CASE EQUIPMENT RECEIVABLES TRUST 1999-B
CLASS B 7.050% ASSET BACKED NOTES
CASE RECEIVABLES II INC.
CLASS B NOTE UNDERWRITING AGREEMENT
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September 1, 1999
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
As Representatives of the
Several Underwriters,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
World Financial Center
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
1. Introductory. Case Receivables II Inc., a Delaware
corporation (the "Seller"), proposes to cause Case Equipment Receivables
Trust 1999-B (the "Trust") to issue and sell $31,500,000 principal amount
of Class B 7.050% Asset Backed Notes (the "Class B Notes" or the
"Underwritten Notes"), to the several Class B 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
and full payout leases (the "Receivables") secured by new or used
over-the-road trucks and trailers, agricultural, construction, forestry or
other 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 August 1, 1999 (as amended and
supplemented from time to time, the "Indenture"), between the Trust and
▇▇▇▇▇▇ Trust and Savings Bank (the "Indenture Trustee").
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Simultaneously with the issuance and sale of the
Underwritten Notes as contemplated in this Agreement, the Trust will (i)
issue $68,629,000 principal amount of Class A-1 5.674% Asset Backed Notes
(the "A-1 Notes"), $300,000,000 principal amount of Class A-2 6.330% Asset
Backed Notes (the "A-2 Notes"), $100,000,000 principal amount of Class A-3
6.660% Asset Backed Notes (the "A-3 Notes")and $182,371,000 principal
amount of Class A-4 6.900% 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"),
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) issue 7.050% Asset Backed Certificates (the
"Certificates") in a combined amount of $17,500,000 to 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 August 1, 1999 (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 August 1, 1999(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. The Seller, and with
respect to items (c), (e), (f), (g), (h), (i), (j), (m) and (o) as they
relate to Case Credit, Case Credit, represents and warrants to, and agrees
with, each Underwriter as of the date hereof and as of the Closing Date
that:
(a) The Seller meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has filed
with the Securities and Exchange Commission (the "Commission") two
registration statements (Registration Nos. 333-52493 and 333-82741) on such
Form, including a preliminary basic prospectus and a preliminary prospectus
supplement for registration under the Act of the
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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 statements, 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 statements, 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) after the effectiveness
of such registration statements, 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,
with a respect to a registration statement, 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"
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shall mean the date and time that this Agreement is executed and delivered
by the parties hereto. Such registration statements, as amended at the
Effective Time, including all information deemed to be a part of such
registration statements 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, are hereinafter referred to as the
"Registration Statement." "Basic Prospectus" shall mean the prospectus
referred to above contained in the Registration Statement at the Effective
Date including any Preliminary Prospectus Supplement, as most recently
revised or amended and filed with the Commission pursuant to Rule 424(b) or
Rule 429. "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, all of which have been or will be filed by the
Seller on a Form 8-K in accordance with all applicable no-action letters,
as published by the Commission. 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
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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 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 consists of the statements in the second and sixth paragraphs
(concerning initial offering prices, concessions and reallowances) and in
the fourth and eighth paragraphs (concerning overallotment, stabilizing
transactions, syndicate covering transactions and penalty bids) under the
heading "Underwriting" in the Prospectus Supplement. As of the Closing
Date, the Seller's representations and warranties
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in the Sale and Servicing Agreement and the Trust Agreement will be true
and correct in all material respects.
(c) Each of Case Credit and the Seller has been duly
incorporated and is validly existing as a 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
Registration Statement and to enter into and perform its obligations under
this Agreement, 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.
(d) On the Closing Date upon deliver thereof, the
Liquidity Receivables Purchase Agreement, the Purchase Agreement, the Trust
Agreement and the Sale and Servicing Agreement will have been duly
authorized, executed and delivered by the Seller, and will be legal, valid
and binding obligations of the Seller enforceable against the Seller in
accordance with their terms, subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally and to the effect of general principles of
equity, including concepts of materiality, reasonableness, good faith and
fair dealing (regardless of whether considered in a proceeding in equity or
at law).
(e) On the Closing Date upon delivery thereof, the
Liquidity Receivables Purchase Agreement, the Purchase Agreement, the Sale
and Servicing Agreement and the Administration Agreement will have been
duly authorized, executed and delivered by Case Credit and will be 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).
(f) This Agreement has been duly authorized, executed and
delivered by each of the Seller and Case Credit.
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(g) The execution, delivery and performance of this
Agreement, the Liquidity Receivables Purchase Agreement, the Purchase
Agreement, the Trust Agreement, the Administration Agreement, the Sale and
Servicing Agreement and the other documents and certificates delivered in
connection therewith (such agreements, documents and certificates,
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 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.
(h) The execution, delivery and performance of this
Agreement 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 any order of any
governmental agency or body or any court having jurisdiction over Case
Credit or the Seller or any of their properties.
(i) There are no actions, proceedings or inves tigations
pending or threatened before any court, administrative agency, or other
tribunal (1) asserting the invalidity of the Trust or any of the Basic
Documents, (2) seeking to prevent the consummation of any of the
transactions contemplated by any of the Basic Documents or the execution
and delivery thereof, or (3) that could reasonably be expected to
materially and adversely affect the performance by Case Credit or the
Seller, as applicable, of its obligations under, or the validity or
enforceability of, this Agreement or the Basic Documents.
(j) On the Closing Date upon delivery thereof, 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.
(k) When the Underwritten Notes have been duly
executed and delivered by the Trustee, authenticated by the
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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).
