is made), and references to any paragraph,
Section, clause or other subdivision within any Section or definition refer to
such paragraph, subsection, clause or other subdivision of such Section or
definition; (g) the term "including" means "including without limitation"; (h)
references to any law or regulation refer to that law or regulation as amended
from time to time and include any successor law or regulation; (i) references to
any Person include that Person's successors and assigns; and (j) headings are
for purposes of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
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ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.01 CONVEYANCE OF RECEIVABLES. By execution of this Agreement,
the Transferor does hereby sell, transfer, assign, set over and otherwise
convey, without recourse (except as expressly provided herein), to the Issuer
for the benefit of the Noteholders on the first Closing Date, in the case of the
Initial Accounts, on the date of creation in the case of Automatic Additional
Accounts and on the applicable Addition Date, in the case of Additional
Accounts, (a) all of its right, title and interest in, to and under the
Receivables in each Account and all Collateral Security with respect thereto
owned by the Transferor at the close of business on the Cut-Off Date, in the
case of the Initial Accounts, and on the applicable Additional Cut-Off Date, in
the case of Additional Accounts and Automatic Additional Accounts, and all
monies due or to become due and all amounts received with respect thereto and
all proceeds (including "proceeds" as defined in Section 9-102 of the UCC as in
effect in the State of
New York and Recoveries) thereof and (b) all of the
Transferor's rights, remedies, powers, privileges and interest with respect to
such Receivables and Collateral Security under the applicable Receivables
Purchase Agreement. As of each Business Day prior to the earlier of (i) the
occurrence of an Early Amortization Event relating to an Insolvency Event and
(ii) the Trust Termination Date, on which Receivables are created in the
Accounts (a "Transfer Date"), the Transferor does hereby sell, transfer, assign,
set over and otherwise convey, without recourse (except as expressly provided
herein), to the Issuer for the benefit of the Noteholders, all of its right,
title and interest into and under the Receivables in each Account (other than
any Receivables created in any Designated Account from and after the applicable
Removal Commencement Date) and all Collateral Security with respect thereto
owned by the Transferor at the close of business on such Transfer Date and not
theretofore conveyed to the Issuer, and monies due or to become due and all
amounts received with respect thereto and all proceeds (including "proceeds" as
defined in Section 9-102 of the UCC as in effect in the State of
New York and
Recoveries) thereof, all created in connection with the Accounts (other than
Removed Accounts) have been sold, and the Collateral Security assigned, to the
Transferor in accordance with the applicable Receivables Purchase Agreement and
sold to the Issuer pursuant to this Agreement for the benefit of the
Noteholders. Such property, together with all monies on deposit in, and Eligible
Investments credited to, the Collection Account or any Series Account, any
Enhancements and the Collateral Security with respect to the Receivables shall
collectively constitute the assets of the Issuer (the "Trust Assets").
The foregoing sale, transfer, assignment, set-over and conveyance and any
subsequent sales, transfers, assignments, set-overs and conveyances do not
constitute, and are not intended to result in, the creation or an assumption by
the Issuer, the Owner Trustee, the Indenture Trustee or any Agent, of any
obligation of the Servicer, the Originators, the Transferor or any other Person
in connection with the Accounts, the Receivables or under any agreement or
instrument relating thereto, including any obligation to any Dealers.
In connection with such sales, the Transferor agrees to record and file, at
its own expense, a financing statement on form UCC-1 (and continuation
statements when applicable) with respect to the Receivables now existing and
hereafter created for the sale of chattel paper, accounts, general intangibles
and payment intangibles (as defined in Section 9-102 of the UCC)
15
meeting the requirements of applicable state law in such manner and in such
jurisdictions as are necessary to perfect the sale and assignment of the
Receivables and the Collateral Security to the Issuer, and to deliver a
file-stamped copy of such financing statements or other evidence of such filing
to the Indenture Trustee on or within 10 days of the first Closing Date, in the
case of the Initial Accounts, and (if any additional filing is so necessary)
within 10 days of the applicable Addition Date, in the case of Additional
Accounts and Automatic Additional Accounts. The Indenture Trustee shall be under
no obligation whatsoever to file such financing statement, or a continuation
statement to such financing statement, or to make any other filing under the UCC
in connection with such sales.
In connection with such sales, the Transferor further agrees, at its own
expense, on or within 10 days of (A) the first Closing Date, in the case of the
Initial Accounts, and (B) the applicable Addition Date, in the case of Automatic
Additional Accounts and Additional Accounts, and (C) the applicable Removal
Commencement Date, in the case of Removed Accounts, (a) to indicate in its
computer files and to cause each Originator to indicate in their computer files
as required by the applicable Receivables Purchase Agreement, that the
Receivables created in connection with the Accounts (other than Removed
Accounts) have been sold, and the Collateral Security assigned to the Issuer
pursuant to this Agreement and (b) to deliver to the Indenture Trustee (or cause
Case Credit to do so) a computer file or microfiche or written list containing a
true and complete list of all such Accounts (other than Removed Accounts)
specifying for each such Account, as of the Cut-Off Date, in the case of the
Initial Accounts, and the applicable Additional Cut-Off Date, in the case of
Additional Accounts, (i) its account number, (ii) the aggregate amount of
Receivables outstanding in such Account and (iii) the aggregate amount of
Principal Receivables in such Account (each such computer file or microfiche or
written lists an "Account Schedule"). Such file or list, as supplemented from
time to time to reflect Additional Accounts and Removed Accounts, shall be
marked as Schedule 1 to this Agreement and is hereby incorporated into and made
a part of this Agreement. The Indenture Trustee shall be under no obligation
whatsoever to verify the accuracy or completeness of the information contained
in Schedule 1 from time to time.
Exhibit references contained in this Agreement are references to Sections,
Schedules and Exhibits in or to this Agreement unless otherwise specified; and
the term "including" shall mean "including without limitation".
SECTION 2.02 ACCEPTANCE BY ISSUER; ISSUANCE OF NOTES. The Issuer hereby
acknowledges its acceptance of all right, title and interest previously held by
the Transferor to the property, now existing and hereafter created, conveyed to
the Issuer pursuant to Section 2.01 and declares that it shall maintain such
right, title and interest, upon the Issuer herein set forth, for the benefit of
the Noteholders, any Enhancement Provider and the Beneficiaries. The Indenture
Trustee acknowledges that, prior to or simultaneously with the execution and
delivery of this Agreement, the Transferor delivered to the Indenture Trustee
the Account Schedule relating to the Initial Accounts described in the last
paragraph of Section 2.01.
(b) Upon Transferor's request, Issuer shall from time to time issue
a Series of Notes to Transferor or its designee with such terms as specified in
the related Indenture Supplement, so long as (i) such issuance is permitted
under the terms of the Indenture and (ii) without limiting the generality of the
foregoing, after giving effect to each such issuance (A) the
16
Transferor Amount is not less than the Trust Available Subordinated Amount and
(B) the Adjusted Pool Balance is not less than the Required Pool Balance.
SECTION 2.03 REPRESENTATIONS AND WARRANTIES OF THE TRANSFEROR RELATING TO
THE TRANSFEROR AND THE AGREEMENT. The Transferor hereby represents and warrants
to the Issuer as of each Closing Date that:
(a) ORGANIZATION AND GOOD STANDING. The Transferor 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 and each
Transaction Document to which it is a party.
(b) DUE QUALIFICATION. The Transferor 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 each Transaction Document to which it is a party and the consummation of the
transactions provided for or contemplated by this Agreement and each Transaction
Document to which it is a party, have been duly authorized by the Transferor by
all necessary corporate action on the part of the Transferor.
(d) NO CONFLICT. The execution and delivery of this Agreement and
each Transaction Document to which it is a party, the performance of the
transactions contemplated by this Agreement and each Transaction Document to
which it is a party 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 Transferor is a party or by which it or
its properties are bound.
(e) NO VIOLATION. The execution and delivery of this Agreement, the
applicable Indenture Supplement and the Transaction Documents, the performance
of the transactions contemplated by this Agreement and the applicable Indenture
Supplement and the Transaction Documents and the fulfillment of the terms hereof
and thereof applicable to the Transferor, will not conflict with or violate any
material Requirements of Law applicable to the Transferor.
(f) NO PROCEEDINGS. There are no proceedings or, to the best
knowledge of the Transferor, investigations pending or threatened against the
Transferor before any Governmental Authority (i) asserting the invalidity of
this Agreement or any Transaction Document to which it is a party, (ii) seeking
to prevent the issuance of the Certificates or the consummation of any of the
transactions contemplated by this Agreement or any Transaction
17
Document to which it is a party, (iii) seeking any determination or ruling that,
in the reasonable judgment of the Transferor, would materially and adversely
affect the performance by the Transferor of its obligations under this Agreement
or any Transaction Document to which it is a party, (iv) seeking any
determination or ruling that would materially and adversely affect the validity
or enforceability of this Agreement or any Transaction Document to which it is a
party 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 and each Transaction Document to which it is a party,
the performance of the transactions contemplated by this Agreement, and each
Transaction Document to which it is a party, and the fulfillment of the terms
hereof and thereof, have been obtained.
(h) ENFORCEABILITY. This Agreement and each Transaction Document to
which it is a party constitutes a legal, valid and binding obligation of the
Transferor enforceable against the Transferor in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect affecting the enforcement of creditors' rights in general and except as
such enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
(i) RECORD OF ACCOUNTS. As of the first Closing Date, in the case
of the Initial Accounts, as of the applicable Addition Date, in the case of the
Additional Accounts, and, as of the applicable Removal Commencement Date, in the
case of Designated 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, the applicable Additional Cut-Off Date or the applicable Removal
Commencement Date, as the case may be, and the information contained therein
with respect to the identity of such Accounts and the Receivables existing
thereunder is true and correct in all material respects as of the Cut-Off Date,
such applicable Additional Cut-Off Date or such Removal Commencement 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 Issuer of all right, title and interest of the Transferor in
the Receivables and the Collateral Security and the proceeds thereof and all of
the Transferor's rights, remedies, powers and privileges with respect to the
Receivables under the Receivables Purchase Agreements and, upon the filing of
the financing statements described in Section 2.01 with the Secretary of State
of the State of Delaware and, in the case of the Receivables hereafter created
and the proceeds thereof, upon the creation thereof, the Issuer shall have a
first priority perfected ownership interest in such property. Except as
otherwise provided in this Agreement and the Trust Agreement, neither the
Transferor nor any Person claiming through or under the Transferor has any claim
to or interest in the Trust Assets.
The representations and warranties set forth in this Section 2.03 shall
survive the transfer and assignment of the Receivables to the Issuer. Upon
discovery by the Transferor, the Servicer, any Agent, the Indenture Trustee or
the Owner Trustee of a breach of any of the foregoing
18
representations and warranties, the party discovering such breach shall give
prompt written notice to the other parties, any Agent and to any Enhancement
Providers.
