EXECUTION COPY
CNH EQUIPMENT TRUST 2000-A
CLASS A-1 6.178% ASSET BACKED NOTES
CLASS A-2 6.80% ASSET BACKED NOTES
CLASS A-3 7.14% ASSET BACKED NOTES
CLASS A-4 7.34% ASSET BACKED NOTES
CLASS B 7.32% ASSET BACKED NOTES
CNH RECEIVABLES INC.
UNDERWRITING AGREEMENT
March 9, 2000
Salomon Smith Barney Inc.
As Representative of the
Several Underwriters,
390 Greenwich Street
New York. New York 10013
Ladies and Gentlemen:
1. Introductory. CNH Receivables Inc., a Delaware corporation (the
"Seller"), proposes to cause CNH Equipment Trust 2000-A (the "Trust") to issue
and sell $150,000,000 principal amount of Class A-1 6.178% Asset Backed Notes
(the "A-1 Notes"). $360,000,000 principal amount of Class A-2 6.80% Asset Backed
Notes (the "A-2 Notes"), $260,000,000 principal amount of Class A-3 7.14% Asset
Backed Notes (the "A-3 Notes"), $311,000,000 principal amount of Class A-4 7.34%
Asset Backed Notes (the "A-4 Notes") and $46,000,000 principal amount of Class B
7.32% Asset Backed Notes (the "B Notes"; together with the A- 1 Notes, the A-2
Notes, the A-3 Notes and the A-4 Notes, the "Notes"), to the several
underwriters named in Schedule I hereto (collectively, the "Underwriters"), for
whom you are acting as representative (the "Representative"). The assets of the
Trust include, among other things, a pool of retail installment sale contracts
and full payout leases (the "Receivables") secured by new or used over-the-road
trucks and trailers, agricultural, construction, forestry, or other equipment
and the related security interests in the equipment financed thereby. The
Receivables were sold to the Trust by the Seller. The Receivables are serviced
for the Trust by Case Credit Corporation, a Delaware corporation ("Case
Credit"). The Notes will be issued pursuant to the Indenture to be dated as of
March 1, 2000 (as amended and supplemented from time to time, the "Indenture"),
between the Trust and Harris Trust and Savings Bank (the "Indenture Trustee").
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Simultaneously with the issuance and sale of the Notes as contemplated
in this Agreement, the Trust will issue 7.32% Asset Backed Certificates (the
"Certificates"), in an amount of $23,000,000 to the Seller. The Notes and the
Certificates are sometimes referred to herein as the "Securities."
Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed to them in the Sale and Servicing Agreement to be dated as of
March 1, 2000 (as amended and supplemented from time to time, the "Sale and
Servicing Agreement"), among the Trust, the Seller and Case Credit, as servicer,
or, if not defined therein, in the Indenture or the Trust Agreement to be dated
as of March 1, 2000 (as amended and supplemented from time to time, the "Trust
Agreement"), between the Seller and The Bank of New York, as trustee (the
"Trustee").
2. Representations and Warranties. The Seller, and with respect to
items (c), (e), (f), (g), (h), (i), (j), and (m) as they relate to Case Credit,
Case Credit, represents and warrants to, and agrees with, each Underwriter as of
the date hereof and as of the Closing Date that:
(a) The Seller meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") two registration
statements (Registration Nos. 333-52493 and 333-82741) on such Form, including a
preliminary basic prospectus and a preliminary prospectus supplement for
registration under the Act of the offering and sale of the Securities. The
Seller may have filed one or more amendments thereto as may have been required
to the date hereof, each of which amendments has been previously furnished to
you. The Seller will next file with the Commission one of the following: (i)
prior to the effectiveness of such registration statements, an amendment thereto
(including the form of final basic prospectus and the form of final prospectus
supplement relating to the Securities), (ii) after effectiveness of such
registration statements, a final basic prospectus and a final prospectus
supplement relating to the Securities in accordance with Rules 430A and
424(b)(1) or (4) under the Act, or (iii) after the effectiveness of such
registration statements, a final basic prospectus and a final prospectus
supplement relating to the Securities in accordance with Rules 415 and 424(b)(2)
or (5). In the case of clauses (ii) and (iii), the Seller has included in such
registration statements, as amended at the Effective Date, all information
(other than Rule 430A Information) required by the Act and the Rules thereunder
to be included in the Prospectus with respect to the Securities and the offering
thereof. As filed, such amendment and form of final prospectus supplement, or
such final prospectus supplement, shall include all Rule 430A Information,
together with all other such required information with respect to the Securities
and the offering thereof and, except to the extent that the Underwriters shall
agree in writing to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the latest preliminary
basic prospectus and preliminary prospectus supplement that have previously been
furnished to you) as the Seller has advised you, prior to the Execution Time,
will be
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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 a registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment thereto, if
any, was declared effective by the Commission, and "Effective Date" means the
date of the Effective Time. "Execution Time" shall mean the date and time that
this Agreement is executed and delivered by the parties hereto. Such
registration statements, as amended at the Effective Time, including all
information deemed to be a part of such registration statements as of the
Effective Time pursuant to Rule 430A(b) under the Act, and including the
exhibits thereto and any material incorporated by reference therein, are
hereinafter referred to as the "Registration Statement." "Basic Prospectus"
shall mean the prospectus referred to above contained in the Registration
Statement at the Effective Date including any Preliminary Prospectus Supplement,
as most recently revised or amended and filed with the Commission pursuant to
Rule 424(b) or Rule 429. "Preliminary Prospectus Supplement" shall mean any
preliminary prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Prospectus."Prospectus" shall mean the prospectus supplement relating to the
Securities that is first filed pursuant to Rule 424(b) after the Execution Time,
together with the Basic Prospectus or. if no filing pursuant to Rule 424(b) is
required, shall mean the prospectus supplement relating to the Securities,
including the Basic Prospectus, included in the Registration Statement at the
Effective Date. "Rule 430A Information" means information with respect to the
Securities and the offering of the Securities permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A. "Rule
415", "Rule 424", "Rule 430A" and "Regulation S-K" refer to such rules or
regulations under the Act. Any reference herein to the Registration Statement,
the Basic Prospectus, a Preliminary Prospectus Supplement or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under 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
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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 pursuant to Rule 424(b), did not or will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus
(together with any supplement thereto) will not include any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Seller makes no representation
or warranty as to the information contained in or omitted from the Registration
Statement, the Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Seller by any
Underwriter through you specifically for use in connection with preparation of
the Registration Statement, the Prospectus (or any supplement thereto), it being
agreed that the only such information consists of the statements in the second
and sixth paragraphs (concerning initial offering prices, concessions and
reallowances) and in the fourth and eighth paragraphs (concerning overallotment,
stabilizing transactions, syndicate covering transactions and penalty bids)
under the heading "Underwriting" in the Prospectus Supplement. As of the Closing
Date, the Seller's representations and warranties in the Sale and Servicing
Agreement and the Trust Agreement will be true and correct in all material
respects.
