CNH EQUIPMENT TRUST 2000-B
CLASS A-1 6.66% ASSET BACKED NOTES
CLASS A-2 6.87% ASSET BACKED NOTES
CLASS A-3 6.88% ASSET BACKED NOTES
CLASS A-4 6.95% ASSET BACKED NOTES
CLASS B 7.14% ASSET BACKED NOTES
CNH CAPITAL RECEIVABLES INC.
UNDERWRITING AGREEMENT
----------------------
September 13, 2000
Chase Securities Inc.
As Representative of the
Several Underwriters,
000 Xxxx Xxxxxx Xxx Xxxx,
Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introductory. CNH Capital Receivables Inc., a Delaware
corporation (the "Seller"), proposes to cause CNH Equipment Trust 2000-B
(the "Trust") to issue and sell $107,000,000 principal amount of Class A-1
6.66% Asset Backed Notes (the "A-1 Notes"), $353,000,000 principal amount
of Class A-2 6.87% Asset Backed Notes (the "A-2 Notes"), $244,000,000
principal amount of Class A-3 6.88% Asset Backed Notes (the "A-3 Notes"),
$231,000,000 principal amount of Class A-4 6.95% Asset Backed Notes (the
"A-4 Notes") and $42,500,000 principal amount of Class B 7.14% Asset Backed
Notes (the "B Notes"; together with the A-1 Notes, the A-2 Notes, the A-3
Notes and the A-4 Notes, the "Notes"), to the several underwriters named in
Schedule I hereto (collectively, the "Underwriters"), for whom you are
acting as representative (the "Representative"). The assets of the Trust
include, among other things, a pool of retail installment sale contracts
and full payout leases (the "Receivables") secured by new or used
agricultural, construction or other equipment and the related security
interests in the equipment financed thereby. The Receivables were sold to
the Trust by the Seller. The Receivables are serviced for the Trust by Case
Credit Corporation, a Delaware corporation ("Case Credit"). Case Credit has
appointed New Holland Credit Company, LLC, a Delaware limited liability
company ("New Holland"), to act as subservicer of Receivables that were
originated by New Holland (the "NH Receivables"). The Notes will be issued
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pursuant to the Indenture to be dated as of September 1, 2000 (as amended
and supplemented from time to time, the "Indenture"), between the Trust
and Bank One, National Association (the "Indenture Trustee").
Simultaneously with the issuance and sale of the
Notes as contemplated in this Agreement, the Trust will issue 7.14% Asset
Backed Certificates (the "Certificates"), in an amount of $22,500,000 to
the Seller. The Notes and the Certificates are sometimes referred to herein
as the "Securities."
Capitalized terms used and not otherwise defined
herein shall have the meanings ascribed to them in the Sale and Servicing
Agreement to be dated as of September 1, 2000 (as amended and supplemented
from time to time, the "Sale and Servicing Agreement"), among the Trust,
the Seller and Case Credit, as servicer, or, if not defined therein, in the
Indenture or the Trust Agreement dated as of September 1, 2000 (as amended
and supplemented from time to time, the "Trust Agreement"), between the
Seller and The Bank of New York, as trustee (the "Trustee").
2. Representations and Warranties. The Seller, and with respect
to items (c), (d), (f), (g), (h), (i), (j), (k), (l), (m) and (p) as they
relate to Case Credit and/or New Holland, Case Credit, represents and warrants
to, and agrees with, each Underwriter as of the date hereof and as of the
Closing Date that:
(a) The Seller meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement (Registration No. 333-38040) on such Form, including a
preliminary basic prospectus and a preliminary prospectus supplement for
registration under the Act of the offering and sale of the Securities. The
Seller may have filed one or more amendments thereto as may have been
required to the date hereof, each of which amendments has been previously
furnished to you. The Seller will next file with the Commission one of the
following: (i) prior to the effectiveness of such registration statement,
an amendment thereto (including the form of final basic prospectus and the
form of final prospectus supplement relating to the Securities), (ii) after
effectiveness of such registration statement, a final basic prospectus and
a final prospectus supplement relating to the Securities in accordance with
Rules 430A and 424(b)(1) or (4) under the Act, or (iii) after the
effectiveness of such registration statement, a final basic prospectus and
a final prospectus supplement relating to the Securities in accordance with
Rules 415 and 424(b)(2) or (5). In the case of clauses (ii) and (iii), the
Seller has included in such registration statements, as amended at the
Effective Date, all information (other than Rule 430A Information) required
by the Act and the Rules thereunder to be included in the Prospectus with
respect to the Securities and the offering thereof. As filed, such
amendment and form of final prospectus supplement, or such final prospectus
supplement, shall include all Rule 430A Information, together with all
other such required information with respect to the Securities and the
offering thereof and, except to the extent that the Underwriters shall
agree in writing to a modification, shall be in all substantive respects in
the form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
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latest preliminary basic prospectus and preliminary prospectus supplement
that have previously been furnished to you) as the Seller has advised you,
prior to the Execution Time, will be included or made therein. If the
Registration Statement contains the undertaking specified by Regulation S-K
Item 512(a), the Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
For purposes of this Agreement, "Effective Time" means,
with respect to the registration statement, the date and time as of which
such registration statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission, and "Effective
Date" means the date of the Effective Time. "Execution Time" shall mean the
date and time that this Agreement is executed and delivered by the parties
hereto. Such registration statement, as amended at the Effective Time,
including all information deemed to be a part of such registration
statement as of the Effective Time pursuant to Rule 430A(b) under the Act,
and including the exhibits thereto and any material incorporated by
reference therein, are hereinafter referred to as the "Registration
Statement." "Basic Prospectus" shall mean the prospectus referred to above
contained in the Registration Statement at the Effective Date including any
Preliminary Prospectus Supplement, as most recently revised or amended and
filed with the Commission pursuant to Rule 424(b) or Rule 429. "Preliminary
Prospectus Supplement" shall mean any preliminary prospectus supplement to
the Basic Prospectus which describes the Securities and the offering
thereof and is used prior to filing of the Prospectus. "Prospectus" shall
mean the prospectus supplement relating to the Securities that is first
filed pursuant to Rule 424(b) after the Execution Time, together with the
Basic Prospectus or, if no filing pursuant to Rule 424(b) is required,
shall mean the prospectus supplement relating to the Securities, including
the Basic Prospectus, included in the Registration Statement at the
Effective Date. "Rule 430A Information" means information with respect to
the Securities and the offering of the Securities permitted to be omitted
from the Registration Statement when it becomes effective pursuant to Rule
430A. "Rule 415", "Rule 424", "Rule 430A" and "Regulation S-K" refer to
such rules or regulations under the Act. Any reference herein to the
Registration Statement, the Basic Prospectus, a Preliminary Prospectus
Supplement or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, such Preliminary
Prospectus Supplement or the Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus Supplement or the Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement, or the issue date
of the Basic Prospectus, any Preliminary Prospectus Supplement or the
Prospectus, as the case may be, deemed to be incorporated therein by
reference.
(b) On the Effective Date and on the date of this
Agreement, the Registration Statement did or will, and, when the Prospectus
is first filed (if required) in accordance with Rule 424(b) and on the
Closing Date (as defined below), the Prospectus (and any supplements
thereto) will, comply in all material respects with the applicable
requirements of the Act and the Trust Indenture Act of 1939, as amended
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(the "Trust Indenture Act"), and the respective rules and regulations of
the Commission thereunder (the "Rules and Regulations"); on the Effective
Date, the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Prospectus, if not filed
pursuant to Rule 424(b), did not or will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Prospectus (together
with any supplement thereto) will not include any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Seller makes no
representation or warranty as to the information contained in or omitted
from the Registration Statement, the Prospectus (or any supplement thereto)
in reliance upon and in conformity with information furnished in writing to
the Seller by any Underwriter through you specifically for use in
connection with preparation of the Registration Statement, the Prospectus
(or any supplement thereto), it being agreed that the only such information
consists of the statements in the second and sixth paragraphs (concerning
initial offering prices, concessions and reallowances) and in the fourth
and eighth paragraphs (concerning overallotment, stabilizing transactions,
syndicate covering transactions and penalty bids) under the heading
"Underwriting" in the Prospectus Supplement. As of the Closing Date, the
Seller's representations and warranties in the Sale and Servicing Agreement
and the Trust Agreement will be true and correct in all material respects.
