CASE CREDIT CORPORATION
Debt Securities
UNDERWRITING AGREEMENT
----------------------
October [ ], 1997
To the Underwriter or
Underwriters named in
the within mentioned
Terms Agreement
Ladies and Gentlemen:
1. Introductory. Case Credit Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell from time to time certain of its debt
securities registered under the registration statements referred to in Section
2(a) (the "Securities"). The Securities will be issued under an indenture, dated
as of October [ ], 1997 (the "Indenture"), between the Company and The Bank of
New York, as Trustee (the "Trustee"), in one or more series, which series may
vary as to interest rates, maturities, redemption provisions, selling prices and
other terms, with all such terms for any particular series of the Securities
being determined at the time of sale. Particular series of the Securities, will
be sold pursuant to a Terms Agreement referred to in Section 3, for resale in
accordance with terms of offering determined at the time of sale.
The Securities involved in any such offering are hereinafter referred to as
the "Offered Securities". The firm or firms which agree to purchase the Offered
Securities are hereinafter referred to as the "Underwriters" of such Offered
Securities, and the representative or representatives of the Underwriters, if
any, specified in a Terms Agreement referred to in Section 3 are hereinafter
referred to as the "Representatives"; provided, however, that if the Terms
Agreement does not specify any representative of the Underwriters, the term
"Representatives", as used in this Agreement (other than in Sections 2(b), 5(c)
and 6 and the second sentence of Section 3), shall mean the Underwriters.
2. Representations and Warranties.
The Company, as of the date of each Terms Agreement referred to in
Section 3, represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333-[ ]), including a
prospectus, and a registration statement (No. 33-80775) relating to the
Securities have each been filed with the Securities and Exchange Commission
("Commission") and has been declared effective under the Securities Act of
1933, as amended (collectively with all rules and regulations of the
Commission thereunder, the "Act"). Such registration statements, as amended
at the date of any Terms Agreement referred to in Section 3 (the "Terms
Agreement Date"), including all documents incorporated therein by reference
and all exhibits thereto, are hereinafter referred to as the "Registration
Statement", and the prospectus included in the registration statement No.
333-[ ], as supplemented as contemplated by Section 3 to reflect the
terms of the applicable Offered Securities and the terms of offering
thereof as most recently filed, or transmitted for filing, with the
Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)")
under the Act including all material and information incorporated by
reference therein, is hereinafter referred to as the "Prospectus," except
that if any revised prospectus shall be provided to the Underwriters by the
Company for use in connection with the offering of Securities, which
differs from the Prospectus most recently filed, or transmitted for filing,
with the Commission (whether or not such revised prospectus is required to
be filed by the Company pursuant to Rule 424(b)), the term "Prospectus"
shall refer to such revised prospectus from and after the time it is first
provided to the Underwriters for such use, including all material and
information incorporated by reference therein. All references in this
Agreement to financial statements and schedules and other information that
is "contained," "included" or "stated" in the Registration Statement, any
preliminary prospectus or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements
and schedules and other information that are or are deemed to be
incorporated by
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reference in the Registration Statement or the Prospectus, as the case may
be. Any reference herein to the terms "amend," "amendment" or "supplement"
with respect to the Registration Statement, any preliminary prospectus or
the Prospectus shall be deemed to refer to and include the filing of any
document under the Securities Exchange Act of 1934, as amended (together
with all rules and regulations of the Commission thereunder, the "Exchange
Act"), after the effective date of the Registration Statement, or the issue
date of any preliminary prospectus or the Prospectus, as the case may be,
and on or prior to the completion of the applicable offering and which is
deemed to be incorporated therein by reference. Copies of such Registration
Statement and the Prospectus relating thereto, any such amendment or
supplement and all documents incorporated by reference therein which were
filed with the Commission on or prior to the Terms Agreement Date
(including one fully executed copy of the Registration Statement and of
each amendment thereto for counsel for the Underwriters) have been
delivered to each of the Representatives. The Registration Statement and
the Prospectus shall be in all material respects in the form furnished to
the Underwriters prior to the Terms Agreement Date or, to the extent not
completed or required to be amended at the Terms Agreement Date, shall
contain only such additional material information and other material
changes as the Company has advised the Underwriters, a reasonable time
prior to the Terms Agreement Date, is to be included or made therein and as
to which the Underwriters have not reasonably objected.
(b) On the effective date of the Registration Statement relating to
the Registered Securities (the "Effective Date"), such registration
statement conformed as to form in all material respects to the requirements
of the Act, the Trust Indenture Act of 1939, as amended (collectively with
all rules and regulations of the Commission thereunder, "Trust Indenture
Act"), and the other applicable rules and regulations of the Commission
("Rules and Regulations") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not
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misleading, and on the date of each Terms Agreement referred to in Section
3, the Prospectus will conform as to form in all material respects to the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations, and on such date the Prospectus will not include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, except that
the foregoing does not apply to (a) statements in or omissions from any of
such documents based upon written information furnished to the Company by
any Underwriter through the Representatives, if any, specifically for use
therein and (b) that part of the Registration Statement that constitutes
the Statement of Eligibility on Form T-1 of the Trustee under the Trust
Indenture Act filed as an exhibit to the Registration Statement (the "Form
T-1").
(c) (A) No stop order suspending the effectiveness of the
Registration Statement is in effect and, to the knowledge of the Company,
no proceedings for that purpose are pending before or threatened by the
Commission and (B) each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus complied
or will comply when so filed as to form in all material respects with the
Exchange Act and did not, or will not when so filed, contain an untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in the light of the circumstances under which
they were made, not misleading, excluding any statement in any such
document that does not constitute part of the Registration Statement or the
Prospectus pursuant to Rule 412 under the Act; provided, however, that this
representation and warranty shall not apply to any statements in or
omissions from any such documents based upon written information furnished
to the Company by any Underwriter, through the Representatives, if any,
specifically for use therein.
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(d) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and the Company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or leasing of property or the conduct
of its business requires such qualification, other than any failure to be
so qualified or in good standing as would not singly or in the aggregate
with all such other failures reasonably be expected to have a material
adverse effect on the assets, liabilities, results of operations or
financial condition of the Company and its consolidated subsidiaries (as
defined in Rule 1-02(x) of the Commission's Regulation S-X), taken as a
whole (a "Material Adverse Effect").
