CASE EQUIPMENT LOAN TRUST 1997-A
CLASS B 6.70% ASSET BACKED NOTES
CASE RECEIVABLES II INC.
CLASS B NOTE UNDERWRITING AGREEMENT
March 11, 1997
Salomon Brothers Inc
As Representative of the
Several Underwriters,
Seven ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs:
1. Introductory. Case Receivables II Inc., a Delaware
corporation (the "Seller"), proposes to cause Case Equipment Loan Trust
1997-A (the "Trust") to issue and sell $26,000,000 principal amount of Class
B 6.70% Asset Backed Notes (the "Class B Notes" or the "Underwritten
Notes"), to the several 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 corporation
("Case Credit"). The Underwritten Notes will be issued pursuant to the
Indenture to be dated as of March 1, 1997 (as amended and supplemented from
time to time, the "Indenture"), between the Trust and ▇▇▇▇▇▇ 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)
$71,500,000 principal amount of Class A-1 5.597% Asset Backed Notes (the
"Class A-1 Notes"), $282,000,000 principal amount of Class A-2 6.00% Asset
Backed Notes (the "Class A-2 Notes") and $259,125,000 principal amount of
Class A-3 6.45% Asset Backed Notes (the "Class A-3 Notes"; together with the
A-1 Notes and the A-2 Notes, the "Class A Notes"), which will be sold
pursuant to an underwriting agreement dated as of the date hereof (the
"Class A 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, and
(ii) $11,375,000 principal amount of 6.70% 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 A 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 March 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 March 1, 1997 (as amended and supplemented
from time to time, the "Trust Agreement"), between the Seller and Chase
Manhattan Delaware, 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 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 statement, 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 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. 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 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
Prospectus, if not filed pursuant to Rule 424(b),
did not or will not, and on the date of any filing pursuant to Rule 424(b)
and on the Closing Date, the Prospectus (together with any supplement
thereto) will not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, that the Seller makes no representation or warranty as to
the information contained in or omitted from the Registration Statement or
the Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Seller by any
Underwriter through you specifically for use in connection with preparation
of the Registration Statement or the Prospectus (or any supplement thereto),
it being agreed that the only such information is the following: (i) the
statements in the last paragraph of the cover page of the Prospectus
Supplement dated March 11, 1997 (the "Prospectus Supplement"); (ii) the
statements on page S-2 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 stabilizing transactions and syndicate covering transactions)
under the heading "Underwriting" in the Prospectus Supplement. As of the
Closing Date, the Seller's representations and warranties in the Sale and
Servicing Agreement and the Trust Agreement will be true and correct in all
material respects.
(c) The computer tape of the Receivables created as of February
28, 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 99.48449% of the principal amount of the Class B
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 ▇▇▇▇▇,
▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or such
other place as the Seller and the Representative shall agree), on March 18,
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.
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 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
statement of the Trust covering a period of at least twelve months beginning
after the Effective Date of the Registration Statement that will satisfy the
provisions of Section 11(a) of the Act.
(e) The Seller will furnish to the Underwriters copies of the
Registration Statement (one of which will be signed and will include all
exhibits), each related preliminary prospectus (including the Preliminary
Prospectus 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 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 A 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 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 Registration Statement shall have become effective not later than
(i) 6:00 p.m. New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 p.m. New
York City time on such date or (ii) 12:00 noon on the business day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 p.m. New York City time on such date.
(b) The Prospectus and any supplements thereto shall have been
filed (if required) with the Commission in accordance with the Rules and
Regulations and Section 5(a) hereof, and prior to the Closing Date, no stop
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted
or, to the knowledge of the Seller or you, shall be contemplated by the
Commission or by any authority administering any state securities or blue
sky law.
(c) On or prior to the Closing Date, you shall have received a
letter or letters, dated as of the date of the Closing Date, of ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & 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 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).
(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 incorporation 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 investigations pending
or, to the best of such counsel's 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
statement 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 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.
(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").
(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 A Notes as contemplated in the
Prospectus and the Class A 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
effectiveness 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 A 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 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 ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, 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 ▇▇▇▇▇ & 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
Terms--Tax Status" (to the extent relating to Wisconsin tax consequences),
accurately describe the material Wisconsin tax consequences to holders of
the Securities. ▇▇▇▇▇ & ▇▇▇▇▇▇▇, 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
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, 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.
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, 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 & ▇▇▇▇▇, 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 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.
(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
Delaware.
(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
Delaware 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 Delaware or the United States governing the
banking or trust powers of the Trustee.
(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 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
September 30, 1996, 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 Class B Notes shall have been rated A and A3 by Standard
& Poor's Ratings Services and ▇▇▇▇▇'▇ Investors Service, Inc., respectively.
(n) The issuance of the Underwritten Notes, the Class A 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, $71,500,000 principal amount of Class
A-1 5.597% Asset Backed Notes, $282,000,000 principal amount of Class A-2
6.00% Asset Backed Notes and $259,125,000 principal amount of Class A-3
6.45% Asset Backed Notes shall have been issued and sold pursuant to the
Class A Note Underwriting 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.
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 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 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
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 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, arrangement, insolvency or liquidation
proceedings or other proceedings 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 set forth in or made pursuant to this Agreement 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 Seven ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Vice President; if sent to the Seller,
will be mailed, delivered or telegraphed, and confirmed to it at Case
Receivables II Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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.
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.
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/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Treasurer
CASE CREDIT CORPORATION,
by: /s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Treasurer
The foregoing Note
Underwriting Agreement
is hereby confirmed and
accepted as of the date
first written above.
SALOMON BROTHERS INC
on behalf of itself and as
Representative of the several
Underwriters,
by: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
SCHEDULE I
Note Underwriters Principal Amount of B Notes
----------------- ---------------------------
Salomon Brothers Inc $13,000,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 13,000,000
Total.............................................. $26,000,000
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