Exhibit 1.1
EXECUTION COPY
CNH EQUIPMENT TRUST 2007-B
5.81638% CLASS A-1 ASSET BACKED NOTES
5.46% CLASS A-2a ASSET BACKED NOTES
FLOATING RATE CLASS A-2b ASSET BACKED NOTES
5.40% CLASS A-3a ASSET BACKED NOTES
FLOATING RATE CLASS A-3b ASSET BACKED NOTES
FLOATING RATE CLASS A-4 ASSET BACKED NOTES
6.38% CLASS B ASSET BACKED NOTES
CNH CAPITAL RECEIVABLES LLC
UNDERWRITING AGREEMENT
September 12, 2007
Barclays Capital Inc.
200 Park Avenue, 5th Floor
New York, New York 10166
ABN AMRO Incorporated
55 East 52nd Street, 7th Floor
New York, New York 10055
as Representatives of the Several Underwriters
Ladies and Gentlemen:
1. Introductory. CNH Capital Receivables LLC, a Delaware limited liability company (the “Seller”), proposes to cause CNH Equipment Trust 2007-B (the “Trust”) to issue and sell $122,000,000 principal amount of 5.81638% Class A-1 Asset Backed Notes (the “A-1 Notes”), $181,000,000 principal amount of 5.46% Class A-2a Asset Backed Notes (the “A-2a Notes”) and $80,000,000 principal amount of Floating Rate Class A-2b Asset Backed Notes (the “A-2b Notes”, together with the A-2a Notes, the “A-2 Notes”); $76,000,000 principal amount of 5.40% Class A-3a Asset Backed Notes (the “A-3a Notes”) and $99,000,000 principal amount of the Floating Rate Class A-3b Asset Backed Notes (the “A-3b Notes”, together with the A-3a Notes, the “A-3 Notes”); $173,250,000 principal amount of Floating Rate Class A-4 Asset Backed Notes (the “A-4 Notes”) and $18,750,000 principal amount of 6.38% Class B Asset Backed Notes (the “B Notes” and, together with the A-1 Notes, the A-2 Notes, the A-3 Notes and the A-4 Notes, the “Notes”), to the several underwriters named in Schedule I hereto (collectively, the “Underwriters”), for whom you are acting as representatives (the “Representatives”).
The assets of the Trust include, among other things, a pool of fixed rate retail installment sale contracts, retail installment loans and consumer installment loans (the “Receivables”) secured by new or used agricultural, construction or other equipment and the related security interests in the equipment financed thereby. The Receivables were sold to the Trust by the Seller. The
Receivables are serviced for the Trust by New Holland Credit Company, LLC, a Delaware limited liability company (“New Holland”). New Holland has appointed Systems & Services Technologies, Inc. (“SST”) to act as backup servicer, of the Receivables pursuant to the Backup Servicing Agreement, dated as of September 1, 2007 (as amended and supplemented from time to time, the “Backup Servicing Agreement”) among the Seller, New Holland, as servicer, the Trust, SST, as backup servicer, and The Bank of New York Trust Company, N.A., as indenture trustee (the “Indenture Trustee”). The Notes will be issued pursuant to the Indenture to be dated as of September 1, 2007 (as amended and supplemented from time to time, the “Indenture”), between the Trust and the Indenture Trustee.
Simultaneously with the issuance and sale of the Notes as contemplated in this Agreement, the Trust will issue to the Seller certificates representing fractional undivided equity interests in the Trust (the “Certificates”). The Notes and the Certificates are sometimes referred to herein as the “Securities.”
Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the Sale and Servicing Agreement to be dated as of September 1, 2007 (as amended and supplemented from time to time, the “Sale and Servicing Agreement”), among the Trust, the Seller and New Holland, as servicer, or, if not defined therein, in the Indenture or the Trust Agreement dated as of September 1, 2007 (as amended and supplemented from time to time, the “Trust Agreement”), between the Seller and Wilmington Trust Company, as trustee (the “Trustee”).
At or prior to the time when sales to purchasers of the Notes were first made to investors by the several Underwriters, which was approximately 2:40 p.m. (New York time) on September 12, 2007 (the “Time of Sale”), the Seller had prepared the following information (collectively, the “Time of Sale Information”): the preliminary prospectus supplement dated September 11, 2007 (the “Preliminary Prospectus Supplement”) to the base prospectus dated September 11, 2007 (the “Preliminary Basic Prospectus”) (together, along with information referred to under the caption “Static Pool Data” therein regardless of whether it is deemed a part of the Registration Statement or Prospectus, the “Preliminary Prospectus”). If, subsequent to the Time of Sale and prior to the Closing Date (as defined below), such information included an untrue statement of material fact or omitted 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, and as a result investors in the Notes may terminate their old “Contracts of Sale” (within the meaning of Rule 159 under the Securities Act of 1933, as amended (the “Act”)) for any Notes and the Underwriters enter into new Contracts of Sale with investors in the Notes, then “Time of Sale Information” will refer to the information conveyed to investors at the time of entry into the first such new Contract of Sale, in an amended Preliminary Prospectus approved by the Seller and the Representatives that corrects such material misstatements or omissions (a “Corrected Prospectus”) and “Time of Sale” will refer to the time and date on which such new Contracts of Sale were entered into.
