Exhibit 1.1
EXECUTION COPY
CNH EQUIPMENT TRUST 2003-B
1.230% CLASS A-1 ASSET BACKED NOTES
1.710% CLASS A-2 ASSET BACKED NOTES
FLOATING RATE CLASS A-3a ASSET BACKED NOTES
2.470% CLASS A-3b ASSET BACKED NOTES
FLOATING RATE CLASS A-4a ASSET BACKED NOTES
3.380% CLASS A-4b ASSET BACKED NOTES
3.350% CLASS B ASSET BACKED NOTES
CNH CAPITAL RECEIVABLES INC.
UNDERWRITING AGREEMENT
November 13, 2003
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
World Financial Center, North Tower
New York, New York 10281
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 2003-A (the "Trust") to issue
and sell $234,000,000 principal amount of 1.230% Class A-1 Asset Backed Notes
(the "A-1 Notes"), $260,000,000 principal amount of 1.710% Class A-2 Asset
Backed Notes (the "A-2 Notes"), $205,500,000 principal amount of Floating Rate
Class A-3a Asset Backed Notes (the "A-3a Notes"), $139,500,000 principal amount
of 2.470% Class A-3b Asset Backed Notes (the "A-3b Notes"), $133,200,000
principal amount of Floating Rate Class A-4a Asset Backed Notes (the "A-4a
Notes"), $114,500,000 principal amount of 3.380% Class A-4b Asset Backed Notes
(the "A-4b Notes") and $40,300,000 principal amount of 3.350% Class B Asset
Backed Notes (the "B Notes" and, together with the A-1 Notes, the A-2 Notes, the
A-3a Notes, the A-3b Notes, the A-4a Notes and the A-4b 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 Systems & Services
Technologies, Inc. ("SST") to act as backup servicer of Receivables pursuant to
the Backup Servicing Agreement, dated as of November 1, 2003 (as amended and
supplemented from time to time, the "Backup Servicing Agreement") among the
Seller, Case Credit, the Trust, SST as backup servicer and JPMorgan Chase Bank,
as indenture trustee (the "Indenture Trustee"). The Notes will be issued
pursuant to the Indenture to be dated as of November 1, 2003 (as amended and
supplemented from time to time, the "Indenture"), between the Trust and the
Indenture Trustee.
Simultaneously with the issuance and sale of the Notes as contemplated in this
Agreement, the Trust will issue 3.350% Asset Backed Certificates (the
"Certificates") in an amount of $23,000,000 to the Seller. The Notes and the
Certificates are sometimes referred to herein as the "Securities."
Capitalized terms used and not otherwise defined herein shall have the meanings
ascribed to them in the Sale and Servicing Agreement to be dated as of November
1, 2003 (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
November 1, 2003 (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. 333-98887) 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
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you) as the Seller has advised you, prior to the Execution Time, will be
included or made therein. If the Registration Statement contains the undertaking
specified by Regulation S-K Item 512(a), the Registration Statement, at the
Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
For purposes of this Agreement, "Effective Time" means, with respect to the
registration statement, the date and time as of which such registration
statement, or the most recent post-effective amendment thereto, if any, was
declared effective by the Commission, and "Effective Date" means the date of the
Effective Time. "Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto. Such registration
statement, as amended at the Effective Time, including all information deemed to
be a part of such registration statement as of the Effective Time pursuant to
Rule 430A(b) under the Act, and including the exhibits thereto and any material
incorporated by reference therein, are hereinafter referred to as the
"Registration Statement." "Basic Prospectus" shall mean the prospectus referred
to above contained in the Registration Statement at the Effective Date including
any Preliminary Prospectus Supplement, as most recently revised or amended and
filed with the Commission pursuant to Rule 424(b) or Rule 429. "Preliminary
Prospectus Supplement" shall mean any preliminary prospectus supplement to the
Basic Prospectus which describes the Securities and the offering thereof and is
used prior to filing of the Prospectus. "Prospectus" shall mean the prospectus
supplement relating to the Securities that is first filed pursuant to Rule
424(b) after the Execution Time, together with the Basic Prospectus or, if no
filing pursuant to Rule 424(b) is required, shall mean the prospectus supplement
relating to the Securities, including the Basic Prospectus, included in the
Registration Statement at the Effective Date. "Rule 430A Information" means
information with respect to the Securities and the offering of the Securities
permitted to be omitted from the Registration Statement when it becomes
effective pursuant to Rule 430A. "Rule 415", "Rule 424", "Rule 430A" and
"Regulation S-K" refer to such rules or regulations under the Act. Any reference
herein to the Registration Statement, the Basic Prospectus, a Preliminary
Prospectus Supplement or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the Effective Date of the Registration Statement
or the issue date of the Basic Prospectus, such Preliminary Prospectus
Supplement or the Prospectus, as the case may be; and any reference herein to
the terms "amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus Supplement or the
Prospectus shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the Registration Statement,
or the issue date of the Basic Prospectus, any Preliminary Prospectus Supplement
or the Prospectus, as the case may be, deemed to be incorporated therein by
reference.
