<PAGE>
- -------------------------------------------------------------------------------
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM 10-Q
[X]QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE
ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1996
OR
[_]TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
COMMISSION FILE NUMBER 1-13098
----------------
CASE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 76-0433811
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
700 STATE STREET, RACINE, WI 53404
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES INCLUDING ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (414) 636-6011
----------------
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports) and (2) has been subject to such
filing requirements for the past 90 days. YES [X] NO [_]
Indicate the number of shares outstanding of each of the issuer's classes of
common stock as of the latest practicable date.
Common Stock, par value $0.01 per share: 73,381,882 shares outstanding as of
October 31, 1996.
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<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Part I--Financial Information
Case Corporation and Consolidated Subsidiaries--
Balance Sheets........................................................ 2
Statements of Income.................................................. 4
Statements of Cash Flows.............................................. 6
Statements of Changes in Stockholders' Equity......................... 7
Notes to Financial Statements......................................... 8
Management's Discussion and Analysis of Financial Condition and
Results of Operations................................................ 13
Part II--Other Information
Item 1. Legal Proceedings............................................... 21
Item 2. Changes in Securities........................................... *
Item 3. Defaults Upon Senior Securities................................. *
Item 4. Submission of Matters to a Vote of Security Holders............. *
Item 5. Other Information............................................... *
Item 6. Exhibits and Reports on Form 8-K................................ 21
</TABLE>
- --------
*No response to this item is included herein for the reason that it is
inapplicable or the answer to such item is negative.
1
<PAGE>
PART I
FINANCIAL INFORMATION
CASE CORPORATION AND CONSOLIDATED SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS AS OF SEPTEMBER 30, 1996, AND DECEMBER 31, 1995
(IN MILLIONS, EXCEPT SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
CONSOLIDATED
--------------------------
SEPTEMBER 30, DECEMBER 31,
1996 1995
------------- ------------
<S> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents.......................... $ 93 $ 132
Accounts and notes receivable:
Trade.............................................. 1,716 1,504
Affiliates......................................... -- --
Other.............................................. 112 55
Inventories........................................ 1,098 901
Deferred income taxes.............................. 247 200
Prepayments and other.............................. 73 60
------ ------
Total current assets............................. 3,339 2,852
------ ------
Long-Term Receivables............................... 1,131 1,244
Other Assets:
Investments in joint ventures...................... 67 65
Investment in Case Credit.......................... -- --
Goodwill and intangibles........................... 225 176
Other.............................................. 99 176
------ ------
Total other assets............................... 391 417
------ ------
Property, Plant and Equipment, at cost.............. 1,982 1,970
Accumulated depreciation........................... (1,025) (1,014)
------ ------
Net property, plant and equipment................... 957 956
------ ------
Total............................................ $5,818 $5,469
====== ======
LIABILITIES AND EQUITY
Current Liabilities:
Current maturities of long-term debt............... $ 9 $ 47
Short-term debt.................................... 1,199 1,005
Accounts payable................................... 507 533
Restructuring liability............................ 184 97
Other accrued liabilities.......................... 756 784
------ ------
Total current liabilities........................ 2,655 2,466
------ ------
Long-Term Debt...................................... 906 889
Other Liabilities:
Pension benefits................................... 129 134
Other postretirement benefits...................... 118 98
Other postemployment benefits...................... 40 40
Restructuring liability............................ 60 210
Other.............................................. 46 35
------ ------
Total other liabilities.......................... 393 517
------ ------
Commitments and Contingencies
Minority Interest................................... 1 --
Preferred Stock with Mandatory Redemption
Provisions......................................... 77 77
Stockholders' Equity:
Common Stock, $0.01 par value; authorized
200,000,000 shares, issued 73,186,047, outstanding
73,158,720........................................ 1 1
Paid-in capital.................................... 1,220 1,154
Cumulative translation adjustment.................. (21) (21)
Unearned compensation on restricted stock.......... (8) (10)
Pension liability adjustment....................... (2) (2)
Retained earnings.................................. 597 399
Treasury stock, 27,327 shares, at cost............. (1) (1)
------ ------
Total stockholders' equity....................... 1,786 1,520
------ ------
Total............................................ $5,818 $5,469
====== ======
</TABLE>
The accompanying notes to financial statements are an integral part of these
Balance Sheets.
Reference is made to Note 1 for definitions of "Case Industrial" and "Case
Credit."
2
<PAGE>
<TABLE>
<CAPTION>
CASE INDUSTRIAL CASE CREDIT
---------------------------------- -----------------------------------------
SEPTEMBER 30, DECEMBER 31, SEPTEMBER 30, DECEMBER 31,
1996 1995 1996 1995
------------- ------------ ------------- ------------
<S> <C> <C> <C>
$ 68 $ 117 $ 25 $ 15
1,389 1,323 327 181
-- -- 17 16
29 18 83 37
1,098 901 -- --
231 185 16 15
72 57 1 3
------ ------ ------ ------
2,887 2,601 469 267
------ ------ ------ ------
213 395 904 835
67 65 -- --
240 193 -- --
225 176 -- --
104 139 8 51
------ ------ ------ ------
636 573 8 51
------ ------ ------ ------
1,979 1,970 3 --
(1,024) (1,014) (1) --
------ ------ ------ ------
955 956 2 --
------ ------ ------ ------
$4,691 $4,525 $1,383 $1,153
====== ====== ====== ======
$ 9 $ 47 $ -- $ --
385 97 814 908
512 533 11 16
184 97 -- --
717 748 39 36
------ ------ ------ ------
1,807 1,522 864 960
------ ------ ------ ------
627 889 279 --
129 134 -- --
118 98 -- --
40 40 -- --
60 210 -- --
46 35 -- --
------ ------ ------ ------
393 517 -- --
------ ------ ------ ------
1 -- -- --
77 77 -- --
1 1 -- --
1,220 1,154 199 199
(21) (21) (6) (8)
(8) (10) -- --
(2) (2) -- --
597 399 47 2
(1) (1) -- --
------ ------ ------ ------
1,786 1,520 240 193
------ ------ ------ ------
$4,691 $4,525 $1,383 $1,153
====== ====== ====== ======
</TABLE>
3
<PAGE>
CASE CORPORATION AND CONSOLIDATED SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
FOR THE THREE AND NINE MONTHS ENDED SEPTEMBER 30, 1996, AND 1995
(IN MILLIONS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
CONSOLIDATED
----------------------------------------
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
-------------------- ------------------
1996 1995 1996 1995
--------- --------- -------- --------
<S> <C> <C> <C> <C>
Revenues:
Net sales........................... $ 1,149 $ 1,137 $ 3,652 $ 3,655
Interest income and other........... 50 45 184 123
--------- --------- -------- --------
1,199 1,182 3,836 3,778
Costs and Expenses:
Cost of goods sold.................. 880 886 2,776 2,804
Selling, general and administrative. 134 132 393 403
Research, development and
engineering........................ 49 39 140 112
Interest expense.................... 43 44 121 134
Other, net.......................... 6 (18) 22 2
--------- --------- -------- --------
Income before taxes and cumulative
effect of changes in accounting
principles and extraordinary loss... 87 99 384 323
Income tax provision................. 25 11 137 55
--------- --------- -------- --------
Income before cumulative effect of
changes in accounting principles and
extraordinary loss.................. 62 88 247 268
Equity in income--Case Credit........ -- -- -- --
--------- --------- -------- --------
Income before cumulative effect of
changes in accounting principles and
extraordinary loss.................. 62 88 247 268
Cumulative effect of changes in
accounting principles............... -- -- -- (9)
Extraordinary loss................... (11) -- (33) --
--------- --------- -------- --------
Net income........................... $ 51 $ 88 $ 214 $ 259
========= ========= ======== ========
Preferred stock dividends............ 2 2 5 5
--------- --------- -------- --------
Net income to common................. $ 49 $ 86 $ 209 $ 254
========= ========= ======== ========
Per share data:
Primary earnings per share of common
stock.............................. $ 0.66 $ 1.19 $ 2.83 $ 3.55
========= ========= ======== ========
Fully diluted earnings per share of
common stock....................... $ 0.66 $ 1.16 $ 2.77 $ 3.43
========= ========= ======== ========
</TABLE>
The accompanying notes to financial statements are an integral part of these
Statements of Income.
Reference is made to Note 1 for definitions of "Case Industrial" and "Case
Credit."
4
<PAGE>
<TABLE>
<CAPTION>
CASE INDUSTRIAL CASE CREDIT
- ---------------------------------------------- -----------------------------
NINE MONTHS THREE MONTHS NINE MONTHS
THREE MONTHS ENDED ENDED ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30, SEPTEMBER 30, SEPTEMBER 30,
- ------------------------------ -------------- -------------- --------------
1996 1995 1996 1995 1996 1995 1996 1995
- ------------------- --------- ------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
$ 1,149 $ 1,137 $3,652 $3,655 $ -- $ -- $ -- $ --
16 19 49 48 61 55 186 165
- ------------------- --------- ------ ------ ------ ------ ------ ------
1,165 1,156 3,701 3,703 61 55 186 165
880 886 2,776 2,804 -- -- -- --
153 156 423 477 8 5 20 15
49 39 140 112 -- -- -- --
21 34 69 106 22 10 53 29
3 (18) 14 1 3 -- 8 1
- ------------------- --------- ------ ------ ------ ------ ------ ------
59 59 279 203 28 40 105 120
20 (3) 100 6 5 14 37 49
- ------------------- --------- ------ ------ ------ ------ ------ ------
39 62 179 197 23 26 68 71
23 26 68 71 -- -- -- --
- ------------------- --------- ------ ------ ------ ------ ------ ------
62 88 247 268 23 26 68 71
-- -- -- (9) -- -- -- --
(11) -- (33) -- (3) -- (3) --
- ------------------- --------- ------ ------ ------ ------ ------ ------
$ 51 $ 88 $ 214 $ 259 $ 20 $ 26 $ 65 $ 71
=================== ========= ====== ====== ====== ====== ====== ======
</TABLE>
5
<PAGE>
CASE CORPORATION AND CONSOLIDATED SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1996, AND 1995
(IN MILLIONS)
(UNAUDITED)
<TABLE>
<CAPTION>
CONSOLIDATED CASE INDUSTRIAL CASE CREDIT
-------------- ---------------- --------------
NINE MONTHS NINE MONTHS NINE MONTHS
ENDED ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30, SEPTEMBER 30,
-------------- ---------------- --------------
1996 1995 1996 1995 1996 1995
------ ------ ------- ------- ------ ------
<S> <C> <C> <C> <C> <C> <C>
Operating activities:
Net income................ $ 214 $ 259 $ 214 $ 259 $ 65 $ 71
Adjustments to reconcile
net income to net cash
provided (used) by
operating activities--
Depreciation and
amortization........... 104 94 95 94 9 --
Deferred income tax
expense................ 7 (101) 8 (100) (1) (1)
(Gain) loss on disposal
of fixed assets........ 3 (24) 3 (24) -- --
Extraordinary loss,
after tax.............. 33 -- 33 -- 3 --
Cumulative effect of
changes in accounting
principles............. -- 9 -- 9 -- --
Cash paid for
restructuring.......... (51) (20) (51) (20) -- --
Undistributed (earnings)
loss of unconsolidated
subsidiaries........... (4) 11 (51) 11 -- --
Changes in components of
working capital--
(Increase) decrease in
receivables.......... (270) (253) (69) (222) (201) (38)
(Increase) decrease in
inventories.......... (179) (102) (179) (102) -- --
(Increase) decrease in
prepayments and other
current assets....... (13) (19) (14) (17) 1 (2)
Increase (decrease) in
payables............. 7 8 12 9 (5) 6
Increase (decrease) in
accrued liabilities.. (30) 55 (33) 47 3 8
(Increase) decrease in
long-term notes
receivable............. 156 226 182 331 (26) (105)
Increase (decrease) in
other liabilities...... 12 10 12 10 -- --
Other, net.............. 14 (7) 14 15 (1) (17)
------ ------ ------- ------- ------ ------
Net cash provided
(used) by operating
activities.......... 3 146 176 300 (153) (78)
------ ------ ------- ------- ------ ------
Investing activities:
Proceeds from sale of
businesses and assets.... 15 54 15 54 -- --
Expenditures for property,
plant and equipment...... (94) (41) (92) (41) (2) --
Acquisitions and
investments.............. (80) -- (80) -- -- --
------ ------ ------- ------- ------ ------
Net cash provided
(used) by investing
activities.......... (159) 13 (157) 13 (2) --
------ ------ ------- ------- ------ ------
Financing activities:
Proceeds from issuance of
common stock............. 55 -- 55 -- -- --
Proceeds from issuance of
long-term debt........... 500 296 300 296 200 --
Payment of long-term debt. (644) (640) (644) (640) -- --
Net increase (decrease) in
short-term debt.......... 219 193 235 34 (16) 159
Dividends paid (common and
preferred)............... (16) (16) (16) (16) (20) (68)
Other, net................ 4 (3) 3 (6) 1 (5)
------ ------ ------- ------- ------ ------
Net cash provided
(used) by financing
activities.......... 118 (170) (67) (332) 165 86
------ ------ ------- ------- ------ ------
Effect of foreign exchange
rate changes on cash and
cash equivalents.......... (1) 2 (1) 2 -- --
------ ------ ------- ------- ------ ------
Increase (decrease) in cash
and cash equivalents...... $ (39) $ (9) $ (49) $ (17) $ 10 $ 8
Cash and cash equivalents,
beginning of period....... 132 68 117 64 15 4
------ ------ ------- ------- ------ ------
Cash and cash equivalents,
end of period............. $ 93 $ 59 $ 68 $ 47 $ 25 $ 12
====== ====== ======= ======= ====== ======
Cash paid during the period
for interest.............. $ 136 $ 134 $ 84 $ 106 $ 52 $ 28
====== ====== ======= ======= ====== ======
Cash paid during the period
for taxes................. $ 102 $ 97 $ 55 $ 57 $ 47 $ 40
====== ====== ======= ======= ====== ======
</TABLE>
The accompanying notes to financial statements are an integral part of these
Statements of Cash Flows.
Reference is made to Note 1 for definitions of "Case Industrial" and "Case
Credit."
6
<PAGE>
CASE CORPORATION AND CONSOLIDATED SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
(IN MILLIONS)
(UNAUDITED)
<TABLE>
<CAPTION>
CUMULATIVE PENSION
COMMON PAID-IN TRANSLATION UNEARNED LIABILITY RETAINED TREASURY
STOCK CAPITAL ADJUSTMENT COMPENSATION ADJUSTMENT EARNINGS STOCK TOTAL
------ ------- ----------- ------------ ---------- -------- -------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance, December 31, 1994..... $ 1 $1,128 $(22) $(7) $(2) $ 83 $-- $1,181
Net income.................... -- -- -- -- -- 337 -- 337
Dividends declared............ -- -- -- -- -- (21) -- (21)
Translation adjustment........ -- -- 1 -- -- -- -- 1
Capital contributions on stock
issuance..................... -- 20 -- -- -- -- -- 20
Recognition of compensation on
restricted stock............. -- -- -- 3 -- -- -- 3
Issuance of restricted stock.. -- 6 -- (6) -- -- -- --
Acquisition of treasury stock. -- -- -- -- -- -- (1) (1)
--- ------ ---- --- --- ---- --- ------
Balance, December 31, 1995..... 1 1,154 (21) (10) (2) 399 (1) 1,520
Net income.................... -- -- -- -- -- 214 -- 214
Dividends declared............ -- -- -- -- -- (16) -- (16)
Capital contributions on stock
issuance..................... -- 66 -- -- -- -- -- 66
Recognition of compensation on
restricted stock............. -- -- -- 2 -- -- -- 2
--- ------ ---- --- --- ---- --- ------
Balance, September 30, 1996.... $ 1 $1,220 $(21) $(8) $(2) $597 $(1) $1,786
=== ====== ==== === === ==== === ======
</TABLE>
The accompanying notes to financial statements are an integral part of
these Statements of Changes in Stockholders' Equity.
7
<PAGE>
CASE CORPORATION AND CONSOLIDATED SUBSIDIARIES
NOTES TO FINANCIAL STATEMENTS
(1) BASIS OF PRESENTATION
The accompanying financial statements reflect the consolidated results of
Case Corporation ("Case" or the "Company") and also include, on a separate and
supplemental basis, the combination of Case's industrial companies and credit
companies as follows:
Case Industrial
-- The financial information captioned "Case Industrial"
reflects the consolidation of all majority-owned subsidiaries
except for the wholly owned retail credit subsidiaries. The
credit operations are included on an equity basis.
Case Credit -- The financial information captioned "Case Credit" reflects
Case's wholly owned retail credit subsidiaries.
All significant intercompany transactions, including activity within and
between Case Industrial and Case Credit, have been eliminated.
In the opinion of management, the accompanying unaudited financial
statements of Case Corporation and Consolidated Subsidiaries contain all
adjustments which are of a normal recurring nature necessary to present fairly
the financial position as of September 30, 1996, and the results of
operations, changes in stockholders' equity and cash flows for the periods
indicated. Interim financial results are not necessarily indicative of
operating results for an entire year.
Certain reclassifications have been made to conform the prior years'
financial statements to the 1996 presentation.
(2) ASSET-BACKED SECURITIZATIONS
During the third quarter, limited-purpose business trusts organized by Case
Credit issued $875 million of asset-backed securities, of which $25 million
was sold pursuant to a private note offering. In the first nine months of
1996, $1,646 million of asset-backed securities were issued to outside
investors. Case Credit has sold $1,238 million of U.S. and Canadian retail
notes to the trusts in connection with these issuances. The remaining $408
million of retail notes will be sold to the trusts as receivables are
generated. In the first nine months of 1995, limited-purpose business trusts
organized by Case Credit issued asset-backed securities totaling $1,469
million, selling $1,194 million of retail notes in connection with these
issuances. The proceeds from the sale of retail notes were used to repay
outstanding debt and to finance additional receivables.
(3) SHORT-TERM DEBT AND LINES OF CREDIT
In August 1996, the Company established new credit facilities consisting of
$3.4 billion in lines of credit and liquidity facilities. Of the $3.4 billion
total, $2.3 billion of the credit facilities benefit Case Credit and its
Canadian subsidiary and consist of: (i) a five-year, $1.2 billion revolving
credit facility for working capital and other general corporate purposes,
including investments and acquisitions; (ii) a $750 million U.S. asset-backed
commercial paper liquidity facility to finance U.S. retail receivables; and
(iii) a five-year, C$500 million revolving credit facility for working capital
and other general corporate purposes, including investments and acquisitions.
Case Industrial's credit facility consists of a five-year, $1.1 billion
revolving credit facility for working capital and other general corporate
purposes, including investments and acquisitions. The new credit facilities
were negotiated at more favorable rates and terms for the Company than
previous credit facilities. Case also has A$384 million in credit facilities
for the Company's Australian operations, as well as other lines of credit for
various foreign operations.
As a result of establishing the new credit facilities, the Company recorded
an $11 million extraordinary after-tax charge in the third quarter of 1996 to
write-off unamortized bank fees related to the original bank agreements
established at the time of the Company's initial public offering in June 1994.
8
<PAGE>
CASE CORPORATION AND CONSOLIDATED SUBSIDIARIES
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
Information regarding short-term borrowings is set forth in the following
table (in millions):
<TABLE>
<CAPTION>
SEPTEMBER 30, 1996 DECEMBER 31, 1995
------------------------- -------------------------
COMMERCIAL PAPER COMMERCIAL PAPER
LINES OF LIQUIDITY LINES OF LIQUIDITY
CREDIT FACILITY CREDIT FACILITY
-------- ---------------- -------- ----------------
<S> <C> <C> <C> <C>
Outstanding borrowings..... $1,122 $ 77 $ 808 $197
Weighted-average interest
rate...................... 5.9% 5.4% 6.6% 5.9%
Total unused lines......... $1,194 $673 $1,324 $392
</TABLE>
At the option of the Company, borrowings under the revolving credit
facilities bear interest at: (i) prime rate; (ii) LIBOR, plus an applicable
margin; or (iii) banker's bills of acceptance rates, plus an applicable
margin. Borrowings may be obtained in U.S. dollars or certain other foreign
currencies. Case Credit's revolving credit facilities (other than the
commercial paper liquidity facility) contain restrictive covenants that
require that Case Credit maintain certain financial conditions including a
maximum ratio of debt to net worth and a minimum fixed-charge coverage ratio.
Case Industrial's revolving credit facility contains restrictive covenants
that require that Case Industrial maintain certain financial conditions
including a maximum debt to capitalization ratio and a minimum net worth. The
revolving credit facilities (other than the commercial paper liquidity
facility) also impose certain restrictions on additional indebtedness, liens
on Company assets and ownership of certain subsidiaries.
The credit facilities generally provide for facility fees on the total
commitment, whether used or unused, and also provide for annual agency fees to
the administrative agents for the facilities.
(4) LONG-TERM DEBT
A summary of long-term debt is set forth in the following table (in
millions):
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
1996 1995
------------- ------------
<S> <C> <C>
Case Industrial
Case Corporation
Senior subordinated notes, interest rate of 10.5%,
retired January 1996............................. $-- $277
Term loan, payable on various dates through 2000,
average interest
rates of 6.0% and 6.4%, respectively, retired
July 1996........................................ -- 324
Notes, payable in 2005, interest rate of 7.25%.... 298 298
Notes, payable in 2016, interest rate of 7.25%.... 300 --
Case France S.A.
Notes, payable on various dates through 2000,
interest rate of 4.5%............................ 28 33
Other debt.......................................... 10 4
---- ----
636 936
Less--current maturities............................ (9) (47)
---- ----
Total long-term debt--Case Industrial........... $627 $889
---- ----
Case Credit
Case Credit Corporation
Notes, payable in 2003, interest rate of 6.125%... $200 $--
Case Credit Australia Pty Limited
Long-term portion of borrowings on a line of
credit, average interest
rate of 7.9%..................................... 79 --
---- ----
Total long-term debt--Case Credit............... $279 $--
---- ----
Total long-term debt............................ $906 $889
==== ====
</TABLE>
9
<PAGE>
CASE CORPORATION AND CONSOLIDATED SUBSIDIARIES
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
In the first quarter of 1996, the Company sold $300 million aggregate
principal amount of its 7 1/4% unsecured and unsubordinated notes due 2016
pursuant to a shelf registration statement filed with the Securities and
Exchange Commission in June 1995. The net proceeds from the offering, together
with cash and additional borrowings under the Company's credit facilities,
were used to exercise the Company's option to repurchase for cash all of the
Company's 10 1/2% Senior Subordinated Notes and pay accrued interest thereon.
