CNH EQUIPMENT TRUST 2002-A
2.0825 % CLASS A-1 ASSET BACKED NOTES
3.1300 % CLASS A-2 ASSET BACKED NOTES
FLOATING RATE CLASS A-3 ASSET BACKED NOTES
FLOATING RATE CLASS A-4 ASSET BACKED NOTES
FLOATING RATE CLASS B ASSET BACKED NOTES
FLOATING RATE CLASS C ASSET BACKED NOTES
CNH CAPITAL RECEIVABLES INC.
UNDERWRITING AGREEMENT
----------------------
March 20, 2002
Banc of America Securities LLC
000 X. XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000
as Representatives of the Several Underwriters
Ladies and Gentlemen:
1. Introductory. CNH Capital Receivables Inc., a Delaware
corporation (the "Seller"), proposes to cause CNH Equipment Trust 2002-A (the
"Trust") to issue and sell $162,400,000 principal amount of 2.0825 % Class A-1
Asset Backed Notes (the "A-1 Notes"), $235,456,000 principal amount of 3.1300
% Class A-2 Asset Backed Notes (the "A-2 Notes"), $356,019,000 principal
amount of Floating Rate Class A-3 Asset Backed Notes (the "A-3 Notes"),
$183,625,000 principal amount of Floating Rate Class A-4 Asset Backed Notes
(the "A-4 Notes"), $30,000,000 principal amount of Floating Rate Class B Asset
Backed Notes (the "B Notes") and $32,500,000 principal amount of Floating Rate
Class C Asset Backed Notes (the "C Notes" and, together with the A-1 Notes,
the A-2 Notes, the A-3 Notes, the A-4 Notes and the B Notes, the "Notes"), to
the several underwriters named in Schedule I hereto (collectively, the
"Underwriters"), for whom you are acting as representatives (the
"Representatives").
The assets of the Trust include, among other things, a pool of
retail installment sale contracts (the "Receivables") secured by new or used
agricultural or construction 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 pursuant to the Indenture to be dated
as of March 1, 2002 (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 Asset Backed Certificates
(the "Certificates") to the Seller. The Certificates have no principal amount
and are not entitled to receive principal or interest distributions. 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 March 1, 2002 (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 March 1, 2002 (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), (o), (p), (q), (r)
and (s) 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 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,
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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 (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
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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 (such information, the "Underwriter Information"). 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 Agreements, 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 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 Case
Liquidity Receivables Purchase Agreement, the Case Purchase Agreement, the
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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 Liquidity
Receivables Purchase Agreement and the NH Purchase Agreement will have been
duly authorized, executed and delivered by New Holland and will be legal,
valid and binding obligations of New Holland enforceable against New Holland
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).
(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 Agreements, 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.
(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
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assignments of Receivables from Case Credit to the Seller pursuant to the Case
Liquidity Receivables Purchase Agreement has been duly authorized, executed
and delivered by Case Credit.
(m) On the Closing Date, upon delivery thereof, each of the NH
Assignment dated as of the Closing Date from New Holland to the Seller and the
assignments of Receivables from New Holland to the Seller pursuant to the NH
Liquidity Receivables Purchase Agreement 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 September 30, 2001 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 February
28, 2002 and made available to the Representatives 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.
(r) Any taxes, fees and other governmental charges that have
been assessed and are known to the Seller, Case Credit or New Holland to be
due in connection with the execution, delivery and issuance of the Basic
Documents shall have been paid by the Seller, Case Credit or New Holland at or
prior to the Closing Date (as defined in Section 3 hereof).
(s) None of the Seller, Case Credit or New Holland is in
violation of its certificate of incorporation or certificate of formation or
limited liability company agreement, as applicable, or its by-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any agreement or instrument to which it is
a party or by which it or its properties are bound which would have a material
adverse effect on the transactions contemplated herein or on the Seller's,
Case Credit's or New Holland's respective ability to perform its obligations
under the Basic Documents.
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
6
not jointly, to purchase from the Trust, the respective Classes of Notes 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 Notes shall be made at the office of Xxxxx Xxxxx Xxxx &
Maw, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 (or such other place as
the Seller and the Representatives shall agree), on March 28, 2002 (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 circumstances under which
7
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 each 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, Case Credit and New Holland relating to the
Receivables to be marked to show the Trust's absolute ownership of the
Receivables, and from and after the Closing Date none of the Seller, Case
Credit or New Holland 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 ratings provided with
respect to the Notes by the rating agency or agencies that initially rate the
Notes are 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.
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(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, the Seller
shall deliver to the Representatives (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
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 (iii) 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.
