EXHIBIT 5.3
[ALTIUS LAW FIRM LETTERHEAD]
To: Case New Holland Inc.
CNH Global N.V.
Tower B, 10th Floor
World Trade Center, Amsterdam Airport
Schiphol Boulevard 217
1118 BH Amsterdam
The Netherlands
29 April 2005
Dear Sirs,
Re: Case New Holland Inc.
$ 500,000,000 6% Senior Notes due 2009 and
$ 1,050,000,000 9 1/4% Senior Notes due 2011
We have acted as special Belgian counsel to CNH Belgium NV and New Holland
Tractor Limited NV, two Belgian limited liability companies ("naamloze
vennootschap"/"societe anonyme") with registered offices at 8210 Zedelgem, Leon
Claeysstraat 3a (Registry of Legal Entities of Bruges 59.658) and 2030
Antwerpen, Wilmarsdonksteenweg 32 (Registry of Legal Entities 173.949),
respectively, (hereinafter together referred to as the "BELGIAN GUARANTORS" and
individually as "BELGIAN GUARANTOR"), in connection with the Registration
Statement on Form F-4 (the "REGISTRATION STATEMENT") being filed by Case New
Holland Inc., a Delaware corporation (the "COMPANY"), CNH Global, N.V., a
Netherlands public limited liability company (the "PARENT"), and certain
subsidiaries of the Parent named therein (the "GUARANTORS"), including the
Belgian Guarantors with the Securities and Exchange Commission (the
"COMMISSION") under the Securities Act of 1933, as amended (the "SECURITIES
ACT"), relating to the registration of $ 500,000,000 principal amount of the
Company's 6% Senior Notes due 2009 (the "NEW 6% NOTES") and $ 1,050,000,000
principal amount of the Company's 9 1/4% Senior Notes due 2011 (the "NEW 9 1/4
NOTES" and, together with the New 6% Notes, the "NEW NOTES"), which are to be
offered in exchange for an equivalent principal amount of presently outstanding
6% Senior Notes due 2009 (the "OLD 6% NOTES") and 9 1/4% Senior Notes due 2011
(the "OLD 9 1/4 NOTES" and, together with the Old 6% Notes, the "OLD NOTES"),
respectively, all as more fully described in the Registration Statement. The Old
Notes are, and the Exchange Notes will be, guaranteed (the "GUARANTEES") by the
Guarantors. Old Notes that are accepted in exchange for New Notes will be
cancelled and retired.
The Old 6% Notes were and the New 6% Notes will be issued under the Indenture,
dated as of May 18, 2004 (the "6% NOTES INDENTURE"), by and among the Company,
the Parent, the Guarantors and JP Morgan Chase Bank, as trustee (the "TRUSTEE").
The Old 9 1/4% Notes were and the New 9 1/4% Notes will be issued under the
Indenture, dated as of August 1, 2003, as supplemented by the First Supplemental
Indenture dated as of
September 16, 2003 (the "9 1/4 NOTES INDENTURE" and, together with the 6% Notes
Indenture, the "INDENTURES"), by and among the Company, the Parent, the
Guarantors and the Trustee.
The Registration Statement and the forms of Guarantees are referred to hereafter
as the transaction documents (the "TRANSACTION DOCUMENTS").
In our capacity as special counsel, we are not generally familiar with the
affairs of the Company, and the opinion below is based only on the
investigations and subject to the limits stated herein.
Except as otherwise indicated herein, capitalised terms used in this opinion are
defined as set forth in the Purchase Agreement between Case New Holland Inc.,
the guarantors named therein and Deutsche Bank Securities Inc. as representative
of the Initial Purchasers on May 3rd 2004 (the "PURCHASE AGREEMENT").
The law covered by this opinion is limited to the laws of Belgium on the date
hereof and as generally interpreted as of the same date. We express no opinion
on European Community law as it affects any jurisdiction other than Belgium nor
on tax law unless if expressly mentioned in this opinion.
