Exhibit 1(a)
CNH EQUIPMENT TRUST 200_-_
CLASS A-1 [____]% ASSET BACKED NOTES
CLASS A-2 [____]% ASSET BACKED NOTES
CLASS A-3 [____]% ASSET BACKED NOTES
CLASS A-4 [____]% ASSET BACKED NOTES
CLASS B [____]% ASSET BACKED NOTES
CNH CAPITAL RECEIVABLES INC.
UNDERWRITING AGREEMENT
[______________]
Xxxxxxx Xxxxx Xxxxxx Inc.
As Representative of the
Several Underwriters,
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introductory. CNH Capital Receivables Inc., a Delaware
corporation (the "Seller"), proposes to cause CNH Equipment Trust 200_-_
(the "Trust") to issue and sell $[_________] principal amount of Class A-1
[____]% Asset Backed Notes (the "A-1 Notes"), $[_________] principal amount
of Class A-2 [____]% Asset Backed Notes (the "A-2 Notes"), $[_________]
principal amount of Class A-3 [____]% Asset Backed Notes (the "A-3 Notes"),
$[_________] principal amount of Class A-4 [___]% Asset Backed Notes (the
"A-4 Notes") and $[_________] principal amount of Class B [___]% Asset
Backed Notes (the "B Notes"; together with the A-1 Notes, the A-2 Notes,
the A-3 Notes and the A-4 Notes, the "Notes"), to the several underwriters
named in Schedule I hereto (collectively, the "Underwriters"), for whom you
are acting as representative (the "Representative"). The assets of the
Trust include, among other things, a pool of retail installment sale
contracts and full payout leases (the "Receivables") secured by new or used
over-the-road trucks and trailers, agricultural, construction, forestry, or
other equipment and the related security interests in the equipment
financed thereby. The Receivables were sold to the Trust by the Seller. The
Receivables are serviced for the Trust by Case Credit Corporation, a
Delaware corporation ("Case Credit"). The Notes will be issued pursuant to
the Indenture to be dated as of [_________] (as amended and supplemented
from time to time, the "Indenture"), between the Trust and
[_________________] (the "Indenture Trustee").
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Simultaneously with the issuance and sale of the Notes as
contemplated in this Agreement, the Trust will issue [___]% Asset Backed
Certificates (the "Certificates"), in an amount of $[_________] 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 [_________] (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 to be dated as of [_________] (as amended
and supplemented from time to time, the "Trust Agreement"), between the
Seller and [_______________], as trustee (the "Trustee").
2. Representations and Warranties. The Seller, and with
respect to items (c), (e), (f), (g), (h), (i), (j), and (m) as they relate
to Case Credit, Case Credit, represents and warrants to, and agrees with,
each Underwriter as of the date hereof and as of the Closing Date that:
(a) The Seller meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement (Registration No. [_________] on
such Form, including a preliminary basic prospectus and a preliminary
prospectus supplement for registration under the Act of the offering and
sale of the Securities. The Seller may have filed one or more amendments
thereto as may have been required to the date hereof, each of which
amendments has been previously furnished to you. The Seller will next file
with the Commission one of the following: (i) prior to the effectiveness of
such registration statements, 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
statements, 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
statements, a final basic prospectus and a final prospectus supplement
relating to the Securities in accordance with Rules 415 and 424(b)(2) or
(5). In the case of clauses (ii) and (iii), the Seller has included in such
registration statements, as amended at the Effective Date, all information
(other than Rule 430A Information) required by the Act and the Rules
thereunder to be included in the Prospectus with respect to the Securities
and the offering thereof. As filed, such amendment and form of final
prospectus supplement, or such final prospectus supplement, shall include
all Rule 430A Information, together with all other such required
information with respect to the Securities and the offering thereof and,
except to the extent that the Underwriters shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional information and
other changes (beyond that contained in the latest preliminary basic
prospectus and preliminary prospectus supplement that have previously been
furnished to you) as the Seller has advised you, prior to the Execution
Time, will be included or made therein. If the Registration Statement
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contains the undertaking specified by Regulation S-K Item 512(a), the
Registration Statement, at the Execution Time, meets the requirements set
forth in Rule 415(a)(1)(x).
For purposes of this Agreement, "Effective Time" means,
with respect to a registration statement, the date and time as of which
such registration statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission, and "Effective
Date" means the date of the Effective Time. "Execution Time" shall mean the
date and time that this Agreement is executed and delivered by the parties
hereto. Such registration statements, as amended at the Effective Time,
including all information deemed to be a part of such registration
statements 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 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
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Date, the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Prospectus, if not filed
pursuant to Rule 424(b), did not or will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Prospectus (together
with any supplement thereto) will not include any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, 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 an Underwriter through you specifically for use in connection
with preparation of the Registration Statement, the Prospectus (or any
supplement thereto), it being agreed that the only such information
consists of the statements in the second and sixth paragraphs (concerning
initial offering prices, concessions and reallowances) and in the fourth
and eighth paragraphs (concerning overallotment, stabilizing transactions,
syndicate covering transactions and penalty bids) under the heading
"Underwriting" in the Prospectus Supplement. As of the Closing Date, the
Seller's representations and warranties in the Sale and Servicing Agreement
and the Trust Agreement will be true and correct in all material respects.
(c) Each of Case Credit and the Seller has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware with corporate power and authority
to own its properties and conduct its business as described in the
Registration Statement and to enter into and perform its obligations under
this Agreement, the Sale and Servicing Agreement, the Administration
Agreement and the Purchase Agreement and has obtained all necessary
licenses and approvals in each jurisdiction in which failure to qualify or
to obtain such license or approval would render any Receivable
unenforceable by the Seller, the Trustee or the Indenture Trustee.
