EXHIBIT 5.8
[SHEARMAN & STERLING LLP LETTERHEAD]
CONFIDENTIAL
To: Case New Holland Inc.
CNH Global, N.V.
Tower B, 10th Floor
World Trade Center, Amsterdam Airport
Schiphol Boulevard 2171118 BH Amsterdam
The Netherlands
29 April 2005
206387.5
CASE NEW HOLLAND INC. FORM F-4 REGISTRATION STATEMENT
Ladies and Gentlemen:
This opinion is furnished to you 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 as guarantors (collectively with the Parent, the "GUARANTORS"),
including CNH Deutschland GmbH (the "GERMAN GUARANTOR") with the United States
Securities and Exchange Commission (the "COMMISSION") under the United States
Securities Act of 1933, as amended (the "SECURITIES ACT"), relating to the
registration of USD 500,000,000 principal amount of the Company's 6% senior
notes due 2009 (the "NEW 6% NOTES") and USD 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 New
Notes will be, guaranteed by the Guarantors (the "GUARANTEES" and each a
"GUARANTEE"). 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 an indenture,
dated as of 18 May 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 an indenture,
dated as of 1 August 2003, as supplemented by the first supplemental indenture
dated as of 16 September 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. The Indentures and the Guarantees are collectively
referred to as the "DOCUMENTS".
We have acted as German counsel for the German Guarantor in connection with the
execution and delivery of the Documents. Capitalized terms used and not defined
herein are used herein as defined in the Documents.
In this connection, we have examined the following documents:
(1) a copy of the Registration Statement;
(2) a copy of each Indenture;
(3) a form of Guarantee;
(4) a form of the New Notes;
(5) for CNH Deutschland GmbH:
- a copy of the certified Commercial Register excerpt
(beglaubigte Abschrift) dated 13 April 2005;
- a copy of the Articles of Association dated 4 December 2001
certified (beglaubigt) by the Commercial Registry on 13 April
2005;
- a copy of a Shareholders' Resolution dated 25 April 2005;
(6) such other documents and such treaties, laws, rules, regulations
and the like as we have deemed necessary as a basis for the
opinions hereinafter expressed.
In our examination of the documents referred to above, we have assumed the
authenticity of all such documents submitted to us as originals, the genuineness
of all signatures, the capacity and due authority of the parties executing such
documents (on the date of its respective execution) (other than in respect of
the German Guarantor) and the conformity to the originals of all such documents
submitted to us as copies. We have also assumed that each of the documents
referred to above (on the date of its respective execution) has been duly
authorized, executed and delivered, with all necessary power and authority
(corporate and otherwise), by all parties thereto (other than in respect of the
German Guarantor).
In rendering this opinion, we have further assumed:
(a) that the New Notes will be issued, and the Guarantee will be executed,
in conformity with the form of New Notes and the form of Guarantee that
we reviewed (respectively);
(b) the accuracy of all statements of fact, including, but not limited to,
the representations and warranties, and all opinions as to matters not
covered by this opinion, contained in or made pursuant to the
Documents, in each case including on the date of execution of each
relevant Document;
(c) that on the date of execution of any Document no voluntary winding-up
resolution or petition has been presented or an order has been made or
rejected on grounds of insufficiency of assets (mangels Masse) by a
court or by directly applicable law for the winding up, dissolution or
administration of any party to the Documents and no application for the
commencement of bankruptcy (Insolvenzantrag) or any other insolvency
procedure has been made within the meaning of any applicable insolvency
procedure with respect to any party to the Documents;
(d) that as of the date of this opinion (and on the date of execution of
each relevant Document) and as a consequence of doing any act or thing
which the Documents contemplate, permit or require, no party to the
Documents is or will be deemed (or at the time of execution of any
Document was or was deemed to be) unable to pay any of its debts when
due (Zahlungsunfahigkeit) and none of the parties to the Documents are
(or at the time of execution of any Document were) facing
over-indebtedness (Uberschuldung) or are (or at
the time of execution of any Document were) subject to imminent
illiquidity (drohende Zahlungsunfahigkeit);
(e) that no party enters (or at the time of execution of any Document
entered) into the Documents or any transaction contemplated therein
with the intention to prejudice, defraud or damage any creditor of any
party to the Documents;
(f) that no creditor which is party to the Documents is (or at the time of
execution of any Document was) aware of any circumstances which would
indicate that or give reason to enquire further whether or not the
German Guarantor is (or at the time of execution of any Document was)
close to any of the events set forth in (d) above;
(g) that the Documents will, upon their due execution by all parties
thereto create (or in respect of any Indenture created) legal, valid
and binding obligations of each of the parties thereto (other than in
respect of the German Guarantor), enforceable under all applicable laws
and that the legality, validity and enforceability of the Documents
will not be (and in respect of any Indenture was not) impaired by any
other agreement or obligation of the parties thereto (other than the
German Guarantor).