The Company incurred an extraordinary charge of $22 million after tax in the
first quarter of 1996 as a result of the repurchase.
In the first quarter of 1996, Case Credit sold $200 million aggregate
principal amount of its 6 1/8% unsecured and unsubordinated notes due 2003
pursuant to a $300 million shelf registration statement filed with the
Securities and Exchange Commission in December 1995. The net proceeds from the
offering were used to repay indebtedness and finance Case Credit's growing
portfolio of receivables. The Company had originally guaranteed the
obligations of Case Credit under these notes. As a result of the new credit
facilities established by the Company in August 1996, Case Corporation was
released from its obligations under this guarantee. Case Corporation will,
however, continue to provide a support agreement for Case Credit to maintain
its ownership and provide financial backing.
(5) INCOME TAXES
On a consolidated basis, the Company's effective income tax rate of 36% for
the first nine months of 1996 was slightly higher than the U.S. statutory tax
rate of 35% primarily due to state income taxes and foreign income taxed at
different rates, partially offset by the recognition of research and
development credits, tax savings related to the Company's foreign sales
corporation and reductions in tax valuation reserves relating to foreign
subsidiaries. In the first nine months of 1995, the effective income tax rate
of 17% was lower than the U.S. statutory tax rate primarily due to a reduction
in the tax valuation reserve.
(6) ACQUISITION OF BUSINESSES
During the first quarter of 1996, the Company acquired Concord Inc., a
manufacturer of air drills based in Fargo, North Dakota, with annual sales of
approximately $25 million. In the second quarter of 1996, the Company's
Australian subsidiary completed the acquisition of Austoft Holdings Limited
("Austoft"), the world's largest manufacturer of sugar cane harvesting
equipment. Austoft is based in Bundaberg, Queensland, Australia, and had sales
of approximately $74 million for the fiscal year ended June 30, 1996. In the
third quarter, the Company completed the acquisition of 75% of Steyr
Landmaschinentechnik AG ("Steyr"), an Austrian tractor manufacturer. Steyr is
based in St. Valentin, Austria, and had revenues of approximately $176 million
for the year ended December 31, 1995.
(7) COMMITMENTS AND CONTINGENCIES
Environmental
Expenditures for ongoing compliance with environmental regulations that
relate to current operations are expensed or capitalized as appropriate.
Expenditures that relate to an existing condition caused by past operations
and which do not contribute to current or future revenue generation are
expensed. Liabilities are recorded when environmental assessments indicate
that remedial efforts are probable and the costs can be reasonably estimated.
Estimates of the liability are based upon currently available facts, existing
technology and presently enacted laws and regulations. All available evidence
is considered, including prior experience in remediation of contaminated
sites, other parties' share of liability at waste sites and their ability to
pay and data concerning the waste sites released by the U.S. Environmental
Protection Agency or other organizations. These liabilities are included in
the accompanying Balance Sheets at their undiscounted amounts. Recoveries are
evaluated separately from the liability and, if appropriate, are recorded
separately from the associated liability in the accompanying Balance Sheets.
10
<PAGE>
CASE CORPORATION AND CONSOLIDATED SUBSIDIARIES
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
Case has received and from time to time receives inquiries and/or notices of
potential liability at multiple sites that are the subject of remedial
activities under Federal or state environmental laws and Case may be required
to share in the cost of clean-up. Case is also involved in remediating a
number of other sites, including certain of its currently and formerly
operated facilities or those assumed through corporate acquisitions. Based
upon information currently available, management is of the opinion that any
such potential liability or remediation costs will not have a material adverse
effect on Case's financial position or results of operations.
Product liability
Product liability claims against Case arise from time to time in the
ordinary course of business. There is an inherent uncertainty as to the
eventual resolution of unsettled claims. However, in the opinion of
management, any losses with respect to existing claims will not have a
material adverse effect on Case's financial position or results of operations.
Other
Case is the subject of various other legal claims arising from its
operations, including product warranty, dealer disputes, workmen's
compensation and employment matters. Management is of the opinion that the
resolution of these claims, individually and in the aggregate, will not have a
material adverse effect on Case's financial position or results of operations.
(8) EARNINGS PER SHARE OF COMMON STOCK
<TABLE>
<CAPTION>
THREE
MONTHS NINE MONTHS
ENDED ENDED
SEPTEMBER SEPTEMBER
30, 30,
------------ ------------
1996 1995 1996 1995
----- ----- ----- -----
<S> <C> <C> <C> <C>
Earnings per average share of Common Stock (shares
in millions):
Primary
Net earnings after preferred stock dividends and
before cumulative effect
of changes in accounting principles and
extraordinary loss............................... $0.81 $1.19 $3.28 $3.67
Cumulative effect of changes in accounting
principles....................................... -- -- -- (0.12)
Extraordinary loss................................ (0.15) -- (0.45) --
----- ----- ----- -----
Net earnings per share of common stock............ $0.66 $1.19 $2.83 $3.55
===== ===== ===== =====
Average common and common equivalent shares
outstanding...................................... 74 72 74 72
Fully Diluted
Net earnings before cumulative effect of changes
in accounting
principles and extraordinary loss................ $0.80 $1.16 $3.20 $3.55
Cumulative effect of changes in accounting
principles....................................... -- -- -- (0.12)
Extraordinary loss................................ (0.14) -- (0.43) --
----- ----- ----- -----
Net earnings per share of common stock............ $0.66 $1.16 $2.77 $3.43
===== ===== ===== =====
Average common and common equivalent shares
outstanding....................................... 78 76 77 76
</TABLE>
11
<PAGE>
CASE CORPORATION AND CONSOLIDATED SUBSIDIARIES
NOTES TO FINANCIAL STATEMENTS--(CONCLUDED)
(9) SUBSEQUENT EVENTS
In October 1996 the Company acquired Fermec Holdings Limited ("Fermec"), a
U.K. construction equipment manufacturer. Fermec is based in Manchester,
United Kingdom, and had revenues of approximately $155 million for the fiscal
year ended September 30, 1995.
In the fourth quarter of 1996, Case announced it will establish a production
facility in Central Asia through a joint venture agreement. The joint venture,
UzCaseMash, will produce two-row cotton pickers and combine grain headers for
sale in Uzbekistan and surrounding countries. It is anticipated that the first
units from this joint venture will be available for the 1997 cotton harvest.
12
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
ANALYSIS OF RESULTS OF OPERATIONS
Third Quarter 1996 vs. Third Quarter 1995
EARNINGS
Case recorded income before taxes and extraordinary loss of $87 million in
the third quarter of 1996 compared to $99 million in the third quarter of
1995. Excluding the one-time, pretax gain of $24 million from the sale of the
Viscosity Oil business in the third quarter of 1995, income before taxes and
extraordinary loss in the third quarter of 1996 increased $12 million or 16%
as compared to the comparable period in 1995. Income before extraordinary loss
was $62 million in the third quarter of 1996 versus $88 million in the third
quarter of 1995. Primary earnings per share before extraordinary loss was
$0.81 per share for the third quarter of 1996 as compared to $1.19 per share
for the third quarter of 1995. The decrease in earnings per share as compared
to the third quarter of 1995 is primarily due to the gain on sale of the
Viscosity Oil business and a lower effective income tax rate in 1995, as well
as an increase in the number of common shares outstanding.
Net income in the third quarter of 1996 was $51 million with primary
earnings per share of $0.66, versus net income and primary earnings per share
of $88 million and $1.19, respectively, in the third quarter of 1996. Case
recorded an $11 million extraordinary after-tax charge in the third quarter of
1996 for the write-off of unamortized bank fees in conjunction with the
establishment of new credit facilities.
The Company's industrial operations recorded income before equity income of
Case Credit and extraordinary loss of $39 million in the third quarter of 1996
versus $62 million in the third quarter of 1995. The third quarter of 1996
included $23 million in higher tax expense as compared to the third quarter of
1995, due to a significant increase in the Company's 1996 effective income tax
rate. The 1995 effective income tax rate was significantly lower than the U.S.
statutory tax rate primarily due to the reversal of tax valuation reserves in
the third quarter of 1995. In addition, during the third quarter of 1995, a
one-time, pretax gain of $24 million was recorded from the sale of the
Viscosity Oil business. Excluding the gain on sale of the Viscosity Oil
business in 1995, the Company's industrial operations reported third quarter
income before taxes, extraordinary items and equity income of Case Credit of
$59 million, up $24 million or 69%, as compared to the third quarter of 1995.
Case Credit recorded $23 million in income before extraordinary loss in the
third quarter of 1996, $3 million less than the $26 million reported in the
third quarter of 1995. This decrease was primarily due to higher interest
rates and higher operating expenses.
Case's operating earnings for the third quarter of 1996 were $103 million
versus $119 million for the comparable period in 1995. Case defines operating
earnings as industrial earnings before interest, taxes, changes in accounting
principles and extraordinary loss, including the income of Case Credit on an
equity basis. The $16 million decrease in year-over-year third quarter
operating earnings is primarily due to the pretax gain of $24 million on the
sale of the Viscosity Oil business in the third quarter of 1995. Excluding the
gain on sale of the Viscosity Oil business, third quarter 1996 operating
earnings were up $8 million or 8% versus the comparable period last year. The
8% earnings improvement resulted from higher price realization, restructuring
and other cost savings, partially offset by inflationary cost increases and
higher research and development spending.
A reconciliation of the Company's industrial net income to operating
earnings is as follows (in millions):
<TABLE>
<CAPTION>
CASE
INDUSTRIAL
-----------
THREE
MONTHS
ENDED
SEPTEMBER
30,
-----------
1996 1995
----- -----
<S> <C> <C>
Income before cumulative effect of changes in accounting
principles and
extraordinary loss......................................... $ 62 $ 88
Income tax provision........................................ 20 (3)
Interest expense............................................ 21 34
----- -----
Operating earnings.......................................... $ 103 $ 119
===== =====
</TABLE>
13
<PAGE>
REVENUES
On a consolidated basis, worldwide revenues increased $17 million in the
third quarter of 1996 to $1,199 million. Net sales of equipment and parts
increased $12 million to $1,149 million. The increase in net sales consists of
a 2% increase in volume and a 3% improvement in price realization, partially
offset by a 3% decrease resulting from the divestiture of company-owned retail
stores and the 1995 sale of the Viscosity Oil business.
In North America, third quarter net sales of agricultural equipment increased
3% while net sales of construction equipment decreased 21% as compared to the
same period in 1995. The increase in agricultural sales was primarily due to
strong sales of combines and four-wheel-drive tractors. Sales of construction
equipment in the third quarter of 1996 were lower in comparison to the third
quarter of last year as the third quarter of 1995 reflected large shipments of
the Company's new "L" series loader/backhoes. The third quarter of 1995 was the
first full quarter of availability for this new product. In addition, the
Company's progress in implementing its supply chain management initiative to
reduce working capital enabled Case to lower its third quarter production
relative to the same period of 1995. As a result, Case reported lower third
quarter wholesale (dealer) sales in the third quarter of 1996 than would have
been reported had production levels remained constant with third quarter 1995
levels.
In Europe, net sales of agricultural equipment increased slightly in the
third quarter of 1996, while net sales of construction equipment declined 17%
as compared to the same period in 1995. The decrease in construction equipment
sales reflects the continued weakness of the European construction equipment
market, particularly in France and Germany. Retail unit sales of agricultural
equipment were up 16% as compared to the third quarter of 1995, while retail
unit sales of construction equipment were up slightly over prior year.
In Case's other international markets, net sales of agricultural and
construction equipment in the third quarter of 1996 increased 62% and 40%,
respectively, as compared to the same period in 1995. The increase in
agricultural sales resulted from significant increases in sales of 120-plus
horsepower tractors, four-wheel-drive tractors, sugar cane harvesters and
combines. Sales in the Asia Pacific region were particularly strong as the end
of drought conditions in Australia, Case's largest market in that region, has
markedly improved the agricultural market there. The increase in construction
equipment sales was primarily due to increased sales of loader/backhoes and
wheel loaders in Latin America. Generally improved economic conditions in
Brazil, as compared to the third quarter of 1995, also aided the third quarter
sales increase.
COSTS AND EXPENSES
Cost of goods sold for the industrial operations decreased $6 million to $880
million in the third quarter of 1996 as compared to the same quarter in 1995.
Cost of goods sold as a percentage of net sales decreased to 76.6% in the third
quarter of 1996 as compared to 77.9% in the third quarter of 1995. This
decrease reflects pricing actions and cost improvement initiatives from
restructuring and other cost savings. These improvements were partially offset
by inflationary cost increases and the impact of the sale of company-owned
retail stores.
Selling, general and administrative expenses for the industrial operations
decreased $3 million to $153 million in the third quarter of 1996 as compared
to $156 million in the third quarter of 1995. As a percentage of net sales,
selling, general and administrative expenses for the third quarter of 1996
decreased to 13.3% from 13.7% in the third quarter of 1995. This decrease
reflects lower retail selling expenses as a result of restructuring-related
sales of company-owned retail stores and decreased selling expenses related to
low-rate and other sales financing programs. Case Industrial makes payments to
Case Credit in an amount equal to the difference between the rate actually paid
by retail customers and the rate charged by Case Credit.
Research, development and engineering expenses increased 26% to $49 million
in the third quarter of 1996 as compared to the third quarter of 1995. The
increased expenditures primarily relate to new product development.
Interest expense for Case's industrial operations was $21 million in the
third quarter of 1996, $13 million lower than the same quarter of 1995. The
decreased interest expense was primarily due to significantly lower
14
<PAGE>
average debt levels during the third quarter of 1996 as compared to the third
quarter of 1995, and to strategic refinancing actions taken in the second half
of 1995 and year-to-date 1996.
The consolidated effective income tax rate for the third quarter of 1996 was
29% as compared to 11% in the third quarter of 1995. The 1996 effective income
tax rate was lower than the U.S. statutory rate of 35% primarily due to the
recognition of research and development credits, tax savings related to the
Company's foreign sales corporation and reductions in tax valuation reserves
relating to foreign subsidiaries, partially offset by state income taxes and
foreign income taxed at different rates. The 1995 effective income tax rate was
significantly lower than the U.S. statutory rate primarily due to reductions in
the tax valuation reserve.
CREDIT OPERATIONS
Case Credit revenues were $61 million in the third quarter of 1996 as
compared to $55 million in the third quarter of 1995. Case Credit experienced
higher finance income on retail notes and leases during the third quarter of
1996 as compared to the third quarter of 1995, partially offset by lower gains
on asset-backed securitizations and a decrease in interest income from Case
Corporation as a result of Case Credit originating a greater percentage of
full-rate contracts.
Case Credit recorded income before extraordinary items of $23 million in the
third quarter of 1996 versus $26 million in the third quarter of 1995. Earnings
were primarily impacted by higher interest rates that led to the recognition of
smaller gains on asset-backed securitizations. In addition, earnings in the
third quarter of 1996 were impacted by higher operating expenses as a result of
depreciation expense for equipment on operating leases relating to Case
Credit's larger operating lease portfolio.
Interest expense for the third quarter of 1996 was $22 million versus $10
million in the third quarter of 1995. This increase is due to higher overall
debt levels to support the increase in Case Credit's growing portfolio of
receivables as well as higher interest rates in the third quarter of 1996 as
compared to the third quarter of 1995.
Case Credit's third quarter 1996 net income of $20 million reflects an
extraordinary after-tax charge of $3 million for the write-off of unamortized
bank fees in conjunction with the refinancing of the Company's credit
facilities in August 1996. The new credit facilities were negotiated at more
favorable rates and terms for the Company than previous credit facilities and
include increased credit availability for Case Credit. These credit facilities
will be used to finance Case Credit's growing portfolio of receivables and to
develop new product offerings to meet the financing needs of Case Credit
customers.
Case Credit's 1996 third quarter effective income tax rate of 17.9% was lower
than the U.S. statutory rate of 35% primarily due to the recognition of tax
savings from the implementation of foreign financing strategies and reductions
in tax valuation reserves offset by state income taxes and foreign income taxed
at different rates.
As of September 30, 1996, Case Credit's serviced portfolio increased 17% over
the same time last year to $4.1 billion. Equipment acquisitions in the third
quarter of 1996 were up 23% versus the comparable period last year. Portfolio
losses for the total serviced portfolio were $0.9 million in the third quarter
of 1996. Case Credit's third quarter loss to liquidation ratio was 0.14% in the
third quarter of 1996 versus 0.04% in the third quarter of 1995.
Nine months 1996 vs. Nine months 1995
EARNINGS
The Company recorded income before taxes, cumulative effect of changes in
accounting principles and extraordinary loss of $384 million in the first nine
months of 1996, up $61 million or 19% as compared to $323 million in the
comparable period of 1995. Excluding the pretax gain of $24 million on the sale
of the Viscosity Oil business in the third quarter of 1995, consolidated income
before taxes, changes in accounting principles and
15
<PAGE>
extraordinary loss increased $85 million or 28% over the comparable period in
1995. Income before cumulative effect of changes in accounting principles and
extraordinary loss for the first nine months of 1996 was $247 million, down $21
million from the $268 million reported for the first nine months of 1995. The
$21 million decrease in income is primarily due to the third quarter 1995 gain
on the sale of the Viscosity Oil business in that period, as well as a
significant increase in the Company's effective income tax rate in 1996. Income
tax expense in 1995 was largely impacted by a reduction in the tax valuation
reserve. Primary earnings per share before accounting changes and extraordinary
loss was $3.28 per share for the first nine months of 1996 as compared to $3.67
per share for the first nine months of 1995. The decrease in primary earnings
per share is largely due to the significant increase in the Company's effective
income tax rate in 1996 as compared to the comparable period in 1995, as well
as an increase in the number of common shares outstanding.
Net income in the first nine months of 1996 was $214 million with primary
earnings per share of $2.83 per share, versus net income and primary earnings
per share of $259 million and $3.55, respectively, in the first nine months of
1995. In January 1996, the Company repurchased for cash all of its 10 1/2%
Senior Subordinated Notes. As a result of the repurchase, Case recorded an
extraordinary loss of $22 million, after tax. In August 1996, the Company
established new credit facilities consisting of $3.4 billion in lines of credit
and liquidity facilities. In conjunction with this refinancing, the Company
recorded an $11 million extraordinary after-tax charge in the third quarter of
1996 for the write-off of unamortized bank fees related to the original bank
agreements established at the time of the Company's initial public offering in
June 1994. Effective January 1, 1995, Case adopted Statement of Financial
Accounting Standards ("SFAS") No. 106, "Employers' Accounting for
Postretirement Benefits other than Pensions," for its non-U.S. plans. The
cumulative effect of adopting this standard was to decrease net income by $9
million, after tax, in the first nine months of 1995.
The Company's industrial operations recorded income before cumulative effect
of changes in accounting principles, extraordinary loss and equity income of
Case Credit of $179 million in the first nine months of 1996 as compared to
$197 million in the same period of 1995. Year-to-date, Case Industrial's 1996
income tax expense of $100 million was $94 million higher than the $6 million
reported in the first nine months of 1995. The industrial effective income tax
rate increased significantly from the 3% effective income tax rate in the first
nine months of 1995 to 36% in the first nine months of 1996 primarily due to a
reversal of the tax valuation reserve in 1995. Excluding the one-time gain on
the sale of the Viscosity Oil business in 1995, Case Industrial's income before
taxes, cumulative effect of changes in accounting principles, extraordinary
loss and equity income of Case Credit for the first nine months of 1996
increased $100 million or 56% as compared to the same period in 1995.
Case's operating earnings for the first nine months of 1996 were $416
million, up $36 million or 9% as compared to the $380 million reported in the
first nine months of 1995. Case defines operating earnings as industrial
earnings before interest, taxes, changes in accounting principles and
extraordinary loss, including the income of Case Credit on an equity basis.
Case's operating earnings for the first nine months of 1996, excluding the $24
million pretax gain on the sale of the Viscosity Oil business in 1995, were up
17% or $60 million as compared to the comparable period in 1995. Case's
operating earnings improvement primarily resulted from improved pricing,
manufacturing efficiencies and restructuring and other cost savings. These
improvements were partially offset by inflationary increases and higher
research and development spending
A reconciliation of the Company's industrial net income to operating earnings
is as follows (in millions):
<TABLE>
<CAPTION>
CASE
INDUSTRIAL
-----------
NINE MONTHS
ENDED
SEPTEMBER
30,
-----------
1996 1995
----- -----
<S> <C> <C>
Income before cumulative effect of changes in accounting
principles and
extraordinary loss.......................................... $ 247 $ 268
Income tax provision......................................... 100 6
Interest expense............................................. 69 106
----- -----
Operating earnings........................................... $ 416 $ 380
===== =====
</TABLE>
16
<PAGE>
REVENUES
On a consolidated basis, worldwide revenues increased $58 million in the
first nine months of 1996 to $3,836 million as compared to the first nine
months of 1995. Net sales of equipment and parts decreased $3 million to $3,652
million. This decrease in net sales is comprised of a 3% decrease resulting
from the divestiture of company-owned retail stores and the sale of Viscosity
Oil in 1995, offset by a 3% improvement in price realization.
In North America, net sales of agricultural equipment and construction
equipment decreased 13% and 3%, respectively, for the first nine months of 1996
versus the comparable period in 1995. The Company's progress in implementing
its supply chain management initiatives has enabled Case to lower production
relative to 1995 levels, resulting in lower wholesale (dealer) sales. As a
result, Case reported lower wholesale (dealer) sales for the first nine months
of 1996 than would have been reported had production levels remained constant
with year-to-date 1995 levels. In the near-term, Case's supply chain management
initiative will continue to have a significant impact on the Company's
operating results.