The assumptions and qualifications made in our legal opinions dated 17 May 2004
and 16 September 2003 are incorporated by way of reference in this legal
opinion, as if such assumptions and qualifications were set out in this legal
opinion in full.
For the purpose of rendering this opinion, we have examined and relied
exclusively upon the following documents:
(i) the Registration Statement;
(ii) the forms of Guarantees;
(iii) the Indentures;
(iv) the forms of New Notes;
(v) the co-ordinated articles of association most recently filed on 30 May
2002 with the Clerk of the Commercial Court of Bruges of CNH Belgium
NV;
(vi) the co-ordinated articles of association most recently filed on 13
February 2001 with the Clerk of the Commercial Court of Antwerp of New
Holland Tractor Limited NV;
(vii) all publications made by CNH Belgium NV in the Annexes to the Belgian
State Gazette ("Moniteur Belge"/"Belgisch Staatsblad"), available at
the date of this opinion;
(viii) all publications made by New Holland Tractor Limited NV in the Annexes
to the Belgian State Gazette ("Moniteur Belge"/"Belgisch Staatsblad"),
available at the date of this opinion;
(ix) a copy of the resolutions of the Board of Directors of CNH Belgium NV,
dated 12 May 2004 and 12 September 2003 and of New Holland Tractor
Limited NV, dated 12 May 2004 and 12 September 2003;
(x) a copy of the resolutions of the Board of Directors of CNH Belgium NV,
dated 25 April 2005, authorising the execution of the Transaction
Documents and the
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transactions contemplated thereby and appointing each director of CNH
Belgium NV as signatory(ies) for the execution of the Transaction
Documents; and
(xi) a copy of the resolutions of the Board of Directors of New Holland
Tractor Limited NV, dated 25 April 2005, authorising the execution of
the Transaction Documents and the transactions contemplated thereby and
appointing each director of New Holland Tractor Limited NV as
signatory(ies) for the execution of the Transaction Documents.
We assume that the Transaction Documents have been or will be executed by the
persons authorised to execute the Transaction Documents.
We assume that the Guarantees will be executed in a form substantially similar
to the form provided for in the Indentures.
In preparing this opinion we have assumed without investigation that the
Transaction Documents are valid, binding and enforceable against all parties
thereto other than the Belgian Guarantors, in accordance with their terms.
We have also assumed that the terms and provisions of the Indentures and of the
Guarantees have not been altered or will not be since their execution, and no
party has taken or will take any decision or action or entered into any
agreement that would affect the terms and conditions of the Indentures and the
Guarantees.
We have further assumed that:
(a) the entering into the Transaction Documents is in the corporate
interest of the Belgian Guarantors;
(b) there will be no increase in the guarantee amount of the Guarantee
within the framework of the New Notes and that the Guarantee is less
likely to be enforced compared to the Guarantee that has been granted
within the framework of the Old Notes;
(c) the conduct of the parties to the Transaction Documents has complied
and will continue to comply with any requirement of good faith, fair
dealing and has not violated the public order and good morals;
(d) the Registration Statement has been signed on or prior to the date of
this opinion by the persons mentioned in the Registration Statement to
be the signatory of such Document;
(e) there are no agreements or understandings, written or oral, and no
usage of trade or course of prior dealing that would, in either case,
define, supplement, change or qualify the terms of the Transaction
Documents;
(f) the confirmation given by the Clerk of the Commercial Court of Bruges
during a telephone conversation on 29 April 2005 that CNH Belgium NV
has not been declared bankrupt nor has it been subject to any judicial
and collective settlement procedure with its creditors in Belgium
during that period is correct; and
(g) the confirmation given by the Clerk of the Commercial Court of Antwerp
during a telephone conversation on 29 April 2005 that New Holland
Tractor Limited NV has not been declared bankrupt nor has it been
subject to any judicial and collective settlement procedure with its
creditors in Belgium during that period is correct;
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Based upon the foregoing and subject to the qualifications made below, we are of
the opinion that:
(i) The Belgian Guarantors are duly organized, validly existing and in good
standing under the Laws of Belgium;
(ii) The Belgian Guarantors had the requisite power and authority to
execute, deliver and perform their obligations under the Indentures and
the Guarantees at the time of execution;
(iii) The Indentures have been duly authorized, executed and delivered by the
Belgian Guarantors;
(iv) The Guarantees of the Belgian Guarantors are in the form contemplated
by the Indenture, have been duly authorized by the Belgian Guarantors
and, when executed by the Belgian Guarantors and endorsed on the Notes
in the manner provided in the Indenture will constitute valid and
binding obligations of the Belgian Guarantors, enforceable against the
Belgian Guarantors in accordance with their terms.