(b) On the Effective Date and on the date of this Agreement, the
Registration Statement did or will, and, when the Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing Date (as defined
below), the Prospectus (and any supplements thereto) will, comply in all
material respects with the applicable requirements of the Act and the Trust
Indenture Act of 1939, as amended (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
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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, the Backup Servicing
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, the Sale and Servicing Agreement and the Backup 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 Sale and
Servicing Agreement, the Administration Agreement and the Backup Servicing
Agreement will have been duly authorized, executed and delivered by Case Credit
and will be legal, valid and binding obligations of Case
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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, the Indenture and the Backup 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
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.
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(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, 2003 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, LLC.
(q) The computer tape of the Receivables created as of October 31, 2003
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 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 LLP,
000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 (or such other place as the
Seller and the Representatives shall agree), on November 25,
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2003 (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. REPRESENTATIONS AND WARRANTIES OF THE UNDERWRITERS. Each Underwriter
represents and warrants to, and agrees with, the Depositor that:
(a) It has not offered or sold, and will not offer or sell, any Notes to
persons in the United Kingdom before the expiration of six months from the
Closing Date, except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or agent)
for the purposes of their businesses or otherwise in circumstances that have not
resulted and will not result in an offer to the public in the United Kingdom for
the purposes of the Public Offers of Securities Regulation 1995, as amended.
(b) It has complied and will comply with all applicable provisions of the
Financial Services and Markets Act 2000 ("FSMA") of Great Britain with respect
to anything done by it in relation to the Notes in, from or otherwise involving
the United Kingdom.
(c) It has only communicated or caused to be communicated and it will only
communicate or cause to be communicated any invitation or inducement to engage
in investment activity (within the meaning of Section 21 of the FSMA) received
by it in connection with the issue or sale of any of the Notes in circumstances
in which Section 21(1) of the FSMA does not apply to the Trust.
6. 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
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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 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
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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.
(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.
7. PAYMENT OF EXPENSES. The Seller will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the printing
and filing of the Registration Statement as originally filed and of each
amendment thereto, (ii) the fees of the Indenture Trustee and its counsel, (iii)
the preparation, issuance and delivery of the Notes to the Underwriters, (iv)
the fees and disbursements of Case Credit's and the Seller's counsel and
accountants, (v) the qualification of the Notes under securities laws in
accordance with the provisions of Section 5(f), including filing fees and the
fees and disbursements of counsel for you in connection therewith and in
connection with the preparation of any blue sky or legal investment survey, (vi)
the printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, (vii) the printing
and delivery to the Underwriters of copies of any blue sky or legal investment
survey prepared in connection with the Notes, (viii) any fees charged by rating
agencies for the rating of the Notes and (ix) the fees and expenses, if any,
incurred with respect to any filing with the National Association of Securities
Dealers, Inc.
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8. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of the
Underwriters to purchase and pay for the Notes will be subject to the accuracy
of the representations and warranties on the part of Case Credit and the Seller
herein, to the accuracy of the statements of officers of Case Credit and the
Seller made pursuant to the provisions hereof, to the performance by Case Credit
and the Seller of their respective obligations hereunder and to the following
additional conditions precedent:
(a) If the Registration Statement has not become effective prior to the
Execution Time, unless the Underwriters agree in writing to a later time, the
Registration Statement shall have become effective not later than (i) 6:00 p.m.