(c) Each of Case Credit and the Seller has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the State of Delaware with corporate power and authority to own its
properties and conduct its business as described in the Registration Statement
and to enter into and perform its obligations under this Agreement, the Sale and
Servicing Agreement, the Administration Agreement and the Purchase Agreement and
has obtained all necessary licenses and approvals in each jurisdiction in which
failure to qualify or to obtain such license or approval would render any
Receivable unenforceable by the Seller, the Trustee or the Indenture Trustee.
(d) On the Closing Date, upon delivery thereof, the Liquidity
Receivables Purchase Agreement, the Purchase Agreement, the Trust Agreement and
the Sale and Servicing Agreement will have been duly authorized, executed and
delivered by the Seller, and will be legal, valid and binding obligations of the
Seller enforceable against the Seller in accordance with their terms, subject to
the effect of any applicable bankruptcy, insolvency, reorganization, moratorium
or similar law affecting creditors' rights generally and to the effect of
general principles of equity, including concepts of materiality, reasonableness,
good faith and fair dealing (regardless of whether considered in a proceeding in
equity or at law).
(e) On the Closing Date, upon delivery thereof, the Liquidity
Receivables Purchase Agreement, the Purchase Agreement, the Sale and Servicing
Agreement and the Administration Agreement will have been duly authorized,
executed and delivered by Case
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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).
(f) This Agreement has been duly authorized, executed and
delivered by each of the Seller and Case Credit.
(g) The execution, delivery and performance of this Agreement,
the Liquidity Receivables Purchase Agreement, the Purchase Agreement, the Trust
Agreement, the Administration Agreement, the Sale and Servicing Agreement and
the other documents and certificates delivered in connection therewith (such
agreements, documents and certificates, excluding this Agreement, being,
collectively, the "Basic Documents"), as applicable, by Case Credit and the
Seller, and the consummation of the transactions contemplated thereby, will not
conflict with, or result in a breach, violation or acceleration of, or
constitute a default under, the certificate of incorporation or by-laws of Case
Credit or the Seller or any material agreement or instrument to which Case
Credit or the Seller is a party or by which Case Credit or the Seller is bound
or to which any of the properties of Case Credit or the Seller is subject.
(h) The execution, delivery and performance of this Agreement
and the Basic Documents, as applicable, by Case Credit and the Seller, and the
consummation of the transactions contemplated thereby, will not violate any
statute, rule or regulation or any order of any governmental agency or body or
any court having jurisdiction over Case Credit or the Seller or any of their
properties.
(i) There are no actions, proceedings or investigations
pending or threatened before any court, administrative agency, or other tribunal
(1 ) asserting the invalidity of the Trust or any of the Basic Documents, (2)
seeking to prevent the consummation of any of the transactions contemplated by
any of the Basic Documents or the execution and delivery thereof, or (3) that
could reasonably be expected to materially and adversely affect the performance
by Case Credit or the Seller, as applicable, of its obligations under, or the
validity or enforceability of, this Agreement or the Basic Documents.
(j) On the Closing Date, upon delivery thereof, each of the
First-Tier Case Assignment dated as of the Closing Date from Case Credit to the
Seller and the assignments of Receivables from Case Credit to the Seller
pursuant to the Liquidity Receivables Purchase Agreement has been duly
authorized, executed and delivered by Case Credit.
(k) When the Notes have been duly executed and delivered by
the Trustee, authenticated by the Indenture Trustee in accordance with the
Indenture and delivered and paid for pursuant to this Agreement, the Notes will
be duly issued and entitled to the benefits and
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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).
(l) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement or the Basic
Documents, except such as are required and have been or will be obtained and
made on or prior to the Closing Date under the Securities Act and such as may be
required under state securities laws.
(m) Since December 31, 1999, there has not been any material
adverse change in the business, results of operations, condition (financial or
otherwise), prospects, or material properties or assets of the Seller, Case
Credit or Case Corporation.
(n) The computer tape of the Receivables created as of
February 29, 2000, and made available to the Representative by the Servicer, was
complete and accurate in all material respects as of the date thereof and
includes a description of the Receivables that are described in the Second-Tier
Case Assignment.
3. Purchase, Sale, and Delivery of the Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Seller agrees to cause the Trust to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Trust, the respective Classes of Notes in the
respective principal amounts and at the respective purchase prices set forth
opposite the name of such Underwriter in Schedule I hereto. Delivery of and
payment for the Notes shall be made at the office of Mayer, Brown & Platt, 190
South LaSalle Street, Chicago, Illinois 60603 (or such other place as the Seller
and the Representative shall agree), on March 16, 2000 (the "Closing Date").
Delivery of the Notes shall be made against payment of the purchase price in
immediately available funds drawn to the order of the Seller. The Notes to be so
delivered will be initially represented by one or more Notes registered in the
name of Cede & Co., the nominee of The Depository Trust Company ("DTC"). The
interests of beneficial owners of the Notes will be represented by book entries
on the records of DTC and participating members thereof. Definitive Notes will
be available only under limited circumstances.
4. Offering by Underwriters. It is understood that the Underwriters
propose to offer the Notes for sale to the public (which may include selected
dealers), as set forth in the Prospectus.
5. Covenants of the Seller. The Seller covenants and agrees with each
of the Underwriters that:
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(a) The Seller will use its best efforts to cause the
Registration Statement, and any amendment thereto, if not effective at the
Execution Time, to become effective. Prior to the termination of the offering of
the Notes, the Seller will not file any amendment of the Registration Statement
or supplement to the Prospectus unless the Seller has furnished you a copy for
your review prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing sentence, if
the Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Prospectus is otherwise required under Rule 424(b), the
Seller will file the Prospectus, properly completed, and any supplement thereto,
with the Commission pursuant to and in accordance with the applicable paragraph
of Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to you of such timely filing.
