Exhibit 5.7
[PAYNE HICKS BEACH LETTERHEAD]
Telephone General Fax e-mail
020 7465 4300 020 7465 4400 wdavis@paynehicksbeach.co.uk
Your reference Our reference
WXD/CW/27695.10 28 April 2005
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
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
Dear Sirs,
In this letter:-
(i) The following words and phrases have the meanings respectively defined
therefor below:
"the Guarantees" means the guarantees to be
entered into by, inter alia,
NHH in the circumstances and
for the purposes referred to
in this letter below and in
the form of the guarantee
set out in the Indenture
dated 1 August 2003, as
supplemented by the First
Supplemental Indenture dated
16 September 2003 and the
Indenture dated 18 May 2004.
"the Indentures" means (i) the Indenture
dated 1 August 2003 and
entered into by and among
(1) CNH Inc., (2) various
companies named and defined
respectively therein as the
Guarantors including, among
others, NHH, and (3) JP
Morgan Chase Bank as
trustee, (ii) the First
Supplemental Indenture dated
16 September
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2003 and entered into
between (1) CNH Inc., (2)
various companies named and
defined in the Indenture
dated 1 August 2003 as the
Guarantors including , among
others NHH, and (3) JP
Morgan Chase Bank as trustee
and being expressed to be
and being supplemental to
the Indenture dated 1 August
2003, and (iii) the
Indenture dated 17 May 2004
and entered into by and
among (1) CNH Inc., (2)
various companies named and
defined therein as the
Guarantors including, among
others, NHH and (3) JP
Morgan Chase Bank as
trustee.
"NHH" means New Holland Holding
Limited a private limited
liability company
incorporated under the law
of England and Wales and
registered in England and
Wales under registration
number 02707274 and being a
subsidiary of the Parent.
"the Purchase Agreements" means (i) the Purchase
Agreement dated 29 July 2003
and entered into by and
among Citigroup Global
Markets Inc., Deutsche Bank
Securities Inc. and UBS
Securities LLC, as
representatives of the
several parties named in
Schedule I thereto, CNH
Inc., CNH Global N.V., and
certain of CNH Global's
direct and indirect
subsidiaries listed in
Schedule II thereto (ii) the
Purchase Agreement dated 5
September 2003 and entered
into by and among UBS
Securities LLC, CNH Inc.,
CNH Global N.V., and certain
of CNH Global N.V.'s direct
and indirect subsidiaries
listed in Schedule II
thereto, and (iii) the
Purchase Agreement dated 3
May 2004 and entered into by
and among Deutsche Bank
Securities Inc., CNH Inc.,
CNH Global N.V., and certain
of CNH Global N.V.'s direct
and indirect subsidiaries
listed in Schedule II
thereto.
"the Registration Rights Agreements" means (i) the Registration
Rights Agreement dated 1
August 2003 and entered into
by and
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among Citigroup Global
Markets Inc., Deutsche Bank
Securities Inc. and UBS
Securities LLC, as
representatives of the
several parties named in
Schedule I to the Purchase
Agreement dated 29 July
2003, CNH Inc., CNH Global
N.V., and certain of CNH
Global N.V.'s direct and
indirect subsidiaries listed
in Schedule II to the
Purchase Agreement dated 29
July 2003 including among
others, NHH, (ii) the
Registration Rights
Agreement dated 16 September
2003 and entered into by and
among UBS Securities LLC,
CNH Inc., CNH Global N.V.,
and certain of CNH Global
N.V.'s direct and indirect
subsidiaries listed in
Schedule II to the Purchase
Agreement dated 5 September
2003 including, among
others, NHH, and (iii) the
Registration Rights
Agreement dated 17 May 2004
and entered into by and
among Deutsche Bank
Securities Inc., CNH Inc.,
CNH Global N.V., and certain
of CNH Global N.V.'s direct
and indirect subsidiaries
listed in Schedule II to the
Purchase Agreement dated 3
May 2004 including, among
others, NHH.
"the Transaction Documents" means the Indentures, the
Purchase Agreements and the
Registration Rights
Agreements.
(ii) The word "subsidiary" has the meaning defined for it in Section 736 of
the Companies Act 1985 (as amended).
(iii) The singular number includes the plural and the definite article
includes the indefinite article and in each case vice versa.
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" or "CNH Inc."), CNH Global, N.V., a Netherlands public limited
liability company (the "Parent"), and certain subsidiaries of the Parent named
therein (collectively, with the Parent the "Guarantors"), including NHH, 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%
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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 we are advised by you 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.
We have been advised by you as follows:
(i) The Old Notes are, and the New Notes will be, guaranteed by the
Guarantors. Old Notes that are exchanged for New Notes will be
cancelled and retired.
(ii) The Old 6% Notes were, and the New 6% Notes will be, issued under the
Indenture dated 17 May 2004 (the "6% Notes Indenture") entered into by
and among the Company, the Guarantors and JPMorgan Chase Bank, as
trustee (the "Trustee").