2. Representations and Warranties. The Seller, and with respect to items (e), (f), (h), (i), (j), (k), (l), (m), (n), (p), (q), (r), (s) and (t) as they relate to CNH Capital America LLC, a Delaware limited liability company (“CNHCA”) and/or New Holland, CNHCA, represent and warrant to, and agree with, each Underwriter as of the date hereof and as of the Closing Date that:
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(a) A registration statement on Form S-3 (No. 333-130656) relating to the Notes has been filed by Seller with the Securities and Exchange Commission (the “Commission”) and has become effective and is still effective as of the date hereof under the Act. The Seller proposes to file with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission under the Act (the “Rules and Regulations”) a prospectus supplement dated September 12, 2007 (together with information referred to under the caption “Static Pool Data” therein regardless of whether it is deemed a part of the Registration Statement or Prospectus, the “Prospectus Supplement”) to the prospectus dated September 11, 2007 (the “Basic Prospectus”), relating to the Notes and the method of distribution thereof. Such registration statement, including exhibits thereto, and such prospectus, as amended or supplemented to the date hereof, and as further supplemented by the Prospectus Supplement, are hereinafter referred to as the “Registration Statement” and the “Prospectus,” respectively. The conditions to the use of a registration statement on Form S-3 under the Act have been satisfied. The Seller has filed the Preliminary Prospectus and it has done so within the applicable period of time required under the Act and the Rules and Regulations.
(b) The Registration Statement, at the time it became effective, any post-effective amendment thereto, at the time it became effective, and the Prospectus, as of the date of the Prospectus Supplement, complied and on the Closing Date will comply in all material respects with the applicable requirements of the Act and the Rules and Regulations and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the rules and regulations of the Commission thereunder. The Registration Statement, as of the applicable effective date as to each part of the Registration Statement and any amendment thereto pursuant to Rule 430B(f)(2) under the Act, did not include any untrue statement of a material fact and did not omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading. The Preliminary Prospectus, as of its date and as of the Time of Sale and as of the Closing Date, did not and will not contain an untrue statement of a material fact and did not 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. The Prospectus, as of the date of the Prospectus Supplement and as of the Closing Date, does not and will not contain any untrue statement of a material fact and did not and will not omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties in the three preceding sentences do not apply to information contained in or omitted from the Registration Statement, the Preliminary Prospectus or the Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Seller by any Underwriter through either Representative specifically for use in connection with preparation of the Registration Statement, the Preliminary Prospectus or 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 and syndicate covering transactions) under the heading “Underwriting” in the Preliminary Prospectus Supplement and the Prospectus Supplement (such information, the “Underwriter Information”). The Indenture has been qualified under the Trust Indenture Act. As of the Closing Date, the Seller’s representations and warranties in the Sale and Servicing Agreement and the Trust Agreement will be true and correct in all material respects.
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(c) The Time of Sale Information, at the Time of Sale, did not, and at the Closing Date will not, contain 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 that the Seller makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with the Underwriter Information. As of the Time of Sale, the Seller was not and as of the Closing Date is not, an “ineligible issuer,” as defined in Rule 405 under the Act.
(d) The documents incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus, when they became effective under the Act or were filed with the Commission under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as the case may be, conformed in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and any further documents so filed and incorporated by reference in the Registration Statement or the Prospectus, when such documents are filed with the Commission, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder.
(e) Each of CNHCA and the Seller has been duly organized and 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 described in the Preliminary Prospectus and the Prospectus and to enter into and perform its obligations under this Agreement and the Purchase Agreement and, in the case of the Seller, the Sale and Servicing Agreement and the Backup Servicing Agreement, and has obtained all necessary licenses and approvals in each jurisdiction in which failure to qualify or to obtain such license or approval would render any Receivable unenforceable by the Seller, the Trust or the Indenture Trustee.
(f) New Holland has been duly organized and 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 Sale and Servicing Agreement, the Backup Servicing Agreement and the Administration Agreement and has obtained all necessary licenses and approvals in each jurisdiction in which failure to qualify or to obtain such license or approval would render any Receivable unenforceable by the Seller, the Trust or the Indenture Trustee.
(g) The Liquidity Receivables Purchase Agreement was and on the Closing Date, upon delivery thereof, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Backup Servicing Agreement will have been duly authorized, executed and delivered by the Seller, and will be legal, valid and binding obligations of the Seller enforceable against the Seller in accordance with their terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally and to the effect of general principles of equity, including concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law).
