<PAGE>
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-Q
[X]QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1997
OR
[_]TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
COMMISSION FILE NUMBER 33-80775-01
----------------
CASE CREDIT CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 76-0394710
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
233 LAKE AVE., RACINE, WI 53403
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES INCLUDING ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (414) 636-6011
----------------
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports) and (2) has been subject to such
filing requirements for the past 90 days. YES [X] NO [_]
Indicate the number of shares outstanding of each of the issuer's classes of
common stock as of the latest practicable date.
Common Stock, par value $5.00 per share: 200 shares outstanding as of
September 30, 1997.
THE REGISTRANT MEETS THE CONDITIONS SET FORTH IN GENERAL INSTRUCTION H(1)(A)
AND (B) OF FORM 10-Q AND IS THEREFORE FILING THIS FORM WITH THE REDUCED
DISCLOSURE FORMAT PERMITTED BY GENERAL INSTRUCTION H OF FORM 10-Q.
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<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Part I--Financial Information
Case Credit Corporation and Subsidiaries
Balance Sheets......................................................... 2
Statements of Income................................................... 3
Statements of Cash Flows............................................... 4
Statements of Changes in Shareholder's Equity.......................... 5
Notes to Financial Statements.......................................... 6
Management's Analysis of Results of Operations......................... 9
Part II--Other Information
Item 1. Legal Proceedings................................................ *
Item 2. Changes in Securities............................................ *
Item 3. Defaults Upon Senior Securities.................................. *
Item 4. Submission of Matters to a Vote of Security Holders.............. *
Item 5. Other Information................................................ *
Item 6. Exhibits and Reports on Form 8-K................................. 10
</TABLE>
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*No response to this item is included herein for the reason that it is
inapplicable, is not required pursuant to General Instruction H of Form 10-
Q, or the answer to such item is negative.
1
<PAGE>
PART I--FINANCIAL INFORMATION
CASE CREDIT CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
AS OF SEPTEMBER 30, 1997, AND DECEMBER 31, 1996
(IN MILLIONS, EXCEPT SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
ASSETS 1997 1996
------ ------------- ------------
<S> <C> <C>
Cash and cash equivalents........................... $ 45 $ 17
Retail notes and finance leases..................... 1,457 1,163
Due from Trusts..................................... 283 275
------ ------
Total receivables............................... 1,740 1,438
Allowance for credit losses......................... (30) (30)
------ ------
Total receivables--net.............................. 1,710 1,408
Affiliated receivables.............................. 13 13
Equipment on operating leases, net.................. 153 97
Other assets........................................ 66 20
Property and equipment, at cost..................... 4 3
Accumulated depreciation............................ (1) (1)
------ ------
Net property and equipment...................... 3 2
------ ------
Total........................................... $1,990 $1,557
====== ======
<CAPTION>
LIABILITIES AND SHAREHOLDER'S EQUITY
------------------------------------
<S> <C> <C>
Short-term debt..................................... $1,199 $ 829
Accounts payable and other accrued liabilities...... 42 54
Deposits withheld from dealers...................... 18 19
Long-term debt...................................... 410 415
------ ------
Total liabilities............................... 1,669 1,317
------ ------
Minority Interest................................... 3 --
Shareholder's equity:
Common Stock, $5 par value, 200 shares authorized,
issued and outstanding........................... -- --
Paid-in capital................................... 219 199
Cumulative translation adjustment................. (10) (6)
Retained earnings................................. 109 47
------ ------
Total shareholder's equity...................... 318 240
------ ------
Total........................................... $1,990 $1,557
====== ======
</TABLE>
The accompanying notes to financial statements are an integral part of these
Balance Sheets.
2
<PAGE>
CASE CREDIT CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
FOR THE THREE AND NINE MONTHS ENDED SEPTEMBER 30, 1997 AND 1996
(IN MILLIONS)
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS NINE MONTHS
ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30,
-------------- --------------
1997 1996 1997 1996
------ ------ ------ ------
<S> <C> <C> <C> <C>
Revenues:
Finance income earned on retail notes and
finance leases................................ $ 29 $ 18 $ 75 $ 44
Interest income from Case Corporation.......... 6 4 16 13
Net gain on retail notes sold.................. 19 18 52 63
Securitization and servicing fee income........ 10 14 32 52
Lease income on operating leases............... 9 4 23 10
Other income................................... 2 3 3 4
------ ------ ------ ------
Total revenues............................. 75 61 201 186
Expenses:
Interest expense:
On obligations to others..................... 28 22 71 52
On payables to affiliates.................... -- -- 1 1
------ ------ ------ ------
Total interest expense..................... 28 22 72 53
Operating expenses:
Fees charged by Case Corporation............... 4 5 14 15
Administrative and operating expenses.......... 3 3 8 7
Provision (credit) for credit losses........... -- -- -- (1)
Depreciation of equipment on operating leases.. 6 4 15 7
Other.......................................... -- (1) 1 --
------ ------ ------ ------
Total operating expenses................... 13 11 38 28
------ ------ ------ ------
Total expenses............................. 41 33 110 81
------ ------ ------ ------
Income before taxes.............................. 34 28 91 105
Income tax provision............................. 11 5 29 37
------ ------ ------ ------
Income before extraordinary loss................. 23 23 62 68
Extraordinary loss............................... -- (3) -- (3)
------ ------ ------ ------
Net income....................................... $ 23 $ 20 $ 62 $ 65
====== ====== ====== ======
</TABLE>
The accompanying notes to financial statements are an integral part of these
Statements of Income.
3
<PAGE>
CASE CREDIT CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1997 AND 1996
(IN MILLIONS)
(UNAUDITED)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30,
------------------
1997 1996
-------- --------
<S> <C> <C>
Operating activities:
Net income............................................... $ 62 $ 65
Adjustments to reconcile net income to net cash provided
by operating activities:
Depreciation and amortization.......................... 16 9
Deferred income tax expense............................ (2) (1)
Extraordinary loss, after tax.......................... -- 3
Net gain on retail notes sold.......................... (52) (63)
Changes in components of working capital:
(Increase) decrease in other assets.................. (31) 1
Decrease in accounts payables and other accrued
liabilities......................................... (13) (2)
Other, net........................................... (9) --
-------- --------
Net cash provided (used) by operating activities... (29) 12
-------- --------
Investing activities:
Cost of receivables acquired............................. (1,918) (1,535)
Collections of receivables............................... 432 248
Proceeds from sales of receivables....................... 1,235 1,175
Expenditures for property and equipment.................. (1) (2)
Purchase of equipment on operating leases................ (68) (53)
Investments in joint ventures............................ (16) --
-------- --------
Net cash used by investing activities.............. (336) (167)
-------- --------
Financing activities:
Proceeds from issuance of long-term debt................. -- 200
Increase (decrease) in revolving credit facilities....... 373 (16)
Dividends paid........................................... -- (20)
Capital contributions from Case Corporation.............. 20 --
Other.................................................... -- 1
-------- --------
Net cash provided by financing activities.......... 393 165
-------- --------
Increase in cash and cash equivalents...................... 28 10
Cash and cash equivalents, beginning of period............. 17 15
-------- --------
Cash and cash equivalents, end of period................... $ 45 $ 25
======== ========
Cash paid during the period for interest................... $ 78 $ 52
======== ========
Cash paid during the period for taxes...................... $ 31 $ 47
======== ========
</TABLE>
The accompanying notes to financial statements are an integral part of these
Statements of Cash Flows.
4
<PAGE>
CASE CREDIT CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDER'S EQUITY
(IN MILLIONS)
(UNAUDITED)
<TABLE>
<CAPTION>
CUMULATIVE
COMMON PAID IN TRANSLATION RETAINED
STOCK CAPITAL ADJUSTMENT EARNINGS TOTAL
------ ------- ----------- -------- -----
<S> <C> <C> <C> <C> <C>
Balance, December 31, 1995........... $-- $199 $ (8) $ 2 $193
Net income......................... -- -- -- 85 85
Dividends declared................. -- -- -- (40) (40)
Translation adjustment............. -- -- 2 -- 2
---- ---- ---- ---- ----
Balance, December 31, 1996........... -- 199 (6) 47 240
Net income......................... -- -- -- 62 62
Capital contribution from Case
Corporation....................... -- 20 -- -- 20
Translation adjustment............. -- -- (4) -- (4)
---- ---- ---- ---- ----
Balance, September 30, 1997.......... $-- $219 $(10) $109 $318
==== ==== ==== ==== ====
</TABLE>
The accompanying notes to financial statements are an integral part of these
Statements of Changes in Shareholder's Equity.
5
<PAGE>
CASE CREDIT CORPORATION AND SUBSIDIARIES
NOTES TO FINANCIAL STATEMENTS
(1)--BASIS OF PRESENTATION
The accompanying financial statements reflect the consolidated results of
Case Credit Corporation and its subsidiaries ("Case Credit" or the "Company").
All significant intercompany transactions have been eliminated in
consolidation.
In the opinion of management, the accompanying unaudited financial
statements of Case Credit contain all adjustments which are of a normal
recurring nature necessary to present fairly the financial position as of
September 30, 1997, and the results of operations, changes in shareholder's
equity and cash flows for the periods indicated. Interim financial results are
not necessarily indicative of operating results for an entire year.
Certain reclassifications have been made to conform the prior years'
financial statements to the 1997 presentation.
(2)--ASSET-BACKED SECURITIZATIONS
During the third quarter of 1997, limited-purpose business trusts organized
by Case Credit issued $876 million of asset-backed securities to outside
investors. In the first nine months of 1997, limited-purpose business trusts
organized by Case Credit issued $1,706 million of asset-backed securities to
outside investors. As of September 30, 1997, Case Credit has sold $1,301
million of U.S. and Canadian retail notes to the trusts in connection with
these issuances. In the first nine months of 1996, limited-purpose business
trusts organized by Case Credit issued $1,646 million of asset-backed
securities to outside investors, selling $1,238 million of U.S. and Canadian
retail notes to the trusts in connection with these issuances. The proceeds
from the sale of the retail notes were used to repay outstanding debt and to
finance additional receivables.
(3)--SHORT-TERM DEBT AND LINES OF CREDIT
During the first quarter of 1997, Case Credit Ltd. (Canada), a wholly owned
subsidiary of Case Credit, established a C$500 million commercial paper
facility. The principal amount of the commercial paper outstanding, combined
with the amounts outstanding on the C$500 million revolving credit facility,
will not exceed a total of C$500 million. Case Credit has approximately C$404
million of commercial paper outstanding under this facility as of September
30, 1997.
On September 17, 1997, Case Credit filed a shelf registration statement with
the Securities and Exchange Commission for the issuance of up to $700 million
of unsecured debt securities, including $100 million of securities registered
under an earlier shelf registration. As of September 30, 1997, no securities
have been offered pursuant to this shelf registration.
As a result of establishing new credit facilities in the third quarter of
1996, Case Credit recorded a $3 million extraordinary, after-tax charge to
write-off unamortized bank fees related to the original bank agreements
established at the time of Case Corporation's initial public offering in June
1994.
(4)--INCOME TAXES
On a consolidated basis, the Company's 1997 year-to-date effective tax rate
of 32% was lower than the U.S. statutory rate of 35% primarily due to
reductions in the tax valuation reserves in certain foreign jurisdictions
offset by state income taxes and foreign income taxed at different rates. The
Company's 1996 year-to-date effective tax rate was equal to the U.S. statutory
rate of 35% and was impacted by state income taxes and foreign income taxed at
different rates offset by the recognition of tax savings from the
implementation of foreign financing strategies and reductions in the tax
valuation reserves in certain foreign jurisdictions.
6
<PAGE>
CASE CREDIT CORPORATION AND SUBSIDIARIES
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
(5)--FINANCIAL INSTRUMENTS
Derivatives
The Company uses derivative financial instruments to manage its interest
rate exposures. Case Credit does not hold or issue financial instruments for
trading purposes. The notional amounts of these contracts do not represent
amounts exchanged by the parties and, thus, are not a measure of the Company's
risk. The net amounts exchanged are calculated on the basis of the notional
amounts and other terms of the contracts, such as interest rates, and only
represent a small portion of the notional amounts. The credit and market risk
under these agreements is minimized through diversification among
counterparties with high credit ratings.
Depending on the item being hedged, gains and losses on derivative financial
instruments are either recognized in the results of operations as they accrue
or are deferred until the hedged transaction occurs. Derivatives used as
hedges are effective at reducing the risk associated with the exposure being
hedged and are designated as a hedge at the inception of the derivative
contract. Accordingly, changes in the market value of the derivative are
highly correlated with changes in the market value of the underlying hedged
item at the inception of the hedge and over the life of the hedge contract.
Interest Rate Swaps
Case Credit enters into interest rate swaps to stabilize funding costs by
minimizing the effect of potential interest rate increases on floating-rate
debt in a rising interest rate environment. Under these agreements, the
Company contracts with a counterparty to exchange the difference between a
fixed rate and a floating rate applied to the notional amount of the swap.
Swap contracts are principally between one and four years in duration. The
differential to be paid or received on interest rate swap agreements is
accrued as interest rates change and is recognized in net income as an
adjustment to interest expense.
Gains and losses resulting from terminated interest rate swap agreements are
deferred and recognized in net income over the shorter term of the remaining
contractual life of the swap agreement or the remaining term of the debt
underlying the swap agreement. If swap agreements are terminated due to the
underlying debt being extinguished, any resulting gain or loss is recognized
in net income as an adjustment to interest expense at the time of the
termination.
The weighted-average pay and receive rates for the swaps outstanding at
September 30, 1997, were 6.05% and 4.86%, respectively. The weighted-average
pay and receive rates for the swaps outstanding at December 31, 1996, were
6.22% and 4.49%, respectively.
Back-to-Back Interest Rate Caps
The asset-backed commercial paper liquidity facility (the "Liquidity
Facility") requires a subsidiary of Case Credit to have interest rate cap
agreements in place. Due to the relatively high expense of obtaining such an
instrument, Case Credit sells an identical cap, concurrent with the cap
purchase, to the same counterparty. This effectively minimizes the overall
expense to Case Credit, meets the requirements of the Liquidity Facility and
eliminates any risk of financial loss on the purchased cap. The defined term
of the cap is approximately 48 months.
Premiums paid for interest rate cap agreements purchased and sold are
included in "Other Assets" and "Other Liabilities," respectively, in the
accompanying Balance Sheets, and are amortized to interest expense over the
terms of the agreements. Amounts receivable or payable under cap agreements
are recognized in net income as adjustments to interest expense over the term
of the related debt. If interest rate cap agreements are terminated due to the
underlying debt being extinguished, any resulting gain or loss is recognized
in net income as a component of "Net gain on retail notes sold" at the time of
the termination.
7
<PAGE>
CASE CREDIT CORPORATION AND SUBSIDIARIES
NOTES TO FINANCIAL STATEMENTS--(CONCLUDED)
At September 30, 1997, Case Credit had a back-to-back cap at a rate of
7.00%, at a notional amount of approximately $31 million. At December 31,
1996, Case Credit had a back-to-back cap at a rate of 7.00%, at a notional
amount of approximately $98 million.
(6)--INVESTMENTS
During the third quarter of 1997, Case Credit announced a joint venture with
UFB LOCABAIL SA, a subsidiary of Compagnie Bancaire, to provide financing for
Case's European dealers and retail customers. The formation of this new
venture, Case Credit Europe S.A.S., establishes the first pan-European finance
organization to serve both the agricultural and construction equipment markets
in the region. Also during the third quarter, Case Credit and Cummins Engine
Company, Inc. ("Cummins") entered into an agreement under which Case Credit
will offer financing to all qualified North American retail purchasers,
dealers and manufacturers of industrial equipment powered by Cummins engines.
(6)--SUBSEQUENT EVENTS
On October 16, 1997, the Company issued $150 million aggregate principal
amount of its 6.75% unsecured and unsubordinated notes due 2007 pursuant to a
$700 million shelf registration statement filed with the Securities and
Exchange Commission in September 1997. The net proceeds from the offering will
be used to fund Case Credit's growing portfolio of receivables and for other
corporate purposes, including the repayment of indebtedness.
On October 17, 1997, Case Credit Australia Pty Ltd replaced its A$250
million revolving credit facilities with A$1.0 billion in new credit
facilities. These new facilities are guaranteed by Case Credit Corporation and
are comprised of a A$400 million commercial paper program that is backed by a
syndicated credit facility, and a A$600 million medium-term note program.
Under the terms of the commercial paper program, the principal amount of the
commercial paper outstanding, combined with the amounts outstanding under the
syndicated credit facility, cannot exceed a total of A$400 million.
8
<PAGE>
CASE CREDIT CORPORATION AND SUBSIDIARIES
MANAGEMENT'S ANALYSIS OF RESULTS OF OPERATIONS
Nine Months Ended September 30, 1997, vs. Nine Months Ended September 30,
1996
NET INCOME
Net income for the first nine months of 1997 was $62 million as compared to
$65 million for the first nine months of 1996. The $3 million decrease in
year-over-year net income primarily reflects lower net operating margins and
reduced income from asset-backed securitizations, partially offset by higher
earnings as a result of increased levels of on-balance-sheet receivables. The
third quarter of 1996 included a $3 million extraordinary, after-tax charge to
write-off unamortized bank fees in conjunction with the refinancing of the
Company's credit facilities in August 1996.
REVENUES
Case Credit reported total revenues of $201 million for the first nine
months of 1997 as compared to revenues of $186 million for the first nine
months of 1996. Finance income earned on retail notes and leases increased to
$75 million in the first nine months of 1997 as compared to $44 million in the
same period in 1996, primarily due to increased levels of on-balance-sheet
receivables. In addition, operating lease revenues increased $13 million in
the first nine months of 1997, reflecting the growth in Case Credit's
operating lease portfolio. These revenue increases were offset by decreases in
net gains on retail notes sold, as well as lower securitization and servicing
fee income. Case Credit continues to implement its asset-management strategy
of retaining a larger percentage of assets on balance sheet, as opposed to
selling those assets through asset-backed securitizations. Long term, the
Company believes this strategy will generate a more stable earnings
performance for Case Credit.
EXPENSES
Interest expense for the first nine months of 1997 was $72 million, up $19
million from the $53 million reported in the first nine months of 1996. The
increase in interest expense resulted from higher average debt levels during
the first nine months of 1997 as compared to the first nine months of 1996,
primarily due to the growth in Case Credit's on-balance-sheet receivables and
increased equipment on operating leases.
Operating expenses increased $10 million to a total of $38 million in the
first nine months of 1997 as compared to the first nine months of 1996. This
increase primarily resulted from $8 million of additional depreciation expense
for equipment on operating leases relating to Case Credit's larger operating
lease portfolio.
SERVICED PORTFOLIO
During the first nine months of 1997, Case Credit's serviced portfolio of
receivables increased 20% over the comparable period last year to a record
$4.9 billion. Gross receivables acquired in the first nine months of 1997 were
$2.3 billion, an increase of 21% versus the same period in 1996. During the
first nine months of 1997, limited-purpose business trusts organized by Case
Credit issued $1,706 million of asset-backed securities to outside investors.
Case Credit has sold $1,301 million of U.S. and Canadian retail notes to the
trusts in connection with these issuances. In the first nine months of 1996,
Case Credit issued asset-backed securities totaling $1,646 million, selling
$1,238 million of U.S. and Canadian retail notes to the trusts in connection
with these issuances. The proceeds from the sale of retail notes were used to
repay outstanding debt and to finance additional receivables.
LIQUIDITY AND CAPITAL RESOURCES
On October 16, 1997, the Company issued $150 million aggregate principal
amount of its 6.75% unsecured and unsubordinated notes due 2007 pursuant to a
$700 million shelf registration statement filed with the Securities and
Exchange Commission in September 1997. The net proceeds from the offering will
be used to fund Case Credit's growing portfolio of receivables and for other
corporate purposes, including the repayment of indebtedness.
9
<PAGE>
On October 17, 1997, Case Credit Australia Pty Ltd replaced its A$250 million
revolving credit facilities with A$1.0 billion in new credit facilities. These
new facilities are guaranteed by Case Credit Corporation and are comprised of a
A$400 million commercial paper program that is backed by a syndicated credit
facility, and a A$600 million medium-term note program. Under the terms of the
commercial paper program, the principal amount of the commercial paper
outstanding, combined with the amounts outstanding under the syndicated credit
facility, cannot exceed a total of A$400 million. These facilities support Case
Credit's strategy to leverage its financing options and broaden its access to
traditional capital markets.
OTHER MATTERS
During the third quarter of 1997, Case Credit announced a joint venture with
UFB LOCABAIL SA, a subsidiary of Compagnie Bancaire, to provide financing for
Case's European dealers and retail customers. The formation of this new
venture, Case Credit Europe S.A.S., establishes the first pan-European finance
organization to serve both the agricultural and construction equipment markets
in the region. Also during the third quarter, Case Credit and Cummins Engine
Company, Inc. ("Cummins") entered into an agreement under which Case Credit
will offer financing to all qualified North American retail purchasers, dealers
and manufacturers of industrial equipment powered by Cummins engines.
During the first nine months of 1997, Case Credit received $20 million of
additional capitalization from Case Corporation.
PART II--OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits.
A list of the exhibits included as part of this Form 10-Q is set forth in the
Index to Exhibits that immediately precedes such exhibits, which is
incorporated herein by reference.
(b) Reports on Form 8-K.
Case Credit Corporation did not file any reports on Form 8-K during the
quarter ended September 30, 1997.
10
<PAGE>
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934, THE
REGISTRANT HAS DULY CAUSED THIS REPORT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED THEREUNTO DULY AUTHORIZED.
CASE CREDIT CORPORATION
/s/ Robert A. Wegner
By __________________________________
Robert A. Wegner Vice President
and Chief Financial Officer
(Principal Financial Officer and
Authorized Signatory for Case
Credit Corporation)
Date: November 13, 1997
11
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT PAGE
NUMBER DESCRIPTION OF EXHIBIT NUMBERS
------- ---------------------- ----------
<C> <S> <C>
4(a) --Indenture between Case Credit Corporation and The
Bank of New York, dated as of October 1, 1997.
4(b) --6 3/4% Note due October 21, 2007 issued pursuant to
the Indenture between Case Credit Corporation and The
Bank of New York, dated October 1, 1997.
4(c) --Resolutions of the Board of Directors of Case Credit
Corporation authorizing the public offering of debt se-
curities of Case Credit Corporation in an aggregate
principal amount of up to $700,000,000.
4(d) --Actions of the Authorized Officers of Case Credit
Corporation authorizing the issuance of $150,000,000
aggregate principal amount of 6 3/4% Notes Due October
21, 1997.
4(e) --Officers' Certificate and Company Order of Case
Credit Corporation for the issuance of $150,000,000 ag-
gregate principal amount of 6 3/4% Notes Due October
21, 2007.
10(a) Second Amendment, dated as of August 25, 1997, to the
Revolving Credit and Guarantee Agreement, dated as of
August 23, 1996, among Case Credit Corporation, certain
foreign Subsidiaries from time to time parties thereto,
the Lenders parties thereto, the Co-Agents and Lead
Managers named therein, and The Chase Manhattan Bank,
as Administrative Agent.
10(b) Second Amendment, dated as of August 25, 1997, to the
Revolving Credit Agreement, dated as of August 23,
1996, among Case Credit Ltd., the Lenders parties
thereto, Canadian Imperial Bank of Commerce, as Co-
Agent, and The Bank of Nova Scotia, as Administrative
Agent.
10(c) --Deed of Guarantee and Negative Pledge, dated October
17, 1997, executed by Case Credit Corporation pursuant
to which Case Credit Corporation guarantees certain in-
debtedness of Case Credit Australia Pty Ltd.
10(d) --Bill Facility Agreement, dated October 17, 1997, be-
tween Case Credit Australia Pty Ltd, the lenders par-
ties thereto, and National Australia Bank Limited, as
Agent.
10(e) --Deed Poll, dated October 17, 1997, executed by Case
Credit Australia Pty Ltd, pursuant to which Case Credit
Australia Pty Ltd may from time to time issue medium-
term notes.
12 Computation of Ratio of Earnings to Fixed Charges.
27 Financial Data Schedule.
</TABLE>
12
<PAGE>
Exhibit 4(a)
================================================================================
CASE CREDIT CORPORATION,
Issuer
and
THE BANK OF NEW YORK
Trustee
----------
INDENTURE
----------
Dated as of October 1, 1997
Debt Securities
================================================================================
<PAGE>
Case Credit Corporation
Certain Sections of this Indenture relating to
Sections 3.10 through 3.18, inclusive, of the
Trust Indenture Act of 1939, as amended:
<TABLE>
<CAPTION>
Provision of
Trust Indenture Act
of 1939, as amended Indenture Section
- ------------------- -----------------
<S> <C>
(S) 310(a)(1)................................................ 6.9
(a)(2)................................................ 6.9
(a)(3)................................................ Not Applicable
(a)(4)................................................ Not Applicable
(b)................................................... 6.8, 6.10
(c)................................................... Not Applicable
(S) 311(a)................................................... 6.13
(b)................................................... 6.13
(c)................................................... Not Applicable
(S) 312(a)................................................... 7.1, 7.2(a)
(b)................................................... 7.2(b)
(c)................................................... 7.2(c)
(S) 313(a)................................................... 7.3(a)
(b)................................................... 7.3(a)
(c)................................................... 7.3(a)
(d)................................................... 7.3(b)
(S) 314(a)................................................... 7.4
(a)(4)................................................ 1.1, 10.4
(b)................................................... Not Applicable
(c)(1)................................................ 1.2
(c)(2)................................................ 1.2
(c)(3)................................................ Not Applicable
(d)................................................... Not Applicable
(e)................................................... 1.2
(f)................................................... 1.2
(S) 315(a)................................................... 6.1
(b)................................................... 6.2
(c)................................................... 6.1
(d)................................................... 6.1
(e)................................................... 5.14
(S) 316(a)................................................... 1.1
(a)(1)(A)............................................. 5.2, 5.12
(a)(1)(B)............................................. 5.13
(a)(2)................................................ Not Applicable
(b)................................................... 5.8
(c)................................................... 1.4(c)
(S) 317(a)(1)................................................ 5.3
(a)(2)................................................ 5.4
(b)................................................... 10.3
(S) 318(a)................................................... 1.7
</TABLE>
___________________________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
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ARTICLE I
Definitions and Other Provisions
of General Application
<S> <C>
Section 1.1 Definitions................................. 1
Act.................................................. 2
Affiliate............................................ 2
Authenticating Agent................................. 2
Board of Directors................................... 2
Board Resolution..................................... 2
Book-Entry Security.................................. 2
Business Day......................................... 2
Capital Lease Obligations............................ 2
Commission........................................... 3
Company.............................................. 3
"Company Request" or "Company Order"................. 3
Comparable Treasury Issue............................ 3
Comparable Treasury Price............................ 3
Consolidated Net Tangible Assets..................... 3
Corporate Trust Office............................... 3
corporation.......................................... 4
covenant defeasance.................................. 4
CUSIP................................................ 4
default.............................................. 4
Defaulted Interest................................... 4
defeasance........................................... 4
Depository........................................... 4
Event of Default..................................... 4
Funded Debt.......................................... 4
Holder............................................... 4
Indebtedness......................................... 4
Indenture............................................ 4
Independent Investment Banker........................ 5
</TABLE>
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<TABLE>
<CAPTION>
<S> <C>
Intangible Assets.................................... 5
interest............................................. 5
Interest Payment Date................................ 5
Liens................................................ 5
mandatory sinking fund payment....................... 5
Maturity............................................. 5
Notice of Default.................................... 5
Officers' Certificate................................ 5
Opinion of Counsel................................... 5
optional sinking fund payment........................ 6
Original Issue Discount Security..................... 6
Outstanding.......................................... 6
Paying Agent......................................... 7
Person............................................... 7
Place of Payment..................................... 7
Predecessor Security................................. 7
Receivables.......................................... 7
Redemption Date...................................... 7
Redemption Price..................................... 7
Reference Treasury Dealer............................ 7
Reference Treasury Dealer Quotations................. 7
Regular Record Date.................................. 8
Restricted Subsidiary................................ 8
Secured Funded Debt.................................. 8
Securities........................................... 8
Securitization Subsidiary............................ 8
Securitization Transaction........................... 8
"Security Register" and "Security Registrar"......... 8
Special Record Date.................................. 9
Stated Maturity...................................... 9
Subsidiary........................................... 9
Treasury Rate........................................ 9
Trust Indenture Act.................................. 9
Trustee.............................................. 9
U.S. Government Obligations.......................... 9
Vice President....................................... 9
Yield to Maturity.................................... 9
Section 1.2 Compliance Certificates and Opinions........ 10
</TABLE>
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of the Indenture.
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<TABLE>
<CAPTION>
<S> <C>
Section 1.3 Form of Documents Delivered to Trustee..................... 10
Section 1.4 Acts of Holders; Record Dates.............................. 11
Section 1.5 Notices, Etc. to Trustee and Company....................... 12
Section 1.6 Notice to Holders; Waiver.................................. 12
Section 1.7 Conflict with Trust Indenture Act.......................... 13
Section 1.8 Effect of Headings and Table of Contents................... 13
Section 1.9 Successors and Assigns..................................... 13
Section 1.10 Separability Clause........................................ 13
Section 1.11 Benefits of Indenture...................................... 13
Section 1.12 Governing Law.............................................. 13
Section 1.13 Legal Holidays............................................. 13
ARTICLE II
Security Forms
Section 2.1 Forms Generally............................................ 14
Section 2.2 Form of Face of Security................................... 14
Section 2.3 Form of Reverse of Security................................ 16
Section 2.4 Additional Provisions Required in Book-Entry Security...... 20
Section 2.5 Form of Trustee's Certificate of Authentication............ 21
ARTICLE III
The Securities
Section 3.1 Amount Unlimited; Issuable in Series....................... 22
Section 3.2 Denominations.............................................. 24
Section 3.3 Execution, Authentication, Delivery and Dating............. 24
Section 3.4 Temporary Securities....................................... 26
Section 3.5 Registration, Registration of Transfer and Exchange........ 26
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities........... 27
Section 3.7 Payment of Interest; Interest Rights Preserved............. 28
Section 3.8 Persons Deemed Owners...................................... 29
Section 3.9 Cancellation............................................... 30
Section 3.10 Computation of Interest.................................... 30
Section 3.11 CUSIP Numbers.............................................. 30
</TABLE>
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of the Indenture.
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<TABLE>
<CAPTION>
ARTICLE IV
Satisfaction and Discharge
<S> <C>
Section 4.1 Satisfaction and Discharge of Indenture...................... 30
Section 4.2 Application of Trust Money................................... 32
ARTICLE V
Remedies
Section 5.1 Events of Default............................................ 32
Section 5.2 Acceleration of Maturity; Rescission and Annulment........... 34
Section 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee.................................................... 35
Section 5.4 Trustee May File Proofs of Claim............................. 35
Section 5.5 Trustee May Enforce Claims Without Possession of Securities.. 36
Section 5.6 Application of Money Collected............................... 36
Section 5.7 Limitation on Suits.......................................... 37
Section 5.8 Unconditional Right of Holders to Receive Principal, Premium
and Interest................................................ 37
Section 5.9 Restoration of Rights and Remedies........................... 37
Section 5.10 Rights and Remedies Cumulative............................... 38
Section 5.11 Delay or Omission Not Waiver................................. 38
Section 5.12 Control by Holders........................................... 38
Section 5.13 Waiver of Past Defaults...................................... 38
Section 5.14 Undertaking for Costs........................................ 39
Section 5.15 Waiver of Stay or Extension Laws............................. 39
</TABLE>
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of the Indenture.
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<TABLE>
<CAPTION>
ARTICLE VI
The Trustee
<S> <C>
Section 6.1 Certain Duties and Responsibilities.......................... 39
Section 6.2 Notice of Defaults........................................... 40
Section 6.3 Certain Rights of Trustee.................................... 40
Section 6.4 Not Responsible for Recitals or Issuance of Securities....... 41
Section 6.5 May Hold Securities.......................................... 41
Section 6.6 Money Held in Trust.......................................... 41
Section 6.7 Compensation and Reimbursement............................... 42
Section 6.8 Disqualification; Conflicting Interests...................... 42
Section 6.9 Corporate Trustee Required; Eligibility...................... 43
Section 6.10 Resignation and Removal; Appointment of Successor............ 43
Section 6.11 Acceptance of Appointment by Successor....................... 45
Section 6.12 Merger, Conversion, Consolidation or Succession to Business.. 46
Section 6.13 Preferential Collection of Claims Against Company............ 46
Section 6.14 Appointment of Authenticating Agent.......................... 46
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
Section 7.1 Company to Furnish Trustee Names and Addresses of Holders.... 49
Section 7.2 Preservation of Information; Communications to Holders....... 49
Section 7.3 Reports by Trustee........................................... 49
Section 7.4 Reports by Company........................................... 50
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1 Company May Consolidate, Etc. Only on Certain Terms.......... 51
Section 8.2 Successor Substituted........................................ 52
</TABLE>
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<CAPTION>
ARTICLE IX
Supplemental Indentures
<S> <C>
Section 9.1 Supplemental Indentures Without Consent of Holders........... 52
Section 9.2 Supplemental Indentures with Consent of Holders.............. 53
Section 9.3 Execution Of Supplemental Indentures......................... 54
Section 9.4 Effect of Supplemental Indentures............................ 54
Section 9.5 Conformity with Trust Indenture Act.......................... 55
Section 9.6 Reference in Securities to Supplemental Indentures........... 55
ARTICLE X
Covenants
Section 10.1 Payment of Principal, Premium and Interest................... 55
Section 10.2 Maintenance of Office or Agency.............................. 55
Section 10.3 Money for Securities Payments to Be Held in Trust............ 56
Section 10.4 Statement by Officers as to Default.......................... 57
Section 10.5 Existence................................................... 57
Section 10.6 Restrictions on Secured Funded Debt.......................... 57
Section 10.7 Waiver of Certain Covenants.................................. 60
Section 10.8 Calculation of Original Issue Discount....................... 60
Section 10.9 Appointments to Fill Vacancies in Trustee's Office........... 60
ARTICLE XI
Redemption of Securities
Section 11.1 Applicability of Article..................................... 60
Section 11.2 Election to Redeem; Notice to Trustee........................ 60
Section 11.3 Selection by Trustee of Securities to Be Redeemed............ 61
Section 11.4 Notice of Redemption......................................... 61
Section 11.5 Deposit of Redemption Price.................................. 62
Section 11.6 Securities Payable on Redemption Date........................ 62
Section 11.7 Securities Redeemed in Part.................................. 63
</TABLE>
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<CAPTION>
ARTICLE XII
Sinking Funds
<S> <C>
Section 12.1 Applicability of Article..................................... 63
Section 12.2 Satisfaction of Sinking Fund Payments with Securities........ 63
Section 12.3 Redemption of Securities for Sinking Fund.................... 64
ARTICLE XIII
Defeasance and Covenant Defeasance
Section 13.1 Applicability of Article; Company's Option................... 64
to Effect Defeasance or Covenant Defeasance
Section 13.2 Defeasance and Discharge..................................... 64
Section 13.3 Covenant Defeasance.......................................... 65
Section 13.4 Conditions to Defeasance or Covenant Defeasance.............. 65
Section 13.5 Deposited Money and U.S. Government Obligations
to be Held in Trust; Other Miscellaneous Provisions........ 67
Section 13.6 Reinstatement................................................ 68
</TABLE>
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of the Indenture.
ix
<PAGE>
INDENTURE, dated as of October 1, 1997 between CASE CREDIT
CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware (herein, called the "Company"), having its principal office at
700 State Street, Racine, Wisconsin 53404, and The Bank of New York, a New York
banking corporation, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE I
Definitions and Other Provisions
of General Application
Section 1.1 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting
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principles" with respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally accepted at the date
of such computation; and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning
specified in Section 1.4.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book-Entry Security" means a Security in the form prescribed in
Section 2.4 evidencing all or part of a series of Securities, issued to the
Depository for such series or its nominee, and registered in the name of such
Depository or nominee.
"Business Day," when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Capital Lease Obligations" of either the Company or any Restricted
Subsidiary means the obligations of such Person to pay rent or other amounts
under any lease of (or other arrangement conveying the right to use) real
property, the term of which extends beyond 12 months, which obligations are
required to be classified and accounted for as a capital lease on a balance
sheet of such Person under generally accepted accounting principles (including
Statement No. 13 of Financial Accounting Standards Board) and, for the purposes
of this Indenture, the amount of such obligation shall be the capitalized amount
thereof, determined in accordance with generally accepted accounting principles
(including such Statement No. 13).
2
<PAGE>
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President,
its General Counsel or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Securities to be redeemed that would be utilized, at
the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Securities.
"Comparable Treasury Price" means with respect to any Redemption
Date, (i) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) on the
third business day preceding such Redemption Date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such business day, (A) the average
of the Reference Treasury Dealer Quotations for such Redemption Date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(B) if the Trustee obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such Quotations.
"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.
"Corporate Trust Office" means the principal office of the Trustee in
New York, New York at which at any particular time its corporate trust business
shall be administered, which currently is located at 101 Barclay Street, Floor
21 West, New York, New York 10286.
3
<PAGE>
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"covenant defeasance" has the meaning specified in Section 13.3.
"CUSIP" has the meaning specified in Section 3.11.
"default" has the meaning specified in Section 6.2.
"Defaulted Interest" has the meaning specified in Section 3.7.
"defeasance" has the meaning specified in Section 13.2.
"Depository" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Book-Entry
Securities, the Person designated as Depository for such series by the Company
pursuant to Section 3.1, initially The Depository Trust Company, its nominees
and their respective successors, which Person shall be a clearing agency
registered under the Securities Exchange Act of 1934, as amended.
"Event of Default" has the meaning specified in Section 5.1.
"Funded Debt" means (i) any indebtedness of the Company or a
Restricted Subsidiary maturing more than 12 months after the time of computation
thereof, (ii) 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), (iii) in the case of any Restricted
Subsidiary, all preferred stock of such Restricted Subsidiary, and (iv) all
Capital Lease Obligations of the Company or a Restricted Subsidiary.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" means, at any date, without duplication, (i) 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 (ii) Funded Debt,
except such obligations and other indebtedness of the Company or a Restricted
Subsidiary and Funded Debt, if any, incurred as a part of a Securitization
Transaction.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The
4
<PAGE>
term "Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 3.1.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Trustee after consultation with the Company.
"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:
(i) all trade names, trademarks, licenses, patents, copyrights, service marks,
goodwill and other like intangibles; (ii) organizational and development costs;
(iii) 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 (iv) unamortized debt discount
and expense, less unamortized premium.
"interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date," when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"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.
"mandatory sinking fund payment" has the meaning specified in Section
12.1.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" has the meaning specified in Section 5.1.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President, the General Counsel or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Company, and delivered to the Trustee. One of the officers signing an
Officers' Certificate given pursuant to Section 10.4 shall be the principal
executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
5
<PAGE>
"optional sinking fund payment" has the meaning specified in Section
12.1.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 5.2.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided, however, that, if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made;
(iii) Securities which have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company; and
(iv) Securities that have been defeased pursuant to Section 13.2;
provided, however, that 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 hereunder, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 5.2, (ii) the principal amount of a Security
denominated in one or more foreign currencies or currency units shall be the
U.S. dollar equivalent, determined in the manner provided as contemplated by
Section 3.1 on the date of original issuance of such Security, of the principal
amount (or, in the case of an Original Issue Discount Security, the U.S. dollar
equivalent on the date of original issuance of such Security of the amount
determined as provided in (i) above) of such Security, and (iii) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee actually knows to
be so owned shall be so disregarded. Securities so owned that have been pledged
in good faith may be regarded
6
<PAGE>
as Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 3.1.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"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.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Reference Treasury Dealer" means each of Merrill, Lynch, Pierce,
Fenner & Smith Incorporated, Credit Suisse First Boston Corporation and J.P.
Morgan Securities Inc., their respective successors and any other primary U.S.
Government securities dealer in New York (a "Primary Treasury Dealer") selected
by the Company pursuant to Section 3.1 in addition to, or in substitution for,
any of such firms; provided, however, that if any of the foregoing shall cease
to be a Primary Treasury Dealer, the Company shall substitute therefor another
Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage
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<PAGE>
of its principal amount) quoted in writing to the Trustee by such Treasury
Reference Dealer at 5:00 p.m. on the third Business Day preceding such
redemption date.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 3.1.
"Restricted Subsidiary" means each Subsidiary 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 hereof or hereafter created) of the Company
or of a Restricted Subsidiary.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securitization Subsidiary" means a Subsidiary (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 (i) is guaranteed
by the Company or any Restricted Subsidiary, or (ii) 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 (i) a Securitization Subsidiary or (ii) 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 Subsidiary, 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.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
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"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"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.
"Treasury Rate" means, with respect to any Redemption Date, the rate
per annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such Redemption Date.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that if the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"U.S. Government Obligations" has the meaning specified in Section
13.4.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Yield to Maturity" means the yield to maturity, calculated at the
time of issuance of a series of Securities or, if applicable, at the most recent
redetermination of interest on such series and calculated in accordance with
generally accepted financial practice.
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Section 1.2 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture. In the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, however, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or
10
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officers of the Company, stating that the information with respect to such
factual matters is in the possession of the Company unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.4 Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Securities of any series entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Company prior to the first
solicitation of a Holder of Securities of such series made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 7.1) prior to such first solicitation or vote, as the case
may be. With regard to any record date for action to be taken by the Holders of
one or more series of Securities, only the Holders of Securities of such series
on such date (or their duly designated proxies) shall be entitled to give or
take, or vote on, the relevant action.
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(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
Section 1.5 Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Trustee Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument, Attention: General Counsel or at any
other address previously furnished in writing to the Trustee by the
Company.
Section 1.6 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made as shall be satisfactory to the Trustee
shall constitute a sufficient notification for every purpose hereunder.
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Section 1.7 Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
Section 1.8 Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein, the reconciliation and tie
with certain provisions of the Trust Indenture Act and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.9 Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 1.10 Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.11 Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 1.12 Governing Law.
-------------
This Indenture and the Securities 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.
Section 1.13 Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of the Securities of any series which specifically
states that such provision shall apply in lieu of this Section)) payment of
interest or principal (and premium, if any) need not be made at such Place of
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Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity; provided, however,
that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be.
ARTICLE II
Security Forms
Section 2.1 Forms Generally.
---------------
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 3.3 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Section 2.2 Form of Face of Security.
-------------------------
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
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Case Credit Corporation
..........................
No. ......... $ ............
CUSIP No............
Case Credit Corporation, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to .............................., or
registered assigns, the principal sum of .................... Dollars on
......................... [if the Security is to bear interest prior to
Maturity, insert --, and to pay interest thereon from ......... or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on ........... and ............ in each year, commencing
................, at the rate of .....% per annum, until the principal hereof
is paid or made available for payment [if applicable, insert -- , and (to the
extent that the payment of such interest shall be legally enforceable) at the
rate of .......% per annum on any overdue principal and premium and on any
overdue installment of interest.] The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the ........... or .........
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert --
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of ........% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such default in payment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal that is not so paid on
demand shall bear interest at the rate of ........% per annum (to
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<PAGE>
the extent that the payment of such interest shall be legally enforceable),
which shall accrue from the date of such demand for payment to the date payment
of such interest has been made or duly provided for, and such interest shall
also be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in New York, New York, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts [if applicable, insert --;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
CASE CREDIT CORPORATION
Dated: By:
--------------------------- -------------------------------------
Attest:
..........................
Section 2.3 Form of Reverse of Security.
----------------------------
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of .............. (herein called the
"Indenture"), between the Company and The Bank of New York, as Trustee (herein
called the "Trustee," which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This
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Security is one of the series designated on the face hereof[, limited in
aggregate principal amount to $ .............].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail at any time [on or after
.........., ....], as a whole or in part, at the election of the Company, at a
Redemption Price equal to the greater of (i) 100% of their principal amount or
(ii) the sum of the present values of the remaining scheduled payments of
principal and interest thereon discounted to the date of redemption on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate plus __ basis points plus, in each case, accrued interest
thereon to the Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
(1) on ........ in any year commencing with the year ..... and ending with the
year ...... through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [on
or after ..........., ....], as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [on or before .........., ___%, and if redeemed]
during the 12-month period beginning ............... of the years indicated,
Year Redemption Price Year Redemption Price
- ---- ---------------- ---- ----------------
and thereafter at a Redemption Price equal to ...... % of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on .............. in
any year commencing with the year
17
<PAGE>
..... and ending with the year ..... through operation of the sinking fund for
this series at the Redemption Prices for redemption through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in the
table below, and (2) at any time [on or after ........], as a whole or in part,
at the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below: If redeemed during the
12-month period beginning ............. of the years indicated,
Redemption Price Redemption Price
for Redemption through for Redemption otherwise than
Year Operation of the Sinking Fund through Operation of the Sinking Fund
- ------ ----------------------------- -------------------------------------
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
..........., redeem any Securities of this series as contemplated by [Clause (2)
of] the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than .....% per annum.]
[The sinking fund for this series provides for the redemption on
.................. in each year beginning with the year ............... and
ending with the year ................ of [not less than $.......... and not more
than] $............. aggregate principal amount of Securities of this series
("mandatory sinking fund"). Securities of this series acquired or redeemed by
the Company otherwise than through [mandatory] sinking fund payments may be
credited against subsequent [mandatory] sinking fund payments otherwise required
to be made [in the inverse order in which they become due].]
[If the Security is subject to redemption, insert -- In the event of
redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the
18
<PAGE>
unredeemed portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.]
[If the Security is not an Original Issue Discount Security, insert --
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.]
[The Indenture contains provisions for defeasance at any time of [the
entire indebtedness of this Security or] certain restrictive covenants and
Events of Default with respect to this Security [, in each case] upon compliance
with certain conditions set forth therein.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where
19
<PAGE>
the principal of and any premium and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $.......... and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
Interest on this Security shall be computed on the basis of [a 360-day
year of twelve 30-day months][the actual number of days elapsed and a 360-day
year].
