CASE EQUIPMENT LOAN TRUST 1997-B
CLASS A-1 5.612% ASSET BACKED NOTES
CLASS A-2 5.914% ASSET BACKED NOTES
CLASS A-3 6.240% ASSET BACKED NOTES
CLASS A-4 6.410% ASSET BACKED NOTES
CASE RECEIVABLES II INC.
CLASS A NOTE UNDERWRITING AGREEMENT
-----------------------------------
September 11, 1997
Credit Suisse
First Boston Corporation
As Representative of the
Several Underwriters,
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Ladies and Gentlemen:
1. Introductory. Case Receivables II Inc., a Delaware
corporation (the "Seller"), proposes to cause Case Equipment Loan Trust
1997-B (the "Trust") to issue and sell $90,000,000 principal amount of
Class A-1 5.612% Asset Backed Notes (the "A-1 Notes"), $204,500,000
principal amount of Class A-2 5.914% Asset Backed Notes (the "A-2 Notes"),
$237,000,000 principal amount of Class A-3 6.240% Asset Backed Notes (the
"A-3 Notes")and $188,591,000 principal amount of Class A-4 6.410% Asset
Backed Notes (the "A-4 Notes"; together with the A-1 Notes, the A-2 Notes
and the A-3 Notes, the "Class A Notes" or the "Underwritten Notes"), to the
several Class A Note Underwriters named in Schedule I hereto (collectively,
the "Underwriters"), for whom you are acting as representative (the
"Representative"). The assets of the Trust include, among other things, a
pool of retail installment sale contracts (the "Receivables") secured by
new or used agricultural or construction equipment and the related security
interests in the equipment financed thereby. The Receivables were sold to
the Trust by the Seller. The Receivables are serviced for the Trust by Case
Credit Corporation, a Delaware corpo ration ("Case Credit"). The
Underwritten Notes will be issued pursuant to the Indenture to be dated as
of
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September 1, 1997 (as amended and supplemented from time to time, the
"Indenture"), between the Trust and Xxxxxx Trust and Savings Bank (the
"Indenture Trustee").
Simultaneously with the issuance and sale of the
Underwritten Notes as contemplated in this Agreement, the Trust will issue
(i) $34,719,000 principal amount of 6.410% Class C Asset Backed Notes (the
"Class C Notes") which will be sold pursuant to an underwriting agreement
dated as of the date hereof (the "Class C Note Underwriting Agreement";
together with this Agreement, the "Underwriting Agreements") among the
Seller, Case Credit and you, as representative of the several underwriters
named in Schedule I thereto, (ii) $97,960,250.83 principal amount of
Floating Rate Class B Asset Backed Notes (the "Class B Notes"), which will
be sold in a private placement pursuant to a Note Purchase Agreement dated
as of the date hereof (the "Class B Note Purchase Agreement"), among the
Trust, Case Credit, as Servicer, and the Purchasers and Agent described
therein, and (iii) $15,190,000 principal amount of 6.410% Asset Backed
Certificates (the "Certificates"), each representing a fractional undivided
interest in the Trust, which will be retained by the Seller. The
Underwritten Notes and the Class C Notes are sometimes referred to herein
as the "Securities".
Capitalized terms used and not otherwise defined herein
shall have the meanings ascribed to them in the Sale and Servicing
Agreement to be dated as of September 1, 1997 (as amended and supplemented
from time to time, the "Sale and Servicing Agreement"), among the Trust,
the Seller and Case Credit, as servicer, or, if not defined therein, in the
Indenture or the Trust Agreement to be dated as of September 1, 1997 (as
amended and supplemented from time to time, the "Trust Agreement"), between
the Seller and The Bank of New York, as trustee (the "Trustee").
2. Representations and Warranties of the Seller. The
Seller represents and warrants to, and agrees with each Underwriter that:
(a) The Seller meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement (Registration No. 33-99298) on such Form, including
a preliminary basic prospectus and a preliminary prospectus supplement for
registration under the Act of the offering
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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) under the Act, or (iii) 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 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).
For purposes of this Agreement, "Effective Time" means
the date and time as of which such registration state ment, or the most
recent post-effective amendment thereto, if any, was declared effective by
the Commission, 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
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registration statement as of the Effective Time pursuant to Rule 430A(b)
under the Act, and including the exhibits thereto and any material
incorporated by reference therein, is 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 any Preliminary Prospectus Supplement, as most recently
revised or amended and filed with the Commission pursuant to Rule 424(b).
"Preliminary Prospectus Supplement" shall mean any preliminary prospectus
supplement to the Basic Prospectus 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. "Rule 415", "Rule 424", "Rule 430A" and "Regulation
S-K" refer to such rules or regulations under the Act. "Term Sheets" shall
mean those certain term sheets delivered by the Seller to each Underwriter
under cover of a letter dated September 9, 1997 (collectively, the "Term
Sheet Letters"), from the Seller to such Underwriter, and those term sheets
delivered by the Underwriters to the Seller pursuant to the Term Sheet
Letters, all of which have been or will be filed by the Seller with the
Commission on a Form 8-K prior to the delivery of the Prospectus to
investors. Any reference herein to the Registration Statement, the Basic
Prospectus, a Preliminary Prospectus Supplement 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, such Preliminary Prospectus Supplement or the
Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus Supplement 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
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the issue date of the Basic Prospectus, any Preliminary Prospectus
Supplement or the Prospectus, as the case may be, deemed to be incorporated
therein by reference.