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(h) The Liquidity Receivables Purchase Agreement was and on the Closing Date, upon delivery thereof, the Purchase Agreement will have been duly authorized, executed and delivered by CNHCA and will be legal, valid and binding obligations of CNHCA enforceable against CNHCA 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).
(i) On the Closing Date, upon delivery thereof, the Sale and Servicing Agreement, the Backup Servicing Agreement and the Administration 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).
(j) This Agreement has been duly authorized, executed and delivered by each of the Seller and CNHCA.
(k) The execution, delivery and performance of this Agreement, the Liquidity Receivables Purchase Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, the Sale and Servicing Agreement, the Indenture and the Backup Servicing Agreement and the other documents and certificates delivered in connection therewith (such agreements, documents and certificates, excluding this Agreement, being, collectively, the “Basic Documents”), as applicable, by CNHCA and the Seller, and the consummation of the transactions contemplated thereby, will not conflict with, or result in a breach, violation or acceleration of, or constitute a default under, the certificate of formation, limited liability company agreement or by-laws of CNHCA, New Holland or the Seller or any material agreement or instrument to which CNHCA, New Holland or the Seller is a party or by which CNHCA, New Holland or the Seller is bound or to which any of the properties of CNHCA, New Holland or the Seller is subject.
(l) The execution, delivery and performance of this Agreement and the Basic Documents, as applicable, by CNHCA, New Holland and the Seller, and the consummation of the transactions contemplated thereby, will not (or, with respect to the execution, delivery and performance of the Liquidity Receivables Purchase Agreement, did not) violate any statute, rule or regulation or any order of any governmental agency or body or any court having jurisdiction over CNHCA, New Holland or the Seller or any of their properties.
(m) There are no actions, proceedings or investigations pending or threatened before any court, administrative agency, or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, or (3) that could reasonably be expected to materially and adversely affect the performance by CNHCA,
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New Holland or the Seller, as applicable, of its obligations under, or the validity or enforceability of, this Agreement or the Basic Documents.
(n) On the Closing Date, upon delivery thereof, the CNHCA Assignment dated as of the Closing Date from CNHCA to the Seller and on the date thereof, the assignments of Receivables from CNHCA to the Seller pursuant to the Liquidity Receivables Purchase Agreement were (and, with respect to the CNHCA Assignment, will be) duly authorized, executed and delivered by CNHCA.
(o) When the Notes have been duly executed and delivered by the Trustee, authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally and to the effect of general principles of equity, including concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law).
(p) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement or the Basic Documents, except such as are required and have been or will be obtained and made on or prior to the Closing Date under the Act and such as may be required under state securities laws.
(q) Since June 30, 2007 there has not been any material adverse change in the business, results of operations, condition (financial or otherwise), prospects, or material properties or assets of the Seller, CNHCA, New Holland or CNH America LLC.
(r) The computer tape of the Receivables created as of August 31, 2007 (the “Computer Tape”) and made available to the Representatives by the Servicer, was complete and accurate in all material respects as of the date thereof and includes a description of the Receivables that are described in the Assignment.
(s) Any taxes, fees and other governmental charges that have been assessed and are known to the Seller, CNHCA or New Holland to be due in connection with the execution, delivery and issuance of the Basic Documents shall have been paid by the Seller, CNHCA or New Holland at or prior to the Closing Date (as defined in Section 3 hereof).
(t) None of the Seller, CNHCA or New Holland is in violation of its certificate of formation, limited liability company agreement or by-laws or is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any agreement or instrument to which it is a party or by which it or its properties are bound which would have a material adverse effect on the transactions contemplated herein or on the Seller’s, CNHCA’s or New Holland’s respective ability to perform its obligations under the Basic Documents.
3. Purchase, Sale, and Delivery of the Notes. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Seller agrees to cause the Trust to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Trust, the respective Classes of Notes in the
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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 Greenberg Traurig, LLP, 77 West Wacker Drive, Chicago, Illinois, 60601 (or such other place as the Seller and the Representatives shall agree), on September 20, 2007 (the “Closing Date”). Delivery of the Notes shall be made against payment of the purchase price in immediately available funds drawn to the order of the Seller. The Notes to be so delivered will be initially represented by one or more Notes registered in the name of Cede & Co., the nominee of The Depository Trust Company (“DTC”). The interests of beneficial owners of the Notes will be represented by book entries on the records of DTC and participating members thereof. Definitive Notes will be available only under limited circumstances.
4. Offering by Underwriters. It is understood that the Underwriters propose to offer the Notes for sale to the public (which may include selected dealers), as set forth in the Prospectus.
5. Representations and Warranties of the Underwriters.
(a) Each Underwriter, severally and not jointly, represents and warrants to, and agrees with, the Seller, in relation to each member state of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of Notes to the public in that Relevant Member State prior to the publication of a prospectus in relation to the Notes which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of Notes to the public in that Relevant Member State at any time:
(i) to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (A) an average of at least 250 employees during the last financial year; (B) a total balance sheet of more than €43,000,000 and (C) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(iii) in any other circumstances which do not require the publication by the issuer of a prospectus pursuant to Article 3 of the Prospectus Directive or as such may be varied in a Relevant Member State by any measure implementing the Prospective Directive in that Member State.