(e) Each subsidiary (including, if applicable, partnerships of which
the Company is a general partner) of the Company that meets the conditions
for a "significant subsidiary" set forth in Rule 1-02(w) of the
Commission's Regulation S-X (collectively, the "Subsidiaries") is duly
organized and validly existing as a corporation or partnership in good
standing (if applicable) under the laws of the jurisdiction of its
incorporation or formation, has the corporate or other power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified to transact business as a
foreign corporation or partnership and is in good standing (if applicable)
in each jurisdiction in which the conduct of its business or its ownership,
leasing or operation of property requires such qualification, other than
any failure to be so qualified or in good standing as would not singly or
in the aggregate with all such other failures reasonably be expected to
have a Material Adverse Effect.
(f) The Indenture has been duly authorized by the Company and has
been duly qualified under the Trust Indenture Act; the Indenture
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complies as to form in all material respects with the requirements of the
Trust Indenture Act; the Offered Securities have been duly authorized by
the Company; and when the Offered Securities are delivered and paid for
pursuant to the Terms Agreement on the Closing Date (as defined below) or
pursuant to Delayed Delivery Contracts (as hereinafter defined), the
Indenture will have been duly executed and delivered by the Company, such
Offered Securities will have been duly executed, authenticated, issued and
delivered by the Company and will conform in all material respects to the
description thereof contained in the Prospectus, and the Indenture and such
Offered Securities will constitute valid and legally binding obligations of
the Company, entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights, to public policy considerations
and to general equity principles.
(g) The Offered Securities have been approved for listing on the
stock exchange, if any, indicated in the Terms Agreement, subject to notice
of issuance.
(h) 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 the Terms Agreement
(including the provisions of this Agreement) in connection with the
issuance and sale of the Offered Securities by the Company, except such as
are required under the Act and the Trust Indenture Act and such as may be
required under state securities laws.
(i) The execution, delivery and performance of the Indenture, the
Terms Agreement (including the provisions of this Agreement) and any
Delayed Delivery Contracts and the issuance and sale of the Offered
Securities and compliance with the terms and provisions
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thereof do not and will not (i) contravene any provision of the certificate
of incorporation, by-laws or other organizational documents of the Company
or of any of the Subsidiaries, or (ii) conflict with or result in a breach
or violation of any of the terms and provisions of, or constitute a default
under (including, without limitation, any event which with notice or lapse
of time, or both, would constitute a default under), or result in the
creation or imposition of any lien, charge or encumbrance upon any assets
or properties of the Company or of any of the Subsidiaries under, any
statute, rule, regulation, order or decree of any governmental agency or
body or any court having jurisdiction over any of them or any of their
respective properties, assets or operations, or any indenture, mortgage,
loan agreement, note or other agreement or instrument for borrowed money,
any guarantee of any agreement or instrument for borrowed money or any
lease, permit, license or other agreement or instrument to which the
Company or any of the Subsidiaries is a party or by which the Company or
any of the Subsidiaries is bound or to which any of the properties, assets
or operations of any of them is subject, other than any such breach,
violation, default, lien, charge or encumbrance as would not singly or in
the aggregate with all such other breaches, violations, defaults, liens,
charges or encumbrances reasonably be expected to have a Material Adverse
Effect.
(j) The Terms Agreement (including the provisions of this Agreement)
and any Delayed Delivery Contracts have been duly authorized, executed and
delivered by the Company.
(k) The Company and the Subsidiaries have such certificates, permits,
licenses, franchises, consents, approvals, orders, authorizations and
clearances from appropriate governmental agencies and bodies ("Licenses")
as are necessary to own, lease or operate their properties and to conduct
their businesses in the manner described in the Prospectus, and all such
Licenses are valid and in full force and effect, other than any failure to
have any such
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License or any failure of any such License to be valid and in full force
and effect as would not singly or in the aggregate with all such other
failures have a Material Adverse Effect.
(l) Except as set forth in the Registration Statement and the
Prospectus, the properties, assets and operations of the Company and the
Subsidiaries are in compliance in all material respects with all applicable
Federal, state, local and foreign laws, rules and regulations, orders,
decrees, judgments, permits and licenses relating to public and worker
health and safety and to the protection and clean-up of the natural
environment and activities or conditions related thereto, including,
without limitation, those relating to the generation, handling, disposal,
transportation or release of hazardous materials (collectively,
"Environmental Laws"), other than any such failure to be in compliance as
would not singly or in the aggregate with all such other failures known to
the Company reasonably be expected to have a Material Adverse Effect. With
respect to such properties, assets and operations, including any previously
owned, leased or operated properties, assets or operations, to the best
knowledge of the Company and except as set forth in the Registration
Statement and the Prospectus, there are no past, present or reasonably
anticipated future events, conditions, circumstances, activities,
practices, incidents, actions or plans of the Company or any of the
Subsidiaries that may interfere with or prevent compliance or continued
compliance in all material respects with applicable Environmental Laws,
other than any such interference or prevention as would not singly or in
the aggregate with any such other interference or prevention known to the
Company reasonably be expected to have a Material Adverse Effect.
(m) Except as set forth in the Registration Statement and the
Prospectus, there are no pending actions, suits, proceedings or
investigations against or affecting the Company or any of the Subsidiaries,
or with respect to which the Company or any of the Subsidiaries is re-
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sponsible by way of indemnity or otherwise, that would singly or in the
aggregate with all such other actions, suits, investigations or proceedings
reasonably be expected to have a Material Adverse Effect, or reasonably be
expected to have a material adverse effect on the ability of the Company to
perform its obligations under this Agreement, the Indenture, the Offered
Securities or any Delayed Delivery Contract; and, to the best knowledge of
the Company, except as set forth in the Registration Statement and the
Prospectus, no such actions, suits, proceedings or investigations are
threatened.
(n) Since the date of the latest audited financial statements of the
Company included or incorporated by reference in the Prospectus, except as
disclosed in or contemplated by the Prospectus: (A) Neither the Company nor
any Subsidiary has sustained any material loss or interference with its
consolidated business or properties from fire, flood, windstorm, accident
or other calamity (whether or not covered by insurance); (B) There has been
no material increase in the long-term indebtedness of the Company, no
material change in the capital stock of the Company and no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock not consistent with past practice; and (C) There has
not been or become known any Material Adverse Effect, or any development
that could singly or in the aggregate with all other developments
reasonably be expected to result in a Material Adverse Effect.