New York City time on the date of determination of the public offering price, if
such determination occurred at or prior to 3:00 p.m. New York City time on such
date or (ii) 12:00 noon on the business day following the day on which the
public offering price was determined, if such determination occurred after 3:00
p.m. New York City time on such date.
(b) The Prospectus and any supplements thereto shall have been filed (if
required) with the Commission in accordance with the Rules and Regulations and
Section 5(a) hereof, and prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
the Seller or you, shall be contemplated by the Commission or by any authority
administering any state securities or blue sky law.
(c) On or prior to the Closing Date, you shall have received a letter or
letters, dated as of the date of the Closing Date, of Deloitte & Touche LLP
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, LLC 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, LLC 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:
10
(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 the Backup Servicing Agreement and, in the case of the
Seller, the NH Purchase Agreement and has obtained all necessary licenses and
approvals in each jurisdiction in which failure to qualify or to obtain such
license or approval would render any Receivable unenforceable by the Seller, the
Trustee or the Indenture Trustee.
(ii) The direction by the Seller to the Trustee to authenticate the
Certificates has been duly authorized by the Seller and, when the Certificates
have been duly executed, authenticated and delivered by the Trustee in
accordance with the Trust Agreement, the Certificates will be legally issued,
fully paid and non-assessable subject to the obligations of the Seller under
Section 2.10 of the Trust Agreement and entitled to the benefits of the Trust
Agreement.
(iii) The direction by Case Credit to the Indenture Trustee to
authenticate the Notes has been duly authorized by Case Credit, and, when the
Notes have been duly executed and delivered by the Trustee, authenticated by the
Indenture Trustee in accordance with the Indenture and delivered and paid for 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, the Sale and
Servicing Agreement and the Backup 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, the Backup 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).
11
(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.
(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.
12
(xii) Assuming that Case Credit's standard procedures have been
followed with respect to the creation of the Case Receivables, Case Credit
obtains from each Dealer either an absolute ownership interest or a security
interest in the Case Receivables originated by that Dealer, which ownership or
security interest (whichever it may be) is perfected and prior to any other
interests that may be perfected only by possession of a Case Receivable or the
filing of a financing statement in accordance with the UCC. Assuming that Case
Credit's standard procedures with respect to the perfection of a security
interest in the equipment financed by Case Credit pursuant to retail
agricultural, construction or other equipment installment sale contracts in the
ordinary course of Case Credit's business have been followed with respect to the
perfection of security interests in the Financed Equipment, Case Credit has
acquired either a perfected security interest in the Financed Equipment or a
perfected security interest in the Case Receivables, which indirectly provides
Case Credit with a security interest in the Financed Equipment that is perfected
as against the obligor's creditors; provided, however, that such opinion need
not address any equipment that is subject to a certificate of title statute.
(xiii) The Indenture constitutes a grant by the Trust to the
Indenture Trustee, acting under the Indenture for the benefit of the Holders of
the Notes, 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 under the Uniform Commercial Code as in effect on the date
hereof in the State of New York (the "NYUCC"). Under the NYUCC, the internal
laws of the State of Delaware govern perfection by filing of financing
statements of the security interest of the Indenture Trustee in the Trust Estate
as against the Trust.
(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 NYUCC.
(xvi) The Sale and Servicing Agreement, the Trust Agreement, the
Indenture, the Administration Agreement, the Interest Rate Swap Agreements, the
Purchase Agreements and the Backup Servicing 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 Basic Prospectus and any
supplement thereto under the headings "Description of the Notes", "Description
of the Certificates", "Administrative Information About the Securities" and
"Description of the Transaction Agreements" and in the Prospectus Supplement
under the headings "Description of Notes", "Description of the Certificates",
"Description of the Transaction Agreements" and "The Interest
13
Rate Swap 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, the Trust Agreement
and the Backup Servicing 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, 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 Indenture, the Sale and Servicing Agreement, the Interest
Rate Swap Agreements, the Administration Agreement and the Backup Servicing
Agreement have been duly authorized and, when duly executed and delivered by the
Trustee, will constitute the legal, valid and binding obligations of the Trust,
enforceable against the Trust in accordance with their terms, subject to the
effect of any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally and to the effect of general
principles of equity, including concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether considered in a proceeding in
equity or at law).