(c) Each of Case Credit and the Seller has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware with corporate power and authority
to own its properties and conduct its business as described in the
Registration Statement and to enter into and perform its obligations under
this Agreement, the Sale and Servicing Agreement, the Administration
Agreement, the Case Purchase Agreement and, in the case of the Seller, the
NH Purchase Agreement and has obtained all necessary licenses and approvals
in each jurisdiction in which failure to qualify or to obtain such license
or approval would render any Receivable unenforceable by the Seller, the
Trustee or the Indenture Trustee.
(d) New Holland is validly existing as a limited
liability company in good standing under the laws of the State of Delaware
with power and authority to own its properties and conduct its business as
such properties are currently owned and such business is currently
conducted and to enter into and perform its obligations under the NH
Purchase Agreement and has obtained all necessary licenses and approvals in
each jurisdiction in which failure to qualify or to obtain such license or
approval would render any NH Receivable unenforceable by the Seller, the
Trustee or the Indenture Trustee.
(e) On the Closing Date, upon delivery thereof, the
Liquidity Receivables Purchase Agreement, the Case Purchase Agreement, the
NH Purchase Agreement, the Trust Agreement and the Sale and Servicing
Agreement will have been duly authorized, executed and delivered by the
Seller, and will be legal, valid and binding obligations of the Seller
enforceable against the Seller in accordance with their terms, subject to
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the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally and to the
effect of general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
considered in a proceeding in equity or at law).
(f) On the Closing Date, upon delivery thereof, the
Liquidity Receivables Purchase Agreement, the Case Purchase Agreement, the
Sale and Servicing Agreement and the Administration Agreement will have
been duly authorized, executed and delivered by Case Credit and will be
legal, valid and binding obligations of Case Credit enforceable against
Case Credit in accordance with their terms, subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar
law affecting creditors' rights generally and to the effect of general
principles of equity, including concepts of materiality, reasonableness,
good faith and fair dealing (regardless of whether considered in a
proceeding in equity or at law).
(g) On the Closing Date, upon delivery thereof, the NH
Purchase Agreement will have been duly authorized, executed and delivered
by New Holland and will be a legal, valid and binding obligation of New
Holland enforceable against New Holland in accordance with its terms,
subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights
generally and to the effect of general principles of equity, including
concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at law).
(h) This Agreement has been duly authorized, executed and
delivered by each of the Seller and Case Credit.
(i) The execution, delivery and performance of this
Agreement, the Liquidity Receivables Purchase Agreement, the Case Purchase
Agreement, the NH Purchase Agreement, the Trust Agreement, the
Administration Agreement, the Sale and Servicing Agreement and the other
documents and certificates delivered in connection therewith (such
agreements, documents and certificates, excluding this Agreement, being,
collectively, the "Basic Documents"), as applicable, by Case Credit and the
Seller, and the consummation of the transactions contemplated thereby, will
not conflict with, or result in a breach, violation or acceleration of, or
constitute a default under, the certificate of incorporation or by-laws of
Case Credit or the Seller or the limited liability agreement of New Holland
or any material agreement or instrument to which Case Credit, New Holland
or the Seller is a party or by which Case Credit, New Holland or the Seller
is bound or to which any of the properties of Case Credit, New Holland or
the Seller is subject.
(j) The execution, delivery and performance of this
Agreement and the Basic Documents, as applicable, by Case Credit, New
Holland and the Seller, and the consummation of the transactions
contemplated thereby, will not violate any statute, rule or regulation or
any order of any governmental agency or body or any court having
jurisdiction over Case Credit, New Holland or the Seller or any of their
properties.
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(k) There are no actions, proceedings or investigations
pending or threatened before any court, administrative agency, or other
tribunal (1) asserting the invalidity of the Trust or any of the Basic
Documents, (2) seeking to prevent the consummation of any of the
transactions contemplated by any of the Basic Documents or the execution
and delivery thereof, or (3) that could reasonably be expected to
materially and adversely affect the performance by Case Credit, New Holland
or the Seller, as applicable, of its obligations under, or the validity or
enforceability of, this Agreement or the Basic Documents.
(l) On the Closing Date, upon delivery thereof, each of
the Case Assignment dated as of the Closing Date from Case Credit to the
Seller and the assignments of Receivables from Case Credit to the Seller
pursuant to the Liquidity Receivables Purchase Agreement has been duly
authorized, executed and delivered by Case Credit.
(m) On the Closing Date, upon delivery thereof, the NH
Assignment dated as of the Closing Date from New Holland to the Seller has
been duly authorized, executed and delivered by New Holland.
(n) When the Notes have been duly executed and delivered
by the Trustee, authenticated by the Indenture Trustee in accordance with
the Indenture and delivered and paid for pursuant to this Agreement, the
Notes will be duly issued and entitled to the benefits and security
afforded by the Indenture, subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally and to the effect of general principles of
equity, including concepts of materiality, reasonableness, good faith and
fair dealing (regardless of whether considered in a proceeding in equity or
at law).
(o) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required for
the consummation of the transactions contemplated by this Agreement or the
Basic Documents, except such as are required and have been or will be
obtained and made on or prior to the Closing Date under the Securities Act
and such as may be required under state securities laws.
(p) Since June 30, 2000, there has not been any material
adverse change in the business, results of operations, condition (financial
or otherwise), prospects, or material properties or assets of the Seller,
Case Credit, New Holland or Case Corporation.
(q) The computer tape of the Receivables created as of
August 31, 2000, and made available to the Representative by the Servicer,
was complete and accurate in all material respects as of the date thereof
and includes a description of the Receivables that are described in the
Assignment.
3. Purchase, Sale, and Delivery of the Notes. On the
basis of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the Seller agrees
to cause the Trust to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Trust, the
respective Classes of Notes in the respective principal amounts and at the
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respective purchase prices set forth opposite the name of such Underwriter
in Schedule I hereto. Delivery of and payment for the Notes shall be made
at the office of Xxxxx, Xxxxx & Xxxxx, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000 (or such other place as the Seller and the Representative
shall agree), on September 21, 2000 (the "Closing Date"). Delivery of the
Notes shall be made against payment of the purchase price in immediately
available funds drawn to the order of the Seller. The Notes to be so
delivered will be initially represented by one or more Notes registered in
the name of Cede & Co., the nominee of The Depository Trust Company
("DTC"). The interests of beneficial owners of the Notes will be
represented by book entries on the records of DTC and participating members
thereof. Definitive Notes will be available only under limited
circumstances.
4. Offering by Underwriters. It is understood that the
Underwriters propose to offer the Notes for sale to the public (which may
include selected dealers), as set forth in the Prospectus.
5. Covenants of the Seller. The Seller covenants and agrees
with each of the Underwriters that:
(a) The Seller will use its best efforts to cause the
Registration Statement, and any amendment thereto, if not effective at the
Execution Time, to become effective. Prior to the termination of the
offering of the Notes, the Seller will not file any amendment of the
Registration Statement or supplement to the Prospectus unless the Seller
has furnished you a copy for your review prior to filing and will not file
any such proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, if the Registration Statement has become
or becomes effective pursuant to Rule 430A, or filing of the Prospectus is
otherwise required under Rule 424(b), the Seller will file the Prospectus,
properly completed, and any supplement thereto, with the Commission
pursuant to and in accordance with the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence satisfactory to
you of such timely filing.
