EXHIBIT 1.1
CNH EQUIPMENT TRUST
2006-B
5.39275% CLASS A-1 ASSET BACKED
NOTES
5.33% CLASS A-2 ASSET BACKED
NOTES
5.20% CLASS A-3 ASSET BACKED
NOTES
FLOATING RATE CLASS A-4 ASSET BACKED
NOTES
5.36% CLASS B ASSET BACKED
NOTES
CNH CAPITAL RECEIVABLES
LLC
UNDERWRITING
AGREEMENT
September 7, 2006
Banc of America Securities LLC
214 North Tryon Street
Charlotte, North Carolina
28255
Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10005
as Representatives of the Several
Underwriters
Ladies and Gentlemen:
1.
Introductory
. CNH Capital
Receivables LLC, a Delaware limited liability company (the
“Seller”), proposes to cause CNH Equipment Trust 2006-B
(the “Trust”) to issue and sell $322,000,000 principal
amount of 5.39275% Class A-1 Asset Backed Notes (the “A-1
Notes”), $239,000,000 principal amount of 5.33% Class A-2
Asset Backed Notes (the “A-2 Notes”), $378,000,000
principal amount of 5.20% Class A-3 Asset Backed Notes (the
“A-3 Notes”), $325,250,000 principal amount of Floating
Rate Class A-4 Asset Backed Notes (the “A-4 Notes”) and
$35,750,000 principal amount of 5.36% Class B Asset Backed Notes
(the “B Notes” and, together with the A-1 Notes, the
A-2 Notes, the A-3 Notes and the A-4 Notes, the
“Notes”), to the several underwriters named in Schedule
I hereto (collectively, the “Underwriters”), for whom
you are acting as representatives (the
“Representatives”).
The assets of the Trust include,
among other things, a pool of retail installment sale contracts,
retail installment loans and consumer installment loans (the
“Receivables”) secured by new or used agricultural or
construction equipment and the related security interests in the
equipment financed thereby. The Receivables were sold to the
Trust by the Seller. The Receivables are serviced for the Trust by
New Holland Credit Company, LLC, a Delaware limited liability
company (“New Holland”). New Holland has
appointed Systems & Services Technologies, Inc.
(“SST”) to act as backup servicer, of the Receivables
pursuant to the Backup Servicing Agreement, dated as of September
1, 2006 (as amended and supplemented from time to time,
the
“Backup Servicing
Agreement”) among the Seller, New Holland, as servicer, the
Trust, SST, as backup servicer, and JPMorgan Chase Bank, N.A., as
indenture trustee (the “Indenture Trustee”). The Notes
will be issued pursuant to the Indenture to be dated as of
September 1, 2006 (as amended and supplemented from time to time,
the “Indenture”), between the Trust and the Indenture
Trustee.
Simultaneously with the issuance and
sale of the Notes as contemplated in this Agreement, the Trust will
issue to the Seller certificates representing fractional undivided
equity interests in the Trust (the “Certificates”). The
Notes and the Certificates are sometimes referred to herein as the
“Securities.”
Capitalized terms used and not
otherwise defined herein shall have the meanings ascribed to them
in the Sale and Servicing Agreement to be dated as of September 1,
2006 (as amended and supplemented from time to time, the
“Sale and Servicing Agreement”), among the Trust, the
Seller and New Holland, as servicer, or, if not defined therein, in
the Indenture or the Trust Agreement dated as of September 1, 2006
(as amended and supplemented from time to time, the “Trust
Agreement”), between the Seller and The Bank of New York, as
trustee (the “Trustee”).