The opinions of counsel to Case Credit and the Seller shall also state that
such counsel has examined various documents and participated in conferences with
representatives of Case
14
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 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).
(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, 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
15
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 or will acquire 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 security interests in the Financed Equipment securing the NH Receivables and
the proceeds of each of the foregoing granted by New Holland to the Seller under
the NH Purchase Agreement will be perfected under the UCC and will constitute a
first priority perfected security interest in the NH Receivables, the security
interests in 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 LLP,
special Illinois tax counsel for the Trust, addressed to you, as Representatives
of the several
16
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 LLP, 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 LLP, 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:
(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,
the Administration Agreement and the Backup Servicing Agreement.
(ii) Each of the Indenture, the Sale and Servicing Agreement , the
Administration Agreement and the Backup Servicing Agreement has been duly
authorized, executed and delivered by the Indenture Trustee.
17
(iii) Each of the Indenture, the Sale and Servicing Agreement, the
Administration Agreement and the Backup Servicing 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, the Administration Agreement and the Backup
Servicing 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, the
Administration Agreement and the Backup Servicing 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, the Administration Agreement and
the Backup Servicing 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, the
Administration Agreement and the Backup Servicing 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:
18
(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.
(m) 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.
(n) 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
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 statutory 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.
19
(iii) The Certificates have been validly issued and are entitled to
the benefits of the Trust Agreement.
(iv) The Trust Agreement is a legal, valid and binding obligation
of the Depositor and the Trustee, enforceable against the Depositor and the
Trustee, in accordance with its terms.
(v) To the extent that Article 9 of the Uniform Commercial Code as
in effect in the State of Delaware, (the "DELUCC"), is applicable (without
regard to conflicts of laws principles), and assuming that the security interest
created by the Indenture in the Collateral (as defined in the Indenture) has
been duly created and has attached, upon the filing of the Financing Statement
with the Secretary of State, the Indenture Trustee will have a perfected
security interest in that portion of the Collateral that consists of general
intangibles, accounts or chattel paper (as such terms are defined in the DELUCC)
and the proceeds thereof and such security interest will be prior to any other
security interest granted by the Trust that is perfected solely by the filing of
financing statements under the DELUCC, excluding purchase money security
interests under Section 9-312 of the DELUCC and temporarily perfected security
interests in proceeds under Section 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 Statutory 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.
(o) 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.
(p) You shall have received an opinion or opinions of counsel to the Class
A-4 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 of Xxxxxx & Xxxxxxx, counsel to SST,
addressed to you, as Representatives of the several Underwriters, Case Credit,
the Seller and the Indenture Trustee, dated the Closing Date, with respect to
the enforceability of the Backup Servicing Agreement against SST under New York
law, and otherwise satisfactory in form and substance to you and your counsel.
(r) You shall have received an opinion or opinions of internal counsel to
SST, addressed to you, as Representatives of the several Underwriters, Case
Credit, the Seller and the Indenture Trustee, dated the Closing Date and
satisfactory in form and substance to you and your counsel.
20
(s) 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.
(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 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, 2003 except as may be disclosed in the
Prospectus or, in the case of Case Credit or Case, LLC, as may be disclosed
publicly by Case Credit or Case, LLC 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, LLC has occurred.
(u) 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, 2003 except as may be
disclosed in the Prospectus or as may be disclosed publicly by New Holland prior
to the Execution Time, no material adverse change in or affecting particularly
the business or properties of New Holland has occurred.
(v) 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.
(w) The A-1 Notes shall have been rated A-1+, F1+ and P-1, the A-2 Notes,
the A-3a Notes, the A-3b Notes, the A-4a Notes and the A-4b Notes shall have
been rated AAA, AAA and Aaa, and the Class B Notes shall have been rated A+, A
and A3 by Standard & Poor's, a division
21
of The XxXxxx-Xxxx Companies, Inc., Fitch Ratings and Xxxxx'x Investors Service,
Inc., respectively.
