<PAGE>
As filed with the Securities and Exchange Commission on January 29, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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Case Credit Corporation
(Exact name of registrant as specified in its charter)
Delaware 76-0394710
(State of (I.R.S. Employer
incorporation) Identification No.)
233 Lake Avenue
Racine, Wisconsin 53404
(414) 636-6011
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Richard S. Brennan
General Counsel and Secretary
Case Corporation
700 State Street, Racine, Wisconsin 53404
(414) 636-6011
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Elizabeth A. Raymond Gerard M. Meistrell
Mayer, Brown & Platt Cahill Gordon & Reindel
190 South LaSalle Street 80 Pine Street
Chicago, Illinois 60603-3441 New York, New York 10005
(312) 782-0600 (212) 701-3000
----------------
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Amount Proposed Maximum Proposed Maximum Amount of
Title of Each Class of to be Offering Price Aggregate Offering Registration
Securities to be Registered Registered(1) Per Unit(2) Price(2) Fee
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<S> <C> <C> <C> <C>
Debt Securities.................. $800,000,000(3) 100% $800,000,000(3) $141,502(3)
</TABLE>
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(1) If any Debt Securities are issued at an original issue discount, such
greater amount as shall result in an aggregate offering price to the
public which shall not exceed the amount set forth under Proposed Maximum
Aggregate Offering Price, or if Debt Securities are issued in a foreign or
composite currency, an equivalent amount of such foreign or composite
currency.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) Of the $800,000,000 of debt securities registered hereby, $291,000,000
aggregate principal amount of such securities was registered pursuant to
Registration No. 333-52725 and are unissued as of the date hereof. A
registration fee of $85,845 was previously paid with respect to such debt
securities and is not included in the amount set forth under Amount of
Registration Fee.
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus filed
as part of this Registration Statement relates to the securities registered
hereby, including the remaining unsold $291,000,000 principal amount of debt
securities previously registered by the Registrant under its Registration
Statement on Form S-3 (File No. 333-52725).
----------------
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is not complete and may be changed. We may +
+not sell these securities until the registration statement filed with the +
+Securities and Exchange Commission is effective. This prospectus is not an +
+offer to sell these securities and it is not soliciting an offer to buy these +
+securities in any state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to Completion, Dated January 29, 1999
PROSPECTUS
Case Credit Corporation
233 Lake Avenue
Racine, Wisconsin 53404
(414) 636-6011
$800,000,000
Debt Securities
--------------
Case Credit will provide specific terms of these securities in supplements to
this prospectus. You should read this prospectus and any prospectus supplement
carefully before you invest.
--------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
--------------
The date of this prospectus is , 1999.
<PAGE>
You should rely only on the information contained or incorporated by
reference in this prospectus or any prospectus supplement. The Company has not
authorized any other person to provide you with different information. If
anyone provides you with different or inconsistent information, you should not
rely on it. Case Credit is not making an offer to sell these securities in any
jurisdiction where the offer or sale is not permitted. You should assume that
the information appearing in this prospectus or any prospectus supplement, as
well as information the Company has previously filed with the Securities and
Exchange Commission (the "SEC") and incorporated by reference, is accurate as
of the date on the front of those documents only. Case Credit's business,
financial condition, results of operations and prospects may have changed since
such dates.
WHERE YOU CAN FIND MORE INFORMATION
Case Credit files reports and other information with the SEC. Case Credit's
SEC filings are available over the Internet at the SEC's web site at
http://www.sec.gov. You may also read and copy any document Case Credit files
at the SEC's public reference room at 450 Fifth Street, N.W., Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 to obtain information on the
operation of the public reference room.
The Company has filed a registration statement on Form S-3 (the "Registration
Statement") relating to the debt securities with the SEC under the Securities
Act of 1933 (the "Securities Act"). For further information on Case Credit
Corporation and the debt securities, you should refer to the Registration
Statement and its exhibits. This prospectus and any related prospectus
supplement summarizes material provisions of contracts and other documents that
the Company refers you to. Since the prospectus and any related prospectus
supplement may not contain all the information that you may find important, you
should review the full text of these documents. The Company has included copies
of these documents as exhibits to the Registration Statement or incorporated
them by reference into this prospectus.
INCORPORATION OF INFORMATION CASE CREDIT FILES WITH THE SEC
Case Credit is "incorporating by reference" certain information it files with
the SEC into this prospectus, which means:
. incorporated documents are considered part of this prospectus;
. the Company can disclose important information to you by referring you to
those documents; and
. information that the Company files with the SEC will automatically update
and supersede this prospectus.
The Company incorporates by reference the documents listed below, which the
Company filed with the SEC under the Securities Exchange Act of 1934 (the
"Exchange Act"):
. Annual Report on Form 10-K for the year ended December 31, 1997;
. Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998,
June 30, 1998 and September 30, 1998; and
. Current Report on Form 8-K dated October 15, 1998.
The Company also incorporates by reference each of the following documents
that the Company will file with the SEC after the date of the initial filing of
the Registration Statement with the SEC and prior to effectiveness of the
Registration Statement or after the date of this prospectus but before the end
of the offering of the debt securities:
. Reports filed under Sections 13(a) and (c) of the Exchange Act;
. Definitive proxy or information statements filed under Section 14 of the
Exchange Act in connection with any subsequent stockholders' meeting; and
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. Any reports filed under Section 15(d) of the Exchange Act.
You may request a copy of any filings referred to above, at no cost, by
writing or telephoning the Company at the following address:
Case Credit Corporation
Attention: Kevin J. Hallagan, Vice President and Secretary
700 State Street
Racine, Wisconsin 53404
Telephone: (414) 636-6011
FORWARD-LOOKING STATEMENTS
The Company has made forward-looking statements in this prospectus, the
accompanying prospectus supplement and in the documents incorporated by
reference in this prospectus. Forward-looking statements involve risks and
uncertainties that could cause actual results to differ materially from those
in the forward-looking statements. Forward-looking statements are statements
(other than statements of historical facts) that address activities, events or
developments that the Company expects or anticipates will or may occur in the
future, including such items as business strategy and measures to implement
strategy, competitive strengths, goals, expansion and growth of the Company's
business and operations, plans and references to future success. Forward-
looking statements also include any other statements that include words such as
"anticipate," "believe," "plan," "estimate," "expect," "intend" and other
similar expressions.
Forward-looking statements are based on certain assumptions and analyses the
Company has made in light of its experience and its perception of historical
trends, current conditions, expected future developments and other factors the
Company believes are appropriate. Whether actual results and developments will
conform with the Company's expectations and predictions is subject to a number
of risks and uncertainties, including, among others, the following:
. general economic, market or business conditions;
. conditions in and policies of the agricultural, construction, housing and
credit industries;
. risks associated with investments and operations in foreign jurisdictions
and any future international expansion, including those related to
economic, political and regulatory policies of local governments and laws
or policies of the United States and other countries;
. changes in governmental laws and regulations affecting lending,
borrowing, taxes and other matters impacting the Company; and
. the potential impacts of increased competition in the markets in which
the Company operates.
All of the forward-looking statements made in this prospectus and the
accompanying prospectus supplement are qualified by these cautionary
statements, and there can be no assurance that the actual results or
developments the Company has anticipated will be realized. Even if the results
and developments in the Company's forward-looking statements are substantially
realized, there is no assurance that they will have the expected consequences
to or effects on the Company or the Company's business or operations.
Further information concerning factors that could significantly impact
expected results is included in (a) the "Management's Analysis of Results of
Operations" section of the Company's Quarterly Reports on Form 10-Q as filed
with the SEC for the quarters ended March 31, 1998, June 30, 1998 and September
30, 1998, (b) the Company's Current Reports on Form 8-K as filed with the SEC,
(c) the following sections of the Company's Form 10-K Annual Report for the
year ended December 31, 1997, as filed with the SEC: Business, Legal
Proceedings and Management's Analysis of Results of Operations and (d)
documents the Company files with the SEC under the Exchange Act that are
incorporated by reference in this prospectus.
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<PAGE>
THE COMPANY
Case Credit Corporation ("Case Credit" or the "Company") is a subsidiary of
Case Capital Corporation ("Case Capital"). Case Capital is a subsidiary of Case
Corporation ("Case"). Case Capital was recently created to provide broad-based
financial services for the global marketplace. Case Credit and its operating
subsidiaries and joint ventures provide and administer financing for the retail
purchase or lease of new and used Case and other agricultural and construction
equipment. Case Credit offers various types of retail financing to end-use
customers to facilitate the sale or lease of Case products in the United
States, Canada, Australia, Europe and Uzbekistan. The Company's business
principally involves purchasing retail installment sales contracts from Case
dealers. In addition, the Company facilitates and finances the sale of
insurance products to retail customers, provides financing for Case dealers and
rental equipment yards and also provides other retail financing programs in
North America. In North America, Case Credit's private-label credit card is
used by customers to purchase parts, service, rentals and small wholegoods from
Case dealers. Case Credit also provides financing options to dealers for a
variety of purposes, including inventory, working capital, real estate
acquisitions, construction and remodeling, business acquisitions, dealer
systems and service and maintenance equipment.
The Company's business is highly dependent on the ability of Case and its
dealers to generate sales and leasing activity, the willingness of customers to
enter into financing transactions with the Company and the availability of
funds to the Company to finance such transactions. The ability of Case and its
dealers to sell agricultural and construction equipment and thereby generate
retail receivables is affected by numerous factors, including:
. the general level of activity in the agricultural and construction
industries;
. the rate of North American agricultural production and demand;
. weather conditions;
. commodity prices;
. consumer confidence;
. government subsidies for the agricultural sector;
. prevailing levels of construction (especially housing starts); and
. levels of total industry capacity and equipment inventory.
In addition, the Company's business is affected by changes in market interest
rates, which in turn are related to general economic and capital market
conditions, demand for credit, inflation, governmental policies and other
factors.
The Company obtains funding for its operations primarily from the issuance of
commercial paper, bank revolving credit facilities, medium-term notes and
public debt, the issuance of securities in asset-backed securitization ("ABS")
transactions, earnings retained in the business, and advances and equity
capital from Case. The Company sells substantial amounts of retail receivables
in ABS transactions that typically involve the sale of a pool of retail
installment sales contracts to limited-purpose business trusts or similar
securitization entities. The Company remains as servicer of these receivables,
for which it is typically paid a servicing fee.
The Company continues to expand its financing business by providing retail
and dealer financing in new geographic regions and for a broader range of
equipment, and by offering new financing products to Case dealers, end-use
customers and to others. The Company recently formed the division Soris
Financial ("Soris") to serve its diversified client base in the agricultural,
construction, industrial mobile and other equipment industries. Soris offers a
broad range of retail and wholesale financing products, including equipment and
commercial loans and leases for North American manufacturers, dealers,
distributors and their customers. Soris also facilitates and finances the sale
of insurance products to retail customers.
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CASE CORPORATION
Case is a leading worldwide designer, manufacturer, marketer and distributor
of farm equipment and light- to medium-sized construction equipment. Case's
market position is particularly significant in several product categories
including loader/backhoes, skid steer loaders, large, high-horsepower farm
tractors and self-propelled combines.
RELATIONSHIP WITH CASE CORPORATION
Case provides the Company with certain operational and financial support that
is integral to the conduct of the Company's business. Presented below is a
description of the support agreement between the Company and Case. Other
operational and financial support provided to the Company by Case is described
in reports filed by the Company with the SEC pursuant to the Exchange Act.
The Company and Case have entered into a support agreement (the "Support
Agreement") which provides, among other things, that Case:
(1) will remain, directly or indirectly, the sole owner of all of the
voting stock of the Company; and
(2) will make quarterly payments to the Company to the extent necessary
to ensure that the Company's consolidated pre-tax earnings (as defined in
the Support Agreement) available for fixed charges equal at least 1.10
times its fixed charges (as defined in the Support Agreement) in all
periods composed of four consecutive fiscal quarters.
The Support Agreement provides that Case is not directly or indirectly
guaranteeing any indebtedness, liability or obligation of the Company. The
Support Agreement may be modified or amended by the parties thereto or
terminated by either party upon 30 days' prior written notice to the other
party, with copies of any such amendment or notice being sent to Moody's
Investors Service, Inc. ("Moody's"), Standard & Poor's Ratings Group ("S&P")
and any other nationally recognized statistical rating organizations then
rating Case Credit debt, provided that at least one of the following conditions
is met:
(a) Moody's and S&P confirm in writing that their ratings on Case Credit
debt would not be downgraded or withdrawn as a result of such modification,
amendment or termination; or
(b) the modification, amendment or notice of termination provides that
the Support Agreement will continue in effect with respect to debt of Case
Credit outstanding on the effective date of the modification, amendment or
termination; or
(c) the holders of at least a majority of the aggregate unpaid principal
amount of all outstanding debt of Case Credit with an original maturity in
excess of 270 days consent in writing, so long as the holders of debt of
Case Credit having an original maturity of 270 days or less shall continue
to have the benefit of the Support Agreement until the maturity of such
debt.
For purposes of the Support Agreement, no portion of any debt is considered to
be "outstanding" if such debt is deemed to be discharged and not outstanding in
accordance with the indenture or other governing instrument defining the rights
of the holders of such debt.
The calculation of pre-tax earnings available for fixed charges under the
Support Agreement differs from the calculation of the ratio of earnings to
fixed charges under SEC rules. Under the Support Agreement, all cash
extraordinary non-recurring items of income or expense (other than cash debt
defeasance costs) are included. Under SEC rules, these items are excluded.
5
<PAGE>
USE OF PROCEEDS
Except as otherwise set forth in the prospectus supplement relating to a
specific issuance of debt securities, the net proceeds to be received by the
Company from the sale of the debt securities will be used to fund the Company's
finance programs (including, without limitation, retail finance programs
offered by Case Credit to end-use customers and dealer rental equipment finance
programs offered by Case Credit) and for other corporate purposes, including
the repayment of indebtedness. Pending such use, the net proceeds may be
temporarily invested in short-term instruments.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for Case Credit is set forth below for
the periods indicated.
<TABLE>
<CAPTION>
Nine
Months
Ended Year Ended December 31
September 30, --------------------------------------------------------------------------
1998 1997 1996 1995 1994 1993
------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
1.92x 2.23x 2.80x 4.34x 2.57x 1.82x
</TABLE>
For the computation of the ratio of earnings to fixed charges, "earnings" has
been calculated by adding income (loss) before taxes, cumulative effect of
changes in accounting principles and extraordinary loss, interest expense,
fixed charges of unconsolidated subsidiaries, the portion of rentals
representative of an interest factor and amortization of capitalized debt
expense. Fixed charges consist of interest expense, fixed charges of
unconsolidated subsidiaries, the portion of rentals representative of an
interest factor and amortization of capitalized debt expense.
The calculation of pre-tax earnings available for fixed charges under the
Support Agreement differs from the calculation of the ratio of earnings to
fixed charges under SEC rules as set forth above. Under the Support Agreement,
all cash extraordinary non-recurring items of income or expense (other than
cash debt defeasance costs) are included. Under SEC rules, these items are
excluded.
DESCRIPTION OF SECURITIES
The Securities will be issued under an Indenture (the "Indenture"), between
the Company and The Bank of New York, as Trustee (the "Trustee"), dated as of
October 1, 1997, a copy of which is incorporated by reference into the
Registration Statement. The following summaries of certain provisions of the
Indenture do not purport to be complete and are subject to, and are qualified
in their entirety by reference to, all the provisions of the Indenture,
including the definitions therein of certain terms. Wherever particular
sections or defined terms of the Indenture are referred to, such sections or
defined terms are incorporated herein by reference. As used in this section or
in any description of the Indenture, references to "Case Credit" or "the
Company" refer to Case Credit Corporation and not its subsidiaries.
The following sets forth certain general terms and provisions of the
Securities. The particular terms of the Securities offered by any prospectus
supplement (the "Offered Securities") will be described in the prospectus
supplement relating to such Offered Securities (the "Applicable Prospectus
Supplement").
General
The Indenture does not limit the amount of securities that may be issued
thereunder. Securities may be issued under the Indenture from time to time in
one or more series. The Securities will be unsecured obligations of the
Company. They will rank equally and ratably with Case Credit's other unsecured
obligations.
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Unless otherwise indicated in the Applicable Prospectus Supplement,
principal, premium, if any, and interest on the Securities will be payable, and
the transfer of Securities will be registrable, at the office or agency to be
maintained by the Company in New York, New York, and at any other office or
agency maintained by the Company for such purpose. The Securities will be
issued only in fully registered form without coupons and, unless otherwise
indicated in the Applicable Prospectus Supplement, in denominations of $1,000
and integral multiples thereof. No service charge will be made for any
registration of transfer or exchange of the Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge imposed in connection therewith.
The Applicable Prospectus Supplement will describe the following terms of the
Offered Securities:
(1) the title of the Offered Securities;
(2) any limit on the aggregate principal amount of the Offered Securities;
(3) the person to whom any interest on the Offered Securities will be
payable, if other than the person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest;
(4) the date or dates on which the principal of the Offered Securities is
payable;
(5) the rate or rates (which may be fixed or variable) at which the Offered
Securities will bear interest, if any, or the method by which such rate or
rates will be determined, the date or dates from which any such interest will
accrue, the Interest Payment Dates on which any such interest will be payable
and the Regular Record Date for the interest payable on any Interest Payment
Date;
(6) the place or places where the principal of and any premium and interest
on the Offered Securities will be payable;
(7) the period or periods within which, the price or prices at which and the
terms and conditions upon which the Offered Securities may be redeemed, in
whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem, purchase or repay the
Offered Securities pursuant to any sinking fund or analogous provisions or at
the option of a Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon which the Offered
Securities will be redeemed, purchased or repaid, in whole or in part, pursuant
to such obligation;
(9) if other than denominations of $1,000 and any integral multiple thereof,
the denominations in which the Offered Securities shall be issuable;
(10) the currency, currencies or currency units in which payment of the
principal of and any premium and interest on any Offered Securities will be
payable if other than the currency of the United States of America;
(11) if the amount of payments of principal of or any premium or interest on
any Offered Securities may be determined with reference to an index or formula,
the manner in which such amounts will be determined;
(12) if the principal of or any premium or interest on any Offered Securities
is to be payable, at the election of the Company or a Holder thereof, in one or
more currencies or currency units other than that or those in which the Offered
Securities are stated to be payable, the currency, currencies or currency units
in which payment of the principal of and any premium and interest on the
Offered Securities as to which such election is made will be payable, and the
periods within which and the terms and conditions upon which such election is
to be made;
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(13) the applicability, if any, of the provisions described under "Defeasance
and Covenant Defeasance;"
(14) whether the Offered Securities will be issuable, in whole or in part, in
the form of one or more Book-Entry Securities as described under "--Book-Entry
Securities," and, in such case, the depository appointed by the Company with
respect to the Offered Securities and the circumstances under which the Book-
Entry Security may be registered for transfer or exchange or authenticated and
delivered in the name of a person other than the Depository or its nominee;
(15) if other than the principal amount thereof, the portion of the principal
amount of the Offered Securities which will be payable upon declaration of
acceleration of the Maturity thereof; and
(16) any other terms of the Offered Securities.
The Securities may be issued as Original Issue Discount Securities to be
offered and sold at a substantial discount below their stated principal amount.
Federal income tax consequences and other special considerations applicable to
Original Issue Discount Securities and any Securities treated as having been
issued with original issue discount for Federal income tax purposes will be
described in the Applicable Prospectus Supplement. "Original Issue Discount
Securities" means any Security which provides for an amount less than the
principal amount thereof to be due and payable upon the declaration of
acceleration of the Maturity thereof upon the occurrence of an Event of Default
and the continuation thereof.
The Indenture does not contain covenants or other provisions designed to
afford holders of the Securities protection in the event of a highly leveraged
transaction, change in credit rating or other similar occurrence. See
"Relationship With Case Corporation" concerning Case's obligation to retain
ownership of all of the voting stock of the Company and Case's obligation to
make support payments to the Company under certain circumstances.
Book-Entry Securities
Unless otherwise provided in the Applicable Prospectus Supplement, the
Securities will be represented by one or more certificates (the "Global
Securities"). The Global Security representing Securities will be deposited
with, or on behalf of, The Depository Trust Company ("DTC"), or other successor
depository appointed by the Company (DTC or such other depository being the
"Depository") and registered in the name of the Depository or its nominee.
Unless otherwise provided in the Applicable Prospectus Supplement, Securities
will not be issued in definitive form. If the aggregate principal amount of any
issue exceeds $200 million, one certificate will be issued with respect to each
$200 million of principal amount and an additional certificate will be issued
with respect to any remaining principal amount of such issue.
DTC is a limited purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participants ("Participants") deposit with DTC. DTC
also facilitates the settlement among Participants of securities transactions,
such as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Direct Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations. DTC is owned by a number of its
Direct Participants and by the New York Stock Exchange, Inc., the American
Stock Exchange, Inc., and the National Association of Securities Dealers, Inc.
Access to DTC's book-entry system is also available to others, such as
securities brokers and dealers, banks and trust companies that clear through or
maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The rules applicable to DTC and its
Participants are on file with the SEC.
8
<PAGE>
Upon the issuance by the Company of Securities represented by a Global
Security, purchases of Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Securities on
DTC's records. The ownership interest of each actual purchaser of each Security
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Participants acting on behalf of Beneficial Owners. Beneficial Owners will
not receive certificates representing their ownership interests in Securities,
except in the event that use of the book-entry system for the Securities is
discontinued. The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
the Global Security.
So long as the Depository for the Global Security, or its nominee, is the
registered owner of the Global Security, the Depository or its nominee, as the
case may be, will be considered the sole owner or holder of the Securities
represented by such Global Security for all purposes under the Indenture.
Except as provided below, owners of beneficial interests in Securities
represented by the Global Security will not be entitled to have Securities
represented by such Global Security registered in their names, will not receive
or be entitled to receive physical delivery of Securities in definitive form
and will not be considered the owners or holders thereof under the Indenture.
To facilitate subsequent transfers, all Securities deposited by Participants
with DTC are registered in the name of DTC's partnership nominee, Cede & Co.
The deposit of Securities with DTC and their registration in the name of Cede &
Co. effect no change in beneficial ownership. DTC has no knowledge of the
actual Beneficial Owners of the Securities; DTC's records reflect only the
identity of the Direct Participants to whose accounts such Securities are
credited, which may or may not be the Beneficial Owners. The Participants will
remain responsible for keeping account of their holdings on behalf of their
customers. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Neither DTC nor Cede & Co. will consent or vote with respect to Securities.
Under its usual procedures, DTC mails an Omnibus Proxy to the Company as soon
as possible after the record date. The Omnibus Proxy assigns Cede & Co.'s
consenting or voting rights to those Direct Participants to whose accounts the
Securities are credited on the record date (identified in a listing attached to
the Omnibus Proxy).
Payments of principal, of premium, if any, and interest on the Securities
represented by the Global Security registered in the name of DTC or its nominee
will be made by the Company through the Trustee under the Indenture or a paying
agent (the "Paying Agent"), which may also be the Trustee under the Indenture,
to DTC or its nominee, as the case may be, as the registered owner of the
Global Security. Neither the Company, the Trustee, nor the Paying Agent will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests of the Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
The Company has been advised that DTC, upon receipt of any payment of
principal, premium, if any, and interest in respect of a Global Security, will
credit Direct Participants' accounts on the payable date in accordance with
their respective holdings shown on DTC's records unless DTC has reason to
believe that it will not receive payment on the payable date. Payments by
Participants to Beneficial Owners will be governed by standing instructions and
customary practices, as is the case with securities held for the accounts of
customers in bearer form or registered in "street name," and will be the
responsibility of such Participant and not of DTC, the Paying Agent or the
Company, subject to any statutory or regulatory requirements as may be
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in effect from time to time. Payment of principal, premium, if any, and
interest to DTC is the responsibility of the Company or the Paying Agent,
disbursement of such payments to Direct Participants shall be the
responsibility of DTC, and disbursement of such payments to the Beneficial
Owners shall be the responsibility of Direct and Indirect Participants.
If the Depository with respect to a Global Security is at any time unwilling
or unable to continue as Depository and a successor Depository is not appointed
by the Company within 90 days, the Company will issue certificated notes in
exchange for the Securities represented by such Global Security.
The Company has been informed by DTC that its management is aware that some
computer applications, systems, and the like for processing data ("Systems")
that are dependent upon calendar dates, including dates before, on, and after
January 1, 2000, may encounter "Year 2000 problems." The Company has also been
informed by DTC that its has informed its Participants and other members of the
financial community (the "Industry") that it has developed and is implementing
a program so that its Systems, as the same relate to the timely payments of
distributions (including principal and income payments) to securityholders,
book-entry deliveries, and settlement of trades within DTC ("DTC Services"),
continue to function appropriately. According to DTC, this program includes a
technical assessment and a remediation plan, each of which is complete.
Additionally, DTC has informed the Company that its plan includes a testing
phase, which is expected to be completed within appropriate time frames.
However, the Company has been informed by DTC that its ability to perform
properly its services is also dependent upon other parties, including but not
limited to issuers and their agents, as well as third party vendors from whom
DTC licenses software and hardware, and third party vendors on whom DTC relies
for information or the provisions of services, including telecommunications and
electrical utility service providers, among others. DTC has informed the
Company that it is contacting (and will continue to contact) third party
vendors from whom DTC acquires services to: (a) impress upon them the
importance of such services being Year 2000 compliant; and (b) determine the
extent of their efforts for Year 2000 remediation (and, as appropriate,
testing) of their services. In addition, DTC has informed the Company that it
is in the process of developing such contingency plans as it deems appropriate.
According to DTC, the foregoing information with respect to DTC has been
provided to the Industry for informational purposes only and is not intended to
serve as a representation, warranty, or contract modification of any kind.
The information in this section concerning the Depository and the
Depository's book-entry system has been obtained from sources that the Company
believes to be reliable, but the Company takes no responsibility for the
accuracy thereof.
Certain Covenants of the Company
Limitations on Secured Funded Debt. The Indenture provides that the Company
will not, nor will it permit any Restricted Subsidiary to, incur, issue,
assume, guarantee or create any Secured Funded Debt, without effectively
providing that the Outstanding Securities (as defined below) (together with, if
the Company shall so determine, any other Indebtedness of the Company or such
Restricted Subsidiary then existing or thereafter created which is not
subordinated to the Outstanding Securities) will be secured equally and ratably
with (or prior to) such Secured Funded Debt.
This limitation is not applicable if, after giving effect to such Secured
Funded Debt, the sum of the aggregate amount of all outstanding Secured Funded
Debt of the Company and Restricted Subsidiaries would not exceed an amount
equal to the sum of (i) $20 million and (ii) 15% of Consolidated Net Tangible
Assets.