(o) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof
as described in the Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940.
(p) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075,
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Florida Statutes and the Company agrees to comply with such Section if
prior to the completion of the distribution of the Offered Securities it
commences doing such business.
(q) Except as set forth in the Registration Statement and the
Prospectus, no labor disturbance by the employees of the Company or any of
the Subsidiaries exists or, to the best knowledge of the Company, is
threatened, that would singly or in the aggregate with all such other labor
disturbances reasonably be expected to have a Material Adverse Effect.
(r) The audited consolidated and combined financial statements of the
Company and the Case Credit Business (as defined in Note 2 to the Company's
financial statements contained in the Company's Form 10-K for the fiscal
year ended December 31, 1996) and related schedules, if any, and notes
included or incorporated by reference in the Registration Statement and the
Prospectus comply in all material respects with the requirements of the the
Exchange Act and the Rules and Regulations, were prepared in accordance
with generally accepted accounting principles consistently applied
throughout the periods involved (except as otherwise stated therein) and
fairly present the consolidated and combined financial condition, results
of operations, cash flows, changes in combined equity and changes in
stockholders' equity, as the case may be, of the Company or the Case Credit
Business, as the case may be, on a consolidated or combined basis, as the
case may be, at the dates and for the periods presented. The unaudited
consolidated financial statements of the Company and the related notes
included or incorporated by reference in the Registration Statement and the
Prospectus present fairly the consolidated financial condition, results of
operations, cash flows, changes in combined equity and changes in
stockholders' equity, as the case may be, of the Company at the dates and
for the periods to which they relate, subject to year-end audit
adjustments, have been prepared in accordance with generally accepted
account-
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ing principles applied on a consistent basis (except as otherwise stated
therein) and have been prepared on a basis substantially consistent with
that of the audited financial statements referred to above, except as
otherwise stated therein. The historical financial information and
statistical data, if any, set forth or incorporated by reference in the
Prospectus under the captions "Summary Historical and Pro Forma Financial
Data of the Company," "Selected Historical Financial Data of the Company"
and "Capitalization of the Company" or under any similar caption present
fairly the information shown therein and, except as otherwise stated
therein, have been compiled on a basis consistent with that of the audited
consolidated and combined financial statements of the Company and, if
applicable, the Case Credit Business, as the case may be, included or
incorporated by reference in the Registration Statement and the Prospectus.
If pro forma financial statements with respect to the Company or the Case
Credit Business are included or incorporated by reference in the
Registration Statement and the Prospectus, such pro forma financial
statements and other pro forma financial information included in the
Prospectus present fairly the information shown therein, have been prepared
in all material respects in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements, have been
properly compiled on the pro forma basis described therein and, in the
opinion of the Company, the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect
to the transactions or circumstances referred to therein. No pro forma
financial statements or other pro forma financial information with respect
to the Company or the Case Credit Business is required to be included or
incorporated by reference in the Registration Statement and the Prospectus
other than those included or incorporated by reference therein. The
Company's ratios of earnings to fixed charges (actual and, if any, pro
forma) included in the Prospectus under the caption "Ratio of Earnings to
Fixed Charges" and in Exhibit 12 to the Registration Statement
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have been calculated in compliance with Item 503(d) of Regulation S-K of
the Commission and the supporting schedules included in the Registration
Statement present fairly the information required to be stated therein.
3. Purchase and Offering of Offered Securities. The obligation of the
Underwriters to purchase the Offered Securities will be evidenced by an
agreement substantially in the form of Annex II attached hereto ("Terms
Agreement") at the time the Company determines to sell the Offered Securities.
The Terms Agreement will incorporate by reference the provisions of this
Agreement, except as otherwise provided therein, and will specify the firm or
firms which will be Underwriters, the names of any Representatives, the
principal amount to be purchased by each Underwriter, the purchase price to be
paid by the Underwriters and the terms of the Offered Securities not already
specified in the Indenture, including, but not limited to, interest rate,
maturity, any redemption provisions and any sinking fund requirements and
whether any of the Offered Securities may be sold to institutional investors
pursuant to Delayed Delivery Contracts (as defined below). The Terms Agreement
will also specify the time and date of delivery and payment (such time and date,
or such other time not later than ten full business days thereafter as the
Underwriter first named in the Terms Agreement (the "Lead Underwriter") and the
Company agree as the time for payment and delivery, being herein and in the
Terms Agreement referred to as the "Closing Date"), the place of delivery and
payment and any details of the terms of offering that should be reflected in the
prospectus supplement relating to the offering of the Offered Securities. The
obligations of the Underwriters to purchase the Offered Securities will be
several and not joint. It is understood that the Underwriters propose to offer
the Securities for sale as set forth in the Prospectus.
If the Terms Agreement provides for sales of Offered Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters to solicit
offers to purchase Offered Securities pursuant to delayed delivery contracts
substantially in the form of Annex I attached hereto ("Delayed Delivery
Contracts") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. On the Closing Date the
Company will pay, as compensation, to the Lead Underwriter for the accounts of
the Underwriters, the fee set forth
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in such Terms Agreement in respect of the principal amount of Offered Securities
to be sold pursuant to Delayed Delivery Contracts ("Contract Securities"). The
Underwriters will not have any responsibility in respect of the validity or the
performance of Delayed Delivery Contracts. If the Company at its option executes
and delivers Delayed Delivery Contracts, the Contract Securities will be
deducted from the Offered Securities to be purchased by the several Underwriters
and the aggregate principal amount of Offered Securities to be purchased by each
Underwriter will be reduced pro rata in proportion to the principal amount of
Offered Securities set forth opposite each Underwriter's name in such Terms
Agreement, except to the extent that the Lead Underwriter determines that such
reduction shall be otherwise than pro rata and so advises the Company. The
Company will advise the Lead Underwriter not later than the business day prior
to the Closing Date of the principal amount of Contract Securities.