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
This Security 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.
Section 2.4 Additional Provisions Required in Book-Entry Security.
Any Book-Entry Security issued hereunder shall, in addition to the
provisions contained in Sections 2.2 and 2.3, bear a legend in substantially the
following form:
"This Security is a Book-Entry Security in a global form within the
meaning of the Indenture hereinafter referred to and is registered in the
name of a Depository or a nominee of a Depository. This global Security is
exchangeable for Securities registered in the name of a person other than
the Depository or its nominee only in the limited circumstances described
in the Indenture, and no transfer of this Security (other than a transfer
of this Security as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to
20
<PAGE>
the Depository or another nominee of the Depository) may be registered
except in such limited circumstances."
Section 2.5 Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Bank of New York,
As Trustee
By:________________________________
Authorized Signatory
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ARTICLE III
The Securities
Section 3.1 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 3.3,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series;
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.7 and except for any
Securities which, pursuant to Section 3.3, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall
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 Securities of the
series is payable;
(5) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method of calculating such rate or rates of
interest, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which any such interest shall be payable and the
Regular Record Date for any interest payable on any Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
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(8) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series 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 Securities of the series shall 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 Securities of the series shall be
issuable;
(10) the currency, currencies or currency units in which payment of
the principal of and any premium and interest on any Securities of the
series shall be payable if other than the currency of the United States of
America and the manner of determining the equivalent thereof in the
currency of the United States of America for purposes of the definition of
"Outstanding" in Section 1.1;
(11) if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined with reference
to an index or formula, the manner in which such amounts shall be
determined;
(12) if the principal of or any premium or interest on any Securities
of the series 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 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 Securities of such series as to which such election
is made shall be payable, and the periods within which and the terms and
conditions upon which such election is to be made;
(13) the application, if any, of Section 13.2 or 13.3 to the
Securities of the series;
(14) whether the Securities of the series shall be issued in whole or
in part in the form of one or more Book-Entry Securities and, in such case,
the Depository with respect to such Book-Entry Security or Securities and
the circumstances under which any Book-Entry Security may be registered for
transfer or exchange, or authenticated and delivered, in the name of a
Person other than such Depository or its nominee, if other than as set
forth in Section 3.5;
(15) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
5.2; and
(16) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
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All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 3.3) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 3.2 Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 3.1. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 3.3 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and make available for delivery such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 2.1 and 3.1, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 6.1) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or pursuant
to a Board Resolution as permitted by Section 2.1, that such form has been
established in conformity with the provisions of this Indenture;
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(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.1, that such terms have
been established in conformity with the provisions of this Indenture;
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles; and
(d) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities have been complied with.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the immediately
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.1 or the Company Order and
Opinion of Counsel otherwise required pursuant to such preceding paragraph at or
prior to the time of authentication of each Security of such series if such
documents are delivered at or prior to the authentication upon original issuance
of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 3.9, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
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Section 3.4 Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and make available for delivery in exchange therefor
one or more definitive Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor. Until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series and tenor.
Section 3.5 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series as
designated pursuant to Section 10.2, the Company shall execute, and the Trustee
shall authenticate and make available for delivery, in the name of the
designated transferee or transferees, one or more new Securities of the same
series, of any authorized denominations and of a like aggregate principal amount
and tenor.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, the Securities which the Holder
making the exchange is entitled to receive.
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All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.4, 9.6 or 11.7 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 11.3 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding the foregoing, any Book-Entry Security shall be
exchangeable pursuant to this Section 3.5 for Securities registered in the name
of Persons other than the Depository for such Security or its nominee only if
(i) such Depository notifies the Company that it is unwilling or unable to
continue as Depository for such Book-Entry Security or if at any time such
Depository ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, (ii) the Company executes and delivers to the
Trustee a Company Order that such Book-Entry Security shall be so exchangeable
or (iii) there shall have occurred and be continuing an Event of Default with
respect to the Securities. Any Book-Entry Security that is exchangeable
pursuant to the preceding sentence shall be exchangeable for Securities
registered in such names as such Depository shall direct.
Notwithstanding any other provision in this Indenture, a Book-Entry
Security may not be transferred except as a whole by the Depository with respect
to such Book-Entry Security to a nominee of such Depository or by a nominee of
such Depository to such Depository or another nominee of such Depository.
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same
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series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and make
available for delivery, in lieu of any such destroyed, lost or stolen Security,
a new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment by the holder of such mutilated, destroyed, lost or
stolen Security of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.7 Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 3.1 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to 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.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
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(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder of Securities of
such series at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 3.8 Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 3.7) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
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Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 3.9 Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of as directed by a Company
Order; provided, however, that the Trustee shall not be required to destroy such
canceled Securities.
Section 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided, however, that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company shall promptly notify
the Trustee of any change in the "CUSIP" numbers of the Securities.
ARTICLE IV
Satisfaction and Discharge
Section 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly
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provided for), and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.6 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 10.3) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal and any premium and
interest to the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Company to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the
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Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations
of the Trustee under Section 4.2 and the last paragraph of Section 10.3 shall
survive.
Section 4.2 Application of Trust Money.
Subject to provisions of the last paragraph of Section 10.3, all money
deposited with the Trustee pursuant to Section 4.1 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE V
Remedies
Section 5.1 Events of Default.
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund or other payment
required pursuant to the terms of a Security of that series as established
by or pursuant to a Board Resolution as permitted by Section 3.1(8), when
and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of series of Securities other than that
series, provided that for purposes of this clause (4) any covenant or
agreement on the part of the Company contained in this Indenture which is
not limited to a series of Securities shall be in respect of all series of
Securities), and continuance
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of such default or breach for a period of 60 days after there has been
given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holder or Holders of at least 25% in
principal amount of the Outstanding Securities of that series a written
notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(6) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property,
or the making by the Company of an assignment for the benefit of creditors,
or the admission by the Company in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by
the Company in furtherance of any such action; or
(7) 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 this Indenture), whether such
Indebtedness now exists or shall hereafter be created, which default or
defaults shall have resulted in such Indebtedness, in an aggregate
principal amount exceeding $60,000,000, 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
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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 and stating that such notice is a
"Notice of Default" hereunder; provided, however, that, subject to the
provisions of Sections 6.2 and 6.3, the Trustee shall not be deemed to have
knowledge of such default unless either (A) the Trustee shall have actual
knowledge of such default or (B) the Trustee shall have received written
notice thereof from the Company, from the holder of any such Indebtedness
or from any trustee under any such mortgage, indenture or other instrument;
or
(8) any event which constitutes an "Event of Default" under the terms
governing Securities of that series established as provided in Section 3.1.
Section 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holder or Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
any of the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified in
the terms thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and any interest thereon at the rate or rates
prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
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(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 5.4 Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
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proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.7.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 5.5 Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 5.6 Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.7;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal and any premium and interest,
respectively; and
THIRD: To the Company.
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Section 5.7 Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 5.8 Unconditional Right of Holders to Receive Principal, Premium and
----------------------------------------------------------------
Interest.
- --------
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 3.7)
any interest on such Security on the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 5.9 Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every
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such case, subject to any determination in such proceeding, the Company, the
Trustee and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been instituted.
Section 5.10 Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 3.6, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11 Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 5.12 Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall 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 such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 5.13 Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
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(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
IX cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 5.14 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of (including reasonable counsel fees and
expenses) such suit, and may assess costs against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act; provided that
neither this Section nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an assessment in any
suit instituted by the Company or the Trustee.
Section 5.15 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI
The Trustee
Section 6.1 Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the
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performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it. Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
Section 6.2 Notice of Defaults.
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of Securities of such series notice
of such default as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character specified in
Section 5.1(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
Section 6.3 Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or
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indemnity against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee shall not be liable for any action taken, suffered or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture.
Section 6.4 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 6.5 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
6.8 and 6.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 6.6 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
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Section 6.7 Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as
shall be agreed to in writing between the Company and the Trustee for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee for,
and to hold it harmless against, any and all loss, damage, claim, liability
or expense, including taxes (other than taxes based on the income of the
Trustee), incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 6.7, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.1(5) or Section 5.1(6), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
Section 6.8 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
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Section 6.9 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and has an office or
agency in New York, New York where Securities may be presented for payment and
for registration of transfer or exchange. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
Section 6.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
such Act of such Holders, the removed Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
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(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all securities, or (ii) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees. If the
instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the Trustee within 30 days after such removal of the
Trustee described in clauses (i) and (ii) of the immediately preceding sentence,
the removed Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 6.11, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series to all
Holders of Securities of such series in the manner provided in Section 1.6. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
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Section 6.11 Acceptance of Appointment by Successor.
---------------------------------------
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) and (b) of this Section, as the case may be.
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(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 6.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 6.13 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 6.14 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 3.6, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in
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accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Bank of New York,
As Trustee
By:___________________________
As Authenticating Agent
By:____________________________
Authorized Officer
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ARTICLE VII
Holders' Lists and Reports by Trustee and Company
Section 7.1 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than May 1 and November 1 in each year, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of the preceding April 1 or October 1, as the case
may be; and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 7.2 Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 7.3 Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
If required by (S) 313(a) of the Trust Indenture Act, the Trustee shall, within
60 days after each May 15 following the date of this Indenture deliver to
Holders a brief report, dated as of such May 15, which complies with the
provisions of such (S) 313(a).
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(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will promptly notify the Trustee when any Securities are listed on any stock
exchange.
Section 7.4 Reports by Company.
(a) The Company covenants and agrees to file with the Trustee, within
15 days after the Company is required to file the same with the Commission,
copies of the annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of such sections, then to
file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports, if any, which may
be required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from time to
time by the Commission, such additional information, documents and reports, if
any, with respect to compliance by the Company with the conditions and covenants
provided for in this Indenture as may be required from time to time by such
rules and regulations.
(c) The Company covenants and agrees to transmit by mail to all
Holders, as the names and addresses of such Holders appear upon the Security
Register, within 30 days after the filing thereof with the Trustee, such
summaries of information, documents and reports required to be filed by the
Company, if any, pursuant to subsections (a) and (b) of this Section 7.4 as may
be required by rules and regulations prescribed from time to time by the
Commission.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
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ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1 Company May Consolidate, Etc. Only on Certain Terms.
----------------------------------------------------
The Company shall 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 the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) if the Company shall consolidate with or merge into another Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or trust,
shall be organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and any premium and interest on all
the Securities and the performance or observance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or a Restricted
Subsidiary as a result of such transaction as having been incurred by the
Company or such Restricted Subsidiary at the time of such 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 happened and be
continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by this Indenture, the Company or
such successor Person, as the case may be, shall take 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, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
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Section 8.2 Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 8.1, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein; and in the event of any such
conveyance, transfer or lease, the Company (which term shall for this purpose
mean the Person named as the Company or any successor corporation which shall
have theretofore become such in the manner prescribed in Section 8.1) shall be
discharged from all liability under this Indenture and in respect of the
Securities and may be dissolved and liquidated.
ARTICLE IX
Supplemental Indentures
Section 9.1 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default with respect to all or any
series of Securities; or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
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(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided, that
any such addition, change or elimination (i) shall neither (A) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Security with respect to such provision or
(ii) shall become effective only when there is no such Security
Outstanding; or
(6) to secure the Securities pursuant to the requirements of Section
10.6 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 6.11(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided that such action pursuant to this clause (9)
shall not adversely affect the interests of the Holders of Securities of
any series in any material respect.
Section 9.2 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or the rate of accretion of
any Original Issue Discount Security or any premium payable upon the
redemption thereof, or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2, or change any
Place of Payment where, or the coin or currency in which, any Security or
any premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of
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any such payment on or after the Stated Maturity thereof (or, in the case
of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 5.8, Section
5.13 or Section 10.8, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby, provided, however, that this clause shall not be deemed
to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 10.8, or the deletion of this proviso, in accordance with the
requirements of Sections 6.11(b) and 9.1(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 9.3 Execution Of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 9.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
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Section 9.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 9.6 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
Covenants
Section 10.1 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
Section 10.2 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
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purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Section 10.3 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (i) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may
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at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in New York, New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 10.4 Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, then such Officers' Certificate shall specify all such defaults and
the nature and status thereof of which they may have knowledge.
Section 10.5 Existence.
Subject to Article VIII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
Section 10.6 Restrictions on Secured Funded Debt.
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 concurrently with the incurrence, issuance, assumption,
guaranty or creation of any such Secured Funded Debt that the Outstanding
Securities (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)
shall be secured equally and ratably with (or prior to) such Secured Funded
Debt, so long as such Secured Funded Debt shall be secured by a Lien, unless,
after giving effect thereto, the sum of the aggregate amount of all outstanding
Secured Funded Debt of the Company and its Restricted Subsidiaries would not
exceed an amount equal to the sum of (i) $20,000,000 and (ii) 15% of
Consolidated Net Tangible Assets of the Company and Restricted Subsidiaries;
provided, however, that this Section 10.6 shall not apply to, and there shall be
excluded from Secured Funded Debt in any computation under this Section 10.6,
Funded Debt secured by:
(1) Liens on real or physical property of any corporation existing at
the time such corporation becomes a Subsidiary;
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(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 hereafter acquired (or
constructed) 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 shall 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
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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 Subsidiaries, 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 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;
(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 $50,000,000), 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; or
(14) Liens outstanding on the date of this Indenture; or
(15) any extension, renewal, refunding or replacement (or successive
extensions, renewals, refundings or replacements), as a whole or in part,
of any Lien referred to in the foregoing clauses (1) to (14), inclusive;
provided, however, that (i) such extension, renewal, refunding or
replacement Lien shall be limited to all or a part of the same property
that secured the Lien extended, renewed, refunded or replaced (plus
improvements on such property) and (ii) the Funded Debt secured by such
Lien at such time is not increased.
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Section 10.7 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 10.6 with respect to the
Securities of any series if before the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
Section 10.8 Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year a written notice specifying the amount of original issue discount
(including daily rates and accrual periods) accrued on Outstanding Securities as
of the end of such year.
Section 10.9 Appointments to Fill Vacancies in Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in the
office of the Trustee, will appoint, in the manner provided in Section 6.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
ARTICLE XI
Redemption of Securities
Section 11.1 Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.1 for Securities of any series)
in accordance with this Article.
Section 11.2 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company, the Company shall, at least 60 days, in the event of a redemption
of less than all the Securities of any series, or at least 45 days, in the event
of a redemption of all the Securities of any series, prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date, of the principal amount of
Securities of such series to be redeemed and, if applicable, of the tenor of the
Securities to be redeemed. In
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the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
Section 11.3 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. If less than
all of the Securities of such series and of a specified tenor are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 11.4 Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall identify the Securities to be redeemed
(including, subject to Section 3.11, the CUSIP number) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
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(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption of
any Securities, the principal amounts) of the particular Securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 11.5 Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 11.6 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 3.1, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Regular or Special Record Dates according to
their terms and the provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
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Section 11.7 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and make available for delivery to the Holder of such
Security without service charge, a new Security or Securities of the same series
and of like tenor, of any authorized denomination as requested by such Holder,
in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered. If a Book-Entry
Security is so surrendered, such new Security so issued shall be a new Book-
Entry Security.
ARTICLE XII
Sinking Funds
Section 12.1 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 12.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 12.2 Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
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operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
Section 12.3 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 12.2 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 45 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 11.3 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 11.4. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 11.6 and 11.7.
ARTICLE XIII
Defeasance and Covenant Defeasance
Section 13.1 Applicability of Article; Company's Option
to Effect Defeasance or Covenant Defeasance.
If pursuant to Section 3.1 provision is made for either or both of (a)
defeasance of the Securities of a series under Section 13.2 or (b) covenant
defeasance of the Securities of a series under Section 13.3, then the provisions
of such Section or Sections, as the case may be, together with the other
provisions of this Article XIII, shall be applicable to the Securities of such
series, and the Company may at its option by a Board Resolution, at any time,
with respect to the Securities of such series, elect to have either Section 13.2
(if applicable) or Section 13.3 (if applicable) be applied to the Outstanding
Securities of such series upon compliance with the conditions set forth below in
this Article XIII.
Section 13.2 Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this
Section, the Company shall be deemed to have been discharged from its
obligations with respect to the Outstanding Securities of such series on and
after the date the conditions precedent set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series and to have satisfied
all its other obligations under such Securities and this Indenture insofar as
such Securities are concerned (and the Trustee, at
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the expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged thereunder: (A) the rights of Holders of Outstanding Securities of
such series to receive, solely from the trust fund described in Section 13.4 as
more fully set forth in such Section, payments of the principal of (and premium
and interest, if any, on) such Securities when such payments are due, (B) the
Company's obligations with respect to such Securities under Sections 3.4, 3.5,
3.6, 10.2 and 10.3 and such obligations as shall be ancillary thereto, (C) the
rights, powers, trusts, duties, immunities and other provisions in respect of
the Trustee hereunder or any Authenticating Agent and (D) this Article XIII.
Subject to compliance with this Article XIII, the Company may exercise its
option under this Section 13.2 notwithstanding the prior exercise of its option
under Section 13.3 with respect to the Securities of such series.
Section 13.3 Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this
Section, the Company shall be released from its obligations under Section 8.1
and Section 10.6 (and any covenant applicable to such Securities that are
determined pursuant to Section 3.1 to be subject to this provision) and the
occurrence of an event specified in Section 5.1(4) (with respect to any of
Sections 8.1 and 10.6) (and any other Event of Default applicable to such
Securities that are determined pursuant to Section 3.1 to be subject to this
provision) shall not be deemed to be an Event of Default with respect to the
Outstanding Securities of such series on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"). For this
purpose, such covenant defeasance means that, with respect to the Outstanding
Securities of such series, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section or clause whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or clause or by reason of any reference in
any such Section or clause to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
Section 13.4 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent to application of
either Section 13.2 or Section 13.3 to the Outstanding Securities of such
series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 6.9 who shall agree to comply with the provisions of this
Article XIII applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (A)
money in an amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment, money in an amount, or (C) a combination thereof,
sufficient, without reinvestment, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
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certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, the principal of (and premium and interest, if any on) the
Outstanding Securities of such series on the Maturity of such principal, or
premium and interest, if any. Before such a deposit the Company may make
arrangements satisfactory to the Trustee for the redemption of Securities
at a future date or dates in accordance with Article XI, which shall be
given effect in applying the foregoing. For this purpose, "U.S. Government
Obligations" means securities that are (x) direct obligations of the United
States of America for the payment of which its full faith and credit is
pledged or (y) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in section 3(a)
(2) of the Securities Act of 1933, as amended) as custodian with respect to
any such U.S. Government Obligation or a specific payment of principal of
or interest on any such U.S. Government Obligation held by such custodian
for the account of the holder of such depository receipt, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt
from any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depositary receipt.
(2) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to the Securities of
such series shall have occurred and be continuing (A) on the date of such
deposit or (B) insofar as subsections 5.1(5) and 5.1(6) are concerned, at
any time during the period ending on the 121st day after the date of such
deposit or, if longer, ending on the day following the expiration of the
longest preference period applicable to the Company in respect of such
deposit (it being understood that the condition in this condition shall not
be deemed satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not (A) cause the
Trustee for the Securities of such series to have a conflicting interest as
defined in Section 6.8 or for purposes of the Trust Indenture Act with
respect to any securities of the Company or (B) result in the trust arising
from such deposit to constitute, unless it is qualified as, a regulated
investment company under the Investment Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a party or by
which it is bound.
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(5) In the case of an election under Section 13.2, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such defeasance had not occurred.
(6) In the case of an election under Section 13.3, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
covenant defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(7) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may
be imposed on the Company in connection therewith pursuant to Section 3.1.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 13.2
or the covenant defeasance under Section 13.3 (as the case may be) have
been complied with.
Section 13.5 Deposited Money and U.S. Government Obligations
to be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.3, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee -- collectively, for purposes of
this Section 13.5, the "Trustee") pursuant to Section 13.4 in respect of the
Outstanding Securities of such series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent (but not
including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the money or U.S. Government
Obligations deposited pursuant to Section 13.4 or the principal and interest
received in respect thereof.
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Anything herein to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or U.S. Government Obligations held by it as provided in Section 13.4 which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance.
Section 13.6 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 13.2 or 13.3 by reason of any order or judgment or any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under the Securities of such
series shall be revived and reinstated as though no deposit had occurred
pursuant to this Article XIII until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 13.2 or 13.3;
provided, however, that if the Company makes any payment of principal of (and
premium, if any) or interest on any such Security following the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or
the Paying Agent.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
CASE CREDIT CORPORATION
(Seal)
By /s/ ROBERT A. WEGNER
---------------------
Name: Robert A. Wegner
Title: Vice President and
Chief Financial Officer
Attest:
/s/ DAWN M. BECK
- -------------------------
THE BANK OF NEW YORK, as Trustee
(Seal)
By /s/ MARY LAGUMINA
-----------------------------
Attest:
- --------------------
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STATE OF WISCONSIN )
) ss.:
COUNTY OF RACINE )
On the 17th day of October, 1997, before me personally came Robert A.
Wegner, to me known, who, being by me duly sworn, did depose and say that he is
the Vice President and Chief Financial Officer of Case Credit Corporation, one
of the corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
/s/ STACY HUNT
-----------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 17th day of October, 1997, before me personally came Mary LaGumina,
to me known, who, being by me duly sworn, did depose and say that she is
Assistant Vice President of The Bank of New York, one of the corporations
described in and which executed the foregoing instrument; that she knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation, and that she signed her name thereto by like authority.
/s/ TIMOTHY J. SHEA
-----------------------------
<PAGE>
Exhibit 4(b)
CASE CREDIT CORPORATION
6-3/4% Note Due 2007
No. 1001 $150,000,000
CUSIP No. 147433ACO
This Security is a Book-Entry Security in a global form within the
meaning of the Indenture hereinafter referred to and is registered in the name
of the Depository or a nominee of a Depository. This global Security is
exchangeable for Securities registered in the name of a Person other than the
Depository or its nominee only in the limited circumstances described in the
Indenture, and no transfer of this Security (other than a transfer of this
Security as a whole by the Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee of the
Depository) may be registered except in such limited circumstances.
Unless this Security is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the issuer or
its agent for registration of transfer, exchange or payment, and any Security
issued upon registration of transfer of, or in exchange for, or in lieu of, this
Security is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
<PAGE>
CASE CREDIT CORPORATION
CASE CREDIT CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to Cede & Co., as nominee for DTC, or
registered assigns, the principal sum of One Hundred Fifty Million Dollars
($150,000,000) on October 21, 2007, and to pay interest thereon from October 21,
1997 or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semi-annually on April 21 and October 21 in each
year, commencing April 21, 1998, at the rate of 6:% per annum, until the
principal hereof is paid or made available for payment. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be April 7 or October
7 (whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture.
Payment of the principal (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in New York, New York, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to herein by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of October 1, 1997 (herein called the
"Indenture"), between the Company and The Bank of New York, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
<PAGE>
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $150,000,000.
The Securities of this series will be redeemable in whole or in part
at any time at the option of the Company at a redemption price (the "Redemption
Price") equal to the greater of (i) 100% of the principal amount of such
Securities, plus accrued but unpaid interest thereon to the date of redemption
(the ARedemption Date@) and (ii) the sum of the present values of the remaining
scheduled payments of principal and interest thereon discounted to the
Redemption Date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate plus 15 basis points, plus accrued
but unpaid interest thereon to the Redemption Date. If a Redemption Date does
not fall on an interest payment date, then, with respect to the interest payment
immediately succeeding the Redemption Date, only the unaccrued portion of such
interest payment as of the Redemption Date shall be included in any present
value calculation pursuant to clause (ii).
"Treasury Rate" means, with respect to any Redemption Date, the rate
per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Securities of this series to
be redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term
of such Securities. "Independent Investment Banker" means one of the
Reference Treasury Dealers appointed by the Trustee after consultation
with the Company.
"Comparable Treasury Price" means, with respect to any Redemption
Date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its
principal amount) on the third Business Day preceding such Redemption
Date, as set forth in the daily statistical release (or any successor
release) published by
<PAGE>
the Federal Reserve Bank of New York and designated "Composite 3:30
p.m. Quotations for U.S. Government Securities" or (ii) if such
release (or any successor release) is not published or does not
contain such prices on such Business Day, (a) the average of the
Reference Treasury Dealer Quotations for such Redemption Date, after
excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (b) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such
Reference Treasury Dealer Quotations. "Reference Treasury Dealer
Quotations" means, with respect to each Reference Treasury Dealer and
any Redemption Date, the average, as determined by the Trustee, of the
bid and asked prices for the Comparable Treasury Issue (expressed in
each case as a percentage of its principal amount) quoted in writing
to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding such Redemption Date.
"Reference Treasury Dealer" means each of Merrill Lynch, Pierce,
Fenner & Smith Incorporated and NationsBanc Montgomery Securities,
Inc., their respective successors and any other primary U.S.
Government securities dealer in New York City (a "Primary Treasury
Dealer") selected by the Company pursuant to Section 3.1 of the
Indenture in addition to, or in substitution for, any of such firms;
provided, however, that if any of the foregoing shall cease to be a
Primary Treasury Dealer, the Company shall substitute therefor another
Primary Treasury Dealer.
Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each holder of the Securities of this
series to be redeemed.
Unless the Company defaults in payment of the Redemption Price, on and
after the Redemption Date interest will cease to accrue on the Securities of
this series or portions thereof called for redemption.
The Securities of this series shall not provide for a sinking fund.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security or certain restrictive covenants and Events
of Default with respect to this Security, in each case upon compliance with
certain conditions set forth therein.
<PAGE>
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum
<PAGE>
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
Interest on this Security shall be computed on the basis of a 360-day
year of twelve 30-day months.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
This Security 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.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: October 21, 1997
(seal) CASE CREDIT CORPORATION
By: /s/ ROBERT A. WEGNER
-------------------------------
Name: Robert A. Wegner
Title: Vice President and Chief
Financial Officer
Attest:
By: /s/ DAWN M. BECK
------------------------------
Name: Dawn M. Beck
Its: Assistant Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THE BANK OF NEW YORK,
as Trustee, certifies that this is one of the
Securities referred to in the within-mentioned
Indenture.
Dated: October 21, 1997
By: /s/ MARY LAGUMINA
------------------------------
Authorized Signatory
<PAGE>
Exhibit 4(c)
CASE CREDIT CORPORATION
Consent of Directors
--------------------
Pursuant to Section 141(f) of the
---------------------------------
General Corporation Law of the State of Delaware
------------------------------------------------
The undersigned, being all of the Directors of CASE CREDIT CORPORATION, a
Delaware corporation (the "Company"), pursuant to Section 141(f) of the General
Corporation Law of the State of Delaware, DO HEREBY CONSENT to the adoption of,
and DO HEREBY ADOPT, the following resolutions:
SHELF REGISTRATION OF
UP TO $700 MILLION OF DEBT SECURITIES
WHEREAS, it may be advisable and in the best interests of the Company to
effect public offering(s) of debt securities of, or guaranteed by, the Company
in an aggregate principal amount resulting in gross proceeds to the Company of
up to a maximum of $700,000,000 on terms to be determined as hereafter provided;
and
WHEREAS, on December 18, 1995, the Board of Directors of the Company
adopted resolutions (the "1995 Resolutions") authorizing the filing of a
Registration Statement on Form S-3 (Registration Statement No. 33-80755) (the
"1995 Registration Statement") for the issuance of up to a maximum of
$300,000,000 of debt securities, and the Company currently has $100,000,000
remaining available for issuance under such registration;
NOW, THEREFORE, BE IT RESOLVED as follows:
A. GENERAL AUTHORIZATION
RESOLVED, that the Company is hereby authorized: (a) to effect public
offering(s) of debt securities of, or guaranteed by, the Company in an aggregate
principal amount resulting in gross proceeds to the Company of up to
$700,000,000 on terms established in accordance with these resolutions, which
debt securities may be denominated in foreign currencies or foreign currency
units or issued at original issue discount and, to the extent issued at original
issue discount or denominated in, purchased for or payable in foreign currencies
or foreign currency units, shall be that principal amount as may result in the
initial offering prices to the public aggregating up to $700,000,000 (determined
in the case of foreign currencies or foreign currency units by reference to the
equivalent in United States dollars at the time of offering); (b) to issue one
or more series of Debentures, Notes and other evidences of indebtedness to
evidence the indebtedness authorized by or pursuant to these resolutions having
terms established in accordance with these resolutions (and
<PAGE>
all Debentures, Notes and other evidences of indebtedness which shall actually
be issued or guaranteed by the Company pursuant to such authorization are herein
collectively called the "Debt Securities"); and (c) to enter into an indenture
and fiscal and paying agency agreements governing the Debt Securities (and any
supplement thereto) having terms established in accordance with these
resolutions (and such indenture and any such fiscal or paying agency agreements
(and any supplement thereto) governing the Debt Securities into which the
Company shall actually enter are herein collectively called the "Indenture").
B. TRANSACTION TERMS
RESOLVED, that Theodore R. French, the Chairman of the Board of the
Company, Kenneth R. Gangl, the President and Chief Executive Officer of the
Company, and Robert A. Wegner, the Vice President and Chief Financial Officer of
the Company (each of such officers being an "Authorized Officer"), are each
hereby authorized to determine: (a) the terms of the Indenture and the bank or
trust company which shall serve as trustee under the Indenture; (b) the entity
which shall serve as paying agent under the Indenture; (c) the terms of each
series of Debt Securities to be issued by the Company under the Indenture
(including but not limited to the aggregate principal amount of debt to be
represented by those Debt Securities, the rate at which interest shall accrue on
those Debt Securities (including but not limited to any default rate, or, if
Debt Securities are issued with original issue discount, the rate of accretion
thereon), the time(s) at which payment(s) of principal shall become due on those
Debt Securities and the amount of each payment, the dates on which interest on
the Debt Securities is to be paid, the extent of the Company's right to make
prepayments of amounts owed on those Debt Securities and the amount of the
premium (if any) which may be payable in connection with any such prepayment, or
to extend the maturity thereof); (d) whether the Company shall enter into any
supplement to the Indenture (including but not limited to any supplement
establishing the terms of any series of Debt Securities) and the terms of any
such supplement; (e) the price at which the Debt Securities shall be sold; (f)
if other than United States dollars, any currency or currency unit in which the
securities are to be denominated, or which is to be received in payment or in
which principal or interest, if any, is to be payable; (g) all other terms
governing the sale of the Debt Securities (including whether and to what extent
the Debt Securities shall be sold under firm commitment underwriting
arrangements, sold directly to investment bankers for subsequent public sale,
sold pursuant to best efforts arrangements, sold in private placement, sold
through agents, sold in the U.S. market or sold in the Euromarket or any other
overseas securities market); (h) in connection with any firm commitment
underwriting, the underwriters to be utilized, the underwriting discount and
other fees applicable to such underwriting, the indemnification and contribution
arrangements to be made by the Company in connection with such underwriting and
all other terms governing such underwriting; (i) in connection with any medium
term note program, the agents to be utilized, the agents' discounts or
commissions, the indemnification and contribution arrangements to be made by the
Company in connection with such program and all other terms governing such
program; (j) the exchange or exchanges (if any) on which the Debt Securities
shall be listed and the terms of any such listing; (k) the terms upon which the
Debt Securities may be registered, qualified or otherwise cleared under the
Federal and state securities laws; (l) whether the Debt Securities shall be
senior or subordinated to other debt of the Company; (m) whether the Debt
-2-
<PAGE>
Securities are to be in definitive or book entry form and, if the latter, the
depository with respect to the Debt Securities and (n) any other actions which
the Company may take relating to the Debt Securities;
RESOLVED, that the yield to maturity of any issue of Debt Securities
authorized by any of the Authorized Officers shall (i) in the case of Debt
Securities having a fixed interest rate, not exceed 350 basis points above the
yield to maturity on debt issued by the United States Treasury having a
comparable maturity (provided, however, that in selecting debt of the United
States Treasury with a comparable maturity for purposes of making this
determination, if more than one issue of the United States Treasury has a
comparable maturity date, the issue whose coupon rate is nearest its yield to
maturity shall be the issue selected), or (ii) in the case of Debt Securities
having a floating interest rate, on the basis of the initial interest rate
established, not exceed 150 basis points above the LIBOR rate maturing on
periodic dates equal or substantially comparable to the periods for which such
rate is established (in making the foregoing determinations pursuant to clause
(i) or (ii) above, such Authorized Officers may rely upon quotations of debt
issued by the United States Treasury furnished to it by such persons as they may
elect in their sole judgment and all determinations made by such Authorized
Officers as to the terms of the Debt Securities being issued in accordance with
this resolution shall be final and conclusive in all respects and binding on the
Company);
C. IMPLEMENTATION ACTIONS
RESOLVED, that any officer of the Company is hereby authorized to cause the
Company to take any action which such officer shall deem to have been authorized
in or pursuant to these resolutions (which are herein collectively called
"Implementing Actions") including but not limited to: (a) the filing with the
Securities and Exchange Commission (the "Commission") of a Registration
Statement under the Securities Act of 1933, as amended, and such pre-effective
and post-effective amendments to such Registration Statement and the 1995
Registration Statement as such officer may deem appropriate and, including after
the effective date of the Registration Statement, any supplements to the
prospectus filed as part of the Registration Statement and the 1995 Registration
Statement which such officer may deem necessary or appropriate; (b) the
execution and filing with the Commission of an application for the registration
of the Debt Securities under the Securities under the Securities Exchange Act of
1934, as amended, if necessary, and all additional instruments and documents
which may be necessary to effectuate such registration; (c) the execution and
filing of a Listing Application for the listing of the Debt Securities on any
stock exchange on which such officer deems such Debt Securities should be listed
and any related Indemnity Agreement or other documentation which such officer
may deem desirable and the appearance before the Committee on Stock Lists (or
other similar body) of any such exchange, and such other acts as such officer
may deem necessary to conform with the requirements for listing the Debt
Securities on any such exchange; (d) the qualification of the Indenture under
the Trust Indenture Act of 1939, as amended; (e) the execution of letters of
representation or other submissions to a depository with respect to book entry
securities; and (f) the execution and filing with the appropriate state agencies
of all requisite instruments, records and documents, including but not limited
to applications, reports, surety bonds, irrevocable consents and appointments of
attorneys for service of process and any
-3-
<PAGE>
other action which such officer shall deem desirable to comply with the
applicable laws of any state or other jurisdiction of the United States of
America governing the qualification or registration for sale of all or part of
the Debt Securities;
RESOLVED, that each officer and director of the Company who may be required
to execute such Registration Statements or any amendments thereto is hereby
authorized to execute a Power of Attorney appointing Theodore R. French, Kenneth
R. Gangl and Robert A. Wegner, and each of them severally, his true and lawful
attorney to execute in his name, place and stead, in his capacity as director or
officer, or both as the case may be such Registration Statements, and any and
all amendments and post effective amendments thereto, and all instruments
necessary or incidental in connection therewith and to file the same with the
Commission. Such attorney shall have power to act hereunder and shall have full
power and authority to do and perform in the name and on behalf of each of such
directors or officers, or both as the case may be, every act whatsoever
requisite or necessary to be done in the premises, which each of such officers
or directors, or both, might or could do in person;
D. STATES SECURITIES REGISTRATION
RESOLVED, that any officer of the Company is hereby authorized to take any
and all action which such officer may deem necessary or appropriate in order to
effect the registration or qualification of part or all of the Debt Securities
for offer and sale under the securities or Blue Sky laws of those states and
other jurisdictions in which such officer determines such registration or
qualification to be advisable, and in connection therewith to execute,
acknowledge, verify, deliver, file and publish all such applications, reports,
issuer's covenants, resolutions, consents to service of process and other papers
and instruments as may be required under such laws, and to take any and all
further action which such officer may deem necessary or appropriate in order to
maintain any such registration or qualification for as long as such officer
deems it to be in the best interest of the Company; provided, however, that if
application is made in any state or jurisdiction that requires a resolution of
the Board of Directors as an exhibit to the application and such state or
jurisdiction does not recognize the form of resolution immediately preceding,
the Board of Directors hereby adopts the form of any resolution required by such
state or jurisdiction, if such officer is of the opinion that the adoption of
such resolution is necessary or advisable and evidences such opinion by
instructing the Secretary or any Assistant Secretary of the Company to attach as
an appendix to these resolutions a copy of such resolution, which shall
thereupon be deemed to have been adopted by the Board of Directors with the same
force and effect as if presented in such form for the approval of the Board of
Directors, and the Secretary or any Assistant Secretary of the Company is
empowered and authorized to certify to any such state or jurisdiction that any
such form of resolution has been adopted by this resolution; and provided,
further, that the following resolution is hereby adopted with respect to those
jurisdictions which have approved its use;
"RESOLVED, that it is desirable and in the best interest of the Company
that its securities be qualified or registered for sale in various states; that
the President or any Vice President and the Secretary or any Assistant Secretary
hereby are authorized to determine the states in which
-4-
<PAGE>
appropriate action shall be taken to qualify or register for sale all or such
part of the securities of the Company as said officers may deem advisable; that
said officers are hereby authorized to perform on behalf of the Company any and
all such acts as they may deem necessary or advisable in order to comply with
the applicable laws of any such states, and in connection therewith to execute
and file all requisite papers and documents, including, but not limited to
applications, reports, surety bonds, irrevocable consents and appointments of
attorneys for service of process; and the execution by such officers of any such
paper or documents or the doing by them of any act in connection with the
foregoing matters shall conclusively establish their authority therefor from the
Company and the approval and ratification by the Company of the papers and
documents so executed and the action so taken;"
E. PRINCIPAL AMOUNT LIMITATION
RESOLVED, that the 1995 Resolutions are hereby rescinded; provided,
however, that such rescission shall not affect any action, including the
registration of any debt securities, taken under the 1995 Resolutions prior to
their rescission or required to be taken in the future as a result of the
issuance of such securities thereunder; and provided further, that such
rescission shall not affect the ability of the Company to amend or supplement
any registration statements, including the 1995 Registration Statement, filed
with respect to such securities and to benefit from any registration fees paid
to the Commission or any state securities commission in connection with any such
prior registration statements;
F. DOCUMENTATION
RESOLVED, that any Authorized Officer is hereby authorized to execute and
deliver on behalf of the Company any agreement, Debt Securities, Registration
Statement, other governmental filings or other documents of any kind which such
officer deems necessary or desirable in connection with any Implementing Action,
including but not limited to: (a) the Indenture; (b) any supplement to the
Indenture; (c) the Debt Securities (the execution of which may be by means of
facsimile signature); (d) any Underwriting Agreement and any related pricing
agreement, delayed delivery agreement or other documentation on substantially
the terms approved by any Authorized Officer as provided in the foregoing
resolutions; and (e) any Distribution Agreement and any related Terms Agreement.
Any agreement or other document which shall be executed and delivered on behalf
of the Company by any Authorized Officer of the Company relating in any way to
any action which is authorized in or could be authorized pursuant to these
resolutions constitutes conclusive evidence that such execution and delivery was
authorized in or pursuant to these resolutions and upon such execution and
delivery, such agreement or document shall become binding upon the Company in
accordance with its terms; and
-5-
<PAGE>
G. ADDITIONAL CONSENTS
RESOLVED, that this Board of Directors hereby adopts any additional
resolutions which may be requested by any governmental authority, stock exchange
or any other person which any Authorized Officer believes necessary or desirable
to accomplish any Implementing Action. The Secretary or any Assistant Secretary
of the Company is hereby authorized to certify that any such resolution has been
duly adopted by the Board of Directors of the Company.
-6-
<PAGE>
The Secretary of the Company is hereby directed to file a signed copy of
this consent in the minute book of the Company.
Dated: September 15, 1997
/s/ KENNETH R. GANGL
--------------------------------------------
Kenneth R. Gangl
/s/ JEAN-PIERRE ROSSO
---------------------------------------------
Jean-Pierre Rosso
/s/ THEODORE R. FRENCH
------------------------------------------
Theodore R. French
-7-
<PAGE>
Exhibit 4(d)
CASE CREDIT CORPORATION
ACTIONS OF THE AUTHORIZED OFFICERS
Pursuant to the authority granted by the Board of Directors of Case Credit
Corporation (the "Company") in its September 15, 1997 resolutions, the
undersigned agree as follows:
1. The Company shall issue $150,000,000 aggregate principal amount of
the Company's 6-3/4% Notes Due October 21, 2007 (the "Notes").
2. The Company shall issue and sell Notes to Merrill Lynch, Pierce,
Fenner & Smith Incorporated and NationsBanc Montgomery Securities, Inc.
(collectively, the "Underwriters") pursuant to an Underwriting Agreement
dated October 16, 1997, and a Terms Agreement, dated October 16, 1997
("Terms Agreement"), among the Company and the Underwriters, upon the terms
and conditions set forth therein, to be issued under and in accordance with
an Indenture, dated as of October 1, 1997 between the Company and The Bank
of New York, as Trustee ("Trustee"), relating to the Company's Notes (the
"Indenture").
3. In addition to the other terms provided in the Indenture with
respect to securities issued thereunder, all as more particularly described
in the Terms Agreement, the Prospectus and the Prospectus Supplement
relating to the Notes and the form of Note referred to below, the Notes
shall contain the following terms:
(a) The Notes shall be entitled "6-3/4% Notes Due October 21, 2007";
(b) Subject to the terms of the Indenture, the Notes shall be limited
in aggregate principal amount to $150,000,000;
(c) Interest shall be payable to the persons in whose names the Notes
are registered at the close of business on the applicable Regular
Record Date (as defined below);
(d) The principal of the Notes is payable on October 21, 2007;
(e) The Notes shall bear interest at the rate of 6-3/4 per annum
beginning October 21, 1997. Subject to the terms of the
Indenture, interest on the Notes will be computed on the basis of
a 360-day year of
<PAGE>
twelve 30-day months and will be payable semi-annually on the
21st day of April and October of each year (each an "Interest
Payment Date"), commencing on April 21, 1998. Interest shall be
paid to persons in whose names the Notes (or any predecessor
Notes) are registered at the close of business on the April 7 or
October 7, as the case may be, next preceding the Interest
Payment Date (each a "Regular Record Date");
(f) Payment of the principal of, premium, if any, and interest on the
Notes will be made at the office or agency of the Company
maintained for that purpose in New York, New York;
(g) The Notes will be redeemable in whole or in part at any time at
the option of the Company at a redemption price (the "Redemption
Price") equal to the greater of: (i) 100% of the principal amount
of such Notes, plus accrued but unpaid interest thereon to the
date of redemption (the ARedemption Date@) and (ii) the sum of
the present values of the remaining scheduled payments of
principal and interest thereon discounted to the Redemption Date
on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate plus 15 basis points,
plus accrued but unpaid interest thereon to the Redemption Date.
If a Redemption Date does not fall on an interest payment date,
then, with respect to the interest payment immediately succeeding
the Redemption Date, only the unaccrued portion of such interest
payment as of the Redemption Date shall be included in any
present value calculation pursuant to clause (ii).
"Treasury Rate" means, with respect to any Redemption Date, the
rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price for
the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such
Redemption Date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term of the Notes to be
redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the
remaining
<PAGE>
term of such Notes. "Independent Investment Banker" means one of
the Reference Treasury Dealers appointed by the Trustee after
consultation with the Company.
"Comparable Treasury Price" means, with respect to any Redemption
Date, (i) the average of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) on the third Business Day preceding such
Redemption Date, as set forth in the daily statistical release
(or any successor release) published by the Federal Reserve Bank
of New York and designated "Composite 3:30 p.m. Quotations for
U.S. Government Securities" or (ii) if such release (or any
successor release) is not published or does not contain such
prices on such Business Day, (a) the average of the Reference
Treasury Dealer Quotations for such Redemption Date, after
excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (b) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such
Reference Treasury Dealer Quotations. "Reference Treasury Dealer
Quotations" means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference
Treasury Dealer at 5:00 p.m. on the third Business Day preceding
such Redemption Date.
"Reference Treasury Dealer" means each of Merrill Lynch, Pierce,
Fenner & Smith Incorporated and NationsBanc Montgomery
Securities, Inc., their respective successors and any other
primary U.S. Government securities dealer in New York (a "Primary
Treasury Dealer") selected by the Company pursuant to Section 3.1
in addition to, or in substitution for, any of such firms;
provided, however, that if any of the foregoing shall cease to be
a Primary Treasury Dealer, the Company shall substitute therefor
another Primary Treasury Dealer.
Notice of any redemption will be mailed at least 30 days but not
more than 60 days before the Redemption Date to each holder of
the Notes to be redeemed.
<PAGE>
Unless the Company defaults in payment of the Redemption Price,
on and after the Redemption Date interest will cease to accrue on
the Notes or portions thereof called for redemption;
(h) The Notes shall not provide for any sinking fund;
(i) The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof;
(j) The payment of the principal of, premium, if any, and interest on
the Notes shall be made in such coin or currency of the United
States of America as at the time of payment is legal tender for
payment of public and private debts;
(k) The payment of principal of, premium, if any, and interest on the
Notes shall not be determined with reference to an index or
formula (except as described in clause (g));
(l) There shall be no optional currency or currency unit in which the
payment of principal of, premium, if any, and interest on the
Notes shall be payable;
(m) Both Section 13.2 and Section 13.3 of the Indenture shall apply
to the Notes;
(n) The Notes shall be in the form of Book Entry Securities as set
forth in Section 3.5 of the Indenture;
(o) The principal amount of the Notes shall be payable upon
declaration of acceleration pursuant to Section 5.2 of the
Indenture;
(p) Settlement for the Notes will be made by the Underwriters in
immediately available funds and all payment of principal and
interest on the Notes will be made by the Company in immediately
available funds; the Notes will trade in the Depository Trust
Company's Same-Day Funds Settlement System until maturity, and
secondary market trading activity in the Notes will therefore
settle in immediately available funds; and
(q) The other terms and conditions of the Notes shall be
substantially as set forth in the Indenture and in the Prospectus
and the Prospectus Supplement relating to the Notes.