Furthermore, this limitation on Secured Funded Debt does not apply to, and
there will be excluded from Secured Funded Debt in any computation under such
restriction, Funded Debt secured by:
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(1) Liens on real or physical property of any corporation existing at the
time such corporation becomes a Subsidiary;
(2) Liens on real or physical property existing at the time of acquisition
thereof or incurred within 180 days of the time of acquisition thereof
(including, without limitation, acquisition through merger or consolidation) by
the Company or any Restricted Subsidiary;
(3) Liens on real or physical property acquired (or constructed) after the
date of the Indenture by the Company or any Restricted Subsidiary and created
prior to, at the time of, or within 270 days after such acquisition (including,
without limitation, acquisition through merger or consolidation) (or the
completion of such construction or commencement of commercial operation of such
property, whichever is later) to secure or provide for the payment of all or
any part of the purchase price (or the construction price) thereof;
(4) Liens in favor of the Company or any Restricted Subsidiary;
(5) Liens in favor of the United States of America, any State thereof or the
District of Columbia, or any agency, department or other instrumentality
thereof, to secure partial, progress, advance or other payments pursuant to any
contract or provisions of any statute;
(6) Liens incurred or assumed in connection with an issuance of revenue bonds
the interest on which is exempt from Federal income taxation pursuant to
Section 103(b) of the Internal Revenue Code of 1986, as amended;
(7) Liens securing the performance of any contract or undertaking not
directly or indirectly in connection with the borrowing of money, the obtaining
of advances or credit or the securing of Funded Debt, if made and continuing in
the ordinary course of business;
(8) Liens incurred (no matter when created) in connection with the Company's
or a Restricted Subsidiary's engaging in leveraged or single-investor lease
transactions; provided, however, that the instrument creating or evidencing any
borrowings secured by such Lien will provide that such borrowings are payable
solely out of the income and proceeds of the property subject to such Lien and
are not a general obligation of the Company or such Restricted Subsidiary;
(9) Liens under workers' compensation laws, unemployment insurance laws or
similar legislation, or good faith deposits in connection with bids, tenders,
contracts or deposits to secure public or statutory obligations of the Company
or any Restricted Subsidiary, or deposits of cash or obligations of the United
States of America to secure surety, replevin and appeal bonds to which the
Company or any Restricted Subsidiary is a party or in lieu of such bonds, or
pledges or deposits for similar purposes in the ordinary course of business, or
Liens imposed by law, such as laborers' or other employees', carriers',
warehousemen's, mechanics', materialmen's and vendors' Liens and Liens arising
out of judgments or awards against the Company or any Restricted Subsidiary
with respect to which the Company or such Restricted Subsidiary at the time
shall be prosecuting an appeal or proceedings for review and with respect to
which it shall have secured a stay of execution pending such appeal or
proceedings for review, or Liens for taxes not yet subject to penalties for
nonpayment or the amount or validity of which is being in good faith contested
by appropriate proceedings by the Company or any Restricted Subsidiary, as the
case may be, or minor survey exceptions, minor encumbrances, easements or
reservations of, or rights of others for, rights-of-way, sewers, electric
lines, telegraph and telephone lines and other similar purposes, or zoning or
other restrictions or Liens as to the use of real properties, which Liens,
exceptions, encumbrances, easements, reservations, rights and restrictions do
not, in the opinion of the Company, in the aggregate materially detract from
the value of said properties or materially impair their use in the operation of
the business of the Company and its Restricted Subsidiaries;
(10) Liens incurred to finance all or any portion of the cost of
construction, alteration or repair of any real or physical property and
improvements thereto prior to or within 270 days after completion of such
construction, alteration or repair;
(11) Liens incurred (no matter when created) in connection with a
Securitization Transaction;
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(12) Liens on property (or any Receivable arising in connection with the
lease thereof) acquired by the Company or a Restricted Subsidiary through
repossession, foreclosure or like proceeding and existing at the time of the
repossession, foreclosure, or like proceeding;
(13) Liens on deposits of the Company or a Restricted Subsidiary with banks
(in the aggregate, not exceeding $50 million), in accordance with customary
banking practice, in connection with the providing by the Company or a
Restricted Subsidiary of financial accommodations to any Person in the ordinary
course of business;
(14) Liens outstanding on the date of the Indenture; or
(15) any extension, renewal, refunding or replacement of the foregoing.
"Consolidated Net Tangible Assets" means, at any date, the total assets
appearing on the most recent consolidated balance sheet of the Company and
Restricted Subsidiaries as at the end of the fiscal quarter of the Company
ending not more than 135 days prior to such date, prepared in accordance with
generally accepted accounting principles, less (a) all current liabilities (due
within one year) as shown on such balance sheet, (b) applicable reserves, (c)
investments in and advances to Securitization Subsidiaries and Subsidiaries of
Securitization Subsidiaries that are consolidated on the consolidated balance
sheet of the Company and its Subsidiaries, and (d) Intangible Assets and
liabilities relating thereto.
"Funded Debt" means (a) any indebtedness of the Company or a Restricted
Subsidiary maturing more than 12 months after the time of computation thereof,
(b) guarantees by the Company or a Restricted Subsidiary of Funded Debt or of
dividends of others (except guarantees in connection with the sale or discount
of accounts receivable, trade acceptances and other paper arising in the
ordinary course of business), (c) in the case of any Restricted Subsidiary all
preferred stock of such Restricted Subsidiary, and (d) all Capital Lease
Obligations (as defined in the Indenture) of the Company or a Restricted
Subsidiary.
"Indebtedness" means, at any date, without duplication, (a) all obligations
for borrowed money of the Company or a Restricted Subsidiary or any other
indebtedness of the Company or a Restricted Subsidiary, evidenced by bonds,
debentures, notes or other similar instruments, and (b) Funded Debt, except
such obligations and other indebtedness of the Company or a Restricted
Subsidiary of the Company and Funded Debt, if any, incurred as a part of a
Securitization Transaction.
"Intangible Assets" means, at any date, the value (net of any applicable
reserves) as shown on or reflected in the most recent consolidated balance
sheet of the Company and the Restricted Subsidiaries as at the end of the
fiscal quarter of the Company ending not more than 135 days prior to such date,
prepared in accordance with generally accepted accounting principles, of: (a)
all trade names, trademarks, licenses, patents, copyrights, service marks,
goodwill and other like intangibles; (b) organizational and development costs;
(c) deferred charges (other than prepaid items, such as insurance, taxes,
interest, commissions, rents, deferred interest waiver, compensation and
similar items and tangible assets being amortized); and (d) unamortized debt
discount and expense, less unamortized premium.
"Liens" means pledges, mortgages, security interests and other liens,
including purchase money liens, on any property of the Company or any
Restricted Subsidiary which secure Secured Funded Debt.
"Outstanding Securities" means all Securities previously authenticated and
delivered under the Indenture other than (a) Securities that have been
canceled, (b) Securities for whose payment or redemption money in the necessary
amount has been deposited with the Trustee or any Paying Agent and (c)
Securities that have been defeased pursuant to section 13.2 of the Indenture.
In determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver, Securities owned by the Company are
deemed not to be outstanding and special rules under the Indenture are
applicable to Original Issue Discount Securities and Securities not denominated
in U.S. Dollars.
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"Receivables" means any right of payment from or on behalf of any obligor,
whether constituting an account, chattel paper, instrument, general intangible
or otherwise, arising, either directly or indirectly, from the financing by the
Company or any Subsidiary of the Company of property or services, and monies
due thereunder, security interests in the property and services financed
thereby and any and all other related rights.
"Restricted Subsidiary" means each Subsidiary of the Company other than
Securitization Subsidiaries and Subsidiaries of Securitization Subsidiaries.
"Secured Funded Debt" means Funded Debt of the Company which is secured by
any pledge, or mortgage, security interest or other lien on any property
(whether owned on the date of the Indenture or thereafter created) of the
Company or of a Restricted Subsidiary.
"Securities" means any indebtedness of the Company issued under the
Indenture.
"Securitization Subsidiary" means a Subsidiary of the Company (a) which is
formed for the purpose of effecting one or more Securitization Transactions and
engaging in other activities reasonably related thereto and (b) as to which no
portion of the indebtedness or any other obligations of which (1) is guaranteed
by the Company or any Restricted Subsidiary, or (2) subjects any property or
assets of the Company or any Restricted Subsidiary, directly or indirectly,
contingently or otherwise, to any lien, other than pursuant to representations,
warranties and covenants (including those related to servicing) entered into in
the ordinary course of business in connection with a Securitization Transaction
and inter-company notes and other forms of capital or credit support relating
to the transfer or sale of Receivables or asset-backed securities to such
Securitization Subsidiary and customarily necessary or desirable in connection
with such transactions.
"Securitization Transaction" means any transaction or series of transactions
that have been or may be entered into by the Company or any of its Subsidiaries
in connection with or reasonably related to a transaction or series of
transactions in which the Company or any of its Subsidiaries may sell, convey
or otherwise transfer to (a) a Securitization Subsidiary or (b) any other
Person, or may grant a security interest in, any Receivables or asset-backed
securities or interest therein (whether such Receivables or securities are then
existing or arising in the future) of the Company or any of its Subsidiaries,
and any assets related thereto, including, without limitation, all security
interests in the property or services financed thereby, the proceeds of such
Receivables or asset-backed securities and any other assets which are sold or
in respect of which security interests are granted in connection with
securitization transactions involving such assets.
"Subsidiary" means any corporation of which at least a majority of the
outstanding stock, which under ordinary circumstances (not dependent upon the
happening of a contingency) has voting power to elect a majority of the board
of directors of such corporation (or similar management body), is owned
directly or indirectly by the Company or by one or more Subsidiaries of the
Company, or by the Company and one or more Subsidiaries.
Events of Default
Any one of the following events will constitute an Event of Default under the
Indenture with respect to Securities of any series:
(1) failure to pay any interest on any Security of that series when due,
continued for 30 days;
(2) failure to pay principal of or any premium on any Security of that series
when due;
(3) failure to deposit any sinking fund or other payment, when due, in
respect of any Security of that series;
(4) failure to perform, or breach of, any other covenant or warranty of the
Company in the Indenture (other than a covenant included in the Indenture
solely for the benefit of a series of Securities thereunder other than that
series) continued for 60 days after written notice as provided in the
Indenture;
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(5) certain events in bankruptcy, insolvency or reorganization of the
Company;
(6) a default or defaults under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
Indebtedness (including the Indenture), whether such Indebtedness exists at the
date of the Indenture or shall thereafter be created, which default or defaults
shall have resulted in such Indebtedness, in an aggregate principal amount
exceeding $60 million, individually or in the aggregate, having been declared
due and payable prior to the date on which it would otherwise have become due
and payable, without such Indebtedness having been discharged, or such
acceleration having been rescinded or annulled, or there having been deposited
in trust a sum of money sufficient to discharge in full such Indebtedness,
within a period of 30 days after there shall have been given, by registered
mail, to the Company by the Trustee or to the Company and the Trustee by the
Holder or Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of such series a written notice specifying such default
and requiring the Company to cause such Indebtedness to be discharged, cause to
be deposited in trust a sum sufficient to discharge in full such Indebtedness
or cause such acceleration to be rescinded or annulled; or
(7) any other Event of Default provided with respect to Securities of that
series.
If any Event of Default with respect to the Securities of any series at the
time Outstanding occurs and is continuing, either the Trustee or the Holders of
at least 25% in aggregate principal amount of the Outstanding Securities of
that series may declare the principal amount (or, if the Securities of that
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms thereof) of all the Securities of that
series to be due and payable immediately. At any time after a declaration of
acceleration with respect to Securities of any series has been made, but before
a judgment or decree based on acceleration has been obtained, the Holders of a
majority in aggregate principal amount of Outstanding Securities of that series
may, under certain circumstances, rescind and annul such acceleration.
You should review the Applicable Prospectus Supplement relating to any series
of Offered Securities that are Original Issue Discount Securities for the
particular provisions relating to acceleration of the Stated Maturity of a
portion of the principal amount of such series of Original Issue Discount
Securities upon the occurrence of an Event of Default and the continuation
thereof.
The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable indemnity. Subject to such provisions for the
indemnification of the Trustee and to certain other conditions, the Holders of
a majority in aggregate principal amount of the Outstanding Securities of any
series will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Securities of that
series.
No Holder of any series of Securities will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
(a) such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default, (b) the Holders of at least 25% in principal
amount of the Outstanding Securities of that series shall have made written
request, and offered reasonable indemnity, to the Trustee to institute such
proceeding as trustee, and (c) the Trustee shall not have received from the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of that series a direction inconsistent with such request and shall
have failed to institute such proceeding within 60 days. However, such
limitations do not apply to a suit instituted by a Holder of a Security for
enforcement of payment of the principal of and premium, if any, or interest on
such Security on or after the respective due dates expressed in such Security.
The Company is required to furnish to the Trustee annually a statement as to
the performance by the Company of certain of its obligations under the
Indenture and as to any default in such performance.
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Modification and Waiver
Modifications and amendments of the Indenture may be made by the Company and
the Trustee with the consent of the Holders of not less than the majority in
aggregate principal amount of the Outstanding Securities of each series issued
under the Indenture and affected by the modification or amendment. No such
modification or amendment may, without the consent of the Holders of all
Securities affected thereby:
(1) change the Stated Maturity of the principal of, or any installment of
principal of or interest on, any Security;
(2) reduce the principal amount of, or the premium, if any, or (except as
otherwise provided in the Applicable Prospectus Supplement) interest on, any
Security (including, in the case of an Original Issue Discount Security, the
amount payable upon acceleration of the maturity thereof);
(3) change the place or currency of payment of principal of, premium, if any,
or interest on any Security;
(4) impair the right to institute suit for the enforcement of any payment on
any Security on or after the Stated Maturity thereof (or in the case of
redemption, on or after the Redemption Date); or
(5) reduce the percentage in principal amount of Outstanding Securities of
any series, the consent of whose Holders is required for modification or
amendment of the Indenture or for waiver of compliance with certain provisions
of the Indenture or for waiver of certain defaults.
The Holders of at least a majority in aggregate principal amount of the
Outstanding Securities of any series may, on behalf of all Holders of that
series, waive compliance by the Company with certain restrictive provisions of
the Indenture. The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series may, on behalf of all
Holders of that series, waive any past default under the Indenture, except a
default in the payment of principal, premium or interest and in respect of a
covenant or provision of the Indenture that cannot be modified or amended
without the consent of the Holder of each Outstanding Security of such series
affected thereby.
Consolidation, Merger and Sale of Assets
The Company may not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an
entirety to any Person and may not permit any Person to merge into or
consolidate with the Company or convey, transfer or lease its properties and
assets substantially as an entirety to the Company, unless:
(1) any successor or purchaser is a corporation, partnership, or trust
organized and validly existing under the laws of the United States of America,
any State or the District of Columbia, and any such successor or purchaser
expressly assumes the Company's obligations on the Securities under a
supplemental indenture;
(2) immediately after giving effect to the transaction, no Event of Default,
and no event which, after notice or lapse of time or both, would become an
Event of Default, shall have occurred and be continuing;
(3) if properties or assets of the Company become subject to a mortgage,
pledge, lien, security interest or other encumbrance not permitted by the
Indenture, the Company or such successor Person, as the case may be, takes such
steps as shall be necessary effectively to secure the Securities equally and
ratably with (or prior to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel stating compliance with these provisions.
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Defeasance and Covenant Defeasance
The Indenture provides that, if such provision is made applicable to the
Securities of any series pursuant to Section 3.1 of the Indenture, the Company,
at the Company's option:
(1) will be discharged from any and all obligations in respect of the
Securities of any series (except for certain obligations to register the
transfer of or exchange of Securities of such series, replace stolen, lost or
mutilated Securities of such series, maintain paying agencies and hold moneys
for payment in trust); or
(2) need not comply with certain restrictive covenants of the Indenture,
including those described under "Certain Covenants of the Company," and the
occurrence of an event described in clause (4) under "Events of Default" shall
no longer be an Event of Default,
in each case, if the Company deposits, in trust, with the Trustee money or U.S.
Government Obligations, which through the payment of interest thereon and
principal thereof in accordance with their terms, will provide money in an
amount sufficient to pay all the principal of, premium if any, and interest on
the Securities of such series on the dates such payments are due (which may
include one or more redemption dates designated by the Company) in accordance
with the terms of the Securities of such series. Such a trust may be
established only if, among other things:
(a) no Event of Default or event which, with the giving of notice or
lapse of time, or both, would become an Event of Default under the
Indenture shall have occurred and be continuing on the date of such deposit
or on such later date specified in the Indenture in the case of certain
events in bankruptcy, insolvency or reorganization of the Company;
(b) such deposit will not cause the Trustee to have any conflicting
interest with respect to other securities of the Company;
(c) such defeasance will not result in a breach or violation of, or
constitute a default under, the Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound; and
(d) the Company shall have delivered an Opinion of Counsel to the effect
that the Holders will not recognize income, gain or loss for federal income
tax purposes as a result of such deposit or defeasance and will be subject
to Federal income tax in the same manner as if such defeasance had not
occurred, which Opinion of Counsel, in the case of clause (1) above, must
refer to and be based upon a published ruling of the Internal Revenue
Service, a private ruling of the Internal Revenue Service addressed to the
Company, or otherwise a change in applicable federal income tax law
occurring after the date of the Indenture.
In the event the Company omits to comply with its remaining obligations under
the Indenture after a defeasance of the Indenture with respect to the
Securities of any series as described under clause (2) above and the Securities
of such series are declared due and payable because of the occurrence of any
Event of Default, the amount of money and U.S. Government Obligations on
deposit with the Trustee may be insufficient to pay amounts due on the
Securities of such series at the time of the acceleration resulting from such
Event of Default. However, the Company will remain liable in respect of such
payments.
Concerning the Trustee
The Bank of New York is Trustee under the Indenture. The Trustee performs
services for the Company and Case in the ordinary course of business and is a
lender bank under certain of the Company's credit facilities and Case's credit
facilities. The Company has issued $150,000,000 aggregate principal amount of
its 6 3/4% Notes due October 21, 2007, $100,000,000 aggregate principal amount
of its 6 1/8% Notes due October 15, 2001, $100,000,000 aggregate principal
amount of its Floating Rate Notes due January 21, 2000 and a total of
$279,200,000 of its Series A medium-term notes and a total of $509,000,000 of
its Series B medium-term
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notes under the Indenture. The Trustee is also trustee under an indenture,
dated as of February 1, 1996, between the Company, Case and the Trustee, as
trustee. The Company has issued $200,000,000 aggregate principal amount of its
6 1/8% Notes due February 15, 2003, under such indenture.
PLAN OF DISTRIBUTION
The Company may sell the Securities being offered hereby through agents,
through underwriters and through dealers, and Securities may be sold to other
purchasers directly or through agents or through a combination of any such
methods of sale.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
Offers to purchase Securities may be solicited by agents designated by the
Company from time to time. Any such agent, who may be deemed to be an
underwriter, as that term is defined in the Securities Act, involved in the
offer or sale of the Securities in respect of which this prospectus is
delivered will be named, and any commissions payable by the Company to such
agent set forth, in the Applicable Prospectus Supplement. Agents may be
entitled under agreements that may be entered into with the Company to
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act. In addition, such agents or their
affiliates may be customers of, extend credit to, engage in transactions with,
or perform services for, the Company and/or Case in the ordinary course of
business. Unless otherwise indicated in the Applicable Prospectus Supplement,
any such agent will be acting on a reasonable efforts basis for the period of
its appointment.
If any underwriters are utilized in the sale, the Company will enter into an
underwriting agreement with such underwriters at the time of sale to them and
the names of the underwriters and the terms of the transaction will be set
forth in the Applicable Prospectus Supplement that will be used by the
underwriters to make resales of the Securities in respect of which this
prospectus is delivered to the public. The underwriters may be entitled under
the relevant underwriting agreement to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act. In
addition, such underwriters or their affiliates may be customers of, extend
credit to, engage in transactions with, or perform services for, the Company
and/or Case in the ordinary course of business.
If dealers are utilized in the sale of the Securities in respect of which
this prospectus is delivered, the Company will sell such Securities to such
dealers as principal. The dealers may then resell such Securities to the public
at varying prices to be determined by such dealers at the time of resale.
Dealers may be entitled to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act. In addition, such
dealers or their affiliates may be customers of, extend credit to, engage in
transactions with, or perform services for, the Company and/or Case in the
ordinary course of business.
Unless otherwise indicated in the Applicable Prospectus Supplement,
Securities are not proposed to be listed on a securities exchange, and any
underwriters or dealers will not be obligated to make a market in Securities.
The Company cannot predict the activity or liquidity of any trading in the
Securities.
If so indicated in an Applicable Prospectus Supplement, the Company will
authorize underwriters or agents to solicit offers by certain institutions to
purchase Offered Securities from the Company pursuant to delayed delivery
contracts ("Contracts") providing for payment and delivery on the date or dates
stated in such prospectus supplement. Each Contract will be for an amount not
less than, and the aggregate principal amount of Offered Securities sold
pursuant to Contracts shall be not less nor more than, the respective amounts
stated in such prospectus supplement. Institutions with whom Contracts, when
authorized, may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and
17
<PAGE>
charitable institutions and other institutions, but will in all cases be
subject to the approval of the Company. Contracts will not be subject to any
conditions except (a) the purchase by an institution of the Offered Securities
covered by its Contracts shall not at the time of delivery be prohibited under
the laws of any jurisdiction in the United States to which such institution is
subject, and (b) if the Offered Securities are being sold to underwriters, the
Company shall have sold to such underwriters the total principal amount of the
Offered Securities less the principal amount thereof covered by Contracts.
Agents and underwriters will have no responsibility in respect of the delivery
or performance of Contracts.
LEGAL MATTERS
Unless otherwise indicated in a supplement to this prospectus, certain legal
matters in connection with the Securities offered by this prospectus will be
passed upon for the Company by Richard S. Brennan, General Counsel and
Secretary of Case, and by Mayer, Brown & Platt, Chicago, Illinois. In addition
to his positions at Case, Mr. Brennan is also a partner at Mayer, Brown &
Platt. The Company has been advised by Mr. Brennan that, at December 31, 1998,
he beneficially owned 34,000 shares of common stock of Case and had options to
purchase 10,000 shares of common stock of Case. Unless otherwise indicated in a
supplement to this prospectus, certain legal matters in connection with the
Securities offered by this prospectus will be passed upon for the underwriters,
dealers and agents, if any, by Cahill Gordon & Reindel (a partnership including
a professional corporation), New York, New York.
EXPERTS
Unless otherwise indicated in a supplement to this prospectus, the audited
financial statements and schedules included or incorporated by reference in
this prospectus and the prospectus supplement and elsewhere in the Registration
Statement have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their reports with respect thereto, and are
included or incorporated by reference herein in reliance upon the authority of
said firm as experts in giving said reports.
18
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
1(a) Form of Underwriting Agreement
1(b) Form of Distribution Agreement
4 Indenture, dated as of October 1, 1997, between Case Credit
Corporation and The Bank of New York (including form of security)
(1)
5 Opinion of Richard S. Brennan, General Counsel and Secretary of Case
Corporation, as to the legality of the securities being registered
12 Computation of Ratio of Earnings to Fixed Charges
23(a) Consent of Arthur Andersen LLP, Independent Public Accountants for
Case Credit Corporation (Milwaukee, Wisconsin)
23(b) Consent of Richard S. Brennan, General Counsel and Secretary of Case
Corporation (contained in Exhibit 5)
24 Powers of attorney (contained on the signature page to this
Registration Statement)
25 Form T-1 Statement of eligibility under the Trust Indenture Act of
1939 of The Bank of New York
</TABLE>
- --------
(1) Filed as Exhibit 4(a) to the Company's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1997, and incorporated herein by reference.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The table below sets forth the expenses expected to be incurred in connection
with the issuance and distribution of the securities registered hereby, other
than underwriting discounts and commissions. All amounts are estimated except
for the SEC registration fee.
<TABLE>
<S> <C>
SEC registration fee............................................ $141,502
Blue sky fees and expenses...................................... 10,000
Printing and engraving costs.................................... 200,000
Legal fees and expenses......................................... 100,000
Accounting fees and expenses.................................... 150,000
Rating Agencies' Fees........................................... 200,000
Trustee fees and expenses....................................... 10,000
Miscellaneous................................................... 13,498
--------
Total....................................................... $825,000
========
</TABLE>
Item 15. Indemnification of Directors and Officers.
The By-Laws of the Company include the following provisions:
Article V, Section 16. Indemnification of Directors and Officers. Each
person who is or was a director or officer of the corporation, or who
serves or may have served at the request of the corporation as a director
or officer of another corporation, partnership, joint venture, trust or
other enterprise (including the heirs, executors, administrators or estate
of such person) and who was or is a party or is threatened to be made a
party to any threatened, pending or completed claim, action, suit or
proceeding, whether criminal, civil, administrative or investigative,
including appeals, shall be indemnified by the corporation as a matter of
right to the full extent permitted or authorized by the Corporation Law of
the state of incorporation of the corporation, as it may from time to time
be amended, against any expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement, actually and reasonably incurred by
him in his capacity as a director or officer, or arising out of his status
as a director or officer. Each person who is or was an employee or agent of
the corporation, or who serves or may have served at the request of the
corporation as an employee or agent of another corporation, partnership,
joint venture, trust or other enterprise (including the heirs, executors,
administrators or estate of such person) may, at the discretion of the
Board, be indemnified by the corporation to the same extent as provided
herein with respect to directors and officers of the corporation.
The corporation may, but shall not be obligated to, maintain insurance at
its expense, to protect itself and any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such. The corporation may, but shall not be obligated to, pay
expenses incurred in defending a civil or criminal action, suit or
proceeding in advance of the final disposition of such action, suit or
proceeding.
The indemnification provided by this Section 16 shall not be exclusive of
any other rights to which those seeking indemnification may be entitled as
a matter of law or under any agreement, vote of stockholders or
disinterested directors or otherwise.
Reference is made to the Underwriting Agreement, filed as Exhibit 1(a)
hereto, and to the Distribution Agreement, filed as Exhibit 1(b) hereto, for a
description of the indemnification arrangements in connection with any
underwritten offering of securities registered hereby.
II-1
<PAGE>
Case has purchased insurance which purports to insure the officers and
directors of Case, and of its subsidiary companies, which includes Case Credit,
against certain liabilities incurred by them in the discharge of their function
as such officers and directors except for liabilities resulting from their own
malfeasance.
Item 16. Exhibits.
A list of exhibits filed herewith is contained in the index to exhibits which
is incorporated herein by reference.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that
is incorporated by reference in this Registration Statement shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant, pursuant to the provisions described
in Item 15, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission, such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the
II-2
<PAGE>
payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Racine, State of Wisconsin, on January 29, 1999. The
Registrant also certifies that it reasonably believes that the security rating
requirement contained in General Instruction I.B.2. of Form S-3 will be met by
the time of sale.
