<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 17, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CASE CREDIT CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 76-0394710
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
700 STATE STREET
RACINE, WISCONSIN 53404
(414) 636-6011
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
RICHARD S. BRENNAN
GENERAL COUNSEL AND SECRETARY
CASE CORPORATION
700 STATE STREET, RACINE, WISCONSIN 53404
(414) 636-6011
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
ELIZABETH A. RAYMOND GERARD M. MEISTRELL
MAYER, BROWN & PLATT CAHILL GORDON & REINDEL
190 SOUTH LASALLE STREET 80 PINE STREET
CHICAGO, ILLINOIS 60603-3441 NEW YORK, NEW YORK 10005
(312) 782-0600 (212) 701-3000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED MAXIMUM
AMOUNT PROPOSED MAXIMUM AGGREGATE
TITLE OF EACH CLASS OF TO BE OFFERING PRICE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) PER UNIT(2) PRICE(2) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Debt Securities............. $700,000,000(3) 100% $700,000,000(3) $181,819(3)
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</TABLE>
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(1) If any Debt Securities are issued at an original issue discount, such
greater amount as shall result in an aggregate offering price to the
public which shall not exceed the amount set forth under Proposed Maximum
Aggregate Offering Price, or if Debt Securities are issued in a foreign or
composite currency, an equivalent amount of such foreign or composite
currency.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) Of the $700,000,000 of debt securities registered hereby, $100,000,000
aggregate principal amount of such securities was registered pursuant to
Registration No. 33-80775 and are unissued as of the date hereof. A
registration fee of $20,000 was previously paid with respect to such debt
securities and is not included in the amount set forth under Amount of
Registration Fee.
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus filed
as part of this Registration Statement relates to the securities registered
hereby, including the remaining unsold $100,000,000 principal amount of debt
securities previously registered by the Registrant under its Registration
Statement on Form S-3 (File No. 33-80775).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED SEPTEMBER 17, 1997.
PROSPECTUS
$700,000,000
CASE CREDIT CORPORATION
DEBT SECURITIES
-----------
Case Credit Corporation, a Delaware corporation ("Case Credit" or the
"Company"), intends from time to time to issue its unsecured debt securities
(the "Securities") from which the Company will receive up to an aggregate
amount of $700,000,000 in proceeds (or its equivalent in foreign currencies or
currency units). The Securities will be offered for sale in amounts, at prices
and on terms to be determined when an agreement to sell is made or at the time
of sale, as the case may be. The Securities may be sold for U.S. dollars,
foreign denominated currency or European Currency Units ("ECUs"), and principal
of and any interest on the Securities may likewise be payable in U.S. dollars,
foreign denominated currency or ECUs. For each issue of Securities in respect
of which this Prospectus is being delivered (the "Offered Securities") there is
an accompanying Prospectus Supplement (the "Prospectus Supplement") that sets
forth the title, designation, aggregate principal amount, designated currency
or currency units, rate (which may be fixed or variable) or method of
calculation of interest and dates for payment thereof, maturity, priority,
premium, if any, authorized denominations, initial price, any redemption or
prepayment rights at the option of the Company or the holder, any terms for
sinking fund payments, any listing on a securities exchange and the initial
public offering price, the form of the Securities (which may be in registered
or permanent global form) and other special terms of the Offered Securities,
together with the terms of the offering of the Offered Securities and the net
proceeds to the Company from the sale thereof.
The Securities will be sold directly, through agents designated from time to
time, through underwriters or dealers, or through a combination of those
methods of sale. If any agents of the Company or any underwriters are involved
in the sale of the Offered Securities in respect of which this Prospectus is
being delivered, the names of such agents or underwriters and any applicable
commissions and discounts are set forth in the Prospectus Supplement with
respect to such Offered Securities.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
-----------
THE DATE OF THIS PROSPECTUS IS .
<PAGE>
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN OR INCORPORATED BY REFERENCE IN
THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER. NEITHER THIS PROSPECTUS NOR ANY
PROSPECTUS SUPPLEMENT CONSTITUTES AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY ANY SECURITIES OTHER THAN THE REGISTERED SECURITIES TO WHICH IT
RELATES OR AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY SUCH
SECURITIES TO ANY PERSON IN ANY JURISDICTION TO WHOM IT IS UNLAWFUL TO MAKE
SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE
ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY
SINCE THE DATE HEREOF OR THAT THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
AVAILABLE INFORMATION
Case Credit is currently subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Securities
and Exchange Commission (the "Commission"). Although Case Credit may take
action to suspend its obligation to file such reports and other information
with the Commission if any Offered Securities are held of record by fewer than
300 holders at the beginning of any fiscal year beginning January 1, 1998, and
subject to satisfaction of certain other conditions, Case Credit has agreed in
the Indenture not to take any such action so long as any Securities are
outstanding. Such reports and other information filed by the Company can be
inspected and copied at the office of the Commission at Room 1024, Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, as well as at the
Regional Offices of the Commission at Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661-2511, and Seven World Trade
Center, Suite 1300, New York, New York 10048. Copies of such information can
be obtained by mail from the Public Reference Section of the Commission at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. Such information may also be accessed electronically by
means of the Commission's home page on the World Wide Web located at
http://www.sec.gov.
This Prospectus constitutes a part of a registration statement (the
"Registration Statement") filed by the Company with the Commission under the
Securities Act of 1933, as amended (the "Securities Act"). This Prospectus
omits certain of the information contained in the Registration Statement, and
reference is hereby made to the Registration Statement and to the exhibits
thereto for further information with respect to the Company and the
Securities.
The Company is not required, nor does it intend, to provide annual or other
reports to holders of the Securities. However, the Company's Annual Report on
Form 10-K will be available to such holders upon request. See "Documents
Incorporated by Reference."
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed by the Company under the Exchange Act with the
Commission are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996; and
(2) The Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 1997, and June 30, 1997.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of the initial filing of the
Registration Statement with the Commission and prior to effectiveness of the
Registration Statement or after the date of this Prospectus and prior to the
termination of the offering of the Securities offered hereby, shall be deemed
to be incorporated in this Prospectus by reference and to be a part
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hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide, without charge, upon the written or oral request
by any person to whom this Prospectus is delivered, a copy of any or all of
the documents incorporated by reference in this Prospectus, other than
exhibits to such documents (unless such exhibits are specifically incorporated
by reference into such documents). Such requests should be directed to: Kevin
J. Hallagan, Vice President and Secretary, Case Credit Corporation, 700 State
Street, Racine, Wisconsin 53404 (telephone (414) 636-6011).
This Prospectus and the accompanying Prospectus Supplement include forward-
looking statements that involve risks and uncertainties that could cause
actual results to differ materially from those in the forward looking
statements. All statements, other than statements of historical facts,
included or incorporated by reference in this Prospectus and the Prospectus
Supplement that address activities, events or developments that the Company
expects or anticipates will or may occur in the future, including such items
as business strategy and measures to implement strategy, competitive
strengths, goals, expansion and growth of the Company's and its subsidiaries'
business and operations, plans, references to future success as well as other
statements which include words such as "anticipate," "believe," "plan,"
"estimate," "expect" and "intend" and other similar expressions, constitute
forward-looking statements. These statements are based on certain assumptions
and analyses made by the Company in light of its experience and its perception
of historical trends, current conditions and expected future developments as
well as other factors it believes are appropriate in the circumstances.
However, whether actual results and developments will conform with the
Company's expectations and predictions is subject to a number of risks and
uncertainties, including, among others, any special considerations included or
incorporated by reference in this Prospectus and any Prospectus Supplement;
general economic, market or business conditions; conditions in and policies of
the agricultural, construction, housing and credit industries, risks
associated with investments and operations in foreign jurisdictions and any
future international expansion, including those related to economic, political
and regulatory policies of local governments and laws or policies of the
United States and other countries; changes in governmental laws and
regulations affecting lending, borrowing, taxes and other matters impacting
the Company; the potential impacts of increased competition in the markets the
Company operates within; risk factors reported from time to time in the
reports filed by the Company with the Commission and other factors, many of
which are beyond the control of the Company and its subsidiaries.
Consequently, all of the forward-looking statements made in this Prospectus
and any Prospectus Supplement are qualified by these cautionary statements,
and there can be no assurance that the actual results or developments
anticipated by the Company will be realized or, even if substantially
realized, that they will have the expected consequences to or effects on the
Company and its subsidiaries or their business or operations.
