EXHIBIT 4.8
EXECUTION VERSION
CASE NEW HOLLAND INC.
$500,000,000 6% SENIOR NOTES DUE 2009
REGISTRATION RIGHTS AGREEMENT
May 18, 2004
Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10005
Ladies and Gentlemen:
Case New Holland Inc., a corporation organized under the laws of
Delaware (the "Company"), proposes to issue and sell to certain purchasers (the
"Initial Purchasers"), upon the terms set forth in an amended and restated
purchase agreement dated May 18, 2004 (the "Amended and Restated Purchase
Agreement"), relating to the initial placement (the "Initial Placement") of its
6% Senior Notes due 2009 (the "Notes"). The Company's obligations under the
Notes will be guaranteed (the "Guarantees") by its parent company, CNH Global
N.V., and certain of CNH Global N.V.'s direct and indirect subsidiaries,
including certain of the Company's direct and indirect subsidiaries, named in
Schedule II to the Amended and Restated Purchase Agreement (collectively, the
"Guarantors"). References herein to the "Issuers" refer to the Company and the
Guarantors. References herein to the "Securities" refer to the Notes and the
Guarantees. To the extent there are no additional purchasers other than you, the
term Initial Purchasers shall mean either the singular or plural as the context
requires. To induce the Initial Purchasers to enter into the Amended and
Restated Purchase Agreement and to satisfy a condition of your obligations
thereunder, the Company agrees with you for your benefit and the benefit of the
holders from time to time of the Securities and Exchange Securities (as defined
below) (including the Initial Purchasers) (each a "Holder" and, collectively,
the "Holders" for so long as such Person holds Securities), as follows:
1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Amended and Restated
Purchase Agreement. As used in this Agreement, the following defined terms shall
have the following respective meanings:
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
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"Affiliate" of any specified Person shall mean any other Person
that, directly or indirectly, is in control of, is controlled by, or is under
common control with, such specified Person. For purposes of this definition,
control of a Person shall mean the power, direct or indirect, to direct or cause
the direction of the management and policies of such Person whether by contract
or otherwise; and the terms "controlling" and "controlled" shall have meanings
correlative to the foregoing.
"Amended and Restated Purchase Agreement" shall have the meaning set
forth in the preamble hereto.
"Broker-Dealer" shall mean any broker or dealer registered as such
under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Company" shall have the meaning set forth in the preamble hereto.
"Conduct Rules" shall have the meaning set forth in Section 4(u)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Period" shall mean the 180-day period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a registration
statement of the Issuers on an appropriate form under the Act with respect to
the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments thereto, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchange Securities" shall mean debt securities of the Issuers
identical in all material respects to the Securities (except that the cash
interest and interest rate step-up provisions and the U.S. transfer restrictions
shall be modified or eliminated, as appropriate) to be issued under the
Indenture.
"Exchanging Dealer" shall mean any Holder (which may include any
Initial Purchaser) that is a Broker-Dealer and elects to exchange any Securities
that it acquired for its
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own account as a result of market-making activities or other trading activities
(but not directly from any Issuer or any Affiliate of any Issuer) for Exchange
Securities.
"Final Memorandum" shall have the meaning set forth in the Amended
and Restated Purchase Agreement.
"Guarantee" shall have the meaning set forth in the preamble hereto.
"Guarantors" shall have the meaning set forth in the preamble
hereto.
"Holder" shall have the meaning set forth in the preamble hereto.
"Indenture" shall mean the indenture dated as of May 17, 2004 among
the Company, the Guarantors and JPMorgan Chase Bank, as supplemented to date and
as may be amended or supplemented from time to time in accordance with the terms
thereof.
"Initial Placement" shall have the meaning set forth in the preamble
hereto.
"Initial Purchasers" shall have the meaning set forth in the
preamble hereto.
"Issuers" shall have the meaning set forth in the preamble hereto.
"Judgment Currency" shall have the meaning set forth in Section 17
hereof.
"Losses" shall have the meaning set forth in Section 7(d) hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Securities and Exchange Securities registered
under any Registration Statement.
"Managing Underwriters" shall mean the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering of the Securities.
"Person" shall mean an individual, trustee, corporation,
partnership, limited liability company, joint stock company, trust,
unincorporated association, union, business association, firm or other legal
entity.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Securities or the Exchange Securities covered by
such Registration Statement, and all amendments and supplements thereto and all
material incorporated by reference therein.
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"Registered Exchange Offer" shall mean the proposed offer of the
Issuers to issue and deliver to the Holders of the Securities that are not
prohibited by any law or policy of the Commission from participating in such
offer, in exchange for the Securities, a like aggregate principal amount of the
Exchange Securities.
"Registration Statement" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities or
the Exchange Securities pursuant to the provisions of this Agreement, any
amendments and supplements to such registration statement, including
post-effective amendments (in each case including the Prospectus contained
therein), all exhibits thereto and all material incorporated by reference
therein.
"Securities" shall have the meaning set forth in the preamble
hereto.
"Shelf Registration" shall mean a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" shall have the meaning set forth in
Section 3(c) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Issuers pursuant to the provisions of Section 3 hereof which
covers some or all of the Securities or Exchange Securities, as applicable, on
an appropriate form under Rule 415 under the Act, or any similar rule that may
be adopted by the Commission, amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Trustee" shall mean the trustee with respect to the Securities
under the Indenture.
"Underwriter" shall mean any underwriter of Securities or Exchange
Securities in connection with an offering thereof under a Shelf Registration
Statement.
2. Registered Exchange Offer. (a) The Issuers shall prepare and,
not later than April 30, 2005, shall file with the Commission the Exchange Offer
Registration Statement with respect to the Registered Exchange Offer. The
Issuers shall use their reasonable best efforts to cause the Exchange Offer
Registration Statement to become effective under the Act within 90 days
following the filing date of the registration statement (or if such 90th day is
not a Business Day, the next succeeding Business Day).