(d) On the Closing Date, upon delivery thereof, the
Liquidity Receivables Purchase Agreement, the Purchase Agreement, the Trust
Agreement and the Sale and Servicing Agreement will have been duly
authorized, executed and delivered by the Seller, and will be legal, valid
and binding obligations of the Seller enforceable against the Seller in
accordance with their terms, subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally and to the effect of general principles of
equity, including concepts of materiality, reasonableness, good faith and
fair dealing (regardless of whether considered in a proceeding in equity or
at law).
(e) On the Closing Date, upon delivery thereof, the
Liquidity Receivables Purchase Agreement, the Purchase Agreement, the Sale
and Servicing Agreement and the Administration Agreement will have been
duly authorized, executed and delivered by Case Credit and will be legal,
valid and binding obligations of Case Credit enforceable against Case
Credit in accordance with their terms, subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar
law affecting creditors' rights generally and to
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the effect of general principles of equity, including concepts of
materiality, reasonableness, good faith and fair dealing (regardless of
whether considered in a proceeding in equity or at law).
(f) This Agreement has been duly authorized, executed and
delivered by each of the Seller and Case Credit.
(g) The execution, delivery and performance of this
Agreement, the Liquidity Receivables Purchase Agreement, the Purchase
Agreement, the Trust Agreement, the Administration Agreement, the Sale and
Servicing Agreement and the other documents and certificates delivered in
connection therewith (such agreements, documents and certificates,
excluding this Agreement, being collectively, the "Basic Documents"), as
applicable, by Case Credit and the Seller, and the consummation of the
transactions contemplated thereby, will not conflict with, or result in a
breach, violation or acceleration of, or constitute a default under, the
certificate of incorporation or by-laws of Case Credit or the Seller or any
material agreement or instrument to which Case Credit or the Seller is a
party or by which Case Credit or the Seller is bound or to which any of the
properties of Case Credit or the Seller is subject.
(h) The execution, delivery and performance of this
Agreement and the Basic Documents, as applicable, by Case Credit and the
Seller, and the consummation of the transactions contemplated thereby, will
not violate any statute, rule or regulation or any order of any
governmental agency or body or any court having jurisdiction over Case
Credit or the Seller or any of their properties.
(i) There are no actions, proceedings or investigations
pending or threatened before any court, administrative agency, or other
tribunal (1) asserting the invalidity of the Trust or any of the Basic
Documents, (2) seeking to prevent the consummation of any of the
transactions contemplated by any of the Basic Documents 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.
(j) On the Closing Date, upon delivery thereof, each of
the First-Tier Case Assignment dated as of the Closing Date from Case
Credit to the Seller and the assignments of Receivables from Case Credit to
the Seller pursuant to the Liquidity Receivables Purchase Agreement has
been duly authorized, executed and delivered by Case Credit.
(k) When the 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).
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(l) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required for
the consummation of the transactions contemplated by this Agreement or the
Basic Documents, except such as are required and have been or will be
obtained and made on or prior to the Closing Date under the Securities Act
and such as may be required under state securities laws.
(m) Since [_________], there has not been any material
adverse change in the business, results of operations, condition (financial
or otherwise), prospects, or material properties or assets of the Seller,
Case Credit or Case Corporation.
(n) The computer tape of the Receivables created as of
[_________], and made available to the Representative by the Servicer, was
complete and accurate in all material respects as of the date thereof and
includes a description of the Receivables that are described in the
Second-Tier Case Assignment.
3. Purchase, Sale, and Delivery of the 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 & Xxxxx, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000 (or such other place as the Seller and the Representative
shall agree), on [_________] (the "Closing Date"). Delivery of the Notes
shall be made against payment of the purchase price in immediately
available funds drawn to the order of the Seller. The Notes to be so
delivered will be initially represented by one or more Notes registered in
the name of Cede & Co., the nominee of The Depository Trust Company
("DTC"). The interests of beneficial owners of the Notes will be
represented by book entries on the records of DTC and participating members
thereof. Definitive Notes will be available only under limited
circumstances.
4. Offering by Underwriters. It is understood that the
Underwriters propose to offer the Notes for sale to the public (which may
include selected dealers), as set forth in the Prospectus.
5. Covenants of the Seller. The Seller covenants and
agrees with each of the Underwriters that:
(a) The Seller will use its best efforts to cause the
Registration Statement, and any amendment thereto, if not effective at the
Execution Time, to become effective. Prior to the termination of the
offering of the Notes, the Seller will not file any amendment of the
Registration Statement or supplement to the Prospectus unless the Seller
has furnished you a copy for your review prior to filing and will not file
any such proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, if the Registration Statement has become
or becomes effective pursuant to Rule 430A, or filing of the
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Prospectus is otherwise required under Rule 424(b), the Seller will file
the Prospectus, properly completed, and any supplement thereto, with the
Commission pursuant to and in accordance with the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to you of such timely filing.
(b) The Seller will advise you promptly of any proposal
to amend or supplement the Registration Statement as filed, or the related
Prospectus and will not effect such amendment or supplement without your
consent, which consent will not unreasonably be withheld; the Seller will
also advise you promptly of any request by the Commission for any amendment
of or supplement to the Registration Statement or the Prospectus or for any
additional information; and the Seller will also advise you promptly of the
effectiveness of the Registration Statement and any amendment thereto, when
the Prospectus, and any supplement thereto, shall have been filed with the
Commission pursuant to Rule 424(b) and of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or the institution or threat of any proceeding for that purpose, and the
Seller will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible the lifting of any issued stop
order.
(c) If, at any time when a prospectus relating to the
Notes is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which 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.
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(f) The Seller will arrange for the qualification of the
Notes for sale under the laws of such jurisdictions in the United States as
you may reasonably designate and will continue such qualifications in
effect so long as required for the distribution.
