EXHIBIT 1(a)
CNH WHOLESALE MASTER NOTE TRUST, SERIES 2003-1
FLOATING RATE CLASS A ASSET BACKED NOTES
FLOATING RATE CLASS B ASSET BACKED NOTES
CNH WHOLESALE RECEIVABLES INC.
UNDERWRITING AGREEMENT
September __, 2003
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
000 Xxxxx Xxxxxx
World Financial Center
North Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
XX Xxxxx Securities Corporation
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Representatives of the Several Underwriters
named on Schedule I hereto
Ladies and Gentlemen:
1. INTRODUCTORY. CNH Wholesale Receivables Inc., a Delaware
corporation (the "Transferor"), proposes to cause CNH Wholesale Master Note
Trust, a Delaware statutory trust (the "Trust" or the "Issuer"), to issue and
sell $[_________] principal amount of Floating Rate Class A Asset Backed Notes
(the "A Notes") and $[_________] principal amount of Floating Rate Class B Asset
Backed Notes (the "B Notes" and, together with the A Notes, the "Notes"), to the
several underwriters named in Schedule I hereto (collectively, the
"Underwriters"), for whom you are acting as representatives (the
"Representatives").
The assets of the Trust include, among other things, wholesale
receivables generated by Case Credit Corporation, a Delaware corporation ("Case
Credit"), and New Holland Credit Company, LLC, a Delaware limited liability
company ("New Holland"), from time to time in certain revolving floorplan
financing arrangements with selected agricultural and construction equipment
and/or parts dealers (the "Receivables", or in the case of the Receivables sold
by Case Credit to the Transferor, the "Case Receivables", and in the case of the
Receivables sold by New Holland to the Transferor, the "NH Receivables") and
collections on the Receivables. Certain Receivables existing at the opening of
business on August 31, 2003 (the "Cut-Off Date") have been, and substantially
all Receivables arising thereafter have been and will continue to be, sold,
assigned, transferred and conveyed by either Case Credit to the Transferor
pursuant to a Receivables Purchase Agreement (the "Case Purchase Agreement"),
dated as of September __, 2003, between the Transferor and Case Credit or by New
Holland to the Transferor pursuant to a Receivables Purchase Agreement (the "NH
Purchase Agreement" and, together with the Case Purchase Agreement, the
"Receivables Purchase Agreements"), dated as of September __, 2003, between the
Transferor and New Holland. The Transferor has sold, assigned, transferred and
conveyed such property to the Issuer pursuant to the Transfer and Servicing
Agreement (the "Transfer and Servicing") dated as of September __, 2003 among
the Transferor, Case Credit, as servicer (in such capacity, the "Servicer") and
the Issuer. The Issuer in turn has pledged such property to the Indenture
Trustee under the Indenture. The Receivables are serviced for the Trust by Case
Credit. The Notes will be issued pursuant to the Indenture to be dated as of
September __, 2003 (the "Indenture"), between the Trust and JPMorgan Chase Bank
(the "Indenture Trustee"), as supplemented by the Series 2003-1 Supplement to be
dated as of September __, 2003 (the "Series Supplement"), between the Trust and
the Indenture Trustee.
Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed to them in the Transfer and Servicing Agreement, or, if not
defined therein, in the Indenture or the Trust Agreement dated as of September
__, 2003 (as amended and supplemented from time to time, the "Trust Agreement"),
between the Transferor and The Bank of New York, as owner trustee (the "Owner
Trustee").