In the event of any breach of any of the representations and warranties set
forth in this Section 2.03 having a material adverse effect on the interests of
the Noteholders, then the Indenture Trustee as directed by the Holders of Notes
evidencing not less than a majority in aggregate unpaid principal amount of all
outstanding Notes, by notice then given in writing to the Transferor (and to the
Indenture Trustee, any Enhancement Providers and the Servicer), may direct the
Transferor to purchase all Receivables within 60 days of such notice (or within
such longer period as may be specified in such notice), and the Transferor shall
be obligated to make such purchase on a Payment Date occurring within such
60-day period on the terms and conditions set forth below; provided, however,
that no such purchase shall be required to be made if, by the end of such 60-day
period (or such longer period as may be specified), the representations and
warranties set forth in this Section 2.03 shall be satisfied in all material
respects, and any material adverse effect on the interest of the Noteholders
caused thereby shall have been cured.
The Transferor shall deposit in the Collection Account in immediately
available funds on the Business Day preceding such Payment Date, in payment for
such purchase, an amount equal to the sum of the amounts specified therefor with
respect to each outstanding Series in the related Indenture Supplement.
Notwithstanding anything to the contrary in this Agreement, such amounts shall
be distributed to the Noteholders on such Payment Date in accordance with the
terms of each Indenture Supplement. If the Indenture Trustee or the Noteholders
give notice directing the Transferor to purchase the Receivables as provided
above, the obligation of the Transferor to purchase the Receivables pursuant to
this Section 2.03 shall constitute the sole remedy respecting an event of the
type specified in the first sentence of this Section 2.03 available to the
Noteholders (or the Indenture Trustee on behalf of the Noteholders).
SECTION 2.04 REPRESENTATIONS AND WARRANTIES OF THE TRANSFEROR RELATING TO
THE RECEIVABLES.
(a) REPRESENTATIONS AND WARRANTIES. The Transferor hereby
represents and warrants to the Issuer that:
(i) Each Receivable and all Collateral Security existing on the
first Closing Date or, in the case of Additional Accounts, on the
applicable Addition Date, and on each Transfer Date, has been conveyed to
the Issuer free and clear of any Lien.
(ii) With respect to each Receivable and all Collateral Security
existing on the first Closing Date or, in the case of Additional Accounts,
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 Transferor in connection with the conveyance of such Receivable or
Collateral Security to the Issuer have been duly obtained, effected or
given and are in full force and effect.
19
(iii) On the Cut-Off Date and each Closing Date, each Initial Account
is an Eligible Account and, in the case of Additional Accounts and
Automatic Additional Accounts, on the applicable Additional Cut-Off Date
and each subsequent Closing Date, each such Additional Account is an
Eligible Account.
(iv) On the first Closing Date, in the case of the Initial Accounts,
and, in the case of the Additional Accounts and Automatic Additional
Accounts; on the applicable Additional Cut-Off Date, and on each Transfer
Date, each Receivable conveyed to the Issuer on such date is an Eligible
Receivable or, if such Receivable is not an Eligible Receivable, such
Receivable is conveyed to the Issuer in accordance with Section 2.08.
(b) NOTICE OF BREACH. The representations and warranties set forth
in this Section 2.04 shall survive the transfer and assignment of the
Receivables to the Issuer. Upon discovery by the Transferor, the Servicer, any
Agent or the Trustee of a breach of any of the representations and warranties
set forth in this Section 2.04, the party discovering such breach shall give
prompt written notice to the other parties and to any Enhancement Providers.
(c) REASSIGNMENT. In the event any representation or warranty under
Section 2.04(a) is not true and correct as of the date specified therein with
respect to any Receivable or Account and such breach has a material adverse
effect on the interests of the Noteholders in any such Receivable or Account,
then, within 60 days (or such longer period as may be agreed to by the Indenture
Trustee) of the earlier to occur of the discovery of any such event by the
Transferor or the Servicer, or receipt by the Transferor or the Servicer of
written notice of any such event given by the Indenture Trustee, any Agent or
any Enhancement Providers, the Transferor shall accept a reassignment of such
Receivable or, in the case of such an untrue representation or warranty with
respect to an Account, all Receivables in such Account, on the Determination
Date immediately succeeding the day of such discovery or notice on the terms and
conditions set forth in the next succeeding paragraph; provided, however, that
no such reassignment shall be required to be made with respect to such
Receivable if, by the end of such 60-day period (or such longer period as may be
agreed to by the Indenture Trustee), the breached representation or warranty
shall then be true and correct in all material respects and any material adverse
effect caused thereby shall have been cured.
The Transferor shall accept a reassignment of each such Receivable by
directing the Servicer to deduct, subject to the next sentence, the principal
amount of such Receivables from the Pool Balance on or prior to the end of the
Collection Period in which such reassignment obligation arises. If, following
such deduction, (a) the Adjusted Pool Balance on the last day of a Collection
Period would be less than the Required Pool Balance on the following Payment
Date or (b) the Transferor Amount would be less than the Trust Available
Subordinated Amount on the immediately preceding Determination Date (after
giving effect to the allocations, distributions, withdrawals and deposits to be
made on the Payment Date following such Determination Date), then not later than
12:00 noon on the day on which such reassignment occurs, the Transferor shall
deposit in the Excess Funding Account in immediately available funds the amount
(the "Transferor Deposit Amount") by which (x) the Adjusted Pool Balance would
be less than such Required Pool Balance or (y) the Transferor Amount would be
less than such Trust Available Subordinated Amount (up to the principal amount
of such Receivables); provided that if the Transferor Deposit Amount is not
deposited as required by this sentence,
20
then the principal amounts of such Receivables shall not be deducted from the
Pool Balance and shall not be reassigned to the Transferor and shall remain part
of the Issuer. Upon reassignment of any such Receivable, but only after payment
by the Transferor of the Transferor Deposit Amount, if any, the Issuer shall
automatically and without further action be deemed to sell, transfer, assign,
set over and otherwise convey to the Transferor, without recourse,
representation or warranty, all the right, title and interest of the Issuer in
and to such Receivable, all Collateral Security and all moneys due or to become
due with respect thereto and all proceeds thereof. The Trustee shall execute
such documents and instruments of transfer or assignment and take such other
actions as shall reasonably be requested by the Transferor to effect the
conveyance of such Receivables pursuant to this Section. The obligation of the
Transferor to accept a reassignment of any such Receivable and to pay any
related Transferor Deposit Amount shall constitute the sole remedy respecting
the event giving rise to such obligation available to the Indenture Trustee on
behalf of Noteholders.
SECTION 2.05 (a) AUTOMATIC ADDITIONAL ACCOUNTS. Subject to the
limitations specified below in this Section 2.05 and to any further limitations
specified in any Indenture Supplement, new individual wholesale financing
accounts shall be included as Accounts from and after the date upon which they
are created, and all Receivables in Automatic Additional Accounts purchased by
Transferor pursuant to the Receivables Purchase Agreement, whether such
Receivables are then existing or thereafter created, shall be transferred
automatically to the Issuer upon their creation. For all purposes of this
Agreement, all receivables relating to Automatic Additional Accounts shall be
treated as Receivables upon their creation and shall be subject to the
eligibility criteria specified in the definitions of "Eligible Receivable" and
"Eligible Account." Transferor may elect at any time to terminate the inclusion
in Accounts of new accounts which would otherwise be Automatic Additional
Accounts as of any Business Day (the "Automatic Addition Termination Date"), or
suspend any such inclusion as of any Business Day (an "Automatic Addition
Suspension Date") until a date (the "Restart Date") to be notified in writing by
Transferor to Issuer by delivering to Issuer, Indenture Trustee, Servicer and
each Rating Agency 10 days prior written notice of such election at least 10
days prior to such Automatic Addition Termination Date, Automatic Addition
Suspension Date or Restart Date, as the case may be. Promptly after each of an
Automatic Addition Termination Date, an Automatic Addition Suspension Date and a
Restart Date, Transferor and Issuer agree to execute, and Transferor agrees to
record and file at its own expense, an amendment to the financing statements to
specify the accounts then subject to this Agreement (which specification may
incorporate a list of accounts by reference) and, except in connection with any
such filing made after a Restart Date, to release any security interest in any
accounts created after the Automatic Addition Termination Date or Automatic
Addition Suspension Date.
Unless each Rating Agency otherwise consents, the number of Automatic
Additional Accounts added to the Issuer with respect to any of the three
consecutive Collection Periods beginning in January, April, July and October of
each calendar year may not exceed [ ]% of the number of Accounts as of the first
day of the calendar year during which such Collection Periods commence and the
number of Automatic Additional Accounts designated during any such calendar year
shall not exceed [ ]% of the number of Accounts as of the first day of such
calendar year. On or before the first Business Day of each Collection Period
beginning in January, April, July and October of each calendar year, the
Transferor shall have requested and obtained notification from each Rating
Agency of any limitations to the right of the Transferor to
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designate Eligible Accounts as Automatic Additional Accounts during any period
which includes such Collection Period. To the extent that Automatic Additional
Accounts have been added to the Issuer during the three consecutive Collection
Periods ending in the calendar month prior to such date, on or before January
31, April 30, July 31, October 31 of each calendar year, the Indenture Trustee
shall have received confirmation from each Rating Agency that the addition of
all Automatic Additional Accounts included as Accounts during the three
consecutive Collection Periods ending in the calendar month prior to such date
shall not have resulted in any applicable Rating Agency reducing or withdrawing
its rating of any outstanding Series or Class of Notes. On or before January 31
and July 31 of each calendar year, the Transferor shall deliver to the Indenture
Trustee, each Rating Agency and any Enhancement Provider an Opinion of Counsel
with respect to the Automatic Additional Accounts included as Accounts during
the preceding calendar year confirming the validity and perfection of each
transfer of the Receivables in such Automatic Additional Accounts. If such
Rating Agency confirmation or such Opinion of Counsel with respect to any
Automatic Additional Accounts is not so received, such Automatic Additional
Accounts will be removed from the Issuer, in accordance with Section 2.07.
(b) REQUIRED ADDITION OF ACCOUNTS. If, as of the close of business
on the last day of any Collection Period, (i) the Adjusted Pool Balance on such
day is less than the Required Pool Balance as of the following Payment Date
(after giving effect to the allocations, distributions, withdrawals and deposits
to be made on such Payment Date), or (ii) Transferor Amount as of the following
Payment Date (after giving effect to the allocations, distributions, withdrawals
and deposits to be made on such Payment Date), is less than the Trust Available
Subordinated Amount, then the Transferor shall, within [10] Business Days
following the end of such Collection Period, designate and transfer to the
Issuer the Receivables (and the related Collateral Security) of additional
Eligible Accounts of the Transferor to be included as Accounts in a sufficient
amount such that after giving effect to such addition (i) the Adjusted Pool
Balance as of the close of business on the Addition Date is at least equal to
such Required Pool Balance or (ii) such Transferor Amount is at least equal to
the Trust Available Subordinated Amount, as the case may be. The Transferor
shall satisfy the conditions specified in Section 2.05(d) in designating such
Additional Accounts and conveying the related Receivables to the Issuer. The
failure of the Transferor to transfer Receivables to the Issuer as provided in
this paragraph solely as a result of the unavailability of a sufficient amount
of Eligible Receivables shall not constitute a breach of this Agreement.