THE COMPANY
Case Credit is a wholly owned finance subsidiary of Case Corporation
("Case"). Case Credit and its wholly owned operating subsidiaries, Case Credit
Ltd. (Canada) and Case Credit Australia Pty Ltd, provide and administer
financing for the retail purchase or lease of new and used Case agricultural
and construction equipment and other new and used agricultural and
construction equipment. Case Credit offers various types of retail financing
to end-use customers to facilitate the sale or lease of Case products in the
United States, Canada and Australia. The Company's business principally
involves purchasing retail installment sales contracts from Case dealers. In
addition, the Company facilitates and finances the sale of insurance products
to retail customers, provides financing for Case dealers and rental equipment
yards, and provides other retail financing programs (including, in the United
States, Case Credit's private-label credit card used by customers to purchase
parts and service from Case dealers) for end-use customers in the United
States and Canada. Case Credit also provides
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various financing options to dealers for a variety of purposes, including real
estate acquisitions, construction and remodeling, business acquisitions,
dealer systems, service and maintenance equipment, inventory and working
capital.
The Company's business is highly dependent on the ability of Case and its
dealers to generate sales and leasing activity, the willingness of customers
to enter into financing transactions with the Company and the availability of
funds to the Company to finance such transactions. The ability of Case and its
dealers to sell agricultural and construction equipment and thereby generate
retail receivables is affected by numerous factors, including the general
level of activity in the agricultural and construction industries, the rate of
U.S. agricultural production and demand, weather conditions, commodity prices,
consumer confidence, government subsidies for the agricultural sector,
prevailing levels of construction (especially housing starts), and levels of
total industry capacity and equipment inventory. In addition, the Company's
business is affected by changes in market interest rates, which in turn are
related to general economic conditions, demand for credit, inflation,
governmental policies and other factors.
The Company presently obtains funding for operations primarily from banks,
the issuance of public debt, advances and equity capital from Case, earnings
retained in the business, and the issuance of securities in asset-backed
securitization ("ABS") transactions. Over the last several years, the Company
has sold substantial amounts of retail receivables in ABS transactions that
typically involve the sale of a pool of retail installment sales contracts to
limited-purpose business trusts or similar securitization entities. The
Company remains as servicer to such receivables, for which it is typically
paid a servicing fee.
The Company is also exploring expanding its financing business by providing
retail and dealer financing in new geographic regions and for a broader range
of equipment and by offering new financing products to Case dealers, end-use
customers and to others. In 1997, as its asset portfolio has grown, Case
Credit has shifted its asset-management strategy to retain a larger percentage
of assets on balance sheet, as opposed to selling the substantial portion of
such assets in ABS transactions.
The Company was incorporated in Delaware on January 26, 1993. The principal
executive offices of the Company are located at 700 State Street, Racine,
Wisconsin, 53404, and its telephone number is (414) 636-6011.
CASE CORPORATION
Case is a leading worldwide designer, manufacturer, marketer and distributor
of farm equipment and light- and medium-sized construction equipment. Case's
market position is particularly significant in several product categories,
including loader/backhoes, skid steer loaders, large, high-horsepower farm
tractors and self-propelled combines.
Case also manufactures and distributes replacement parts for various models
of its farm and construction equipment, many of which are proprietary, to
support products it has sold. Case distributes these parts to dealers and
distributors through a network of parts depots throughout the world.
RELATIONSHIP WITH CASE CORPORATION
Case provides the Company with certain operational and financial support
which is integral to the conduct of the Company's business. The following is a
description of the support agreement between the Company and Case. Certain
other operational and financial support provided to the Company by Case is
described in certain of the reports filed by the Company with the Commission
pursuant to the Exchange Act.
The Company and Case have entered into a support agreement (the "Support
Agreement") which provides, among other things, that Case will remain,
directly or indirectly, the sole owner of all of the voting stock of the
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Company, and will make quarterly payments to the Company to the extent
necessary to ensure that the Company's consolidated pre-tax earnings (as
defined) available for fixed charges equal at least 1.10 times its fixed
charges (as defined) in all periods composed of four consecutive fiscal
quarters. The Support Agreement provides that Case is not directly or
indirectly guaranteeing any indebtedness, liability or obligation of the
Company. The Support Agreement may be modified or amended by the parties
thereto or terminated by either party upon 30 days' prior written notice to the
other party, with copies of any such amendment or notice being sent to Moody's
Investors Service, Inc. ("Moody's"), Standard & Poor's Ratings Group ("S&P")
and any other nationally recognized statistical rating organizations then
rating Case Credit debt, if (i) Moody's and S&P confirm in writing that their
ratings on Case Credit debt then rated or capable of being rated by them would
not be downgraded or withdrawn as a result of such modification, amendment or
termination, or (ii) the modification, amendment or notice of termination
provides that the Support Agreement will continue in effect with respect to
debt of Case Credit outstanding on the effective date of the modification,
amendment or termination, or (iii) the holders of at least a majority of the
aggregate unpaid principal amount of all outstanding debt of Case Credit with
an original maturity in excess of 270 days consent in writing, so long as the
holders of debt of Case Credit having an original maturity of 270 days or less
shall continue to have the benefit of the Support Agreement until the maturity
of such debt. For purposes of the Support Agreement, no portion of any debt is
considered to be "outstanding" if such debt is deemed to be discharged and not
outstanding in accordance with the indenture or other governing instrument
defining the rights of the holders of such debt.
The calculation of pre-tax earnings available for fixed charges under the
Support Agreement differs from the calculation of the ratio of earnings to
fixed charges in accordance with the rules and regulations of the Commission.
Under the Support Agreement all cash extraordinary non-recurring items of
income or expense (other than cash debt defeasance costs) are included whereas
under the Commission's rules and regulations such items are excluded.
USE OF PROCEEDS
Except as otherwise set forth in the Prospectus Supplement relating to the
Offered Securities, the net proceeds to be received by the Company from the
sale of the Securities will be used to fund the Company's finance programs
(including, without limitation, retail finance programs offered by Case Credit
to end-use customers and dealer rental equipment finance programs offered by
the Company) and for other corporate purposes, including the repayment of
indebtedness. Pending such use, the net proceeds may be temporarily invested in
short-term instruments.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for Case Credit is set forth below for
the periods indicated.
<TABLE>
<CAPTION>
SIX MONTHS YEAR ENDED DECEMBER 31,
ENDED JUNE 30, ----------------------------------------------------------------
1997 1996 1995 1994 1993 1992
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<S> <C> <C> <C> <C> <C>
2.30x 2.80x 4.34x 2.57x 1.82x 1.62x
</TABLE>
For the computation of the ratio of earnings to fixed charges, "earnings" has
been calculated by adding income (loss) before taxes, cumulative effect of
changes in accounting principles and extraordinary loss, interest expense,
fixed charges of unconsolidated subsidiaries, the portion of rentals
representative of an interest factor and amortization of capitalized debt
expense. Fixed charges consist of interest expense, fixed charges of
unconsolidated subsidiaries, the portion of rentals representative of an
interest factor and amortization of capitalized debt expense.
The calculation of pre-tax earnings available for fixed charges under the
Support Agreement differs from the calculation of the ratio of earnings to
fixed charges in accordance with the rules and regulations of the
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Commission as set forth above. Under the Support Agreement, all cash,
extraordinary non-recurring items of income or expense (other than cash debt
defeasance costs) are included, whereas under the Commission's rules and
regulations, such items are excluded.
DESCRIPTION OF SECURITIES
The Securities are to be issued under an Indenture (the "Indenture"), between
the Company and The Bank of New York, as Trustee (the "Trustee"), a copy of
which is filed as an exhibit to the Registration Statement. The following
summaries of certain provisions of the Indenture do not purport to be complete
and are subject to, and are qualified in their entirety by reference to, all
the provisions of the Indenture, including the definitions therein of certain
terms. Wherever particular Sections or defined terms of the Indenture are
referred to, such Sections or defined terms are incorporated herein by
reference. As used in this section or in any description of the Indenture,
references to "Case Credit" or "the Company" refer to Case Credit Corporation
and not its subsidiaries.
The following sets forth certain general terms and provisions of the
Securities offered hereby. The particular terms of the Securities offered by
any Prospectus Supplement (the "Offered Securities") will be described in the
Prospectus Supplement relating to such Offered Securities (the "Applicable
Prospectus Supplement").
GENERAL
The Indenture does not limit the amount of Securities that may be issued
thereunder and Securities may be issued thereunder from time to time in one or
more series. The Securities will be unsecured obligations of the Company and
will rank equally and ratably with other unsecured obligations of the Company.