(g) For a period from the date of this Agreement until
the retirement of the Notes, or until such time as the Underwriters shall
cease to maintain a secondary market in the Notes, whichever occurs first,
the Seller will deliver to you the annual statements of compliance and the
annual independent certified public accountants' reports furnished to the
Trustee or the Indenture Trustee pursuant to the Sale and Servicing
Agreement, as soon as such statements and reports are furnished to the
Trustee or the Indenture Trustee.
(h) So long as any of the Notes is outstanding, the
Seller will furnish to you (i) as soon as practicable after the end of the
fiscal year all documents required to be distributed to Noteholders or
filed with the Commission pursuant to the Exchange Act or any order of the
Commission thereunder and (ii) from time to time, any other information
concerning the Seller filed with any government or regulatory authority
which is otherwise publicly available, as you may reasonably request.
(i) On or before the Closing Date, the Seller shall cause
the computer records of the Seller and Case Credit relating to the
Receivables to be marked to show the Trust's absolute ownership of the
Receivables, and from and after the Closing Date neither the Seller nor
Case Credit shall take any action inconsistent with the Trust's ownership
of such Receivables, other than as permitted by the Sale and Servicing
Agreement.
(j) To the extent, if any, that the rating provided with
respect to the Notes by the rating agency or agencies that initially rate
the Notes is conditional upon the furnishing of documents or the taking of
any other actions by the Seller, the Seller shall furnish such documents
and take any such other actions.
(k) For the period beginning on the date of this
Agreement and ending seven days after the Closing Date, unless waived by
the Underwriters, none of the Seller, Case Credit or any trust originated,
directly or indirectly, by the Seller or Case Credit will offer to sell or
sell notes (other than the Notes and commercial paper notes offered
pursuant to Case Credit's existing asset-backed commercial paper program)
collateralized by, or certificates (other than the Certificates) evidencing
an ownership interest in, receivables generated pursuant to retail
agricultural or construction equipment installment sale contracts.
(l) On or prior to each Subsequent Transfer Date, to
deliver to the Representative (i) a duly executed Second-Tier Case
Subsequent Transfer Assignment including a schedule of the Subsequent
Receivables to be transferred to the Trust on such Subsequent Transfer
Date, (ii) a copy of the Opinions of Counsel with respect to the transfer
of the Subsequent Receivables to be transferred to the Trust on such
Subsequent Transfer Date to be delivered to (A) the Rating Agencies and (B)
the Trustee and the Indenture Trustee pursuant to Section 2.2(b)(xiv) of
the Sale and Servicing Agreement, (iii) a copy of the letter from a firm of
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independent nationally recognized certified public accountants to be
delivered to the Trustee and the Indenture Trustee pursuant to Section
2.2(b)(xv) of the Sale and Servicing Agreement, and (iv) a copy of the
Officer's Certificate delivered to the Indenture Trustee and the Trustee
pursuant to Section 2.2(b)(xvi) of the Sale and Servicing Agreement.
(m) The Seller will enter into, and will cause the Issuer
to enter into, each Basic Document to which this Agreement and each Basic
Document contemplates the Seller and/or the Issuer will be a party on or
prior to the Closing Date.
6. Payment of Expenses. The Seller will pay all expenses
incident to the performance of its obligations under this Agreement,
including (i) the printing and filing of the Registration Statement as
originally filed and of each amendment thereto, (ii) the fees of the
Indenture Trustee and its counsel, (iii) the preparation, issuance and
delivery of the Notes to the Underwriters, (iv) the fees and disbursements
of Case Credit's and the Seller's counsel and accountants, (v) the
qualification of the Notes under securities laws in accordance with the
provisions of Section 5(f), including filing fees and the fees and
disbursements of counsel for you in connection therewith and in connection
with the preparation of any blue sky or legal investment survey, (vi) the
printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, (vii) the
printing and delivery to the Underwriters of copies of any blue sky or
legal investment survey prepared in connection with the Notes, (viii) any
fees charged by rating agencies for the rating of the Notes and (ix) the
fees and expenses, if any, incurred with respect to any filing with the
National Association of Securities Dealers, Inc.
7. Conditions of the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for the Notes will be
subject to the accuracy of the representations and warranties on the part
of Case Credit and the Seller herein, to the accuracy of the statement 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 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
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contemplated by the Commission or by any authority administering any state
securities or blue sky law.
(c) On or prior the Closing Date, you shall have received
a letter or letters, dated as of the date of the Closing Date, of
[___________], independent public accountants, substantially in the form of
the drafts to which you have previously agreed and otherwise in form and
substance satisfactory to you and your counsel.
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly the business
or properties of the Trust, the Seller, Case Credit, Case Corporation or
CNH Global N.V. which, in the judgment of the Underwriters, materially
impairs the investment quality of the Notes or makes it impractical or
inadvisable to market the Notes; (ii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange; (iii) any
suspension of trading of any securities of Case Corporation or CNH Global
N.V. on any exchange or in the over-the-counter market which, in the
judgment of the Underwriters, makes it impractical or inadvisable to market
the Notes; (iv) any banking moratorium declared by Federal or New York
authorities; or (v) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress, or
any other substantial national or international calamity or emergency if,
in the judgment of the Underwriters, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment for the
Notes.
(e) You shall have received an opinion or opinions of
counsel to Case Credit and the Seller, addressed to you, as Representative
of the several Underwriters, the Trustee and the Indenture Trustee, dated
the Closing Date and satisfactory in form and substance to you and your
counsel, to the effect that:
(i) Each of Case Credit and the Seller is an existing
corporation in good standing under the laws of the State of
Delaware with corporate power and authority to own its properties
and conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement, the
Sale and Servicing Agreement, the Administration Agreement and the
Purchase Agreement and has obtained all necessary licenses and
approvals in each jurisdiction in which failure to qualify or to
obtain such license or approval would render any Receivable
unenforceable by the Seller, the Trustee or the Indenture Trustee.