(c) The Transferor may from time to time, at its sole discretion,
subject to the conditions specified in paragraph (e) below, voluntarily
designate additional Eligible Accounts to be included as Accounts and transfer
to the Issuer the Receivables (and the related Collateral Security) of such
Additional Accounts.
(d) Receivables and Collateral Security from such Additional
Accounts shall be sold to the Issuer effective on a date (the "Addition Date")
specified in a written notice provided by the Transferor (or the Servicer on its
behalf) to the Trustee, the Rating Agencies, any Agent 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 the 30th day prior to the related Addition Date (the "Notice
Date").
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(e) The Transferor shall be permitted to convey to the Issuer the
Receivables and all Collateral Security related thereto in any Additional
Accounts designated by the Transferor as such pursuant to Section 2.05(c) only
upon satisfaction of each of the following conditions on or prior to the related
Addition Date:
(i) the Transferor shall have provided the Indenture Trustee, any
Agent, the Rating Agencies and any Enhancement Providers with a timely
Addition Notice;
(ii) such Additional Accounts shall all be Eligible Accounts;
(iii) the Transferor shall have delivered to the Indenture Trustee a
duly executed written assignment (including an acceptance by the Indenture
Trustee) in substantially the form of Exhibit B (the "Assignment") and the
computer file or microfiche or written list required to be delivered
pursuant to Section 2.01;
(iv) the Transferor shall, to the extent required by Section 4.02 of
the Indenture, have deposited 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 Transferor to be
adverse to the interests of the Noteholders or any Enhancement Provider
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 any Originator, nor the
Transferor were insolvent nor will any of them have been made insolvent by
such transfer nor are any of them aware of any pending insolvency;
(vi) the Rating Agency Condition shall have been satisfied with
respect to such addition;
(vii) the addition of the Receivables arising in such Additional
Accounts shall not result in the occurrence of an Early Amortization Event;
(viii) the Transferor shall have delivered to the Indenture Trustee
and any Enhancement Providers a certificate of a Vice President or more
senior officer confirming (A) the items set forth in paragraphs (ii)
through (vii) above and (B) that the Transferor reasonably believes that
the addition of the Receivables arising in such Additional Accounts will
not result in the occurrence of an Early Amortization Event; and
(ix) on or before each Addition Date, the Transferor shall have
delivered to the Indenture Trustee and any Enhancement Providers (A) an
external Opinion of Counsel with respect to the Receivables in the
Additional Accounts substantially in the form of Exhibit G-2 and (B) except
in the case of an addition required by Section 2.05(b), a Tax Opinion with
respect to such addition.
(f) The Transferor hereby represents and warrants as of the
applicable Addition Date as to the matters set forth in Section 2.05(e)(v). Upon
discovery by the
23
Transferor, the Servicer, any Agent, the Indenture Trustee or any Enhancement
Providers of a breach of the foregoing representations and warranties, the party
discovering the breach shall give prompt written notice to the other parties, to
any Agent and to any Enhancement Providers.
SECTION 2.06 COVENANTS OF THE TRANSFEROR. The Transferor hereby covenants
that:
(a) NO LIENS. Except for the conveyances hereunder and the grant of
a security interest in the Receivables and Collateral Security pursuant to the
Indenture, the Transferor will not sell, pledge, assign or transfer to any other
Person, or grant, create, incur, assume or suffer to exist any Lien on, any
Receivable or any Collateral Security, whether now existing or hereafter
created, or any interest therein, or the Transferor's rights, remedies, powers
or privileges with respect to the Receivables under the Receivables Purchase
Agreement, or the Transferor's Interest and the Transferor shall defend the
right, title and interest of the Issuer in, to and under the Receivables and the
Collateral Security, whether now existing or hereafter created, and such rights,
remedies, powers and privileges, against all claims of third parties claiming
through or under the Transferor.
(b) ACCOUNT ALLOCATIONS. In the event that the Transferor is unable
for any reason to transfer Receivables to the Issuer, then the Transferor 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 this Agreement. The parties hereto
agree that Non-Principal Receivables, whenever created, accrued in respect of
Principal Receivables which have been conveyed to the Issuer shall continue to
be a part of the Issuer notwithstanding any cessation of the transfer of
additional Principal Receivables to the Issuer and Collections with respect
thereto shall continue to be allocated and paid in accordance with the terms of
this Agreement.
(c) DELIVERY OF COLLECTIONS. In the event that the Transferor, an
Originator or any Affiliate thereof receives payments in respect of Receivables,
the Transferor and each such Originator agree to pay or cause to be paid to the
Servicer or any Successor Servicer all payments received thereby in respect of
the Receivables as soon as practicable after receipt thereof, but in no event
later than two Business Days after the receipt by the Transferor, such
Originator or any Affiliate thereof.
(d) NOTICE OF LIENS. The Transferor shall notify the Indenture
Trustee, in writing, promptly after becoming aware of any Lien on any Receivable
other than the conveyances hereunder and the Lien of the Indenture.
(e) COMPLIANCE WITH LAW. The Transferor hereby agrees to comply in
all material respects with all material Requirements of Law applicable to the
Transferor.
(f) ACTIVITIES OF THE TRANSFEROR. The Transferor will not engage in
any business or activity of any kind or enter into any transaction other than
(x) the businesses, activities and transactions contemplated and authorized by
this Agreement or the Transaction Documents or (y) the business of acquiring,
selling or financing wholesale and retail receivables
24
and related activities and transactions (such businesses, activities and
transactions, collectively, "Permitted Transactions").
(g) INDEBTEDNESS. Except for indebtedness and or the Subordinated
Notes, the Transferor will not create, incur or assume any indebtedness or issue
any securities or sell or transfer any receivables to a trust or other Person
which issues securities in respect of any such receivables, unless (i) any such
indebtedness or securities have no recourse to any assets of the Transferor
other than the specified assets to which such indebtedness or securities relate
and (ii) the Rating Agency Condition shall have been satisfied in connection
therewith prior to the incurrence or issuance thereof.
(h) GUARANTEES. The Transferor will not become or remain liable,
directly or contingently, in connection with any indebtedness or other liability
of any other Person, whether by guarantee, endorsement (other than endorsements
of negotiable instruments for deposit or collection in the ordinary course of
business), agreement to purchase or purchase, agreement to supply or advance
funds, or otherwise, except in connection with Permitted Transactions and unless
the Rating Agency Condition shall have been satisfied with respect thereto.
(i) INVESTMENTS. The Transferor will not make or suffer to exist
any loans or advances to, or extend any credit to, or make any investments (by
way of transfer of property, contributions to capital purchase of stock or
securities or evidences of indebtedness, acquisition of the business or assets,
or otherwise) in, any Affiliate, unless prior thereto the Rating Agency
Condition shall have been satisfied with respect thereto; provided, however,
that the Transferor shall not be prohibited under this Section 2.06(i) from
declaring or paying any dividends in respect of its common stock.
(j) STOCK; MERGER. The Transferor will not (i) sell any shares of
any class of its capital stock to any Person (other than Case Credit and its
Affiliates), or enter into any transaction of merger or consolidation unless:
(A) the surviving Person of such merger or consolidation expressly assumes all
of the Transferor's covenants and obligations under this Agreement by execution
of a supplemental agreement; (B) such surviving Person is organized under the
laws of the United States or any one of its states and (x) is a business entity
that may not become a debtor in a proceeding under the bankruptcy code or (y) is
a special-purpose entity, the powers and activities of which are limited to the
performance of the Transferor's obligations under the Transaction Documents; (C)
the Transferor 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; (D) such merger or consolidation does not conflict with any
provisions of the certificate of incorporation or other governing documents of
the Transferor, or (ii) terminate, liquidate or dissolve itself (or suffer any
termination, liquidation or dissolution), or (iii) acquire or be acquired by any
Person, or (iv) otherwise make (or suffer) any material change in the
organization of or method of conducting its business; and (E) the Transferor has
delivered to the Indenture Trustee and the Owner Trustee an Officers'
Certificate stating that such consolidation, merger, conveyance or transfer
complies with this Section 2.06(j) 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 Transferor
and the surviving Person.
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(k) AGREEMENTS. The Transferor will not become a party to, or
permit any of its properties to be bound by, any indenture, mortgage,
instrument, contract, agreement, lease or other undertaking, except this
Agreement and the other Transaction Documents and any document relating to a
Permitted Transaction, or amend or modify its certificate of incorporation or
other governing documents or cancel, terminate, amend, supplement, modify or
waive any of the provisions of the Receivables Purchase Agreements or any of the
other Transaction Documents or request, consent or agree to or suffer to exist
or permit any such cancellation, termination, amendment, supplement,
modification or waiver unless, in any such case, the Rating Agency Condition
shall have been satisfied with respect thereto.
SECTION 2.07 REMOVAL OF ELIGIBLE ACCOUNTS. On each Determination Date the
Transferor shall have the right to remove Accounts from the Trust in the manner
prescribed in Section 2.07(b). In addition, on each Determination Date the
Transferor shall have the right to remove Accounts from the Issuer and, in
connection therewith, repurchase the then existing Receivables in such Accounts,
in the manner prescribed in Section 2.07(c).
(b) To remove Accounts, the Transferor (or the Servicer on its
behalf) shall take the following actions and make the following determinations:
(i) not less than five Business Days prior to the Removal
Commencement Date, furnish to the Indenture Trustee, any Agent, any
Enhancement Providers and the Rating Agencies a written notice (the
"Removal Notice") specifying the Determination Date (which may be the
Determination Date on which such notice is given) on which removal of the
Receivables of one or more Accounts will commence (a "Removal Commencement
Date") and the Accounts the future generated Receivables of which are to be
removed from the Issuer (the "Designated Accounts");
(ii) determine on the Removal Commencement Date with respect to such
Designated Accounts the aggregate balance of Principal Receivables in
respect of each such Designated Account (the "Designated Balance") and
amend Schedule 1 by delivering to the Indenture Trustee a computer file or
microfiche or written list containing a true and complete list of the
Removed Accounts specifying for each such Account, as of the Removal
Commencement Date, its account number, the aggregate amount of Receivables
outstanding in such Account and the Designated Balance;
(iii) from and after such Removal Commencement Date, cease to
transfer to the Issuer any and all Receivables arising in such Designated
Accounts;
(iv) from and after such Removal Commencement Date, allocate all
Collections of Principal Receivables in respect of each such Designated
Account, first to the oldest outstanding principal balance of such
Designated Account, until the Determination Date on which the Designated
Balance with respect to such Designated Account is reduced to zero (the
"Removal Date");
(v) on each Business Day from and after such Removal Commencement
Date to and until the related Removal Date, allocate (A) to the Issuer (to
be further allocated pursuant to the terms of this Agreement), Defaulted
Receivables and Collections of Non-
26
Principal Receivables in respect of each Designated Account, based on the
ratio of the aggregate amount of Principal Receivables in all Designated
Accounts sold to the Issuer on such Business Day to the total aggregate
amount of Principal Receivables in all such Designated Accounts on such
Business Day and (B) to the Transferor, the remainder of the Defaulted
Receivables and Collections of Non-Principal Receivables in all such
Designated Accounts on such Business Day;
(vi) represent and warrant that the removal of any such Eligible
Account and the Purchase of the Receivables then existing in such Account
on any Removal Date shall not, in the reasonable belief of the Transferor,
cause an Early Amortization Event to occur or cause the Pool Balance to be
less than the Required Pool Balance or cause the Transferor Amount to be
less than the Trust Available Subordinated Amount;
(vii) represent and warrant that Accounts, or administratively
convenient groups of Accounts, were chosen for removal randomly or
otherwise not on a basis intended to select particular Accounts or groups
of Accounts for any reason other than administrative convenience, that no
selection procedures believed by the Transferor to be adverse to the
interests of the Noteholders or any Enhancement Provider were utilized in
selecting the Designated Accounts and that the selection procedures were
applied so as to randomly select the Designated Accounts from the entire
population of Accounts;
(viii) represent and warrant as of the Removal Commencement Date that
the list of Removed Accounts delivered pursuant to clause (ii) above, as of
the Removal Commencement Date, is true and complete in all material
respects;
(ix) represent and warrant that such removal will not result in a
reduction or withdrawal of the rating of any outstanding Series or Class by
the applicable Rating Agency;
(x) deliver to the Indenture Trustee, each Rating Agency, any Agent
and any Enhancement Providers a Tax Opinion, dated the Removal Commencement
Date, with respect to such removal; and
(xi) on or before the related Removal Commencement Date, deliver to
the Indenture Trustee, any Agent and any Enhancement Providers an Officers'
Certificate confirming the items set forth in clauses (vi) through (ix)
above and confirming that the Transferor reasonably believes that the
removal of the Removed Accounts will not result in the occurrence of an
Early Amortization Event; the Indenture Trustee may conclusively rely on
such Officers' Certificate and shall have no duty to make inquiries with
regard to the matters set forth therein and shall incur no liability in so
relying.