(b) The Seller will advise you promptly of any proposal
to amend or supplement the Registration Statement as filed, or the related
Prospectus and will not effect such amendment or supplement without your
consent, which consent will not unreasonably be withheld; the Seller will
also advise you promptly of any request by the Commission for any amendment
of or supplement to the Registration Statement or the Prospectus or for any
additional information; and the Seller will also advise you promptly of the
effectiveness of the Registration Statement and any amendment thereto, when
the Prospectus, and any supplement thereto, shall have been filed with the
Commission pursuant to Rule 424(b) and of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or the institution or threat of any proceeding for that purpose, and the
Seller will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible the lifting of any issued stop
order.
(c) If, at any time when a prospectus relating to the
Notes is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
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circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Registration Statement or supplement the
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Seller promptly will notify you and will prepare and
file, or cause to be prepared and filed, with the Commission, subject to
the second sentence of paragraph (a) of this Section 5, an amendment or
supplement that will correct such statement or omission, or effect such
compliance. Any such filing shall not operate as a waiver or limitation on
any right of any Underwriter hereunder.
(d) As soon as practicable, but not later than fourteen
months after the original effective date of the Registration Statement, the
Seller will cause the Trust to make generally available to Noteholders an
earnings statement of the Trust covering a period of at least twelve months
beginning after the Effective Date of the Registration Statement that will
satisfy the provisions of Section 11(a) of the Act.
(e) The Seller will furnish to the Underwriters copies of
the Registration Statement (one of which will be signed and will include
all exhibits), each related preliminary prospectus (including the
Preliminary Prospectus Supplement), the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in
such quantities as the Underwriters request.
(f) The Seller will arrange for the qualification of the
Notes for sale under the laws of such jurisdictions in the United States as
you may reasonably designate and will continue such qualifications in
effect so long as required for the distribution.
(g) For a period from the date of this Agreement until
the retirement of the Notes, or until such time as the Underwriters shall
cease to maintain a secondary market in the Notes, whichever occurs first,
the Seller will deliver to you the annual statements of compliance and the
annual independent certified public accountants' reports furnished to the
Trustee or the Indenture Trustee pursuant to the Sale and Servicing
Agreement, as soon as such statements and reports are furnished to the
Trustee or the Indenture Trustee.
(h) So long as any of the Notes is outstanding, the
Seller will furnish to you (i) as soon as practicable after the end of the
fiscal year all documents required to be distributed to Noteholders or
filed with the Commission pursuant to the Exchange Act or any order of the
Commission thereunder and (ii) from time to time, any other information
concerning the Seller filed with any government or regulatory authority
which is otherwise publicly available, as you may reasonably request.
(i) On or before the Closing Date, the Seller shall cause
the computer records of the Seller and Case Credit relating to the
Receivables to be marked to show the Trust's absolute ownership of the
Receivables, and from and after the Closing Date neither the Seller nor
Case Credit shall take any action inconsistent with the Trust's ownership
of such Receivables, other than as permitted by the Sale and Servicing
Agreement.
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(j) To the extent, if any, that the rating provided with
respect to the Notes by the rating agency or agencies that initially rate
the Notes is conditional upon the furnishing of documents or the taking of
any other actions by the Seller, the Seller shall furnish such documents
and take any such other actions.
(k) For the period beginning on the date of this
Agreement and ending seven days after the Closing Date, unless waived by
the Underwriters, none of the Seller, Case Credit or any trust originated,
directly or indirectly, by the Seller or Case Credit will offer to sell or
sell notes (other than the Notes and commercial paper notes offered
pursuant to Case Credit's existing asset-backed commercial paper program)
collateralized by, or certificates (other than the Certificates) evidencing
an ownership interest in, receivables generated pursuant to retail
agricultural or construction equipment installment sale contracts.
(l) On or prior to each Subsequent Transfer Date, to
deliver to the Representative (i) a duly executed Subsequent Transfer
Assignment including a schedule of the Subsequent Receivables to be
transferred to the Trust on such Subsequent Transfer Date, (ii) a copy of
the Opinions of Counsel with respect to the transfer of the Subsequent
Receivables to be transferred to the Trust on such Subsequent Transfer Date
to be delivered to (A) the Rating Agencies and (B) the Trustee and the
Indenture Trustee pursuant to Section 2.2(b)(xiv) of the Sale and Servicing
Agreement, (iii) a copy of the letter from a firm of independent nationally
recognized certified public accountants to be delivered to the Trustee and
the Indenture Trustee pursuant to Section 2.2(b)(xv) of the Sale and
Servicing Agreement, and (iv) a copy of the officer's Certificate delivered
to the Indenture Trustee and the Trustee pursuant to Section 2.2(b)(xvi) of
the Sale and Servicing Agreement.
(m) The Seller will enter into, and will cause the Issuer
to enter into, each Basic Document to which this Agreement and each Basic
Document contemplates the Seller and/or the Issuer will be a party on or
prior to the Closing Date.
6. Payment of Expenses. The Seller will pay all expenses
incident to the performance of its obligations under this Agreement,
including (i) the printing and filing of the Registration Statement as
originally filed and of each amendment thereto, (ii) the fees of the
Indenture Trustee and its counsel, (iii) the preparation, issuance and
delivery of the Notes to the Underwriters, (iv) the fees and disbursements
of Case Credit's and the Seller's counsel and accountants, (v) the
qualification of the Notes under securities laws in accordance with the
provisions of Section 5(f), including filing fees and the fees and
disbursements of counsel for you in connection therewith and in connection
with the preparation of any blue sky or legal investment survey, (vi) the
printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, (vii) the
printing and delivery to the Underwriters of copies of any blue sky or
legal investment survey prepared in connection with the Notes, (viii) any
fees charged by rating agencies for the rating of the Notes and (ix) the
fees and expenses, if any, incurred with respect to any filing with the
National Association of Securities Dealers, Inc.
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7. Conditions of the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for the Notes will be
subject to the accuracy of the representations and warranties on the part
of Case Credit and the Seller herein, to the accuracy of the statements of
officers of Case Credit and the Seller made pursuant to the provisions
hereof, to the performance by Case Credit and the Seller of their
respective obligations hereunder and to the following additional conditions
precedent:
(a) If the Registration Statement has not become
effective prior to the Execution Time, unless the Underwriters agree in
writing to a later time, the Registration Statement shall have become
effective not later than (i) 6:00 p.m. New York City time on the date of
determination of the public offering price, if such determination occurred
at or prior to 3:00 p.m. New York City time on such date or (ii) 12:00 noon
on the business day following the day on which the public offering price
was determined, if such determination occurred after 3:00 p.m. New York
City time on such date.
(b) The Prospectus and any supplements thereto shall have
been filed (if required) with the Commission in accordance with the Rules
and Regulations and Section 5(a) hereof, and prior to the Closing Date, no
stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Seller or you, shall be contemplated
by the Commission or by any authority administering any state securities or
blue sky law.
(c) On or prior to the Closing Date, you shall have
received a letter or letters, dated as of the date of the Closing Date, of
Xxxxxx Xxxxxxxx & Co., independent public accountants, substantially in the
form of the drafts to which you have previously agreed and otherwise in
form and substance satisfactory to you and your counsel.
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly the business
or properties of the Trust, the Seller, Case Credit, Case Corporation or
CNH Global N.V. which, in the judgment of the Underwriters, materially
impairs the investment quality of the Notes or makes it impractical or
inadvisable to market the Notes; (ii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange; (iii) any
suspension of trading of any securities of Case Corporation or CNH Global
N.V. on any exchange or in the over-the-counter market which, in the
judgment of the Underwriters, makes it impractical or inadvisable to market
the Notes; (iv) any banking moratorium declared by Federal or New York
authorities; or (v) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress, or
any other substantial national or international calamity or emergency if,
in the judgment of the Underwriters, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment for the
Notes.