2. REPRESENTATIONS AND WARRANTIES. Each of the Transferor, Case
Credit and New Holland, as applicable, represents and warrants to, and agrees
with, each Underwriter as of the date hereof and as of the Closing Date that:
(a) The Transferor meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
(Registration No. 333-107999) on such Form, including a preliminary basic
prospectus and a preliminary prospectus supplement for registration under the
Act of the offering and sale of asset-backed securities (issuable in series and
classes thereof), including the Notes. The Transferor 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 Transferor will next file
with the Commission one of the following: (i) prior to the effectiveness of such
registration statement, an amendment thereto (including the form of final basic
prospectus and the form of final prospectus supplement relating to the
Securities), (ii) after effectiveness of such registration statement, a final
basic prospectus and a final prospectus supplement relating to the Notes in
accordance with Rules 430A and 424(b)(1) or (4) under the Act, or (iii) after
the effectiveness of such registration statement, a final basic prospectus and a
final prospectus supplement relating to the Notes in accordance with Rules 415
and 424(b)(2) or (5). In the case of clauses (ii) and (iii), the Transferor 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 Notes 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 Notes and the offering thereof and, except to the extent that the
Underwriters shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in the
latest preliminary basic prospectus and preliminary prospectus supplement that
have previously been furnished to
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you) as the Transferor has advised you, prior to the Execution Time, will be
included or made therein. If the Registration Statement contains the undertaking
specified by Regulation S-K Item 512(a), the Registration Statement, at the
Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
For purposes of this Agreement, "Effective Time", means, with respect
to the registration statement, the date and time as of which such registration
statement, or the most recent post-effective amendment thereto, if any, was
declared effective by the Commission, and "Effective Date" means the date of the
Effective Time. "Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto. Such registration
statement, as amended at the Effective Time, including all information deemed to
be a part of such registration statement as of the Effective Time pursuant to
Rule 430A(b) under the Act, and including the exhibits thereto and any material
incorporated by reference therein, are hereinafter referred to as the
"Registration Statement." "Basic Prospectus" shall mean the prospectus referred
to above contained in the Registration Statement at the Effective Date including
any Preliminary Prospectus Supplement, as most recently revised or amended and
filed with the Commission pursuant to Rule 424(b) or Rule 429. "Preliminary
Prospectus Supplement" shall mean any preliminary prospectus supplement to the
Basic Prospectus which describes the Notes and the offering thereof and is used
prior to filing of the Prospectus. "Prospectus" shall mean the prospectus
supplement relating to the Notes 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 Notes, including the Basic Prospectus, included in the
Registration Statement at the Effective Date. "Rule 430A Information" means
information with respect to the Notes and the offering of the Notes permitted to
be omitted from the Registration Statement when it becomes effective pursuant to
Rule 430A. "Rule 415", "Rule 424", "Rule 430A" and "Regulation S-K" refer to
such rules or regulations under the Act. Any reference herein to the
Registration Statement, the Basic Prospectus, a Preliminary Prospectus
Supplement or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the Effective Date of the Registration Statement
or the issue date of the Basic Prospectus, such Preliminary Prospectus
Supplement or the Prospectus, as the case may be; and any reference herein to
the terms "amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus Supplement or the
Prospectus shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the Registration Statement,
or the issue date of the Basic Prospectus, any Preliminary Prospectus Supplement
or the Prospectus, as the case may be, deemed to be incorporated therein by
reference.
(b) On the Effective Date and on the date of this Agreement, the
Registration Statement did or will, and, when the Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing Date (as defined
below), the Prospectus (and any supplements thereto) will, comply in all
material respects with the applicable requirements of the Act and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
respective rules and regulations of the Commission thereunder (the "Rules and
Regulations"); on the Effective Date, the Registration Statement did not or will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the Prospectus,
if not filed
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pursuant to Rule 424(b), did not or will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Prospectus (together with
any supplement thereto) will not include any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; PROVIDED, HOWEVER, that the Transferor 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 Transferor by any
Underwriter through you specifically for use in connection with preparation of
the Registration Statement, the Prospectus (or any supplement thereto), it being
agreed that the only such information consists of the statements in the second
and sixth paragraphs (concerning initial offering prices, concessions and
reallowances) and in the fourth and eighth paragraphs (concerning overallotment,
stabilizing transactions, syndicate covering transactions and penalty bids)
under the heading "Underwriting" in the Prospectus. As of the Closing Date, the
Transferor's representations and warranties in the Transfer and Servicing
Agreement and the Trust Agreement will be true and correct in all material
respects.
(c) The Transaction Documents conform in all material respects to
the descriptions thereof and the statements in relation thereto contained in the
Prospectus, as applicable.
(d) The Notes conform in all material respects to the description
thereof and the statements in relation thereto contained in the Prospectus; the
Notes have been duly and validly authorized and, when executed, issued,
authenticated and delivered in accordance with the Indenture and when delivered
to the Underwriters, against payment of the consideration specified herein, will
be duly and validly issued and outstanding and entitled to the benefits of the
Indenture.