Unless otherwise indicated in the Applicable Prospectus Supplement,
principal, premium, if any, and interest on the Securities will be payable, and
the transfer of Securities will be registrable, at the office or agency to be
maintained by the Company in Racine, Wisconsin, and at any other office or
agency maintained by the Company for such purpose. The Securities will be
issued only in fully registered form without coupons and, unless otherwise
indicated in the Applicable Prospectus Supplement, in denominations of $1,000
and integral multiples thereof. No service charge will be made for any
registration of transfer or exchange of the Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge imposed in connection therewith.
The Applicable Prospectus Supplement will describe the following terms of the
Offered Securities: (i) the title of the Offered Securities; (ii) any limit on
the aggregate principal amount of the Offered Securities; (iii) the Person to
whom any interest on the Offered Securities 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; (iv) the date or dates on which the principal of the Offered
Securities is payable; (v) the rate or rates (which may be fixed or variable)
at which the Offered Securities shall bear interest, if any, or the method by
which such rate or rates shall be determined, the date or dates from which any
such interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable and the Regular Record Date for the interest payable
on any Interest Payment Date; (vi) the place or places where the principal of
and any premium and interest on the Offered Securities will be payable; (vii)
the period or periods within which, the price or prices at which and the terms
and conditions upon which the Offered Securities may be redeemed, in whole or
in part, at the option of the Company; (viii) the obligation, if any, of the
Company to redeem, purchase or repay the Offered Securities pursuant to any
sinking fund or analogous provisions or at the option of a Holder thereof and
the period or periods within which, the price or prices at which and the terms
and conditions upon which the Offered Securities will be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation; (ix) if other than
denominations of $1,000 and any integral multiple thereof, the denominations in
which the Offered Securities shall be issuable; (x) the currency, currencies or
currency units in which payment of the principal of and any premium and
interest on any Offered Securities will be payable if other than the currency
of the United States of America; (xi) if the amount of payments of principal of
or any premium or
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interest on any Offered Securities may be determined with reference to an index
or formula, the manner in which such amounts will be determined; (xii) if the
principal of or any premium or interest on any Offered Securities is to be
payable, at the election of the Company or a Holder thereof, in one or more
currencies or currency units other than that or those in which the Offered
Securities are stated to be payable, the currency, currencies or currency units
in which payment of the principal of and any premium and interest on the
Offered Securities as to which such election is made will be payable, and the
periods within which and the terms and conditions upon which such election is
to be made; (xiii) the applicability, if any, of the provisions described under
"Defeasance and Covenant Defeasance;" (xiv) whether the Offered Securities will
be issuable, in whole or in part, in the form of one or more Book-Entry
Securities as described under "Book-Entry Securities," and, in such case, the
depository appointed by the Company with respect to the Offered Securities and
the circumstances under which the Book-Entry Security may be registered for
transfer or exchange or authenticated and delivered in the name of a Person
other than the Depository or its nominee; (xv) if other than the principal
amount thereof, the portion of the principal amount of the Offered Securities
which will be payable upon declaration of acceleration of the Maturity thereof;
and (xvi) any other terms of the Offered Securities.
The Securities may be issued as Original Issue Discount Securities to be
offered and sold at a substantial discount below their stated principal amount.
Federal income tax consequences and other special considerations applicable to
Original Issue Discount Securities and any Securities treated as having been
issued with original issue discount for federal income tax purposes will be
described in the Applicable Prospectus Supplement. "Original Issue Discount
Securities" means any Security which provides for an amount less than the
principal amount thereof to be due and payable upon the declaration of
acceleration of the Maturity thereof upon the occurrence of an Event of Default
and the continuation thereof.
The Indenture does not contain covenants or other provisions designed to
afford holders of the Securities protection in the event of a highly leveraged
transaction, change in credit rating or other similar occurrence. See
"Relationship With Case Corporation" concerning Case's obligation to retain
ownership of all of the voting stock of the Company and Case's obligation to
make support payments to the Company under certain circumstances.
BOOK-ENTRY SECURITIES
Unless otherwise provided in the Prospectus Supplement, the Securities will
be represented by one or more certificates (the "Global Securities"). The
Global Security representing Securities will be deposited with, or on behalf
of, The Depository Trust Company ("DTC"), or other successor depository
appointed by the Company (DTC or such other depository is herein referred to as
the "Depository") and registered in the name of the Depository or its nominee.
Unless otherwise provided in the Prospectus Supplement, Securities will not be
issued in definitive form. If the aggregate principal amount of any issue
exceeds $200 million, one certificate will be issued with respect to each $200
million of principal amount and an additional certificate will be issued with
respect to any remaining principal amount of such issue.
DTC is a limited purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participants ("Participants") deposit with DTC. DTC
also facilitates the settlement among Participants of securities transactions,
such as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Direct Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations. DTC is owned by a number of its
Direct Participants and by the New York Stock Exchange, Inc., the American
Stock Exchange, Inc., and the National Association of Securities Dealers, Inc.
Access to DTC's book-entry system is also available to others, such as
securities brokers and dealers, banks and trust companies that clear through or
maintain a custodial relationship with a Direct
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Participant, either directly or indirectly ("Indirect Participants"). The Rules
applicable to DTC and its Participants are on file with the Commission.
Upon the issuance by the Company of Securities represented by a Global
Security, purchases of Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Securities on
DTC's records. The ownership interest of each actual purchaser of each Security
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Participants acting on behalf of Beneficial Owners. Beneficial Owners will
not receive certificates representing their ownership interests in Securities,
except in the event that use of the book-entry system for the Securities is
discontinued. The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
the Global Security.
So long as the Depository for the Global Security, or its nominee, is the
registered owner of the Global Security, the Depository or its nominee, as the
case may be, will be considered the sole owner or holder of the Securities
represented by such Global Security for all purposes under the Indenture.
Except as provided below, owners of beneficial interests in Securities
represented by the Global Security will not be entitled to have Securities
represented by such Global Security registered in their names, will not receive
or be entitled to receive physical delivery of Securities in definitive form
and will not be considered the owners or holders thereof under the Indenture.
To facilitate subsequent transfers, all Securities deposited by Participants
with DTC are registered in the name of DTC's partnership nominee, Cede & Co.
The deposit of Securities with DTC and their registration in the name of Cede &
Co. effect no change in beneficial ownership. DTC has no knowledge of the
actual Beneficial Owners of the Securities; DTC's records reflect only the
identity of the Direct Participants to whose accounts such Securities are
credited, which may or may not be the Beneficial Owners. The Participants will
remain responsible for keeping account of their holdings on behalf of their
customers. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Neither DTC nor Cede & Co. will consent or vote with respect to Securities.
Under its usual procedures, DTC mails an Omnibus Proxy to the Company as soon
as possible after the record date. The Omnibus Proxy assigns Cede & Co.'s
consenting or voting rights to those Direct Participants to whose accounts the
Securities are credited on the record date (identified in a listing attached to
the Omnibus Proxy).
Payments of principal, of premium, if any, and interest on the Securities
represented by the Global Security registered in the name of DTC or its nominee
will be made by the Company through the Trustee under the Indenture or a paying
agent (the "Paying Agent"), which may also be the Trustee under the Indenture,
to DTC or its nominee, as the case may be, as the registered owner of the
Global Security. Neither the Company, the Trustee, nor the Paying Agent will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests of the Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
The Company has been advised that DTC, upon receipt of any payment of
principal, premium, if any, and interest in respect of a Global Security, will
credit Direct Participant's accounts payable date in accordance with their
respective holdings shown on DTC's record unless DTC has reason to believe that
it will not receive payment on the payable date. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts of customers in
bearer
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form or registered in "street name," and will be the responsibility of such
Participant and not of DTC, the Paying Agent or the Company, subject to any
statutory or regulatory requirements as may be in effect from time to time.
Payment of principal, premium, if any, and interest to DTC is the
responsibility of the Company or the Paying Agent, disbursement of such
payments to Direct Participants shall be the responsibility of DTC, and
disbursement of such payments to the Beneficial Owners shall be the
responsibility of Direct and Indirect Participants.
If the Depository with respect to a Global Security is at any time unwilling
or unable to continue as Depository and a successor Depository is not appointed
by the Company within 90 days, the Company will issue certificated notes in
exchange for the Securities represented by such Global Security.
The information in this section concerning the Depository and the
Depository's book-entry system has been obtained from sources that the Company
believes to be reliable, but the Company takes no responsibility for the
accuracy thereof.