(e) You shall have received an opinion or opinions of
counsel to Case Credit and the Seller, addressed to you, as Representative
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of the several Underwriters, the Trustee and the Indenture Trustee, dated
the Closing Date and satisfactory in form and substance to you and your
counsel, to the effect that:
(i) Each of Case Credit and the Seller is an
existing corporation in good standing under the laws of the State
of Delaware with corporate power and authority to own its
properties and conduct its business as described in the Prospectus
and to enter into and perform its obligations under this
Agreement, the Sale and Servicing Agreement, the Administration
Agreement, the Case Purchase Agreement and, in the case of the
Seller, the NH Purchase Agreement and has obtained all necessary
licenses and approvals in each jurisdiction in which failure to
qualify or to obtain such license or approval would render any
Receivable unenforceable by the Seller, the Trustee or the
Indenture Trustee.
(ii) The direction by the Seller to the Trustee
to authenticate the Certificates has been duly authorized by the
Seller and, when the Certificates have been duly executed,
authenticated and delivered by the Trustee in accordance with the
Trust Agreement, the Certificates will be legally issued, fully
paid and non-assessable subject to the obligations of the Seller
under Section 2.10 of the Trust Agreement and entitled to the
benefits of the Trust Agreement.
(iii) The direction by Case Credit to the
Indenture Trustee to authenticate the Notes has been duly
authorized by Case Credit, and, when the Notes have been duly
executed and delivered by the Trustee, authenticated by the
Indenture Trustee in accordance with the Indenture and delivered
and paid for pursuant to this Agreement, the Notes will be duly
issued and entitled to the benefits and security afforded by the
Indenture, subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally and to the effect of general
principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
considered in a proceeding in equity or at law).
(iv) The Liquidity Receivables Purchase
Agreement, the Case Purchase Agreement, the NH Purchase Agreement,
the Trust Agreement and the Sale and Servicing Agreement have been
duly authorized, executed and delivered by the Seller, and are
legal, valid and binding obligations of the Seller enforceable
against the Seller in accordance with their terms, subject to the
effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally
and to the effect of general principles of equity, including
concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether considered in a proceeding in
equity or at law).
(v) This Agreement has been duly authorized,
executed and delivered by each of the Seller and Case Credit.
11
(vi) The Liquidity Receivables Purchase
Agreement, the Case Purchase Agreement, the Sale and Servicing
Agreement and the Administration Agreement have been duly
authorized, executed and delivered by Case Credit and are legal,
valid and binding obligations of Case Credit enforceable against
Case Credit in accordance with their terms, subject to the effect
of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally
and to the effect of general principles of equity, including
concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether considered in a proceeding in
equity or at law).
(vii) The execution, delivery and performance of
this Agreement and the Basic Documents, as applicable, by Case
Credit and the Seller, and the consummation of the transactions
contemplated thereby, will not conflict with, or result in a
breach, violation or acceleration of, or constitute a default
under, the certificate of incorporation or by-laws of Case Credit
or the Seller or any material agreement or instrument known to
such counsel to which Case Credit or the Seller is a party or by
which Case Credit or the Seller is bound or to which any of the
properties of Case Credit or the Seller is subject.
(viii) The execution, delivery and performance
of this Agreement and the Basic Documents, as applicable, by Case
Credit and the Seller, and the consummation of the transactions
contemplated thereby, will not violate any statute, rule or
regulation or, to such counsel's knowledge, any order of any
governmental agency or body or any court having jurisdiction over
Case Credit or the Seller or any of their properties.
(ix) There are no actions, proceedings or
investigations pending or, to the best of such counsel's
knowledge, threatened before any court, administrative agency, or
other tribunal (1) asserting the invalidity of the Trust or any of
the Basic Documents, (2) seeking to prevent the consummation of
any of the transactions contemplated by any of the Basic Documents
or the execution and delivery thereof, or (3) that could
reasonably be expected to materially and adversely affect the
performance by Case Credit or the Seller, as applicable, of its
obligations under, or the validity or enforceability of, this
Agreement or the Basic Documents.
(x) Each of the Case Assignment dated as of the
Closing Date from Case Credit to the Seller and the assignments of
Case Receivables from Case Credit to the Seller pursuant to the
Liquidity Receivables Purchase Agreement have been duly
authorized, executed and delivered by Case Credit.
(xi) Immediately prior to the transfer of the
Receivables to the Trust, the Seller's interest in the
Receivables, the security interests in the Financed Equipment
securing the Receivables and the proceeds of each of the foregoing
was perfected upon the execution and delivery of the Basic
Documents and the filing of a UCC financing statement with the
Secretary of State of the State of Illinois and constituted a
perfected first priority interest therein. If a court concludes
that the transfer of the Receivables from the Seller to the Trust
is a sale, the interest of the Trust in the Receivables, the
security interests in the Financed Equipment securing the
12
Receivables and the proceeds of each of the foregoing will be
perfected upon the execution and delivery of the Basic
Documents and the filing of a UCC financing statement
with the Secretary of State of the State of Illinois and will
constitute a first priority perfected interest therein. If a court
concludes that such transfer is not a sale, the Sale and Servicing
Agreement constitutes a grant by the Seller to the Trust of a
valid security interest in the Receivables, the security interests
in the Financed Equipment securing the Receivables and the
proceeds of each of the foregoing, which security interest will be
perfected upon the execution and delivery of the Basic Documents
and the filing of the UCC financing statement with the Secretary
of State of the State of Illinois referred to above and will
constitute a first priority perfected security interest therein.
No filing or other action, other than the execution and delivery
of the Basic Documents and the filing of the UCC financing
statement with the Secretary of State of the State of Illinois
referred to above, is necessary to perfect and maintain the
interest or the security interest of the Trust in the Receivables,
the security interests in the Financed Equipment securing the
Receivables and the proceeds of each of the foregoing against
third parties.
(xii) Assuming that Case Credit's standard
procedures have been followed with respect to the creation of the
Case Receivables, Case Credit obtains from each Dealer either an
absolute ownership interest or a security interest in the Case
Receivables originated by that Dealer, which ownership or security
interest (whichever it may be) is perfected and prior to any other
interests that may be perfected only by possession of a Case
Receivable or the filing of a financing statement in accordance
with the UCC. Assuming that Case Credit's standard procedures with
respect to the perfection of a security interest in the equipment
financed by Case Credit pursuant to retail agricultural,
construction or other equipment installment sale contracts in the
ordinary course of Case Credit's business have been followed with
respect to the perfection of security interests in the Financed
Equipment, Case Credit has acquired either a perfected security
interest in the Financed Equipment or a perfected security
interest in the Case Receivables, which indirectly provides Case
Credit with a security interest in the Financed Equipment that is
perfected as against the obligor's creditors; provided, however,
that such opinion need not address any equipment that is subject
to a certificate of title statute.
(xiii) The Indenture constitutes a grant by the
Trust to the Indenture Trustee of a valid security interest in the
Receivables, the security interests in the Financed Equipment
securing the Receivables and the proceeds of each of the
foregoing.
(xiv) The security interest granted under the
Indenture will be perfected upon the execution and delivery of the
Basic Documents and the filing of a UCC financing statement with
the Delaware Secretary of State and will constitute a first
priority perfected security interest therein. No filing or other
action, other than the execution and delivery of the Basic
Documents and the filing of the UCC financing statement with the
Delaware Secretary of State referred to above, is necessary to
perfect and maintain the security interest of the Indenture
13
Trustee in the Receivables, the security interests in the Financed
Equipment securing the Receivables and the proceeds of each of the
foregoing against third parties.
