EXECUTION COPY
CNH EQUIPMENT TRUST 2001-A
4.035% CLASS A-1 ASSET BACKED NOTES
FLOATING RATE CLASS A-2 ASSET BACKED NOTES
FLOATING RATE CLASS A-3 ASSET BACKED NOTES
5.38% CLASS A-4 ASSET BACKED NOTES
5.73% CLASS B ASSET BACKED NOTES
CNH CAPITAL RECEIVABLES INC.
UNDERWRITING AGREEMENT
----------------------
May 9, 2001
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
as Representative of the Several Underwriters
250 Vesey Street
World Financial Center
North Tower
New York, New York 10281-1310
Ladies and Gentlemen:
1. Introductory. CNH Capital Receivables Inc., a Delaware
corporation (the "Seller"), proposes to cause CNH Equipment Trust 2001-A
(the "Trust") to issue and sell $135,750,000 principal amount of 4.035% Class
A-1 Asset Backed Notes (the "A-1 Notes"), $273,000,000 principal amount of
Floating Rate Class A-2 Asset Backed Notes (the "A-2 Notes"), $170,000,000
principal amount of Floating Rate Class A-3 Asset Backed Notes (the
"Underwritten A-3 Notes"), $161,900,000 principal amount of 5.38% Class A-4
Asset Backed Notes (the "Underwritten A-4 Notes" and, together with the A-1
Notes, the A-2 Notes and the Underwritten A-3 Notes, the "Underwritten A Notes")
and $38,250,000 principal amount of 5.73% Class B Asset Backed Notes (the "B
Notes"; together with the Underwritten A Notes, the "Underwritten Notes"), to
the several underwriters named in Schedule I hereto (collectively, the
"Underwriters"), for whom you are acting as representative (the
"Representative").
Concurrently with the issuance and sale of the Underwritten
Notes as contemplated herein, the Trust will issue (i) an additional $42,000,000
aggregate principal amount of Floating Rate Class A-3 Asset Backed Notes (the
"Direct Purchase A-3 Notes" and, together with the Underwritten A-3 Notes, the
"A-3 Notes") and (ii) an additional $58,850,000 aggregate principal amount of
5.38% Class A-4 Asset Backed Notes (the "Direct Purchase A-4 Notes" and,
together with the Underwritten A-4 Notes, the "A-4 Notes"). Merrill Lynch,
Pierce, Fenner & Smith Incorporated will act as placement agent (the "Agent")
for the Direct Purchase A-3 Notes and the Direct Purchase A-4 Notes
(collectively, the "Direct Purchase Notes" and, together with the Underwritten
Notes, the "Notes"). Merrill Lynch Bank USA Co. ("MLBUSA") will purchase the
Direct Purchase A-3 Notes and the Direct Purchase A-4 Notes pursuant to a Note
Purchase Agreement, dated May 9, 2001 (the "Note Purchase Agreement"), among the
Seller, Case Credit and MLBUSA.
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 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 Case Credit Corporation, a Delaware corporation ("Case Credit"). Case Credit
has appointed New Holland Credit Company, LLC, a Delaware limited liability
company ("New Holland"), to act as subservicer of Receivables that were
originated by New Holland (the "NH Receivables"). The Notes will be issued
pursuant to the Indenture to be dated as of May 1, 2001 (as amended and
supplemented from time to time, the "Indenture"), between the Trust and Bank
One, National Association (the "Indenture Trustee").