CERTAIN COVENANTS OF THE COMPANY
Limitations on Secured Funded Debt. The Indenture provides that the Company
will not, nor will it permit any Restricted Subsidiary to, incur, issue,
assume, guarantee or create any Secured Funded Debt, without effectively
providing 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) will be secured
equally and ratably with (or prior to) such Secured Funded Debt, so long as
such Secured Funded Debt will 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 Restricted Subsidiaries would not exceed an amount equal to
the sum of (i) $20 million and (ii) 15% of Consolidated Net Tangible Assets.
The limitation on Secured Funded Debt will not apply to, and there will be
excluded from Secured Funded Debt in any computation under such restriction,
Funded Debt secured by: (i) Liens on real or physical property of any
corporation existing at the time such corporation becomes a Subsidiary; (ii)
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; (iii) Liens on real or physical property
thereafter 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; (iv) Liens in favor of the Company or any Restricted
Subsidiary; (v) 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; (vi) Liens incurred or
assumed in connection with the issuance of revenue bonds the interest on which
is exempt from Federal income taxation pursuant to Section 103(b) of the
Internal Revenue Code; (vii) 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; (viii) Liens incurred
(no matter when created) in connection with the Company's or a Restricted
Subsidiary's engaging in leveraged or single-investor lease transactions;
provided, however, that the instrument creating or evidencing any borrowings
secured by such Lien will provide that such borrowings are payable solely out
of the income and proceeds of the property subject to such Lien and are not a
general obligation of the Company or such Restricted Subsidiary; (ix) 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
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of America to secure surety, replevin and appeal bonds to which the Company or
any Restricted Subsidiary is a party or in lieu of such bonds, or pledges or
deposits for similar purposes in the ordinary course of business, or Liens
imposed by law, such as laborers' or other employees', carriers',
warehousemen's, mechanics', materialmen's and vendors' Liens and Liens arising
out of judgments or awards against the Company or any Restricted Subsidiary
with respect to which the Company or such Restricted Subsidiary at the time
shall be prosecuting an appeal or proceedings for review and with respect to
which it shall have secured a stay of execution pending such appeal or
proceedings for review, or Liens for taxes not yet subject to penalties for
nonpayment or the amount or validity of which is being in good faith contested
by appropriate proceedings by the Company or any Restricted Subsidiary, as the
case may be, or minor survey exceptions, minor encumbrances, easements or
reservations of, or rights of others for, rights-of-way, sewers, electric
lines, telegraph and telephone lines and other similar purposes, or zoning or
other restrictions or Liens as to the use of real properties, which Liens,
exceptions, encumbrances, easements, reservations, rights and restrictions do
not, in the opinion of the Company, in the aggregate materially detract from
the value of said properties or materially impair their use in the operation of
the business of the Company and its Restricted Subsidiaries; (x) 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; (xi)
Liens incurred (no matter when created) in connection with a Securitization
Transaction; (xii) 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; (xiii) Liens on deposits
of the Company or a Restricted Security with banks (in the aggregate, not
exceeding $50 million), in accordance with customary banking practice, in
connection with the providing by the Company or a Restricted Subsidiary of
financial accommodations to any Person in the ordinary course of business;
(xiv) Liens outstanding on the date of the Indenture; or (xv) any extension,
renewal, refunding or replacement of the foregoing.
"Consolidated Net Tangible Assets" means, at any date, the total assets
appearing on the most recent consolidated balance sheet of the Company and
Restricted Subsidiaries as at the end of the fiscal quarter of the Company
ending not more than 135 days prior to such date, prepared in accordance with
generally accepted accounting principles, less (i) all current liabilities (due
within one year) as shown on such balance sheet, (ii) applicable reserves,
(iii) 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 (iv)
Intangible Assets and liabilities relating thereto.
"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 (as defined in the Indenture) of the Company or a Restricted
Subsidiary.
"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 of the Company and Funded Debt, if any, incurred as a part of a
Securitization Transaction.
"Intangible Assets" means, at any date, the value (net of any applicable
reserves) as shown on or reflected in the most recent consolidated balance
sheet of the Company and the Restricted Subsidiaries as at the end of the
fiscal quarter of the Company ending not more than 135 days prior to such date,
prepared in accordance with generally accepted accounting principles, of: (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
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and similar items and tangible assets being amortized); and (iv) unamortized
debt discount and expense, less unamortized premium.
"Liens" means pledges, mortgages, security interests and other liens,
including purchase money liens, on any property of the Company or any
Restricted Subsidiary which secure Secured Funded Debt.
"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, monies due
thereunder, security interests in the property and services financed thereby
and any and all other related rights.
"Restricted Subsidiary" means each Subsidiary of the Company other than
Securitization Subsidiaries and Subsidiaries of Securitization Subsidiaries.
"Secured Funded Debt" means Funded Debt of the Company which is secured by
any pledge, mortgage, security interest or other lien on any property (whether
owned on the date of the Indenture or thereafter created) of the Company or of
a Restricted Subsidiary.
"Securitization Subsidiary" means a Subsidiary of the Company (i) which is
formed for the purpose of effecting one or more Securitization Transactions and
engaging in other activities reasonably related thereto and (ii) as to which no
portion of the indebtedness or any other obligations of which (a) is 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 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 of its Subsidiaries,
and any assets related thereto, including, without limitation, all security
interests in the property or services financed thereby, the proceeds of such
Receivables or asset-backed securities and any other assets which are sold or
in respect of which security interests are granted in connection with
securitization transactions involving such assets.
"Subsidiary" means any corporation of which at least a majority of the
outstanding stock, which under ordinary circumstances (not dependent upon the
happening of a contingency) has voting power to elect a majority of the board
of directors of such corporation (or similar management body), is owned
directly or indirectly by the Company or by one or more Subsidiaries of the
Company, or by the Company and one or more Subsidiaries.
EVENTS OF DEFAULT
Any one of the following events will constitute an Event of Default under the
Indenture with respect to Securities of any series: (i) failure to pay any
interest on any Security of that series when due, continued for 30 days; (ii)
failure to pay principal of or any premium on any Security of that series when
due; (iii) failure to deposit any sinking fund or other payment, when due, in
respect of any Security of that series; (iv) failure to perform, or breach of,
any other covenant or warranty of the Company in the Indenture (other than a
covenant included in the Indenture solely for the benefit of a series of
Securities thereunder other than that series) continued for 60 days after
written notice as provided in the Indenture; (v) certain events in bankruptcy,
insolvency or reorganization of the Company; (vi) a default or defaults under
any mortgage, indenture or
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instrument under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or a Restricted
Subsidiary (including the Indenture), whether such Indebtedness exists at the
date of the Indenture or shall thereafter be created, which default or defaults
shall have resulted in such Indebtedness, in an aggregate principal amount
exceeding $60 million, individually or in the aggregate, having been declared
due and payable prior to the date on which it would otherwise have become due
and payable, without such Indebtedness having been discharged, or such
acceleration having been rescinded or annulled, or there having been deposited
in trust a sum of money sufficient to discharge in full such Indebtedness,
within a period of 30 days after there shall have been given, by registered
mail, to the Company by the Trustee or to the Company and the Trustee by the
Holder or Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of such series a written notice specifying such default
and requiring the Company to cause such Indebtedness to be discharged, cause to
be deposited in trust a sum sufficient to discharge in full such Indebtedness
or cause such acceleration to be rescinded or annulled; or (vii) any other
Event of Default provided with respect to Securities of that series.
If any Event of Default with respect to the Securities of any series at the
time Outstanding occurs and is continuing, either the Trustee or the Holders of
at least 25% in aggregate principal amount of the Outstanding Securities of
that series may declare the principal amount (or, if the Securities of that
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms thereof) of all the Securities of that
series to be due and payable immediately. At any time after a declaration of
acceleration with respect to Securities of any series has been made, but before
a judgment or decree based on acceleration has been obtained, the Holders of a
majority in aggregate principal amount of Outstanding Securities of that series
may, under certain circumstances, rescind and annul such acceleration.
Reference is made to the Applicable Prospectus Supplement relating to any
series of Offered Securities that are Original Issue Discount Securities for
the particular provisions relating to acceleration of the Stated Maturity of a
portion of the principal amount of such series of Original Issue Discount
Securities upon the occurrence of an Event of Default and the continuation
thereof.
The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable indemnity. Subject to such provisions for the
indemnification of the Trustee and to certain other conditions, the Holders of
a majority in aggregate principal amount of the Outstanding Securities of any
series will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Securities of that
series.
