EXECUTION COPY
CNH EQUIPMENT TRUST 2001-A
$42,000,000 FLOATING RATE CLASS A-3 ASSET BACKED NOTES
$58,850,000 5.38% CLASS A-4 ASSET BACKED NOTES
CNH CAPITAL RECEIVABLES INC.
PLACEMENT AGENCY AGREEMENT
May 9, 2001
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
250 Vesey Street
World Financial Center
North Tower
New York, New York 10281-1310
Ladies and Gentlemen:
CNH Receivables Inc., a Delaware corporation (the "Seller"),
hereby confirms its agreement with Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch") with respect to Merrill Lynch acting as
agent (the "Agent") for the sale by the Trust to Merrill Lynch Bank USA Co.
("MLBUSA") of $42,000,000 aggregate principal amount of Floating Rate Class
A-3 Asset Backed Notes (the "Class A-3 Direct Purchase Notes") of CNH
Equipment Trust 2001-A (the "Trust") and $58,850,000 aggregate principal
amount of 5.38% Class A-4 Asset Backed Notes (the "Class A-4 Direct
Purchase Notes" and, together with the Class A-3 Direct Purchase Notes, the
"Direct Purchase Notes") of the Trust pursuant to a note purchase
agreement, dated May 9, 2001 (the "Note Purchase Agreement"), among MLBUSA,
the Seller and Case Credit.
Simultaneously with the issuance and sale of the Direct Purchase
Notes as contemplated herein, the Seller will cause the Trust to issue and
sell $135,750,000 aggregate principal amount of 4.035% Class A-1 Asset
Backed Notes, $273,000,000 aggregate principal amount of Floating Rate
Class A-2 Asset Backed Notes, $170,000,000 aggregate principal amount of
Floating Rate Class A-3 Asset Backed Notes, $161,900,000 aggregate
principal amount of 5.38% Class A-4 Asset Backed Notes (collectively, the
"Underwritten Class A Notes") and $38,250,000 aggregate principal amount of
5.73% Class B Asset Backed Notes (the "Class B Notes" and, together with
the Underwritten Class A Notes, the "Underwritten Notes" and, together with
the Direct Purchase Notes, the "Notes"), to the several underwriters (the
"Underwriters") named in an underwriting agreement, dated May 9, 2001 (the
"Underwriting Agreement"), between the Seller and Merrill Lynch, as
representative of the Underwriters. In addition, simultaneously with the
issuance and sale of the Notes, the Trust will issue $20,250,000 aggregate
principal amount of Certificates to the Seller.
Capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in the Underwriting Agreement. It is a
condition to the effectiveness of this Agreement that the Underwriting
Agreement be duly executed and delivered by the parties thereto.
Section 1. Appointment as Agent.
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(a) Appointment. Subject to the terms and conditions stated herein and
subject to the reservation by the Seller of the right to sell the
Underwritten Notes to the Underwriters, the Seller hereby agrees that the
Direct Purchase Notes will be sold only through the Agent.
(b) Purchases as Principal. The Agent, in its capacity as a placement
agent hereunder, shall not have any obligation to purchase Direct Purchase
Notes from the Seller as principal.
(c) Solicitations as Agent. If agreed upon between the Agent and the
Seller, the Agent, acting solely as an agent for the Seller and not as
principal, will solicit offers for the purchase of the Direct Purchase
Notes. The Agent will communicate to the Seller, orally, each offer for the
purchase of Direct Purchase Notes solicited by it on an agency basis other
than those offers rejected by the Agent. The Agent shall have the right, in
its discretion reasonably exercised, to reject any offer for the purchase
of Direct Purchase Notes, in whole or in part, and any such rejection shall
not be deemed a breach of its agreement contained herein. The Seller may
accept or reject any offer for the purchase of Direct Purchase Notes, in
whole or in part. The Agent shall make reasonable efforts to assist the
Seller in obtaining performance by each purchaser whose offer for the
purchase of Direct Purchase Notes has been solicited by the Agent on an
agency basis and accepted by the Seller. The Agent shall not have any
liability to the Seller in the event that any such purchase is not
consummated for any reason. If the Seller shall default on its obligation
to deliver Direct Purchase Notes to a purchaser whose offer has been
solicited by the Agent on an agency basis and accepted by the Seller, the
Seller shall (i) hold the Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Seller and (ii) pay to
the Agent any commission to which it would otherwise be entitled absent
such default; provided, that no such commission shall be payable in the
event that the Seller's failure to deliver the Direct Purchase Notes
results from the purchase of the Underwritten Notes as set forth in the
Underwriting Agreement not having been consummated because the
circumstances described in Section 7(d) of the Underwriting Agreement shall
have occurred.
