CASE NEW HOLLAND INC. $500,000,000 7.125% Senior Notes due 2014 REGISTRATION RIGHTS AGREEMENT
Exhibit 4.3
CASE NEW HOLLAND INC.
$500,000,000 7.125% Senior Notes due 2014
March 3, 2006
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Case New Holland Inc., a corporation organized under the laws of Delaware (the “Company”),
proposes to issue and sell to UBS Securities LLC (the “Initial Purchaser”), upon the terms set
forth in the purchase agreement dated February 24, 2006 (the “Purchase Agreement”), relating to the
initial placement (the “Initial Placement”) of its 7.125% Senior Notes due 2014 (the “Notes”). The
Company’s obligations under the Notes will be guaranteed (the “Guarantees”) by its parent company,
CNH Global N.V., and certain of CNH Global N.V.’s direct and indirect subsidiaries, including
certain of the Company’s direct and indirect subsidiaries, named in Schedule II to the Purchase
Agreement (collectively, the “Guarantors”). References herein to the “Issuers” refer to the
Company and the Guarantors. References herein to the “Securities” refer to the Notes and the
Guarantees. To induce the Initial Purchaser to enter into the Purchase Agreement and to satisfy a
condition of your obligations thereunder, the Company agrees with you for your benefit and the
benefit of the holders from time to time of the Securities and Exchange Securities (as defined
below) (including the Initial Purchaser) (each a “Holder” and, collectively, the “Holders” for so
long as such Person holds Securities), as follows:
1. Definitions. Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement. As used in this Agreement, the following
defined terms shall have the following respective meanings:
“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder.
“Affiliate” of any specified Person shall mean any other Person that, directly or indirectly,
is in control of, is controlled by, or is under common control with, such specified Person. For
purposes of this definition, control of a Person shall mean the power, direct or
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indirect, to
direct or
cause the direction of the management and policies of such Person whether by contract or
otherwise; and the terms “controlling” and “controlled” shall have meanings correlative to the
foregoing.
“Broker-Dealer” shall mean any broker or dealer registered as such under the Exchange Act.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day
on which banking institutions or trust companies are authorized or obligated by law to close in New
York City.
“Commission” shall mean the Securities and Exchange Commission.
“Company” shall have the meaning set forth in the preamble hereto.
“Conduct Rules” shall have the meaning set forth in Section 5(u) hereof.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Exchange Offer Registration Period” shall mean the 180-day period following the consummation
of the Registered Exchange Offer, exclusive of any period during which any stop order shall be in
effect suspending the effectiveness of the Exchange Offer Registration Statement.
“Exchange Offer Registration Statement” shall mean a registration statement of the Issuers on
an appropriate form under the Act with respect to the Registered Exchange Offer, all amendments and
supplements to such registration statement, including post-effective amendments thereto, in each
case including the Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
“Exchange Securities” shall mean debt securities of the Issuers identical in all material
respects to the Securities (except that the cash interest and interest rate step-up provisions and
the U.S. transfer restrictions shall be modified or eliminated, as appropriate) to be issued under
the Indenture.
“Exchanging Dealer” shall mean any Holder (which may include the Initial Purchaser) that is a
Broker-Dealer and elects to exchange any Securities that it acquired for its own account as a
result of market-making activities or other trading activities (but not directly from any Issuer or
any Affiliate of any Issuer) for Exchange Securities.
“Final Offering Memorandum” shall have the meaning set forth in the Purchase Agreement.
“Guarantee” shall have the meaning set forth in the preamble hereto.
“Guarantors” shall have the meaning set forth in the preamble hereto.
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“Holder” shall have the meaning set forth in the preamble hereto.
“Indenture” shall mean the indenture dated as of March 3, 2006 among the Company, the
Guarantors and JPMorgan Chase Bank, N.A., as may be amended or supplemented from time to time in
accordance with the terms thereof.
“Initial Placement” shall have the meaning set forth in the preamble hereto.
“Initial Purchaser” shall have the meaning set forth in the preamble hereto.
“Issuers” shall have the meaning set forth in the preamble hereto.
“Judgment Currency” shall have the meaning set forth in Section 20 hereof.
“Losses” shall have the meaning set forth in Section 7(d) hereof.
“Majority Holders” shall mean the Holders of a majority of the aggregate principal amount of
Securities and Exchange Securities registered under any Registration Statement.
“Managing Underwriters” shall mean the investment banker or investment bankers and manager or
managers that shall administer an underwritten offering of the Securities.
“Person” shall mean an individual, trustee, corporation, partnership, limited liability
company, joint stock company, trust, unincorporated association, union, business association, firm
or other legal entity.
“Prospectus” shall mean the prospectus included in any Registration Statement (including,
without limitation, a prospectus that discloses information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A under the Act), as
amended or supplemented by any prospectus supplement, with respect to the terms of the offering of
any portion of the Securities or the Exchange Securities covered by such Registration Statement,
and all amendments and supplements thereto and all material incorporated by reference therein.
“Purchase Agreement” shall have the meaning set forth in the preamble hereto.
“Registered Exchange Offer” shall mean the proposed offer of the Issuers to issue and deliver
to the Holders of the Securities that are not prohibited by any law or policy of the Commission
from participating in such offer, in exchange for the Securities, a like aggregate principal amount
of the Exchange Securities.
“Registration Statement” shall mean any Exchange Offer Registration Statement or Shelf
Registration Statement that covers any of the Securities or the Exchange Securities pursuant to the
provisions of this Agreement, any amendments and supplements to such registration statement,
including post-effective amendments (in each case including the
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Prospectus contained therein), all
exhibits thereto and all material incorporated by reference therein.
“Securities” shall have the meaning set forth in the preamble hereto.
“Shelf Registration” shall mean a registration effected pursuant to Section 3 hereof.
“Shelf Registration Period” shall have the meaning set forth in Section 3(c) hereof.
“Shelf Registration Statement” shall mean a “shelf” registration statement of the Issuers
pursuant to the provisions of Section 3 hereof which covers some or all of the Securities or
Exchange Securities, as applicable, on an appropriate form under Rule 415 under the Act, or any
similar rule that may be adopted by the Commission, amendments and supplements to such registration
statement, including post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference therein.
“Trustee” shall mean the trustee with respect to the Securities under the Indenture.
“Underwriter” shall mean any underwriter of Securities or Exchange Securities in connection
with an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer.
(a) The Issuers shall prepare and, not later than June 30, 2006, shall file with the
Commission the Exchange Offer Registration Statement with respect to the Registered Exchange Offer.
The Issuers shall use their reasonable best efforts to cause the Exchange Offer Registration
Statement to become effective under the Act within 90 days following the filing date of the
registration statement (or if such 90th day is not a Business Day, the next succeeding Business
Day).