(e) The Transferor is not now, nor as a result of the transactions
contemplated by this Agreement, will it become, an "investment company", nor is
it "controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act").
(f) As of the Closing Date, (i) each representation and warranty of
Case Credit, New Holland and the Transferor in the respective Receivables
Purchase Agreements will be true and correct, each Underwriter may rely on such
representations and warranties and neither Case Credit, New Holland nor the
Transferor will be in breach of the respective Receivables Purchase Agreements;
(ii) each representation and warranty of the Transferor and Case Credit in the
Transfer and Servicing Agreement will be true and correct, each Underwriter may
rely on such representations and warranties and neither Case Credit nor the
Transferor will be in breach of the Transfer and Servicing Agreement; and (iii)
the representation and warranty of the Transferor in the Trust Agreement will be
true and correct, each Underwriter may rely on such representations and
warranties and the Transferor will not be in breach of the Trust Agreement.
(g) Each of Case Credit and the Transferor 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, and each of
the Transaction Documents to which it is a party and has obtained all necessary
licenses
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and approvals in each jurisdiction in which failure to qualify or to obtain such
license or approval would render any Receivable unenforceable by the Transferor,
the Owner Trustee or the Indenture Trustee.
(h) New Holland is validly existing as a limited liability company
in good standing under the laws of the State of Delaware with power and
authority to own its properties and conduct its business as such properties are
currently owned and such business is currently conducted and to enter into and
perform its obligations under the NH Purchase Agreement and has obtained all
necessary licenses and approvals in each jurisdiction in which failure to
qualify or to obtain such license or approval would render any NH Receivable
unenforceable by the Transferor, the Owner Trustee or the Indenture Trustee.
(i) On the Closing Date, upon delivery thereof, each of the
Transaction Documents to which the Transferor is a party will have been duly
authorized, executed and delivered by the Transferor, and will be legal, valid
and binding obligations of the Transferor enforceable against the Transferor 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).
(j) On the Closing Date, upon delivery thereof, each of the
Transaction Documents to which Case Credit is a party will have been duly
authorized, executed and delivered by Case Credit and will be legal, valid and
binding obligations of Case Credit enforceable against Case Credit in accordance
with their terms, subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law affecting creditors rights
generally and to the effect of general principles of equity, including concepts
of materiality, reasonableness, good faith and fair dealing (regardless of
whether considered in a proceeding in equity or at law).
(k) On the Closing Date, upon delivery thereof, the NH Purchase
Agreement will have been duly authorized, executed and delivered by New Holland
and will be legal, valid and binding obligations of New Holland enforceable
against New Holland in accordance with their terms, subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar law
affecting creditors rights generally and to the effect of general principles of
equity, including concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether considered in a proceeding in equity or at law).
(l) This Agreement has been duly authorized, executed and delivered
by each of the Transferor, New Holland and Case Credit.
(m) The execution, delivery and performance of this Agreement and
the Transaction Documents, as applicable, by Case Credit, New Holland and the
Transferor, 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 Transferor or the certificate of formation or limited liability
company agreement of New Holland or any material agreement or instrument to
which Case Credit, New Holland or the Transferor is a party or by which Case
Credit, New Holland or the
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Transferor is bound or to which any of the properties of Case Credit, New
Holland or the Transferor is subject.
(n) The execution, delivery and performance of this Agreement and
the Transaction Documents, as applicable, by Case Credit, New Holland and the
Transferor, and the consummation of the transactions contemplated thereby, will
not violate any statute, rule or regulation or any order of any governmental
agency or body or any court having jurisdiction over Case Credit, New Holland or
the Transferor or any of their properties.
(o) 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 Transaction Documents, (2)
seeking to prevent the consummation of any of the transactions contemplated by
any of the Transaction Documents or the execution and delivery thereof, or (3)
that could reasonably be expected to materially and adversely affect the
performance by Case Credit, New Holland or the Transferor, as applicable, of
their respective obligations under, or the validity or enforceability of, this
Agreement or the Transaction Documents.
(p) When the Notes have been duly executed and delivered by the
Owner 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).
(q) 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
Transaction 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.
(r) Since June 30, 2003, there has not been any material adverse
change in the business, results of operations, condition (financial or
otherwise), prospects, or material properties or assets of the Transferor, Case
Credit, New Holland or Case, LLC.