In Europe, net sales of agricultural equipment in the first nine months of
1996 increased 4% over the first nine months of 1995, while net sales of
construction equipment decreased 19% as compared to the same period in 1995.
Sales of both agricultural and construction equipment were negatively impacted
by the year-over-year change in exchange rates. The overall net increase in
agricultural equipment sales was driven by 120-plus horsepower tractors, cotton
pickers and combines. The decrease in construction equipment sales also
reflects the continued weakness of the European construction equipment market,
particularly in France and Germany.
In Case's other international markets, sales of agricultural equipment in the
first nine months of 1996 more than doubled, and sales of construction
equipment increased 19% as compared to the first nine months of 1995. The
increase in agricultural sales resulted from significant increases in sales of
120-plus horsepower tractors, four-wheel-drive tractors, combines, sugar cane
harvesters and cotton pickers. Sales in the Asia Pacific region were
particularly strong due to improved crop prices and favorable weather
conditions. The increase in construction equipment sales was primarily due to
increases in sales of loader/backhoes and crawlers in the Asia Pacific and
Latin American regions, along with improvements in the Brazilian economy from
the severe weakness in the second half of 1995. The Company experienced
increases in retail unit sales in most product lines during the first nine
months of 1996 as compared to the same period in 1995.
COSTS AND EXPENSES
Cost of goods sold for the industrial operations decreased $28 million to
$2,776 million in the first nine months of 1996 as compared to the same period
in 1995. Cost of goods sold as a percentage of net sales decreased to 76% from
76.7% in the first nine months of 1995. This decrease reflects manufacturing
efficiencies, pricing actions, and restructuring and other cost improvement
initiatives, partially offset by inflationary cost increases and the impact of
the sale of company-owned retail stores.
Selling, general and administrative expenses for the Company's industrial
operations decreased $54 million in the first nine months of 1996 to $423
million as compared to the same period in 1995. As a percentage of net sales,
selling, general and administrative expenses decreased to 11.6% in the first
nine months of 1996 as compared to 13.1% in the first nine months of 1995. This
decrease reflects lower retail selling expenses as a result of restructuring-
related sales of company-owned retail stores, partially offset by acquisition-
related expenses. In addition, selling expenses related to the low-rate and
other sales financing programs for the first nine months of 1996 have also
decreased as compared to the same period in 1995. Case Industrial makes
payments to Case Credit in an amount equal to the difference between the rate
actually paid by retail customers and the rate charged by Case Credit.
Research, development and engineering expenses increased 25% to $140 million
in the first nine months of 1996 as compared to the first nine months of 1995.
The increased expenditures primarily relate to new product development.
17
<PAGE>
Interest expense for Case's industrial company was $69 million for the first
nine months of 1996, $37 million or 35% lower than the same period in 1995.
The decreased interest expense was due to lower average debt levels in the
first nine months of 1996 as compared to the first nine months of 1995, and to
strategic refinancing actions.
The consolidated effective income tax rate for the first nine months of 1996
was 36% compared to 17% for the first nine months of 1995. The 1996 effective
income tax rate was slightly higher than the U.S. statutory rate of 35%
primarily due to state income taxes and foreign income taxed at different
rates, partially offset by the recognition of research and development tax
credits, tax savings related to the Company's foreign sales corporation and
reductions in tax valuation reserves relating to foreign subsidiaries. In the
first nine months of 1995, the effective income tax rate was significantly
lower than the U.S. statutory rate primarily due to reductions in the tax
valuation reserve in 1995 that resulted from income generated in certain tax
jurisdictions.
RESTRUCTURING PROGRAM
During the first nine months of 1996, restructuring-related actions included
the divestiture of 30 company-owned retail stores. The Vierzon, France,
manufacturing facility was closed during the first half of 1996 and
loader/backhoe production was transferred to the Crepy, France, facility.
Regional North American depots are supplying component parts to dealers that
were previously supplied by the Racine, Wisconsin, parts depot. The Company
previously announced it's intention to close the Racine parts depot in 1996.
CREDIT OPERATIONS
Case Credit recorded net income of $65 million in the first nine months of
1996 versus $71 million in the first nine months of 1995. The $6 million
decrease in year-over-year net income is primarily due to higher interest
rates resulting in smaller gains on asset-backed securitizations. In addition,
earnings for the first nine months of 1996 were impacted by higher operating
expenses as a result of depreciation expense for equipment on operating leases
relating to Case Credit's larger operating lease portfolio. The third quarter
of 1996 also includes a $3 million extraordinary after-tax charge to write-off
unamortized bank fees in conjunction with the refinancing of the Company's
credit facilities in August 1996.
Case Credit reported revenues of $186 million for the first nine months of
1996, up $21 million as compared to $165 million in the first nine months of
1995. The 13% year-over-year increase in revenues was due to significantly
higher finance income on retail notes and leases as well as increased revenues
from Case Credit's growing equipment leasing program. These revenue increases
were partially offset by lower gains on asset-backed securitizations and a
decrease in interest income from Case Corporation as a result of Case Credit
originating a greater percentage of full-rate contracts.
Interest expense for the first nine months of 1996 was $53 million versus
$29 million in the first nine months of 1995. The increased interest expense
primarily resulted from higher average debt levels during the first nine
months of 1996 as compared to the first nine months of 1995 to support the
increase in Case Credit's serviced portfolio.
As of September 30, 1996, Case Credit's serviced portfolio increased 17%
over the same time last year to a record $4.1 billion. Equipment acquisitions
in the first nine months of 1996 were up 18 % to $ 1.9 billion versus the same
period in 1995. Portfolio losses for the first nine months of 1996 were $2.3
million versus $1.3 million for the first nine months of 1995. This represents
a loss to liquidation ratio of 0.15% in both the first nine months of 1996 and
the first nine months of 1995.
LIQUIDITY AND CAPITAL RESOURCES
The discussion of liquidity and capital resources focuses on the balance
sheets and statements of cash flows. Case's industrial operations are capital
intensive and subject to seasonal variations in financing requirements for
18
<PAGE>
dealer receivables and inventories. Whenever necessary, funds provided from
operations are supplemented from external sources.
In August 1996, the Company established new credit facilities consisting of
$3.4 billion in lines of credit and liquidity facilities. Of the $3.4 billion
total, $2.3 billion of the credit facilities will benefit Case Credit and its
Canadian subsidiary. The remaining $1.1 billion of credit facilities will be
used to support the Company's industrial operations. These facilities replace
borrowing agreements originally established at the time of the Company's
initial public offering in June 1994. The new agreements were negotiated at
more favorable terms and rates for the Company than previous credit
facilities.
Cash provided by operating activities was $3 million in the first nine
months of 1996. Cash provided by the industrial operations was $176 million,
versus $300 million for the same period in 1995. The cash generated in both
1996 and 1995 resulted from operating income and decreases in long-term
receivables partially offset by increases in inventory and receivables. In
addition, the first nine months of 1995 included the impact of the sale of
$400 million of wholesale receivables to a revolving asset-backed
securitization facility. Cash used by Case Credit was $153 million in the
first nine months of 1996 versus $78 million for the first nine months of
1995. In both periods cash was used to increase acquisitions of retail
receivables and leases.
During the first nine months of 1996, the Company completed three strategic
acquisitions resulting in $80 million of investment and an additional $15
million of non-cash consideration. In January, the Company acquired Concord,
Inc. ("Concord"), a manufacturer of air drills based in Fargo, North Dakota,
with annual sales of approximately $25 million. In the second quarter, the
Company's Australian subsidiary completed the acquisition of Austoft Holdings
Limited ("Austoft") of Australia, the world's largest manufacturer of sugar
cane harvesting equipment. Austoft had sales of approximately $74 million for
the fiscal year ended June 30, 1996. In the third quarter, Case acquired 75%
of Steyr Landmaschinentechnik AG ("Steyr"), an Austrian tractor manufacturer.
Steyr is based in St. Valentin, Austria and had revenues of approximately $176
million for the year ended December 31, 1995.
The Company issued common stock in conjunction with the purchase of Concord,
and also issued 566,100 shares in conjunction with an over-allotment option
exercised by the underwriters of a 15.2 million share offering of Case shares
held by Tenneco Inc. The Company received approximately $30 million in
proceeds from the exercise of the over-allotment options, which were offered
at $53.75 per share. The equity offering fully divested Tenneco Inc. of its
holdings in Case. In addition, common stock was issued in conjunction with
various employee benefit plans and the exercise of stock options.
The Company received proceeds from the issuance of long-term debt of $500
million during the first six months of 1996. In January, the Company issued
$300 million aggregate principal amount of 7 1/4% unsecured and unsubordinated
notes due 2016. In February, Case Credit issued $200 million aggregate
principal amount of its 6 1/8% unsecured and unsubordinated notes due 2003
pursuant to a $300 million shelf registration statement filed with the
Securities and Exchange Commission in 1995. The net proceeds from the offering
were used to repay indebtedness and finance Case Credit's growing portfolio of
receivables.
The Company repaid $644 million of long-term debt during the first nine
months of 1996. Of this $644 million, $324 million related to the repayment in
full of the $1.0 billion term loan established at the time of the Company's
initial public offering in June 1994. Case did not incur any prepayment
penalties as a result of this repayment. The proceeds from the January 1996
$300 million note offering, together with cash and additional borrowings under
the Company's credit facilities, were used to exercise the Company's option to
repurchase for cash all of the Company's 10 1/2% Senior Subordinated Notes and
to pay accrued interest thereon. As a result of this repurchase, the Company
recorded an extraordinary after-tax charge of $22 million.
Total debt at September 30, 1996, was $2,114 million, $1,093 million of
which related to Case Credit. The consolidated debt to capitalization ratio,
defined as total debt divided by the sum of total debt, stockholders' equity
and preferred stock with mandatory redemption provisions, was 53.1% at
September 30, 1996 versus
19
<PAGE>
54.8% at the same time in 1995. The Company's industrial debt to capitalization
ratio was 35.4% at September 30, 1996, as compared to 47% at September 30,
1995. The consolidated and industrial debt to capitalization ratios at December
31, 1995 were 54.9% and 39.3%, respectively.
FUTURE LIQUIDITY AND CAPITAL RESOURCES
The Company has various sources of future liquidity including the asset-
backed securitization markets, public debt offerings and other available lines
of credit. In addition, the Company has a $400 million private, revolving
wholesale receivable asset-backed securitization facility that can be utilized
to periodically sell wholesale (dealer) receivables to third party investors.
Also, the Company anticipates that it will continue to pool retail receivables
and issue asset-backed securities in the United States and Canada depending
upon the availability of the asset-backed securities market. Case Credit may
also issue additional debt securities of up to $100 million aggregate principal
amount under the registration statement previously mentioned.
In October 1996 the Company acquired Fermec Holdings Limited ("Fermec"), a
U.K. construction equipment manufacturer. Fermec is based in Manchester, United
Kingdom, and had revenues of approximately $155 million for the fiscal year
ended September 30, 1995.
Case Credit intends to enter into a $1.2 billion commercial paper program in
the fourth quarter of 1996. Case Credit plans to use the proceeds from this
program to reduce outstanding bank borrowings under Case Credit's five-year,
$1.2 billion revolving credit facility and for other working capital purposes.
OUTLOOK
Strong fundamentals are expected to continue to drive growth in Case's
markets during the remainder of 1996.
Growing worldwide demand for grains and other agricultural products combined
with low carryover stocks of grains and poor planting conditions in some parts
of the world, together with continued growth in food demand, have supported
favorable agricultural commodity prices during the year. This is expected to
sustain demand for agricultural equipment for the foreseeable future in
virtually all parts of the world. Net farm income is expected to rise,
especially in North America where farmers will benefit from market transition
payments received under the new Farm Bill.
The construction equipment segment outlook will vary according to general
economic conditions in key markets. The North American market for light-to-
medium construction equipment is expected to be generally stable to improving,
due to a sustained housing market and reasonable interest rate environment. In
Europe, the Company believes the construction market could continue to
experience significant weakness, particularly in France, if lower interest
rates do not generate economic growth. In Case's other markets outside of
western Europe and North America, the Company expects generally favorable
conditions.
The information included in this outlook section is forward looking and
involves risks and uncertainties that could significantly impact expected
results. The Company's outlook is predominantly based on its interpretation of
what it considers key economic assumptions. Crop production and commodity
prices are strongly affected by weather and can fluctuate significantly.
Housing starts and other construction activity are sensitive to interest rates,
government spending and general economic conditions. Some of the other
significant factors for the Company include foreign currency movements,
political uncertainty and civil unrest in various areas of the world, pricing,
product initiatives and other actions taken by competitors, disruptions in
production capacity, excess inventory levels, the effect of changes in laws and
regulations (including government subsidies and international trade
regulations), changes in environmental laws, employee relations and other
factors.
20
<PAGE>
OTHER MATTERS
During the third quarter of 1996, Case Credit announced a joint venture with
the Association of Banks of Uzbekistan. The new company, UzCaseagroleasing,
will provide financing for Case agricultural equipment in Uzbekistan.
PART II
OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
For a description of legal proceedings to which the Company is party, see
footnote 7 to the financial statements included in this Form 10-Q.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits.
A list of the exhibits included as part of this Form 10-Q is set forth in the
Index to Exhibits that immediately precedes such exhibits, which is
incorporated herein by reference.
(b) Reports on Form 8-K.
The Company did not file any Current Reports on Form 8-K during the third
quarter ended September 30, 1996.
21
<PAGE>
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934, THE
REGISTRANT HAS DULY CAUSED THIS REPORT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED THEREUNTO DULY AUTHORIZED.
Case Corporation
/s/ Theodore R. French
By___________________________________
Theodore R. French
Senior Vice President and
Chief Financial Officer
(Principal Financial Officer
and authorized signatory
for Case Corporation)
Date: November 8, 1996
22
<PAGE>
EXHIBIT INDEX
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EXHIBIT
- -------
NUMBER DESCRIPTION OF EXHIBITS
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<C> <S>
4(a) The Company hereby agrees to furnish to the Securities and
Exchange Commission, upon its request, the instruments with
respect to certain indebtedness issued by its subsidiaries, which
indebtedness does not exceed 10% of the Company's total consolidated
assets.
10(a) Revolving Credit and Guarantee Agreement, dated as of August
23, 1996, among Case Corporation, certain Foreign Subsidiary
Borrowers from time to time parties thereto, the Co-Agents and
Lead Managers named therein, the Bank of Nova Scotia, as
Canadian Administrative Agent, and The Chase Manhattan Bank, as
General Administrative Agent.
10(b) Revolving Credit and Guarantee Agreement, dated as of August
23, 1996, among Case Credit Corporation, certain Foreign
Subsidiary Borrowers from time to time parties thereto, the
Lenders parties thereto, the Co-Agents and Lead Managers named
therein, and The Chase Manhattan Bank, as Administrative Agent.
10(c) Revolving Credit Agreement, dated as of August 23, 1996, among
Case Credit Ltd., the Lenders parties thereto, the Canadian
Imperial Bank of Commerce, as Co-Agent, and The Bank of Nova
Scotia, as Agent.
10(d) Second Amendment and Consent, dated as of August 28, 1996,
among Case Equipment Loan Trust 1994-B, the Lenders parties
thereto, the Co-Agents named therein and The Chase Manhattan
Bank, as Administrative Agent, amending the Liquidity Agreement,
dated as of June 23, 1994, as previously amended, among Case
Equipment Loan Trust 1994-B, the Lenders parties thereto, and
The Chase Manhattan Bank (f/k/a Chemical Bank), as
Administrative Agent.
11 Computation of Earnings Per Share of Common Stock.
12 Computation of Ratio of Earnings to Fixed Charges and Preferred
Dividends.
27 Financial Data Schedule
</TABLE>
<PAGE>
EXHIBIT 10(a)
[CONFORMED COPY]
================================================================================
CASE CORPORATION
CASE CANADA CORPORATION/CORPORATION CASE CANADA
THE FOREIGN SUBSIDIARY BORROWERS
--------------------------
$1,100,000,000
REVOLVING CREDIT AND GUARANTEE AGREEMENT
Dated as of August 23, 1996
--------------------------
THE CO-AGENTS AND
LEAD MANAGERS NAMED HEREIN,
THE CHASE MANHATTAN BANK,
as General Administrative Agent
and
THE BANK OF NOVA SCOTIA,
as Canadian Administrative Agent
================================================================================
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SECTION 1. DEFINITIONS..................................................... 1
1.1 Defined Terms................................................... 1
1.2 Other Definitional Provisions................................... 34
SECTION 2. AMOUNT AND TERMS OF U.S. REVOLVING CREDIT COMMITMENTS........... 34
2.1 U.S. Revolving Credit Commitments............................... 34
2.2 Repayment of U.S. Revolving Credit Loans; Evidence of Debt...... 35
2.3 Procedure for U.S. Revolving Credit Borrowing................... 36
2.4 Termination or Reduction of U.S. Revolving Credit Commitments... 36
2.5 Borrowings of U.S. Revolving Credit Loans and Refunding of
Loans........................................................... 7
SECTION 3. AMOUNT AND TERMS OF SWING LINE COMMITMENTS...................... 40
3.1 Swing Line Commitments.......................................... 40
3.2 Procedure for Swing Line Borrowings; Interest Rate.............. 40
3.3 Repayment of Swing Line Loans; Evidence of Debt................. 40
3.4 Refunding of Swing Line Borrowings.............................. 41
3.5 Participating Interests......................................... 42
3.6 No Swing Line Loans After Notice of Default..................... 43
SECTION 4. AMOUNT AND TERMS OF CAF ADVANCES................................ 43
4.1 CAF Advances.................................................... 43
4.2 Procedure for CAF Advance Borrowing............................. 43
4.3 CAF Advance Payments............................................ 46
4.4 Evidence of Debt................................................ 47
4.5 Certain Restrictions............................................ 47
SECTION 5. AMOUNT AND TERMS OF THE CANADIAN COMMITMENTS.................... 47
5.1 Canadian Revolving Credit Commitments........................... 47
5.2 Repayment of Canadian Revolving Credit Loans; Evidence of Debt.. 48
5.3 Procedure for Canadian Revolving Credit Borrowing............... 49
5.4 Termination or Reduction of Canadian Revolving
Credit Commitments............................................. 49
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SECTION 6. AMOUNT AND TERMS OF CANADIAN
ACCEPTANCE FACILITY............................................. 50
6.1 Acceptance Commitments.......................................... 50
6.2 Creation of Acceptances......................................... 50
6.3 Discount of Acceptances......................................... 51
6.4 Stamping Fees................................................... 52
6.5 Acceptance Reimbursement Obligations............................ 52
6.6 Converting Canadian Revolving Credit Loans
to Acceptances and Acceptances to
Canadian Revolving Credit Loans................................ 54
6.7 Acceptances to be Supplemented by Canadian
Revolving Credit Loans in order to
be Created Ratably............................................. 54
6.8 Special Provisions Relating to Acceptance Notes................. 55
SECTION 7. AMOUNT AND TERMS OF MULTICURRENCY
COMMITMENT...................................................... 56
7.1 Multicurrency Commitments....................................... 56
7.2 Repayment of Multicurrency Loans;
Evidence of Debt.............................................. 56
7.3 Procedure for Multicurrency Borrowing........................... 57
7.4 Termination or Reduction of Multicurrency
Commitments.................................................... 57
SECTION 8. ALTERNATE CURRENCY FACILITIES................................... 58
8.1 Terms of Alternate Currency Facilities.......................... 58
8.2 Reporting of Alternate Currency Outstandings.................... 59
SECTION 9. GENERAL PROVISIONS APPLICABLE TO LOANS.......................... 60
9.1 Interest Rates and Payment Dates................................ 60
9.2 Conversion and Continuation Options............................. 61
9.3 Minimum Amounts of Tranches..................................... 62
9.4 Optional and Mandatory Prepayments.............................. 62
9.5 Facility Fees; Other Fees....................................... 65
9.6 Computation of Interest and Fees................................ 66
9.7 Inability to Determine Interest Rate............................ 67
9.8 Pro Rata Treatment and Payments................................. 68
9.9 Illegality...................................................... 70
9.10 Requirements of Law............................................. 71
9.11 Taxes........................................................... 72
9.12 Indemnity....................................................... 74
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9.13 Change of Lending Office........................................ 75
9.14 Substitution of Lender.......................................... 75
9.15 Use of Proceeds................................................. 76
SECTION 10. REPRESENTATIONS AND WARRANTIES.................................. 76
10.1 Financial Condition............................................. 76
10.2 No Change....................................................... 77
10.3 Corporate Existence; Compliance with Law........................ 77
10.4 Corporate Power; Authorization;
Enforceable Obligations........................................ 77
10.5 No Legal Bar.................................................... 77
10.6 No Material Litigation.......................................... 78
10.7 No Default...................................................... 78
10.8 Taxes........................................................... 78
10.9 Federal Regulations............................................. 78
10.10 ERISA........................................................... 78
10.11 Investment Company Act; Other Regulations....................... 79
10.12 Environmental Matters........................................... 79
SECTION 11. CONDITIONS PRECEDENT............................................ 80
11.1 Conditions to Effectiveness of this Agreement................... 80
11.2 Conditions to Each Extension of Credit.......................... 81
SECTION 12. AFFIRMATIVE COVENANTS........................................... 82
12.1 Financial Statements............................................ 82
12.2 Certificates; Other Information................................. 83
12.3 Payment of Obligations.......................................... 83
12.4 Conduct of Business and Maintenance of Existence................ 84
12.5 Maintenance of Property; Insurance.............................. 84
12.6 Inspection of Property; Books and
Records; Discussions........................................... 84
12.7 Notices......................................................... 84
12.8 Environmental Laws.............................................. 85
12.9 Foreign Subsidiary Opinions..................................... 85
SECTION 13. NEGATIVE COVENANTS.............................................. 85
13.1 Financial Condition Covenants................................... 85
13.2 Restrictions on Secured Funded Debt............................. 86
13.3 Limitation on Sales and Leasebacks.............................. 88
13.4 Restrictions on Funded Debt of Certain
Restricted Subsidiaries........................................ 89
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13.5 Ownership of Case Credit...................................... 89
13.6 Limitation on Fundamental Changes............................. 89
SECTION 14. GUARANTEE.................................................... 90
14.1 Guarantee..................................................... 90
14.2 Right of Set-off.............................................. 90
14.3 No Subrogation................................................ 91
14.4 Amendments, etc. with respect to the Obligations;
Waiver of Rights............................................ 91
14.5 Guarantee Absolute and Unconditional.......................... 92
14.6 Reinstatement................................................. 93
14.7 Payments...................................................... 93
SECTION 15. EVENTS OF DEFAULT............................................ 93
SECTION 16. THE ADMINISTRATIVE AGENTS; THE CO-AGENTS
AND LEAD MANAGERS; THE SWING LINE LENDERS.................... 96
16.1 Appointment.................................................. 96
16.2 Delegation of Duties......................................... 97
16.3 Exculpatory Provisions....................................... 97
16.4 Reliance by Administrative Agent............................. 97
16.5 Notice of Default............................................ 98
16.6 Non-Reliance on Administrative Agents and Other Lender....... 98
16.7 Indemnification.............................................. 99
16.8 Administrative Agents in their Individual Capacity........... 99
16.9 Successor Administrative Agents.............................. 99
16.10 The Co-Agents and Lead Managers.............................. 100
16.11 Swing Line Lenders........................................... 100
SECTION 17. MISCELLANEOUS................................................ 100
17.1 Amendments and Waivers....................................... 100
17.2 Notices...................................................... 102
17.3 No Waiver; Cumulative Remedies............................... 104
17.4 Survival of Representations and Warranties................... 104
17.5 Payment of Expenses and Taxes................................ 104
17.6 Successors and Assigns; Participations and Assignments....... 105
17.7 Adjustments; Set-Off......................................... 109
17.8 Loan Conversion/Participations............................... 109
17.9 Counterparts................................................. 111
17.10 Severability................................................. 111
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17.11 Integration.................................................. 111
17.12 GOVERNING LAW................................................ 111
17.13 Submission To Jurisdiction; Waivers.......................... 112
17.14 Acknowledgements............................................. 112
17.15 WAIVERS OF JURY TRIAL........................................ 113
17.16 Power of Attorney............................................ 113
17.17 Existing Credit Agreement.................................... 113
17.18 Judgment..................................................... 113
</TABLE>
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ANNEXES:
A Refunding Mechanics
SCHEDULES:
I Commitments; Addresses
II Foreign Subsidiary Borrowers
III Administrative Schedule
10.4 Consents
EXHIBITS:
A Form of U.S. Revolving Credit Note
B Form of Canadian Revolving Credit Note
C Form of Draft
D Form of Power of Attorney
E Form of Acceptance Note
F Form of CAF Advance Request
G Form of CAF Advance Offer
H Form of CAF Advance Confirmation
I Form of Joinder Agreement
J Form of Alternate Currency Facility Addendum
K Form of Assignment and Acceptance
L Form of Opinion of Richard S. Brennan, Esq.