(b) Upon the filing of the Exchange Offer Registration Statement, the Issuers shall use their
reasonable best efforts to consummate the Registered Exchange Offer within 120 days, it being the
objective of such Registered Exchange Offer to enable each Holder eligible and electing to exchange
Securities for Exchange Securities (assuming that such Holder is not an Affiliate of any of the
Issuers, acquires the Exchange Securities in the ordinary course of such Holder’s business, has no
arrangements with any Person to participate in the distribution of the Exchange Securities and is
not prohibited by any law or policy of the Commission from participating in the Registered Exchange
Offer) to trade such Exchange Securities from and after their receipt without any limitations or
restrictions under the Act and without material restrictions under the securities laws of a
substantial proportion of the States of the United States.
(c) In connection with the Registered Exchange Offer, the Issuers shall:
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(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of transmittal and related
documents;
(ii) keep the Registered Exchange Offer open for not less than 20 Business Days and not
more than 30 Business Days after the date notice thereof is mailed to the Holders (or, in
each case, longer if required by applicable law);
(iii) use their reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective under the Act, supplemented and amended as required, to
ensure that it is available for sales of Exchange Securities by Exchanging Dealers during
the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered Exchange Offer with an
address in the Borough of Manhattan in New York City, which may be the Trustee, or an
Affiliate of the Trustee;
(v) permit Holders to withdraw tendered Securities at any time prior to the close of
business, New York time, on the last Business Day on which the Registered Exchange Offer is
open;
(vi) if requested by the Commission, prior to effectiveness of the Exchange Offer
Registration Statement, provide a supplemental letter to the Commission (A) stating that the
Issuers are conducting the Registered Exchange Offer in reliance on the position of the
Commission in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988) and
Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991); and (B) including a
representation that the Issuers have not entered into any arrangement or understanding with
any Person to distribute the Exchange Securities to be received in the Registered Exchange
Offer and that, to the best of the Issuers’ information and belief, each Holder
participating in the Registered Exchange Offer is acquiring the Exchange Securities in the
ordinary course of business and has no arrangement or understanding with any Person to
participate in the distribution of the Exchange Securities; and
(vii) comply in all respects with all applicable laws relating to the Registered
Exchange Offer.
(d) As soon as practicable after the close of the Registered Exchange Offer, the Issuers
shall:
(i) accept for exchange all Securities duly tendered and not validly withdrawn pursuant
to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in accordance with Section 5(s) all
Securities so accepted for exchange; and
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(iii) cause the Trustee promptly to authenticate and deliver to each Holder of
Securities a principal amount of Exchange Securities equal to the principal amount of the
Securities of such Holder so accepted for exchange.
(e) Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder
using the Registered Exchange Offer to participate in a distribution of the Exchange Securities (x)
could not under Commission policy as in effect on the date of this Agreement rely on the position
of the Commission in Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991) and Exxon
Capital Holdings Corporation (pub. avail. May 13, 1988), as interpreted in the Commission’s
letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters; and (y) must comply
with the registration and prospectus delivery requirements of the Act in connection with any
secondary resale transaction and must be covered by an effective registration statement containing
the selling security holder information required by Items 507 and 508, of Regulation S-K, as
applicable, under the Act if the resales are of Exchange Securities obtained by such Holder in
exchange for Securities acquired by such Holder directly from any Issuer or one of its Affiliates.
Accordingly, each Holder participating in the Registered Exchange Offer shall be required to
represent to the Issuers that, at the time of the consummation of the Registered Exchange Offer:
(i) any Exchange Securities received by such Holder will be acquired in the ordinary
course of business;
(ii) such Holder will have no arrangement or understanding with any Person to
participate in the distribution of the Securities or the Exchange Securities within the
meaning of the Act; and
(iii) such Holder is not an Affiliate of any Issuer.
(f) If the Initial Purchaser determines that it is not eligible to participate in the
Registered Exchange Offer with respect to the exchange of Securities constituting any portion of an
unsold allotment, at the request of the Initial Purchaser, the Issuers shall issue and deliver to
the Initial Purchaser or the Person purchasing Exchange Securities registered under a Shelf
Registration Statement as contemplated by Section 3 hereof from the Initial Purchaser, in exchange
for such Securities, a like principal amount of Exchange Securities. The Company shall use its
reasonable best efforts to cause the CUSIP Service Bureau to issue the same CUSIP and ISIN numbers
for such Exchange Securities as for Exchange Securities issued pursuant to the Registered Exchange
Offer.
(g) Interest on each Exchange Security shall accrue from the last date on which interest was
paid on the Security surrendered in exchange therefor or, if no interest has been paid on such
Security, from the date of such Security’s original issue.
3. Shelf Registration.
(a) If (i) due to any change in law or applicable interpretations thereof by the Commission’s
staff, the Issuers determine upon advice of their outside counsel that they
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are not permitted to
effect the Registered Exchange Offer as contemplated by Section 2 hereof; (ii) for any other reason
the Registered Exchange Offer is not declared effective within 90 days after the date of filing of
the Exchange Offer Registration Statement or the Registered Exchange Offer is not consummated
within 120 days after the Exchange Offer Registration Statement is filed; (iii) the Initial
Purchaser so requests with respect to Securities that are not eligible to be exchanged for Exchange
Securities in the Registered Exchange Offer and that are held by it following consummation of the
Registered Exchange Offer; (iv) any Holder (other than the Initial Purchaser) is not eligible to
participate in the Registered Exchange Offer; or (v) in the event the Initial Purchaser
participates in the Registered Exchange Offer or acquires Exchange Securities pursuant to Section
2(f) hereof, the Initial Purchaser does not receive freely tradeable Exchange Securities in
exchange for Securities constituting any portion of an unsold allotment (it being understood that
(x) the requirement that the Initial Purchaser deliver a Prospectus containing the information
required by Items 507 and 508 of Regulation S-K, as applicable, under the Act in connection with
sales of Exchange Securities acquired in exchange for such Securities shall result in such Exchange
Securities being not “freely tradeable”; and (y) the requirement that an Exchanging Dealer deliver
a Prospectus in connection with sales of Exchange Securities acquired in the Registered Exchange
Offer in exchange for Securities acquired as a result of market-making activities or other trading
activities shall not result in such Exchange Securities being not “freely tradeable”), the Issuers
shall effect a Shelf Registration in accordance with Section (b) hereof.
(b) The Issuers shall as promptly as practicable (but in no event more than 30 days after so
required or requested pursuant to this Section 3), file with the Commission and thereafter shall
use their reasonable best efforts to cause to be declared effective under the Act a Shelf
Registration Statement relating to the offer and sale of the Securities or the Exchange Securities,
as applicable, by the Holders thereof from time to time in accordance with the methods of
distribution elected by such Holders and set forth in such Shelf Registration Statement; provided,
however, that no Holder (other than the Initial Purchaser) shall be entitled to have the Securities
held by it covered by such Shelf Registration Statement unless such Holder agrees in writing to be
bound by all of the provisions of this Agreement applicable to such Holder; and provided, further,
that with respect to Exchange Securities received by the Initial Purchaser in exchange for
Securities constituting any portion of an unsold allotment, the Issuers may, if permitted by
current interpretations by the Commission’s staff, file a post-effective amendment to the Exchange
Offer Registration Statement containing the information required by Items 507 and 508 of Regulation
S-K, as applicable, in satisfaction of their obligations under this subsection with respect
thereto, and any such Exchange Offer Registration Statement, as so amended, shall be referred to
herein as, and governed by the provisions herein applicable to, a Shelf Registration Statement.