Case Credit Corporation
/s/ Kenneth R. Gangl
By: _________________________________
Kenneth R. Gangl
President and Chief Executive
Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Theodore R. French, Kenneth R. Gangl and Robert A. Wegner and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned, with full
power of substitution and resubstitution, for and in the name, place and stead
of the undersigned, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement as well as
any related registration statement (or amendment thereto) filed pursuant to
Rule 462(b) promulgated under the Securities Act of 1933, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, and hereby grants to such attorneys-in-
fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done, as fully to
all intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Kenneth R. Gangl President, Chief Executive January 29, 1999
____________________________________ Officer and Director
Kenneth R. Gangl (Principal Executive
Officer)
/s/ Robert A. Wegner Senior Vice President and January 29, 1999
____________________________________ Chief Financial Officer
Robert A. Wegner (Principal Financial and
Accounting Officer)
/s/ Theodore R. French Chairman of the Board and January 29, 1999
____________________________________ Director
Theodore R. French
/s/ Andrew E. Graves Vice Chairman and Director January 29, 1999
____________________________________
Andrew E. Graves
</TABLE>
II-4
<PAGE>
EXHIBIT 1A
CASE CREDIT CORPORATION
DEBT SECURITIES
FORM OF
UNDERWRITING AGREEMENT
[Date]
To the Underwriter or
Underwriters named in
the within mentioned
Terms Agreement
Ladies and Gentlemen:
1. Introductory. Case Credit Corporation, a Delaware corporation
------------
(the "Company"), proposes to issue and sell from time to time certain of its
-------
debt securities registered under the registration statements referred to in
Section 2(a) (the "Securities"). The Securities will be issued under an
----------
indenture, dated as of October 1, 1997 (the "Indenture"), between the Company
---------
and The Bank of New York, as Trustee (the "Trustee"), in one or more series,
-------
which series may vary as to interest rates, maturities, redemption provisions,
selling prices and other terms, with all such terms for any particular series of
the Securities being determined at the time of sale. Particular series of the
Securities, will be sold pursuant to a Terms Agreement referred to in Section 3,
for resale in accordance with terms of offering determined at the time of sale.
The Securities involved in any such offering are hereinafter referred
to as the "Offered Securities". The firm or firms which agree to purchase the
------------------
Offered Securities are hereinafter referred to as the "Underwriters" of such
------------
Offered Securities, and the representative or representatives of the
Underwriters, if any, specified in a Terms Agreement referred to in Section 3
are hereinafter referred to as the "Representatives"; provided, however, that if
--------------- -------- -------
the Terms Agreement does not specify any representative of the Underwriters, the
term "Representatives", as used in this Agreement (other than in Sections 2(b),
---------------
5(c) and 6 and the second sentence of Section 3), shall mean the Underwriters.
<PAGE>
2. Representations and Warranties.
------------------------------
The Company, as of the date of each Terms Agreement referred to in
Section 3, represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333-[ ]), including a
prospectus, and a registration statement (No. 333-52725) relating to the
Securities have each been filed with the Securities and Exchange Commission
("Commission") and has been declared effective under the Securities Act of
----------
1933, as amended (collectively with all rules and regulations of the
Commission thereunder, the "Act"). Such registration statements, as
---
amended at the date of any Terms Agreement referred to in Section 3 (the
"Terms Agreement Date"), including all documents incorporated therein by
---------------------
reference and all exhibits thereto, are hereinafter referred to as the
"Registration Statement", and the prospectus included in the registration
-----------------------
statement No. 333-[ ], as supplemented as contemplated by Section 3 to
reflect the terms of the applicable Offered Securities and the terms of
offering thereof as most recently filed, or transmitted for filing, with
the Commission pursuant to and in accordance with Rule 424(b) ("Rule
----
424(b)") under the Act including all material and information incorporated
by reference therein, is hereinafter referred to as the "Prospectus,"
----------
except that if any revised prospectus shall be provided to the Underwriters
by the Company for use in connection with the offering of Securities, which
differs from the Prospectus most recently filed, or transmitted for filing,
with the Commission (whether or not such revised prospectus is required to
be filed by the Company pursuant to Rule 424(b)), the term "Prospectus"
----------
shall refer to such revised prospectus from and after the time it is first
provided to the Underwriters for such use, including all material and
information incorporated by reference therein. All references in this
Agreement to financial statements and schedules and other information that
is "contained," "included" or "stated" in the Registration Statement, any
--------- -------- ------
preliminary prospectus or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements
and schedules and other information that are or are deemed to be
incorporated by reference in the Registration Statement or the Prospectus,
as the case may be. Any reference herein to the terms "amend," "amendment"
----- ---------
or "supplement" with respect to the Registration Statement, any prelimi-
----------
-2-
<PAGE>
nary prospectus or the Prospectus shall be deemed to refer to and include
the filing of any document under the Securities Exchange Act of 1934, as
amended (together with all rules and regulations of the Commission
thereunder, the "Exchange Act"), after the effective date of the
------------
Registration Statement, or the issue date of any preliminary prospectus or
the Prospectus, as the case may be, and on or prior to the completion of
the applicable offering and which is deemed to be incorporated therein by
reference. Copies of such Registration Statement and the Prospectus
relating thereto, any such amendment or supplement and all documents
incorporated by reference therein which were filed with the Commission on
or prior to the Terms Agreement Date (including one fully executed copy of
the Registration Statement and of each amendment thereto for counsel for
the Underwriters) have been delivered to each of the Representatives. The
Registration Statement and the Prospectus shall be in all material respects
in the form furnished to the Underwriters prior to the Terms Agreement Date
or, to the extent not completed or required to be amended at the Terms
Agreement Date, shall contain only such additional material information and
other material changes as the Company has advised the Underwriters, a
reasonable time prior to the Terms Agreement Date, is to be included or
made therein and as to which the Underwriters have not reasonably objected.
(b) On the effective date of the Registration Statement relating to
the Registered Securities (the "Effective Date"), such registration
--------------
statement conformed as to form in all material respects to the requirements
of the Act, the Trust Indenture Act of 1939, as amended (collectively with
all rules and regulations of the Commission thereunder, "Trust Indenture
---------------
Act"), and the other applicable rules and regulations of the Commission
---
("Rules and Regulations") and did not include any untrue statement of a
-----------------------
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and on
the date of each Terms Agreement referred to in Section 3, the Prospectus
will conform as to form in all material respects to the requirements of the
Act, the Trust Indenture Act and the Rules and Regulations, and on such
date the Prospectus will not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not
-3-
<PAGE>
misleading, except that the foregoing does not apply to (a) statements in
or omissions from any of such documents based upon written information
furnished to the Company by any Underwriter through the Representatives, if
any, specifically for use therein and (b) that part of the Registration
Statement that constitutes the Statement of Eligibility on Form T-1 of the
Trustee under the Trust Indenture Act filed as an exhibit to the
Registration Statement (the "Form T-1").
--------
(c) (A) No stop order suspending the effectiveness of the
Registration Statement is in effect and, to the knowledge of the Company,
no proceedings for that purpose are pending before or threatened by the
Commission and (B) each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus complied
or will comply when so filed as to form in all material respects with the
Exchange Act and did not, or will not when so filed, contain an untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in the light of the circumstances under which
they were made, not misleading, excluding any statement in any such
document that does not constitute part of the Registration Statement or the
Prospectus pursuant to Rule 412 under the Act; provided, however, that this
-------- -------
representation and warranty shall not apply to any statements in or
omissions from any such documents based upon written information furnished
to the Company by any Underwriter, through the Representatives, if any,
specifically for use therein.
(d) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and the Company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or leasing of property or the conduct
of its business requires such qualification, other than any failure to be
so qualified or in good standing as would not singly or in the aggregate
with all such other failures reasonably be expected to have a material
adverse effect on the assets, liabilities, results of operations or
financial condition of the Company and its consolidated subsidiaries (as
defined in Rule 1-02(x) of the Commission's Regulation S-X), taken as a
whole (a "Material Adverse Effect").
-----------------------
-4-
<PAGE>
(e) Each subsidiary (including, if applicable, partnerships of which
the Company is a general partner) of the Company that meets the conditions
for a "significant subsidiary" set forth in Rule 1-02(w) of the
Commission's Regulation S-X (collectively, the "Subsidiaries") is duly
------------
organized and validly existing as a corporation or partnership in good
standing (if applicable) under the laws of the jurisdiction of its
incorporation or formation, has the corporate or other power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified to transact business as a
foreign corporation or partnership and is in good standing (if applicable)
in each jurisdiction in which the conduct of its business or its ownership,
leasing or operation of property requires such qualification, other than
any failure to be so qualified or in good standing as would not singly or
in the aggregate with all such other failures reasonably be expected to
have a Material Adverse Effect.
(f) The Indenture has been duly authorized by the Company and has
been duly qualified under the Trust Indenture Act; the Indenture complies
as to form in all material respects with the requirements of the Trust
Indenture Act; the Indenture has been duly executed and delivered by the
Company and constitutes the valid and legally binding obligation of the
Company in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights, to public policy considerations and to general equity principles;
the Offered Securities have been duly authorized by the Company; and when
the Offered Securities are delivered and paid for pursuant to the Terms
Agreement on the Closing Date (as defined below) or pursuant to Delayed
Delivery Contracts (as hereinafter defined), such Offered Securities will
have been duly executed, authenticated, issued and delivered by the Company
and will conform in all material respects to the description thereof
contained in the Prospectus, and such Offered Securities will constitute
valid and legally binding obligations of the Company, entitled to the
benefits of the Indenture and enforceable against the Company in accordance
with their terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights, to public policy
considerations and to general equity principles.
(g) The Offered Securities have been approved for listing on the
stock exchange, if any, indicated in the Terms Agreement, subject to notice
of issuance.
-5-
<PAGE>
(h) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in connection with the
issuance and sale of the Offered Securities by the Company, except such as
are required under the Act and the Trust Indenture Act and such as may be
required under state securities laws.
(i) The execution, delivery and performance of the Indenture, the
Terms Agreement (including the provisions of this Agreement) and any
Delayed Delivery Contracts and the issuance and sale of the Offered
Securities and compliance with the terms and provisions thereof do not and
will not (i) contravene any provision of the certificate of incorporation,
by-laws or other organizational documents of the Company or of any of the
Subsidiaries, or (ii) conflict with or result in a breach or violation of
any of the terms and provisions of, or constitute a default under
(including, without limitation, any event which with notice or lapse of
time, or both, would constitute a default under), or result in the creation
or imposition of any lien, charge or encumbrance upon any assets or
properties of the Company or of any of the Subsidiaries under, any statute,
rule, regulation, order or decree of any governmental agency or body or any
court having jurisdiction over any of them or any of their respective
properties, assets or operations, or any indenture, mortgage, loan
agreement, note or other agreement or instrument for borrowed money, any
guarantee of any agreement or instrument for borrowed money or any lease,
permit, license or other agreement or instrument to which the Company or
any of the Subsidiaries is a party or by which the Company or any of the
Subsidiaries is bound or to which any of the properties, assets or
operations of any of them is subject, other than any such breach,
violation, default, lien, charge or encumbrance as would not singly or in
the aggregate with all such other breaches, violations, defaults, liens,
charges or encumbrances reasonably be expected to have a Material Adverse
Effect.
(j) The Terms Agreement (including the provisions of this Agreement)
and any Delayed Delivery Contracts have been duly authorized, executed and
delivered by the Company.
-6-
<PAGE>
(k) The Company and the Subsidiaries have such certificates,
permits, licenses, franchises, consents, approvals, orders, authorizations
and clearances from appropriate governmental agencies and bodies
("Licenses") as are necessary to own, lease or operate their properties and
--------
to conduct their businesses in the manner described in the Prospectus, and
all such Licenses are valid and in full force and effect, other than any
failure to have any such License or any failure of any such License to be
valid and in full force and effect as would not singly or in the aggregate
with all such other failures have a Material Adverse Effect.
(l) Except as set forth in the Registration Statement and the
Prospectus, the properties, assets and operations of the Company and the
Subsidiaries are in compliance in all material respects with all applicable
Federal, state, local and foreign laws, rules and regulations, orders,
decrees, judgments, permits and licenses relating to public and worker
health and safety and to the protection and clean-up of the natural
environment and activities or conditions related thereto, including,
without limitation, those relating to the generation, handling, disposal,
transportation or release of hazardous materials (collectively,
"Environmental Laws"), other than any such failure to be in compliance as
------------------
would not singly or in the aggregate with all such other failures known to
the Company reasonably be expected to have a Material Adverse Effect. With
respect to such properties, assets and operations, including any previously
owned, leased or operated properties, assets or operations, to the best
knowledge of the Company and except as set forth in the Registration
Statement and the Prospectus, there are no past, present or reasonably
anticipated future events, conditions, circumstances, activities,
practices, incidents, actions or plans of the Company or any of the
Subsidiaries that may interfere with or prevent compliance or continued
compliance in all material respects with applicable Environmental Laws,
other than any such interference or prevention as would not singly or in
the aggregate with any such other interference or prevention known to the
Company reasonably be expected to have a Material Adverse Effect.
(m) Except as set forth in the Registration Statement and the
Prospectus, there are no pending actions, suits, proceedings or
investigations against or affecting the Company or any of the Subsidiaries,
or with respect to
-7-
<PAGE>
which the Company or any of the Subsidiaries is responsible by way of
indemnity or otherwise, that would singly or in the aggregate with all such
other actions, suits, investigations or proceedings reasonably be expected
to have a Material Adverse Effect, or reasonably be expected to have a
material adverse effect on the ability of the Company to perform its
obligations under this Agreement, the Indenture, the Offered Securities or
any Delayed Delivery Contract; and, to the best knowledge of the Company,
except as set forth in the Registration Statement and the Prospectus, no
such actions, suits, proceedings or investigations are threatened.
(n) Since the date of the latest audited financial statements of the
Company included or incorporated by reference in the Prospectus, except as
disclosed in or contemplated by the Prospectus: (A) Neither the Company
nor any Subsidiary has sustained any material loss or interference with its
consolidated business or properties from fire, flood, windstorm, accident
or other calamity (whether or not covered by insurance); (B) There has been
no material increase in the long-term indebtedness of the Company, no
material change in the capital stock of the Company and no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock not consistent with past practice; and (C) There has
not been or become known any Material Adverse Effect, or any development
that could singly or in the aggregate with all other developments
reasonably be expected to result in a Material Adverse Effect.
(o) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof
as described in the Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940.
(p) Except as set forth in the Registration Statement and the
Prospectus, no labor disturbance by the em-
-8-
<PAGE>
ployees of the Company or any of the Subsidiaries exists or, to the best
knowledge of the Company, is threatened, that would singly or in the
aggregate with all such other labor disturbances reasonably be expected to
have a Material Adverse Effect.
(q) The audited consolidated financial statements of the Company and
related schedules, if any, and notes included or incorporated by reference
in the Registration Statement and the Prospectus comply in all material
respects with the requirements of the Exchange Act and the Rules and
Regulations, were prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved (except as
otherwise stated therein) and fairly present the consolidated financial
condition, results of operations, cash flows, changes in equity and changes
in stockholders' equity of the Company on a consolidated basis at the dates
and for the periods presented. The unaudited consolidated financial
statements of the Company and the related notes included or incorporated by
reference in the Registration Statement and the Prospectus present fairly
the consolidated financial condition, results of operations, cash flows,
changes in equity and changes in stockholders' equity of the Company at the
dates and for the periods to which they relate, subject to year-end audit
adjustments, have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis (except as otherwise
stated therein) and have been prepared on a basis substantially consistent
with that of the audited financial statements referred to above, except as
otherwise stated therein. The historical financial information and
statistical data, if any, set forth or incorporated by reference in the
Prospectus under the captions "Summary Historical and Pro Forma Financial
Data of the Company," "Selected Historical Financial Data of the Company"
and "Capitalization of the Company" or under any similar caption present
fairly the information shown therein and, except as otherwise stated
therein, have been compiled on a basis consistent with that of the audited
consolidated financial statements of the Company
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<PAGE>
included or incorporated by reference in the Registration Statement and the
Prospectus. If pro forma financial statements with respect to the Company
are included or incorporated by reference in the Registration Statement and
the Prospectus, such pro forma financial statements and other pro forma
financial information included in the Prospectus present fairly the
information shown therein, have been prepared in all material respects in
accordance with the Commission's rules and guidelines with respect to pro
forma financial statements, have been properly compiled on the pro forma
basis described therein and, in the opinion of the Company, the assumptions
used in the preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions or circumstances
referred to therein. No pro forma financial statements or other pro forma
financial information with respect to the Company is required to be
included or incorporated by reference in the Registration Statement and the
Prospectus other than those included or incorporated by reference therein.
The Company's ratios of earnings to fixed charges (actual and, if any, pro
forma) included or incorporated by reference in the Prospectus under the
caption "Ratio of Earnings to Fixed Charges" and in Exhibit 12 to the
Registration Statement have been calculated in compliance with Item 503(d)
of Regulation S-K of the Commission and the supporting schedules included
in the Registration Statement present fairly the information required to be
stated therein.
3. Purchase and Offering of Offered Securities. The obligation of
-------------------------------------------
the Underwriters to purchase the Offered Securities will be evidenced by an
agreement substantially in the form of Annex II attached hereto ("Terms
-------- -----
Agreement") at the time the Company determines to sell the Offered Securities.
- ---------
The Terms Agreement will incorporate by reference the provisions of this
Agreement, except as otherwise provided therein, and will specify the firm or
firms which will be Underwriters, the names of any Representatives, the
principal amount to be purchased by each Underwriter, the purchase price to be
paid by the Underwriters and the terms of the Offered Securities not already
specified in the Indenture, including, but not limited to, interest rate,
maturity, any redemption provisions and any sinking fund requirements and
whether any of the Offered Securities may be sold to institutional investors
pursuant to Delayed Delivery Contracts (as defined below). The Terms Agreement
will also specify the time and date of delivery and pay-
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<PAGE>
ment (such time and date, or such other time not later than ten full business
days thereafter as the Underwriter first named in the Terms Agreement (the "Lead
----
Underwriter") and the Company agree as the time for payment and delivery, being
- -----------
herein and in the Terms Agreement referred to as the "Closing Date"), the place
------------
of delivery and payment and any details of the terms of offering that should be
reflected in the prospectus supplement relating to the offering of the Offered
Securities. The obligations of the Underwriters to purchase the Offered
Securities will be several and not joint. It is understood that the Underwriters
propose to offer the Securities for sale as set forth in the Prospectus.
If the Terms Agreement provides for sales of Offered Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Offered Securities pursuant to delayed delivery
contracts substantially in the form of Annex I attached hereto ("Delayed
------- -------
Delivery Contracts") with such changes therein as the Company may authorize or
- ------------------
approve. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. On the
Closing Date the Company will pay, as compensation, to the Lead Underwriter for
the accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the principal amount of Offered Securities to be sold pursuant to
Delayed Delivery Contracts ("Contract Securities"). The Underwriters will not
-------------------
have any responsibility in respect of the validity or the performance of Delayed
Delivery Contracts. If the Company at its option executes and delivers Delayed
Delivery Contracts, the Contract Securities will be deducted from the Offered
Securities to be purchased by the several Underwriters and the aggregate
principal amount of Offered Securities to be purchased by each Underwriter will
be reduced pro rata in proportion to the principal amount of Offered Securities
set forth opposite each Underwriter's name in such Terms Agreement, except to
the extent that the Lead Underwriter determines that such reduction shall be
otherwise than pro rata and so advises the Company. The Company will advise the
Lead Underwriter not later than the business day prior to the Closing Date of
the principal amount of Contract Securities.
If the Terms Agreement does not specify "Book-Entry Only" settlement,
the Offered Securities delivered to the Underwriters on the Closing Date will be
in definitive fully reg-
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<PAGE>
istered form, in such denominations and registered in such names as the Lead
Underwriter requests.
If the Terms Agreement specifies "Book-Entry Only" settlement or
otherwise states that the provisions of this paragraph shall apply, the Company
will deliver against payment of the purchase price the Offered Securities in the
form of one or more permanent global Offered Securities in definitive form (the
"Global Securities") deposited with the Trustee as custodian for The Depository
-----------------
Trust Company ("DTC") or with DTC and registered in the name of a nominee for
---
DTC. Interests in any permanent global Offered Securities will be held only in
book-entry form through DTC, except in the limited circumstances described in
the Prospectus. Payment for the Offered Securities shall be made by the
Underwriters in Federal (same day) funds by official check or checks or wire
transfer to an account in New York or Chicago previously designated to the Lead
Underwriter by the Company at a bank reasonably acceptable to the Lead
Underwriter, in each case drawn to the order of Case Credit Corporation at the
place of payment specified in the Terms Agreement on the Closing Date, against
delivery to the Trustee as custodian for DTC or to DTC of the Global Securities
representing all of the Offered Securities.
4. Certain Agreements of the Company. The Company agrees with the
---------------------------------
several Underwriters that in connection with each offering of Offered
Securities:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(1) or (2), as applicable
(or, if applicable and if consented to by the Lead Underwriter (which
consent shall not be unreasonably withheld), subparagraph (4) or (5), as
applicable), not later than the second business day following the execution
and delivery of the Terms Agreement or, if applicable, such later time as
may be permitted by Rule 424.
(b) The Company will advise the Lead Underwriter promptly of any
proposal to amend or supplement the Registration Statement (including any
post-effective amendment) or the Prospectus (including any revised
prospectus which the Company proposes for use by the Underwriters in
connection with the offering of the Offered Securities which differs from
the prospectus most recently filed, or transmitted for filing, with the
Commission, whether or not such revised prospectus is required to be filed
pursuant
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<PAGE>
to Rule 424(b)) and will afford the Lead Underwriter a reasonable
opportunity to comment on any such proposed amendment or supplement and,
after the date of the Terms Agreement and prior to the later of the
purchase and payment for the Offered Securities on the Closing Date and the
completion of distribution by the Underwriters of the Offered Securities,
will not effect any such amendment or supplementation without the prior
consent of the Lead Underwriter, which consent shall not be unreasonably
withheld or delayed, unless in the opinion of counsel for the Company such
amendment or supplement is required by law; and the Company will also
advise the Lead Underwriter promptly of (i) the filing of any such
amendment or supplement and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement or of any
part thereof, (ii) of the receipt of any comments from the Commission or of
any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for any
additional information and (iii) of the receipt by the Company of any
notification with respect to any suspension of the qualification of the
Offered Securities for offer and sale in any jurisdiction or the initiation
of any proceeding for such purpose; and to use its best efforts to prevent
the issuance of any such stop order or notification and, if issued, to
obtain as soon as possible the withdrawal thereof.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs, condition exists or
information becomes known as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus to
comply with the Act, the Company promptly will notify the Lead Underwriter
of such event, condition or information and will, subject to paragraph (b)
of this Section 4, promptly prepare and file with the Commission, at its
own expense, an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance. Neither the
Lead Underwriter's consent to, nor the Underwriters' delivery of, any such
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<PAGE>
amendment or supplement shall constitute a waiver of any of the conditions
set forth in Section 5.
(d) As soon as practicable, but not later than 16 months, after the
date of each Terms Agreement, the Company will make generally available to
its securityholders an earnings statement complying with Section 11(a) of
the Act and the Rules and Regulations (including at the option of the
Company Rule 158 under the Act).
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus
and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as the Lead Underwriter reasonably
requests.
(f) The Company will arrange for the qualification of the Offered
Securities under the laws of such jurisdictions as the Lead Underwriter
reasonably designates and will continue such qualifications in effect so
long as required for the distribution; provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction.
(g) During the period of five years after the date of any Terms
Agreement, the Company will furnish to the Representatives upon their
request and, upon request, to each of the other Underwriters, if any, as
soon as practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year if the Company prepares such a report;
and the Company will furnish to the Representatives (i) as soon as
available, a copy of each report and any definitive proxy statement of the
Company filed with the Commission under the Exchange Act or mailed to
stockholders, and (ii) from time to time, such other information concerning
the Company as the Lead Underwriter may reasonably request.
(h) The Company will pay all expenses incident to the performance of
its obligations under the Terms Agreement (including the provisions of this
Agreement), including, without limitation, all costs and expenses (i)
incurred in connection with the preparation, issuance, execution and
delivery of the Offered Securities, (ii) in-
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<PAGE>
curred in connection with the preparation, printing and filing under the
Act and the Exchange Act, if applicable, of the Registration Statement, the
Prospectus, any preliminary prospectus and each prospectus supplement
(including in each case all exhibits, amendments and supplements thereto),
(iii) in connection with the listing, if any, of the Offered Securities on
any securities exchange set forth in the Terms Agreement, (iii) incurred in
connection with the engagement of any qualified independent underwriter as
may be required by rules and regulations of the National Association of
Securities Dealers, Inc., (iv) incurred in connection with the rating of
the Offered Securities, (v) relating to the fees and expenses of the
Trustee, including the fees and expenses of counsel to the Trustee and (vi)
relating to or in connection with the duplication costs and delivery of
this Agreement, the Terms Agreement, the Indenture, any supplemental
indenture relating thereto, the agreement among underwriters, each other
document or instrument relating to the underwriting arrangements and any
dealer agreements, and will reimburse the Underwriters (if and to the
extent incurred by them) for any filing fees or other expenses (including
fees and disbursements of counsel) incurred by them in connection with
qualification of the Offered Securities for sale under the laws of such
jurisdictions as the Lead Underwriter may reasonably designate and the
printing of memoranda relating thereto, for any applicable filing fee of
the National Association of Securities Dealers, Inc. relating to the
Offered Securities, for any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of Registered
Securities and for expenses incurred in distributing the Prospectus, any
preliminary prospectuses, any preliminary prospectus supplements or any
other amendments or supplements to the Prospectus to the Underwriters.
(i) The Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to United States dollar-
denominated debt securities issued or guaranteed by the Company and having
a maturity of more than one year from the date of issue, or publicly
disclose the intention to make any such offer, sale, pledge, disposal or
filing, without the prior consent of the Lead Underwriter for a period
beginning at the time of execution of the Terms
-15-
<PAGE>
Agreement and ending the number of days after the Closing Date specified
under "Blackout" in the Terms Agreement.
(j) During the period when the Prospectus is required to be
delivered under the Act or the Exchange Act, the Company will file all
documents required to be filed with the Commission pursuant to Section 13,
14 or 15 of the Exchange Act within the time period required by the
Exchange Act.
5. Conditions of the Obligations of the Underwriters. The
-------------------------------------------------
obligations of the several Underwriters to purchase and pay for the Offered
Securities will be subject to the accuracy of the representations and warranties
on the part of the Company herein on and as of the Closing Date as if made on
and as of the Closing Date, to the accuracy of the statements of officers of the
Company made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of delivery
thereof, of Arthur Andersen LLP in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter
for each of the other Underwriters containing statements and information of
the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(b) If any amendment to the Registration Statement filed prior to
the Terms Agreement Date has not been declared effective as of the Terms
Agreement Date, such amendment shall have been declared effective not later
than 5:30 p.m. (New York City time) on the Terms Agreement Date. The
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 4(a) of this Agreement. No stop order
suspending the effectiveness of the Registration Statement or of any part
thereof shall have been issued and be continuing in effect and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or any Underwriter, shall be contemplated by the
Commission. No amendment or supplement to the Prospectus shall have been
-16-
<PAGE>
filed to which the Lead Underwriter shall have objected pursuant to Section
4(b).