(b) The Seller will advise you promptly of any proposal to
amend or supplement the Registration Statement as filed, or the related
Prospectus and will not effect such amendment or supplement without your
consent, which consent will not unreasonably be withheld; the Seller will also
advise you promptly of any request by the Commission for any amendment of or
supplement to the Registration Statement or the Prospectus or for any additional
information; and the Seller will also advise you promptly of the effectiveness
of the Registration Statement and any amendment thereto, when the Prospectus,
and any supplement thereto, shall have been filed with the Commission pursuant
to Rule 424(b) and of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threat of any proceeding for that purpose, and the Seller will use its best
efforts to prevent the issuance of any such stop order and to obtain as soon as
possible the lifting of any issued stop order.
(c) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the
Registration Statement or supplement the Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, the Seller promptly will
notify you and will prepare and file, or cause to be prepared and filed, with
the Commission, subject to the second sentence of paragraph (a) of this Section
5, an amendment or supplement that will correct such statement or omission, or
effect such compliance. Any such filing shall not operate as a waiver or
limitation on any right of any Underwriter hereunder.
(d) As soon as practicable, but not later than fourteen months
after the original effective date of the Registration Statement, the Seller will
cause the Trust to make generally available to Noteholders an earnings statement
of the Trust covering a period of at least twelve months beginning after the
Effective Date of the Registration Statement that will satisfy the provisions of
Section 11(a) of the Act.
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(e) The Seller will furnish to the Underwriters copies of the
Registration Statement (one of which will be signed and will include all
exhibits), each related preliminary prospectus (including the Preliminary
Prospectus Supplement), the Prospectus and all amendments and supplements to
such documents, in each case as soon as available and in such quantities as the
Underwriters request.
(f) The Seller will arrange for the qualification of the Notes
for sale under the laws of such jurisdictions in the United States as you may
reasonably designate and will continue such qualifications in effect so long as
required for the distribution.
(g) For a period from the date of this Agreement until the
retirement of the Notes, or until such time as the Underwriters shall cease to
maintain a secondary market in the Notes, whichever occurs first, the Seller
will deliver to you the annual statements of compliance and the annual
independent certified public accountants' reports furnished to the Trustee or
the Indenture Trustee pursuant to the Sale and Servicing Agreement, as soon as
such statements and reports are furnished to the Trustee or the Indenture
Trustee.
(h) So long as any of the Notes is outstanding, the Seller
will furnish to you (i) as soon as practicable after the end of the fiscal year
all documents required to be distributed to Noteholders or filed with the
Commission pursuant to the Exchange Act or any order of the Commission
thereunder and (ii) from time to time, any other information concerning the
Seller filed with any government or regulatory authority which is otherwise
publicly available, as you may reasonably request.
(i) On or before the Closing Date, the Seller shall cause the
computer records of the Seller and Case Credit relating to the Receivables to be
marked to show the Trust's absolute ownership of the Receivables, and from and
after the Closing Date neither the Seller nor Case Credit shall take any action
inconsistent with the Trust's ownership of such Receivables, other than as
permitted by the Sale and Servicing Agreement.
(j) To the extent, if any, that the rating provided with
respect to the Notes by the rating agency or agencies that initially rate the
Notes is conditional upon the furnishing of documents or the taking of any other
actions by the Seller, the Seller shall furnish such documents and take any such
other actions.
(k) For the period beginning on the date of this Agreement and
ending seven days after the Closing Date, unless waived by the Underwriters,
none of the Seller, Case Credit or any trust originated, directly or indirectly,
by the Seller or Case Credit will offer to sell or sell notes (other than the
Notes and commercial paper notes offered pursuant to Case Credit's existing
asset-backed commercial paper program) collateralized by, or certificates (other
than the Certificates) evidencing an ownership interest in, receivables
generated pursuant to retail agricultural or construction equipment installment
sale contracts.
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(l) On or prior to each Subsequent Transfer Date, to deliver
to the Representative (i) a duly executed Second-Tier Case Subsequent Transfer
Assignment including a schedule of the Subsequent Receivables to be transferred
to the Trust on such Subsequent Transfer Date, (ii) a copy of the Opinions of
Counsel with respect to the transfer of the Subsequent Receivables to be
transferred to the Trust on such Subsequent Transfer Date to be delivered to (A)
the Rating Agencies and (B) the Trustee and the Indenture Trustee pursuant to
Section 2.2(b)(xiv) of the Sale and Servicing Agreement, (iii) a copy of the
letter from a firm of independent nationally recognized certified public
accountants to be delivered to the Trustee and the Indenture Trustee pursuant to
Section 2.2(b)(xv) of the Sale and Servicing Agreement, and (iv) a copy of the
officer's Certificate delivered to the Indenture Trustee and the Trustee
pursuant to Section 2.2(b)(xvi) of the Sale and Servicing Agreement.
(m) The Seller will enter into, and will cause the Issuer to
enter into, each Basic Document to which this Agreement and each Basic Document
contemplates the Seller and/or the Issuer will be a party on or prior to the
Closing Date.
6. Payment of Expenses. The Seller will pay all expenses incident to
the performance of its obligations under this Agreement, including (i) the
printing and filing of the Registration Statement as originally filed and of
each amendment thereto, (ii) the fees of the Indenture Trustee and its counsel,
(iii) the preparation, issuance and delivery of the Notes to the Underwriters,
(iv) the fees and disbursements of Case Credit's and the Seller's counsel and
accountants, (v) the qualification of the Notes under securities laws in
accordance with the provisions of Section 5(f), including filing fees and the
fees and disbursements of counsel for you in connection therewith and in
connection with the preparation of any blue sky or legal investment survey, (vi)
the printing, and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, (vii) the printing
and delivery to the Underwriters of copies of any blue sky or legal investment
survey prepared in connection with the Notes, (viii) any fees charged by rating
agencies for the rating of the Notes and (ix) the fees and expenses, if any,
incurred with respect to any filing, with the National Association of Securities
Dealers, Inc.
7. Conditions of the Obligations of the Underwriters. The obligations
of the Underwriters to purchase and pay for the Notes will be subject to the
accuracy of the representations and warranties on the part of Case Credit and
the Seller herein, to the accuracy of the statements of officers of Case Credit
and the Seller made pursuant to the provisions hereof, to the performance by
Case Credit and the Seller of their respective obligations hereunder and to the
following additional conditions precedent:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Underwriters agree in writing to a later
time, the Registration Statement shall have become effective not later than (i)
6:00 p.m. New York City time on the date of determination of the public offering
price, if such determination occurred at or prior to
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3:00 p.m. New York City time on such date or (ii) 12:00 noon on the business day
following the day on which the public offering price was determined, if such
determination occurred after 3:00 p.m. New York City time on such date.