<PAGE>
4. The form of the Notes shall be substantially as attached hereto as
Exhibit A.
5. The price at which the Notes shall be sold by the Company to the
Underwriters pursuant to the Terms Agreement shall be 99.264% of the principal
amount thereof, plus accrued interest, if any, from October 21, 1997 to the time
of delivery.
6. The Notes initially will be offered to the public by the Underwriters at
99.914% of the principal amount thereof, plus accrued interest, if any, from
October 21, 1997 to the time of delivery.
7. The execution and delivery of the Underwriting Agreement, dated October
16, 1997, and the related Terms Agreement, dated October 16, 1997(substantially
in the form attached hereto as Exhibit B), is hereby approved.
8. Any officer of this Company specified in the first paragraph of Section
3.3 of the Indenture is hereby authorized and empowered to execute the Notes of
this Company in the form he deems appropriate, and to deliver such Notes to the
Trustee with a written order directing the Trustee to have the Notes
authenticated and delivered to such persons as such officer designates.
9. The Bank of New York is hereby designated and appointed as Paying Agent
and Securities Registrar with respect to the Notes.
<PAGE>
IN WITNESS WHEREOF, on behalf of the Company, the undersigned Authorized
Officers of the Company have executed this Officers' Certificate as of this 16th
day of October, 1997.
CASE CREDIT CORPORATION
By: /s/ KENNETH R. GANGL
----------------------------
Name: Kenneth R. Gangl
Title: President and Chief
Executive Officer
By: /s/ ROBERT A. WEGNER
-----------------------------
Name: Robert A. Wegner
Title: Vice President and
Chief Financial Officer
<PAGE>
CASE CREDIT CORPORATION
6-3/4% Note Due 2007
No. 1001 $150,000,000
CUSIP No. 147433ACO
This Security is a Book-Entry Security in a global form within the
meaning of the Indenture hereinafter referred to and is registered in the name
of the Depository or a nominee of a Depository. This global Security is
exchangeable for Securities registered in the name of a Person other than the
Depository or its nominee only in the limited circumstances described in the
Indenture, and no transfer of this Security (other than a transfer of this
Security as a whole by the Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee of the
Depository) may be registered except in such limited circumstances.
Unless this Security is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the issuer or
its agent for registration of transfer, exchange or payment, and any Security
issued upon registration of transfer of, or in exchange for, or in lieu of, this
Security is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
<PAGE>
CASE CREDIT CORPORATION
CASE CREDIT CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to Cede & Co., as nominee for DTC, or
registered assigns, the principal sum of One Hundred Fifty Million Dollars
($150,000,000) on October 21, 2007, and to pay interest thereon from October 21,
1997 or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semi-annually on April 21 and October 21 in each
year, commencing April 21, 1998, at the rate of 6:% per annum, until the
principal hereof is paid or made available for payment. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be April 7 or October
7 (whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture.
Payment of the principal (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in New York, New York, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to herein by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of October 1, 1997 (herein called the
"Indenture"), between the Company and The Bank of New York, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
<PAGE>
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $150,000,000.
The Securities of this series will be redeemable in whole or in part
at any time at the option of the Company at a redemption price (the "Redemption
Price") equal to the greater of (i) 100% of the principal amount of such
Securities, plus accrued but unpaid interest thereon to the date of redemption
(the ARedemption Date@) and (ii) the sum of the present values of the remaining
scheduled payments of principal and interest thereon discounted to the
Redemption Date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate plus 15 basis points, plus accrued
but unpaid interest thereon to the Redemption Date. If a Redemption Date does
not fall on an interest payment date, then, with respect to the interest payment
immediately succeeding the Redemption Date, only the unaccrued portion of such
interest payment as of the Redemption Date shall be included in any present
value calculation pursuant to clause (ii).
"Treasury Rate" means, with respect to any Redemption Date, the rate
per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Securities of this series to
be redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term
of such Securities. "Independent Investment Banker" means one of the
Reference Treasury Dealers appointed by the Trustee after consultation
with the Company.
"Comparable Treasury Price" means, with respect to any Redemption
Date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its
principal amount) on the third Business Day preceding such Redemption
Date, as set forth in the daily statistical release (or any successor
release) published by
<PAGE>
the Federal Reserve Bank of New York and designated "Composite 3:30
p.m. Quotations for U.S. Government Securities" or (ii) if such
release (or any successor release) is not published or does not
contain such prices on such Business Day, (a) the average of the
Reference Treasury Dealer Quotations for such Redemption Date, after
excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (b) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such
Reference Treasury Dealer Quotations. "Reference Treasury Dealer
Quotations" means, with respect to each Reference Treasury Dealer and
any Redemption Date, the average, as determined by the Trustee, of the
bid and asked prices for the Comparable Treasury Issue (expressed in
each case as a percentage of its principal amount) quoted in writing
to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding such Redemption Date.
"Reference Treasury Dealer" means each of Merrill Lynch, Pierce,
Fenner & Smith Incorporated and NationsBanc Montgomery Securities,
Inc., their respective successors and any other primary U.S.
Government securities dealer in New York City (a "Primary Treasury
Dealer") selected by the Company pursuant to Section 3.1 of the
Indenture in addition to, or in substitution for, any of such firms;
provided, however, that if any of the foregoing shall cease to be a
Primary Treasury Dealer, the Company shall substitute therefor another
Primary Treasury Dealer.
Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each holder of the Securities of this
series to be redeemed.
Unless the Company defaults in payment of the Redemption Price, on and
after the Redemption Date interest will cease to accrue on the Securities of
this series or portions thereof called for redemption.
The Securities of this series shall not provide for a sinking fund.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security or certain restrictive covenants and Events
of Default with respect to this Security, in each case upon compliance with
certain conditions set forth therein.
<PAGE>
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum
<PAGE>
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
Interest on this Security shall be computed on the basis of a 360-day
year of twelve 30-day months.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
This Security 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.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: October 21, 1997
(seal) CASE CREDIT CORPORATION
By: /s/ ROBERT A. WEGNER
----------------------------------
Name: Robert A. Wegner
Title: Vice President and Chief
Financial Officer
Attest:
By: /s/ DAWN M. BECK
----------------------------
Name: Dawn M. Beck
Its: Assistant Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THE BANK OF NEW YORK,
as Trustee, certifies that this is one of the
Securities referred to in the within-mentioned
Indenture.
Dated: October 21, 1997
By: /s/ MARY LAGUMINA
----------------------------
Authorized Signatory
<PAGE>
CASE CREDIT CORPORATION
Debt Securities
TERMS AGREEMENT
---------------
October 16, 1997
To: The Underwriters identified herein
Ladies and Gentlemen:
Case Credit Corporation (the "Company") agrees to sell to the several
Underwriters named in Schedule A hereto for their respective accounts, on and
subject to the terms and conditions of the document entitled "Case Credit
Corporation, Debt Securities, Underwriting Agreement" dated October 16, 1997 a
copy of which is attached hereto as Annex I ("Underwriting Agreement"), the
following securities ("Offered Securities") on the following terms:
Title: 6 3/4% Notes due October 21, 2007 (the "Notes").
Principal Amount: $150,000,000.
Interest: 6 3/4% per annum, from October 21, 1997, payable
semiannually on April 21 and October 21, commencing April 21, 1998, to holders
of record on the preceding April 7 or October 7, as the case may be.
Maturity: October 21, 2007.
Optional Redemption: As set forth under "Description of Notes-
Optional Redemption" in the Prospectus Supplement dated October 16, 1997
("Prospectus Supplement") to the Prospectus dated October 16, 1997 of the
Company relating to the Notes.
Sinking Fund: None.
Listing: None.
Delayed Delivery Contracts: None.
<PAGE>
-2-
Purchase Price: 99.264% of principal amount, plus accrued interest, if
any, from October 21, 1997.
Expected Reoffering Price: 99.914% of principal amount, subject to
change by the Underwriters.
Closing: 9:00 A.M., Chicago time, on October 21, 1997, at the offices
of Mayer, Brown & Platt, 190 S. LaSalle Street, Chicago, Illinois 60603,
immediately available funds.
Settlement and Trading: Book-Entry only via DTC.
Blackout: Until 14 days after the date of this Terms Agreement;
provided, however, that the provisions of Section 4(i) of the Underwriting
Agreement and this blackout shall not apply to any asset-backed securities
issued or guaranteed by the Company or any of its subsidiaries.
Names and Addresses of Underwriters:
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center - North Tower
250 Vesey Street
New York, New York 10281
NationsBanc Montgomery Securities, Inc.
233 South Wacker Drive, Suite 2800
Chicago, Illinois 60606
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.
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 the following information in the Prospectus furnished on
behalf of each Underwriter: the last paragraph at the bottom of the prospectus
supplement cover page concerning the terms of the offering by the Underwriters,
the legend concerning stabilizing on the inside front cover page of the
prospectus supplement and the fol-
<PAGE>
-3-
lowing information appearing under the caption "Underwriting" in the Prospectus
Supplement: the statements in the second paragraph and the statements in the
second sentence of the third paragraph.
<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:
----------------------------------
<PAGE>
-5-
The foregoing Terms Agreement is hereby
confirmed and accepted as of the date
first above written.
MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED
By
-----------------------------
Name:
Title:
NATIONSBANC MONTGOMERY
SECURITIES, INC.
By
-----------------------------
Name:
Title:
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Underwriter Principal
----------- Amount
------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $ 75,000,000
NationsBanc Montgomery Securities, Inc. $ 75,000,000
------------
Total $150,000,000
============
</TABLE>
<PAGE>
CASE CREDIT CORPORATION
Debt Securities
UNDERWRITING AGREEMENT
October 16, 1997
To the Underwriter or
Underwriters named in
the within mentioned
Terms Agreement
Ladies and Gentlemen:
1. Introductory. Case Credit Corporation, a Delaware corporation
(the "Company"), proposes to issue and sell from time to time certain of its
debt securities registered under the registration statements referred to in
Section 2(a) (the "Securities"). The Securities will be issued under an
indenture, dated as of October 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. 333-35815), including a prospectus,
and a registration statement (No. 33-80775) relating to the Securities have
each been filed with the Securities and Exchange Commission ("Commission")
and has been declared effective under the Securities Act of 1933, as
amended (collectively with all rules and regulations of the Commission
thereunder, the "Act"). Such registration statements, as amended at the
date of any Terms Agreement referred to in Section 3 (the "Terms Agreement
Date"), including all documents incorporated therein by reference and all
exhibits thereto, are hereinafter referred to as the "Registration
Statement", and the prospectus included in the registration statement No.
333-35815, 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 Offered Securities have been duly authorized by the
Company; and when the Offered Securities are delivered and paid for
pursuant to the Terms Agreement on the Closing Date (as defined below) or
pursuant to Delayed Delivery Contracts (as hereinafter defined), the
Indenture will have been duly executed and delivered by the Company, such
Offered Securities will have been duly executed, authenticated, issued and
delivered by the Company and will conform in all material respects to the
description thereof contained in the Prospectus, and the Indenture and such
Offered Securities will constitute valid and legally binding obligations of
the Company, entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights, to public policy considerations
and to general equity principles.
(g) The Offered Securities have been approved for listing on the
stock exchange, if any, indicated in the Terms Agreement, subject to notice
of issuance.
-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) 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 Offered Securities it commences doing such business.
(q) Except as set forth in the Registration Statement and the
Prospectus, no labor disturbance by the em-
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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.
(r) The audited consolidated and combined financial statements of the
Company and the Case Credit Business (as defined in Note 2 to the Company's
financial statements contained in the Company's Form 10-K for the fiscal
year ended December 31, 1996) and related schedules, if any, and notes
included or incorporated by reference in the Registration Statement and the
Prospectus comply in all material respects with the requirements of the
Exchange Act and the Rules and Regulations, were prepared in accordance
with generally accepted accounting principles consistently applied
throughout the periods involved (except as otherwise stated therein) and
fairly present the consolidated and combined financial condition, results
of operations, cash flows, changes in combined equity and changes in
stockholders' equity, as the case may be, of the Company or the Case Credit
Business, as the case may be, on a consolidated or combined basis, as the
case may be, at the dates and for the periods presented. The unaudited
consolidated financial statements of the Company and the related notes
included or incorporated by reference in the Registration Statement and the
Prospectus present fairly the consolidated financial condition, results of
operations, cash flows, changes in combined equity and changes in
stockholders' equity, as the case may be, of the Company at the dates and
for the periods to which they relate, subject to year-end audit
adjustments, have been prepared in accordance with generally accepted
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 and combined financial statements of the Company and, if ap-
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<PAGE>
plicable, the Case Credit Business, as the case may be, included or
incorporated by reference in the Registration Statement and the Prospectus.
If pro forma financial statements with respect to the Company or the Case
Credit Business are included or incorporated by reference in the
Registration Statement and the Prospectus, such pro forma financial
statements and other pro forma financial information included in the
Prospectus present fairly the information shown therein, have been prepared
in all material respects in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements, have been
properly compiled on the pro forma basis described therein and, in the
opinion of the Company, the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect
to the transactions or circumstances referred to therein. No pro forma
financial statements or other pro forma financial information with respect
to the Company or the Case Credit Business is required to be included or
incorporated by reference in the Registration Statement and the Prospectus
other than those included or incorporated by reference therein. The
Company's ratios of earnings to fixed charges (actual and, if any, pro
forma) included in the Prospectus under the caption "Ratio of Earnings to
Fixed Charges" and in Exhibit 12 to the Registration Statement 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 Agree-
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ment will also specify the time and date of delivery and payment (such time and
date, or such other time not later than ten full business days thereafter as the
Underwriter first named in the Terms Agreement (the "Lead Underwriter") and the
Company agree as the time for payment and delivery, being herein and in the
Terms Agreement referred to as the "Closing Date"), the place of delivery and
payment and any details of the terms of offering that should be reflected in the
prospectus supplement relating to the offering of the Offered Securities. The
obligations of the Underwriters to purchase the Offered Securities will be
several and not joint. It is understood that the Underwriters propose to offer
the Securities for sale as set forth in the Prospectus.
If the Terms Agreement provides for sales of Offered Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Offered Securities pursuant to delayed delivery
contracts substantially in the form of Annex I attached hereto ("Delayed
Delivery Contracts") with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. On the Closing
Date the Company will pay, as compensation, to the Lead Underwriter for the
accounts of the Underwriters, the fee set forth 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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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
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<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
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<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, 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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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 and has been duly qualified under the Trust
Indenture Act; the Indenture complies as to form in all material
respects with the requirements of the Trust Indenture Act; the
Securities have been duly authorized by the Company; the Offered
Securities (other than any Contract Securities) have been duly
executed, authenticated and delivered by the Company; the Indenture
and the Offered Securities other than any Contract Securities
constitute, and any Contract Securities, when executed, authenticated,
issued and delivered in the manner provided in the Indenture and sold
pursuant to Delayed Delivery Contracts, will constitute, valid and
legally binding obligations of the Company enforceable against the
Company in accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights, to public policy considerations and to
general equity principles; and the Offered Securities other than any
Contract Securities conform, and any Contract Securities, when so
issued and delivered and sold will conform, in all material respects
to the description thereof contained in the Prospectus;
(iii) To the best of their knowledge without independent inquiry,
no consent, approval, authorization or order of, or filing with, any
governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in connection with the
issuance or sale of the Offered Securities by the Company, except such
as are required and have been obtained and made under the Act and the
Trust Indenture Act and such as may be required under state securities
laws (it being understood that such opinion may be limited to such
consents, approvals, authorizations, orders and filings which, in such
counsel's experience, are custom-
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arily 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 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
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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 are in full force and effect and such as may be
required under state securities laws;
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(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.
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
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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, 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 subsection will
be a date not more than five days prior to the Closing Date for the
purposes of this subsection.
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(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 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
-23-
<PAGE>
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 document incorporated by reference in any preliminary
prospectus or the Prospectus to any person.
-24-
<PAGE>
(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 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
in-
-25-
<PAGE>
cludes 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 5(a)(ii)
effected without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent it reasonably
considers such request to be reasonable and (ii) provides written notice to the
indemnified party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement.
(e) If the indemnification provided for in Section 6(a) or (b) hereof
is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Offered
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities,
-26-
<PAGE>
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 public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay
-27-
<PAGE>
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
in Section 8. As used in this Agreement, the term "Underwriter" includes any
person substituted for an Under-
-28-
<PAGE>
writer 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 700
State Street, Racine, Wisconsin 53404, Attention: Chief Financial Officer with a
copy to Case Corporation, 700 State Street, Racine, Wisconsin 53404, Attention:
Treasurer.
10. Successors. The Terms Agreement (including the provisions of this
Agreement) will inure to the benefit of and
-29-
<PAGE>
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
By: MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
By: ____________________________
Name:
Title:
By: NATIONSBANC MONTGOMERY
SECURITIES, INC.
By: ____________________________
Name:
Title:
-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.]
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, the legend
concerning over-allotments--and--, --stabilizing [and passive market making] on
the inside front cover page of the prospectus supplement--and--, --the
concession and reallowance figures appearing in the paragraph under the caption
"Underwriting" in the prospectus supplement [If paragraph regarding passive
market making is included, insert--and the information contained in the
paragraph under the caption "Underwriting" in the prospectus supplement] [If
applicable, insert--; and (ii) the following information in the prospectus
supplement furnished on behalf of [insert name of Underwriter]: [insert
description of information, such as material relationship disclosure under the
caption "Underwriting" in the prospectus supplement].
<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>
Exhibit 4(e)
CASE CREDIT CORPORATION
OFFICERS' CERTIFICATE
and
COMPANY ORDER
With respect to the issuance by Case Credit Corporation (the "Company") of
$150,000,000 aggregate principal amount of its 6-3/4% Notes Due October 21,
2007(the "Notes"), on behalf of the Company, Kenneth R. Gangl, Robert A. Wegner
and Peter Hong, the undersigned officers of the Company, certify pursuant to
Sections 2.1, 3.1 and 3.3 of the Indenture, dated as of October 1, 1997 (the
"Indenture"), between the Company and The Bank of New York, as Trustee (the
"Trustee"), as follows:
1. We have read Sections 2.1, 3.1 and 3.3 of the Indenture and the
definitions therein relating hereto, reviewed the resolutions of the
Board of Directors of the Company adopted on September 15, 1997
(attached as Exhibit C to the Secretary's Certificate of Case Credit
Corporation of even date herewith), reviewed the Actions of the
Authorized Officers of Case Credit Corporation, dated October 16, 1997
(attached as Exhibit D to the Secretary's Certificate of Case Credit
Corporation of even date herewith, the "Actions of the Authorized
Officers"), conferred with executive officers of the Company and, in
our opinion, made such other examinations and investigations as are
necessary to enable us to express an informed opinion as to whether
Sections 2.1, 3.1 and 3.3 of the Indenture have been complied with.
2. Based on the above-described examinations and investigations, in our
opinion, all conditions precedent relating to the authentication and
delivery of the Notes, including those conditions under Sections 2.1,
3.1 and 3.3 of the Indenture, have been complied with.
3. The terms of the Notes are set forth in the Actions of the Authorized
Officers.
4. In accordance with the provisions of Section 3.3 of the Indenture, the
Trustee is hereby authorized and requested to authenticate the Notes
and to deliver the Notes to or at the direction of Merrill Lynch,
Pierce, Fenner & Smith Incorporated and NationsBanc Montgomery
Securities, Inc.
Capitalized terms used herein and not otherwise defined herein shall have
the respective meanings assigned thereto in the Indenture.
<PAGE>
IN WITNESS WHEREOF, on behalf of the Company, the undersigned have executed
this Officers' Certificate and Company Order as of this 21st day of October,
1997.
CASE CREDIT CORPORATION
By: /s/ KENNETH R. GANGL
---------------------------------
Name: Kenneth R. Gangl
Title: President and
Chief Executive Officer
By: /s/ ROBERT A. WEGNER
---------------------------------
Name: Robert A. Wegner
Title: Vice President and Chief
Financial Officer
By: /s/ PETER HONG
---------------------------------
Name: Peter Hong
Title: Treasurer
<PAGE>
SECOND AMENDMENT
SECOND AMENDMENT, dated as of August 25, 1997 (this "Second
Amendment"), to the Credit Agreement, dated as of August 23, 1996 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among CASE CREDIT CORPORATION, a Delaware corporation (the "U.S. Borrower"),
each FOREIGN SUBSIDIARY BORROWER (as therein defined) (together with the U.S.
Borrower, the "Borrowers"), the Co-Agents named on the signature pages thereof
(the "Co-Agents"), the Lead Managers named on the signature pages thereof (the
"Lead Managers"), the several banks and other financial institutions from time
to time parties thereto (the "Lenders") and THE CHASE MANHATTAN BANK, a New York
banking corporation (as therein defined, the "Administrative Agent"), as
administrative agent for the Lenders thereunder.
W I T N E S S E T H:
-------------------
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make, and have made, certain loans and other extensions of credit to the
Borrowers; and
WHEREAS, the Borrowers have requested, and, upon this Second Amendment
becoming effective, the Majority Lenders have agreed, that certain provisions of
the Credit Agreement be amended in the manner provided for in this Second
Amendment;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Terms defined in the Credit Agreement and not
otherwise defined herein shall have the meanings given to them in the Credit
Agreement.
2. Amendments to Section 1 of the Credit Agreement. Subsection 1.1
of the Credit Agreement is amended by (a) deleting in their entirety the
definitions of "Case Credit Debt" and "Indebtedness" contained therein and (b)
inserting the following new definitions in the appropriate alphabetical order:
"Case Credit Debt": as at any date of determination with respect
to the U.S. Borrower and its Consolidated Subsidiaries, an amount
equal to the excess of (a) the sum (without duplication) of (i) all
Indebtedness (other than Indebtedness referred to in clauses (e)
through (h) of the definition thereof) of the U.S. Borrower and its
Consolidated Subsidiaries which in accordance with
<PAGE>
2
GAAP would be included as a liability on a consolidated balance sheet
(excluding the notes thereto) of the U.S. Borrower and its
Consolidated Subsidiaries as at such date, (ii) all Guarantee
Obligations of the U.S. Borrower and its Consolidated Subsidiaries in
respect of Indebtedness (other than Indebtedness referred to in
clauses (e) through (h) of the definition thereof) as at such date and
(iii) all obligations of the U.S. Borrower or any of its Subsidiaries
incurred in connection with any securitization or other asset-backed
financing of Receivables as at such date to the extent such
obligations are excluded from the definition of Permitted
Securitization Obligations as at such date by operation of the proviso
to the definition thereof, minus (b) to the extent included in clause
(a) above, the sum (without duplication) of (A) Guarantee Obligations
of the U.S. Borrower or any of its Subsidiaries in respect of
Indebtedness of Subsidiaries of the U.S. Borrower and (B) Permitted
Securitization Obligations as at such date; provided, that Case Credit
Debt shall in any event exclude Excluded Credit Card Guarantee
Obligations and Case Subordinated Debt.
"Case Subordinated Debt": any Indebtedness of the U.S. Borrower
or any of its Consolidated Subsidiaries to Case or any of its
Consolidated Subsidiaries (other than Case Credit and its Consolidated
Subsidiaries) which is subordinated pursuant to subordination
provisions in substantially the form of Annex A to the Second
Amendment, dated as of August 25, 1997, to this Agreement.
"Case Vendor Financing": financing which is provided by a Person
other than Case or one of its Subsidiaries or Affiliates to a customer
of Case or one of its Subsidiaries or Affiliates.
"Indebtedness": of any Person at any date, without duplication,
(a) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services (other than trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices), (b) any other indebtedness of
such Person which is evidenced by a note, bond, debenture or similar
instrument, (c) all obligations of such Person as lessee under
Financing Leases, (d) all obligations of such Person in respect of
acceptances issued or created for the account of such Person, (e) all
liabilities secured by any Lien on any property owned by such Person
even though such Person has not assumed or otherwise become liable for
the payment thereof, (f) all net liabilities of such Person in respect
of Interest Rate Agreements, (g) all Guarantee Obligations in respect
of Indebtedness referred to in clauses (a) through (f) (or any of
them) of this definition and (h) if such Person is the U.S. Borrower
or any of its Subsidiaries, all obligations of the U.S. Borrower or
any such Subsidiary incurred in connection with any securitization or
other asset-
<PAGE>
3
backed financing of Receivables to the extent such obligations are
excluded from the definition of Permitted Securitization Obligations
by operation of the proviso to the definition thereof; provided,
however, notwithstanding the foregoing, Permitted Vendor Financing
Obligations shall not constitute Indebtedness under this definition.
"Permitted Vendor Financing Obligations": any Guarantee
Obligation of the U.S. Borrower or its Consolidated Subsidiaries in
respect of Case Vendor Financing, but only to the extent that the
underlying principal amount of Indebtedness subject to such Guarantee
Obligation is secured or otherwise funded by the U.S. Borrower or its
Consolidated Subsidiaries with cash or other marketable instruments
(including, without limitation, pledges of deposit accounts, notes,
bonds certificates of deposit, or other documents or instruments
evidencing such funds).
"Threshold Amount": U.S.$60,000,000.
3. Amendment to Section 10 of the Credit Agreement. Subsection
10.7(c) of the Credit Agreement is amended by deleting the phrase "$60,000,000
or more" contained therein and inserting in lieu thereof the phrase "equal to or
greater than the Threshold Amount".
4. Amendment to Section 11 of the Credit Agreement. Subsection 11.2
of the Credit Agreement is amended by (a) deleting the word "and" at the end of
paragraph (h) thereof, (b) relettering paragraph (i) thereof to become paragraph
(j) thereof and by deleting the phrase "paragraphs (a) through (h)" contained in
such paragraph (j) in its entirety and inserting in lieu thereof the phrase
"paragraphs (a) through (i)" and (c) inserting the following new paragraph (i)
thereto:
(i) Liens on funds (including on deposit accounts, notes, bonds,
certificates of deposit, or other documents or instruments evidencing
such funds) in favor of a Person which is providing Case Vendor
Financing where such funds have been provided to such Person directly
or indirectly by the U.S. Borrower or any of its Subsidiaries to fund
such Case Vendor Financing; and
5. Amendment to Section 13 of the Credit Agreement. (a) Section
13(e) of the Credit Agreement is amended by deleting the amount "$60,000,000"
contained therein and inserting in lieu thereof the phrase "equal to the
Threshold Amount".
(b) Section 13(h) of the Credit Agreement is amended by deleting the
phrase "of $60,000,000 or more" contained therein and inserting in lieu thereof
the phrase "in an amount equal to or greater than the Threshold Amount".
<PAGE>
4
6. Conditions to Effectiveness. This Second Amendment shall become
effective on the date (the "Second Amendment Effective Date") on which the
Borrowers, the Administrative Agent and the Majority Lenders shall have executed
and delivered to the Administrative Agent this Second Amendment.
7. Representations and Warranties. The representations and
warranties made by the Borrowers in the Credit Agreement are true and correct in
all material respects on and as of the Second Amendment Effective Date, after
giving effect to the effectiveness of this Second Amendment, as if made on and
as of the Second Amendment Effective Date.
8. No Other Amendments; Confirmation. Except as expressly amended,
modified and supplemented hereby, the provisions of the Credit Agreement are and
shall remain in full force and effect.
9. Governing Law. This Second Amendment and the rights and
obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
10. Counterparts. This Second Amendment may be executed by one or
more of the parties to this Second Amendment on any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Second
Amendment signed by all the parties shall be lodged with the U.S. Borrower and
the Administrative Agent. This Second Amendment may be delivered by facsimile
transmission of the relevant signature pages hereof.
<PAGE>
5
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
CASE CREDIT CORPORATION
By: /s/ Peter Hong
---------------------------
Peter Hong
Title: Treasurer
THE CHASE MANHATTAN BANK, as
Administrative Agent and a Lender
By: /s/ Thomas H. Kozlark
---------------------------
Thomas H. Kozlark
Title: Vice President
THE ASAHI BANK, LTD., CHICAGO BRANCH
By: /s/ Nobuo Suzuki
---------------------------
Nobuo Suzuki
Title: General Manager
AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED
By: /s/ Robert Stan
---------------------------
Robert Stan
Title: First Vice President
BANK OF AMERICA ILLINOIS
By: /s/ M. Veon?? Bennett
---------------------------
M. Veon?? Bennett
Title: Managing Director
<PAGE>
6
BANK OF HAWAII
By:
---------------------------
Title: Vice President
BANK OF MONTREAL
By: /s/ Peter E. Walsh
---------------------------
Peter E. Walsh
Title: Director
THE BANK OF NEW YORK
By: /s/ Mark Fritz
----------------------------
Mark Fritz
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Ashby
----------------------------------
F.C.H. Ashby
Title: Senior Manager Loan Operations
By:
---------------------------
Title:
THE BANK OF TOKYO-MITSUBISHI LTD., CHICAGO BRANCH
By: /s/ Hajime Watanabe
---------------------------
Hajime Watanabe
Title: Deputy General Manager
<PAGE>
7
BANQUE NATIONALE DE PARIS
By: /s/ Jo Ellen Bender
---------------------------------------------
Jo Ellen Bender
Title: Vice President & Manager
CAISSE NATIONALE DE CREDIT AGRICOLE
By: /s/ W. Leroy Startz
---------------------------------------------
W. Leroy Startz
Title: First Vice President
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Timothy E. Doyle
---------------------------------------------
Timothy E. Doyle
Title: Managing Director, CIBC Wood Gundy
Securities Corp., as Agent
CITIBANK, N.A.
By: /s/ Marjorie Futornick
---------------------------------------------
Marjorie Futornick
Title: Vice President
COMMERZBANK AKTIENGESELLSCHAFT, CHICAGO BRANCH
By: /s/ Paul Karlin
---------------------------------------------
Paul Karlin
Title: Assistant Vice President
By: /s/ J. Timothy Shortly
---------------------------------------------
J. Timothy Shortly
Title: Senior Vice President
<PAGE>
8
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH
By: /s/ Johannes F. Krenkhoven
---------------------------------------------
Johannes F. Krenkhoven
Title: Vice President
By: /s/ W. Pieter C. Kodde
---------------------------------------------
W. Pieter C. Kodde
Title: Vice President
CREDIT LYONNAIS CHICAGO BRANCH
By: /s/ Mary Ann Klemm
---------------------------------------------
Mary Ann Klemm
Title: Vice President
CREDIT SUISSE FIRST BOSTON
By: /s/ Geoffrey M. Craig
---------------------------------------------
Geoffrey M. Craig
Title: Vice President
By: /s/ William P. Murray
---------------------------------------------
William P. Murray
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By:
---------------------------------------------
Title: Authorized Agent
<PAGE>
9
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
By:
---------------------------------------------
Title: Vice President
THE FUJI BANK, LIMITED
By: /s/ Peter L. Chinnici
---------------------------------------------
Peter L. Chinnici
Title: Joint General Manager
THE INDUSTRIAL BANK OF JAPAN, LTD.
By:
---------------------------------------------
Title: Joint General Manager
THE LTCB TRUST COMPANY, NEW YORK
By: /s/ Douglas A. Whiddon
---------------------------------------------
Douglas A. Whiddon
Title: Senior Vice President
MELLON BANK, N.A.
By: /s/ J. M. Anderson
---------------------------------------------
J. M. Anderson
Title: Vice President
THE MITUSI TRUST & BANKING COMPANY, LTD. -
NEW YORK BRANCH
By:
---------------------------------------------
Title: Vice President Corporate Finance
<PAGE>
10
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By: /s/ Charles H. King
---------------------------
Charles H. King
Title: Vice President
NATIONAL AUSTRALIA BANK LIMITED
By: /s/ ?????????
---------------------------
Title: Vice President
NATIONSBANK, N.A.
By: /s/ Charey?? Carol?? Daly
---------------------------
Charey?? Carol?? Daly
Title: Vice President
NORDDEUTSCHE LANDESBANK GIROZENTRALE NEW YORK
BRANCH AND/OR CAYMAN ISLANDS BRANCH
By: /s/ Stephen K. Hunter
---------------------------
Stephen K. Hunter
Title: SVP
By: /s/ Josef Haas
---------------------------
Josef Haas
Title: AVP
THE NORTHERN TRUST COMPANY
By: /s/ ?????????????????????
---------------------------
Title: Officer
<PAGE>
11
ROYAL BANK OF CANADA
By: /s/ Patrick K. Shields
-------------------------
Patrick K. Shields
Title: Senior Manager
THE SAKURA BANK, LIMITED
By: /s/ Shunji Sakurai
-------------------------
Shunji Sakurai
Title: Joint General Manager
THE SANWA BANK, LIMITED, CHICAGO BRANCH
By: /s/ Joseph P. Howard
-------------------------
Joseph P. Howard
Title: Vice President
SOCIETE GENERALE
By: /s/ Beth Young
-------------------------
Beth Young
Title: Vice President
THE SUMITOMO BANK, LTD. CHICAGO BRANCH
By: /s/ Hiroyuki Iwami
--------------------------
Hiroyuki Iwami
Title: Joint General Manager
THE SUMITOMO TRUST & BANKING CO., LTD.
NEW YORK BRANCH
By: /s/ Suraj Phatia
--------------------------
Suraj Phatia
Title: Senior Vice President
<PAGE>
12
THE TOKAI BANK, LIMITED CHICAGO BRANCH
By: /s/ Masanori Nakagawa
___________________________
Masanori Nakagawa
Title: Joint General Manager
TORONTO DOMINION (TEXAS), INC.
By: /s/ Frederic B. Hawley
___________________________
Frederic Hawley
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ ??????????????
___________________________
??????????????
Title: Assistant Vice President
By:___________________________
Title:
UNION BANK OF SWITZERLAND, NEW YORK BRANCH
By: /s/ Christopher C. Glockler
___________________________
Christopher C. Glockler
Title: Director
By: /s/ Mary Turnbach
___________________________
Mary Turnbach
Title: Assistant Treasurer
<PAGE>
13
WACHOVIA BANK OF GEORGIA, N.A.
By: /s/ Elizabeth Schrock
----------------------------
Elizabeth Schrock
Title: Vice President
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK
BRANCH
By: /s/ Salvatore Battinelli
----------------------------
Salvatore Battinelli
Title: Vice President
By: /s/ Lisa Walker
----------------------------
Lisa Walker
Title: Associate
THE YASUDA TRUST & BANKING COMPANY, LTD.
By: /s/ Joseph C. Meek
----------------------------
Joseph C. Meek
Title: Deputy General Manager
<PAGE>
Annex A
-------
FORM OF SUBORDINATION PROVISIONS
1. This Note shall be subordinate and junior in right of payment to
all indebtedness, obligations and liabilities of the Case Credit Corporation
(the "Company") and its subsidiaries (including indebtedness of others
guaranteed by the Company, but excluding trade liabilities incurred in the
ordinary course of business and payable in accordance with customary practices),
whether now existing or hereafter created, including, without limitation, all
indebtedness, obligations and liabilities of the Company arising out of or in
connection with the Revolving Credit and Guarantee Agreement, dated as of August
23, 1996 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Company, the Foreign Subsidiary Borrowers parties
thereto, the Co-Agents named therein, the Lead Managers named therein, the
several banks and other financial institutions from time to time parties thereto
(the "Lenders") and The Chase Manhattan Bank, as Administrative Agent, or
otherwise, including, without limitation, principal, interest (including any
interest accruing subsequent to the commencement of bankruptcy, insolvency or
similar proceedings with respect to the Company or any of its subsidiaries
whether or not such interest constitutes an allowed claim in any such
proceeding) and commitment and facility fees (said indebtedness, obligations and
liabilities being hereinafter called the "Superior Indebtedness").
2. As used in this Note the term "subordinate and junior in right of
payment" shall mean that:
(a) No part of this Note shall have any claim to the assets of the
Company or any of its subsidiaries on a parity with or prior to the claim
of the Superior Indebtedness. Unless and until the Superior Indebtedness
shall have been paid in full, the holder of this Note will not take, demand
or receive, and neither the Company nor its subsidiaries will make, give or
permit, directly or indirectly, by set-off, redemption, purchase or in any
other manner, any payment or security for the whole or any part of the
principal of or interest on this Note, provided, however, that so long as
no Default or Event of Default described in the Credit Agreement shall have
occurred and be continuing, or would be in existence immediately after
giving effect thereto, the Company or its subsidiaries may pay principal,
interest and fees on the indebtedness evidenced hereby when and as, and
only when and as, the same becomes due and payable in accordance with the
terms and conditions hereof in effect on the date hereof.
(b) In the event of any distribution, division or application, partial
or complete, voluntary or involuntary, by operation of law or otherwise, of
all or any part of the property, assets or business of the Company, its
Material Subsidiaries (as such term is defined in the Credit Agreement), or
any subsidiary which is a debtor pursuant to the terms hereof (each a
"Debtor Subsidiary"), or the proceeds thereof, to any creditor or creditors
of the Company, its Material Subsidiaries, or any Debtor Subsidiary, or
upon any indebtedness of the Company, its Material Subsidiaries or any
<PAGE>
2
Debtor Subsidiary, by reason of any liquidation, dissolution or other
winding up of the Company, any Material Subsidiary, or any Debtor
Subsidiary, or their businesses or by reason of any sale, receivership,
insolvency or bankruptcy proceedings or assignment for the benefit of
creditors or any proceeding by or against the Company, any Material
Subsidiary or any Debtor Subsidiary for any relief under any bankruptcy,
reorganization or insolvency law or laws, federal or state, or any law,
federal or state, relating to the relief of debtors, readjustment of
indebtedness, reorganization, composition or extension, or in the event of
the occurrence and during the continuation of any Event of Default
described in the Credit Agreement, then and in any such event, any payment
or distribution of any kind or character, whether in cash, property or
securities which, but for the subordination provisions of this Note, would
otherwise be payable or deliverable upon or in respect of this Note, shall
instead be paid over or delivered to the Lenders for application on account
of the Superior Indebtedness, and the holder of this Note shall not receive
any such payment or distribution or any benefit therefrom.
3. The holder of this Note hereby agrees, under the circumstances
set forth in Paragraph 2(b) hereof, duly and promptly to take such action as may
be requested at any time and from time to time by the Lenders to collect this
Note for the account of the holders of Superior Indebtedness and to file
appropriate proofs of claim in respect thereof, to deliver this Note to the
Lenders on demand therefor, and to execute and deliver such powers of attorney,
assignments or other instruments as may be requested by the Lenders in order to
enable the Lenders to enforce any and all claims upon or in respect of this Note
and to collect and receive any and all payments or distributions which may be
payable or deliverable at any time upon or in respect of this Note.
4. Should any payment or distribution or security, or the proceeds
of any thereof, be collected or received by the holder of this Note in respect
of this Note, and such collection or receipt is not expressly permitted
hereunder prior to the payment in full of the Superior Indebtedness, the holder
hereof will forthwith deliver the same to the Lenders, for the account of the
holders of Superior Indebtedness, in precisely the form received (except for the
indorsement or the assignment of the holder hereof where necessary) and, until
so delivered, the same shall be held in trust by the holder hereof as the
property of the holders of Superior Indebtedness.
5. Subject to the payment in full of the Superior Indebtedness, the
holder of this Note shall be subrogated to the rights of the holder of Superior
Indebtedness to receive payments or distributions of assets of the Company made
on the Superior Indebtedness until the principal of and interest on this Note
shall be paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of Superior Indebtedness of any cash, property or
securities to which the holder of this Note would be entitled except for these
provisions shall, as between the Company and its subsidiaries, its creditors
other than the holders of Superior Indebtedness and the holder of this Note, be
deemed to be a payment by
<PAGE>
3
the Company and its subsidiaries to or on account of Superior Indebtedness, it
being understood that these provisions are and are intended solely for the
purpose of defining the relative rights of the holder of this Note, on the one
hand, and the holders of Superior Indebtedness, on the other hand.
6. The holder of this Note hereby waives any and all notice of
renewal, extension or accrual of any of the Superior Indebtedness, present or
future, and agrees and consents that without notice to or assent by the holder
hereof:
(i) the obligations and liabilities of the Company and its
subsidiaries or any other party or parties for or upon the Superior
Indebtedness (and/or any promissory note(s), security document or guaranty
evidencing or securing the same) may, from time to time, in whole or in
part, be renewed, extended, modified, amended, accelerated, compromised,
supplemented, terminated, sold, exchanged, waived or released;
(ii) the Lenders may exercise or refrain from exercising any
right, remedy or power granted by the Credit Agreement or any other
document creating, evidencing or otherwise related to the Superior
Indebtedness or at law, in equity, or otherwise, with respect to the
Superior Indebtedness or any collateral security or lien (legal or
equitable) held, given or intended to be given therefor (including, without
limitation, the right to perfect any lien or security interest created in
connection therewith);
(iii) any and all collateral security and/or liens (legal or
equitable) at any time, present or future, held, given or intended to be
given for the Superior Indebtedness, and any rights or remedies of the
Lenders in respect thereof, may, from time to time, in whole or in part, be
exchanged, sold, surrendered, released, modified, waived or extended by the
Lenders; and
(iv) any balance or balances of funds with the Lenders at any
time standing to the credit of the Company or any guarantor of any of the
Superior Indebtedness may, from time to time, in whole or in part, be
surrendered or released;
all as the Lenders may deem advisable and all without impairing, abridging,
diminishing, releasing or affecting the subordination to the Superior
Indebtedness provided for herein.
7. The holder of this Note acknowledges and agrees that the Lenders
have relied upon and will continue to rely upon the subordination provided for
herein in making the loans provided for in the Credit Agreement and in otherwise
extending credit to the Company and its subsidiaries. The holder hereof hereby
waives notice of or proof of reliance hereon and protest, demand for payment and
notice of default.
<PAGE>
4
8. The Lenders shall not be prejudiced in their right to enforce the
subordination contained herein in accordance with the terms hereof by any act or
failure to act on the part of the Company and its subsidiaries.
9. The subordination provisions contained herein are for the benefit
of the Lenders and may not be rescinded, cancelled, amended or modified in any
way without the prior written consent thereto of the Lenders.
<PAGE>
SECOND AMENDMENT
SECOND AMENDMENT, dated as of August 25, 1997 (this "Second
Amendment") to the Revolving Credit Agreement, dated as of August 23, 1996 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement") among CASE CREDIT LTD., a company organized under the laws of the
Province of Alberta (the "Borrower"), the several banks and other financial
institutions from time to time parties thereto (the "Lenders"), the co-agent
named on the signature pages thereof (the "Co-Agent"), and THE BANK OF NOVA
SCOTIA, a Canadian chartered bank (the "Administrative Agent"), as
administrative agent for the Lenders thereunder.
W I T N E S S E T H;
--------------------
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make, and have made, certain loans and other extensions of credit to the
Borrower; and
WHEREAS, the Borrower has requested, and, upon this Second Amendment
becoming effective, the Majority Lenders have agreed, that certain provisions of
the Credit Agreement be amended in the manner provided for in this Second
Amendment;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Terms defined in the Credit Agreement and not otherwise
defined herein shall have the meanings given to them in the Credit Agreement.
2. Amendments to Article 1 of the Credit Agreement. Section 1.1 of the Credit
Agreement is hereby amended by (a) deleting in its entirety the definition of
"Indebtedness" contained therein and (b) inserting the following new definitions
in the appropriate alphabetical order:
"Case Vendor Financing": financing which is provided by a Person
other than Case or one of its Subsidiaries or Affiliates to a customer
of Case or of one of its Subsidiaries or Affiliates.
"Indebtedness": of any Person at any date, without duplication,
(a) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services (other than trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices), (b) any other indebtedness of
such Person which is evidenced by a note, bond, debenture or similar
instrument, (c) all obligations of such Person as lessee under
Financing Leases, (d) the discounted amount of all obligations of such
Person in
<PAGE>
-2-
respect of acceptances issued or created for the account of such
Person, (e) all liabilities secured by any Lien on any property owned
by such Person even though such Person has not assumed or otherwise
become liable for the payment thereof, (f) all net liabilities of such
Person in respect of Interest Rate Agreements, (g) all Guarantee
Obligations in respect of Indebtedness referred to in clauses (a)
through (f) (or any of them) of this definition and (h) if such Person
is the Borrower or any of its Subsidiaries, all obligations of the
Borrower or any such Subsidiary incurred in connection with any
securitization or other asset-backed financing of Receivables to the
extent such obligations are excluded from the definition of Permitted
Securitization Obligations by operation of the proviso to the
definition thereof; provided, however, notwithstanding the foregoing,
Permitted Vendor Financing Obligations shall not constitute
Indebtedness under this definition.
"Permitted Vendor Financing Obligations": any Guarantee
Obligation of the Borrower or its Consolidated Subsidiaries in respect
of Case Vendor Financing, but only to the extent that the underlying
principal amount of Indebtedness subject to such Guarantee Obligation
is secured or otherwise funded by the Borrower or its Consolidated
Subsidiaries with cash or other marketable instruments (including,
without limitation, pledges of deposit accounts, notes, bonds,
certificates of deposit, or other documents or instruments evidencing
such funds).
"Threshold Amount": U.S. $60,000,000.
3. Amendment to Section 7.7 of the Credit Agreement: Subsection 7.7(c) of the
Credit Agreement is amended by deleting the phrase "$60,000,000 or more"
contained therein and inserting in lieu thereof the phrase "equal to or greater
than the Threshold Amount".
4. Amendment to Section 8.1 of the Credit Agreement: Section 8.1 of the
Credit Agreement is amended by deleting the Section heading and subsections (a)
and (b) thereof and replacing them with the words "Intentionally Deleted".
5. Amendment to Section 8.2 of the Credit Agreement: Section 8.2 of the
Credit Agreement is amended by deleting the Section heading and subsections (a)
through (i) thereof and replacing them with the words "Intentionally Deleted";
and
<PAGE>
-3-
6. Amendment to Article 9 of the Credit Agreement: (a) Subsection 9.1(e) of
the Credit Agreement is amended by deleting the amount "$60,000,000" contained
therein and inserting in lieu thereof the phrase "equal to the Threshold
Amount".