(xv) The Receivables are chattel paper as defined
in the UCC.
(xvi) The Sale and Servicing Agreement, the
Trust Agreement, the Indenture, the Administration Agreement and
the Purchase Agreements conform in all material respects with the
description thereof contained in the Prospectus and any supplement
thereto.
(xvii) The statements in the Basic Prospectus
under the headings "Risk Factors-Possible liability for third
party claims may cause payment delays or losses" and "Legal
Aspects of the Receivables", to the extent they constitute matters
of law or legal conclusions with respect thereto, are correct in
all material respects.
(xviii) The statements contained in the
Prospectus and any supplement thereto under the headings
"Description of the Notes", "Description of the Certificates",
"Administration Information About the Securities" and "Description
of the Transaction Agreements", insofar as such statements
constitute a summary of the Notes, the Certificates, the
Indenture, the Administration Agreement, the Sale and Servicing
Agreement and the Trust Agreement, fairly present the matters
referred to therein.
(xix) No consent, approval, authorization or
order of, or filing with, any governmental agency or body or any
court is required for the consummation of the transactions
contemplated by this Agreement or the Basic Documents, except such
as are required and have been obtained and made under the
Securities Act and such as may be required under state securities
laws (it being understood that this opinion will be given only
with respect to such consents, approvals, authorizations, orders
and filings that, in such counsel's experience, are customarily
applicable in transactions of the type contemplated by this
Agreement and the Basic Documents).
(xx) The Trust Agreement is not required to be
qualified under the Trust Indenture Act and the Trust is not
required to be registered under the Investment Company Act of
1940, as amended (the "Investment Company Act").
(xxi) The Indenture has been duly qualified under
the Trust Indenture Act.
(xxii) The Seller is not, and will not as a
result of the offer and sale of the Notes as contemplated in the
Prospectus and this Agreement or as a result of the issuance of
the Certificates become, an "investment company" as defined in the
Investment Company Act or a company "controlled by" an "investment
company" within the meaning of the Investment Company Act.
14
(xxiii) The Registration Statement has become
effective under the Act, any required filing of the Basic
Prospectus, any preliminary Basic Prospectus, any Preliminary
Prospectus Supplement and the Prospectus and any supplements
thereto pursuant to Rule 424(b) have been made in the manner and
within the time period required by Rule 424(b), and, to the best
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending
or contemplated under the Act; and the Registration Statement and
the Prospectus, and each amendment or supplement thereto, as of
the Closing Date (in the case of the Registration Statement) and
as of their respective issue dates (in the case of the Prospectus
and each supplement thereto), complied as to form in all material
respects with the requirements of the Act, the Trust Indenture Act
and the Rules and Regulations.
(xxiv) The Trust has been duly formed and is
validly existing as a statutory business trust under the laws of
the State of Delaware, with full power and authority to execute,
deliver and perform its obligations under the Sale and Servicing
Agreement, the Indenture, the Administration Agreement, the Notes
and the Certificates.
(xxv) The Indenture, the Sale and Servicing
Agreement and the Administration Agreement have been duly
authorized and, when duly executed and delivered by the Trustee,
will constitute the legal, valid and binding obligations of the
Trust, enforceable against the Trust in accordance with their
terms, subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally and to the effect of general
principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
considered in a proceeding in equity or at law).
The opinions of counsel to Case Credit and the Seller
shall also state that such counsel has examined various documents and
participated in conferences with representatives of Case Credit, the
Seller, their counsel and their accountants and with representatives of the
Underwriters, at which time the contents of the Registration Statement and
the Prospectus and related matters were discussed. However, except as
specifically noted above, such counsel need not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in
the Registration Statement and the Prospectus. Subject to the foregoing,
such counsel shall advise you that no facts have come to their attention
that cause them to believe that the Registration Statement or the
Prospectus, at the Closing Date, contains any untrue statement of a
material fact or omits to state any material fact necessary in order to
make (x) the statements in the Registration Statement not misleading and
(y) the statements in the Prospectus not misleading in the light of the
circumstances under which they were made (in each case except for the
financial statements and related schedules or other financial or
statistical data included or incorporated by reference therein, as to which
such counsel will not be called upon to express a belief).
15
Such counsel shall also opine as to such other matters as
the Underwriters may reasonably request.
(f) You shall have received an opinion or opinions of
counsel to New Holland, addressed to you, as Representative of the several
Underwriters, the Trustee and the Indenture Trustee, dated the Closing Date
and satisfactory in form and substance to you and your counsel, to the
effect that:
(i) New Holland is an existing limited liability
company in good standing under the laws of the State of Delaware
with corporate power and authority to own its properties and
conduct its business as such properties are currently owned and
such business is currently conducted and to enter into and perform
its obligations under the NH Purchase Agreement and has obtained
all necessary licenses and approvals in each jurisdiction in which
failure to qualify or to obtain such license or approval would
render any NH Receivable unenforceable by the Seller, the Trustee
or the Indenture Trustee.
(ii) The NH Purchase Agreement has been duly
authorized, executed and delivered by New Holland, and is a legal,
valid and binding obligation of New Holland enforceable against
New Holland in accordance with its terms, subject to the effect of
any applicable bankruptcy, insolvency, reorganization, moratorium
or similar law affecting creditors' rights generally and to the
effect of general principles of equity, including concepts of
materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at
law).
(iii) The execution, delivery and performance of
the NH Purchase Agreement by New Holland, and the consummation of
the transactions contemplated thereby, will not conflict with, or
result in a breach, violation or acceleration of, or constitute a
default under, the limited liability company agreement of New
Holland or any material agreement or instrument known to such
counsel to which New Holland is a party or by which New Holland is
bound or to which any of the properties of New Holland is subject.
(iv) The execution, delivery and performance of
the NH Purchase Agreement by New Holland, and the consummation of
the transactions contemplated thereby, will not violate any
statute, rule or regulation or, to such counsel's knowledge, any
order of any governmental agency or body or any court having
jurisdiction over New Holland or any of its properties.
(v) There are no actions, proceedings or
investigations pending or, to the best of such counsel's
knowledge, threatened before any court, administrative agency, or
other tribunal (1) asserting the invalidity of the NH Purchase
Agreement, (2) seeking to prevent the consummation of any of the
transactions contemplated by any of the NH Purchase Agreement or
the execution and delivery thereof, or (3) that could reasonably
16
be expected to materially and adversely affect the performance by
New Holland of its obligations under, or the validity or
enforceability of the NH Purchase Agreement.
(vi) The NH Assignment dated as of the Closing
Date from New Holland to the Seller has been duly authorized,
executed and delivered by New Holland.
(vii) Assuming that New Holland's standard
procedures have been followed with respect to the creation of the
NH Receivables, New Holland obtains from each Dealer either an
absolute ownership interest or a security interest in the NH
Receivables originated by that Dealer, which ownership or security
interest (whichever it may be) is perfected and prior to any other
interests that may be perfected only by possession of an NH
Receivable or the filing of a financing statement in accordance
with the UCC. Assuming that New Holland's standard procedures with
respect to the perfection of a security interest in the equipment
financed by New Holland pursuant to retail agricultural,
construction or other equipment installment sale contracts in the
ordinary course of New Holland's business have been followed with
respect to the perfection of security interests in the Financed
Equipment securing the NH Receivables, New Holland has acquired
either a perfected security interest in such Financed Equipment or
a perfected security interest in the NH Receivables, which
indirectly provides New Holland with a security interest in such
Financed Equipment that is perfected as against the obligor's
creditors; provided, however, that such opinion need not address
any equipment that is subject to a certificate of title statute.
(viii) The NH Receivables are chattel paper as
defined in the UCC.