(b) The Prospectus and any supplements thereto shall have been
filed (if required) with the Commission in accordance with the Rules and
Regulations and Section 5(a) hereof, and prior to the Closing Date, no stop
order suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or, to the
knowledge of the Seller or you, shall be contemplated by the Commission or by
any authority administering any state securities or blue sky law.
(c) On or prior to the Closing Date, you shall have received a
letter or letters, dated as of the date of the Closing Date, of Arthur Andersen
& Co., independent public accountants, substantially in the Form of the drafts
to which you have previously agreed and otherwise in form and substance
satisfactory to you and your counsel.
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly the business or
properties of the Trust, the Seller, Case Credit, Case Corporation or CNH Global
N.V. which, in the judgment of the Underwriters, materially impairs the
investment quality of the Notes or makes it impractical or inadvisable to market
the Notes; (ii) any suspension or limitation of trading in securities generally
on the New York Stock Exchange, or any setting of minimum prices for trading on
such exchange; (iii) any suspension of trading of any securities of Case
Corporation or CNH Global N.V. on any exchange or in the over-the-counter market
which, in the judgment of the Underwriters, makes it impractical or inadvisable
to market the Notes; (iv) any banking moratorium declared by Federal or New York
authorities; or (v) any outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by Congress, or any other
substantial national or international calamity or emergency if, in the judgment
of the Underwriters, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Notes.
(e) You shall have received an opinion or opinions of counsel
to Case Credit and the Seller, addressed to you, as Representative of the
several Underwriters, the Trustee and the Indenture Trustee, dated the Closing
Date and satisfactory in form and substance to you and your counsel, to the
effect that:
(i) Each of Case Credit and the Seller is an existing
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus and to enter into and perform its
obligations under this Agreement, the Sale and Servicing Agreement, the
Administration Agreement and the Purchase Agreement and has obtained all
necessary licenses and
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approvals in each jurisdiction in which failure to qualify or to obtain
such license or approval would render any Receivable unenforceable by the
Seller, the Trustee or the Indenture Trustee.
(ii) The direction by the Seller to the Trustee to
authenticate the Certificates has been duly authorized by the Seller and,
when the Certificates have been duly executed, authenticated and delivered
by the Trustee in accordance with the Trust Agreement, the Certificates
will be legally issued, fully paid and non-assessable subject to the
obligations of the Seller under Section 2.10 of the Trust Agreement and
entitled to the benefits of the Trust Agreement.
(iii) The direction by Case Credit to the Indenture
Trustee to authenticate the Notes has been duly authorized by Case Credit,
and, when the Notes have been duly executed and delivered by the Trustee,
authenticated by the Indenture Trustee in accordance with the Indenture and
delivered and paid for pursuant to this Agreement, the Notes will be duly
issued and entitled to the benefits and security afforded by the Indenture,
subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights
generally and to the effect of general principles of equity, including
concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at law).
(iv) The Liquidity Receivables Purchase Agreement, the
Purchase Agreement, the Trust Agreement and the Sale and Servicing
Agreement have been duly authorized, executed and delivered by the Seller,
and are legal, valid and binding obligations of the Seller enforceable
against the Seller in accordance with their terms, subject to the effect of
any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally and to the effect of
general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
considered in a proceeding in equity or at law).
(v) This Agreement has been duly authorized, executed
and delivered by each of the Seller and Case Credit.
(vi) The Liquidity Receivables Purchase Agreement, the
Purchase Agreement. the Sale and Servicing Agreement and the Administration
Agreement have been duly authorized, executed and delivered by Case Credit
and are legal, valid and binding obligations of Case Credit enforceable
against Case Credit in accordance with their terms, subject to the effect
of any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally and to the effect of
general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
considered in a proceeding in equity or at law).
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(vii) The execution, delivery and performance of this
Agreement and the Basic Documents, as applicable, by Case Credit and the
Seller, and the consummation of the transactions contemplated thereby, will
not conflict with, or result in a breach, violation or acceleration of, or
constitute a default under, the certificate of incorporation or by-laws of
Case Credit or the Seller or any material agreement or instrument known to
such counsel to which Case Credit or the Seller is a party or by which Case
Credit or the Seller is bound or to which any of the properties of Case
Credit or the Seller is subject.
(viii) The execution, delivery and performance of this
Agreement and the Basic Documents. as applicable, by Case Credit and the
Seller, and the consummation of the transactions contemplated thereby, will
not violate any statute, rule or regulation or, to such counsel's
knowledge, any order of any governmental agency or body or any court having
jurisdiction over Case Credit or the Seller or any of their properties.
(ix) There are no actions, proceedings or
investigations pending or, to the best of such counsel's knowledge,
threatened before any court, administrative agency, or other tribunal (1)
asserting the invalidity of the Trust or any of the Basic Documents, (2)
seeking to prevent the consummation of any of the transactions contemplated
by any of the Basic Documents or the execution and delivery thereof, or (3)
that could reasonably be expected to materially and adversely affect the
performance by Case Credit or the Seller, as applicable, of its obligations
under, or the validity or enforceability of, this Agreement or the Basic
Documents.
(x) Each of the Assignment dated as of the Closing Date
from Case Credit to the Seller and the assignments of Receivables from Case
Credit to the Seller pursuant to the Liquidity Receivables Purchase
Agreement have been duly authorized, executed and delivered by Case Credit.
(xi) Immediately prior to the transfer of the
Receivables to the Trust, the Seller's interest in the Receivables, the
security interests in the Financed Equipment securing the Receivables and
the proceeds of each of the foregoing was perfected upon the execution and
delivery of the Basic Documents and the filing of a UCC financing statement
with the Secretary of State of the State of Illinois and constituted a
perfected first priority interest therein. If a court concludes that the
transfer of the Receivables from the Seller to the Trust is a sale, the
interest of the Trust in the Receivables, the security interests in the
Financed Equipment securing the Receivables and the proceeds of each of the
foregoing will be perfected upon the execution and delivery of the Basic
Documents and the filing of a UCC financing statement with the Secretary of
State of the State of Illinois and will constitute a first priority
perfected interest therein. If a court concludes that such transfer is not
a sale, the Sale and Servicing Agreement constitutes a grant by the Seller
to the Trust of a valid security interest in the Receivables, the security
interests in the Financed Equipment securing the Receivables and the
proceeds of each of the foregoing, which security interest will be
perfected upon the execution and delivery of the Basic Documents and the
filing of the UCC financing
12
statement with the Secretary of State of the State of Illinois referred to
above and will constitute a first priority perfected security interest
therein. No filing or other action, other than the execution and delivery
of the Basic Documents and the filing of the UCC financing statement with
the Secretary of State of the State of Illinois referred to above, is
necessary to perfect and maintain the interest or the security interest of
the Trust in the Receivables, the security interests in the Financed
Equipment securing the Receivables and the proceeds of each of the
foregoing against third parties.