(b) Subsection 9.1(g) of the Credit Agreement is amended by deleting the
phrase "of $60,000,000 or more" contained therein and inserting in lieu thereof
the phrase "in an amount equal to or greater than the Threshold Amount".
7. Conditions to Effectiveness. This Second Amendment shall become effective
on the date (the "Second Amendment Effective Date") on which (a) the Borrower,
the Administrative Agent and the Majority Lenders shall have executed and
delivered to the Administrative Agent this Second Amendment and (b) Case Credit
shall have executed and delivered to the Administrative Agent an amendment to
the Case Credit Guarantee, substantially in the form of Exhibit A hereto.
8. Representations and Warranties. The representations and warranties made by
the Borrower in the Credit Agreement are true and correct in all material
respects on and as of the Second Amendment Effective Date, after giving effect
to the effectiveness of this Second Amendment, as if made on and as of the
Second Amendment Effective Date.
9. No Other Amendments; Confirmation. Except as expressly amended, modified
and supplemented hereby, the provisions of the Credit Agreement are and shall
remain in full force and effect.
10. Governing Law. This Second Amendment and the rights and obligations of the
parties hereto shall be governed by, and construed and interpreted in accordance
with, the laws of the Province of Ontario.
11. Counterparts. This Second Amendment may be executed by one or more of the
parties to this Second Amendment on any number of separate counterparts, and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument. A set of the copies of this Second Amendment signed by all of
the parties shall be lodged with the Borrower and the Administrative Agent.
This Second Amendment may be delivered by facsimile transmission of the relevant
signature pages hereof.
<PAGE>
-4-
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
CASE CREDIT LTD.
By:_______________________________
Title:
THE BANK OF NOVA SCOTIA, as Administrative
Agent and a Lender
By: /s/ R.J. Boomhour
-------------------------------
Title: Assistant General Manager
By: /s/ John Hall
-------------------------------
Title: Syndication Officer
BANK OF AMERICA CANADA, as a Lender
By: /s/ David B. Linkletter
-------------------------------
Title: Vice President
By:_______________________________
Title:
BANK OF MONTREAL, as a Lender
By: /s/ Stuart Brannan
-------------------------------
Title: Director
By: /s/ Peter E. Walsh
-------------------------------
Title: Director
CANADIAN IMPERIAL BANK OF
COMMERCE, as Co-Agent and a Lender
By: /s/ Doug Zinkiewich
-------------------------------
Title: Director
By: /s/ Mauro Spagnolo
-------------------------------
Title: Director
<PAGE>
-5-
THE CHASE MANHATTAN BANK OF
CANADA, as a Lender
By: /s/ Christine Chan
--------------------------------
Christine Chan
Title: Vice President
By: /s/ Arun K. Bery
--------------------------------
Arun K. Bery
Title: Vice President
CITIBANK CANADA, as a Lender
By: /s/ David R. Wingfelder
--------------------------------
David R. Wingfelder
Title: Vice President
By:
--------------------------------
Title:
FIRST CHICAGO NBD BANK, CANADA,
as a Lender
By: /s/ Colleen Delaney
--------------------------------
Colleen Delaney
Title: Assistant Vice President
By: /s/ Jeremiah A. Haynes III
--------------------------------
Jeremiah A. Haynes III
Title: First Vice President
J.P. MORGAN CANADA, as a Lender
By: /s/ Clarke Herring
--------------------------------
Clarke Herring
Title: Vice President
By:
--------------------------------
Title:
ROYAL BANK OF CANADA, as a Lender
By: /s/ Patrick K. Shields
--------------------------------
Patrick K. Shields
Title: Senior Manager
By:
--------------------------------
Title:
<PAGE>
SAKURA BANK (CANADA), as a Lender
By: /s/ E.R. Langley
----------------------------------------------
E.R. Langley
Title: Vice President
By:
Title:
SANWA BANK CANADA, as a Lender
By: /s/ Hiromi Kobayashi
----------------------------------------------
Hiromi Kobayashi
Title: Senior Vice President
By:
Title:
SOCIETE GENERALE (CANADA), as a Lender
By: /s/ Eric D'Hoste
----------------------------------------------
Eric D'Hoste
Title:
By: /s/ Douglas Bache
----------------------------------------------
Douglas Bache
Title: Senior Relationship Manager
THE SUMITOMO BANK OF CANADA,
as a Lender
By: /s/ Alfred Lee
-----------------------------------------------
Alfred Lee
Title: Vice President
By:
-----------------------------------------------
Title:
<PAGE>
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THE TORONTO-DOMINION BANK,
as a Lender
By: /s/ ???????
-----------------------
Title: Manager
By:
-----------------------
Title:
<PAGE>
EXHIBIT A
----------
FORM OF AMENDMENT TO CASE CREDIT GUARANTEE
GUARANTEE AMENDMENT NO. 1, dated as of August__, 1997, made by CASE
CREDIT CORPORATION, a Delaware corporation (the "Guarantor"), in favour of THE
BANK OF NOVA SCOTIA, a Canadian chartered bank, in its capacity as
administrative agent (the "Administrative Agent"), for the several banks and
other financial institutions (the "Lenders") from time to time parties to the
Revolving Credit Agreement, dated as of August 23, 1996, among Case Credit Ltd.,
a company organized under the laws of Alberta, Canada (the "Borrower"), the
Lenders, the Co-Agent named therein (the "Co-Agent") and the Administrative
Agent (as amended, supplemented and otherwise modified from time to time, the
"Credit Agreement").
W I T N E S S E T H:
-------------------
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally
agreed to make Extensions of Credit to the Borrower upon the terms and subject
to the conditions set forth therein;
WHEREAS, the Borrower has requested, and the Majority Lenders have
agreed, that certain provisions of the Credit Agreement be amended in the manner
provided for in the second amendment dated August__, 1997 (the "Second
Amendment") to the Credit Agreement;
WHEREAS, pursuant to the Credit Agreement, the Guarantor executed and
delivered the Case Credit Guarantee to the Administrative Agent for the benefit
of the Administrative Agent, the Co-Agent and the Lenders;
WHEREAS, it is a condition precedent to the effectiveness of the
Second Amendment that certain provisions of the Case Credit Guarantee be amended
in the manner provided for in, and the Guarantor shall have executed and
delivered to the Administrative Agent for the benefit of the Administrative
Agent, the Co-Agent and the Lenders, this Guarantee Amendment No. 1;
NOW, THEREFORE, in consideration of the Lenders, the Co-Agent and the
Administrative Agent entering into the Second Amendment and agreeing to make
Extensions of Credit to the Borrower under the Credit Agreement and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Guarantor hereby agrees with the Administrative Agent for the
benefit of the Administrative Agent, the Co-Agent and the Lenders as follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms
defined in the Credit Agreement or the Case Credit Guarantee and used herein
shall have the meanings given to them in the Credit Agreement and the Case
Credit Guarantee, respectively.
<PAGE>
-2-
2. Amendment to Paragraph 11 of the Case Credit Guarantee:
Paragraph 11 of the Case Credit Guarantee is hereby deleted in its entirety and
replaced with the following new paragraph 11:
11. Covenants. The Guarantor hereby covenants and agrees with the
Administrative Agent, the Co-Agent and the Lenders that, from and
after the date of this Guarantee until the Obligations are paid in
full and the Commitments are terminated, (i) the Guarantor shall own,
beneficially and of record, directly or indirectly through one or more
wholly-owned Subsidiaries, 100% of the issued and outstanding common
shares of the Borrower, free and clear of any and all Liens; (ii) the
Guarantor shall not modify or amend or agree to modify or amend any
term or provision made or contained in Section 11 of the Case Credit
Credit Agreement without the prior written consent of the Majority
Lenders; and (iii) notwithstanding any termination of the Case Credit
Credit Agreement, the Guarantor shall continue to observe and perform
each and every covenant and agreement made or contained in Section 11
of the Case Credit Credit Agreement and on the part of the Guarantor
to be observed and performed and, for such purposes, such covenants
and agreements shall be incorporated herein by reference and shall be
interpreted as being expressed in favour of and for the benefit of the
Administrative Agent, the Co-Agent and the Lenders.
3. No Other Amendments; Confirmation. Except as expressly amended,
modified and supplemented hereby, the provisions of the Case Credit Guarantee
are and shall remain in full force and effect.
4. GOVERNING LAW. THIS GUARANTEE AMENDMENT NO. 1 SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
WISCONSIN WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
<PAGE>
-3-
IN WITNESS WHEREOF, the undersigned has caused this Guarantee
Amendment No. 1 to be duly executed and delivered by its duly authorized officer
as of the day and year first above written.
CASE CREDIT CORPORATION
By
------------------------------
Title
---------------------------
<PAGE>
CONFORMED COPY
- --------------------------------------------------------------------------------
DEED OF GUARANTEE AND NEGATIVE PLEDGE
- --------------------------------------------------------------------------------
DEED POLL dated 17 October 1997 by:
CASE CREDIT CORPORATION a Delaware corporation having its principal office at
233 Lake Street, Racine, Wisconsin, 53403, USA (the COMPANY).
RECITALS
A. The Borrower is a wholly owned Subsidiary of the Company.
B. The Borrower proposes to enter into a bill acceptance and discount
facility with the Lenders and their agent and to issue MTNs and PNs
denominated in Australian dollars from time to time, all on the security
of this Deed.
C. The Company enters into this Deed for the benefit of the Indemnified
Parties described below.
IT IS AGREED as follow:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
AFFILIATE means, in relation to any person, any other person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with that person. For the purposes of this
definition, CONTROL of a person means the power, directly or indirectly,
either to:
(a) vote 10% or more of the securities or other equity interests having
ordinary voting power for the election of directors or other
governing bodies of that person; or
(b) direct or cause the direction of the management and policies of the
person, whether by contract or otherwise.
AGENT means National Australia Bank Limited (ACN 004 044 937) in its
capacity as Agent under the Bill Facility Agreement.
ATTRIBUTABLE DEBT at any date (the DETERMINATION DATE) means, in relation
to any particular lease under which the Company or any Restricted
Subsidiary is at the time liable as lessee for a term of more than 12
months, the total net obligations of the lessee for rental payments during
the remaining term of the lease (excluding any period for which the lease
has been extended or may, at the option of the lessor, be extended),
discounted from the respective due dates of those rental payments to the
determination date at a rate per annum equivalent to the greater of:
(a) the Company's weighted average cost of debt as determined in good
faith by the Company; and
(b) the interest rate inherent in that lease as determined in good
faith by the Company,
<PAGE>
Page 2
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both to be compounded semi-annually. Those TOTAL NET OBLIGATIONS of
the lessee will be the total amount of the rent payable by the
lessee after excluding amounts required to be paid on account of
maintenance and repairs, services, insurance, taxes, assessments,
water rates and similar charges and contingent rents (such as those
based on sales or monetary inflation). If a lease is terminable by
the lessee on the payment of a penalty and under the terms of the
lease, the termination right is not exercisable until after the
determination date and the amount of that penalty discounted (as
specified above) to the determination date is less than the net
amount of rentals payable after the time as of which that
termination could occur (the TERMINATION TIME) discounted (as
specified above) to the determination date, then the discounted
penalty amount will be used instead of the discounted amount of net
rentals payable after the termination time in calculating the
Attributable Debt for the lease. If a lease is terminable by the
lessee on the payment of a penalty and that termination right is
exercisable on the determination date and the amount of the net
rentals payable under the lease after the determination date
discounted (as specified above) to the determination date is
greater than the amount of the penalty, the Attributable Debt for
that lease as of the determination date will be equal to the amount
of that penalty.
AUTHORISED OFFICER means the President or any Vice President of the
Company or, with respect to financial matters, the Chief Financial
Officer, the Treasurer, the Controller, any Assistant Treasurer or
any Assistant Controller of the Company.
BILL means a BILL OF EXCHANGE as defined in the Bills of Exchange
Act 1909 (Cth) which is, or is to be, accepted or discounted under
the Bill Facility Agreement.
BILL FACILITY AGREEMENT means a bill acceptance and discount
facility agreement dated on or about the date of this Deed between
the Borrower, the Agent and various financial institutions named in
the schedule to that agreement.
BORROWER means Case Credit Australia Pty Limited (ACN 069 132 396).
BUSINESS DAY means a day (not being a Saturday or Sunday) on which
banks are open for business in Sydney.
CASE CREDIT DEBT as at any date of determination with respect to
the Group, means an amount equal to:
(a) the sum (without duplication) of:
(i) all Indebtedness of the Group (other than
Indebtedness referred to in paragraphs (e) to (h) of
that definition) which in accordance with GAAP would
be included as a liability on a consolidated balance
sheet (excluding the notes) of the Group as at that
date;
(ii) all Guarantee Obligations of the Group in respect of
Indebtedness (other than Indebtedness referred to in
paragraphs (e) to (h) of that definition) as at that
date; and
(iii) all obligations of the Company or any of its
Subsidiaries incurred in connection with any
securitisation or other asset-backed financing of
Receivables as at that date, to the extent those
obligations are excluded from the definition of
Permitted Securitisation Obligations by operation of
the proviso to that definition;
<PAGE>
Page 3
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(b) less, to the extent included in paragraph (a) above, the sum
(without duplication) of:
(i) the Guarantee Obligations of the Company or any of
its Subsidiaries in respect of Indebtedness of
Subsidiaries of the Company; and
(ii) Permitted Securitisation Obligations as at that date.
Excluded Credit Card Guarantee Obligations are excluded from all
calculations of Case Credit Debt.
CASE VENDOR FINANCING means financing which is provided by a person
other than the Company or any of its Subsidiaries or Affiliates, to
a customer of the Company or of any of its Subsidiaries or
Affiliates.
CONSOLIDATED INTEREST EXPENSE means, for any period with respect to
the Group, the aggregate amount of interest expense of the Group
during that period determined in accordance with GAAP.
CONSOLIDATED LEASE EXPENSE means, for any period with respect to
the Group, all amounts paid or incurred by the Group during that
period under operating leases in respect of real property.
CONSOLIDATED NET INCOME means, for any period with respect to the
Group, consolidated net income of the Group for that period
determined in accordance with GAAP.
CONSOLIDATED NET TANGIBLE ASSETS means, as at any date of
determination, the total assets appearing on the most recent
consolidated balance sheet of the Group as at the end of the most
recent fiscal quarter of the Company ending not more than 135 days
before that date, determined in accordance with GAAP, minus the
amount of Intangible Assets included in that consolidated balance
sheet as at the end of that fiscal quarter.
CONSOLIDATED NET WORTH means, at any time with respect to the
Company, all items which in conformity with GAAP would be included
under shareholders' equity on a consolidated balance sheet of the
Group at that time plus any amounts included on that consolidated
----
balance sheet in respect of any preferred stock of the Company and
any Preferred Securities outstanding from time to time (except to
the extent that any such preferred stock is mandatorily redeemable
at the option of the holder or on the happening of any contingency
before the later of:
(a) the Repayment Date (as defined in the Bill Facility
Agreement) for any accommodation provided under Tranche B of
that agreement; and
(b) the latest Maturity Date (as defined in the MTN Deed) of any
MTN).
CONSOLIDATED SUBSIDIARY means any Subsidiary of the Company which,
in accordance with GAAP, would be consolidated in the financial
statements of the Company.
CONTRACTUAL OBLIGATION means in relation to any person, any
provision of any security issued by that person or of any
agreement, instrument or other undertaking to which the person is a
party or by which it or any of its property is bound.
DEALER means a person who is a Dealer from time to time under the
Dealership Agreement.
<PAGE>
Page 4
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DEALERSHIP AGREEMENT means the Promissory Note and MTN Dealership
Agreement dated on or about the date of this Deed between the
Borrower, the Programme Manager, the I&P Agent and the dealers
listed in that agreement.
EBIT means, for any period with respect to the Group, Consolidated
Net Income of the Group for that period plus, to the extent
----
deducted in determining that Consolidated Net Income, the sum of
taxes and interest expense, plus or minus, to the extent deducted
-------------
or added respectively in determining that Consolidated Net Income,
any income, gain or loss of a non-cash nature.
EVENT OF DEFAULT means an event of default as defined in any
Transaction Document.
EXCLUDED CREDIT CARD GUARANTEE OBLIGATIONS means, at any time, 93%
of the outstanding amount of obligations of cardholders for which
there is recourse to the Company under the credit card program
sponsored by the Company (funded and serviced by NationsBank of
Delaware, N.A.).
EXTRAORDINARY RESOLUTION has the meaning given in the MTN Deed.
FINANCING LEASE means any lease of property, real or personal, in
respect of which the lessee's obligations are required, in
accordance with GAAP, to be capitalised on a balance sheet of the
lessee.
FIXED CHARGE RATIO means for any period, the ratio of:
(a) EBIT of the Group for that period plus Consolidated Lease
Expense (but only to the extent that was deducted in
calculating EBIT) of the Group for that period;
to:
(b) the sum of Consolidated Interest Expense of the Group for
that period, Consolidated Lease Expense of the Group for
that period and all amounts paid by the Company or any of
its Subsidiaries to Case Corporation during that period in
respect of income tax.
GAAP means generally accepted accounting principles in the United
States of America in effect on the date of this Deed.
GOVERNMENTAL AGENCY means any government or any governmental, semi
governmental or judicial entity or authority. It also includes any
self-regulatory organisation established under statute or any stock
exchange.
GROUP means the Company and its Consolidated Subsidiaries and
includes any one or more of them.
GUARANTEE OBLIGATION in relation to any person (the GUARANTEEING
PERSON) means, without duplication and subject to clause 1.2, any
obligation of:
(a) the guaranteeing person; or
(b) another person (including any bank under any letter of
credit), the creation of which was induced by the
guaranteeing person issuing a reimbursement, counter
indemnity or similar obligation,
<PAGE>
Page 5
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in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the PRIMARY
OBLIGATIONS) of any third person (the PRIMARY OBLIGOR) in any
manner, whether directly or indirectly. It includes an obligation
of the guaranteeing person, whether or not contingent:
(i) to purchase any such primary obligation or any property
constituting direct or indirect security for it;
(ii) to advance or supply funds for the purchase or payment of
any such primary obligation or to maintain working capital
or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor;
(iii) to purchase property, securities or services primarily for
the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make
payment of the primary obligation; or
(iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect of it.
It does not include endorsements of instruments for deposit or
collection in the ordinary course of business; obligations in
respect of trade liabilities incurred in the ordinary course of
business and payable in accordance with customary practices; or
Excluded Credit Card Guarantee Obligations.
INDEBTEDNESS in relation to any person at any time, means, without
duplication:
(a) all indebtedness of the person for borrowed money or for the
deferred purchase price of property or services (other than
trade liabilities incurred in the ordinary course of
business and payable in accordance with customary
practices);
(b) any other indebtedness of the person which is evidenced by a
note, bond, debenture or similar instrument;
(c) all obligations of the person as lessee under Financing
Leases;
(d) all obligations of the person in respect of acceptances
issued or created for the account of the person;
(e) all liabilities secured by any Lien on any property owned by
the person even though the person has not assumed or
otherwise become liable for the payment of it ;
(f) all net liabilities of the person in respect of any interest
rate protection agreement, interest rate future, interest
rate option, interest rate cap or other interest rate hedge
arrangement;
(g) all Guarantee Obligations in respect of Indebtedness
referred to in the preceding paragraphs of this definition;
and
(h) if the person is the Company or any of its Subsidiaries, all
obligations of that person incurred in connection with any
securitisation or other asset-backed financing of
Receivables, to the extent those obligations are excluded
from the definition of Permitted Securitisation Obligations
by operation of the proviso to that definition.
<PAGE>
Page 6
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Despite the above, Permitted Vendor Financing Obligations do not
constitute Indebtedness under this definition.
INDEMNIFIED PARTY means the Agent, the Programme Manager, a Dealer,
a Lender or a Noteholder.
INTANGIBLE ASSETS means at any date of determination, the value
(net of any applicable reserves) as shown in the most recent
consolidated balance sheet of the Group as at the end of the most
recent fiscal quarter of the Company ending not more than 135 days
before that date, prepared in accordance with GAAP, of:
(a) all trade names, trade marks, licences, patents, copyrights,
service marks, goodwill and other like intangibles;
(b) organisational and development costs;
(c) deferred charges (other than prepaid items, such as
insurance, tax, interest, commissions, rent, deferred
interest waiver, deferred financing fees, compensation and
similar items and tangible assets being amortised); and
(d) unamortised debt discount and expense, less unamortised
premium.
I & P AGREEMENT means an issue and paying agency agreement between
National Australia Bank Limited as the issuing and paying agent and
the Borrower.
LENDER means any financial institution which is a Participant from
time to time under the Bill Facility Agreement.
LIEN means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other
security agreement or preferential arrangement of any kind or any
nature whatever (including any conditional sale or other title
retention agreement and any Financing Lease having substantially
the same economic effect as any of the above).
LIQUIDATION includes receivership, compromise, arrangement,
amalgamation, administration, reconstruction, winding up,
dissolution, assignment for the benefit of creditors, bankruptcy or
death.
MATERIAL ADVERSE EFFECT means a material adverse effect on:
(a) the business, operations, property or condition (financial
or otherwise) of the Group taken as a whole;
(b) the ability of the Company to perform its obligations under
this Deed;
(c) the ability of the Borrower to perform its obligations under
any Transaction Document; or
(d) the rights or remedies of the Indemnified Parties under this
Deed or the Transaction Documents.
MATERIAL SUBSIDIARY means any Subsidiary of the Company whose
assets or revenues (excluding inter-company receivables and
revenues that would be eliminated upon consolidation in accordance
with GAAP) are, at the time of determination, equal to or greater
than 10% of the assets or revenues
<PAGE>
Page 7
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(excluding inter-company receivables and revenues that would be
eliminated on consolidation in accordance with GAAP), respectively,
of the Company at such time.
MTN means a debt instrument created by the Borrower in registered
form, constituted by the MTN Deed, entitling the holder of the MTN
to payment of certain money under the MTN Deed.
MTN DEED means the A$ Domestic MTN Deed Poll by the Borrower dated
on or about the date of this Deed.
MTN HOLDER means a person entitled in accordance with the MTN Deed
to an MTN.
NOTEHOLDER means a holder of a PN or an MTN Holder.
ORDINARY RESOLUTION has the meaning given in the MTN Deed.
PERMITTED SECURITISATION OBLIGATIONS means obligations of the
Company or any of its Subsidiaries incurred in connection with any
securitisation or other asset-backed financing of Receivables;
except that, if:
(a) there is recourse to the Company or any of its Subsidiaries
(other than a Special Purpose Subsidiary) for failure to pay
or otherwise perform any of those obligations;
(b) that failure arises as a result of credit defaults by the
debtors in respect of those Receivables; and
(c) that recourse is not limited to the Receivables and
Receivables Related Assets (or undivided or beneficial
interests in them) which are the subject of the
securitisation or other asset-backed financing,
then those obligations will not be Permitted Securitisation
Obligations to the extent that, in accordance with GAAP, they would
be required to be included as a liability on a consolidated balance
sheet of the Group.
PERMITTED VENDOR FINANCING OBLIGATIONS means:
(a) any Guarantee Obligation of the Group in respect of Case
Vendor Financing, but only to the extent that the underlying
principal amount of the Indebtedness subject to the
Guarantee Obligation is secured or otherwise funded by the
Group with cash or other marketable instruments (including
pledges of deposit accounts, notes, bonds, certificates of
deposit or other documents or instruments); and
(b) any Guarantee Obligation of the Group in respect of Case
Vendor Financing where:
(i) Case Corporation or any of its Subsidiaries or
Affiliates has a Guarantee Obligation in respect of
the same principal amount;
(ii) the Company has a written agreement with Case
Corporation which states that Case Corporation will
fully indemnify the Company if the Company is called
on to provide funds in connection with the Guarantee
Obligation; and
(iii) that agreement is enforceable by any MTN Holder or
the Agent.
<PAGE>
Page 8
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PREFERRED SECURITIES means any preferred securities issued by a
financing entity used exclusively to raise capital for the Company
and which have the following structural characteristics:
(a) the financing entity lends the proceeds from the issue of
preferred securities to the Company in exchange for
subordinated debt securities (which are subordinated to all
Indebtedness of the Company of the type described in
paragraphs (a) and (b) of the definition of Indebtedness);
(b) the subordinated debt securities issued by the Company and
corresponding preferred securities issued by the financing
entity have a maturity of at least 10 years;
(c) interest payments on the subordinated debt securities may be
deferred at the Company's discretion; and
(d) neither the subordinated debt securities nor the
corresponding preferred securities contain cross default or
cross acceleration provisions to Indebtedness of the Company
of the type described in paragraphs (a) and (b) of the
definition of Indebtedness.
PN means a short term promissory note of the Borrower drawn in
accordance with the Bills of Exchange Act 1909 (Cth), issued under
the I&P Agreement.
PROGRAMME MANAGER means National Australia Bank Limited in its
capacity as Programme Manager under the Dealership Agreement.
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 from the
financing by the Company or any of its Subsidiaries of property or
services, and money due thereunder, security interests in the
property and services financed thereby and any and all other
related rights.
RECEIVABLES RELATED ASSETS means in connection with any
securitisation or other asset-backed financing of, or other sale,
transfer or disposition of, Receivables:
(a) all rights arising under documentation governing or relating
to those Receivables (including rights in respect of Liens
securing those Receivables and other credit support in
respect of those Receivables);
(b) any proceeds of those Receivables and any locked boxes or
accounts in which those proceeds are deposited;
(c) spread accounts and other similar accounts (and any amounts
on deposit in them) established in connection with that
securitisation or asset-backed financing; and
(d) any warranty, indemnity, dilution and other intercompany
claim arising out of the documentation evidencing that
securitisation or asset-backed financing.
REQUIREMENT OF LAW means, in relation to any person, the
certificate of incorporation and by-laws or other organisational or
governing documents of that person, and any law, treaty, rule,
guideline or regulation or determination of an arbitrator or a
court or other Governmental Agency, in each case applicable to or
binding on that person or any of its material property or to which
that person or any of its material property is subject.
<PAGE>
Page 9
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RESTRICTED SUBSIDIARY means each Subsidiary of the Company other
than Securitisation Subsidiaries and Subsidiaries of Securitisation
Subsidiaries.
SECURED MONEY means all money which the Borrower (whether alone or
with another person) is or at any time may become actually or
contingently liable to pay to or for the account of an Indemnified
Party (whether alone or with another person) for any reason
whatever under or in connection with any Transaction Document.
It includes, without limitation, money by way of principal,
interest, fees, costs, guarantee, indemnities, charges, duties or
expenses or payment of liquidated or unliquidated damages under or
in connection with any Transaction Document or as a result of a
breach of or default under or in connection with any Transaction
Document.
Where the Borrower would have been liable but for its Liquidation,
it will be taken still to be liable.
SECURITISATION SUBSIDIARY means a Subsidiary of the Company which
is formed for the purpose of effecting one or more securitisation
transactions and engaging in other activities reasonably related to
them and none of whose indebtedness or any other obligations:
(a) are guaranteed by the Company or any Restricted Subsidiary;
or
(b) 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 securitisation transaction and
intercompany notes and other forms of capital or credit
support relating to the transfer or sale of Receivables or
asset-backed securities to that Securitisation Subsidiary
and customarily necessary or desirable in connection with
such transactions.
SPECIAL PURPOSE SUBSIDIARY means any wholly owned Subsidiary of the
Company (other than Case Credit Canada and the Borrower) which is:
(a) formed for the purpose of effecting a securitisation or
other asset-backed financing of Receivables and engaging in
other activities reasonably related to that; and
(b) structured as a BANKRUPTCY-REMOTE SUBSIDIARY in accordance
with customary practices in the asset-backed securitisation
market.
SUBSIDIARY in relation to any person, means a corporation,
partnership or other entity of which shares or stock or other
ownership interests having ordinary voting power (other than stock
or ownership interests which have such power only by reason of the
happening of a contingency) to elect a majority of the board of
directors or other managers of that corporation, partnership or
other entity are at the time owned, or the management of which is
otherwise controlled (directly or indirectly through one or more
intermediaries, or both), by such person.
THRESHOLD AMOUNT means US$60,000,000.
TRANSACTION DOCUMENT means this Deed, the Bill Facility Agreement,
any PN, any MTN, any Bill, the Dealership Agreement, the I&P
Agreement, the MTN Deed or a document or agreement entered into or
provided under, or for the purpose of amending, any of the above.
1.2 DETERMINATION OF AMOUNT OF GUARANTEE OBLIGATION
<PAGE>
Page 10
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The amount of any Guarantee Obligation of any GUARANTEEING PERSON
will be taken to be the lower of:
(a) an amount equal to the stated or determinable amount of the
PRIMARY OBLIGATION in respect of which the Guarantee
Obligation is made; and
(b) the maximum amount for which the guaranteeing person may be
liable under the terms of the instrument embodying the
Guarantee Obligation,
unless the primary obligation and the maximum amount for which the
guaranteeing person may be liable are not stated or determinable,
in which case the amount of the Guarantee Obligation will be the
guaranteeing person's maximum reasonably anticipated liability in
respect of it as determined by the Company in good faith.
In this clause, words in italics have the meaning given in the
definition of Guarantee Obligation.
1.3 BENEFIT OF DEED
(a) This Deed is a deed poll given for the several benefit of
all Indemnified Parties from time to time. Each Indemnified
Party and any person claiming through an Indemnified Party
has the benefit of this Deed even though it is not a party
to, or is not in existence at the time of execution and
delivery of, this Deed.
(b) Subject to the Transaction Documents, each Indemnified Party
may separately enforce its rights under this Deed
independently of each other Indemnified Party. Nothing done
or omitted to be done in relation to this Deed by any
Indemnified Party in any way affects any other Indemnified
Party.
(c) The rights and remedies of the Lenders under this Deed are
also vested in, and may be exercised by, the Agent. Without
limitation, the Agent may make demands on behalf of the
Lenders.
1.4 INTERPRETATION
Headings are for convenience only and do not affect interpretation.
The following rules apply unless the context requires otherwise.
(a) The singular includes the plural and the converse.
(b) A gender includes all genders.
(c) Where a word or phrase is defined, its other grammatical
forms have a corresponding meaning.
(d) A reference to a person, corporation, trust, partnership,
unincorporated body or other entity includes any of them.
(e) A reference to a clause, annexure or schedule is a reference
to a clause of, or annexure or schedule to, this Deed.
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(f) A reference to an Indemnified Party or a party to another
agreement or document includes the party's successors and
permitted substitutes or assigns.
(g) A reference to legislation or to a provision of legislation
includes a modification or re-enactment of it, a legislative
provision substituted for it and a regulation or statutory
instrument issued under it.
(h) A reference to WRITING includes a facsimile transmission and
any means of reproducing words in a tangible and permanently
visible form.
(i) A reference to CONDUCT includes an omission, statement or
undertaking, whether or not in writing.
(j) Mentioning anything after INCLUDE, INCLUDES or INCLUDING
does not limit what else might be included.
1.5 CONSENT OF MTN HOLDERS
A reference to CONSENT of the MTN Holders to any act, matter or
thing is a reference to:
(a) consent of the MTN Holders by Extraordinary Resolution; or
(b) if Standard & Poors have unconditionally confirmed in
writing to the Programme Manager that the relevant act,
matter or thing can be done without effecting the ratings
outlook of the MTNs, then consent of the MTN Holders by
Ordinary Resolution.
2. GUARANTEE
2.1 GUARANTEE
The Company unconditionally and irrevocably guarantees the due and
punctual payment of the Secured Money. The Company enters into this
Deed for valuable consideration which includes the Indemnified
Parties entering into the Transaction Documents at its request.
2.2 PAYMENT
(a) Within 3 Business Days of demand made from time to time by
any Indemnified Party on or after expiry of any relevant
grace period applicable to the Borrower, the Company shall
pay to that Indemnified Party an amount equal to its Secured
Money then due and payable in the same manner and currency
as the Borrower is required to pay that Secured Money under
the relevant Transaction Document (or would have been but
for its Liquidation).
(b) An Indemnified Party may make multiple demands. A demand
need only specify the amount owing. It need not specify the
basis of calculation of that amount.
2.3 NO DEDUCTION
(a) The Company will make all payments under this Deed without
set-off or counter claim and without deduction, except any
compulsory deduction for tax.
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(b) If the Company is obliged to make a deduction in respect of
any tax from any payment to be made for the account of any
Indemnified Party under this Deed:
(i) it shall promptly pay the amount deducted to the
appropriate Governmental Agency; and
(ii) it shall pay the Indemnified Party on the due date of
the payment any additional amounts necessary to
ensure that the Indemnified Party receives when due a
net amount (after payment of any tax in respect of
those additional amounts) in Australian dollars equal
to the full amount which it would have received had a
deduction not been made.
(c) The obligations of the Company under this clause survive the
repayment of the Secured Money and the termination of this
Deed.
2.4 CURRENCY INDEMNITY
The Company shall indemnify each Indemnified Party on demand
against any deficiency which arises whenever for any reason
(including as a result of a judgment or order or Liquidation but
excluding default of any Indemnified Party):
(a) that Indemnified Party receives or recovers an amount due
from the Company in a currency (the PAYMENT CURRENCY) other
than Australian dollars; and
(b) the amount actually received or recovered by that
Indemnified Party when, in accordance with its normal
practices, it converts the Payment Currency into Australian
dollars is less than the relevant amount of Australian
dollars due.
2.5 UNCONDITIONAL NATURE OF OBLIGATION
Neither this Deed nor the obligations of the Company under this
Deed will be affected by anything which but for this provision
might operate to release, prejudicially affect or discharge them or
in any way relieve the Company from any obligation. This includes
the following:
(a) the grant to any person of any time, waiver or other
indulgence, or the discharge or release of any person;
(b) any transaction or arrangement that may take place between
any Indemnified Party and any person;
(c) the Liquidation of any person;
(d) any Indemnified Party becoming a party to or bound by any
compromise, moratorium, assignment of property, scheme of
arrangement, composition of debts or scheme of
reconstruction by or relating to any person;
(e) any Indemnified Party exercising or delaying or refraining
from exercising or enforcing any document or agreement or
any right, power or remedy conferred on it by law or by any
document or agreement;
(f) all or any part of any document or agreement held by any
Indemnified Party at any time or of any right, obligation,
power or remedy changing, ceasing or being transferred (this
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includes amendment, variation, novation, replacement,
rescission, invalidity, extinguishment, repudiation,
avoidance, unenforceability, frustration, failure, expiry,
termination, loss, release, discharge, abandonment or
assignment);
(g) the taking or perfection of any document or agreement or
failure to take or perfect any document or agreement;
(h) the failure by any person or any Indemnified Party to notify
the Company of any default by any person under any document
or agreement;
(i) any Indemnified Party obtaining a judgment against any
person for the payment of any Secured Money;
(j) any legal limitation, disability, incapacity or other
circumstance relating to any person;
(k) any change in any circumstance (including in the members or
constitution of any person);
(l) any document or agreement is not executed by any person, or
is not valid or binding on any person; or
(m) any increase in the Secured Money for any reason (including
as a result of anything referred to above),
whether with or without the consent of the Company. None of the
above paragraphs limits the generality of any other. A reference to
ANY PERSON includes the Borrower. A reference to ANY DOCUMENT OR
AGREEMENT includes this Deed or any other Transaction Document.
2.6 PRINCIPAL AND INDEPENDENT OBLIGATION
This clause is a principal obligation and shall not be treated as
ancillary or collateral to any other right or obligation. The
Company waives any requirement for demand on or notice to the
Borrower.
2.7 NO MARSHALLING
No Indemnified Party is obliged to marshal or appropriate in favour
of the Company or to exercise, apply or recover any Lien or
guarantee (including any Transaction Document) now or in the future
held by it or any of the funds or assets that it may be entitled to
receive or have a claim on.
2.8 NO COMPETITION
Until the Secured Money has been irrevocably paid and discharged in
full the Company shall not:
(a) be subrogated to any Indemnified Party or claim the benefit
of any Lien or guarantee now or in the future held by any
Indemnified Party for the payment of all or part of the
Secured Money;
(b) either directly or indirectly to prove in, claim or receive
the benefit of any distribution, dividend or payment arising
out of or relating to the Liquidation of the Borrower; or
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(c) unless otherwise required by an Indemnified Party, have or
claim any right of contribution or indemnity from the
Borrower or any other person who gives a guarantee or Lien
in respect of any Secured Money.
The receipt of any distribution, dividend or other payment by an
Indemnified Party out of or relating to that Liquidation will not
prejudice the right of any Indemnified Party to recover the Secured
Money by enforcement of this Deed.
2.9 SUSPENSE ACCOUNT
In the event of the Liquidation of the Borrower, the Company
authorises each Indemnified Party:
(a) to prove for all moneys which the Company has paid under
this Deed for the account of the Indemnified Party; and
(b) to retain and to carry to a suspense account and to
appropriate at the discretion of the Indemnified Party any
dividends received in the Liquidation of the Borrower and
all other moneys received in respect of the Secured Money
(including those received under this clause),
until the Indemnified Party has been paid in full in respect of the
Secured Money.
2.10 RESCISSION OF PAYMENT
Whenever any of the following occurs for any reason (including
under any law relating to Liquidation, fiduciary obligations or the
protection of creditors):
(a) all or part of any transaction of any nature (including any
payment or transfer) made during the term of this Deed which
affects or relates in any way to the Secured Money is void,
set aside or voidable;
(b) any claim that anything contemplated by paragraph (a) is so
is upheld, conceded or compromised; or
(c) any Indemnified Party is required to return or repay any
money or asset received by it under any such transaction or
the equivalent in value of that money or asset,
each Indemnified Party will immediately become entitled against the
Company to all rights in respect of the Secured Money which it
would have had if all or the relevant part of the transaction or
receipt had not taken place. The Company shall indemnify each
Indemnified Party on demand against any resulting loss, cost or
expense. This clause continues after this Deed is discharged.
2.11 INDEMNITY
If any Secured Money (including moneys which would have been
Secured Money if they were recoverable) is not recoverable from the
Borrower for any reason the Company shall indemnify each
Indemnified Party and shall pay that money to the relevant
Indemnified Party within 3 Business Days of demand made from time
to time by the Indemnified Party. The reason may include any legal
limitation, disability, incapacity or thing affecting the Borrower.
This applies whether or not:
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(a) any transaction relating to the Secured Money was void or illegal or
has been subsequently avoided; or
(b) any matter or fact relating to that transaction was or ought to have
been within the knowledge of any Indemnified Party.
2.12 CONTINUING GUARANTEE AND INDEMNITY
This clause:
(a) is a continuing guarantee and indemnity;
(b) will not be taken to be wholly or partially discharged by the
payment at any time of any Secured Money or by any settlement of
account or other matter or thing; and
(c) remains in full force until the Secured Money has been paid in full
and the Company has completely performed its obligations under this
Deed.
2.13 VARIATIONS
This clause covers the Secured Money as varied from time to time including
as a result of:
(a) any amendment to, or waiver under, any Transaction Document; or
(b) the provision of further accommodation to the Borrower,
and whether or not with the consent of or notice to the Company. This does
not limit any other provision.
2.14 JUDGMENT
A judgment obtained against the Borrower will be conclusive against the
Company.
2.15 CONDITIONS PRECEDENT
Any condition or condition precedent to the provision of financial
accommodation is for the benefit of the Indemnified Parties and not the
Company. Any waiver of or failure to satisfy such a condition or condition
precedent will be disregarded in determining whether an amount is part of
the Secured Money.
3. EXPENSES
(a) The Company shall indemnify each Indemnified Party on demand against
any liability, loss, cost or expense (including legal costs on a
full indemnity basis) the Indemnified Party incurs in or as a result
of the actual or contemplated enforcement of this Deed.
(b) The Company shall have no obligation under this clause to the extent
that any liability, loss or expense arises solely from:
(i) the gross negligence or wilful misconduct of the Indemnified
Party (or any of its directors, officers, employees, agents,
affiliates or successors); or
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(ii) legal proceedings commenced against the Indemnified Party by
any security holder or creditor of the Indemnified Party
arising out of and based upon rights afforded any such
security holder or creditor solely in its capacity as such.
4. DEFAULT INTEREST
Interest will accrue each day on each amount which is due but unpaid under
or in respect of this Deed, both before and after judgment. The Company
will pay it on demand. The rate will be 1.5% per annum plus the Reuters
BBSY bid rate for consecutive funding periods of one month, or if there is
none, the rate reasonably selected by the Indemnified Party as equivalent.
5. SET OFF
(a) Each Indemnified Party may apply any credit balance in any currency
(whether or not matured) in any accounts of the Company with the
Indemnified Party towards satisfaction of any sum then due and
payable by the Company to the Indemnified Party under or in
relation to this Deed. An Indemnified Party need not make the
application.
(b) An Indemnified Party may exchange currencies to make that
application.
(c) The Indemnified Party shall notify the Company as soon as
reasonably practicable of any set-off and application under this
clause.
6. REPRESENTATIONS AND WARRANTIES
6.1 REPRESENTATIONS AND WARRANTIES
The Company makes the following representations and warranties.
(a) (FINANCIAL CONDITION) The most recent balance sheet of the Group
fairly presents in all material respects and in conformity with
GAAP the financial position of the Group as at the date to which it
relates. There has been no subsequent development or event which
has had, or would be reasonably expected to have, a Material
Adverse Effect.
(b) (STATUS) The Company and each Subsidiary of the Company is duly
incorporated or organised and is validly existing as a corporation
or other legal entity in good standing in the jurisdiction of its
incorporation or organisation.
(c) (POWER) The Company and each of its Subsidiaries has the corporate
or other power and authority to own, lease and operate its
properties and to conduct the business in which it is currently
engaged. Each of them is duly qualified to transact business as a
foreign corporation or other legal entity and is in good standing
or otherwise appropriately qualified in each jurisdiction where its
ownership, leasing or operation of property or the conduct of its
business requires such qualification, except to the extent that any
failure to be so qualified and in good standing would not be
reasonably expected to have a Material Adverse Effect.
(d) (COMPLIANCE) The Company and each of its Subsidiaries is in
compliance with all applicable Requirements of Law except to the
extent that failure to comply would not, in the aggregate, be
reasonably expected to have a Material Adverse Effect.
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(e) (CORPORATE AUTHORISATIONS) Each of the Company and the Borrower has
the power to enter into and perform its obligations under the
Transaction Documents to which it is expressed to be a party and
has taken all necessary corporate action to authorise the entry
into and performance of those documents and to carry out the
transactions contemplated by them. No consent or authorisation of,
filing with, notice to or other act by or in respect of any
Governmental Agency or any other person is required to be obtained
or made by or on behalf of the Company or the Borrower in
connection with the execution, delivery, performance, validity or
enforceability of those Transaction Documents.
(f) (DOCUMENTS BINDING) Each Transaction Document to which the Borrower
or the Company is expressed to be a party is a valid and binding
obligation of that entity enforceable against it in accordance with
its terms, subject to any necessary stamping and registration and
to applicable bankruptcy, insolvency, reorganisation, moratorium or
similar laws affecting the enforcement of creditors' rights
generally and to general equitable principles.
(g) (NO LEGAL BAR) The execution, delivery and performance of the
Transaction Documents by the Company or the Borrower did not and
will not:
(i) result in, or require, the creation or imposition of any
Lien on any of the Company's or the Borrower's assets or
property pursuant to any Requirement of Law or Contractual
Obligation; or
(ii) violate any Contractual Obligation or any Requirement of Law
applicable to the Borrower or the Company in any respect
that would reasonably be expected to have a Material Adverse
Effect.
(h) (NO MATERIAL LITIGATION) No litigation, arbitration, tax claim,
dispute or administrative or other proceeding is current or pending
or, to its best knowledge, threatened, which would be reasonably
expected to have a Material Adverse Effect.
(i) (NO DEFAULT) Neither the Company nor any of its Subsidiaries is in
default under any of its Contractual Obligations in a respect which
would be reasonably expected to have a Material Adverse Effect. No
Event of Default has occurred and is continuing.
(j) (TAXES) All United States federal income tax returns and all other
material tax returns which are required to be filed by or with
respect to the Company or any of its Subsidiaries have been filed,
and all taxes and assessments due and payable by any of them (or
for which they could be liable) have been paid, other than:
(i) those which are not yet delinquent;
(ii) those which, if not paid, would not be reasonably expected
to have a Material Adverse Effect; and
(iii) those which are currently being contested in good faith by
appropriate proceedings diligently conducted and with
respect to which reserves in conformity with GAAP have been
provided for in the accounts of the relevant entity.
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No material tax Lien (except those permitted by clause 8.2) has
been filed with respect to any such tax, fee or other charge.
(k) (INVESTMENT COMPANY ACT) The Company is not an INVESTMENT COMPANY,
or a company CONTROLLED by an INVESTMENT COMPANY, within the
meaning of the Investment Company Act of 1940. The Company is not
subject to regulation under any United States (Federal or State) or
other Requirement of Law which limits its ability to incur
indebtedness under this Deed.
6.2 RELIANCE ON REPRESENTATIONS AND WARRANTIES
The Company acknowledges that each Indemnified Party will enter into the
Transaction Documents in reliance on the representations and warranties in
this clause.
7. AFFIRMATIVE COVENANTS
The Company undertakes to each Indemnified Party as follows, except to the
extent that the Agent and the MTN Holders consent.
