Delaware limited liability company (“New Holland”).  New Holland has appointed Systems & Services Technologies, Inc. (“SST”) to act as backup servicer of Receivables pursuant to the Backup Servicing Agreement, dated as of                        , 200X (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 [Month ] 1, 200X (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 [Month ] 1, 200X (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 [Month ] 1, 200X (as amended and supplemented from time to time, the “Trust Agreement”), between the Seller and The Bank of New York, as trustee (the “Trustee”).

 

In addition, for purposes of this Agreement, “Effective Time” means, with respect to the registration statement referred to in Section 2(a) below, the date and time as of which such registration statement, or the most recent post-effective amendment thereto, if any, was declared effective by the Securities Exchange Commission (the “SEC”), and “Effective Date” means the date of the Effective Time. “Execution Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto. Such registration statement, as amended at the Effective Time, including all information deemed to be a part of such registration statement as of the Effective Time pursuant to Rule 430A(b) under the Securities Act of 1933, as amended (the “Act”), and including the exhibits thereto and any material incorporated by reference therein, are hereinafter referred to as the “Registration Statement.” “Basic Prospectus” shall mean the prospectus referred to above contained in the Registration Statement at the Effective Date including the Preliminary Prospectus, as most recently revised or amended and filed with the Commission pursuant to Rule 424(b) or Rule 429. “Preliminary Prospectus” shall mean the Basic Prospectus, as supplemented by the preliminary prospectus supplement which describes the Securities and the offering thereof and is used prior to filing of the Prospectus. “Prospectus” shall mean the prospectus supplement relating to the Securities that is first filed pursuant to Rule 424(b) after the Execution Time, together with the Basic Prospectus or, if no filing pursuant to Rule 424(b) is required, shall mean the prospectus supplement relating to the Securities, including the Basic Prospectus, included in the Registration Statement at the Effective Date. “Rule 430A Information” means information with respect to the Securities and the offering of the Securities permitted to be omitted from the Registration Statement when it becomes effective pursuant to Rule 430A. Unless otherwise indicated, any reference to a rule or regulation refers to such rule or regulation under the Act. Any reference herein to the Registration Statement, the Basic Prospectus, a Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or before the Effective Date of the Registration Statement or the issue date of the Basic Prospectus, the Preliminary Prospectus or the Prospectus, as the case may be; and any reference herein to the

 

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terms “amend”, “amendment” or “supplement” with respect to the Registration Statement, the Basic Prospectus, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement, or the issue date of the Basic Prospectus, the Preliminary Prospectus or the Prospectus, as the case may be, deemed to be incorporated therein by reference. “Free Writing Prospectus” shall mean a “free-writing prospectus,” as defined pursuant to Rule 405 under the Act, and “Trust Free Writing Prospectus” shall mean any Free Writing Prospectus that is included in the Time of Sale Information.

 

At or prior to   :       .m. on [Month day], 200X (the “Time of Sale”), the Seller had prepared the Preliminary Prospectus [and [DESCRIBE ANY FREE WRITING PROSPECTUS]] ([collectively,] the “Time of Sale Information”). If, subsequent to the date of this Agreement, the Seller and the Representatives determine that 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 the Representatives advise the Seller that the Underwriters have reformed the purchase contracts with investors of the Notes, then “Time of Sale Information” will refer to the information available to purchasers at the time of entry into the first reformed purchase contract, including any information that corrects such material misstatements or omissions (such new information, the “Corrective Information”).

 

2.             Representations and Warranties . The Seller, and with respect to items (e), (f), (h), (i), (j), (k), (l), (m), (n), (o), (q), (r), (s), (t) and (u) 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)           The Seller meets the requirements for use of Form S-3 under the Act, and has filed with the Commission a registration statement (Registration No. 333-130656) on such Form, including a preliminary basic prospectus and a preliminary prospectus supplement for registration under the Act of the offering and sale of the Securities.  The Seller may have filed one or more amendments thereto as may have been required to the date hereof, each of which amendments has been previously furnished to you.  The Seller will next file with the Commission one of the following: (i) prior to the effectiveness of such registration statement, an amendment thereto (including the form of final basic prospectus and the form of final prospectus supplement relating to the Securities), (ii) after effectiveness of such registration statement, a final basic prospectus and a final prospectus supplement relating to the Securities in accordance with Rules 430A and 424(b)(1) or (4), or (iii) after the effectiveness of such registration statement, a final basic prospectus and a final prospectus supplement relating to the Securities in accordance with Rules 415 and 424(b)(2) or (5). In the case of clauses (ii) and (iii), the Seller has included in such registration statement, as amended at the Effective Date, all information (other than Rule 430A Information) required by the Act and the Rules thereunder to be included in the Prospectus with respect to the Securities and the offering thereof. As filed, such amendment and form of final prospectus supplement, or such final prospectus supplement, shall include all Rule 430A Information, together with all other such required information with respect to the Securities and the offering thereof and, except to the extent that the Underwriters shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the latest preliminary basic prospectus and preliminary prospectus supplement that have previously been

 

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furnished to you) as the Seller has advised you, prior to the Execution Time, will be included or made therein. If the registration statement contains the undertaking specified by Regulation S-K Item 512(a), the registration statement, at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).