(ii) The direction by the Seller to the Trustee to
authenticate the Certificates has been duly authorized by the
Seller and, when the Certificates have been duly executed,
authenticated and delivered by the Trustee in accordance with the
Trust Agreement, 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.
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(iii) The direction by Case Credit to the Indenture
Trustee to authenticate the Notes has been duly authorized by Case
Credit, and, when the Notes have been duly executed and delivered
by the Trustee, authenticated by the Indenture Trustee in
accordance with the Indenture and delivered and paid for pursuant
to this Agreement, the Notes will be duly issued and entitled to
the benefits and security afforded by the Indenture, subject to
the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors'
rights generally and to the effect of general principles of
equity, including concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether considered in a
proceeding in equity or at law).
(iv) The Liquidity Receivables Purchase Agreement, the
Purchase Agreement, the Trust Agreement and the Sale and Servicing
Agreement have been duly authorized, executed and delivered by the
Seller, and are legal, valid and binding obligations of the Seller
enforceable against the Seller in accordance with their terms,
subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors'
rights generally and to the effect of general principles of
equity, including concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether considered in a
proceeding in equity or at law).
(v) This Agreement has been duly authorized, executed
and delivered by each of the Seller and Case Credit.
(vi) The Liquidity Receivables Purchase Agreement, the
Purchase Agreement, the Sale and Servicing Agreement and the
Administration Agreement have been duly authorized, executed and
delivered by Case Credit and are legal, valid and binding
obligations of Case Credit enforceable against Case Credit in
accordance with their terms, subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally and to the
effect of general principles of equity, including concepts of
materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at
law).
(vii) The execution, delivery and performance of this
Agreement and the Basic Documents, as applicable, by Case Credit
and the Seller, and the consummation of the transactions
contemplated thereby, will not conflict with, or result in a
breach, violation or acceleration of, or constitute a default
under, the certificate of incorporation or by-laws of Case Credit
or the Seller or any material agreement or instrument known to
such counsel to which Case Credit or the Seller is a party or by
which Case Credit or the Seller is bound or to which any of the
properties of Case Credit or the Seller is subject.
(viii) The execution, delivery and performance of this
Agreement and the Basic Documents, as applicable, by Case Credit
and the Seller, and the consummation of the transactions
contemplated thereby, will not violate any statute, rule or
regulation or, to
11
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
transaction contemplated by any of the Basic Documents or the
execution and delivery thereof, or (3) that could reasonably be
expected to materially and adversely affect the performance by
Case Credit or the Seller, as applicable, of its obligations
under, or the validity or enforceability of, this Agreement or the
Basic Documents.
(x) Each of the Assignment dated as of the Closing Date
from Case Credit to the Seller and the assignments of Receivables
from Case Credit to the Seller pursuant to the Liquidity
Receivables Purchase Agreement have been duly authorized, executed
and delivered by Case Credit.
(xi) Immediately prior to the transfer of the Receivables
to the Trust, the Seller's interest in the Receivables, the
security interests in the Financed Equipment securing the
Receivables and the proceeds of each of the foregoing was
perfected upon the execution and delivery of the Basic Documents
and the filing of a UCC financing statement with the Secretary of
State of the State of Illinois and constituted a perfected first
priority interest therein. If a court concludes that the transfer
of the Receivables from the Seller to the Trust is a sale, the
interest of the Trust in the Receivables, the security interests
in the Financed Equipment securing the Receivables and the
proceeds of each of the foregoing will be perfected upon the
execution and delivery of the Basic Documents and the filing of a
UCC financing statement with the Secretary of State of the State
of Illinois and will constitute a first priority perfected
interest therein. If a court concludes that such transfer is not a
sale, the Sale and Servicing Agreement constitutes a grant by the
Seller to the Trust of a valid security interest in the
Receivables, the security interests in the Financed Equipment
securing the Receivables and the proceeds of each of the
foregoing, which security interest will be perfected upon the
execution and delivery of the Basic Documents and the filing of
the UCC financing statement with the Secretary of State of the
State of Illinois referred to above and will constitute a first
priority perfected security interest therein. No filing or other
action, other than the execution and delivery of the Basic
Documents and the filing of the UCC financing statement with the
Secretary of State of the State of Illinois referred to above, is
necessary to perfect and maintain the interest or the security
interest of the Trust in the Receivables, the security interests
in the Financed Equipment securing the Receivables and the
proceeds of each of the foregoing against third parties.
(xii) Assuming that Case Credit's standard procedures
have been followed with respect to the creation of the
Receivables, Case Credit obtains from each Dealer either an
absolute ownership interest or a security interest in the
Receivables originated by that
12
Dealer, which ownership or security interest (whichever it may be)
is perfected and prior to any other interests that may be
perfected only by possession of a Receivable or the filing of a
financing statement in accordance with the UCC. Assuming that Case
Credit's standard procedures with respect to the perfection of a
security interest in the equipment financed by Case Credit
pursuant to retail over-the-road truck or trailer, agricultural,
construction, forestry, or other equipment installment sale
contracts in the ordinary course of Case Credit's business have
been followed with respect to the perfection of security interests
in the Financed Equipment, Case Credit has acquired either a
perfected security interest in the Financed Equipment or a
perfected security interest in the Receivables, which indirectly
provides Case Credit with a security interest in the Financed
Equipment that is perfected as against the obligor's creditors;
provided, however, that such opinion need not address any
equipment that is subject to a certificate of title statute.