No Designated Accounts shall be so removed and no Designated
Receivables shall be so repurchased unless each Rating Agency shall have
notified the Transferor, the Servicer and the Indenture Trustee in writing that
such removal and repurchase will not result in a reduction or withdrawal of the
rating of any outstanding Series or Class by such Rating Agency. The condition
specified in the preceding sentence and the conditions specified in
27
clauses (vi) and (x) above will not be required if all of the Accounts to be
removed have liquidated and have zero balances.
(c) To remove Accounts and repurchase the then existing Receivables
in such Accounts, the Transferor (or the Servicer on its behalf) shall take the
following actions and make the following determinations:
(i) not less than five Business Days prior to the Removal and
Repurchase Date (the "Removal and Repurchase Notice Date"), furnish to the
Indenture Trustee, any Agent, any Enhancement Providers and the Rating
Agencies a Removal Notice specifying the Designated Accounts which are to
be removed, and the then existing Receivables in such Designated Accounts
(the "Designated Receivables") which are to be repurchased, from the Issuer
and the Determination Date (which may be the Determination Date on which
such notice is given) on which the removal of such Designated Accounts and
the repurchase of such Designated Receivables will occur (a "Removal and
Repurchase Date");
(ii) on the Removal and Repurchase Date with respect to such
Designated Accounts, amend Schedule 1 by delivering to the Indenture
Trustee a computer file or microfiche or written list containing a true and
complete list of the Removed Accounts specifying for each such Account, as
of the Removal and Repurchase Notice Date, its account number and the
aggregate amount of Receivables outstanding in such Account;
(iii) on the Removal and Repurchase Date, deposit into the Collection
Account funds in an amount equal to the aggregate outstanding balance of
the Repurchased Receivables on such date (the "Repurchased Receivables
Purchase Price"), which funds, notwithstanding anything in this Agreement
to the contrary, will not be released from the Collection Account other
than pursuant to Section 4.02(c) of the Indenture;
(iv) represent and warrant that the removal of any such Eligible
Account and the repurchase of the Receivables then existing in such Account
on any Removal and Repurchase Date shall not, in the reasonable belief of
the Transferor, cause an Early Amortization Event to occur or cause the
Adjusted Pool Balance to be less than the Required Pool Balance or the
Transferor Amount to be less than the Trust Available Subordinated Amount;
(v) represent and warrant that Accounts, or administratively
convenient groups of Accounts, were chosen for removal randomly or
otherwise not on a basis intended to select particular Accounts or groups
of Accounts for any reason other than administrative convenience, that no
selection procedures believed by the Transferor to be adverse to the
interests of the Noteholders and any Enhancement Provider were utilized in
selecting the Designated Accounts; further, represent and warrant that the
selection procedures were applied so as to randomly select the Designated
Accounts from the entire population of Accounts;
28
(vi) represent and warrant as of the Removal and Repurchase Date
that the list of Removed Accounts delivered pursuant to clause (ii) above,
as of the Removal and Repurchase Date, is true and complete in all material
respects;
(vii) represent and warrant that such removal and repurchase will not
result in a reduction or withdrawal of the rating of any outstanding Series
or Class by the applicable Rating Agency;
(viii) deliver to the Indenture Trustee, each Rating Agency, any Agent
and any Enhancement Providers a Tax Opinion, dated the Removal and
Repurchase Date, with respect to such removal and repurchase; and
(ix) on or before the related Removal and Repurchase Date, deliver
to the Indenture Trustee, any Agent and any Enhancement Providers an
Officers' Certificate confirming the items set forth in clauses (iv)
through (vii) above and confirming that the Transferor reasonably believes
that the removal of the Removed Accounts and the repurchase of the
Repurchased Receivables will not result in the occurrence of an Early
Amortization Event; the Indenture Trustee may conclusively rely on such
Officers' Certificate and shall have no duty to make inquiries with regard
to the matters set forth therein and shall incur no liability in so
relying.
No Designated Accounts shall be so removed and no Designated
Receivables shall be so repurchased unless each Rating Agency shall have
notified the Transferor, the Servicer and the Indenture Trustee in writing that
such removal and repurchase will not result in a reduction or withdrawal of the
rating of any outstanding Series or Class by such Rating Agency.
(d) In the case of any removal of a Designated Account pursuant to
Section 2.07(b), subject to such Section 2.07(b), on the Removal Date with
respect to any such Designated Account, the Transferor shall cease to allocate
any Collections therefrom in accordance with Section 2.07 (b) and such
Designated Account shall be deemed removed from the Issuer for all purposes (a
"Removed Account"). Within five Business Days after the Removal Date, the
Indenture Trustee shall deliver to the Transferor a reassignment in
substantially the form of Exhibit H (the "Reassignment"), together with
appropriate UCC financing statement releases or amendments if required.
(e) In the case of any removal of Designated Accounts and
repurchase of Designated Receivables pursuant to Section 2.07(c), subject to
such Section 2.07(c), on the Removal and Repurchase Date with respect to any
such Designated Account and Designated Receivables, such Designated Account
shall be deemed removed, and such Designated Receivables ("Repurchased
Receivables") shall be deemed repurchased, from the Issuer for all purposes and
the Trustee shall, without further action, be deemed to sell, transfer, assign,
set over and otherwise convey to the Transferor, effective as of the Removal and
Repurchase Date, without recourse, representation or warranty, all the right,
title and interest of the Issuer in and to the Repurchased Receivables, all
moneys due and to become due and all amounts received with respect thereto and
all proceeds thereof. Within five Business Days after the Removal and Repurchase
Date, the Trustee shall execute and deliver (but shall have no duty to prepare)
to the
29
Transferor a Reassignment, together with appropriate UCC financing statement
releases or amendments if required.
For the avoidance of doubt, the Transferor shall not remove Accounts from
the Issuer more frequently than once a month.
SECTION 2.08 SALE OF INELIGIBLE RECEIVABLES. The Transferor shall sell to
the Issuer on each Transfer Date any and all Receivables arising in any Eligible
Accounts that are Ineligible Receivables, provided that (a) on the Cut-Off Date
or, in the case of Receivables arising in Additional Accounts, on the related
Additional Cut-Off Date, and on the applicable Transfer Date, the Account in
which such Receivables arise is an Eligible Account and (b) the Incremental
Subordinated Amount is adjusted in accordance with the definition of Incremental
Subordinated Amount.
ARTICLE III
ADMINISTRATION AND SERVICING
OF RECEIVABLES
SECTION 3.01 ACCEPTANCE OF APPOINTMENT AND OTHER MATTERS RELATING TO THE
SERVICER. The Servicer shall service and administer the Receivables, shall
collect payments due under the Receivables and shall charge-off as uncollectible
Receivables, all in accordance with its customary and usual servicing procedures
for servicing wholesale receivables comparable to the Receivables which the
Servicer services for its own account and in accordance with the Floorplan
Financing Guidelines. The Servicer shall have full power and authority, acting
alone or through any party properly designated by it hereunder, to do any and
all things in connection with such servicing and administration which it may
deem necessary or desirable. Without limiting the generality of the foregoing
and subject to Section 6.01, the Servicer is hereby authorized and empowered,
unless such power and authority is revoked by the Indenture Trustee on account
of the occurrence of a Servicer Default pursuant to Section 6.01, (i) to
instruct the Indenture Trustee to make withdrawals and payments from the
Collection Account and any Series Account as set forth in this Agreement, (ii)
to instruct the Indenture Trustee to take any action required or permitted under
any Enhancement, (iii) to execute and deliver, on behalf of the Issuer for the
benefit of the Noteholders and any Enhancement Provider, any and all instruments
of satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to the Receivables and, after the
delinquency of any Receivable and to the extent permitted under and in
compliance with applicable Requirements of Law, to commence enforcement
proceedings with respect to such Receivables, (iv) to make any filings, reports,
notices, applications, registrations with, and seek any consents or
authorizations from, the Commission and any state securities authority on behalf
of the Issuer as may be necessary or advisable to comply with any federal or
state securities laws or reporting requirement, and (v) to delegate certain of
its servicing, collection, enforcement and administrative duties hereunder with
respect to the Accounts and the Receivables to any Person who agrees to conduct
such duties in accordance with the Floorplan Financing Guidelines and this
Agreement; provided, however, that the Servicer shall notify the Indenture
Trustee, the Rating Agencies, any Agent and any Enhancement Providers in writing
of any such delegation of its duties which is not in the ordinary course of its
business, that no delegation will relieve the
30
Servicer of its liability and responsibility with respect to such duties and
that the Rating Agency Condition shall have been satisfied with respect to any
such delegation. The Owner Trustee shall furnish the Servicer with any powers of
attorney and other documents necessary or appropriate to enable the Servicer to
carry out its servicing and administrative duties hereunder.
(b) In the event that the Transferor is unable for any reason to
transfer Receivables to the Issuer in accordance with the provisions of this
Agreement then, in any such event, the Servicer agrees (i) to give prompt
written notice thereof to any Enhancement Providers, any Agent and each Rating
Agency and (ii) that it shall in any such event 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, subject to
the proviso set forth in Section 2.06(b), and to have such payments applied as
Collections in accordance with Section 4.02 of the Indenture. The parties hereto
agree that Non-Principal Receivables, whenever created, accrued in respect of
Principal Receivables which have been conveyed to the Issuer shall continue to
be a part of the Issuer notwithstanding any cessation of the transfer of
additional Principal Receivables to the Issuer and Collections with respect
thereto shall continue to be allocated and paid in accordance with the terms of
this Agreement.