 

(b)           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, however , that the Seller makes no representation or warranty as to the information contained in or omitted from the Time of Sale Information in reliance upon and in conformity with information furnished in writing to the Seller by any Underwriter through you specifically for use in the Time of Sale Information, it being agreed that the only such information consists of the “Underwriter Information” (as defined in paragraph (d) below); and provided further that if subsequent to the Time of Sale but prior to or on the Closing Date the Seller and the Representatives determine that the Time of Sale Information included an untrue statement of material fact or omitted to state a material fact necessary to make the statements therein in light of the circumstances under which they were made not misleading, for purposes of this paragraph as it refers to the Closing Date, Time of Sale Information will include information available to purchasers on the Closing Date including Corrective Information.

 

(c)           Other than the Preliminary Prospectus and the Prospectus, the Seller (including its agents and representatives other than the Underwriters in their capacity as such) has not prepared or authorized, and will not prepare or authorize any “written communication” (as defined in Rule 405) that constitutes an offer to sell or solicitation of an offer to buy the Notes other than any Trust Free Writing Prospectus included in the Time of Sale Information and other written communication approved by the Representatives. Any Trust Free Writing Prospectus complied in all material respects with the Act, has been filed in accordance with Section 9 (to the extent required by Rule 433).

 

(d)           On the Effective Date and on the date of this Agreement, the Registration Statement did or will, and, when the Prospectus is first filed (if required) in accordance with Rule 424(b) and on the Closing Date (as defined below), the Prospectus (and any supplements thereto) will, comply in all material respects with the applicable requirements of the Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the respective rules and regulations of the Commission thereunder (the “Rules and Regulations”); on the Effective Date, the Registration Statement did not or will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and, on the Effective Date, the Prospectus, if not filed pursuant to Rule 424(b), did not or will not, and on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus (together with any supplement thereto) will not include 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, however , that the Seller makes no representation or warranty as to the information contained in or omitted from the Registration Statement 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 you specifically for use in connection with preparation of the Registration Statement 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]

 

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paragraphs (concerning overallotment, stabilizing transactions and syndicate covering transactions) under the heading “Underwriting” in the Prospectus Supplement (such information, the “Underwriter Information”). 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.

 

(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 Registration Statement 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 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).

 

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(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)           If the Time of Sale Information includes any Trust Free Writing Prospectus, then the Seller is not, and on the date on which the first bona fide offer of the Notes is made will not be, an “ineligible issuer”, as defined in Rule 405.

 

(p)           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).

 

(q)           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

 

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obtained and made on or prior to the Closing Date under the Act and such as may be required under state securities laws.

 

(r)            Since            , 200X 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.

 

(s)           The computer tape of the Receivables created as of                  , 200X 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.

 

(t)            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 1 hereof).

 

(u)           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               , 200X (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.

 

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

 

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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 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)           The Seller will use its best efforts to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective. Prior to the termination of the offering of the Notes, the Seller will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Seller has furnished you a

 

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copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Prospectus is otherwise required under Rule 424(b), the Seller will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to you of such timely filing.  Subject to Section 9, the Seller will file any Trust Free Writing Prospectus to the extent required by Rule 433.

 

(b)           The Seller will advise you promptly of any proposal to amend or supplement the Registration Statement as filed, or the related Prospectus and will not effect such amendment or supplement without your consent, which consent will not unreasonably be withheld; the Seller will also advise you promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information; and the Seller will also advise you promptly of the effectiveness of the Registration Statement and any amendment thereto, when the Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b) and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Seller will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued stop order.

 

(c)           If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Registration Statement or supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Seller promptly will notify you and will prepare and file, or cause to be prepared and filed, with the Commission, subject to the second sentence of paragraph (a) of this Section 6, an amendment or supplement that will correct such statement or omission, or effect such compliance. Any such filing shall not operate as a waiver or limitation on any right of any Underwriter hereunder.

 

(d)           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 Effective Date of the Registration Statement that will satisfy the provisions of Section 11(a) of the Act.

 

(e)           The Seller will furnish to the Underwriters copies of the Registration Statement (one of which will be signed and will include all exhibits), each related preliminary prospectus (including the Preliminary Prospectus), the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the Underwriters request.

 

(f)            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.

 

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(g)           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 and the annual independent certified public accountants’ reports furnished to the Trustee or the Indenture Trustee pursuant to the Sale and Servicing Agreement, as soon as such statements and reports are furnished to the Trustee or the Indenture Trustee.

 

(h)           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.

 

(i)            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.

 

(j)            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.

 

(k)           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.

 

(l)            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.

 

(m)          The Seller will enter into, and will cause the Issuer to enter into, each Basic Document to which this Agreement and each Basic Document contemplates the Seller and/or the Issuer 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

 

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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(f), 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 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 and (ix) the fees and expenses, if any, incurred with respect to any filing with the National Association of Securities Dealers, Inc.

 

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)           The Prospectus and any supplements thereto shall have been filed (if required) with the Commission 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.

 

(c)