No Holder of any series of Securities will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default and unless the Holders of at least 25% in principal
amount of the Outstanding Securities of that series shall have made written
request, and offered reasonable indemnity, to the Trustee to institute such
proceeding as trustee, and the Trustee shall not have received from the Holders
of a majority in aggregate principal amount of the Outstanding Securities of
that series a direction inconsistent with such request and shall have failed to
institute such proceeding within 60 days. However, such limitations do not
apply to a suit instituted by a Holder of a Security for enforcement of payment
of the principal of and premium, if any, or interest on such Security on or
after the respective due dates expressed in such Security.
The Company is required to furnish to the Trustee annually a statement as to
the performance by the Company of certain of its obligations under the
Indenture and as to any default in such performance.
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company and
the Trustee with the consent of the Holders of not less than the majority in
aggregate principal amount of the Outstanding Securities
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of each series issued under the Indenture and affected by the modification or
amendment; provided, however, that no such modification or amendment may,
without the consent of the Holders of all Securities affected thereby, (i)
change the Stated Maturity of the principal of, or any installment of principal
of or interest on, any Security; (ii) reduce the principal amount of, or the
premium, if any, or (except as otherwise provided in the Applicable Prospectus
Supplement) interest on, any Security (including, in the case of an Original
Issue Discount Security, the amount payable upon acceleration of the maturity
thereof); (iii) change the place or currency of payment of principal of,
premium, if any, or interest on any Security; (iv) impair the right to
institute suit for the enforcement of any payment on any Security on or after
the Stated Maturity thereof (or in the case of redemption, on or after the
Redemption Date); or (v) reduce the percentage in principal amount of
Outstanding Securities of any series, the consent of whose Holders is required
for modification or amendment of the Indenture or for waiver of compliance with
certain provisions of the Indenture or for waiver of certain defaults.
The Holders of at least a majority in aggregate principal amount of the
Outstanding Securities of any series may, on behalf of all Holders of that
series, waive compliance by the Company with certain restrictive provisions of
the Indenture. The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series may, on behalf of all
Holders of that series, waive any past default under the Indenture, except a
default in the payment of principal, premium or interest and in respect of a
covenant or provision of the Indenture that cannot be modified or amended
without the consent of the Holder of each Outstanding Security of such series
affected thereby.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an
entirety to any Person and may not permit any Person to merge into or
consolidate with the Company or convey, transfer or lease its properties and
assets substantially as an entirety to the Company, unless (i) any successor or
purchaser is a corporation, partnership, or trust organized and validly
existing under the laws of the United States of America, any State or the
District of Columbia, and any such successor or purchaser expressly assumes the
Company's obligations on Outstanding Securities under a supplemental indenture,
(ii) immediately after giving effect to the transaction, no Event of Default,
and no event which, after notice or lapse of time or both, would become an
Event of Default, shall have occurred and be continuing, (iii) if properties or
assets of the Company become subject to a mortgage not permitted by the
Indenture, the Company or such successor Person, as the case may be, takes such
steps as shall be necessary effectively to secure the Securities equally and
ratably with (or prior to) all indebtedness secured thereby, and (iv) the
Company has delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel stating compliance with these provisions.
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides that, if such provision is made applicable to the
Securities of any series pursuant to Section 3.1 of the Indenture, the Company,
at the Company's option, (i) will be discharged from any and all obligations in
respect of the Securities of any series (except for certain obligations to
register the transfer of or exchange of Securities of such series, replace
stolen, lost or mutilated Securities of such series, maintain paying agencies
and hold moneys for payment in trust) or (ii) need not comply with certain
restrictive covenants of the Indenture, including those described under
"Certain Covenants of the Company," and the occurrence of an event described in
clause (iv) under "Events of Default" shall no longer be an Event of Default,
in each case, if the Company deposits, in trust, with the Trustee money or U.S.
Government Obligations, which through the payment of interest thereon and
principal thereof in accordance with their terms, will provide money in an
amount sufficient to pay all the principal of, premium if any, and interest on
the Securities of such series on the dates such payments are due (which may
include one or more redemption dates designated by the Company) in accordance
with the terms of the Securities of such series. Such a trust may be
established only if, among other things, (a) no Event of Default or event
which, with the giving of notice or lapse of time, or both, would become an
Event of Default under the Indenture shall have occurred and be continuing on
the date of such deposit or on
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such later date specified in the Indenture in the case of certain events in
bankruptcy, insolvency or reorganization of the Company, (b) such deposit will
not cause the Trustee to have any conflicting interest with respect to other
securities of the Company, (c) such defeasance will not result in a breach or
violation of, or constitute a default under, the Indenture or any other
agreement or instrument to which the Company is a party or by which it is bound
and (d) the Company shall have delivered an Opinion of Counsel to the effect
that the Holders will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit or defeasance and will be subject to
Federal income tax in the same manner as if such defeasance had not occurred,
which Opinion of Counsel, in the case of clause (i) above, must refer to and be
based upon a published ruling of the Internal Revenue Service, a private ruling
of the Internal Revenue Service addressed to the Company, or otherwise a change
in applicable federal income tax law occurring after the date of the Indenture.
In the event the Company omits to comply with its remaining obligations under
the Indenture after a defeasance of the Indenture with respect to the
Securities of any series as described under clause (ii) above and the
Securities of such series are declared due and payable because of the
occurrence of any Event of Default, the amount of money and U.S. Government
Obligations on deposit with the Trustee may be insufficient to pay amounts due
on the Securities of such series at the time of the acceleration resulting from
such Event of Default. However, the Company will remain liable in respect of
such payments.
CONCERNING THE TRUSTEE
The Bank of New York is Trustee under the Indenture. The Trustee performs
services for the Company and Case in the ordinary course of business and is a
lender bank under certain of the Company's credit facilities and Case's credit
facilities. The Trustee is also trustee under an indenture, dated as of
February 1, 1996, between the Company, Case and the Trustee, as trustee. The
Company has issued $200,000,000 aggregate principal amount of its 6 1/8% Notes
due February 15, 2003, under such indenture.
PLAN OF DISTRIBUTION
The Company may sell the Securities being offered hereby through agents,
through underwriters and through dealers, and Securities may be sold to other
purchasers directly or through agents or through a combination of any such
methods of sale.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
Offers to purchase Securities may be solicited by agents designated by the
Company from time to time. Any such agent, who may be deemed to be an
underwriter, as that term is defined in the Securities Act, involved in the
offer or sale of the Securities in respect of which this Prospectus is
delivered will be named, and any commissions payable by the Company to such
agent set forth, in the Applicable Prospectus Supplement. Agents may be
entitled under agreements that may be entered into with the Company to
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act, and such agents or their affiliates may
be customers of, extend credit to or engage in transactions with or perform
services for the Company and/or Case in the ordinary course of business. Unless
otherwise indicated in the Prospectus Supplement, any such agent will be acting
on a reasonable efforts basis for the period of its appointment.
If any underwriters are utilized in the sale, the Company will enter into an
underwriting agreement with such underwriters at the time of sale to them and
the names of the underwriters and the terms of the transaction will be set
forth in the Applicable Prospectus Supplement that will be used by the
underwriters to make resales of the Securities in respect of which this
Prospectus is delivered to the public. The underwriters may be entitled under
the relevant underwriting agreement to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act, and such
underwriters or their affiliates may be customers of, extend credit to or
engage in transactions with or perform services for the Company and/or Case in
the ordinary course of business.
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If dealers are utilized in the sale of the Securities in respect of which
this Prospectus is delivered, the Company will sell such Securities to such
dealers as principal. The dealers may then resell such Securities to the public
at varying prices to be determined by such dealers at the time of resale.
Dealers may be entitled to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act, and such dealers
or their affiliates may be customers of, extend credit to or engage in
transactions with or perform services for the Company and/or Case in the
ordinary course of business.
Unless otherwise indicated in the Applicable Prospectus Supplement,
Securities are not proposed to be listed on a securities exchange, and any
underwriters or dealers will not be obligated to make a market in Securities.
The Company cannot predict the activity or liquidity of any trading in the
Securities.
If so indicated in an Applicable Prospectus Supplement, the Company will
authorize underwriters or agents to solicit offers by certain institutions to
purchase Offered Securities from the Company pursuant to delayed delivery
contracts ("Contracts") providing for payment and delivery on the date or dates
stated in such Prospectus Supplement. Each Contract will be for an amount not
less than, and the aggregate principal amount of Offered Securities sold
pursuant to Contracts shall be not less nor more than, the respective amounts
stated in such Prospectus Supplement. Institutions with whom Contracts, when
authorized, may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and other institutions, but will in all cases be subject to the
approval of the Company. Contracts will not be subject to any conditions except
(i) the purchase by an institution of the Offered Securities covered by its
Contracts shall not at the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which such institution is subject, and
(ii) if the Offered Securities are being sold to underwriters, the Company
shall have sold to such underwriters the total principal amount of the Offered
Securities less the principal amount thereof covered by Contracts. Agents and
underwriters will have no responsibility in respect of the delivery or
performance of Contracts.