(xii) Assuming that Case Credit's standard procedures
have been followed with respect to the creation of the Receivables, Case
Credit obtains from each Dealer either an absolute ownership interest or a
security interest in the Receivables originated by that Dealer, which
ownership or security interest (whichever it may be) is perfected and prior
to any other interests that may be perfected only by possession of a
Receivable or the filing of a financing statement in accordance with the
UCC. Assuming that Case Credit's standard procedures with respect to the
perfection of a security interest in the equipment financed by Case Credit
pursuant to retail over-the-road truck or trailer, agricultural,
construction, forestry, or other equipment installment sale contracts in
the ordinary course of Case Credit's business have been followed with
respect to the perfection of security interests in the Financed Equipment,
Case Credit has acquired either a perfected security interest in the
Financed Equipment or a perfected security interest in the Receivables,
which indirectly provides Case Credit with a security interest in the
Financed Equipment that is perfected as against the obligor's creditors;
provided, however, that such opinion need not address any equipment that is
subject to a certificate of title statute.
(xiii) The Indenture constitutes a grant by the Trust
to the Indenture Trustee of a valid security interest in the Receivables,
the security interests in the Financed Equipment securing the Receivables
and the proceeds of each of the foregoing.
(xiv) The security interest granted under the Indenture
will be perfected upon the execution and delivery of the Basic Documents
and the filing of a UCC financing statement with the Delaware Secretary of
State and will constitute a first priority perfected security interest
therein. No filing or other action, other than the execution and delivery
of the Basic Documents and the filing of the UCC financing statement with
the Delaware Secretary of State referred to above, is necessary to perfect
and maintain the security interest of the Indenture Trustee in the
Receivables, the security interests in the Financed Equipment securing the
Receivables and the proceeds of each of the foregoing against third
parties.
(xv) The Receivables are chattel paper as defined in
the UCC.
(xvi) The Sale and Servicing Agreement, the Trust
Agreement, the Indenture, the Administration Agreement and the Purchase
Agreement conform in all material respects with the description thereof
contained in the Prospectus and any supplement thereto.
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(xvii) The statements in the Basic Prospectus under the
headings "Risk Factors - Possible liability for third party claims may
cause payment delays or losses" and "Legal Aspects of the Receivables", to
the extent they constitute matters of law or legal conclusions with respect
thereto, are correct in all material respects.
(xviii) The statements contained in the Prospectus and
any supplement thereto under the headings "Description of the Notes",
"Description of the Certificates". "Administration Information About the
Securities" and "Description of the Transaction Agreements", insofar as
such statements constitute a summary of the Notes, the Certificates, the
Indenture, the Administration Agreement, the Sale and Servicing Agreement
and the Trust Agreement, fairly present the matters referred to therein.
(xix) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by this Agreement or
the Basic Documents, except such as are required and have been obtained and
made under the Securities Act and such as may be required under state
securities laws (it being understood that this opinion will be given only
with respect to such consents, approvals, authorizations, orders and
filings that, in such counsel's experience, are customarily applicable in
transactions of the type contemplated by this Agreement and the Basic
Documents).
(xx) The Trust Agreement is not required to be
qualified under the Trust Indenture Act and the Trust is not required to be
registered under the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(xxi) The Indenture has been duly qualified under the
Trust Indenture Act.
(xxii) The Seller is not, and will not as a result of
the offer and sale of the Notes as contemplated in the Prospectus and this
Agreement or as a result of the issuance of the Certificates become, an
"investment company" as defined in the Investment Company Act or a company
"controlled by" an "investment company" within the meaning of the
Investment Company Act.
(xxiii) The Registration Statement has become effective
under the Act, any required filing of the Basic Prospectus, any preliminary
Basic Prospectus, any Preliminary Prospectus Supplement and the Prospectus
and any supplements thereto pursuant to Rule 424(b) have been made in the
manner and within the time period required by Rule 424(b), and, to the best
knowledge of such counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the Act;
and the Registration Statement and the Prospectus, and each amendment or
supplement thereto, as of the Closing Date (in the case of the Registration
Statement) and as of their respective issue dates (in the case of the
14
Prospectus and each supplement thereto), complied as to form in all
material material respects with the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations.
(xxiv) The Trust has been duly formed and is validly
existing as a statutory business trust under the laws of the State of
Delaware, with full power and authority to execute, deliver and perform its
obligations under the Sale and Servicing Agreement, the Indenture, the
Administration Agreement, the Notes and the Certificates.
(xxv) The Indenture, the Sale and Servicing Agreement
and the Administration Agreement have been duly authorized and, when duly
executed and delivered by the Trustee, will constitute the legal, valid and
binding obligations of the Trust, enforceable against the Trust in
accordance with their terms, subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally and to the effect of general principles of
equity, including concepts of materiality, reasonableness, good faith and
fair dealing (regardless of whether considered in a proceeding in equity or
at law). The opinions of counsel to Case Credit and the Seller shall also
state that such counsel has examined various documents and participated in
conferences with representatives of Case Credit, the Seller, their counsel
and their accountants and with representatives of the Underwriters, at
which time the contents of the Registration Statement and the Prospectus
and related matters were discussed. However, except as specifically noted
above, such counsel need not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus. Subject to the foregoing, such counsel shall
advise you that no facts have come to their attention that cause them to
believe that the Registration Statement or the Prospectus, at the Closing
Date, contains any untrue statement of a material fact or omits to state
any material fact necessary in order to make (x) the statements in the
Registration Statement not misleading and (y) the statements in the
Prospectus not misleading in the light of the circumstances under which
they were made (in each case except for the financial statements and
related schedules or other financial or statistical data included or
incorporated by reference therein, as to which such counsel will not be
called upon to express a belief).