(c) The Issuers shall use their reasonable best efforts to keep the Shelf Registration
Statement continuously effective, supplemented and amended as required by the Act, in order to
permit the Prospectus forming part thereof to be usable by Holders for a period of two years from
the date the Shelf Registration Statement is declared effective by the Commission or such shorter
period that will terminate when all the Securities or Exchange Securities, as applicable, covered
by the Shelf Registration Statement have been sold pursuant
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to the Shelf Registration Statement (in
any such case, such period being called the “Shelf Registration Period”).
(d) The Issuers shall use reasonable best efforts to ensure that the Shelf Registration
Statement and the related Prospectus and any amendment or supplement thereto, as of the effective
date of the Shelf Registration Statement or such amendment or supplement, (A) comply in all
material respects with the applicable requirements of the Act and the rules and regulations of the
Commission; and (B) do not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
4. Additional Interest
(a) The Issuers and the Initial Purchaser agree that the Holders will suffer damages if the
Issuers fail to fulfill their obligations under Section 2 or Section 3 hereof and that it would not
be feasible to ascertain the extent of such damages with precision. Accordingly, the Issuers agree
that if:
(i) on or prior to June 30, 2006, neither the Exchange Offer Registration
Statement nor the Shelf Registration Statement has been filed with the Commission,
(ii) on or prior to the 91st day following the date of the filing of the
applicable Registration Statement referred to in clause (i) above, neither the
Exchange Offer Registration Statement nor the Shelf Registration Statement has been
declared effective,
(iii) on or prior to the 121st day after the Exchange Offer Registration
Statement is filed, the Registered Exchange Offer has not been consummated,
(iv) if the Company is otherwise required to file a Shelf Registration
Statement pursuant to this Agreement, the Company shall fail to file such Shelf
Registration Statement within 30 days after it is so required or requested or such
Shelf Registration Statement shall not have been declared effective within 90 days
of such required filing date, or
(v) after either the Exchange Offer Registration Statement or the Shelf
Registration Statement has been declared effective, such Registration Statement
thereafter ceases to be effective or usable in connection with resales of Securities
or Exchange Securities at any time at which it is required to be so effective or
usable under this Agreement; provided, that no Registration Default (as defined
below) under this clause (v) shall have occurred if such Shelf Registration
Statement, or, if the Registered Exchange Offer shall have been consummated, such
Exchange Offer Registration Statement, ceases to be effective or usable in
connection with resales of Securities or Exchange
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Securities so long as such action
is taken upon the occurrence or existence of any pending corporate development or
any other material event that, in the reasonable and good faith judgment of the
Company, makes it appropriate to suspend the availability of a Shelf Registration
Statement or the Exchange Offer Registration Statement, as the case may be, and the
related Prospectus, in which case, the Company shall give prompt notice (without
notice of the nature or details of such events) to the Holders that the availability
of such Registration Statement is suspended and, upon actual receipt of any such
notice, each Holder agrees not to sell any Securities or Exchange Securities
pursuant to such Registration Statement until such Holder’s receipt of copies of the
supplemented or amended Prospectus provided for in Section 3(c) hereof, or until it
is advised in writing by the Company that the Prospectus may be used, and has
received copies of any additional or supplemental filings that are incorporated or
deemed incorporated by reference in such Prospectus; provided further that the
period during which the availability of such Registration Statement and any
Prospectus is suspended shall not exceed 45 days in any three-month period or 90
days in any twelve-month period,
(each such event referred to in clauses (i) through (v), a “Registration Default”), interest
(“Additional Interest”) will accrue on the principal amount of the Securities and the Exchange
Securities (in addition to the stated interest on the Securities and Exchange Securities) from and
including the date on which any such Registration Default shall occur to but excluding the date on
which all Registration Defaults have been cured. Additional Interest will accrue at a rate of
0.25% per annum during the 90-day period immediately following the occurrence of such Registration
Default and shall increase by 0.25% per annum at the end of each subsequent 90-day period, but in
no event shall such rate exceed 1.0% per annum.
(b) So long as Securities remain outstanding, the Company shall notify the Trustee within five
Business Days after each and every date on which an event occurs in respect of which Additional
Interest is required to be paid. Any amounts of Additional Interest due pursuant to clauses (a)(i)
— (a)(v) of this Section 4 will be payable in cash semi-annually on each March 1 and September 1
(each an “Additional Interest Payment Date”), commencing with the first such date occurring after
any such Additional Interest commences to accrue, to Holders to whom regular interest is payable on
such Additional Interest Payment Date. The amount of Additional Interest for each Security will be
determined by multiplying the applicable rate of Additional Interest by the aggregate principal
amount of such Security outstanding on the Additional Interest Payment Date following such
Registration Default in the case of the first such payment of Additional Interest with respect to a
Registration Default (and thereafter at the next succeeding Additional Interest Payment Date until
the cure of such Registration Default), and multiplying the product of the foregoing by a fraction,
the numerator of which is the number of days such Additional Interest rate was applicable during
such period (determined on the basis of a 360-day year comprised of twelve 30-day months and, in
the case of a partial month, the actual number of days elapsed), and the denominator of which is
360.
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5. Additional Registration Procedures. In connection with any Shelf Registration
Statement and, to the extent applicable, any Exchange Offer Registration Statement, the following
provisions shall apply:
(a) The Issuers shall:
(i) furnish to each of you, not less than three Business Days prior to the
filing thereof with the Commission, a copy of the Exchange Offer Registration
Statement and the Shelf Registration Statement, as the case may be, and each
amendment thereof and each amendment or supplement, if any, to the Prospectus
included therein (including all documents incorporated by reference therein after
the initial filing) and shall use their reasonable best efforts to reflect in each
such document, when so filed with the Commission, such comments as you reasonably
propose;
(ii) in the case of an Exchange Offer Registration Statement, to the extent
permitted by the Act, include the information in substantially the form set forth in
Annex A hereto on the front cover of the Prospectus included in the Exchange Offer
Registration Statement, in substantially the form set forth in Annex B hereto in the
forepart of the Exchange Offer Registration Statement in a section setting forth
details of the Exchange Offer, in substantially the form set forth in Annex C hereto
in the underwriting or plan of distribution section of the Prospectus contained in
the Exchange Offer Registration Statement, and in substantially the form set forth
in Annex D hereto in the letter of transmittal delivered pursuant to the Registered
Exchange Offer;
(iii) in the case of an Exchange Offer Registration Statement, if requested by
the Initial Purchaser, include the information required by Items 507 and 508 of
Regulation S-K, as applicable, in the Prospectus contained in the Exchange Offer
Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include the names of the
Holders that propose to sell Securities or Exchange Securities pursuant to the Shelf
Registration Statement as selling security holders.