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
9
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, New Holland, 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; (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 or any material change in the financial markets if, in the judgment
of the Underwriters, the effect of any such outbreak, escalation, declaration,
calamity, emergency or change makes it impractical or inadvisable to proceed
with completion of the sale of and payment for the Notes; or (vi) a material
disruption has occurred in securities settlement or clearance services in the
United States.
(e) You shall have received an opinion or opinions of counsel to
Case Credit and the Seller, addressed to you, as Representatives 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.
10
(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 by the Underwriters 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 Agreements, 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.
(vi) The Case 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 after due
inquiry 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.
11
(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 Case
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
Delaware 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 Delaware 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
Delaware 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 Delaware 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
12
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 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, the Interest Rate Swap
Agreements 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 "Summary of Terms--Legal Investment", "Risk
Factors-Possible liability for third party claims may cause payment
delays or losses", "Legal Aspects of the Receivables" and "Legal
Investment", 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, the Interest Rate Swap Agreements and the
Trust Agreement, fairly present the matters referred to therein.
13
(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, the Interest Rate Swap Agreements 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, the Interest Rate Swap Agreements 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.
(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 Interest Rate Swap
Agreements, the Notes and the Certificates.
(xxv) The Indenture, the Sale and Servicing Agreement, the
Interest Rate Swap Agreements 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
14
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
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 or opinions of counsel to
New Holland, addressed to you, as Representatives 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 Liquidity Receivables Purchase Agreement and the NH
Purchase Agreement have been duly authorized, executed and delivered
by New Holland, and are legal, valid and binding obligation of New
Holland enforceable against New Holland 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).
(iii) The execution, delivery and performance of the NH
Liquidity Receivables Purchase Agreement and the NH Purchase
Agreement by New Holland, and the consummation of the transactions
contemplated thereby, will not conflict with, or result in a breach,
15
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 after due inquiry 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
Liquidity Receivables Purchase Agreement and 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 Liquidity Receivables Purchase Agreement or the
NH Purchase Agreement, (2) seeking to prevent the consummation of
any of the transactions contemplated by any of the NH Liquidity
Receivables Purchase Agreement or the NH Purchase Agreement or the
execution and delivery thereof, or (3) that could reasonably be
expected to materially and adversely affect the performance by New
Holland of its obligations under, or the validity or enforceability
of the NH Liquidity Receivables Purchase Agreement or the NH
Purchase Agreement.
(vi) Each of the NH Assignment dated as of the Closing Date
from New Holland to the Seller and the assignments of NH Receivables
from New Holland to the Seller pursuant to the NH Liquidity
Receivables Purchase Agreement have 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 State of Delaware, 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
16
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 Xxxx & Maw
special Illinois tax counsel for the Trust, addressed to you, as
Representatives 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 Xxxx & Maw, 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.
(h) You shall have received an opinion of Xxxxxxx Xxxxx Xxxxxxx
& Xxxxxxxxx, LLP, special Pennsylvania tax counsel for the Trust, addressed to
you, as Representatives 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
Representatives of the several Underwriters, of Xxxxx Xxxxx Xxxx & Maw, 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 XXXXX.
(j) You shall have received from Xxxxxx Xxxxxx Xxxxx & Xxxx 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 Representatives 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:
17
(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 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
18
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
Representatives 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 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) Each of the Notes and the Certificates has been duly
executed by the Trustee.
(v) 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.
(vi) 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
Representatives 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
Representatives of the several Underwriters, Case Credit and the Seller of,
Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel to the Trust, dated the
19
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.
(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 underss.9-312 of
the DELUCC and temporarily perfected security interests in proceeds
underss.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 shall have received an opinion or opinions of counsel to
the Class A-3 Counterparty, addressed to you, as Representatives of the
several Underwriters, and the Indenture Trustee, dated the Closing Date and
satisfactory in form and substance to you and your counsel.
(o) You shall have received an opinion or opinions of counsel to
the Class A-4 Counterparty, addressed to you, as Representatives of the
20
several Underwriters, and the Indenture Trustee, dated the Closing Date and
satisfactory in form and substance to you and your counsel.
(p) You shall have received an opinion or opinions of counsel to
the Class B Counterparty, addressed to you, as Representatives of the several
Underwriters, and the Indenture Trustee, dated the Closing Date and
satisfactory in form and substance to you and your counsel.
(q) You shall have received an opinion or opinions of counsel to
the Class C Counterparty, addressed to you, as Representatives of the several
Underwriters, and the Indenture Trustee, dated the Closing Date and
satisfactory in form and substance to you and your counsel.
(r) You, as Representatives 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 Representatives of the several Underwriters, or
accompanied by reliance letters addressed to you, as Representatives of the
several Underwriters.
(s) 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 Agreements, the
Case Purchase Agreement, the NH 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 contemplated by the Commission and (ii) since
September 30, 2001 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.