LEGAL MATTERS
Unless otherwise indicated in a supplement to this Prospectus, certain legal
matters in connection with the Securities offered hereby will be passed upon
for the Company by Richard S. Brennan, General Counsel and Secretary of Case,
and by Mayer, Brown & Platt, Chicago, Illinois. In addition to his positions at
Case, Mr. Brennan is also a partner at Mayer, Brown & Platt. The Company has
been advised by Mr. Brennan that, at August 31, 1997, he beneficially owned
3,000 shares of common stock of Case and had options to purchase 30,000 shares
of common stock of Case. Unless otherwise indicated in a supplement to this
Prospectus, the legality of the Securities offered hereby will be passed upon
for the underwriters, dealers and agents, if any, by Cahill Gordon & Reindel (a
partnership including a professional corporation), New York, New York.
EXPERTS
The audited financial statements and schedules included or incorporated by
reference in this Prospectus and the Prospectus Supplement and elsewhere in
this Registration Statement have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their reports with respect
thereto, and are included or incorporated by reference herein in reliance upon
the authority of said firm as experts in giving said reports.
15
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses in connection with the
issuance and distribution of the securities registered hereby, other than
underwriting discounts and commissions:
<TABLE>
<S> <C>
SEC registration fee............................................ $201,819
Blue sky fees and expenses...................................... 12,000
Printing and engraving costs.................................... 250,000
Legal fees and expenses......................................... 125,000
Accounting fees and expenses.................................... 125,000
Trustee fees and expenses....................................... 10,000
Miscellaneous................................................... 26,181
--------
Total....................................................... $750,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The By-Laws of the Company include the following provisions:
Article V, Section 16. Indemnification of Directors and Officers. Each
person who is or was a director or officer of the corporation, or who
serves or may have served at the request of the corporation as a director
or officer of another corporation, partnership, joint venture, trust or
other enterprise (including the heirs, executors, administrators or estate
of such person) and who was or is a party or is threatened to be made a
party to any threatened, pending or completed claim, action, suit or
proceeding, whether criminal, civil, administrative or investigative,
including appeals, shall be indemnified by the corporation as a matter of
right to the full extent permitted or authorized by the Corporation Law of
the state of incorporation of the corporation, as it may from time to time
be amended, against any expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement, actually and reasonably incurred by
him in his capacity as a director or officer, or arising out of his status
as a director or officer. Each person who is or was an employee or agent of
the corporation, or who serves or may have served at the request of the
corporation as an employee or agent of another corporation, partnership,
joint venture, trust or other enterprise (including the heirs, executors,
administrators or estate of such person) may, at the discretion of the
Board, be indemnified by the corporation to the same extent as provided
herein with respect to directors and officers of the corporation.
The corporation may, but shall not be obligated to, maintain insurance at
its expense, to protect itself and any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such. The corporation may, but shall not be obligated to, pay
expenses incurred in defending a civil or criminal action, suit or
proceeding in advance of the final disposition of such action, suit or
proceeding.
The indemnification provided by this Section 16 shall not be exclusive of
any other rights to which those seeking indemnification may be entitled as
a matter of law or under any agreement, vote of stockholders or
disinterested directors or otherwise.
Reference is made to Section 6 of the Underwriting Agreement filed as
Exhibit 1(a) hereto for a description of the indemnification arrangements in
connection with any underwritten offering of securities registered hereby.
II-1
<PAGE>
Case has purchased insurance which purports to insure the officers and
directors of Case, and of its subsidiary companies, which includes Case
Credit, against certain liabilities incurred by them in the discharge of their
function as such officers and directors except for liabilities resulting from
their own malfeasance.
ITEM 16. EXHIBITS.
A list of exhibits filed herewith is contained in the index to exhibits
which is incorporated herein by reference.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to section 13 or section
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that
is incorporated by reference in this Registration Statement shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant, pursuant to the provisions described
in Item 15, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission, such indemnification is
against public policy as expressed in the Act and is, therefore,
II-2
<PAGE>
unenforceable. In the event that the claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF RACINE, STATE OF WISCONSIN, ON SEPTEMBER 15, 1997.
THE REGISTRANT ALSO CERTIFIES THAT IT REASONABLY BELIEVES THAT THE SECURITY
RATING REQUIREMENT CONTAINED IN GENERAL INSTRUCTION I.B.2. OF FORM S-3 WILL BE
MET BY THE TIME OF SALE.
Case Credit Corporation
/s/ Kenneth R. Gangl
By: _________________________________
Kenneth R. Gangl
President and Chief Executive
Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Theodore R. French, Kenneth R. Gangl and Robert A. Wegner and each of them,
the true and lawful attorneys-in-fact and agents of the undersigned, with full
power of substitution and resubstitution, for and in the name, place and stead
of the undersigned, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement as well
as any related registration statement (or amendment thereto) filed pursuant to
Rule 462(b) promulgated under the Securities Act of 1933, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done,
as fully to all intents and purposes as the undersigned might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Kenneth R. Gangl President, Chief Executive September 15, 1997
____________________________________ Officer and Director
Kenneth R. Gangl (Principal Executive
Officer)
/s/ Robert A. Wegner Vice President and Chief September 15, 1997
____________________________________ Financial Officer
Robert A. Wegner (Principal Financial
and Accounting Officer)
/s/ Theodore R. French Chairman of the Board and September 15, 1997
____________________________________ Director
Theodore R. French
/s/ Jean-Pierre Rosso Director September 15, 1997
____________________________________
Jean-Pierre Rosso
</TABLE>
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S> <C>
1(a) Form of Underwriting Agreement
1(b) Form of Distribution Agreement(1)
4 Form of Indenture between Case Credit Corporation and The Bank
of New York (including form of security)
5 Opinion of Richard S. Brennan, General Counsel and Secretary
of Case Corporation, as to the legality of the securities
being registered
12 Computation of Ratio of Earnings to Fixed Charges
23(a) Consent of Arthur Andersen LLP, Independent Public Accountants
for Case Credit Corporation (Milwaukee, Wisconsin)
23(b) Consent of Richard S. Brennan, General Counsel and Secretary
of Case Corporation (contained in Exhibit 5)
24 Powers of attorney (contained on the signature page to this
Registration Statement)
25 Form T-1 Statement of eligibility under the Trust Indenture
Act of 1939 of The Bank of New York
</TABLE>
- --------
(1) To be filed as an exhibit to a report on Form 8-K pursuant to Item 601 of
Regulation S-K.
<PAGE>
CASE CREDIT CORPORATION
Debt Securities
UNDERWRITING AGREEMENT
----------------------
October [ ], 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 [ ], 1997 (the "Indenture"), between the Company and The Bank of
New York, as Trustee (the "Trustee"), in one or more series, which series may
vary as to interest rates, maturities, redemption provisions, selling prices and
other terms, with all such terms for any particular series of the Securities
being determined at the time of sale. Particular series of the Securities, will
be sold pursuant to a Terms Agreement referred to in Section 3, for resale in
accordance with terms of offering determined at the time of sale.
The Securities involved in any such offering are hereinafter referred to as
the "Offered Securities". The firm or firms which agree to purchase the Offered
Securities are hereinafter referred to as the "Underwriters" of such Offered
Securities, and the representative or representatives of the Underwriters, if
any, specified in a Terms Agreement referred to in Section 3 are hereinafter
referred to as the "Representatives"; provided, however, that if the Terms
Agreement does not specify any representative of the Underwriters, the term
"Representatives", as used in this Agreement (other than in Sections 2(b), 5(c)
and 6 and the second sentence of Section 3), shall mean the Underwriters.
<PAGE>
2. Representations and Warranties.
The Company, as of the date of each Terms Agreement referred to in
Section 3, represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333-[ ]), including a
prospectus, and a registration statement (No. 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-[ ], 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
-2-
<PAGE>
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 preliminary 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
-3-
<PAGE>
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 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.
-4-
<PAGE>
(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").
(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
-5-
<PAGE>
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.
(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
-6-
<PAGE>
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.