(iii) The Old 9 1/4% Notes were and the New 9 1/4% Notes will be issued under
the Indenture dated 1 August 2003, as supplemented by the First
Supplemental Indenture dated 16 September 2003, as each said Indenture
was entered into by and among the Company, the Guarantors and the
Trustee.
We have acted as English legal advisers to NHH in connection with the entering
into by NHH of guarantees under which NHH, jointly and severally with the other
Guarantors, guarantees the due and punctual payment of all sums due to be paid
and the due and punctual performance of all obligations to be performed by CNH
Inc. pursuant to and in accordance with the terms governing the New Notes, the
said guarantee obligations of NHH as one of the Guarantors being in accordance
with the terms respectively set forth in Article Ten of the Indenture dated 1
August 2003 and in Article Ten of the Indenture dated 17 May 2004.
1. DOCUMENTS
For the purpose of issuing this Opinion we have relied upon the
following documents:-
(a) copies of each of the Transaction Documents, the Registration
Statement and the form of the New Notes;
(b) a copy of the forms of Guarantees which we understand will be
entered into and signed by an officer of, and for and on
behalf of, NHH in connection with the Company's issuance of
the New Notes pursuant to the Indentures;
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(c) the Memorandum and Articles of Association of NHH as filed at
Companies House at the date hereof ("the Constitution");
(d) a copy of the minutes of a meeting of the directors of NHH
held on 27 April 2005;
(e) a copy of a letter dated 27 April 2005 addressed to Payne
Hicks Beach by Mr Roberto Miotto in his capacity as a director
of the Company.
2. ASSUMPTIONS
For the purposes of this Opinion we have assumed without
investigation:-
(a) the authenticity and completeness of all documents submitted
to us as originals or copies, including in particular but
without prejudice to the generality of the foregoing the
documents and other papers referred to in paragraph 1. above
and the genuineness of any signatures appearing on the face of
any of the documents or other papers respectively referred to
in paragraph 1. above, the legal capacity of all natural
persons and the conformity with the original documents of any
copies submitted to us;
(b) the capacity, power and authority of each of the parties
(other than NHH) to enter into each of the Transaction
Documents, the Registration Statement, the New Notes and the
Guarantees and the due execution and entering into of such
documents by all the respective parties thereto in compliance
with all requisite corporate authorisations;
(c) that the resolutions of the board of directors of NHH set out
in the minutes of the meeting of the said directors held on 27
April 2005 were duly passed and that the said meeting was
quorate and duly and properly convened and held and that the
said minutes are a true record of the proceedings described in
them and remain in full force and effect without modification;
(d) that each of the Registration Statement, the Transaction
Documents, the New Notes and the Guarantee incorporates an
express choice of and is governed by the law of the State of
New York and that the choice of the law of the State of New
York to govern each of the Transaction Documents and the
Guarantees was made in good faith and for bona fide reasons;
(e) that, by virtue of provisions respectively contained in the
Transaction Documents, the Guarantees and/or any of the other
documents relating whether directly or indirectly to the
offer, placing and issue of the New Notes, NHH has
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submitted to the jurisdiction of the courts of the State of
New York for all purposes of the interpretation, enforcement
and resolution of all other matters concerning or arising out
of each of the Transaction Documents and the Guarantees and
that the submission to the jurisdiction of the courts of the
State of New York was made in good faith and for bona fide
reasons;
(f) that the Registration Statement, the Transaction Documents,
the Guarantees, the New Notes and all other documents relating
whether directly or indirectly to the offer, placing and issue
of the New Notes will be duly and fully enforceable in
accordance with their respective terms under the law of the
State of New York;
(g) that the Guarantees, when entered into by NHH, will be given
in good faith and for the purpose of carrying on NHH's
business and, when they are given, there will be reasonable
grounds for believing that giving the Guarantee will benefit
NHH so that accordingly it is not ultra vires NHH and
unenforceable by reason of there being no commercial benefit
to NHH;
(h) that Section 10.03 of the Indenture dated 1 August 2003 and
Section 10.03 of the Indenture dated 17 May 2004 each provides
as follows:-
"Limitations Applicable to English Guarantors
Each Guarantor that is incorporated, organised or formed, as
the case may be, in England (an "English Guarantor") will be
limited to the maximum amount as will after such English
Guarantor gives effect to all of its other contingent and
fixed liabilities not result in the guarantee given by such
English Guarantor or any payment made or to be made by such
English Guarantor under or by virtue of its guarantee
constituting a fraudulent conveyance or transfer or otherwise
being or becoming void or voidable in accordance with English
law. Pursuant to and by way of amplification of the foregoing
the amount that can at any time or from time to time be paid
by such an English Guarantor under or by virtue of its
guarantee will further be limited to such a sum as at the time
in question (i) does not exceed the maximum amount that can be
paid by such English Guarantor without such payment
constituting under the law of England either a preference or a
transaction at an undervalue or any form of fraudulent
conveyance or transfer affecting the rights of creditors
generally, and/or (ii) does not result or is not reasonably
likely to result in such English Guarantor under English law
being or becoming unable to pay its debts in due course or
being or becoming insolvent."
and that there are no provisions contained elsewhere whether
in the Indentures or otherwise which qualify or derogate from
the said limitation wording.