(c) The Servicer shall not, and any Successor Servicer shall not be
obligated to, use separate servicing procedures, offices, employees or accounts
for servicing the Receivables from the procedures, offices, employees and
accounts used by the Servicer in connection with servicing other wholesale
receivables.
(d) The Servicer shall comply with and perform its servicing
obligations with respect to the Accounts and Receivables in accordance with the
Floorplan Financing Agreements relating to the Accounts and the Floorplan
Financing Guidelines, except insofar as any failure to so comply or perform
would not materially and adversely affect the rights of the Issuer or any of the
Beneficiaries. Subject to compliance with all Requirements of Law, the Servicer
(or any Originator) may change the terms and provisions of the Floorplan
Financing Agreements or the Floorplan Financing Guidelines in any respect
(including the calculation of the amount or the timing of charge-offs and the
rate of the finance charge assessed thereon), only if (i) as a result of such
change, in the reasonable judgment of the Servicer no Early Amortization Event
will occur at any time and none of the Enhancement Providers, if any, or the
Noteholders shall be adversely affected and (ii) such change is made applicable
to the comparable segment of wholesale accounts owned or serviced by the
Servicer which have characteristics the same as, or substantially similar to,
the Accounts which are the subject of such change.
SECTION 3.02 SERVICING COMPENSATION. As full compensation for its
servicing activities hereunder and reimbursement for its expenses as set forth
in the immediately following paragraph, the Servicer shall be entitled to
receive the Servicing Fee on each Payment Date on or prior to the Trust
Termination Date payable in arrears. The "Servicing Fee" shall be the aggregate
of the Monthly Servicing Fees specified in the Indenture Supplements. The
Servicing Fee shall be payable to the Servicer solely to the extent amounts are
available for payment in accordance with the terms of the Indenture Supplements.
The Servicer's expenses include the amounts due to the Indenture Trustee
and the reasonable fees and disbursements of independent accountants and all
other expenses incurred by
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the Servicer in connection with its activities hereunder, and including all
other fees and expenses of the Issuer not expressly stated herein to be for the
account of the Noteholders. The Servicer shall be required to pay such expenses
for its own account, and shall not be entitled to any payment therefor other
than the Servicing Fee. The Servicer will be solely responsible for all fees and
expenses incurred by or on behalf of the Servicer in connection herewith and the
Servicer will not be entitled to any fee or other payment from, or claim on, any
of the Trust Assets (other than the Servicing Fee).
SECTION 3.03 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SERVICER.
Case Credit, as Servicer, hereby makes, and any Successor Servicer by its
appointment hereunder shall make, on each Closing Date (and on the date of any
such appointment) the following representations, warranties and covenants:
(i) ORGANIZATION AND GOOD STANDING. Such party is a corporation or
other entity duly organized, validly existing and in good standing under
the applicable laws of the state of its formation and has, in all material
respects, full corporate power, authority and legal rights to own its
properties and conduct its wholesale receivable servicing business as such
properties are presently owned and as such business is presently conducted,
and to execute, deliver and perform its obligations under this Agreement
and each Transaction Document to which it is a party.
(ii) DUE QUALIFICATION. Such party is duly qualified to do business
and is in good standing as a foreign corporation (or is exempt from such
requirements) and has obtained all necessary licenses and approvals in each
jurisdiction in which the servicing of the Receivables as required by this
Agreement 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.
(iii) DUE AUTHORIZATION. The execution, delivery, and performance of
this Agreement and each Transaction Document to which it is a party has
been duly authorized by such party by all necessary corporate action on the
part thereof.
(iv) BINDING OBLIGATION. This Agreement and each Transaction
Document to which it is a party constitutes a legal, valid and binding
obligation of such party, enforceable in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereinafter in
effect, affecting the enforcement of creditors' rights and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity).
(v) NO VIOLATION. The execution and delivery of this Agreement and
any other Transaction Document to which it is a Party by such party, the
performance of the transactions contemplated by this Agreement and any
other Transaction Document to which it is a Party and the fulfillment of
the terms hereof and thereof applicable to such party will not conflict
with, violate, 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 Requirement of Law applicable to such
party or any indenture,
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contract, agreement, mortgage, deed of trust, or other instrument to which
such party is a party or by which it is bound.
(vi) NO PROCEEDINGS. There are no proceedings or, to the best
knowledge of such party, investigations, pending or threatened against such
party before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or
any Transaction Document to which it is a party, seeking any determination
or ruling that, in the reasonable judgment of such party, would materially
and adversely affect the performance by such party of its obligations under
this Agreement and the applicable Indenture Supplement, any other
Transaction Document, or seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this
Agreement or any other Transaction Document to which it is a Party.
(vii) COMPLIANCE WITH REQUIREMENTS OF LAW. Such party shall duly
satisfy all obligations on its part to be fulfilled under or in connection
with the Receivables and the Accounts, will maintain in effect all
qualifications required under Requirements of Law in order to service
properly the Receivables and the Accounts and will comply in all material
respects with all material Requirements of Law in connection with servicing
the Receivables and the Accounts the failure to comply with which would
have a material adverse effect on the interests of Noteholders and any
Enhancement Provider.
(viii) NO RESCISSION OR CANCELLATION. Such party shall not permit any
rescission or cancellation of a Receivable except as ordered by a court of
competent jurisdiction or other Governmental Authority or in the ordinary
course of its business in accordance with the Floorplan Financing
Guidelines.
(ix) PROTECTION OF NOTEHOLDERS RIGHTS. Such party shall take no
action, nor omit to take any action, which would materially impair the
rights of Noteholders in the Receivables nor shall it reschedule, revise or
defer payments due on any Receivable except in accordance with the
Floorplan Financing Guidelines.
(x) NEGATIVE PLEDGE. The Servicer will not (A) sell, pledge, assign
or transfer to any other Person, or grant, create, incur, assume or suffer
to exist any Lien on, any Receivable sold and assigned to the Issuer,
whether now existing or hereafter created, or any interest therein, and the
Servicer shall defend the rights, title and interest of the Issuer in, to
and under any Receivable sold and assigned to the Issuer, whether now
existing or hereafter created, against all claims of third parties claiming
through or under the Transferor or the Servicer or (B) reschedule, revise
or defer payments due on any Receivable except (1) in accordance with its
Floorplan Financing Guidelines, (2) when converting the existing payment
schedule to a rent-to-own payment schedule or a payment schedule applicable
to a Dealer purchase for its rental business and (3) when a Dealer extends
an unsold Equipment payment schedule pursuant to the Floorplan Financing
Guidelines.
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(b) NOTICE OF BREACH. The representations and warranties set forth
in this Section 3.03 shall survive the transfer and assignment of the
Receivables to the Issuer and the pledge of Collateral to the Indenture Trustee.
Upon discovery by the Transferor, the Servicer or the Indenture Trustee of a
breach of any of the representations and warranties set forth in this Section
3.03, the party discovering such breach shall give prompt written notice to the
other parties and to any Enhancement Providers.
(c) PURCHASE. In the event any representation or warranty under
Section 3.03(a) (vii), (viii) or (ix) is not true and correct in any material
respect as of the date specified therein with respect to any Receivable or
Account and such breach has a material adverse effect on the interest of the
Noteholders in such Receivable, then, within 60 days (or such longer period as
may be agreed to by the Trustee) of the earlier to occur of the discovery of any
such event by the Transferor or the Servicer, or receipt by the Transferor or
the Servicer of written notice of any such event given by the Indenture Trustee
or any Enhancement Providers, the Servicer shall purchase such Receivable or, in
the case of an untrue representation with respect to an Account, all Receivables
in such Account, on the Determination Date immediately succeeding the expiration
of such 60-day period on the terms and conditions set forth in the next
succeeding paragraph; provided, however, that no such purchase shall be required
to be made with respect to such Receivable if, by the end of such 60-day period
(or such longer period as may be agreed to by the Trustee) the breached
representation or warranty shall then be true and correct in all material
respects and any material adverse effect caused thereby shall have been cured.
The Servicer shall effect such purchase by depositing in the Collection Account
in immediately available funds an amount equal to the Purchase Price of such
Receivable. Any such deposit of such Purchase Price into the Collection Account
shall be considered a Transferor Deposit Amount and shall be applied in
accordance with the terms of this Agreement.
Upon each such payment of such Purchase Price, the Issuer shall
automatically and without further action be deemed to sell, transfer, assign,
set over and otherwise convey to the Servicer, without recourse, representation
or warranty, all right, title and interest of the Issuer in and to such
Receivables, all monies due or to become due with respect thereto and all
proceeds thereof and the related Collateral Security. The Indenture Trustee
shall execute such documents and instruments of transfer or assignment and take
such other actions as shall be reasonably requested by the Servicer to effect
the conveyance of any such Receivables pursuant to this Section. The obligation
of the Servicer to purchase such Receivables, and to make the deposits required
to be made to the Collection Account as provided in the preceding paragraph,
shall constitute the sole remedy respecting the event giving rise to such
obligation available to the Indenture Trustee on behalf of Noteholders.
SECTION 3.04 REPORTS AND RECORDS FOR THE INDENTURE TRUSTEE; BANK ACCOUNT
STATEMENTS. On or before each Payment Date, with respect to each outstanding
Series, the Servicer shall deliver to any Enhancement Providers, the Rating
Agencies and the Indenture Trustee a Payment Date Statement for such Payment
Date substantially in the form set forth in the related Indenture Supplement.
SECTION 3.05 ANNUAL SERVICER'S CERTIFICATE. The Servicer will deliver to
the Rating Agencies, the Trustee, any Agent and any Enhancement Providers on or
before April 30 of each calendar year, beginning with April 30, 200_, an
Officers' Certificate substantially in the
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form of Exhibit C stating that (a) a review of the activities of the Servicer
during the preceding calendar year and of its performance under this Agreement
was made under the supervision of the officer signing such certificate and (b)
to the best of such officer's knowledge, based on such review, the Servicer has
performed in all material respects its obligations under this Agreement
throughout such year, or, if there has been a material default in the
performance of any such obligation, specifying each such default known to such
officer and the nature and status thereof.
SECTION 3.06 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT. The
Servicer shall cause a firm of independent certified public accountants, which
may also render other services to the Servicer, the Seller or any other
Affiliate of CNH Global, to deliver to the Trustee and the Indenture Trustee on
or before April 30 of each year a report, addressed to the Board of Directors of
the Servicer, the Trustee and the Indenture Trustee, summarizing the results of
certain procedures with respect to certain documents and records relating to the
servicing of the Receivables during the preceding calendar year (or, in the case
of the first such report, during the period from the Initial Cutoff Date to
[ ]). The procedures to be performed and reported upon by the independent
public accountants shall be those agreed to by the Servicer.
In the event that such firm requires the Indenture Trustee to agree to the
procedures performed by such firm, the Servicer shall direct the Indenture
Trustee in writing to so agree; it being understood and agreed that the
Indenture Trustee will deliver such letter of agreement in conclusive reliance
upon the direction of the Servicer and the Indenture Trustee makes no
independent inquiry or investigation as to, and shall have no obligation or
liability in respect of, the sufficiency, validity or correctness of such
procedures.