Simultaneously with the issuance and sale of the Notes as
contemplated in this Agreement, the Trust will issue Asset Backed Certificates
(the "Certificates"), in an amount of $20,250,000 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 May 1, 2001 (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
dated as of May 1, 2001 (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), (d), (f), (g), (h), (i), (j), (k), (l), (m), (p), (r)
and (s) as they relate to Case Credit and/or New Holland, Case Credit,
represents and warrants to, and agrees with, each Underwriter as of the date
hereof and as of the Closing Date that:
(a) The Seller meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
(Registration No. 333-38040) 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 statement, an amendment thereto (including the form of final basic
prospectus and the form of final prospectus supplement relating to the
Securities), (ii) after effectiveness of such registration statement, a final
basic prospectus and a final prospectus supplement relating to the Securities in
accordance with Rules 430A and 424(b)(1) or (4) under the Act, or (iii) after
the effectiveness of such registration statement, a final basic prospectus and a
final prospectus supplement relating to the Securities in accordance with Rules
415 and 424(b)(2) or (5). In the case of clauses (ii) and (iii), the Seller has
included in such registration statements, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act and the Rules
thereunder to be included in the Prospectus with respect to the Securities and
the offering thereof. As filed, such amendment and form of final prospectus
supplement, or such final prospectus supplement, shall include all Rule 430A
Information, together with all other such required information with respect to
the Securities and the offering thereof and, except to the extent that the
Underwriters shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in the
latest preliminary basic prospectus and preliminary prospectus supplement that
have previously been furnished to you) as the Seller has advised you, prior to
the Execution Time, will be included or made therein. If the Registration
Statement 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).
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For purposes of this Agreement, "Effective Time", means, with
respect to the registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment thereto, if
any, was declared effective by the Commission, and "Effective Date" means the
date of the Effective Time. "Execution Time" shall mean the date and time that
this Agreement is executed and delivered by the parties hereto. Such
registration statement, as amended at the Effective Time, including all
information deemed to be a part of such registration statement as of the
Effective Time pursuant to Rule 430A(b) under the Act, and including the
exhibits thereto and any material incorporated by reference therein, are
hereinafter referred to as the "Registration Statement." "Basic Prospectus"
shall mean the prospectus referred to above contained in the Registration
Statement at the Effective Date including any Preliminary Prospectus Supplement,
as most recently revised or amended and filed with the Commission pursuant to
Rule 424(b) or Rule 429. "Preliminary Prospectus Supplement" shall mean any
preliminary prospectus supplement to the Basic Prospectus which describes the
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
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.
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(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, the Case
Purchase Agreement and, in the case of the Seller, the NH Purchase Agreement
and has obtained all necessary licenses and approvals in each jurisdiction
in which failure to qualify or to obtain such license or approval would
render any Receivable unenforceable by the Seller, the Trustee or the Indenture
Trustee.
(d) New Holland is validly existing as a limited liability
company in good standing under the laws of the State of Delaware with power and
authority to own its properties and conduct its business as such properties are
currently owned and such business is currently conducted and to enter into and
perform its obligations under the NH Purchase Agreement and has obtained all
necessary licenses and approvals in each jurisdiction in which failure to
qualify or to obtain such license or approval would render any NH Receivable
unenforceable by the Seller, the Trustee or the Indenture Trustee.
(e) On the Closing Date, upon delivery thereof, the
Liquidity Receivables Purchase Agreements, the Case Purchase Agreement, the NH
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).
(f) On the Closing Date, upon delivery thereof, the Case
Liquidity Receivables Purchase Agreement, the Case Purchase Agreement, the Sale
and Servicing Agreement and the Administration Agreement will have been duly
authorized, executed and delivered by Case Credit and will be legal, valid and
binding obligations of Case Credit enforceable against Case Credit in
accordance with their terms, subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors rights generally and to 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).
(g) On the Closing Date, upon delivery thereof, the NH
Liquidity Receivables Purchase Agreement and the NH Purchase Agreement will
have been duly authorized, executed and delivered by New Holland and will be
legal, valid and binding obligations of New Holland enforceable against New
Holland in accordance with their terms, subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors rights generally and to the effect of general principles of equity,
including concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at law).
(h) This Agreement has been duly authorized, executed and
delivered by each of the Seller and Case Credit.
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(i) The execution, delivery and performance of this
Agreement, the Liquidity Receivables Purchase Agreements, the Case Purchase
Agreement, the NH 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 the
limited liability agreement of New Holland or any material agreement or
instrument to which Case Credit, New Holland or the Seller is a party or by
which Case Credit, New Holland or the Seller is bound or to which any of the
properties of Case Credit, New Holland or the Seller is subject.