(c) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly, the business or
properties of the Company or its subsidiaries which, in the judgment of a
majority in interest of the Underwriters including any Representatives,
materially impairs the investment quality of the Offered Securities; (ii)
any downgrading in the rating of any debt securities or preferred stock of
the Company by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or review
with possible negative implications its rating of any debt securities or
preferred stock of the Company; (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange, or any suspension
of trading of any securities of the Company on any exchange or in the over-
the-counter market; (iv) any banking moratorium declared by U.S. Federal or
New York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war
by Congress or any other substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the Underwriters
including any Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the sale of and payment for the Offered
Securities.
(d) The Representatives shall have received a signed opinion, dated
the Closing Date and addressed to the Underwriters, of Mayer, Brown &
Platt, special counsel for the Company, or other counsel for the Company
reasonably satisfactory to the Representatives, substantially to the effect
that:
(i) The Company is an existing corporation in good standing
under the laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as described
in the Prospectus; and the Company is duly qualified to do business as
a foreign corporation in good standing in all other jurisdictions
within the United States of America in which its ownership or leasing
of prop-
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<PAGE>
erty or the conduct of its business requires such qualification and
where the failure to be so qualified or in good standing would have a
material adverse effect upon its operations or financial condition;
(ii) The Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act and constitutes a valid and legally binding obligation
of the Company enforceable against the Company in accordance with its
terms, subject, as to enforceability, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights, to
public policy considerations and to general equity principles; the
Indenture complies as to form in all material respects with the
requirements of the Trust Indenture Act; the Securities have been duly
authorized by the Company; the Offered Securities (other than any
Contract Securities) have been duly executed, authenticated and
delivered by the Company; the Offered Securities other than any
Contract Securities constitute, and any Contract Securities, when
executed, authenticated, issued and delivered in the manner provided
in the Indenture and sold pursuant to Delayed Delivery Contracts, will
constitute, valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms,
subject, as to enforcement, to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights, to public
policy considerations and to general equity principles; and the
Offered Securities other than any Contract Securities conform, and any
Contract Securities, when so issued and delivered and sold will
conform, in all material respects to the description thereof contained
in the Prospectus;
(iii) To the best of their knowledge without independent
inquiry, no consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in connection with the
issuance or sale of the Offered Securities by the Company, except such
as are required and have been obtained and made under the Act and the
Trust Indenture Act and such as may be required under state securities
laws (it being un-
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<PAGE>
derstood that such opinion may be limited to such consents, approvals,
authorizations, orders and filings which, in such counsel's
experience, are customarily applicable to transactions of the type
contemplated by this Agreement, the Terms Agreement and the
Indenture);
(iv) The execution, delivery and performance of the Indenture,
the Terms Agreement (including the provisions of this Agreement) and
any Delayed Delivery Contracts and the issuance and sale of the
Offered Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any material
statute, rule, regulation or order of any governmental agency or body
or any court having jurisdiction over the Company, any Subsidiary
incorporated in the United States of America or any of their
respective properties known to such counsel, or the charter or by-laws
of the Company, or any such Subsidiary; and the Company has full power
and authority to authorize, issue and sell the Offered Securities as
contemplated by the Terms Agreement (including the provisions of this
Agreement);
(v) The Registration Statement has become effective under the
Act, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein, and, to the best of the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceedings for
that purpose have been instituted or are pending or contemplated under
the Act, and the registration statement relating to the Securities, as
of its effective date, the Prospectus, as of the date of the Terms
Agreement, and any amendment or supplement thereto, as of its date,
complied as to form in all material respects with the requirements of
the Act, the Trust Indenture Act and the Rules and Regulations; such
counsel have no reason to believe that such registration statement, as
of its effective date, or any amendment thereto, as of its date,
contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or
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<PAGE>
necessary to make the statements therein not misleading or that the
Prospectus, as of the date of the Terms Agreement or as of such
Closing Date, or any amendment or supplement thereto, as of its date,
contained any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; it being understood that such counsel need express no
opinion as to the financial statements or other financial and
statistical data contained in the Registration Statement or the
Prospectus;
(vi) The Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company; and
(vii) Each document filed pursuant to the Exchange Act (other
than the financial statements, schedules and other financial and
statistical data included therein, as to which such counsel need
express no opinion) and incorporated or deemed to be incorporated by
reference in the Prospectus complied as to form in all material
respects with the applicable requirements of the Exchange Act when so
filed.
Such counsel in rendering such opinion may rely as to certain matters
of fact on certificates of officers of the Company and of public officials;
provided, however, that such certificates shall have been delivered to the
-------- -------
Representatives on or prior to the Closing Date.
(e) The Representatives shall have received a signed opinion, dated
the Closing Date and addressed to the Underwriters, of Richard S. Brennan,
General Counsel and Secretary of Case Corporation, substantially to the
effect that:
(i) To the best of his knowledge, no consent, approval or
authorization of any third party is required for the consummation of
the transactions contemplated by the Terms Agreement (including the
provisions of this Agreement) in connection with the issuance or sale
of the Offered Securities by the Company, except such as have been
obtained and made and
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<PAGE>
are in full force and effect and such as may be required under state
securities laws;
(ii) The execution, delivery and performance of the Indenture,
the Terms Agreement (including the provisions of this Agreement) and
any Delayed Delivery Contracts and the issuance and sale of the
Offered Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under (including, without
limitation, any event or condition which, with notice or lapse of
time, or both, would constitute a default under), any material
agreement or instrument known to such counsel to which the Company or
any Subsidiary is a party or by which the Company or any Subsidiary is
bound or to which any of the properties of the Company or any
Subsidiary is subject;
(iii) Except as set forth in the Prospectus, there are no
material pending legal proceedings known to such counsel to which the
Company or any Subsidiary is a party or of which the property of the
Company or any Subsidiary is the subject, and to the best knowledge of
such counsel no such proceeding is contemplated; and
(iv) Such counsel has no reason to believe that the
registration statement relating to the Registered Securities, as of
its effective date, or any amendment thereto, as of its date,
contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, as of
the date of the Terms Agreement or as of such Closing Date, or any
amendment or supplement thereto, as of its date or as of the Closing
Date, contained or contains any untrue statement of a material fact or
omitted or omits to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading; it being understood that such counsel
need express no opinion as to the financial statements or other
financial or statistical data contained in the Registration Statement
or the Prospectus.
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<PAGE>
Such counsel in rendering such opinion may rely as to certain matters
of fact on certificates of officers of the Company and of public officials;
provided, however, that such certificates shall have been delivered to the
-------- -------
Representatives on or prior to the Closing Date.
(f) The Representatives shall have received from Cahill Gordon &
Reindel, counsel for the Underwriters, or other counsel for the
Underwriters reasonably satisfactory to the Company and the
Representatives, such opinion or opinions, dated the Closing Date, with
respect to the incorporation of the Company, the validity of the Offered
Securities, the Indenture, the Delayed Delivery Contracts, if any, the
Registration Statement, the Prospectus and other related matters as the
Representatives may require, and the Company shall have furnished to such
counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(g) The Representatives shall have received a certificate or
certificates, dated the Closing Date, of the President or any Vice
President and a principal financial or accounting officer of the Company in
which such officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of the
Company in this Agreement are true and correct in all material respects,
that the Company has complied in all material respects with all agreements
and satisfied in all material respects all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date, that no
stop order suspending the effectiveness of the Registration Statement or of
any part thereof has been issued and is in effect and, to such officer's
knowledge, no proceedings for that purpose have been instituted or are
contemplated by the Commission and that, subsequent to the date of the most
recent financial statements in the Prospectus, there has been no material
adverse change in the financial position or results of operations of the
Company or its subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus or as described in such certificate and
reasonably acceptable to the Lead Underwriter.
(h) The Representatives shall have received a letter, dated the
Closing Date, of Arthur Andersen LLP to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (a) of this
Section, except that the specified date referred to in such subsec-
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<PAGE>
tion will be a date not more than three days prior to the Closing Date for
the purposes of this subsection.
(i) On the Terms Agreement Date (or as otherwise specified in the
Terms Agreement), the Offered Securities shall have been approved for
listing on the securities exchange set forth in the Terms Agreement upon
notice of issuance.
(j) The Company shall have complied with the provisions of Section
4(e) hereof with respect to the furnishing of Prospectuses.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. The Lead Underwriter may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters under this Agreement and the Terms Agreement.
6. Indemnification. (a) The Company agrees to indemnify and hold
---------------
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act and Section 20 of the Exchange Act
as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including any information deemed included in
the Registration Statement by virtue of Rule 430A under the Act or Rule 434
under the Act, if applicable, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency
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<PAGE>
or body, commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission; provided that (subject to Section 6(d)
below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to the fourth sentence of Section 6(c), the fees and disbursements
of counsel chosen by the Lead Underwriter), reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under subparagraph (i) or (ii)
above;
provided, however, that this indemnity agreement does not apply to any loss,
- -------- -------
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Lead Underwriter expressly for use in the Registration
Statement (or any amendment thereto), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described as such in the Terms Agreement; provided, further,
-------- -------
however, that the foregoing indemnity with respect to any untrue statement in or
- -------
omission from any preliminary prospectus or preliminary prospectus supplement
shall not inure to the benefit of any Underwriter (or to the benefit of any
person controlling such Underwriter) from whom the person asserting any such
losses, claims, damages or liabilities purchased the Offered Securities if (i)
the Company has complied with Section 4(b), (c) and (e) of this Agreement, and
(ii) a copy of the Prospectus had not been sent or given to such person at or
prior to the written confirmation of the sale of such Offered Securities to such
person if required by the Act and the Prospectus would have cured the defect
giving rise to such loss, claim, damage or liability. For purposes of the
second proviso to the immediately preceding sentence, the term "Prospectus"
----------
shall not be deemed to include the documents incorporated therein by reference,
and no Underwriter shall be obligated to send or give any supplement or
amendment to any
-24-
<PAGE>
document incorporated by reference in any preliminary prospectus or the
Prospectus to any person.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, its officers who signed the Registration Statement,
and each person if any, who controls the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act against any and all loss,
liability, claim, damage and expense described in the indemnity agreement in
Section 6(a), as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Lead Underwriter expressly for use in the Registration Statement (or
any amendment thereto), or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnification may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the case of parties
indemnified pursuant to Section 6(a) above, counsel to the indemnified parties
shall be selected by the Lead Underwriter, and, in the case of parties
indemnified pursuant to Section 6(b) above, counsel to the indemnified parties
shall be selected by the Company. An indemnifying party may participate at its
own expense in the defense of any such action; provided, however, that counsel
-------- -------
to the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld or delayed), settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or
-25-
<PAGE>
contribution could be sought under this Section 6 (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent includes an unconditional written release in
form and substance satisfactory to the indemnified parties of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, an indemnifying party shall
not be liable for any settlement of the nature contemplated by Section 6(a)(ii)
effected without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent it reasonably
considers such request to be reasonable and (ii) provides written notice to the
indemnified party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement.
(e) If the indemnification provided for in Section 6(a) or (b) hereof
is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Offered
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
-26-
<PAGE>
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Offered
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Offered Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 under the Act is used, the corresponding location on the related term
sheet, bear to the aggregate initial public offering price of the Offered
Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 6(e) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 6(e). The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 6(e) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 6(e), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Offered Securities underwritten by it and distributed
to the pub-
-27-
<PAGE>
lic were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 6(e), each person, if any, who controls
an Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 6(e) are several
in proportion to the principal amount of the Offered Securities set forth
opposite their respective names in Schedule A to the Terms Agreement and not
joint.
7. Default of Underwriters. If any Underwriter or Underwriters
-----------------------
default in their obligations to purchase Offered Securities under the Terms
Agreement and the aggregate principal amount of Offered Securities that such
defaulting Underwriter or Underwriters agreed but failed to purchase does not
exceed 10% of the total principal amount of Offered Securities, the Lead
Underwriter may make arrangements satisfactory to the Company for the purchase
of such Offered Securities by other persons, including any of the Underwriters,
but if no such arrangements are made by the Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments under the Terms Agreement (including the provisions of this
Agreement), to purchase the Offered Securities that such defaulting Underwriters
agreed but failed to purchase. If any Underwriter or Underwriters so default and
the aggregate principal amount of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total principal amount of Offered
Securities and arrangements satisfactory to the Lead Underwriter and the Company
for the purchase of such Offered Securities by other persons are not made within
36 hours after such default, the Terms Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company, except
as provided
-28-
<PAGE>
in Section 8. As used in this Agreement, the term "Underwriter" includes any
-----------
person substituted for an Underwriter under this Section 7. Nothing herein will
relieve a defaulting Underwriter from liability for its default. The respective
commitments of the several Underwriters for the purposes of this Section 7 shall
be determined without regard to reduction in the respective Underwriters'
obligations to purchase the principal amounts of the Offered Securities set
forth opposite their names in the Terms Agreement as a result of Delayed
Delivery Contracts entered into by the Company.
8. Survival of Certain Representations and Obligations. The
---------------------------------------------------
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to the Terms Agreement (including the provisions of
this Agreement) will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person of any of them, and will survive
delivery of and payment for the Offered Securities. If the Terms Agreement is
terminated pursuant to Section 7 or if for any reason the purchase of the
Offered Securities by the Underwriters is not consummated, the Company shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 4 and the respective obligations of the Company and the Underwriters
pursuant to Section 6 and the provisions of Section 13 shall remain in effect.
If the purchase of the Offered Securities by the Underwriters is not consummated
for any reason other than solely because of the termination of the Terms
Agreement pursuant to Section 7 or the occurrence of any event specified in
clause (iii), (iv) or (v) of Section 5(c), the Company will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Offered Securities.
9. Notices. All communications hereunder will be in writing and,
-------
if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to them at their address set forth in the Terms Agreement or, if sent
to the Company, will be mailed, delivered or telegraphed and confirmed to it at
233 Lake Avenue, Racine, Wisconsin 53404, Attention: Chief Financial Officer
with a copy to Case Corporation, 700 State Street, Racine, Wisconsin 53404,
Attention: Treasurer.
-29-
<PAGE>
10. Successors. The Terms Agreement (including the provisions of
----------
this Agreement) will inure to the benefit of and be binding upon the Company and
such Underwriters as are identified in the Terms Agreement and their respective
successors and the officers and directors and controlling persons referred to in
Section 6, and no other person will have any right or obligation hereunder.
11. Representation of Underwriters. Any Representatives will act
------------------------------
for the several Underwriters in connection with the financing described in the
Terms Agreement, and any action under such Terms Agreement (including the
provisions of this Agreement) taken by the Representatives jointly or by the
Lead Underwriter will be binding upon all the Underwriters.
12. Counterparts. This Agreement and the Terms Agreement may be
------------
executed in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
Agreement.
13. Applicable Law. This Agreement and the Terms Agreement shall
--------------
be governed by, and construed in accordance with, the laws of the State of New
York, without regard to principles of conflicts of laws.
-30-
<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return six counterparts hereof.
Very truly yours,
CASE CREDIT CORPORATION
By: ___________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written
[NAMES OF UNDERWRITERS]
-31-
<PAGE>
ANNEX I
(Three copies of this Delayed Delivery Contract should
be signed and returned to the address shown below
so as to arrive not later than 9:00 A.M., New York
time, on ..........., 19....*)
DELAYED DELIVERY CONTRACT
-------------------------
[ ], [ ]
CASE CREDIT CORPORATION
c/o [Insert name of Underwriter]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Case Credit
Corporation, a Delaware corporation ("Company"), and the Company agrees to sell
to the undersigned, [If one delayed closing, insert--as of the date hereof, for
delivery on , 19 ("Delivery Date"),]
$..............
principal amount of the Company's [Insert title of securities] ("Securities"),
offered by the Company's Prospectus dated , 19 and a Prospectus
Supplement dated , 19 relating thereto, receipt of copies of
which is hereby acknowledged, at % of the principal amount thereof plus
accrued interest, if any, and on the further terms and conditions set forth in
this Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
_____________________________
* Insert date that is two full business days prior to Closing Date under
Terms Agreement.
<PAGE>
-2-
The undersigned will purchase from the Company as of the date
hereof, for delivery on the dates set forth below, Securities in the principal
amounts set forth below:
Delivery Date Principal Amount
............................ ..........
............................ ..........
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to
purchase for delivery on--the--each--Delivery Date shall be made to the Company
or its order by certified or official bank check in --New York--Chicago--
Clearing House (next day) --Federal (same day)-- funds at the office of at .M.
on--the--such--Delivery Date upon delivery to or for the account of the
undersigned of the Securities to be purchased by the undersigned--for delivery
on such Delivery Date--in definitive fully registered form and-- in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to--the--such--Delivery Date.
It is expressly agreed that the provisions for delayed
delivery and payment are for the sole convenience of the undersigned; that the
purchase hereunder of Securities is to be regarded in all respects as a purchase
as of the date of this Contract; that the obligation of the Company to make
delivery of and accept payment for, and the obligation of the undersigned to
take delivery of and make payment for, Securities on--the--each--Delivery Date
shall be subject only to the conditions that (1) investment in the Securities
shall not at--the--such--Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total principal amount of
the Securities less the principal amount thereof covered by this and other
similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
<PAGE>
-3-
Promptly after completion of the sale to the Underwriters the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by--a copy--copies--of the opinion[s] of
counsel for the Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is
in the Company's sole discretion and, without limiting the foregoing, need not
be on a first-come, first-served basis. If this Contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
..............................
(Name of Purchaser)
By .......................
..............................
(Title of Signatory)
..............................
..............................
(Address of Purchaser)
Accepted, as of the above date.
CASE CREDIT CORPORATION
By ___________________________
(Insert Title)
<PAGE>
[Form of Terms Agreement]
ANNEX II
CASE CREDIT CORPORATION
("Company")
Debt Securities
TERMS AGREEMENT
---------------
[ ], 199[ ]
To: The [Representative[s] of the] Underwriters identified herein
Ladies and Gentlemen:
Case Credit Corporation agrees to sell to the several Underwriters
named [in Schedule A hereto] [below] for their respective accounts, on and
subject to the terms and conditions of the document entitled "Case Credit
Corporation, Debt Securities, Underwriting Agreement" dated [ ], [ ] a copy of
which is attached hereto as Annex I ("Underwriting Agreement"), the following
securities ("Offered Securities") on the following terms:
Title: [ %] [Floating Rate]--Notes--Debentures --Bonds--Due .
Principal Amount: $ .
Interest: [ % per annum, from , 19 , payable semiannually on
and , commencing , 19 , to holders of record on the preceding or ,
as the case may be.] [Zero coupon.]
[[If Floating Rate Notes, add:]
Interest Rate Basis (Commercial Paper, Prime, LIBOR, Treasury, CD,
Federal Funds, CMT, Other):
Index Maturity (30, 60, 90 days, 6 months, 1 year, other):
Interest Reset Period (daily, weekly, monthly, quarterly,
semiannually, annually):
Interest Payment Period (monthly, quarterly, semiannually, annually):
Spread:
Spread Multiplier:
Maximum Interest Rate:
Minimum Interest Rate:
Initial Interest Reset Date:
Interest Reset Date:
Interest Determination Dates:
Interest Payment Dates:
Calculation Agent:
Calculation Date:]
Maturity: , .
Optional Redemption:
<PAGE>
-2-
Sinking Fund:
Listing: [None.] [ Stock Exchange.] [The Nasdaq Stock Market.]
Delayed Delivery Contracts: [None.] [Delivery Date[s] shall be
, 19 . Underwriters' fee is % of the principal amount of the Contract
Securities.]
Purchase Price: % of principal amount, plus accrued
interest[, if any,] from , 19 .
Expected Reoffering Price: % of principal amount, subject
to change by the [Representative[s]] [Underwriters].
Closing: A.M. on , 19 , at the offices of Mayer,
Brown & Platt, 190 S. LaSalle Street, Chicago, Illinois 60603, [[in New York]
[Chicago] Clearing House [Federal (same day)] funds.
Settlement and Trading: [Physical certificated form.] [Book-
Entry Only via DTC.]
Blackout: Until days after the Closing Date.
[Name[s] and Address[es] of [Representative[s]]
[Underwriter[s]]:]
The respective principal amounts of the Offered Securities to
be purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated
herein by reference in their entirety and shall be deemed to be a part of this
Terms Agreement to the same extent as if the Underwriting Agreement had been set
forth in full herein. Terms defined in the Underwriting Agreement are used
herein as therein defined.
[The Offered Securities will be made available for checking
and packaging at the office of at least 24 hours prior to the Closing
Date.]
For purposes of Section 6 of the Underwriting Agreement, the
only information furnished to the Company by any Underwriter for use in the
Prospectus consists of [(i)] the following information in the Prospectus
furnished on behalf of
<PAGE>
-3-
each Underwriter: the last paragraph at the bottom of the prospectus supplement
cover page concerning the terms of the offering by the Underwriters, and the
concession and reallowance figures appearing in the paragraph under the caption
"Underwriting" in the prospectus supplement [If paragraph regarding passive
market making is included, insert--and the information contained in the
paragraph under the caption "Underwriting" in the prospectus supplement] [If
applicable, insert--; and (ii) the following information in the prospectus
supplement furnished on behalf of [insert name of Underwriter]: [insert
description of information, such as material relationship disclosure under the
caption "Underwriting" in the prospectus supplement].
<PAGE>
-4-
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
CASE CREDIT CORPORATION
By: _________________________________
[Insert title]
<PAGE>
-5-
The foregoing Terms Agreement is hereby
confirmed and accepted as of the date
first above written.
[If no co-representative, use first
confirmation form. If co-
representative, use second.]
[NAMES OF REPRESENTATIVES]
By ____________________________
[Insert title]
[Acting on behalf of itself and
as the Representative of the
several Underwriters.]
<PAGE>
SCHEDULE A
Principal
Underwriter Amount
$
-------------
Total ..................................... $
=============
<PAGE>
EXHIBIT 1B
CASE CREDIT CORPORATION
$[ ]
Medium-Term Notes, Series C
Due from 9 Months to 30 Years from Date of Issue
FORM OF
DISTRIBUTION AGREEMENT
[Date]
[NAMES AND ADDRESSES
OF AGENTS]
Ladies and Gentlemen:
CASE CREDIT CORPORATION, a Delaware corporation (the "Company"),
-------
confirms its agreement with each of you with respect to the issue and sale from
time to time by the Company of its Medium-Term Notes, Series C due from 9 months
to 30 years from date of issue (the "Securities") at an aggregate initial
----------
offering price of up to $[ ], as such amount shall be reduced by the
aggregate initial offering price of any other debt securities issued by the
Company, whether within or without the United States ("Other Securities")
----------------
pursuant to the registration statement referred to below, and agrees with each
of you (individually, an "Agent," and collectively, the "Agents," which term
----- ------
shall include any additional agents appointed pursuant to Section 13 hereof) as
set forth in this Agreement. The Securities will be issued under an indenture
dated as of October 1, 1997 (the "Indenture") between the Company and The Bank
---------
of New York, as Trustee (the "Trustee"). The Securities shall have the
-------
maturities, interest rates, redemption provisions, if any, and other terms set
forth in the Prospectus referred to below as it may be amended or supplemented
from time to time. The Securities will be issued, and the terms and rights
thereof established, from time to time by the Company in accordance with the
Indenture.
On the basis of the representations and warranties herein contained,
but subject to the terms and conditions stated herein and to the reservation by
the Company of the right to sell Securities directly to investors (other than
broker-dealers) on its own behalf, the Company hereby (i) appoints the Agents as
the exclusive agents of the Company for the purpose of soliciting and receiving
offers to purchase Securities from the Company by others pursuant to Section
2(a) hereof and (ii) agrees that, except as otherwise contemplated herein,
whenever it determines to sell Securities directly to any Agent as principal, it
will
<PAGE>
-2-
enter into a separate agreement (each such agreement a "Terms Agreement"),
---------------
substantially in the form of Exhibit A hereto, relating to such sale in
---------
accordance with Section 2(b) hereof.
The Company has prepared and filed a registration statement on Form S-
3 (No. 333-[ ]), including a base prospectus, and a registration statement
(No. 333-52725) in respect of the Securities with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
----------
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"). Such registration
--------------
statements, including the exhibits thereto, as amended to the Commencement Date
(as hereinafter defined) are hereinafter referred to as the "Registration
------------
Statement" and the base prospectus in the form in which it appears in the
- ---------
registration statement No. 333-[ ] is hereinafter referred to as the
"Basic Prospectus." The Basic Prospectus as supplemented by the prospectus
- -----------------
supplement or supplements (each a "Prospectus Supplement") specifically relating
---------------------
to the Securities in the form filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act is hereinafter referred
to as the "Prospectus." Any reference in this Agreement to the Registration
----------
Statement, the Basic Prospectus, any preliminary form of prospectus (a
"preliminary prospectus") previously filed with the Commission pursuant to Rule
- -----------------------
424 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 under the
Securities Act which were filed under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this Agreement or
------------
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be; and any reference to "amend," "amendment" or "supplement"
----- --------- ----------
with respect to the Registration Statement, the Basic Prospectus, any
preliminary prospectus or the Prospectus, including any supplement to the
Prospectus that sets forth only the terms of a particular issue of the
Securities (a "Pricing Supplement"), shall be deemed to refer to and include any
------------------
documents filed under the Exchange Act after the date of this Agreement or the
date of the Basic Prospectus, any preliminary prospectus or the Prospectus, as
the case may be, which are deemed to be incorporated by reference therein.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to, and agrees with, each Agent as of the Commencement Date (as
hereinafter defined), as of each date on which the Company accepts an offer to
purchase Securities (including any purchase by an Agent as principal pursuant to
a Terms Agreement or otherwise), as of each date the Company issues and sells
Securities and as of each date the Registration Statement or the Basic
Prospectus is amended or supplemented, as follows (it being understood that such
representations and warranties shall be deemed to relate to the Regis-
<PAGE>
-3-
tration Statement, the Basic Prospectus and the Prospectus, each as amended or
supplemented to each such date):
(a) On the effective date of the Registration Statement relating to
the Securities (the "Effective Date"), such registration statement
--------------
conformed as to form in all material respects to the requirements of the
Securities Act, the Trust Indenture Act of 1939, as amended (collectively
with all rules and regulations of the Commission thereunder, "Trust
------
Indenture Act"), and the other applicable rules and regulations of the
-------------
Commission ("Rules and Regulations") and did not include any untrue
---------------------
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and on the date of each Terms Agreement referred to in Section
2, the Prospectus will conform as to form in all material respects to the
requirements of the Securities Act, the Trust Indenture Act and the Rules
and Regulations, and on such date the Prospectus will not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading,
except that the foregoing does not apply to (a) statements in or omissions
from any of such documents based upon written information furnished to the
Company by any Agent specifically for use therein and (b) that part of the
Registration Statement that constitutes the Statement of Eligibility on
Form T-1 of the Trustee under the Trust Indenture Act filed as an exhibit
to the Registration Statement (the "Form T-1").