At or prior to the time when sales
to purchasers of the Notes were first made to investors by the
several Underwriters, which was approximately 2:39 p.m. on
September 7, 2006 (the “Time of Sale”), the Seller had
prepared the following information (collectively, the “Time
of Sale Information”): the preliminary prospectus supplement
dated September 6, 2006 (the “Preliminary Prospectus
Supplement”) to the base prospectus dated September 6, 2006
(the “Preliminary Basic Prospectus”) (together, along
with information referred to under the caption “Static Pool
Data” therein regardless of whether it is deemed a part of
the Registration Statement or Prospectus, the “Preliminary
Prospectus”). If, subsequent to the Time of Sale and
prior to the Closing Date (as defined below), such information
included an untrue statement of material fact or omitted to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, and as a result investors in the Notes may terminate
their old “Contracts of Sale” (within the meaning of
Rule 159 under the Securities Act of 1933, as amended (the
“Act”)) for any Notes and the Underwriters enter into
new Contracts of Sale with investors in the Notes, then “Time
of Sale Information” will refer to the information conveyed
to investors at the time of entry into the first such new Contract
of Sale, in an amended Preliminary Prospectus approved by the
Seller and the Representatives that corrects such material
misstatements or omissions (a “Corrected Prospectus”)
and “Time of Sale” will refer to the time and date on
which such new Contracts of Sale were entered into.
2.
Representations and
Warranties . The Seller, and with
respect to items (e), (f), (h), (i), (j), (k), (l), (m), (n), (p),
(q), (r), (s) and (t) as they relate to CNH Capital America LLC, a
Delaware limited liability company (“CNHCA”) and/or New
Holland, CNHCA, represent and warrant to, and agree with, each
Underwriter as of the date hereof and as of the Closing Date
that:
(a)
A registration
statement on Form S-3 (No. 333-130656) relating to the Notes has
been filed by Seller with the Securities and Exchange Commission
(the “Commission”) and has become effective and is
still effective as of the date hereof under the Act. The
Seller proposes to file with the Commission pursuant to Rule 424(b)
of the rules and regulations of the Commission under the Act (the
“Rules and Regulations”) a prospectus supplement dated
September 7, 2006 (together with information referred to under the
caption “Static Pool Data” therein regardless
of
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whether it is
deemed a part of the Registration Statement or Prospectus, the
“Prospectus Supplement”) to the prospectus dated
September 6, 2006 (the “Basic Prospectus”), relating to
the Notes and the method of distribution thereof. Such
registration statement, including exhibits thereto, and such
prospectus, as amended or supplemented to the date hereof, and as
further supplemented by the Prospectus Supplement, are hereinafter
referred to as the “Registration Statement” and the
“Prospectus,” respectively. The conditions to the
use of a registration statement on Form S-3 under the Act have been
satisfied. The Seller has filed the Preliminary Prospectus
and it has done so within the applicable period of time required
under the Act and the Rules and Regulations.
(b)
The Registration
Statement, at the time it became effective, any post-effective
amendment thereto, at the time it became effective, and the
Prospectus, as of the date of the Prospectus Supplement, complied
and on the Closing Date will comply in all material respects with
the applicable requirements of the Act and the Rules and
Regulations and the Trust Indenture Act of 1939, as amended (the
“Trust Indenture Act”), and the rules and regulations
of the Commission thereunder. The Registration Statement, as
of the applicable effective date as to each part of the
Registration Statement and any amendment thereto pursuant to Rule
430B(f)(2) under the Act, did not include any untrue statement of a
material fact and did not omit to state any material fact required
to be stated therein or necessary to make the statements therein
not misleading. The Preliminary Prospectus, as of its date
and as of the Time of Sale, did not contain an untrue statement of
a material fact and did not omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
Prospectus, as of the date of the Prospectus Supplement and as of
the Closing Date, does not and will not contain any untrue
statement of a material fact and did not and will not omit to state
any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. The representations and warranties in
the three preceding sentences do not apply to information contained
in or omitted from the Registration Statement, the Preliminary
Prospectus or the Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in
writing to the Seller by any Underwriter through either
Representative specifically for use in connection with preparation
of the Registration Statement, the Preliminary Prospectus or the
Prospectus (or any supplement thereto), it being agreed that the
only such information consists of the statements in the second and
sixth paragraphs (concerning initial offering prices, concessions
and reallowances) and in the fourth and eighth paragraphs
(concerning overallotment, stabilizing transactions and syndicate
covering transactions) under the heading “Underwriting”
in the Preliminary Prospectus Supplement and the Prospectus
Supplement (such information, the “Underwriter
Information”). The Indenture has been qualified under
the Trust Indenture Act. As of the Closing Date, the
Seller’s representations and warranties in the Sale and
Servicing Agreement and the Trust Agreement will be true and
correct in all material respects.