Our opinion is subject to the following qualifications.
1 Enforcement of foreign judicial decisions
A final judgement against the Belgian Guarantors rendered by a court of
competent jurisdiction of the State of New York in respect of the
Transaction Documents would only be recognised and enforced in Belgium
after review of the merits of the case by a Court of First Instance in
Belgium and if such Belgian Court of First Instance is satisfied that
the following conditions, set forth in Article 570 of the Belgian
Judicial Code, are fulfilled:
(a) the judgement is not contrary to Belgian public policy or
rules of Belgian public law;
(b) the rights of defence of the defendant have been respected;
(c) the court which has rendered the judgement was not competent
for the sole reason of the nationality of the plaintiff;
(d) the judgement is final pursuant to the laws of the State of
New York; and
(e) the certified copy of the judgement delivered to the Belgian
Court meets the requirement for being authentic pursuant to
the laws of the State of New York or the applicable procedural
rules.
It is generally accepted that the review of the merits of the case is a
general verification to ensure that "minimum" standards of law have
been respected before allowing a foreign judgement to be enforced in
Belgium.
With regard to the enforcement of foreign judicial decisions in
Belgium:
(a) Belgian courts may require an official translation of any
documents not in the procedural language used by the Belgian
Court (i.e., French, Dutch or German); and
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(b) a registration tax of 3% is due on any sum of money exceeding
EUR 12,500 which a debtor is ordered to pay by a judgement
rendered enforceable in Belgium. Both the debtor(s) and the
creditor(s) are responsible for the payment of the
registration tax, it being understood that the maximum
liability of the creditor(s) is fixed at half of the sum for
which judgement is given in its (their) favour and of which
payment is obtained. In order to secure payment of the
registration tax (and possible fines) the tax administration
has a priority right on the sums for which judgement is given.
2 Conflict of interest
A transaction may be declared null and void if the other party knew or
should have known that a decision by the Board of Directors of each of
the Belgian Guarantors has been taken in violation of the conflict of
interest rules as provided in Article 523 Company Code or provides a
wrongful or unlawful financial advantage to any of the directors of
each of the Belgian Guarantors.
3 Trust
Failing any established concept of "trust" or "trustee" under the
present Belgian legal system, we express no opinion on the precise
nature, effect and enforceability in Belgium of the duties, rights and
powers of the trustee and performance or exercise thereof.
4 Insolvency
Applicable bankruptcy, insolvency, liquidation, moratorium,
reorganisation or other laws relating to fraudulent conveyances,
judicial decisions or principles of equity relating to or affecting the
enforcement of creditor's rights or contractual obligations generally,
including statutes of limitation, may affect the enforceability of the
obligations of the Belgian Guarantors under the Transaction Documents.
5 Set-off
Belgian bankruptcy and moratorium law does not permit post-insolvency
set-off. Claims against the Belgian Guarantors which become due and
payable on or after the bankruptcy or request for a moratorium of the
Belgian Guarantors -- including any claim for indemnities triggered by
the bankruptcy or moratorium -- are therefore not eligible for set-off.
There is an exception to the general prohibition of set-off after
bankruptcy, applicable when mutual debts are closely interrelated. It
must be said that case law is not always consistent in its application
of the "close interrelation" test.