Such report will also indicate that the firm is independent of the Servicer
within the meaning of the Code of Professional Ethics of the American Institute
of Certified Public Accountants.
SECTION 3.07 TAX TREATMENT. The Transferor has entered into this
Agreement with the intention that the Notes will qualify under applicable tax
law as indebtedness of the Issuer secured by the Receivables. Each Noteholder,
by the acceptance of its Note, agrees to treat the Notes as indebtedness of the
Issuer secured by the Receivables for federal income taxes, state and local
income and franchise taxes, Illinois state tax and any other taxes imposed on or
measured by income.
SECTION 3.08 NOTICES TO CASE CREDIT. In the event Case Credit is no
longer acting as Servicer, any Successor Servicer appointed pursuant to Section
6.02 shall deliver or make available to Case Credit, as the case may be, each
certificate and report required to be prepared, forwarded or delivered
thereafter pursuant to Sections 3.04, 3.05 or 3.06.
SECTION 3.09 ADJUSTMENTS. (a) If the Servicer adjusts downward the amount
of any Principal Receivable because of a rebate, refund, credit adjustment or
billing error to a Dealer, or because such Receivable was created in respect of
Equipment which was refused or returned by a Dealer or because of buybacks of
Equipment from a Dealer upon the termination of a Dealer (each such amount, an
"Investor Dilution Amount") then, in any such case, the
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Transferor Amount and Pool Balance will be automatically reduced by the amount
of the adjustment subject to the last sentence of this Section. Furthermore, if
following such a reduction the Transferor Amount would be less than the Trust
Available Subordinated Amount on the immediately preceding Determination Date
(after giving effect to the allocations, distributions, withdrawals and deposits
to be made on the Payment Date following such Determination Date), then the
Transferor shall be required to pay an amount equal to such deficiency (up to
the amount of such adjustment) into the Excess Funding Account on the Business
Day on which such adjustment or reduction occurs (each such payment an
"Adjustment Payment"). If the Transferor shall fail to make any deposit to the
Excess Funding with respect to such Adjustment Payment or portion thereof by the
Determination Date relating to the Collection Period with respect to which such
Adjustment Payment is payable, the amount of such Adjustment Payment or portion
thereof shall be allocated on such related Determination Date in accordance with
the Indenture and the Indenture Supplements.
(b) If (i) the Servicer makes a deposit into the Collection Account
in respect of a Collection of a Receivable and such collection was received by
the Servicer in the form of a check which is not honored for any reason or (ii)
the Servicer makes a mistake with respect to the amount of any Collection and
deposits an amount that is less than or more than the actual amount of such
Collection, the Servicer shall appropriately adjust the amount subsequently
deposited into the Collection Account to reflect such dishonored check or
mistake. Any Receivable in respect of which a dishonored check is received shall
be deemed not to have been paid.
ARTICLE IV
OTHER MATTERS RELATING TO THE TRANSFEROR
SECTION 4.01 LIABILITY OF THE TRANSFEROR. The Transferor shall be liable
for all obligations, covenants, representations and warranties of the Transferor
arising under or related to this Agreement. Except as provided in the preceding
sentence, the Transferor shall be liable only to the extent of the obligations
specifically undertaken by it in its capacity as Transferor hereunder.
SECTION 4.02 LIMITATION ON LIABILITY OF THE TRANSFEROR. Subject to
Sections 4.01 and 4.03, neither the Transferor nor any of the directors or
officers or employees or agents of the Transferor in its capacity as Transferor
shall be under any liability to the Issuer, the Indenture Trustee, the Owner
Trustee, the Noteholders or any other Person for any action taken or for
refraining from the taking of any action in the capacity as Transferor pursuant
to this Agreement whether arising from express or implied duties under this
Agreement; provided, however, that this provision shall not protect the
Transferor or any such person against any liability which would otherwise be
imposed by reason of willful misfeasance, bad faith or gross negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties hereunder. The Transferor and any director or officer or employee or
agent of the Transferor may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder.
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SECTION 4.03 TRANSFEROR INDEMNIFICATION OF THE ISSUER, THE INDENTURE
TRUSTEE AND THE OWNER TRUSTEE. The Transferor shall indemnify and hold harmless
the Issuer, the Indenture Trustee and the Owner Trustee, from and against any
loss, liability, expense, damage or injury suffered or sustained by reason of
any acts, omissions or alleged acts or omissions arising out of activities of
the Issuer, the Indenture Trustee or the Owner Trustee pursuant to this
Agreement, 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
Transferor shall not indemnify the Issuer, the Indenture Trustee or the Owner
Trustee if such acts, omissions or alleged acts or omissions constitute fraud,
negligence, breach of fiduciary duty or willful misconduct by the Indenture
Trustee or the Owner Trustee, as the case may be; and provided, further, that
the Transferor shall not indemnify the Issuer, the Indenture Trustee or the
Owner Trustee 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 Issuer or any Noteholder in connection herewith to any taxing authority.
Subject to Section 6.01, any indemnification pursuant to this Section shall only
be from (i) the excess of the Transferor Amount for any date of determination
over the Required Pool Balance as of such date and (ii) any other assets of the
Transferor not pledged to third parties or otherwise encumbered in a manner
permitted by the Transferor's Certificate of Incorporation and shall only be
made after payment in full of any amounts that the Transferor is obligated to
deposit in the Collection Account pursuant to this Agreement. Any
indemnification under this Article IV shall survive the termination of this
Agreement.
SECTION 4.04 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS
OF THE TRANSFEROR.
(a) Transferor shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person unless:
(i) the Person formed by such consolidation or into which
Transferor is merged or the Person which acquires by conveyance or transfer
the properties and assets of Transferor substantially as an entirety shall
be, if Transferor is not the surviving entity, an entity organized and
existing under the laws of the United States of America or any State or the
District of Columbia, and, if Transferor is not the surviving entity, such
entity shall expressly assume, by an agreement supplemental hereto,
executed and delivered to the Indenture Trustee, in form reasonably
satisfactory to Indenture Trustee, the performance of every covenant and
obligation of Transferor hereunder;
(ii) Transferor has delivered to Indenture Trustee (A) an Officer's
Certificate stating that such consolidation, merger, conveyance or transfer
and such supplemental agreement comply with this Section and that all
conditions precedent herein provided for relating to such transaction have
been complied with, and (B) an Opinion of Counsel to the effect that such
supplemental agreement is a valid and binding obligation of such surviving
entity enforceable against such surviving entity in accordance with its
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally from time to time in effect and
except as such enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity);
37
(iii) Transferor shall have delivered to Indenture Trustee and each
Rating Agency a Tax Opinion, dated the date of such consolidation, merger,
conveyance or transfer, with respect thereto;
(iv) in connection with any merger or consolidation, or any
conveyance or transfer referred to above, the business entity into which
Transferor shall merge or consolidate, or to which such conveyance or
transfer is made, shall be (x) a business entity that may not become a
debtor in any case, action or other proceeding under Title 11 of the United
States Code or (y) a special-purpose corporation, the powers and activities
of which shall be limited to the performance of Transferor's obligations
under this Agreement and the other Transaction Documents;
(v) if Transferor is not the surviving entity, the surviving entity
shall file new UCC-1 financing statements with respect to the interest of
Issuer in the Receivables and, if any; and
(vi) the Rating Agency Condition has been satisfied with respect to
such merger, conveyance or transfer.
(b) This Section 4.04 shall not be construed to prohibit or in any
way limit Transferor's ability to effectuate any consolidation or merger
pursuant to which Transferor would be the surviving entity.
(c) Transferor shall notify each Rating Agency promptly after any
consolidation, merger, conveyance or transfer effected pursuant to this Section
4.04.
(d) The obligations of Transferor hereunder shall not be assignable
nor shall any Person succeed to the obligations of Transferor hereunder except
in each case in accordance with (i) the provisions of the foregoing paragraphs,
(ii) Section 4.05 of this Agreement or Section 10 of the Trust Agreement or
(iii) conveyances, mergers, consolidations, assumptions, sales or transfers to
other entities (1) for which Transferor delivers an Officer's Certificate to
Indenture Trustee indicating that Transferor reasonably believes that such
action will not adversely affect in any material respect the interests of any
Noteholder, (2) which meet the requirements of clause (ii) of paragraph (a) and
(3) for which such purchaser, transferee, pledgee or entity shall expressly
assume, in an agreement supplemental hereto, executed and delivered to Owner
Trustee and Indenture Trustee in writing in form satisfactory to Owner Trustee
and Indenture Trustee, the performance of every covenant and obligation of
Transferor thereby conveyed.
SECTION 4.05 TRANSFEROR INTEREST. Transferor may designate additional or
substitute Persons to be included as Transferors under this Agreement by an
amendment to this Agreement (which amendment shall be subject to Section 8.01,
any applicable restrictions in the Indenture Supplement for any outstanding
Series and satisfaction of the Rating Agency Condition) and in connection with
such designation, the initial Transferor shall transfer a portion of the
Transferor Interest to such additional Transferor reflecting such additional
Transferor's Interest in the Transferor Interest; provided that prior to any
such designation and issuance the conditions set forth in the Trust Agreement
shall have been satisfied with respect to a transfer of Transferor's Interest.
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ARTICLE V
OTHER MATTERS RELATING TO THE SERVICER
SECTION 5.01 LIABILITY OF THE SERVICER. The Servicer shall be liable
under this Article V only to the extent of the obligations specifically
undertaken by the Servicer in its capacity as Servicer.
SECTION 5.02 MERGER OR CONSOLIDATION OF, OR ASSUMPTION, OF THE
OBLIGATIONS OF THE SERVICER. The Servicer 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
Servicer is merged or the Person which acquires by conveyance or transfer the
properties and assets of the Servicer 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 Servicer
hereunder;
(b) the Servicer 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 Servicer has delivered to the Indenture Trustee and the
Owner Trustee an Officers' Certificate stating that such consolidation, merger,
conveyance or transfer complies with this Section 5.02 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 Servicer and the successor Person.
SECTION 5.03 LIMITATION ON LIABILITY OF THE SERVICER AND OTHERS. Except
as provided in Section 5.04, neither the Servicer nor any of the directors or
officers or employees or agents of the Servicer, shall be under any liability to
the Issuer, the Owner Trustee, the Indenture Trustee, the Noteholders or any
other Person for any action taken or for refraining from the taking of any
action in its capacity as Servicer pursuant to this Agreement; provided,
however, that this provision shall not protect the Servicer or any such person
against any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties or by
reason of reckless disregard of obligations and duties hereunder. The Servicer
and any director or officer or employee or agent of the Servicer may rely in
good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Servicer
shall not be under any obligation to appear in, prosecute or defend any legal
action which is not incidental to its duties to service the Receivables in
accordance with this Agreement which in its reasonable opinion may involve it in
any expense or liability.