(c)
The Time of Sale
Information, at the Time of Sale, did not, and at the Closing Date
will not, contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided that the Seller makes no
representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with the
Underwriter Information. As of the Time of Sale, the Seller
was not and as of the Closing Date is not, an “ineligible
issuer,” as defined in Rule 405 under the Act.
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(d)
The documents
incorporated by reference in the Registration Statement, the
Preliminary Prospectus and the Prospectus, when they became
effective under the Act or were filed with the Commission under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), as the case may be, conformed in all material respects
to the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder; and any
further documents so filed and incorporated by reference in the
Registration Statement or the Prospectus, when such documents are
filed with the Commission, will conform in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder.
(e)
Each of CNHCA and
the Seller has been duly organized and is validly existing as a
limited liability company in good standing under the laws of the
State of Delaware with power and authority to own its properties
and conduct its business as described in the Preliminary Prospectus
and the Prospectus and to enter into and perform its obligations
under this Agreement and the Purchase Agreement and, in the case of
the Seller, the Sale and Servicing Agreement and the Backup
Servicing Agreement, and has obtained all necessary licenses and
approvals in each jurisdiction in which failure to qualify or to
obtain such license or approval would render any Receivable
unenforceable by the Seller, the Trust or the Indenture
Trustee.
(f)
New Holland has
been duly organized and is validly existing as a limited liability
company in good standing under the laws of the State of Delaware
with power and authority to own its properties and conduct its
business as such properties are currently owned and such business
is currently conducted and to enter into and perform its
obligations under the Sale and Servicing Agreement, the Backup
Servicing Agreement and the Administration Agreement and has
obtained all necessary licenses and approvals in each jurisdiction
in which failure to qualify or to obtain such license or approval
would render any Receivable unenforceable by the Seller, the Trust
or the Indenture Trustee.
(g)
On the Closing
Date, upon delivery thereof, the Liquidity Receivables Purchase
Agreement, the Purchase Agreement, the Trust Agreement, the Sale
and Servicing Agreement and the Backup Servicing Agreement will
have been duly authorized, executed and delivered by the Seller,
and will be legal, valid and binding obligations of the Seller
enforceable against the Seller in accordance with their terms,
subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting
creditors’ rights generally and to the effect of general
principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
considered in a proceeding in equity or at law).
(h)
On the Closing
Date, upon delivery thereof, the Liquidity Receivables Purchase
Agreement and the Purchase Agreement will have been duly
authorized, executed and delivered by CNHCA and will be legal,
valid and binding obligations of CNHCA enforceable against CNHCA in
accordance with their terms, subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors’ rights generally and to the
effect of general principles of equity, including concepts of
materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at
law).
(i)
On the Closing
Date, upon delivery thereof, the Sale and Servicing Agreement, the
Backup Servicing Agreement and the Administration Agreement will
have been duly authorized, executed and delivered by New Holland
and will be legal, valid and binding
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obligations of
New Holland enforceable against New Holland in accordance with
their terms, subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law affecting
creditors’ rights generally and to the effect of general
principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
considered in a proceeding in equity or at law).
(j)
This Agreement
has been duly authorized, executed and delivered by each of the
Seller and CNHCA.