Section 2. Representations, Warranties and Covenants of the Seller. Each
of the Seller and Case Credit repeats herein and reaffirms for the benefit of
the Agent as of the date hereof and as of the Closing Date each of its
respective representations, warranties and covenants set forth in the
Underwriting Agreement; provided, however, that, for the purposes of this
Agreement, each such representation, warranty and covenant made with
respect to the Underwritten Notes or any subset thereof shall also be
deemed to have been made with respect to the Direct Purchase Notes; and,
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provided further that, for the purposes of this Agreement, each such
representation, warranty and covenant made with respect to the Underwriting
Agreement shall also be deemed to have been made with respect to this
Agreement.
Section 3. Representations, Warranties and Covenants of the Agent.
The Agent represents and warrants to and agrees with the Seller and Case
Credit as of the date hereof and as of the Closing Date that:
(a) Due Organization. The Agent has been duly incorporated and
is validly existing as a corporation in good standing under the laws
of the State of Delaware and has power and authority to enter into
and perform its obligations under this Agreement.
(b) Authorization. This Agreement has been duly authorized,
executed and delivered by the Agent.
(c) Placements. The Agent represents and agrees that it will not
place any of the Direct Purchase Notes in any jurisdiction except
under circumstances that will result in compliance with the
applicable laws thereof.
Section 4. Certain Agreements of the Seller. The Seller covenants and
agrees with the Agent as follows:
(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 to the Agent a copy for the Agent's review prior
to filing and will not file any such proposed amendment or supplement
to which the Agent reasonably objects. 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 the Agent of such timely filing.
(b) The Seller will advise the Agent 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 the Agent's consent, which consent will not unreasonably be
withheld; the Seller will also advise the Agent 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 the Agent 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
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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
the Agent 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 4, 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 the Agent 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 Agent 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 Agent requests.
(f) The Seller will arrange for the qualification of the Notes
for sale under the laws of such jurisdictions in the United States as
the Agent 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 Agent shall cease
to maintain a secondary market in the Notes, whichever occurs first,
the Seller will deliver to the Agent 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.
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(h) So long as any of the Notes is outstanding, the Seller will
furnish to the Agent (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 the Agent 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 Agent,
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 Agent (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.
(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.
(n) All opinions and accountant's letters with respect to the
transaction that are addressed to the Underwriters will also
include Merrill Lynch, as Agent.
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Section 5. Placement Fee. The Seller agrees to pay the Agent a fee in
the amount of the sum of (i) 0.215% of the principal amount of the Class A-3
Direct Purchase Notes and (ii) 0.230% of the principal amount of the Class
A-4 Direct Purchase Notes sold through the Agent. Such payments shall be
made by wire transfer in immediately available funds on the date of such
sale or by such other method satisfactory to the parties hereto.
Section 6. Payment of Expenses. The Seller will pay all its expenses,
if any, incident to the issuance of the Direct Purchase Notes and the
performance of its obligations, if any, under this Agreement.
Section 7. Indemnification and Contribution. (a) The Seller and Case
Credit will, jointly and severally, indemnify and hold harmless the Agent and
each person, if any, who controls the Agent 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 7(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) The Agent 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 Prospectus or any amendment or supplement thereto in
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reliance upon and in conformity with written information furnished to the
Seller by the Agent expressly for use in the Prospectus or any amendment or
supplement thereto. Each of the Seller and Case Credit hereby acknowledges
that the statements set forth in the second paragraph under the heading
"Underwriting" in the Prospectus constitute the only information furnished
in writing by the Agent for inclusion in the documents referred to in the
foregoing indemnity.