(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
-7-
<PAGE>
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 which the Company or any of the Subsidiaries is re-
-8-
<PAGE>
sponsible 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,
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<PAGE>
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 employees of the Company or any of
the Subsidiaries exists or, to the best knowledge of the Company, is
threatened, that would singly or in the aggregate with all such other labor
disturbances reasonably be expected to have a Material Adverse Effect.
(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 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
account-
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<PAGE>
ing 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
applicable, 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
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<PAGE>
have been calculated in compliance with Item 503(d) of Regulation S-K of
the Commission and the supporting schedules included in the Registration
Statement present fairly the information required to be stated therein.
3. Purchase and Offering of Offered Securities. The obligation of the
Underwriters to purchase the Offered Securities will be evidenced by an
agreement substantially in the form of Annex II attached hereto ("Terms
Agreement") at the time the Company determines to sell the Offered Securities.
The Terms Agreement will incorporate by reference the provisions of this
Agreement, except as otherwise provided therein, and will specify the firm or
firms which will be Underwriters, the names of any Representatives, the
principal amount to be purchased by each Underwriter, the purchase price to be
paid by the Underwriters and the terms of the Offered Securities not already
specified in the Indenture, including, but not limited to, interest rate,
maturity, any redemption provisions and any sinking fund requirements and
whether any of the Offered Securities may be sold to institutional investors
pursuant to Delayed Delivery Contracts (as defined below). The Terms Agreement
will also specify the time and date of delivery and 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
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<PAGE>
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 registered 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:
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<PAGE>
(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 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
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<PAGE>
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 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.
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<PAGE>
(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 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) incurred 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
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<PAGE>
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 Agreement and ending the number of days after the Closing Date specified
under "Blackout" in the Terms Agreement.
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<PAGE>
(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 confirming that they are independent public accountants within the
meaning of the Act and the applicable published Rules and Regulations thereunder
and stating in effect that:
(i) in their opinion the financial statements and any schedules
audited by them and included or incorporated by reference in the
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards
No. 71, Interim Financial Information, on any unaudited financial
statements included or incorporated by reference in the Registration
Statement;
(iii) they have read the unaudited pro forma financial information
included in the Registration Statement and Prospectus, if any;
(iv) on the basis of the review referred to in clause (ii) above and
the reading referred to in clause (iii) above, a reading of the latest
available interim financial statements of the Company, inquir-
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<PAGE>
ies of officials of the Company who have responsibility for financial
and accounting matters and other specified procedures, nothing came to
their attention that caused them to believe that:
(A) the unaudited financial statements, if any, included or
incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the Exchange Act and the related published Rules
and Regulations or any material modifications should be made to
such unaudited financial statements for them to be in conformity
with generally accepted accounting principles;
(B) if any unaudited "capsule" information is contained in
the Prospectus, the unaudited consolidated net revenue, net
income before interest expense and income taxes, net income or
other amounts of the Company constituting such "capsule"
information and described in such letter do not agree with (i) if
available, the corresponding amounts set forth in the unaudited
consolidated financial statements, or if not available, (ii)
amounts in the Company's consolidation schedules derived from
their respective accounting records, or with amounts totaled from
such schedules or were not determined on a basis substantially
consistent with that of the corresponding amounts in the audited
statements of income;
(C) the unaudited pro forma financial information, if any,
included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of
Rule 11-02 of Regulation S-X and that the pro forma adjustments
have not been properly applied to the historical amounts in the
compilation of those statements;
(D) at the date of the latest available balance sheet of the
Company read by such accountants, or at a subsequent specified
date not more than five days prior to the date of the Terms
Agreement, there was any change in the capital stock, any
decrease in stockholders'
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<PAGE>
equity or any increase in short-term indebtedness or long-term
debt of the Company and its consolidated subsidiaries or, at the
date of the latest available balance sheet of the Company read by
such accountants, there was any decrease in consolidated net
assets of the Company, as compared with amounts shown on the
latest balance sheet of the Company included or incorporated by
reference in the Prospectus; or
(E) for the period from the closing date of the latest
income statement of the Company incorporated by reference in the
Prospectus to the closing date of the latest available income
statement of the Company read by such accountants, or for the
period from the latest available income statement of the Company
read by such accountants to a specified date not more than five
days prior to the date of the Terms Agreement, there were any
decreases, as compared with the corresponding period of the
previous year in consolidated total revenue, net income or in the
ratio of earnings to fixed charges of the Company;
except in all cases set forth in clauses (D) and (E) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur; and
(v) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained or incorporated by reference in the Prospectus (in each case
to the extent that such dollar amounts, percentages and other
financial information are derived from the general accounting records
of the Company and its subsidiaries subject to the internal controls
of the Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such
letter and reasonably acceptable to the Lead Underwriter.
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<PAGE>
(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
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
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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 property 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
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<PAGE>
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 customarily applicable to transactions of
the type contemplated by this Agreement, the Terms Agreement and the
Indenture);
(iv) The execution, delivery and performance of the Indenture,
the Terms Agreement (including the provisions of this Agreement) and
any Delayed Delivery Contracts and the issuance and sale of the
Offered Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any material
statute, rule, regulation or order of any governmental agency or body
or any court having jurisdiction over the Company, any Subsidiary
incorporated in the United States of America or any of their
respective properties known to such counsel, or the charter or by-laws
of the Company, or any such Subsidiary; and the Company has full power
and authority to authorize, issue and sell the Offered Securities as
contemplated by the Terms Agreement (including the provisions of this
Agreement);
(v) The Registration Statement has become effective under the
Act, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein, and, to the best of the knowledge of
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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 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 cer-
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tificates 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;
(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
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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 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
-26-
<PAGE>
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 which meets the requirements of
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 .
(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
-27-
<PAGE>
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 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
-28-
<PAGE>
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.
(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
-29-
<PAGE>
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 includes an unconditional written release in
form and substance satisfactory to the indemnified parties of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party
-30-
<PAGE>
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, 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.
-31-
<PAGE>
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 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 ob-
-32-
<PAGE>
ligations 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 Underwriter under this Section 7. Nothing
herein will relieve a defaulting Underwriter from liability for its default. The
respective commitments of the several Underwriters for the purposes of this
Section 7 shall be determined without regard to reduction in the respective
Underwriters' obligations to purchase the principal amounts of the Offered
Securities set forth opposite their names in the Terms Agreement as a result of
Delayed Delivery Contracts entered into by the Company.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to the Terms Agreement (including the provisions of
this Agreement) will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter, the Company or any of their respective representatives,
officers or direc-
-33-
<PAGE>
tors 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 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.
-34-
<PAGE>
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.
-35-
<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:
By:___________________________
Name:
Title:
-36-
<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 fol-
<PAGE>
-3-
lowing 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
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].
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>
-4-
The foregoing Terms Agreement is hereby confirmed and accepted as of the date
first above written.
[If no co-representative, use first confirmation form.
If co-representative, use second.]
[NAMES OF REPRESENTATIVES]
By ____________________________
[Insert title]
[Acting on behalf of itself and as the Representative of the several
Underwriters.]
<PAGE>
SCHEDULE A
----------
<TABLE>
<CAPTION>
Principal
Underwriter Amount
----------- -------------
<S> <C>
$
---------------
Total....................................... $
===============
</TABLE>
<PAGE>
EXHIBIT 4
===========================================
CASE CREDIT CORPORATION,
Issuer
and
THE BANK OF NEW YORK
Trustee
_______________________
INDENTURE
_______________________
Dated as of ___________ ___, 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.
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
Definitions and Other Provisions
of General Application
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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of the Indenture.
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<TABLE>
<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>
<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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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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the Indenture.
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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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the Indenture.
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<TABLE>
<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
to Effect Defeasance or Covenant Defeasance.......................... 64
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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NOTE: This table of contents shall not, for any purpose, be deemed to a part of
the Indenture.
ix
<PAGE>
INDENTURE, dated as of _________ __, 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).
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"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
7
<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.
8
<PAGE>
"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.
9
<PAGE>
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
<PAGE>
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.
11
<PAGE>
(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.
12
<PAGE>
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
13
<PAGE>
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.]
- ------------------------
14
<PAGE>
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
15
<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
16
<PAGE>
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,
<TABLE>
<CAPTION>
Year Redemption Price Year Redemption Price
- ------ ---------------- ---- ----------------
<S> <C> <C> <C>
</TABLE>
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,
<TABLE>
<CAPTION>
Redemption Price Redemption Price
for Redemption through for Redemption otherwise than
Year Operation of the Sinking Fund through Operation of the Sinking Fund
- ---- ----------------------------- -------------------------------------
<S> <C> <C>
</TABLE>
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
21
<PAGE>
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).