M Form of Opinion of Fraser & Beatty
N Form of Opinion of Mayer, Brown & Platt
O Matters to be Covered by Foreign Subsidiary Opinion
</TABLE>
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<PAGE>
REVOLVING CREDIT AND GUARANTEE AGREEMENT, dated as of August 23, 1996,
among CASE CORPORATION, a Delaware corporation (the "U.S. Borrower"), CASE
CANADA CORPORATION/CORPORATION CASE CANADA, a company organized under the laws
of the province of Ontario, Canada (the "Canadian Borrower"), each FOREIGN
SUBSIDIARY BORROWER (as hereinafter defined) (together with the U.S. Borrower
and the Canadian Borrower, the "Borrowers"), the Co-Agents named on the
signature pages hereof (the "Co-Agents"), the Lead Managers named on the
signature pages hereof (the "Lead Managers"), the several banks and other
financial institutions from time to time parties hereto (the "Lenders") and THE
BANK OF NOVA SCOTIA, a Canadian chartered bank (as hereinafter defined, the
"Canadian Administrative Agent") and THE CHASE MANHATTAN BANK, a New York
banking corporation (as hereinafter defined, the "General Administrative
Agent"), as administrative agents for the Lenders hereunder.
W I T N E S S E T H :
-------------------
WHEREAS, the U.S. Borrower and the Canadian Borrower are parties to
the Second Amended and Restated Revolving Credit and Term Loan Agreement, dated
as of September 15, 1995, as amended (the "Existing Credit Agreement") with the
several banks and other financial institutions party thereto (the "Existing
Lenders"), the Co-Agents named therein and Royal Bank of Canada and The Chase
Manhattan Bank (f/k/a Chemical Bank), as the administrative agents for the
Existing Lenders; and
WHEREAS, in accordance with subsection 17.17, the Existing Credit
Agreement shall terminate on the Effective Date (as hereinafter defined);
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"ABR Loans": U.S. Revolving Credit Loans or Swing Line Loans the rate
of interest applicable to which is based upon the Alternate Base Rate.
"Acceptance Note": as defined in subsection 6.8(b).
"Acceptance Purchase Price": in respect of an Acceptance of a
specified maturity, the result (rounded to the nearest whole cent, and with
one-half cent being rounded up) obtained by dividing the face amount of
such Acceptance by the sum of (a) one and (b) the product of (i) the
Reference Discount Rate for Acceptances of the same maturity expressed as a
decimal and (ii) a fraction, the numerator of which is the term to maturity
of such Acceptance and the denominator of which is equal to 365.
<PAGE>
2
"Acceptance Reimbursement Obligations": the obligation of the
Canadian Borrower to the Canadian Lenders (a) to reimburse the Canadian
Lenders for maturing Acceptances pursuant to subsection 6.5 and (b) to make
payments in respect of the Acceptance Notes in accordance with the terms
thereof.
"Acceptance Tranches": the collective reference to Acceptances all of
which were created on the same date and have the same maturity date.
"Acceptances": a Draft drawn by the Canadian Borrower and accepted by
a Canadian Lender which is (a) denominated in Canadian Dollars, (b) for a
term of not less than 30 days nor more than 180 days and which matures
prior to the Revolving Credit Termination Date and (c) issuable and payable
only in Canada; provided that (i) to the extent the context shall require,
each Acceptance Note shall be deemed to be an Acceptance and (ii) each
Existing Acceptance shall be deemed to be an Acceptance outstanding under
this Agreement to the extent provided in Annex A.
"Acceptances to be Converted": as defined in subsection 17.8(a).
"Additional Amounts": as defined in subsection 9.11(a).
"Adjusted Aggregate Committed Outstandings": with respect to each
Lender, the Aggregate Committed Outstandings of such Lender, plus the
amount of any participating interests purchased by such Lender pursuant to
subsection 17.8, minus the amount of any participating interests sold by
such Lender pursuant to subsection 17.8.
"Adjusted Consolidated Net Worth": as at any date of determination
thereof, Consolidated Net Worth; provided, that any unusual non-cash
charges incurred by the U.S. Borrower and its Consolidated Subsidiaries
after June 30, 1996 shall not reduce Adjusted Consolidated Net Worth
whether or not such charges would otherwise be deducted in accordance with
GAAP.
"Administrative Agents": the collective reference to the General
Administrative Agent and the Canadian Administrative Agent.
"Administrative Schedule": Schedule III, which contains interest rate
definitions and administrative information in respect of each Available
Foreign Currency.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. For purposes of this
definition, "control" of a Person means the power, directly or indirectly,
either to (a) vote 10% or more of the securities or other equity interests
having ordinary voting power for the election of directors or other
governing bodies of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
<PAGE>
3
"Aggregate Alternate Currency Outstandings": as at any date of
determination with respect to any U.S. Lender, an amount in the applicable
Alternate Currencies equal to the aggregate unpaid principal amount of such
U.S. Lender's Alternate Currency Loans.
"Aggregate Available Canadian Revolving Credit Commitments": as at
any date of determination with respect to all Canadian Lenders, an amount
in Canadian Dollars equal to the Available Canadian Revolving Credit
Commitments of all Canadian Lenders on such date.
"Aggregate Available Multicurrency Commitments": as at any date of
determination with respect to all Multicurrency Lenders, an amount in U.S.
Dollars equal to the Available Multicurrency Commitments of all
Multicurrency Lenders on such date.
"Aggregate Available U.S. Revolving Credit Commitments": as at any
date of determination with respect to all U.S. Lenders, an amount in U.S.
Dollars equal to the Available U.S. Revolving Credit Commitments of all
U.S. Lenders on such date.
"Aggregate Canadian Revolving Credit Outstandings": as at any date of
determination with respect to any Canadian Lender, an amount in Canadian
Dollars equal to the sum of the following, without duplication: (a) the
aggregate unpaid principal amount of such Canadian Lender's Canadian
Revolving Credit Loans on such date, (b) the aggregate undiscounted face
amount of all outstanding Acceptances of such Canadian Lender on such date
and (c) the aggregate unpaid principal amount of such Canadian Lender's
Acceptance Notes on such date.
"Aggregate Committed Outstandings": as at any date of determination
with respect to any Lender, an amount in U.S. Dollars equal to the sum of
(a) the Aggregate U.S. Revolving Credit Outstandings of such Lender, (b)
the U.S. Dollar Equivalent of the aggregate unpaid principal amount of the
Canadian Revolving Credit Loans of such Lender and such Lender's
Counterpart Lender, (c) the U.S. Dollar Equivalent of the Aggregate
Multicurrency Outstandings of such Lender and (d) the U.S. Dollar
Equivalent of the Aggregate Alternate Currency Outstandings of such Lender.
"Aggregate Multicurrency Outstandings": as at any date of
determination with respect to any U.S. Lender, an amount in the applicable
Available Foreign Currencies equal to the aggregate unpaid principal amount
of such U.S. Lender's Multicurrency Loans.
"Aggregate Total Outstandings": as at any date of determination with
respect to any Lender, an amount in U.S. Dollars equal to the sum of (a)
the Aggregate U.S. Outstandings of such Lender, (b) the U.S. Dollar
Equivalent of the Aggregate Canadian Revolving Credit Outstandings of such
Lender and such Lender's Counterpart Lender, (c) the U.S. Dollar Equivalent
of the Aggregate Multicurrency
<PAGE>
4
Outstandings of such Lender and (d) the U.S. Dollar Equivalent of the
Aggregate Alternate Currency Outstandings of such Lender.
"Aggregate U.S. Outstandings": as at any date of determination with
respect to any U.S. Lender, an amount in U.S. Dollars equal to the sum of
(a) the Aggregate U.S. Revolving Credit Outstandings of such Lender on such
date and (b) the aggregate unpaid principal amount of such U.S. Lender's
CAF Advances on such date.
"Aggregate U.S. Revolving Credit Commitments": the aggregate amount
of the U.S. Revolving Credit Commitments of all the Lenders.
"Aggregate U.S. Revolving Credit Outstandings": as at any date of
determination with respect to any U.S. Lender, an amount in U.S. Dollars
equal to the sum of (a) the aggregate unpaid principal amount of such U.S.
Lender's U.S. Revolving Credit Loans on such date and (b) such U.S.
Lender's Swing Line Participation Percentage of the aggregate unpaid
principal amount of all Swing Line Loans on such date.
"Agreement": this Revolving Credit and Guarantee Agreement, as the
same may be amended, supplemented or otherwise modified from time to time.
"Agreement Currency": as defined in subsection 17.18(b).
"Alternate Base Rate": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of:
(a) the U.S. Prime Rate in effect on such day;
(b) the Base CD Rate in effect on such day plus 1%; and
(c) the Federal Funds Effective Rate in effect on such day plus
1/2 of 1%.
For purposes of this definition, the following terms have the
following meanings:
"Base CD Rate": the sum of (a) the product of (i) the Three-
Month Secondary CD Rate and (ii) a fraction, the numerator of which is
one and the denominator of which is one minus the CD Reserve
Percentage and (b) the CD Assessment Rate.
"CD Assessment Rate": for any day as applied to any calculation
of the Base CD Rate, the annual assessment rate (rounded upwards, if
necessary, to the next 1/100 of 1%) in effect on such day which is
payable by a member of the Bank Insurance Fund maintained by the
Federal Deposit Insurance Corporation (the "FDIC") classified as well-
capitalized and within supervisory
<PAGE>
5
subgroup "B" (or a comparable successor assessment risk
classification) within the meaning of 12 C.F.R. (S) 327.3(d) (or any
successor provision) to the FDIC (or any successor) for the FDIC's (or
such successor's) insuring time deposits at offices of such
institution in the United States.
"CD Reserve Percentage": for any day as applied to any
calculation of the Base CD Rate, that percentage (expressed as a
decimal) which is in effect on such day, as prescribed by the Board
for determining the maximum reserve requirement for a Depositary
Institution (as defined in Regulation D of the Board) in respect of
new non-personal time deposits in Dollars having a maturity of 30 days
or more.
"Federal Funds Effective Rate": for any day, the weighted
average of the rates per annum on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds
brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for
the day of such transactions received by the General Administrative
Agent from three federal funds brokers of recognized standing selected
by it.
"Three-Month Secondary CD Rate": for any day, the secondary
market rate for three-month certificates of deposit reported as being
in effect on such day (or, if such day is not a Business Day, the next
preceding Business Day) by the Board through the public information
telephone line of the Federal Reserve Bank of New York (which rate
will, under the current practices of the Board, be published in
Federal Reserve Statistical Release H.15(519) during the week
following such day), or, if such rate is not so reported, the average
(rounded upwards to the nearest 1/100 of 1%) of the secondary market
quotations for three-month certificates of deposit of major money
center banks in New York City received at approximately 10:00 a.m.,
New York City time, on such day or next preceding Business Day by the
General Administrative Agent from three New York City negotiable
certificate of deposit dealers of recognized standing selected by it.
"U.S. Prime Rate": the rate of interest per annum publicly
announced from time to time by the General Administrative Agent as its
prime rate in effect at its principal office in New York City. The
U.S. Prime Rate is not intended to be the lowest rate of interest
charged by the General Administrative Agent in connection with
extensions of credit to debtors.
If for any reason the General Administrative Agent shall have determined
(which determination shall be conclusive absent manifest error) that it is
unable to ascertain the Federal Funds Effective Rate or the Base CD Rate
for any reason, including the inability or failure of the General
Administrative Agent to obtain sufficient quotations in accordance with the
terms thereof, the Alternate Base Rate shall be determined
<PAGE>
6
without regard to clause (b) or (c) above, or both, as appropriate, until
the circumstances giving rise to such inability no longer exist. Any change
in the Alternate Base Rate due to a change in the U.S. Prime Rate, the
Three-Month Secondary CD Rate or the Federal Funds Effective Rate shall be
effective as of the opening of business on the effective day of such change
in the U.S. Prime Rate, the Three-Month Secondary CD Rate or the Federal
Funds Effective Rate, respectively.
"Alternate Currency": Australian Dollars, Italian Lira, Belgian
Francs, Spanish Pesetas and any other available and freely convertible non-
U.S. Dollar currency selected by an Alternate Currency Borrower and
approved by the General Administrative Agent.
"Alternate Currency Borrower": each Subsidiary of the U.S. Borrower
organized under the laws of a jurisdiction outside the United States that
the U.S. Borrower designates as an "Alternate Currency Borrower" in an
Alternate Currency Facility Addendum, it being understood that no
Subsidiary of Case Credit shall be an Alternate Currency Borrower.
"Alternate Currency Facility": any Qualified Credit Facility that the
U.S. Borrower designates as an "Alternate Currency Facility" pursuant to an
Alternate Currency Facility Addendum.
"Alternate Currency Facility Addendum": an Alternate Currency
Facility Addendum received by the General Administrative Agent,
substantially in the form of Exhibit J, and conforming to the requirements
of Section 8.
"Alternate Currency Facility Agent": with respect to each Alternate
Currency Facility, the Alternate Currency Lender acting as agent for the
Alternate Currency Lenders parties thereto (and, in the case of any
Alternate Currency Facility to which only one Lender is a party, such
Lender).
"Alternate Currency Facility Maximum Borrowing Amount": as defined in
subsection 8.1(b).
"Alternate Currency Lender": any Lender (or, if applicable, any
affiliate, branch or agency thereof) party to an Alternate Currency
Facility.
"Alternate Currency Lender Maximum Borrowing Amount": as defined in
subsection 8.1(b).
"Alternate Currency Loan": any loan made pursuant to an Alternate
Currency Facility.
<PAGE>
7
"Applicable Margin": for each Type of Loan the rate per annum,
determined from time to time based upon the Ratings in effect by two then
nationally recognized rating agencies selected by the U.S. Borrower (at
least one of which shall be Moody's or S&P), set forth under the relevant
column heading below opposite such Ratings:
<TABLE>
<CAPTION>
Applicable Margin
Ratings (in percentages)
------- -----------------------------------
Multicurrency
Loans and ABR Loans and
S&P/Moody's* Eurodollar Loans Prime Rate Loans
------------ ----------------- -----------------
<S> <C> <C>
A/A2 0.155% 0.00%
A-/A3 0.170% 0.00%
BBB+/Baa1 0.200% 0.00%
BBB/Baa2 0.250% 0.00%
BBB-/Baa3 0.275% 0.00%
BB+/Ba1 0.425% 0.00%
BB/Ba2 (or lower) 0.575% 0.00%
</TABLE>
; provided that in the event that the Ratings of such then nationally
recognized rating agencies do not coincide, the Applicable Margin set forth
opposite the higher of such Ratings will apply; provided, further that, if
at any time an event occurs which results in there being no Ratings or only
one Rating in effect, not later than 30 days after the date on which such
event occurs (if only one Rating or no Rating remains in effect), a new
Applicable Margin will be determined in a manner to be mutually agreed upon
by the General Administrative Agent and the U.S. Borrower and consented to
by the Lenders, and until such new Applicable Margin shall be so agreed
upon, the Applicable Margin will be deemed to be the Applicable Margin in
effect immediately prior to the date on which such event occurs.
"Assignee": as defined in subsection 17.6(c).
"Attributable Debt": as to any particular lease under which either
the U.S. Borrower or any Restricted Subsidiary is at the time liable as
lessee for a term of more than 12 months and at any date as of which the
amount thereof is to be determined, the total net obligations of the lessee
for rental payments during the remaining term of the lease (excluding any
period for which such lease has been extended or may, at the option of the
lessor, be extended), discounted from the respective due dates thereof to
such determination date (such discount to be determined as set forth in the
Indenture). The net total obligations of the lessee for
- ---------------
* With respect to any nationally recognized rating agency other than Moody's
and S&P, such rating agency's Ratings which the U.S. Borrower and the
General Administrative Agent agree are the equivalent of the Ratings of S&P
and Moody's set forth in this column.
<PAGE>
8
rental payments under any such lease for any such period shall be the
aggregate amount of the rent payable by the lessee with respect to such
period after excluding amounts required to be paid on account of
maintenance and repairs, services, insurance, taxes, assessments, water
rates and similar charges and contingent rents (such as those based on
sales or monetary inflation). If any lease is terminable by the lessee
upon the payment of a penalty and under the terms of the lease the
termination right is not exercisable until after the determination date and
the amount of such penalty discounted to the determination date as provided
above is less than the net amount of rentals payable after the time as of
which such termination could occur (the "termination time") discounted to
the determination date as provided above, then such discounted penalty
amount shall be used instead of such discounted amount of net rentals
payable after the termination time in calculating the Attributable Debt for
such lease. If any lease is terminable by the lessee upon the payment of a
penalty and such termination right is exercisable on the determination date
and the amount of the net rentals payable under such lease after the
determination date discounted to the determination date as provided above
is greater than the amount of such penalty, the "Attributable Debt" for
such lease as of such determination date shall be equal to the amount of
such penalty.
"Available Canadian Revolving Credit Commitment": as at any date of
determination with respect to any Canadian Lender (after giving effect to
the making and payment of any U.S. Revolving Credit Loans required to be
made on such date pursuant to subsection 2.5), an amount in Canadian
Dollars equal to the excess, if any, of (a) the amount of such Canadian
Lender's Canadian Revolving Credit Commitment in effect on such date over
(b) the sum of (i) the Aggregate Canadian Revolving Credit Outstandings of
such Canadian Lender on such date, (ii) the Canadian Dollar Equivalent of
the Aggregate U.S. Revolving Credit Outstandings of such Canadian Lender's
Counterpart Lender on such date, (iii) the Canadian Dollar Equivalent of
the Aggregate Multicurrency Outstandings of such Canadian Lender's
Counterpart Lender on such date and (iv) the Canadian Dollar Equivalent of
the Aggregate Alternate Currency Outstandings of such Canadian Lender's
Counterpart Lender on such date.
"Available Foreign Currencies": Deutsche Marks, Pounds Sterling,
French Francs, and any other available and freely-convertible non-U.S.
Dollar currency selected by the U.S. Borrower and approved by the General
Administrative Agent and the Majority Multicurrency Lenders in the manner
described in subsection 17.1(b).
"Available Multicurrency Commitment": as at any date of determination
with respect to any Multicurrency Lender (after giving effect to the making
and payment of any U.S. Revolving Credit Loans required to be made on such
date pursuant to subsection 2.5), an amount in U.S. Dollars equal to the
lesser of (a) the excess, if any, of (i) the amount of such Multicurrency
Lender's Multicurrency Commitment in effect on such date over (ii) the U.S.
Dollar Equivalent of the Aggregate Multicurrency Outstandings of such
Multicurrency Lender on such date and (b) the excess, if any, of (i) the
amount of such U.S. Lender's U.S. Revolving Credit Commitment in effect on
<PAGE>
9
such date over (ii) the Aggregate Committed Outstandings of such U.S.
Lender on such date.
"Available Swing Line Participation Commitment": as at any date of
determination with respect to any U.S. Lender, an amount in U.S. Dollars
equal to the excess, if any, of (a) the amount of such U.S. Lender's U.S.
Revolving Credit Commitment in effect on such date, over (b) the sum of (i)
the aggregate unpaid principal amount of such U.S. Lender's U.S. Revolving
Credit Loans on such date, (ii) the U.S. Dollar Equivalent of the Aggregate
Canadian Revolving Credit Outstandings of the Counterpart Lender of such
U.S. Lender on such date, (iii) the U.S. Dollar Equivalent of the Aggregate
Multicurrency Outstandings of such U.S. Lender on such date and (iv) the
U.S. Dollar Equivalent of the Aggregate Alternate Currency Outstandings of
such U.S. Lender on such date.