(b) 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 Term Sheets and 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 Term
Sheets and 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, the
Term Sheets 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, the Term Sheets or the
Prospectus (or any supplement thereto), it being agreed that the only such
information is the following: (i) the statements in the last paragraph of
the cover page of the Prospectus Supplement dated September 11, 1997 (the
"Prospectus Supplement"); (ii) the statements on page S-3 of the Prospectus
Supplement concerning stabilization; and (iii) the statements in the second
and sixth paragraphs (concerning initial offering prices, concessions and
reallowances) and in the fourth and eighth paragraphs (concerning
over-allotment, stabilizing transactions, syndicate covering transactions
and penalty bids) under the heading "Underwriting" in the Prospectus
Supplement. As of the Closing Date, the Seller's representations and
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warranties in the Sale and Servicing Agreement and the Trust Agreement will
be true and correct in all material respects.
(c) The computer tape of the Receivables created as of
August 31, 1997, and made available to the Representative 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
Schedule A to the Sale and Servicing Agreement.
(d) This Agreement has been duly authorized, executed and
delivered by each of the Seller and Case Credit.
3. Purchase, Sale, and Delivery of the Underwritten
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,
at a purchase price of 99.905000% of the principal amount of the A-1 Notes,
99.860000% of the principal amount of the A-2 Notes, 99.756136% of the
principal amount of the A-3 Notes and 99.739714% of the principal amount of
the A-4 Notes, the respective principal amounts of Underwritten Notes set
forth opposite the name of such Underwriter in Schedule I hereto. Delivery
of and payment for the Underwritten Notes shall be made at the office of
Xxxxx, Xxxxx & Xxxxx, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 (or
such other place as the Seller and the Representative shall agree), on
September 22, 1997 (the "Closing Date"). Delivery of the Underwritten Notes
shall be made against payment of the purchase price in immediately
available funds drawn to the order the Seller. The Underwritten Notes to be
so delivered will be initially represented by one or more Underwritten
Notes registered in the name of Cede & Co., the nominee of The Depository
Trust Company ("DTC"). The interests of beneficial owners of the
Underwritten Notes will be represented by book entries on the records of
DTC and participating members thereof. Definitive Underwritten Notes will
be available only under limited circumstances.
4. Offering by Underwriters. It is understood that the
Underwriters propose to offer the Underwritten Notes for sale to the public
(which may include selected dealers), as set forth in the Prospectus.
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5. 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 Underwritten Notes, the Seller will not file any amendment
of the Registration Statement or supplement to the Prospectus unless the
Seller has furnished you a 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.
(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
Underwritten 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
8
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 5, 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 state ment of the Trust covering a period of at least twelve
months beginning after the Effective Date of the Registra tion Statement
that will satisfy the provisions of Sec tion 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 Supplement), 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
Underwritten 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.
(g) For a period from the date of this Agreement until
the retirement of the Underwritten Notes, or until such time as the
Underwriters shall cease to maintain a secondary market in the Underwritten
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 Underwritten Notes is
outstanding, the Seller will furnish to you (i) as soon as
9
practicable after the end of the 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 and Case Credit relating to the
Receivables to be marked to show the Trust's absolute ownership of the
Receivables, and from and after the Closing Date neither the Seller nor
Case Credit 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 rating provided with
respect to the Underwritten Notes by the rating agency or agencies that
initially rate the Underwritten Notes is 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, Case Credit or any trust originated,
directly or indirectly, by the Seller or Case Credit will offer to sell or
sell notes (other than the Underwritten Notes, the Class B Notes, the Class
C Notes and commercial paper notes offered pursuant to Case Credit'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.
6. 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 preparation,
issuance and delivery of the Underwritten Notes to the Underwriters, (iii)
the fees and disbursements of the Seller's counsel and accountants, (iv)
the qualification of the Underwritten Notes under securities laws in
accordance with the provisions of Section 5(f), including filing fees and
the
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fees and disbursements of counsel for you in connection therewith and in
connection with the preparation of any blue sky or legal investment survey,
(v) the printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment thereto,
(vi) the printing and delivery to the Underwriters of copies of any blue
sky or legal investment survey prepared in connection with the Underwritten
Notes, (vii) any fees charged by rating agencies for the rating of the
Underwritten Notes and (viii) the fees and expenses, if any, incurred with
respect to any filing with the National Association of Securities Dealers,
Inc.