(b) The Issuers shall ensure that:
(i) any Registration Statement and any amendment thereto and any Prospectus
forming part thereof and any amendment or supplement thereto complies in all
material respects with the Act and the rules and regulations thereunder; and
(ii) any Registration Statement and any amendment thereto does not, when it
becomes effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading.
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(c) The Issuers shall advise you, the Holders of Securities or the Exchange Securities
covered by any Shelf Registration Statement and any Exchanging Dealer under any Exchange
Offer Registration Statement that has provided in writing to CNH Global a telephone or
facsimile number and address for notices (which notice pursuant to clauses (ii)-(v) hereof
shall be accompanied by an instruction to suspend the use of the Prospectus until the
Issuers shall have remedied the basis for such suspension):
(i) when a Registration Statement or any amendment thereto has been filed with
the Commission and when the Registration Statement or any post-effective amendment
thereto has become effective;
(ii) of any request by the Commission for any amendment or supplement to the
Registration Statement or the Prospectus or for additional information;
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings for
that purpose;
(iv) of the receipt by any Issuer of any notification with respect to the
suspension of the qualification of the securities included therein for sale in any
jurisdiction or the initiation of any proceeding for such purpose; and
(v) of the happening of any event that requires any change in the Registration
Statement or the Prospectus so that, as of such date, the statements therein are not
misleading and do not omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus, in the
light of the circumstances under which they were made) not misleading.
(d) The Issuers shall use their reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of any Registration Statement or the qualification of the
securities therein for sale in any jurisdiction at the earliest possible time.
(e) The Issuers shall furnish to each Holder of Securities or Exchange Securities
covered by any Shelf Registration Statement, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment thereto, including all material
incorporated therein by reference, and, if the Holder so requests in writing, all exhibits
thereto (including exhibits incorporated by reference therein).
(f) The Issuers shall, during the Shelf Registration Period, deliver to each Holder of
Securities or Exchange Securities covered by any Shelf Registration Statement, without
charge, as many copies of the Prospectus (including each preliminary prospectus) included in
such Shelf Registration Statement and any amendment or supplement thereto as such Holder may
reasonably request. The
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Issuers consent to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of securities in connection with the
offering and sale of the securities covered by the Prospectus, or any amendment or
supplement thereto, included in the Shelf Registration Statement.
(g) The Issuers shall furnish to each Exchanging Dealer which so requests, without
charge, at least one copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including all material incorporated by reference therein,
and, if the Exchanging Dealer so requests in writing, all exhibits thereto (including
exhibits incorporated by reference therein).
(h) The Issuers shall promptly deliver to the Initial Purchaser, each Exchanging Dealer
and each other Person required to deliver a Prospectus during the Exchange Offer
Registration Period, without charge, as many copies of the Prospectus included in such
Exchange Offer Registration Statement and any amendment or supplement thereto as any such
Person may reasonably request. The Issuers consent to the use of the Prospectus or any
amendment or supplement thereto by the Initial Purchaser, any Exchanging Dealer and any such
other Person that may be required to deliver a Prospectus following the Registered Exchange
Offer in connection with the offering and sale of the Exchange Securities covered by the
Prospectus, or any amendment or supplement thereto, included in the Exchange Offer
Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering of Securities or
Exchange Securities pursuant to any Registration Statement, the Issuers shall use their
reasonable best efforts to arrange, if necessary, for the qualification of the Securities or
the Exchange Securities for sale under the laws of such jurisdictions as any Holder shall
reasonably request and shall use their reasonable best efforts to maintain such
qualification in effect so long as required; provided that in no event shall any Issuer be
obligated to qualify to do business in any jurisdiction where it is not then so qualified or
to take any action that would subject it to service of process in suits, other than those
arising out of the Initial Placement, the Registered Exchange Offer or any offering pursuant
to a Shelf Registration Statement, in any such jurisdiction where it is not then so subject.
(j) The Issuers shall cooperate with the Holders to facilitate the timely preparation
and delivery of certificates representing Exchange Securities or Securities to be issued or
sold pursuant to any Registration Statement free of any restrictive legends and in such
denominations and registered in such names as Holders may request within a reasonable time
prior to sales of the Exchange Securities or sales of Securities pursuant to such
Registration Statement.
(k) Upon the occurrence of any event contemplated by subsections (c)(ii) through (v)
above, the Issuers, to the extent required, shall promptly prepare a post-effective
amendment to the applicable Registration Statement or an amendment or supplement to the
related Prospectus or file any other required document so that, as
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thereafter delivered to
purchasers of the Securities included therein, the Prospectus will not 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. In such circumstances, the period of effectiveness of the Exchange Offer
Registration Statement provided for in Section 2 hereof and the Shelf Registration Statement
provided for in Section 3(b) hereof shall each be extended by the number of days from and
including the date of the giving of a notice of suspension pursuant to Section 5(c) hereof
to and including the date when the Initial Purchaser, the Holders and any known Exchanging
Dealer shall have received such amended or supplemented Prospectus pursuant to this Section
5.
(l) Not later than the effective date of any Registration Statement, the Issuers shall
provide a CUSIP number for the Securities or the Exchange Securities, as the case may be,
registered under such Registration Statement and provide the Trustee with printed
certificates for such Securities or Exchange Securities, in a form eligible for deposit with
The Depository Trust Company.
(m) The Company shall comply with all applicable rules and regulations of the
Commission and shall make generally available to its security holders as soon as reasonably
practicable after the effective date of the applicable Registration Statement an earnings
statement satisfying the provisions of Section 11(a) of the Act.
(n) The Issuers shall cause the Indenture to be qualified under the Trust Indenture Act
in a timely manner.
(o) The Company may require each Holder of securities to be sold pursuant to any Shelf
Registration Statement to furnish to the Company such information regarding the Holder and
the distribution of such securities as the Company may from time to time reasonably require
for inclusion in such Registration Statement. The Company may exclude from such Shelf
Registration Statement the Securities or Exchange Securities of any Holder that fails to
furnish such information within a reasonable time after receiving such request.
(p) In the case of any Shelf Registration Statement, the Issuers shall enter into
customary agreements and take all other appropriate actions (including if requested an
underwriting agreement in customary form) in order to expedite or facilitate the
registration or the disposition of the Securities or Exchange Securities, and in connection
therewith, if an underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those set forth in Section
7 (or such other provisions and procedures acceptable to the Majority Holders and the
Managing Underwriters, if any, and approved by the Issuers, which approval will not be
unreasonably withheld with respect to all parties to be indemnified pursuant to Section 7).