If the Terms Agreement does not specify "Book-Entry Only" settlement, the
Offered Securities delivered to the Underwriters on the Closing Date will be in
definitive fully registered form, in such denominations and registered in such
names as the Lead Underwriter requests.
If the Terms Agreement specifies "Book-Entry Only" settlement or otherwise
states that the provisions of this paragraph shall apply, the Company will
deliver against payment of the purchase price the Offered Securities in the form
of one or more permanent global Offered Securities in definitive form (the
"Global Securities") deposited with the Trustee as custodian for The Depository
Trust Company ("DTC") or with DTC and registered in the name of a nominee for
DTC. Interests in any permanent global Offered Securities will be held only in
book-entry form through DTC, except in the limited circumstances described in
the Prospectus. Payment for the Offered Securities shall be made by the
Underwriters in Federal (same day) funds by official check or checks or wire
transfer to an account in New York or Chicago previously designated to the Lead
Underwriter by the Company at a bank reasonably acceptable to the Lead
Underwriter, in each case drawn to the order of Case Credit Corporation at the
place of payment specified in the Terms Agreement on the Closing Date, against
delivery to the Trustee as custodian for DTC or to DTC of the Global Securities
representing all of the Offered Securities.
4. Certain Agreements of the Company. The Company agrees with the several
Underwriters that in connection with each offering of Offered Securities:
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(a) The Company will file the Prospectus with the Commission pursuant to
and in accordance with Rule 424(b)(1) or (2), as applicable (or, if applicable
and if consented to by the Lead Underwriter (which consent shall not be
unreasonably withheld), subparagraph (4) or (5), as applicable), not later than
the second business day following the execution and delivery of the Terms
Agreement or, if applicable, such later time as may be permitted by Rule 424.
(b) The Company will advise the Lead Underwriter promptly of any proposal
to amend or supplement the Registration Statement (including any post-effective
amendment) or the Prospectus (including any revised prospectus which the Company
proposes for use by the Underwriters in connection with the offering of the
Offered Securities which differs from the prospectus most recently filed, or
transmitted for filing, with the Commission, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b)) and will afford the
Lead Underwriter a reasonable opportunity to comment on any such proposed
amendment or supplement and, after the date of the Terms Agreement and prior to
the later of the purchase and payment for the Offered Securities on the Closing
Date and the completion of distribution by the Underwriters of the Offered
Securities, will not effect any such amendment or supplementation without the
prior consent of the Lead Underwriter, which consent shall not be unreasonably
withheld or delayed, unless in the opinion of counsel for the Company such
amendment or supplement is required by law; and the Company will also advise the
Lead Underwriter promptly of (i) the filing of any such amendment or supplement
and of the institution by the Commission of any stop order proceedings in
respect of the Registration Statement or of any part thereof, (ii) of the
receipt of any comments from the Commission or of any request by the Commission
for any amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for any additional information and (iii) of the receipt by
the Company of any notification with respect to any suspension of the
qualification of the Offered Securities for offer and sale in any jurisdiction
or the initiation of any proceeding for such purpose; and to use
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its best efforts to prevent the issuance of any such stop order or notification
and, if issued, to obtain as soon as possible the withdrawal thereof.
(c) If, at any time when a prospectus relating to the Offered Securities
is required to be delivered under the Act in connection with sales by any
Underwriter or dealer, any event occurs, condition exists or information becomes
known 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 Prospectus to comply with the Act, the Company promptly will notify
the Lead Underwriter of such event, condition or information and will, subject
to paragraph (b) of this Section 4, promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will correct
such statement or omission or an amendment which will effect such compliance.
Neither the Lead Underwriter's consent to, nor the Underwriters' delivery of,
any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 5.
(d) As soon as practicable, but not later than 16 months, after the date of
each Terms Agreement, the Company will make generally available to its
securityholders an earnings statement complying with Section 11(a) of the Act
and the Rules and Regulations (including at the option of the Company Rule 158
under the Act).
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus and
all amendments and supplements to such documents, in each case as soon as
available and in such quantities as the Lead Underwriter reasonably requests.
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(f) The Company will arrange for the qualification of the Offered
Securities under the laws of such jurisdictions as the Lead Underwriter
reasonably designates and will continue such qualifications in effect so long as
required for the distribution; provided that in connection therewith the Company
shall not be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction.
(g) During the period of five years after the date of any Terms Agreement,
the Company will furnish to the Representatives and, upon request, to each of
the other Underwriters, if any, as soon as practicable after the end of each
fiscal year, a copy of its annual report to stockholders for such year if the
Company prepares such a report; and the Company will furnish to the
Representatives (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission under the
Exchange Act or mailed to stockholders, and (ii) from time to time, such other
information concerning the Company as the Lead Underwriter may reasonably
request.
(h) The Company will pay all expenses incident to the performance of its
obligations under the Terms Agreement (including the provisions of this
Agreement), including, without limitation, all costs and expenses (i) incurred
in connection with the preparation, issuance, execution and delivery of the
Offered Securities, (ii) incurred in connection with the preparation, printing
and filing under the Act and the Exchange Act, if applicable, of the
Registration Statement, the Prospectus, any preliminary prospectus and each
prospectus supplement (including in each case all exhibits, amendments and
supplements thereto), (iii) in connection with the listing, if any, of the
Offered Securities
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on any securities exchange set forth in the Terms Agreement, (iii) incurred in
connection with the engagement of any qualified independent underwriter as may
be required by rules and regulations of the National Association of Securities
Dealers, Inc., (iv) incurred in connection with the rating of the Offered
Securities, (v) relating to the fees and expenses of the Trustee, including the
fees and expenses of counsel to the Trustee and (vi) relating to or in
connection with the duplication costs and delivery of this Agreement, the Terms
Agreement, the Indenture, any supplemental indenture relating thereto, the
agreement among underwriters, each other document or instrument relating to the
underwriting arrangements and any dealer agreements, and will reimburse the
Underwriters (if and to the extent incurred by them) for any filing fees or
other expenses (including fees and disbursements of counsel) incurred by them in
connection with qualification of the Offered Securities for sale under the laws
of such jurisdictions as the Lead Underwriter may reasonably designate and the
printing of memoranda relating thereto, for any applicable filing fee of the
National Association of Securities Dealers, Inc. relating to the Offered
Securities, for any travel expenses of the Company's officers and employees and
any other expenses of the Company in connection with attending or hosting
meetings with prospective purchasers of Registered Securities and for expenses
incurred in distributing the Prospectus, any preliminary prospectuses, any
preliminary prospectus supplements or any other amendments or supplements to the
Prospectus to the Underwriters.