7. Conditions of the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for the Underwritten
Notes will be subject to the accuracy of the representations and warranties
on the part of the Seller herein, to the accuracy of the statements of
officers of the Seller made pursuant to the provisions hereof, to the
performance by the Seller of its 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 Registra tion Statement shall have become
effective not later than (i) 6:00 p.m. New York City time on the date of
determina tion 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 5(a) hereof, and prior to the Closing Date, no
stop order sus pending 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) On or prior to the Closing Date, you shall
have received a letter or letters, dated as of the date of
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the Closing Date, of Xxxxxx Xxxxxxxx & Co., independent public accountants,
substantially in the form of the drafts to which you have previously agreed
and otherwise in form and substance satisfactory to you and your counsel.
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly the business
or properties of the Trust, the Seller, Case Credit or Case Corporation
which, in the judgment of the Underwriters, materially impairs the
investment quality of the Underwritten Notes or makes it impractical or
inadvisable to market the Underwritten Notes; (ii) any suspension or
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such exchange;
(iii) any suspension of trading of any securities of Case Corporation on
any exchange or in the over-the-counter market which, in the judgment of
the Underwriters, makes it impractical or inadvisable to market the
Underwritten Notes; (iv) any banking moratorium declared by 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 the Underwriters, 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
Underwritten Notes.
(e) You shall have received an opinion or opinions of
counsel to Case Credit and the Seller, addressed to you, the Trustee and
the Indenture Trustee, dated the Closing Date and satisfactory in form and
substance to you and your counsel, to the effect that:
(i) Each of Case Credit and the Seller 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 to enter into and perform
its obligations under the Underwriting Agreements, the
Sale and Servicing Agreement, the Administration
Agreement and the Purchase Agreement and has obtained all
necessary licenses and approvals in each jurisdiction in
which failure to qualify or to
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obtain such license or approval would render any
Receivable unenforceable by the Seller, the Trustee or
the Indenture Trustee.
(ii) The direction by the Seller to the Trustee to
authenticate the Certificates has been duly authorized by the
Seller and, when the Certificates have been duly executed,
authenticated and delivered by the Trustee in accordance with the
Trust Agreement and delivered and paid for pursuant to the
Certificate Underwriting Agreement, the Certificates will be
legally issued, fully paid and non-assessable subject to the
obligations of the Seller under Section 2.7 of the Trust Agreement
and entitled to the benefits of the Trust Agreement.
(iii) The direction by Case Credit to the Indenture
Trustee to authenticate the Underwritten Notes has been duly
authorized by Case Credit, and, when the Underwritten 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 the Note Underwriting
Agreement, the Underwritten 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).
(iv) The Liquidity Receivables Purchase Agreement, the
Purchase Agreement, the Trust Agreement and the Sale and Servicing
Agreement have been duly authorized, executed and delivered by the
Seller, and are 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).
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(v) Each of the Underwriting Agreements has been duly
authorized, executed and delivered by each of the Seller and Case
Credit.
(vi) The Liquidity Receivables Purchase Agreement, the
Purchase Agreement, the Sale and Servicing Agreement and the
Administration Agreement have been duly authorized, executed and
delivered by Case Credit and are legal, valid and binding
obligations of Case Credit enforceable against Case Credit 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).
(vii) The execution, delivery and performance of the
Underwriting Agreements, the Liquidity Receivables Purchase
Agreement, the Purchase Agreement, the Trust Agreement, the
Administration Agreement and the Sale and Servicing Agreement
(such agreements, excluding the Underwriting Agreements, being,
collectively, the "Basic Documents"), as applicable, by Case
Credit 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 incor poration or by-laws of Case Credit
or the Seller or any material agreement or instrument known to
such counsel to which Case Credit or the Seller is a party or by
which Case Credit or the Seller is bound or to which any of the
properties of Case Credit or the Seller is subject.
(viii) The execution, delivery and performance of the
Underwriting Agreements and the Basic Documents, as applicable, by
Case Credit and the Seller, and the consummation of the
transactions contemplated thereby, will not violate any statute,
rule or regulation or, to such counsel's knowledge, any order of
any governmental agency or body or any court having jurisdiction
over Case Credit or the Seller or any of their properties.
(ix) There are no actions, proceedings or inves tigations
pending or, to the best of such counsel's
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knowledge, 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 Case Credit or the Seller, as applicable, of its
obligations under, or the validity or enforceability of, the
Underwriting Agreements or the Basic Documents.
(x) Each of the Assignment dated as of the Closing Date
from Case Credit to the Seller and the assignments of Receivables
from Case Credit to the Seller pursuant to the Liquidity
Receivables Purchase Agreement have been duly authorized, executed
and
delivered by Case Credit.