(b) Upon the filing of the Exchange Offer Registration Statement,
the Issuers shall use their reasonable best efforts to consummate the Registered
Exchange Offer within 120 days, it being the objective of such Registered
Exchange Offer to enable each Holder eligible and electing to exchange
Securities for Exchange Securities (assuming that
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such Holder is not an Affiliate of any of the Issuers, acquires the Exchange
Securities in the ordinary course of such Holder's business, has no arrangements
with any Person to participate in the distribution of the Exchange Securities
and is not prohibited by any law or policy of the Commission from participating
in the Registered Exchange Offer) to trade such Exchange Securities from and
after their receipt without any limitations or restrictions under the Act and
without material restrictions under the securities laws of a substantial
proportion of the States of the United States.
(c) In connection with the Registered Exchange Offer, the Issuers
shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than
20 days and not more than 30 days after the date notice thereof is mailed
to the Holders (or, in each case, longer if required by applicable law);
(iii) use their reasonable best efforts to keep the Exchange
Offer Registration Statement continuously effective under the Act,
supplemented and amended as required, to ensure that it is available for
sales of Exchange Securities by Exchanging Dealers during the Exchange
Offer Registration Period;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New York
City, which may be the Trustee, or an Affiliate of the Trustee;
(v) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last Business Day on
which the Registered Exchange Offer is open;
(vi) if requested by the Commission, prior to effectiveness of
the Exchange Offer Registration Statement, provide a supplemental letter
to the Commission (A) stating that the Issuers are conducting the
Registered Exchange Offer in reliance on the position of the Commission in
Exxon Capital Holdings Corporation (pub. avail. May 13, 1988) and Morgan
Stanley and Co., Inc. (pub. avail. June 5, 1991); and (B) including a
representation that the Issuers have not entered into any arrangement or
understanding with any Person to distribute the Exchange Securities to be
received in the Registered Exchange Offer and that, to the best of the
Issuers' information and belief, each Holder participating in the
Registered Exchange Offer is acquiring the Exchange Securities in the
ordinary course of business and has no arrangement or understanding with
any Person to participate in the distribution of the Exchange Securities;
and
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(vii) comply in all respects with all applicable laws relating
to the Registered Exchange Offer.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Issuers shall:
(i) accept for exchange all Securities duly tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in accordance
with Section 4(s) all Securities so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver
to each Holder of Securities a principal amount of Exchange Securities
equal to the principal amount of the Securities of such Holder so accepted
for exchange.
(e) Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Registered Exchange Offer to
participate in a distribution of the Exchange Securities (x) could not under
Commission policy as in effect on the date of this Agreement rely on the
position of the Commission in Morgan Stanley and Co., Inc. (pub. avail. June 5,
1991) and Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated July 2, 1993
and similar no-action letters; and (y) must comply with the registration and
prospectus delivery requirements of the Act in connection with any secondary
resale transaction and must be covered by an effective registration statement
containing the selling security holder information required by Items 507 and
508, of Regulation S-K, as applicable, under the Act if the resales are of
Exchange Securities obtained by such Holder in exchange for Securities acquired
by such Holder directly from any Issuer or one of its Affiliates. Accordingly,
each Holder participating in the Registered Exchange Offer shall be required to
represent to the Issuers that, at the time of the consummation of the Registered
Exchange Offer:
(i) any Exchange Securities received by such Holder will be
acquired in the ordinary course of business;
(ii) such Holder will have no arrangement or understanding
with any Person to participate in the distribution of the Securities or
the Exchange Securities within the meaning of the Act; and
(iii) such Holder is not an Affiliate of any Issuer.
(f) If any Initial Purchaser determines that it is not eligible to
participate in the Registered Exchange Offer with respect to the exchange of
Securities constituting any portion of an unsold allotment, at the request of
such Initial Purchaser, the Issuers shall issue and deliver to such Initial
Purchaser or the Person purchasing Exchange Securities registered under a Shelf
Registration Statement as contemplated by Section 3 hereof from such Initial
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Purchaser, in exchange for such Securities, a like principal amount of Exchange
Securities. The Company shall use its best efforts to cause the CUSIP Service
Bureau to issue the same CUSIP and ISIN numbers for such Exchange Securities as
for Exchange Securities issued pursuant to the Registered Exchange Offer.
(g) Interest on each Exchange Security shall accrue from the last
date on which interest was paid on the Security surrendered in exchange therefor
or, if no interest has been paid on such Security, from the date of such
Security's original issue.
3. Shelf Registration. (a) If (i) due to any change in law or
applicable interpretations thereof by the Commission's staff, the Issuers
determine upon advice of their outside counsel that they are not permitted to
effect the Registered Exchange Offer as contemplated by Section 2 hereof; (ii)
for any other reason the Registered Exchange Offer is not declared effective
within 90 days after the date of filing of the Exchange Offer Registration
Statement or the Registered Exchange Offer is not consummated within 120 days
after the Exchange Offer Registration Statement is filed; (iii) any Initial
Purchaser so requests with respect to Securities that are not eligible to be
exchanged for Exchange Securities in the Registered Exchange Offer and that are
held by it following consummation of the Registered Exchange Offer; (iv) any
Holder (other than an Initial Purchaser) is not eligible to participate in the
Registered Exchange Offer; or (v) in the case of any Initial Purchaser that
participates in the Registered Exchange Offer or acquires Exchange Securities
pursuant to Section 2(f) hereof, such Initial Purchaser does not receive freely
tradeable Exchange Securities in exchange for Securities constituting any
portion of an unsold allotment (it being understood that (x) the requirement
that an Initial Purchaser deliver a Prospectus containing the information
required by Items 507 and 508 of Regulation S-K, as applicable, under the Act in
connection with sales of Exchange Securities acquired in exchange for such
Securities shall result in such Exchange Securities being not "freely
tradeable"; and (y) the requirement that an Exchanging Dealer deliver a
Prospectus in connection with sales of Exchange Securities acquired in the
Registered Exchange Offer in exchange for Securities acquired as a result of
market-making activities or other trading activities shall not result in such
Exchange Securities being not "freely tradeable"), the Issuers shall effect a
Shelf Registration in accordance with Section (b) hereof.