(q) In the case of any Shelf Registration Statement, the Issuers shall:
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(i) make reasonably available for inspection by a representative for the
Holders of Securities or Exchange Securities to be registered thereunder, which
representative shall be selected by the Majority Holders, by the underwriters, if
any, participating in any disposition pursuant to such Registration Statement, and
any attorney, accountant or other agent for the Holders retained by the Majority
Holders or for the underwriters (collectively, the “Inspectors”), if any, all
relevant financial and other records, pertinent corporate documents and properties
of each Issuer and its subsidiaries (collectively, the “Records”), in each case
reasonably requested by such persons;
(ii) cause the officers, directors and employees of the Issuers and their
respective subsidiaries to supply all information reasonably requested by any such
Inspector in connection with such Registration Statement and Prospectus. Each
Inspector shall agree in writing that it will keep the Records confidential and that
it will not disclose, or use in connection with any market transactions in violation
of any applicable securities laws, any Records that the Company determines, in good
faith, to be confidential and that it notifies the Inspectors in writing are
confidential unless (1) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in such Registration Statement or Prospectus, (2)
the release of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction, (3) disclosure of such information is necessary or
advisable in the opinion of counsel for an Inspector in connection with any action,
claim, suit or proceeding, directly or indirectly, involving or potentially
involving such Inspector and arising out of, based upon, relating to, or involving
this Agreement or the Purchase Agreement, or any transactions contemplated hereby or
thereby or arising hereunder or thereunder, or (4) the information in such Records
has been made generally available to the public; provided, however,
that (A) each Inspector shall agree to use reasonable best efforts to provide notice
to the Company of the potential disclosure of any information by such Inspector
pursuant to clause (1), (2) or (3) of this sentence to permit the Issuers to obtain
a protective order (or waive the provisions of subsections 5(q)(i) and 5(q)(ii)) and
(B) each such Inspector shall take such actions as are reasonably necessary to
protect the confidentiality of such information (if practicable) to the extent such
action is otherwise not inconsistent with, an impairment of or in derogation of the
rights and interests of the Holder or any Inspector;
(iii) make such representations and warranties to the Holders of Securities or
Exchange Securities registered thereunder and the underwriters, if any, in form,
substance and scope as are customarily made by issuers to underwriters in primary
underwritten offerings as may be reasonably requested by them;
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(iv) obtain opinions of counsel to the Issuers (which counsel and opinions (in
form, scope and substance) shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each selling Holder and the underwriters, if any,
covering such matters as are customarily covered in opinions requested in
underwritten offerings and such other matters as may reasonably be requested by
them;
(v) obtain “cold comfort” letters from the independent certified public
accountants of CNH Global N.V. (and, if necessary, any other independent certified
public accountants of any Issuer or any subsidiary of any Issuer or of any business
acquired by any Issuer for which financial statements and financial data are, or are
required to be, included in the Registration Statement), addressed to the
underwriters, if any, and use reasonable efforts to have such letter addressed to
each selling Holder of Securities registered thereunder (to the extent consistent
with Statement on Auditing Standards No. 72 of the American Institute of Certified
Public Accountants), such letter to be in customary form and covering matters of the
type customarily covered in “cold comfort” letters in connection with primary
underwritten offerings; and
(vi) deliver such documents and certificates as may be reasonably requested by
the Majority Holders and the Managing Underwriters, if any, including those to
evidence compliance with Section 5(k) and with any customary conditions contained in
the underwriting agreement or other agreement entered into by the Issuers.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section shall be performed at
(A) the effectiveness of such Shelf Registration Statement and each post-effective amendment
thereto; and (B) each closing under any underwriting or similar agreement as and to the extent
required thereunder.
(r) In the case of any Exchange Offer Registration Statement, upon the reasonable
request of the Initial Purchaser, the Issuers shall:
(i) make reasonably available for inspection by the Initial Purchaser, and any
Inspector retained by the Initial Purchaser, all Records, in each case reasonably
requested by such persons;
(ii) cause the officers, directors and employees of the Issuers and their
respective subsidiaries to supply all information reasonably requested by any such
Inspector in connection with such Registration Statement and Prospectus. Each
Inspector shall agree in writing that it will keep the Records confidential and that
it will not disclose, or use in connection with any market transactions in violation
of any applicable securities laws, any Records that the Company determines, in good
faith, to be confidential and that it notifies the Inspectors in writing are
confidential unless (1) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in such
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Registration Statement or Prospectus, (2)
the release of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction, (3) disclosure of such information is necessary or
advisable in the opinion of counsel for an Inspector in connection with any action,
claim, suit or proceeding, directly or indirectly, involving or potentially
involving such Inspector and arising out of, based upon, relating to, or involving
this Agreement or the Purchase Agreement, or any transactions contemplated hereby or
thereby or arising hereunder or thereunder, or (4) the information in such Records
has been made generally available to the public; provided, however,
that (A) each Inspector shall agree to use reasonable best efforts to provide notice
to the Company of the potential disclosure of any information by such Inspector
pursuant to clause (1), (2) or (3) of this sentence to permit the Issuers to obtain
a protective order (or waive the provisions of subsections 5(r)(i) and 5(r)(ii)) and
(B) each such Inspector shall take such actions as are reasonably necessary to
protect the confidentiality of such information (if practicable) to the extent such
action is otherwise not inconsistent with, an impairment of or in derogation of the
rights and interests of the Holder or any Inspector;
(iii) make such representations and warranties to the Initial Purchaser, in
form, substance and scope as are customarily made by issuers to underwriters in
primary underwritten offerings as may be reasonably requested by them; and
(iv) deliver such documents and certificates as may be reasonably requested by
the Initial Purchaser or its counsel, including those to evidence compliance with
Section 5(k) and with conditions customarily contained in underwriting agreements.
The foregoing actions set forth in clauses (iii) and (iv) of this subsection shall be performed at
the close of the Registered Exchange Offer and the effective date of any post-effective amendment
to the Exchange Offer Registration Statement.
In addition, upon reasonable request of an Exchanging Dealer, the Issuers shall obtain (i) opinions
of counsel to the Issuers (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to such Exchanging Dealer and its counsel, addressed to such Exchanging
Dealer, covering such matters as are customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by such Exchanging Dealer or its
counsel and (ii) “cold comfort” letters from the independent certified public accountants of CNH
Global N.V. (and, if necessary, any other independent certified public accountants of or any
subsidiary of any Issuer or of any business acquired by any Issuer for which financial statements
and financial data are, or are required to be, included in the Exchange Offer Registration
Statement), addressed to such Exchanging Dealer, in customary form and covering matters of the type
customarily covered in “cold comfort” letters in connection with primary underwritten offerings, or
if requested by such Exchanging Dealer or its counsel in lieu of a “cold comfort” letter, an
agreed-upon procedures letter under
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Statement on Auditing Standards No. 35, covering matters
reasonably requested by such Exchanging Dealer or its counsel.
(s) If a Registered Exchange Offer is to be consummated, upon delivery of the
Securities by Holders to the Company (or to such other Person as directed by the Company) in
exchange for the Exchange Securities, the Company shall xxxx, or caused to be marked, on the
Securities so exchanged that such Securities are being canceled in exchange for the Exchange
Securities. In no event shall the Securities be marked as paid or otherwise satisfied.