(s) The computer tape of the Receivables created as of the Cut-off
Date, and made available to the Representatives by the Servicer, was complete
and accurate in all material respects as of the date thereof and includes a
description of the Receivables that are described in each of the Receivables
Purchase Agreements.
(t) Any taxes, fees and other governmental charges that have been
assessed and are known to the Transferor, Case Credit or New Holland to be due
in connection with the execution, delivery and issuance of the Transaction
Documents shall have been paid by the Transferor, Case Credit or New Holland at
or prior to the Closing Date (as defined in Section 3 hereof).
(u) None of the Transferor, Case Credit or New Holland is in
violation of its certificate of incorporation or certificate of formation or
limited liability company agreement, as
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applicable, or its by-laws or limited liability company agreement or in default
in the performance or observance of any obligation, agreement, covenant or
condition contained in any agreement or instrument to which it is a party or by
which it or its properties are bound which would have a material adverse effect
on the transactions contemplated herein or on the Transferor's, Case Credit's on
New Holland's respective ability to perform its obligations under the
Transaction Documents.
3. PURCHASE, SALE, AND DELIVERY OF THE NOTES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Transferor 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, Brown, Xxxx & Maw
LLP, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 (or such other place as
the Transferor and the Representatives shall agree), on September __, 2003 (the
"Closing Date"). Delivery of the Notes shall be made against payment of the
purchase price in immediately available funds drawn to the order of the
Transferor. 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 TRANSFEROR. The Transferor covenants and
agrees with each of the Underwriters that:
(a) The Transferor 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 Transferor will not file any amendment of the Registration
Statement or supplement to the Prospectus unless the Transferor has furnished
you a copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the foregoing
sentence, if the Registration Statement has become or becomes effective pursuant
to Rule 430A, or filing of the Prospectus is otherwise required under Rule
424(b), the Transferor 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 Transferor 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 Transferor 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 Transferor will also advise you promptly of the
effectiveness of the Registration Statement and any amendment thereto, when the
Prospectus, and any
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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 Transferor 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 Transferor 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 Transferor
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 Transferor will furnish to the Underwriters copies of the
Registration Statement (one of which will be signed and will include all
exhibits), each related preliminary prospectus (including the Preliminary
Prospectus Supplement), the Prospectus and all amendments and supplements to
such documents, in each case as soon as available and in such quantities as the
Underwriters request.
(f) The Transferor 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 Transferor
will deliver to you the annual statements of compliance and the annual
independent certified public accountants' reports furnished to the Owner Trustee
or the Indenture Trustee pursuant to the Transfer and Servicing Agreement, as
soon as such statements and reports are furnished to the Owner Trustee or the
Indenture Trustee.
(h) So long as any of the Notes is outstanding, the Transferor 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 Transferor filed with
any government or regulatory authority which is otherwise publicly available, as
you may reasonably request.
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(i) On or before the Closing Date, the Transferor shall cause the
computer records of the Transferor 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 Transferor nor Case Credit shall take any
action inconsistent with the Trust's ownership of such Receivables, other than
as permitted by the Transfer 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 Transferor, the Transferor 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 Transferor, Case Credit or any trust originated, directly or
indirectly, by the Transferor 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 evidencing an ownership interest in, receivables generated pursuant
to retail agricultural or construction equipment installment sale contracts.
(l) On or prior to each Transfer Date relating to Additional
Accounts, the Transferor shall deliver to the Representatives (i) a duly
executed Addition Notice and Assignment including a schedule of the Receivables
to be transferred to the Trust on such Transfer Date, (ii) a copy of the letter
from a firm of independent nationally recognized certified public accountants to
be delivered to the Owner Trustee and the Indenture Trustee pursuant to Section
3.06 of the Transfer and Servicing Agreement, and (iii) a copy of the officer's
certificate delivered to the Indenture Trustee and the Owner Trustee pursuant to
Section 3.05 of the Transfer and Servicing Agreement.
(m) The Transferor will enter into, and will cause the Issuer to
enter into, each Transaction Document to which this Agreement and each
Transaction Document contemplates the Transferor and/or the Issuer will be a
party on or prior to the Closing Date.