(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 Agent and
such control persons of the Agent shall be designated in writing by the
Agent 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.
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(d) In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for
in this Section 7 is for any reason held to be unavailable other than in
accordance with its terms, the Seller, Case Credit and the Agent shall
contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by
the Seller and the Agent, in such proportions that the Agent is responsible
for that portion represented by the percentage that the placement fee set
forth in Section 5 bears to the purchase price of the Direct Purchase Notes
set forth in Section 2(a) of the Note Purchase Agreement 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 the Agent within the
meaning of Section 15 of the Act shall have the same rights to contribution
as the Agent, 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), the Agent shall not be required to
contribute any amount in excess of the placement fee applicable to the
Direct Purchase Notes purchased by it hereunder.
Section 8. Notices. All communications hereunder will be in writing
and will be mailed, delivered or telegraphed and confirmed to the Agent at 250
Vesey Street, North Tower, World Financial Center, New York, New York
10281-1201, Attention: Theodore F. Breck, or, if sent to the Seller, will
be mailed, delivered or sent by facsimile and confirmed to it at 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 sent by facsimile and confirmed to it at to it at Case Credit
Corporation, 233 Lake Avenue, Racine, Wisconsin 53403, Attention:
Treasurer.
Section 9. Parties. 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 7,
and no other person will have any right or obligation hereunder.
Section 10. 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.
Section 11. Termination of Agreement. This Agreement and the Seller's,
Case Credit's and the Agent's obligations hereunder may be terminated by the
Agent or by the Seller or Case Credit by notice thereof to the other
parties at any time prior to such time as the Agent shall have arranged the
purchase by any purchaser of any Direct Purchase Notes or subsequent to
such time if any purchaser has defaulted on its obligations to purchase
such Direct Purchase Notes; provided, however, that in the event the Seller
or Case Credit does not perform any obligation under this Agreement or any
representation and warranty hereunder is incomplete or inaccurate in any
respect, this Agreement and all of the Agent's obligations hereunder may be
immediately terminated by the Agent by notice thereof to the Seller and
Case Credit. Notwithstanding any termination of or under this Agreement as
provided herein, there shall be no liability of any party to any other
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party, except as otherwise provided in Sections 5 and 6 relating to the
payment of fees and expenses and it being further understood that the
Sections relating to indemnification, limitations on the liability of
indemnified parties, contribution, settlements and choice of law will
survive any such termination.
Section 12. Survival of Certain Provisions. The respective
indemnities, agreements, representations, warranties and other statements of
the Seller and Case Credit and their respective officers and of the Agent set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results
thereof, made by or on behalf of the Agent or the Seller or Case Credit
or any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the Direct
Purchase Notes.
Section 13. Writing Required to Waive, Amend or Modify. No waiver,
amendment or other modification of this Agreement shall be effective unless
in writing and signed by each party to be bound thereby.
Section 14. Integration. This Agreement incorporates the entire
understanding of the parties with respect to this engagement of the Agent by
the Seller, and supersedes all previous agreements regarding such engagement,
should they exist.
Section 15. Applicable Law; Submission to Jurisdiction.
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(a) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
(b) Each of the Seller and Case Credit hereby submits to the
nonexclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return a counterpart hereof, whereupon this
Agreement, along with all counterparts, will become a binding agreement
among the Seller, Case Credit and the Agent in accordance with its terms.
Very truly yours,
CNH CAPITAL RECEIVABLES INC.,
By: /s/ Brian J. O'Keane
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Name: Brian J. O'Keane
Title: Assistant Treasurer
CASE CREDIT CORPORATION,
By: /s/ Brian J. O'Keane
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Name: Brian J. O'Keane
Title: Assistant Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Theodore F. Breck
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Name: Theodore F. Breck
Title: Authorized Signatory
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