Based upon the foregoing and subject to the qualifications set out
herein, we are of the opinion that:
(1) The German Guarantor is duly incorporated and validly existing
under the laws of the Federal Republic of Germany.
(2) The German Guarantor has full corporate power and authority to
enter into the Guarantee and to perform its obligations
thereunder.
(3) All corporate action required pursuant to the Articles of
Association (Gesellschaftsvertrag/Satzung) of the German Guarantor
and pursuant to generally applicable corporate law to authorize
the execution and delivery of the Guarantee on behalf of the
German Guarantor and the performance of its obligations thereunder
has been duly taken.
(4) At the time of its respective execution, each Indenture has been
duly authorized, executed and delivered by the German Guarantor.
Our opinions are subject to the following qualifications:
(a) pursuant to several decisions of the German Federal Court of Justice
(Bundesgerichtshof) with respect to Sections 30 and 31 of the German
Act on Limited Liability Companies (Gesetz betreffend die
Gesellschaften mit beschrankter Haftung, "GMBH-ACT"), a security
interest (including a guarantee) granted by a German limited liability
company ("GMBH") for the benefit of any affiliated company (within the
meaning of sections 15 et seq. of the German Stock Corporation Act
(Aktiengesetz)), other than its direct or indirect subsidiaries (the
"AFFILIATES"), to third party creditors (unaffiliated with the GmbH and
its Affiliates)) may be held invalid pursuant to Section 138 of the
German Civil Code (Burgerliches Gesetzbuch, "BGB"), and would therefore
not be enforceable, if, at the time of the creation of the security
interest, (i) the enforcement of the security interest would cause the
GmbH's equity (Eigenkapital) to fall below the amount of its stated
capital (Stammkapital) and (ii) the third party creditor and the
Affiliates have acted in fraudulent conveyance (kollusives
Zusammenwirken) to the detriment of the GmbH or other third party
creditors of the GmbH. According to the German Federal Court of
Justice, such fraudulent conveyance in particular exists when third
party creditors and Affiliates are, at the time of the creation of the
security interest, (i) aware (or should be aware when applying due
diligence) of a threatened insolvency or other material adverse
financial condition of the GmbH and (ii) intentionally (or acting with
gross negligence) ignore such threatened insolvency or other material
adverse financial condition of the GmbH, thereby resulting in a damage
for the GmbH or other third party creditors of the GmbH.
(b) pursuant to recent decisions of the German Federal Court of Justice
(Bundesgerichtshof) the shareholders of a German GmbH may be held
personally liable for causing the insolvency of such GmbH
(existenzvernichtender Eingriff). Therefore, German courts may
determine that the validity and enforceability of claims of a third
party creditor under the Documents against a GmbH may be limited or
such claims may be void, as the case may be, if the execution of the
Documents or the performance of the obligations of such GmbH under the
Documents could be viewed as an insolvency-causing interference
(existenzvernichtender Eingriff) by the shareholders of such GmbH and
the third party creditor and the shareholders or sister companies have
acted in fraudulent conveyance (kollusives Zusammenwirken) to the
detriment of the GmbH or other third party creditors of the GmbH.
(c) our opinions are subject to the effect of any applicable bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), liquidation, reorganization, moratorium or
similar law affecting creditors' rights generally, as well as general
principles of German law, including, but not limited to, the principle
of loyalty and good faith (Treu und Glauben).
Our opinions expressed above are limited to the law of the Federal Republic of
Germany, and we do not express any opinion herein concerning any other law. Our
opinions (1) through (3) (inclusive) above speak as of the date hereof and
opinion (4) expressed above speaks as of the date of execution of the relevant
Indenture.
We are furnishing this opinion letter to you solely for the purposes of the
Registration Statement. This opinion letter is not to be used, circulated,
quoted or referred to for any other purpose by any person, except that it may be
relied upon by Sidley Austin Brown & Wood LLP.
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 United
States Securities Act or the related rules promulgated by the Commission
thereunder.
Very truly yours
Shearman & Sterling LLP
(JK/CN)
(AD)