(j) The execution, delivery and performance of this
Agreement and the Basic Documents, as applicable, by Case Credit, New Holland
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,
New Holland or the Seller or any of their properties.
(k) 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, New Holland or the Seller, as
applicable, of its obligations under, or the validity or enforceability of,
this Agreement or the Basic Documents.
(l) On the Closing Date, upon delivery thereof, each of the
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
Case Liquidity Receivables Purchase Agreement has been duly authorized,
executed and delivered by Case Credit.
(m) On the Closing Date, upon delivery thereof, each of the
NH Assignment dated as of the Closing Date from New Holland to the Seller and
the assignments of Receivables from New Holland to the Seller pursuant to the
NH Liquidity Receivables Purchase Agreement has been duly authorized, executed
and delivered by New Holland.
(n) 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 and MLBUSA
pursuant to the Note Purchase Agreement, the Notes will be duly issued and
entitled to the benefits and security afforded by the Indenture, subject to the
effect of any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally and to the effect of general
principles of equity, including concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether considered in a proceeding in
equity or at law).
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(o) 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.
(p) Since March 31, 2001, 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, New Holland or Case Corporation.
(q) The computer tape of the Receivables created as of
April 30, 2001, 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 Assignment.
(r) Any taxes, fees and other governmental charges that
have been assessed and are known to the Seller, Case Credit 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, Case Credit or New Holland at or prior to the Closing Date
(as defined in Section 3 hereof).
(s) None of the Seller, Case Credit or New Holland is in
violation of its certificate of incorporation or certificate of formation or
limited liability company agreement, as applicable, or its by-laws or in
default in the performance or observance of any obligation, agreement, covenant
or condition contained in any agreement or instrument to which it is a party or
by which it or its properties are bound which would have a material adverse
effect on the transactions contemplated herein or on the Seller's, Case
Credit's on 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 Underwritten
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 Underwritten 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 May 22, 2001 (the
"Closing Date"). Delivery of the Underwritten 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.
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4. Offering by Underwriters. It is understood that the
Underwriters propose to offer the Notes for sale to the public (which may
include selected dealers), as set forth in the Prospectus.
5. Covenants of the Seller. The Seller covenants and
agrees with each of the Underwriters that:
(a) The Seller will use its best efforts to cause the
Registration Statement, and any amendment thereto, if not effective at the
Execution Time, to become effective. Prior to the termination of the offering
of the Notes, the Seller will not file any amendment of the Registration
Statement or supplement to the Prospectus unless the Seller has furnished you a
copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the foregoing
sentence, if the Registration Statement has become or becomes effective pursuant
to Rule 430A, or filing of the Prospectus is otherwise required under Rule
424(b), the Seller will file the Prospectus, properly completed, and any
supplement thereto, with the Commission pursuant to and in accordance with the
applicable paragraph of Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to you of such timely filing.
(b) The Seller will advise you promptly of any proposal to
amend or supplement the Registration Statement as filed, or the related
Prospectus and will not effect such amendment or supplement without your
consent, which consent will not unreasonably be withheld; the Seller will also
advise you promptly of any request by the Commission for any amendment of or
supplement to the Registration Statement or the Prospectus or for any additional
information; and the Seller will also advise you promptly of the effectiveness
of the Registration Statement and any amendment thereto, when the Prospectus,
and any supplement thereto, shall have been filed with the Commission pursuant
to Rule 424(b) and of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threat of any proceeding for that purpose, and the Seller will use its best
efforts to prevent the issuance of any such stop order and to obtain as soon as
possible the lifting of any issued stop order.
(c) If, at any time when a prospectus relating to the Notes
is required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the
Registration Statement or supplement the Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, the Seller promptly will
notify you and will prepare and file, or cause to be prepared and filed, with
the Commission, subject to the second sentence of paragraph (a) of this Section
5, an amendment or supplement that will correct such statement or omission, or
effect such compliance. Any such filing shall not operate as a waiver or
limitation on any right of any Underwriter hereunder.
