EXHIBIT 5.5
[NAUTADUTILH N.V. LETTERHEAD]
P.O. Box 1110
3000 BC Rotterdam
Weena 750
3014 DA Rotterdam Rotterdam, April 29, 2005
T +31 10 224 00 00
F +31 10 414 84 44
Case New Holland Inc.
Bart Th. Derogee CNH Global N.V.
T 224 03 81 Tower B, 10th Floor
F 224 05 55 World Trade Center,
bart.derogee@nautadutilh.com Amsterdam Airport
Schiphol Boulevard
217
1118 BH Amsterdam
The Netherlands
Ladies and Gentlemen,
Case New Holland Inc.
U.S.$ 500,000,000 6% Senior Notes due 2009 and
U.S. $ 1,050,000,000 9 1/4% Senior Notes due 2011
We refer to 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 (together
with the Parent, the "Guarantors"), including the subsidiary CNH Trade N.V.
(together with the Parent, the "Dutch 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 Guarantors and JPMorgan 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
Guarantors and the Trustee.
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We have examined and relied upon copies of the following documents:
(a) the Registration Statement;
(b) the Indentures;
(c) the forms of New Notes;
(d) the forms of Guarantees; and
(e) Resolutions of the Board of Directors of each of the Dutch Guarantors.
In rendering the opinions expressed herein, we have exclusively reviewed and
relied upon the above mentioned documents. We have not investigated or verified
any factual matter disclosed to us in the course of our review.
This opinion letter is strictly limited to the matters stated herein and may not
be read as extending by implication to any matters not specifically referred to
herein. Nothing in this opinion letter should be taken as expressing an opinion
in respect of any representations or warranties, or other information, contained
in the Registration Statement and/or the Indentures or any other document
examined in connection with this opinion except as expressly confirmed herein.
The opinions and statements expressed in this opinion letter are limited in all
respects to and shall be construed and interpreted in accordance with Dutch law.
Unless otherwise specifically stated herein, we do not express any opinion on
public international law or on the rules promulgated under or by any treaty or
treaty organization, except insofar as such rules are directly applicable in the
Netherlands, nor do we express any opinion on Dutch or European competition law
or tax law. No undertaking is assumed on our part to revise, update or amend
this opinion letter in connection with or to notify or inform you of any
developments and/or changes under Dutch law subsequent to its date.
This opinion letter may only be relied upon on the condition that the legal
relationship between the addressees and NautaDutilh N.V. shall be governed by
Dutch law and that any issues of interpretation or liability thereunder shall be
submitted to the exclusive jurisdiction of the competent courts at Rotterdam,
The Netherlands.
In our examination of all documents, we have assumed that:
(a) all natural persons had the requisite legal capacity;
(b) all signatures are genuine;
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(c) all documents submitted to us as originals are complete and authentic
and all certified, telecopied or other copies submitted to us for
examination conform to the originals;
(d) none of the Dutch Guarantors has been dissolved (ontbonden), ceased to
exist pursuant to a merger (fusie) or a division (splitsing), its
assets placed under administration (onder bewind gesteld), been granted
suspension of payments (surseance van betaling verleend) or declared
bankrupt (failliet verklaard) or been made subject to similar
insolvency proceedings in other jurisdictions, it being noted that our
inquiries made today by telephone with the bankruptcy register of the
Amsterdam Court of First Instance and the Commercial Register of
Amsterdam have revealed no information to the contrary, but it should
be noted that a time lapse exists between the occurrence of those
events and the registration thereof in the registers and that as a
result this is not conclusive evidence that no such events have
occurred;
(e) the Resolutions have not been revoked, amended or terminated.
Based upon the foregoing and subject to the qualifications set forth below, we
are of the opinion that:
1. Each of the Dutch Guarantors has been duly incorporated and is validly
existing under the laws of The Netherlands.
2. Each of the Dutch Guarantors has the requisite power and authority to
execute, deliver and perform its obligations under the Indentures and
the Guarantees.
3. The Indentures have been duly authorized, executed and delivered by
each of the Dutch Guarantors.
4. The Guarantees have been duly authorized by each of the Dutch
Guarantors.
The opinions expressed above are subject to the following qualifications:
(A) This opinion is limited by any applicable bankruptcy, insolvency and
other similar laws affecting the rights of creditors in general and by
statutory provisions with regard to fraudulent preference.