SECTION 5.04 SERVICER INDEMNIFICATION OF THE ISSUER, THE INDENTURE
TRUSTEE AND THE OWNER TRUSTEE. The Servicer shall indemnify and hold harmless
the Issuer, the Indenture
39
Trustee, and the Owner Trustee, from and against any loss, liability, expense,
damage or injury suffered or sustained by reason of any acts, omissions or
alleged acts or omissions arising out of activities of the Servicer, the Issuer,
the Indenture Trustee or the Owner Trustee pursuant to this Agreement, 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 Servicer shall not
indemnify the Issuer, the Indenture Trustee or the Owner Trustee if such acts,
omissions or alleged acts or omissions constitute fraud, negligence, breach of
fiduciary duty or willful misconduct by the Trustee; and provided further that
the Servicer shall not indemnify the Issuer, the Indenture Trustee, the Trustee
or any Noteholder for any liabilities, cost or expense of the Issuer 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 Issuer or
the Noteholders in connection herewith to any taxing authority. Any
indemnification under this Article VIII shall survive the termination of this
Agreement and the resignation and removal of the Indenture Trustee or the Owner
Trustee, as the case may be.
SECTION 5.05 THE SERVICER NOT TO RESIGN. The Servicer shall not resign
from the obligations and duties hereby imposed on it except upon determination
that (a) the performance of its duties hereunder is no longer permissible under
applicable law and (b) there is no reasonable action which the Servicer could
take to make the performance of its duties hereunder permissible under
applicable law. No such resignation shall become effective until the Indenture
Trustee or a Successor Servicer shall have assumed the responsibilities and
obligations of the Servicer in accordance with Section 6.02 hereof. If the
Indenture Trustee is unable within 120 days of the date of such determination to
appoint a Successor Servicer, the Indenture Trustee shall serve as Successor
Servicer hereunder.
SECTION 5.06 ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING
THE RECEIVABLES. The Servicer shall provide to the Indenture Trustee access to
the documentation regarding the Accounts and the Receivables in such cases where
the Indenture Trustee is required in connection with the enforcement of the
rights of the Noteholders, or by applicable statutes or regulations to review
such documentation, such access being afforded without charge but only (a) upon
reasonable request, (b) during normal business hours, (c) subject to the
Servicer's, normal security and confidentiality procedures and (d) at offices
designated by the Servicer. Nothing in this Section 5.06 shall derogate from the
obligation of the Transferor, the Owner Trustee, the Indenture Trustee or the
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Dealers and the failure of the Servicer to provide access as
provided in this Section 5.06 as a result of such obligation shall not
constitute a breach of this Section 5.06.
SECTION 5.07 DELEGATION OF DUTIES. Subject to Section 3.01, in the
ordinary course of business, the Servicer may at any time delegate any duties
hereunder to any Person who agrees to conduct such duties in accordance with the
Floorplan Financing Guidelines and this Agreement. The Servicer shall give
prompt written notice of any such delegation of a material function to the
Rating Agencies, any Agent and any Enhancement Providers. Such delegation shall
not relieve the Servicer of its liability and responsibility with respect to
such duties, and shall not constitute a resignation within the meaning of
Section 5.05 and the Rating
40
Agency Condition shall have been satisfied with respect to such delegation prior
to such delegation.
SECTION 5.08 EXAMINATION OF RECORDS. The Transferor, or the Servicer on
its behalf, shall indicate generally in its computer files or other records that
the Receivables arising in the Accounts have been conveyed to the Issuer
pursuant to this Agreement for the benefit of the Noteholders and any
Enhancement Provider. The Transferor and the Servicer shall, prior to the sale
or transfer to a third party of any receivable held in its custody, examine its
computer and other records to determine that such receivable is not a
Receivable.
ARTICLE VI
SERVICER DEFAULTS
SECTION 6.01 SERVICER DEFAULTS. If any one of the following events (a
"Servicer Default") shall occur and be continuing with respect to the Servicer:
(a) any failure by the Servicer to make any payment, transfer or
deposit or to give instructions or to give notice to the Indenture Trustee to
make such payment, transfer or deposit or to give notice to the Indenture
Trustee as to any action to be taken under any Enhancement Agreement on or
before the date occurring five days after the date such payment, transfer or
deposit or such instruction or notice is required to be made or given, as the
case may be, under the terms of this Agreement;
(b) failure on the part of the Servicer duly to observe or perform
any other covenants or agreements of the Servicer set forth in this Agreement
which has a material adverse effect on the Noteholders of any Series, which
continues unremedied for a period of 60 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Servicer by the Indenture Trustee;
(c) the Servicer shall delegate its duties under this Agreement,
except as permitted by Sections 3.01 and 5.07;
(d) any representation, warranty or certification made by the
Servicer in this Agreement or in any certificate delivered pursuant to this
Agreement shall prove to have been incorrect when made, which has a material
adverse effect on the rights of the Noteholders of any Series and which material
adverse effect continues for a period of 60 days after the date on which written
notice thereof, requiring the same to be remedied, shall have been given to the
Servicer by the Indenture Trustee;
(e) the Servicer shall consent to the appointment of a conservator
or receiver or liquidator or other similar official in any bankruptcy,
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings of or relating to the Servicer or of or relating to all or
substantially all of its property, or a decree or order of a court or agency or
supervisory authority having jurisdiction in the premises for the appointment of
a conservator or receiver or liquidator or other similar official in any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding up or liquidation of its affairs, shall
have been entered against the Servicer and such decree or order shall have
41
remained in force undischarged or unstayed; or the Servicer shall admit in
writing its inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make any assignment for the benefit of its creditors or
voluntarily suspend payment of its obligations; then, in the event of any
Servicer Default, so long as the Servicer Default shall not have been remedied,
the Indenture Trustee, by notice then given in writing to the Servicer (a
"Termination Notice"), may terminate all but not less than all of the rights and
obligations (other than its obligations that have accrued up to the time of such
termination) of the Servicer as Servicer under this Agreement and in and to the
Receivables and the proceeds thereof. After receipt by the Servicer of a
Termination Notice, and on the date that a Successor Servicer shall have been
appointed by the Indenture Trustee pursuant to Section 6.02, all authority and
power of the Servicer under this Agreement shall pass to and be vested in a
Successor Servicer (a "Service Transfer") and, without limitation, the Indenture
Trustee is hereby authorized and empowered (upon the failure of the Servicer to
cooperate) to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, all documents and other instruments upon the
failure of the Servicer to execute or deliver such documents or instruments, and
to do and accomplish all other acts or things necessary or appropriate to effect
the purposes of such Service Transfer. The Servicer agrees to cooperate with the
Indenture Trustee and such Successor Servicer in effecting the termination of
the responsibilities and rights of the Servicer to conduct servicing hereunder,
including the transfer to such Successor Servicer of all authority of the
Servicer to service the Receivables provided for under this Agreement, including
all authority over all Collections which shall on the date of transfer be held
by the Servicer for deposit, or which have been deposited by the Servicer, in
the Collection Account, or which shall thereafter be received with respect to
the Receivables, and in assisting the Successor Servicer. The Servicer shall
promptly transfer its electronic records relating to the Receivables to the
Successor Servicer in such electronic form as the Successor Servicer may
reasonably request and shall promptly transfer to the Successor Servicer all
other records, correspondence and documents necessary for the continued
servicing of the Receivables in the manner and at such times as the Successor
Servicer shall reasonably request. To the extent that compliance with this
Section 5.01 shall require the Servicer to disclose to the Successor Servicer
information of any kind which the Servicer reasonably deems to be confidential,
the Successor Servicer shall be required to enter into such customary licensing
and confidentiality agreements as the Servicer shall deem necessary to protect
its interest;
(f) failure on the part of the Servicer to engage a back-up
Servicer with 180 days of the Series 200__-__ Closing Date.
Notwithstanding the foregoing, a delay in or failure of performance under
Section 6.01(a) for a period of five Business Days, under Section 6.01(b) for a
period of 60 days or under Section 6.01(d) for a period of 60 days, shall not
constitute a Servicer Default if such delay or failure could not be prevented by
the exercise of reasonable diligence by the Servicer and such delay or failure
was caused by an act of God or the public enemy, acts of declares or undeclared
war, public disorder, rebellion or sabotage, epidemics, landslides, lightning,
fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence
shall not relieve the Servicer from using its best efforts to perform its
respective obligations in a timely manner in accordance with the terms of this
Agreement and the Servicer shall provide the Indenture Trustee, any Agents, any
Enhancement Providers, the Transferor and Indenture with an Officers'
Certificate giving prompt notice of such failure or delay by it, together with a
description of its efforts so to
42
perform its obligations. The Servicer shall immediately notify the Indenture
Trustee in writing of any Servicer Default.
SECTION 6.02 INDENTURE TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR. (a) On
and after the receipt by the Servicer of a Termination Notice pursuant to
Section 6.01, the Servicer shall continue to perform all servicing functions
under this Agreement until the date specified in the Termination Notice or
otherwise specified by the Indenture Trustee in writing or, if no such date is
specified in such Termination Notice, or otherwise specified by the Indenture
Trustee, until a date mutually agreed upon by the Servicer and Indenture
Trustee. The Indenture Trustee shall as promptly as possible after the giving of
a Termination Notice appoint an Eligible Servicer as a successor servicer (the
"Successor Servicer"), subject to the consent of any Enhancement Providers and
any Agents, which consent shall not be unreasonably withheld, and such Successor
Servicer shall accept its appointment by a written assumption in a form
acceptable to the Indenture Trustee. In the event that a Successor Servicer has
not been appointed or has not accepted its appointment at the time when the
Servicer ceases to act as Servicer, the Indenture Trustee without further action
shall automatically be appointed the Successor Servicer. The Indenture Trustee
may delegate any of its servicing obligations to an affiliate or agent in
accordance with sections 3.01 and 5.07. Notwithstanding the above, the Indenture
Trustee shall, if it is legally unable so to act, petition a court of competent
jurisdiction to appoint any established institution having a net worth of not
less than $100,000,000 and whose regular business includes the servicing of
wholesale receivables as the Successor Servicer hereunder. The Indenture Trustee
shall immediately give notice to the Rating Agencies, any Enhancement Providers
and any Agents and upon the appointment of a Successor, Servicer.
(b) Upon its appointment, the Successor Servicer shall be the
successor in all respects to the Servicer with respect to servicing functions
under this Agreement and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Servicer by the terms and
provisions hereof (except that the Successor Servicer shall not be liable for
any liabilities incurred by the predecessor Servicer), and all references in
this Agreement to the Servicer shall be deemed to refer to the Successor
Servicer. Any Successor Servicer, by its acceptance of its appointment, will
automatically agree to be bound by the terms and provisions of any Enhancement
Agreement.
(c) In connection with any Termination Notice, the Trustee will
review any bids which it obtains from Eligible Servicers and shall be permitted
to appoint any Eligible Servicer submitting such a bid as a Successor Servicer
for servicing compensation not in excess of the Servicing Fee (provided that if
all such bids exceed the Servicing Fee the Transferor at its own expense shall
pay when due the amount of any compensation in excess of the Servicing Fee);
provided, however, that the Transferor shall be responsible for payment of all
other amounts in excess of the Monthly Servicing Fee, and that no such monthly
compensation paid out of Collections shall be in excess of the Monthly Servicing
Fee permitted to the Servicer. The holders of the Transferor Interest agree that
if Case Credit (or any Successor Servicer) is terminated as Servicer hereunder,
the portion of Collections to be paid to the Transferor shall be reduced by an
amount sufficient to pay Transferor's share of the compensation of the Successor
Servicer. Notwithstanding anything herein or in the Indenture to the contrary,
in no event shall the Indenture Trustee be liable for any Servicing Fee or for
any differential in the amount of the
43
Servicing Fee paid hereunder and the amount necessary to induce any Successor
Servicer to act as Successor Servicer under this Agreement and the transactions
set forth or provided for therein.