For the purposes of this Section 5(a), the expression an “offer of Notes to the public” in relation to any Notes in any Relevant Member State means the communication to any person in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as to enable an investor to decide to purchase or subscribe for the Notes, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, and the expression “Prospectus Directive” means Directive 2003/71/EC and
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includes any relevant implementing measure in each Relevant Member State. “European Economic Area” means Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden, United Kingdom, Iceland, Liechtenstein and Norway.
(b) Each Underwriter, severally and not jointly, represents and warrants to, and agrees with, the Seller that:
(i) it has complied and will comply with all applicable provisions of the Financial Services and Markets Act 2000 (“FSMA”) of Great Britain (including, for the avoidance of doubt the prospectus rules made by the UK Financial Services Authority under Part IV of FSMA) with respect to anything done by it in relation to the Notes in, from or otherwise involving or being capable of having effect in the United Kingdom.
(ii) it has only communicated or caused to be communicated and it will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of Section 21 of FSMA) in connection with the issue or sale of any of the Notes in circumstances in which Section 21(1) of FSMA does not apply.
6. Covenants of the Seller. The Seller covenants and agrees with each of the Underwriters that:
(a) Prior to the termination of the offering of the Notes, the Seller will not file any amendment to the Registration Statement or any amendment, supplement or revision to either the Preliminary Prospectus or to the Prospectus, unless the Seller has furnished you a copy for your review prior to such proposed filing or use, as the case may be, and will not file or use any such document to which you shall reasonably object. Subject to the foregoing sentence, the Seller will effect the filings required under Rule 424(b) under the Act in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the Preliminary Prospectus and the Prospectus transmitted for filing under Rule 424(b) were each received for filing by the Commission and, in the event that either was not, it will promptly file the Preliminary Prospectus or the Prospectus, as applicable, and in each case will provide evidence satisfactory to you of such timely filing. In accordance with Section 9, the Seller will file any Trust Free Writing Prospectus (as hereinafter defined) to the extent required by Rule 433 under the Act.
(b) During the period when a prospectus is required by the Act or the Exchange Act to be delivered in connection with sales of the Notes (the “Prospectus Delivery Period”), the Seller will notify you immediately, and confirm the notice in writing, of (i) the effectiveness of any post-effective amendment to the Registration Statement or the filing of any supplement or amendment to the Prospectus, (ii) the receipt of any comments from the Commission, (iii) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for additional information, (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Prospectus, or of the suspension of the qualification of
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the Notes for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and (v) the happening of any event which, in the judgment of the Seller, makes the Registration Statement or the Prospectus contain an 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 not misleading. The Seller will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain as soon as possible the lifting thereof.
(c) Upon request, the Seller will deliver to the Underwriters and counsel for the Underwriters, without charge, photocopies of the signed Registration Statement at the time it originally became effective (the “Original Registration Statement”) and of each amendment thereto (including exhibits filed therewith) prior to the Closing Date. The copies of the Original Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”), except to the extent permitted by Regulation S-T under the Act.
(d) Prior to the availability of the Prospectus, the Seller will deliver to the Underwriters, without charge, as many copies of the Preliminary Prospectus as the Underwriters may reasonably request, and the Seller hereby consents to the use of such copies for purposes permitted by the Act. The Seller will furnish to the Underwriters, without charge, during the Prospectus Delivery Period, such number of copies of the Prospectus as the Underwriters may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T under the Act.
(e) The Seller will comply with the Act and the Rules and Regulations, the Exchange Act and the rules and regulations thereunder and the Trust Indenture Act and the rules and regulations thereunder so as to permit the completion of the distribution of the Notes as contemplated in this Agreement, the Basic Documents, the Registration Statement and the Prospectus. If during the Prospectus Delivery Period any event shall occur or condition shall exist as a result of which it is necessary to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include an 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, or if it shall be necessary during the Prospectus Delivery Period to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the Act or the Rules and Regulations, the Seller will promptly notify you and will promptly prepare and file with the Commission, subject to the review and approval provisions afforded to you described in Section 6(a), such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, the Preliminary Prospectus or the Prospectus comply with such requirements. The Seller will use its best efforts to have such amendment or new registration statement declared effective as soon as practicable, and the Seller will furnish to the Underwriters, without charge, such number of copies of such amendment or supplement as the Underwriters may reasonably request. Any such filing shall not operate as a waiver or limitation of any right of any Underwriter hereunder.
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(f) As soon as practicable, but not later than fourteen months after the original effective date of the Registration Statement, the Seller will cause the Trust to make generally available to Noteholders an earnings statement of the Trust covering a period of at least twelve months beginning after the deemed effective date of the Registration Statement pursuant to Rule 158(c) under the Act that will satisfy the provisions of Section 11(a) of the Act and Rule 158; provided that this covenant may be satisfied by posting the monthly investor reports for the Trust on a publicly available website.