If the European Regulation nr.1346/2000 regarding insolvency
proceedings applies, and the law that governs the debt allows set-off
in case of insolvency, Belgian receiver must allow set-off.
6 Belgian Laws of International Public Policy
It is uncertain whether the rules of Belgian law mentioned below would
be considered as rules of international public policy. The
enforceability in Belgium of the provisions of the Old Notes and the
New Notes mentioned below is therefore also uncertain.
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6.1 Belgian legal provisions on loan agreements
Under Belgian law:
(a) late payment interest may not accrue on any overdue amount at
a rate exceeding the aggregate of 0.5% per annum and the rate
of interest accruing on the principal amount when not overdue
(article 1907 of the Civil Code);
(b) prepayment fees may not exceed six months of interest on the
prepaid amount, calculated at the rate of interest accruing on
the principal amount (article 1907bis of the Civil Code);
6.2 Interest on Interest
Article 1154 of the Belgian Civil Code provides that a creditor may not
claim interest on overdue interest, unless:
(a) the overdue interest has accrued over a period of more than
one year, and
(b) the interest has formally been claimed by the creditor, or the
debtor has agreed to pay it, after such period has effectively
passed.
6.3 Liquidated damages
Liquidated damages may not be upheld or reduced by a Belgian court if
they are deemed to constitute a penalty, i.e., when they exceed the
damages which, at the time of signing the agreement providing for such
liquidated damages, could have been foreseen by the parties as a result
of an event of default under the Transaction Documents, so that the
party in favour of which such damages are stipulated would derive a
larger benefit in case of default of the other party than in case of
proper performance of the Transaction Documents.
6.4 Good faith and discretionary rights
Any determinations or certificates made or given by a party in its own
discretion pursuant to the provisions of the Transaction Documents and
which are under such Transaction Documents to be final, conclusive or
binding, might be held not to be final, conclusive or binding if such
determination or certificate could be shown to have been incorrect,
unreasonable or arbitrary or not to have been given or made in good
faith.
7 Further qualifications
This opinion is further subject to the effect of generally applicable
rules of law that:
(a) may restrict the enforceability of provisions limiting,
releasing, exculpating or exempting a party from, or requiring
indemnification of a party for, liability for its own action
or inaction, to the extent the action or inaction involves
wilful negligence or misconduct, fraud or unlawful conduct.
The enforceability of such provisions may also be restricted
in cases where they have the effect of discharging a party of
its obligations and depriving the obligations assumed by such
party of any significance;
(b) may, where less than all of a contract may be unenforceable,
limit the enforceability of the balance of the contract to
circumstances in which the unenforceable portion is not an
essential part of the contract; and
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(c) authorise Belgian courts to grant payment terms to debtors in
exceptional circumstances.
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This opinion letter is limited to the laws of Belgium. The Courts of Brussels
shall have exclusive jurisdiction should a controversy arise as a result of this
opinion. We assume no obligation to update or supplement this letter to reflect
any facts or circumstances which may hereafter come to our attention with
respect to the opinions expressed above, including any changes in applicable law
which may hereafter occur.
We assume no obligation to advise you (or any other person entitled to rely on
this opinion) of subsequent changes in, or in the interpretation of, Belgian
law.
This opinion is rendered solely to you and for your exclusive benefit and may
not, without our prior written consent, be used, circulated, quoted or referred
to by any other person or entity or for any other purpose than in connection
with the transactions contemplated in the Transaction Documents. However, Sidley
Austin Brown & Wood LLP may rely upon this opinion as if it were addressed to
them within the limits specified above.
We hereby consent to the filing of this opinion letter as an Exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters". In giving such consent, we do not thereby admit that we are within the
category of persons for whom consent is required by Section 7 of the Securities
Act or the related rules promulgated by the Commission thereunder.
Yours faithfully,
/s/ Christophe Ronse /s/ Johan De Bruycker
Christophe Ronse Johan De Bruycker
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