(t) The Issuers will use their reasonable best efforts (i) if the Securities have been
rated prior to the initial sale of such Securities, to confirm such ratings will apply to
the Securities or the Exchange Securities, as the case may be, covered by an Exchange Offer
Registration Statement; or (ii) if the Securities were not previously rated, to cause the
Securities covered by a Registration Statement to be rated with at least one nationally
recognized statistical rating agency, if so requested by Majority Holders with respect to
the related Registration Statement or by any Managing Underwriters.
(u) In the event that any Broker-Dealer shall underwrite any Securities or Exchange
Securities or participate as a member of an underwriting syndicate or selling group or
“assist in the distribution” (within the meaning of the Conduct Rules of the National
Association of Securities Dealers, Inc. (the “Conduct Rules”)) thereof, whether as a Holder
or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof,
or otherwise, the Issuers shall assist such Broker-Dealer in complying with the requirements
of such Conduct Rules, including, without limitation, by:
(i) if such Conduct Rules shall so require, engaging a “qualified independent
underwriter” (as defined in such Conduct Rules) to participate in the preparation of
the Registration Statement, to exercise usual standards of due diligence with
respect thereto and, if any portion of the offering contemplated by such
Registration Statement is an underwritten offering or is made through a placement or
sales agent, to recommend the yield of such Securities or Exchange Securities;
(ii) indemnifying any such qualified independent underwriter to the extent of
the indemnification of underwriters provided in Section 5 hereof;
(iii) providing such information to such Broker-Dealer as may be required in
order for such Broker-Dealer to comply with the requirements of such Conduct Rules;
and
(iv) the Issuers shall use their reasonable best efforts to take all other
steps necessary to effect the registration of the Securities or the Exchange
Securities, as the case may be, covered by a Registration Statement.
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6. Registration Expenses. The Issuers shall bear all expenses incurred in connection
with the performance of their obligations under Sections 2, 3 and 5 hereof and, in the event of any
Shelf Registration Statement, will reimburse the Holders for the reasonable fees and disbursements
of one firm or counsel designated by the Majority Holders to act as counsel for the Holders in
connection therewith (not to exceed $25,000).
7. Indemnification and Contribution.
(a) The Issuers jointly and severally agree to indemnify and hold harmless each Holder of
Securities or Exchange Securities, as the case may be, covered by any Registration Statement
(including the Initial Purchaser and each Affiliate thereof and, with respect to any Prospectus
delivery as contemplated in Section 5(h) hereof, each Exchanging Dealer), the directors, officers,
employees and agents of each such Holder and each Person who controls any such Holder within the
meaning of either the Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement as originally filed or in any amendment thereof, or in any preliminary
prospectus or the Prospectus, or in any amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and to reimburse each
such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Issuers will not be liable in any case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of any such Holder
specifically for use therein; provided, further, that with respect to any untrue statement or
omission of material fact made in any preliminary prospectus, the indemnity agreement contained in
this Section 7(a) shall not inure to the benefit of any Holder from whom the Person asserting any
such loss, claim, damage or liability purchased such Securities or Exchange Securities, as the case
may be, to the extent that any such loss, claim, damage or liability of such Holder occurs under
the circumstance where it shall have been determined by a court of competent jurisdiction by final
and nonappealable judgment that (w) the Issuers had previously furnished copies of the Prospectus
to such Holder, (x) delivery of the Prospectus was required by the Act to be made to such Person,
(y) the untrue statement or omission of a material fact contained in the preliminary prospectus was
corrected in the Prospectus and (z) there was not sent or given to such Person, at or prior to the
written confirmation of the sale of such securities to such Person, a copy of the Prospectus. This
indemnity agreement will be in addition to any liability which the Issuers may otherwise have.
The Issuers also jointly and severally agree, and the Company severally agrees, to indemnify
or contribute as provided in Section 7(d) to Losses of each underwriter of Securities or Exchange
Securities, as the case may be, registered under a Shelf Registration
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Statement, its directors,
officers, employees or agents and each Person who controls such underwriter on substantially the
same basis as that of the indemnification of the Initial Purchaser and the selling Holders provided
in this Section 7(a) and shall, if requested by any Holder, enter into an underwriting agreement
reflecting such agreement, as provided in Section 5(p) hereof.
(b) Each Holder of securities covered by a Registration Statement (including the Initial
Purchaser, each Affiliate thereof and, with respect to any Prospectus delivery as contemplated in
Section 5(h) hereof, each Exchanging Dealer) severally agrees to indemnify and hold harmless the
Issuers and each of their respective directors, each of their respective officers who sign such
Registration Statement and each Person who controls any Issuer within the meaning of either the Act
or the Exchange Act, to the same extent as the foregoing indemnity from the Issuers to each such
Holder, but only to the extent that the untrue statement or omission was made in reliance upon and
in conformity with information pertaining to such Holder furnished to the Issuers by or on behalf
of such Holder specifically for use in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 7 of notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 7, notify the indemnifying party in writing
of the commencement thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the indemnifying party
of substantial rights and defenses, and (ii) will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party
in any action for which indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel retained by the
indemnified party or parties except as set forth below); provided, however, that such counsel shall
be reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying party’s
election to appoint counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of
counsel chosen by the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to the indemnifying
party; (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a reasonable time after notice of the
institution of such action; or (iv) the indemnifying party shall authorize the indemnified party to
employ separate counsel at the expense of the indemnifying party; provided, however, in no event
shall the
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indemnifying parties be liable for fees and expenses of more than one counsel for all
indemnified parties in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general obligations or circumstances. An
indemnifying party will not, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, suit or proceeding and (ii)
does not include a statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of any indemnified party. An indemnifying party shall not be liable under this
Section 7 to any indemnified party regarding any settlement or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action) unless such
settlement, compromise or consent is consented to by such indemnifying party, which consent shall
not be unreasonably withheld.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section is
unavailable to or insufficient to hold harmless an indemnified party for any reason, then each
applicable indemnifying party shall have a joint and several obligation to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively “Losses”) to which such
indemnified party may be subject in such proportion as is appropriate to reflect the relative
benefits received by such indemnifying party, on the one hand, and such indemnified party, on the
other hand, from the Initial Placement and the Registration Statement which resulted in such
Losses; provided, however, that in no case shall the Initial Purchaser or any subsequent Holder of
any Security or Exchange Security be responsible, in the aggregate, for any amount in excess of the
purchase discount or commission applicable to such Security, or in the case of a Exchange Security,
applicable to the Security that was exchangeable into such Exchange Security, as set forth on the
cover page of the Final Offering Memorandum, nor shall any underwriter be responsible for any
amount in excess of the underwriting discount or commission applicable to the securities purchased
by such underwriter under the Registration Statement which resulted in such Losses. If the
allocation provided by the immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of such indemnifying party,
on the one hand, and such indemnified party, on the other hand, in connection with the statements
or omissions which resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Issuers shall be deemed to be equal to the sum of (x) the total net
proceeds from the Initial Placement (before deducting expenses) as set forth on the cover page of
the Final Offering Memorandum and (y) the total amount of additional interest which the Issuers
were not required to pay as a result of registering the securities covered by the Registration
Statement which resulted in such Losses. Benefits received by the Initial Purchaser shall be
deemed to be equal to the total purchase discounts and commissions as set forth on the cover page
of the Final Offering Memorandum,
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and benefits received by any other Holders shall be deemed to be
equal to the value of receiving Securities or Exchange Securities, as applicable, registered under
the Act. Benefits received by any underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, as set forth on the cover page of the Prospectus forming a
part of the Registration Statement which resulted in such Losses. Relative fault shall be
determined by reference to, among other things, whether any untrue or alleged untrue statement of
or omission or alleged omission to state a material fact relates to information provided by the
indemnifying party, on the one hand, or by the indemnified party, on the other hand, the intent of
the parties and their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The parties agree that it would not be just and
equitable if contribution were determined by pro rata allocation (even if the Holders were treated
as one entity for such purpose) or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the provisions of this paragraph
(d), 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 7, each Person who controls a Holder within the
meaning of either the Act or the Exchange Act and each director, officer, employee and agent of
such Holder shall have the same rights to contribution as such Holder, and each Person who controls
any Issuer within the meaning of either the Act or the Exchange Act, each officer of any Issuer who
shall have signed the Registration Statement and each director of any Issuer shall have the same
rights to contribution as the Issuers, subject in each case to the applicable terms and conditions
of this paragraph (d).