(ix) Upon the filing of UCC financing statements
with the Secretary of State of the Commonwealth of Pennsylvania
and the county prothonotary of Lancaster County, Pennsylvania, the
security interest in the NH Receivables, the Financed Equipment
securing the NH Receivables and the proceeds of each of the
foregoing granted by New Holland to the Seller under the NH
Purchase Agreement will be perfected under the UCC and will
constitute a first priority perfected security interest in the NH
Receivables, the Financed Equipment securing the NH Receivables
and the proceeds of each of the foregoing.
Such counsel shall also opine as to such other matters as
the Underwriters may reasonably request.
(g) You shall have received an opinion of Xxxxx, Xxxxx &
Xxxxx, special Illinois tax counsel for the Trust, addressed to you, as
Representative of the several Underwriters, and the Indenture Trustee,
dated the Closing Date and satisfactory in form and substance to you and
your counsel, to the effect that the statements in the Basic Prospectus
under the headings "Illinois State Tax Consequences" and in the Prospectus
Supplement under the heading "Summary of Terms -- Tax Status" (to the
extent relating to Illinois tax consequences), accurately describe the
material Illinois tax consequences to holders of the Securities. Xxxxx,
Xxxxx & Xxxxx, in its capacity as special Illinois counsel to Case Credit
17
and the Seller, shall have delivered an opinion with respect to the
perfection and priority of the respective interests of the Seller and the
Trust in the Receivables under Illinois Law.
(h) You shall have received an opinion of Xxxxxxx Xxxxx
Xxxxxxx & Ingersoll, LLP, special Pennsylvania tax counsel for the Trust,
addressed to you, as Representative of the several Underwriters, and the
Indenture Trustee, dated the Closing Date and satisfactory in form and
substance to you and your counsel.
(i) You shall have received an opinion addressed to you,
as Representative of the several Underwriters, of Xxxxx, Xxxxx & Xxxxx, in
its capacity as Federal tax and ERISA counsel for the Trust, to the effect
that the statements in the Basic Prospectus under the heading "U.S. Federal
Income Tax Consequences" and in the Prospectus Supplement under the heading
"Summary of Terms -- Tax Status" (to the extent relating to Federal income
tax consequences) accurately describe the material Federal income tax
consequences to holders of the Securities, and the statements in the Basic
Prospectus under the heading "ERISA Considerations," and in the Prospectus
Supplement under the headings "Summary of Terms -- ERISA Considerations"
and "ERISA Considerations," to the extent that they constitute statements
of matters of law or legal conclusions with respect thereto, have been
prepared or reviewed by such counsel and accurately describe the material
consequences to holders of the Notes under ERISA.
(j) You shall have received from Xxxxx & Wood LLP, in its
capacity as counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the validity of the Notes and such other
related matters as you may reasonably require, and Case Credit and the
Seller shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(k) You shall have received an opinion or opinions
addressed to you, as Representative of the several Underwriters, Case
Credit and the Seller of counsel to the Indenture Trustee, dated the
Closing Date and satisfactory in form and substance to you and your
counsel, to the effect that:
(i) The Indenture Trustee is a national banking
association duly organized and validly existing and in good
standing under the laws of the United States of America, and has
full power and authority to execute, deliver and perform its
obligations under the Indenture, the Sale and Servicing Agreement
and the Administration Agreement.
(ii) Each of the Indenture, the Sale and
Servicing Agreement and the Administration Agreement has been duly
authorized, executed and delivered by the Indenture Trustee.
(iii) Each of the Indenture, the Sale and
Servicing Agreement and the Administration Agreement constitutes a
legal, valid and binding obligation of the Indenture Trustee,
enforceable against the Indenture Trustee in accordance with its
respective terms, except that certain of such obligations may be
18
enforceable solely against the Trust Estate and except that such
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws affecting
the enforcement of creditors' rights generally, and the rights of
creditors of national banking associations, and by general principles
of equity, including without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
such enforceability is considered in a proceeding in equity or at
law).
(iv) No authorizations, consents or approvals
of, notice to or filing with, or the taking of any other action in
respect of, any governmental authority or agency of the United
States or the State of Illinois governing the banking or trust
powers of the Indenture Trustee is required for the execution,
delivery or performance by the Indenture Trustee of each of the
Indenture, the Sale and Servicing Agreement and the Administration
Agreement.
(v) The Notes have been duly authenticated by the
Indenture Trustee in accordance with the terms of the Indenture.
(vi) Neither the execution, delivery or
performance by the Indenture Trustee of the Indenture, the Sale
and Servicing Agreement and the Administration Agreement nor the
compliance with the terms and provisions thereof, nor the
performance of its obligations thereunder, conflicts or results in
a breach of or constitutes a default under any of the terms,
conditions or provisions of any law, government rule or regulation
of the United States or the State of Illinois governing the
banking or trust powers of the Indenture Trustee or the Charter or
By-Laws of the Indenture Trustee or, to such counsel's knowledge,
any order, writ, injunction or decree of any court or governmental
authority against the Indenture Trustee or by which it or any of
its properties is bound or, to such counsel's knowledge, any
indenture, mortgage or contract or other agreement or instrument
to which the Indenture Trustee is a party or by which it or any of
its properties is bound, or results in the creation or imposition
of any lien, charge or encumbrance upon any of its properties
pursuant to any agreement or instrument, except encumbrances and
security interests contemplated by the Indenture, the Sale and
Servicing Agreement and the Administration Agreement.
(vii) There are no actions, suits or proceedings
pending or, to the best of such counsel's knowledge, threatened
against the Indenture Trustee before any court, or by or before
any federal, state, municipal or other governmental department,
commission, board, bureau or governmental agency or
instrumentality, or arbitrator which would, if adversely
determined, affect in any material respect the consummation,
validity or enforceability against the Indenture Trustee of any of
the Indenture, the Sale and Servicing Agreement and the
Administration Agreement.
(l) You shall have received an opinion addressed to you,
as Representative of the several Underwriters, Case Credit and the Seller
of counsel to the Trustee, dated the Closing Date and satisfactory in form
and substance to you and your counsel, to the effect that:
19
(i) The Trustee is duly incorporated, validly
existing in good standing as a banking corporation under the laws
of the State of New York.
(ii) The Trustee has power and authority to
execute, deliver and perform the Trust Agreement and to consummate
the transactions contemplated thereby.
(iii) The Trust Agreement has been duly
authorized, executed and delivered by the Trustee and constitutes
a legal, valid and binding obligation of the Trustee, enforceable
against the Trustee, in accordance with its terms.
(iv) Neither the execution or delivery by the
Trustee of the Trust Agreement nor the consummation by the Trustee
of any of the transactions contemplated thereby nor compliance by
the Trustee with the terms or provisions of the Trust Agreement
will violate any New York or United States federal law, rule or
regulation governing the banking or trust powers of the Trustee or
the Trustee's certificate of incorporation or by-laws or require
the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action with respect
to, any governmental authority or agency under the laws of the
State of New York or the United States governing the banking trust
powers of the Trustee.
(v) There are no actions, suits or proceedings
pending or, to the best of such counsel's knowledge without
independent investigation, threatened against the Trustee before
any court, or by or before any federal, state, municipal or other
governmental department, commission, board, bureau or governmental
agency or instrumentality, or arbitrator which would, if adversely
determined, affect in any material respect the consummation,
validity or enforceability against the Trustee of the Trust
Agreement.
You shall also have received an opinion addressed to you,
as Representative of the several Underwriters, Case Credit and the Seller
of counsel to The Bank of New York (Delaware), as Delaware Trustee, dated
the Closing Date and satisfactory in form and substance to you and your
counsel, covering such matters as you and your counsel may reasonably
request.