(xiii) The Indenture constitutes a grant by the Trust to
the Indenture Trustee of a valid security interest in the
Receivables, the security interests in the Financed Equipment
securing the Receivables and the proceeds of each of the
foregoing.
(xiv) The security interest granted under the Indenture
will be perfected upon the execution and delivery of the Basic
Documents and the filing of a UCC financing statement with the
Delaware Secretary of State and will constitute a first priority
perfected security interest therein. No filing or other action,
other than the execution and delivery of the Basic Documents and
the filing of the UCC financing statement with the Delaware
Secretary of State referred to above, is necessary to perfect and
maintain the security interest of the Indenture Trustee in the
Receivables, the security interests in the Financed Equipment
securing the Receivables and the proceeds of each of the foregoing
against third parties.
(xv) The Receivables are chattel paper as defined in
the UCC.
(xvi) The Sale and Servicing Agreement, the Trust
Agreement, the Indenture, the Administration Agreement and the
Purchase Agreement conform in all material respects with the
description thereof contained in the Prospectus and any supplement
thereto.
(xvii) The statements in the Basic Prospectus under the
headings "Risk Factors- Possible liability for third party claims
may cause payment delays or losses" and "Legal Aspects of the
Receivables", to the extent they constitute matters of law or
legal conclusions with respect thereto, are correct in all
material respects.
(xviii) The statements contained in the Prospectus and
any supplement thereto under the heading "Description of the
Notes", "Description of the Certificates", "Administration
Information About the Securities" and "Description of the
Transaction Agreements", insofar as such statements constitute a
summary of the Notes, the
13
Certificates, the Indenture, the Administration Agreement, the
Sale and Servicing Agreement and the Trust Agreement, fairly
present the matters referred to therein.
(xix) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by
this Agreement or the Basic Documents, except such as are required
and have been obtained and made under the Securities Act and such
as may be required under state securities laws (it being
understood that this opinion will be given only with respect to
such consents, approvals, authorizations, orders and filings that,
in such counsel's experience, are customarily applicable in
transactions of the type contemplated by this Agreement and the
Basic Documents).
(xx) The Trust Agreement is not required to be qualified
under the Trust Indenture Act and the Trust is not required to be
registered under the Investment Company Act of 1940, as amended
(the "Investment Company Act").
(xxi) The Indenture has been duly qualified under the
Trust Indenture Act.
(xxii) The Seller is not, and will not as a result of the
offer and sale of the 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 supplement thereto pursuant
to Rule 424(b) have been made in the manner and within the time
period required by Rule 424(b), and, to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under
the Act; and the Registration Statement and the Prospectus, and
each amendment or supplement thereto, as of the Closing Date (in
the case of the Registration Statement) and as of their respective
issue dates (in the case of the Prospectus and each supplement
thereto), complied as to form in all material respects with the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations.
(xxiv) The Trust has been duly formed and is validly
existing as a statutory business trust under the laws of the State
of Delaware, with full power and authority to execute, deliver and
perform its obligations under the Sale and Servicing Agreement,
the Indenture, the Administration Agreement, the Notes and the
Certificates.
(xxv) The Indenture, the Sale and Servicing Agreement and
the Administration Agreement have been duly authorized and, when
duly executed and delivered by the
14
Trustee, will constitute the legal, valid and binding obligations
of the Trust, enforceable against the Trust in accordance with
their terms, subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally and to the effect of general
principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
considered in a proceeding in equity or at law).
The opinions of counsel to Case Credit and the Seller
shall also state that such counsel has examined various documents and
participated in conferences with representatives of Case Credit, the
Seller, their counsel and their accountants and with representatives of the
Underwriters, at which time the contents of the Registration Statement and
the Prospectus and related matters were discussed. However, except as
specifically noted above, such counsel need not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in
the Registration Statement and the Prospectus. Subject to the foregoing,
such counsel shall advise you that no facts have come to their attention
that cause them to believe that the Registration Statement or the
Prospectus, at the Closing Date, contains any untrue statement of a
material fact or omits to state any material fact necessary in order to
make (x) the statements in the Registration Statement not misleading and
(y) the statements in the Prospectus not misleading in the light of the
circumstances under which they were made (in each case except for the
financial statements and related schedules or other financial or
statistical data included or incorporated by reference therein, as to which
such counsel will not be called upon to express a belief).
Such counsel shall also opine as to such other matters as
the Underwriters may reasonably request.
(f) You shall have received an opinion of Xxxxx, Xxxxx &
Xxxxx, special Illinois tax counsel for the Trust, addressed to you, as
Representative of the several Underwriters, and the Indenture Trustee,
dated the Closing Date and satisfactory in form and substance to you and
your counsel, to the effect that the statements in the Basic Prospectus
under the heading "Illinois State Tax Consequences" and in the Prospectus
Supplement under the heading "Summary of Terms--Tax Status" (to the extent
relating to Illinois tax consequences), accurately describe the material
Illinois tax consequences to holders of the Securities. Xxxxx, Xxxxx &
Xxxxx, in its capacity as special Illinois counsel to Case Credit and the
Seller, shall have delivered an opinion with respect to the perfection and
priority of the respective interests of the Seller and the Trust in the
Receivables under Illinois Law.
(g) You shall have received an opinion of [______________],
special Pennsylvania tax counsel for the Trust, addressed to you, as
Representative of the several Underwriters, and the Indenture Trustee, dated
the Closing Date and satisfactory in form and
substance to you and your counsel.
(h) You shall have received an opinion addressed to you,
as Representative of the several Underwriters, of Xxxxx, Xxxxx & Xxxxx, in its
capacity as Federal tax and ERISA.