(b) The Issuers shall as promptly as practicable (but in no event
more than 30 days after so required or requested pursuant to this Section 3),
file with the Commission and thereafter shall use their reasonable best efforts
to cause to be declared effective under the Act a Shelf Registration Statement
relating to the offer and sale of the Securities or the Exchange Securities, as
applicable, by the Holders thereof from time to time in accordance with the
methods of distribution elected by such Holders and set forth in such Shelf
Registration Statement; provided, however, that no Holder (other than an Initial
Purchaser) shall be entitled to have the Securities held by it covered by such
Shelf Registration Statement unless such Holder agrees in writing to be bound by
all of the provisions of this Agreement applicable to such Holder; and provided,
further, that with respect to Exchange Securities received by an Initial
Purchaser in exchange for Securities constituting any portion of an
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unsold allotment, the Issuers may, if permitted by current interpretations by
the Commission's staff, file a post-effective amendment to the Exchange Offer
Registration Statement containing the information required by Items 507 and 508
of Regulation S-K, as applicable, in satisfaction of their obligations under
this subsection with respect thereto, and any such Exchange Offer Registration
Statement, as so amended, shall be referred to herein as, and governed by the
provisions herein applicable to, a Shelf Registration Statement.
(c) The Issuers shall use their reasonable best efforts to keep the
Shelf Registration Statement continuously effective, supplemented and amended as
required by the Act, in order to permit the Prospectus forming part thereof to
be usable by Holders for a period of two years from the date the Shelf
Registration Statement is declared effective by the Commission or such shorter
period that will terminate when all the Securities or Exchange Securities, as
applicable, covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement (in any such case, such period being called
the "Shelf Registration Period").
(d) The Issuers shall use their reasonable best efforts to ensure
that the Shelf Registration Statement and the related Prospectus and any
amendment or supplement thereto, as of the effective date of the Shelf
Registration Statement or such amendment or supplement, (A) comply in all
material respects with the applicable requirements of the Act and the rules and
regulations of the Commission; and (B) do not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
4. Additional Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Issuers shall:
(i) furnish to each of you, not less than three Business Days
prior to the filing thereof with the Commission, a copy of the Exchange
Offer Registration Statement and the Shelf Registration Statement, as the
case may be, and each amendment thereof and each amendment or supplement,
if any, to the Prospectus included therein (including all documents
incorporated by reference therein after the initial filing) and shall use
their reasonable best efforts to reflect in each such document, when so
filed with the Commission, such comments as you reasonably propose;
(ii) in the case of an Exchange Offer Registration Statement,
to the extent permitted by the Act, include the information in
substantially the form set forth in Annex A hereto on the front cover of
the Prospectus included in the Exchange Offer Registration Statement, in
substantially the form set forth in Annex B hereto in the
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forepart of the Exchange Offer Registration Statement in a section setting
forth details of the Exchange Offer, in substantially the form set forth
in Annex C hereto in the underwriting or plan of distribution section of
the Prospectus contained in the Exchange Offer Registration Statement, and
in substantially the form set forth in Annex D hereto in the letter of
transmittal delivered pursuant to the Registered Exchange Offer;
(iii) in the case of an Exchange Offer Registration Statement,
if requested by an Initial Purchaser, include the information required by
Items 507 and 508 of Regulation S-K, as applicable, in the Prospectus
contained in the Exchange Offer Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include
the names of the Holders that propose to sell Securities or Exchange
Securities pursuant to the Shelf Registration Statement as selling
security holders.
(b) The Issuers shall ensure that:
(i) any Registration Statement and any amendment thereto and
any Prospectus forming part thereof and any amendment or supplement
thereto complies in all material respects with the Act and the rules and
regulations thereunder; and
(ii) any Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(c) The Issuers shall advise you, the Holders of Securities or the
Exchange Securities covered by any Shelf Registration Statement and any
Exchanging Dealer under any Exchange Offer Registration Statement that has
provided in writing to CNH Global a telephone or facsimile number and address
for notices (which notice pursuant to clauses (ii)-(v) hereof shall be
accompanied by an instruction to suspend the use of the Prospectus until the
Issuers shall have remedied the basis for such suspension):
(i) when a Registration Statement or any amendment thereto has
been filed with the Commission and when the Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
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(iv) of the receipt by any Issuer of any notification with
respect to the suspension of the qualification of the securities included
therein for sale in any jurisdiction or the initiation of any proceeding
for such purpose; and
(v) of the happening of any event that requires any change in
the Registration Statement or the Prospectus so that, as of such date, the
statements therein are not misleading and do not omit to state a material
fact required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in the light of the circumstances
under which they were made) not misleading.
(d) The Issuers shall use their reasonable best efforts to obtain
the withdrawal of any order suspending the effectiveness of any Registration
Statement or the qualification of the securities therein for sale in any
jurisdiction at the earliest possible time.
(e) The Issuers shall furnish to each Holder of Securities or
Exchange Securities covered by any Shelf Registration Statement, without charge,
at least one copy of such Shelf Registration Statement and any post-effective
amendment thereto, including all material incorporated therein by reference,
and, if the Holder so requests in writing, all exhibits thereto (including
exhibits incorporated by reference therein).
(f) The Issuers shall, during the Shelf Registration Period, deliver
to each Holder of Securities or Exchange Securities covered by any Shelf
Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may reasonably
request. The Issuers consent to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of securities in connection
with the offering and sale of the securities covered by the Prospectus, or any
amendment or supplement thereto, included in the Shelf Registration Statement.