(m) You shall have received an opinion addressed to you,
as Representative of the several Underwriters, Case Credit and the Seller
of, Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel to the Trust, dated
the Closing Date, subject to customary qualifications, exceptions and
assumptions, and satisfactory in form and substance to you and your
counsel, substantially to the effect that:
(i) The Trust has been duly formed and is
validly existing in good standing as a business trust under the
laws of the State of Delaware.
(ii) The Trust has the power and authority,
pursuant to the Trust Agreement and the laws of the State of Delaware,
to execute, deliver and perform its obligations under the Basic
20
Documents to which it is a party, and has duly authorized the Trustee
to execute and deliver such Basic Documents.
(iii) The Certificates have been validly issued
and are entitled to the benefits of the Trust Agreement.
(iv) The Trust Agreement is a legal, valid and
binding obligation of the Depositor and the Trustee, enforceable
against the Depositor and the Trustee, in accordance with its
terms.
(v) To the extent that Article 9 of the Uniform
Commercial Code as in effect in the State of Delaware, (the
"DELUCC"), is applicable (without regard to conflicts of laws
principles), and assuming that the security interest created by
the Indenture in the Collateral (as defined in the Indenture) has
been duly created and has attached, upon the filing of the
Financing Statement with the Secretary of State, the Indenture
Trustee will have a perfected security interest in that portion of
the Collateral that consists of general intangibles, accounts or
chattel paper (as such terms are defined in the DELUCC) and the
proceeds thereof and such security interest will be prior to any
other security interest granted by the Trust that is perfected
solely by the filing of financing statements under the DELUCC,
excluding purchase money security interests under ss. 9-312 of the
DELUCC and temporarily perfected security interests in proceeds
under ss. 9-306 of the DELUCC. No refiling or other action is
necessary under the DELUCC in order to maintain the perfection of
such security interest except for the filing of continuation
statements at five year intervals. To the extent the DELUCC
applies, the Receivables (in the form attached as an exhibit to
such opinion) are "chattel paper" as defined in Section
9-105(1)(b) of the DELUCC.
(vi) Under the Delaware Business Trust Act, no
creditor of any Certificateholder shall have any right to obtain
possession of, or otherwise exercise legal or equitable remedies
with respect to, the property of the Trust except in accordance
with the terms of the Trust Agreement.
(n) You, as Representative of the several Underwriters,
shall have received copies of any opinions of counsel to Case Credit and
the Seller supplied to the Rating Agencies. Any such opinions shall be
dated the Closing Date and addressed to you, as Representative of the
several Underwriters, or accompanied by reliance letters addressed to you,
as Representative of the several Underwriters.
(o) You shall have received certificates dated the
Closing Date of any two of the Chairman of the Board, the President, the
Executive Vice President, any Vice President, the Treasurer, any Assistant
Treasurer, the principal financial officer or the principal accounting
officer of each of Case Credit, the Seller and the Servicer in which such
officers shall state that, to the best of their knowledge after reasonable
investigation, (i) the representations and warranties of each of Case
Credit and the Seller contained in the Trust Agreement, the Liquidity
Receivables Purchase Agreement, the Case Purchase Agreement, the NH
Purchase Agreement and the Sale and Servicing Agreement, as applicable,
21
are true and correct in all material respects, that each of Case Credit and
the Seller, has complied in all material respects with all agreements and
satisfied in all material respects all conditions on its part to be
performed or satisfied under such agreements at or prior to the Closing
Date, that no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission and (ii) since June 30,
2000 except as may be disclosed in the Prospectus or, in the case of Case
Credit or Case Corporation, as may be disclosed publicly by Case Credit or
Case Corporation prior to the Execution Time, no material adverse change in
or affecting particularly the business or properties of the Trust, the
Seller, the Servicer, Case Credit or Case Corporation has occurred.
(p) You shall have received certificates dated the
Closing Date of any two of the Chairman of the Board, the President, the
Executive Vice President, any Vice President, the Treasurer, any Assistant
Treasurer, the principal financial officer or the principal accounting
officer of New Holland in which such officers shall state that, to the best
of their knowledge after reasonable investigation, (i) the representations
and warranties of New Holland contained in the NH Purchase Agreement are
true and correct in all material respects, that New Holland has complied in
all material respects with all agreements and satisfied in all material
respects all conditions on its part to be performed or satisfied under such
agreement at or prior to the Closing Date, and (ii) since June 30, 2000
except as may be disclosed in the Prospectus or as may be disclosed
publicly by New Holland prior to the Execution Time, no material adverse
change in or affecting particularly the business or properties of New
Holland has occurred.
(q) You shall have received evidence satisfactory to you
that, on or before the Closing Date:
(i) UCC financing statements have been or are
being filed in the respective offices of the Secretary of State of
the Commonwealth of Pennsylvania and the county prothonotary of
Lancaster County, Pennsylvania reflecting the transfer of the
interest of New Holland in the NH Receivables and the proceeds
thereof to the Seller; and
(ii) UCC financing statements have been or are
being filed in the office of the Secretary of State of the States
of Illinois and Delaware reflecting the transfer of the interest
of Case Credit in the Case Receivables and the proceeds thereof to
the Seller, and the transfer of the interest of the Seller in the
Receivables and the proceeds thereof to the Trust and the grant of
the security interest by the Trust in the Receivables and the
proceeds thereof to the Indenture Trustee.
(r) The A-1 Notes shall have been rated A-1+ and P-1, the
A-2 Notes, the A-3 Notes and the A-4 Notes shall have been rated AAA and
Aaa, and the Class B Notes shall have been rated A and A3 by Standard &
Poor's Ratings Services and Xxxxx'x Investors Service, Inc., respectively.
22
(s) The issuance of the Notes and the Certificates shall
not have resulted in a reduction or withdrawal by any Rating Agency of the
current rating of any outstanding securities issued or originated by the
Seller.
(t) On the Closing Date, the Certificates shall have been
issued to the Seller.
(u) The Seller will provide or cause to be provided to
you, as Representative of the several Underwriters, such conformed copies
of such opinions, certificates, letters and documents as you reasonably
request.
The documents required to be delivered by this Section 7
will be delivered at the office of counsel for Case Credit and the Seller,
at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, on the Closing Date.
8. Indemnification and Contribution.(i) The Seller and
Case Credit will, jointly and severally, indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act as
follows:
(ii) against any and all loss, liability, claim,
damage and expense whatsoever arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in any preliminary
Basic Prospectus, Preliminary Prospectus Supplement, Basic
Prospectus or the Prospectus or any amendment or supplement
thereto or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading;
(iii) against any and all loss, liability,
claim, damage and expense whatsoever to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the
written consent of the Seller or Case Credit; and
(iv) against any and all expense whatsoever
(including, subject to Section 8(c) hereof, the fees and
disbursements of counsel), reasonably incurred in investigating,
preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not
paid under (i) or (ii) above.
23
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Seller, its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the
Seller within the meaning of Section 15 of the Act and Section 20 of the
Exchange Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with
written information furnished to the Seller by such Underwriter through you
expressly for use in the Registration Statement (or any amendment thereto)
or such preliminary Basic Prospectus, Preliminary Prospectus Supplement,
Basic Prospectus or the Prospectus or any amendment or supplement thereto.