(k)
The execution,
delivery and performance of this Agreement, the Liquidity
Receivables Purchase Agreement, the Purchase Agreement, the Trust
Agreement, the Administration Agreement, the Sale and Servicing
Agreement, the Indenture and the Backup Servicing Agreement and the
other documents and certificates delivered in connection therewith
(such agreements, documents and certificates, excluding this
Agreement, being, collectively, the “Basic Documents”),
as applicable, by CNHCA and the Seller, and the consummation of the
transactions contemplated thereby, will not conflict with, or
result in a breach, violation or acceleration of, or constitute a
default under, the certificate of formation, limited liability
company agreement or by-laws of CNHCA, New Holland or the Seller or
any material agreement or instrument to which CNHCA, New Holland or
the Seller is a party or by which CNHCA, New Holland or the Seller
is bound or to which any of the properties of CNHCA, New Holland or
the Seller is subject.
(l)
The execution,
delivery and performance of this Agreement and the Basic Documents,
as applicable, by CNHCA, New Holland and the Seller, and the
consummation of the transactions contemplated thereby, will not
violate any statute, rule or regulation or any order of any
governmental agency or body or any court having jurisdiction over
CNHCA, New Holland or the Seller or any of their
properties.
(m)
There are no
actions, proceedings or investigations pending or threatened before
any court, administrative agency, or other tribunal
(1) asserting the invalidity of the Trust or any of the Basic
Documents, (2) seeking to prevent the consummation of any of
the transactions contemplated by any of the Basic Documents or the
execution and delivery thereof, or (3) that could reasonably
be expected to materially and adversely affect the performance by
CNHCA, New Holland or the Seller, as applicable, of its obligations
under, or the validity or enforceability of, this Agreement or the
Basic Documents.
(n)
On the Closing
Date, upon delivery thereof, each of the CNHCA Assignment dated as
of the Closing Date from CNHCA to the Seller and the assignments of
Receivables from CNHCA to the Seller pursuant to the Liquidity
Receivables Purchase Agreement has been duly authorized, executed
and delivered by CNHCA.
(o)
When the Notes
have been duly executed and delivered by the Trustee, authenticated
by the Indenture Trustee in accordance with the Indenture and
delivered and paid for pursuant to this Agreement, the Notes will
be duly issued and entitled to the benefits and security afforded
by the Indenture, subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law
affecting creditors’ rights generally and to the effect of
general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
considered in a proceeding in equity or at law).
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(p)
No consent,
approval, authorization or order of, or filing with, any
governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement or
the Basic Documents, except such as are required and have been or
will be obtained and made on or prior to the Closing Date under the
Act and such as may be required under state securities
laws.
(q)
Since June 30,
2006 there has not been any material adverse change in the
business, results of operations, condition (financial or
otherwise), prospects, or material properties or assets of the
Seller, CNHCA, New Holland or CNH America LLC.
(r)
The computer tape
of the Receivables created as of August 31, 2006 and made available
to the Representatives by the Servicer, was complete and accurate
in all material respects as of the date thereof and includes a
description of the Receivables that are described in the
Assignment.
(s)
Any taxes, fees
and other governmental charges that have been assessed and are
known to the Seller, CNHCA or New Holland to be due in connection
with the execution, delivery and issuance of the Basic Documents
shall have been paid by the Seller, CNHCA or New Holland at or
prior to the Closing Date (as defined in Section 3
hereof).
(t)
None of the
Seller, CNHCA or New Holland is in violation of its certificate of
formation, limited liability company agreement or by-laws or is in
default in the performance or observance of any obligation,
agreement, covenant or condition contained in any agreement or
instrument to which it is a party or by which it or its properties
are bound which would have a material adverse effect on the
transactions contemplated herein or on the Seller’s,
CNHCA’s or New Holland’s respective ability to perform
its obligations under the Basic Documents.
3.
Purchase,
Sale, and Delivery of the Notes . On the basis of the
representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Seller
agrees to cause the Trust to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the
Trust, the respective Classes of Notes in the respective principal
amounts and at the respective purchase prices set forth opposite
the name of such Underwriter in Schedule I hereto. Delivery of and
payment for the Notes shall be made at the office of Mayer Brown
Rowe & Maw LLP, 71 S. Wacker Drive, Chicago, Illinois 60606 (or
such other place as the Seller and the Representatives shall
agree), on September 19, 2006 (the “Closing Date”).