23
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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 3.1 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 3.1 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
30
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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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<PAGE>
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:
47
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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
48
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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).
49
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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).
50
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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.
51
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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
52
<PAGE>
(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
53
<PAGE>
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.
54
<PAGE>
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
55
<PAGE>
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
56
<PAGE>
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;
57
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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
58
<PAGE>
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.
59
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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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<PAGE>
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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<PAGE>
(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.
62
<PAGE>
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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<PAGE>
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
64
<PAGE>
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
65
<PAGE>
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.
66
<PAGE>
(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.
67
<PAGE>
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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<PAGE>
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
By____________________________________
Name: Robert A. Wegner
Title: Vice President and
Chief Financial Officer
Attest:
______________________
THE BANK OF NEW YORK, as Trustee
By____________________________________
Attest:
______________________
<PAGE>
STATE OF WISCONSIN )
) ss.:
COUNTY OF Racine )
On the ____ day of _________, 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.
_________________________
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____day of ________, 1997, before me personally came Mary LaGumina,
to me known, who, being by me duly sworn, did depose and say that he is
Assistant Vice President of The Bank of New York, 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.
__________________________
<PAGE>
[LOGO OF CASE CORPORATION]
Exhibit 5
RICHARD S. BRENNAN CASE CORPORATION
GENERAL COUNSEL AND 700 STATE STREET
SECRETARY RACINE, WI 53404 USA
TEL: (414) 636-0940
FAX: (414) 636-0913
September 15, 1997
Case Credit Corporation
700 State Street
Racine, Wisconsin 53404
Ladies and Gentlemen:
I am the General Counsel and Secretary of Case Corporation, a Delaware
corporation, the parent company and sole stockholder of Case Credit Corporation,
a Delaware corporation ("Case Credit"), and have advised Case Credit in
connection with the proposed sale of up to $700,000,000 principal amount of Case
Credit's Debt Securities (the "Securities"). The Securities are to be issued
under an Indenture (the "Indenture") between Case Credit and The Bank of New
York, as Trustee, with certain terms of the Securities to be established by
certain officers of Case Credit who have been authorized by its Board of
Directors to do so, as part of the corporate action taken and to be taken (the
"Corporate Proceedings") relating to the issuance of the Securities.
I, or members of my staff, have examined or are otherwise familiar with the
Certificate of Incorporation of Case Credit, the By-Laws of Case Credit, the
Registration Statement on Form S-3 (the "Registration Statement") being filed by
Case Credit pursuant to which the Securities are to be registered under the
Securities Act of 1933, as amended, the Corporate Proceedings and such other
documents, records, and instruments as I have deemed necessary for the purposes
of this opinion.
Based on the foregoing, I am of the opinion that, upon its proper execution by
all required signatories, the Indenture shall be a valid and binding instrument
and that, upon the completion of the Corporate Proceedings and the
authentication, issuance, sale and delivery of the Securities, the Securities
shall be legal, valid and binding obligations of Case Credit, entitled to
<PAGE>
September 15, 1997
Page 2
the benefits of the Indenture, including such terms as are established pursuant
to the Corporate Proceedings, in accordance with the respective terms thereof
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors' rights
generally from time to time in effect and the general principles of equity).
I hereby consent to the filing of this opinion as an Exhibit to the Registration
Statement and to being named in the related prospectus and any related
prospectus supplement under the caption "Legal Matters" with respect to the
matters stated therein. Further, I hereby consent to the incorporation by
reference of this opinion and consent in any abbreviated registration
statement(s) registering up to an additional 20% aggregate principal amount of
Securities filed subsequent to the date hereof.
Sincerely,
/s/ Richard S. Brennan
Richard S. Brennan
<PAGE>
EXHIBIT 12
CASE CREDIT CORPORATION AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN MILLIONS)
<TABLE>
<CAPTION>
SIX MONTHS
ENDED YEARS ENDED DECEMBER 31,
JUNE 30, ------------------------
1997 1996 1995 1994 1993 1992
----------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Net Income.......................................... $ 39 $ 85 $ 94 $ 81 $111 $130
Add:
Interest expense.................................. 44 72 42 88 227 353
Amortization of capitalized debt expense.......... -- 2 2 1 1 2
Portion of rentals representative
of interest factor............................... -- -- -- -- -- --
Income tax expense and other taxes on income...... 18 45 53 55 75 85
Cumulative effect of change in
accounting principles............................ -- -- -- -- -- 6
Fixed charges of unconsolidated
subsidiaries..................................... -- -- -- -- -- --
Extraordinary loss................................ -- 3 -- 4 -- --
---- ---- ---- ---- ---- ----
Earnings as defined............................. $101 $207 $191 $229 $414 $576
==== ==== ==== ==== ==== ====
Interest expense.................................... $ 44 $ 72 $ 42 $ 88 $227 $353
Amortization of capitalized debt
expense............................................ -- 2 2 1 1 2
Portion of rentals representative
of interest factor................................. -- -- -- -- -- --
Fixed charges of unconsolidated subsidiaries........ -- -- -- -- -- --
---- ---- ---- ---- ---- ----
Fixed charges as defined........................ $ 44 $ 74 $ 44 $ 89 $228 $355
==== ==== ==== ==== ==== ====
Ratio of earnings to fixed charges.................. 2.30x 2.80x 4.34x 2.57x 1.82x 1.62x
==== ==== ==== ==== ==== ====
</TABLE>
<PAGE>
EXHIBIT 23(A)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
report dated February 14, 1997 (except with respect to the matters discussed
in Note 12, as to which the date is March 14, 1997) on the Case Credit
Corporation and subsidiaries financial statements (and to all references to
our Firm) included in this registration statement.
ARTHUR ANDERSEN LLP
Milwaukee, Wisconsin
September 15, 1997
<PAGE>
================================================================================
Exhibit 25
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
CASE CREDIT CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 76-0394710
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
700 State Street
Racine, Wisconsin 53404
(Address of principal executive offices) (Zip code)
----------------------
Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------
Name Address
- ---------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-
29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed
with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1
filed with Registration Statement No. 33-21672 and Exhibit 1 to Form T-
1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 10th day of September, 1997.
THE BANK OF NEW YORK
By: /s/ WALTER N. GITLIN
---------------------------
Name: WALTER N. GITLIN
Title: VICE PRESIDENT
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<PAGE>
Exhibit 7
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Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 1997,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin................... $ 8,249,820
Interest-bearing balances............. 1,031,026
Securities:
Held-to-maturity securities........... 1,118,463
Available-for-sale securities......... 3,005,838
Federal funds sold and Securities pur-
chased under agreements to resell..... 3,100,281
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................32,895,077
LESS: Allowance for loan and
lease losses ..............633,877
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve 32,260,771
Assets held in trading accounts......... 1,715,214
Premises and fixed assets (including
capitalized leases)................... 684,704
Other real estate owned................. 21,738
Investments in unconsolidated
subsidiaries and associated
companies............................. 195,761
Customers' liability to this bank on
acceptances outstanding............... 1,152,899
Intangible assets....................... 683,503
Other assets............................ 1,526,113
-----------
Total assets............................ $54,746,131
===========
LIABILITIES
Deposits:
In domestic offices................... $25,614,961
Noninterest-bearing ......10,564,652
Interest-bearing .........15,050,309
In foreign offices, Edge and
Agreement subsidiaries, and IBFs...... 15,103,615
Noninterest-bearing .........560,944
Interest-bearing .........14,542,671
Federal funds purchased and Securities
sold under agreements to repurchase... 2,093,286
Demand notes issued to the U.S.
Treasury.............................. 239,354
Trading liabilities..................... 1,399,064
Other borrowed money:
With remaining maturity of one year
or less............................. 2,075,092
With remaining maturity of more than
one year............................ 20,679
Bank's liability on acceptances exe-
cuted and outstanding................. 1,160,012
Subordinated notes and debentures....... 1,014,400
Other liabilities....................... 1,840,245
-----------
Total liabilities....................... 50,560,708
-----------
EQUITY CAPITAL
Common stock............................ 942,284
Surplus................................. 731,319
Undivided profits and capital
reserves.............................. 2,544,303
Net unrealized holding gains
(losses) on available-for-sale
securities............................ (19,449)
Cumulative foreign currency transla-
tion adjustments...................... (13,034)
-----------
Total equity capital.................... 4,185,423
-----------
Total liabilities and equity
capital ........................... $54,746,131
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Alan R. Griffith )
J. Carter Bacot } Directors
Thomas A. Renyi )
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