(g) The Seller will arrange for the qualification of the Notes for sale under the laws of such jurisdictions in the United States as you may reasonably designate and will continue such qualifications in effect so long as required for the distribution.
(h) For a period from the date of this Agreement until the retirement of the Notes, or until such time as the Underwriters shall cease to maintain a secondary market in the Notes, whichever occurs first, the Seller will deliver to you, upon your request, the annual statements of compliance, annual assessments of compliance with servicing criteria and accountants’ attestations in respect of such assessments, on or after the date such statements and reports are furnished to the Indenture Trustee.
(i) So long as any of the Notes is outstanding, the Seller will furnish to you (i) as soon as practicable after the end of each fiscal year, and upon your request, all documents required to be distributed to Noteholders or filed with the Commission pursuant to the Exchange Act or any order of the Commission thereunder and (ii) from time to time, any other information concerning the Seller filed with any government or regulatory authority which is otherwise publicly available, as you may reasonably request.
(j) On or before the Closing Date, the Seller shall cause the computer records of the Seller, CNHCA and New Holland relating to the Receivables to be marked to show the Trust’s absolute ownership of the Receivables, and from and after the Closing Date none of the Seller, CNHCA or New Holland shall take any action inconsistent with the Trust’s ownership of such Receivables, other than as permitted by the Sale and Servicing Agreement.
(k) To the extent, if any, that the ratings provided with respect to the Notes by the rating agency or agencies that initially rate the Notes are conditional upon the furnishing of documents or the taking of any other actions by the Seller, the Seller shall furnish such documents and take any such other actions.
(l) For the period beginning on the date of this Agreement and ending seven days after the Closing Date, unless waived by the Underwriters, none of the Seller, CNHCA or any trust originated, directly or indirectly, by the Seller or CNHCA will offer to sell or sell notes (other than the Notes and commercial paper notes offered pursuant to CNHCA’s existing asset-backed commercial paper program) collateralized by, or certificates (other than the Certificates) evidencing an ownership interest in, receivables generated pursuant to retail agricultural or construction equipment installment sale contracts.
(m) On or prior to each Subsequent Transfer Date, the Seller shall deliver to the Representatives (i) a duly executed Subsequent Transfer Assignment including a schedule of the Subsequent Receivables to be transferred to the Trust on such Subsequent Transfer Date, (ii) a
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copy of the letter from a firm of independent nationally recognized certified public accountants to be delivered to the Trustee and the Indenture Trustee pursuant to Section 2.2(b)(xv) of the Sale and Servicing Agreement, and (iii) a copy of the Officer’s Certificate delivered to the Indenture Trustee and the Trustee pursuant to Section 2.2(b)(xvi) of the Sale and Servicing Agreement.
(n) The Seller will enter into, and will cause the Trust to enter into, each Basic Document to which this Agreement and each Basic Document contemplates the Seller and/or the Trust will be a party on or prior to the Closing Date.
7. Payment of Expenses. The Seller will pay all expenses incident to the performance of its obligations under this Agreement, including (i) the printing and filing of the Registration Statement as originally filed and of each amendment thereto, (ii) the fees and disbursements 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 CNHCA’s and the Seller’s counsel and accountants, (v) the qualification of the Notes under securities laws in accordance with the provisions of Section 6(g), 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 and of the Preliminary Prospectus and the Prospectus and of each amendment thereto, (viii) any fees charged by rating agencies for the rating of the Notes, (ix) the fees and expenses, if any, incurred with respect to any filing with the National Association of Securities Dealers, Inc., and (x) the costs and expenses (including any damages or other amounts payable in connection with legal and contractual liability) associated with reforming any Contracts for Sale of the Notes made by the Underwriters caused by a breach of any representation in Section 2(b) or Section 2(c).
8. Conditions of the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of CNHCA and the Seller herein, to the accuracy of the statements of officers of CNHCA and the Seller made pursuant to the provisions hereof, to the performance by CNHCA and the Seller of their respective obligations hereunder and to the following additional conditions precedent:
(a) If the Registration Statement has not become effective prior to the date hereof, 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) Each of the Preliminary Prospectus, the Prospectus and any supplements thereto shall have been filed with the Commission in the manner and within the applicable time period required under Rule 424(b) under the Act (without reference to Rule 424(b)(8)) in accordance
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with the Rules and Regulations and Section 6(a) hereof; and, prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Seller or you, shall be contemplated by the Commission or by any authority administering any state securities or blue sky law; and any requests for additional information from the Commission with respect to the Registration Statement shall have been complied with to your satisfaction.
(c) On or prior to the Closing Date, you shall have received a letter or letters, dated as of the date of the Closing Date, of Deloitte & Touche LLP independent public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel concerning the Time of Sale Information and the Prospectus.