15
counsel for the Trust, to the effect that the statements in the Basic
Prospectus under the heading "U.S. Federal Income Tax Consequences" and in
the Prospectus Supplement under the heading "Summary of Terms--Tax Status"
(to the extent relating to Federal income tax consequences) accurately
describe the material Federal income tax consequences to holders of the
Securities, and the statements in the Basic Prospectus under the heading
"ERISA Considerations," and in the Prospectus Supplement under the headings
"Summary of Terms--ERISA Considerations" and "ERISA Considerations," to the
extent that they constitute statements of matters of law or legal
conclusions with respect thereto, have been prepared or reviewed by such
counsel and accurately describe the material consequences to holders of the
Notes under ERISA.
(i) You shall have received from [_________________], in its
capacity as counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the validity of the 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.
(j) You shall have received an opinion or opinions
addressed to you, as Representative of the several Underwriters, Case
Credit and the Seller of counsel to the Indenture Trustee, dated the
Closing Date and satisfactory in form and substance to you and your
counsel, to the effect that:
(i) The Indenture Trustee is a banking corporation duly
incorporated and validly existing and in good standing under the
laws of the State of Illinois, and has full power and authority to
execute, deliver and perform its obligations under the Indenture,
the Sale and Servicing Agreement and the Administration Agreement.
(ii) Each of the Indenture, the Sale and Servicing
Agreement and the Administration Agreement has been duly
authorized, executed and delivered by the Indenture Trustee.
(iii) Each of the Indenture, the Sale and Servicing
Agreement and the Administration Agreement constitutes a legal,
valid and binding obligation of the Indenture Trustee, enforceable
against the Indenture Trustee in accordance with its respective
terms, except that certain of such obligations may be enforceable
solely against the Trust Estate and except that such enforcement
may be limited by bankruptcy, insolvency, reorganization,
moratorium, liquidation or similar laws affecting the enforcement
of creditors' rights generally, and by general principles of
equity, including without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
such enforceability is considered in a proceeding in equity or at
law).
(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
16
Indenture Trustee is required for the execution, delivery or
performance by the Indenture Trustee of each of the Indenture, the
Sale and Servicing Agreement and the Administration Agreement.
(v) The Notes have been duly authenticated by the
Indenture Trustee in accordance with the terms of the Indenture.
(vi) Neither the execution, delivery or performance by
the Indenture Trustee of the Indenture, the Sale and Servicing
Agreement and the Administration Agreement nor the compliance with
the terms and provisions thereof, nor the performance of its
obligations thereunder, conflicts or results in a breach of or
constitutes a default under any of the terms, conditions or
provisions of any law, government rule or regulation of the United
States or the State of Illinois governing the banking or trust
powers of the Indenture Trustee or the Charter or By-Laws of the
Indenture Trustee or, to such counsel's knowledge, any order,
writ, injunction or decree of any court or governmental authority
against the Indenture Trustee or by which it or any of its
properties is bound or, to such counsel's knowledge, any
indenture, mortgage or contract or other agreement or instrument
to which the Indenture Trustee is a party or by which it or any of
its properties is bound, or results in the creation or imposition
of any lien, charge or encumbrance upon any of its properties
pursuant to any agreement or instrument, except encumbrances and
security interests contemplated by the Indenture, the Sale and
Servicing Agreement and the Administration Agreement.
(vii) There are no actions, suits or proceedings pending
or, to the best of such counsel's knowledge, threatened against
the Indenture Trustee before any court, or by or before any
federal, state, municipal or other governmental department,
commission, board, bureau or governmental agency or
instrumentality, or arbitrator which would, if adversely
determined, affect in any material respect the consummation,
validity or enforceability against the Indenture Trustee of any of
the Indenture, the Sale and Servicing Agreement and the
Administration Agreement.
(k) You shall have received an opinion addressed to you,
as Representative of the several Underwriters, Case Credit and the Seller
of counsel to the Trustee, dated the Closing Date and satisfactory in form
and substance to you and your counsel, to the effect that:
(i) The Trustee is duly incorporated, validly existing in
good standing as a banking corporation under the laws of the State
of 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.
17
(iv) Neither the execution or delivery by the Trustee of
the Trust Agreement nor the consummation by the Trustee of any of
the transactions contemplated thereby nor compliance by the
Trustee with the terms or provisions of the Trust Agreement will
violate any New York or United States federal law, rule or
regulation governing the banking or trust powers of the Trustee or
the Trustee's certificate of incorporation or by- laws or require
the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action with respect
to, any governmental authority or agency under the laws of the
State of New York or the United States governing the banking trust
powers of the Trustee.
(v) There are no actions, suits or proceedings pending
or, to the best of such counsel's knowledge without independent
investigation, threatened against the Trustee before any court, or
by or before any federal, state, municipal or other governmental
department, commission, board, bureau or governmental agency or
instrumentality, or arbitrator which would, if adversely
determined, affect in any material respect the consummation,
validity or enforceability against the Trustee of the Trust
Agreement.
You shall also have received an opinion addressed to you,
as Representative of the several Underwriters, Case Credit and the Seller
of counsel to [_____________________], as [_____________] Trustee, dated
the Closing Date and satisfactory in form and substance to you and your
counsel, covering such matters as you and your counsel may reasonably
request.
(l) You shall have received an opinion addressed to you,
as Representative of the several Underwriters, Case Credit and the Seller,
of Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel to the Trust, dated
the Closing Date, subject to customary qualifications, exceptions and
assumptions, and satisfactory in form and substance to you and your
counsel, substantially to the effect that:
(i) The Trust has been duly formed and is validly
existing in good standing as a business trust under the laws of
the State of Delaware.