Delivery of the Notes shall be made against payment of the purchase
price in immediately available funds drawn to the order of the
Seller. The Notes to be so delivered will be initially represented
by one or more Notes registered in the name of Cede & Co., the
nominee of The Depository Trust Company (“DTC”). The
interests of beneficial owners of the Notes will be represented by
book entries on the records of DTC and participating members
thereof. Definitive Notes will be available only under limited
circumstances.
4.
Offering by
Underwriters . It is understood that the
Underwriters propose to offer the Notes for sale to the public
(which may include selected dealers), as set forth in the
Prospectus.
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5.
Representations and
Warranties of the Underwriters .
(a)
Each Underwriter,
severally and not jointly, represents and warrants to, and agrees
with, the Seller, in relation to each member state of the European
Economic Area which has implemented the Prospectus Directive (each,
a “Relevant Member State”), that with effect from and
including the date on which the Prospectus Directive is implemented
in that Relevant Member State (the “Relevant Implementation
Date”) it has not made and will not make an offer of Notes to
the public in that Relevant Member State prior to the publication
of a prospectus in relation to the Notes which has been approved by
the competent authority in that Relevant Member State or, where
appropriate, approved in another Relevant Member State and notified
to the competent authority in that Relevant Member State, all in
accordance with the Prospectus Directive, except that it may, with
effect from and including the Relevant Implementation Date, make an
offer of Notes to the public in that Relevant Member State at any
time:
(i)
to legal entities
which are authorized or regulated to operate in the financial
markets or, if not so authorized or regulated, whose corporate
purpose is solely to invest in securities;
(ii)
to any legal
entity which has two or more of (A) an average of at least 250
employees during the last financial year; (B) a total balance sheet
of more than €43,000,000 and (C) an annual net turnover of
more than €50,000,000, as shown in its last annual or
consolidated accounts; or
(iii)
in any other
circumstances which do not require the publication by the issuer of
a prospectus pursuant to Article 3 of the Prospectus
Directive.
For the purposes of this Section
5(a), the expression an “offer of Notes to the public”
in relation to any Notes in any Relevant Member State means the
communication in any form and by any means of sufficient
information on the terms of the offer and the Notes to be offered
so as to enable an investor to decide to purchase or subscribe for
the Notes, as the same may be varied in that Member State by any
measure implementing the Prospectus Directive in that Member State,
and the expression “Prospectus Directive” means
Directive 2003/71/EC and includes any relevant implementing measure
in each Relevant Member State. “ European
Economic Area” means Austria, Belgium, Cyprus, Czech
Republic, Denmark, Estonia, Finland, France, Germany, Greece,
Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta,
Netherlands, Poland, Portugal, Slovak Republic, Slovenia, Spain,
Sweden, United Kingdom, Iceland, Liechtenstein and
Norway.
(b)
Each Underwriter,
severally and not jointly, represents and warrants to, and agrees
with, the Seller that:
(i)
It has complied
and will comply with all applicable provisions of the Financial
Services and Markets Act 2000 (“FSMA”) of Great Britain
with respect to anything done by it in relation to the Notes in,
from or otherwise involving the United Kingdom.
(ii)
It has only
communicated or caused to be communicated and it will only
communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of
Section 21 of the FSMA) received by it in connection with
the
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issue or sale of
any of the Notes in circumstances in which Section 21(1) of the
FSMA does not apply to the Trust.
6.