(c) Each indemnified party shall give prompt notice to
each indemnifying party of any action commenced against it in respect of
which indemnity may be sought hereunder and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
and any others the indemnifying party may designate in such proceeding and
shall pay the fees and expenses of such counsel related to such proceeding,
but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability that it may have otherwise than on
account of this indemnity agreement. In any proceeding hereunder any
indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the contrary, (ii) the indemnifying
party has failed within a reasonable time to retain counsel reasonably
satisfactory to the indemnified party or (iii) the named parties in any
such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all
indemnified parties, and that all such fees and expenses shall be
reimbursed as they are incurred. Any such separate firm for the
Underwriters and such control persons of Underwriters shall be designated
in writing by the Representative and any such separate firm for Case Credit
and the Seller, the directors of Case Credit and the Seller, the officers
of Case Credit and the Seller who sign the Registration Statement and such
control persons of Case Credit and the Seller or authorized representatives
shall be designated in writing by Case Credit and the Seller. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or
if there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify any indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party
shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which
any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
24
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for
in this Section 8 is for any reason held to be unavailable other than in
accordance with its terms, the Seller, Case Credit and the Underwriters
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by
the Seller and one or more of the Underwriters, in such proportions that
the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount and commissions appearing on the
cover page of the Prospectus bears to the initial public offering price
appearing thereon and the Seller and Case Credit are responsible for the
balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the
Act shall have the same rights to contribution as such Underwriter, and
each director of the Seller, each officer of the Seller who signed the
Registration Statement, and each person, if any, who controls the Seller
within the meaning of Section 15 of the Act shall have the same rights to
contribution as the Seller. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount
in excess of the underwriting discount or commission applicable to the
Notes purchased by it hereunder.
9. Defaults of Underwriters. If any Underwriter or
Underwriters default in their obligations to purchase Notes hereunder on
the Closing Date and arrangements satisfactory to the Representative and
the Seller for the purchase of such Notes by other persons are not made
within 24 hours after such default, this Agreement will terminate without
liability on the part of any nondefaulting Underwriter or the Seller,
except as provided in Section 11 and except that, if the aggregate
principal amount of Notes which the defaulting Underwriter or Underwriting
agreed but failed to purchase shall be 10% or less of the aggregate
principal amount of all the Notes set forth in Schedule I hereto, the
remaining Underwriters shall be obligated severally to take up and pay for
(in the respective proportions which the aggregate principal amount of
Notes set forth opposite their names in Schedule I hereto bears to the
aggregate principal amount of Notes set forth opposite the names of all the
remaining Underwriters) the Notes which the defaulting Underwriter or
Underwriters agreed but failed to purchase. As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under
this Section. Nothing herein will relieve a defaulting Underwriter from
liability for its default.
10. No Bankruptcy Petition. Each Underwriter covenants
and agrees that, prior to the date which is one year and one day after the
payment in full of all securities issued by the Seller or by a trust for
which the Seller was the depositor, which securities were rated by any
nationally recognized statistical rating organization, it will not
institute against, or join any other Person in instituting against, the
Seller any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other proceedings under any Federal or state
bankruptcy or similar law.
11. Survival of Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Seller and Case Credit or any of their officers and each of
25
the Underwriters set forth in or made pursuant to this Agreement or
contained in certificates of officers of the Seller submitted pursuant
hereto shall remain operative and in full force and effect, regardless of
(i) any termination of this Agreement, (ii) any investigation or statement
as to the results thereof made by or on behalf of any Underwriter or of the
Seller or any of their respective representatives, officers or directors or
any controlling person, and (iii) delivery of and payment for the Notes. If
for any reason the purchase of the Notes by the Underwriters is not
consummated, the Seller shall remain responsible for the expenses to be
paid or reimbursed by the Seller pursuant to Section 6 and the respective
obligations of the Seller and the Underwriters pursuant to Section 8 shall
remain in effect. If for any reason the purchase of the Notes by the
Underwriters is not consummated (other than because of a failure to satisfy
the conditions set forth in items (ii), (iv) or (v) of Section 7(d)), the
Seller will reimburse any Underwriter, upon demand, for all reasonable
out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by it in connection with the offering of the Notes.
Nothing contained in this Section 11 shall limit the recourse of the Seller
against the Underwriters.
12. Notices. All communications hereunder will be in
writing and, if sent to the Underwriters, will be mailed, delivered or
telegraphed and confirmed to them at Chase Securities Inc., 000 Xxxx Xxxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Global Securitized Finance
Group, with a copy of any notice pursuant to Section 8(c) to: 1 Chase
Xxxxxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Legal
Department; if sent to the Seller, will be mailed, delivered or
telegraphed, and confirmed to it at CNH Capital Receivables Inc., 000 Xxxxx
Xxxxxxxx Xxxx, Xxxx Xxxxxx, XX 00000, Attention: Treasurer; or, if sent to
Case Credit, will be mailed, delivered or telegraphed and confirmed to it
at Case Credit Corporation, 000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxx 00000,
Attention: Treasurer; provided, however, that any notice to an Underwriter
pursuant to Section 8 will be mailed, delivered or telegraphed and
confirmed to such Underwriter. Any such notice will take effect at the time
of receipt.
13. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective successors
and the officers and directors and controlling persons referred to in
Section 8, and no other person will have any right or obligations
hereunder. No purchaser of Notes from any Underwriter shall be deemed to be
a successor of such Underwriter merely because of such purchase.
14. Representation. You will act for the several Underwriters
in connection with the transactions contemplated by this Agreement, and any
action under this Agreement taken by you will be binding upon all the
Underwriters.
15. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
16. Applicable Law. This Agreement will be governed by, and
construed in accordance with, the laws of the State of New York.
26
Underwriting Agreement
Signature Page
--------------
If the foregoing is in accordance with your understanding
of our agreement, kindly sign and return to us the enclosed duplicate
hereof, whereupon it will become a binding agreement among the Seller, Case
Credit and the several Underwriters in accordance with its terms.
Very truly yours,
CNH CAPITAL RECEIVABLES INC.,
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President and
Chief Financial Officer
CASE CREDIT CORPORATION,
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President and
Chief Financial Officer
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first written above.
CHASE SECURITIES INC.
on behalf of itself and as Representative
of the several Underwriters,
By: /s/ Xxxx Xxxxxxx
-------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
28
SCHEDULE I
CNH EQUIPMENT TRUST 2000-B
OFFERED SECURITY PRINCIPAL AMOUNT PRICE
Class A-1 Notes
---------------
Chase Securities Inc. $17,835,000 99.905000%
Banc One Capital Markets, Inc. $17,833,000 99.905000%
Credit Suisse First Boston Corporation $17,833,000 99.905000%
First Union Securities, Inc. $17,833,000 99.905000%
X.X. Xxxxxx Securities Inc. $17,833,000 99.905000%
XX Xxxxx Securities Corporation $17,833,000 99.905000%
Class A-2 Notes
---------------
Chase Securities Inc. $58,835,000 99.870873%
Banc One Capital Markets, Inc. $58,833,000 99.870873%
Credit Suisse First Boston Corporation $58,833,000 99.870873%
First Union Securities, Inc. $58,833,000 99.870873%
X.X. Xxxxxx Securities Inc. $58,833,000 99.870873%
XX Xxxxx Securities Corporation $58,833,000 99.870873%
Class A-3 Notes
---------------
Chase Securities Inc. $40,670,000 99.774836%
Banc One Capital Markets, Inc. $40,666,000 99.774836%
Credit Suisse First Boston Corporation $40,666,000 99.774836%
First Union Securities, Inc. $40,666,000 99.774836%
X.X. Xxxxxx Securities Inc. $40,666,000 99.774836%
XX Xxxxx Securities Corporation $40,666,000 99.774836%
Class A-4 Notes
---------------
Chase Securities Inc. $38,500,000 99.745423%
Banc One Capital Markets, Inc. $38,500,000 99.745423%
Credit Suisse First Boston Corporation $38,500,000 99.745423%
First Union Securities, Inc. $38,500,000 99.745423%
X.X. Xxxxxx Securities Inc. $38,500,000 99.745423%
XX Xxxxx Securities Corporation $38,500,000 99.745423%
Class B Notes
-------------
Chase Securities Inc. $21,250,000 99.637600%
First Union Securities, Inc. $21,250,000 99.637600%
29