(ii) The Trust has the power and authority, pursuant to
the Trust Agreement and the laws of the State of Delaware, to
execute, deliver and perform its obligations under the Basic
Documents to which it is a party, and has duly authorized the
Trustee to execute and deliver such Basic Documents.
(iii) The Certificates have been validly issued and are
entitled to the benefits of the Trust Agreement.
(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.
18
(v) To the extent that Article 9 of the Uniform
Commercial Code as in effect in the State of Delaware (the
"DELUCC"), is applicable (without regard to conflicts of laws
principles), and assuming that the security interest created by
the Indenture in the Collateral (as defined in the Indenture) has
been duly created and has attached, upon the filing of the
Financing Statement with the Secretary of State, the Indenture
Trustee will have a perfected security interest in that portion of
the Collateral that consists of general intangibles, accounts or
chattel paper (as such terms are defined in the DELUCC) and the
proceeds thereof and such security interest will be prior to any
other security interest granted by the Trust that is perfected
solely by the filing of financing statements under the DELUCC,
excluding purchase money security interests under ss. 9-312 of the
DELUCC and temporarily perfected security interests in proceeds
under ss. 9-306 of the DELUCC. No refiling or other action is
necessary under the DELUCC in order to maintain the perfection of
such security interest except for the filing of continuation
statements at five year intervals. To the extent the DELUCC
applies, the Receivables (in the form attached as an exhibit to
such opinion) are "chattel paper" as defined in Section
9-105(1)(b) of the DELUCC.
(vi) Under the Delaware Business Trust Act, no creditor
of any Certificateholder shall have any right to obtain possession
of, or otherwise exercise legal or equitable remedies with respect
to, the property of the Trust except in accordance with the terms
of the Trust Agreement.
(m) You, as Representative of the several Underwriters,
shall have received copies of any opinions of counsel to Case Credit and
the Seller supplied to the Rating Agencies. Any such opinions shall be
dated the Closing Date and addressed to you, as Representative of the
several Underwriters, or accompanied by reliance letters addressed to you,
as Representative of the several Underwriters.
(n) You shall have received certificates dated the
Closing Date of any two of the Chairman of the Board, the President, the
Executive Vice President, any Vice President, the Treasurer, any Assistant
Treasurer, the principal financial officer or the principal accounting
officer of each of Case Credit, the Seller and the Servicer in which such
officers shall state that, to the best of their knowledge after reasonable
investigation, (i) the representations and warranties of each of Case
Credit and the Seller contained in the Trust Agreement, the Liquidity
Receivables Purchase Agreement, the Purchase Agreement and the Sale and
Servicing Agreement, as applicable, are true and correct in all material
respects, that each of Case Credit and the Seller has complied in all
material respects with all agreements and satisfied in all material
respects all conditions on its part to be performed or satisfied under such
agreements at or prior to the Closing Date, that no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated by
the Commission and (ii) since [_________] except as may be disclosed in the
Prospectus or, in the case of Case Credit or Case Corporation, as may be
disclosed publicly by Case Credit or Case Corporation prior to the
Execution Time, no material adverse change in or
19
affecting particularly the business or properties of the Trust, the Seller,
the Servicer, Case Credit or Case Corporation has occurred.
(o) You shall have received evidence satisfactory to you
that, on or before the Closing Date, UCC financing statements have been or
are being filed in the office of the Secretary of State of the States of
Illinois and Delaware reflecting the transfer of the interest of Case
Credit in the Receivables and the proceeds thereof to the Seller, and the
transfer of the interest of the Seller in the Receivables and the proceeds
thereof to the Trust and the grant of the security interest by the Trust in
the Receivables and the proceeds thereof to the Indenture Trustee.
(p) The A-1 Notes shall have been rated A-1+ and P-1, the
A-2 Notes, the A-3 Notes and the A-4 Notes shall have been rated AAA and
Aaa, and the Class B Notes shall have been rated A and A3 by Standard &
Poor's Ratings Services and Xxxxx'x Investors Service, Inc., respectively.
(q) The issuance of the Notes and the Certificates shall
not have resulted in a reduction or withdrawal by any Rating Agency of the
current rating of any outstanding securities issued or originated by the
Seller.
(r) On the Closing Date, the Certificates shall have
been issued to the Seller.
(s) The Seller will provide or cause to be provided to
you, as Representative of the several Underwriters, such conformed copies
of such opinions, certificates, letters and documents as you reasonably
request.
The documents required to be delivered by this Section 7
will be delivered at the office of counsel for Case Credit and the Seller,
at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, on the Closing Date.
8. Indemnification and Contribution. (a) The Seller
and Case Credit will, jointly and severally, indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be
stated therein or necessary to 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
20
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent
of the Seller or Case Credit; and
(iii) against any and all expense whatsoever (including,
subject to Section 8(c) hereof, the fees and disbursements of
counsel), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
(i) or (ii) above.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Seller, its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the
Seller within the meaning of Section 15 of the Act and Section 20 of the
Exchange Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with
written information furnished to the Seller by such Underwriter through you
expressly for use in the Registration Statement (or any amendment thereto)
or such preliminary Basic Prospectus, Preliminary Prospectus Supplement,
Basic Prospectus or the Prospectus or any amendment or supplement thereto.