Covenants of
the Seller . The Seller covenants and
agrees with each of the Underwriters that:
(a)
Prior to the
termination of the offering of the Notes, the Seller will not file
any amendment to the Registration Statement or any amendment,
supplement or revision to either the Preliminary Prospectus or to
the Prospectus, unless the Seller has furnished you a copy for your
review prior to such proposed filing or use, as the case may be,
and will not file or use any such document to which you shall
reasonably object. Subject to the foregoing sentence, the
Seller will effect the filings required under Rule 424(b)
under the Act in the manner and within the time period required by
Rule 424(b) (without reliance on Rule 424(b)(8)), and
will take such steps as it deems necessary to ascertain promptly
whether the Preliminary Prospectus and the Prospectus transmitted
for filing under Rule 424(b) were each received for filing by
the Commission and, in the event that either was not, it will
promptly file the Preliminary Prospectus or the Prospectus, as
applicable, and in each case will provide evidence satisfactory to
you of such timely filing. In accordance with Section 9, the
Seller will file any Trust Free Writing Prospectus (as hereinafter
defined) to the extent required by Rule 433 under the
Act.
(b)
During the period
when a prospectus is required by the Act or the Exchange Act to be
delivered in connection with sales of the Notes (the
“Prospectus Delivery Period”), the Seller will notify
you immediately, and confirm the notice in writing, of (i) the
effectiveness of any post-effective amendment to the Registration
Statement or the filing of any supplement or amendment to the
Prospectus, (ii) the receipt of any comments from the
Commission, (iii) any request by the Commission for any
amendment to the Registration Statement or any amendment or
supplement to the Prospectus or any document incorporated by
reference therein or otherwise deemed to be a part thereof or for
additional information, (iv) the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any
Preliminary Prospectus, or of the suspension of the qualification
of the Notes for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such
purposes and (v) the happening of any event which, in the
judgment of the Seller, makes the Registration Statement or the
Prospectus contain an 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 not misleading. The
Seller will make every reasonable effort to prevent the issuance of
any stop order and, if any stop order is issued, to obtain as soon
as possible the lifting thereof.
(c)
Upon request, the
Seller will deliver to the Underwriters and counsel for the
Underwriters, without charge, photocopies of the signed
Registration Statement at the time it originally became effective
(the “Original Registration Statement”) and of each
amendment thereto (including exhibits filed therewith) prior to the
Closing Date. The copies of the Original Registration
Statement and each amendment thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system (“EDGAR”),
except to the extent permitted by Regulation S-T under the
Act.
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(d)
Prior to the
availability of the Prospectus, the Seller will deliver to the
Underwriters, without charge, as many copies of the Preliminary
Prospectus as the Underwriters may reasonably request, and the
Seller hereby consents to the use of such copies for purposes
permitted by the Act. The Seller will furnish to the
Underwriters, without charge, during the Prospectus Delivery
Period, such number of copies of the Prospectus as the Underwriters
may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical
to any electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T under the Act.
(e)
The Seller will
comply with the Act and the Rules and Regulations, the Exchange Act
and the rules and regulations thereunder and the Trust Indenture
Act and the rules and regulations thereunder so as to permit the
completion of the distribution of the Notes as contemplated in this
Agreement, the Basic Documents, the Registration Statement and the
Prospectus. If during the Prospectus Delivery Period any
event shall occur or condition shall exist as a result of which it
is necessary to amend the Registration Statement or amend or
supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, or if it shall be necessary during the Prospectus
Delivery Period to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements
of the Act or the Rules and Regulations, the Seller will promptly
notify you and will promptly prepare and file with the Commission,
subject to the review and approval provisions afforded to you
described in Section 6(a), such amendment or supplement as may
be necessary to correct such statement or omission or to make the
Registration Statement, the Preliminary Prospectus or the
Prospectus comply with such requirements. The Seller will use
its best efforts to have such amendment or new registration
statement declared effective as soon as practicable, and the Seller
will furnish to the Underwriters, without charge, such number of
copies of such amendment or supplement as the Underwriters may
reasonably request. Any such filing shall not operate as a
waiver or limitation of any right of any Underwriter
hereunder.
(f)
As soon as
practicable, but not later than fourteen months after the original
effective date of the Registration Statement, the Seller will cause
the Trust to make generally available to Noteholders an earnings
statement of the Trust covering a period of at least twelve months
beginning after the deemed effective date of the Registration
Statement pursuant to Rule 158(c) under the Act that will satisfy
the provisions of Section 11(a) of the Act and Rule
158.