--------
(b) (A) No stop order suspending the effectiveness of the
Registration Statement is in effect and, to the knowledge of the Company,
no proceedings for that purpose are pending before or threatened by the
Commission and (B) each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus complied
or will comply when so filed as to form in all material respects with the
Exchange Act and did not, or will not when so filed, contain an untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in the light of the circumstances under which
they were made, not misleading, excluding any statement in any such
document that does not constitute part of the Registration Statement or the
Prospectus pursuant to Rule 412 under the Act; provided, however, that this
-------- -------
representation and warranty shall not apply to any statements in or
omissions from any such documents based upon written information furnished
to the Company by any Agent specifically for use therein.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its
business as described in the Pro -
<PAGE>
-4-
spectus; and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or leasing of property or the conduct of its business requires
such qualification, other than any failure to be so qualified or in good
standing as would not singly or in the aggregate with all such other
failures reasonably be expected to have a material adverse effect on the
assets, liabilities, results of operations or financial condition of the
Company and its consolidated subsidiaries (as defined in Rule 1-02(x) of
the Commission's Regulation S-X), taken as a whole (a "Material Adverse
----------------
Effect").
------
(d) Each subsidiary (including, if applicable, partnerships of which
the Company is a general partner) of the Company that meets the conditions
for a "significant subsidiary" set forth in Rule 1-02(w) of the
Commission's Regulation S-X (collectively, the "Subsidiaries") is duly
------------
organized and validly existing as a corporation or partnership in good
standing (if applicable) under the laws of the jurisdiction of its
incorporation or formation, has the corporate or other power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified to transact business as a
foreign corporation or partnership and is in good standing (if applicable)
in each jurisdiction in which the conduct of its business or its ownership,
leasing or operation of property requires such qualification, other than
any failure to be so qualified or in good standing as would not singly or
in the aggregate with all such other failures reasonably be expected to
have a Material Adverse Effect.
(e) The Indenture has been duly authorized, executed and delivered by
the Company and has been duly qualified under the Trust Indenture Act; the
Indenture complies as to form in all material respects with the
requirements of the Trust Indenture Act; the Securities have been duly
authorized by the Company; and when the Securities are issued and delivered
in accordance with the Indenture and delivered to and paid for by the
purchasers thereof in accordance with this Agreement and any applicable
Terms Agreement, such Securities will have been duly executed,
authenticated, issued and delivered by the Company and the Securities of
any particular issuance of Securities will conform in all material respects
to the description thereof contained in the Prospectus as amended or
supplemented to relate to such issuance of Securites, and the Indenture and
such Securities will constitute valid and legally binding obligations of
the Company, entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights, to public policy considerations
and to general equity principles.
<PAGE>
-5-
(f) 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 any applicable Terms
Agreement (including the provisions of this Agreement) in connection with
the issuance and sale of the Securities by the Company, except such as are
required under the Securities Act and the Trust Indenture Act and such as
may be required under state securities laws.
(g) The execution, delivery and performance of the Indenture, any
applicable Terms Agreement (including the provisions of this Agreement) and
the issuance and sale of the Securities and compliance with the terms and
provisions thereof do not and will not (i) contravene any provision of the
certificate of incorporation, by-laws or other organizational documents of
the Company or of any of the Subsidiaries, or (ii) conflict with or result
in a breach or violation of any of the terms and provisions of, or
constitute a default under (including, without limitation, any event which
with notice or lapse of time, or both, would constitute a default under),
or result in the creation or imposition of any lien, charge or encumbrance
upon any assets or properties of the Company or of any of the Subsidiaries
under, any statute, rule, regulation, order or decree of any governmental
agency or body or any court having jurisdiction over any of them or any of
their respective properties, assets or operations, or any indenture,
mortgage, loan agreement, note or other agreement or instrument for
borrowed money, any guarantee of any agreement or instrument for borrowed
money or any lease, permit, license or other agreement or instrument to
which the Company or any of the Subsidiaries is a party or by which the
Company or any of the Subsidiaries is bound or to which any of the
properties, assets or operations of any of them is subject, other than any
such breach, violation, default, lien, charge or encumbrance as would not
singly or in the aggregate with all such other breaches, violations,
defaults, liens, charges or encumbrances reasonably be expected to have a
Material Adverse Effect.
(h) This Agreement and any applicable Terms Agreement have been duly
authorized, executed and delivered by the Company.
(i) The Company and the Subsidiaries have such certificates, permits,
licenses, franchises, consents, approvals, orders, authorizations and
clearances from appropriate governmental agencies and bodies ("Licenses")
--------
as are necessary to own, lease or operate their properties and to conduct
their businesses in the manner described in the Prospectus, and all such
Licenses are valid and in full force and effect, other than any failure to
have any such License or any failure of any such License to be valid and in
full force and effect as would not singly or in the aggregate with all such
other failures have a Material Adverse Effect.
<PAGE>
-6-
(j) Except as set forth in the Registration Statement and the
Prospectus, the properties, assets and operations of the Company and the
Subsidiaries are in compliance in all material respects with all applicable
Federal, state, local and foreign laws, rules and regulations, orders,
decrees, judgments, permits and licenses relating to public and worker
health and safety and to the protection and clean-up of the natural
environment and activities or conditions related thereto, including,
without limitation, those relating to the generation, handling, disposal,
transportation or release of hazardous materials (collectively,
"Environmental Laws"), other than any such failure to be in compliance as
------------------
would not singly or in the aggregate with all such other failures known to
the Company reasonably be expected to have a Material Adverse Effect. With
respect to such properties, assets and operations, including any previously
owned, leased or operated properties, assets or operations, to the best
knowledge of the Company and except as set forth in the Registration
Statement and the Prospectus, there are no past, present or reasonably
anticipated future events, conditions, circumstances, activities,
practices, incidents, actions or plans of the Company or any of the
Subsidiaries that may interfere with or prevent compliance or continued
compliance in all material respects with applicable Environmental Laws,
other than any such interference or prevention as would not singly or in
the aggregate with any such other interference or prevention known to the
Company reasonably be expected to have a Material Adverse Effect.
(k) Except as set forth in the Registration Statement and the
Prospectus, there are no pending actions, suits, proceedings or
investigations against or affecting the Company or any of the Subsidiaries,
or with respect to which the Company or any of the Subsidiaries is
responsible by way of indemnity or otherwise, that would singly or in the
aggregate with all such other actions, suits, investigations or proceedings
reasonably be expected to have a Material Adverse Effect, or reasonably be
expected to have a material adverse effect on the ability of the Company to
perform its obligations under this Agreement, the Indenture, the Securities
or any applicable Terms Agreement; and, to the best knowledge of the
Company, except as set forth in the Registration Statement and the
Prospectus, no such actions, suits, proceedings or investigations are
threatened.
(l) Since the date of the latest audited financial statements of the
Company included or incorporated by reference in the Prospectus, except as
disclosed in or contemplated by the Prospectus: (A) Neither the Company nor
any Subsidiary has sustained any material loss or interference with its
consolidated business or properties from fire, flood, windstorm, accident
or other calamity (whether or not covered by insurance); (B) There has been
no material increase in the long-term indebtedness of the Company, no
material change in the capital stock of the Company
<PAGE>
-7-
and no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock not consistent with past
practice; and (C) There has not been or become known any Material Adverse
Effect, or any development that could singly or in the aggregate with all
other developments reasonably be expected to result in a Material Adverse
Effect.
(m) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as defined
in the Investment Company Act of 1940.
(n) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes and the Company
agrees to comply with such Section if prior to the completion of the
distribution of the Securities it commences doing such business.
(o) Except as set forth in the Registration Statement and the
Prospectus, no labor disturbance by the employees of the Company or any of
the Subsidiaries exists or, to the best knowledge of the Company, is
threatened, that would singly or in the aggregate with all such other labor
disturbances reasonably be expected to have a Material Adverse Effect.
(p) The audited consolidated financial statements of the Company and
related schedules, if any, and notes included or incorporated by reference
in the Registration Statement and the Prospectus comply in all material
respects with the requirements of the Exchange Act and the Rules and
Regulations, were prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved (except as
otherwise stated therein) and fairly present the consolidated financial
condition, results of operations, cash flows, and changes in stockholders'
equity of the Company on a consolidated basis, at the dates and for the
periods presented. The unaudited consolidated financial statements of the
Company and the related notes included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the consolidated
financial condition, results of operations, cash flows, and changes in
stockholders' equity of the Company at the dates and for the periods to
which they relate, subject to year-end audit adjustments, have been
prepared in accordance with generally accepted accounting principles
applied on a consistent basis (except as otherwise stated therein) and have
been prepared on a basis substantially consistent with that of the audited
financial statements referred to above, except as otherwise stated therein.
If pro forma financial statements with respect to the Company are included
or incorpo-
<PAGE>
-8-
rated by reference in the Registration Statement and the Prospectus, such
pro forma financial statements and other pro forma financial information
included in the Prospectus present fairly the information shown therein,
have been prepared in all material respects in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements, have been properly compiled on the pro forma basis described
therein and, in the opinion of the Company, the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances referred to
therein. No pro forma financial statements or other pro forma financial
information with respect to the Company is required to be included or
incorporated by reference in the Registration Statement and the Prospectus
other than those included or incorporated by reference therein. The
Company's ratios of earnings to fixed charges (actual and, if any, pro
forma) included in the Prospectus under the caption "Ratio of Earnings to
Fixed Charges" or incorporated by reference into the Registration Statement
and in Exhibit 12 to the Registration Statement have been calculated in
compliance with Item 503(d) of Regulation S-K of the Commission and the
supporting schedules included in the Registration Statement present fairly
the information required to be stated therein.
(q) Immediately after any sale of Securities by the Company hereunder
or under any applicable Terms Agreement, the aggregate amount of Securities
which shall have been issued and sold by the Company hereunder or under any
Terms Agreement and of any debt securities of the Company (other than the
Securities) that shall have been issued and sold pursuant to the
Registration Statement will not exceed the amount of debt securities
registered under the Registration Statement.
2. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL. (a) Solicitations
as Agent. On the basis of the representations and warranties herein contained,
but subject to the terms and conditions herein set forth, each of the Agents
hereby severally and not jointly agrees, as agent of the Company, to use its
reasonable efforts to solicit offers to purchase the Securities from the Company
upon the terms and conditions set forth in the Prospectus as amended or
supplemented from time to time. So long as this Agreement shall remain in effect
with respect to any Agent, the Company shall not, without the consent of such
Agent, solicit or accept offers to purchase, or sell in the United States
Securities or any other substantially similar debt securities with a maturity at
the time of original issuance of 9 months to 30 years except (i) pursuant to
this Agreement and any Terms Agreement, (ii) pursuant to a private placement not
constituting a public offering under the Securities Act, (iii) in connection
with a firm commitment underwriting pursuant to an underwriting agreement that
does not provide for a continuous public offering of medium-term debt
securities, or (iv) in connection with the continuous offering of asset-backed
medium-
<PAGE>
-9-
term debt securities rated "AA" (or an equivalent rating) or higher by a
nationally recognized statistical rating organization (as defined for purposes
of Rule 436(g) under the Securities Act) (a "Rating Organization"). However, the
Company reserves the right to sell, and may solicit and accept offers to
purchase, Securities directly on its own behalf to investors (other than broker-
dealers).
The Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase Securities. Upon receipt of at least one
business day's prior notice from the Company, each Agent will suspend
solicitation of offers to purchase Securities from the Company until such time
as the Company has advised such Agent or Agents that such solicitation may be
resumed. During the period of time that such solicitation is suspended, the
Company shall not be required to deliver any opinions, letters or certificates
in accordance with Sections 4(i), 4(j) and 4(k); provided that if the
Registration Statement or Prospectus is amended or supplemented during the
period of suspension (other than by an amendment or supplement providing solely
for a change in the interest rates, redemption provisions, amortization
schedules or maturities offered for the Securities or for a change that the
Agents deem to be immaterial), no Agent shall be required to resume soliciting
offers to purchase Securities until the Company has delivered such opinions,
letters and certificates as such Agent may reasonably request.
The Company agrees to pay each Agent, as consideration for the sale of
each Security resulting from a solicitation made or an offer to purchase
received by such Agent, a commission in the form of a discount from the purchase
price of such Security in an amount equal to the following applicable percentage
of the principal amount of such Security sold:
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------
COMMISSION PERCENTAGE OF
AGGREGATE PRINCIPAL AMOUNT OF
RANGE OF MATURITIES SECURITIES SOLD
------------------------------------------------------------------------------------------------------------
<S> <C>
From 9 months to less than 1 year..................................... .125%
------------------------------------------------------------------------------------------------------------
From 1 year to less than 18 months.................................... .150%
------------------------------------------------------------------------------------------------------------
From 18 months to less than 2 years................................... .200%
------------------------------------------------------------------------------------------------------------
From 2 years to less than 3 years..................................... .250%
------------------------------------------------------------------------------------------------------------
From 3 years to less than 4 years..................................... .350%
------------------------------------------------------------------------------------------------------------
From 4 years to less than 5 years..................................... .450%
------------------------------------------------------------------------------------------------------------
From 5 years to less than 6 years..................................... .500%
------------------------------------------------------------------------------------------------------------
From 6 years to less than 7 years..................................... .550%
------------------------------------------------------------------------------------------------------------
From 7 years to less than 10 years.................................... .600%
------------------------------------------------------------------------------------------------------------
From 10 years to less than 15 years................................... .625%
------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
-10-
<TABLE>
<S> <C>
------------------------------------------------------------------------------------------------------------
From 15 years to less than 20 years................................... .700%
------------------------------------------------------------------------------------------------------------
20 years to and including 30 years.................................... .750%
------------------------------------------------------------------------------------------------------------
</TABLE>
The Agents are authorized to solicit offers to purchase Securities
only in the principal amount of $1,000 or any amount in excess thereof which is
an integral multiple of $1,000. Each Agent shall communicate to the Company,
orally or in writing, each offer to purchase Securities received by such Agent
as agent that in its judgment should be considered by the Company. The Company
shall have the sole right to accept offers to purchase the Securities and may
reject any such offer in whole or in part. Each Agent shall have the right, in
its sole discretion, to reject any offer to purchase Securities, as a whole or
in part, that it considers to be unacceptable and any such rejection shall not
be deemed a breach of its agreements herein contained. The procedural details
relating to the issue and delivery of Securities sold by an Agent as agent and
the payment therefor are set forth in the Administrative Procedures (as
hereinafter defined).
(b) Purchases as Principal. Each sale of Securities to any Agent as
principal shall be made in accordance with the terms of this Agreement and
(unless such Agent shall otherwise agree) a Terms Agreement which will provide
for the sale of such Securities to, and the purchase thereof by, such Agent. A
Terms Agreement will be substantially in the form of Exhibit A hereto but may
take the form of an exchange of any standard form of written telecommunication
between an Agent and the Company and may also specify certain provisions
relating to the reoffering of such Securities by such Agent. The commitment of
any Agent to purchase Securities as principal, whether pursuant to any Terms
Agreement or otherwise, shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein and in the applicable Terms Agreement
set forth. Each agreement by an Agent to purchase Securities as principal
(pursuant to a Terms Agreement or otherwise) shall specify the principal amount
of Securities to be purchased by such Agent pursuant thereto, the price to be
paid to the Company for such Securities, the maturity date of such Securities,
the interest rate or interest rate basis, if any, applicable to such Securities,
any other terms of such Securities, the time and date and place of delivery of
and payment for such Securities (the time and date of any and each such delivery
and payment, the "Time of Delivery") and any provisions relating to rights of,
and default by, underwriters acting together with such Agent in the reoffering
of Securities, and shall also specify any requirements for opinions of counsel,
accountants' letters and officers' certificates pursuant to Section 4 hereof.
Unless otherwise specified in a Terms Agreement, the procedural details relating
to the issue and delivery of Securities purchased by an Agent as principal and
the payment therefor shall be as set forth in the Administrative Procedures.
(c) Obligations Several. The Company acknowledges that the
obligations of the Agents are several and not joint and, subject to the
provisions of this Section 2, each
<PAGE>
-11-
Agent shall have complete discretion as to the manner in which it solicits
purchasers for the Securities and as to the identity thereof.
(d) Administrative Procedures. The Agents and the Company agree to
perform their respective duties and obligations specifically provided to be
performed in the Medium-Term Notes Administrative Procedures (the
"Administrative Procedures") attached hereto as Exhibit B, as the same may be
amended from time to time. The Administrative Procedures may be amended only by
written agreement of the Company and each of the Agents.
3. COMMENCEMENT DATE. The documents required to be delivered
pursuant to Section 6 hereof on the Commencement Date (as defined below) shall
be delivered to the Agents at the offices of Mayer, Brown & Platt, Chicago,
Illinois, at 9:00 a.m., Chicago time, on the date of this Agreement, which date
and time of such delivery may be postponed by agreement between the Agents and
the Company but in no event shall be later than the day prior to the date on
which solicitation of offers to purchase Securities is commenced or the first
date on which the Company accepts an offer by any Agent to purchase Securities
as principal (such time and date being referred to herein as the "Commencement
Date").
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with
each Agent:
(a) (i) To make no amendment or supplement (other than a Pricing
Supplement with respect to any Securities not to be sold to or through an
Agent) to the Registration Statement or the Prospectus prior to the
termination of the offering of the Securities pursuant to this Agreement or
any Terms Agreement which shall be reasonably disapproved by any Agent
after reasonable opportunity to comment thereon, unless in the opinion of
counsel for the Company such amendment or supplement is required by law;
provided, however, that the foregoing shall not apply to any of the
Company's periodic filings with the Commission described in subsection
(iii) below, copies of which filings the Company will cause to be delivered
to the Agents promptly after their transmission to the Commission for
filing; (ii) subject to the foregoing clause (i), promptly to cause each
Prospectus Supplement to be filed with or transmitted for filing to the
Commission in accordance with Rule 424(b) under the Securities Act and to
prepare, with respect to any Securities to be sold through or to such Agent
pursuant to this Agreement, a Pricing Supplement with respect to such
Securities in a form previously approved by such Agent and to file such
Pricing Supplement in accordance with Rule 424(b) under the Securities Act;
and (iii) promptly to file all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section
<PAGE>
-12-
13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery
of a prospectus is required in connection with the offering or sale of the
Securities. The Company will promptly advise each Agent (i) of the filing
of any amendment or supplement to the Basic Prospectus or any amendment to
the Registration Statement and of the effectiveness of any such amendment
to the Registration Statement; (ii) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or any order preventing or suspending the use of any prospectus relating to
the Securities or the initiation or threatening of any proceeding for that
purpose, or of any request by the Commission for any amendment or
supplement to the Registration Statement or Prospectus or for additional
information; and (iii) of the receipt by the Company of any notification
with respect to any suspension of the qualification of the Securities for
offering or sale in any jurisdiction or the initiation or threatening of
any proceeding for any such purpose. The Company agrees to use its best
efforts to prevent the issuance of any such stop order or of any such order
preventing or suspending the use of any such prospectus or of any
notification suspending any such qualification and, if issued, to use
promptly its best efforts to obtain withdrawal thereof as soon as possible.
If the Basic Prospectus is amended or supplemented as a result of the
filing under the Exchange Act of any document incorporated by reference in
the Prospectus, no Agent shall be obligated to solicit offers to purchase
Securities so long as it is not reasonably satisfied with such document.
(b) To endeavor to qualify the Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Agents shall
reasonably request and to continue such qualification in effect so long as
reasonably required in connection with the distribution of the Securities
provided that the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction.
(c) To furnish each Agent and counsel to the Agents, at the expense
of the Company, a signed copy of the Registration Statement (as originally
filed) and each amendment thereto, in each case including exhibits and
documents incorporated by reference therein, and, during the period
mentioned in paragraph (d) below, to furnish each Agent as many copies of
the Prospectus (including all amendments and supplements thereto) and
documents incorporated by reference therein as such Agent may reasonably
request.
(d) If at any time when a prospectus relating to the Securities is
required to be delivered under the Securities Act, any event shall occur 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 in order to make
<PAGE>
-13-
the statements therein, in the light of the circumstances under which they
were made, not misleading, or if, in the opinion of the Agents or the
Company, it is necessary at any time to amend or supplement the Prospectus
to comply with law, to immediately notify the Agents by telephone (with
confirmation in writing) and request each Agent (i) in its capacity as
agent of the Company, to suspend solicitation of offers to purchase
Securities from the Company (and, if so notified, such Agent shall cease
such solicitations and cease using the Prospectus as soon as practicable,
but in any event not later than one business day later); and (ii) to cease
sales of any Securities such Agent may then own as principal. If, as a
result of the occurrence of any event described in the first sentence of
this Section 4(d), the Company shall decide to amend or supplement the
Registration Statement or the Prospectus, as then amended or supplemented,
it shall so advise each Agent promptly by telephone (with confirmation in
writing) and, at its expense, shall prepare and cause to be filed promptly
with the Commission an amendment or supplement to the Registration
Statement or the Prospectus, as then amended or supplemented, that will
correct such statement or omission or effect such compliance and will
supply such amended or supplemented Prospectus to the Agents in such
quantities as they may reasonably request. If any such amendment or
supplement and any documents, opinions, letters and certificates furnished
to the Agents pursuant to Sections 4(e), 4(i), 4(j) and 4(k) in connection
with the preparation and filing of such amendment or supplement are
reasonably satisfactory in all respects to the Agents, upon the filing with
the Commission of such amendment or supplement to the Prospectus or upon
the effectiveness of an amendment to the Registration Statement, the Agents
will resume the solicitation of offers to purchase Securities hereunder.
Notwithstanding any other provision of this Section 4(d), until the
distribution of any Securities any Agent may own as principal has been
completed or in the event such Agent, in the opinion of its counsel, is
otherwise required to deliver a prospectus in respect of a transaction in
the Securities, if any event described in the first sentence of this
Section 4(d) occurs, the Company will (i), at its own expense, promptly
prepare and file with the Commission an amendment or supplement to the
Registration Statement or Prospectus, reasonably satisfactory in all
respects to such Agent, that will correct such statement or omission or
effect such compliance, (ii) supply such amended or supplemented Prospectus
to such Agent in such quantities as such Agent may reasonably request and
(iii) furnish to such Agent pursuant to Sections 4(e), 4(i), 4(j) and 4(k)
such documents, certificates, opinions and letters as it may request in
connection with the preparation and filing of such amendment or supplement.
(e) To furnish to the Agents during the term of this Agreement such
relevant documents and certificates of officers of the Company relating to
the business, operations and affairs of the Company, the Registration
Statement, the Basic Pro-
<PAGE>
-14-
spectus, any amendments or supplements thereto, the Indenture, the
Securities, this Agreement, the Administrative Procedures, any applicable
Terms Agreement and the performance by the Company of its obligations
hereunder or thereunder as the Agents may from time to time reasonably
request and shall notify the Agents promptly in writing of any downgrading,
or on its receipt of any notice of (i) any intended or potential
downgrading or (ii) any review or possible change that indicates a
downgrading or possible downgrading in the rating accorded any securities
of, or guaranteed by, the Company by any Rating Organization.
(f) To make generally available to its security holders and to such
Agent as soon as practicable earnings statements which shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 of the
Commission promulgated thereunder covering periods of at least twelve
months beginning in each case with the first fiscal quarter of the Company
occurring after the "effective date" (as defined in Rule 158) of the
Registration Statement with respect to each sale of Securities.
(g) To furnish to the Agent, during the term of this Agreement,
copies of all reports or other communications (financial or other)
furnished to holders of Securities and copies of any reports and financial
statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is
listed.
(h) From the date of any applicable Terms Agreement with such Agent
or other agreement by such Agent to purchase Securities as principal and
continuing to and including the business day following the related Time of
Delivery, not to offer, sell, contract to sell or otherwise dispose of in
the United States any debt securities of or guaranteed by the Company which
are substantially similar to the Securities, without the prior written
consent of such Agent except (i) pursuant to this Agreement and any Terms
Agreement, (ii) pursuant to a private placement not constituting a public
offering under the Securities Act, (iii) in connection with a firm
commitment underwriting pursuant to an underwriting agreement that does not
provide for a continuous offering of medium-term debt securities, or (iv)
in connection with the continuous public offering of asset-backed medium-
term debt securities rated "AA" (or an equivalent rating) or higher by a
Rating Organization.
(i) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement or an
amendment or supplement providing solely for a change in the interest
rates, redemption provisions, amortization schedules or maturities offered
on the Securities or for a change the Agents deem to be immaterial) and
each time the Company sells Securities to such Agent as principal pursuant
to a Terms Agreement or other agreement and such
<PAGE>
-15-
Terms Agreement or other agreement specifies the delivery of an opinion
under this Section 4(i) as a condition to the purchase of Securities
pursuant to such Terms Agreement or other agreement, the Company shall
furnish or cause to be furnished forthwith to such Agent a written opinion
of Mayer, Brown & Platt, or other counsel for the Company reasonably
satisfactory to such Agent, dated the date of such amendment or supplement,
or the related Time of Delivery relating to such sale, as the case may be,
in form reasonably satisfactory to such Agent, of the same tenor as the
opinion referred to in Section 6(b) hereof but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to
the date of such opinion, or, in lieu of such opinion, counsel last
furnishing such an opinion may furnish to such Agent a letter to the effect
that such Agent may rely on the opinion of such counsel which was last
furnished to such Agent to the same extent as though it were dated the date
of such letter (except that the statements in such last opinion shall be
deemed to relate to the Registration Statement and the Prospectus as
amended or supplemented to the date of delivery of such letter).
(j) That each time the Registration Statement or the Prospectus shall
be amended or supplemented to include or incorporate amended or
supplemented financial information and each time the Company sells
Securities to such Agent as principal pursuant to a Terms Agreement or
other agreement and such Terms Agreement or other agreement specifies the
delivery of a letter under this Section 4(j) as a condition to the purchase
of Securities pursuant to such Terms Agreement or other agreement, the
Company shall cause the independent certified public accountants who have
certified the financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement
forthwith to furnish such Agent a letter, dated the date of such amendment
or supplement or the related Time of Delivery relating to such sale, as the
case may be, in form reasonably satisfactory to such Agent, of the same
tenor as the letter referred to in Section 6(e) hereof but modified to
relate to the Registration Statement and the Prospectus as amended or
supplemented to the date of such letter with such changes as may be
necessary to reflect such amended or supplemented financial information
included or incorporated by reference in the Registration Statement or the
Prospectus as amended or supplemented, provided, however, that, with
respect to any financial information or other matter, such letter may
reconfirm as true and correct at such date, as though made at and as of
such date, rather than repeat, statements with respect to such financial
information or other matter made in the letter referred to in Section 6(e)
hereof which was last furnished to such Agent.