"Available U.S. Revolving Credit Commitment": as at any date of
determination with respect to any U.S. Lender (after giving effect to the
making and payment of any U.S. Revolving Credit Loans required to be made
on such date pursuant to subsection 2.5), an amount in U.S. Dollars equal
to the excess, if any, of (a) the amount of such U.S. Lender's U.S.
Revolving Credit Commitment in effect on such date over (b) the Aggregate
Committed Outstandings of such U.S. Lender on such date.
"Bank Act (Canada)": the Bank Act (Canada), as amended from time to
time.
"Bank of America": Bank of America National Trust and Savings
Association.
"Benefitted Lender": as defined in subsection 17.7.
"Board": the Board of Governors of the Federal Reserve System (or any
successor thereto).
"Borrowers": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified in a notice pursuant to
subsection 2.3, 3.2, 4.2, 5.3 or 7.3 as a date on which a Borrower requests
the Lenders to make Loans hereunder or, with respect to a Request for
Acceptances, the date with respect to which the Canadian Borrower has
requested the Canadian Lenders to accept Drafts or, with respect to
Alternate Currency Loans, the date on which an Alternate Currency Borrower
requests Alternate Currency Lenders to make Alternate Currency Loans to
such Alternate Currency Borrower pursuant to the Alternate Currency
Facility to which such Alternate Currency Borrower and Alternate Currency
Lenders are parties.
"Business": as defined in subsection 10.12(a).
<PAGE>
10
"Business Day": (a) when such term is used in respect of a day on
which a Loan in an Available Foreign Currency or Alternate Currency is to
be made, a payment is to be made in respect of such Loan, an Exchange Rate
is to be set in respect of such Available Foreign Currency or Alternate
Currency or any other dealing in such Available Foreign Currency or
Alternate Currency is to be carried out pursuant to this Agreement, such
term shall mean a London Banking Day which is also a day on which banks are
open for general banking business in the city which is the principal
financial center of the country of issuance of such Available Foreign
Currency or Alternate Currency, (b) when such term is used in respect of a
day on which a Loan in Canadian Dollars is to be made or an Acceptance is
to be created, a payment is to be made in respect of such Loan or
Acceptance, an Exchange Rate is to be set in respect of Canadian Dollars or
any other dealing in Canadian Dollars is to be carried out pursuant to this
Agreement, such term shall mean a day other than a Saturday, Sunday or
other day on which commercial banks in Calgary, Alberta or Toronto, Ontario
are authorized or required by law to close, (c) when such term is used to
describe a day on which a borrowing, payment or interest rate determination
is to be made in respect of a LIBO Rate CAF Advance, such day shall be a
London Banking Day and (d) when such term is used in any context in this
Agreement (including as described in the foregoing clauses (a), (b) and
(c)), such term shall mean a day which, in addition to complying with any
applicable requirements set forth in the foregoing clauses (a), (b) and
(c), is a day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to
close.
"CAF Advance": each CAF Advance made pursuant to subsection 4.1.
"CAF Advance Availability Period": the period from and including the
Effective Date to and including the date which is 7 days prior to the
Revolving Credit Termination Date.
"CAF Advance Confirmation": each confirmation by the U.S. Borrower of
its acceptance of CAF Advance Offers, which confirmation shall be
substantially in the form of Exhibit H and shall be delivered to the
General Administrative Agent by facsimile transmission.
"CAF Advance Interest Payment Date": as to each CAF Advance, each
interest payment date specified by the U.S. Borrower for such CAF Advance
in the related CAF Advance Request.
"CAF Advance Maturity Date": as to any CAF Advance, the date
specified by the U.S. Borrower pursuant to paragraph 4.2(d)(ii) in its
acceptance of the related CAF Advance Offer.
"CAF Advance Offer": each offer by a Lender to make CAF Advances
pursuant to a CAF Advance Request, which offer shall contain the
information
<PAGE>
11
specified in Exhibit G and shall be delivered to the General Administrative
Agent by telephone, immediately confirmed by facsimile transmission.
"CAF Advance Request": each request by the U.S. Borrower for Lenders
to submit bids to make CAF Advances, which request shall contain the
information in respect of such requested CAF Advances specified in Exhibit
F and shall be delivered to the General Administrative Agent in writing, by
facsimile transmission, or by telephone, immediately confirmed by facsimile
transmission.
"Canadian Administrative Agent": The Bank of Nova Scotia, together
with its affiliates, as administrative agent for the Canadian Lenders under
this Agreement and the other Loan Documents, and any successor thereto
appointed pursuant to subsection 16.9.
"Canadian Borrower": as defined in the preamble hereto.
"Canadian Dollars" and "C$": dollars in the lawful currency of Canada.
"Canadian Dollar Equivalent": with respect to an amount denominated in
any currency other than Canadian Dollars, the equivalent in Canadian
Dollars of such amount determined at the Exchange Rate on the date of
determination of such equivalent.
"Canadian Lenders": the Lenders listed in Part B of Schedule I hereto.
"Canadian Reference Lenders": the collective reference to the Schedule
I Canadian Reference Lenders and the Schedule II Canadian Reference
Lenders.
"Canadian Revolving Credit Commitment": as to any Canadian Lender at
any time, its obligation to make Canadian Revolving Credit Loans to, and/or
create Acceptances and discount on behalf of (or, in lieu thereof, to make
loans pursuant to the Acceptance Notes to), the Canadian Borrower, in an
aggregate amount not to exceed at any one time outstanding the Canadian
Dollar Equivalent of the U.S. Dollar amount set forth opposite such
Canadian Lender's name in Schedule I under the heading "Canadian Revolving
Credit Commitment", as such amount may be reduced from time to time as
provided in subsection 5.4 and the other applicable provisions hereof.
"Canadian Revolving Credit Commitment Percentage": as to any Canadian
Lender at any time, the percentage which such Canadian Lender's Canadian
Revolving Credit Commitment then constitutes of the aggregate Canadian
Revolving Credit Commitments (or, if the Canadian Revolving Credit
Commitments have terminated or expired, the percentage which (a) the
Aggregate Canadian Revolving Credit Outstandings of such Canadian Lender at
such time constitutes of (b) the Aggregate Canadian Revolving Credit
Outstandings of all Canadian Lenders at such time).
<PAGE>
12
"Canadian Revolving Credit Loan": as defined in subsection 5.1.
"Canadian Revolving Credit Note": as defined in subsection 5.2(e).
"Capital Lease Obligations": of the U.S. Borrower or any Restricted
Subsidiary, 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 Agreement, the amount of such obligation shall be
the capitalized amount thereof, determined in accordance with generally
accepted accounting principles (including such Statement No. 13).
"Case Credit": Case Credit Corporation, a Delaware corporation.
"CDC": Consolidated Diesel Company, a North Carolina general
partnership.
"CDOR Rate": that annual rate of interest equal to the average "BA 1
Month" interest rates for Canadian Dollar denominated bankers' acceptances
displayed and identified as such on the "Reuters Screen CDOR Page" (as
defined in the International Swap Dealer Association, Inc. definitions, as
modified and amended from time to time) as of 10:00 A.M. Toronto, Ontario
local time on any particular day and, if such day is not a Business Day,
then on the immediately preceding Business Day (as adjusted by the Canadian
Administrative Agent after 10:00 A.M. Toronto, Ontario local time to
reflect any error in a posted rate of interest or in the posted average
annual rate of interest). If such rates are not available on the Reuters
Screen CDOR Page on any particular day, then the CDOR Rate on that day
shall be calculated as the arithmetic mean of the 30 day rates applicable
to Canadian Dollar denominated banker's acceptances quoted by four major
Canadian Schedule I chartered banks as of 10:00 A.M. Toronto, Ontario local
time on such day, or if such day is not a Business Day, then on the
immediately preceding Business Day. The four major Canadian Schedule I
chartered banks shall, unless the Canadian Borrower and the Canadian
Administrative Agent otherwise agree, be The Toronto-Dominion Bank, The
Bank of Nova Scotia, Royal Bank of Canada and Canadian Imperial Bank of
Commerce.
"Chase": The Chase Manhattan Bank, a New York banking corporation.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Commitments": the collective reference to the U.S. Revolving Credit
Commitments, the Canadian Revolving Credit Commitments and the
Multicurrency Commitments.
<PAGE>
13
"Committed Outstandings Percentage": on any date with respect to any
Lender, the percentage which the Adjusted Aggregate Committed Outstandings
of such Lender constitutes of the Adjusted Aggregate Committed Outstandings
of all Lenders.
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with the U.S. Borrower within the meaning of
Section 4001 of ERISA or is part of a group which includes the U.S.
Borrower and which is treated as a single employer under Section 414 of the
Code.
"Consolidated Industrial Tangible Assets": at any date, the total
assets appearing on the most recent industrial consolidated balance sheet
of the U.S. Borrower and its Restricted Subsidiaries (other than Credit
Subsidiaries) as at the end of the fiscal quarter of the U.S. Borrower
ending not more than 135 days prior to such date, prepared in accordance
with GAAP, less Intangible Assets.
"Consolidated Net Tangible Assets": at any date, the total assets
appearing on the most recent consolidated balance sheet of the U.S.
Borrower and its Restricted Subsidiaries as at the end of the fiscal
quarter of the U.S. Borrower ending not more than 135 days prior to such
date, prepared in accordance with GAAP less (a) all current liabilities
(due within one year) as shown on such balance sheet, (b) applicable
reserves, (c) investments in and advances to Unrestricted Subsidiaries that
are consolidated on the consolidated balance sheet of the U.S. Borrower and
its Subsidiaries, and (d) Intangible Assets and liabilities relating
thereto.
"Consolidated Net Worth": as at any date of determination with respect
to the U.S. Borrower, all items which in conformity with GAAP would be
included under shareholders' equity on a consolidated balance sheet of the
U.S. Borrower as at such date, plus any amounts included on such
consolidated balance sheet in respect of any preferred stock of the U.S.
Borrower and any Preferred Securities outstanding from time to time (except
to the extent that any such preferred stock is mandatorily redeemable at
the option of the holder thereof or upon the happening of any contingency
on or prior to the Revolving Credit Termination Date).
"Consolidated Subsidiary": (a) with respect to the U.S. Borrower, any
Subsidiary of the U.S. Borrower which in accordance with GAAP would be
consolidated in the financial statements of the U.S. Borrower, with Case
Credit and its Subsidiaries consolidated in the financial statements of the
U.S. Borrower on an equity basis and (b) with respect to the Canadian
Borrower, any Subsidiary of the Canadian Borrower which in accordance with
generally accepted Canadian accounting principles in effect on the date
hereof would be consolidated in the financial statements of the Canadian
Borrower.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
<PAGE>
14
"Conversion Date": any date on which either (a) an Event of Default
under Section 15(f) has occurred or (b) the Commitments shall have been
terminated and/or the Loans shall have been declared immediately due and
payable pursuant to Section 15.
"Conversion Sharing Percentage": on any date with respect to any
Lender and any Loans or Acceptances, as the case may be, of such Lender
outstanding in any currency other than U.S. Dollars, the percentage of such
Loans or Acceptances, as the case may be, such that, after giving effect to
the conversion of such Loans or Acceptances, as the case may be, to U.S.
Dollars and the purchase and sale by such Lender of participating interests
as contemplated by subsection 17.8, the Committed Outstandings Percentage
of such Lender will equal such Lender's U.S. Revolving Credit Commitment
Percentage on such date (calculated immediately prior to giving effect to
any termination or expiration of the U.S. Revolving Credit Commitments on
the Conversion Date).
"Converted Acceptances: as defined in subsection 17.8(a).
"Converted Loans: as defined in subsection 17.8(a).
"Counterpart Lender": (a) as to any U.S. Lender, the Canadian Lender
(if any) set forth opposite such U.S. Lender's name in Schedule I under the
heading "Counterpart Lender" and (b) as to any Canadian Lender, the U.S.
Lender set forth opposite such Canadian Lender's name in Schedule I under
the heading "Counterpart Lender".
"Credit Card Program": the private label credit card program sponsored
by Case Credit that is funded and serviced by NationsBank of Delaware,
N.A., pursuant to which Case Credit provides full recourse via a letter of
credit issued for the benefit of, or otherwise guarantees, NationsBank of
Delaware, N.A. for unpaid amounts owing by the cardholders thereunder.
"Credit Subsidiary": Case Credit and its Subsidiaries and any other
Subsidiary (which shall include, without limitation, any Securitization
Subsidiary) the principal business of which consists of financing or
assisting in financing (a) the U.S. Borrower's dealers or distributors or
(b) the acquisition or disposition of products, directly or indirectly, by
dealers, distributors or retail customers; provided, however, that Credit
Subsidiaries shall not include Case Wholesale Receivables Inc. and its
successors or assigns and any other Securitization Subsidiary that is a
direct or indirect Subsidiary of the U.S. Borrower and not of Case Credit
Corporation.
"CSI": Chase Securities Inc.
"Debt": as at any date of determination with respect to the U.S.
Borrower and its Consolidated Subsidiaries, an amount equal to the excess
of (a) the sum (without duplication) of (i) all Indebtedness (other than
Indebtedness referred to in clauses (e)
<PAGE>
15
through (h) of the definition thereof) of the U.S. Borrower and its
Consolidated Subsidiaries which in accordance with GAAP would be included
as a liability on a consolidated balance sheet (excluding the notes
thereto) of the U.S. Borrower and its Consolidated Subsidiaries as at such
date, including, without limitation, the Aggregate Total Outstandings of
all Lenders, and the aggregate principal amount of all Senior Notes, in
each case, as at such date, (ii) all Guarantee Obligations of the U.S.
Borrower and its Consolidated Subsidiaries in respect of Indebtedness
(other than Indebtedness referred to in clauses (e) through (h) of the
definition thereof) as at such date and (iii) all obligations of the U.S.
Borrower or any of its Subsidiaries incurred in connection with any
securitization or other asset-backed financing of Receivables as at such
date to the extent such obligations are excluded from the definition of
Permitted Securitization Obligations as at such date by operation of the
proviso to the definition thereof, over (b) to the extent included in
clause (a) above, the sum (without duplication) of (i) all Indebtedness of
Case Credit and its Subsidiaries as at such date, (ii) all Guarantee
Obligations of the U.S. Borrower or any of its Subsidiaries in respect of
Indebtedness of HFI and CDC, (iii) Guarantee Obligations of the U.S.
Borrower or any of its Subsidiaries (other than Case Credit and its
Subsidiaries) in respect of Indebtedness of Case Credit and its
Subsidiaries, (iv) Permitted Securitization Obligations as at such date and
(v) all Guarantee Obligations of the U.S. Borrower or any of its
Subsidiaries in respect of Indebtedness of Affiliates of the U.S. Borrower
(other than HFI and CDC) to the extent such Guarantee Obligations do not
exceed an aggregate principal amount of $100,000,000 on such date of
determination.
"Default": any of the events specified in Section 15 prior to the
satisfaction of any requirement for the giving of notice, the lapse of
time, or both, or any other condition.
"Dollars", "U.S. Dollars" and "$": dollars in lawful currency of the
United States of America.
"Draft": a draft substantially in the form of Exhibit C or in such
other form as the Canadian Administrative Agent may from time to time
reasonably request (or to the extent the context shall require, an
Acceptance Note, delivered in lieu of a draft), as the same may be amended,
supplemented or otherwise modified from time to time.
"Effective Date": the date on which the conditions precedent set forth
in subsection 11.1 shall be satisfied.
"Environmental Laws": any and all foreign, Federal, state, provincial,
local or municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees, requirements of any Governmental Authority or other
Requirements of Law (including common law) regulating, relating to or
imposing liability or standards of conduct concerning protection of human
health or the environment, as now or may at any time hereafter be in
effect.
<PAGE>
16
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Liabilities": at any time, all reserve requirements in
effect at such time (including, without limitation, basic, supplemental,
marginal and emergency reserves under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto) dealing
with reserve requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board)
maintained by a member bank of the Federal Reserve System.
"Eurocurrency Rate": with respect to each Interest Period pertaining
to a Multicurrency Loan, the Eurocurrency Rate determined for such Interest
Period and the Available Foreign Currency in which such Multicurrency Loan
is denominated in the manner set forth in the Administrative Schedule.
"Eurodollar Loans": U.S. Revolving Credit Loans the rate of interest
applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each Interest Period pertaining to
a Eurodollar Loan, the rate per annum equal to the average (rounded upward
to the nearest 1/16th of 1%) of the respective rates notified to the
General Administrative Agent by each of the U.S. Reference Lenders as the
rate at which such U.S. Reference Lender is offered Dollar deposits at or
about 10:00 a.m., New York City time, two Business Days prior to the
beginning of such Interest Period,
(a) in the interbank eurodollar market where the eurodollar and
foreign currency exchange operations in respect of its Eurodollar
Loans then are being conducted,
(b) for delivery on the first day of such Interest Period,
(c) for the number of days contained therein, and
(d) in an amount comparable to the amount of its Eurodollar Loan
to be outstanding during such Interest Period.
"Event of Default": any of the events specified in Section 15,
provided that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"Exchange Rate": with respect to any non-U.S. Dollar currency on any
date, the rate at which such currency may be exchanged into U.S. Dollars,
as set forth on such date on the relevant Reuters currency page at or about
11:00 A.M., London time, on such date. In the event that such rate does not
appear on any Reuters currency page, the "Exchange Rate" with respect to
such non-U.S. Dollar currency shall be determined by reference to such
other publicly available service for displaying
<PAGE>
17
exchange rates as may be agreed upon by the General Administrative Agent
and the U.S. Borrower or, in the absence of such agreement, such "Exchange
Rate" shall instead be the General Administrative Agent's spot rate of
exchange in the interbank market where its foreign currency exchange
operations in respect of such non-U.S. Dollar currency are then being
conducted, at or about 10:00 A.M., local time, on such date for the
purchase of U.S. Dollars with such non-U.S. Dollar currency, for delivery
two Business Days later; provided, that if at the time of any such
determination, no such spot rate can reasonably be quoted, the General
Administrative Agent may use any reasonable method as it deems applicable
to determine such rate, and such determination shall be conclusive absent
manifest error.
"Excluded Credit Card Guarantee Obligations": as at any date of
determination, 93% of the outstanding amount of obligations of cardholders
under the Credit Card Program with respect to which there is recourse to
Case Credit pursuant to the Credit Card Program.
"Existing Acceptances": as defined in Part C of Annex A.
"Existing Canadian Lenders": as defined in Part B of Annex A.
"Existing Canadian Revolving Credit Loans": as defined in Part B of
Annex A.
"Existing Credit Agreement": as defined in the recitals hereto.
"Existing Lenders": as defined in the recitals hereto.
"Existing U.S. Lenders": as defined in Part A of Annex A.
"Existing U.S. Revolving Credit Loans": as defined in Part A of Annex
A.
"Extension of Credit": as to any Lender, the making of a Loan by such
Lender or the acceptance of a Draft or an Acceptance Note by such Lender.
It is expressly understood and agreed that the following do not constitute
Extensions of Credit for purposes of this Agreement: (a) the conversions
and continuations of U.S. Revolving Credit Loans as or to Eurodollar Loans
or ABR Loans pursuant to subsection 9.2, (b) the substitution of maturing
Acceptances with new Acceptances, (c) the conversion of Acceptances to
Canadian Revolving Credit Loans, (d) the conversion of Canadian Revolving
Credit Loans to Acceptances, (e) the continuation of Multicurrency Loans
for additional Interest Periods and (f) the continuation of Alternate
Currency Loans for additional interest periods.
"Facility Fee Rate": the rate per annum, determined from time to time
based upon the Ratings in effect by two then nationally recognized rating
agencies selected by the U.S. Borrower (at least one of which shall be
Moody's or S&P), set forth under the column heading below opposite such
Ratings:
<PAGE>
18
Ratings Facility Fee Rate
-------
S&P/Moody's* (in percentages)
----------- -----------------
A/A2 (or higher) 0.070%
A-/A3 0.080%
BBB+/Baa1 0.100%
BBB/Baa2 0.125%
BBB-/Baa3 0.175%
BB+/Ba1 0.250%
BB/Ba2 (or lower) 0.300%
; provided that, in the event that the Ratings of such then nationally
recognized rating agencies do not coincide, the Facility Fee Rate set forth
opposite the higher of such Ratings will apply; provided, further, that if
at any time an event occurs which results in there being no Ratings or only
one Rating in effect, not later than 30 days after the date on which such
event occurs (if only one Rating or no Rating remains in effect), a new
Facility Fee Rate will be determined in a manner to be mutually agreed upon
by the General Administrative Agent and the U.S. Borrower and consented to
by the Lenders, and until such new Facility Fee Rate shall be so agreed
upon, the Facility Fee Rate will be deemed to be the Facility Fee Rate in
effect immediately prior to the date on which such event occurs.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"Fixed Rate CAF Advance": any CAF Advance made pursuant to a Fixed
Rate CAF Advance Request.
"Fixed Rate CAF Advance Request": any CAF Advance Request requesting
the Lenders to offer to make CAF Advances at a fixed rate (as opposed to a
rate composed of the LIBO Rate plus (or minus) a margin).
"Foreign Subsidiary Borrower": each Subsidiary of the U.S. Borrower
organized under the laws of a jurisdiction outside the United States listed
as a Foreign Subsidiary Borrower in Schedule II as amended from time to
time in accordance with subsection 17.1(b)(i), it being understood that no
Subsidiary of Case Credit shall be a Foreign Subsidiary Borrower.
- ---------------
* With respect to any nationally recognized rating agency other than Moody's
and S&P, such rating agency's Ratings which the U.S. Borrower and the
General Administrative Agents agree are the equivalent of the Ratings of
S&P and Moody's set forth in this column.
<PAGE>
19
"Foreign Subsidiary Opinion": with respect to any Foreign Subsidiary
Borrower, a legal opinion of counsel to such Foreign Subsidiary Borrower
addressed to the Administrative Agents and the Lenders concluding that such
Foreign Subsidiary Borrower and the Loan Documents to which it is a party
substantially comply with the matters listed on Exhibit O, with such
assumptions, qualifications and deviations therefrom as the General
Administrative Agent shall approve (such approval not to be unreasonably
withheld).
