Exhibit 1(b)
CASE EQUIPMENT TRUST 200_-_
% ASSET BACKED CERTIFICATES
CNH CAPITAL RECEIVABLES INC.
CERTIFICATE UNDERWRITING AGREEMENT
[________________]
[_______________________]
As Representative of the
Several Underwriters,
[_______________________]
Ladies and Gentlemen:
1. Introductory. CNH Capital Receivables Inc., a Delaware
corporation (the "Seller"), proposes to cause Case Equipment Trust 200_-_
(the "Trust") to issue and sell $[_____________] principal amount of [___]%
Asset Backed Certificates (the "Certificates"), each representing a
fractional undivided interest in the Trust, to the several Underwriters
named in Schedule I hereto (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 over-the-road
trucks and trailers, agricultural, construction, forestry, 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"). The Certificates will be issued
pursuant to the Trust Agreement to be dated as of [______________] (as amended
and supplemented from time to time, the "Trust Agreement"), between the
Seller, as Depositor, and, as trustee (the "Trust Trustee").
Simultaneously with the issuance and sale of the
Certificates as contemplated in this Agreement, the Trust will issue $[ ]
principal amount of Class A-1[ ]% Asset Backed Notes (the "A-1 Notes"),
$[______________] principal amount of Class A-2 [__]% Asset Backed Notes
(the "A-2 Notes"), $[_____________] principal amount of Class A-3
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[__]% Asset Backed Notes (the "A-3 Notes"), $[______________] principal
amount of Class A-4 [__]% Asset Backed Notes (the "A-4 Notes"), and $[ ]
principal amount of Class B[ ]% 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 be sold pursuant to an underwriting agreement dated
the date hereof (the "Note Underwriting Agreement"; together with this
Agreement, the "Underwriting Agreements") among the Seller, Case Credit and
you, as representative of the several Underwriters named in Schedule I
thereto. The Notes and the Certificates are sometimes referred to
collectively 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 [___________] (as amendedd 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
to be dated as of [______________ ] (as amended and supplemented from time to
time, the "Indenture"), between the Trust and [_________________], as trustee
(the "Indenture Trustee"), or the Trust Agreement.
2. Representations and Warranties. The Seller, and with
respect to items (c), (e), (f), (g), (h), (i), (j), and (m) as they relate
to Case Credit, 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.[__________]) 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 statement, 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
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completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
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 a 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, is 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. "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
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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 (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 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 an 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 [______] and [______] paragraphs (concerning
initial offering prices, concessions and reallowances) and in the [_______]
and [_______] 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 and the 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) On the Closing Date, upon delivery thereof, the
Liquidity Receivables Purchase Agreement, the 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 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).
(e) On the Closing Date, upon delivery thereof, the
Liquidity Receivables Purchase Agreement, the Purchase Agreement, the Sale
and Servicing Agreement and the Administration Agreement will have been
duly authorized, executed and delivered by Case
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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).
(f) This Agreement has been duly authorized, executed
and delivered by each of the Seller and Case Credit.
(g) 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 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.
(h) 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 regulations or any order of any
governmental agency or body or any court having jurisdiction over Case
Credit or the Seller or any of their properties.
(i) 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 ro 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.
(j) On the Closing Date, upon delivery thereof, each of
the First-Tier 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.
(k) When the Certificates 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 Certificates 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
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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).
(l) 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.
(m) Since [_____________], 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 or Case Corporation.
(n) The computer tape of the Receivables created as of [ ],
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 Second-Tier Case
Assignment.
3. Purchase, Sale, and Delivery of the Certificates. 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 Certificates in the respective principal amounts and at the respective
purchase prices set forth opposite the name of such Underwriter in Schedule
I hereto. Delivery of and payment for the Certificates 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 [_______________] (the "Closing Date"). Delivery of the
Certificates shall be made against payment of the purchase price in
immediately available funds drawn to the order of the Seller. The
Certificates to be so delivered will be initially represented by one or
more Certificates registered in the name of Cede & Co., the nominee of The
Depository Trust Company ("DTC"). The interests of beneficial owners of the
Certificates will be represented by book entries on the records of DTC and
participating members thereof. Definitive Certificates will be available
only under limited circumstances.
4. Offering by Underwriters. It is understood that the
Underwriters propose to offer the Certificates 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
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termination of the offering of the Certificates, 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
Certificates 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
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
Certificateholders 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
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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
Certificates 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 Certificates, or until such time as the Underwriters
shall cease to maintain a secondary market in the Certificates 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 Certificates 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
Certificateholders 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.
(j) To the extent, if any, that the rating provided with
respect to the Certificates by the rating agency or agencies that initially
rate the Certificates 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 the prior to each Subsequent Transfer Date, to
deliver to the Representative (i) a duly executed Second-Tier Case
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
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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 preparation of this
Agreement, (iii) the preparation, issuance and delivery of the Certificates to
the Underwriters, (iv) the fees and disbursements of Case Credit's and the
Seller's counsel and accountants, (v) the qualification of the Certificates
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
Certificates, (viii) any fees charged by rating agencies for the rating of
the Certificates, (ix) the fees and expenses, if any, incurred with respect
to any filing with the National Association of Securities Dealers, Inc. and (x)
the fees and expenses of Xxxxx, Xxxxx & Xxxxx in its role as counsel to the
Trust incurred as a result of providing the opinions required by Section 7(g)
hereof.