(g) The Issuers shall furnish to each Exchanging Dealer which so
requests, without charge, at least one copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including all material
incorporated by reference therein, and, if the Exchanging Dealer so requests in
writing, all exhibits thereto (including exhibits incorporated by reference
therein).
(h) The Issuers shall promptly deliver to each Initial Purchaser,
each Exchanging Dealer and each other Person required to deliver a Prospectus
during the Exchange Offer Registration Period, without charge, as many copies of
the Prospectus included in such Exchange Offer Registration Statement and any
amendment or supplement thereto as any such Person may reasonably request. The
Issuers consent to the use of the Prospectus or any amendment or supplement
thereto by any Initial Purchaser, any Exchanging Dealer and any such other
Person that may be required to deliver a Prospectus following the Registered
Exchange Offer in connection with the offering and sale of the Exchange
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Securities covered by the Prospectus, or any amendment or supplement thereto,
included in the Exchange Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering of
Securities or Exchange Securities pursuant to any Registration Statement, the
Issuers shall use their best efforts to arrange, if necessary, for the
qualification of the Securities or the Exchange Securities for sale under the
laws of such jurisdictions as any Holder shall reasonably request and shall use
their best efforts to maintain such qualification in effect so long as required;
provided that in no event shall any Issuer be obligated to qualify to do
business in any jurisdiction where it is not then so qualified or to take any
action that would subject it to service of process in suits, other than those
arising out of the Initial Placement, the Registered Exchange Offer or any
offering pursuant to a Shelf Registration Statement, in any such jurisdiction
where it is not then so subject.
(j) The Issuers shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Exchange Securities
or Securities to be issued or sold pursuant to any Registration Statement free
of any restrictive legends and in such denominations and registered in such
names as Holders may request within a reasonable time prior to sales of the
Exchange Securities or sales of Securities pursuant to such Registration
Statement.
(k) Upon the occurrence of any event contemplated by subsections
(c)(ii) through (v) above, the Issuers, to the extent required, shall promptly
prepare a post-effective amendment to the applicable Registration Statement or
an amendment or supplement to the related Prospectus or file any other required
document so that, as thereafter delivered to purchasers of the Securities
included therein, the Prospectus will not 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. In such circumstances, the period of effectiveness of the
Exchange Offer Registration Statement provided for in Section 2 hereof and the
Shelf Registration Statement provided for in Section 3(b) hereof shall each be
extended by the number of days from and including the date of the giving of a
notice of suspension pursuant to Section 4(c) hereof to and including the date
when the Initial Purchasers, the Holders and any known Exchanging Dealer shall
have received such amended or supplemented Prospectus pursuant to this Section
4.
(l) Not later than the effective date of any Registration Statement,
the Issuers shall provide a CUSIP number for the Securities or the Exchange
Securities, as the case may be, registered under such Registration Statement and
provide the Trustee with printed certificates for such Securities or Exchange
Securities, in a form eligible for deposit with The Depository Trust Company.
(m) The Company shall comply with all applicable rules and
regulations of the Commission and shall make generally available to its security
holders as soon as
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reasonably practicable after the effective date of the applicable Registration
Statement an earnings statement satisfying the provisions of Section 11(a) of
the Act.
(n) The Issuers shall cause the Indenture to be qualified under the
Trust Indenture Act in a timely manner.
(o) The Company may require each Holder of securities to be sold
pursuant to any Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of such securities as the
Company may from time to time reasonably require for inclusion in such
Registration Statement. The Company may exclude from such Shelf Registration
Statement the Securities or Exchange Securities of any Holder that fails to
furnish such information within a reasonable time after receiving such request.
(p) In the case of any Shelf Registration Statement, the Issuers
shall enter into such and take all other appropriate actions (including if
requested an underwriting agreement in customary form) in order to expedite or
facilitate the registration or the disposition of the Securities or Exchange
Securities, and in connection therewith, if an underwriting agreement is entered
into, cause the same to contain indemnification provisions and procedures no
less favorable than those set forth in Section 6 (or such other provisions and
procedures acceptable to the Majority Holders and the Managing Underwriters, if
any, with respect to all parties to be indemnified pursuant to Section 6).
(q) In the case of any Shelf Registration Statement, the Issuers
shall:
(i) make reasonably available for inspection by a
representative for the Holders of Securities or Exchange Securities to be
registered thereunder, which representative shall be selected by the
Majority Holders, by the underwriters, if any, participating in any
disposition pursuant to such Registration Statement, and any attorney,
accountant or other agent for the Holders retained by the Majority Holders
or for the underwriters, if any, all relevant financial and other records,
pertinent corporate documents and properties of each Issuer and its
subsidiaries, in each case reasonably requested by such persons;
(ii) cause the officers, directors and employees of each
Issuer to supply all relevant information reasonably requested by the
representative for the Holder, by the underwriters, if any, or any such
attorney, accountant or agent in connection with any such Shelf
Registration Statement as is customary for similar due diligence
examinations; provided, however, that any information that is designated
in writing by any Issuer, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by the Holders, by
the underwriters, if any, or any such attorney, accountant or agent,
unless such disclosure is made in connection with a court proceeding or
required by law, or such information becomes available to the public
generally or through a third party without an accompanying obligation of
confidentiality;
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(iii) make such representations and warranties to the Holders
of Securities or Exchange Securities registered thereunder and the
underwriters, if any, in form, substance and scope as are customarily made
by issuers to underwriters in primary underwritten offerings as may be
reasonably requested by them;
(iv) obtain opinions of counsel to the Issuers (which counsel
and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters, if any) addressed to each
selling Holder and the underwriters, if any, covering such matters as are
customarily covered in opinions requested in underwritten offerings and
such other matters as may reasonably be requested by them;
(v) obtain "cold comfort" letters from the independent
certified public accountants of CNH Global N.V. (and, if necessary, any
other independent certified public accountants of any Issuer or any
subsidiary of any Issuer or of any business acquired by any Issuer for
which financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to the underwriters, if
any, and use reasonable efforts to have such letter addressed to each
selling Holder of Securities registered thereunder (to the extent
consistent with Statement on Auditing Standards No. 72 of the American
Institute of Certified Public Accountants), such letter to be in customary
form and covering matters of the type customarily covered in "cold
comfort" letters in connection with primary underwritten offerings; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing
Underwriters, if any, including those to evidence compliance with Section
4(k) and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Issuers.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section shall
be performed at (A) the effectiveness of such Shelf Registration Statement and
each post-effective amendment thereto; and (B) each closing under any
underwriting or similar agreement as and to the extent required thereunder.