(k) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement or an
amendment or
<PAGE>
-16-
supplement providing solely for a change in the interest rates, redemption
provisions, amortization schedules or maturities offered on the Securities
or for a change the Agents deem to be immaterial), and each time the
Company sells Securities to such Agent as principal and the applicable
Terms Agreement or other agreement specifies the delivery of a certificate
under this Section 4(k) as a condition to the purchase of Securities
pursuant to such Terms Agreement or other agreement, the Company shall
furnish or cause to be furnished forthwith to such Agent a certificate
signed by an executive officer of the Company, dated the date of such
amendment or supplement or the related Time of Delivery relating to such
sale, as the case may be, in form reasonably satisfactory to such Agent, of
the same tenor as the certificates referred to in Section 6(e) but modified
to relate to the Registration Statement and the Prospectus as amended and
supplemented to the date of delivery of such certificate or to the effect
that the statements contained in the certificate referred to in Section
6(e) hereof which was last furnished to such Agent are true and correct at
such date as though made at and as of such date (except that such
statements shall be deemed to relate to the Registration Statement and the
Prospectus as amended or supplemented to such date).
5. COSTS AND EXPENSES. The Company covenants and agrees with each
Agent that the Company will, whether or not any sale of Securities is
consummated, pay all costs and expenses incident to the performance of its
obligations hereunder and under any applicable Terms Agreement, including
without limiting the generality of the foregoing, all costs and expenses: (i)
incident to the preparation, issuance, execution, authentication and delivery of
the Securities, including any expenses of the Trustee, (ii) incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement, the Prospectus and any preliminary prospectus (including in each case
all exhibits, amendments and supplements thereto), (iii) incurred in connection
with the registration or qualification and determination of eligibility for
investment of the Securities under the laws of such jurisdictions as the Agents
(or in connection with any Terms Agreement, the applicable Agent) may reasonably
request pursuant to Section 4(b) (including reasonable related fees of counsel
for the Agents (or such Agent) and their reasonable related disbursements), (iv)
in connection with the listing of the Securities on any stock exchange,
(v)related to any filing with National Association of Securities Dealers, Inc.
("NASD"), (vi) in connection with the printing (including word processing and
duplication costs) and delivery of this Agreement, the Indenture, any Blue Sky
Memoranda and any Legal Investment Survey and the furnishing to the Agents and
dealers of copies of the Registration Statement and the Prospectus, including
mailing and shipping, as herein provided, (vii) payable to rating agencies in
connection with the rating of the Securities, (viii) incurred in connection with
the engagement of any qualified independent underwriter as may be required by
rules and regulations of NASD,(ix) the reasonable fees and disbursements of
counsel for the Agents
<PAGE>
-17-
incurred in connection with the offering and sale of the Securities, including
any opinions to be rendered by such counsel hereunder and (x) any advertising
and out-of-pocket expenses reasonably incurred by the Agents in connection with
the performance of their obligations hereunder.
6. CONDITIONS. The obligation of any Agent, as agent of the Company,
at any time ("Solicitation Time") to solicit offers to purchase the Securities,
the obligation of any Agent to purchase Securities as principal pursuant to any
Terms Agreement or otherwise, and the obligation of any other purchaser to
purchase Securities shall in each case be subject (1) to the condition that all
representations and warranties of the Company herein and all statements of
officers of the Company made in any certificate furnished pursuant to the
provisions hereof are true and correct (i) in the case of an Agent's obligation
to solicit offers to purchase Securities, at and as of such Solicitation Time
and (ii) in the case of any Agent's or any other purchaser's obligation to
purchase Securities, at and as of the time the Company accepts the offer to
purchase such Securities and, as the case may be, at and as of the related Time
of Delivery or time of purchase; (2) to the condition that at or prior to such
Solicitation Time, time of acceptance, Time of Delivery or time of purchase, as
the case may be, the Company shall have complied with all its agreements and all
conditions on its part to be performed or satisfied hereunder prior to such
relevant time; and (3) to the following additional conditions when and as
specified:
(a) Prior to such Solicitation Time or corresponding Time of Delivery
or time of purchase, as the case may be:
(i) if any amendment to the Registration Statement filed prior
to the Commencement Date has not been declared effective as of the
Commencement Date, such amendment shall have been declared effective
not later than 5:30 p.m. (New York City time) on the Commencement
Date; if applicable, the Prospectus as amended or supplemented
(including, if applicable, the Pricing Supplement) with respect to
such Securities shall have been filed with the Commission pursuant to
Rule 424(b) under the Securities Act within the applicable time period
prescribed for such filing by the rules and regulations under the
Securities Act; no stop order suspending the effectiveness of the
Registration Statement shall be in effect and no proceeding for that
purpose shall have been initiated or threatened by the Commission
which has not been resolved in the reasonable satisfaction of such
Agent; and all requests for additional information on the part of the
Commission shall have been complied with to the reasonable
satisfaction of such Agent;
(ii) subsequent to the date of this Agreement, there shall not
have occurred any downgrading, nor shall any notice have been given of
(A) any
<PAGE>
-18-
intended or potential downgrading or (B) any review or possible change
that indicates a downgrading or possible downgrading in the rating
accorded any securities of or guaranteed by the Company by any Rating
Organization;
(iii) subsequent to the date of this Agreement, there shall not
have been any material adverse change in the financial condition or
results of operations of the Company and its subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Prospectus,
as amended or supplemented to such Solicitation Time or at the time
such offer to purchase was made, the effect of which in the judgment
of the applicable Agent makes it impracticable or inadvisable to
market the Securities on the terms and in the manner contemplated in
the Prospectus, as so amended or supplemented; and
(iv) subsequent to the date of this Agreement, there shall not
have occurred (a) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any setting of
minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market; (b) any banking moratorium declared by U.S.
Federal or New York authorities; or (c) any outbreak or escalation of
major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a majority
in interest of the involved Agents, 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 Securities.
(b) On the Commencement Date and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, Mayer, Brown & Platt,
special counsel for the Company, or other counsel for the Company
reasonably satisfactory to such Agent or Agents, shall have furnished to
the relevant Agent or Agents their written opinion, dated the Commencement
Date or Time of Delivery, as the case may be, in form and substance
satisfactory to such Agent or Agents, to the effect that:
(i) The Company is an existing corporation in good standing
under the laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as described
in the Prospectus; and the Company is duly qualified to do business as
a foreign corporation in good standing in all other jurisdictions
within the United States of America in which its ownership or leasing
of property or the conduct of its business re-
<PAGE>
-19-
quires such qualification and where the failure to be so qualified or
in good standing would have a material adverse effect upon its
operations or financial condition;
(ii) The Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act and constitutes a valid and legally binding obligation
of the Company enforceable against the Company in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights, to
public policy considerations and to general equity principles; the
Indenture complies as to form in all material respects with the
requirements of the Trust Indenture Act; the Securities have been duly
authorized by the Company and, when the terms thereof have been
established and when the Securities have been executed, authenticated,
issued and delivered in the manner provided in the Indenture and sold
through an Agent as agent or to any Agent as principal pursuant to a
Terms Agreement, will constitute, valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights, to public policy considerations and to
general equity principles;
(iii) To the best of the knowledge of such counsel without
independent inquiry, no consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by this
Agreement and any applicable Terms Agreement in connection with the
issuance or sale of the Securities by the Company, except such as are
required and have been obtained and made under the Securities Act and
the Trust Indenture Act and such as may be required under state
securities laws (it being understood that such opinion may be limited
to such consents, approvals, authorizations, orders and filings which,
in such counsel's experience, are customarily applicable to
transactions of the type contemplated by this Agreement, any
applicable Terms Agreement and the Indenture);
(iv) The execution, delivery and performance of the Indenture,
this Agreement and any applicable Terms Agreement and the issuance and
sale of the Securities and compliance with the terms and provisions of
the Indenture, this Agreement and the terms of the Securities
described in the Prospectus will not result in a breach or violation
of any of the terms and provisions of,
<PAGE>
-20-
or constitute a default under, any material statute, rule, regulation
or order of any governmental agency or body or any court having
jurisdiction over the Company, any Subsidiary incorporated in the
United States of America or any of their respective properties known
to such counsel, or the charter or by-laws of the Company, or any such
Subsidiary; and the Company has full power and authority to authorize,
issue and sell the Securities as contemplated by this Agreement and
any applicable Terms Agreement;
(v) The Registration Statement has become effective under the
Securities Act and, to the best of the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement
or any part thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the
Act, and the registration statement relating to the Securities, as of
its effective date and the Prospectus, as of the date of the
applicable Terms Agreement, and any amendment or supplement thereto,
as of its date, complied as to form in all material respects with the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations; such counsel have no reason to believe that such
registration statement, as of its effective date, or any amendment
thereto, as of its date, contained any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or
that the Prospectus, as of the date of the applicable Terms Agreement
or as of such Commencement Date, or any amendment or supplement
thereto, as of its date, contained any untrue statement of a material
fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading; it being understood that such counsel
need express no opinion as to the financial statements or other
financial and statistical data contained in the Registration Statement
or the Prospectus;
(vi) This Agreement has been duly authorized, executed and
delivered by the Company; and
(vii) Each document filed pursuant to the Exchange Act (other
than the financial statements, schedules and other financial and
statistical data included therein, as to which such counsel need
express no opinion) and incorporated or deemed to be incorporated by
reference in the Prospectus complied as to form in all material
respects with the applicable requirements of the Exchange Act when so
filed.
<PAGE>
-21-
Such counsel in rendering such opinion may rely as to certain matters
of fact on certificates of officers of the Company and of public officials;
provided, however, that such certificates shall have been delivered to the
-------- -------
Representatives on or prior to the Commencement Date or Time of Delivery,
as the case may be.
(c) On the Commencement Date and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, Richard S. Brennan,
General Counsel and Secretary of Case Corporation, shall have furnished to
the relevant Agent or Agents his written opinion, dated the Commencement
Date or Time of Delivery, as the case may be, in form and substance
satisfactory to such Agent or Agents, to the effect that:
(i) To the best of his knowledge, no consent, approval or
authorization of any third party is required for the consummation of
the transactions contemplated by this Agreement and any applicable
Terms Agreement in connection with the issuance or sale of the
Securities by the Company, except such as have been obtained and made
and are in full force and effect and such as may be required under
state securities laws;
(ii) The execution, delivery and performance of the Indenture
and the applicable Terms Agreement (including the provisions of this
Agreement) and the issuance and sale of the Securities and compliance
with the terms and provisions thereof will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under (including, without limitation, any event or condition
which, with notice or lapse of time, or both, would constitute a
default under), any material agreement or instrument known to such
counsel to which the Company or any Subsidiary is a party or by which
the Company or any Subsidiary is bound or to which any of the
properties of the Company or any Subsidiary is subject;
(iii) Except as set forth in the Prospectus, there are no
material pending legal proceedings known to such counsel to which the
Company or any Subsidiary is a party or of which the property of the
Company or any Subsidiary is the subject, and to the best knowledge of
such counsel no such proceeding is contemplated; and
(iv) Such counsel has no reason to believe that the registration
statement relating to the Securities, as of its effective date, or any
amendment thereto, as of its date, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary
<PAGE>
-22-
to make the statements therein not misleading or that the Prospectus,
as of the date of the Terms Agreement or as of the Commencement Date,
or any amendment or supplement thereto, as of its date or as of the
Commencement Date, contained or contains any untrue statement of a
material fact or omitted or omits to state any material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; it being
understood that such counsel need express no opinion as to the
financial statements or other financial or statistical data contained
in the Registration Statement or the Prospectus.
Such counsel in rendering such opinion may rely as to certain matters
of fact on certificates of officers of the Company and of public officials;
provided, however, that such certificates shall have been delivered to the
-------- -------
Agents on or prior to the Commencement Date or Time of Delivery, as the
case may be.
(d) On the Commencement Date and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, Cahill Gordon & Reindel,
counsel to the Agents, or other counsel for the Agents reasonably
satisfactory to the Agents and the Company, shall have furnished to the
relevant Agent or Agents such opinion or opinions, dated the Commencement
Date or Time of Delivery, as the case may be, with respect to the validity
of the Indenture, the Securities, the Registration Statement, the
Prospectus as amended or supplemented and other related matters as such
Agent or Agents may reasonably request, and in each case such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters.
(e) On the Commencement Date and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, the Company's independent
certified public accountants who have certified the financial statements of
the Company and its subsidiaries included or incorporated by reference in
the Registration Statement and Prospectus, as then amended or supplemented,
shall have furnished to the relevant Agent or Agents a letter, dated the
Commencement Date or Time of Delivery, as the case may be, in form and
substance satisfactory to such Agent or Agents, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information relating to the Company contained in or
incorporated by reference in the Registration Statement and the Prospectus,
as then amended or supplemented.
<PAGE>
-23-
(f) On the Commencement Date and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, the relevant Agent or
Agents shall have received a certificate or certificates signed by an
executive officer of the Company, dated the Commencement Date or Time of
Delivery, as the case may be, in which such officer, to the best of his
knowledge after reasonable investigation, shall state that (1) the
representations and warranties of the Company contained herein are true and
correct in all material respects on and as of the Commencement Date or Time
of Delivery, as the case may be, as if made on and as of such date, (2) the
Company 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 hereunder or under the applicable Terms Agreement or
other agreement at or prior to the Commencement Date or Time of Delivery,
as the case may be, (3) no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and is in
effect as of the Commencement Date or Time of Delivery, as the case may be,
and, to such officer's knowledge, no proceedings for that purpose have been
instituted or are contemplated by the Commission and (4) subsequent to the
date of the most recent financial statements in the Prospectus, there has
not occurred any material adverse change in the financial condition or
results of operations of the Company and its subsidiaries taken as a whole
except as set forth in or contemplated by the Registration Statement or the
Prospectus or as described in such certificate and reasonably acceptable to
such Agent or Agents.
(g) On the Commencement Date and at each Time of Delivery, the
Company shall have furnished to the relevant Agent or Agents such further
relevant certificates, information and documents as such Agent or Agents
may reasonably request.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each Agent and
each person, if any, who controls such Agent within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including without
limitation the legal fees and other expenses incurred in connection with any
suit, action or proceeding or any claim asserted) caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof or the Prospectus (as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto) or
any preliminary prospectus or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not
<PAGE>
-24-
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information furnished to
the Company in writing by such Agent expressly for use therein; provided,
---------
however, that the foregoing indemnity with respect to any untrue statement in or
- -------
omission from any preliminary prospectus or preliminary prospectus supplement
shall not inure to the benefit of any Agent (or to the benefit of any person
controlling such Agent) from whom the person asserting any such losses, claims,
damages or liabilities purchased the Securities if (i) the Company has complied
with Section 4(a), (c) and (d) of this Agreement, and (ii) a copy of the
Prospectus had not been sent or given to such person at or prior to the written
confirmation of the sale of such Securities to such person if required by the
Securities Act and the Prospectus would have cured the defect giving rise to
such loss, claim, damage or liability. For purposes of the proviso to the
immediately preceding sentence, the term "Prospectus" shall not be deemed to
----------
include the documents incorporated therein by reference, and no Agent shall be
obligated to send or give any supplement or amendment to any document
incorporated by reference in any preliminary prospectus or the Prospectus to any
person.
(b) Each Agent agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from the Company to each Agent, but only with
reference to information furnished to the Company in writing by such Agent
expressly for use in the Registration Statement, the Prospectus, any amendment
or supplement thereto, or any preliminary prospectus.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person 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 Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and rep-
<PAGE>
Exhibit 1B
-25-
resentation 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 Person 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
Persons, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm for the Agents and such control persons of the
Agents shall be designated in writing by [Name of agent] or, if [Name of agent]
is not an Indemnified Person by the Agents that are Indemnified Parties and any
such separate firm for the Company, its directors, its officers who sign the
Registration Statement and such control persons of the Company shall be
designated in writing by the Company. The Indemnifying Person 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 Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. If at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for fees and expenses of
counsel as contemplated by the third sentence of this paragraph, such
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding of the nature contemplated by Sections 7(a) or 7(b) effected without
its written consent if (i) such settlement is entered into more than 45 days
after receipt by such Indemnifying Person of the aforesaid request, (ii) such
Indemnifying Person shall have received notice of the terms of such settlement
at least 30 days prior to such settlement being entered into and (iii) such
Indemnifying Person shall not have reimbursed such Indemnified Person in
accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
Indemnified Person shall have requested an Indemnifying Person to reimburse the
Indemnified Person for fees and expenses of counsel, an Indemnifying Person
shall not be liable for any settlement of any proceeding of the nature
contemplated by Sections 7(a) or 7(b) effected without its consent if such
Indemnifying Person (i) reimburses such Indemnified Person in accordance with
such request to the extent it reasonably considers such request to be reasonable
and (ii) provides written notice to the Indemnified Person substantiating the
unpaid balance as unreasonable, in each case prior to the date of such
settlement. No Indemnifying Person shall, without the prior written consent of
the Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding.
(d) If the indemnification provided for in paragraph (a) or (b) of
this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to herein in
connection with any offering of Securi-
<PAGE>
-26-
ties, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and each Agent on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and each Agent
on the other in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and each Agent on the other in connection with the offering of such
Securities shall be deemed to be in the same respective proportion as the net
proceeds from the offering of such Securities (before deducting expenses)
received by the Company and the total discounts and commissions received by each
Agent in respect thereof bear to the aggregate offering price of such
Securities. The relative fault of the Company on the one hand and of each Agent
on the other shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company on the one hand or by such Agent on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and each Agent agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation (even if all Agents were treated as one entity for such purpose)
or by any other method of allocation that does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to above in this Section 7 shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Person in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, in no event shall an Agent be required to contribute any amount in
excess of the amount by which the total price at which the Securities referred
to in Section 7(d) that were sold by or through such Agent exceeds the amount of
any damages that such Agent has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The obligation of each Agent
to contribute pursuant to this subsection (d) is several (in the proportion to
the principal amount of the Securities the sale of which by or through such
Agent gave rise to such losses, claims, damages or liabilities
<PAGE>
-27-
bears to the aggregate principal amount of the Securities the sale of which by
or through any Agent gave rise to such losses, claims, damages or liabilities)
and is not joint.
(e) The indemnity and contribution agreements contained in this
Section 7 are in addition to any liability which the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
8. TERMINATION.
(a) This Agreement may be terminated at any time (i) by the Company
with respect to any or all of the Agents or (ii) by any Agent with respect to
itself only, in each case upon the giving of written notice of such termination
to each other party hereto. Any Terms Agreement shall be subject to termination
in the absolute discretion of the Agent or Agents that are parties thereto on
the terms set forth or incorporated by reference therein. The termination of
this Agreement shall not require termination of any agreement by an Agent to
purchase Securities as principal (whether pursuant to a Terms Agreement or
otherwise) and the termination of such an agreement shall not require
termination of this Agreement. In the event this Agreement is terminated with
respect to any Agent, (x) this Agreement shall remain in full force and effect
with respect to any Agent as to which such termination has not occurred, (y)
this Agreement shall remain in full force and effect with respect to the rights
and obligations of any party which have previously accrued or which relate to
Securities which are already issued, agreed to be issued or the subject of a
pending offer at the time of such termination and (z) in any event, the
provisions of the fourth paragraph of Section 2(a), Section 2(c), the last
sentence of Section 4(d) and Sections 4(f), 4(g), 5, 7, 9, 10, 12 and 15 shall
survive; provided that if at the time of termination an offer to purchase
Securities has been accepted by the Company but the time of delivery to the
purchaser or its agent of such Securities has not yet occurred, the provisions
of Sections 2(b), 2(d), 4(a) through 4(e), 4(h) through 4(k) and 6 shall also
survive. If any Terms Agreement is terminated, the provisions of the last
sentence of Section 4(d) and Sections 2(b), 2(d), 4(a), 4(b), 4(e), 4(g) through
4(k), 5, 6, 7, 9, 10, 12 and 15 (which shall have been incorporated by reference
in such Terms Agreement) shall survive.
(b) If this Agreement or any Terms Agreement shall be terminated by
an Agent or Agents because of any failure or refusal on the part of the Company
to comply with the terms or to fulfill any of the conditions of this Agreement
or any Terms Agreement or if for any reason the Company shall be unable to
perform its obligations under this Agreement or any Terms Agreement or any
condition of any Agent's obligations cannot be fulfilled, the Company agrees to
reimburse each Agent or such Agents as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
reasonable fees and expenses of their counsel) reasonably incurred by such Agent
or Agents in connection with this Agreement or the offering of Securities.
<PAGE>
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9. POSITION OF THE AGENTS. Each Agent, in soliciting offers to
purchase Securities from the Company and in performing the other obligations of
such Agent hereunder (other than in respect of any purchase by an Agent as
principal, pursuant to a Terms Agreement or otherwise), is acting solely as
agent for the Company and not as principal and does not assume any obligation
towards or relationship of agency or trust with any purchaser of Securities.
Each Agent will make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Securities from the
Company was solicited by such Agent and has been accepted by the Company, but
such Agent shall not have any liability to the Company in the event such
purchase is not consummated for any reason. If the Company shall default on its
obligation to deliver Securities to a purchaser whose offer it has accepted, the
Company shall (i) hold the relevant Agent harmless against any loss, claim,
damage or liability arising from or as a result of such default by the Company
and (ii) notwithstanding such default, pay to the Agent that solicited such
offer any commission to which it would be entitled in connection with such sale.
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
indemnities and contribution agreements, representations, warranties and other
statements of the Company, its officers and the Agents set forth in or made
pursuant to this Agreement or any agreement by an Agent to purchase Securities
as principal shall remain in full force and effect regardless of any termination
of this Agreement or any such agreement, any investigation made by or on behalf
of any Agent or any controlling person of any Agent, or the Company, or any
officer or director or any controlling person of the Company, and shall survive
each delivery of and payment for any of the Securities.
11. NOTICES. Except as otherwise specifically provided herein or in
the Administrative Procedures, all statements, requests, notices and advices
hereunder shall be in writing, and effective only on receipt and will be
delivered by hand, by mail (postage prepaid), by telegram (charges prepaid) or
by telex. Communications to the Agents will be sent: in the case of [names and
addresses of Agents]. Communications to the Company will be sent to it at 233
Lake Avenue, Racine, Wisconsin 53403 (Telecopy: (414) 636-6466), Attention:
Treasurer, with a copy to Case Corporation, 700 State Street, Racine, Wisconsin
53404 (Telecopy: (414) 636-6590); Attention: Treasurer.
12. SUCCESSORS. This Agreement and any Terms Agreement shall be
binding upon, and inure solely to the benefit of, each Agent and the Company,
their respective successors, the officers, directors and controlling persons
referred to in Section 7 and (to the extent expressly provided in Section 6) the
purchasers of Securities, and no other person shall acquire or have any right or
obligation under or by virtue of this Agreement or any Terms Agreement.
<PAGE>
-29-
13. AMENDMENTS. This Agreement may be amended or supplemented if,
but only if, such amendment or supplement is in writing and is signed by the
Company and each Agent; provided that the Company may from time to time, on 7
days prior written notice to the Agents but without the consent of any Agent,
amend this Agreement to add as a party hereto one or more additional firms
registered under the Exchange Act, whereupon each such firm shall become an
Agent hereunder on the same terms and conditions as the other Agents that are
parties hereto. The Agents shall sign any amendment or supplement giving effect
to the addition of any such firm as an Agent under this Agreement.
14. BUSINESS DAY. Time shall be of the essence in this Agreement and
any Terms Agreement. As used herein, the term "business day" shall mean any day
which is not a Saturday or Sunday or legal holiday or a day on which banks in
New York City are required or authorized by law or executive order to close.
15. APPLICABLE LAW. This Agreement and any Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without giving effect to the conflict of laws provisions thereof.
16. COUNTERPARTS. This Agreement and any Terms Agreement may be
signed in counterparts, each of which shall be an original, and all of which
together shall constitute one and the same instrument.
17. HEADINGS. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
<PAGE>
-30-
If the foregoing is in accordance with your understanding, please sign
and return to us counterparts hereof, whereupon this letter and the acceptance
by each of you thereof shall constitute a binding agreement between the Company
and each of you in accordance with its terms.
Very truly yours,
CASE CREDIT CORPORATION
By: _________________________
Name:
Title:
Accepted in New York, New York,
as of the date first above written:
[NAMES OF AGENTS]
<PAGE>
Exhibit A
CASE CREDIT CORPORATION
MEDIUM TERM NOTES, SERIES C
TERMS AGREEMENT
___________, 199__
CASE CREDIT CORPORATION
233 Lake Avenue
Racine, Wisconsin 53403
Attention: Treasurer
Re: Distribution Agreement dated as of
[ ] (the "Distribution Agreement")
-----------------------------------------
The undersigned agrees to purchase your Medium-Term Notes, Series C having the
following terms:
Principal Amount:_______________________________________
Original Issue Date:____________________________________
Settlement Date, Time and Place:________________________
Maturity Date:__________________________________________
Purchase Price: __% of Principal Amount, plus accrued interest, if any,
from Settlement Date
Price to Public: __% of Principal Amount, plus accrued interest, if any,
from Settlement Date
Redemption Date (Dates): ________, commencing __________
Initial Redemption Price:
Annual Redemption Price decrease:
Repayment Date (Dates):
<PAGE>
Repayment Price:
Initial accrual period OID:
Original Yield to Maturity:
Regular Record Dates:
(For Fixed Rate Notes)
Interest Rate:_____________________________________________________
Applicability of modified payment upon acceleration:
If yes, state issue price:
Amortization schedule:
(For Floating Rate Notes)
Initial Interest Rate:_____________________________________________
Interest Rate Basis (Commercial Paper, Prime, LIBOR, Treasury, CD, Federal
Funds, CMT, Other):______________________________________________
Index Maturity (30, 60, 90 days, 6 months, 1 year, other):_________
Interest Reset Period (daily, weekly, monthly, quarterly, semiannually,
annually):
Interest Payment Period (monthly, quarterly, semiannually, annually):
Spread: _______ basis points (+/-)
Spread Multiplier:______%
Maximum Interest Rate:______%
Minimum Interest Rate:______%
Initial Interest Reset Date:)______________________________________
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<PAGE>
Interest Reset Date:________________________________
Interest Determination Dates:_______________________
Interest Payment Dates:_____________________________
Calculation Agent:
Calculation Date:
Other terms of Securities:
Provisions relating to underwriter default, if any:
The provisions of Sections 1, 2(b) and 2(d) and 4 through 7, 10, 11,
12 and 15 of the Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
This Agreement is subject to termination in our absolute discretion on
the terms incorporated by reference herein. If this Agreement is so terminated,
the provisions set forth in the last sentence of Section 8 of the Distribution
Agreement shall survive for the purposes of this Agreement.