(d) All authority and power granted to the Successor Servicer under
this Agreement shall automatically cease and terminate on the Trust Termination
Date, and shall pass to and be vested in the Transferor and, without limitation,
the Transferor is hereby authorized and empowered to execute and deliver, on
behalf of the Successor Servicer, as attorney-in-fact or otherwise, all
documents and other instruments, and to do and accomplish all other acts or
things necessary or appropriate to effect the purposes of such transfer of
servicing rights. The Successor Servicer agrees to cooperate with the Transferor
in effecting the termination of the responsibilities and rights of the Successor
Servicer to conduct servicing on the Receivables. The Successor Servicer shall
transfer its electronic records relating to the Receivables to the Transferor in
such electronic form as the Transferor may reasonably request and shall transfer
all other records, correspondence and documents to the Transferor in the manner
and at such times as the Transferor shall reasonably request. To the extent that
compliance with this Section 6.02 shall require the Successor Servicer to
disclose to the Transferor information of any kind which the Successor Servicer
deems to be confidential, the Transferor shall be required to enter into such
customary licensing and confidentiality agreements as the Successor Servicer
shall deem necessary to protect its interests.
ARTICLE VII
TERMINATION
SECTION 7.01 TERMINATION OF AGREEMENT. This Agreement and the respective
obligations and responsibilities of the Transferor, the Servicer and the
Indenture Trustee created hereby shall terminate, except with respect to the
duties described in Sections 4.03 and 5.04, on the Trust Termination Date.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.01 AMENDMENT. (a) This Agreement may be amended from time to
time by the Servicer, the Transferor and the Issuer without the consent of any
of the Noteholders, provided that such action shall not, as evidenced by an
opinion of counsel for the Transferor, addressed and delivered to the Indenture
Trustee, adversely affect in any material respect the interests of any
Noteholders.
(b) This Agreement may also be amended from time to time by the
Servicer, the Transferor and the Issuer, with the consent of the Noteholders
evidencing not less than 66-2/3% of the aggregate unpaid 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 any Indenture Supplement or of modifying in any manner the rights
of the Noteholders; 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 or the amount
available under any Enhancement without
44
the consent of each affected Noteholder, (ii) change the definition of or the
manner of calculating the interest rate 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, (iv) adversely affect the
rating of any Series or Class by each Rating Agency without the consent of the
Noteholders 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 or (v)
reduce the percentage of Outstanding Dollar Principal Amount of Notes the
Noteholders of which are required to consent to any amendment without the
consent of each Noteholder. 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 Transferor, addressed and delivered to the Indenture
Trustee, adversely affect in any material respect the interests of any
Noteholder of such Series.
(c) Notwithstanding Sections 8.01(a) and 8.01(b) above, the
permitted activities of the Issuer set forth in Section 2.03 of the Trust
Agreement may not be significantly amended without the consent of Noteholders,
other than the Seller and its Affiliates as Noteholders, evidencing not less
than a majority of the Outstanding Dollar Principal Amount of the Notes held by
parties exclusive of the Transferor and its Affiliates.
(d) Promptly after the execution of any such amendment or consent
(other than an amendment pursuant to paragraph (a)), the Indenture Trustee shall
furnish notification of the substance of such amendment to each Noteholder, and
the Servicer shall furnish notification of the substance of such amendment to
each Rating Agency, each Agent and each Enhancement Provider.
(e) 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.
(f) Notwithstanding anything in this Section to the contrary, no
amendment may be made to this Agreement or any Indenture Supplement which would
adversely affect in any material respect the interests of any Enhancement
Provider without the consent of such Enhancement Provider.
SECTION 8.02 PROTECTION OF RIGHT, TITLE AND INTEREST TO RECEIVABLES AND
COLLATERAL SECURITY. (a) The Servicer shall cause this Agreement, all amendments
hereto and/or all financing statements and continuation statements and any other
necessary documents covering the Issuer's right, title, and interest in and to
the Issuer 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 Issuer hereunder to all property comprising the Receivables and
Collateral Security. The Servicer shall deliver to the Indenture Trustee
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 Transferor shall cooperate fully with the
Servicer in
45
connection with the obligations set forth above and will execute any and all
documents reasonably required to fulfill the intent of this Section 8.02(a).
(b) Within 30 days after the Transferor or the Servicer makes any
change in its name, identity or corporate structure which would make any
financing statement or continuation statement filed in accordance with Section
8.02 (a) seriously misleading within the meaning of Section 9-506 of the UCC,
the Transferor or the Servicer, as appropriate, shall give the Indenture Trustee
and any Agent notice of any such change and shall file such financing statements
or amendments as may be necessary to continue the perfection of the Issuer's
security interest in the Receivables, the Collateral Security and the proceeds
thereof.
(c) The Transferor and the Servicer will give the Indenture Trustee
and any Agent prompt written notice of any relocation of any office from which
it services Receivables or keeps records concerning the Receivables or of its
principal executive office and 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 Issuer's security
interest in the Receivables and the proceeds thereof. The Transferor and the
Servicer will at all times maintain each office from which it services
Receivables and its principal executive office within the United States of
America and shall at all times be organized under the laws of the States of the
United Sates of America.
(d) The Servicer will deliver to the Indenture Trustee, any Agent
and any Enhancement Provider: (i) upon the execution and delivery of each
amendment of this Agreement or any Indenture Supplement, an Opinion of Counsel
to the effect specified in Exhibit G-1; (ii) on each Addition Date on which any
Additional Accounts are to be included as the Accounts pursuant to Section
2.05(a) or (b), an Opinion of Counsel substantially in the form of Exhibit G-2.;
and (iii) on or before April 30 of each year, beginning with April 30, 200_, an
opinion of Counsel substantially in the form of Exhibit G-2.
SECTION 8.03 ACTIONS BY NOTEHOLDERS. (a) Wherever in this Agreement a
provision is made that an action may be taken or a Notice given by Noteholders,
such action or Notice may be taken or given by any Noteholder, unless such
provision requires a specific percentage of Noteholders.
(b) Any Notice, request, authorization, direction, consent, waiver
or other act by the Noteholder shall bind such Holder and every subsequent
Holder of such Note and of any Note issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done
or omitted to be done by Issuer, Owner Trustee, Transferor or Servicer in
reliance thereon, whether or not notation of such action is made upon such Note.
SECTION 8.04 NO BANKRUPTCY PETITION. Each of Issuer (with respect to
Transferor only), Servicer, each Enhancement Provider, if any, and Transferor
(with respect to Issuer only) severally and not jointly, hereby covenants and
agrees that it will not at any time institute against, solicit or join or
cooperate with or encourage any institution against Issuer or Transferor of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other
46
similar proceeding under any United States federal or state bankruptcy or
similar law. Nothing in this SECTION 8.04 shall preclude, or be deemed to estop,
any of the foregoing Persons from taking (to the extent such action is otherwise
permitted to be taken by such Person hereunder) or omitting to take any action
prior to such date in (i) any case or proceeding with respect to Issuer or
Transferor voluntarily filed or commenced by or on behalf of Issuer or
Transferor, respectively, under or pursuant to any such law or (ii) any
involuntary case or proceeding pertaining to Issuer or Transferor, as applicable
under or pursuant to any such law.
SECTION 8.05 RIGHTS OF INDENTURE TRUSTEE. Indenture Trustee shall have
herein the same rights, protections, indemnities and immunities as specified in
the Indenture.
SECTION 8.06 RIGHTS OF OWNER TRUSTEE. Each of the parties hereto
acknowledges and agrees that this Agreement is being executed and delivered by
The Bank of
New York not individually but solely and exclusively in its capacity
as Owner Trustee on behalf of CNH Wholesale Master Note Trust for the purpose
and with the intention of binding CNH Wholesale Master Note Trust. No
obligations or liabilities hereunder shall run against [ ] in its individual
capacity or against its properties or assets.
SECTION 8.07 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 8.08 NOTICES. All demands, notices, instructions, directions and
communications (collectively, "Notices") under this Agreement shall be in
writing and shall be deemed to have been duly given if sent via facsimile,
receipt confirmed, or personally delivered at or mailed by registered mail,
return receipt requested, to (i) in the case of CWRI, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ___________, facsimile no.:
[__________], (ii) in the case of Case Credit, [__________], Attention:
[__________]; facsimile no. [__________], and (iii) in the case of the Owner
Trustee, [__________], Attention: [__________]; facsimile no.: [__________]; or,
as to each party, at such other address as shall be designated by such party in
a written notice to each other party.
SECTION 8.09 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.
SECTION 8.10 ASSIGNMENT. Notwithstanding anything to the contrary
contained herein, except as provided in Section 5.02, this Agreement may not be
assigned by the Servicer.
SECTION 8.11 FURTHER ASSURANCES. The Transferor and the Servicer agree 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 Indenture Trustee
more fully to effect the purposes of this Agreement, including the execution and
authorization of any financing statements or
47
continuation statements relating to the Receivables for filing under the
provisions of the UCC of any applicable jurisdiction.
SECTION 8.12 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and
no delay in exercising, on the part of the Indenture Trustee or the Noteholders,
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 provided under this Agreement are
cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
SECTION 8.13 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 8.14 THIRD-PARTY BENEFICIARIES. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Except as otherwise expressly provided in this
Agreement, no other Person will have any right or obligation hereunder.
SECTION 8.15 RULE 144A INFORMATION. For so long as any of the Notes of
any Series or Class are "restricted securities" within the meaning of Rule
144(a)(3) under the Act, each of the Transferor, the Indenture Trustee, the
Owner Trustee, the Servicer and any Enhancement Providers agree to cooperate
with each other to provide to any Noteholder of such Series or Class and to any
prospective purchaser of Notes designated by such a Noteholder, upon the request
of such Noteholder or prospective purchaser, any information required to be
provided to such holder or prospective purchaser to satisfy the condition set
forth in Rule 144A(d)(4) under the Act.
SECTION 8.16 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 8.17 HEADINGS. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation or any
provision hereof.
48
IN WITNESS WHEREOF, the Transferor, the Servicer, the Indenture Trustee and
the Issuer have caused this
Transfer and Servicing Agreement to be duly executed
by their respective officers as of the day and year first above written.
CNH WHOLESALE MASTER NOTE TRUST,
Issuer
By: THE BANK OF
NEW YORK, not in its
individual capacity but solely as Owner Trustee
By:
----------------------------------------------
Name:
Title:
CNH WHOLESALE RECEIVABLES INC.,
Transferor
By:
----------------------------------------------
Name:
Title:
CASE CREDIT CORPORATION, Servicer
By:
----------------------------------------------
Name:
Title:
JPMORGAN CHASE BANK, Indenture Trustee
By:
----------------------------------------------
Name:
Title:
S-1