Such counsel shall also opine as to such other matters as the
Underwriters may reasonably request.
(f) You shall have received an opinion of Mayer, Brown &
Platt, special Illinois tax counsel for the Trust, addressed to you, as
Representative of the several Underwriters, and the Indenture Trustee, dated the
Closing Date and satisfactory in form and substance to you and your counsel, to
the effect that the statements in the Basic Prospectus under the headings
"Illinois State Tax Consequences" and in the Prospectus Supplement under the
heading "Summary of Terms-- Tax Status" (to the extent relating to Illinois tax
consequences), accurately describe the material Illinois tax consequences to
holders of the Securities. Mayer,
15
Brown & Platt, in its capacity as special Illinois counsel to Case Credit and
the Seller, shall have delivered an opinion with respect to the perfection and
priority of the respective interests of the Seller and the Trust in the
Receivables under Illinois Law.
(g) You shall have received an opinion of Ballard Spahr
Andrews & Ingersoll, LLP, special Pennsylvania tax counsel for the Trust,
addressed to you, as Representative of the several Underwriters, and the
Indenture Trustee, dated the Closing Date and satisfactory in form and substance
to you and your counsel.
(h) You shall have received an opinion addressed to you, as
Representative of the several Underwriters, of "Mayer, Brown & Platt, in its
capacity as Federal tax and ERISA counsel for the Trust, to the effect that the
statements in the Basic Prospectus under the heading "U.S. Federal Income Tax
Consequences" and in the Prospectus Supplement under the heading "Summary of
Terms -- Tax Status" (to the extent relating to Federal income tax consequences)
accurately describe the material Federal income tax consequences to holders of
the Securities, and the statements in the Basic Prospectus under the heading
"ERISA Considerations," and in the Prospectus Supplement under the headings
"Summary of Terms -- ERISA Considerations" and "ERISA Considerations," to the
extent that they constitute statements of matters of law or legal conclusions
with respect thereto, have been prepared or reviewed by such counsel and
accurately describe the material consequences to holders of the Notes under
ERISA.
(i) You shall have received from Brown & Wood LLP, in its
capacity as counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the validity of the Notes and such other related
matters as you may reasonably require, and Case Credit and the Seller shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(j) You shall have received an opinion or opinions addressed
to you, as Representative of the several Underwriters, Case Credit and the
Seller of counsel to the Indenture Trustee, dated the Closing Date and
satisfactory in form and substance to you and your counsel, to the effect that:
(i) The Indenture Trustee is a banking corporation duly
incorporated and validly existing and in good standing under the laws of
the State of Illinois, and has full power and authority to execute, deliver
and perform its obligations under the Indenture, the Sale and Servicing
Agreement and the Administration Agreement.
(ii) Each of the Indenture, the Sale and Servicing
Agreement and the Administration Agreement has been duly authorized,
executed and delivered by the Indenture Trustee.
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(iii) Each of the Indenture, the Sale and Servicing
Agreement and the Administration Agreement constitutes a legal, valid and
binding obligation of the Indenture Trustee, enforceable against the
Indenture Trustee in accordance with its respective terms, except that
certain of such obligations may be enforceable solely against the Trust
Estate and except that such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws
affecting the enforcement of creditors' rights generally, and by general
principles of equity, including without limitation, concepts of
materiality, reasonableness, good faith and fair dealing (regardless of
whether such enforceability is considered in a proceeding in equity or at
law).
(iv) No authorizations, consents or approvals of,
notice to or filing with, or the taking of any other action in respect of,
any governmental authority or agency of the United States or the State of
Illinois governing the banking or trust powers of the Indenture Trustee is
required for the execution, delivery or performance by the Indenture
Trustee of each of the Indenture, the Sale and Servicing Agreement and the
Administration Agreement.
(v) The Notes have been duly authenticated by the
Indenture Trustee in accordance with the terms of the Indenture.
(vi) Neither the execution, delivery or performance by
the Indenture Trustee of the Indenture, the Sale and Servicing Agreement
and the Administration Agreement nor the compliance with the terms and
provisions thereof, nor the performance of its obligations thereunder,
conflicts or results in a breach of or constitutes a default under any of
the terms, conditions or provisions of any law, government rule or
regulation of the United States of the State of Illinois governing the
banking or trust powers of the Indenture Trustee or the Charter or By-Laws
of the Indenture Trustee or, to such counsel's knowledge, any order, writ,
injunction or decree of any court or governmental authority against the
Indenture Trustee or by which it or any of its properties is bound or, to
such counsel's knowledge, any indenture, mortgage or contract or other
agreement or instrument to which the Indenture Trustee is a party or by
which it or any of its properties is bound, or results in the creation or
imposition of any lien, charge or encumbrance upon any of its properties
pursuant to any agreement or instrument, except encumbrances and security
interests contemplated by the Indenture, the Sale and Servicing Agreement
and the Administration Agreement.
(vii) There are no actions, suits or proceedings
pending or, to the best of such counsel's knowledge, threatened against the
Indenture Trustee before any court, or by or before any federal, state,
municipal or other governmental department, commission, board, bureau or
governmental agency or instrumentality, or arbitrator which would, if
adversely determined, affect in any material respect the consummation,
validity or enforceability against the Indenture Trustee of any of the
Indenture, the Sale and Servicing Agreement and the Administration
Agreement.
17
(k) You shall have received an opinion addressed to you, as
Representative of the several Underwriters, Case Credit and the Seller of
counsel to the Trustee, dated the Closing Date and satisfactory in form and
substance to you and your counsel, to the effect that:
(i) The Trustee is duly incorporated, validly existing
in good standing as a banking corporation under the laws of the State of
New York.
(ii) The Trustee has power and authority to execute,
deliver and perform the Trust Agreement and to consummate the transactions
contemplated thereby.
(iii) The Trust Agreement has been duly authorized,
executed and delivered by the Trustee and constitutes a legal, valid and
binding obligation of the Trustee, enforceable against the Trustee, in
accordance with its terms. (iv) Neither the execution or delivery by the
Trustee of the Trust Agreement nor the consummation by the Trustee of any
of the transactions contemplated thereby nor compliance by the Trustee with
the terms or provisions of the Trust Agreement will violate any New York or
United States federal law, rule or regulation governing the banking or
trust powers of the Trustee or the Trustee's certificate of incorporation
or by-laws or require the consent or approval of, the giving of notice to,
the registration with, or the taking of any other action with respect to,
any governmental authority or agency under the laws of the State of New
York or the United States governing the banking trust powers of the
Trustee.