6. PAYMENT OF EXPENSES. The Transferor 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
Transferor'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
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representations and warranties on the part of Case Credit, New Holland and the
Transferor herein, to the accuracy of the statements of officers of Case Credit,
New Holland and the Transferor made pursuant to the provisions hereof, to the
performance by Case Credit, New Holland and the Transferor of their respective
obligations hereunder and to the following additional conditions precedent:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Underwriters agree in writing to a later time,
the Registration Statement shall have become effective not later than (i) 6:00
p.m. New York City time on the date of determination of the public offering
price, if such determination occurred at or prior to 3:00 p.m. New York City
time on such date or (ii) 12:00 noon on the business day following the day on
which the public offering price was determined, if such determination occurred
after 3:00 p.m. New York City time on such date.
(b) The Prospectus and any supplements thereto shall have been
filed (if required) with the Commission in accordance with the Rules and
Regulations and Section 5(a) hereof, and prior to the Closing Date, no stop
order suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or, to the
knowledge of the Transferor or you, shall be contemplated by the Commission or
by any authority administering any state securities or blue sky law.
(c) On or prior to the Closing Date, you shall have received a
letter or letters, dated as of the date of the Closing Date, of Deloitte Touche
Tohmatsu, 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 Transferor, Case Credit, Case, LLC or CNH Global N.V. which, in
the judgment of the Underwriters, materially impairs the investment quality of
the Notes or makes it impractical or inadvisable to market the Notes; (ii) any
suspension or limitation of trading in securities generally on the New York
Stock Exchange, or any setting of minimum prices for trading on such exchange;
(iii) any suspension of trading of any securities of Case, LLC or CNH Global
N.V. on any exchange or in the over-the-counter market which, in the judgment of
the Underwriters, makes it impractical or inadvisable to market the Notes; (iv)
any banking moratorium declared by Federal or New York authorities; (v) there
shall have occurred a material disruption in securities settlement, payment or
clearance services in the United States; or (vi) any material adverse change on
the financial markets or 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 change, 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 Transferor substantially in the form attached hereto as
Exhibit A, addressed to you, as Representatives of the several Underwriters, the
Owner Trustee and the Indenture Trustee, dated the Closing Date and satisfactory
in form and substance to you and your counsel.
10
(f) You shall have received an opinion or opinions of counsel to
New Holland substantially in the form attached hereto as Exhibit B, addressed to
you, as Representatives of the several Underwriters, the Owner Trustee and the
Indenture Trustee, dated the Closing Date and satisfactory in form and substance
to you and your counsel
(g) You shall have received an opinion of Xxxxx, Xxxxx, Xxxx & Maw
LLP, special Illinois tax counsel for the Trust substantially in the form
attached hereto as Exhibit C, addressed to you, as Representatives of the
several Underwriters, and the Indenture Trustee, dated the Closing Date and
satisfactory in form and substance to you and your counsel.
(h) You shall have received an opinion or opinions substantially in
the form attached hereto as Exhibit D addressed to you, as Representatives of
the several Underwriters, Case Credit and the Transferor of counsel to the
Indenture Trustee, dated the Closing Date and satisfactory in form and substance
to you and your counsel.
(i) You shall have received an opinion substantially in the form
attached hereto as Exhibit E addressed to you, as Representatives of the several
Underwriters, Case Credit and the Transferor of counsel to the Owner Trustee,
dated the Closing Date and satisfactory in form and substance to you and your
counsel.
You shall also have received an opinion addressed to you, as
Representatives of the several Underwriters, Case Credit and the Transferor of
counsel to The Bank of New York (Delaware), as Delaware Trustee, dated the
Closing Date and satisfactory in form and substance to you and your counsel,
covering such matters as you and your counsel may reasonably request.
(j) You shall have received an opinion substantially in the form
attached hereto as Exhibit F addressed to you, as Representatives of the several
Underwriters, Case Credit and the Transferor 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.
(k) You, as Representatives of the several Underwriters, shall have
received copies of any opinions of counsel to Case Credit and the Transferor
supplied to the Rating Agencies. Any such opinions shall be dated the Closing
Date and addressed to you, as Representatives of the several Underwriters, or
accompanied by reliance letters addressed to you, as Representatives of the
several Underwriters.