(d) As soon as practicable, but not later than fourteen
months after the original effective date of the Registration Statement, the
Seller will cause the Trust to make generally available to Noteholders an
earnings statement of the Trust covering a period of at least twelve months
beginning after the Effective Date of the Registration Statement that will
satisfy the provisions of Section 11(a) of the Act.
(e) The Seller will furnish to the Underwriters copies of
the Registration Statement (one of which will be signed and will include all
exhibits), each related preliminary prospectus (including the Preliminary
Prospectus Supplement), the Prospectus and all amendments and supplements to
such documents, in each case as soon as available and in such quantities as the
Underwriters request.
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(f) The Seller will arrange for the qualification of the
Notes for sale under the laws of such jurisdictions in the United States as you
may reasonably designate and will continue such qualifications in effect so long
as required for the distribution.
(g) For a period from the date of this Agreement until the
retirement of the Notes, or until such time as the Underwriters shall cease to
maintain a secondary market in the Notes, whichever occurs first, the Seller
will deliver to you the annual statements of compliance and the annual
independent certified public accountants' reports furnished to the Trustee or
the Indenture Trustee pursuant to the Sale and Servicing Agreement, as soon as
such statements and reports are furnished to the Trustee or the Indenture
Trustee.
(h) So long as any of the Notes is outstanding, the Seller
will furnish to you (i) as soon as practicable after the end of the fiscal
year all documents required to be distributed to Noteholders or filed with the
Commission pursuant to the Exchange Act or any order of the Commission
thereunder and (ii) from time to time, any other information concerning the
Seller filed with any government or regulatory authority which is otherwise
publicly available, as you may reasonably request.
(i) On or before the Closing Date, the Seller shall cause
the computer records of the Seller and Case Credit relating to the Receivables
to be marked to show the Trust's absolute ownership of the Receivables, and from
and after the Closing Date neither the Seller nor Case Credit shall take any
action inconsistent with the Trust's ownership of such Receivables, other than
as permitted by the Sale and Servicing Agreement.
(j) To the extent, if any, that the rating provided with
respect to the Notes by the rating agency or agencies that initially rate the
Notes is conditional upon the furnishing of documents or the taking of any other
actions by the Seller, the Seller shall furnish such documents and take any such
other actions.
(k) For the period beginning on the date of this Agreement
and ending seven days after the Closing Date, unless waived by the Underwriters,
none of the Seller, Case Credit or any trust originated, directly or indirectly,
by the Seller or Case Credit will offer to sell or sell notes (other than the
Notes and commercial paper notes offered pursuant to Case Credit's existing
asset-backed commercial paper program) collateralized by, or certificates (other
than the Certificates) evidencing an ownership interest in, receivables
generated pursuant to retail agricultural or construction equipment installment
sale contracts.
(l) On or prior to each Subsequent Transfer Date, the
Seller shall deliver to the Representative (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 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.
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(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 Underwritten 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 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.
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(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, the Case Purchase Agreement
and, in the case of the Seller, the NH Purchase Agreement and has
obtained all necessary licenses and approvals in each jurisdiction in
which failure to qualify or to obtain such license or approval would
render any 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 by the Underwriters pursuant to this
Agreement and MLBUSA pursuant to the Note Purchase 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 Agreements, the
Case Purchase Agreement, the NH 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).
10
(v) This Agreement has been duly authorized, executed and
delivered by each of the Seller and Case Credit.
(vi) The Case Liquidity Receivables Purchase Agreement,
the Case Purchase Agreement, the Sale and Servicing Agreement and the
Administration Agreement have been duly authorized, executed and
delivered by Case Credit and are legal, valid and binding obligations
of Case Credit enforceable against Case Credit in accordance with their
terms, subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights
generally and to the effect of general principles of equity, including
concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at law).