(i) The Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the Commission a registration
statement under the Act relating to United States dollar-denominated debt
securities issued or guaranteed by the Company and having a maturity of more
than one year from the date of issue, or publicly disclose the intention to make
any such offer, sale, pledge, disposal or filing, without the prior consent of
the Lead Underwriter for a period beginning at the time of execution of the
Terms Agreement and ending the number of days after the Closing Date specified
under "Blackout" in the Terms Agreement.
-17-
(j) During the period when the Prospectus is required to be delivered
under the Act or the Exchange Act, the Company will file all documents required
to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange
Act within the time period required by the Exchange Act.
5. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company herein on and as of the Closing Date as if made on and as of the Closing
Date, to the accuracy of the statements of officers of the Company made pursuant
to the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions precedent:
(a) On or prior to the date of the Terms Agreement, the Representatives
shall have received a letter, dated the date of delivery thereof, of Xxxxxx
Xxxxxxxx LLP confirming that they are independent public accountants within the
meaning of the Act and the applicable published Rules and Regulations thereunder
and stating in effect that:
(i) in their opinion the financial statements and any schedules
audited by them and included or incorporated by reference in the
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards
No. 71, Interim Financial Information, on any unaudited financial
statements included or incorporated by reference in the Registration
Statement;
(iii) they have read the unaudited pro forma financial information
included in the Registration Statement and Prospectus, if any;
(iv) on the basis of the review referred to in clause (ii) above and
the reading referred to in clause (iii) above, a reading of the latest
available interim financial statements of the Company, inquir-
-18-
ies of officials of the Company who have responsibility for financial
and accounting matters and other specified procedures, nothing came to
their attention that caused them to believe that:
(A) the unaudited financial statements, if any, included or
incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the Exchange Act and the related published Rules
and Regulations or any material modifications should be made to
such unaudited financial statements for them to be in conformity
with generally accepted accounting principles;
(B) if any unaudited "capsule" information is contained in
the Prospectus, the unaudited consolidated net revenue, net
income before interest expense and income taxes, net income or
other amounts of the Company constituting such "capsule"
information and described in such letter do not agree with (i) if
available, the corresponding amounts set forth in the unaudited
consolidated financial statements, or if not available, (ii)
amounts in the Company's consolidation schedules derived from
their respective accounting records, or with amounts totaled from
such schedules or were not determined on a basis substantially
consistent with that of the corresponding amounts in the audited
statements of income;
(C) the unaudited pro forma financial information, if any,
included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of
Rule 11-02 of Regulation S-X and that the pro forma adjustments
have not been properly applied to the historical amounts in the
compilation of those statements;
(D) at the date of the latest available balance sheet of the
Company read by such accountants, or at a subsequent specified
date not more than five days prior to the date of the Terms
Agreement, there was any change in the capital stock, any
decrease in stockholders'
-19-
equity or any increase in short-term indebtedness or long-term
debt of the Company and its consolidated subsidiaries or, at the
date of the latest available balance sheet of the Company read by
such accountants, there was any decrease in consolidated net
assets of the Company, as compared with amounts shown on the
latest balance sheet of the Company included or incorporated by
reference in the Prospectus; or
(E) for the period from the closing date of the latest
income statement of the Company incorporated by reference in the
Prospectus to the closing date of the latest available income
statement of the Company read by such accountants, or for the
period from the latest available income statement of the Company
read by such accountants to a specified date not more than five
days prior to the date of the Terms Agreement, there were any
decreases, as compared with the corresponding period of the
previous year in consolidated total revenue, net income or in the
ratio of earnings to fixed charges of the Company;
except in all cases set forth in clauses (D) and (E) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur; and
(v) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained or incorporated by reference in the Prospectus (in each case
to the extent that such dollar amounts, percentages and other
financial information are derived from the general accounting records
of the Company and its subsidiaries subject to the internal controls
of the Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such
letter and reasonably acceptable to the Lead Underwriter.
-20-
(b) If any amendment to the Registration Statement filed prior to the
Terms Agreement Date has not been declared effective as of the Terms
Agreement Date, such amendment shall have been declared effective not later
than 5:30 p.m. (New York City time) on the Terms Agreement Date. The
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 4(a) of this Agreement. No stop order
suspending the effectiveness of the Registration Statement or of any part
thereof shall have been issued and be continuing in effect and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or any Underwriter, shall be contemplated by the
Commission. No amendment or supplement to the Prospectus shall have been
filed to which the Lead Underwriter shall have objected pursuant to Section
4(b).
(c) Subsequent to the execution of the Terms 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 Company or its subsidiaries which, in the judgment of a
majority in interest of the Underwriters including any Representatives,
materially impairs the investment quality of the Offered Securities; (ii)
any downgrading in the rating of any debt securities or preferred stock of
the Company by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or review
with possible negative implications its rating of any debt securities or
preferred stock of the Company; (iii) 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, or any suspension
of trading of any securities of the Company on any exchange or in the over-
the-counter market; (iv) any banking moratorium declared by U.S. Federal or
New York authorities; or (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 if, in the judgment of a majority in interest of the
-21-
Underwriters including any Representatives, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the sale of and
payment for the Offered Securities.