(l) 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, New Holland, the Transferor 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, New Holland and
the Transferor contained in the Trust Agreement, the Case Purchase Agreement,
the NH Purchase Agreement and the Transfer and Servicing Agreement, as
applicable, are true and correct in all material respects, that each of Case
Credit and the Transferor, 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
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have been instituted or are contemplated by the Commission and (ii) since March
31, 2003 except as may be disclosed in the Prospectus or, in the case of Case
Credit or Case, LLC, as may be disclosed publicly by Case Credit or Case, LLC
prior to the Execution Time, no material adverse change in or affecting
particularly the business or properties of the Trust, the Transferor, the
Servicer, Case Credit or Case, LLC has occurred.
(m) You shall have received certificates dated the Closing Date of
any two of the Chairman of the Board, the President, the Executive Vice
President, any Vice President, the Treasurer, any Assistant Treasurer, the
principal financial officer or the principal accounting officer of New Holland
in which such officers shall state that, to the best of their knowledge after
reasonable investigation, (i) the representations and warranties of New Holland
contained in the NH Purchase Agreement are true and correct in all material
respects, that New Holland has complied in all material respects with all
agreements and satisfied in all material respects all conditions on its part to
be performed or satisfied under such agreements at or prior to the Closing Date,
and (ii) since March 31, 2003 except as may be disclosed in the Prospectus or as
may be disclosed publicly by New Holland prior to the Execution Time, no
material adverse change in or affecting particularly the business or properties
of New Holland has occurred.
(n) You shall have received evidence satisfactory to you that, on
or before the Closing Date:
(i) UCC financing statements have been or are being filed in the
office of the Secretary of State of the State of Delaware reflecting the
transfer of the interest of New Holland in the NH Receivables and the
proceeds thereof to the Transferor; and
(ii) UCC financing statements have been or are being filed in the
office of the Secretary of State of the State of Delaware reflecting the
transfer of the interest of Case Credit in the Case Receivables and the
proceeds thereof to the Transferor, and the transfer of the interest of the
Transferor 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.
(o) The A Notes shall have been rated in the highest rating
category 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.
(p) The issuance of the Notes 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 Transferor.
(q) The Transferor will provide or cause to be provided to you, as
Representatives of the several Underwriters, such conformed copies of such
opinions, certificates, letters and documents as you reasonably request.
The documents required to be delivered by this Section 7 will be
delivered at the office of counsel for Case Credit and the Transferor, at 000
Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, on the Closing Date.
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8. INDEMNIFICATION AND CONTRIBUTION. (a) The Transferor and Case
Credit will, jointly and severally, indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever arising out of any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
Basic Prospectus, Preliminary Prospectus Supplement, Basic Prospectus or
the Prospectus or any amendment or supplement thereto or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of the
Transferor 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 Transferor, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Transferor
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 Transferor 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
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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 understood that the
indemnifying party shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all indemnified
parties, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm for the Underwriters and such control persons
of Underwriters shall be designated in writing by the Representatives and any
such separate firm for Case Credit and the Transferor, the directors of Case
Credit and the Transferor, the officers of Case Credit and the Transferor who
sign the Registration Statement and such control persons of Case Credit and the
Transferor or authorized representatives shall be designated in writing by Case
Credit and the Transferor. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify any indemnified party from and against
any loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability 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 Transferor, 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 Transferor and one or
more of the Underwriters, (i) in such proportions as is appropriate to reflect
the relative benefits received by the Underwriters and the Transferor and Case
Credit from the sale of the Notes or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Transferor and Case Credit on the one
hand and the Underwriters on the other with respect to the statements or
omissions which resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Transferor and Case Credit on the one hand and the Underwriters on the
other with respect to such offering shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Notes purchased under this
Agreement (before deducting expenses) received by the Transferor bear to the
total underwriting discounts and commissions received by the Underwriters with
respect to the Notes purchased under this Agreement, in each case as set forth
in the table on the cover page of the Prospectus; 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. The relative fault shall be
determined by reference to, among other things,
14
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Transferor and Case Credit on the one hand or the Underwriters
on the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. 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 Transferor,
each officer of the Transferor who signed the Registration Statement, and each
person, if any, who controls the Transferor within the meaning of Section 15 of
the Act shall have the same rights to contribution as the Transferor.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the underwriting discount or
commission applicable to the Notes purchased by it hereunder.