(e) The provisions of this Section will remain in full force and effect, regardless of any
investigation made by or on behalf of any Holder or the Issuers or any of the officers, directors
or controlling Persons referred to in this Section 7, and will survive the sale by a Holder of
securities covered by a Registration Statement.
8. Underwritten Registrations.
(a) If any of the Securities or Exchange Securities, as the case may be, covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the Managing Underwriters shall
be selected by the Majority Holders and shall be reasonably acceptable to the Company.
(b) No Person may participate in any underwritten offering pursuant to any Shelf Registration
Statement, unless such Person (i) agrees to sell such Person’s Securities or Exchange Securities,
as the case may be, on the basis reasonably provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements; and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
9. No Inconsistent Agreements. No Issuer has, as of the date hereof, entered into,
nor shall it, on or after the date hereof, enter into, any agreement with respect to
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its securities
that is inconsistent with the rights granted to the Holders herein or otherwise conflicts with the
provisions hereof.
10. Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, qualified, modified or supplemented, and waivers
or consents to departures from the provisions hereof may not be given, unless the Issuers have
obtained the written consent of the Majority Holders; provided that, with respect to any matter
that directly or indirectly affects the rights of the Initial Purchaser hereunder, the Issuers
shall obtain the written consent of the Initial Purchaser against which such amendment,
qualification, supplement, waiver or consent is to be effective. Notwithstanding the foregoing
(except the foregoing proviso), a waiver or consent to departure from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose Securities or Exchange
Securities, as the case may be, are being sold pursuant to a Registration Statement and that does
not directly or indirectly affect the rights of other Holders may be given by the Majority Holders,
determined on the basis of Securities or Exchange Securities, as the case may be, being sold rather
than registered under such Registration Statement.
11. Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand-delivery, first-class mail, telex, telecopier, facsimile or air
courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such Holder to the Issuers in
accordance with the provisions of this Section 11, which address initially is, with respect
to each Holder, the address of such Holder maintained by the Registrar under the Indenture,
with a copy in like manner to UBS Securities LLC;
(b) if to you, initially at the respective addresses set forth in the Purchase
Agreement; and
(c) if to the Issuers, initially at their address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly given when received.
The Initial Purchaser or the Issuers by notice to the other parties may designate additional
or different addresses for subsequent notices or communications.
12. Successors. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties hereto, including, without the need for an express
assignment or any consent by the Issuers thereto, subsequent Holders of Securities and the Exchange
Securities; provided that nothing herein shall be deemed to permit any assignment, transfer or
other disposition of the Securities or Exchange Securities in violation of the terms of the
Purchase Agreement or the Indenture. The Issuers hereby agree to extend the benefits of this
Agreement to any Holder of Securities or the Exchange
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Securities, and any such Holder may
specifically enforce the provisions of this Agreement as if an original party hereto.
13. Counterparts. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same agreement.
14. Headings. The headings used herein are for convenience only and shall not affect
the construction hereof.
15. Applicable Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed in the
State of New York.
16. Severability. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable
in any respect for any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions hereof shall not be in any way impaired or
affected thereby, it being intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
17. Securities Held by the Issuers, etc. Whenever the consent or approval of Holders
of a specified percentage of principal amount of Securities or Exchange Securities is required
hereunder, Securities or Exchange Securities, as applicable, held by any Issuer or its Affiliates
(other than subsequent Holders of Securities or Exchange Securities if such subsequent Holders are
deemed to be Affiliates solely by reason of their holdings of such Securities or Exchange
Securities) shall not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
18. Agent for Service; Submission to Jurisdiction; Waiver of Immunities. By the
execution and delivery of this Agreement, each Issuer (i) acknowledges that such Issuer has, by
separate written instrument, irrevocably designated and appointed CT Corporation, 000 Xxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (and any successor entity), as its authorized agent
upon which process may be served in any suit or proceeding arising out of or relating to this
Agreement, the Securities or the Exchange Securities that may be instituted in any federal or state
court in the State of New York or brought under Federal or state securities laws, and acknowledges
that CT Corporation has accepted such designation, (ii) submits to the jurisdiction of any such
court in any such suit or proceeding, and (iii) agrees that service of process upon CT Corporation
and written notices of said service to such Issuer in accordance with Section 11 hereof shall be
deemed effective service of process upon it in any such suit or proceeding. Each Issuer further
agrees to take any reasonable action, including the execution and filing of any and all such
documents and instruments, as may be necessary to continue such designation and appointment of CT
Corporation in full force and effect so long as any of the Securities shall be outstanding;
provided, however, that such Issuer may, by written notice to the Initial Purchaser, designate such
additional or alternative agent for service of process under this Section 18 that (i) maintains an
office located in the
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Xxxxxxx xx Xxxxxxxxx, Xxxx of New York in the State of New York and (ii) is
either (x) counsel for such Issuer or (y) a corporate service company which acts as agent for
service of process for other persons in the ordinary course of its business. Such written notice
shall identify the name of such agent for process and the address of the office of such agent for
process in the Borough of Manhattan, City of New York, State of New York.
To the extent that any Issuer has or hereafter may acquire any immunity from jurisdiction of
any court or from any legal process with respect to itself or its property, it hereby irrevocably
waives such immunity in respect of its obligations under each of this Agreement, the Securities and
the Exchange Securities. In addition, each Issuer irrevocably waives and agrees not to assert, by
way of motion, as a defense, or otherwise in any such suit, action or proceeding, any claim that it
is not personally subject to the jurisdiction of the above-mentioned courts for any reason
whatsoever, that such suit, action or proceeding is brought in an inconvenient forum or that the
venue for such suit is improper, or that this Agreement, the Securities or the Exchange Securities
or the subject matter hereof or thereof may not be enforced in such courts.