(d) The Representatives shall have received a signed opinion, dated
the Closing Date and addressed to the Underwriters, of Xxxxx, Xxxxx &
Xxxxx, special counsel for the Company, substantially to the effect that:
(i) The Company is an existing corporation in good standing
under the laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as described
in the Prospectus; and the Company is duly qualified to do business as
a foreign corporation in good standing in all other jurisdictions
within the United States of America in which its ownership or leasing
of property or the conduct of its business requires such qualification
and where the failure to be so qualified or in good standing would
have a material adverse effect upon its operations or financial
condition;
(ii) The Indenture has been duly authorized, executed and
delivered by the Company and has been duly qualified under the Trust
Indenture Act; the Indenture complies as to form in all material
respects with the requirements of the Trust Indenture Act; the
Securities have been duly authorized by the Company; the Offered
Securities (other than any Contract Securities) have been duly
executed, authenticated and delivered by the Company; the Indenture
and the Offered Securities other than any Contract Securities
constitute, and any Contract Securities, when executed, authenticated,
issued and delivered in the manner provided in the Indenture and sold
pursuant to Delayed Delivery Contracts, will constitute, valid and
legally binding obligations of the Company enforceable against the
Company in accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights, to public policy considerations and to
general equity principles; and
-22-
the Offered Securities other than any Contract Securities conform, and
any Contract Securities, when so issued and delivered and sold will
conform, in all material respects to the description thereof contained
in the Prospectus;
(iii) To the best of their knowledge without independent
inquiry, 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 the Terms Agreement
(including the provisions of this Agreement) in connection with the
issuance or sale of the Offered Securities by the Company, except such
as are required and have been obtained and made under the Act and the
Trust Indenture Act and such as may be required under state securities
laws (it being understood that such opinion may be limited to such
consents, approvals, authorizations, orders and filings which, in such
counsel's experience, are customarily applicable to transactions of
the type contemplated by this Agreement, the Terms Agreement and the
Indenture);
(iv) The execution, delivery and performance of the Indenture,
the Terms Agreement (including the provisions of this Agreement) and
any Delayed Delivery Contracts and the issuance and sale of the
Offered Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any material
statute, rule, regulation or order of any governmental agency or body
or any court having jurisdiction over the Company, any Subsidiary
incorporated in the United States of America or any of their
respective properties known to such counsel, or the charter or by-laws
of the Company, or any such Subsidiary; and the Company has full power
and authority to authorize, issue and sell the Offered Securities as
contemplated by the Terms Agreement (including the provisions of this
Agreement);
(v) The Registration Statement has become effective under the
Act, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein, and, to the best of the knowledge of
-23-
such counsel, no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and the registration statement relating to
the Securities, as of its effective date, the Prospectus, as of the
date of the Terms Agreement, and any amendment or supplement thereto,
as of its date, complied as to form in all material respects with the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations; such counsel have no reason to believe that such
registration statement, as of its effective date, or any amendment
thereto, as of its date, contained any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or
that the Prospectus, as of the date of the Terms Agreement or as of
such Closing Date, or any amendment or supplement thereto, as of its
date, contained any untrue statement of a material fact or omitted 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; it being understood that such counsel need express no
opinion as to the financial statements or other financial and
statistical data contained in the Registration Statement or the
Prospectus;
(vi) The Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company; and
(vii) Each document filed pursuant to the Exchange Act (other
than the financial statements, schedules and other financial and
statistical data included therein, as to which such counsel need
express no opinion) and incorporated or deemed to be incorporated by
reference in the Prospectus complied as to form in all material
respects with the applicable requirements of the Exchange Act when so
filed.
Such counsel in rendering such opinion may rely as to certain matters of
fact on certificates of officers of the Company and of public officials;
provided, however, that such cer-
-24-
tificates shall have been delivered to the Representatives on or prior to the
Closing Date.
(e) The Representatives shall have received a signed opinion, dated
the Closing Date and addressed to the Underwriters, of Xxxxxxx X. Xxxxxxx,
General Counsel and Secretary of Case Corporation, substantially to the
effect that:
(i) To the best of his knowledge, no consent, approval or
authorization of any third party is required for the consummation of
the transactions contemplated by the Terms Agreement (including the
provisions of this Agreement) in connection with the issuance or sale
of the Offered Securities by the Company, except such as have been
obtained and made and are in full force and effect and such as may be
required under state securities laws;
(ii) The execution, delivery and performance of the Indenture,
the Terms Agreement (including the provisions of this Agreement) and
any Delayed Delivery Contracts and the issuance and sale of the
Offered Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under (including, without
limitation, any event or condition which, with notice or lapse of
time, or both, would constitute a default under), any material
agreement or instrument known to such counsel to which the Company or
any Subsidiary is a party or by which the Company or any Subsidiary is
bound or to which any of the properties of the Company or any
Subsidiary is subject;
(iii) Except as set forth in the Prospectus, there are no
material pending legal proceedings known to such counsel to which the
Company or any Subsidiary is a party or of which the property of the
Company or any Subsidiary is the subject, and to the best knowledge of
such counsel no such proceeding is contemplated; and
(iv) Such counsel has no reason to believe that the registration
statement relating to the Registered Securities, as of its effective
date, or any amendment thereto, as of its date, contained any
-25-
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as of the date of the
Terms Agreement or as of such Closing Date, or any amendment or
supplement thereto, as of its date or as of the Closing Date,
contained or contains any untrue statement of a material fact or
omitted or omits 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; it being understood that such counsel
need express no opinion as to the financial statements or other
financial or statistical data contained in the Registration Statement
or the Prospectus.
Such counsel in rendering such opinion may rely as to certain
matters of fact on certificates of officers of the Company and of
public officials; provided, however, that such certificates shall have
been delivered to the Representatives on or prior to the Closing Date.
(f) The Representatives shall have received from Xxxxxx Xxxxxx &
Xxxxxxx, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities, the Indenture, the Delayed Delivery
Contracts, if any, the Registration Statement, the Prospectus and other
related matters as the Representatives may require, and the Company shall
have furnished to such counsel such documents as they reasonably request
for the purpose of enabling them to pass upon such matters.
(g) The Representatives shall have received a certificate or
certificates, dated the Closing Date, of the President or any Vice
President and a principal financial or accounting officer of the Company in
which such officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of the
Company in this Agreement are true and correct in all material respects,
that the Company has complied in all material respects with all agreements
and satisfied in all material respects all
-26-
conditions on its part to be performed or satisfied hereunder at or prior
to the Closing Date, that no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and is in
effect and, to such officer's knowledge, no proceedings for that purpose
have been instituted or are contemplated by the Commission and that,
subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change in the financial
position or results of operations of the Company or its subsidiaries taken
as a whole except as set forth in or contemplated by the Prospectus or as
described in such certificate and reasonably acceptable to the Lead
Underwriter.