(xi) Immediately prior to the transfer of the Receivables
to the Trust, the Seller's interest in the Receivables, the
security interests in the Financed Equipment securing the
Receivables and the proceeds of each of the foregoing was
perfected upon the filing of a UCC financing statement with the
Secretary of State of the State of Wisconsin and constituted a
perfected first priority interest therein. If a court concludes
that the transfer of the Receivables from the Seller to the Trust
is a sale, the interest of the Trust in the Receivables, the
security interests in the Financed Equipment securing the
Receivables and the proceeds of each of the foregoing will be
perfected upon the filing of a UCC financing statement with the
Secretary of State of the State of Wisconsin and will constitute a
first priority perfected interest therein. If a court concludes
that such transfer is not a sale, the Sale and Servicing Agreement
constitutes a grant by the Seller to the Trust of a valid security
interest in the Receivables, the security interests in the
Financed Equipment securing the Receivables and the proceeds of
each of the foregoing, which security interest will be perfected
upon the filing of the UCC financing state ment with the Secretary
of State of the State of Wisconsin referred to above and will
constitute a first priority perfected security interest therein.
No filing or other action, other than the filing of the UCC
financing statement with the Secretary of State of the State of
Wisconsin referred to above, is necessary
15
to perfect and maintain the interest or the security interest of
the Trust in the Receivables, the security interests in the
Financed Equipment securing the Receivables and the proceeds of
each of the foregoing against third parties.
(xii) Assuming that Case Credit's standard procedures
have been followed with respect to the creation of the
Receivables, Case Credit obtains from each Dealer either an
absolute ownership interest or a security interest in the
Receivables originated by that Dealer, which ownership or security
interest (whichever it may be) is perfected and prior to any other
interests that may be perfected only by possession of a Receivable
or the filing of a financing statement in accordance with the UCC.
Assuming that Case Credit's standard procedures with respect to
the perfection of a security interest in the equipment financed by
Case Credit pursuant to retail agricultural or construction
equipment installment sale contracts in the ordinary course of
Case Credit's business have been followed with respect to the
perfection of security interests in the Financed Equipment, Case
Credit has acquired either a perfected security interest in the
Financed Equipment or a perfected security interest in the
Receivables, which indirectly provides Case Credit with a security
interest in the Financed Equipment that is perfected as against
the obligor's creditors.
(xiii) The Indenture constitutes a grant by the Trust to
the Indenture Trustee of a valid security interest in the
Receivables, the security interests in the Financed Equipment
securing the Receivables and the proceeds of each of the
foregoing.
(xiv) The security interest granted under the Indenture
will be perfected upon the filing of a UCC financing statement
with the Delaware Secretary of State and will constitute a first
priority perfected security interest therein. No filing or other
action, other than the filing of the UCC financing statement with
the Delaware Secretary of State referred to above, is necessary to
perfect and maintain the security interest of the Indenture
Trustee in the Receivables, the security interests in the Financed
Equipment securing the Receivables and the proceeds of each of the
foregoing against third parties.
16
(xv) The Receivables are chattel paper as defined in the
UCC.
(xvi) The Sale and Servicing Agreement, the Trust
Agreement, the Indenture, the Administration Agreement and the
Purchase Agreement conform in all material respects with the
description thereof contained in the Prospectus and any supplement
thereto.
(xvii) The statements in the Basic Prospectus under the
headings "Risk Factors--Certain Legal Aspects----Security
Interests in Financed Equipment" and "Certain Legal Aspects of the
Receivables", to the extent they constitute matters of law or
legal conclusions with respect thereto, are correct in all
material respects.
(xviii) The statements contained in the Prospectus and
any supplement thereto under the headings "Description of the
Offered Notes", "Description of the Certificates" and "Description
of the Transfer and Servicing Agreements", insofar as such
statements constitute a summary of the Underwritten Notes, the
Certificates, the Indenture, the Administration Agreement, the
Sale and Servicing Agreement and the Trust Agreement, fairly
present the matters referred to therein.
(xix) 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 Underwriting Agreements or the Basic Documents, except such as
are required and have been obtained and made under the Securities
Act and such as may be required under state securities laws (it
being understood that this opinion will be given only with respect
to such consents, approvals, authorizations, orders and filings
that, in such counsel's experience, are customarily applicable in
transactions of the type contemplated by the Underwriting
Agreements and the Basic Documents).
(xx) The Trust Agreement is not required to be qualified
under the Trust Indenture Act and the Trust is not required to be
registered under the Investment Company Act of 1940, as amended
(the "Investment Company Act").
17
(xxi) The Indenture has been duly qualified under the
Trust Indenture Act.
(xxii) The Seller is not, and will not as a result of the
offer and sale of the Underwritten Notes as contemplated in the
Prospectus and this Agreement or of the Class B Notes as
contemplated in the Prospectus and the Class B Note Underwriting
Agreement or as a result of the issuance of the Certificates
become, an "investment company" as defined in the Investment
Company Act or a company "controlled by" an "investment company"
within the meaning of the Investment Company Act.
(xxiii) [Intentionally Omitted.]
(xxiv) The Registration Statement has become effective
under the Act, any required filing of the Basic Prospectus, any
preliminary Basic Prospectus, any Preliminary Prospectus
Supplement and the Prospectus and any supplements thereto pursuant
to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b), and, to the best knowledge of such
counsel, no stop order suspending the effective ness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under
the Act; and the Registration Statement and the Prospectus, and
each amendment or supplement thereto, as of the Closing Date (in
the case of the Registration Statement) and as of their respective
issue dates (in the case of the Prospectus and each supplement
thereto), complied as to form in all material respects with the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations.