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(i) that the Constitution has not been changed and that no
resolutions have been passed by either the members or the
directors in any way changing or qualifying the terms of the
resolutions referred to at paragraph 1.(d) above;
(j) that NHH either did not or will not require the consent or
approval of any third party for the entering into, execution
and performance of any of the Registration Statement, the
Transaction Documents or for the entering into, execution and
performance of the New Notes and the Guarantees or duly
obtained or will obtain any such requisite consent or
approval, which has not been or will not be withdrawn;
(k) that no New 6% Notes have been or will be issued other than on
the basis that an equivalent principal amount of Old 6% Notes
will simultaneously with such issue be cancelled and retired
on the basis that neither the Company nor any of the
Guarantors has incurred or sustained or will at any time in
the future incur or sustain and in either such case whether
directly or indirectly any outstanding liability or obligation
thereunder or by virtue thereof;
(l) that no New 9 1/4% Notes have been or will be issued other
than on the basis that an equivalent principal amount of Old 9
1/4% Notes will simultaneously with such issue be cancelled
and retired on the basis that neither the Company nor any of
the Guarantors has incurred or sustained or will at any time
in the future incur or sustain and in either such case whether
directly or indirectly any outstanding liability or obligation
thereunder or by virtue thereof;
(m) that there will be no change in the laws currently applicable
to the Company and to NHH respectively and that such laws will
be the only laws respectively applicable to the Company and to
NHH.
3. OPINION
Based on and subject to the foregoing, and subject to the reservations
and limitations set forth below, we are of the opinion that:
1. NHH is a private limited liability company duly incorporated,
validly existing and in good standing under the laws of
England and Wales;
2. NHH 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 authorised and entered into by
NHH.
4. The Guarantees have been duly authorised by NHH.
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4. RESERVATIONS
Our reservations are as follows:-
(a) we express no opinion as to any law other than English law in
force at and as interpreted at the date of this Opinion. We
are not qualified to, and we do not, express an opinion on the
laws of any other jurisdiction including in particular but
without prejudice to the generality of the foregoing the law
of the State of New York;
(b) we have not considered any document other than the Transaction
Documents and the Guarantees which consideration we have given
only for the purpose of the opinions expressed in this letter;
(c) we express no opinion as to any document other than the
Registration Statement, the Transaction Documents, the New
Notes and the Guarantees and in relation to the Registration
Statement, the Transaction Documents, the New Notes and the
Guarantees we have not advised and express no opinion as to
the terms of such documents;
(d) we express no opinion as to whether or not and if so to what
extent the Transaction Documents, the New Notes and the
Guarantees constitute valid and binding obligations on NHH
subject to, and in accordance with the application to the
Transaction Documents, the New Notes and the Guarantees of,
the law of the State of New York;
(e) we express no opinion on the interpretation and enforceability
of the Transaction Documents, the New Notes and the Guarantees
as the same are respectively governed by the law of the State
of New York, whether the interpretation and/or enforceability
of the Transaction Documents, the New Notes and the Guarantees
would fall to be determined in a court in the jurisdiction of
the State of New York or in a court of any other jurisdiction;
(f) the enforcement of the performance of the Transaction
Documents, the New Notes and the Guarantees may be limited by
applicable laws on insolvency, limitation of actions,
fraudulent dispositions or similar laws relating to the
enforcement of creditors' rights generally;
(g) the enforcement in England of a judgment obtained in the USA
will be subject to English rules of civil procedure in force
from time to time.
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5. LIMITATION
This Opinion is given to you and to no other person or party save only
that its terms may be relied upon by Sidley Austin Brown & Wood LLP as
if it were addressed to them but only on the basis that Sidley Austin
Brown & Wood LLP shall be deemed to have advised us of those matters
which we refer to above as having been advised to us by you. It is also
given subject to and upon the condition that it is governed by and
should be construed in accordance with English law and that any action
arising out of it is subject to the exclusive jurisdiction of the
English courts. It may not be delivered to nor relied upon by any other
person or party or for any other purpose nor is it to be quoted or
referred to in any document or filed with any person, except in any
case with our prior express written consent.
This Opinion is provided on the basis that any liability whether to
you, Sidley Austin Brown & Wood LLP or to any other person howsoever
arising that (notwithstanding and without prejudice to the provisions
of the immediately preceding paragraph of this letter) we might
directly or indirectly incur as a result of any of the terms of the
opinions we express in paragraph 3. above being incorrect or
unjustified or otherwise erroneous (and whether as to matters of fact
or law) will be limited in aggregate to a sum equal to our available
professional indemnity insurance in force from time to time (save to
the extent that a court of competent jurisdiction declares such
liability to be of a kind which cannot be so limited).
This opinion letter is limited to the laws of England and Wales. 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 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
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whom consent is required by Section 7 of the Securities Act or the
related rules promulgated by the Commission thereunder.
Yours faithfully,
PAYNE HICKS BEACH