(r) In the case of any Exchange Offer Registration Statement, upon
the reasonable request of any Initial Purchaser, the Issuers shall:
(i) make reasonably available for inspection by the Initial
Purchasers, and any attorney, accountant or other agent retained by the
Initial Purchasers, all relevant financial and other records, pertinent
corporate documents and properties of the Issuers and their respective
subsidiaries, in each case reasonably requested by such persons;
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(ii) cause the officers, directors and employees of each
Issuer to supply all relevant information reasonably requested by any
Initial Purchaser or any attorney, accountant or agent retained by the
Initial Purchasers in connection with any such Exchange Offer Registration
Statement as is customary for similar due diligence examinations;
provided, however, that any information that is designated in writing by
any Issuer, in good faith, as confidential at the time of delivery of such
information shall be kept confidential by such Initial Purchaser or any
such attorney, accountant or agent, unless such disclosure is made in
connection with a court proceeding or required by law, or such information
becomes available to the public generally or through a third party without
an accompanying obligation of confidentiality;
(iii) make such representations and warranties to the Initial
Purchasers, in form, substance and scope as are customarily made by
issuers to underwriters in primary underwritten offerings as may be
reasonably requested by them;
(iv) obtain opinions of counsel to the Issuers (which counsel
and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Initial Purchasers and their counsel, addressed to the
Initial Purchasers, covering such matters as are customarily covered in
opinions requested in underwritten offerings and such other matters as may
be reasonably requested by the Initial Purchasers or their counsel;
(v) obtain "cold comfort" letters from the independent
certified public accountants of CNH Global N.V. (and, if necessary, any
other independent certified public accountants of or any subsidiary of any
Issuer or of any business acquired by any Issuer for which financial
statements and financial data are, or are required to be, included in the
Exchange Offer Registration Statement), addressed to the Initial
Purchasers, in customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with primary underwritten
offerings, or if requested by the Initial Purchasers or their counsel in
lieu of a "cold comfort" letter, an agreed-upon procedures letter under
Statement on Auditing Standards No. 35, covering matters reasonably
requested by the Initial Purchasers or their counsel; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Initial Purchasers or their counsel, including
those to evidence compliance with Section 4(k) and with conditions
customarily contained in underwriting agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this
Section shall be performed at the close of the Registered Exchange Offer and the
effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
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(s) If a Registered Exchange Offer is to be consummated, upon
delivery of the Securities by Holders to the Company (or to such other Person as
directed by the Company) in exchange for the Exchange Securities, the Company
shall mark, or caused to be marked, on the Securities so exchanged that such
Securities are being canceled in exchange for the Exchange Securities. In no
event shall the Securities be marked as paid or otherwise satisfied.
(t) The Issuers will use their reasonable best efforts (i) if the
Securities have been rated prior to the initial sale of such Securities, to
confirm such ratings will apply to the Securities or the Exchange Securities, as
the case may be, covered by an Exchange Offer Registration Statement; or (ii) if
the Securities were not previously rated, to cause the Securities covered by a
Registration Statement to be rated with at least one nationally recognized
statistical rating agency, if so requested by Majority Holders with respect to
the related Registration Statement or by any Managing Underwriters.
(u) In the event that any Broker-Dealer shall underwrite any
Securities or Exchange Securities or participate as a member of an underwriting
syndicate or selling group or "assist in the distribution" (within the meaning
of the Conduct Rules of the National Association of Securities Dealers, Inc.
(the "Conduct Rules")) thereof, whether as a Holder or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or otherwise,
the Issuers shall assist such Broker-Dealer in complying with the requirements
of such Conduct Rules, including, without limitation, by:
(i) if such Conduct Rules shall so require, engaging a
"qualified independent underwriter" (as defined in such Conduct Rules) to
participate in the preparation of the Registration Statement, to exercise
usual standards of due diligence with respect thereto and, if any portion
of the offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or sales agent, to
recommend the yield of such Securities or Exchange Securities;
(ii) indemnifying any such qualified independent underwriter
to the extent of the indemnification of underwriters provided in Section 4
hereof;
(iii) providing such information to such Broker-Dealer as may
be required in order for such Broker-Dealer to comply with the
requirements of such Conduct Rules; and
(iv) the Issuers shall use their reasonable best efforts to
take all other steps necessary to effect the registration of the
Securities or the Exchange Securities, as the case may be, covered by a
Registration Statement.
5. Registration Expenses. The Issuers shall bear all expenses
incurred in connection with the performance of their obligations under Sections
2, 3 and 4 hereof and, in the event of any Shelf Registration Statement, will
reimburse the Holders for the reasonable
-16-
fees and disbursements of one firm or counsel designated by the Majority Holders
to act as counsel for the Holders in connection therewith, and, in the case of
any Exchange Offer Registration Statement, will reimburse the Initial Purchasers
for the reasonable fees and disbursements of one counsel acting in connection
therewith.