9. DEFAULTS OF UNDERWRITERS. If any Underwriter or Underwriters
default in their obligations to purchase Notes hereunder on the Closing Date and
arrangements satisfactory to the Representatives and the Transferor 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 Transferor, except as provided in Section 11
and except that, if the aggregate principal amount of Notes which the defaulting
Underwriter or Underwriting agreed but failed to purchase shall be 10% or less
of the aggregate principal amount of all the Notes set forth in Schedule I
hereto, the remaining Underwriters shall be obligated severally to take up and
pay for (in the respective proportions which the aggregate principal amount of
Notes set forth opposite their names in Schedule I hereto bears to the aggregate
principal amount of Notes set forth opposite the names of all the remaining
Underwriters) the Notes which the defaulting Underwriter or Underwriters agreed
but failed to purchase. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
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 Transferor or by a trust for which the
Transferor 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 Transferor 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
Transferor 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 Transferor 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 Transferor 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 Transferor shall remain
responsible for the expenses to be paid or reimbursed by the Transferor pursuant
to Section 6 and the respective obligations of the Transferor and the
Underwriters pursuant to Section 8 shall remain in effect.
15
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), (v) or (vi) of Section 7(d)), the Transferor 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 Transferor 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 Representatives of the Several Underwriters at Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, 000 Xxxxx Xxxxxx, Xxxxx Xxxxxxxxx Xxxxxx,
Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-1310, Attention: Corporate and
Institutional Client Group, and XX Xxxxx Securities Corporation, 0000 Xxxxxx xx
xxx Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxxxxxxxx: Securitization
Group, with a copy of any notice pursuant to Section 8(c) to Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, as, 000 Xxxxx Xxxxxx, Xxxxx Xxxxxxxxx
Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 10281-1310, Attention: Legal Department
and XX Xxxxx Securities Corporation, 0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Legal and Compliance Department; if sent to the
Transferor, will be mailed, delivered or telegraphed, and confirmed to it at CNH
Wholesale Receivables Inc., 000 Xxxxx Xxxxxxxx Xxxx, Xxxx Xxxxxx, XX 00000,
Attention: Treasurer; or, if sent to Case Credit, will be mailed, delivered or
telegraphed and confirmed to it at Case Credit Corporation, 000 Xxxx Xxxxxx,
Xxxxxx, Xxxxxxxxx 00000, Attention: Treasurer; provided, however, that any
notice to an Underwriter pursuant to Section 8 will be mailed, delivered or
telegraphed and confirmed to such Underwriter. Any such notice will take effect
at the time of receipt.
13. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8, and no other
person will have any right or obligations hereunder. No purchaser of Notes from
any Underwriter shall be deemed to be a successor of such Underwriter merely
because of such purchase.
14. REPRESENTATION. You will act for the several Underwriters in
connection with the transactions contemplated by this Agreement, and any action
under this Agreement taken by you will be binding upon all the Underwriters.
15. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
16. APPLICABLE LAW. This Agreement will be governed by, and
construed in accordance with, the laws of the State of New York.
16
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 Transferor, Case Credit, New
Holland and the several Underwriters in accordance with its terms.
Very truly yours,
CNH WHOLESALE RECEIVABLES INC.,
By:
------------------------------------
Name:
Title:
CASE CREDIT CORPORATION,
By:
------------------------------------
Name:
Title:
NEW HOLLAND CREDIT COMPANY, LLC
By:
------------------------------------
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of the date
first written above.
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
on behalf of itself and as a Representative
of the several Underwriters,
By:
------------------------------------
Name:
Title:
XX XXXXX SECURITIES CORPORATION
on behalf of itself and as a Representative
of the several Underwriters,
By:
------------------------------------
Name:
Title:
SCHEDULE I
CNH WHOLESALE MASTER NOTE TRUST, SERIES 2003-1
OFFERED SECURITY PRINCIPAL AMOUNT PRICE
A NOTES
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated $ %
XX Xxxxx Securities Corporation $ %
ABN AMRO Incorporated
Banc of America Securities LLC
B NOTES
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated $ %
XX Xxxxx Securities Corporation $ %
EXHIBITS A - F
[FORMS OF OPINIONS OF COUNSEL]