(d) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Trust, the Seller, New Holland, CNHCA, CNH America 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 CNH America LLC or CNH Global N.V. on any exchange or in the over-the-counter market which, in the judgment of the Underwriters, makes it impractical or inadvisable to market the Notes; (iv) any banking moratorium declared by Federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress, or any other substantial national or international calamity or emergency or any material change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes; or (vi) a material disruption has occurred in securities settlement or clearance services in the United States.
(e) You shall have received an opinion or opinions (or, in the case of the penultimate paragraph of this clause (e), a negative assurance letter) of counsel to CNHCA and the Seller, addressed to you, as Representatives of the several Underwriters, the Trustee and the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to you and your counsel, to the effect that:
(i) Each of CNHCA and the Seller is an existing 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 described in the Prospectus and to enter into and perform its obligations under this Agreement and the Purchase Agreement and, in the case of the Seller, the Sale and Servicing Agreement and the Backup Servicing Agreement, and has obtained all necessary licenses and approvals in each jurisdiction in which failure to qualify or to obtain such license or approval would render any Receivable unenforceable by the Seller, the Trust or the Indenture Trustee.
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(ii) The direction by the Seller to the Trustee to authenticate the Certificates has been duly authorized by the Seller and, when the Certificates have been duly executed, authenticated and delivered by the Trustee in accordance with the Trust Agreement, the Certificates will be legally issued, fully paid and non-assessable subject to the obligations of the Seller under Section 2.10 of the Trust Agreement and entitled to the benefits of the Trust Agreement.
(iii) The direction by CNHCA to the Indenture Trustee to authenticate the Notes has been duly authorized by CNHCA, and, when the Notes have been duly executed and delivered by the Trustee, authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for by the Underwriters pursuant to this Agreement, the Notes will be validly and legally issued and outstanding and entitled to the benefits and security afforded by the Indenture, subject to the effect of any applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or similar law or regulation affecting creditors’ rights generally (including, without limitation, fraudulent conveyance laws) and to the effect of general principles of equity, including concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law).
(iv) The Liquidity Receivables Purchase Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Backup Servicing Agreement have been duly authorized, executed and delivered by the Seller, and are legal, valid and binding obligations of the Seller enforceable against the Seller in accordance with their terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally and to the effect of general principles of equity, including concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law).
(v) This Agreement has been duly authorized, executed and delivered by each of the Seller and CNHCA.
(vi) The Liquidity Receivables Purchase Agreement and the Purchase Agreement have been duly authorized, executed and delivered by CNHCA and are legal, valid and binding obligations of CNHCA enforceable against CNHCA in accordance with their terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally and to the effect of general principles of equity, including concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law).
(vii) The execution, delivery and performance of this Agreement and the Basic Documents, as applicable, by CNHCA and the Seller, and the consummation of the transactions contemplated thereby, will not conflict with, or result in a breach, violation or acceleration of, or constitute a default under, the certificate of formation, limited liability company agreement or by-laws of CNHCA or the Seller or any material agreement or instrument known to such counsel after due inquiry to which CNHCA or the Seller is a party or by which CNHCA or the Seller is bound or to which any of the properties of CNHCA or the Seller is subject.
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(viii) The execution, delivery and performance of this Agreement and the Basic Documents, as applicable, by CNHCA and the Seller, and the consummation of the transactions contemplated thereby, will not violate any statute, rule or regulation or, to such counsel’s knowledge, any order of any governmental agency or body or any court having jurisdiction over CNHCA or the Seller or any of their properties.
(ix) There are no actions, proceedings or investigations pending or, to the best of such counsel’s knowledge, threatened before any court, administrative agency, or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, or (3) that could reasonably be expected to materially and adversely affect the performance by CNHCA or the Seller, as applicable, of its obligations under, or the validity or enforceability of, this Agreement or the Basic Documents.
(x) Each of the CNHCA Assignment dated as of the Closing Date from CNHCA to the Seller and the assignments of Receivables from CNHCA to the Seller pursuant to the Liquidity Receivables Purchase Agreement have been duly authorized, executed and delivered by CNHCA.
(xi) Assuming that CNHCA’s standard procedures have been followed with respect to the creation of the Receivables, CNHCA obtains from each Dealer either an absolute ownership interest or a security interest in the Receivables originated by that Dealer, which ownership or security interest (whichever it may be) is perfected and prior to any other interests that may be perfected only by possession of a Receivable or the filing of a financing statement in accordance with the UCC. Assuming that CNHCA’s standard procedures with respect to the perfection of a security interest in the equipment financed by CNHCA pursuant to retail agricultural, construction or other equipment installment sale contracts in the ordinary course of CNHCA’s business have been followed with respect to the perfection of security interests in the Financed Equipment, CNHCA has acquired either a perfected security interest in the Financed Equipment or a perfected security interest in the Receivables, which indirectly provides CNHCA with a security interest in the Financed Equipment that is perfected as against the obligor’s creditors; provided, however, that such opinion need not address any equipment that is subject to a certificate of title statute.