7. Conditions of the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for the Certificates
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)
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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 Certificates or makes it impractical or
inadvisable to market the Certificates; (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; (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 Certificates.
(e) You shall have received an opinion or opinions of
counsel to Case Credit and the Seller, 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) 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 and the
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, and delivered and paid for pursuant to the
Certificate Underwriting Agreement, will be legally issued, fully
paid and non-assessable obligations of the Trust
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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 the Note Underwriting Agreements, 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
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) Each of the Underwriting Agreements has been duly
authorized, executed and delivered by each of the Seller and Case
Credit.
(vi) The Liquidity Receivables Purchase Agreement, the
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) Neither the transfer of the Receivables from Case Credit
and to Seller, nor the transfer of the Receivables from the Seller to
the Trust, nor the assignment of the Trust Estate (as defined in the
Trust Agreement) to the Trust, nor the assignment by the Seller of its
right, title and interest in the Purchase Agreement to the Trust, nor
the grant of the security interest in the Collateral to the Indenture
Trustee pursuant to the Indenture, nor the execution and delivery of
the Underwriting Agreements, the Purchase Agreement, the Trust
Agreement or the Sale and Servicing Agreement by the Seller, nor the
execution of the Underwriting Agreements, the Administration Agreement
and the Purchase Agreement by Case Credit, nor the consummation of any
transactions contemplated in the Underwriting Agreements, the Purchase
Agreement, the Trust Agreement, the Indenture, the Administration
Agreement or the Sale and Servicing Agreement (such agreements,
excluding the Underwriting Agreements, being, collectively, the
"Basic Documents"), nor the fulfilment of the terms thereof by Case
Credit, the Seller or the Trust, as the case may be, will conflict
with, or result in a breach, violation or acceleration of, or
constitute a default under, any term or provision of 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
11
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 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.
(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 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
Receivables, Case Credit obtains from each Dealer either an
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absolute ownership interest or a security interest in the
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
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 over-the-road truck or
trailer, agricultural, construction, forestry, 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 or a perfected
security interest in the 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 deliver 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 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 Agreement 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 heading "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
13
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 Certificates as contemplated in the
Prospectus and this Agreement or as a result of the issuance of
the Notes 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.
(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 supplement 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
14
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).
(xxvi) 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 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).
Such counsel shall also opine as to such other matters as
the Underwriters may reasonably request.
(f) 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 heading "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 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.
(g) You shall have received an opinion of [________________],
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.
15
(h) 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 Certificates under ERISA.
(i) You shall have received from [_____________], in its
capacity as counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the validity of the Certificates 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.
(j) 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 banking corporation duly
incorporated and validly existing and in good standing under the
laws of the State of [___________], 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 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 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).
16
(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 regulations 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.
(k) 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:
(i) The Trustee is duly incorporated, validly existing in
good standing as a banking corporation under the laws of the State
of [__________________].
(ii) The Trustee has power and authority to execute,
deliver and perform the Trust Agreement and, to consummate the
transactions contemplated thereby.
17
(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 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 any opinion addressed to
you, as Representative of the several Underwriters, Case Credit and the
Seller of counsel to [____________________], as [__________] 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.
(l) 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
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.
18
(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.
(m) 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.
(n) 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 Purchase Agreement and the Sale and
Servicing Agreement, as applicable, 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
19
contemplated by the Commission and (ii) since[ ], 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.
(o) You shall have received evidence satisfactory to you
that, on or before the Closing Date, 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 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.
(p) The Certificates shall have been rated at least[_________]
by Standard & Poor's Corporation and at least [_________________] by Xxxxx'x
Investors Service, Inc.
(q) 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.
(r) On the Closing Date, $[ ] aggregate principal amount
of the A-1 Notes, $[______________] aggregate principal amount of the A-2
Notes, $[______________] aggregate principal amount of the A-3 Notes,
$[________________] aggregate principal amount of the A-4 Notes and $[ ]
aggregate principal amount of the B Notes shall have been issued to the
seller.
(s) 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. (a) 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:
(i) 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
20
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;
(ii) 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
(iii) 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.
(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
21
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
statement 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.
(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
Certificates purchased by it hereunder.
9. Defaults of Underwriters. If any Underwriter or
Underwriters default in their obligations to purchase the Certificates hereunder
on the Closing Date and arrangements satisfactory to the Representative and the
Seller for the purchase of such Certificates by other
22
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 Certificates which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
be [__]% or less of the aggregate principal amount of all the Certificates
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 Certificates set forth opposite
their names in Schedule I hereto bears to the aggregate principal amount of
Certificates 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 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
Certificates. If for any reason the purchase of the Certificates 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
Certificates 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
Certificates. 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 the Underwriters at [_______________________]; 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
23
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 Certificates 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.
24
Certificate 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: ___________________________________
Name:
Title:
CASE CREDIT CORPORATION,
By: ____________________________________
Name:
Title:
The foregoing Certificate
Underwriting Agreement
is hereby confirmed and
accepted as of the date
first written above.
[_______________________]
on behalf of itself and as
Representative of the several
Underwriters,
By ____________________________________
Name:
Title:
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SCHEDULE I
CNH EQUIPMENT TRUST 200_-_
Principal
Amount of
Underwriter Certificates
----------- ------------
................................................... $
................................................... __________
Total................................................... $_________
26