(g)
The Seller will
arrange for the qualification of the Notes for sale under the laws
of such jurisdictions in the United States as you may reasonably
designate and will continue such qualifications in effect so long
as required for the distribution.
(h)
For a period from
the date of this Agreement until the retirement of the Notes, or
until such time as the Underwriters shall cease to maintain a
secondary market in the Notes, whichever occurs first, the Seller
will deliver to you the annual statements of compliance, annual
assessments of compliance with servicing criteria and
accountants’ attestations in respect of such assessments, as
soon as such statements and reports are furnished to the Indenture
Trustee.
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(i)
So long as any of
the Notes is outstanding, the Seller will furnish to you
(i) as soon as practicable after the end of each fiscal year
all documents required to be distributed to Noteholders or filed
with the Commission pursuant to the Exchange Act or any order of
the Commission thereunder and (ii) from time to time, any
other information concerning the Seller filed with any government
or regulatory authority which is otherwise publicly available, as
you may reasonably request.
(j)
On or before the
Closing Date, the Seller shall cause the computer records of the
Seller, CNHCA and New Holland relating to the Receivables to be
marked to show the Trust’s absolute ownership of the
Receivables, and from and after the Closing Date none of the
Seller, CNHCA or New Holland shall take any action inconsistent
with the Trust’s ownership of such Receivables, other than as
permitted by the Sale and Servicing Agreement.
(k)
To the extent, if
any, that the ratings provided with respect to the Notes by the
rating agency or agencies that initially rate the Notes are
conditional upon the furnishing of documents or the taking of any
other actions by the Seller, the Seller shall furnish such
documents and take any such other actions.
(l)
For the period
beginning on the date of this Agreement and ending seven days after
the Closing Date, unless waived by the Underwriters, none of the
Seller, CNHCA or any trust originated, directly or indirectly, by
the Seller or CNHCA will offer to sell or sell notes (other than
the Notes and commercial paper notes offered pursuant to
CNHCA’s existing asset-backed commercial paper program)
collateralized by, or certificates (other than the Certificates)
evidencing an ownership interest in, receivables generated pursuant
to retail agricultural or construction equipment installment sale
contracts.
(m)
On or prior to
each Subsequent Transfer Date, the Seller shall deliver to the
Representatives (i) a duly executed Subsequent Transfer
Assignment including a schedule of the Subsequent Receivables to be
transferred to the Trust on such Subsequent Transfer Date, (ii) a
copy of the letter from a firm of independent nationally recognized
certified public accountants to be delivered to the Trustee and the
Indenture Trustee pursuant to Section 2.2(b)(xv) of the Sale and
Servicing Agreement, and (iii) a copy of the Officer’s
Certificate delivered to the Indenture Trustee and the Trustee
pursuant to Section 2.2(b)(xvi) of the Sale and Servicing
Agreement.
(n)
The Seller will
enter into, and will cause the Trust to enter into, each Basic
Document to which this Agreement and each Basic Document
contemplates the Seller and/or the Trust will be a party on or
prior to the Closing Date.
7.
Payment of
Expenses . The Seller will pay all
expenses incident to the performance of its obligations under this
Agreement, including (i) the printing and filing of the
Registration Statement as originally filed and of each amendment
thereto, (ii) the fees and disbursements of the Indenture Trustee
and its counsel, (iii) the preparation, issuance and delivery
of the Notes to the Underwriters, (iv) the fees and
disbursements of CNHCA’s and the Seller’s counsel and
accountants, (v) the qualification of the Notes under
securities laws in accordance with the provisions of Section 6(g),
including filing fees and the fees and disbursements of counsel for
you in connection therewith and in connection with the preparation
of any blue sky or legal investment survey, (vi) the printing and
delivery to the Underwriters of copies of the
Registration
10
Statement as
originally filed and of each amendment thereto, (vii) the
printing and delivery to the Underwriters of copies of any blue sky
or legal investment survey prepared in connection with the Notes
and of the Preliminary Prospectus and the Prospectus and of each
amendment thereto, (viii) any fees charged by rating agencies
for the rating of the Notes, (ix) the fees and expenses, if
any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc., and (x) the costs and
expenses (including any damages or other amounts payable in
connection with legal and contractual liability) associated with
reforming any Contracts for Sale of the Notes made by the
Underwriters caused by a breach of any representation in Section
2(b) or Section 2(c).