(c) Each indemnified party shall give prompt notice to
each indemnifying party of any action commenced against it in respect of
which indemnity may be sought hereunder and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
and any others the indemnifying party may designate in such proceeding and
shall pay the fees and expenses of such counsel related to such proceeding,
but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability that it may have otherwise than on
account of this indemnity agreement. In any proceeding hereunder any
indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the contrary, (ii) the indemnifying
party has failed within a 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
21
understood that the indemnifying party shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for
the fees and expenses of more than one separate firm (in addition to any
local counsel) for all indemnified parties, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate firm
for the Underwriters and such control persons of Underwriters shall be
designated in writing by the Representative and any such separate firm for
Case Credit and the Seller, the directors of Case Credit and the Seller,
the officers of Case Credit and the Seller who sign the Registration
Statement and such control persons of Case Credit and the Seller or
authorized representatives shall be designated in writing by Case Credit
and the Seller. The indemnifying party shall not be liable for any
statement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify any indemnified party
from and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for
in this Section 8 is for any reason held to be unavailable other than in
accordance with its terms, the Seller, Case Credit and the Underwriters
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by
the Seller and one or more of the Underwriters, in such proportions that
the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount and commissions appearing on the
cover page of the Prospectus bears to the initial public offering price
appearing thereon and the Seller and Case Credit are responsible for the
balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the
Act shall have the same rights to contribution as such Underwriter, and
each director of the Seller, each officer of the Seller who signed the
Registration Statement, and each person, if any, who controls the Seller
within the meaning of Section 15 of the Act shall have the same rights to
contribution as the Seller. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount
in excess of the underwriting discount or commission applicable to the
Notes purchased by it hereunder.
9. Defaults of Underwriters. If any Underwriter or
Underwriters default in their obligations to purchase Notes hereunder on
the Closing Date and arrangements satisfactory to the Representative and
the Seller for the purchase of such Notes by other persons are not made
within 24 hours after such default, this Agreement will terminate without
liability on the part of any nondefaulting Underwriter or the Seller,
except as provided in Section 11 and except that, if the aggregate
principal amount of Notes which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall be [__]% or less of the aggregate
principal amount of all the
22
Notes set forth in Schedule I hereto, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions
which the aggregate principal amount of Notes set forth opposite their
names in Schedule I hereto bears to the aggregate principal amount of Notes
set forth opposite the names of all the remaining Underwriters) the Notes
which the defaulting Underwriter or Underwriters agreed but failed to
purchase. As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein
will relieve a defaulting Underwriter from liability for its default.
10. No Bankruptcy Petition. Each Underwriter covenants
and agrees that, prior to the date which is one year and one day after the
payment in full of all securities issued by the Seller or by a trust for
which the Seller was the depositor, which securities were rated by any
nationally recognized statistical rating organization, it will not
institute against, or join any other Person in instituting against, the
Seller any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other proceedings under any Federal or state
bankruptcy or similar law.
11. Survival of Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Seller and Case Credit or any of their officers and each
of the Underwriters set forth in or made pursuant to this Agreement or
contained in certificates of officers of the Seller submitted pursuant
hereto shall remain operative and in full force and effect, regardless of
(i) any termination of this Agreement, (ii) any investigation or statement
as to the results thereof made by or on behalf of any Underwriter or of the
Seller or any of their respective representatives, officers or directors or
any controlling person, and (iii) delivery of and payment for the Notes. If
for any reason the purchase of the Notes by the Underwriters is not
consummated, the Seller shall remain responsible for the expenses to be
paid or reimbursed by the Seller pursuant to Section 6 and the respective
obligations of the Seller and the Underwriters pursuant to Section 8 shall
remain in effect. If for any reason the purchase of the Notes by the
Underwriters is not consummated (other than because of a failure to satisfy
the conditions set forth in items (ii), (iv) or (v) of Section 7(d)), the
Seller will reimburse any Underwriter, upon demand, for all reasonable
out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by it in connection with the offering of the Notes.
Nothing contained in this Section 11 shall limit the recourse of the Seller
against the Underwriters.
12. Notices. All communications hereunder will be in
writing and, if sent to the Underwriters, will be mailed, delivered or
telegraphed and confirmed to the Underwriters at Xxxxxxx Xxxxx Barney Inc.,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; 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, Xxxxxxxx 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.
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13. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective successors
and the officers and directors and controlling persons referred to in
Section 8, and no other person will have any right or obligations
hereunder. No purchaser of Notes from any Underwriter shall be deemed to be
a successor of such Underwriter merely because of such purchase.
14. Representation. You will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by you will be binding upon all the
Underwriters.
15. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same Agreement.
16. Applicable Law. This Agreement will be governed by, and
construed in accordance with, the laws of the State of New York.
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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:
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first written above.
[________________________]
on behalf of itself and as Representative
of the several Underwriters,
By:__________________________________________
Name:
Title:
25
SCHEDULE I
CNH EQUIPMENT TRUST 200_-_
OFFERED SECURITY PRINCIPAL AMOUNT PRICE
Class A-1 Notes
---------------
[_______________________] $[_________] [_________]%
[_______________________] $[_________] [_________]%
[_______________________] $[_________] [_________]%
[_______________________] $[_________] [_________]%
[_______________________] $[_________] [_________]%
[_______________________] $[_________] [_________]%
Class A-2 Notes $[_________] [_________]%
---------------
[_______________________] $[_________] [_________]%
[_______________________] $[_________] [_________]%
[_______________________] $[_________] [_________]%
[_______________________] $[_________] [_________]%
[_______________________] $[_________] [_________]%
[_______________________] $[_________] [_________]%
Class A-3 Notes
---------------
[_______________________] $[_________] [_________]%
[_______________________] $[_________] [_________]%
[_______________________] $[_________] [_________]%
[_______________________] $[_________] [_________]%
[_______________________] $[_________] [_________]%
26
Class A-4 Notes
---------------
[_______________________] $[_________] [_________]%
[_______________________] $[_________] [_________]%
[_______________________] $[_________] [_________]%
[_______________________] $[_________] [_________]%
[_______________________] $[_________] [_________]%
[_______________________] $[_________] [_________]%
Class B Notes
-------------
[_______________________] $[_________] [_________]%
[_______________________] $[_________] [_________]%
27