The certificate referred to in Section 4(k) of the Distribution
Agreement, the opinion referred to in Section 4(i) of the Distribution Agreement
and the accountants' letter referred to in Section 4(j) of the Distribution
Agreement will be required.
[Agent]
By:_____________________________
(Title)
Accepted:
CASE CREDIT CORPORATION
By:____________________________
(Title)
3
<PAGE>
EXHIBIT B
CASE CREDIT CORPORATION
MEDIUM-TERM NOTES, SERIES C
ADMINISTRATIVE PROCEDURES
______________________
The Medium-Term Notes, Series C (the "Notes"), are to be offered on a
continuous basis by Case Credit Corporation (the "Company"). Each of [names of
agents] (each, an "Agent") has agreed to solicit offers to purchase the Notes in
registered form. The Notes are being sold pursuant to a Distribution Agreement
dated as of [ ] (the "Agreement") between the Company and the Agents.
In the Agreement, each Agent has agreed to use reasonable efforts to solicit
purchases of the Notes. Each Agent, as principal, may purchase Notes for its
own account and, if such Agent so elects, the Company and such Agent will enter
into a Terms Agreement, as contemplated by the Agreement. The Company may also
solicit offers to purchase and may sell Notes directly on its own behalf to
investors (other than broker-dealers).
The Notes will be issued under an Indenture dated as of October 1,
1997 (as supplemented or amended from time to time, the "Indenture") between the
Company and The Bank of New York, as trustee (the "Trustee"). The Trustee will
be the Registrar, Calculation Agent, Authenticating Agent and Paying Agent for
the Notes, and will perform the duties specified herein. Notes will bear
interest at a fixed rate (the "Fixed Rate Notes"), which may be zero in the case
of certain original issue discount notes (the "OID Notes"), or at floating rates
(the "Floating Rate Notes"). Fixed Rate Notes may pay a level amount in respect
of both interest and principal amortized over the life of the Notes ("Amortizing
Notes"). Each Note will be represented by either a Global Security (as defined
below) delivered to the Trustee, as agent for The Depository Trust Company
("DTC"), and recorded in the book-entry system maintained by DTC (a "Book-Entry
Note") or a certificate delivered to the holder thereof or a person designated
by such holder (a "Certificated Note"). Except in limited circumstances, an
owner of a Book-Entry Note will not be entitled to receive a Certificated Note.
Book-Entry Notes, which may be payable solely in U.S. dollars, will be
issued in accordance with the administrative procedures set forth in Part I
hereof as they may subsequently be amended as the result of changes in DTC's
operating procedures, and Certificated Notes will be issued in accordance with
the administrative procedures set forth in Part II hereof. Unless otherwise
defined herein, terms defined in the Indenture or the Notes shall be used herein
as therein defined.
<PAGE>
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes
for eligibility in the book-entry system maintained by DTC, the Trustee will
perform the custodial, document control and administrative functions described
below, in accordance with its respective obligations under a Letter of
Representation from the Company and the Trustee to DTC, dated as of the date
hereof (the "Letter of Representation"), and a Medium-Term Note Certificate
Agreement between the Trustee and DTC, dated as of August 19, 1987, and its
obligations as a participant in DTC, including DTC's Same-Day Funds Settlement
System ("SDFS").
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry Notes,
the Company will issue a single global security in
fully registered form without coupons (a "Global
Security") representing up to U.S. $200,000,000
principal amount of all such Notes that have the same
Maturity Date, redemption or repayment provisions,
Interest Payment Dates, Original Issue Date, original
issue discount provisions (if any), and, in the case of
Fixed Rate Notes, Interest Rate, modified payment upon
acceleration (if any), amortization schedule (if any)
or, in the case of Floating Rate Notes, Initial
Interest Rate, Interest Payment Dates, Interest Payment
Period, Calculation Agent, Base Rate, Index Maturity,
Interest Reset Period, Interest Reset Dates, Spread or
Spread Multiplier (if any), Minimum Interest Rate (if
any) and Maximum Interest Rate (if any) and, in each
case, any other relevant terms (collectively, "Terms").
Each Global Security will be dated and issued as of the
date of its authentication by the Trustee. Each Global
Security will bear an "Interest Accrual Date," which
will be (i) with respect to an original Global Security
(or any portion thereof), its original issuance date
and (ii) with respect to any Global Security (or any
portion thereof) issued subsequently upon exchange of a
Global Security, or in lieu of a destroyed, lost or
stolen Global Security, the most recent Interest
Payment Date to which interest has been paid or duly
provided for on the predecessor Global Security or
Securities (or if no
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<PAGE>
such payment or provision has been made, the original
issuance date of the predecessor Global Security),
regardless of the date of authentication of such
subsequently issued Global Security. Book-Entry Notes
may only be denominated and payable in U.S. dollars. No
Global Security will represent (i) both Fixed Rate and
Floating Rate Book-Entry Notes or (ii) any Certificated
Note.
Identification Numbers: The Company has arranged with the CUSIP Service
Bureau of Standard & Poor's Corporation (the "CUSIP
Service Bureau") for Securities representing the Book-
Entry Notes. The Company has obtained from the CUSIP
Service Bureau a written list of such series of
reserved CUSIP numbers and has delivered to the Trustee
and DTC the written list of 900 CUSIP numbers of such
series. The Trustee will assign CUSIP numbers to
Global Securities as described below under Settlement
Procedure "B." DTC will notify the CUSIP Service
Bureau periodically of the CUSIP numbers that the
Trustee has assigned to Global Securities. At any time
when fewer than 100 of the reserved CUSIP numbers
remain unassigned to Global Securities, the Trustee
shall so advise the Company and, if it deems necessary,
the Company will reserve additional CUSIP numbers for
assignment to Global Securities representing Book-Entry
Notes. Upon obtaining such additional CUSIP numbers,
the Company shall deliver a list of such additional
CUSIP numbers to the Trustee and DTC.
Registration: Each Global Security will be registered in the name
of Cede & Co., as nominee for DTC, on the security
register maintained under the Indenture. The
beneficial owner of a Book-Entry Note (or one or more
indirect participants in DTC designated by such owner)
will designate one or more participants in DTC with
respect to such Note (the "Participants") to act as
agent or agents for such owner in connection with the
book-entry system maintained by DTC and DTC will record
3
<PAGE>
in book-entry form, in accordance with instructions
provided by such Participants, a credit balance with
respect to such beneficial owner in such Note in the
account of such Participants. The ownership interest
of such beneficial owner in such Note will be recorded
through the records of such Participants or through the
separate records of such Participants and one or more
indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accompanied by
book entries made by DTC and, in turn, by Participants
(and in certain cases, one or more indirect
participants in DTC) acting on behalf of beneficial
transferors and transferees of such Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP Service
Bureau at any time a written notice of consolidation
specifying (i) the CUSIP numbers of two or more
Outstanding Global Securities that represent Book-Entry
Notes having the same Terms and for which interest has
been paid to the same date, (ii) a date, occurring at
least thirty days after such written notice is
delivered and at least thirty days before the next
Interest Payment Date for such Book-Entry Notes, on
which such Global Securities shall be exchanged for a
single replacement Global Security and (iii) a new
CUSIP number to be assigned to such replacement Global
Security. Upon receipt of such a notice, DTC will send
to its Participants (including the Trustee) a written
reorganization notice to the effect that such exchange
will occur on such date. Prior to the specified
exchange date, the Trustee will deliver to the CUSIP
Service Bureau a written notice setting forth such
exchange date and the new CUSIP number and stating
that, as of such exchange date, the CUSIP numbers of
the Global Securities to be exchanged will no longer be
valid. On the specified exchange date, the Trustee
will exchange such Global Securities for a single
Global Security bearing the new CUSIP number and a new
Interest Accrual Date, and the CUSIP numbers of the
exchanged
4
<PAGE>
Global Securities will, in accordance with CUSIP
Service Bureau procedures, be cancelled and not
immediately reassigned. Notwithstanding the foregoing,
if the Global Securities to be exchanged exceed
$200,000,000 in aggregate principal amount, one Global
Security will be authenticated and issued to represent
each $200,000,000 principal amount of the exchanged
Global Security and an additional Global Security will
be authenticated and issued to represent any remaining
principal amount of such Global Securities (see
"Denominations" below).
Maturities: Each Book-Entry Note will mature on a date from nine
months to 30 years from its date of issue.
Notice of Redemption The Trustee will give notice to DTC prior to each
and Repayment Dates: Redemption Date or Repayment Date (as specified in the
Note), if any, at the time and in the manner set forth
in the Letter of Representation.
Denominations: Book-Entry Notes will be issued in principal amounts of
$1,000 and integral multiples thereof. Global
Securities will be denominated in principal amounts not
in excess of $200,000,000. If one or more Book-Entry
Notes having an aggregate principal amount in excess of
$200,000,000 would, but for the preceding sentence, be
represented by a single Global Security, then one
Global Security will be issued to represent each
$200,000,000 principal amount of such Book-Entry Note
or Notes and an additional Global Security will be
issued to represent any remaining principal amount of
such Book-Entry Note or Notes. In such a case, each of
the Global Securities representing such Book-Entry Note
or Notes shall be assigned the same CUSIP number.
Interest: GENERAL. Interest on each Book-Entry Note will accrue
from the Interest Accrual Date of the Global Security
representing such Note. Unless otherwise specified
therein, each payment of interest on a Book-Entry Note
will include interest accrued to but excluding the
Inter-
5
<PAGE>
est Payment Date; provided that in the case of
--------
Floating Rate Notes with respect to which the Interest
Reset Period is daily or weekly, interest payable on
any Interest Payment Date (other than interest payable
on any date on which principal thereof is payable, and,
if the Note is a Book-Entry Gap Note (as defined
below), other than interest payable on the first
Interest Payment Date after the Original Issue Date
thereof) will include interest accrued through and
including the Record Date immediately preceding the
Interest Payment Date, except that at maturity or
earlier redemption or repayment, the interest payable
will include interest accrued to, but excluding, the
Maturity Date or the date of redemption or repayment,
as the case may be. Interest payable at the maturity
or upon redemption or repayment of a Book-Entry Note
will be payable to the person to whom the principal of
such Note is payable. Standard & Poor's Corporation
will use the information received in the pending
deposit message described under Settlement Procedure
"C" below in order to include the amount of any
interest payable and certain other information
regarding the related Global Security in the
appropriate weekly bond report published by Standard &
Poor's Corporation.
RECORD DATES. The Record Date with respect to any
Interest Payment Date shall be the date fifteen
calendar days immediately preceding such Interest
Payment Date.
FIXED RATE BOOK-ENTRY NOTES. Unless otherwise
specified pursuant to Settlement Procedure "A" below,
interest payments on Fixed Rate Book-Entry Notes ,
other than Amortizing Notes, will be made semiannually
on April 1 and October 1 of each year, and at maturity
or upon any earlier redemption or repayment and
principal and interest payments on Book-Entry
Amortizing Notes will be made semiannually on April 1
and October 1 of each year or quarterly on January 1,
April 1, July 1 and October 1 of each year, and at
6
<PAGE>
maturity (or any redemption or repayment date)
provided, however, that in the case of a Fixed Rate
Book-Entry Note issued between a Record Date and an
Interest Payment Date or on an Interest Payment Date,
the first interest payment will be made on the Interest
Payment Date following the next succeeding Record Date.
If any Interest Payment Date for a Fixed Rate Book-
Entry Note is not a Business Day, the payment due on
such day shall be made on the next succeeding Business
Day and no interest shall accrue on such payment for
the period from and after such Interest Payment Date.
FLOATING RATE BOOK-ENTRY NOTES. Interest payments will
be made on Floating Rate Book-Entry Notes monthly,
quarterly, semiannually or annually. Unless otherwise
specified pursuant to Settlement Procedure "A" below,
interest will be payable, in the case of Floating Rate
Book-Entry Notes with a daily, weekly or quarterly
Interest Reset Date, on the third Wednesday of March,
June, September and December, as specified pursuant to
Settlement Procedure "A" below; in the case of Floating
Rate Book-Entry Notes with a monthly Interest Reset
Date, on the third Wednesday of each month or on the
third Wednesday of March, June, September and December,
as specified pursuant to Settlement Procedure "A"
below; in the case of Floating Rate Book-Entry Notes
with a semiannual Interest Reset Date, on the third
Wednesday of the two months specified pursuant to
Settlement Procedure "A" below; and in the case of
Floating Rate Book-Entry Notes with an annual Interest
Reset Date, on the third Wednesday of the month
specified pursuant to Settlement Procedure "A" below;
provided however, that if an Interest Payment Date for
Floating Rate Book-Entry Notes would otherwise be a day
that is not a Market Day with respect to such Floating
Rate Book-Entry Notes, such Interest Payment Date will
be the next succeeding Market Day with respect to such
Floating Rate Book-Entry Notes, except in the case of a
LIBOR
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<PAGE>
Note if such Market Day is in the next succeeding
calendar month, such Interest Payment Date will be the
immediately preceding Market Day; and provided,
further, that in the case of a Floating Rate Book-Entry
Note issued between a Record Date and the related
Interest Payment Date (a "Book-Entry Gap Note"), the
first interest payment will be made on the Interest
Payment Date following the next succeeding Record Date,
and in such case, notwithstanding the fact that an
Interest Reset Date may occur prior to such Interest
Payment Date, the Initial Interest Rate shall remain in
effect until the first Interest Reset Date occurring on
or subsequent to such Interest Payment Date.
NOTICE OF INTEREST PAYMENT AND RECORD DATES. Prior to
the first Business Day of March, June, September and
December of each year, the Trustee will deliver to the
Company and DTC a written list of Record Dates and
Interest Payment Dates that will occur with respect to
Book-Entry Notes during the six-month period beginning
on such first Business Day. Promptly after each date
upon which interest is determined for Floating Rate
Notes issued in book-entry form, the Calculation Agent
will notify the Company, the Trustee and Standard &
Poor's Corporation of the interest rates determined on
such dates.
Calculation of Interest: FIXED RATE BOOK-ENTRY NOTES. Interest on Fixed Rate
Book-Entry Notes (including interest for partial
periods) will be calculated on the basis of a 360-day
year of twelve thirty-day months.
FLOATING RATE BOOK-ENTRY NOTES. Interest rates on
Floating Rate Book-Entry Notes will be determined as
set forth in the form of such Notes. Interest on
Floating Rate Book-Entry Notes will be calculated on
the basis of actual days elapsed and a year of 360
days, except that, in the case of Treasury Rate Notes
and CMT Rate Notes, interest will be calculated on the
basis of the actual number of days in the year.
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<PAGE>
Payments of Principal PAYMENTS OF INTEREST ONLY. Promptly before each Record
and Interest: Date, the Trustee will deliver to the Company and DTC a
written notice specifying by CUSIP number the amount of
interest to be paid on each Global Security other than
an Amortizing Note on the following Interest Payment
Date (other than an Interest Payment Date coinciding
with maturity or any earlier redemption or repayment
date) and the total of such amounts. DTC will confirm
the amount payable on each such Global Security on such
Interest Payment Date by reference to the daily bond
reports published by Standard & Poor's Corporation. In
the case of Amortizing Notes, the Trustee will provide
separate written notice to the Company and to DTC prior
to each Interest Payment Date at the time and in the
manner set forth in the Letter of Representation. The
Company will pay to the Trustee, as paying agent, the
total amount of interest due on such Interest Payment
Date (and, in the case of an Amortizing Note, principal
and interest) (other than at maturity), and the Trustee
will pay such amount to DTC at the times and in the
manner set forth below under "Manner of Payment."
PAYMENTS AT MATURITY OR UPON REDEMPTION OR REPAYMENT.
Prior to the first Business Day of each month, the
Trustee will deliver to the Company and DTC a written
list of principal and interest to be paid on each
Global Security other than an Amortizing Note maturing
either at maturity or on a redemption or repayment date
in the following month. The Company and DTC will
confirm the amounts of such principal and interest
payments with respect to each such Global Security on
or about the fifth Business Day preceding the Maturity
Date or redemption or repayment date of such Global
Security. In the case of Amortizing Notes, the Trustee
will provide separate written notice to the Company and
to DTC prior to the Maturity Date and any redemption or
repayment date, as the case may be, at the times and in
the manner set forth in the Letter of Representation.
The Company will pay to the Trustee,
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<PAGE>
as the paying agent, the principal amount of such
Global Security, together with interest due at such
Maturity Date or redemption or repayment date. The
Trustee will pay such amounts to DTC at the times and
in the manner set forth below under "Manner of
Payment."
PAYMENTS NOT ON BUSINESS DAYS. If any Interest Payment
Date or the Maturity Date or redemption or repayment
date of a Global Security representing Fixed Rate Book-
Entry Notes is not a Business Day, the payment due on
such day shall be made on the next succeeding Business
Day and no interest shall accrue on such payment for
the period from and after such Interest Payment Date,
Maturity Date or redemption or repayment date, as the
case may be. If any Interest Payment Date or the
Maturity Date or redemption or repayment date of a
Global Security representing a Floating Rate Book-Entry
Note would otherwise fall on a day that is not a Market
Day, the payment due on such day shall be made on the
next succeeding day that is a Market Day with respect
to such Notes with the same effect as if such Market
Day were the Interest Payment Date, Maturity Date or
date of redemption or repayment, as the case may be,
except that, in the case of Book-Entry LIBOR Notes, if
such Market Day is in the next succeeding calendar
month, such Interest Payment Date, Maturity Date or
redemption or repayment date shall be the immediately
preceding day that is a Market Day with respect to such
Book-Entry LIBOR Notes. Promptly after payment to DTC
of the principal and interest due on the Maturity Date
or redemption or repayment date of such Global
Security, the Trustee will cancel such Global Security
in accordance with the terms of the Indenture and
deliver it to the Company with a certificate of
cancellation. On the first Business Day of each month,
the Trustee will deliver to the Company a written
statement indicating the total principal amount of
outstanding Book-Entry Notes as of the immediately
preceding Business Day.
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MANNER OF PAYMENT. The total amount of any principal
and interest due on Global Securities on any Interest
Payment Date or at maturity or upon redemption or
repayment shall be paid by the Company to the Trustee
in funds available for immediate use by the Trustee as
of 9:30 a.m. (New York City time) on such date. The
Company will make such payment on such Global
Securities by wire transfer to the Trustee or by
instructing the Trustee to withdraw funds from an
account maintained by the Company at the Trustee. The
Company will confirm such instructions in writing to
the Trustee. Prior to 10 a.m. (New York City time) on
each Maturity Date or redemption or repayment date or,
if either such date is not a Business Day, as soon as
possible thereafter, following receipt of such funds
from the Company the Trustee will pay by separate wire
transfer (using Fedwire message entry instructions in a
form previously specified by DTC) to an account at the
Federal Reserve Bank of New York previously specified
by DTC, in funds available for immediate use by DTC,
each payment of principal (together with interest
thereon) due on Global Securities on any Maturity Date
or redemption or repayment date. On each Interest
Payment Date or, if any such date is not a Business
Day, as soon as possible thereafter, interest payments
and, in the case of Amortizing Notes, interest and
principal payments shall be made to DTC in same day
funds in accordance with existing arrangements between
the Trustee and DTC. Thereafter on each such date, DTC
will pay, in accordance with its SDFS operating
procedures then in effect, such amounts in funds
available for immediate use to the respective
Participants in whose names the Book-Entry Notes
represented by such Global Securities are recorded in
the book-entry system maintained by DTC. Neither the
Company nor the Trustee shall have any responsibility
or liability for the payment by DTC to such
Participants of the principal of and interest on the
Book-Entry Notes.
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WITHHOLDING TAXES. The amount of any taxes required
under applicable law to be withheld from any interest
payment on a Book-Entry Note will be determined and
withheld by the Participant, indirect participant in
DTC or other person responsible or forwarding payments
directly to the beneficial owner of such Note.
Preparation of Pricing If any order to purchase a Certificated Note is
Supplement: accepted by or on behalf of the Company, the Company
will prepare a pricing supplement reflecting the terms
of such Note and will arrange to file such Pricing
Supplement with the Commission in accordance with the
applicable paragraph of Rule 424(b) under the Act and
will deliver the number of copies of such Pricing
Supplement to the relevant Agent as such Agent shall
reasonably request by the close of business on the
following Business Day. The relevant Agent will cause
such Pricing Supplement to be delivered to the
purchaser of the Note.
In each instance that a Pricing Supplement is prepared,
the Agent receiving such Pricing Supplement will affix
the Pricing Supplement to Prospectuses prior to their
use. Outdated Pricing Supplements, and the Prospectuses
to which they are attached (other than those retained
for files), will be destroyed.
Settlement: The receipt by the Company of immediately available
funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Security
representing such Note shall constitute "settlement"
with respect to such Note. All orders accepted by the
Company will be settled on the third Business Day
following such acceptance pursuant to the timetable for
settlement set forth below unless the Company and the
purchaser agree to settlement on another day, which
shall be no earlier than the next Business Day.
Settlement Procedures: Settlement Procedures with regard to each Book-Entry
Note sold by the Company to or through an Agent
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<PAGE>
shall be as follows (unless otherwise specified
pursuant to a Terms Agreement, as defined in the
Agreement):
A. The relevant Agent will advise the Company by
facsimile transmission or other acceptable means
that such Note is a Book-Entry Note and of the
following settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry Note,
the Interest Rate, and whether such Note is an
Amortizing Note and, if so, the Amortization
Schedule, or, in the case of a Floating Rate
Book-Entry Note, the Initial Interest Rate (if
known at such time), Interest Payment Date(s),
including the Initial Interest Payment Date,
Interest Payment Period, Calculation Agent,
Base Rate, Index Maturity, Interest Reset
Period, Initial Interest Reset Date, Interest
Reset Dates, Spread or Spread Multiplier (if
any), Minimum Interest Rate (if any) and
Maximum Interest Rate (if any).
4. Redemption or repayment provisions, if any.
5. Settlement date and time.
6. Price.
7. Agent's commission, if any, determined as
provided in the Agreement.
8. Net proceeds to the Company.
9. Whether the Note is an OID Note, and if it is
an OID Note, the total amount of OID, the yield
to maturity, the initial accrual pe-
13
<PAGE>
riod OID and the applicability of Modified
Payment upon Acceleration (and, if so, the
Issue Price).
10. Any other applicable Terms.
B. The Company will advise the Trustee by facsimile
transmission or other acceptable means of the
information set forth in Settlement Procedure "A"
above. The Trustee will then assign a CUSIP number
to the Global Security representing such Note and
will notify the Trustee and the Agent of such CUSIP
number by telephone or electronic transmission
(confirmed in writing) as soon as practicable.
C. The Trustee will enter a pending deposit message
through DTC's Participant Terminal System, providing
the following settlement information to DTC, the
relevant Agent and Standard & Poor's Corporation:
1. The information set forth in Settlement
Procedure "A."
2. The Initial Interest Payment Date for such
Note, the number of days by which such date
succeeds the related DTC Record Date (which in
the case of Floating Rate Notes which reset
daily or weekly, shall be the date five
calendar days immediately preceding the
applicable Interest Payment Date and, in the
case of all other Notes, shall be the Record
Date as defined in the Note) and, if known, the
amount of interest payable on such Initial
Interest Payment Date.
3. The CUSIP number of the Global Security
representing such Note.
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<PAGE>
4. Whether such Global Security will represent any
other Book-Entry Note (to the extent known at
such time) and whether such Note is an
Amortizing Note (by an appropriate notation in
the comments field of DTC's Participant
Terminal System).
5. The DTC participant number of the institution
through which the Company will hold the Book-
Entry Note.
D. The Trustee will complete and authenticate the
Global Security representing such Note in accordance
with the terms of the written order of the Company
then in effect.
E. DTC will credit such Note to the Trustee's
participant account at DTC.
F. The Trustee will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC to
(1) debit such Note to the Trustee's participant
account and credit such Note to the relevant Agent's
participant account and (ii) debit such Agent's
settlement account and credit the Trustee's
settlement account for an amount equal to the price
of such Note less such Agent's commission, if any.
The entry of such a deliver order shall constitute a
representation and warranty by the Trustee to DTC
that (a) the Global Security representing such Book-
Entry Note has been issued and authenticated and (b)
the Trustee is holding such Global Security pursuant
to the Medium-Term Note Certificate Agreement
between the Trustee and DTC.
G. Unless the relevant Agent purchased such Note as
principal, such Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to such
Agent's participant account and credit such Note
15
<PAGE>
to the participant accounts of the Participants with
respect to such Note and (ii) to debit the
settlement account of such Participants and credit
the settlement account of such Agent for an amount
equal to the price of such Note.
H. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "F" and
"G" will be settled in accordance with SDFS
operating procedures in effect on the settlement
date.
I. The Trustee, upon confirming receipt of such funds,
will credit to the U.S. dollar account of the
Company maintained at a bank in New York City,
notified to the Trustee from time to time, in funds
available for immediate use in the amount
transferred to the Trustee, in accordance with
Settlement Procedure "F."
J. Unless the relevant Agent purchased such Note as
principal, such Agent will confirm the purchase of
such Note to the purchaser either by transmitting to
the Participants with respect to such Note a
confirmation order or orders through DTC's
institutional delivery system or by mailing a
written confirmation to such purchaser.
K. Monthly, the Trustee will send to the Company a
statement setting forth the principal amount of
Notes Outstanding as of that date under the
Indenture and setting forth a brief description of
any sales of which the Company has advised the
Trustee but which have not yet been settled.
Settlement: For sales by the Company of Book-Entry Notes to or
through an Agent unless otherwise specified pursuant to
a Terms Agreement for settlement on the first Business
Day after the sale date, Settlement Procedures "A"
through "J" set forth above shall be completed as
16
<PAGE>
soon as possible but not later than the respective
times (New York City time) set forth below:
Settlement
Procedure Time
--------- ----
A 11:00 a.m. on the sale date
B 12:00 noon on the sale date
C 2:00 p.m. on the sale date
D 9:00 a.m. on settlement date
E 10:00 a.m. on settlement date
F-G 2:00 p.m. on settlement date
H 4:45 p.m. on settlement date
I-J 5:00 p.m. on settlement date
If a sale is to be settled more than one Business Day
after the sale date, Settlement Procedures "A," "B" and
"C" shall be completed as soon as practicable but no
later than 11:00 a.m., 12 noon and 2:00 p.m.,
respectively, on the first Business Day after the sale
date. If the Initial Interest Rate for a Floating Rate
Book-Entry Note has not been determined at the time
that Settlement Procedure "A" is completed, Settlement
Procedures "B" and "C" shall be completed as soon as
such rate has been determined but no later than 12 noon
and 2:00 p.m., respectively, on the second Business Day
before the settlement date. Settlement Procedure "H"
is subject to extension in accordance with any
extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in
effect on the settlement date. If settlement of a
Book-Entry Note is rescheduled or cancelled, the
Trustee, after receiving notice from the Company or the
Agent, will deliver to DTC, through DTC's Participant
Terminal System, a cancellation message to such effect
by no later than 2:00 p.m. on the Business Day
immediately preceding the scheduled settlement date.