(xxv) The Trust has been duly formed and is validly
existing as a statutory business trust under the laws of the State
of Delaware, with full power and authority to execute, deliver and
perform its obligations under the Sale and Servicing Agreement,
the Indenture, the Administration Agreement, the Underwritten
Notes, the Class B Notes and the Certificates.
(xxvi) The Indenture, the Sale and Servicing Agreement
and the Administration Agreement have been duly authorized and,
when duly executed and delivered
18
by the Trustee, will constitute the legal, valid and binding
obligations of the Trust, enforceable against the Trust 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).
The opinions of each of Xxxxx, Xxxxx & Xxxxx and Xxxxxxx
X. Xxxxxxx, Esq., shall also state that such counsel has examined various
documents and participated in conferences with representatives of Case
Credit, the Seller, its counsel and its accountants and with
representatives of the Underwriters, at which time the contents of the
Registration Statement and the Prospectus and related matters were
discussed. However, except as specifically noted above, such counsel need
not assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement and the Prospectus.
Subject to the foregoing, such counsel shall advise you that no facts have
come to their attention that cause them to believe that the Registration
Statement or the Prospectus, at the Closing Date, contains any untrue
statement of a material fact or omits to state any material fact necessary
in order to make (x) the statements in the Registration Statement not
misleading and (y) the statements in the Prospectus not misleading in the
light of the circumstances under which they were made (in each case except
for the financial statements and related schedules or other financial or
statistical data included or incorporated by reference therein, as to which
such counsel will not be called upon to express a belief).
Such counsel shall also opine as to such other matters as
the Underwriters may reasonably request.
(f)You shall have received an opinion of Xxxxx & Lardner,
special Wisconsin tax counsel for the Trust, addressed to you and the
Indenture Trustee, dated the Closing Date and satisfactory in form and
substance to you and your counsel, to the effect that the statements in the
Basic Prospectus under the headings "Summary of Terms--Tax Status" (to the
extent relating to Wisconsin tax consequences) and "Certain State Tax
Consequences" and in the Prospectus Supplement under the heading "Summary
of
19
Terms--Tax Status" (to the extent relating to Wisconsin tax consequences),
accurately describe the material Wisconsin tax consequences to holders of
the Securities. Xxxxx & Xxxxxxx, in its capacity as special Wisconsin
counsel to Case Credit and the Seller, shall have delivered an opinion with
respect to the perfection and priority of the respective interests of the
Seller and the Trust in the Receivables under Wisconsin Law.
(g) You shall have received an opinion addressed to you
of Xxxxx, Xxxxx & Xxxxx, in its capacity as Federal tax and ERISA counsel
for the Trust, to the effect that the statements in the Basic Prospectus
under the headings "Summary of Terms--Tax Status" (to the extent relating
to Federal income tax consequences) and "Certain Federal Income Tax
Consequences" and in the Prospectus Supplement under the heading "Summary
of Terms--Tax Status" (to the extent relating to Federal income tax
consequences) accurately describe the material Federal income tax
consequences to holders of the Securities, and the statements in the Basic
Prospectus under the heading "ERISA Considerations", to the extent that
they constitute statements of matters of law or legal conclusions with
respect thereto, have been prepared or reviewed by such counsel and
accurately describe the material consequences to holders of the Securities
under ERISA. Xxxxx, Xxxxx & Xxxxx, in its capacity as special counsel to
the Trust, shall have delivered an opinion with respect to the
characterization of the transfer of the Receivables.
(h) You shall have received an opinion (and a separate
"10b-5 statement") addressed to you of Cravath, Swaine & Xxxxx, in its
capacity as special counsel to the Underwriters, dated the Closing Date,
with respect to the validity of the Certificates and the Underwritten Notes
and such other related matters as you shall require and the Seller shall
have furnished or caused to be furnished to such counsel such documents as
they may reasonably request for the purpose of enabling them to pass upon
such matters.
(i) You shall have received an opinion or
opinions addressed to you, the Seller and Case Credit of
20
counsel to the Indenture Trustee, dated the Closing Date and satisfactory
in form and substance to you and your counsel, to the effect that:
(i) The Indenture Trustee is a banking corporation duly
incorporated and validly existing and in good standing under the
laws of the State of Illinois, and has full power and authority to
execute, deliver and perform its obligations under the Indenture,
the Sale and Servicing Agreement and the Administration Agreement.
(ii) Each of the Indenture, the Sale and Servicing Agreement
and the Administration Agreement has been duly authorized,
executed and delivered by the Indenture Trustee.
(iii) Each of the Indenture, the Sale and Servicing Agreement
and the Administration Agreement constitutes a legal, valid and
binding obligation of the Indenture Trustee, enforceable against
the Indenture Trustee in accordance with its respective terms,
except that certain of such obligations may be enforceable solely
against the Trust Estate and except that such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws affecting the enforcement of
creditors' rights generally, and by general principles of equity,
including without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
such enforceability is considered in a proceeding in equity or at
law).