7.1 FINANCIAL STATEMENTS
The Company will deliver to the Agent (with a copy for each Lender) and
the Programme Manager (with a copy for each Dealer):
(a) as soon as practicable (but in event within 120 days) after the end
of each fiscal year of the Company, a copy of the consolidated
balance sheet of the Group as at the end of that year and the
related consolidated statements of income and retained earnings and
of cash flows for that year, setting out in each case in
comparative form the figures for the previous year, reported on in
accordance with clause 7.2(a); and
(b) as soon as practicable (but in any event within 60 days) after the
end of each of the first 3 quarterly periods of each fiscal year of
the Company, the unaudited consolidated balance sheet of the Group
as at the end of that quarter and the related unaudited
consolidated statements of income and retained earnings and of cash
flows for that quarter and for the portion of the fiscal year
through to the end of that quarter, setting out in comparative form
the figures for the previous year, certified by an Authorised
Officer of the Company as being fairly stated in all material
respects (subject to normal year-end audit adjustments).
All those financial statements must be complete and correct in all
material respects and must be prepared in reasonable detail and in
accordance with GAAP applied consistently throughout the periods reflected
in them and with prior periods (except as approved by the reporting
accountants or Authorised Officer, as applicable, and disclosed in them).
7.2 CERTIFICATES AND OTHER INFORMATION
The Company will deliver to the Agent (with a copy for each Lender) and
the Programme Manager (with a copy for each Dealer):
(a) concurrently with the delivery of the financial statements referred
to in clause 7.1(a), a certificate of independent certified public
accountants of nationally recognised standing selected by the
Company:
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(i) reporting on those financial statements without a GOING
CONCERN or like qualification or exception or qualification
arising out of the scope of the audit; and
(ii) stating that, after making the examination necessary for the
report, no knowledge was obtained of any Event of Default,
except as specified in the certificate;
(b) concurrently with the delivery of the financial statements referred
to in clauses 7.1(a) and 7.1(b), a certificate of an Authorised
Officer of the Company which:
(i) states that during the period covered by those financial
statements, the Company has, to the best of that person's
knowledge, observed or performed all its covenants and other
agreements under this Deed, and that the Authorised Officer
has no knowledge of any Event of Default except as specified
in the certificate; and
(ii) sets out in reasonable detail the calculations required to
determine compliance with clause 8.1;
(c) no later than 30 days after they are filed with the Securities and
Exchange Commission or any successor or analogous Governmental
Agency, final copies of all financial statements and material
reports which the Company may make to, or file with those entities
and final copies of all filings made by the Company with those
entities in connection with the sale of indebtedness of the Company
to the public or in connection with any asset-backed receivables
transaction entered into by the Company or its Subsidiaries
(including registration statements and prospectuses and amendments
to them); and
(d) promptly, such additional financial and other information as the
Agent or the Programme Manager may from time to time reasonably
request.
7.3 PAYMENT OF OBLIGATIONS
The Company will pay, discharge or otherwise satisfy at or before maturity
or before they become delinquent, all its obligations of whatever nature
except where:
(a) the amount or validity of the obligation is currently being
contested in good faith by appropriate proceedings and reserves in
conformity with GAAP have been provided in its accounts; or
(b) failure to do so could not, in the aggregate, have a Material
Adverse Effect and would not subject any of its property to a Lien
not permitted by clause 8.2.
7.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE
The Company will continue to engage in business of the same general type
as now conducted by it and preserve, renew and keep in full force its
corporate existence and take all reasonable action to maintain all rights,
privileges and franchises necessary or desirable in the normal conduct of
its business. It will comply with all its Contractual Obligations and
Requirements of Law except to the
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extent that failure to comply could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
7.5 MAINTENANCE OF PROPERTY AND INSURANCE
The Company will keep all property useful and necessary in its business in
good working order and condition. It will maintain insurance on all its
property, with financially sound and reputable insurance companies, for at
least such amounts and against at least such risks as are usually insured
against in the same general area by companies engaged in the same or
similar business (including, in any event, public liability, product
liability and business interruption insurance).
7.6 INSPECTION OF PROPERTY, BOOKS
The Company will keep proper books of record and account in which full,
true and correct entries, in conformity with GAAP and all applicable
Requirements of Law, will be made of all dealings and transactions in
relation to its business and activities. It will allow representatives of
the Agent and the Programme Manager to visit and inspect any of its
property and examine any of its books and records at any reasonable time
and with reasonable prior notice and it will allow them to discuss the
business, operations, property and financial and other condition of the
Group with its employees, officers and accountants.
7.7 NOTICE
The Company will promptly (but in any event no later than 3 days, or in
the case of paragraph (b), 10 days or in the case of paragraph (d), 30
days, in each case after an Authorised Officer of the Company knows of it)
give notice to the Agent and the Programme Manager of:
(a) the occurrence of any Event of Default;
(b) any:
(i) default or event of default under any Contractual Obligation
of the Company or any of its Subsidiaries; or
(ii) litigation, investigation or proceeding which may exist at
any time between the Company or any of its Subsidiaries and
a Governmental Agency,
which, in either case, if not cured or if adversely determined, as
applicable, could have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Company or any of its
Subsidiaries where the amount involved is the Threshold Amount or
more and not covered by insurance or where injunctive or similar
relief is sought; and
(d) any development or event which has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice under this clause shall be accompanied by a statement of an
Authorised Officer of the Company setting out details of the event
referred to in it and any remedial action taken or proposed.
7.8 SUBSIDIARIES
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The Company will ensure that each of its Material Subsidiaries complies
with clauses 7.3 to 7.7 inclusive as if binding on each of them and as if
references to IT or THE COMPANY were to the Material Subsidiary.
8. NEGATIVE COVENANTS
The Company undertakes to each Indemnified Party as follows, except to the
extent that the Agent and the MTN Holders consent.
8.1 FINANCIAL CONDITION, RATIOS
(a) The Company will ensure that the ratio of Case Credit Debt to
Consolidated Net Worth of the Company is never greater than 8.00 to
1.00.
(b) The Company will ensure that the Fixed Charge Ratio for any period
of four consecutive fiscal quarters ending on the last day of any
fiscal quarter of the Company is never less than 1.10 to 1.00.
8.2 LIMITATION ON LIENS
The Company will not, and it will ensure that each of its Subsidiaries
will not, create, incur, assume or suffer to exist any Lien on any of its
property, assets or revenue, whether now owned or acquired later, other
than:
(a) Liens for taxes not yet due and payable or which are being
contested in good faith by appropriate proceedings, provided it has
set aside adequate reserves in conformity with GAAP;
(b) Liens consisting of pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers
under insurance or self-insurance arrangements;
(c) Liens consisting of rights of lessees under leases, easements,
rights-of-way, restrictions and other similar encumbrances incurred
in the ordinary course of business which, in the aggregate, are not
substantial in amount and which do not in any case materially
detract from the value of the property or materially interfere with
the ordinary conduct of its business;
(d) Liens consisting of deposits to secure the performance of leases
(other than Financing Leases), statutory obligations, surety and
appeal bonds and other obligations of a like nature incurred in the
ordinary course of its business;
(e) Liens created by the Company in favour of itself;
(f) Liens granted pursuant to any securitisation or other asset-based
financing of Receivables and Receivables Related Assets, and which
cover only Receivables and Receivables Related Assets or any
undivided or beneficial ownership interest in any Receivables or
Receivables Related Assets;
(g) Liens in existence on the date of this Deed and listed in the
schedule, provided that:
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(i) no such Lien is extended to cover any additional property
after the date of this Deed (except to the extent required
by the terms of the Indebtedness secured by the Lien, or by
any other agreement governing the Lien, as those terms are
in effect on the date of this Deed);
(ii) no such Lien secures any Indebtedness or other obligations
other than Indebtedness or obligations secured by it on the
date of this Deed and refinancings, refundings, renewals or
extensions of that Indebtedness or obligation; and
(iii) the amount of Indebtedness or other obligations secured by
the Lien is not increased;
(h) Liens on assets of Subsidiaries of the Company which become
Subsidiaries after the date of this Deed or Liens on assets
acquired by the Company or any of its Subsidiaries after the date
of this Deed, provided that:
(i) the Liens were in existence at the time the Subsidiary
became a Subsidiary or at the time the assets were acquired;
and
(ii) the Liens were not created in contemplation of the
transaction pursuant to which the Subsidiary became a
Subsidiary or in contemplation of the acquisition of those
assets; and
(i) in addition to Liens permitted by paragraphs (a) to (h) of this
clause, Liens on assets of the Company or any of its Subsidiaries
securing Indebtedness of the Company or such Subsidiary, provided
that the aggregate principal amount of all Indebtedness secured by
such Liens, plus the aggregate outstanding amount of all
Attributable Debt in respect of all sale and leaseback transactions
to which the Company or any Restricted Subsidiary is a party, does
not exceed at the time such Liens are granted an amount equal to
the sum of:
(i) US$20,000,000; and
(ii) 5% of Consolidated Net Tangible Assets of the Group.
In calculating the amount of Attributable Debt permitted under this
paragraph, there shall be excluded all Attributable Debt in respect
of sale and leaseback transactions relating to assets of
Subsidiaries of the Company which become Subsidiaries after the
date of this Deed if those transactions were in existence at the
time the Subsidiary became a Subsidiary and were not created in
contemplation of the transaction pursuant to which the Subsidiary
became a Subsidiary.
8.3 LIMITATION ON FUNDAMENTAL CHANGES
(a) Subject to paragraph (b), the Company will not enter into any
merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or
convey, sell, lease, assign, transfer or otherwise dispose of, all
or substantially all of its property, business or assets.
(b) An entity may be merged or consolidated with or into the Company
if:
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(i) the Company is the continuing or surviving corporation; or
(ii) the Indebtedness under this Deed is assumed by the surviving
corporation with the approval of the Agent and the MTN
Holders by Extraordinary Resolution.
8.4 LIMITATION ON LINES OF BUSINESS
The Company will not enter into any business, either directly or through
any Subsidiary, other than:
(a) the financing of Receivables of Case Corporation, its Subsidiaries
and their dealers and customers;
(b) other financial services related to the agricultural and
construction business; and
(c) other business, if the business of the Group taken as a whole is
limited substantially to the businesses described in paragraphs (a)
and (b) above.
9. NO WAIVER
No failure to exercise a power, and no delay in exercising a power,
operates as a waiver. Waivers must be in writing.
10. SEVERABILITY OF PROVISIONS
Any provision of this Deed which is prohibited or unenforceable in any
jurisdiction is ineffective as to that jurisdiction to the extent of the
prohibition or unenforceability. That does not invalidate the remaining
provisions of this Deed nor affect the validity or enforceability of that
provision in any other jurisdiction.
11. SURVIVAL OF REPRESENTATIONS
All representations and warranties in this Deed survive its execution and
delivery.
12. INDEMNITY AND REIMBURSEMENT OBLIGATIONS
Unless otherwise stated, each indemnity, reimbursement or similar
obligation in this Deed:
(a) is a continuing obligation;
(b) is a separate and independent obligation;
(c) is payable on demand; and
(d) survives termination or discharge of this Deed.
13. MORATORIUM LEGISLATION
To the full extent permitted by law all legislation which at any time
directly or indirectly:
(a) lessens, varies or affects in favour of the Company any obligation
under this Deed; or
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(b) delays, prevents or prejudicially affects the exercise by an
Indemnified Party of any right, power or remedy conferred by this
Deed,
is excluded from this Deed.
14. ACKNOWLEDGMENT BY COMPANY
The Company confirms that:
(a) it has not entered into this Deed in reliance on, or as a result
of, any statement or conduct of any kind of or on behalf of any
Indemnified Party (including, without limitation, any advice,
warranty, representation or undertaking); and
(b) no Indemnified Party is obliged to do anything (including, without
limitation, disclose anything or give advice), except as expressly
set out in the Transaction Documents or in writing duly signed by
or on behalf of that Indemnified Party.
15. GOVERNING LAW
This Deed is governed by the laws of New South Wales.
16. JURISDICTION
16.1 JURISDICTION
With respect to any legal action or proceedings which may be brought at
any time with respect to this Deed (each a RELEVANT ACTION) the Company
irrevocably:
(a) submits to and accepts, for itself and in respect of its assets,
generally and unconditionally the non-exclusive jurisdiction of all
courts exercising jurisdiction in New South Wales; and
(b) waives any present or future objection to the venue and any present
or future claim that the Relevant Action, if brought in New South
Wales, has been brought in an inconvenient forum.
16.2 PROCESS AGENTS
(a) The Company irrevocably:
(i) nominates the Borrower as its agent to receive service of
process or other documents in any Relevant Action; and
(ii) agrees that service on that agent or any other person
appointed under paragraph (b) will be sufficient service on
it.
(b) The Company shall ensure that the process agent remains authorised
to accept service on its behalf. If any process agent ceases to
have an office in the place specified, the Company shall ensure
that at all times there is another person in that place to receive
process on its behalf. It shall promptly notify the Agent and the
Programme Manager of the appointment of that other person.
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17. COUNTERPARTS
This Deed may be executed in any number of counterparts. All of
counterparts together will be taken to constitute the one instrument.
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SCHEDULE
EXISTING LIENS
(Clause 8.2(g))
None.
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EXECUTED as a deed poll.
Each attorney executing this Deed states that he has no notice of revocation or
suspension of his power of attorney.
SIGNED SEALED AND DELIVERED )
for and on behalf of )
CASE CREDIT CORPORATION )
by its attorney in )
the presence of: ) /s/ Peter Hong (sgd)
-----------------------
Attorney
PETER HONG
-----------------------
Print name
/s/ Andrew Mohr (sgd)
- ------------------------
Witness
ANDREW MOHR
- ------------------------
Print name
<PAGE>
CONFORMED COPY
CASE CREDIT CORPORATION
-------------------------------------
DEED OF GUARANTEE AND NEGATIVE PLEDGE
-------------------------------------
<PAGE>
CONFORMED COPY
NEW SOUTH WALES
STAMP DUTY PAID $2
- --------------------------------------------------------------------------------
BILL FACILITY AGREEMENT
- --------------------------------------------------------------------------------
AGREEMENT dated 17 October 1997 between:
1. CASE CREDIT AUSTRALIA PTY LIMITED (ACN 069 132 396) incorporated in
Victoria, with its principal place of business at 31-67 Kurrajong Avenue,
St Marys, New South Wales (the BORROWER);
2. EACH BANK OR FINANCIAL INSTITUTION named in the schedule (each, a
PARTICIPANT); and
3. NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937) of Level 26, 255 George
Street, Sydney as agent for the Participants (in this capacity, the
AGENT).
RECITAL
The Borrower and the Guarantor have requested the Agent and the Participants to
provide the Borrower with a bill acceptance and discount facility of an amount
up to A$400,000,000.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
ACCOUNTS means profit and loss accounts, balance sheets and cashflow
statements together with any statements, reports (including any directors'
and auditors' reports) and notes attached to or intended to be read with
any of them.
AFFILIATE means, in relation to any person, any other person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with that person. For the purposes of this
definition, control of a person means the power, directly or indirectly,
either to:
(a) vote 10% or more of the securities or other equity interests having
ordinary voting power for the election of directors or other
governing bodies of that person; or
(b) direct or cause the direction of the management and policies of the
person, whether by contract or otherwise.
ASSOCIATE of an entity means a RELATED PARTY as defined in s243F of the
Corporations Law.
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AUTHORISATION includes:
(a) any consent, authorisation, registration, filing, lodgement,
agreement, notarisation, certificate, permission, licence, approval,
authority or exemption from, by or with a Government Agency; or
(b) in relation to anything which will be fully or partly prohibited or
restricted by law if a Government Agency intervenes or acts in any
way within a specified period after lodgement, filing, registration
or notification, the expiry of that period without intervention or
action.
AUTHORISED OFFICER means:
(a) in respect of the Borrower, any director or secretary of the
Borrower, the Treasurer of the Guarantor, or any person from time to
time nominated as an Authorised Officer by the Borrower by a notice
to the Agent accompanied by certified copies of signatures of all
new persons so appointed; and
(b) in respect of the Agent or a Participant, any person whose title or
acting title includes the word MANAGER or PRESIDENT or cognate
expressions, or any secretary or director.
BBR for a period is:
(a) the Reuters screen page BBSY bid rate for that period at about
10.15am on the first day of that period, or if there is none, the
rate selected by the Agent as equivalent; or
(b) in the case of a Participant's participation in any Same Day
Segment, that Participant's bank bill rate for that period on the
first day of that period.
Rates will be rounded upward if necessary to 3 decimal places.
BILL means a BILL OF EXCHANGE as defined in the Bills of Exchange Act 1909
which is, or is to be, accepted or discounted under this Agreement.
BUSINESS DAY means a weekday on which banks are open for business in
Sydney and Melbourne.
CASE VENDOR FINANCING means financing which is provided by a person other
than Case Corporation Pty Limited or any of its Subsidiaries or
Affiliates, to a customer of Case Corporation Pty Limited or of any of its
Subsidiaries or Affiliates.
COMMITMENT in relation to a Participant for Tranche A means the amount
against its name in column 3 of the schedule and for Tranche B means the
amount against its name in column 4 of the schedule, as reduced or
cancelled under this Agreement.
CONTRACTUAL OBLIGATION means, in relation to any person, any provision of
any security issued by that person or of any agreement, instrument or
other undertaking to which the person is a party or by which it or any of
its property is bound.
DRAWDOWN DATE means the date on which any accommodation under this
Agreement is or is to be drawn.
DRAWDOWN NOTICE means a notice under clause 5.
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EVENT OF DEFAULT means any of the events specified in clause 17.1.
FINANCING LEASE means any lease of property, real or personal, in respect
of which the lessee's obligations are required, in accordance with current
accounting practice, to be capitalised on the lessee's balance sheet.
FUNDING PERIOD means the term of the Bills comprising a Segment. That
period commences on the Drawdown Date of that Segment and has a duration
selected under clause 7.
GOVERNMENT AGENCY means any government or any governmental, semi-
governmental or judicial entity or authority. It also includes any self-
regulatory organisation established under statute or any stock exchange.
GROUP means the Borrower and each of its Subsidiaries from time to time.
GROUP MEMBER means any of them.
GUARANTEE means any guarantee, indemnity, letter of comfort or other
assurance against loss. It includes any obligation to be responsible for
the solvency or financial condition of another party, or for payment of
Indebtedness of another party, either directly or indirectly (for example,
by acquiring the Indebtedness).
GUARANTEE DEED POLL means the guarantee and negative pledge deed poll
dated on or about the date of this Agreement by the Guarantor in favour
of, among others, the Indemnified Parties.
GUARANTEE OBLIGATION in relation to any person (the GUARANTEEING PERSON)
means, without duplication, any obligation of:
(a) the guaranteeing person; or
(b) another person (including any bank under any letter of credit) the
creation of which was induced by the guaranteeing person issuing a
reimbursement, counter indemnity or similar obligation,
in either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the PRIMARY OBLIGATIONS) of any
person (the PRIMARY OBLIGOR) in any manner, whether directly or
indirectly. It includes an obligation of the guaranteeing person, whether
or not contingent:
(i) to purchase any such primary obligation or any property
constituting direct or indirect security for it;
(ii) to advance or supply funds for the purchase or payment of any such
primary obligation or to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor;
(iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of the primary
obligation; or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect of it.
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It does not include endorsement of instruments for deposit or collection in
the ordinary course of business or obligations in respect of trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices.
Without limiting any Guarantee given in respect of the Secured Money, the
amount of any Guarantee Obligation of any GUARANTEEING PERSON will be taken
to be the lower of:
(A) an amount equal to the stated or determinable amount of the PRIMARY
OBLIGATION in respect of which the Guarantee Obligation is made; and
(B) the maximum amount for which the guaranteeing person may be liable
under the terms of the instrument embodying the Guarantee
Obligation,
unless the primary obligation and the maximum amount for which the
guaranteeing person may be liable are not stated or determinable, in which
case the amount of the Guarantee Obligation will be the guaranteeing
person's maximum reasonably anticipated liability in respect of it as
determined by the Borrower in good faith.
GUARANTOR means Case Credit Corporation, a company incorporated in Delaware
with its principal office at 233 Lake Street, Racine, Wisconsin, 53403,
USA.
INDEBTEDNESS in relation to any person at any time, means, without
duplication:
(a) all indebtedness of the person for borrowed money or for the
deferred purchase price of property or services (other than trade
liabilities incurred in the ordinary course of business and payable
in accordance with customary practices);
(b) any other indebtedness of the person which is evidenced by a note,
bond, debenture or similar instrument;
(c) all obligations of the person as lessee under Financing Leases;
(d) the discounted amount of all obligations of the person in respect of
acceptances issued or created for the account of the person;
(e) all liabilities secured by any Lien on any property owned by the
person even though the person has not assumed or otherwise become
liable for the payment of it;
(f) all net liabilities of the person in respect of Interest Rate
Agreements;
(g) all Guarantee Obligations in respect of Indebtedness referred to in
the preceding paragraphs of this definition; and
(h) if the person is the Borrower or any of its Subsidiaries, all
obligations of that person incurred in connection with any
securitisation or other asset-backed financing of Receivables, to
the extent those obligations are excluded from the definition of
Permitted Securitisation Obligations by operation of the proviso to
that definition.
Despite the above, Permitted Vendor Financing Obligations do not constitute
Indebtedness under this definition.
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INDEMNIFIED PARTY means the Agent or a Participant.
INTEREST RATE AGREEMENT means any interest rate protection agreement,
interest rate future, interest rate option, interest rate cap or other
interest rate hedge arrangement.
LIEN means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatever (including any
conditional sale or other title retention agreement and any Financing Lease
having substantially the same economic effect as any of the above).
LIQUIDATION includes receivership, compromise, arrangement, amalgamation,
administration, reconstruction, winding up, dissolution, assignment for the
benefit of creditors, bankruptcy or death.
MAJORITY PARTICIPANTS means Participants whose Commitments are two thirds
or more of the sum of the Commitments.
MARGIN:
(a) in respect of Tranche A, means:
(ii) until the first anniversary of the date of this Agreement,
0.185% per annum; and
(iii) afterwards, the same rate per cent per annum as applies from
time to time under paragraph (b);
(b) in respect of Tranche B, will vary depending on the long term debt
rating of the Guarantor by Standard & Poors and Moody's Investors
Service Pty Ltd and will be the figure which corresponds to the
relevant long term debt rating below:
LONG TERM DEBT RATING MARGIN
S&P/MOODY'S
A/A2 0.155%
A-/A3 0.170%
BBB+/Baa1 0.200%
BBB/Baa2 0.250%
BBB-/Baa3 0.275%
BB+/Ba 0.425%
BB/Baa2 or lower 0.575%
Where the ratings of those agencies do not coincide, the Margin
corresponding to the higher of those ratings will apply.
MARKETABLE SECURITY has the meaning given in the Corporations Law, but also
includes a document referred to in the exceptions to the definition of
DEBENTURE in the Corporations Law.
MATERIAL ADVERSE EFFECT means a material adverse effect on:
(a) the business, operations, property or condition (financial or
otherwise) of the Group;
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(b) the ability of the Borrower or the Guarantor to perform its
obligations under this Agreement or any other Transaction Document;
or
(c) the rights or remedies of the Agent or Participants under the
Transaction Documents.
MATERIAL SUBSIDIARY means any Subsidiary of the Borrower whose assets or
revenues (excluding inter-company receivables and revenues that would be
eliminated upon consolidation in accordance with current accounting
practice) are, at the time of determination, equal to or greater than 10%
of the assets or revenues (excluding inter-company receivables and revenues
that would be eliminated upon consolidation in accordance with current
accounting practice), respectively, of the Borrower at such time.
PERMITTED SECURITISATION OBLIGATIONS means obligations of the Borrower or
any of its Subsidiaries incurred in connection with any securitisation or
other asset-backed financing of Receivables; except that, if:
(a) there is recourse to the Borrower or any of its Subsidiaries (other
than a Special Purpose Subsidiary) for failure to pay or otherwise
perform any of those obligations;
(b) that failure arises as a result of credit defaults by the debtors in
respect of those Receivables; and
(c) that recourse is not limited to the Receivables and the Receivables
Related Assets (or undivided or beneficial interests in them) which
are the subject of such securitisation or other asset-backed
financing,
then those obligations will not be considered Permitted Securitisation
Obligations within the meaning of this definition to the extent that, in
accordance with current accounting practice, the obligations would be
required to be included as a liability on a consolidated balance sheet of
the Group.
PERMITTED VENDOR FINANCING OBLIGATIONS means any Guarantee Obligation of
the Group in respect of Case Vendor Financing, but only to the extent that
the underlying principal amount of the Indebtedness subject to the
Guarantee Obligation is secured or otherwise funded by the Group with cash
or other marketable instruments (including pledges of deposit accounts,
notes, bonds, certificates of deposit or other documents or instruments).
POTENTIAL EVENT OF DEFAULT means anything which with notice, time or both
would become an Event of Default.
PRINCIPAL OUTSTANDING means the total principal amount of all outstanding
Segments.
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 from the financing by the Borrower or any
of its Subsidiaries of property or services, and money due under them,
security interests in the property and services financed by them and all
other related rights.
RECEIVABLES RELATED ASSETS means in connection with any securitisation or
other asset-backed financing of, or other sale, transfer or disposition of,
Receivables, the collective reference to:
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(a) any rights arising under the documentation governing or relating to
those Receivables (including rights in respect of Liens securing the
Receivables and other credit support in respect of them);
(b) any proceeds of the Receivables and any locked boxes or accounts in
which those proceeds are deposited;
(c) spread accounts and other similar accounts (and any amounts on
deposit in them) established in connection with that securitisation
or asset-backed financing; and
(d) any warranty, indemnity, dilution and other intercompany claim
arising out of the documentation evidencing that securitisation or
asset-backed financing.
RELATED ENTITY means an entity which is related within the meaning of s50
of the Corporations Law, but as if BODY CORPORATE includes any entity.
RELEVANT COMPANY means:
(a) the Borrower or any of its Subsidiaries; or
(b) the Guarantor or another person who gives or creates a Guarantee or
Lien which secures any Secured Money.
REPAYMENT DATE means:
(a) for Tranche A, the date which is 364 days after the date of this
Agreement or any later date agreed from time to time in accordance
with clause 4.4; and
(b) for Tranche B, the fifth anniversary of the date of this Agreement.
REQUIREMENT OF LAW means, in relation to any person, the certificate of
incorporation and by-laws or other organisational or governing documents of
that person, and any law, treaty, rule, guideline or regulation or
determination of an arbitrator or a court or other Government Agency, in
each case applicable to or binding on that person or any of its material
property or to which that person or any of its material property is
subject.
REVOLVING CREDIT AGREEMENT means the revolving credit and guarantee
agreement dated as of 23 August 1996 between the Guarantor as a Borrower,
The Chase Manhattan Bank as Administrative Agent and the other Borrowers,
Lenders, Co-Agents and Lead Managers named in it.
SAME DAY SEGMENT means a Segment of Tranche A which is drawn on a SAME DAY
BASIS as permitted by clause 5.2.
SECURED MONEY means all money which the Borrower (whether alone or not) is
or at any time may become actually or contingently liable to pay to or for
the account of an Indemnified Party (whether alone or not) for any reason
whatever under or in connection with a Transaction Document.
It includes money by way of principal, interest, fees, costs, indemnities,
charges, duties or expenses or payment of liquidated or unliquidated
damages under or in connection with a Transaction Document, or as a result
of a breach of or default under or in connection with a Transaction
Document.
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Where the Borrower would have been liable but for its Liquidation, it will
be taken still to be liable.
SEGMENT means all Bills accepted or to be accepted under this Agreement
which comprise the same Tranche and have the same date and term and all
loans taken to be made under clause 10.2 in relation to those Bills.
SHARE of a Participant, in respect of a Segment, means the proportion of
that Participant's participation in that Segment to the amount of the
Segment. That proportion will be determined under clause 3.2.
SPECIAL PURPOSE SUBSIDIARY means any wholly owned Subsidiary of the
Borrower which is:
(a) formed for the purpose of effecting a securitisation or other asset-
backed financing of Receivables and engaging in other reasonably
related activities; and
(b) structured as a BANKRUPTCY-REMOTE SUBSIDIARY in accordance with
customary practices in the asset-backed securitisation market.
SUBSIDIARY has the meaning given in the Corporations Law, but an entity
will also be taken to be a Subsidiary of an entity if it is controlled by
that entity (expressions used in this paragraph have the meanings given for
the purposes of Parts 3.6 and 3.7 of the Corporations Law) and, without
limitation:
(a) a trust may be a Subsidiary, for the purposes of which a unit or
other beneficial interest will be regarded as a share; and
(b) an entity may be a Subsidiary of a trust if it would have been a
Subsidiary if that trust were a corporation.
SUPPORT AGREEMENT means the Support Agreement dated 10 January 1996 between
Case Corporation and the Guarantor.
TAX means any tax, levy, impost, deduction, charge, rate, duty, compulsory
loan or withholding which is levied or imposed by a Government Agency, and
any related interest, penalty, charge, fee or other amount.
THRESHOLD AMOUNT means US$60,000,000.
TRANCHE means Tranche A or Tranche B.
TRANCHE A means financial accommodation provided or to be provided under
this Agreement which is requested as Tranche A in the relevant Drawdown
Notice.
TRANCHE B means financial accommodation provided or to be provided under
this Agreement which is requested as Tranche B in the relevant Drawdown
Notice.
TRANSACTION DOCUMENT means this Agreement, the Guarantee Deed Poll, any
Bill, any Guarantee or Lien in respect of any of the Secured Money or a
document or agreement entered into or provided under or in connection with,
or for the purpose of amending or novating, any of the above. It includes a
written undertaking by or to a party or its lawyers under or in relation to
any of the above.
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1.2 INTERPRETATION
Headings are for convenience only and do not affect interpretation. The
following rules apply unless the context requires otherwise.
(a) The singular includes the plural and the converse.
(b) A gender includes all genders.
(c) Where a word or phrase is defined, its other grammatical forms have
a corresponding meaning.
(d) A reference to a person, corporation, trust, partnership,
unincorporated body or other entity includes any of them.
(e) A reference to a clause, annexure or schedule is a reference to a
clause of, or annexure or schedule to, this Agreement.
(f) A reference to a party to this Agreement or another agreement or
document includes the party's successors and permitted substitutes
or assigns.
(g) A reference to legislation or to a provision of legislation includes
a modification or re-enactment of it, a legislative provision
substituted for it and a regulation or statutory instrument issued
under it.
(h) A reference to WRITING includes a facsimile transmission and any
means of reproducing words in a tangible and permanently visible
form.
(i) A reference to CONDUCT includes an omission, statement or
undertaking, whether or not in writing.
(j) Mentioning anything after INCLUDE, INCLUDES or INCLUDING does not
limit what else might be included.
(k) A reference to DISCOUNTING a Bill includes selling it as agent for
the Borrower.
(l) A reference to an ASSET includes any real or personal, present or
future, tangible or intangible property or asset (including
intellectual property) and any right, interest, revenue or benefit
in, under or derived from the property or asset.
(m) All references to TIME are to Sydney time.
(n) A reference to an amount for which a person is CONTINGENTLY LIABLE
includes an amount which that person may become actually or
contingently liable to pay if a contingency occurs, whether or not
that liability will actually arise.
1.3 OUTSTANDING BILLS
A reference to an OUTSTANDING BILL is to a Bill which has been accepted or
discounted under this Agreement for which the Borrower has not paid the
face amount or provided cash cover under this Agreement. This applies
whether or not that Bill has matured, been presented for payment or been
paid on presentation by the relevant Participant.
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1.4 PRINCIPAL AMOUNT
A reference to the PRINCIPAL AMOUNT of all or part of a Segment is to the
sum of the face amount of the Bills comprising that Segment or part.
1.5 DOCUMENT OR AGREEMENT
A reference to:
(a) an AGREEMENT includes a Lien, Guarantee, undertaking, deed,
agreement or legally enforceable arrangement whether or not in
writing; and
(b) a DOCUMENT includes an agreement (as so defined) in writing or a
certificate, notice, instrument or document.
A reference to a specific agreement or document includes it as amended,
novated, supplemented or replaced from time to time, except to the extent
prohibited by this Agreement.
1.6 DETERMINATION, STATEMENT AND CERTIFICATE
Except where otherwise provided in this Agreement any determination,
statement or certificate by the Agent or an Authorised Officer of the
Agent provided for in this Agreement is sufficient evidence unless proven
wrong.
1.7 CURRENT ACCOUNTING PRACTICE
A reference to CURRENT ACCOUNTING PRACTICE is to accounting principles and
practices applying by law or otherwise generally accepted in Australia,
consistently applied.
1.8 FAILURE TO NOTIFY
Unless otherwise provided in this Agreement, failure by the Agent to give
notice of anything to the Borrower or a Participant will not affect the
obligations of the Borrower in any way.
2. PURPOSE
The Borrower shall use the net proceeds of all accommodation provided
under this Agreement:
(a) to refinance its existing indebtedness;
(b) to provide liquidity support for the $1,000,000,000 promissory note
and medium term note programme established for the Borrower under a
dealership agreement dated on or about the date of this Agreement;
and
(c) for its general corporate purposes,
but for no other purpose.
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3. COMMITMENT
3.1 COMMITMENTS
(a) Subject to this Agreement each Participant agrees with the Borrower
to accept and discount bills comprising its participation in each
Segment.
(b) A Participant is not obliged to make, accept or discount Bills if as
a result the total face amount of its participation in all
outstanding Segments of a Tranche would exceed its Commitment for
that Tranche.
3.2 ALLOCATION AMONG PARTICIPANTS
(a) Subject to this clause, the Participants shall participate in each
Segment of a Tranche ratably according to their respective
Commitments for that Tranche.
(b) Subject to paragraph (d), the Borrower may request any Participant
to provide more than its ratable share of any Segment of Tranche A.
Without limitation, it may request any Participant to provide the
whole of that Segment. The Participant may, but is not obliged, to
do so.
(c) If agreement is reached between the Borrower and a Participant
under paragraph (b) they shall confirm it in writing and the
Borrower shall promptly notify the Agent. A copy of that agreement
must be attached to the Drawdown Notice for the Segment.
(d) No Participant is obliged to participate in a Segment of Tranche A
for an amount less than its ratable share determined in accordance
with paragraph (a).
(e) If a disproportionate drawing is made under paragraph (b) the
Borrower will use its best endeavours to request further drawings
so that the overall participation of each Participant in Tranche A
accords with paragraph (a).
3.3 OBLIGATIONS SEVERAL
The obligations and rights of each Participant under this Agreement are
several and:
(a) failure of a Participant to carry out its obligations will not
relieve any other Participant of its obligations;
(b) no Participant is responsible for the obligations of any other
Participant or the Agent; and
(c) subject to the provisions of the Transaction Documents each
Participant may separately enforce its rights under any Transaction
Document.
3.4 ENFORCEMENT THROUGH AGENT
Each Participant acknowledges that the rights and remedies of the
Participants under the Transaction Documents are also vested in the Agent,
and a Participant may not:
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(a) exercise those rights and remedies unless the Agent has failed to
exercise those rights and remedies within a reasonable time after
the Majority Participants have instructed it to do so; or
(b) take any proceedings for the Liquidation of the Borrower, unless
the Agent has given a notice under clause 17.2(a).
4. CANCELLATION OF COMMITMENTS - REDUCTION OF PRINCIPAL
OUTSTANDING
4.1 REPAYMENT DATES
The Commitments for Tranche A and Tranche B will be cancelled
automatically on the Repayment Date for the respective Tranches.
4.2 REDUCTION OF PRINCIPAL OUTSTANDING
The Borrower shall reduce the Principal Outstanding to the extent
necessary to ensure that it does not exceed at any time the sum of the
Commitments.
4.3 VOLUNTARY EARLY CANCELLATION
(a) Subject to this clause, the Borrower may cancel all or part of the
Commitments, whether for Tranche A or Tranche B or both at the same
time, by giving at least 30 days' notice to the Agent. That notice
is irrevocable.
(b) The relevant amount of the Commitments are cancelled automatically
on expiry of that notice.
(c) Partial cancellations must be in multiples of A$20,000,000 or any
other amount approved by the Agent.
(d) Cancellations affecting utilised Commitments under this clause may
only be made on the last day of the Funding Period of Segments of a
total principal amount equal to the cancelled utilised Commitments.
4.4 EXTENSION OF TRANCHE A REPAYMENT DATE
(a) The Borrower may request an extension of the Repayment Date for
Tranche A by a period of 364 days.
(b) If the Borrower wishes to make a request under paragraph (a) it
must give the Agent notice of that request not less than 30 days
and not more than 60 days before the Repayment Date.
(c) If the Participants:
(i) approve the requested extension, then the Repayment Date for
Tranche A will be considered to have been extended by a
period of 364 days; or
(ii) do not approve the requested extension, then the Repayment
Date for Tranche A will remain unchanged.
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(d) The Borrower may make requests under paragraph (a) in relation to
successive Repayment Dates but may not make more than one request
in relation to any particular Repayment Date.
4.5 APPLICATION AGAINST COMMITMENTS
Unless the Borrower specifies otherwise, cancellations under this clause
will be applied first against undrawn Commitments and then against
utilised Commitments.
4.6 ALLOCATION AMONG PARTICIPANTS
Cancellations and reductions of Commitments and the Principal Outstanding
under this clause in respect of a Tranche will be applied ratably among
the Participants according to their applicable Commitments and
participations in the Principal Outstanding.
4.7 NOTIFICATION
The Agent shall notify each Participant promptly of any notice received by
it under this clause and of the amount of that Participant's Commitment
which is cancelled or reduced.
5. DRAWDOWN NOTICES
5.1 WHEN NOTICE TO BE GIVEN
(a) To make a drawing the Borrower shall give to the Agent an
irrevocable Drawdown Notice substantially in the form of annexure
A, complying with clause 3.2(c) (to the extent it applies) and
specifying among other things whether the Segment belongs to
Tranche A or Tranche B and the amount and Funding Period of each
Segment.
(b) Subject to clause 5.2, that Drawdown Notice must be received by the
Agent by 10.30am 2 Business Days before the proposed Drawdown Date
(which must be a Business Day).
5.2 FUNDS DRAWN ON SAME DAY BASIS
(a) Subject to this Agreement, the Borrower may request any Segment of
Tranche A on a SAME DAY BASIS. In that case the Drawdown Notice
must specify that the Segment is drawn on that basis and must be
received by the Agent by 2pm on the proposed Drawdown Date (which
must be a Business Day).
(b) The total principal amount of all outstanding Same Day Segments
must not exceed at any time A$50,000,000.
5.3 NOTIFICATION OF PARTICIPANTS
The Agent shall notify each Participant promptly of the contents of each
Drawdown Notice and the amount of each Participant's Share of each Segment
requested.
6. PRINCIPAL AMOUNT OF SEGMENTS
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The Borrower shall ensure that the principal amount of each Segment is a
minimum of A$10,000,000 and a whole multiple of A$1,000,000 or the sum of
the undrawn Commitments for the relevant Tranche, unless the Agent agrees
otherwise.
7. SELECTION OF FUNDING PERIODS
(a) Subject to this clause, the Borrower may only select Funding Periods
of 1, 2, 3 and 6 months.
(b) The Borrower may select any other period which does not exceed 180
days agreed by the Agent.
(c) Should a Funding Period end on a day which is not a Business Day,
that Funding Period will be extended to the next Business Day in the
same calendar month or, if none, the preceding Business Day.
(d) If a Funding Period of a number of months starts on a date in a
month and there is no corresponding date in the month in which it is
to end, it will end on the last Business Day of the latter month.
(e) No Funding Period may extend beyond the Repayment Date for the
relevant Tranche. The Borrower shall select Funding Periods so as
to ensure that the Repayment Date for a Tranche coincides with the
last day of Funding Periods of all outstanding Segments of that
Tranche.
(f) If the Borrower fails to select Funding Periods complying with this
clause the Agent may vary any Drawdown Notice to ensure compliance.
8. PROCEDURE
8.1 PREPARATION OF BILLS
If the Borrower requests a Segment, then:
(a) the Agent shall promptly notify the Participants; and
(b) each Participant shall prepare the Bills comprising the Segment to
be drawn on it (if any) and sign them on behalf of the Borrower as
drawer.
8.2 REQUIREMENTS OF BILLS
Bills prepared under this clause must comply with the following.
(a) The total face amount of the Bills comprising a Segment must equal
the principal amount requested in the relevant Drawdown Notice.
(b) Each Bill must:
(i) to the extent practicable, have a face amount of A$500,000
or any other amount specified by the Agent;
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(ii) be expressed to be drawn by the Borrower on a Participant so
that the total face amount of the Bills drawn on each
Participant will equal its Share (if any) of the principal
amount of the relevant Segment;
(iii) have the Participant on which the Bill is drawn named as payee;
and
(iv) mature on the last day of the relevant Funding Period requested
in the relevant Drawdown Notice.
8.3 AUTHORITY OF PARTICIPANTS TO PREPARE BILLS
The Borrower irrevocably and for value authorises each Participant to
complete, perfect and deliver Bills under this clause. The Participants
may act through their Authorised Officers.
8.4 RESTRICTION ON USE OF BILLS BY AGENT AND PARTICIPANTS
Neither the Agent nor any Participant shall use or deal with any Bill
delivered to it or prepared by it except in accordance with this clause.
8.5 NOTIFICATION OF BBR
(a) By 2.30 pm on each Drawdown Date of a Same Day Segment each
Participant who is required to participate in that Segment shall
notify the Agent and the Borrower of BBR for that Participant's
participation in that Segment.
(b) By 11am on each Drawdown Date the Agent shall notify the Borrower and
each Participant who is required to participate in the relevant
Segment, of BBR for each Segment (other than a Same Day Segment) to be
drawn or continued on that date.
(c) Notification under this clause may be by telephone.
8.6 ACCEPTANCE AND DISCOUNT
Subject to this Agreement, on each Drawdown Date each Participant shall:
(a) accept the Bills drawn on it under this clause; and
(b) discount or procure the discount of those Bills and pay to the Agent
in immediately available funds by 12 noon an amount equal to the total
face amount of those Bills less the sum of:
(i) a discount amount in respect of those Bills which would result
in a yield to maturity calculated at the applicable BBR for the
relevant Funding Period;
(ii) an acceptance fee equal to the applicable Margin on that
Drawdown Date, calculated on a daily basis on the total face
amount of those Bills from and including that Drawdown Date to
their maturity date; and
(iii) any applicable stamp duty or other Tax payable by the Agent or
that Participant in respect of those Bills or in respect of any
payment, receipt or crediting of an account contemplated by
this clause (including financial institutions duty).
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On receipt the Agent shall pay the proceeds to the account nominated by
the Borrower in the relevant Drawdown Notice.
8.7 VARIATION OF PROCEDURES, SAME DAY SEGMENTS
(a) After consultation with the Borrower and the Participants, by
notice to them the Agent may vary any of the times by which
anything is to be done under this and the next clause for the
purpose of ensuring the effective operation of the procedures
contemplated by those clauses.
(b) In the case of any Same Day Segment anything which is to be done
under this clause shall be done on the proposed Drawdown Date as
soon as practicable after the Drawdown Notice is received.
9. INDEMNITY AND CASH COVER
9.1 INDEMNITY
The Borrower shall indemnify each Participant against all liabilities of
that Participant as acceptor or endorser of Bills.
9.2 CASH COVER
As between each Participant and the Borrower, the Borrower is primarily
liable in respect of Bills accepted by that Participant. Accordingly:
(a) the liability of the Borrower with respect to any Bill will not be
taken to have been discharged because that Participant becomes the
holder of that Bill before, on or after its maturity;
(b) on the maturity date of the Bill the Borrower shall pay to the Agent
for the account of that Participant an amount equal to the face
amount of the Bill; and
(c) that payment will be made:
(i) if, and to the extent that, by 12 noon on that date the
Borrower has requested a Same Day Segment, by 2.30 pm on that
date; or
(ii) otherwise by 12 noon on that date.
10. ROLLOVER
10.1 NETTING OFF
Where new Bills are to be drawn and accepted on the maturity date of old
Bills, only the net amount as between the amounts payable on that date:
(a) by the Borrower under clause 9.2 for the account of a Participant;
and
(b) by that Participant for the account of the Borrower under
clause 8.6,
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need be paid.
10.2 OVERDRAFT IF NO ROLLOVER
If:
(a) as a result of a condition precedent in clause 14.2 not being
satisfied or waived a Participant does not provide its participation
in a new Segment requested by the Borrower on the maturity of Bills
accepted by that Participant; and
(b) the Agent has not exercised its powers under clause 17.2(a),
the Borrower will not be obliged to provide cash cover under clause 9.2
for the maturing Bills to the extent of the amount of cash cover that the
Participant determines would have been provided out of the proceeds of its
participation in the new Segment, had that condition precedent been
satisfied. That amount will be taken to have been provided by the
Participant as a loan:
(c) which is repayable:
(i) when the relevant condition precedent is satisfied and the
Borrower is able to draw a new Segment; or
(ii) if earlier, when that Participant's Commitment is cancelled
or reduced (to the extent necessary to ensure the
Participant's participation in the Principal Outstanding
does not exceed, in relation to any Tranche, its Commitment
for that Tranche); and
(d) on which the Borrower shall pay interest calendar monthly in
arrears. The interest will accrue from day to day at a rate equal
to the applicable Margin plus the Participant's overdraft rate for
overdrafts to commercial customers from time to time.
11. FEES
11.1 FACILITY FEE
A facility fee accrues as follows:
(a) for Tranche A, at 0.065% per annum on the daily amount of the
Commitment of each Participant for Tranche A from the date of this
Agreement; and
(b) for Tranche B, at a rate which will vary depending on the long term
debt rating of the Guarantor by Standard & Poors and Moody's
Investors Service Pty Ltd, calculated on the daily amount of the
Commitment of each Participant for Tranche B from the date of this
Agreement. That rate will be the figure which corresponds to the
relevant long term debt rating below:
LONG TERM DEBT RATING RATE
S&P/MOODY'S
A/A2 0.070%
A-/A3 0.080%
BBB+/Baa1 0.100%
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BBB/Baa2 0.125%
BBB-/Baa3 0.175%
BB+/Ba 0.250%
BB/Baa2 or lower 0.300%
Where the ratings of those agencies do not coincide, the rate
corresponding to the higher of those ratings will apply.