8.
Conditions of
the Obligations of the Underwriters . The obligations of the
Underwriters to purchase and pay for the Notes will be subject to
the accuracy of the representations and warranties on the part of
CNHCA and the Seller herein, to the accuracy of the statements of
officers of CNHCA and the Seller made pursuant to the provisions
hereof, to the performance by CNHCA and the Seller of their
respective obligations hereunder and to the following additional
conditions precedent:
(a)
If the
Registration Statement has not become effective prior to the
Execution Time, unless the Underwriters agree in writing to a later
time, the Registration Statement shall have become effective not
later than (i) 6:00 p.m. New York City time on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 p.m. New York City time on such date
or (ii) 12:00 noon on the business day following the day on
which the public offering price was determined, if such
determination occurred after 3:00 p.m. New York City time on such
date.
(b)
Each of the
Preliminary Prospectus, the Prospectus and any supplements thereto
shall have been filed with the Commission in the manner and within
the applicable time period required under Rule 424(b) under the Act
(without reference to Rule 424(b)(8)) in accordance with the Rules
and Regulations and Section 6(a) hereof; and, prior to the Closing
Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings
for that purpose shall have been instituted or, to the knowledge of
the Seller or you, shall be contemplated by the Commission or by
any authority administering any state securities or blue sky law;
and any requests for additional information from the Commission
with respect to the Registration Statement shall have been complied
with to your satisfaction.
(c)
On or prior to
the Closing Date, you shall have received a letter or letters,
dated as of the date of the Closing Date, of Deloitte & Touche
LLP independent public accountants, substantially in the form of
the drafts to which you have previously agreed and otherwise in
form and substance satisfactory to you and your counsel concerning
the Time of Sale Information and the Prospectus.
(d)
Subsequent to the
execution and delivery of this Agreement, there shall not have
occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or
properties of the Trust, the Seller, New Holland, CNHCA, CNH
America LLC or CNH Global N.V. which, in the judgment of the
Underwriters, materially impairs the investment quality of the
Notes or makes it impractical or inadvisable to market the Notes;
(ii) any suspension or limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum
prices for trading on such exchange; (iii) any
suspension
11
of trading of any
securities of CNH America LLC or CNH Global N.V. on any exchange or
in the over-the-counter market which, in the judgment of the
Underwriters, makes it impractical or inadvisable to market the
Notes; (iv) any banking moratorium declared by Federal or New
York authorities; (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration
of war by Congress, or any other substantial national or
international calamity or emergency or any material change in the
financial markets if, in the judgment of the Underwriters, the
effect of any such outbreak, escalation, declaration, calamity,
emergency or change makes it impractical or inadvisable to proceed
with completion of the sale of and payment for the Notes; or (vi) a
material disruption has occurred in securities settlement or
clearance services in the United States.
(e)
You shall have
received an opinion or opinions (or, in the case of the penultimate
paragraph of this clause (e), a negative assurance letter) of
counsel to CNHCA and the Seller, addressed to you, as
Representatives of the several Underwriters, the Trustee and the
Indenture Trustee, dated the Closing Date and satisfactory in form
and substance to you and your counsel, to the effect
that:
(i)
Each of CNHCA and
the Seller is an existing limited liability company in good
standing under the laws of the State of Delaware with power and
authority to own its properties and conduct its business as
described in the Prospectus and to enter into and perform its
obligations under this Agreement and the Purchase Agreement and, in
the case of the Seller, the Sale and Servi
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