(iv) No authorizations, consents or approvals of, notice
to or filing with, or the taking of any other action in respect
of, any governmental authority or agency of the United States or
the State of Illinois governing the banking or trust powers of the
Indenture Trustee is required for the execution, delivery or
performance by the Indenture Trustee of each of the Indenture, the
Sale and Servicing Agreement and the Administration Agreement.
(v) The Underwritten Notes have been duly authenticated
by the Indenture Trustee in accordance with the terms of the
Indenture.
21
(vi) Neither the execution, delivery or performance by
the Indenture Trustee of the Indenture, the Sale and Servicing
Agreement and the Administration Agreement nor the compliance with
the terms and provisions thereof, nor the performance of its
obligations thereunder, conflicts or results in a breach of or
constitutes a default under any of the terms, conditions or
provisions of any law, government rule or regulation of the United
States of the State of Illinois governing the banking or trust
powers of the Indenture Trustee or the Charter or By-Laws of the
Indenture Trustee or, to our knowledge, any order, writ,
injunction or decree of any court or governmental authority
against the Indenture Trustee or by which it or any of its
properties is bound or, to our knowledge, any indenture, mortgage
or contract or other agreement or instrument to which the
Indenture Trustee is a party or by which it or any of its
properties is bound, or results in the creation or imposition of
any lien, charge or encumbrance upon any of its properties
pursuant to any agreement or instrument, except encumbrances and
security interests contemplated by the Indenture, the Sale and
Servicing Agreement and the Administration Agreement.
(vii) There are no actions, suits or proceedings
pending or, to the best of our knowledge, threatened against the
Indenture Trustee before any court, or by or before any federal,
state, municipal or other governmental department, commission,
board, bureau or governmental agency or instrumentality, or
arbitrator which would, if adversely determined, affect in any
material respect the consummation, validity or enforceability
against the Indenture Trustee of any of the Indenture, the Sale
and Servicing Agreement and the Administration Agreement.
(j) You shall have received an opinion addressed to you,
the Seller and Case Credit of counsel to the Trustee, dated the Closing
Date and satisfactory in form and substance to you and your counsel, to the
effect that:
(i) The Trustee is duly incorporated, validly existing in
good standing as a banking corporation under the laws of the State
of New York.
22
(ii) The Trustee has power and authority to execute, deliver
and perform the Trust Agreement and to consummate the transactions
contemplated thereby.
(iii) The Trust Agreement has been duly authorized, executed
and delivered by the Trustee and constitutes a legal, valid and
binding obligation of the Trustee, enforceable against the
Trustee, in accordance with its terms.
(iv) Neither the execution or delivery by the Trustee of the
Trust Agreement nor the consummation by the Trustee of any of the
transactions contemplated thereby nor compliance by the Trustee
with the terms or provisions of the Trust Agreement will violate
any New York or United States federal law, rule or regulation
governing the banking or trust powers of the Trustee or the
Trustee's certificate of incorporation or by-laws or require the
consent or approval of, the giving of notice to, the registration
with, or the taking of any other action with respect to, any
governmental authority or agency under the laws of the State of
New York or the United States governing the banking or trust
powers of the Trustee.
You shall also have received an opinion addressed to you,
the Seller and Case Credit of counsel to The Bank of New York (Delaware),
as Delaware Trustee, dated the Closing Date and satisfactory in form and
substance to you and your counsel, covering such matters as you and your
counsel may
reasonably request.
(k) You shall have received certificates dated the
Closing Date of any two of the Chairman of the Board, the President, the
Executive Vice President, any Vice President, the Treasurer, any Assistant
Treasurer, the principal financial officer or the principal accounting
officer of each of Case Credit, the Seller and the Servicer in which such
officers shall state that, to the best of their knowledge after reasonable
investigation, (i) the representations and warranties of each of Case
Credit and the Seller contained in the Trust Agreement, the Liquidity
Receivables Purchase Agreement, the Purchase Agreement and the Sale and
Servicing Agreement, as applicable, are true and correct in all material
respects, that each of Case Credit and the Seller, has complied in all
material respects with all agreements and satisfied in all material
respects all conditions on its part to be performed or satisfied
23
under such agreements at or prior to the Closing Date, that no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are
contemplated by the Commission and (ii) since June 30, 1997, except as may
be disclosed in the Prospectus or, in the case of Case Corporation, as may
be disclosed publicly by Case Corporation prior to the Execution Time, no
material adverse change in or affecting particularly the business or
properties of the Trust, the Seller, the Servicer, Case Credit or Case
Corporation has occurred.
(l) You shall have received evidence satisfactory to you
that, on or before the Closing Date, UCC financing statements have been or
are being filed in the office of the Secretary of State of the States of
Wisconsin and Delaware reflecting the transfer of the interest of Case
Credit in the Receivables and the proceeds thereof to the Seller, and the
transfer of the interest of the Seller in the Receivables and the proceeds
thereof to the Trust and the grant of the security interest by the Trust in
the Receivables and the proceeds thereof to the Indenture Trustee.