"Funded Debt": (a) any indebtedness of the U.S. Borrower or a Restricted
Subsidiary maturing more than 12 months after the time of computation thereof,
(b) guarantees of Funded Debt or of dividends of others (except guarantees in
connection with the sale or discount of accounts receivable, trade acceptances
and other paper arising in the ordinary course of business), (c) in the case of
any Restricted Subsidiary, all preferred stock of such Restricted Subsidiary,
and (d) all Capital Lease Obligations.
"Funding Commitment Percentage": as at any date of determination (after
giving effect to the making and payment of any Loans made on such date pursuant
to subsection 2.5), with respect to any U.S. Lender, that percentage which the
Available U.S. Revolving Credit Commitment of such U.S. Lender then constitutes
of the Aggregate Available U.S. Revolving Credit Commitments.
"GAAP": generally accepted accounting principles in the United States
of America in effect on the date hereof.
"General Administrative Agent": Chase, together with its affiliates, as
arranger of the Commitments and as administrative agent for the U.S. Lenders
under this Agreement and the other Loan Documents, and any successor thereto
appointed pursuant to subsection 16.9.
"Governmental Authority": any nation or government, any state, province or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
without duplication, any obligation of (a) the guaranteeing person or (b)
another Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has issued a
reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or
other obligations (the "primary obligations") of any other third Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any such obligation of the guaranteeing person, whether or
not contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or supply
funds (A) for the purchase or payment of any such primary obligation or (B) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) to
<PAGE>
20
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation shall not include
(i) endorsements of instruments for deposit or collection in the ordinary course
of business, (ii) obligations in respect of trade liabilities incurred in the
ordinary course of business and payable in accordance with customary practices
or (iii) Excluded Credit Card Guarantee Obligations. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee Obligation is made and (b) the maximum amount
for which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary obligation
and the maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by the U.S. Borrower in good faith.
"HFI": Hay & Forage Industries, a Kansas general partnership.
"Indebtedness": of any Person at any date, without duplication, (a) all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services (other than trade liabilities incurred in the
ordinary course of business and payable in accordance with customary practices),
(b) any other indebtedness of such Person which is evidenced by a note, bond,
debenture or similar instrument, (c) all obligations of such Person under
Financing Leases, (d) all obligations of such Person in respect of acceptances
issued or created for the account of such Person, (e) all liabilities secured by
any Lien on any property owned by such Person even though such Person has not
assumed or otherwise become liable for the payment thereof, (f) all net
liabilities of such Person in respect of Interest Rate Agreements, (g) all
Guarantee Obligations in respect of Indebtedness referred to in clauses (a)
through (f) (or any of them) of this definition and (h) if such Person is the
U.S. Borrower or any of its Subsidiaries, all obligations of the U.S. Borrower
or any such Subsidiary incurred in connection with any securitization or other
asset-backed financing of Receivables to the extent such obligations are
excluded from the definition of Permitted Securitization Obligations by
operation of the proviso to the definition thereof.
"Indenture": the Indenture, dated as of July 31, 1995, between the
U.S. Borrower and The Bank of New York, as Trustee.
"Insolvency": with respect to any Multiemployer Plan, the condition that
such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
<PAGE>
21
"Intangible Assets": at any date, the value (net of any applicable
reserves), as shown on or reflected in the most recent consolidated balance
sheet of the U.S. Borrower and its Restricted Subsidiaries as at the end of the
fiscal quarter of the U.S. Borrower ending not more than 135 days prior to such
date, prepared in accordance with GAAP, of: (a) all trade names, trademarks,
licenses, patents, copyrights, service marks, goodwill and other like
intangibles; (b) organizational and development costs; (c) deferred charges
(other than prepaid items such as insurance, taxes, interest, commissions,
rents, deferred interest waiver, compensation and similar items and tangible
assets being amortized); and (d) unamortized debt discount and expense, less
unamortized premium.
"Interest Payment Date": (a) as to any ABR Loan and any Prime Rate Loan,
the last day of each March, June, September and December to occur while such
Loan is outstanding, (b) as to any Eurodollar Loan or Multicurrency Loan having
an Interest Period of three months or less, the last day of such Interest
Period, (c) as to any Eurodollar Loan or Multicurrency Loan having an Interest
Period longer than three months, (i) each day which is three months, or a whole
multiple thereof, after the first day of such Interest Period and (ii) the last
day of such Interest Period and (d) as to any Money Market Rate Swing Line Loan,
the last day of the interest period with respect thereto selected by the U.S.
Borrower and the relevant Swing Line Lender.
"Interest Period": with respect to any Eurodollar Loan or Multicurrency
Loan:
(a) initially, the period commencing on the borrowing or conversion date,
as the case may be, with respect to such Eurodollar Loan or Multicurrency Loan
and ending one, two, three or six months thereafter, as selected by the relevant
Borrower in its notice of borrowing or notice of conversion, as the case may be,
given with respect thereto; and
(b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan or Multicurrency
Loan and ending one, two, three or six months thereafter, as selected by the
relevant Borrower by irrevocable notice to the General Administrative Agent not
less than three Business Days prior to the last day of the then current Interest
Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest Periods
are subject to the following:
(i) if any Interest Period pertaining to a Eurodollar Loan or
Multicurrency Loan would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry such Interest Period
into another calendar month in which event such Interest Period shall end
on the immediately preceding Business Day;
<PAGE>
22
(ii) any Interest Period applicable to a Eurodollar Loan
or Multicurrency Loan that would otherwise extend beyond the Revolving
Credit Termination Date shall end on the Revolving Credit Termination
Date;
(iii) any Interest Period pertaining to a Eurodollar Loan
or Multicurrency Loan that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
(iv) each Borrower shall select Interest Periods so as not
to require a payment or prepayment of any Eurodollar Loan or
Multicurrency Loan during an Interest Period for such Eurodollar Loan
or Multicurrency Loan.
"Interest Rate Agreement": any interest rate protection agreement,
interest rate future, interest rate option, interest rate cap or other
interest rate hedge arrangement, to or under which the U.S. Borrower or any
Subsidiary thereof is a party or a beneficiary.
"Judgment Currency": as defined in subsection 17.18(b)
"Lenders": as defined in the preamble hereto.
"LIBO Rate": in respect of any LIBO Rate CAF Advance, the London
interbank offered rate for deposits in Dollars for the period commencing on
the date of such CAF Advance and ending on the CAF Advance Maturity Date
with respect thereto which appears on Telerate Page 3750 as of 11:00 A.M.,
London time, two Business Days prior to the beginning of such period.
"LIBO Rate CAF Advance": any CAF Advance made pursuant to a LIBO Rate
CAF Advance Request.
"LIBO Rate CAF Advance Request": any CAF Advance Request requesting
the Lenders to offer to make CAF Advances at an interest rate equal to the
LIBO Rate plus (or minus) a margin.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention agreement
and any Financing Lease having substantially the same economic effect as
any of the foregoing).
"Loan Documents": the collective reference to this Agreement, any
Notes, the Drafts, the Acceptances, the Acceptance Notes and any documents
or instruments evidencing or governing any Alternate Currency Facility.
<PAGE>
23
"Loans": the collective reference to the Revolving Credit Loans, the
Swing Line Loans, the CAF Advances, the Multicurrency Loans and the
Alternate Currency Loans.
"Loans to be Converted": as defined in subsection 17.8(a).
"London Banking Day": any day on which banks in London are open for
general banking business, including dealings in foreign currency and
exchange.
"Majority Canadian Lenders": at any time, Canadian Lenders the
Canadian Revolving Credit Commitment Percentages of which aggregate at
least 51%.
"Majority Lenders": (a) at any time prior to the termination of the
Revolving Credit Commitments, the Majority U.S. Lenders; and (b) at any
time after the termination of the Revolving Credit Commitments, Lenders
whose Aggregate Total Outstandings aggregate at least 51% of the Aggregate
Total Outstandings of all Lenders; provided that for purposes of this
definition the Aggregate Total Outstandings of each Lender shall be
adjusted up or down so as to give effect to any participations purchased or
sold pursuant to subsection 17.8.
"Majority Multicurrency Lenders": at any time, Multicurrency Lenders
the Multicurrency Commitment Percentages of which aggregate at least 51%.
"Majority U.S. Lenders": at any time, U.S. Lenders the U.S. Revolving
Credit Commitment Percentages of which aggregate at least 51%.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise) of the
U.S. Borrower and its Consolidated Subsidiaries taken as a whole or (b) the
ability of the U.S. Borrower to perform its obligations under this
Agreement or any of the other Loan Documents or the rights or remedies of
the Administrative Agents or the Lenders hereunder or thereunder.
"Material Subsidiary": any Subsidiary of the U.S. Borrower, the assets
or revenues (excluding inter-company receivables and revenues that would be
eliminated upon consolidation in accordance with GAAP) of which are, at the
time of determination, equal to or greater than ten percent of the assets
or revenues (excluding inter-company receivables and revenues that would be
eliminated upon consolidation in accordance with GAAP), respectively, of
the U.S. Borrower at such time.
"Money Market Rate": as defined in subsection 3.2(b).
"Money Market Rate Swing Line Loan": as defined in subsection 3.2(b).
"Moody's": Moody's Investors Service, Inc. or any successor thereto.
<PAGE>
24
"Multicurrency Commitment": as to any Multicurrency Lender at any
time, its obligation to make Multicurrency Loans to Foreign Subsidiary
Borrowers in an aggregate amount in Available Foreign Currencies of which
the U.S. Dollar Equivalent does not exceed at any time outstanding the
amount set forth opposite such Multicurrency Lender's name in Schedule I
under the heading "Multicurrency Commitment", as such amount may be reduced
from time to time as provided in subsection 7.4 and the other applicable
provisions hereof.
"Multicurrency Commitment Percentage": as to any Multicurrency Lender
at any time, the percentage which such Multicurrency Lender's Multicurrency
Commitment then constitutes of the aggregate Multicurrency Commitments (or,
if the Multicurrency Commitments have terminated or expired, the percentage
which (a) the U.S. Dollar Equivalent of the Aggregate Multicurrency
Outstandings of such Multicurrency Lender at such time constitutes of (b)
the U.S. Dollar Equivalent of the Aggregate Multicurrency Outstandings of
all Multicurrency Lenders at such time).
"Multicurrency Lender": each Lender having an amount greater than zero
set forth opposite such Lender's name in Schedule I under the heading
"Multicurrency Commitment."
"Multicurrency Loans": as defined in subsection 7.1.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Non-Canadian Lender": each U.S. Lender which is not a U.S. Common
Lender.
"Non-Excluded Taxes": as defined in subsection 9.11(a).
"Non-Multicurrency Lender": each U.S. Lender which is not a
Multicurrency Lender.
"Notes": the collective reference to the U.S. Revolving Credit Notes
and the Canadian Revolving Credit Notes.
"Notice of Alternate Currency Outstandings": with respect to each
Alternate Currency Facility Agent, a notice from such Alternate Currency
Facility Agent containing the information, delivered to the Person, in the
manner and by the time, specified for a Notice of Alternate Currency
Outstandings in the Administrative Schedule.
"Notice of Multicurrency Loan Borrowing": with respect to a
Multicurrency Loan, a notice from the Foreign Subsidiary Borrower in
respect of such Loan, containing the information in respect of such Loan
and delivered to the Person, in the
<PAGE>
25
manner and by the time, specified for a Notice of Multicurrency Loan
Borrowing in respect of the currency of such Loan in the Administrative
Schedule.
"Notice of Multicurrency Loan Continuation": with respect to a
Multicurrency Loan, a notice from the Foreign Subsidiary Borrower in
respect of such Loan, containing the information in respect of such Loan
and delivered to the Person, in the manner and by the time, specified for a
Notice of Multicurrency Loan Continuation in respect of the currency of
such Loan in the Administrative Schedule.
"Obligations": collectively, the unpaid principal of and interest on
the Loans and all other obligations and liabilities (including, with
respect to Case Canada, Acceptance Reimbursement Obligations) of (a) Case
Canada under this Agreement and the other Loan Documents, (b) each Foreign
Subsidiary Borrower under this Agreement and the other Loan Documents and
(c) each Alternate Currency Borrower under any Alternate Currency Facility
to which it is a party and under this Loan Agreement and the other Loan
Documents (including, without limitation, interest accruing at the then
applicable rate provided in this Agreement or any other applicable Loan
Document after the maturity of the Loans and interest accruing at the then
applicable rate provided in this Agreement or any other applicable Loan
Document after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating
to the U.S. Borrower, whether or not a claim for post-filing or post-
petition interest is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with,
this Agreement, the Notes, the Acceptances, the other Loan Documents or any
other document made, delivered or given in connection therewith, in each
case whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Administrative
Agents or to the Lenders that are required to be paid by any Borrower
pursuant to the terms of this Agreement or any other Loan Document).
"Participants": as defined in subsection 17.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA.
"Permitted Securitization Obligations": obligations of the U.S.
Borrower or any of its Subsidiaries incurred in connection with any
securitization or other asset-backed financing of Receivables; provided
that, if (a) there is recourse to the U.S. Borrower or any of its
Subsidiaries (other than a Special Purpose Subsidiary) for failures to pay
or otherwise perform any such obligations, (b) such failures arise as a
result of credit defaults by the debtors in respect of such Receivables and
(c) such recourse is not limited to the Receivables and the Receivables
Related Assets (or undivided or beneficial interests in such Receivables
and Receivables Related Assets) which are the subject of such
securitization or other asset-backed financing, then such obligations shall
not be considered "Permitted Securitization Obligations" within the meaning
of
<PAGE>
26
this definition to the extent that, in accordance with GAAP, such
obligations would be required to be included as a liability on a
consolidated balance sheet of the U.S. Borrower and its Consolidated
Subsidiaries.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the U.S. Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Powers of Attorney": as defined in subsection 6.2(b).
"Preferred Securities": any preferred securities issued by a financing
entity (i.e. partnership, trust, limited liability company, etc.) used
exclusively to raise capital for the U.S. Borrower having the following
structural characteristics: (a) the financing entity lends the proceeds
from the issuance of preferred securities to the U.S. Borrower in exchange
for subordinated debt securities (which debt securities are subordinated to
all Indebtedness of the U.S. Borrower of the types described in clauses (a)
and (b) of the definition of Indebtedness set forth in subsection 1.1,(b)
the subordinated debt securities issued by the U.S. Borrower and
corresponding preferred securities issued by the financing entity have a
maturity of at least ten years, (c) interest payments on the subordinated
debt securities may be deferred at the U.S. Borrower's discretion, and (d)
neither the subordinated debt securities nor the corresponding preferred
securities shall contain cross-default or cross-acceleration provisions to
Indebtedness of the U.S. Borrower of the types described in clauses (a) and
(b) of the definition of Indebtedness set forth in subsection 1.1.
"Prime Rate": at any day, the greater on such day of (a) the rate per
annum designated by the Canadian Administrative Agent from time to time
(and in effect on such day) as its reference rate for Canadian Dollar
commercial loans made in Canada and (b) 1% above the CDOR Rate from time to
time (and in effect on such day), as advised by the Canadian Administrative
Agent to the Canadian Borrower from time to time pursuant hereto. The Prime
Rate is not intended to be the lowest rate of interest charged by the
Canadian Administrative Agent in connection with extensions of credit in
Canadian Dollars to debtors.
"Prime Rate Loans": all Canadian Revolving Credit Loans, which shall
bear interest at a rate based upon the Prime Rate.
"Principal Property": any manufacturing plant or foundry located in
the United States of America and owned and operated by the U.S. Borrower or
any Restricted Subsidiary on or after the date hereof, and any
manufacturing equipment owned by the U.S. Borrower or any Restricted
Subsidiary on or after the date hereof in such
<PAGE>
27
manufacturing plant. "Manufacturing Equipment" means manufacturing
equipment in such manufacturing plant directly used in the production of
the U.S. Borrower's products and parts and components thereof, and shall
not include office equipment, rolling stock and other equipment not
directly used in the production of the U.S. Borrower's products.
"Properties": as defined in subsection 10.12(a).
"Qualified Credit Facility": a credit facility (a) providing for one
or more Alternate Currency Lenders to make loans denominated in an
Alternate Currency to an Alternate Currency Borrower, (b) providing for
such loans to bear interest at a rate or rates determined by the U.S.
Borrower and such Alternate Currency Lender or Alternate Currency Lenders
and (c) otherwise conforming to the requirements of Section 8.
"Quotation Day": in respect of the determination of the Eurocurrency
Rate for any Interest Period for Multicurrency Loans in any Available
Foreign Currency, the day on which quotations would ordinarily be given by
prime banks in the London interbank market (or, if such Available Foreign
Currency is Sterling, in the Paris interbank market) for deposits in such
Available Foreign Currency for delivery on the first day of such Interest
Period; provided, that if quotations would ordinarily be given on more than
one date, the Quotation Day for such Interest Period shall be the last of
such dates. On the date hereof, the Quotation Day in respect of any
Interest Period for any Available Foreign Currency is customarily the last
London Banking Day prior to the beginning of such Interest Period which is
(a) at least two London Banking Days prior to the beginning of such
Interest Period and (b) a day on which banks are open for general banking
business in the city which is the principal financial center of the country
of issue of such Available Foreign Currency (and, in the case of Sterling,
in Paris).
"Ratings": the actual or implied senior long-term unsecured
non-credit-enhanced debt ratings of the U.S. Borrower in effect from time
to time by Moody's, S&P or any other then nationally recognized rating
agency.
"Receivable": any right of payment from or on behalf of any obligor,
whether constituting an account, chattel paper, instrument, general
intangible or otherwise, arising from the financing by the U.S. Borrower or
any of its Subsidiaries of property or services, and monies due thereunder,
security interests in the property and services financed thereby and any
and all other related rights.
"Receivables Related Assets": in connection with any securitization or
other asset-backed financing of, or other sale, transfer or disposition of,
Receivables, the collective reference to: (i) any rights arising under the
documentation governing or relating to such Receivables (including rights
in respect of Liens securing such Receivables and other credit support in
respect of such Receivables), (ii) any proceeds of such Receivables and any
lockboxes or accounts in which such proceeds are
<PAGE>
28
deposited, (iii) spread accounts and other similar accounts (and any amounts on
deposit therein) established in connection with such securitization or asset-
backed financing and (iv) any warranty, indemnity, dilution and other
intercompany claim arising out of the documentation evidencing such
securitization or asset-backed financing.
"Reference Discount Rate": on any date with respect to each Draft requested
to be accepted by a Canadian Lender, (a) if such Canadian Lender is a Schedule I
Canadian Lender, the arithmetic average of the discount rates (expressed as a
percentage calculated on the basis of a year of 365 days) quoted by the Toronto
offices of each of the Schedule I Canadian Reference Lenders, at 10:00 A.M.
(Toronto time) on the Borrowing Date as the discount rate at which each such
Schedule I Canadian Reference Lender would, in the normal course of its
business, purchase on such date Acceptances having an aggregate face amount and
term to maturity as designated by the Canadian Borrower pursuant to Section 6.2
and (b) if such Canadian Lender is a Schedule II Canadian Lender, the arithmetic
average of the discount rates (expressed as a percentage calculated on the basis
of a year of 365 days) quoted by the Toronto offices of each of the Schedule II
Canadian Reference Lenders, at 10:00 A.M. (Toronto time) on the Borrowing Date
as the discount rate at which each such Schedule II Canadian Reference Lender
would, in the normal course of its business, purchase on such date Acceptances
having an aggregate face amount and term to maturity as designated by the
Canadian Borrower pursuant to subsection 6.2. The Canadian Administrative Agent
shall advise the Canadian Borrower and the Canadian Lenders, either in writing
or verbally, by 11:00 A.M. (Toronto time) on the Borrowing Date as to the
applicable Reference Discount Rate and corresponding Acceptance Purchase Price
in respect of Acceptances having the maturities selected by the Canadian
Borrower for such Borrowing Date.
"Refunded Swing Line Loans": as defined in subsection 3.4.
"Register": as defined in subsection 17.6(d).
"Regulation U": Regulation U of the Board as in effect from time to time.
"Reorganization": with respect to any Multiemployer Plan, the condition
that such plan is in reorganization within the meaning of Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the notice period is waived under any
of subsections .11 through .23 of PBGC Reg. (S) 4043 or any successor regulation
thereto.
"Requested Acceptances": as defined in subsection 2.5(a).
"Requested Alternate Currency Loans": as defined in subsection 2.5(c).
"Requested Canadian Revolving Credit Loans": as defined in subsection
2.5(a).
<PAGE>
29
"Requested Multicurrency Loans": as defined in subsection 2.5(b).
"Request for Acceptances": as defined in subsection 6.2(a).
"Requirement of Law": as to any Person, the certificate of incorporation
and by-laws or other organizational or governing documents of such Person, and
any law, treaty, rule, guideline or regulation or determination of an arbitrator
or a court or other Governmental Authority, in each case applicable to or
binding upon such Person or any of its material property or to which such Person
or any of its material property is subject.
"Responsible Officer": with respect to a Borrower, the President or any
Vice President of such Borrower or, with respect to financial matters, the Chief
Financial Officer, the Treasurer, the Controller, any Assistant Treasurer or any
Assistant Controller of such Borrower.
"Restricted Subsidiary": each Subsidiary other than Unrestricted
Subsidiaries.
"Revolving Credit Commitment Period": the period from and including the
Effective Date to but not including the Revolving Credit Termination Date, or
such earlier date on which the Revolving Credit Commitments shall terminate as
provided herein.
"Revolving Credit Commitments": the collective reference to the U.S.
Revolving Credit Commitments and the Canadian Revolving Credit Commitments.
"Revolving Credit Loans": the collective reference to the U.S. Revolving
Credit Loans and the Canadian Revolving Credit Loans; each, individually, a
"Revolving Credit Loan".
"Revolving Credit Termination Date": the date which is five years after the
Effective Date.
"Schedule I Canadian Lender": each Canadian Lender listed on Schedule I to
the Bank Act (Canada).