11.2 CALCULATION AND PAYMENT
(a) The facility fee is calculated on the actual number of days elapsed.
(b) The Borrower shall pay the facility fee in advance on the fifteenth
Business Day of each calendar quarter and on the date of this
Agreement calculated on the relevant Commitment as at the date of
payment. It is not refundable.
11.3 AGENCY FEE
The Borrower shall pay to the Agent for its own account an agency fee in
the amount and at the times specified in a letter from the Agent to the
Borrower,countersigned by the Borrower, dated on or about the date of this
Agreement.
12. PAYMENTS
12.1 MANNER
The Borrower shall make all payments under any Transaction Document:
(a) by bank cheque delivered to the Agent at its address for service of
notices or by transfer of immediately available funds to the account
specified by the Agent from time to time, in either case, but
subject to clause 9.2(c), by 12 noon on the due date; and
(b) without set-off or counterclaim and without any deduction for any
present or future Taxes.
12.2 PAYMENT TO BE MADE ON BUSINESS DAY
If any payment is due on a day which is not a Business Day, the due date
will be the next Business Day in the same calendar month or, if none, the
preceding Business Day.
12.3 DISTRIBUTION BY AGENT
Unless any Transaction Document expressly provides otherwise, the Agent
shall promptly distribute amounts received under any Transaction Document
for the account of the Participants ratably among them.
12.4 APPROPRIATION WHERE INSUFFICIENT MONEYS AVAILABLE
The Agent may appropriate amounts it receives as between principal,
interest and other amounts then payable as it sees fit. This appropriation
will override any made by the Borrower or the Guarantor. The Agent may
appropriate amounts first in payment of amounts payable to it by way of
indemnity or reimbursement.
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12.5 UNANTICIPATED DEFAULT
(a) (ASSUMPTION AS TO PAYMENT) The Agent may assume that a party (the
PAYER) due to make a payment for the account of another party (the
RECIPIENT) makes that payment when due unless the Payer notifies the
Agent at least 1 Business Day before the due date that the Payer
will not be making the payment.
(b) (RELIANCE ON ASSUMPTION) In reliance on that assumption, the Agent
may make available to the Recipient on the due date an amount equal
to the assumed payment.
(c) (RECOUPMENT) If the Payer does not in fact make the assumed
payment, the Recipient shall repay the Agent the amount on demand.
The Payer will remain liable to make the assumed payment, but until
the Recipient does repay the amount, the Payer's liability will be
to the Agent in the Agent's own right.
(d) (INTEREST) If the Payer is the Borrower any interest on the amount
of the assumed payment accruing before recovery will belong to the
Agent. If the Payer is a Participant that Participant shall pay
interest on the amount of the assumed payment at the rate determined
by the Agent, in line with its usual practice, for advances of
similar duration to financial institutions of the standing of the
Participant.
12.6 ROUNDING
In making any allocation or appropriation under any Transaction Document
the Agent may round amounts to the nearest Australian dollar.
13. CHANGES IN LAW
13.1 ADDITIONAL PAYMENTS
Whenever any Indemnified Party determines that:
(a) the effective cost to the Indemnified Party of making, funding or
maintaining its participation in any Segment or its Commitment is
increased in any way;
(b) any amount paid or payable to the Indemnified Party or received or
receivable by the Indemnified Party, or the effective return to the
Indemnified Party or any of its holding companies, under or in
respect of any Transaction Document is reduced in any way;
(c) the return of the Indemnified Party or any of its holding companies
on the capital which is or becomes directly or indirectly allocated
by the Indemnified Party or the holding company to any Segment or
its Commitment is reduced in any way; or
(d) to the extent any relevant law, official directive or request
relates to or affects its Commitment, any Segment or the Transaction
Documents, the overall return on capital of the Indemnified Party or
any of its holding companies is reduced in any way,
as a result of any change in, any making of, or any change in the
interpretation or application by any Government Agency of, any law,
official directive or request, then:
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(e) (when it has calculated the effect of the above and the amount to be
charged to the Borrower under this clause) that Indemnified Party
shall promptly notify the Borrower and provide reasonable details of
the calculation; and
(f) on demand from time to time the Borrower shall pay for the account
of that Indemnified Party the amount certified by an Authorised
Officer of the Indemnified Party to be necessary to compensate the
Indemnified Party or the relevant holding company (as the case may
be) for the increased cost or the reduction. If the amount to be
charged to the Borrower exceeds A$1,000,000, the Borrower shall pay
that amount within 5 days after demand.
The Indemnified Party's right to demand compensation from the
Borrower as contemplated by this clause is limited to a period of 60
days after the Indemnified Party becomes actually aware of any of
the circumstances described in paragraphs (a) to (d) above.
Without limiting the above in any way, this clause applies:
(g) to any law, official directive or request with respect to Taxation
(except Tax on overall net income) or reserve, liquidity, capital
adequacy, special deposit or similar requirements;
(h) to official directives or requests which do not have the force of
law where it is the practice of responsible bankers or financial
institutions in the country concerned to comply with them; and
(i) where the increased cost or the reduction arises because the
relevant Indemnified Party or any of its holding companies is
restricted in its capacity to enter other transactions, or is
required to make a payment, or forgoes or earns reduced interest or
other return on any capital or on any sum calculated by reference in
any way to the amount of any Segment, its Commitment or to any other
sum paid or payable or received or receivable under any Transaction
Document or allocates capital to any such sum.
In this clause a SEGMENT includes any amount paid on maturity of a Bill
and any loan taken to be made under clause 10.2.
13.2 MINIMISATION
(a) (NO DEFENCE) If the relevant Indemnified Party and (if applicable)
its holding company has acted in good faith it will not be a defence
to any claim by the Indemnified Party under clause 13.1 that any
cost, reduction or payment referred to in that clause could have
been avoided.
(b) (NEGOTIATION) At the request of the Borrower the Agent and any
relevant Participant shall negotiate in good faith with the Borrower
with a view to finding a way of minimising any cost, reduction or
payment.
13.3 SURVIVAL OF OBLIGATIONS
This clause survives the discharge of the Borrower's liabilities in
relation to any relevant Segment and the termination of this Agreement.
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13.4 CANCELLATION ON INCREASED COSTS
(a) Within 60 days after the Borrower receives a notice under clause
13.1(e) the Borrower may notify the relevant Participant through the
Agent that it wishes to cancel that Participant's Commitment and
reduce the Principal Outstanding accordingly.
(b) The notification will be irrevocable. The undrawn Commitment of the
Participant will be cancelled immediately. The utilised Commitments
will be cancelled on the last day of the relevant Funding Period or
Periods current when the notification is given.
14. CONDITIONS PRECEDENT
14.1 CONDITIONS PRECEDENT TO FIRST DRAWDOWN NOTICE
The right of the Borrower to give the first Drawdown Notice and the
obligations of each Participant under this Agreement are subject to the
condition precedent that the Agent receives all of the following in form
and substance satisfactory to the Agent:
(a) (VERIFICATION CERTIFICATE) a certificate in relation to the
Borrower given by a director of the Borrower substantially in the
form of annexure B with the attachments referred to and dated not
earlier than 14 days before the first Drawdown Date;
(b) (TRANSACTION DOCUMENTS) a duly executed counterpart of this
Agreement and the Guarantee Deed Poll;
(c) (US OPINION) an opinion of a suitably qualified in-house lawyer of
the Guarantor in relation to the Guarantor and the Guarantee Deed
Poll, substantially in the form initialled by the Agent on or before
the date of this Agreement;
(d) (BORROWER'S LAWYER'S OPINION) an opinion of Arthur Robinson &
Hedderwicks in relation to the Borrower and this Agreement,
substantially in the form initialled by the Agent on or before the
date of this Agreement; and
(e) (RATING) evidence of the Guarantor's long term debt rating by
Standard & Poors and Moody's Investors Service Pty Ltd.
14.2 CONDITIONS PRECEDENT TO EACH SEGMENT
The obligation of each Participant to make, accept and discount Bills
comprised in each Segment is subject to the further conditions precedent
that:
(a) (REPRESENTATIONS TRUE) the representations and warranties by the
Borrower and the Guarantor in the Transaction Documents are true as
at the date of the relevant Drawdown Notice and the relevant
Drawdown Date as though they had been made at that date in respect
of the facts and circumstances then subsisting, except that the
representation by the Borrower in clause 15.1(f) and the
representation by the Guarantor in clause 6.1(a) of the Guarantee
Deed Poll will not be deemed to be repeated at each Drawdown Date;
(b) (NO DEFAULT) no Event of Default or Potential Event of Default
subsists at the date of the relevant Drawdown Notice and the
relevant Drawdown Date or will result from the acceptance or
discount of the Bills; and
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(c) (AUTHORISATION) all necessary Authorisations for the acceptance or
discount of the Bills have been obtained.
15. REPRESENTATIONS AND WARRANTIES
15.1 REPRESENTATIONS AND WARRANTIES
The Borrower makes the following representations and warranties.
(a) (STATUS) The Borrower and each Subsidiary of the Borrower is duly
incorporated or organised and is validly existing as a corporation
or other legal entity in the jurisdiction of its incorporation.
(b) (POWER) The Borrower and each of its Subsidiaries has the corporate
or other power and authority to own, lease and operate its
properties and to conduct the business in which it is currently
engaged. Each of them is duly qualified to transact business as a
foreign corporation or other legal entity and is in good standing
or otherwise appropriately qualified in each jurisdiction where its
ownership, leasing or operation of property or the conduct of its
business requires such qualification, except to the extent that any
failure to be so qualified and in good standing would not be
reasonably expected to have a Material Adverse Effect .
(c) (COMPLIANCE) The Borrower and each of its Subsidiaries is in
compliance with all applicable Requirements of Law except to the
extent that failure to comply would not, in the aggregate, be
reasonably expected to have a Material Adverse Effect.
(d) (CORPORATE AUTHORISATIONS) The Borrower has the corporate power and
authority to make, deliver and perform the Transaction Documents to
which it is expressed to be a party and to borrow under this
Agreement and has taken all necessary corporate action to authorise
the borrowings on the terms of this Agreement and to authorise the
execution, delivery and performance of the Transaction Documents to
which it is expressed to be a party. No consent or authorisation
of, filing with, notice to or other act by or in respect of, any
Government Agency or any other person is required to be obtained or
made by or on behalf of the Borrower in connection with the
borrowings under this Agreement or with the execution, delivery,
performance, validity or enforceability of the Transaction
Documents to which the Borrower is expressed to be a party. This
Agreement and each other Transaction Document to which the Borrower
is expressed to be a party has been duly executed and delivered on
behalf of the Borrower.
(e) (DOCUMENTS BINDING) This Agreement and each other Transaction
Document to which the Borrower is expressed to be a party is a
legal, valid and binding obligation of the Borrower enforceable
against the Borrower in accordance with its terms, subject to any
necessary stamping and registration and to applicable bankruptcy,
insolvency, reorganisation, moratorium or similar laws affecting
the enforcement of creditors' rights generally and to general
equitable principles.
(f) (ACCOUNTS)
(i) The Borrower's most recent consolidated audited Accounts
give a true and fair view of the matters with which they
deal.
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(ii) There has been no subsequent change in its and its
Subsidiaries' state of affairs since the date to which the
Accounts relate which would reasonably be expected to have a
Material Adverse Effect.
(iii) Those Accounts comply with current accounting practice
except to the extent disclosed in them, and with all
applicable laws.
(iv) No Relevant Company has executed a Guarantee for the purpose
of obtaining an order under s313 of the Corporations Law or
an equivalent provision or for the purpose of complying with
any such order.
(g) (NO LEGAL BAR) The execution, delivery and performance of the
Transaction Documents by the Borrower, the borrowings under this
Agreement and the use of their proceeds did not and will not:
(i) violate any Requirement of Law or Contractual Obligation
of the Borrower or any Subsidiary of the Borrower in any
respect that would reasonably be expected to have a
Material Adverse Effect; or
(ii) result in, or require, the creation or imposition of any
Lien on any of its or their respective assets or
properties pursuant to any Requirement of Law or
Contractual Obligation.
(h) (NO MATERIAL LITIGATION) No litigation, arbitration, Tax claim,
dispute or administrative or other proceeding is current or
pending or, to its best knowledge, threatened, which would be
reasonably expected to have a Material Adverse Effect.
(i) (NO DEFAULT) Neither the Borrower nor any of its Subsidiaries is
in default under any of its Contractual Obligations in any respect
which would be reasonably expected to have a Material Adverse
Effect. No Event of Default or Potential Event of Default has
occurred and is continuing.
(j) (TAXES) All Taxes payable by the Borrower or any Subsidiary of the
Borrower (or for which they could be liable) have been paid, other
than:
(i) those not yet delinquent;
(ii) those which, if not paid, would not be reasonably expected
to have a Material Adverse Effect; and
(iii) those the amount or validity of which are currently being
contested in good faith by appropriate proceedings
diligently conducted and with respect to which reserves in
conformity with current accounting practice have been
provided on the books of the Borrower or the Subsidiary )as
applicable).
(k) (NO MISREPRESENTATION) All information provided by it to the Agent
and the Participants is true in all material respects at the date
of this Agreement or, if later, when provided. Neither that
information nor its conduct and the conduct of anyone on its
behalf in relation to the transactions contemplated by the
Transaction Documents, was or is materially misleading, by
omission or otherwise.
(l) (TITLE)
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(i) The Borrower is the sole beneficial owner of all material
assets included in its latest audited Accounts free of any
other third party right or interest whatever other than as
permitted by clause 16.1(j) .
(ii) None of its or another Group Member's assets is subject to
a Lien which is not permitted by clause 16.1(j).
(m) (CORPORATE TREE) The Guarantor is the sole beneficial owner of all
shares in the Borrower.
15.2 RELIANCE ON REPRESENTATIONS AND WARRANTIES
The Borrower acknowledges that the Agent and the Participants have entered
the Transaction Documents in reliance on the representations and
warranties in this clause.
16. UNDERTAKINGS
16.1 GENERAL UNDERTAKINGS
The Borrower undertakes to each Indemnified Party as follows, except to
the extent that the Agent acting on the instructions of the Majority
Participants consents.
(a) (FINANCIAL STATEMENTS) The Borrower will deliver to the Agent
(with a copy for each Participant):
(i) as soon as practicable (but in any event within 120 days)
after the end of each fiscal year of the Borrower, a copy
of the consolidated balance sheet of the Group as at the
end of that year and the related consolidated statements
of income and retained earnings and of cash flows for that
year, setting out in each case in comparative form the
figures for the previous year, reported on without a going
concern or like qualification or exception, or
qualification arising out of the scope of the audit, by
independent chartered accountants of nationally recognised
standing selected by the Borrower; and
(ii) as soon as practicable (but in any event within 60 days)
after the end of each of the first 3 quarterly periods of
each fiscal year of the Borrower, the unaudited
consolidated balance sheet of the Group as at the end of
that quarter and the related unaudited consolidated
statements of income and retained earnings and of cash
flows for that quarter and for the portion of the fiscal
year through to the end of that quarter, setting out in
comparative form the figures for the previous year,
certified by an Authorised Officer of the Borrower as
being fairly stated in all material respects (subject to
normal year-end audit adjustments).
All those financial statements must be complete and correct in all
material respects and must be prepared in reasonable detail and in
accordance with current accounting practice applied consistently
throughout the periods reflected in them and with prior periods
(except as approved by the reporting accountants or Authorised
Officer, as the case may be, and disclosed in them).
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(b) (CERTIFICATES AND OTHER INFORMATION) The Borrower will deliver to
the Agent (with a copy for each Participant):
(i) concurrently with the delivery of the financial statements
referred to in paragraphs (a)(i) and (ii), a certificate of
an Authorised Officer of the Borrower which states that, to
the best of that person's knowledge, during the period
covered by those financial statements, the Borrower has
observed or performed all its covenants and other agreements
and satisfied every condition under this Agreement and the
other Transaction Documents to which it is a party, and that
the Authorised Officer has obtained no knowledge of any
Event of Default or Potential Event of Default except as
specified in the certificate;
(ii) no later than 30 days after they are filed with the
Securities and Exchange Commission or the Australian
Securities Commission or any successor or analogous
Government Agency, final copies of:
(A) all financial statements and material reports which
the Borrower may make to those entities; and
(B) all filings made by the Guarantor or the Borrower
with those entities with respect to the sale or
creation of indebtedness of the Guarantor or the
Borrower or with respect to any asset-backed
receivables transaction entered into by the Borrower
or any of its Subsidiaries (including registration
statements, prospectuses, offering memoranda and
amendments to them);
(iii) promptly after their delivery (but in any event within 10
days), copies of the financial statements of the Guarantor
delivered under section 10.1 of the Revolving Credit
Agreement, except that copies need not be delivered to any
Participant which has received copies under that section;
and
(iv) promptly, such additional financial and other information as
any Participant through the Agent may from time to time
reasonably request.
(c) (PAYMENT OBLIGATIONS) The Borrower will pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as
the case may be, all its obligations of whatever nature except if:
(i) the amount or validity of the obligation is currently being
contested in good faith by appropriate proceedings, and
reserves in conformity with current accounting practice have
been provided in the books of the Borrower; or
(ii) failure to do so could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(d) (CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE) The Borrower
will continue to engage in business of the same general type as now
conducted by it and preserve, renew and keep in full force its
corporate existence and take all reasonable action to maintain all
Authorisations, rights, privileges and franchises necessary or
desirable in the normal conduct of its business. It will comply
with all its Contractual Obligations and
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Requirements of Law except to the extent that failure to comply
could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(e) (MAINTENANCE OF PROPERTY AND INSURANCE) The Borrower will keep all
property useful and necessary in its business in good working order
and condition. It will maintain with financially sound and
reputable insurance companies insurance on all its property, for at
least such amounts and against at least such risks as are usually
insured against in the same general area by companies engaged in
the same or similar business (including, in any event, public
liability, product liability and business interruption insurance).
(f) (INSPECTION OF PROPERTY, BOOKS) The Borrower will keep proper books
of record and account in which full, true and correct entries, in
conformity with current accounting practice and all Requirements of
Law, will be made of all dealings and transactions in relation to
its business and activities. It will allow representatives of the
Agent to visit and inspect any of its property and examine any of
its books and records at any reasonable time and with reasonable
prior notice and it will allow them to discuss the business,
operations, property and financial and other condition of the Group
with its employees, officers and accountants.
(g) (NOTICE) The Borrower will promptly (but in any event within 3
days, or in the case of sub-paragraph (ii), 10 days, or in the case
of sub-paragraph (iv), 30 days, in each case after an Authorised
Officer of the Borrower becomes aware of it) notify the Agent of:
(i) the occurrence of any Event of Default or Potential Event of
Default;
(ii) any:
(A) default or event of default under any Contractual
Obligation of the Borrower or any of its
Subsidiaries; or
(B) litigation, arbitration, Tax claim, dispute or
administrative or other proceeding which may exist at
any time between the Borrower or any of its
Subsidiaries and a Government Agency,
which, in either case, if not cured or if adversely
determined, as applicable, could have a Material Adverse
Effect;
(iii) any litigation, arbitration, Tax claim, dispute or
administrative or other proceeding affecting the Borrower or
any of its Subsidiaries (other than a claim for workers'
compensation) in which the amount involved is equal to or
greater than the Threshold Amount and is not covered by
insurance or in which injunctive or similar relief is
sought; and
(iv) any development or event which has had or could reasonably
be expected to have a Material Adverse Effect.
Each notice under this clause must be accompanied by a statement of
an Authorised Officer of the Borrower setting out details of the
event referred to in it and stating any remedial action taken or
proposed.
(h) (LIMITATION ON FUNDAMENTAL CHANGES)
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(i) Subject to paragraph (ii), the Borrower will not enter into
any merger, consolidation or amalgamation, transfer its
jurisdiction of incorporation or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution),
or convey, sell, lease, assign, transfer or otherwise
dispose of, all or substantially all of its property,
business or assets.
(ii) An entity may be merged or consolidated with or into the
Borrower if the Borrower is the continuing or surviving
corporation or the Indebtedness under this Agreement is
assumed by the surviving corporation, and the Guarantee Deed
Poll is terminated or amended, with the approval of all
Participants.
(i) (LIMITATION ON LINES OF BUSINESS) The Borrower will not enter into
any business, either directly or through any Subsidiary, other
than:
(i) the financing of Receivables of Case Corporation Pty
Limited, its Subsidiaries and their dealers and customers;
(ii) other financial services related to the agricultural and
construction business; and
(iii) other business, provided that the business of the Group
taken as a whole will be limited substantially to the
businesses described in sub-paragraphs (i) and (ii) above.
(j) (LIMITATION ON LIENS) The Borrower will not, and it will ensure
that each of its Subsidiaries will not, create, incur, assume or
suffer to exist any Lien on any of its property, assets or revenue,
whether now owned or acquired later, which would cause the
Guarantor to be in breach of any provision of the Guarantee Deed
Poll.
(k) (GUARANTEE DEED POLL) The Borrower will not do anything which may
cause the Guarantor to breach the undertakings given by it in the
Guarantee Deed Poll and it will do everything necessary on its part
to ensure that the Guarantor is able duly to perform those
undertakings.
16.2 TERM OF UNDERTAKINGS
Each undertaking in this clause continues from the date of this Agreement
until the Secured Money is fully and finally repaid.
17. EVENTS OF DEFAULT
17.1 EVENTS OF DEFAULT
Each of the following is an Event of Default (whether or not it is in the
control of any Relevant Company).
(a) (OBLIGATIONS UNDER TRANSACTION DOCUMENTS) A Relevant Company fails:
(i) to pay an amount payable by it under a Transaction Document
within 5 Business Days of the amount becoming due; or
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(ii) to comply with any of its other obligations under a
Transaction Document and, if in the opinion of the Agent
that failure can be remedied within 21 Business Days, does
not remedy the failure within that period after notice in
writing from the Agent.
(b) (CROSS DEFAULT)
(i) Indebtedness of a Relevant Company totalling at least the
Threshold Amount or its equivalent:
(A) is not paid when due (or within an applicable grace
period); or
(B) becomes due and payable or capable of being declared due
and payable before its stated maturity or expiry;
(ii) a facility or obligation granted or owed by a person to a
Relevant Company to provide financial accommodation or to
acquire or underwrite Indebtedness totalling at least the
Threshold Amount or its equivalent is prematurely
terminated, except where the Relevant Company exercises an
optional right of termination in the absence of actual,
likely or threatened default or an event of default or
termination event, whatever called; or
(iii) an event of default as defined in the Revolving Credit
Agreement occurs and money owing under that agreement
becomes due and payable before its stated maturity or
expiry.
For the purpose of this paragraph (b) the term INDEBTEDNESS does
not include:
(iv) Guarantee Obligations of any Subsidiary of the Borrower in
respect of Indebtedness of an Affiliate of the Borrower if
that Subsidiary owns no material assets other than equity
interests in the Affiliate and the Affiliate is not a
Subsidiary of the Borrower; and
(v) net liabilities in respect of Interest Rate Agreements
unless the holder or holders of that Indebtedness have
required that a termination payment in respect of the
Interest Rate Agreement be made.
(c) (ADMINISTRATION, WINDING UP, ARRANGEMENTS, INSOLVENCY ETC.)
(i) An administrator of the Borrower, a Material Subsidiary or
the Guarantor or another person who gives or creates a
Guarantee or Lien which secures any Secured Money (each a
RELATED COMPANY) is appointed.
(ii) Except for the purpose of a solvent reconstruction or
amalgamation previously approved by the Agent:
(A) an application or an order is made, proceedings are
commenced or a resolution is passed for:
(1) the winding up, dissolution or administration of a
Related Company; or
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(2) a Related Company entering into an arrangement,
compromise or composition with or assignment for the
benefit of its creditors or a class of them,
other than an application or proceeding which is being
contested in good faith and which is withdrawn or set
aside within 21 days of first filing; or
(B) a Related Company ceases or suspends the conduct of all
or a substantial part of its business or disposes of a
substantial part of its assets.
(iii) A Related Company:
(A) is, or under legislation is presumed or taken to be,
insolvent (other than as the result of a failure to pay
a debt or claim the subject of a good faith dispute); or
(B) stops or suspends payment of all or a class of its
debts.
(d) (ENFORCEMENT AGAINST ASSETS)
(i) A Controller (as defined in the Corporations Law) or similar
officer is appointed to all or any of the assets and
undertaking of a Related Company and not removed (without
another being appointed in its place) within 21 days.
(ii) A distress, attachment or other execution is levied or
enforced over all or any of the assets and undertaking of a
Related Company and not withdrawn or discontinued within 21
days.
(e) (ANALOGOUS PROCESS) Anything analogous to anything referred to in
paragraphs (c) or (d), or which has substantially similar effect,
occurs with respect to a Related Company under any overseas law or
any law which commences or is amended after the date of this A
greement.
(f) (REDUCTION OF CAPITAL) Without the prior consent of the Agent
(which will not be unreasonably withheld), the Borrower:
(i) reduces its capital (including a purchase of its shares but
excluding a redemption of redeemable shares);
(ii) passes a resolution to reduce its capital or to authorise it
to purchase its shares or a resolution under s188(2) or
s205(10) of the Corporations Law or an equivalent provision;
or
(iii) applies to a court to sanction any such resolution or
reduction.
(g) (VITIATION OF DOCUMENTS)
(i) All or any material part of a Transaction Document is
terminated or is or becomes void, illegal, invalid,
unenforceable or of limited force and effect;
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(ii) a party becomes entitled to terminate, rescind or avoid all
or a material part of a Transaction Document; or
(iii) a party other than the Agent or a Participant alleges or
claims that an event described in sub-paragraph (i) has
occurred or that it is entitled as described in sub-
paragraph (ii).
(h) (CONTROL OF BORROWER OR GUARANTOR) Without the prior consent of the
Agent:
(i) the Borrower ceases to be a wholly owned subsidiary of the
Guarantor; or
(ii) the Guarantor ceases to be a wholly owned subsidiary of Case
Corporation.
(i) (SUPPORT AGREEMENT) An event described in paragraph (g) occurs in
relation to the Support Agreement or the Support Agreement is
amended in a material respect without the prior consent of the
Agent.
17.2 CONSEQUENCES
In addition to any other rights provided by law or any Transaction
Document, at any time after an Event of Default (whether or not it is
continuing) the Agent may and shall if the Majority Participants direct do
all or any of the following:
(a) by notice to the Borrower declare all sums actually or contingently
owing under this Agreement immediately due and payable, and the
Borrower shall immediately pay the total face amount of all
outstanding Bills, any amount taken to be lent under clause 10.2
together with accrued interest and fees and all other sums;
(b) by notice to the Borrower cancel the Commitments;
(c) at the cost of the Borrower, appoint a firm of independent
accountants or other experts to review and report to the Agent and
the Participants on the affairs, financial condition and business
of any Relevant Company.
The Borrower will co-operate fully with the review and ensure that
all officers and employees of each Relevant Company do the same.
17.3 CASH COVER FOR BILLS
(a) This clause applies to:
(i) any amount paid to the Agent for the account of a
Participant under clause 17.2(a) in respect of the liability
under any unmatured Bill or in respect of any other sum
contingently owing; and
(ii) interest credited under this clause,
(the outstanding balance of which from time to time is the CASH
COVER AMOUNT).
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(b) (i) The Participant shall apply the Cash Cover Amount in payment
of any amount payable under any Bill when it becomes due and
the obligation of the Borrower under clause 9.2 will be
reduced accordingly.
(ii) The Participant may at any time apply the Cash Cover Amount
in or towards satisfaction of any sum at any time payable by
the Borrower to the Participant under or in relation to any
Transaction Document.
(c) The Cash Cover Amount will accrue and be credited with interest at
a rate and in a manner that the Participant determines would apply
to deposits at call (or of any other term specified by the
Participant) of a similar amount under its normal procedures.
(d) The Cash Cover Amount is only repayable by the Participant to the
extent that on any day it exceeds the amount of the Secured Money
(including the total face amount of the outstanding Bills and all
amounts which are then or may subsequently become contingently
owing). The Participant will promptly pay the Borrower any excess
on demand.
18. INTEREST ON OVERDUE AMOUNTS
18.1 ACCRUAL
Interest accrues on each unpaid amount which is due and payable by the
Borrower under or in respect of any Transaction Document (including
interest payable under this clause):
(a) on a daily basis up to the date of actual payment from (and
including) the due date or, in the case of an amount payable by way
of reimbursement or indemnity, the date of disbursement or loss, if
earlier;
(b) both before and after judgment (as a separate and independent
obligation); and
(c) at the rate determined by the Agent to be the sum of 1.5% per annum
plus the higher of:
(i) the rate (if any) applicable to the unpaid amount
immediately before the due date; and
(ii) the Agent's benchmark lending rate in respect of loans of
A$100,000 and over from time to time, plus the applicable
Margin.
18.2 PAYMENT
The Borrower shall pay interest accrued under this clause on demand by the
Agent and on the last Business Day of each calendar month.
19. INDEMNITY AND COSTS
19.1 INDEMNITY
The Borrower shall indemnify each Indemnified Party against any loss,
cost, charge, liability or expense (including legal costs on a full
indemnity basis) the Indemnified Party (or any officer or employee of the
Indemnified Party) may sustain or incur as a direct or indirect result of:
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(a) the occurrence of any Event of Default or Potential Event of
Default;
(b) any actual or contemplated exercise, preservation or consideration
of any right, power or remedy under any Transaction Document or any
failure to exercise any right, power or remedy;
(c) any statement in, conduct relying on or omission or alleged
omission from any information memorandum or loan proposal prepared
or authorised by it, or any claim in respect of any of the above;
(d) a Segment requested in a Drawdown Notice not being provided for any
reason (including failure to fulfil any condition precedent but
excluding any default by the Indemnified Party which is claiming
under this clause);
(e) the Indemnified Party incurring any liability on or in relation to
any Bill; or
(f) the Indemnified Party or any Authorised Officer of the Indemnified
Party acting on behalf of the Borrower under clause 8.3.
Without limitation the indemnity will cover any amount determined by the
relevant Participant to be incurred because of the liquidation or re-
employment of deposits or other funds acquired or contracted for by the
relevant Participant to fund or maintain any Segment or amount (including
loss of margin) and because of the reversing or termination of any
agreement or arrangement entered into by the relevant Participant to
hedge, fix or limit its effective cost of funding or maintaining any
Segment or amount.
19.2 COSTS
The Borrower will pay the Agent's reasonable legal costs in relation to
the preparation of the Transaction Documents and any amendments of, or
consent or waiver under, them.
20. CONTROL ACCOUNTS
The accounts kept by the Agent constitute sufficient evidence, unless
proven wrong, of the amount at any time due from the Borrower under this
Agreement.
21. STAMP DUTY
Subject to clause 8.6(b)(iii), the Borrower will pay all stamp,
transaction and other similar duties and charges in relation to the
Transaction Documents and any transaction under them.
This includes financial institutions duty and debits tax. The Borrower
will also pay any fines and penalties unless they result from a failure by
an Indemnified Party to lodge a document for stamping in sufficient time,
having received from the Borrower the amount of stamp duty in good time.
22. SET-OFF
(a) If an Event of Default subsists each Indemnified Party may apply
any credit balance in any currency (whether or not matured) in any
account of the Borrower with any branch of that Indemnified Party
towards satisfaction of any sum then due and payable by it to that
Indemnified Party under or in relation to any Transaction Document.
No Indemnified Party need make the application.
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(b) An Indemnified Party may exchange currencies to make that
application.
23. NO WAIVERS
No failure to exercise a power, and no delay in exercising a power,
operates as a waiver. Waivers must be in writing.
24. SEVERABILITY OF PROVISIONS
Any provision of any Transaction Document which is prohibited or
unenforceable in any jurisdiction is ineffective as to that jurisdiction
to the extent of the prohibition or unenforceability. That does not
invalidate the remaining provisions of that Transaction Document nor
affect the validity or enforceability of that provision in any other
jurisdiction.
25. SURVIVAL OF REPRESENTATIONS
All representations and warranties in any Transaction Document survive the
execution and delivery of the Transaction Documents and the provision of
advances and accommodation.
26. INDEMNITIES AND REIMBURSEMENT OBLIGATIONS
Unless otherwise stated, each indemnity, reimbursement or similar
obligation in any Transaction Document:
(a) is a continuing obligation;
(b) is a separate and independent obligation;
(c) is payable on demand; and
(d) survives termination or discharge of the relevant Transaction
Document.
27. MORATORIUM LEGISLATION
To the full extent permitted by law all legislation which at any time
directly or indirectly:
(a) lessens, varies or affects in favour of the Borrower any obligation
under a Transaction Document; or
(b) delays, prevents or prejudicially affects the exercise by any
Indemnified Party of any right, power or remedy conferred by any
Transaction Document,
is excluded from the Transaction Documents.
28. CONSENTS AND OPINIONS
Except where expressly stated any Indemnified Party may give or withhold,
or give conditionally, approvals and consents, may be satisfied or
unsatisfied, may form opinions, and may exercise rights, powers and
remedies at its absolute discretion.
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29. ASSIGNMENTS
29.1 ASSIGNMENT BY BORROWER
The Borrower may not assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of the Agent acting
on the instructions of all Participants.
29.2 ASSIGNMENT BY PARTICIPANTS
A Participant may assign or transfer all or any of its rights or
obligations under the Transaction Documents at any time if:
(a) any necessary prior Authorisation is obtained;
(b) in the case of a transfer of obligations, the transfer is effected
by a substitution in accordance with clause 29.3;
(c) the transferee or assignee is a Related Entity of the Participant
or the Borrower has given its prior consent, which:
(i) it shall not withhold unreasonably; and
(ii) will be taken to have been given if no response is received
within 15 days of the request for consent; and
(d) the Commitment of any Participant will not, as a result of that
assignment or transfer, be less than $10,000,000, or the Borrower
has given its prior consent or has cancelled the Commitments to an
extent such that satisfaction of this test is not practicable.
29.3 SUBSTITUTION CERTIFICATES
(a) If a Participant wishes to substitute a new bank or financial
institution for all or part of its participation under this
Agreement, it and the substitute shall in the Australian Capital
Territory or outside Australia execute and deliver to the Agent 4
counterparts of a certificate substantially in the form of annexure
C.
(b) On receipt of the certificate, if the Agent has received the
registration fee referred to in the certificate and is satisfied
that the substitution complies with clause 29.2, it shall promptly:
(i) notify the Borrower;
(ii) countersign the counterparts on behalf of all other parties
to this Agreement;
(iii) enter the substitution in a register kept by it (which will
be conclusive); and
(iv) retain one counterpart and deliver the others to the
retiring bank or financial institution, the substitute bank
or financial institution and the Borrower.
(c) When the certificate is countersigned by the Agent, the retiring
bank or financial institution will be relieved of its obligations
and the substitute bank or financial institution will be bound by
the Transaction Documents, as stated in the certificate.
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(d) Each other party to this Agreement irrevocably authorises the Agent
to sign each certificate on its behalf.
(e) Unless the Agent otherwise agrees, no substitution may be made
while any Drawdown Notice is current.
29.4 DISCLOSURE
A Participant may disclose to a proposed assignee, transferee or sub-
participant information which relates to any Relevant Company or was
furnished in connection with the Transaction Documents if it first obtains
the consent of the Borrower (who shall not unreasonably withhold or delay
that consent).
29.5 NO INCREASED COSTS
Despite anything to the contrary in this Agreement, if a Participant
assigns its rights under this Agreement, the Borrower will not be required
to pay any net increase in the total amount of costs, Taxes, fees or
charges which is a direct consequence of the assignment and of which the
Participant or its assignee was aware or ought reasonably to have been
aware on the date of the assignment. For this purpose only a substitution
under clause 29.3 will be regarded as an assignment.
30. RELATIONSHIP OF PARTICIPANTS TO AGENT
30.1 AUTHORITY
(a) Subject to clause 30.15 each Participant irrevocably appoints the
Agent to act as its agent under the Transaction Documents. The
Agent has all powers expressly delegated to it by the Transaction
Documents together with all other powers reasonably incidental to
those powers.
(b) The Agent has no duties or responsibilities except those expressly
set out in the Transaction Documents.
30.2 INSTRUCTIONS; EXTENT OF DISCRETION
(a) In the exercise of all its rights, powers and discretions under the
Transaction Documents the Agent shall act in accordance with the
instructions (if any) of the Majority Participants or (where so
specified) of all Participants.
(b) In the absence of those instructions, the Agent need not act but
may act as it sees fit in the best interests of the Participants.
(c) Any action taken by the Agent under the Transaction Documents binds
all the Participants.
(d) The Agent is not obliged to consult with the Participants before
giving any consent, approval or agreement or making any
determination under the Transaction Documents except where this
Agreement expressly provides otherwise.
30.3 NO OBLIGATION TO INVESTIGATE AUTHORITY
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(a) The Borrower need not enquire whether any instructions have been
given to the Agent by all Participants or the Majority Participants
or as to the terms of those instructions.
(b) As between the Borrower on the one hand and the Agent and the
Participants on the other, all action taken by the Agent under the
Transaction Documents will be taken to be authorised.
30.4 AGENT NOT A FIDUCIARY
The Agent will not be taken to owe any fiduciary duty to any Participant,
any Relevant Company or any other person except as expressly provided in a
Transaction Document.
30.5 EXONERATION
Neither the Agent nor any of its directors, officers, employees, agents,
attorneys, Related Entities or successors is responsible to the
Participants for, or will be liable (whether in negligence or on any other
ground whatever) in respect of:
(a) any conduct relating to, contained in or relying on, any loan
proposal or information memorandum, any Transaction Document or any
document or agreement referred to in or received under any
Transaction Document;
(b) the value, validity, effectiveness, genuineness, enforceability or
sufficiency of any loan proposal or information memorandum, any
Transaction Document or any other document or agreement;
(c) any failure by any Relevant Company to perform its obligations; or
(d) any action taken or omitted to be taken by it or them under any
Transaction Document except in the case of its or their own wilful
misconduct or gross negligence.
30.6 DELEGATION
The Agent may employ agents and attorneys.
30.7 RELIANCE ON DOCUMENTS AND EXPERTS
The Agent may rely on:
(a) any document (including any facsimile transmission, telegram or
telex) it believes is genuine and correct; and
(b) advice and statements of lawyers, independent accountants and other
experts selected by the Agent.
30.8 NOTICE OF TRANSFER
The Agent may treat each Participant as the holder of the Participant's
rights under the Transaction Documents until the Agent has received either
a substitution certificate under this Agreement or a notice of assignment
satisfactory to the Agent.
30.9 NOTICE OF DEFAULT
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(a) The Agent will be taken not to have knowledge of the occurrence of
an Event of Default or Potential Event of Default unless the Agent
has received notice from a Participant or Relevant Company stating
that an Event of Default or Potential Event of Default has occurred
and describing it.
(b) If the Agent receives notice or the officers of the Agent having
day to day responsibility for the transaction become aware that an
Event of Default has occurred, the Agent shall notify the
Participants, subject to clause 30.14(c).
30.10 AGENT AS PARTICIPANT AND BANKER
(a) The Agent in its capacity as a Participant has the same rights and
powers under the Transaction Documents as any other Participant. It
may exercise them as if it were not acting as the Agent.
(b) The Agent may engage in any kind of business with any Relevant
Company as if it were not the Agent. It may receive consideration
for services in connection with any Transaction Document and
otherwise without having to account to the Participants.
30.11 INDEMNITY TO AGENT
(a) The Participants shall indemnify the Agent (to the extent not
reimbursed by any Relevant Company under any Transaction Document)
ratably in accordance with their respective Commitments against any
loss, cost, liability, expense or damage the Agent may sustain or
incur directly or indirectly under or in relation to the
Transaction Documents.
(b) No Participant is liable under this sub-clause for any of the above
to the extent that they arise from the Agent's wilful misconduct or
gross negligence.
(c) The Borrower shall indemnify each Participant against any amount
paid under paragraph (a). This does not limit its liability under
any other provision.
30.12 INDEPENDENT INVESTIGATION OF CREDIT
Each Participant confirms that it has made and will continue to make,
independently and without reliance on the Agent or any other Participant:
(a) its own investigations into the affairs of the Relevant Companies;
and
(b) its own analyses and decisions whether to take or not take action
under any Transaction Document.
30.13 NO MONITORING
The Agent is not required to keep itself informed as to the compliance by
any Relevant Company with any Transaction Document or any other document
or agreement or to inspect any property or book of any Relevant Company.
30.14 INFORMATION
<PAGE>
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(a) The Agent shall promptly provide each Participant a copy of each
notice, report and other document which is provided to the Agent in
sufficient copies for the Participants under the Transaction
Documents.
(b) The Borrower authorises the Agent to provide any Participant with
any information concerning any Relevant Company's affairs,
financial condition or business which may otherwise come into the
possession of the Agent. The Agent need not do so.
(c) The Agent is not obliged to disclose any information relating to
any Relevant Company if in the opinion of the Agent (on the basis
of the advice of its legal advisers) disclosure would or might
breach a law or a duty of secrecy or confidence.
30.15 REPLACEMENT OF AGENT
(a) Subject to the appointment of a successor Agent as provided in this
clause:
(i) the Agent may resign at any time by giving not less than 30
days notice to the Participants and to the Borrower; and
(ii) all the Participants (other than the Agent) together may
remove the Agent from office by giving not less than 30 days
notice to the Borrower and the Agent.
(b) On notice of resignation or removal the Majority Participants have
the right to appoint a successor Agent approved by the Borrower and
who accepts the appointment.
(c) If no successor Agent is appointed within 30 days after notice, the
retiring Agent may on behalf of the Participants appoint a
successor Agent approved by the Borrower and who accepts the
appointment.
(d) On its appointment the successor Agent will have all the rights,
powers and obligations of the retiring Agent. The retiring Agent
will be discharged from its rights, powers and obligations.
(e) The retiring Agent shall execute and deliver all documents or
agreements which are necessary or in its opinion desirable to
transfer to the successor Agent each Lien and Guarantee held by the
retiring Agent in relation to the Secured Money or to effect the
appointment of the successor Agent.
(f) After any retiring Agent's resignation or removal, this clause will
continue in effect in respect of anything done or omitted to be
done by it while it was acting as Agent.
(g) The Borrower shall not unreasonably withhold its approval of any
proposed successor Agent. It shall respond as soon as practicable
to any request for approval.
(h) The Borrower need not pay the cost of the appointment of a
successor Agent under this clause.
30.16 AMENDMENT OF TRANSACTION DOCUMENTS
Each Participant authorises the Agent to agree with the other parties to
any Transaction Document to amend any Transaction Document if:
<PAGE>
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(a) the amendment will not increase the Commitments or other
obligations of the Participants, change the dates or amounts of
payment of any of the Secured Money or amend this sub-clause or any
provision under which the agreement or instructions of all
Participants or the Majority Participants are required; and
(b) (i) the Agent is satisfied that the amendment is made to correct
a manifest error or an error of a minor nature or that the
amendment is of a formal or technical nature only; or
(ii) the Majority Participants have, on request by the Agent,
notified the Agent of their agreement to the amendment.
Each Participant will be bound by any amendment so agreed to by the Agent
as if it were party to the relevant amendment agreement.
31. PROPORTIONATE SHARING
31.1 SHARING
Whenever any Participant receives or recovers any money in respect of any
sum due from a Relevant Company under a Transaction Document in any way
(including by set- off) except through distribution by the Agent under
this Agreement:
(a) the Participant shall immediately notify the Agent;
(b) the Participant shall immediately pay that money to the Agent
(unless the Agent directs otherwise);
(c) the Agent shall treat the payment as if it were a payment by the
Relevant Company on account of all sums then payable to the
Indemnified Parties; and
(d) (i) the payment or recovery will be taken to have been a payment
for the account of the Agent and not to the Participant for
its own account, and to that extent the liability of the
Relevant Company to the Participant will not be reduced by
the recovery or payment, other than to the extent of any
distribution received by the Participant under paragraph
(c); and
(ii) (without limiting sub-paragraph (i)) immediately on the
Participant making or becoming liable to make a payment
under paragraph (b), the Borrower shall indemnify the
Participant on demand against the payment to the extent that
(despite sub-paragraph (i)) its liability has been
discharged by the recovery or payment.
If the Participant is required to disgorge or unwind all or part of the
relevant recovery or payment then the other Participants shall repay to
the Agent for the account of the Participant the amount necessary to
ensure that all the Participants share ratably in the amount of the
recovery or payment retained. Paragraphs (c) and (d) above apply only to
the retained amount.
31.2 REFUSAL TO JOIN IN ACTION
<PAGE>
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A Participant who does not accept an invitation to join an action against
the Borrower or the Guarantor or does not share in the costs of the action
(in each case having been given a reasonable opportunity to do so) is not
entitled to share in any amount so recovered.
31.3 SHARING WHEN BILLS REPAID DIRECTLY
Whenever:
(a) a Bill is honoured by another party or cancelled or (except through
payment) discharged; or
(b) the Secured Money is reduced in any manner except through a payment
under this Agreement,
resulting in a greater reduction in the proportion by which a
Participant's participation in the outstanding Bills or the Secured Money
is reduced than that of the Participant whose participation is reduced by
the smallest proportion (except as a result of any rounding or adjustment
of amounts made by the Agent under this Agreement):
(c) the Participant shall promptly notify the Agent;
(d) the Participant shall promptly pay to the Agent an amount equal to
the amount of the excess (unless the Agent directs otherwise);
(e) the Participant's participation in the outstanding Bills will be
taken to be increased by an amount equal to the payment;
(f) the Agent shall treat the payment as if it were a payment by the
Borrower on account of the outstanding Bills; and
(g) on the Participant making or becoming liable to make the payment
under paragraph (d) the Borrower shall indemnify that Participant
against that payment.