(m) The A-1 Notes shall have been rated A-1+ and P-1, and
the A-2 Notes, the A-3 Notes and the A-4 Notes shall have been rated AAA
and Aaa by Standard & Poor's Ratings Services and Xxxxx'x Investors
Service, Inc., respectively.
(n) The issuance of the Underwritten Notes, the Class B
Notes, the Class C Notes and the Certificates shall not have resulted in a
reduction or withdrawal by any Rating Agency of the current rating of any
outstanding securities issued or originated by the Seller.
(o) On the Closing Date, the Class C Notes shall have
been issued and sold pursuant to the Class C Note Underwriting Agreement,
the Class B Notes shall have been issued and sold pursuant to the Class B
Note Purchase Agreement and the Certificates shall have been issued to the
Seller.
The Seller will provide or cause to be provided to you
such conformed copies of such opinions, certificates, letters and documents
as you reasonably request.
24
8. Indemnification and Contribution. (a) The Seller and
Case Credit will, jointly and severally, indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), 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 contained in the Term Sheets, any preliminary
Basic Prospectus, Preliminary Prospectus Supplement, Basic
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 to the extent of the aggregate amount paid in
settlement of any litigation, or any 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, or any such alleged untrue statement or omission, if
such settlement is effected with the written consent of the Seller
or Case Credit; and
(iii) against any and all expense whatsoever (including,
subject to Section 8(c) hereof, the fees and disbursements of
counsel), reasonably incurred 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
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
(i) or (ii) above.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Seller, its directors, each of its officers who signed
the Registration Statement, and
25
each person, if any, who controls the Seller within the meaning of Section
15 of the Act and Section 20 of the Exchange Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section 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
Seller by such Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary Basic
Prospectus, Preliminary Prospectus Supplement, Basic 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 indemnity may be sought hereunder and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
and any others the indemnifying party may designate in such proceeding and
shall pay the fees and expenses of such counsel related to such proceeding,
but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability that it may have otherwise than on
account of this indemnity agreement. In any proceeding hereunder any
indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the contrary, (ii) the indemnifying
party has failed within a reasonable time to retain counsel reasonably
satisfactory to the indemnified party or (iii) the named parties in any
such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all
indemnified parties, and that all such fees and expenses shall be
reimbursed as they are incurred. Any such separate firm for the
Underwriters and such control persons of Underwriters shall be designated
in
26
writing by the Representative and any such separate firm for Case Credit
and the Seller, the directors of Case Credit and the Seller, the officers
of Case Credit and the Seller who sign the Registration Statement and such
control persons of Case Credit and the Seller or authorized representatives
shall be designated in writing by the Case Credit and the Seller. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or
if there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify any indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party
shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which
any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for
in this Section 8 is for any reason held to be unavailable other than in
accordance with its terms, the Seller, Case Credit and the Underwriters
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by
the Seller and one or more of the Underwriters, in such proportions that
the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount and commissions appearing on the
cover page of the Prospectus bears to the initial public offering price
appearing thereon and the Seller and Case Credit are responsible for the
balance; provided, however, that 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, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the
Act shall have the same rights to contribution as such Underwriter, and
each director of the Seller, each officer of the Seller who signed the
Registration Statement, and each person, if any, who controls the Seller
within the meaning of Section 15 of the Act shall have the same rights to
contribution as the
27
Seller. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the
underwriting discount or commission applicable to the Underwritten Notes
purchased by it hereunder.
9. Defaults of Underwriters. If any Underwriter or
Underwriters default in their obligations to purchase Underwritten Notes
hereunder on the Closing Date and arrangements satisfactory to the
Representative and the Seller for the purchase of such Underwritten Notes
by other persons are not made within 24 hours after such default, this
Agreement will terminate without liability on the part of any nondefaulting
Underwriter or the Seller, except as provided in Section 11 and except
that, if the aggregate principal amount of Underwritten Notes which the
defaulting Underwriter or Underwriting agreed but failed to purchase shall
be 10% or less of the aggregate principal amount of all the Underwritten
Notes set forth in Schedule I hereto, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions
which the aggregate principal amount of Underwritten Notes set forth
opposite their names in Schedule I hereto bears to the aggregate principal
amount of Underwritten Notes set forth opposite the names of all the
remaining Underwriters) the Underwritten Notes which the defaulting
Underwriter or Underwriters agreed but failed to purchase. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
10. No Bankruptcy Petition. Each Underwriter covenants
and agrees that, prior to the date which is one year and one day after the
payment in full of all securities issued by the Seller or by a trust for
which the Seller was the depositor which securities were rated by any
nationally recognized statistical rating organization, it will not
institute against, or join any other Person in instituting against, the
Seller any bankruptcy, reorganization, arrange ment, insolvency or
liquidation proceedings or other pro ceedings under any Federal or state
bankruptcy or similar law.