(l) Immediately prior to the transfer of the Receivables
to the Trust, the Seller's interest in the Receiv ▇▇▇▇▇, the security
interests in the Financed Equipment securing the Receivables and the
proceeds of each of the foregoing 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 execution and delivery of the Basic Documents and the filing of a
UCC financing statement with the Secretary of State of the State of
Illinois 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 execution and
delivery of the Basic Documents and the filing of the UCC financing state
ment with the Secretary of State of the State of Illinois referred to above
and will constitute a first priority perfected security interest therein.
No filing or other action, other than the execution and delivery of the
Basic Documents and the filing of the UCC financing statement with the
Secretary of State of the State of Illinois 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.
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(m) 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. 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.
(n) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required for
the consummation of the transactions contemplated by this Agreement or the
Basic Documents, except such as are required and have been or will be
obtained and made on or prior to the Closing Date under the Securities Act
and such as may be required under state securities laws.
(o) Since June 30, 1999, there has not been any material
adverse change in the business, results of operations, condition (financial
or otherwise), prospects, or material properties or assets of the Seller,
Case Credit or Case Corporation.
(p) The computer tape of the Receivables created as of
July 31, 1999, 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.
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 99.64432% 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 September
13, 1999
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(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 of 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
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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.
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(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,
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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) collateral ized by, or certificates
(other than the Certificates) evidencing an ownership interest in,
receivables generated pursuant to retail agricultural or construction
equipment installment sale contracts.
(l) On or prior to each Subsequent Transfer Date, to
deliver to the Representative (i) a duly executed Second- Tier Subsequent
Transfer Assignment including a schedule of the Subsequent Receivables to
be transferred to the Trust on such Subsequent Transfer Date, (ii) a copy
of the Opinions of Counsel with respect to the transfer of the Subsequent
Receivables to be transferred to the Trust on such Subsequent Transfer Date
to be delivered to (A) the Rating Agencies and (B) the Trustee and the
Indenture Trustee pursuant to Section 2.02(b)(xiv) of the Sale and
Servicing Agreement, (iii) a copy of the letter from a firm of independent
nationally recognized certified public accountants to be delivered to the
Trustee and the Indenture Trustee pursuant to Section 2.02(b)(xv) of the
Sale and Servicing Agreement, and (iv) a copy of the Officer's Certificate
delivered to the Indenture Trustee and the Trustee pursuant to Section
2.02(b)(xvi) of the Sale and Servicing Agreement.
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
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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 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.
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(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.
16
(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 2.10 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).
17
(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 and 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 inves tigations
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
18
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 execution and delivery of the Basic Documents
and the filing of a UCC financing statement with the Secretary of
State of the State of Illinois 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
execution and delivery of the Basic Documents and the filing of a
UCC financing statement with the Secretary of State of the State
of Illinois 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
execution and delivery of the Basic Documents and the filing of
the UCC financing statement with the Secretary of State of the
State of Illinois referred to above and will constitute a first
priority perfected security interest therein. No filing or other
action, other than the execution and delivery of
19
the Basic Documents and the filing of the UCC financing statement
with the Secretary of State of the State of Illinois 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 par ties.
(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 over-the-road truck or trailer,
agricultural, construction, forestry, or other equipment
installment sale contracts or leases 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; provided, however, that such opinion need
not address any equipment that is subject to a certificate of
title statute.
(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 execution and delivery of the Basic
Documents and the filing of a UCC financing statement with the
Delaware Secretary of
20
State and will constitute a first priority perfected security
interest therein. No filing or other action, other than the
execution and delivery of the Basic Documents and 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" and "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
Notes", "Description of the Certificates," "Administrative
Information About the Securities" and "Description of the
Transaction 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,
21
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) have 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.
22
(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 counsel to Case Credit and the Seller
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
23
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 ▇▇▇▇▇, ▇▇▇▇▇ &
▇▇▇▇▇, special Illinois 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 heading "Illinois State Tax Consequences" and in
the Prospectus Supplement under the heading "Summary of Terms--Tax Status"
(to the extent relating to Illinois tax consequences), accurately describe
the material Illinois tax consequences to holders of the Securities. ▇▇▇▇▇,
▇▇▇▇▇ & ▇▇▇▇▇, in its capacity as special Illinois 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 Illinois 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 heading "U.S. 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," and in the Prospectus Supplement under the headings
"Summary of Terms -- ERISA Considerations" and "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 ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, in its capacity as
special counsel to the
24
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
25
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.
26
(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.
(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
27
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 June 30, 1999, except as may be disclosed in
the Prospectus or, in the case of Case Credit or Case Corporation, as may
be disclosed publicly by Case Credit or 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
Illinois 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.
28
(o) On the Closing Date, the Class A 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 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;
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
against any and all expense whatsoever
(including, subject to Section 8(c) hereof, the fees
and disbursements of counsel), reasonably incurred in
29
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
30
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
31
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.
32
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 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 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, World Financial Center,
▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇ ▇▇▇▇▇ (Fax
No. (▇▇▇) ▇▇▇-▇▇▇▇); 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.
34
Class B Note
Underwriting Agreement
Signature page
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/ ▇▇▇▇▇ ▇. Than
--------------------------------
Name: ▇▇▇▇▇ ▇. Than
Title: Vice President and
Treasurer
CASE CREDIT CORPORATION,
By /s/ ▇▇▇▇▇ ▇. Than
-------------------------------
Name: ▇▇▇▇▇ ▇. Than
Title: Vice President and
Treasurer
The foregoing Class B Note
Underwriting Agreement is hereby
confirmed and accepted as of the
date first written above.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
on behalf of itself and as
Representative of the several
Underwriters,
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Signatory
SCHEDULE I
Principal
Class B Note Underwriters Amount
------------------------- -----------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated..........................$ 15,750,000
▇.▇. ▇▇▇▇▇▇ Securities Inc............................... 15,750,000