(vii) The execution, delivery and performance of this
Agreement and the Basic Documents, as applicable, by Case Credit and
the Seller, and the consummation of the transactions contemplated
thereby, will not conflict with, or result in a breach, violation or
acceleration of, or constitute a default under, the certificate of
incorporation or by-laws of Case Credit or the Seller or any material
agreement or instrument known to such counsel after due inquiry 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 Case Assignment dated as of the Closing
Date from Case Credit to the Seller and the assignments of Case
Receivables from Case Credit to the Seller pursuant to the Case
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
11
Sale and Servicing Agreement constitutes a grant by the Seller to the
Trust of a valid security interest in the Receivables, the security
interests in the Financed Equipment securing the Receivables and the
proceeds of each of the foregoing, which security interest will be
perfected upon the execution and delivery of the Basic Documents and
the filing of the UCC financing statement with the Secretary of State
of the State of Illinois referred to above and will constitute a first
priority perfected security interest therein. No filing or other
action, other than the execution and delivery of the Basic Documents
and the filing of the UCC financing statement with the Secretary of
State of the State of Illinois referred to above, is necessary to
perfect and maintain the interest or the security interest of the
Trust in the Receivables, the security interests in the Financed
Equipment securing the Receivables and the proceeds of each of the
foregoing against third parties.
(xii) Assuming that Case Credit's standard procedures have
been followed with respect to the creation of the Case Receivables,
Case Credit obtains from each Dealer either an absolute ownership
interest or a security interest in the Case 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 Case 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 agricultural, construction 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 Case
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.
12
(xvi) The Sale and Servicing Agreement, the Trust Agreement,
the Indenture, the Administration Agreement, the Interest Rate Swap
Agreements and the Purchase Agreements conform in all material
respects with the description thereof contained in the Prospectus and
any supplement thereto.
(xvii) The statements in the Basic Prospectus under the
headings "Summary of Terms--Legal Investment", "Risk Factors-Possible
liability for third party claims may cause payment delays or losses",
"Legal Aspects of the Receivables" and "Legal Investment", 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, the Interest Rate Swap Agreements 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, the Interest Rate Swap Agreements 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, the Interest Rate Swap
Agreements 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.
13
(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 Prospectus and each
supplement thereto), complied as to form in all material respects with
the requirements of the Act, the Trust Indenture Act and the Rules and
Regulations.
(xxiv) The Trust has been duly formed and is validly existing
as a statutory business trust under the laws of the State of Delaware,
with full power and authority to execute, deliver and perform its
obligations under the Sale and Servicing Agreement, the Indenture, the
Administration Agreement, the Interest Rate Swap Agreements, the Notes
and the Certificates.
(xxv) The Indenture, the Sale and Servicing Agreement, the
Interest Rate Swap Agreements 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 or opinions of
counsel to New Holland, 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:
14
(i) New Holland is an existing limited liability company 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
such properties are currently owned and such business is currently
conducted and to enter into and perform its obligations under the
NH Purchase Agreement and has obtained all necessary licenses and
approvals in each jurisdiction in which failure to qualify or to obtain
such license or approval would render any NH Receivable unenforceable
by the Seller, the Trustee or the Indenture Trustee.
(ii) The NH Liquidity Receivables Purchase Agreement and
the NH Purchase Agreement have been duly authorized, executed and
delivered by New Holland, and are legal, valid and binding obligation
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 NH
Purchase 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 limited liability company agreement of New Holland or any material
agreement or instrument known to such counsel after due inquiry to
which New Holland is a 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 NH
Purchase 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 NH Purchase Agreement, (2) seeking to prevent the
consummation of any of the transactions contemplated by any of the NH
Purchase 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 NH Purchase Agreement.
(vi) Each of the NH Assignment dated as of the Closing Date
from New Holland to the Seller and the assignments of NH Receivables
from New Holland to the Seller pursuant to the NH Liquidity Receivables
Purchase Agreement have been duly authorized, executed and delivered by
New Holland.