(t) 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 Liquidity Receivables Purchase Agreement and 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 agreements at or prior to the Closing Date, and (ii)
since September 30, 2001 except as may be disclosed in the Prospectus or as
may be disclosed publicly by New Holland prior to the Execution Time, no
21
material adverse change in or affecting particularly the business or
properties of New Holland has occurred.
(u) 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 State of Delaware
reflecting the transfer of the interest of Case Credit in the Case Receivables
and the proceeds thereof to the Seller, the transfer of the interest of New
Holland in the NH 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.
(v) 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, the
Class B Notes shall have been rated A+ and A2, and the Class C Notes shall
have been rated BBB and Baa3 by Standard & Poor's Ratings Services and Xxxxx'x
Investors Service, Inc., respectively.
(w) 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.
(x) On the Closing Date, the Certificates shall have been issued
to the Seller.
(y) The Seller will provide or cause to be provided to you, as
Representatives 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 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;
22
(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 and not jointly, 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 the Underwriter
Information.
(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. The failure to so notify
an indemnifying party shall not relieve the indemnifying party from any
liability that it may have under this Section except to the extent that such
indemnifying party has been materially prejudiced by such failure and,
moreover, the failure to so notify any indemnifying party shall not relieve
such indemnifying party from any liability that it may have to any indemnified
party otherwise than under this Section. 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 Representatives 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
23
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 and fault 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 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 Representatives 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.
24
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 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 Banc of America Securities LLC, 000 X. XxXxxxx Xxxxxx, 00xx
Xxxxx, Xxxxxxx, XX 00000 and to Credit Suisse First Boston Corporation, Xxxxxx
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-3629 as Representatives of the
Several Underwriters; 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.
25
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/ Xxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President & Treasurer
CASE CREDIT CORPORATION,
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President & Treasurer
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first written above.
BANC OF AMERICA SECURITIES LLC
on behalf of itself and as Representative
of the several Underwriters,
By: /s/ Xxxx Xxxxxxx
------------------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
CREDIT SUISSE FIRST BOSTON CORPORATION
on behalf of itself and as Representative
of the several Underwriters,
By: /s/ Xxxx Xxxxxxx
-----------------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
26
SCHEDULE I
CNH EQUIPMENT TRUST 2002-A
OFFERED SECURITY PRINCIPAL AMOUNT PRICE
A-1 Notes
---------
Banc of America Securities LLC.............. $58,464,000 99.90000 %
Credit Suisse First Boston Corporation...... $58,464,000 99.90000 %
Deutsche Banc Xxxx. Xxxxx Inc............... $11,368,000 99.90000 %
X.X. Xxxxxx Securities Inc.................. $11,368,000 99.90000 %
Xxxxxxx Xxxxx Xxxxxx Inc.................... $11,368,000 99.90000 %
XX Xxxxx Securities Corporation............. $11,368,000 99.90000 %
A-2 Notes
---------
Banc of America Securities LLC.............. $84,764,160 99.86613 %
Credit Suisse First Boston Corporation...... $84,764,160 99.86613 %
Deutsche Banc Xxxx. Xxxxx Inc............... $16,481,920 99.86613 %
X.X. Xxxxxx Securities Inc.................. $16,481,920 99.86613 %
Xxxxxxx Xxxxx Xxxxxx Inc.................... $16,481,920 99.86613 %
XX Xxxxx Securities Corporation............. $16,481,920 99.86613 %
A-3 Notes
---------
Banc of America Securities LLC.............. $128,166,840 99.77500 %
Credit Suisse First Boston Corporation...... $128,166,840 99.77500 %
Deutsche Banc Xxxx. Xxxxx Inc............... $24,921,330 99.77500 %
X.X. Xxxxxx Securities Inc.................. $24,921,330 99.77500 %
Xxxxxxx Xxxxx Xxxxxx Inc.................... $24,921,330 99.77500 %
XX Xxxxx Securities Corporation............. $24,921,330 99.77500 %
A-4 Notes
---------
Banc of America Securities LLC.............. $66,105,000 99.74500 %
Credit Suisse First Boston Corporation...... $66,105,000 99.74500 %
Deutsche Banc Xxxx. Xxxxx Inc............... $12,853,750 99.74500 %
X.X. Xxxxxx Securities Inc.................. $12,853,750 99.74500 %
Xxxxxxx Xxxxx Xxxxxx Inc.................... $12,853,750 99.74500 %
XX Xxxxx Securities Corporation............. $12,853,750 99.74500 %
B Notes
-------
Banc of America Securities LLC.............. $15,000,000 99.60000 %
Credit Suisse First Boston Corporation...... $15,000,000 99.60000 %
C Notes
-------
Banc of America Securities LLC.............. $16,250,000 99.40000 %
Credit Suisse First Boston Corporation...... $16,250,000 99.40000 %
27