(h) The Representatives shall have received a letter, dated the
Closing Date, of Xxxxxx Xxxxxxxx LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred to
in such subsection will be a date not more than five days prior to the
Closing Date for the purposes of this subsection .
(i) On the Terms Agreement Date (or as otherwise specified in the
Terms Agreement), the Offered Securities shall have been approved for
listing on the securities exchange set forth in the Terms Agreement upon
notice of issuance.
(j) The Company shall have complied with the provisions of Section
4(e) hereof with respect to the furnishing of Prospectuses.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. The Lead Underwriter may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters under this Agreement and the Terms Agreement.
6. Indemnification. (a) The Company agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Act and Section 20 of the Exchange Act as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising
-27-
out of any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment
thereto), including any information deemed included in the
Registration Statement by virtue of Rule 430A under the Act or Rule
434 under the Act, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission;
provided that (subject to Section 6(d) below) any such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to the fourth sentence of Section 6(c), the fees
and disbursements of counsel chosen by the Lead Underwriter),
reasonably incurred in investigating, preparing or defending against
any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Lead Underwriter expressly for use in the Registration
Statement (or any amendment thereto), or any
-28-
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in
the Terms Agreement; provided, further, however, that the foregoing indemnity
with respect to any untrue statement in or omission from any preliminary
prospectus or preliminary prospectus supplement shall not inure to the benefit
of any Underwriter (or to the benefit of any person controlling such
Underwriter) from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities if (i) the Company has complied
with Section 4(b), (c) and (e) of this Agreement, and (ii) a copy of the
Prospectus had not been sent or given to such person at or prior to the written
confirmation of the sale of such Offered Securities to such person if required
by the Act and the Prospectus would have cured the defect giving rise to such
loss, claim, damage or liability. For purposes of the second proviso to the
immediately preceding sentence, the term "Prospectus" shall not be deemed to
include the documents incorporated therein by reference, and no Underwriter
shall be obligated to send or give any supplement or amendment to any document
incorporated by reference in any preliminary prospectus or the Prospectus to any
person.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, its officers who signed the Registration Statement, and
each person if any, who controls the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act against any and all loss, liability,
claim, damage and expense described in the indemnity agreement in Section 6(a),
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the Lead
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnification may
be sought hereunder, but failure to so notify an indemnifying party shall not
relieve it from any liability which
-29-
it may have otherwise than on account of this indemnity agreement. In the case
of parties indemnified pursuant to Section 6(a) above, counsel to the
indemnified parties shall be selected by the Lead Underwriter, and, in the case
of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld or delayed), settle or compromise or consent
to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent includes an unconditional written release in
form and substance satisfactory to the indemnified parties of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party
-30-
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel, an indemnifying party shall not be liable for
any settlement of the nature contemplated by Section 5(a)(ii) effected without
its consent if such indemnifying party (i) reimburses such indemnified party in
accordance with such request to the extent it reasonably considers such request
to be reasonable and (ii) provides written notice to the indemnified party
substantiating the unpaid balance as unreasonable, in each case prior to the
date of such settlement.
(e) If the indemnification provided for in Section 6(a) or (b) hereof is
for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Offered
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Offered
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Offered Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 under the Act is used, the corresponding location on the related term
sheet, bear to the aggregate initial public offering price of the Offered
Securities as set forth on such cover.
-31-
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 6(e) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 6(e). The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 6(e) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 6(e), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Offered Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 6(e), each person, if any, who controls
an Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act shall
have the same rights to contribution as the Company. The Underwriters'
respective ob-
-32-
ligations to contribute pursuant to this Section 6(e) are several in proportion
to the principal amount of the Offered Securities set forth opposite their
respective names in Schedule A to the Terms Agreement and not joint.
7. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Offered Securities under the Terms
Agreement and the aggregate principal amount of Offered Securities that such
defaulting Underwriter or Underwriters agreed but failed to purchase does not
exceed 10% of the total principal amount of Offered Securities, the Lead
Underwriter may make arrangements satisfactory to the Company for the purchase
of such Offered Securities by other persons, including any of the Underwriters,
but if no such arrangements are made by the Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments under the Terms Agreement (including the provisions of this
Agreement), to purchase the Offered Securities that such defaulting Underwriters
agreed but failed to purchase. If any Underwriter or Underwriters so default and
the aggregate principal amount of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total principal amount of Offered
Securities and arrangements satisfactory to the Lead Underwriter and the Company
for the purchase of such Offered Securities by other persons are not made within
36 hours after such default, the Terms Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company, except
as provided in Section 8. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 7. Nothing
herein will relieve a defaulting Underwriter from liability for its default. The
respective commitments of the several Underwriters for the purposes of this
Section 7 shall be determined without regard to reduction in the respective
Underwriters' obligations to purchase the principal amounts of the Offered
Securities set forth opposite their names in the Terms Agreement as a result of
Delayed Delivery Contracts entered into by the Company.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to the Terms Agreement (including the provisions of
this Agreement) will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter, the Company or any of their respective representatives,
officers or direc-
-33-
tors or any controlling person of any of them, and will survive delivery of and
payment for the Offered Securities. If the Terms Agreement is terminated
pursuant to Section 7 or if for any reason the purchase of the Offered
Securities by the Underwriters is not consummated, the Company shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
4 and the respective obligations of the Company and the Underwriters pursuant to
Section 6 and the provisions of Section 13 shall remain in effect. If the
purchase of the Offered Securities by the Underwriters is not consummated for
any reason other than solely because of the termination of the Terms Agreement
pursuant to Section 7 or the occurrence of any event specified in clause (iii),
(iv) or (v) of Section 5(c), the Company will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
9. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to them at their address set forth in the Terms Agreement or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at 000
Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxx 00000, Attention: Chief Financial Officer with a
copy to Case Corporation, 000 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxx 00000, Attention:
Treasurer.
10. Successors. The Terms Agreement (including the provisions of
this Agreement) will inure to the benefit of and be binding upon the Company and
such Underwriters as are identified in the Terms Agreement and their respective
successors and the officers and directors and controlling persons referred to in
Section 6, and no other person will have any right or obligation hereunder.
11. Representation of Underwriters. Any Representatives will act for
the several Underwriters in connection with the financing described in the Terms
Agreement, and any action under such Terms Agreement (including the provisions
of this Agreement) taken by the Representatives jointly or by the Lead
Underwriter will be binding upon all the Underwriters.