15
(vii) Assuming that New Holland's standard procedures have
been followed with respect to the creation of the NH Receivables, New
Holland obtains from each Dealer either an absolute ownership interest
or a security interest in the NH 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 an NH Receivable or the filing of a financing statement
in accordance with the UCC. Assuming that New Holland's standard
procedures with respect to the perfection of a security interest in
the equipment financed by New Holland pursuant to retail agricultural,
construction or other equipment installment sale contracts in the
ordinary course of New Holland's business have been followed with
respect to the perfection of security interests in the Financed
Equipment securing the NH Receivables, New Holland has acquired either
a perfected security interest in such Financed Equipment or a perfected
security interest in the NH Receivables, which indirectly provides New
Holland with a security interest in such 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.
(viii) The NH Receivables are chattel paper as defined in
the UCC.
(ix) Upon the filing of UCC financing statements with the
Secretary of State of the Commonwealth of Pennsylvania and the county
prothonotary of Lancaster County, Pennsylvania, the security interest
in the NH Receivables, the Financed Equipment securing the NH
Receivables and the proceeds of each of the foregoing granted by New
Holland to the Seller under the NH Purchase Agreement will be perfected
under the UCC and will constitute a first priority perfected security
interest in the NH Receivables, the Financed Equipment securing the NH
Receivables and the proceeds of each of the foregoing.
Such counsel shall also opine as to such other matters as the
Underwriters may reasonably request.
(g) 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, 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.
(h) 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.
(i) 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.
16
(j) You shall have received from Sidley Austin 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.
(k) 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 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 and the Administration
Agreement.
(ii) Each of the Indenture, the Sale and Servicing
Agreement and the Administration Agreement has been duly authorized,
executed and delivered by the Indenture Trustee.
(iii) Each of the Indenture, the Sale and Servicing
Agreement and the Administration Agreement constitutes a legal, valid
and binding obligation of the Indenture Trustee, enforceable against
the Indenture Trustee in accordance with its respective terms, except
that certain of such obligations may be enforceable solely against the
Trust Estate and except that such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws affecting the enforcement of creditors' rights generally,
and the rights of creditors of national banking associations, 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 or the State of Illinois governing the
banking or trust powers of the Indenture Trustee or the Charter or
By-Laws of the Indenture Trustee or, to such counsel's knowledge,
any order, writ, injunction or decree of any court or governmental
authority against the Indenture Trustee or by which it or any of its
properties is bound or, to such counsel's knowledge, any indenture,
mortgage or contract or other agreement or instrument to which the
Indenture Trustee is a party or by which it or any of its properties is
bound, or results in the creation or imposition of any lien, charge
or encumbrance upon any of its properties pursuant to any agreement
or instrument, except encumbrances and security interests
contemplated by the Indenture, the Sale and Servicing Agreement and the
Administration Agreement.
17
(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.
(l) 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.
18
(m) 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:
(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 underss.9-312 of the DELUCC and
temporarily perfected security interests in proceeds underss.9-306 of
the DELUCC. No refiling or other action is necessary under the DELUCC
in order to maintain the perfection of such security interest except
for the filing of continuation statements at five year intervals. To
the extent the DELUCC applies, the Receivables (in the form attached
as an exhibit to such opinion) are "chattel paper" as defined in
Section 9-105(1)(b) of the DELUCC.
(vi) Under the Delaware Business Trust Act, no creditor of
any Certificateholder shall have any right to obtain possession of, or
otherwise exercise legal or equitable remedies with respect to, the
property of the Trust except in accordance with the terms of the Trust
Agreement.
19
(n) You shall have received an opinion or opinions of
counsel to the Class A-2 Counterparty, 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.
(o) You shall have received an opinion or opinions of counsel to
the Class A-3 Counterparty, 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.
(p) 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.
(q) 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 Agreements, the Case
Purchase Agreement, the NH 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
March 31, 2001 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.