(xii) The Indenture constitutes a grant by the Trust to the Indenture Trustee, acting under the Indenture for the benefit of the Holders of the Notes, of a valid security interest in the Receivables, the security interests in the Financed Equipment securing the Receivables and the proceeds of each of the foregoing under the Uniform Commercial Code as in effect on the date hereof in the State of New York (the “NYUCC”). Under the NYUCC, the internal laws of the State of Delaware govern perfection by filing of financing statements of the security interest of the Indenture Trustee in the Trust Estate as against the Trust.
(xiii) The security interest granted under the Indenture will be perfected upon the execution and delivery of the Basic Documents and the filing of a UCC financing statement with the Delaware Secretary of State and will constitute a first priority perfected security interest therein. No filing or other action, other than the execution and delivery of the Basic Documents and the filing of the UCC financing statement with the Delaware Secretary of State referred to
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above, is necessary to perfect and maintain the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Equipment securing the Receivables and the proceeds of each of the foregoing against third parties.
(xiv) The Receivables are tangible chattel paper as defined in the NYUCC.
(xv) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Administration Agreement, the Interest Rate Swap Agreements, the Purchase Agreement, the Liquidity Receivables Purchase Agreement and the Backup Servicing Agreement conform in all material respects with the description thereof contained in the Prospectus and any supplement thereto.
(xvi) The statements in the Preliminary Basic Prospectus and the Basic Prospectus under the headings “Risk Factors—Possible liability for third party claims may cause payment delays or losses”, “Legal Aspects of the Receivables”, and “ERISA Considerations,” and in the Preliminary Prospectus Supplement and the Prospectus Supplement under the headings “Summary of Terms — ERISA Considerations” and “ERISA Considerations,” to the extent they constitute matters of law or legal conclusions with respect thereto, are correct in all material respects.
(xvii) The statements contained in the Preliminary Basic Prospectus, the Basic Prospectus and any supplement thereto under the headings “Description of the Notes”, “Description of the Certificates”, “Administrative Information About the Securities”, “Depositor”, “Servicer” and “Amendments” and in the Preliminary Prospectus Supplement and the Prospectus Supplement under the headings “Description of Notes”, “Description of the Certificates”, “Pre-Funding Period”, “Servicing Matters,” “Fees and Expenses Payable Out of Cash Flows” and “The Interest Rate Swap Agreements”, insofar as such statements constitute a summary of the Notes, the Certificates, the Indenture, the Administration Agreement, the Sale and Servicing Agreement, the Trust Agreement, the Backup Servicing Agreement and the Interest Rate Swap Agreements, fairly present the matters referred to therein.
(xviii) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement, the Interest Rate Swap Agreements or the Basic Documents, except such as are required and have been obtained and made under the Act (or will be made with respect to the Rule 424(b) filing of the Prospectus) and such as may be required under state securities laws (it being understood that this opinion will be given only with respect to such consents, approvals, authorizations, orders and filings that, in such counsel’s experience, are customarily applicable in transactions of the type contemplated by this Agreement, the Interest Rate Swap Agreements and the Basic Documents).
(xix) The Trust Agreement is not required to be qualified under the Trust Indenture Act and the Trust is not required to be registered under the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(xx) The Indenture has been duly qualified under the Trust Indenture Act.
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(xxi) The Seller is not, and will not as a result of the offer and sale of the Notes as contemplated in the Prospectus and this Agreement or as a result of the issuance of the Certificates become, an “investment company” as defined in the Investment Company Act or a company “controlled by” an “investment company” within the meaning of the Investment Company Act.
(xxii) The Registration Statement has become effective under the Act, any required filings of the Preliminary Prospectus Supplement and the Prospectus and any supplements thereto pursuant to Rule 424(b) under the Act have been made or will be made in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)), and, to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act; and the Registration Statement and the Prospectus, and each amendment or supplement thereto, as of the Closing Date (in the case of the Registration Statement) and as of their respective issue dates (in the case of the Prospectus and each supplement thereto), complied as to form in all material respects with the requirements of the Act, the Trust Indenture Act and the Rules and Regulations.
(xxiii) The Indenture, the Sale and Servicing Agreement, the Administration Agreement, the Interest Rate Swap Agreements and the Backup Servicing Agreement have been duly authorized and, when duly executed and delivered by the Trustee, will constitute the legal, valid and binding obligations of the Trust, enforceable against the Trust in accordance with their terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally and to the effect of general principles of equity, including concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law).
The opinions of counsel to CNHCA and the Seller shall also contain opinions with respect to certain matters related to the creation, perfection and priority of the security interests in the Receivables and the related Financed Equipment, which opinions shall be satisfactory in form and substance to you and your counsel.