If all or part of the relevant transaction which had that result is
subsequently rescinded or must otherwise be restored, and as a result the
Participant's Bill is called on, the Participants shall repay to the Agent
for the account of the Participant the amount which is necessary to ensure
that all the Participants' participations in the outstanding Bills have
been reduced proportionately.
32. AGENT DEALINGS
Except where expressly provided otherwise:
(a) all correspondence under or in relation to the Transaction
Documents between a Participant on the one hand, and the Borrower
on the other, will be addressed to the Agent; and
(b) the Participants and the Borrower severally agree to deal with and
through the Agent in accordance with this Agreement.
33. NOTICES
<PAGE>
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All notices, requests, demands, consents, approvals, agreements or other
communications to or by a party to this Agreement:
(a) must be in writing;
(b) must be signed by an Authorised Officer of the sender; and
(c) will be taken to be duly given or made:
(i) (in the case of delivery in person or by post or facsimile
transmission) when delivered, received or left at the
address of the recipient shown in this Agreement or to any
other address which it may have notified the sender; or
(ii) (in the case of a telex) on receipt by the sender of the
answerback code of the recipient at the end of transmission,
but if delivery or receipt is on a day on which business is not
generally carried on in the place to which the communication is
sent or is later than 4pm (local time), it will be taken to have
been duly given or made at the commencement of business on the next
day on which business is generally carried on in that place.
34. AUTHORISED OFFICERS
The Borrower irrevocably authorises each Indemnified Party to rely on a
certificate by any person purporting to be its director or secretary as to
the identity and signatures of its Authorised Officers. The Borrower
warrants that those persons have been authorised to give notices and
communications under or in connection with the Transaction Documents.
35. GOVERNING LAW AND JURISDICTION
This Agreement is governed by the laws of New South Wales. The Borrower
submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there.
36. COUNTERPARTS
This Agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
37. ACKNOWLEDGEMENT BY BORROWER
The Borrower confirms that:
(a) it has not entered into this Agreement in reliance on, or as a
result of, any conduct of any kind of or on behalf of any
Indemnified Party or any Related Entity of any Indemnified Party
(including any advice, warranty, representation or undertaking);
and
(b) neither any Indemnified Party nor any Related Entity of any
Indemnified Party is obliged to do anything (including disclose
anything or give advice),
except as expressly set out in the Transaction Documents.
<PAGE>
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EXECUTED in Sydney.
Each attorney executing this Agreement states that he has no notice of
revocation or suspension of his power of attorney.
<PAGE>
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BORROWER
SIGNED on behalf of )
CASE CREDIT AUSTRALIA )
PTY LIMITED )
by its attorney )
in the presence of: ) /s/Peter Hong (sgd)
----------------------------------------
Signature
/s/Andrew Mohr (sgd) PETER HONG
- ---------------------------------- ---------------------------------------
Witness Print name
ANDREW MOHR
- ----------------------------------
Print name
AGENT
SIGNED on behalf of )
NATIONAL AUSTRALIA BANK LIMITED )
by its attorney )
in the presence of: ) /s/M A Harvey (sgd)
----------------------------------------
Signature
/s/M Baird (sgd) M A HARVEY
- ---------------------------------- ----------------------------------------
Witness Print name
MICHAEL BAIRD
- ----------------------------------
Print name
<PAGE>
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PARTICIPANTS
SIGNED on behalf of )
NATIONAL AUSTRALIA BANK LIMITED )
by its attorney )
in the presence of: ) /s/M A Harvey (sgd)
----------------------------------------
Signature
/s/M Baird (sgd) M A HARVEY
- ---------------------------------- ----------------------------------------
Witness Print name
MICHAEL BAIRD
- ----------------------------------
Print name
SIGNED on behalf of )
CREDIT SUISSE FIRST BOSTON )
by its attorney )
in the presence of: ) /s/M Tierney (sgd)
----------------------------------------
Signature
/s/T Hazelwood (sgd) MICHAEL TIERNEY
- ---------------------------------- ----------------------------------------
Witness Print name
TRICIA HAZELWOOD
- ----------------------------------
Print name
SIGNED for and on behalf of )
UBS AUSTRALIA LIMITED )
by its authorised signatories )
in the presence of: )
/s/Colin Roden (sgd) /s/L Burger (sgd)
- ----------------------------------- ------------------------------------------
Signature Signature
COLIN RODEN LINDA BURGER
- ---------------------------------- ------------------------------------------
Print name Print name
First VP VP
- ---------------------------------- ------------------------------------------
Office Held Office Held
SIGNED on behalf of )
<PAGE>
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- --------------------------------------------------------------------------------
ROYAL BANK OF CANADA )
by its attorney )
in the presence of: ) /s/J R Secker (sgd)
------------------------------------------
Signature
/s/ P Squires (sgd) JOHN RICHMOND SECKER
- ---------------------------------- ------------------------------------------
Witness Print name
PHILLIP E SQUIRES
- ----------------------------------
Print name
SIGNED on behalf of )
STANDARD CHARTERED BANK )
AUSTRALIA LIMITED )
by its attorney )
in the presence of: ) /s/M Abell (sgd)
------------------------------------------
Signature
/s/G D Smith (sgd) MARK ABELL
- ---------------------------------- ------------------------------------------
Witness Print name
GLENN DOUGLAS SMITH
- ----------------------------------
Print name
SIGNED on behalf of )
FUJI INTERNATIONAL FINANCE )
(AUSTRALIA) LIMITED )
by its attorney )
in the presence of: ) /s/P Akers (sgd)
------------------------------------------
Signature
/s/M Abell (sgd) PAUL AKERS
- ---------------------------------- ------------------------------------------
Witness Print name
MARK ABELL
- ----------------------------------
Print name
<PAGE>
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SIGNED on behalf of )
THE FIRST NATIONAL BANK OF )
CHICAGO by its authorised )
signatories in the presence of: )
/s/ Simes (sgd) /s/Paul Shinkfield (sgd)
- ---------------------------------- ------------------------------------------
Witness Signature
ERICA SIMES PAUL SHINKFIELD
- ---------------------------------- ------------------------------------------
Print name Print name
FIRST VICE PRESIDENT
__________________________________ ------------------------------------------
Office held Office held
SIGNED on behalf of )
BA AUSTRALIA LIMITED )
by its attorney )
in the presence of: ) /s/A Cougle (sgd)
------------------------------------------
Signature
/s/E Simes (sgd) ADAM COUGLE
- ---------------------------------- ------------------------------------------
Witness Print name
ERICA SIMES
- ----------------------------------
Print name
<PAGE>
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SCHEDULE
PARTICIPANTS
<TABLE>
<CAPTION>
1 2 3 4
LEAD MANAGERS ADDRESS FOR TRANCHE A TRANCHE B
CORRESPONDENCE COMMITMENT COMMITMENT
(A)$ (A$)
<S> <C> <C> <C>
National Australia Bank Ltd Level 25, 42,500,000 127,500,000
(ACN 004 044 937) 255 George Street
SYDNEY NSW 2000
Credit Suisse First Boston Level 14,
(ARBN 061 700 712) 101 Collins Street 12,500,000 37,500,000
MELBOURNE VIC 3000
UBS Australia Limited Level 4,
(ACN 003 059 461) 7 Macquarie Place 12,500,000 37,500,000
SYDNEY NSW 2000
MANAGERS
Royal Bank of Canada Level 7 8,750,000 26,250,000
(ARBN 076 940 880) Challis House
4 Martin Place
SYDNEY NSW 2000
Standard Chartered Bank Level 11 7,500,000 22,500,000
Australia Limited 345 George Street
(ACN 008 282 897) SYDNEY NSW 2000
Fuji International Level 28 5,000,000 15,000,000
Finance (Australia) Maritime Centre
Limited 201 Kent Street
(ACN 002 977 111) SYDNEY NSW 2000
The First National Bank Level 32 5,000,000 15,000,000
of Chicago 60 Margaret Street
(ARBN 065 752 918) SYDNEY NSW 2000
BA Australia Limited Level 18 6,250,000 18,750,000
(ACN 004 617 341) 135 King Street
SYDNEY NSW 2000
</TABLE>
<PAGE>
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ANNEXURE A
DRAWDOWN NOTICE
To: [AGENT]
CASE CREDIT AUSTRALIA PTY LTD - DRAWDOWN NOTICE NO. [*]
We refer to the Bill Facility Agreement dated [*] 1997 (the FACILITY AGREEMENT).
Under clause 5 of the Facility Agreement we give you irrevocable notice as
follows:
(1) we wish to draw on [*] 19[*] (the DRAWDOWN DATE) [on a same day basis];
[NOTE:__DATE IS TO BE A BUSINESS DAY.]
(2) the total principal amount to be drawn is [*];
[NOTE:__AMOUNT TO COMPLY WITH THE LIMITS IN CLAUSE 3.]
(3) particulars of each Segment are as follows:
PRINCIPAL AMOUNT FUNDING PERIOD TRANCHE
[NOTE:__AMOUNTS TO COMPLY WITH CLAUSE [6] AND LENGTH OF FUNDING PERIOD TO COMPLY
WITH CLAUSE [7].]
(4) we request that the proceeds be remitted to account number [*] at [*];
[NOTE:__THE ACCOUNT(S) TO BE COMPLETED ONLY IF FUNDS NOT REQUIRED IN
REPAYMENT OF ANY PREVIOUS SEGMENT(S).]
(5) we represent and warrant on behalf of the Borrower that:
(a) [(except as disclosed in paragraph (c)] the representations and
warranties in the Facility Agreement are true as though they had
been made at the date of this Drawdown Notice and the Drawdown Date
specified above in respect of the facts and circumstances then
subsisting, except that no representation is made by the Borrower
under clause 15.1(f)(ii) of the Facility Agreement; [and]
(b) [(except as disclosed in paragraph (c)] no Event of Default or
Potential Event of Default is subsisting or will result from the
drawing; [and]
[(c) details of the exceptions to paragraphs (a) and (b) are as follows:
[*], and we [have taken/propose] the following remedial action
[*][./; and]
[NOTE:__INCLUSION OF A STATEMENT UNDER PARAGRAPH (B) SHALL NOT PREJUDICE
THE CONDITIONS PRECEDENT IN THE AGREEMENT.]
(6) we request that each [relevant] Participant prepare, complete, sign and
deliver the Bills to be comprised in [each/the] Segment on our behalf;
[(7) we attach a copy of the agreement related to this Drawdown Notice as
required by clause 3.2 of the Facility Agreement.]
<PAGE>
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Definitions in the Facility Agreement apply in this Drawdown Notice.
On behalf of CASE CREDIT AUSTRALIA PTY LIMITED
By: [Authorised Officer]
DATED 19[*]
<PAGE>
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ANNEXURE B
VERIFICATION CERTIFICATE
To: [AGENT] for itself and as Agent for the Participants under the Facility
Agreement defined below, and its respective substitutes and assigns.
[*] FACILITY
I [*] am a director of Case Credit Australia Pty Limited of [*] (the COMPANY).
I refer to the Bill Facility Agreement (the FACILITY AGREEMENT) dated [*] 1997
between the Company as Borrower, National Australia Bank Limited as Agent and
the Participants named in it.
Definitions in the Facility Agreement apply in this Certificate.
I CERTIFY as follows.
1. Attached to this Certificate are complete and up to date copies of:
(a) the memorandum and articles of association of the Company (marked
A);
(b) a duly registered power of attorney granted by the Company for the
execution of each Transaction Document to which it is expressed to
be a party (marked B). That power of attorney has not been revoked
or suspended by the Company and remains in full force and effect;
and
(c) the Revolving Credit Agreement and the Support Agreement (marked C
and D respectively).
2. The following are signatures of the Authorised Officers of the Company.
NAME POSITION SIGNATURE
* * ________________________________
* * ________________________________
* * ________________________________
<PAGE>
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Signed: _______________________________
Director
_______________________________
Print name
DATED 1997
<PAGE>
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ANNEXURE C
SUBSTITUTION CERTIFICATE
for a Participation of A$[*]
relating to the Bill Facility Agreement (the FACILITY AGREEMENT) dated [*] 1997
between Case Credit Australia Pty Limited as Borrower, National Australia Bank
Limited as Agent and the Participants named in that agreement between:
1. [NAME] (the SUBSTITUTE PARTICIPANT);
2. [NAME] (the RETIRING PARTICIPANT); and
3. [*] (the AGENT) for itself and on behalf of the other parties to the
Facility Agreement.
IT IS AGREED as follows.
1. DEFINITIONS
1.1 In this Certificate definitions in the Facility Agreement and the
following definitions apply unless the context requires otherwise.
SUBSTITUTED PARTICIPATION means the Commitment of the Retiring Participant
[and the participation in the outstanding Bills drawn under that
Commitment] [in respect of the following Segments:] [NOTE:__TO BE INSERTED
IF ONLY PART OF PARTICIPATION IS BEING SUBSTITUTED.]
DATE FUNDING PERIOD AMOUNT OF TRANCHE
PARTICIPATION
amounting to a principal amount of A$[*].
SUBSTITUTION DATE means the date of countersignature of this Certificate
by the Agent [or [*] whichever is the later]. [NOTE:__INSERT ANY OTHER
DATE OR DATES AS APPROPRIATE.]
1.2 Clause 1.2 of the Facility Agreement applies to this Certificate.
2. SUBSTITUTION
2.1 RELEASE OF RETIRING PARTICIPANT
The Retiring Participant will cease to be entitled to and bound by its
rights and obligations as a Participant under the Transaction Documents
[relating to the Substituted Participation] [NOTE:__INSERT IF ONLY PART OF
COMMITMENT ASSUMED] with effect from and including the
<PAGE>
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Substitution Date. It will remain entitled to and bound by rights and
obligations which accrue up to the Substitution Date.
2.2 ASSUMPTION BY SUBSTITUTE PARTICIPANT
With effect from and including the Substitution Date:
(a) the Substitute Participant and each of the parties to the Facility
Agreement will assume obligations towards each other and acquire
rights against each other which are identical to the rights and
obligations which cease under clause 2.1, except to the extent the
obligations so assumed and rights so acquired relate to the
identity of or location of the Substitute Participant and not to
the identity of or location of the Retiring Participant; and
(b) the Substitute Participant will be taken to be a party to the
Facility Agreement as a Participant with a Commitment [and
participation in the Principal Outstanding] equal to the
Substituted Participation.
3. INDEPENDENT ASSESSMENT BY SUBSTITUTE PARTICIPANT
Without limiting the generality of clause 2 the Substitute Participant
agrees as specified in clauses 30.5 (EXONERATION) and 30.12 (INDEPENDENT
INVESTIGATION OF CREDIT) of the Facility Agreement. Those clauses apply
(subject to any agreement to the contrary) as if references to the Agent
included the Retiring Participant. This Certificate is a Transaction
Document for the purposes of the Facility Agreement.
4. PAYMENTS
From and including the Substitution Date the Agent shall make all payments
due under the Transaction Documents in relation to the Substituted
Participation to the Substitute Participant. The Retiring Participant and
the Substitute Participant will make directly between themselves those
payments and adjustments which they agree with respect to accrued
interest, fees, costs and other amounts attributable to the Substituted
Participation before the Substitution Date.
5. OUTSTANDING BILLS
(a) For the purpose of the Facility Agreement the Substitute
Participant will be taken to have accepted any outstanding Bills
accepted by the Retiring Participant included in the Substituted
Participation. The Substitute Participant shall indemnify
unconditionally the Retiring Participant against any liability of
the Retiring Participant as acceptor of the Bills.
(b) The indemnity of the Borrower under clause 9 of the Facility
Agreement extends to any liability of the Substitute Participant
under this clause.
6. WARRANTY
The Retiring Participant and the Substitute Participant jointly and
severally represent and warrant to the other parties that clause 29.2(c)
and (d) of the Facility Agreement has been complied with in relation to
the Substitute Participant.
7. NOTICES
<PAGE>
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For the purpose of the Facility Agreement, the address for correspondence
of the Substitute Participant is the address set out below.
8. REGISTRATION FEE
A registration fee of A$750 is payable to the Agent on delivery of this
Certificate to the Agent.
9. LAW
This Certificate is governed by the laws of [*].
Signed by the authorised representatives of the parties in the Australian
Capital Territory.
THE RETIRING PARTICIPANT
[NAME]
by: ________________________________
THE SUBSTITUTE PARTICIPANT
[NAME]
by: ________________________________
Address for correspondence:
[Telex No.]
Countersigned by an Authorised Officer of the Agent for itself and for the other
parties to the Facility Agreement.
THE AGENT
[NAME]
by: ________________________________
<PAGE>
CONFORMED COPY
NEW SOUTH WALES
STAMP DUTY PAID $2
CASE CREDIT AUSTRALIA PTY LIMITED
(Borrower)
__________________________________
BILL FACILITY AGREEMENT
__________________________________
A$400,000,000 SYNDICATED FACILITY
GUARANTEED BY CASE CREDIT CORPORATION
- ARRANGED BY -
NATIONAL AUSTRALIA BANK LIMITED
<PAGE>
________________________________________________________________________________
T A B L E O F C O N T E N T S
________________________________________________________________________________
<TABLE>
<S> <C>
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 8
1.3 Outstanding Bills 9
1.4 Principal amount 9
1.5 Document or agreement 9
1.6 Determination, statement and certificate 9
1.7 Current accounting practice 9
1.8 Failure to notify 9
2. PURPOSE 10
3. COMMITMENT 10
3.1 Commitments 10
3.2 Allocation among Participants 10
3.3 Obligations several 10
3.4 Enforcement through Agent 11
4. CANCELLATION OF COMMITMENTS - REDUCTION OF PRINCIPAL 11
4.1 Repayment Dates 11
4.2 Reduction of Principal Outstanding 11
4.3 Voluntary early cancellation 11
4.4 Extension of Tranche A Repayment Date 11
4.5 Application against Commitments 12
4.6 Allocation among Participants 12
4.7 Notification 12
5. DRAWDOWN NOTICES 12
5.1 When notice to be given 12
5.2 Funds drawn on same day basis 12
5.3 Notification of Participants 12
6. PRINCIPAL AMOUNT OF SEGMENTS 12
7. SELECTION OF FUNDING PERIODS 13
8. PROCEDURE 13
8.1 Preparation of Bills 13
8.2 Requirements of Bills 13
8.3 Authority of Participants to prepare Bills 14
8.4 Restriction on use of Bills by Agent and Participants 14
8.5 Notification of BBR 14
8.6 Acceptance and discount 14
8.7 Variation of procedures, Same Day Segments 14
</TABLE>
<PAGE>
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<TABLE>
<S> <C>
9. INDEMNITY AND CASH COVER 15
9.1 Indemnity 15
9.2 Cash cover 15
10. ROLLOVER 15
10.1 Netting off 15
10.2 Overdraft if no rollover 15
11. FEES 16
11.1 Facility fee 16
11.2 Calculation and payment 16
11.3 Agency fee 16
12. PAYMENTS 17
12.1 Manner 17
12.2 Payment to be made on Business Day 17
12.3 Distribution by Agent 17
12.4 Appropriation where insufficient moneys available 17
12.5 Unanticipated default 17
12.6 Rounding 17
13. CHANGES IN LAW 18
13.1 Additional payments 18
13.2 Minimisation 19
13.3 Survival of obligations 19
13.4 Cancellation on increased costs 19
14. CONDITIONS PRECEDENT 19
14.1 Conditions precedent to first Drawdown Notice 19
14.2 Conditions precedent to each Segment 20
15. REPRESENTATIONS AND WARRANTIES 20
15.1 Representations and warranties 20
15.2 Reliance on representations and warranties 22
16. UNDERTAKINGS 22
16.1 General undertakings 22
16.2 Term of undertakings 25
17. EVENTS OF DEFAULT 26
17.1 Events of Default 26
17.2 Consequences 28
</TABLE>
<PAGE>
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<TABLE>
<S> <C>
17.3 Cash cover for Bills 28
18. INTEREST ON OVERDUE AMOUNTS 29
18.1 Accrual 29
18.2 Payment 29
19. INDEMNITY AND COSTS 29
19.1 Indemnity 29
19.2 Costs 30
20. CONTROL ACCOUNTS 30
21. STAMP DUTY 30
22. SET-OFF 30
23. NO WAIVERS 31
24. SEVERABILITY OF PROVISIONS 31
25. SURVIVAL OF REPRESENTATIONS 31
26. INDEMNITIES AND REIMBURSEMENT OBLIGATIONS 31
27. MORATORIUM LEGISLATION 31
28. CONSENTS AND OPINIONS 31
29. ASSIGNMENTS 31
29.1 Assignment by Borrower 31
29.2 Assignment by Participants 32
29.3 Substitution certificates 32
29.4 Disclosure 33
29.5 No increased costs 33
30. RELATIONSHIP OF PARTICIPANTS TO AGENT 33
30.1 Authority 33
30.2 Instructions; extent of discretion 33
30.3 No obligation to investigate authority 33
30.4 Agent not a fiduciary 34
30.5 Exoneration 34
30.6 Delegation 34
30.7 Reliance on documents and experts 34
30.8 Notice of transfer 34
30.9 Notice of default 34
30.10 Agent as Participant and banker 35
30.11 Indemnity to Agent 35
30.12 Independent investigation of credit 35
</TABLE>
<PAGE>
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<TABLE>
<S> <C>
30.13 No monitoring 35
30.14 Information 35
30.15 Replacement of Agent 36
30.16 Amendment of Transaction Documents 36
31. PROPORTIONATE SHARING 37
31.1 Sharing 37
31.2 Refusal to join in action 37
31.3 Sharing when Bills repaid directly 37
32. AGENT DEALINGS 38
33. NOTICES 38
34. AUTHORISED OFFICERS 39
35. GOVERNING LAW AND JURISDICTION 39
36. COUNTERPARTS 39
37. ACKNOWLEDGEMENT BY BORROWER 39
</TABLE>
<PAGE>
CONFORMED COPY
NEW SOUTH WALES
STAMP DUTY PAID $2
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DEED POLL
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DEED POLL dated 17 October 1997
BY:
CASE CREDIT AUSTRALIA PTY LIMITED (ACN 069 132 396) of 31-67 Kurrajong Avenue,
St Marys, New South Wales (the ISSUER).
RECITALS
A. The Issuer proposes to issue MTNs denominated in Australian dollars from
time to time under this Deed.
B. The MTNs will be issued in registered form by inscription in the Register.
C. The Issuer enters into this Deed for the benefit of the MTN Holders from
time to time.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
AFFILIATE means, in relation to any person, any other person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with that person. For the purposes of this
definition, CONTROL of a person means the power, directly or indirectly,
either to:
(a) vote 10% or more of the securities or other equity interests having
ordinary voting power for the election of directors or other
governing bodies of that person; or
(b) direct or cause the direction of the management and policies of the
person, whether by contract or otherwise.
AUSTRACLEAR means Austraclear Limited (ACN 002 060 773).
AUSTRACLEAR REGULATIONS means the regulations published by Austraclear.
AUSTRACLEAR SYSTEM means the SYSTEM as defined in the Austraclear
Regulations.
BBSW for an Interest Period means:
(a) the average of the bid/offer rates displayed at or about 10.10am on
the first day of the Interest Period on the Reuters Monitor System
"BBSW" page for bills (which for the purpose of this definition
means bills of exchange of the type specified for the purpose of
quoting on the Reuters Monitor System "BBSW" page) for a term
equivalent to the Interest Period; or
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(b) if the Reuters Monitor System "BBSW" page is not available but has
been replaced by one or more pages generally accepted in the
Australian capital markets as a normal market convention for AUD
bank accepted bills of exchange rate settings, the average of the
bid/offer rates displayed on that replacement page (or if more than
one, the replacement page considered by the Paying Agent to most
closely approximate the replaced "BBSW" page) in a manner
considered by the Paying Agent to most closely approximate the rate
specified above; or
(c) if there are no bid/offer rates for bills for a term equivalent to
the Interest Period displayed on the Reuters Monitor System "BBSW"
page or, in the circumstances of paragraph (b), its equivalent
replacement page, by 10.30am on that day, the rate determined by
the Paying Agent to be the average (rounded to 4 decimal places
with the mid point rounded up) of such bid/offer rates otherwise
quoted by 4 banks to, and on application by, the Paying Agent at or
about 10.30am on that day; or
(d) if for any reason the rate for that Interest Period cannot be
determined in accordance with the preceding paragraphs, the rate as
reasonably determined in good faith by the Paying Agent having
regard to comparable indices then available.
Rates will be expressed as a yield percent per annum to maturity.
BUSINESS DAY means a day (not being a Saturday or Sunday) on which banks
are open for business in Sydney and Melbourne and, where payment is to be
made through an account of Austraclear, on which Austraclear is operating.
BUSINESS DAY CONVENTION means the convention specified in the relevant
Pricing Supplement and recorded in the Register, for adjusting any
relevant date if it would otherwise fall on a day that is not a Business
Day. The following terms, when used in conjunction with the term BUSINESS
DAY CONVENTION and a date, mean that an adjustment will be made if that
date would otherwise fall on a day that is not a Business Day so that:
(a) if FOLLOWING is specified, that date will be the following Business
Day;
(b) if MODIFIED FOLLOWING or MODIFIED is specified, that date will be
the following Business Day in the same calendar month or, if none,
the preceding Business Day; and
(c) if PRECEDING is specified, that date will be the preceding Business
Day.
CASE VENDOR FINANCING means financing which is provided by a person other
than Case Corporation Pty Limited or any of its Subsidiaries or
Affiliates, to a customer of Case Corporation Pty Limited or of any of its
Subsidiaries or Affiliates.
CONDITIONS in relation to an MTN, means the terms and conditions
applicable to that MTN set out in this Deed, as supplemented, modified or
replaced by the relevant Pricing Supplement. It includes the provisions of
that Pricing Supplement.
CONSENT means:
(a) consent of the MTN Holders by Extraordinary Resolution; or
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(b) if Standard & Poors have unconditionally confirmed in writing to
the Programme Manager that the relevant act, matter or thing can be
done without effecting the ratings outlook of the MTNs, then
consent of the MTN Holders by Ordinary Resolution.
DAY COUNT FRACTION means, in respect of the calculation of an Interest
Amount:
(a) if ACTUAL/365 or ACTUAL/ACTUAL is specified in the relevant Pricing
Supplement, the actual number of days in the Interest Period in
respect of which payment is being made (being inclusive of the
first day but exclusive of the last day) divided by 365 (or, if any
portion of that Interest Period falls in a leap year, the sum of
(i) the actual number of days in that portion of the Interest
Period falling in a leap year divided by 366 and (ii) the actual
number of days in that portion of the Interest Period falling in a
non-leap year divided by 365); or
(b) if ACTUAL/365 (FIXED) is specified, the actual number of days in
the Interest Period in respect of which payment is being made
divided by 365.
DEALERSHIP AGREEMENT means the dealership agreement dated on or about the
date of this Deed between the Issuer, National Australia Bank Limited in
its capacity as Programme Manager and I&P Agent and the Dealers named in
it.
EVENT OF DEFAULT means an event or circumstance described in clause 12.1.
EXTRAORDINARY RESOLUTION has the meaning given in annexure B.
FINANCING LEASE means any lease of property, real or personal, in respect
of which the lessee's obligations are required, in accordance with current
accounting practice, to be capitalised on the lessee's balance sheet.
FIXED RATE MTN means an MTN that bears interest at a fixed rate.
FLOATING RATE BASIS means the basis on which interest is calculated in
respect of a Floating Rate MTN, being BBSW or another basis set out in the
relevant Pricing Supplement and recorded in the Register.
FLOATING RATE MTN means an MTN that bears interest at a floating rate.
GOVERNMENT AGENCY means any government or any governmental, semi-
governmental or judicial entity or authority. It also includes any self-
regulatory organisation established under statute or any stock exchange.
GUARANTEE DEED means the guarantee and negative pledge deed poll dated on
or about the date of this Deed by the Guarantor in favour of, among
others, the MTN Holders from time to time.
GUARANTEE OBLIGATION in relation to any person (the GUARANTEEING PERSON)
means, without duplication, any obligation of:
(a) the guaranteeing person; or
(b) another person (including any bank under any letter of credit) the
creation of which was induced by the guaranteeing person issuing a
reimbursement, counter indemnity or similar obligation,
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in either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the PRIMARY OBLIGATIONS) of any
person (the PRIMARY OBLIGOR) in any manner, whether directly or
indirectly. It includes an obligation of the guaranteeing person, whether
or not contingent:
(i) to purchase any such primary obligation or any property
constituting direct or indirect security for it;
(ii) to advance or supply funds for the purchase or payment of any such
primary obligation or to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor;
(iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of the primary
obligation; or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect of it.
It does not include endorsement of instruments for deposit or collection
in the ordinary course of business, or obligations in respect of trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices.
Without limiting the Guarantee Deed, the amount of any Guarantee
Obligation of any GUARANTEEING PERSON will be taken to be the lower of:
(A) an amount equal to the stated or determinable amount of the PRIMARY
OBLIGATION in respect of which the Guarantee Obligation is made;
and
(B) the maximum amount for which the guaranteeing person may be liable
under the terms of the instrument embodying the Guarantee
Obligation,
unless the primary obligation and the maximum amount for which the
guaranteeing person may be liable are not stated or determinable, in which
case the amount of the Guarantee Obligation will be the guaranteeing
person's maximum reasonably anticipated liability in respect of it as
determined by the Issuer in good faith.
GUARANTOR means Case Credit Corporation, a company incorporated in
Delaware with its principal office at 233 Lake Street, Racine, Wisconsin,
53403, USA.
INDEBTEDNESS in relation to any person at any time, means, without
duplication:
(a) all indebtedness of the person for borrowed money or for the
deferred purchase price of property or services (other than trade
liabilities incurred in the ordinary course of business and payable
in accordance with customary practices);
(b) any other indebtedness of the person which is evidenced by a note,
bond, debenture or similar instrument;
(c) all obligations of the person as lessee under Financing Leases;
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(d) the discounted amount of all obligations of the person in respect
of acceptances issued or created for the account of the person;
(e) all liabilities secured by any Lien on any property owned by the
person even though the person has not assumed or otherwise become
liable for the payment of it;
(f) all net liabilities of the person in respect of Interest Rate
Agreements;
(g) all Guarantee Obligations in respect of Indebtedness referred to in
the preceding paragraphs of this definition; and
(h) if the person is the Issuer or any of its Subsidiaries, all
obligations of that person incurred in connection with any
securitisation or other asset-backed financing of Receivables, to
the extent those obligations are excluded from the definition of
Permitted Securitisation Obligations by operation of the proviso to
that definition.
Despite the above, Permitted Vendor Financing Obligations do not
constitute Indebtedness under this definition.
INTEREST ACCRUAL DATE means the date set out in the relevant Pricing
Supplement and recorded in the Register as the interest accrual date for
an MTN. If no date is set out, it means the Issue Date.
INTEREST AMOUNT means the amount of interest payable in respect of an MTN
for an Interest Period.
INTEREST PAYMENT DATE means each date set out in the relevant Pricing
Supplement and recorded in the Register as an interest payment date for an
MTN.
INTEREST PERIOD in relation to an MTN means the period from and including
an Interest Payment Date of the MTN to but excluding its next Interest
Payment Date, except that the first Interest Period commences on and
includes the Interest Accrual Date and the last Interest Period ends on
but excludes the Maturity Date.
INTEREST RATE:
(a) in the case of a Fixed Rate MTN, means the rate of interest
(expressed as a per cent per annum) payable in respect of that MTN
set out in the Pricing Supplement and recorded in the Register;
(b) in the case of a Floating Rate MTN, means the rate of interest
(expressed as a per cent per annum) payable in respect of that MTN
from time to time calculated in accordance with the applicable
Floating Rate Basis and Conditions; and
(c) in the case of any other interest bearing MTN, means the rate of
interest (expressed as a percent per annum) payable in respect of
that MTN and either set out in the Pricing Supplement and recorded
in the Register or calculated in accordance with the relevant
Pricing Supplement.
INTEREST RATE AGREEMENT means any interest rate protection agreement,
interest rate future, interest rate option, interest rate cap or other
interest rate hedge arrangement.
ISSUE DATE means the date recorded in the Register as the date on which an
MTN was issued.
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ISSUE PRICE means the price set out in the relevant Pricing Supplement and
recorded in the Register as the issue price of an MTN.
LIEN means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatever (including any
conditional sale or other title retention agreement and any Financing
Lease having substantially the same economic effect as any of the above).
MATERIAL SUBSIDIARY means any Subsidiary of the Issuer whose assets or
revenues (excluding intercompany receivables and revenues that would be
eliminated upon consolidation in accordance with current accounting
practice) are, at the time of determination, equal to or greater than 10%
of the assets or revenues (excluding intercompany receivables and revenues
that would be eliminated upon consolidation in accordance with current
accounting practice), respectively, of the Issuer at such time.
MATURITY DATE means the date set out in the relevant Pricing Supplement
and recorded in the Register as the maturity date of an MTN.
MTN means the right of an MTN Holder to be paid certain moneys under this
Deed, title to which is recorded in and evidenced by an inscription in the
Register.
MTN HOLDER means the person whose name is inscribed in the Register from
time to time as the holder of an MTN, or where the MTN is held jointly by
more than one person, the persons whose names appear in the Register as
the joint holders of that MTN.
ORDINARY RESOLUTION has the meaning given in annexure B.
PAYING AGENT means Corporate Registry Services Pty Limited
(ACN 078 279 277) or another person from time to time appointed by the
Issuer to make payments under MTNs on its behalf.
PERMITTED SECURITISATION OBLIGATIONS means obligations of the Issuer or
any of its Subsidiaries incurred in connection with any securitisation or
other asset-backed financing of Receivables; except that, if:
(a) there is recourse to the Issuer or any of its Subsidiaries (other
than a Special Purpose Subsidiary) for failure to pay or otherwise
perform any of those obligations;
(b) that failure arises as a result of credit defaults by the debtors
in respect of those Receivables; and
(c) that recourse is not limited to the Receivables and the Receivables
Related Assets (or undivided or beneficial interests in them) which
are the subject of such securitisation or other asset-backed
financing,
then those obligations will not be considered Permitted Securitisation
Obligations within the meaning of this definition to the extent that, in
accordance with current accounting practice, the obligations would be
required to be included as a liability on a consolidated balance sheet of
the Issuer and its Subsidiaries.
PERMITTED VENDOR FINANCING OBLIGATIONS means any Guarantee Obligation of
the Issuer or any of its Subsidiaries in respect of Case Vendor Financing,
but only to the extent that the underlying
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principal amount of the Indebtedness subject to the Guarantee Obligation
is secured or otherwise funded by the Issuer or any of its Subsidiaries
with cash or other marketable instruments (including pledges of deposit
accounts, notes, bonds, certificates of deposit or other documents or
instruments).
PRICING SUPPLEMENT means the pricing supplement substantially in the form
of annexure A (or another form agreed by the Issuer and the Programme
Manager) prepared in relation to the MTNs of a Tranche and signed by the
Issuer.
PRINCIPAL AMOUNT means the face amount of an MTN as specified in the
relevant Pricing Supplement and recorded in the Register or such other
amount described as the Principal Amount in the relevant Pricing
Supplement.
PROGRAMME MANAGER means National Australia Bank Limited in that capacity.
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 from the financing by the Issuer or any
of its Subsidiaries of property or services, and money due under them,
security interests in the property and services financed by them and all
other related rights.
RECEIVABLES RELATED ASSETS means in connection with any securitisation or
other asset-backed financing of, or other sale, transfer or disposition
of, Receivables, the collective reference to:
(a) any rights arising under the documentation governing or relating to
those Receivables (including rights in respect of Liens securing
the Receivables and other credit support in respect of them);
(b) any proceeds of the Receivables and any locked boxes or accounts in
which those proceeds are deposited;
(c) spread accounts and other similar accounts (and any amounts on
deposit in them) established in connection with that securitisation
or asset-backed financing; and
(d) any warranty, indemnity, dilution and other intercompany claim
arising out of the documentation evidencing that securitisation or
asset-backed financing.
REDEMPTION AMOUNT means 100 per cent of the Principal Amount of an MTN or
such other amount as is specified in the relevant Pricing Supplement as a
Redemption Amount in relation to a particular Redemption Date.
REDEMPTION DATE means the Maturity Date of an MTN and any other date for
the payment of part or all of the Principal Amount as specified in the
relevant Pricing Supplement and recorded in the Register.
REGISTER means the register of MTN Holders maintained by the Registrar
under the Registry Services and Paying Agency Agreement.
REGISTRAR means Corporate Registry Services Pty Limited (ACN 078 279 277)
or another person from time to time appointed in that capacity by the
Issuer.
REGISTRY SERVICES AND PAYING AGENCY AGREEMENT means the Registry Services
and Paying Agency Agreement between the Registrar and the Issuer.
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RELEVANT COMPANY means the Issuer, any of its Subsidiaries or the
Guarantor.
REVOLVING CREDIT AGREEMENT means the revolving credit and guarantee
agreement dated as of 23 August 1996 between the Guarantor as a Borrower,
The Chase Manhattan Bank as Administrative Agent and the other Borrowers,
Lenders, Co-Agents and Lead Managers named in it.
SERIES means each original issue of MTNs, and any further issues expressed
in the relevant Pricing Supplement to form a single series with the
original issue, having the same terms except for the Issue Date, Interest
Accrual Date, Issue Price or face amount.
SPECIAL PURPOSE SUBSIDIARY means any wholly owned Subsidiary of the Issuer
which is:
(a) formed for the purpose of effecting a securitisation or other
asset-backed financing of Receivables and engaging in other
reasonably related activities; and
(b) structured as a BANKRUPTCY-REMOTE SUBSIDIARY in accordance with
customary practices in the asset-backed securitisation market.
SUBSIDIARY has the meaning given in the Corporations Law, but an entity
will also be taken to be a Subsidiary of an entity if it is controlled by
that entity (expressions used in this paragraph have the meanings given
for the purposes of Parts 3.6 and 3.7 of the Corporations Law).
TAX ACT means the Income Tax Assessment Act 1936 (Commonwealth).
THRESHOLD AMOUNT means US$60,000,000.
TRANCHE means all MTNs of the same Series having the same Issue Date and
Interest Accrual Date.
TRANSACTION DOCUMENT means this Deed, the Dealership Agreement, the
Registry Services and Paying Agency Agreement, the Guarantee Deed, any MTN
or a document or agreement entered into for the purpose of amending or
novating any of the above.
TRANSFER AND ACCEPTANCE FORM means a form for the transfer of MTNs
substantially in the form of annexure 3 or any other form adopted by the
Registrar in line with then current market practice.
1.2 INTERPRETATION
Headings are for convenience only and do not affect interpretation. The
following rules apply unless the context requires otherwise.
(a) The singular includes the plural and the converse.
(b) A gender includes all genders.
(c) Where a word or phrase is defined, its other grammatical forms have
a corresponding meaning.
(d) A reference to a person, corporation, trust, partnership,
unincorporated body or other entity includes any of them.
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(e) A reference to a clause, annexure or schedule is a reference to a
clause of, or annexure or schedule to, this Deed.
(f) A reference to a party to this Deed or another agreement or
document includes the party's successors and permitted substitutes
or assigns.
(g) A reference to legislation or to a provision of legislation
includes a modification or re-enactment of it, a legislative
provision substituted for it and a regulation or statutory
instrument issued under it.
(h) A reference to WRITING includes a facsimile transmission and any
means of reproducing words in a tangible and permanently visible
form.
(i) A reference to CONDUCT includes an omission, statement or
undertaking, whether or not in writing.
(j) Mentioning anything after INCLUDE, INCLUDES or INCLUDING does not
limit what else might be included.
(k) A reference to any time is a reference to Sydney time.
(l) A reference to DOLLARS or $ is a reference to Australian currency.
(m) A reference to REGISTRATION or RECORDING includes inscription, and
TRANSFER includes transmission.
(n) A reference to CURRENT ACCOUNTING PRACTICE is to accounting
principles and practices applying by law or otherwise generally
accepted in Australia, consistently applied.
2. THE MTNS
2.1 CREATION OF MTNS
(a) MTNs are issued in registered form. Subject to the Dealership
Agreement, the Issuer may create MTNs at any time by procuring the
Registrar to inscribe the details of those MTNs in the Register.
(b) The execution of a Pricing Supplement does not constitute the
creation of an MTN, the acknowledgement of a debt or any promise to
pay by the Issuer. No MTN will be created except in accordance with
paragraph (a).
(c) The Issuer may create further MTNs so as to form a single Series
with any Tranche of MTNs.
2.2 CONSTITUTION AND TITLE
(a) The MTNs are constituted by this Deed. Each MTN is a separate debt
of the Issuer and may be transferred separately from any other MTN.
(b) Entitlement to an MTN is conclusively determined by inscription in
the Register. The making of, or giving effect to, a manifest error
in an inscription in the Register will not
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avoid the creation or transfer of an MTN. The Issuer will
procure the Registrar to rectify any manifest error of which it
becomes aware.
(c) No certificate or other document of title will be issued to
evidence title to an MTN unless that is required by applicable law
or the Issuer determines that certificates should be made
available.
2.3 TYPES
MTNs may be:
(a) Floating Rate MTNs;
(b) Fixed Rate MTNs; or
(c) any other MTN as may be specified in the relevant Pricing
Supplement.
2.4 DENOMINATION
(a) Each MTN must be denominated in Australian dollars. Subject to
paragraph (b), the face amount of each MTN on inscription must be a
minimum of $1,000,000 and an integral multiple of $100,000.
(b) A lower face amount may be specified in the relevant Pricing
Supplement if the consideration payable to the Issuer by the MTN
Holder is at least $500,000, or the offer or invitation and issue
is otherwise EXCLUDED within the meaning of the Corporations Law.
(c) MTNs are divisible on transfer into whole multiples of $100,000,
subject to clause 5.
2.5 STATUS
(a) The MTNs are direct, unconditional, unsecured and unsubordinated
obligations of the Issuer. They rank without preference or priority
among themselves and at least equally with all present and future
unsubordinated and unsecured obligations of the Issuer (except
liabilities mandatorily preferred by law and subject to laws and
principles of equity generally affecting creditors' rights). The
ranking of MTNs is not affected by the date of inscription in the
Register.
(b) The MTNs are issued with the benefit of the Guarantee Deed.
2.6 ISSUER TO INFORM REGISTRAR AND PAYING AGENT
On or before the Issue Date of an MTN the Issuer must give the Registrar
and the Paying Agent a copy of the relevant Pricing Supplement including
the information contemplated by annexure A (to the extent applicable) and,
to the extent not included in that Pricing Supplement, notify the
Registrar and the Paying Agent of the following details of that MTN:
(a) the name, address and, if advised to the Issuer by the initial MTN
Holder, tax file number of the initial MTN Holder or the basis on
which the initial MTN Holder is exempt from the need to advise the
Issuer of its tax file number;
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(b) the payment instructions notified by the initial MTN Holder; and
(c) any other information required by applicable law.
3. RIGHTS AND OBLIGATIONS OF MTN HOLDERS
3.1 RIGHTS OF MTN HOLDERS
An MTN Holder is entitled, in respect of each MTN for which that person's
name is inscribed in the Register, to the payment of principal and
interest in accordance with the Conditions applicable to that MTN,
together with the other benefits given to MTN Holders under this Deed. The
Issuer irrevocably undertakes to make all those payments on the due date.
3.2 DEED POLL
This Deed is a deed poll. Accordingly, each MTN Holder and any person
claiming through an MTN Holder has the benefit of this Deed even though it
is not a party to, or is not in existence at the time of execution and
delivery of, this Deed.
3.3 ENFORCEMENT
Each MTN Holder may enforce its rights under this Deed independently from
the Registrar and each other MTN Holder.
3.4 MTN HOLDERS BOUND
Each MTN Holder, and any person claiming through an MTN Holder, who
asserts an interest in an MTN is bound by this Deed.
3.5 LODGEMENT WITH REGISTRAR
(a) The Issuer shall keep an executed counterpart of this Deed and the
Guarantee Deed with the Registrar for the benefit of MTN Holders as
more particularly set out in the Registry Services and Paying
Agency Agreement.
(b) Each MTN Holder is taken to have irrevocably appointed and
authorised the Registrar to hold this Deed and the Guarantee Deed
in the Australian Capital Territory on behalf of that MTN Holder,
with the powers expressly delegated to the Registrar under the
Registry Services and Paying Agency Agreement and other powers
reasonably incidental to those powers.
(c) The Registrar has no duties or responsibilities in that capacity
except those expressly set out in the Registry Services and Paying
Agency Agreement.
3.6 INCORPORATION OF ANNEXURES AND CONDITIONS
(a) The MTNs are issued on and subject to:
(i) the Conditions applicable to those MTNs;
(ii) the terms relating to those MTNs set out in the Register;
and
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(iii) the provisions for meetings contained in annexure B,
each of which is incorporated in this Deed as if it were set out in
this Deed and so as to bind the Issuer and the MTN Holders who
assert an interest in the MTNs.
(b) If there is any inconsistency between this Deed and a Pricing
Supplement, the Pricing Supplement will prevail.
3.7 PAYING AGENT AND PROGRAMME MANAGER
Each MTN Holder is taken to acknowledge that:
(a) the Paying Agent is the Issuer's agent, not theirs;
(b) the Programme Manager is not, by reason of any Transaction
Document, an agent of or trustee for the benefit of, the Issuer or
any MTN Holder; and
(c) neither the Paying Agent nor the Programme Manager owes any
fiduciary duty to any MTN Holder.
4. REGISTER
4.1 ESTABLISH AND MAINTAIN
The Issuer shall procure that the Registrar does the following things:
(a) establish and maintain, in accordance with the Registry Services
and Paying Agency Agreement, a register in Canberra or another
Australian city approved by the Issuer; and
(b) enter or cause to be entered in the Register in respect of each
MTN:
(i) the information contemplated by annexure A (to the extent
applicable);
(ii) the name and address of the initial MTN Holder and each
subsequent MTN Holder;
(iii) the date on which a person becomes an MTN Holder;
(iv) the payment instructions notified by the MTN Holder;
(v) the MTN Holder's tax file number (if provided by it) or the
basis on which the MTN Holder is exempt from the need to
disclose its tax file number;
(vi) the date on which a person ceases to be an MTN Holder;
(vii) the date on which the MTN is redeemed or is purchased and
cancelled; and
(viii) any other information required by applicable law.