6. Indemnification and Contribution. (a) The Issuers jointly and
severally agree to indemnify and hold harmless each Holder of Securities or
Exchange Securities, as the case may be, covered by any Registration Statement
(including each Initial Purchaser and each Affiliate thereof and, with respect
to any Prospectus delivery as contemplated in Section 4(h) hereof, each
Exchanging Dealer), the directors, officers, employees and agents of each such
Holder and each Person who controls any such Holder within the meaning of either
the Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement as originally filed or in any amendment thereof, or
in any preliminary prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and to reimburse each
such indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Issuers will not
be liable in any case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any such Holder specifically for use therein; provided, further, that
with respect to any untrue statement or omission of material fact made in any
preliminary prospectus, the indemnity agreement contained in this Section 6(a)
shall not inure to the benefit of any Holder from whom the Person asserting any
such loss, claim, damage or liability purchased such Securities or Exchange
Securities, as the case may be, to the extent that any such loss, claim, damage
or liability of such Holder occurs under the circumstance where it shall have
been determined by a court of competent jurisdiction by final and nonappealable
judgment that (w) the Issuers had previously furnished copies of the Prospectus
to such Holder, (x) delivery of the Prospectus was required by the Act to be
made to such Person, (y) the untrue statement or omission of a material fact
contained in the preliminary prospectus was corrected in the Prospectus and (z)
there was not sent or given to such Person, at or prior to the written
confirmation of the sale of such securities to such Person, a copy of the
Prospectus. This indemnity agreement will be in addition to any liability which
the Issuers may otherwise have.
The Issuers also jointly and severally agree, and the Company
severally agrees, to indemnify or contribute as provided in Section 6(d) to
Losses of each underwriter of Securities or Exchange Securities, as the case may
be, registered under a Shelf Registration
-17-
Statement, its directors, officers, employees or agents and each Person who
controls such underwriter on substantially the same basis as that of the
indemnification of the Initial Purchasers and the selling Holders provided in
this Section 6(a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in Section 4(p)
hereof.
(b) Each Holder of securities covered by a Registration Statement
(including each Initial Purchaser, each Affiliate thereof and, with respect to
any Prospectus delivery as contemplated in Section 4(h) hereof, each Exchanging
Dealer) severally agrees to indemnify and hold harmless the Issuers and each of
their respective directors, each of their respective officers who sign such
Registration Statement and each Person who controls any Issuer within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Issuers to each such Holder, but only to the extent
that the untrue statement or omission was made in reliance upon and in
conformity with information pertaining to such Holder furnished to the Issuers
by or on behalf of such Holder specifically for use in the documents referred to
in the foregoing indemnity. This indemnity agreement will be in addition to any
liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses,
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest; (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action; or
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(iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party; provided, however, in
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel for all indemnified parties in connection with any one action
or separate but similar or related actions in the same jurisdiction arising out
of the same general obligations or circumstances. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such claim,
action, suit or proceeding and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or on behalf of any
indemnified party. An indemnifying party shall not be liable under this Section
6 to any indemnified party regarding any settlement or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent is consented to by such indemnifying party, which consent shall not be
unreasonably withheld.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party shall
have a joint and several obligation to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
"Losses") to which such indemnified party may be subject in such proportion as
is appropriate to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from the
Initial Placement and the Registration Statement which resulted in such Losses;
provided, however, that in no case shall any Initial Purchaser or any subsequent
Holder of any Security or Exchange Security be responsible, in the aggregate,
for any amount in excess of the purchase discount or commission applicable to
such Security, or in the case of a Exchange Security, applicable to the Security
that was exchangeable into such Exchange Security, as set forth on the cover
page of the Final Memorandum, nor shall any underwriter be responsible for any
amount in excess of the underwriting discount or commission applicable to the
securities purchased by such underwriter under the Registration Statement which
resulted in such Losses. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the indemnifying party and the
indemnified party shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Issuers shall be deemed to be equal to the sum of (x) the total net
proceeds from the Initial Placement (before deducting expenses) as set forth on
the cover page of the Final Memorandum and (y) the total amount of
-19-
additional interest which the Issuers were not required to pay as a result of
registering the securities covered by the Registration Statement which resulted
in such Losses. Benefits received by the Initial Purchasers shall be deemed to
be equal to the total purchase discounts and commissions as set forth on the
cover page of the Final Memorandum, and benefits received by any other Holders
shall be deemed to be equal to the value of receiving Securities or Exchange
Securities, as applicable, registered under the Act. Benefits received by any
underwriter shall be deemed to be equal to the total underwriting discounts and
commissions, as set forth on the cover page of the Prospectus forming a part of
the Registration Statement which resulted in such Losses. Relative fault shall
be determined by reference to, among other things, whether any untrue or alleged
untrue statement of or omission or alleged omission to state a material fact
relates to information provided by the indemnifying party, on the one hand, or
by the indemnified party, on the other hand, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The parties agree that it would not be just
and equitable if contribution were determined by pro rata allocation (even if
the Holders were treated as one entity for such purpose) or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), 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 6, each Person who
controls a Holder within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each Person who controls any Issuer
within the meaning of either the Act or the Exchange Act, each officer of any
Issuer who shall have signed the Registration Statement and each director of any
Issuer shall have the same rights to contribution as the Issuers, subject in
each case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
the Issuers or any of the officers, directors or controlling Persons referred to
in this Section 6, and will survive the sale by a Holder of securities covered
by a Registration Statement.
7. Underwritten Registrations. (a) If any of the Securities or
Exchange Securities, as the case may be, covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the Managing Underwriters
shall be selected by the Majority Holders and shall be reasonably acceptable to
the Company.
(b) No Person may participate in any underwritten offering pursuant
to any Shelf Registration Statement, unless such Person (i) agrees to sell such
Person's Securities or Exchange Securities, as the case may be, on the basis
reasonably provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements; and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
-20-
8. No Inconsistent Agreements. No Issuer has, as of the date hereof,
entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
9. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Issuers have obtained the written
consent of the Majority Holders; provided that, with respect to any matter that
directly or indirectly affects the rights of any Initial Purchaser hereunder,
the Issuers shall obtain the written consent of each such Initial Purchaser
against which such amendment, qualification, supplement, waiver or consent is to
be effective. Notwithstanding the foregoing (except the foregoing proviso), a
waiver or consent to departure from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose Securities or
Exchange Securities, as the case may be, are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by the Majority Holders, determined on the
basis of Securities or Exchange Securities, as the case may be, being sold
rather than registered under such Registration Statement.
10. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, facsimile or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such Holder
to the Issuers in accordance with the provisions of this Section 10, which
address initially is, with respect to each Holder, the address of such
Holder maintained by the Registrar under the Indenture, with a copy in
like manner to Deutsche Bank Securities Inc.;
(b) if to you, initially at the respective addresses set forth in
the Amended and Restated Purchase Agreement; and
(c) if to the Issuers, initially at their address set forth in the
Amended and Restated Purchase Agreement.
All such notices and communications shall be deemed to have been
duly given when received.
The Initial Purchasers or the Issuers by notice to the other parties
may designate additional or different addresses for subsequent notices or
communications.
11. Successors. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties hereto,
including, without the need for an express assignment or any consent by the
Issuers thereto, subsequent Holders of
-21-
Securities and the Exchange Securities; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of the Securities
or Exchange Securities in violation of the terms of the Amended and Restated
Purchase Agreement or the Indenture. The Issuers hereby agree to extend the
benefits of this Agreement to any Holder of Securities or the Exchange
Securities, and any such Holder may specifically enforce the provisions of this
Agreement as if an original party hereto.
12. Counterparts. This Agreement may be signed in counterparts, each
of which shall be an original and all of which together shall constitute one and
the same agreement.
13. Headings. The headings used herein are for convenience only and
shall not affect the construction hereof.
14. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in the State of New York.
15. Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
16. Securities Held by the Issuers, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
or Exchange Securities is required hereunder, Securities or Exchange Securities,
as applicable, held by any Issuer or its Affiliates (other than subsequent
Holders of Securities or Exchange Securities if such subsequent Holders are
deemed to be Affiliates solely by reason of their holdings of such Securities or
Exchange Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
17. Agent for Service; Submission to Jurisdiction; Waiver of
Immunities. By the execution and delivery of this Agreement, each Issuer (i)
acknowledges that such Issuer has, by separate written instrument, irrevocably
designated and appointed CT Corporation, 111 Eighth Avenue, 13th Floor, New
York, New York 10011 (and any successor entity), as its authorized agent upon
which process may be served in any suit or proceeding arising out of or relating
to this Agreement, the Securities or the Exchange Securities that may be
instituted in any federal or state court in the State of New York or brought
under Federal or state securities laws, and acknowledges that CT Corporation has
accepted such designation, (ii) submits to the jurisdiction of any such court in
any such suit or proceeding, and (iii) agrees that service of process upon CT
Corporation and written notices of said service to such Issuer in accordance
with Section 10 hereof shall be deemed effective service of process upon
-22-
it in any such suit or proceeding. Each Issuer further agrees to take any
reasonable action, including the execution and filing of any and all such
documents and instruments, as may be necessary to continue such designation and
appointment of CT Corporation in full force and effect so long as any of the
Securities shall be outstanding; provided, however, that such Issuer may, by
written notice to the Initial Purchasers, designate such additional or
alternative agent for service of process under this Section 17 that (i)
maintains an office located in the Borough of Manhattan, City of New York in the
State of New York and (ii) is either (x) counsel for such Issuer or (y) a
corporate service company which acts as agent for service of process for other
persons in the ordinary course of its business. Such written notice shall
identify the name of such agent for process and the address of the office of
such agent for process in the Borough of Manhattan, City of New York, State of
New York.
To the extent that any Issuer has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process with respect
to itself or its property, it hereby irrevocably waives such immunity in respect
of its obligations under each of this Agreement, the Securities and the Exchange
Securities. In addition, each Issuer irrevocably waives and agrees not to
assert, by way of motion, as a defense, or otherwise in any such suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of
the above-mentioned courts for any reason whatsoever, that such suit, action or
proceeding is brought in an inconvenient forum or that the venue for such suit
is improper, or that this Agreement, the Securities or the Exchange Securities
or the subject matter hereof or thereof may not be enforced in such courts.
The Issuers and the Initial Purchasers agree that a final judgment
in any such suit, action or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on the judgment or in any other manner provided
by law. Nothing in this Section 17 shall affect the right of the Trustee to
serve legal process in any other manner permitted by law or affect the right of
the Trustee to bring any action or proceeding against any Issuer or its property
in the courts of any other jurisdictions.
18. Judgment Currency. The Issuers, jointly and severally, agree to
indemnify and hold harmless each Holder (including each Initial Purchaser and
each Affiliate thereof and, with respect to any Prospectus delivery as
contemplated by Section 4(h) hereof, each Exchanging Dealer), the directors,
officers, employees and agents of each such Holder and each Person who controls
any such Holder within the meaning of either the Act or the Exchange Act against
any loss incurred by such indemnified party as a result of any judgment or order
being given or made in favor of such indemnified party for any amount due under
this Agreement and such judgment or order being expressed and paid in a currency
(the "Judgment Currency") other than United States dollar and as a result of any
variation as between (i) the rate of exchange at which the United States dollar
amount is converted into the Judgment Currency for the purpose of such judgment
or order and (ii) the spot rate of exchange in The City of New York at which
such indemnified party on the date of payment of such judgment or order is able
to purchase United States dollars with the amount of the Judgment Currency
actually received by such indemnified party. The foregoing indemnity
-23-
shall continue in full force and effect notwithstanding any such judgment or
order as aforesaid. The term "spot rate of exchange" shall include any premiums
and costs of exchange payable in connection with the purchase of, or conversion
into, United States dollars.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement among the
Issuers and the several Initial Purchasers.