(B) Under Dutch law the performance of a due obligation prior to the
bankruptcy of a debtor may be avoided if the creditor knew that a
petition for the bankruptcy of the debtor had been filed or in certain
circumstances where the performance of the obligation resulted from
consultation between
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the debtor and the creditor with a view to create a preference over
other creditors of the debtor.
(C) Under Dutch law, a transaction with a creditor entered into voluntary
is subject to avoidance if the debtor knew or should have known that
the transaction would prejudice one or more of its other creditors.
Such knowledge is assumed by law if the transaction has been entered
into less than one year prior to the bankruptcy of the debtor. If the
transaction is entered into for consideration, it may only be avoided
if the creditor also knew or should have known that the transaction
would prejudice the debtor's other creditors. Knowledge of the creditor
and the debtor that a transaction would prejudice other creditors of
the debtor is presumed by law if such transaction has been entered into
less than one year prior to the bankruptcy of the debtor or within one
year before the date the claim for fraudulent conveyance is made,
unless the transaction is entered into pursuant to an obligation
existing prior to such one year period, if it is also established that
one of the conditions referred to in article 2:46 of the Dutch Civil
Code or, respectively, article 43 of the Dutch Bankruptcy Act is
fulfilled. These conditions include, but are not limited to situations
where (i) the value of the obligation of the debtor materially exceeds
the value of the obligation of the creditor; (ii) the debtor pays or
grant security for debts which are not yet due; (iii) an agreement is
made or an obligation arises from one legal entity to another if a
director of one of these legal entities is also a director of the
other; or (iv) an agreement is made with a group company. The avoidance
may only be invoked by a creditor whose recourse position is affected
or by the receiver ("curator") in a bankruptcy of the debtor.
(D) As regards the guarantee given by CNH Trade N.V. it should be noted
that, under Article 2:7 of the Dutch Civil Code, a transaction entered
into by a legal entity may be avoided if the objects of that entity are
thereby exceeded and the other party was or should, without making its
own enquiries, have been aware thereof. Only the legal entity can
invoke this ground for avoidance.
There is uncertainty as to the question of when the objects of a legal
entity are exceeded (i.e., when a transaction is ultra vires). The
Dutch Supreme Court has ruled that in determining whether a certain
transaction is ultra vires all circumstances must be taken into account
and that the manner in which the objects have been defined in a
company's articles of association is not the only decisive factor.
The fact that a company forms part of a group of companies may be
another relevant factor.
Several legal writers take the view that the acts of a company should
be in the actual interest of that company in the sense that they are
conducive to the realisation of the objects of the company as laid down
in its articles of association. A number of those writers are of the
opinion that the giving of guarantees and granting of security for the
debt of a third party is in principle
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- in the absence of circumstances which indicate the contrary - ultra
vires. According to most writers referred to above, circumstances which
indicate the contrary may exist in a situation where a company forming
part of a group of companies directly or indirectly benefits from the
fact that another company forming part of the same group incurs a debt
for which the former company gives a guarantee.
Case-law and literature do not offer much guidance in determining to
what extent group companies must have benefited to qualify for having
acted within the scope of their objects clause.
This opinion is being delivered to you in connection with the Registration
Statement and is not to be used, circulated, quoted or otherwise referred to for
any other purpose without our prior written authorization. Sidly Austin Brown &
Wood LLP may rely on this opinion with respect to matters governed by Dutch law
for purposes of its opinion to you dated on or about the date hereof. We hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement and to the use of our name under the caption "Legal Matters" in the
prospectus contained therein. In giving such consent, we do not thereby admit
that we come within the category of persons whose consent is required under
Section 7 of the Securities Act, or under the rules and regulations of the
Commission thereunder.
Very truly yours,
For and on behalf of
NautaDutilh N.V.
/s/ Bart Th. Derogee
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Bart Th. Derogee
NautaDutilh N.V. has its seat at Rotterdam, The Netherlands and is registered in
the Commercial Register in Rotterdam under number 24338323. All services and
other work are carried out under a contract for professional services
("overeenkomst van opdracht") with NautaDutilh N.V., subject to the general
conditions of NautaDutilh N.V. These general conditions include, among other
provisions, a limitation of liability clause and have been filed with the
Rotterdam Court of First Instance. They can be consulted at www.nautadutilh.com
and will be provided free of charge upon request.