(r) You shall have received certificates dated the Closing
Date of any two of the Chairman of the Board, the President, the Executive Vice
President, any Vice President, the Treasurer, any Assistant Treasurer, the
principal financial officer or the principal accounting officer of New Holland
in which such officers shall state that, to the best of their knowledge after
reasonable investigation, (i) the representations and warranties of New Holland
contained in the NH Liquidity Receivables Purchase Agreement and the NH
Purchase Agreement are true and correct in all material respects, that New
Holland has complied in all material respects with all agreements and satisfied
in all material respects all conditions on its part to be performed or
satisfied under such agreements at or prior to the Closing Date, and (ii) since
March 31, 2001 except as may be disclosed in the Prospectus or as may be
disclosed publicly by New Holland prior to the Execution Time, no material
adverse change in or affecting particularly the business or properties of New
Holland has occurred.
(s) You shall have received evidence satisfactory to you that, on
or before the Closing Date:
20
(i) UCC financing statements have been or are being filed
in the respective offices of the Secretary of State of the
Commonwealth of Pennsylvania and the county prothonotary of Lancaster
County, Pennsylvania reflecting the transfer of the interest of New
Holland in the NH Receivables and the proceeds thereof to the Seller;
and
(ii) 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
Case 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.
(t) 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.
(u) 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.
(v) On the Closing Date, the Certificates shall have been
issued to the Seller.
(w) On the Closing Date, the Direct Purchase Notes shall
have been duly executed, authenticated and delivered pursuant to the Note
Purchase Agreement.
(x) The Seller will provide or cause to be provided to you,
as Representative of the several Underwriters, such conformed copies of such
opinions, certificates, letters and documents as you reasonably request.
The documents required to be delivered by this Section 7 will
be delivered at the office of counsel for Case Credit and the Seller, at 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
21
(iii) against any and all expense whatsoever (including,
subject to Section 8(c) hereof, the fees and disbursements of
counsel), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Seller, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Seller within
the meaning of Section 15 of the Act and Section 20 of the Exchange Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made
in the Registration Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus or any amendment or supplement thereto in reliance
upon and in conformity with written information furnished to the Seller by such
Underwriter through you expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary Basic Prospectus, Preliminary Prospectus
Supplement, Basic Prospectus or the Prospectus or any amendment or supplement
thereto.
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder and the indemnifying party, upon request of
the indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
that it may have otherwise than on account of this indemnity agreement. In any
proceeding hereunder any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the contrary, (ii) the indemnifying party
has failed within a reasonable time to retain counsel reasonably satisfactory to
the indemnified party or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is 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.
22
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in this Section 8 is
for any reason held to be unavailable other than in accordance with its terms,
the Seller, Case Credit and the Underwriters shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Seller and one or more of the
Underwriters, in such proportions that the Underwriters are responsible for that
portion represented by the percentage that the underwriting discount and
commissions appearing on the cover page of the Prospectus bears to the initial
public offering price appearing thereon and the Seller and Case Credit are
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person, if any,
who controls an Underwriter within the meaning of Section 15 of the Act shall
have the same rights to contribution as such Underwriter, and each director of
the Seller, each officer of the Seller who signed the Registration Statement,
and each person, if any, who controls the Seller within the meaning of Section
15 of the Act shall have the same rights to contribution as the Seller.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the underwriting discount or
commission applicable to the Underwritten Notes purchased by it hereunder.
9. Defaults of Underwriters. If any Underwriter or
Underwriters default in their obligations to purchase Underwritten Notes
hereunder on the Closing Date and arrangements satisfactory to the
Representative and the Seller for the purchase of such Underwritten 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 Underwritten 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 Underwritten 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 Underwritten Notes set forth opposite their names
in Schedule I hereto bears to the aggregate principal amount of Underwritten
Notes set forth opposite the names of all the remaining Underwriters) the
Underwritten Notes which the defaulting Underwriter or Underwriters agreed but
failed to purchase. As used in this Agreement, the term "Underwriter" includes
any person substituted for an Underwriter under this Section. Nothing herein
will relieve a defaulting Underwriter from liability for its default.