"Schedule I Canadian Reference Lenders": Royal Bank of Canada and Canadian
Imperial Bank of Commerce.
"Schedule II Canadian Lender": each Canadian Lender which is not a Schedule
I Canadian Lender.
"Schedule II Canadian Reference Lenders": Bank of America Canada and
Citibank Canada.
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30
"Secured Funded Debt": Funded Debt which is secured by any pledge of, or
mortgage, security interest or other lien on any Principal Property (whether
owned on the date hereof or hereafter acquired or created) of the U.S. Borrower
or of a Restricted Subsidiary.
"Securities Act": the Securities Act of 1933, as amended.
"Securitization Subsidiary": a Subsidiary of the U.S. Borrower (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 U.S. Borrower or any Restricted Subsidiary, or (ii) subjects any property
or assets of the U.S. Borrower 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": any transaction or series of transactions
that have been or may be entered into by the U.S. Borrower or any of its
Subsidiaries in connection with or reasonably related to a transaction or series
of transactions in which the U.S. Borrower or any of its Subsidiaries may sell,
convey or otherwise transfer to (a) a Securitization Subsidiary or (b) any other
Person, or may grant a security interest in, any Receivables or asset-backed
securities or interest therein (whether such Receivables or securities are then
existing or arising in the future) of the U.S. Borrower 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.
"Senior Notes": the collective reference to (a) the series of 7 1/4% Notes
Due 2005 of the U.S. Borrower issued under the Indenture and (b) the series of 7
1/4% Notes Due 2016 of the U.S. Borrower issued under the Indenture.
"Single Employer Plan": any Plan which is covered by Title IV of ERISA, but
which is not a Multiemployer Plan.
"S&P": Standard & Poor's Ratings Group or any successor thereto.
"Special Purpose Subsidiary": any wholly-owned Subsidiary of the U.S.
Borrower (other than the Canadian Borrower) which (i) is formed for the purpose
of effecting any securitization or other asset-backed financing of Receivables
and engaging in other activities reasonably related thereto and (ii) is
structured as a
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31
"bankruptcy-remote subsidiary" in accordance with customary practices in the
asset-backed securitization market.
"Subsidiary": as to any Person, a corporation, partnership or other entity
of which shares of stock or other ownership interests having ordinary voting
power (other than stock or such other ownership interests having such power only
by reason of the happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation, partnership or other entity are
at the time owned, or the management of which is otherwise controlled, directly
or indirectly through one or more intermediaries, or both, by such Person.
Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of
the U.S. Borrower. As used in Section 10 (other than subsection 10.1), the term
"Subsidiary" as relating to the U.S. Borrower shall not include Masstock
(Zambia) Limited, a Zambian corporation.
"Swing Line Commitment": as to each Swing Line Lender, in its capacity as a
Swing Line Lender, its obligation to make Swing Line Loans to the U.S. Borrower
in an aggregate principal amount not to exceed, at any one time outstanding, the
difference between (a) U.S.$75,000,000 and (b) the outstanding principal amount
of all Swing Line Loans of the other Swing Line Lender.
"Swing Line Lenders": the collective reference to Chase and Bank of
America, in their respective capacities as providers of the Swing Line Loans;
each, individually, a "Swing Line Lender".
"Swing Line Loans" and "Swing Line Loan": as defined in subsection 3.1.
"Swing Line Participation Percentage": as at any date of determination with
respect to any U.S. Lender, that percentage which the Available Swing Line
Participation Commitment of such U.S. Lender then constitutes of the sum of the
Available Swing Line Participation Commitments of all U.S. Lenders.
"Tax Act": the Income Tax Act (Canada), as amended from time to time.
"Tranche": the collective reference to Eurodollar Loans or Multicurrency
Loans the then current Interest Periods with respect to all of which begin on
the same date and end on the same later date (whether or not such Loans shall
originally have been made on the same day).
"Transferee": as defined in subsection 17.6(f).
"Type": as to any U.S. Revolving Credit Loan, its nature as an ABR Loan or
a Eurodollar Loan.
"Unrestricted Subsidiary": each Securitization Subsidiary, Subsidiaries of
each of the foregoing, and other Subsidiaries designated as Unrestricted
Subsidiaries from
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32
time to time by the Board of Directors of the U.S. Borrower; provided,
however, that the Board of Directors of the U.S. Borrower (a) shall not
designate as an Unrestricted Subsidiary any Subsidiary of the U.S. Borrower
that has a material interest in any Principal Property, (b) shall not
continue the designation of any Subsidiary of the U.S. Borrower as an
Unrestricted Subsidiary at any time that such Subsidiary has a material
interest in any Principal Property, and (c) shall not, nor shall it cause
or permit any Restricted Subsidiary to, transfer or otherwise dispose of
any Principal Property to any Unrestricted Subsidiary (unless such
Unrestricted Subsidiary shall in connection therewith be redesignated as a
Restricted Subsidiary and any Lien arising in connection with any
Indebtedness of such Unrestricted Subsidiary so redesignated does not
extend to such Principal Property (unless the existence of such Lien would
otherwise be permitted under this Agreement)).
"U.S. Borrower": as defined in the preamble hereto.
"U.S. Common Lender": each U.S. Lender which has a Counterpart Lender.
"U.S. Dollar Equivalent": with respect to an amount denominated in any
currency other than U.S. Dollars, the equivalent in U.S. Dollars of such
amount determined at the Exchange Rate on the date of determination of such
equivalent. In making any determination of the U.S. Dollar Equivalent for
purposes of calculating the amount of Loans to be borrowed from, or the
face amount of Acceptances to be created by, the respective Lenders on any
Borrowing Date, the General Administrative Agent or the Canadian
Administrative Agent, as the case may be, shall use the relevant Exchange
Rate in effect on the date on which the interest rate for such Loans or the
Acceptance Purchase Price for such Acceptances, as the case may be, is
determined pursuant to the provisions of this Agreement and the other Loan
Documents.
"U.S. Lenders": the Lenders listed in Part A of Schedule I hereto.
"U.S. Reference Lenders": Chase, Morgan Guaranty Trust Company of New
York and Credit Suisse.
"U.S. Revolving Credit Commitment": as to any U.S. Lender at any time,
its obligation to make U.S. Revolving Credit Loans to, and/or participate
in Swing Line Loans made to, the U.S. Borrower in an aggregate amount not
to exceed at any time outstanding the U.S. Dollar amount set forth opposite
such U.S. Lender's name in Schedule I under the heading "U.S. Revolving
Credit Commitment", as such amount may be reduced from time to time
pursuant to subsection 2.4 and the other applicable provisions hereof.
"U.S. Revolving Credit Commitment Percentage": as to any U.S. Lender
at any time, the percentage which such U.S. Lender's U.S. Revolving Credit
Commitment then constitutes of the aggregate U.S. Revolving Credit
Commitments (or, if the U.S. Revolving Credit Commitments have terminated
or expired, the
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33
percentage which (i) the Aggregate U.S. Revolving Credit Outstandings of
such U.S. Lender at such time then constitutes of (ii) the Aggregate U.S.
Revolving Credit Outstandings of all U.S. Lenders at such time).
"U.S. Revolving Credit Lender": each U.S. Lender having an amount
greater than zero set forth under the heading "U.S. Revolving Credit
Commitment" opposite its name on Schedule I.
"U.S. Revolving Credit Loan": as defined in subsection 2.1.
"U.S. Revolving Credit Note": as defined in subsection 2.2(e).
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the Notes, the other Loan Documents or any certificate or other
document made or delivered pursuant hereto.
(b) As used herein and in the Notes and any other Loan Document, and
any certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the U.S. Borrower and its Subsidiaries not defined
in subsection 1.1 and accounting terms partly defined in subsection 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF U.S. REVOLVING CREDIT COMMITMENTS
2.1 U.S. Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each U.S. Lender severally agrees to make revolving credit
loans (each, a "U.S. Revolving Credit Loan") in U.S. Dollars to the U.S.
Borrower from time to time during the Revolving Credit Commitment Period so long
as after giving effect thereto (i) the Available U.S. Revolving Credit
Commitment of each U.S. Lender is greater than or equal to zero and (ii) the
Aggregate Total Outstandings of all Lenders do not exceed the Aggregate U.S.
Revolving Credit Commitments. During the Revolving Credit Commitment Period the
U.S. Borrower may use the U.S. Revolving Credit Commitments by borrowing,
prepaying the U.S. Revolving Credit Loans in whole or in part, and reborrowing,
all in accordance with the terms and conditions hereof.
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(b) The U.S. Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined
by the U.S. Borrower and notified to the General Administrative Agent in
accordance with subsections 2.3 and 9.2, provided that no U.S. Revolving Credit
Loan shall be made as a Eurodollar Loan after the day that is one month prior to
the Revolving Credit Termination Date.
2.2 Repayment of U.S. Revolving Credit Loans; Evidence of Debt. (a)
The U.S. Borrower hereby unconditionally promises to pay to the General
Administrative Agent for the account of each U.S. Lender the then unpaid
principal amount of each U.S. Revolving Credit Loan of such U.S. Lender (whether
made before or after the termination or expiration of the U.S. Revolving Credit
Commitments) on the Revolving Credit Termination Date and on such other dates
and in such other amounts as may be required from time to time pursuant to this
Agreement. The U.S. Borrower hereby further agrees to pay interest on the unpaid
principal amount of the U.S. Revolving Credit Loans from time to time
outstanding until payment thereof in full at the rates per annum, and on the
dates, set forth in subsection 9.1.
(b) Each U.S. Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the U.S. Borrower to
such U.S. Lender resulting from each U.S. Revolving Credit Loan of such U.S.
Lender from time to time, including the amounts of principal and interest
payable thereon and paid to such U.S. Lender from time to time under this
Agreement.
(c) The General Administrative Agent (together with the Canadian
Administrative Agent) shall maintain the Register pursuant to subsection
17.6(d), and a subaccount therein for each U.S. Lender, in which shall be
recorded (i) the amount of each U.S. Revolving Credit Loan made hereunder, the
Type thereof and each Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the U.S.
Borrower to each U.S. Lender hereunder in respect of the U.S. Revolving Credit
Loans and (iii) both the amount of any sum received by the General
Administrative Agent hereunder from the U.S. Borrower in respect of the U.S.
Revolving Credit Loans and each U.S. Lender's share thereof.
(d) The entries made in the Register and the accounts of each U.S.
Lender maintained pursuant to subsection 2.2(b) shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of the
obligations of the U.S. Borrower therein recorded; provided, however, that the
failure of any U.S. Lender or the Administrative Agents to maintain the Register
or any such account, or any error therein, shall not in any manner affect the
obligation of the U.S. Borrower to repay (with applicable interest) the U.S.
Revolving Credit Loans made to the U.S. Borrower by such U.S. Lender in
accordance with the terms of this Agreement.
(e) The U.S. Borrower agrees that, upon the request to the General
Administrative Agent by any U.S. Lender, the U.S. Borrower will execute and
deliver to such U.S. Lender a promissory note of the U.S. Borrower evidencing
the Revolving Credit Loans of such U.S. Lender, substantially in the form of
Exhibit A with appropriate insertions as to
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date and principal amount (each, a "U.S. Revolving Credit Note"); provided, that
the delivery of such U.S. Revolving Credit Notes shall not be a condition
precedent to the Effective Date.
2.3 Procedure for U.S. Revolving Credit Borrowing. The U.S. Borrower
may borrow under the U.S. Revolving Credit Commitments during the Revolving
Credit Commitment Period on any Business Day, provided that the U.S. Borrower
shall give the General Administrative Agent irrevocable notice (which notice
must be received by the General Administrative Agent prior to 11:00 a.m., New
York City time, at least (a) three Business Days prior to the requested
Borrowing Date, if all or any part of the requested U.S. Revolving Credit Loans
are to be initially Eurodollar Loans, or (b) one Business Day prior to the
requested Borrowing Date, otherwise), specifying in each case (i) the amount to
be borrowed, (ii) the requested Borrowing Date, (iii) whether the borrowing is
to be of Eurodollar Loans, ABR Loans or a combination thereof and (iv) if the
borrowing is to be entirely or partly of Eurodollar Loans, the amount of such
Type of Loan and the length of the initial Interest Periods therefor. Each
borrowing under the U.S. Revolving Credit Commitments (other than a borrowing
under subsection 2.5) shall be in an amount equal to (A) in the case of ABR
Loans, except any ABR Loan made pursuant to subsection 3.4, $10,000,000 or a
whole multiple of $1,000,000 in excess thereof (or, if the then Aggregate
Available U.S. Revolving Credit Commitments are less than $10,000,000, such
lesser amount) and (B) in the case of Eurodollar Loans, $20,000,000 or a whole
multiple of $1,000,000 in excess thereof. Upon receipt of any such notice from
the U.S. Borrower, the General Administrative Agent shall promptly notify each
U.S. Lender and the Canadian Administrative Agent thereof. Not later than 12:00
Noon, New York City time, on each requested Borrowing Date each U.S. Lender
shall make an amount equal to its Funding Commitment Percentage of the principal
amount of the U.S. Revolving Credit Loans requested to be made on such Borrowing
Date available to the General Administrative Agent at its office specified in
subsection 17.2 in U.S. Dollars and in immediately available funds. Except as
otherwise provided in subsection 2.5 or 3.4 or in Annex A with respect to U.S.
Revolving Credit Loans to be made on the Effective Date, the General
Administrative Agent shall on such date credit the account of the U.S. Borrower
on the books of such office with the aggregate of the amounts made available to
the General Administrative Agent by the U.S. Lenders and in like funds as
received by the General Administrative Agent.
2.4 Termination or Reduction of U.S. Revolving Credit Commitments. The
U.S. Borrower shall have the right, upon not less than three Business Days'
notice to the General Administrative Agent, to terminate the U.S. Revolving
Credit Commitments or, from time to time, to reduce the amount of the U.S.
Revolving Credit Commitments; provided that no such termination or reduction
shall be permitted (a) unless the Canadian Borrower elects to reduce or
terminate the Canadian Revolving Credit Commitments of the Canadian Lenders by
an amount equal to the Canadian Dollar Equivalent of the amount of such
termination or reduction of the aggregate U.S. Revolving Credit Commitments of
all U.S. Common Lenders or (b) if, after giving effect thereto and to any
prepayments of the Loans made on the effective date thereof, the Available U.S.
Revolving Credit Commitment of any U.S. Lender would not be greater than or
equal to zero. Any such reduction shall be in an amount equal to $10,000,000 or
a whole multiple of $1,000,000 in excess thereof and shall reduce permanently
the U.S. Revolving Credit Commitments then in effect.
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2.5 Borrowings of U.S. Revolving Credit Loans and Refunding of Loans.
(a) If on any Borrowing Date on which the Canadian Borrower has requested the
Canadian Lenders to make Canadian Revolving Credit Loans (the "Requested
Canadian Revolving Credit Loans") or to create Acceptances (the "Requested
Acceptances"), (i) the sum of (A) the aggregate principal amount of the
Requested Canadian Revolving Credit Loans and (B) the aggregate undiscounted
face amount of the Requested Acceptances exceeds the Aggregate Available
Canadian Revolving Credit Commitments on such Borrowing Date (before giving
effect to the making and payment of any Loans required to be made pursuant to
this subsection 2.5 on such Borrowing Date) and (ii) the U.S. Dollar Equivalent
of the amount of such excess is less than or equal to the aggregate Available
U.S. Revolving Credit Commitments of all Non-Canadian Lenders (before giving
effect to the making and payment of any Loans pursuant to this subsection 2.5 on
such Borrowing Date), each Non-Canadian Lender shall make a U.S. Revolving
Credit Loan to the U.S. Borrower on such Borrowing Date, and the proceeds of
such U.S. Revolving Credit Loans shall be simultaneously applied to repay
outstanding U.S. Revolving Credit Loans, Multicurrency Loans and/or Alternate
Currency Loans of the U.S. Common Lenders (as directed by the U.S. Borrower) in
each case in amounts such that, after giving effect to (1) such borrowings and
repayments and (2) the borrowing from the Canadian Lenders of the Requested
Canadian Revolving Credit Loans or the creation by the Canadian Lenders of the
Requested Acceptances, the Committed Outstandings Percentage of each U.S. Lender
will equal (as nearly as possible) its U.S. Revolving Credit Commitment
Percentage. To effect such borrowings and repayments, (x) not later than 12:00
Noon, New York City time, on such Borrowing Date, the proceeds of such U.S.
Revolving Credit Loans shall be made available by each Non-Canadian Lender to
the General Administrative Agent at its office specified in subsection 17.2 in
U.S. Dollars and in immediately available funds and the General Administrative
Agent shall apply the proceeds of such U.S. Revolving Credit Loans toward
repayment of outstanding U.S. Revolving Credit Loans, Multicurrency Loans and/or
Alternate Currency Loans of the U.S. Common Lenders (as directed by the U.S.
Borrower) and (y) concurrently with the repayment of such Loans on such
Borrowing Date, (I) the Canadian Lenders shall, in accordance with the
applicable provisions hereof, make the Requested Canadian Revolving Credit Loans
(or create the Requested Acceptances) in an aggregate amount equal to the amount
so requested by the Canadian Borrower (but not in any event greater than the
Aggregate Available Canadian Revolving Credit Commitments after giving effect to
the making of such repayment of any Loans on such Borrowing Date) and (II) the
relevant Borrower shall pay to the General Administrative Agent for the account
of the Lenders whose Loans to such Borrower are repaid on such Borrowing Date
pursuant to this subsection 2.5 all interest accrued on the amounts repaid to
the date of repayment, together with any amounts payable pursuant to subsection
9.12 in connection with such repayment.
(b) If on any Borrowing Date on which a Foreign Subsidiary Borrower
has requested the Multicurrency Lenders to make Multicurrency Loans (the
"Requested Multicurrency Loans"), (i) the aggregate principal amount of the
Requested Multicurrency Loans exceeds the Aggregate Available Multicurrency
Commitments on such Borrowing Date (before giving effect to the making and
payment of any Loans required to be made pursuant to this subsection 2.5 on such
Borrowing Date) and (ii) the U.S. Dollar Equivalent of the amount of such excess
is less than or equal to the aggregate Available U.S. Revolving Credit
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Commitments of all Non-Multicurrency Lenders (before giving effect to the making
and payment of any Loans pursuant to this subsection 2.5 on such Borrowing
Date), each Non-Multicurrency Lender shall make a U.S. Revolving Credit Loan to
the U.S. Borrower on such Borrowing Date, and the proceeds of such U.S.
Revolving Credit Loans shall be simultaneously applied to repay outstanding U.S.
Revolving Credit Loans, Canadian Revolving Credit Loans and/or Alternate
Currency Loans of the Multicurrency Lenders or their Counterpart Lenders (as
directed by the U.S. Borrower) in each case in amounts such that, after giving
effect to (1) such borrowings and repayments and (2) the borrowing from the
Multicurrency Lenders of the Requested Multicurrency Loans, the Committed
Outstandings Percentage of each U.S. Lender will equal (as nearly as possible)
its U.S. Revolving Credit Commitment Percentage. To effect such borrowings and
repayments, (x) not later than 12:00 Noon, New York City time, on such Borrowing
Date, the proceeds of such U.S. Revolving Credit Loans shall be made available
by each Non-Multicurrency Lender to the General Administrative Agent at its
office specified in subsection 17.2 in U.S. Dollars and in immediately available
funds and the General Administrative Agent shall apply the proceeds of such U.S.
Revolving Credit Loans toward repayment of outstanding U.S. Revolving Credit
Loans, Canadian Revolving Credit Loans and/or Alternate Currency Loans of the
Multicurrency Lenders or their Counterpart Lenders (as directed by the U.S.
Borrower) and (y) concurrently with the repayment of such Loans on such
Borrowing Date, (I) the Multicurrency Lenders shall, in accordance with the
applicable provisions hereof, make the Requested Multicurrency Loans in an
aggregate amount equal to the amount so requested by such Foreign Subsidiary
Borrower (but not in any event greater than the Aggregate Available
Multicurrency Commitments after giving effect to the making of such repayment of
any Loans on such Borrowing Date) and (II) the relevant Borrower shall pay to
the General Administrative Agent for the account of the Lenders whose Loans to
such Borrower are repaid on such Borrowing Date pursuant to this subsection 2.5
all interest accrued on the amounts repaid to the date of repayment, together
with any amounts payable pursuant to subsection 9.12 in connection with such
repayment.
(c) If on any Borrowing Date on which an Alternate Currency Borrower
has requested Alternate Currency Lenders to make Alternate Currency Loans (the
"Requested Alternate Currency Loans") under an Alternate Currency Facility to
which such Alternate Currency Borrower and Alternate Currency Lenders are
parties (i) the aggregate principal amount of the Requested Alternate Currency
Loans exceeds the aggregate unused portions of the commitments of such Alternate
Currency Lenders under such Alternate Currency Facility on such Borrowing Date
(before giving effect to the making and payment of any U.S. Revolving Credit
Loans required to be made pursuant to this subsection 2.5 on such Borrowing
Date), (ii) after giving effect to the Requested Alternate Currency Loans, the
U.S. Dollar Equivalent of the aggregate outstanding principal amount of
Alternate Currency Loans of such Alternate Currency Borrower will be less than
or equal to the aggregate commitments of such Alternate Currency Lenders under
such Alternate Currency Facility and (iii) the U.S. Dollar Equivalent of the
amount of the excess described in clause (i) above is less than or equal to the
Aggregate Available U.S. Revolving Credit Commitments of all U.S. Lenders other
than such Alternate Currency Lenders (before giving effect to the making and
payment of any U.S. Revolving Credit Loans pursuant to this subsection 2.5 on
such Borrowing Date), each such other U.S. Lender shall make a U.S. Revolving
Credit Loan to the U.S. Borrower
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on such Borrowing Date, and the proceeds of such U.S. Revolving Credit Loans
shall be simultaneously applied to repay outstanding U.S. Revolving Credit
Loans, Canadian Revolving Credit Loans, Multicurrency Loans and/or Alternate
Currency Loans of such Alternate Currency Lenders or their Counterpart Lenders
(as directed by the U.S. Borrower) in each case in amounts such that, after
giving effect to (1) such borrowings and repayments and (2) the borrowing from
such Alternate Currency Lenders of the Requested Alternate Currency Loans, the
Committed Outstandings Percentage of each U.S. Lender will equal (as nearly as
possible) its U.S. Revolving Credit Commitment Percentage. To effect such
borrowings and repayments, (x) not later than 12:00 Noon, New York City time, on
such Borrowing Date, the proceeds of such U.S. Revolving Credit Loans shall be
made available by each such other Lender to the General Administrative Agent at
its office specified in subsection 17.2 in U.S. Dollars and in immediately
available funds and the General Administrative Agent shall apply the proceeds of
such U.S. Revolving Credit Loans toward repayment of outstanding U.S. Revolving
Credit Loans, Canadian Revolving Credit Loans, Multicurrency Loans and/or
Alternate Currency Loans of such Alternate Currency Lenders or their Counterpart
Lenders (as directed by the U.S. Borrower) and (y) concurrently with the
repayment of such Loans on such Borrowing Date, (I) such Alternate Currency
Lenders shall, in accordance with the applicable provisions hereof, make the
Requested Alternate Currency Loans in an aggregate amount equal to the amount so
requested by such Foreign Subsidiary Borrower and (II) the relevant Borrower
shall pay to the General Administrative Agent for the account of the Lenders
whose Loans to such Borrower are repaid on such Borrowing Date pursuant to this
subsection 2.5 all interest accrued on the amounts repaid to the date of
repayment, together with any amounts payable pursuant to subsection 9.12 in
connection with such repayment.