11. Survival of Representations and Obligations.
The respective indemnities, agreements, representations,
warranties and other statements of the Seller and Case
Credit or any of their officers and each of the Underwriters
28
set forth in or made pursuant to this Agreement and the Term Sheet Letters
or contained in certificates of officers of the Seller submitted pursuant
hereto shall remain operative and in full force and effect, regardless of
(i) any termination of this Agreement, (ii) any investigation or statement
as to the results thereof made by or on behalf of any Underwriter or of the
Seller or any of their respective representatives, officers or directors or
any controlling person, and (iii) delivery of and payment for the
Underwritten Notes. If for any reason the purchase of the Underwritten
Notes by the Underwriters is not consummated, the Seller shall remain
responsible for the expenses to be paid or reimbursed by the Seller
pursuant to Section 6 and the respective obligations of the Seller and the
Underwriters pursuant to Section 8 shall remain in effect. If for any
reason the purchase of the Underwritten Notes by the Underwriters is not
consummated (other than because of a failure to satisfy the conditions set
forth in items (ii), (iv) or (v) of Section 7(d)), the Seller will
reimburse any Underwriter, upon demand, for all reasonable out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred
by it in connection with the offering of the Underwritten Notes. Nothing
contained in this Section 11 shall limit the recourse of the Seller against
the Underwriters.
12. Notices. All communications hereunder will be in
writing and, if sent to the Underwriters, will be mailed, delivered or
telegraphed and confirmed to the Representative at Eleven Madison Avenue,
New York, NY 10010- 3629, Attention: Investment Banking
Department-Transactions Advisory Group (Fax No. (000) 000-0000); if sent to
the Seller, will be mailed, delivered or telegraphed, and confirmed to it
at Case Receivables II Inc., 000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxx 00000,
Attention: Treasurer; provided, however, that any notice to an Underwriter
pursuant to Section 8 will be mailed, delivered or telegraphed and
confirmed to such Underwriter. Any such notice will take effect at the time
of receipt.
13. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective successors
and the officers and directors and controlling persons referred to in
Section 8, and no other person will have any right or obligations
hereunder. No purchaser of Underwritten Notes from any Underwriter shall be
deemed to be a successor of such Underwriter merely because of such
purchase.
29
14. Representation. You will act for the several
Underwriters in connection with the transactions contemplated by this
Agreement, and any action under this Agreement taken by you will be binding
upon all the Underwriters.
15. Counterparts. This 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.
30
16. Applicable Law. This Agreement will be
governed by, and construed in accordance with, the laws of
the State of New York.
If the foregoing is in accordance with your understanding
of our agreement, kindly sign and return to us the enclosed duplicate
hereof, whereupon it will become a binding agreement among the Seller, Case
Credit and the several Underwriters in accordance with its terms.
Very truly yours,
CASE RECEIVABLES II INC.,
by
/s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Treasurer
CASE CREDIT CORPORATION,
by
/s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Treasurer
The foregoing Note
Underwriting Agreement
is hereby confirmed and
accepted as of the date
first written above.
CREDIT SUISSE
FIRST BOSTON CORPORATION
on behalf of itself and as
Representative of the several
Underwriters,
by
/s/ Xxxx Xxxx
Name: Xxxx Xxxx
Title: Vice President
31
SCHEDULE I
Principal Amount
Class A Note Underwriters of A-1 Notes
------------------------- -------------------
Credit Suisse First Boston
Corporation $15,000,000
First Chicago Capital Markets, Inc. 15,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated 15,000,000
X.X. Xxxxxx Securities Inc. 15,000,000
NationsBanc Capital Markets, Inc. 15,000,000
Salomon Brothers Inc 15,000,000
----------
Total.................................................. $90,000,000
===========
Principal Amount
Class A Note Underwriters of A-2 Notes
------------------------- -----------------
Credit Suisse First Boston
Corporation $ 34,085,000
First Chicago Capital Markets, Inc. 34,083,000
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated 34,083,000
X.X. Xxxxxx Securities Inc. 34,083,000
NationsBanc Capital Markets, Inc. 34,083,000
Salomon Brothers Inc 34,083,000
-----------
Total.................................................... $204,500,000
============
2
Principal Amount
Class A Note Underwriters of A-3 Notes
------------------------- ----------------
Credit Suisse First Boston
Corporation $ 39,500,000
First Chicago Capital Markets, Inc. 39,500,000
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated 39,500,000
X.X. Xxxxxx Securities Inc. 39,500,000
NationsBanc Capital Markets, Inc. 39,500,000
Salomon Brothers Inc 39,500,000
-----------
Total.................................................... $237,000,000
===========
Principal Amount
Class A Note Underwriters of A-4 Notes
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Credit Suisse First Boston
Corporation $ 31,436,000
First Chicago Capital Markets, Inc. 31,431,000
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated 31,431,000
X.X. Xxxxxx Securities Inc. 31,431,000
NationsBanc Capital Markets, Inc. 31,431,000
Salomon Brothers Inc 31,431,000
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Total.................................................... $188,591,000
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