(v) There are no actions, suits or proceedings pending
or, to the best of such counsel's knowledge without independent
investigation, threatened against the Trustee before any court, or by or
before any federal, state, municipal or other governmental department,
commission, board, bureau or governmental agency or instrumentality, or
arbitrator which would, if adversely determined, affect in any material
respect the consummation, validity or enforceability against the Trustee of
the Trust Agreement.
You shall also have received an opinion addressed to you, as
Representative of the several Underwriters, Case Credit and the Seller of
counsel to 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.
(l) You shall have received an opinion addressed to you, as
Representative of the several Underwriters, Case Credit and the Seller of,
Richards, Layton & Finger, special Delaware counsel to the Trust, dated the
Closing Date, subject to customary qualifications, exceptions and assumptions,
and satisfactory in form and substance to you and your counsel, substantially to
the effect that:
18
(i) The Trust has been duly formed and is validly
existing in good standing as a business trust under the laws of the State
of Delaware.
(ii) The Trust has the power and authority, pursuant to
the Trust Agreement and the laws of the State of Delaware, to execute,
deliver and perform its obligations under the Basic Documents to which it
is a party, and has duly authorized the Trustee to execute and deliver such
Basic Documents.
(iii) The Certificates have been validly issued and are
entitled to the benefits of the Trust Agreement.
(iv) The Trust Agreement is a legal, valid and binding
obligation of the Depositor and the Trustee, enforceable against the
Depositor and the Trustee, in accordance with its terms.
(v) To the extent that Article 9 of the Uniform
Commercial Code as in effect in the State of Delaware, (the "DELUCC"), is
applicable (without regard to conflicts of laws principles), and assuming
that the security interest created by the Indenture in the Collateral (as
defined in the Indenture) has been duly created and has attached, upon the
filing of the Financing Statement with the Secretary of State, the
Indenture Trustee will have a perfected security interest in that portion
of the Collateral that consists of general intangibles, accounts or chattel
paper (as such terms are defined in the DELUCC) and the proceeds thereof
and such security interest will be prior to any other security interest
granted by the Trust that is perfected solely by the filing of financing
statements under the DELUCC, excluding purchase money security interests
under ss. 9-312 of the DELUCC and temporarily perfected security interests
in proceeds under ss. 9-306 of the DELUCC. No refiling or other action is
necessary under the DELUCC in order to maintain the perfection of such
security interest except for the filing of continuation statements at five
year intervals. To the extent the DELUCC applies, the Receivables (in the
form attached as an exhibit to such opinion) are "chattel paper" as defined
in Section 9-105(l)(b) of the DELUCC.
(vi) Under the Delaware Business Trust Act, no creditor
of any Certificateholder shall have any right to obtain possession of, or
otherwise exercise legal or equitable remedies with respect to, the
property of the Trust except in accordance with the terms of the Trust
Agreement.
(m) You, as Representative of the several Underwriters, shall
have received copies of any opinions of counsel to Case Credit and the Seller
supplied to the Rating Agencies. Any such opinions shall be dated the Closing
Date and addressed to you, as Representative of the several Underwriters, or
accompanied by reliance letters addressed to you, as Representative of the
several Underwriters.
19
(n) You shall have received certificates dated the Closing
Date of any two of the Chairman of the Board, the President, the Executive Vice
President, any Vice President, the Treasurer, any Assistant Treasurer, the
principal financial officer or the principal accounting officer of each of Case
Credit, the Seller and the Servicer in which such officers shall state that, to
the best of their knowledge after reasonable investigation, (i) the
representations and warranties of each of Case Credit and the Seller contained
in the Trust Agreement, the Liquidity Receivables Purchase Agreement, the
Purchase Agreement and the Sale and Servicing Agreement, as applicable, are true
and correct in all material respects, that each of Case Credit and the Seller,
has complied in all material respects with all agreements and satisfied in all
material respects all conditions on its part to be performed or satisfied under
such agreements at or prior to the Closing Date, that no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated by the
Commission and (ii) since December 31, 1999 except as may be disclosed in the
Prospectus or, in the case of Case Credit or Case Corporation, as may be
disclosed publicly by Case Credit or Case Corporation prior to the Execution
Time, no material adverse change in or affecting particularly the business or
properties of the Trust, the Seller, the Servicer, Case Credit or Case
Corporation has occurred.
(o) You shall have received evidence satisfactory to you that,
on or before the Closing Date, UCC financing statements have been or are being
filed in the office of the Secretary of State of the States of Illinois and
Delaware reflecting the transfer of the interest of Case Credit in the
Receivables and the proceeds thereof to the Seller, and the transfer of the
interest of the Seller in the Receivables and the proceeds thereof to the Trust
and the grant of the security interest by the Trust in the Receivables and the
proceeds thereof to the Indenture Trustee.
(p) The A-1 Notes shall have been rated A-1+ and P-1, the A-2
Notes, the A-3 Notes and the A-4 Notes shall have been rated AAA and Aaa, and
the Class B Notes shall have been rated A and A3 by Standard & Poor's Ratings
Services and Moody's Investors Service, Inc., respectively.
(q) The issuance of the Notes and the Certificates shall not
have resulted in a reduction or withdrawal by any Rating Agency of the current
rating of any outstanding securities issued or originated by the Seller.
(r) On the Closing Date, the Certificates shall have been
issued to the Seller.
(s) The Seller will provide or cause to be provided to you, as
Representative of the several Underwriters, such conformed copies of such
opinions, certificates, letters and documents as you reasonably request.
20
The documents required to be delivered by this Section 7 will be
delivered at the office of counsel for Case Credit and the Seller, at 190 South
LaSalle Street, Chicago, Illinois 60603, on the Closing Date.
8. Indemnification and Contribution. (a) The Seller and Case Credit
will, jointly and severally, indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever arising out of any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
Basic Prospectus. Preliminary Prospectus Supplement, Basic Prospectus or
the Prospectus or any amendment or supplement thereto or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of the
Seller or Case Credit; and
(iii) against any and all expense whatsoever (including, subject to
Section 8(c) hereof, the fees and disbursements of counsel), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Seller, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Seller within the meaning
of Section 15 of the Act and Section 20 of the Exchange Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus or any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Seller by such Underwriter
through you expressly for use in the Registration Statement (or any amendment
21
thereto) or such preliminary Basic Prospectus, Preliminary Prospectus
Supplement, Basic Prospectus or the Prospectus or any amendment or supplement
thereto.