12. Counterparts. This Agreement and the Terms Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
Agreement.
-34-
13. Applicable Law. This Agreement and the Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to principles of conflicts of laws.
-35-
If the foregoing is in accordance with your understanding, please sign
and return six counterparts hereof.
Very truly yours,
CASE CREDIT CORPORATION
By:___________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written
By:
By:___________________________
Name:
Title:
-36-
ANNEX I
(Three copies of this Delayed Delivery Contract should
be signed and returned to the address shown below
so as to arrive not later than 9:00 A.M., New York
time, on ..........., 19....*)
DELAYED DELIVERY CONTRACT
-------------------------
[ ], [ ]
CASE CREDIT CORPORATION
c/o [Insert name of Underwriter]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Case Credit
Corporation, a Delaware corporation ("Company"), and the Company agrees to sell
to the undersigned, [If one delayed closing, insert--as of the date hereof, for
delivery on , 19 ("Delivery Date"),]
$..............
principal amount of the Company's [Insert title of securities] ("Securities"),
offered by the Company's Prospectus dated , 19 and a Prospectus
Supplement dated , 19 relating thereto, receipt of copies of
which is hereby acknowledged, at % of the principal amount thereof plus
accrued interest, if any, and on the further terms and conditions set forth in
this Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
--------------------
* Insert date that is two full business days prior to Closing Date under Terms
Agreement.
-2-
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the principal amounts
set forth below:
Delivery Date Principal Amount
------------- ----------------
.................................. .................
.................................. .................
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase
for delivery on--the--each--Delivery Date shall be made to the Company or its
order by certified or official bank check in--New York--Chicago--Clearing
House(next day)--Federal (same day)--funds at the office of
at .M. on--the--such--Delivery Date upon delivery to or for the account
of the undersigned of the Securities to be purchased by the undersigned--for
delivery on such Delivery Date--in definitive fully registered form and-- in
such denominations and registered in such names as the undersigned may designate
by written or telegraphic communication addressed to the Company not less than
five full business days prior to--the--such--Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on--the--each--Delivery Date shall
be subject only to the conditions that (1) investment in the Securities shall
not at--the--such--Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total principal amount of
the Securities less the principal amount thereof covered by this and other
similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
-3-
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by--a copy--copies--of the opinion[s] of counsel for
the Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
.....................................
(Name of Purchaser)
By...................................
.....................................
(Title of Signatory)
.....................................
.....................................
(Address of Purchaser)
Accepted, as of the above date.
CASE CREDIT CORPORATION
By.............................
[Insert Title]
[Form of Terms Agreement]
ANNEX II
CASE CREDIT CORPORATION
("Company")
Debt Securities
TERMS AGREEMENT
---------------
[ ], 199[ ]
To: The [Representative[s] of the] Underwriters identified herein
Ladies and Gentlemen:
Case Credit Corporation agrees to sell to the several Underwriters
named [in Schedule A hereto] [below] for their respective accounts, on and
subject to the terms and conditions of the document entitled "Case Credit
Corporation, Debt Securities, Underwriting Agreement" dated [ ], [ ]
a copy of which is attached hereto as Annex I ("Underwriting Agreement"), the
following securities ("Offered Securities") on the following terms:
Title: [ %] [Floating Rate]--Notes--Debentures--Bonds--Due .
Principal Amount: $ .
Interest: [ % per annum, from , 19 , payable semiannually on
and , commencing , 19 , to holders
of record on the preceding or , as the case may be.]
[Zero coupon.]
Maturity: , .
Optional Redemption:
-2-
Sinking Fund:
Listing: [None.] [ Stock Exchange.] [The Nasdaq Stock Market.]
Delayed Delivery Contracts: [None.] [Delivery Date[s] shall be ,
19 . Underwriters' fee is % of the principal amount of the Contract Securities.]
Purchase Price: % of principal amount, plus accrued
interest [, if any,] from , 19 .
Expected Reoffering Price: % of principal amount, subject to
change by the [Representative[s]] [Underwriters].
Closing: A.M. on , 19 , at the
offices of Xxxxx, Xxxxx & Xxxxx, 000 X. XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000,
[[in New York] [Chicago] Clearing House] [Federal (same day)] funds.
Settlement and Trading: [Physical certificated form.] [Book-Entry
Only via DTC.]
Blackout: Until days after the Closing Date.
[Name[s] and Address[es] of [Representative[s]] [Underwriter[s]]:]
The respective principal amounts of the Offered Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated herein
by reference in their entirety and shall be deemed to be a part of this Terms
Agreement to the same extent as if the Underwriting Agreement had been set forth
in full herein. Terms defined in the Underwriting Agreement are used herein as
therein defined.
[The Offered Securities will be made available for checking and
packaging at the office of at least 24 hours prior to the
Closing Date.]
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of [(i)] the fol-
-3-
lowing information in the Prospectus furnished on behalf of each Underwriter:
the last paragraph at the bottom of the prospectus supplement cover page
concerning the terms of the offering by the Underwriters, the legend concerning
over-allotments--and--, --stabilizing [and passive market making] on the inside
front cover page of the prospectus supplement--and--, --the concession and
reallowance figures appearing in the paragraph under the caption "Underwriting"
in the prospectus supplement [If paragraph regarding passive market making is
included, insert--and the information contained in the paragraph under the
caption "Underwriting" in the prospectus supplement] [If applicable, insert--;
and (ii) the following information in the prospectus supplement furnished on
behalf of [insert name of Underwriter]: [insert description of information, such
as material relationship disclosure under the caption "Underwriting" in the
prospectus supplement].
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company one of the counterparts hereof,
whereupon it will become a binding agreement among the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
CASE CREDIT CORPORATION
By:________________________
[Insert title]
-4-
The foregoing Terms Agreement is hereby confirmed and accepted as of the date
first above written.
[If no co-representative, use first confirmation form.
If co-representative, use second.]
[NAMES OF REPRESENTATIVES]
By ____________________________
[Insert title]
[Acting on behalf of itself and as the Representative of the several
Underwriters.]
SCHEDULE A
----------
Principal
Underwriter Amount
----------- -------------
$
---------------
Total....................................... $
===============