4.2 MULTIPLE MTN HOLDERS
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(a) Two or more people registered as MTN Holders of an MTN are taken to
be joint holders with right of survivorship between them.
(b) If there are more than 4 holders of an MTN, the names of only 4 of
them will be entered in the Register. If more than 4 names are
notified to the Registrar, it will record the first 4 noted.
(c) If there is more than one holder of an MTN, the address of only one
of them will be entered in the Register. If more than one address
is notified to the Registrar, it will record the address of the MTN
Holder whose name appears first in the Register.
4.3 REGISTER IS PARAMOUNT
(a) The person whose name appears in the Register will be recognised by
the Issuer and the Registrar as the absolute owner of the MTNs
inscribed in the Register in its name, without regard to any other
record or instrument (including any Transfer and Acceptance Form).
(b) No notice of any trust or other interest in an MTN will be entered
on the Register. Neither the Issuer nor the Registrar need take
notice of any other interest in or claim to an MTN, except as
ordered by a court of competent jurisdiction or required by law.
4.4 MTN HOLDER CHANGE OF NAME OR ADDRESS
An MTN Holder must promptly notify any change of name or address to the
Registrar.
4.5 CERTIFIED EXTRACTS FROM REGISTER AVAILABLE
The Issuer shall, on request by an MTN Holder, procure that the Registrar
provides the MTN Holder, at the MTN Holder's expense, with a certified
extract of the particulars entered in the Register in relation to the MTN
Holder and the MTNs held by it. That extract is not a document of title.
5. TRANSFERS
5.1 MTNS TRANSFERABLE
MTNs are transferable, in whole or in part, without the consent of the
Issuer or the Registrar.
5.2 METHOD OF TRANSFER
MTNs may be transferred only:
(a) by a Transfer and Acceptance Form complying with clause 5.3 or
through the Austraclear System in accordance with clause 6;
(b) in a total minimum Principal Amount of $500,000 or, if a larger
Principal Amount, an integral multiple of $100,000; and
(c) if the offer or invitation to transfer is EXCLUDED within the
meaning of the Corporations Law.
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5.3 TRANSFER AND ACCEPTANCE FORMS
Transfer and Acceptance Forms are available from the Registrar. Every
Transfer and Acceptance Form in respect of MTNs must be:
(a) signed by the transferor and the transferee;
(b) delivered to the office of the Registrar for registration;
(c) accompanied by such evidence as the Registrar may reasonably
require to prove the title of the transferor or the transferor's
right to transfer those MTNs; and
(d) duly stamped, if necessary.
The Issuer is not obliged to pay stamp duty on any transfer of an MTN.
5.4 EFFECTIVE DATE OF TRANSFERS
The transferor will be taken to remain the owner of the relevant MTNs
until the name of the transferee is inscribed in the Register in respect
of those MTNs.
5.5 NO FEE
No fee or other charge is payable to the Issuer or the Registrar in
respect of the transfer or registration of any MTN.
5.6 CLOSING OF REGISTER
The Register will be closed in respect of an MTN for the purpose of
determining entitlements to payment, at 5pm on the seventh day before each
Interest Payment Date and Redemption Date of the MTN (or any shorter
period agreed by the Issuer and the Registrar). No Transfer and Acceptance
Forms in relation to the MTN will be registered from the time of that
closing until all payments due on the MTN on the relevant date have been
made.
5.7 MARKING OF TRANSFER
The Registrar may mark any Transfer and Acceptance Form in its customary
manner. That marking prohibits a dealing with the relevant MTNs, as
specified in the marking notation, from the date of marking to the
earliest of:
(a) 42 days from the date of marking;
(b) the date the Registrar cancels the marking notation; and
(c) the date the Registrar receives the marked Transfer and Acceptance
Form executed by the transferee.
A marked Transfer and Acceptance Form is not a document of title.
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5.8 TRANSFER ON DEATH, BANKRUPTCY OR LIQUIDATION OF MTN HOLDER
The Registrar is required by the Registry Services and Paying Agency
Agreement to register a transfer of an MTN to or by a person who is
entitled to do so in consequence of:
(a) the death, bankruptcy, liquidation or winding up of an MTN Holder;
or
(b) the making of a vesting order by a court or other judicial or
quasi-judicial body in relation to an MTN Holder,
on receiving the evidence the Registrar requires.
5.9 DESTRUCTION
Any Transfer and Acceptance Form may, with the prior written approval of
the Issuer, be destroyed by the Registrar after the entry in the Register
of the particulars set out in the form.
5.10 DECEASED PEOPLE
The Registrar may decline to give effect to a transfer of any MTNs entered
in the Register in the name of a deceased person who has two or more
personal representatives unless the Transfer and Acceptance Form is
executed by all of them.
6. MTNS LODGED WITH AUSTRACLEAR
If MTNs are lodged into the Austraclear System, the Registrar will enter
Austraclear in the Register as the holder of those MTNs. While those MTNs
remain in the Austraclear System:
(a) all payments and notices required of the Issuer or the Registrar in
relation to those MTNs will be directed into Austraclear; and
(b) all dealings (including transfers and payments) in relation to
those MTNs within the Austraclear System will be governed by the
Austraclear Regulations and need not comply with this Deed to the
extent of any inconsistency.
7. INTEREST ON MTNS
7.1 APPLICATION
The provisions of this clause 7 apply to Floating Rate MTNs, Fixed Rate
MTNs and any other MTNs which are specified in the relevant Pricing
Supplement as being interest bearing.
7.2 ACCRUAL AND PAYMENT
(a) Interest accrues on a daily basis on the Principal Amount of MTNs
to which this clause applies at the applicable Interest Rate from
their Interest Accrual Date until their Maturity Date. This does
not limit clause 14.
(b) Subject to any contrary provision in the relevant Pricing
Supplement, the Interest Amount is calculated by applying the
applicable Interest Rate for the Interest Period to the Principal
Amount of the MTN, multiplying that sum by the relevant Day Count
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Fraction, and rounding the resultant figure to the nearest cent
(half a cent being rounded upwards).
(c) Accrued interest is payable in arrears on each applicable Interest
Payment Date and on the Maturity Date.
7.3 NOTIFICATION OF INTEREST RATE AND INTEREST AMOUNT
The Issuer will, if requested in writing by an MTN Holder, notify the MTN
Holder of the applicable Interest Rate, Interest Amount and Interest
Payment Date or cause the Paying Agent to do so. The Interest Amount and
the Interest Payment Date so notified may be subsequently amended (or
appropriate alternative arrangements made by the Paying Agent by way of
adjustment) without notice if the Interest Period is extended or shortened
in accordance with the applicable Conditions.
8. REDEMPTION AND PURCHASE OF MTNS
8.1 REDEMPTION
The Issuer undertakes to pay to each MTN Holder, in respect of each MTN
for which that person's name is inscribed in the Register and which has
not been previously purchased and cancelled, each Redemption Amount on the
relevant Redemption Date.
8.2 PURCHASE
The Issuer may at any time purchase MTNs:
(a) in the open market;
(b) by tender to all of the MTN Holders; or
(c) by private agreement.
8.3 CANCELLATION
All MTNs redeemed or repurchased by the Issuer must be cancelled promptly
and may not be reissued or resold. All liabilities and obligations of the
Issuer in connection with those MTNs are discharged.
This clause does not prevent the Issuer creating new MTNs.
9. MANNER OF PAYMENTS
9.1 PAYMENTS TO MTN HOLDERS
All payments under or in respect of an MTN must be made by the Issuer or
the Paying Agent on its behalf:
(a) in Australian Dollars;
(b) to an account or an address in Australia which is designated by the
MTN Holder to the Registrar not later than 5pm on the seventh day
before the relevant Interest Payment Date or Redemption Date;
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(c) by cheque drawn on a bank in Australia or, in the case of payments
to be credited to an account, by the Issuer or the Paying Agent
giving irrevocable instructions to effect a transfer of the
relevant funds to that account; and
(d) in accordance with clause 10.
All payments are subject to any applicable fiscal or other laws and
regulations.
9.2 WHEN PAYMENTS TAKEN TO HAVE BEEN MADE
(a) A payment made by posting a cheque is taken to have been made on
the day it is posted, even if the cheque does not actually arrive
on that date.
(b) A payment made by electronic transfer is taken to be made when the
Issuer or Paying Agent gives an irrevocable instruction for that
payment which would reasonably be expected to result, in the
ordinary course of banking business, in the relevant funds reaching
the account of the MTN Holder on the same day as the day on which
the instruction is given.
9.3 GOOD DISCHARGE
(a) If payment of an amount due to an MTN Holder is made in accordance
with the applicable Conditions, that payment is a good discharge to
the Issuer despite any notice it or the Paying Agent may have
(whether express or otherwise) of the right, title, interest or
claim of any other person to or in that money or the MTN under
which the payment is made.
(b) A payment made to a third party on the instructions of the MTN
Holder to whom it is due will constitute a good discharge of the
Issuer's obligation to make that payment to the MTN Holder.
9.4 BUSINESS DAYS
(a) If a payment is due under or in respect of an MTN on a day which is
not a Business Day, the due date for payment will be adjusted
according to the Business Day Convention applicable to that MTN.
(b) If an amount is to be paid to an account on a day on which banks
are not open for business in the city in which the account is
located, the MTN Holder is not entitled to payment of that amount
until the next Business Day on which banks in that city are open
for business and is not entitled to any additional interest or
other payment in respect of that delay.
9.5 PAYING AGENT
Subject to any agreement between the Issuer and the Paying Agent, the
Issuer may vary or terminate the appointment of the Paying Agent at any
time. Notice of any such change, or any change in the specified offices of
the Paying Agent, must be given to the MTN Holders in accordance with
clause 17.
10. TAXATION
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10.1 PAYMENTS MADE FREE AND CLEAR
All payments under or in respect of the MTNs must be made free and clear
of, and without deduction for, or by reference to, any present or future
taxes of the Commonwealth of Australia or any political subdivision or
taxing authority of or in Australia unless required by law.
10.2 INTEREST WITHHOLDING TAX
The Issuer or any person making payments on its behalf may deduct interest
withholding tax imposed by the Commonwealth of Australia from payments of
interest or amounts in the nature of interest in respect of MTNs which are
payable to:
(a) non-residents of the Commonwealth of Australia not carrying on
business in the Commonwealth of Australia at or through a permanent
establishment; and
(b) residents of the Commonwealth of Australia carrying on business at
or through a permanent establishment outside the Commonwealth of
Australia,
unless a notice pursuant to section 221YM of the Tax Act is produced to
the Registrar not later than 5pm on the seventh day before the relevant
Interest Payment Date or Redemption Date (as the case may be), and then
only to the extent that the notice relates to the amount payable.
10.3 TAX FILE NUMBER
The Issuer or any person making payments on its behalf may deduct tax-at-
source on payments of interest or amounts in the nature of interest to an
MTN Holder at the rate required by the Tax Act unless the Registrar
receives written notice of the MTN Holder's tax file number or evidence of
any exemption the MTN Holder may have from the need to notify its tax file
number. The tax file number or appropriate evidence (as the case may be)
must be received by the Registrar not later than 5pm on the seventh day
before the relevant Interest Payment Date or Redemption Date.
11. NEGATIVE PLEDGE
The Issuer undertakes to each MTN Holder as follows.
(a) (NO LIENS) It will not, and it will ensure that each of its
Subsidiaries will not, create, incur, assume or allow to exist any
Lien on any of its property, assets or revenue, whether now owned
or acquired later, which would cause the Guarantor to be in breach
of any provision of the Guarantee Deed.
(b) (GUARANTEE DEED) It will not do anything which may cause the
Guarantor to breach the undertakings given by it in the Guarantee
Deed and it will do all things necessary on its part to ensure that
the Guarantor is able duly to perform those undertakings.
(c) (NOTICE) It will promptly notify the Programme Manager and each MTN
Holder of the occurrence of any Event of Default.
12. EVENTS OF DEFAULT
12.1 EVENTS OF DEFAULT
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Each of the following is an Event of Default in relation to all MTNs
(whether or not it is in the control of any Relevant Company).
(a) (OBLIGATIONS UNDER TRANSACTION DOCUMENTS) A Relevant Company fails:
(i) to pay an amount payable by it under a Transaction Document
within 5 Business Days of the amount becoming due; or
(ii) to comply with any of its other obligations under a
Transaction Document and, if that failure can be remedied,
does not remedy the failure within 21 Business Days after
notice in writing to the Issuer from any MTN Holder or the
Programme Manager.
(b) (CROSS DEFAULT)
(i) Indebtedness of a Relevant Company totalling at least the
Threshold Amount or its equivalent:
(A) is not paid when due (or within an applicable grace
period); or
(B) becomes due and payable or capable of being declared due
and payable before its stated maturity or expiry;
(ii) a facility or obligation granted or owed by a person to a
Relevant Company to provide financial accommodation or to
acquire or underwrite Indebtedness totalling at least the
Threshold Amount or its equivalent is prematurely
terminated, except where the Relevant Company exercises an
optional right of termination in the absence of actual,
likely or threatened default or an event of default or
termination event, whatever called; or
(iii) an event of default as defined in the Revolving Credit
Agreement occurs and money owing under that agreement
becomes due and payable before its stated maturity or
expiry.
For the purpose of this paragraph (b) the term INDEBTEDNESS does
not include:
(iv) Guarantee Obligations of any Subsidiary of the Issuer in
respect of Indebtedness of an Affiliate of the Issuer if
that Subsidiary owns no material assets other than equity
interests in the Affiliate and the Affiliate is not a
Subsidiary of the Issuer; and
(v) net liabilities in respect of Interest Rate Agreements
unless the holder or holders of that Indebtedness have
required that a termination payment in respect of the
Interest Rate Agreement be made.
(c) (ADMINISTRATION, WINDING UP, ARRANGEMENTS, INSOLVENCY ETC.)
(i) An administrator of the Issuer, a Material Subsidiary or the
Guarantor is appointed.
(ii) Except for the purpose of a solvent reconstruction or
amalgamation with prior Consent:
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(A) an application or an order is made, proceedings are
commenced or a resolution is passed for:
(1) the winding up, dissolution or administration of the
Issuer, a Material Subsidiary or the Guarantor; or
(2) the Issuer, a Material Subsidiary or the Guarantor
entering into an arrangement, compromise or
composition with or assignment for the benefit of
its creditors or a class of them,
other than an application or proceeding which is being
contested in good faith and which is withdrawn or set
aside within 21 days of first filing; or
(B) the Issuer, a Material Subsidiary or the Guarantor
ceases or suspends the conduct of all or a substantial
part of its business or disposes of a substantial part
of its assets.
(iii) The Issuer, a Material Subsidiary or the Guarantor:
(A) is, or under legislation is presumed or taken to be,
insolvent (other than as the result of a failure to pay
a debt or claim the subject of a good faith dispute); or
(B) stops or suspends payment of all or a class of its
debts.
(d) (ENFORCEMENT AGAINST ASSETS)
(i) A Controller (as defined in the Corporations Law) or similar
officer is appointed to all or any of the assets and
undertaking of the Issuer, a Material Subsidiary or the
Guarantor and not removed (without another being appointed
in its place) within 21 days.
(ii) A distress, attachment or other execution is levied or
enforced over all or any of the assets and undertaking of
the Issuer, a Material Subsidiary or the Guarantor and not
withdrawn or discontinued within 21 days.
(e) (ANALOGOUS PROCESS) Anything analogous to anything referred to in
paragraphs (c) or (d), or which has substantially similar effect,
occurs with respect to the Issuer, a Material Subsidiary or the
Guarantor under any overseas law or any law which commences or is
amended after the date of this Deed.
(f) (VITIATION OF DOCUMENTS) All or any material part of a Transaction
Document is terminated or is or becomes void, illegal, invalid,
unenforceable or of limited force and effect.
(g) (CONTROL OF ISSUER OR GUARANTOR) Without prior Consent:
(i) the Issuer ceases to be a wholly owned subsidiary of the
Guarantor; or
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(ii) the Guarantor ceases to be a wholly owned subsidiary of Case
Corporation.
(h) (SUPPORT AGREEMENT) An event described in paragraph (f) occurs in
relation to the Support Agreement dated 10 January 1996 between Case
Corporation and the Guarantor, or that agreement is amended in a
material respect without prior Consent.
12.2 CONSEQUENCES OF EVENT OF DEFAULT
If an Event of Default occurs (whether or not it is continuing) an MTN
Holder may, by notice to the Issuer, declare its MTNs immediately
redeemable. The Issuer or the Paying Agent on its behalf shall immediately
redeem those MTNs by paying the Principal Amount together with accrued
interest or any other amount payable on redemption in accordance with the
relevant Pricing Supplement.
13. TIME LIMIT FOR CLAIMS
A claim against the Issuer for a payment due to be made under this Deed is
void if made more than 5 years after that payment became due.
14. INTEREST ON OVERDUE AMOUNTS
14.1 ACCRUAL
Interest accrues on each unpaid amount which is due and payable by the
Issuer under or in respect of this Deed (including interest under this
clause):
(a) on a daily basis up to the date of actual payment from (and
including) the due date;
(b) both before and after judgment (as a separate and independent
obligation); and
(c) at the rate specified for this purpose in the relevant Pricing
Supplement.
14.2 PAYMENT
The Issuer shall pay interest accrued under this clause on demand and on
the last Business Day of each calendar quarter.
15. AMENDMENTS
The Registry Services and Paying Agency Agreement and this Deed (other than
this clause 15) may be amended at any time if the amendment is:
(a) to correct a manifest error or ambiguity;
(b) with prior Consent; or
(c) necessary or desirable in the opinion of the Issuer and the Programme
Manager and neither prejudicial nor likely to be prejudicial to the
interests of MTN Holders as a whole.
This does not limit annexure B or the effect of any Pricing Supplement in
relation to MTNs of the Tranche to which it applies.
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16. WAIVERS, REMEDIES CUMULATIVE
(a) No failure to exercise or delay in exercising any right, power or
remedy under this Deed shall operate as a waiver, nor shall any single
or partial exercise of any right, power or remedy preclude any other
or further exercise of that or any other right, power or remedy.
(b) The rights, powers and remedies provided under this Deed are
cumulative and not exclusive of any rights, powers or remedies
provided by law.
17. NOTICES
17.1 NOTICES TO THE ISSUER, REGISTRAR OR PAYING AGENT
All notices, requests, demands, consents, approvals, agreements or other
communications (NOTICES) under this Deed to the Issuer or the Paying Agent:
(a) must be in writing;
(b) must be addressed:
(i) if to the Issuer:
Address: Case Credit Australia Pty Ltd
31-67 Kurrajong Avenue
ST MARYS NSW 2760
Facsimile No: 9623 2936
Attention: Director;
with a copy to:
--------------
Address: Case Credit Corporation
233 Lake Avenue
Racine, Illinois
U.S.A. 53403
Attention: Treasurer
Facsimile: 1 414 636 6466
(ii) if to the Registrar:
Address: Corporate Registry Services Pty Limited
Level 2
321 Kent Street
SYDNEY NSW 2000
Facsimile No: 9262 2574
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Attention: Fixed Interest Manager;
(iii) if to the Paying Agent:
Address: Corporate Registry Services Pty Limited
Level 2
321 Kent Street
SYDNEY NSW 2000
Facsimile No: 9262 2574
Attention: Fixed Interest Manager,
or any other address or facsimile number which the addressee may have
notified the sender; and
(c) will be taken to be given or made when delivered, received or left at
that address.
Failure to give a copy of a notice to the Guarantor does not affect
the validity of any notice given to the Issuer.
17.2 NOTICES TO THE MTN HOLDERS
All notices to MTN Holders must be:
(a) published in THE AUSTRALIAN FINANCIAL REVIEW (or another English
language newspaper in general circulation in Australia). Any notice so
published will be taken to be given or made on the date the notice is
first so published; or
(b) delivered by prepaid post or courier to the address of the MTN Holder
specified in the Register, or in the case of an MTN which is
registered in the name of 2 or more people, to the person whose name
appears first in the Register. Any notice so delivered will be taken
to be given or made 2 Business Days after posting or, if delivered by
courier, when left at that address.
18. GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS
18.1 GOVERNING LAW AND JURISDICTION
This Deed is governed by the laws of New South Wales. The Issuer and each
MTN Holder irrevocably and unconditionally submits to the non-exclusive
jurisdiction of the courts exercising jurisdiction there. The Issuer and
each MTN Holder waives any right it has to object to an action being
brought in those courts, to claim that the action has been brought in an
inconvenient forum, or to claim those courts do not have jurisdiction.
18.2 SERVICE OF PROCESS
Without preventing any other mode of service, any document in an action
(including any writ of summons or other originating process or any third or
other party notice) may be served on the Issuer by being delivered to or
left for the Issuer at its address for service of notices under clause 17.
19. CALCULATIONS
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All calculations to be made under this Deed or any Conditions will be made
by the Paying Agent, unless otherwise specified in the applicable Pricing
Supplement. Those calculations will bind the Issuer and the MTN Holders
unless proven wrong.
EXECUTED as a deed poll in Canberra.
Each attorney executing this Deed states that the attorney has no notice of the
revocation or suspension of the power of attorney appointing that attorney.
THE ISSUER
SIGNED SEALED and DELIVERED )
on behalf of )
CASE CREDIT AUSTRALIA PTY )
LIMITED by its attorney )
in the presence of: ) /s/J Grant (sgd)
--------------------
Signature
/s/K Downs (sgd) JAMES GRANT
- -------------------- ------------------
Witness Print name
KAREN DOWNS
- ------------------
Print name
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ANNEXURE A
PRICING SUPPLEMENT
1. IDENTIFICATION
(a) Issuer: Case Credit Australia Pty Limited (ACN 069 132 396)
(b) Guarantor: Case Credit Corporation
(c) Programme Manager: National Australia Bank Limited
(d) Type of MTN:
(e) Series Number:
(f) Tranche Number:
(g) Aggregate Principal Amount of Tranche:
(h) Issue Date:
(i) Denominations:
(j) Settlement: Austraclear/other (specify)
(k) Issue Price:
2. INTEREST
(a) If interest bearing:
(i) Interest Rate
(if Fixed Rate MTN): [*] per cent per annum
(ii) Floating Rate Basis
(if Floating Rate MTN): BBSW/other (specify)
(iii) Interest Accrual Date: day/month/year
(if different from Issue Date)
(iv) Interest Payment Dates:
(v) Business Day Convention: Following
Modified Following/Modified
Preceding
Other (specify)
(vi) Day Count Fraction: Actual/365 or Actual/Actual; Actual/365
(Fixed)
(b) Default interest rate:
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3. OTHER INTEREST DETAILS
(insert details)
4. PRINCIPAL
(a) Maturity Date: day/month/year
(b) Other Redemption Dates: day/month/year
(if any)
(c) Redemption Amounts: (If more than one specify the amount
for each Redemption Date)
5. SPECIAL CONDITIONS OR TERMS
(insert details)
6. ADDITIONS, VARIATIONS OR MODIFICATIONS TO TERMS AND CONDITIONS
(insert details)
_______________________________________
Signed for and on behalf of
CASE CREDIT AUSTRALIA PTY LIMITED
by its Authorised Officer
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ANNEXURE B
PROVISIONS FOR MEETINGS OF MTN HOLDERS
1. INTERPRETATION
In addition to the application of clause 1 of the Deed, in this annexure
the following applies.
(a) The following definitions apply unless the contrary intention appears.
BLOCK VOTING INSTRUCTION means a certificate issued by the Registrar
and dated, in which:
(i) the Registrar certifies that MTNs of a specified Tranche (not
being MTNs in respect of which a Voting Certificate is
outstanding in relation to the meeting specified in the
certificate or any adjournment) are registered in the Register in
the names of specified MTN Holders;
(ii) the Registrar certifies that each of the specified MTN Holders or
its duly authorised agent has instructed the Registrar that:
(A) the votes of that MTN Holder should be cast in a
particular way in relation to each resolution to be put to
the meeting or any adjournment; and
(B) no such instruction is revocable or subject to amendment
in the period from 48 hours before the meeting until the
close of the meeting or, in the case of an adjournment,
from 48 hours before the adjournment until the close of
the adjournment;
(iii) the total number and Tranche number of the MTNs are listed
distinguishing, for each resolution, between those for which
instructions have been duly given to vote in favour of the
resolution and those for which instructions have been duly given
to vote against the resolution; and
(iv) the Registrar authorises and instructs a specified person
(PROXY) to cast the vote attributable to the MTNs so listed in
accordance with the instructions referred to in (ii) and (iii)
above.
EXTRAORDINARY RESOLUTION means:
(i) a resolution adopted at a meeting of MTN Holders held in
accordance with the procedures contained in this annexure by not
less than 75% of the votes cast in respect of that resolution; or
(ii) a resolution made in writing in accordance with paragraph 19(b)
of this annexure.
ORDINARY RESOLUTION means:
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(i) a resolution adopted at a meeting of MTN Holders held in
accordance with the procedures contained in this annexure by more
than 50% of the votes cast in respect of that resolution; or
(ii) a resolution made in writing in accordance with paragraph 19(a)
of this annexure.
VOTING CERTIFICATE means a certificate issued by the Registrar and
dated, in which the Registrar certifies that:
(i) on the date of the certificate MTNs of any Tranche (not being
MTNs in respect of which a Block Voting Instruction is
outstanding in relation to the meeting specified in the Voting
Certificate or any adjournment) are registered in the Register;
and
(ii) the bearer of the certificate is entitled to attend and vote at
that meeting or any adjournment in respect of the MTNs specified
in the certificate.
(b) References to MEETING include, if there is only one MTN Holder or one
holder of an MTN of a particular Series, the attendance (as permitted
by this annexure) of that person on the day and at the place and time
specified in accordance with this annexure.
2. APPOINTMENT OF PROXY
(a) Subject to paragraph 15, an MTN Holder may by a notice in writing in
the form for the time being available from the specified office of the
Registrar (FORM OF PROXY) signed by the MTN Holder or, in the case of
a corporation, executed under its common seal or signed on its behalf
by its duly appointed attorney or a duly authorised officer of the
corporation, appoint any person (also called a PROXY) to attend and
act on that person's behalf in connection with any meeting or proposed
meeting of MTN Holders.
(b) Subject to paragraph 15, the Registrar may, at the request of MTN
Holders of all the MTNs in a Tranche, appoint a proxy for those MTN
Holders by issuing a Block Voting Instruction.
(c) A proxy (including under a Block Voting Instruction) may but need not
be an MTN Holder.
3. VALIDITY AND EFFECT OF VOTING CERTIFICATE, APPOINTMENT OF PROXY
(a) Voting Certificates, Block Voting Instructions and forms of proxy must
be valid only for so long as the relevant MTNs are duly registered in
the name of the MTN Holder certified in that document or, in the case
of a form of proxy, in the name of the appointor.
(b) Despite any other provision of this annexure, during the validity of a
Voting Certificate, Block Voting Instruction or form of proxy, the
bearer or proxy (as applicable) shall be treated as the MTN Holder for
the purposes of any meeting of MTN Holders.
4. CONVENING MEETINGS
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A meeting of MTN Holders:
(a) may be convened at any time by the Issuer; and
(b) must be promptly convened by the Issuer:
(i) if requested to do so by the Programme Manager; or
(ii) if requested to do so by MTN Holders holding in total at least
10% of the Principal Amount of all MTNs.
5. NOTICE OF MEETINGS
(a) Unless otherwise agreed in writing by each MTN Holder, at least 21
days' notice (exclusive of the day on which the notice is given and of
the day on which the meeting is held) specifying the day, time and
place of meeting must be given to MTN Holders in the manner provided
in clause 17 of the Deed. A copy of the notice must be given to the
Registrar.
(b) The notice must specify the terms of the resolutions to be proposed
and must include statements to the effect that Voting Certificates may
be obtained and proxies may be appointed until 48 hours before the
time fixed for the meeting but not after that time. The accidental
omission to give notice to, or the non-receipt of notice by, any MTN
Holder does not invalidate the proceedings at any meeting.
6. CHAIRMAN
A person (who may, but need not, be the Programme Manager or an MTN Holder)
nominated in writing by the Issuer must take the chair at every meeting. If
no such nomination is made, or if the person nominated is not present
within 15 minutes after the time appointed for the holding of the meeting
or is unable or unwilling to chair the meeting, the person or persons
present in person holding MTNs or Voting Certificates or being proxies must
choose one of their number to be chairman.
7. QUORUM
At any such meeting any one or more persons present in person holding MTNs
or Voting Certificates or being proxies representing in total a clear
majority in Principal Amount of MTNs form a quorum for the transaction of
business. No business (other than the choosing of a chairman) may be
transacted at any meeting unless the requisite quorum is present at the
commencement of business.
8. NO QUORUM PRESENT
(a) If within half an hour after the time appointed for a meeting a quorum
is not present the meeting will, if convened on the requisition of MTN
Holders, be dissolved. In any other case it will stand adjourned for
such period, not being less than 14 days nor more than 42 days, and to
such time and place, as the chairman appoints.
(b) At the adjourned meeting the quorum is one or more persons present in
person holding MTNs or Voting Certificates or being proxies and
holding or representing in total at least 25% in Principal Amount of
MTNs. If within half an hour after the time appointed
<PAGE>
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for the adjourned meeting that quorum is not present the meeting will
again stand adjourned for such period, not being less than 7 days nor
more than 21 days, and to such time and place, as the chairman
appoints. At the further adjourned meeting the quorum is one or more
persons present in person holding MTNs or Voting Certificates or being
proxies.
9. ADJOURNMENT
The chairman may with the consent of (and must if directed by) any meeting
adjourn the meeting from time to time and from place to place but no
business may be transacted at any adjourned meeting except business which
might validly have been transacted at the meeting from which the
adjournment took place.
10. NOTICE OF ADJOURNMENT
Unless otherwise agreed in writing by each MTN Holder at least 10 days'
notice of any meeting adjourned because of lack of a quorum must be given
in the same manner as of an original meeting and such notice must state the
quorum required at such adjourned meeting. Otherwise, it is not necessary
to give any notice of an adjourned meeting.
11. PERSONS ENTITLED TO BE PRESENT
The Paying Agent, the Programme Manager, the Registrar and the Issuer
(through their respective representatives) and their respective financial
and legal advisers are entitled to attend and speak at any meeting of MTN
Holders. Otherwise, no person may attend or vote at any meeting of MTN
Holders or join with others in requesting the convening of such a meeting
unless that person is the holder of an MTN or of a Voting Certificate, or
is a proxy.
12. CASTING VOTE
In the case of equality of votes the chairman has, both on a show of hands
and on a poll, a casting vote in addition to the vote or votes (if any) to
which the chairman may be entitled as an MTN Holder, a proxy or the holder
of a Voting Certificate.
13. DELETED
14. DELETED
15. NOTICE OF PROXY
(a) Each Block Voting Instruction and each form of proxy, together (if so
required by the Issuer) with proof satisfactory to the Issuer of its
due execution, must be deposited at the specified office in Australia
of the Registrar not less than 48 hours before the time appointed for
holding the meeting. Failing that the Block Voting Instruction or form
of proxy may not be treated as valid unless the chairman of the
meeting decides otherwise before the meeting proceeds to business.
(b) A certified copy of each Block Voting Instruction or form of proxy and
satisfactory proof of due execution must, if required by the Issuer,
be produced by the proxy at the meeting. The Issuer is not obliged to
investigate or be concerned with the validity of, or the authority of
the proxy named in, any Block Voting Instruction or form of proxy.
<PAGE>
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(b) Subject to paragraph 16, a Block Voting Instruction or a form of proxy
for a meeting, if expressed to be so, will be valid for any
adjournment of the meeting.
16. REVOCATION OR AMENDMENT OF BLOCK VOTING INSTRUCTION OR FORM OF PROXY
Any vote given in accordance with the terms of a Block Voting Instruction
or form of proxy will be valid despite the previous revocation or amendment
of the Block Voting Instruction or form of proxy or of any instructions
under which the Block Voting Instruction was executed, unless notice in
writing of that revocation or amendment is received at the specified office
of the Registrar at least 48 hours before the commencement of the meeting
or adjournment.
17. MTN HOLDER MAY VOTE IN PERSON OR BY PROXY ETC.
The MTN Holder or, in the case of joint holders, the person whose name
first appears on the Register as one of the holders, is entitled to vote in
respect of the MTN either in person or by proxy or by representative.
18. MANNERS OF VOTING AND VOTE COUNT
(a) Every question submitted to a meeting will be decided by a poll.
(b) Subject to paragraph 12, at a meeting convened for the purpose of
considering a resolution every MTN Holder or bearer of a Voting
Certificate who is present has one vote in respect of each dollar of
Principal Amount of MTNs which that person holds or is represented by
the Voting Certificate or in respect of which that person is a proxy.
(c) Without affecting the obligations of the proxies named in any Block
Voting Instruction or form of proxy, any person entitled to more than
one vote need not use all votes or cast all the votes to which that
person is entitled in the same way.
19. WRITTEN RESOLUTIONS
A resolution of MTN Holders may be passed and adopted without any meeting
being required, by an instrument in writing signed within 1 month after the
date (the RELEVANT DATE) stated in the copies of the instrument sent for
that purpose to MTN Holders:
(a) in the case of an Ordinary Resolution, by MTN Holders holding more
than 50% in Principal Amount of MTNs at the Relevant Date; or
(b) in the case of an Extraordinary Resolution, by MTN Holders holding at
least 75% in Principal Amount of MTNs at the Relevant Date.
A resolution in writing signed by MTN Holders may be contained in one
document or in several documents in like form each signed by one or more
MTN Holders. Any such instrument is effective on presentation to the
Registrar for entry in the records referred to in paragraph 22.
20. POWERS EXERCISABLE BY EXTRAORDINARY RESOLUTION OR WITH CONSENT OF MTN
HOLDERS OF SAME SERIES
The MTN Holders of MTNs of the same Series have, subject to the provisions
contained in the applicable Conditions, in addition to the powers set out
above, but without affecting any powers conferred on other persons by this
annexure:
<PAGE>
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(a) the following powers exercisable by or with Consent of those MTN
Holders:
(i) to sanction any proposal by the Issuer for any modification,
abrogation, variation or compromise of, or arrangement in
respect of, the rights of those MTN Holders against the Issuer
whether such rights arise under those MTNs or otherwise;
(ii) to sanction the exchange or substitution for those MTNs of, or
the conversion of those MTNs into, other obligations or
securities of the Issuer or any other body corporate formed or
to be formed;
(iii) to assent to any modification of the applicable Conditions
which is proposed by the Issuer;
(iv) to waive or authorise any breach or proposed breach by the
Issuer of its obligations under the applicable Conditions;
(v) to give any authority, direction or sanction which under the
applicable Conditions is required to be given by Extraordinary
Resolution; and
(b) the following powers exercisable by Extraordinary Resolution of those
MTN Holders:
(i) to authorise any person to concur in and execute and do all
such documents, acts and things as may be necessary to carry
out and give effect to any Extraordinary Resolution;
(ii) to appoint any persons (whether MTN Holders or not) as a
committee or committees to represent the interests of the MTN
Holders of MTNs of that Series and to confer upon that
committee or committees any powers or discretions which the MTN
Holders could themselves exercise by Extraordinary Resolution.
For this purpose the provisions of this annexure apply with the necessary
modifications as though references in those provisions to MTNs and MTN
Holders are references to MTNs of the Series in question and to the MTN
Holders of those MTNs respectively.
21. RESOLUTIONS BINDING
A resolution, including an Extraordinary Resolution, passed at a meeting of
MTN Holders duly convened and held (or passed by those MTN Holders in
writing) in accordance with this annexure is binding on all MTN Holders,
whether present or not at the meeting (or having signed or not the written
resolution), and each MTN Holder is bound to give effect to it accordingly.
The passing of any such resolution is conclusive evidence that the
circumstances of such resolution justify its passing.
22. MINUTES
(a) The Registrar shall cause minutes of all proceedings at every meeting
of MTN Holders (or resolutions of MTN Holders otherwise passed in
accordance with this annexure) to be made and duly entered, within 1
month after the relevant meeting is held (or resolution otherwise
passed), in books provided for that purpose by the Issuer.
<PAGE>
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(b) Any such minutes, if purporting to be signed by the chairman of the
meeting at which such proceedings took place or by the chairman of the
next succeeding meeting (or, where a resolution is passed otherwise
than at a meeting, if purporting to be signed by a director or
secretary of the Registrar or the Issuer), are conclusive evidence of
the matters contained in them.
(c) Until the contrary is proved, where minutes have been made, entered
and signed in that manner for a meeting or a resolution passed
otherwise than at a meeting:
(i) the meeting shall be treated as having been duly convened and
held, and all resolutions passed and other proceedings transacted
at that meeting shall be treated as having been duly passed and
transacted; and
(ii) the resolution shall be treated as having been duly passed.
<PAGE>
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ANNEXURE C
TRANSFER AND ACCEPTANCE FORM
Case Credit Australia Pty Limited
ACN 069 132 396
To: The Registrar
Relating to the issue by Case Credit Australia Pty Limited (the ISSUER) of MTNs,
constituted by and issued under the Deed Poll dated [*] 1997 given for the
benefit of MTN Holders from time to time.
TRANSFEROR (SELLER):............................................................
Address:........................................................................
........................................................................
hereby applies to transfer to:
TRANSFEREE (PURCHASER):.........................................................
Address:........................................................................
........................................................................
the following MTN(s):
Type: ..................... (Floating/Fixed/Special Conditions)
Principal Amount:...............................................................
Redemption Date:................................................................
Interest Rate:..................................................................
Special Conditions (if applicable):.............................................
and all its property and interest in and rights to the same and to the interest
accrued thereon for the sum of:
Settlement Amount (in words):...................................................
$..................
TRANSFEROR (SELLER):............................................................
Signature................................. Date:..../..../....
<PAGE>
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TRANSFEREE (PURCHASER):.........................................................
Signature:.............................. Date:..../..../..../
TRANSFEREE'S PAYMENT INSTRUCTIONS
Payment of interest and principal should be made (delete (a) or (b) as
appropriate):
(a) by Australian dollar cheque mailed to the address of the Transferee
specified above; or
(b) by telegraphic transfer to the following bank account.
Name of Account.................................................................
Name of Financial Institution...................................................
Branch:.........................................................................
Account No:.....................................................................
Tax File Number.................................................................
I,................................................ a director/secretary of the
Transferee, certify that the persons whose names are set out below hold the
offices set out opposite their respective names, that the signatures appearing
opposite their respective names are the true and correct signature of each
person, and that such persons are, until otherwise notified, authorised to sign
this form and any subsequent Transfer and Acceptance Form relating to any MTN
held by the Transferee.
Director/Secretary of the Transferee:...........................................
Name:.................Office:....................Signature:.....................
Name:.................Office:....................Signature:.....................
NOTES
o The Transferor and the Transferee acknowledge that transfer of the MTN(s)
specified in this Transfer and Acceptance Form shall only take effect on
the entry of the Transferee's name in the Register as the registered owner
of such MTN(s).
o The Transferee agrees to accept the MTN(s) specified in this Transfer and
Acceptance Form subject to the terms and conditions appearing in the
Register in relation to the MTN(s).
o Trustees must sign personally in accordance with relevant authority. The
Application must be completed in the name of the trustee and not in the
name of the trust.
o Where this form is executed by a corporation, it must be executed either
under common seal or under power of attorney (in which case a certified
copy of any such power of attorney must be lodged with this Transfer and
Acceptance Form).
o The Register will be closed for the purpose of determining entitlements to
interest and principal (if applicable) at 5pm (Sydney time) on the seventh
day preceding the relevant date for payment of interest and of principal
(if applicable).
REGISTRAR'S MARKING
<PAGE>
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The Registrar certifies solely for the benefit of the Transferee that the
Transferor is inscribed in the Register as the holder of the MTN(s) specified in
this Transfer and Acceptance Form. The Registrar will not register any transfer
of such MTN(s) other than pursuant to this Transfer and Acceptance Form
before...../...../.....(the EXPIRY DATE). This certification is made by the
Registrar in its own right (and not as agent for the Issuer) and is not binding
on the Issuer. This certification expires and will be of no further effect upon
whichever is the earlier of:
(a) registration of this Transfer and Acceptance Form; or
(b) the Expiry Date.
Signature Date:...../...../.....
(Name of Signatory:............................................................)
For the Registrar
<PAGE>
CONFORMED COPY
NEW SOUTH WALES
STAMP DUTY PAID $2
CASE CREDIT AUSTRALIA PTY LIMITED
(Issuer)
_______________________________________
A$ DOMESTIC MTN PROGRAMME
DEED POLL
CONFORMED COPY
_______________________________________
(Guaranteed by Case Credit Corporation)
<PAGE>
- --------------------------------------------------------------------------------
T A B L E O F C O N T E N T S
- --------------------------------------------------------------------------------
<TABLE>
<S> <C>
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 8
2. THE MTNS 9
2.1 Creation of MTNs 9
2.2 Constitution and title 9
2.3 Types 9
2.4 Denomination 9
2.5 Status 10
2.6 Issuer to inform Registrar and Paying Agent 10
3. RIGHTS AND OBLIGATIONS OF MTN HOLDERS 10
3.1 Rights of MTN Holders 10
3.2 Deed poll 10
3.3 Enforcement 10
3.4 MTN Holders bound 11
3.5 Lodgement with Registrar 11
3.6 Incorporation of annexures and Conditions 11
3.7 Paying Agent and Programme Manager 11
4. REGISTER 11
4.1 Establish and maintain 11
4.2 Multiple MTN Holders 12
4.3 Register is paramount 12
4.4 MTN Holder change of name or address 12
4.5 Certified extracts from Register available 13
5. TRANSFERS 13
5.1 MTNs transferable 13
5.2 Method of transfer 13
5.3 Transfer and Acceptance Forms 13
5.4 Effective date of transfers 13
5.5 No fee 13
5.6 Closing of Register 14
5.7 Marking of transfer 14
5.8 Transfer on death, bankruptcy or liquidation of MTN Holder 14
5.9 Destruction 14
5.10 Deceased people 14
6. MTNs LODGED WITH AUSTRACLEAR 14
7. INTEREST ON MTNs 15
</TABLE>
<PAGE>
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7.1 Application 15
7.2 Accrual and payment 15
7.3 Notification of Interest Rate and Interest Amount 15
8. REDEMPTION AND PURCHASE OF MTNs 15
8.1 Redemption 15
8.2 Purchase 15
8.3 Cancellation 15
9. MANNER OF PAYMENTS 16
9.1 Payments to MTN Holders 16
9.2 When payments taken to have been made 16
9.3 Good discharge 16
9.4 Business Days 16
9.5 Paying Agent 17
10. TAXATION 17
10.1 Payments made free and clear 17
10.2 Interest withholding tax 17
10.3 Tax file number 17
11. NEGATIVE PLEDGE 17
12. EVENTS OF DEFAULT 18
12.1 Events of Default 18
12.2 Consequences of Event of Default 20
13. LIMIT FOR CLAIMS 20
14. INTEREST ON OVERDUE AMOUNTS 20
14.1 Accrual 20
14.2 Payment 20
15. AMENDMENTS 20
16. WAIVERS, REMEDIES CUMULATIVE 21
17. NOTICES 21
17.1 Notices to the Issuer, Registrar or Paying Agent 21
17.2 Notices to the MTN Holders 22
18. GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS 22
18.1 Governing law and jurisdiction 22
18.2 Service of process 22
<PAGE>
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19. CALCULATIONS 22
1. Identification 1
2. Interest 1
3. Other interest details 1
4. Principal 2
5. Special conditions or terms 2
6. Additions, variations or modifications to terms and conditions 2
<PAGE>
EXHIBIT 12
CASE CREDIT CORPORATION AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN MILLIONS)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30,
------------------
1997 1996
-------- --------
<S> <C> <C>
Net Income.................................................. $ 62 $ 65
Add:
Interest expense.......................................... 72 53
Amortization of capitalized debt expense.................. 1 2
Portion of rentals representative of interest factor...... -- --
Income tax expense and other taxes on income.............. 29 37
Fixed charges of unconsolidated subsidiaries.............. -- --
Extraordinary loss........................................ -- 3
-------- --------
Earnings as defined..................................... $ 164 $ 160
======== ========
Interest expense............................................ $ 72 $ 53
Amortization of capitalized debt expense.................... 1 2
Portion of rentals representative of interest factor........ -- --
Fixed charges of unconsolidated subsidiaries................ -- --
-------- --------
Fixed charges as defined................................ $ 73 $ 55
======== ========
Ratio of earnings to fixed charges.......................... 2.25x 2.91x
======== ========
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
Company's Form 10Q and is qualified in its entirety by reference to such
financial statements.
</LEGEND>
<MULTIPLIER> 1,000,000
<S> <C> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> SEP-30-1997
<CASH> 45
<SECURITIES> 0
<RECEIVABLES> 1,740
<ALLOWANCES> 30
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 4
<DEPRECIATION> 1
<TOTAL-ASSETS> 1,990
<CURRENT-LIABILITIES> 0
<BONDS> 410
<COMMON> 0
0
0
<OTHER-SE> 318
<TOTAL-LIABILITY-AND-EQUITY> 1,990
<SALES> 0
<TOTAL-REVENUES> 201
<CGS> 0
<TOTAL-COSTS> 37
<OTHER-EXPENSES> 1
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 72
<INCOME-PRETAX> 91
<INCOME-TAX> 29
<INCOME-CONTINUING> 62
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 62
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
<FN>
<F1> THE BALANCE SHEET PRESENTED BY CASE CREDIT CORPORATION IS UNCLASSIFIED.
</FN>
</TABLE>