Very truly yours,
CASE NEW HOLLAND INC.
By: /s/ Paolo Monferino
---------------------------------------------
Name: Paolo Monferino
Title: President and Chief Executive Officer
GUARANTORS:
CNH GLOBAL N.V.
By: /s/ Paolo Monferino
---------------------------------------------
Name: Paolo Monferino
Title: President and Chief Executive Officer
CNH U.K. LIMITED
By: /s/ Colin Cantello
---------------------------------------------
Name: Colin Cantello
Title: Director
NEW HOLLAND HOLDING LIMITED
By: /s/ Roberto Miotto
---------------------------------------------
Name: Roberto Miotto
Title: Director
CNH CANADA, LTD.
By: /s/ Michel Lecomte
---------------------------------------------
Name: Michel Lecomte
Title: President
CNH AUSTRALIA PTY LTD
By: /s/ Frank Anglin /s/ Stuart Redman
--------------------------------------------
Name: Frank Anglin/Stuart Redman
Title: Director / Director
CNH BELGIUM N.V.
By: /s/ Anna Mangelschots
---------------------------------------------
Name: Anna Mangelschots
Title: Director
-2-
NEW HOLLAND TRACTOR LIMITED N.V.
By: /s/ Jean Pierre Van Damme
---------------------------------------------
Name: Jean Pierre Van Damme
Title: Managing Director
CNH DEUTSCHLAND GMBH
By: /s/ Paolo Castagna /s/ Gerhard Boning
---------------------------------------------
Name: Paolo Castagna/Gerhard Boning
Title: Managing Director/Managing Director
CNH TRADE N.V.
By: /s/ Giovanni Maggiora
---------------------------------------------
Name: Giovanni Maggiora
Title: Director
FIATALLIS NORTH AMERICA, INC.
By: /s/ James E. McCullough
---------------------------------------------
Name: James E. McCullough
Title: Chairman and President
CNH AMERICA LLC
By: /s/ Paolo Monferino
--------------------------------------------
Name: Paolo Monferino
Title: President and Chief Executive Officer
HFI HOLDINGS, INC.
By: /s/ Michel Lecomte
--------------------------------------------
Name: Michel Lecomte
Title: President and Chief Financial Officer
-3-
CNH INFORMATION TECHNOLOGY COMPANY LLC
By: /s/ James E. McCullough
---------------------------------------------
Name: James E. McCullough
Title: President and Chief Executive Officer
BLI GROUP, INC.
By: /s/ Roberto Miotto
---------------------------------------------
Name: Roberto Miotto
Title: Chief Executive Officer
BLUE LEAF I.P., INC.
By: /s/ Roberto Miotto
---------------------------------------------
Name: Roberto Miotto
Title: Chief Executive Officer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
DEUTSCHE BANK SECURITIES INC.
By: /s/ Jeffrey A. Baker
-------------------------
Name: Jeffrey A. Baker
Title: Managing Director
By: /s/ Christopher Kinslow
-------------------------
Name: Christopher Kinslow
Title: Managing Director
ANNEX A
Each Broker-Dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The Letter
of Transmittal states that by so acknowledging and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Act. This Prospectus, as it may be amended or supplemented from
time to time, may be used by a Broker-Dealer in connection with resales of
Exchange Securities received in exchange for Securities where such Securities
were acquired by such Broker-Dealer as a result of market-making activities or
other trading activities. The Issuers have agreed that, starting on the
Expiration Date (as defined herein) and ending on the close of business one year
after the Expiration Date, they will make this Prospectus available to any
Broker-Dealer for use in connection with any such resale. See "Plan of
Distribution".
ANNEX B
Each Broker-Dealer that receives Exchange Securities for its own
account in exchange for Securities, where such Securities were acquired by such
Broker-Dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution".
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Issuers have agreed
that, starting on the Expiration Date and ending on the close of business [one
year] after the Expiration Date, they will make this Prospectus, as amended or
supplemented, available to any Broker-Dealer for use in connection with any such
resale. In addition, until __________, 200__, all dealers effecting transactions
in the Exchange Securities may be required to deliver a prospectus.
The Issuers will not receive any proceeds from any sale of Exchange
Securities by Brokers-Dealers. Exchange Securities received by Broker-Dealers
for their own account pursuant to the Exchange Offer may be sold from time to
time in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such Broker-Dealer and/or the purchasers of any such
Exchange Securities. Any Broker-Dealer that resells Exchange Securities that
were received by it for its own account pursuant to the Exchange Offer and any
broker or dealer that participates in a distribution of such Exchange Securities
may be deemed to be an "underwriter" within the meaning of the Act and any
profit of any such resale of Exchange Securities and any commissions or
concessions received by any such Persons may be deemed to be underwriting
compensation under the Act. The Letter of Transmittal states that by
acknowledging that it will deliver and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Act.
For a period of one year after the Expiration Date, the Issuers will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any Broker-Dealer that requests such documents
in the Letter of Transmittal. The Issuers have agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
holder of the Securities) other than commissions or concessions of any brokers
or dealers and will indemnify the holders of the Securities (including any
Broker-Dealers) against certain liabilities, including liabilities under the
Act.
[If applicable, add information required by Regulation S-K Items 507
and/or 508.]
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name: ___________________________
Address: ___________________________
___________________________
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the Exchange Securities in the ordinary course of its business, it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities and it has no arrangements or understandings with any Person to
participate in a distribution of the Exchange Securities. If the undersigned is
a Broker-Dealer that will receive Exchange Securities for its own account in
exchange for Securities, it represents that the Securities to be exchanged for
Exchange Securities were acquired by it as a result of market-making activities
or other trading activities and acknowledges that it will deliver a prospectus
in connection with any resale of such Exchange Securities; however, by so
acknowledging and by delivering a prospectus, the undersigned will not be deemed
to admit that it is an "underwriter" within the meaning of the Act.