The negative assurance letter of counsel to CNHCA and the Seller shall state that such counsel has examined various documents and participated in conferences with representatives of CNHCA, the Seller and their accountants and with representatives of the Underwriters and their counsel, at which time the contents of the Registration Statement, the Time of Sale Information and the Prospectus and related matters were discussed. However, except as specifically noted above, such counsel need not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Time of Sale Information and the Prospectus. Subject to the foregoing, such counsel shall advise you that no facts have come to their attention that cause them to believe that (x) the Registration Statement, including the Rule 430B Information (as hereinafter defined), at the latest deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) under the Act, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (y) the Time of Sale Information, as of the Time of Sale and as of the Closing Date, considered as a whole and together with the statements in the Prospectus with respect to items dependent upon the pricing terms and delivery
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date of the Notes, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein not misleading in light of the circumstances under which they were made, or (z) the Prospectus, as of its date or at the Closing Date, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements in the Prospectus not misleading in light of the circumstances under which they were made (in each of clauses (x), (y) and (z), except for (i) the financial statements and related schedules or other financial or statistical data included or incorporated by reference therein and (ii) the information set forth in or omitted from the Preliminary Prospectus Supplement or the Prospectus Supplement under the captions “Summary of Terms—Initial Interest Rate Swap Counterparty” and “The Initial Interest Rate Swap Counterparty,” in each case as to which such counsel will not be called upon to express a belief). As used herein, “Rule 430B Information” means any information included in the Prospectus that was omitted from the Registration Statement at the time it became effective but that is deemed to be part of and included in the Registration statement pursuant to Rule 430B under the Act.
Such counsel shall also opine as to such matters as the Underwriters may reasonably request.
(f) You shall have received an opinion or opinions of counsel to New Holland, addressed to you, as Representatives of the several Underwriters, the Trustee and the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to you and your counsel, to the effect that:
(i) New Holland is an existing limited liability company in good standing under the laws of the State of Delaware with 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 Sale and Servicing Agreement, the Backup Servicing Agreement and the Administration Agreement and has obtained all necessary licenses and approvals in each jurisdiction in which failure to qualify or to obtain such license or approval would render any Receivable unenforceable by the Seller, the Trust or the Indenture Trustee.
(ii) The Sale and Servicing Agreement, the Backup Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by New Holland, and are legal, valid and binding obligations of New Holland enforceable against New Holland in accordance with their terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally and to the effect of general principles of equity, including concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law).
(iii) The execution, delivery and performance of the Sale and Servicing Agreement, the Backup Servicing Agreement and the Administration Agreement by New Holland, and the consummation of the transactions contemplated thereby, will not conflict with, or result in a breach, violation or acceleration of, or constitute a default under, the certificate of formation, limited liability company agreement or by-laws of New Holland or any material agreement or instrument known to such counsel after due inquiry to which New Holland is a
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party or by which New Holland is bound or to which any of the properties of New Holland is subject.
(iv) The execution, delivery and performance of the Sale and Servicing Agreement, the Backup Servicing Agreement and the Administration Agreement by New Holland, and the consummation of the transactions contemplated thereby, will not violate any statute, rule or regulation or, to such counsel’s knowledge, any order of any governmental agency or body or any court having jurisdiction over New Holland or any of its properties.
(v) There are no actions, proceedings or investigations pending or, to the best of such counsel’s knowledge, threatened before any court, administrative agency, or other tribunal (1) asserting the invalidity of the Sale and Servicing Agreement, the Backup Servicing Agreement or the Administration Agreement, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Sale and Servicing Agreement, the Backup Servicing Agreement or the Administration Agreement or the execution and delivery thereof, or (3) that could reasonably be expected to materially and adversely affect the performance by New Holland of its obligations under, or the validity or enforceability of the Sale and Servicing Agreement, the Backup Servicing Agreement or the Administration Agreement.
Such counsel shall also opine as to such other matters as the Underwriters may reasonably request.
(g) RESERVED.
(h) You shall have received an opinion addressed to you, as Representatives of the several Underwriters, of Greenberg Traurig, LLP, in its capacity as Federal tax counsel for the Trust, to the effect that the statements in the Preliminary Basic Prospectus and the Basic Prospectus under the heading “U.S. Federal Income Tax Consequences” and in the Prospectus Supplement under the heading “Summary of Terms — Tax Status” (to the extent relating to Federal income tax consequences) accurately describe the material Federal income tax consequences to holders of the Securities.
(i) You shall have received from Sidley Austin LLP, in its capacity as counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the validity of the Notes and such other related matters as you may reasonably require, and CNHCA and the Seller shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(j) You shall have received an opinion or opinions addressed to you, as Representatives of the several Underwriters, CNHCA and the Seller of counsel to the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to you and your counsel, to the effect that:
(i) The Indenture Trustee is a national banking association duly organized and validly existing and in good standing under the laws of the United States of America, and has full power and authority to execute, deliver and perform its obligations under the Indenture, the Sale and Servicing Agreement, the Administration Agreement and the Backup Servicing Agreement.
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