Failure to Settle: If the Trustee fails to enter an SDFS deliver order
with respect to a Book-Entry Note pursuant to
Settlement Procedure "F," the Trustee may deliver to
DTC,
17
<PAGE>
through DTC's Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC to
debit such Note to the Trustee's participant account,
provided that the Trustee's participant account
contains a principal amount of the Global Security
representing such Note that is at least equal to the
principal amount to be debited. If a withdrawal message
is processed with respect to all the Book Entry Notes
represented by a Global Security, the Trustee will mark
such Global Security "cancelled," make appropriate
entries in the Trustee's records and send such
cancelled Global Security to the Company. The CUSIP
number assigned to such Global Security shall, in
accordance with CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned. If a
withdrawal message is processed with respect to one or
more, but not all, of the Book-Entry Notes represented
by a Global Security, the Trustee will exchange such
Global Security for two Global Securities, one of which
shall represent such Book-Entry Note or Notes and shall
be cancelled immediately after issuance and the other
of which shall represent the remaining Book-Entry Notes
previously represented by the surrendered Global
Security and shall bear the CUSIP number of the
surrendered Global Security.
If the purchase price for any Book-Entry Note is not
timely paid to the Participants with respect to such
Note by the beneficial purchaser thereof (or a person,
including an indirect participant in DTC, acting on
behalf of such purchaser), such Participants and, in
turn, the relevant Agent may enter SDFS deliver orders
through DTC's Participant Terminal System reversing the
orders entered pursuant to Settlement Procedures "F"
and "G," respectively. Thereafter, the Trustee will
deliver the withdrawal message and take the related
actions described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may take
18
<PAGE>
any action in accordance with its SDFS operating
procedures then in effect. In the event of a
failure to settle with respect to one or more, but
not all, of the Book-Entry Notes to have been
represented by a Global Security, the Trustee will
provide, in accordance with Settlement Procedures
"D" and "F," for the authentication and issuance of
a Global Security representing the Book-Entry Notes
to be represented by such Global Security and will
make appropriate entries in its records.
Posting Rates by Company: The Company and the Agents will from time to time
post the rates of interest per annum to be borne by
and the maturity of Securities that may be sold as
a result of the solicitation of offers by an Agent.
The Company may establish a fixed set of interest
rates and maturities for an offering period
("posting"). If the Company decides to change
already posted rates, it will promptly advise the
Agents to suspend solicitation of offers until the
new posted rates have been established with the
Agent.
Trustee Not To Risk Funds: Nothing herein shall be deemed to require the
Trustee to risk or expend its own funds in
connection with any payments to the Company, the
Agents, DTC or any holders of Notes, it being
understood by all parties that payments made by the
Trustee to the Company, the Agents, DTC or any
holders of Notes shall be made only to the extent
that funds are provided to the Trustee for such
purpose.
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<PAGE>
PART 11: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as registrar in connection with the Certificated Notes.
Issuance: Each Certificated Note will be dated and issued as of
the date of its authentication by the Trustee. Each
Certificated Note will bear an Original Issue Date,
which will be (i) with respect to an original
Certificated Note (or any portion thereof), its
original issuance date (which will be the settlement
date) and (ii) with respect to any Certificated Note
(or any portion thereof) issued subsequently upon
exchange of a Certificated Note, or in lieu of a
destroyed, lost or stolen Certificated Note, the
original issuance date of the predecessor
Certificated Note, regardless of the date of
authentication of such subsequently issued
Certificated Note.
Registration: Certificated Notes will be issued only in fully
registered form without coupons.
Transfers and Exchanges: A Certificated Note may be presented for transfer or
exchange at the principal corporate trust office of
the Trustee. Certificated Notes will be exchangeable
for other Certificated Notes having identical terms
but different authorized denominations without
service charge. Certificated Notes will not be
exchangeable for Book-Entry Notes.
Maturities: Each Certificated Note will mature on a date from
nine months to 30 years from its date of issue.
Currency: The currency denomination with respect to any
Certificated Note and the currency of payment of
interest and principal with respect to any such
Certificated Note shall be U.S. dollars.
Denominations: Unless otherwise provided in a Prospectus Supplement,
the denomination of any Certificated Note will be a
minimum of $1,000 or any amount in excess thereof
that is an integral multiple of $1,000.
20
<PAGE>
GENERAL. Interest on each Certificated Note will accrue
from the Original Issue Date of such Note for the first
interest period and from the most recent date to which
interest has been paid for all subsequent interest
periods. Unless otherwise specified therein, each
payment of interest on a Certificated Note will include
interest accrued to but excluding the Interest Payment
Date; provided that in the case of Floating Rate Notes
with respect to which the Interest Reset Period is
daily or weekly, interest payable on any Interest
Payment Date (other than interest payable on any date
on which principal thereof is payable, and, if the Note
is a Certificated Gap Note (as defined below), other
than interest payable on the first Interest Payment
Date after the Original Issue Date thereof) will
include interest accrued through and including the
Record Date immediately preceding the Interest Payment
Date, except that at maturity or earlier redemption or
repayment, the interest payable will include interest
accrued to, but excluding, the Maturity Date or the
date of redemption or repayment, as the case may be.
RECORD DATES. The Record Date with respect to any
Interest Payment Date in respect of a Certificated Note
shall be the date fifteen calendar days immediately
preceding such Interest Payment Date.
FIXED RATE CERTIFICATED NOTES. Unless otherwise
specified pursuant to Settlement Procedure "A" below,
interest payments on Fixed Rate Certificated Notes,
other than Amortizing Notes, will be made semiannually
April 1 and October 1 of each year and at maturity or
upon any earlier redemption or repayment and principal
and interest payments on Certificated Amortizing Notes
will be made semiannually on April 1 and October 1 of
each year or quarterly on January 1, April 1, July 1
and October 1 of each year, and at maturity (or any
redemption or repayment date); provided, however that
in the case of a Fixed Rate Certificated Note issued
between a Record Date and an Inter-
21
<PAGE>
est Payment Date or on an Interest Payment Date, the
first interest payment will be made on the Interest
Payment Date following the next succeeding Record Date.
If any Interest Payment Date for a Fixed Rate
Certificated Note is not a Business Day, the payment
due on such day shall be made on the next succeeding
Business Day and no interest shall accrue on such
payment for the period from and after such Interest
Payment Date.
FLOATING RATE CERTIFICATED NOTES. Interest payments
will be made on Floating Rate Certificated Notes
monthly, quarterly, semiannually or annually. Unless
otherwise specified pursuant to Settlement Procedure
"A" below, interest will be payable, in the case of
Floating Rate Certificated Notes with a daily, weekly
or quarterly Interest Reset Date, on the third
Wednesday of March, June, September and December, as
specified pursuant to Settlement Procedure "A" below;
in the case of Floating Rate Certificated Notes with a
monthly Interest Reset Date, on the third Wednesday of
each month or on the third Wednesday of March, June,
September and December, as specified pursuant to
Settlement Procedure "A" below; in the case of Floating
Rate Certificated Notes with a semiannual Interest
Reset Date, on the third Wednesday of the two months
specified pursuant to Settlement Procedure "A" below;
and in the case of Floating Rate Certificated Notes
with an annual Interest Reset Date, on the third
Wednesday of the month specified pursuant to Settlement
Procedure "A" below; provided however, that if an
Interest Payment Date for Floating Rate Certificated
Notes would otherwise be a day that is not a Market Day
with respect to such Floating Rate Certificated Notes,
such Interest Payment Date will be the next succeeding
Market Day with respect to such Floating Rate
Certificated Notes, except in the case of a LIBOR Note
if such Market Day is in the next succeeding calendar
month, such Interest Payment Date will be the
immediately preceding Market Day; and provided,
22
<PAGE>
further, that in the case of a Floating Rate
Certificated Note issued between a Record Date and
the related Interest Payment Date (a "Certificated
Gap Note"), the first interest payment will be made
on the Interest Payment Date following the next
succeeding Record Date, and in such case,
notwithstanding the fact that an Interest Reset Date
may occur prior to such Interest Payment Date, the
Initial Interest Rate shall remain in effect until
the first Interest Reset Date occurring on or
subsequent to such Interest Payment Date.
NOTICE OF INTEREST PAYMENT AND RECORD DATES. Prior to
the first Business Day of March, June, September and
December of each year, the Trustee will deliver to
the Company a written list of Record Dates and
Interest Payment Dates that will occur with respect
to Certificated Notes during the six-month period
beginning on such first Business Day. Promptly after
each date upon which interest is determined for
Floating Rate Notes issued in certificated form, the
Calculation Agent will notify the Company and the
Trustee of the interest rates determined on such
dates.
Calculation of Interest: FIXED RATE CERTIFICATED NOTES. Interest on Fixed Rate
Certificated Notes (including interest for partial
periods) will be calculated on the basis of a 360-day
year of twelve thirty-day months.
FLOATING RATE CERTIFICATED NOTES. Interest rates on
Floating Rate Certificated Notes will be determined
as set forth in the form of such Notes. Interest on
Floating Rate Certificated Notes will be calculated
on the basis of actual days elapsed and a year of 360
days, except that, in the case of Treasury Rate Notes
and CMT Rate Notes, interest will be calculated on
the basis of the actual number of days in the year.
Payments of Principal The Company will pay the Trustee, as Paying Agent,
and Interest: the principal amount of each Certificated Note (other
than a Certificated Amortizing Note), together with
interest due thereon, at its Maturity Date or upon
re-
23
<PAGE>
demption or repayment of such note in funds available
for immediate use by the Trustee. In the case of a
Certificated Amortizing Note, the Company will pay the
Trustee, as Paying Agent, the principal amount due on
such Note on such date, together with interest due
thereon, at its Maturity Date or upon redemption or
repayment of such Note on such date, together with
interest due thereon, at its Maturity Date or upon
redemption or repayment of such Note in funds available
for immediate use by the Trustee. The Trustee will pay
such amount to the holder of such Note at its Maturity
Date or upon redemption or repayment of such Note upon
presentation and surrender of such Note to the Trustee.
Such payment, together with payment of interest due at
maturity or upon redemption or repayment, will be made
in funds available for immediate use by the holder of
such Note. Promptly after such presentation and
surrender, the Trustee will cancel such Certificated
Note in accordance with the terms of the Indenture and
deliver it to the Company with a certificate of
cancellation. Unless otherwise specified in the
applicable Pricing Supplement, all interest payments on
a Certificated Note or, in the case of a Certificated
Amortizing Note, payments of principal and interest
(other than interest (or interest and principal) due at
maturity or upon redemption or repayment) will be made
by check drawn on the Trustee (or another person
appointed by the Trustee) and mailed by the Trustee to
the person entitled thereto as provided in such Note
and the Indenture; provided, however, that the holder
of $1,000,000 or more of Notes having the same Interest
Payment Date will be entitled to receive payment by
wire transfer of immediately available funds and the
holder of such Notes will provide the Trustee with
appropriate and timely wire transfer instructions.
Promptly after each Record Date, the Trustee will
deliver to the Company a written notice specifying the
amount of interest to be paid on each Certificated Note
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<PAGE>
other than an Amortizing Note on the following Interest
Payment Date (other than an Interest Payment Date
coinciding with maturity or any earlier redemption or
repayment date) and the total of such amounts. In the
case of Amortizing Notes, the Trustee will provide
separate written notice to the Company specifying the
amount of interest and principal to be paid on each
Amortizing Note on the following Interest Payment Date
(other than an Interest Payment Date coinciding with
maturity or any earlier redemption or repayment date)
and the total of such amounts. Interest at maturity or
upon redemption or repayment will be payable to the
person to whom the payment of principal is payable. On
or about the first Business Day of each month, the
Trustee will deliver to the Company a written list of
principal and interest, to the extent ascertainable, to
be paid on each Certificated Note including Amortizing
Notes maturing or to be redeemed or repaid in the
following month, if any. The Trustee will be
responsible for withholding taxes on interest paid on
Certificated Notes as required by applicable law.
If any Interest Payment Date or the Maturity Date or
redemption or repayment date of a Fixed Rate
Certificated Note is not a Business Day, the payment
due on such day shall be made on the next succeeding
Business Day and no interest shall accrue on such
payment for the period from and after such Interest
Payment Date, Maturity Date or redemption or repayment
date, as the case may be. If any Interest Payment Date
or the Maturity Date or redemption or repayment date of
a Floating Rate Certificated Note would otherwise fall
on a day that is not a Market Day with respect to such
Note, the payment due on such day shall be made on the
next succeeding day that is a Market Day with respect
to such Note with the same effect as if such Market Day
were the stated Interest Payment Date, Maturity Date or
date of redemption or repayment, as the case may be,
except that, in the case of Certificated
25
<PAGE>
LIBOR Notes, if such Market Day is in the next
succeeding calendar month, such Interest Payment Date,
Maturity Date or redemption or repayment date shall be
the immediately preceding day that is a Market Day with
respect to such Certificated LIBOR Notes.
Preparation of If any order to purchase a Certificated Note is
Pricing Supplement: accepted by or on behalf of the Company, the Company
will prepare a Pricing Supplement reflecting the terms
of such Note and will arrange to file the Pricing
Supplement with the Commission in accordance with the
applicable paragraph of Rule 424(b) under the Act and
will deliver the number of copies of such Pricing
Supplement to the relevant Agent as such Agent shall
reasonably request by the close of business on the
following Business Day. The relevant Agent will cause
such Pricing Supplement to be delivered to the
purchaser of the Note.
In each instance that a Pricing Supplement is prepared,
the Agent receiving such Pricing Supplement will affix
the Pricing Supplement to Prospectuses prior to their
use. Outdated Pricing Supplements, and the Prospectuses
to which they are attached (other than those retained
for files), will be destroyed.
Settlement: The receipt by the Company of immediately available
funds in payment for an authenticated Certificated Note
delivered to the relevant Agent and such Agent's
delivery of such Note against receipt of immediately
available funds shall constitute "settlement" with
respect to such Note. All orders accepted by the
Company will be settled on the third Business Day
following such acceptance pursuant to the timetable for
settlement set forth below unless the Company and the
purchaser agree to settlement on another day, which
shall be no earlier than the next Business Day.
26
<PAGE>
Settlement Settlement Procedures with regard to each Certificated
Procedures: Note sold by the Company to or through an Agent shall
be as follows (unless otherwise specified pursuant to a
Terms Agreement):
A. The relevant Agent will advise the Company by
facsimile transmission or other acceptable means
that such Note is a Certificated Note and of the
following settlement information:
1. Name in which such Note is to be registered
("Registered Owner").
2. Address of the Registered Owner and address for
payment of principal and interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Maturity Date.
5. In the case of a Fixed Rate Certificated Note,
the Interest Rate, and whether such Note is an
Amortizing Note and, if so, the Amortization
Schedule or, in the case of a Floating Rate
Certificated Note, the Initial Interest Rate
(if known at such time), Interest Payment
Date(s), Interest Payment Period, Calculation
Agent, Base Rate, Index Maturity, Interest
Reset Period, Initial Interest Reset Date,
Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate (if
any), and Maximum Interest Rate (if any).
6. Redemption or repayment provisions, if any.
7. Settlement date and time.
8. Price.
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<PAGE>
9. Agent's commission, if any, determined as
provided in the Agreement.
10. Denominations.
11. Net proceeds to the Company.
12. Whether the Note is an OID Note, and if it is
an OID Note, the total amount of OID, the yield
to maturity, the initial accrual period OID and
the applicability of Modified Payment upon
Acceleration (and, if so, the Issue Price).
13. Any other applicable Terms.
B. The Company will advise the Trustee by facsimile
transmission or other acceptable means of the
information set forth in Settlement Procedure "A"
above.
C. The Company will have delivered to the Trustee a
preprinted four-ply packet for such Note, which
packet will contain the following documents in forms
that have been approved by the Company, the relevant
Agent and the Trustee:
1. Note with customer confirmation.
2. Stub One - For the Trustee.
3. Stub Two - For the relevant Agent.
4. Stub Three - For the Company.
D. The Trustee will complete such Note and authenticate
such Note and deliver it (with the confirmation) and
Stubs One and Two to the relevant Agent, and such
Agent will acknowledge receipt of the Note by
stamping or otherwise marking Stub One and returning
it to the Trustee. Such delivery will be made only
against such acknowl-
28
<PAGE>
edgment of receipt and evidence that instructions
have been given by such Agent for payment to the
account of the Company maintained at the Trustee,
New York, New York in funds available for immediate
use, of an amount equal to the price of such Note
less such Agent's commission, if any. In the event
that the instructions given by such Agent for
payment to the account of the Company are revoked,
the Company will as promptly as possible wire
transfer to the account of such Agent an amount of
immediately available funds equal to the amount of
such payment made.
E. Unless the relevant Agent purchased such Note as
principal, such Agent will deliver such Note (with
confirmation) to the customer against payment in
immediately available funds. Such Agent will obtain
the acknowledgment of receipt of such Note by
retaining Stub Two.
F. The Trustee will send Stub Three to the Company by
first-class mail. Periodically, the Trustee will
also send to the Company a statement setting forth
the principal amount of the Notes outstanding as of
that date under the Indenture and setting forth a
brief description of any sales of which the Company
has advised the Trustee but which have not yet been
settled.
Settlement Procedures For sales by the Company of Certificated Notes to or
Timetables: through an Agent (unless otherwise specified pursuant
to a Terms Agreement), Settlement Procedures "A"
through "F" set forth above shall be completed on or
before the respective times (New York City time) set
forth below:
Settlement
Procedure Time
--------- ----
A 2:00 p.m. on day before settlement date
B 3:00 p.m. on day before settlement date
29
<PAGE>
C-D 2:15 p.m. on settlement date
E 3:00 p.m. on settlement date
F 5:00 p.m. on settlement date
Failure to Settle: If a purchaser fails to accept delivery of and make
payment for any Certificated Note, the relevant Agent
will notify the Company and the Trustee by telephone
and return such Note to the Trustee. Upon receipt of
such notice, the Company will immediately wire transfer
to the account of such Agent an amount equal to the
amount previously credited thereto in respect of such
Note. Such wire transfer will be made on the settlement
date, if possible, and in any event not later than the
Business Day following the settlement date. If the
failure shall have occurred for any reason other than a
default by such Agent in the performance of its
obligations hereunder and under the Agreement, then the
Company will reimburse such Agent or the Trustee, as
appropriate, on an equitable basis for its loss of the
use of the funds during the period when they were
credited to the account of the Company (such
reimbursement for loss of the use of such funds to be
based on the federal funds effective rate then in
effect). Immediately upon receipt of the Certificated
Note in respect of which such failure occurred, the
Trustee will mark such Note "cancelled," make
appropriate entries in the Trustee's records and send
such Note to the Company.
Posting Rates The Company and the Agents will from time to time post
by Company: the rates of interest per annum to be borne by and the
maturity of Securities that may be sold as a result of
the solicitation of offers by an Agent. The Company may
establish a fixed set of interest rates and maturities
for an offering period ("posting"). If the Company
decides to change already posted rates, it will
promptly advise the Agents to suspend solicitation of
offers until the new posted rates have been established
with the Agent.
Trustee Not to Nothing herein shall be deemed to require the Trustee
30
<PAGE>
Risk Funds: to risk or expend its own funds in connection with any
payments to the Company, the Agents or any holders of
Notes, it being understood by all parties that payments
made by the Trustee to the Company, the Agents or any
holders of Notes shall be made only to the extent that
funds are provided to the Trustee for such purpose.
31
<PAGE>
EXHIBIT 5
January 29, 1999
Case Credit Corporation
233 Lake Avenue
Racine, Wisconsin 53404
Ladies and Gentlemen:
I am the General Counsel and Secretary of Case Corporation, a Delaware
corporation ("Case"), and have advised Case Credit Corporation, a Delaware
corporation and an indirect wholly-owned subsidiary of Case ("Case Credit"), in
connection with the proposed sale of up to $800,000,000 principal amount of Case
Credit's debt securities (the "Securities"). The Securities are to be issued
under an Indenture (the "Indenture") between Case Credit and The Bank of New
York, as Trustee, dated as of October 1, 1997, with certain terms of the
Securities to be established by certain officers of Case Credit who have been
authorized by its Board of Directors to do so, as part of the corporate action
taken and to be taken (the "Corporate Proceedings") relating to the issuance of
the Securities.
I, or members of my staff, have examined or are otherwise familiar with the
Certificate of Incorporation of Case Credit, the By-Laws of Case Credit, the
Registration Statement on Form S-3 (the "Registration Statement") being filed by
Case Credit pursuant to which the Securities are to be registered under the
Securities Act of 1933, as amended, the Corporate Proceedings and such other
documents, records, and instruments as I have deemed necessary for the purposes
of this opinion.
Based on the foregoing, I am of the opinion that the Indenture is a valid and
binding instrument and that, upon the completion of the Corporate Proceedings
and the authentication, issuance, sale and delivery of the Securities, the
Securities shall be legal, valid and binding obligations of Case Credit,
entitled to the benefits of the Indenture, including such terms as are
established pursuant to the Corporate Proceedings, in accordance with the
respective terms thereof (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or
<PAGE>
other laws affecting creditors' rights generally from time to time in effect and
the general principles of equity).
I hereby consent to the filing of this opinion as an Exhibit to the Registration
Statement and to being named in the related prospectus and any related
prospectus supplement under the caption "Legal Matters" with respect to the
matters stated therein. Further, I hereby consent to the incorporation by
reference of this opinion and consent in any abbreviated registration
statement(s) registering up to an additional 20% aggregate principal amount of
Securities filed subsequent to the date hereof.
Sincerely,
Richard S. Brennan
<PAGE>
EXHIBIT 12
CASE CREDIT CORPORATION AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN MILLIONS)
<TABLE>
<CAPTION>
NINE MONTHS
ENDED YEARS ENDED DECEMBER 31,
SEPTEMBER 30, -------------------------------
1998 1997 1996 1995 1994 1993
------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Net Income.......................................... $ 62 $ 82 $ 85 $ 94 $ 81 $111
Add:
Interest expense.................................. 103 98 72 42 88 227
Amortization of capitalized debt expense.......... 1 1 2 2 1 1
Portion of rentals representative
of interest factor............................... -- -- -- -- -- --
Income tax expense and other taxes on income...... 34 40 45 53 55 75
Cumulative effect of change in
accounting principles............................ -- -- -- -- -- 6
Fixed charges of unconsolidated
subsidiaries..................................... -- -- -- -- -- --
Extraordinary loss................................ -- -- 3 -- 4 --
---- ---- ---- ---- ---- ----
Earnings as defined............................. $200 $221 $207 $191 $229 $414
==== ==== ==== ==== ==== ====
Interest expense.................................... $103 $ 98 $ 72 $ 42 $ 88 $227
Amortization of capitalized debt
expense............................................ 1 1 2 2 1 1
Portion of rentals representative
of interest factor................................. -- -- -- -- -- --
Fixed charges of unconsolidated subsidiaries........ -- -- -- -- -- --
---- ---- ---- ---- ---- ----
Fixed charges as defined........................ $104 $ 99 $ 74 $ 44 $ 89 $228
==== ==== ==== ==== ==== ====
Ratio of earnings to fixed charges.................. 1.92x 2.23x 2.80x 4.34x 2.57x 1.82x
==== ==== ==== ==== ==== ====
</TABLE>
<PAGE>
EXHIBIT 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
dated January 20, 1998 (except with respect to the matters discussed in Note 12,
as to which the date is February 24, 1998) on the Case Credit Corporation and
subsidiaries financial statements (and to all references to our Firm) included
in this registration statement.
ARTHUR ANDERSEN LLP
Milwaukee, Wisconsin
January 27, 1999
<PAGE>
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [_]
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
CASE CREDIT CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 76-0394710
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
233 Lake Avenue
Racine, Wisconsin 53404
(Address of principal executive offices) (Zip code)
----------------------
Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------
Name Address
<S> <C>
- -----------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 19th day of January, 1999.
THE BANK OF NEW YORK
By: /s/THOMAS C. KNIGHT
-----------------------------------
Name: THOMAS C. KNIGHT
Title: ASSISTANT VICE PRESIDENT
<PAGE>
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository
institutions:
Noninterest-bearing balances and currency and
coin................................................. $ 7,301,241
Interest-bearing balances.............................. 1,385,944
Securities:
Held-to-maturity securities............................ 1,000,737
Available-for-sale securities.......................... 4,240,655
Federal funds sold and Securities purchased
under agreements to resell............................. 971,453
Loans and lease financing receivables:
Loans and leases, net of unearned
income...............38,788,269
LESS: Allowance for loan and
lease losses............632,875
LESS: Allocated transfer risk
reserve.......................0
Loans and leases, net of unearned income,
allowance, and reserve............................... 38,155,394
Assets held in trading accounts.......................... 1,307,562
Premises and fixed assets (including capitalized
leases)................................................ 670,445
Other real estate owned.................................. 13,598
Investments in unconsolidated subsidiaries and
associated companies................................... 215,024
Customers' liability to this bank on acceptances
outstanding............................................ 974,237
Intangible assets........................................ 1,102,625
Other assets............................................. 1,944,777
-----------
Total assets............................................. $59,283,692
===========
</TABLE>
<PAGE>
<TABLE>
LIABILITIES
<S> <C>
Deposits
In domestic offices.................................... $26,930,258
Noninterest-bearing..........................11,579,390
Interest-bearing.............................15,350,868
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................... 16,117,854
Noninterest-bearing.............................187,464
Interest-bearing.............................15,930,390
Federal funds purchased and Securities sold
under agreements to repurchase......................... 2,170,238
Demand notes issued to the U.S.Treasury.................. 300,000
Trading liabilities...................................... 1,310,867
Other borrowed money:
With remaining maturity of one year or less............ 2,549,479
With remaining maturity of more than one year
through three years.................................. 0
With remaining maturity of more than three years....... 46,654
Bank's liability on acceptances executed and
outstanding............................................ 983,398
Subordinated notes and debentures........................ 1,314,000
Other liabilities........................................ 2,295,520
-----------
Total liabilities........................................ 54,018,268
===========
EQUITY CAPITAL
Common stock............................................. 1,135,284
Surplus.................................................. 731,319
Undivided profits and capital reserves................... 3,385,227
Net unrealized holding gains (losses) on
available-for-sale securities.......................... 51,233
Cumulative foreign currency translation
adjustments............................................ (37,639)
-----------
Total equity capital..................................... 5,265,424
-----------
Total liabilities and equity capital..................... $59,283,692
===========
</TABLE>
-2-
<PAGE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
--
J. Carter Bacot |
Thomas A. Renyi | Directors
Alan R. Griffith |
--
-3-