The Issuers and the Initial Purchaser agree that a final judgment in any such suit, action or
proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Section 18 shall affect the right of the
Trustee to serve legal process in any other manner permitted by law or affect the right of the
Trustee to bring any action or proceeding against any Issuer or its property in the courts of any
other jurisdictions.
19. Judgment Currency. The Issuers, jointly and severally, agree to indemnify and
hold harmless each Holder (including the Initial Purchaser and each Affiliate thereof and, with
respect to any Prospectus delivery as contemplated by Section 5(h) hereof, each Exchanging Dealer),
the directors, officers, employees and agents of each such Holder and each Person who controls any
such Holder within the meaning of either the Act or the Exchange Act against any loss incurred by
such indemnified party as a result of any judgment or order being given or made in favor of such
indemnified party for any amount due under this Agreement and such judgment or order being
expressed and paid in a currency (the “Judgment Currency”) other than United States dollar and as a
result of any variation as between (i) the rate of exchange at which the United States dollar
amount is converted into the Judgment Currency for the purpose of such judgment or order and (ii)
the spot rate of exchange in The City of New York at which such indemnified party on the date of
payment of such judgment or order is able to purchase United States dollars with the amount of the
Judgment Currency actually received by such indemnified party. The foregoing indemnity shall
continue in full force and effect notwithstanding any such judgment or order as aforesaid. The
term “spot rate of exchange” shall include any premiums and costs of exchange payable in connection
with the purchase of, or conversion into, United States dollars.
If the foregoing is in
accordance with your understanding of our agreement, please sign and return to us the enclosed
duplicate hereof, whereupon this Agreement and your acceptance shall represent a binding agreement
among the Issuers and the Initial Purchaser.
| Very truly yours, CASE NEW HOLLAND INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||
| Title: | President & Chief Executive Officer | |||
-2-
| GUARANTORS: CNH GLOBAL N.V. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||
| Title: | President & Chief Executive Officer | |||
| CNH U.K. LIMITED |
||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Director | |||
| NEW HOLLAND HOLDING LIMITED |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Director | |||
| CNH CANADA, LTD. |
||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | President | |||
| CNH AUSTRALIA PTY LTD |
||||
| By: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx Xxxxx | |||
| Title: | Director | |||
| CNH BELGIUM N.V. |
||||
| By: | /s/ Xxx Xxxxxxxxxxxx | |||
| Name: | Xxx Xxxxxxxxxxxx | |||
| Title: | Director | |||
-3-
| NEW HOLLAND TRACTOR LIMITED N.V. |
||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Director | |||
| CNH DEUTSCHLAND GMBH |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Managing Director | |||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Managing Director | |||
| CNH TRADE N.V. |
||||
| By: | /s/ Xxxxxxx Xxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxx | |||
| Title: | Director | |||
| FIATALLIS NORTH AMERICA LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||
| Title: | Chairman & President | |||
| CNH AMERICA LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||
| Title: | President & Chief Executive Officer | |||
| HFI HOLDINGS, INC. |
||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | President & Chief Financial Officer | |||
-4-
| BLI GROUP, INC. |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Chief Executive Officer | |||
| BLUE LEAF I.P., INC. |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Chief Executive Officer | |||
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
accepted as of the date first above written.
| UBS SECURITIES LLC |
||||
| By: | /s/ Xxxxxxx Xxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxx | |||
| Title: | Executive Director | |||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Associate Director | |||
ANNEX A
Each Broker-Dealer that receives Exchange Securities for its own account pursuant to the
Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Securities. The Letter of Transmittal states that by so acknowledging and by
delivering a prospectus, a Broker-Dealer will not be deemed to admit that it is an “underwriter”
within the meaning of the Act. This Prospectus, as it may be amended or supplemented from time to
time, may be used by a Broker-Dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired by such Broker-Dealer as a result of
market-making activities or other trading activities. The Issuers have agreed that, starting on
the Expiration Date (as defined herein) and ending on the close of business one year after the
Expiration Date, they will make this Prospectus available to any Broker-Dealer for use in
connection with any such resale. See “Plan of Distribution”.
ANNEX B
Each Broker-Dealer that receives Exchange Securities for its own account in exchange for
Securities, where such Securities were acquired by such Broker-Dealer as a result of market-making
activities or other trading activities, must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Securities. See “Plan of Distribution”.
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives Exchange Securities for its own account pursuant to the
Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Securities. This Prospectus, as it may be amended or supplemented from time to time,
may be used by a Broker-Dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired as a result of market-making activities
or other trading activities. The Issuers have agreed that, starting on the Expiration Date and
ending on the close of business [one year] after the Expiration Date, they will make this
Prospectus, as amended or supplemented, available to any Broker-Dealer for use in connection with
any such resale. In addition, until _________, 200___, all dealers effecting transactions in the
Exchange Securities may be required to deliver a prospectus.
The Issuers will not receive any proceeds from any sale of Exchange Securities by
Brokers-Dealers. Exchange Securities received by Broker-Dealers for their own account pursuant to
the Exchange Offer may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market prices prevailing at the time of
resale, at prices related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may receive compensation
in the form of commissions or concessions from any such Broker-Dealer and/or the purchasers of any
such Exchange Securities. Any Broker-Dealer that resells Exchange Securities that were received by
it for its own account pursuant to the Exchange Offer and any broker or dealer that participates in
a distribution of such Exchange Securities may be deemed to be an “underwriter” within the meaning
of the Act and any profit of any such resale of Exchange Securities and any commissions or
concessions received by any such Persons may be deemed to be underwriting compensation under the
Act. The Letter of Transmittal states that by acknowledging that it will deliver and by delivering
a prospectus, a Broker-Dealer will not be deemed to admit that it is an “underwriter” within the
meaning of the Act.
For a period of one year after the Expiration Date, the Issuers will promptly send additional
copies of this Prospectus and any amendment or supplement to this Prospectus to any Broker-Dealer
that requests such documents in the Letter of Transmittal. The Issuers have agreed to pay all
expenses incident to the Exchange Offer (including the expenses of one counsel for the holder of
the Securities) other than commissions or concessions of any brokers or dealers and will indemnify
the holders of the Securities (including any Broker-Dealers) against certain liabilities, including
liabilities under the Act.
[If applicable, add information required by Regulation S-K Items 507 and/or 508.]
ANNEX D
| o | CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO. | |||||
| Name: | ||||||
| Address: | ||||||
If the undersigned is not a Broker-Dealer, the undersigned represents that it acquired the Exchange
Securities in the ordinary course of its business, it is not engaged in, and does not intend to
engage in, a distribution of Exchange Securities and it has no arrangements or understandings with
any Person to participate in a distribution of the Exchange Securities. If the undersigned is a
Broker-Dealer that will receive Exchange Securities for its own account in exchange for Securities,
it represents that the Securities to be exchanged for Exchange Securities were acquired by it as a
result of market-making activities or other trading activities and acknowledges that it will
deliver a prospectus in connection with any resale of such Exchange Securities; however, by so
acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it
is an “underwriter” within the meaning of the Act.