(x) 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.
(y) On the Closing Date, the Certificates shall have been issued to the
Seller.
(z) 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.
9. 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;
(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
22
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 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
23
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.
10. 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
Underwriters 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.
11. 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.
12. 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
24
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.
13. NOTICES. All communications hereunder will be in writing and, if sent to
the Underwriters, will be mailed, delivered or telegraphed and confirmed to
Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000 and to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, World Financial
Center, North Tower, New York, New York 10281, 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.
14. 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.
15. 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.
16. 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.
17. APPLICABLE LAW. This Agreement will be governed by, and construed in
accordance with, the laws of the State of New York.
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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:
26
EXECUTION COPY
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first written above.
DEUTSCHE BANK SECURITIES INC.
on behalf of itself and as Representative
of the several Underwriters,
By: /s/ Xxxxxxxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxxxxxxx Xxxxxxx
Title: Managing Director
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
on behalf of itself and as Representative
of the several Underwriters,
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
SCHEDULE I
CNH EQUIPMENT TRUST 2003-B
OFFERED SECURITY PRINCIPAL AMOUNT PRICE
A-1 NOTES
Deutsche Bank Securities Inc. $ 93,600,000.00 99.90000%
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated $ 93,600,000.00 99.90000%
Banc of America Securities LLC $ 11,700,000.00 99.90000%
BNP Paribas Securities Corp. $ 11,700,000.00 99.90000%
Citigroup Global Markets Inc. $ 11,700,000.00 99.90000%
UBS Securities LLC $ 11,700,000.00 99.90000%
A-2 NOTES
Deutsche Bank Securities Inc. $ 104,000,000.00 99.86619%
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated $ 104,000,000.00 99.86619%
Banc of America Securities LLC $ 13,000,000.00 99.86619%
BNP Paribas Securities Corp. $ 13,000,000.00 99.86619%
Citigroup Global Markets Inc. $ 13,000,000.00 99.86619%
UBS Securities LLC $ 13,000,000.00 99.86619%
A-3a NOTES
Deutsche Bank Securities Inc. $ 82,250,000.00 99.78500%
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated $ 82,250,000.00 99.78500%
Banc of America Securities LLC $ 10,250,000.00 99.78500%
BNP Paribas Securities Corp. $ 10,250,000.00 99.78500%
Citigroup Global Markets Inc. $ 10,250,000.00 99.78500%
UBS Securities LLC $ 10,250,000.00 99.78500%
A-3b NOTES
Deutsche Bank Securities Inc. $ 55,850,000.00 99.76722%
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated $ 55,850,000.00 99.76722%
Banc of America Securities LLC $ 6,950,000.00 99.76722%
BNP Paribas Securities Corp. $ 6,950,000.00 99.76722%
Citigroup Global Markets Inc. $ 6,950,000.00 99.76722%
UBS Securities LLC $ 6,950,000.00 99.76722%
28
A-4a NOTES
Deutsche Bank Securities Inc. $ 53,300,000.00 99.75000%
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated $ 53,300,000.00 99.75000%
Banc of America Securities LLC $ 6,650,000.00 99.75000%
BNP Paribas Securities Corp. $ 6,650,000.00 99.75000%
Citigroup Global Markets Inc. $ 6,650,000.00 99.75000%
UBS Securities LLC $ 6,650,000.00 99.75000%
A-4b NOTES
Deutsche Bank Securities Inc. $ 45,850,000.00 99.74974%
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated $ 45,850,000.00 99.74974%
Banc of America Securities LLC $ 5,700,000.00 99.74974%
BNP Paribas Securities Corp. $ 5,700,000.00 99.74974%
Citigroup Global Markets Inc. $ 5,700,000.00 99.74974%
UBS Securities LLC $ 5,700,000.00 99.74974%
B NOTES
Deutsche Bank Securities Inc. $ 20,150,000.00 99.59154%
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated $ 20,150,000.00 99.59154%
29