10. No Bankruptcy Petition. Each Underwriter covenants and
agrees that, prior to the date which is one year and one day after the payment
in full of all securities issued by the Seller or by a trust for which the
Seller was the depositor, which securities were rated by any nationally
recognized statistical rating organization, it will not institute against, or
join any other Person in instituting against, the Seller any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any Federal or state bankruptcy or similar law.
11. Survival of Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Seller and
Case Credit or any of their officers and each of the Underwriters set forth in
or made pursuant to this Agreement or contained in certificates of officers of
the Seller submitted pursuant hereto shall remain operative and in full force
and effect, regardless of (i) any termination of this Agreement, (ii) any
investigation or statement as to the results thereof made by or on behalf of any
Underwriter or of the Seller or any of their respective representatives,
officers or directors or any controlling person, and (iii) delivery of and
payment for the Underwritten Notes. If for any reason the purchase of the
Underwritten 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 Underwritten 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.
23
12. Notices. All communications hereunder will be in
writing and, if sent to the Underwriters, will be mailed, delivered or
telegraphed and confirmed to Merrill Lynch, Pierce, Fenner & Smith Incorporated,
as Representative of the Several Underwriters, 250 Vasey Street, World Financial
Center, North Tower, New York, New York 10281-1310, Attention: Corporate and
Institutional Client Group, with a copy of any notice pursuant to Section 8(c)
to: Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Representative of the
Several Underwriters, 250 Vesey Street, World Financial Center, North Tower, New
York, New York 10281-1310, Attention: Legal Department; if sent to the Seller,
will be mailed, delivered or telegraphed, and confirmed to it at CNH Capital
Receivables Inc., 100 South Saunders Road, Lake Forest, IL 60045, 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 CAPITAL RECEIVABLES INC.,
By: /s/ Brian J. O'Keane
-------------------------------------------
Name: Brian J. O'Keane
Title: Assistant Treasurer
CASE CREDIT CORPORATION,
By: /s/ Brian J. O'Keane
------------------------------------------
Name: Brian J. O'Keane
Title: Assistant Treasurer
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the
date first written above.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
on behalf of itself and as Representative
of the several Underwriters,
By: /s/ Anthony Witkowsky
------------------------------------
Name: Anthony Witkowsky
Title: Director
25
SCHEDULE I
CNH EQUIPMENT TRUST 2001-A
OFFERED SECURITY PRINCIPAL AMOUNT PRICE
A-1 Notes
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $22,625,000 99.90500%
Banc of America Securities LLC $22,625,000 99.90500%
Deutsche Banc Alex. Brown Inc. $22,625,000 99.90500%
J.P. Morgan Securities Inc. $22,625,000 99.90500%
Salomon Smith Barney Inc. $22,625,000 99.90500%
SG Cowen Securities Corporation $22,625,000 99.90500%
A-2 Notes
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $45,500,000 99.87500%
Banc of America Securities LLC $45,500,000 99.87500%
Deutsche Banc Alex. Brown Inc. $45,500,000 99.87500%
J.P. Morgan Securities Inc. $45,500,000 99.87500%
Salomon Smith Barney Inc. $45,500,000 99.87500%
SG Cowen Securities Corporation $45,500,000 99.87500%
Underwritten A-3 Notes
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $28,335,000 99.78500%
Banc of America Securities LLC $28,333,000 99.78500%
Deutsche Banc Alex. Brown Inc. $28,333,000 99.78500%
J.P. Morgan Securities Inc. $28,333,000 99.78500%
Salomon Smith Barney Inc. $28,333,000 99.78500%
SG Cowen Securities Corporation $28,333,000 99.78500%
Underwritten A-4 Notes
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $26,985,000 99.75456%
Banc of America Securities LLC $26,983,000 99.75456%
Deutsche Banc Alex. Brown Inc. $26,983,000 99.75456%
J.P. Morgan Securities Inc. $26,983,000 99.75456%
Salomon Smith Barney Inc. $26,983,000 99.75456%
SG Cowen Securities Corporation $26,983,000 99.75456%
B Notes
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $19,125,000 99.63531%
Salomon Smith Barney Inc. $19,125,000 99.63531%
26