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding, but failure to so notify an indemnifying party shall
not relieve such indemnifying party from any liability that it may have
otherwise than on account of this indemnity agreement. In any proceeding
hereunder any indemnified party shall have the right to retain its own counsel,
but the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified party
shall have mutually agreed to the contrary, (ii) the indemnifying party has
failed within a reasonable time to retain counsel reasonably satisfactory to the
indemnified party or (iii) the named parties in any such proceeding (including
any impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the indemnifying party shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all indemnified parties, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters
and such control persons of Underwriters shall be designated in writing by the
Representative and any such separate firm for Case Credit and the Seller, the
directors of Case Credit and the Seller, the officers of Case Credit and the
Seller who sign the Registration Statement and such control persons of Case
Credit and the Seller or authorized representatives shall be designated in
writing by Case Credit and the Seller. The indemnifying party shall not be
liable for any 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 Seller, Case Credit and the Underwriters shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Seller and one or more of the
Underwriters, in such proportions that the Underwriters are responsible for that
22
portion represented by the percentage that the underwriting discount and
commissions appearing on the cover page of the Prospectus bears to the initial
public offering price appearing thereon and the Seller and Case Credit are
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11 (f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person, if any,
who controls an Underwriter within the meaning of Section 15 of the Act shall
have the same rights to contribution as such Underwriter, and each director of
the Seller, each officer of the Seller who signed the Registration Statement,
and each person, if any, who controls the Seller within the meaning of Section
15 of the Act shall have the same rights to contribution as the Seller.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the underwriting discount or
commission applicable to the Notes purchased by it hereunder.
9. Defaults of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Notes hereunder on the Closing Date and
arrangements satisfactory to the Representative and the Seller for the purchase
of such Notes by other persons are not made within 24 hours after such default,
this Agreement will terminate without liability on the part of any nondefaulting
Underwriter or the Seller, except as provided in Section 11 and except that, if
the aggregate principal amount of Notes which the defaulting Underwriter or
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 Seller or by a trust for which the Seller was
the depositor, which securities were rated by any nationally recognized
statistical rating organization, it will not institute against, or join any
other Person in instituting against, the Seller any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other proceedings under
any Federal or state bankruptcy or similar law.
11. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Seller and Case Credit or any of their officers and each of the Underwriters set
forth in or made pursuant to this Agreement or contained in certificates of
officers of the Seller submitted pursuant hereto shall remain operative and in
full force and effect, regardless of (i) any termination of this Agreement, (ii)
any investigation or statement as to the results thereof made by or on behalf of
any Underwriter or of
23
the Seller or any of their respective representatives, officers or directors or
any controlling person, and (iii) delivery of and payment for the Notes. If for
any reason the purchase of the Notes by the Underwriters is not consummated, the
Seller shall remain responsible for the expenses to be paid or reimbursed by the
Seller pursuant to Section 6 and the respective obligations of the Seller and
the Underwriters pursuant to Section 8 shall remain in effect. If for any reason
the purchase of the Notes by the Underwriters is not consummated (other than
because of a failure to satisfy the conditions set forth in items (ii), (iv) or
(v) of Section 7(d)), the Seller will reimburse any Underwriter, upon demand,
for all reasonable out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by it in connection with the offering of the Notes.
Nothing contained in this Section 11 shall limit the recourse of the Seller
against the Underwriters.
12. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the at Salomon Smith Barney Inc., 388 Greenwich Street, New York, New York
10013; if sent to the Seller, will be mailed, delivered or telegraphed, and
confirmed to it at CNH Receivables Inc., 475 Half Day Road, Suite 200,
Lincolnshire, IL 60069, Attention: Treasurer; or, if sent to Case Credit, will
be mailed, delivered or telegraphed and confirmed to it at Case Credit
Corporation, 233 Lake Avenue, Racine, Wisconsin 53403, 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.
24
Underwriting Agreement
Signature Page
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will become a binding agreement among the Seller, Case Credit and the several
Underwriters in accordance with its terms.
Very truly yours,
CNH RECEIVABLES INC.,
By: /s/ Ralph A. Than
-----------------
Name: Ralph A. Than
Title: Vice President
CASE CREDIT CORPORATION,
By: /s/ Ralph A. Than
-----------------
Name: Ralph A. Than
Title: Vice President
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first written above.
SALOMON SMITH BARNEY INC.
on behalf of itself and as Representative
of the several Underwriters,
By: /s/ Christopher J. Hawke
------------------------------------
Name: Christopher J. Hawke
Title: Vice President
25
SCHEDULE I
CNH EQUIPMENT TRUST 2000-A
OFFERED SECURITY PRINCIPAL AMOUNT PRICE
- ---------------- ---------------- ------
Class A-1 Notes
Salomon Smith Barney Inc. $25,000,000 99.905000%
Banc of America Securities LLC $25,000,000 99.905000%
Chase Securities Inc. $25,000,000 99.905000%
Credit Suisse First Boston Corporation $25,000,000 99.905000%
First Union Securities, Inc. $25,000,000 99.905000%
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $25,000,000 99.905000%
Class A-2 Notes
Salomon Smith Barney Inc. $60,000,000 99.866663%
Banc of America Securities LLC $60,000,000 99.866663%
Chase Securities Inc. $60,000,000 99.866663%
Credit Suisse First Boston Corporation $60,000,000 99.866663%
First Union Securities, Inc. $60,000,000 99.866663%
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $60,000,000 99.866663%
Class A-3 Notes
Salomon Smith Barney Inc. $43,500,000 99.772535%
Banc of America Securities LLC $43,300,000 99.772535%
Chase Securities Inc. $43,300,000 99.772535%
Credit Suisse First Boston Corporation $43,300,000 99.772535%
First Union Securities, Inc. $43,300,000 99.772535%
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $43,500,000 99.772535%
Class A-4 Notes
Salomon Smith Barney Inc. $52,000,000 99.756277%
Banc of America Securities LLC $51,800,000 99.756277%
Chase Securities Inc. $51,800,000 99.756277%
Credit Suisse First Boston Corporation $51,800,000 99.756277%
First Union Securities, Inc. $51,800,000 99.756277%
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $51,800,000 99.756277%
Class B Notes
Salomon Smith Barney Inc. $23,000,000 99.639460%
Banc of America Securities LLC $23,000,000 99.639460%
27