(d) If any borrowing of U.S. Revolving Credit Loans is required
pursuant to this subsection 2.5, the U.S. Borrower shall notify the General
Administrative Agent in the manner provided for U.S. Revolving Credit Loans in
subsection 2.3, except that the minimum borrowing amounts set forth in
subsection 2.3 shall not be applicable to the extent that such minimum borrowing
amounts exceed the amounts of U.S. Revolving Credit Loans required to be made
pursuant to this subsection 2.5.
SECTION 3. AMOUNT AND TERMS OF SWING LINE
COMMITMENTS
3.1 Swing Line Commitments. Subject to the terms and conditions
hereof, each Swing Line Lender agrees to make swing line loans (individually, a
"Swing Line Loan"; collectively, the "Swing Line Loans") in U.S. Dollars to the
U.S. Borrower from time to time during the Revolving Credit Commitment Period in
an aggregate principal amount at any one time outstanding not to exceed the
difference between (a) $75,000,000 and (b) the outstanding principal amount of
all Swing Line Loans of the other Swing Line Lender, so long as after giving
effect thereto (i) the Available U.S. Revolving Credit Commitment of each U.S.
Lender is greater than or equal to zero and (ii) the Aggregate Total
Outstandings of all Lenders do not exceed the Aggregate U.S. Revolving Credit
Commitments. Amounts
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borrowed by the U.S. Borrower under this Section 3 may be repaid and, during the
Revolving Credit Commitment Period, reborrowed.
3.2 Procedure for Swing Line Borrowings; Interest Rate. (a) The U.S.
Borrower shall give the Swing Line Lender from which it wishes to request a
Swing Line Loan irrevocable notice (which notice must be received by such Swing
Line Lender prior to 1:00 P.M., New York City time) on the requested Borrowing
Date specifying the amount of the requested Swing Line Loan, which shall be in
an aggregate principal amount of not less than $1,000,000 or a whole multiple of
$1,000,000 in excess thereof. The proceeds of the Swing Line Loan will be made
available by such Swing Line Lender to the U.S. Borrower at the office of such
Swing Line Lender by crediting the account of the U.S. Borrower at such office
with such proceeds in U.S. Dollars. Each Swing Line Lender shall send a copy of
each request for a borrowing of Swing Line Loans from such Swing Line Lender to
the other Swing Line Lender.
(b) Unless otherwise agreed between the U.S. Borrower and the Swing
Line Lender that makes a Swing Line Loan, such Swing Line Loan shall be an ABR
Loan. Any such ABR Loan may not be converted into a Eurodollar Loan. If,
however, the U.S. Borrower and a Swing Line Lender agree that a Swing Line Loan
(a "Money Market Rate Swing Line Loan") shall bear interest at a fixed interest
rate (a "Money Market Rate") for a fixed interest period of up to 7 days, such
Money Market Rate Swing Line Loan shall bear interest for such interest period
at such interest rate so agreed upon. If a Money Market Rate Swing Line Loan is
not repaid on the last day of the interest period with respect thereto, it shall
on such date be converted automatically to an ABR Loan. A Money Market Swing
Line Loan shall not be optionally prepayable prior to the last day of the
interest period with respect thereto except with the consent of the Swing Line
Lender that made such Swing Line Loan.
3.3 Repayment of Swing Line Loans; Evidence of Debt. (a) The U.S.
Borrower hereby unconditionally promises to pay to each Swing Line Lender the
then unpaid principal amount of each of its Swing Line Loans on the Revolving
Credit Termination Date and on such other dates and in such other amounts as may
be required from time to time pursuant to this Agreement. The U.S. Borrower
hereby further agrees to pay interest on the unpaid principal amount of the
Swing Line Loans from time to time outstanding until payment thereof in full at
the rates per annum, and on the dates, set forth in subsection 9.1.
(b) Each Swing Line Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the U.S. Borrower
resulting from each Swing Line Loan made by it from time to time, including the
amounts of principal and interest payable thereon and paid from time to time
under this Agreement.
(c) The General Administrative Agent (together with the Canadian
Administrative Agent) shall maintain the Register pursuant to subsection
17.6(d), and a subaccount therein for each Swing Line Lender, in which shall be
recorded (i) the amount of each Swing Line Loan made hereunder, (ii) the amount
of each U.S. Lender's participating interest in such Swing Line Loans, (iii) the
amount of any principal or interest due and
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payable or to become due and payable from the U.S. Borrower hereunder in respect
of the Swing Line Loans and (iv) both the amount of any sum received by the
General Administrative Agent hereunder from the U.S. Borrower in respect of the
Swing Line Loans, each U.S. Lender's participating interest therein (if any) and
the amount thereof payable to each Swing Line Lender.
(d) The entries made in the Register and the accounts of the Swing
Line Lenders maintained pursuant to this subsection 3.3 shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the U.S. Borrower therein recorded; provided,
however, that the failure of any Swing Line Lender or the Administrative Agents
to maintain the Register or any such account, or any error therein, shall not in
any manner affect the obligation of the U.S. Borrower to repay (with applicable
interest) the Swing Line Loans made to the U.S. Borrower by the Swing Line
Lenders in accordance with the terms of this Agreement.
3.4 Refunding of Swing Line Borrowings. (a) Each Swing Line Lender, at
any time in its sole and absolute discretion may, and, at any time when its
Swing Line Loans are outstanding for more than five Business Days, each Swing
Line Lender shall, on behalf of the U.S. Borrower (which hereby irrevocably
directs and authorizes such Swing Line Lender to act on its behalf), request
each U.S. Lender, including Chase and Bank of America, to make a U.S. Revolving
Credit Loan in an amount equal to such U.S. Lender's Swing Line Participation
Percentage of the greater of (i) the principal amount of the Swing Line Loans
(the "Refunded Swing Line Loans") outstanding on the date such notice is given
and (ii) $10,000,000; provided that the provisions of this subsection shall not
affect the U.S. Borrower's obligations to repay Swing Line Loans in accordance
with the provisions of subsections 3.3 and 9.4(d) and (f). Unless the U.S.
Revolving Credit Commitments shall have expired or terminated (in which event
the procedures of subsection 3.5 shall apply), each U.S. Lender will make the
proceeds of the U.S. Revolving Credit Loan made by it pursuant to the
immediately preceding sentence available to the General Administrative Agent at
the office of the General Administrative Agent specified in subsection 17.2
prior to 12:00 Noon, New York City time, in funds immediately available on the
Business Day next succeeding the date such notice is given. The proceeds of such
U.S. Revolving Credit Loans shall be immediately made available by the General
Administrative Agent to the Swing Line Lenders for application to the payment in
full of the Refunded Swing Line Loans; any proceeds of such U.S. Revolving
Credit Loans remaining after repayment of the Refunded Swing Line Loans in full
shall be made available to the U.S. Borrower by the General Administrative Agent
crediting the account of the U.S. Borrower at its office specified in subsection
17.2.
3.5 Participating Interests. (a) If the U.S. Revolving Credit
Commitments shall expire or terminate at any time while Swing Line Loans are
outstanding, each U.S. Lender shall, at the option of the Swing Line Lenders in
their sole discretion, either (i) notwithstanding the expiration or termination
of the U.S. Revolving Credit Commitments, make a U.S. Revolving Credit Loan or
(ii) purchase an undivided participating interest in the Swing Line Loans of
each Swing Line Lender, in either case in an amount equal to such U.S. Lender's
Swing Line Participation Percentage (determined on the date of, and immediately
prior to, expiration or termination of the U.S. Revolving Credit Commitments) of
the
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aggregate principal amount of such Swing Line Loans. Each U.S. Lender will make
the proceeds of any U.S. Revolving Credit Loan made by it pursuant to the
immediately preceding sentence available to the General Administrative Agent for
the account of the Swing Line Lenders at the office of the General
Administrative Agent specified in subsection 17.2 prior to 12:00 Noon, New York
City time, in funds immediately available on the Business Day next succeeding
the date on which the U.S. Revolving Credit Commitments expire or terminate. The
proceeds of such U.S. Revolving Credit Loans shall be immediately applied to
repay the Swing Line Loans outstanding on the date of termination or expiration
of the U.S. Revolving Credit Commitments. In the event that any of the U.S.
Lenders purchase undivided participating interests pursuant to the first
sentence of this subsection 3.5(a), each U.S. Lender shall immediately transfer
to each Swing Line Lender, in immediately available funds, the amount of its
participation in the Swing Line Loans of such Swing Line Lender and upon receipt
thereof each Swing Line Lender will deliver to any such U.S. Lender that so
requests a confirmation of such U.S. Lender's undivided participating interest
in the Swing Line Loans of such Swing Line Lender dated the date of receipt of
such funds and in such amount.
(b) Whenever, at any time after either Swing Line Lender has received
payment from any U.S. Lender in respect of such U.S. Lender's participating
interest in a Swing Line Loan of such Swing Line Lender, such Swing Line Lender
receives any payment on account thereof, such Swing Line Lender will distribute
to such U.S. Lender its participating interest in such amount (appropriately
adjusted, in the case of interest payments, to reflect the period of time during
which such U.S. Lender's participating interest was outstanding and funded);
provided, however, that in the event that any such payment received by such
Swing Line Lender is required to be returned, such U.S. Lender will return to
such Swing Line Lender any portion thereof previously distributed by such Swing
Line Lender to it.
3.6 No Swing Line Loans After Notice of Default. Each Swing Line
Lender agrees that it will not make any Swing Line Loans to the U.S. Borrower
from and after the date on which it receives a written notice from the U.S.
Borrower or any Lender referring to this Agreement and stating that a Default or
an Event of Default has occurred and is continuing hereunder until the date on
which such Default or Event of Default is no longer continuing.
SECTION 4. AMOUNT AND TERMS OF CAF ADVANCES
4.1 CAF Advances. Subject to the terms and conditions of this
Agreement, the U.S. Borrower may borrow CAF Advances in U.S. Dollars from time
to time on any Business Day during the CAF Advance Availability Period. CAF
Advances may be borrowed in amounts such that the Aggregate Total Outstandings
of all Lenders at any time shall not exceed the Aggregate U.S. Revolving Credit
Commitments at such time. Within the limits and on the conditions hereinafter
set forth with respect to CAF Advances, the U.S. Borrower from time to time may
borrow, repay and reborrow CAF Advances.
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42
4.2 Procedure for CAF Advance Borrowing. (a) The U.S. Borrower
shall request CAF Advances by delivering a CAF Advance Request to the General
Administrative Agent, not later than 12:00 Noon, New York City time, four
Business Days prior to the proposed Borrowing Date (in the case of a LIBO Rate
CAF Advance Request), and not later than 10:00 A.M., New York City time one
Business Day prior to the proposed Borrowing Date (in the case of a Fixed Rate
CAF Advance Request). Each CAF Advance Request in respect of any Borrowing Date
may solicit bids for CAF Advances on such Borrowing Date in an aggregate
principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof and having not more than three alternative CAF Advance Maturity Dates.
The CAF Advance Maturity Date for each CAF Advance shall be the date set forth
therefor in the relevant CAF Advance Request, which date shall be (i) not less
than 7 days nor more than 360 days after the Borrowing Date therefor, in the
case of a Fixed Rate CAF Advance, (ii) one, two, three, six, nine or twelve
months after the Borrowing Date therefor, in the case of a LIBO CAF Advance and
(iii) not later than the Revolving Credit Termination Date, in the case of any
CAF Advance. The General Administrative Agent shall notify each Lender promptly
by facsimile transmission of the contents of each CAF Advance Request received
by the General Administrative Agent.
(b) In the case of a LIBO Rate CAF Advance Request, upon receipt of
notice from the General Administrative Agent of the contents of such CAF Advance
Request, each Lender may elect, in its sole discretion, to offer irrevocably to
make one or more CAF Advances at the applicable LIBO Rate plus (or minus) a
margin determined by such Lender in its sole discretion for each such CAF
Advance. Any such irrevocable offer shall be made by delivering a CAF Advance
Offer to the General Administrative Agent, before 10:30 A.M., New York City
time, on the day that is three Business Days before the proposed Borrowing Date,
setting forth:
(i) the maximum amount of CAF Advances for each CAF Advance
Maturity Date and the aggregate maximum amount of CAF Advances for all CAF
Advance Maturity Dates which such Lender would be willing to make (which
amounts may, subject to subsection 4.1, exceed such Lender's U.S. Revolving
Credit Commitment); and
(ii) the margin above or below the applicable LIBO Rate at which
such Lender is willing to make each such CAF Advance.
The General Administrative Agent shall advise the U.S. Borrower before 11:00
A.M., New York City time, on the date which is three Business Days before the
proposed Borrowing Date of the contents of each such CAF Advance Offer received
by it. If the General Administrative Agent, in its capacity as a Lender, shall
elect, in its sole discretion, to make any such CAF Advance Offer, it shall
advise the U.S. Borrower of the contents of its CAF Advance Offer before 10:15
A.M., New York City time, on the date which is three Business Days before the
proposed Borrowing Date.
(c) In the case of a Fixed Rate CAF Advance Request, upon receipt of
notice from the General Administrative Agent of the contents of such CAF Advance
Request, each
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Lender may elect, in its sole discretion, to offer irrevocably to make one or
more CAF Advances at a rate of interest determined by such Lender in its sole
discretion for each such CAF Advance. Any such irrevocable offer shall be made
by delivering a CAF Advance Offer to the General Administrative Agent before
9:30 A.M., New York City time, on the proposed Borrowing Date, setting forth:
(i) the maximum amount of CAF Advances for each CAF Advance
Maturity Date, and the aggregate maximum amount for all CAF Advance
Maturity Dates, which such Lender would be willing to make (which amounts
may, subject to subsection 4.1, exceed such Lender's U.S. Revolving Credit
Commitment); and
(ii) the rate of interest at which such Lender is willing to make
each such CAF Advance.
The General Administrative Agent shall advise the U.S. Borrower before 10:00
A.M., New York City time, on the proposed Borrowing Date of the contents of each
such CAF Advance Offer received by it. If the General Administrative Agent, in
its capacity as a Lender, shall elect, in its sole discretion, to make any such
CAF Advance Offer, it shall advise the U.S. Borrower of the contents of its CAF
Advance Offer before 9:15 A.M., New York City time, on the proposed Borrowing
Date.
(d) Before 11:30 A.M., New York City time, three Business Days before
the proposed Borrowing Date (in the case of CAF Advances requested by a LIBO
Rate CAF Advance Request) and before 10:30 A.M., New York City time, on the
proposed Borrowing Date (in the case of CAF Advances requested by a Fixed Rate
CAF Advance Request), the U.S. Borrower, in its absolute discretion, shall:
(i) cancel such CAF Advance Request by giving the General
Administrative Agent telephone notice to that effect, or
(ii) by giving telephone notice to the General Administrative
Agent (immediately confirmed by delivery to the General Administrative
Agent of a CAF Advance Confirmation by facsimile transmission) (A) subject
to the provisions of subsection 4.2(e), accept one or more of the offers
made by any Lender or Lenders pursuant to subsection 4.2(b) or subsection
4.2(c), as the case may be, and (B) reject any remaining offers made by
Lenders pursuant to subsection 4.2(b) or subsection 4.2(c), as the case may
be.
(e) The U.S. Borrower's acceptance of CAF Advances in response to any
CAF Advance Offers shall be subject to the following limitations:
(i) the amount of CAF Advances accepted for each CAF Advance
Maturity Date specified by any Lender in its CAF Advance Offer shall not
exceed the maximum amount for such CAF Advance Maturity Date specified in
such CAF Advance Offer;
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(ii) the aggregate amount of CAF Advances accepted for all CAF
Advance Maturity Dates specified by any Lender in its CAF Advance Offer
shall not exceed the aggregate maximum amount specified in such CAF Advance
Offer for all such CAF Advance Maturity Dates;
(iii) the U.S. Borrower may not accept offers for CAF Advances
for any CAF Advance Maturity Date in an aggregate principal amount in
excess of the maximum principal amount requested in the related CAF Advance
Request; and
(iv) if the U.S. Borrower accepts any of such offers, it must
accept offers based solely upon pricing for each relevant CAF Advance
Maturity Date and upon no other criteria whatsoever, and if two or more
Lenders submit offers for any CAF Advance Maturity Date at identical
pricing and the U.S. Borrower accepts any of such offers but does not wish
to (or, by reason of the limitations set forth in subsection 4.1, cannot)
borrow the total amount offered by such Lenders with such identical
pricing, the U.S. Borrower shall accept offers from all of such Lenders in
amounts allocated among them pro rata according to the amounts offered by
such Lenders (with appropriate rounding, in the sole discretion of the U.S.
Borrower, to assure that each accepted CAF Advance is an integral multiple
of $1,000,000); provided that if the number of Lenders that submit offers
for any CAF Advance Maturity Date at identical pricing is such that, after
the U.S. Borrower accepts such offers pro rata in accordance with the
foregoing provisions of this paragraph, the CAF Advance to be made by any
such Lender would be less than $5,000,000 principal amount, the number of
such Lenders shall be reduced by the General Administrative Agent by lot
until the CAF Advances to be made by each such remaining Lender would be in
a principal amount of $5,000,000 or an integral multiple of $1,000,000 in
excess thereof.
(f) If the U.S. Borrower notifies the General Administrative Agent
that a CAF Advance Request is cancelled pursuant to subsection 4.2(d)(i), the
General Administrative Agent shall give prompt telephone notice thereof to the
Lenders.
(g) If the Borrower accepts pursuant to subsection 4.2(d)(ii) one or
more of the offers made by any Lender or Lenders, the General Administrative
Agent promptly shall notify each Lender which has made such an offer of (i) the
aggregate amount of such CAF Advances to be made on such Borrowing Date for each
CAF Advance Maturity Date and (ii) the acceptance or rejection of any offers to
make such CAF Advances made by such Lender. Before 12:00 Noon, New York City
time, on the Borrowing Date specified in the applicable CAF Advance Request,
each Lender whose CAF Advance Offer has been accepted shall make available to
the General Administrative Agent at its office set forth in subsection 17.2 the
amount of CAF Advances to be made by such Lender, in immediately available
funds. The General Administrative Agent will make such funds available to the
U.S. Borrower as soon as practicable on such date at such office of the General
Administrative Agent. As soon as practicable after each Borrowing Date, the
General Administrative Agent shall notify each Lender of the aggregate amount of
CAF Advances advanced on such Borrowing Date and the respective CAF Advance
Maturity Dates thereof.
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4.3 CAF Advance Payments. (a) The U.S. Borrower shall pay to the
General Administrative Agent, for the account of each Lender which has made a
CAF Advance, on the applicable CAF Advance Maturity Date the then unpaid
principal amount of such CAF Advance. The U.S. Borrower shall not have the
right to prepay any principal amount of any CAF Advance without the consent of
the Lender to which such CAF Advance is owed.
(b) The U.S. Borrower shall pay interest on the unpaid principal
amount of each CAF Advance from the Borrowing Date to applicable CAF Advance
Maturity Date at the rate of interest specified in the CAF Advance Offer
accepted by the Borrower in connection with such CAF Advance (calculated on the
basis of a 360-day year for actual days elapsed), payable on each applicable CAF
Advance Interest Payment Date.
(c) If any principal of, or interest on, any CAF Advance shall not be
paid when due (whether at the stated maturity, by acceleration or otherwise),
such CAF Advance shall, without limiting any rights of any Lender under this
Agreement, bear interest from the date on which such payment was due at a rate
per annum which is 2% above the rate which would otherwise be applicable to such
CAF Advance until the stated CAF Advance Maturity Date of such CAF Advance, and
for each day thereafter at a rate per annum which is 2% above the ABR, in each
case until paid in full (as well after as before judgment). Interest accruing
pursuant to this paragraph (c) shall be payable from time to time on demand.
4.4 Evidence of Debt. (a) The U.S. Borrower unconditionally promises
to pay to the General Administrative Agent, for the account of each Lender that
makes a CAF Advance, on the CAF Advance Maturity Date with respect thereto, the
principal amount of such CAF Advance. The U.S. Borrower further unconditionally
promises to pay interest on each such CAF Advance for the period from and
including the Borrowing Date of such CAF Advance on the unpaid principal amount
thereof from time to time outstanding at the applicable rate per annum
determined as provided in, and payable as specified in, subsection 4.3(b).
(b) Each Lender shall maintain in accordance with its usual practice
appropriate records evidencing indebtedness of the U.S. Borrower to such Lender
resulting from each CAF Advance of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time in respect of such CAF Advance.
(c) The General Administrative Agent shall maintain the Register
pursuant to subsection 17.6(d), and a record therein for each Lender, in which
shall be recorded (i) the amount of each CAF Advance made by such Lender, the
CAF Advance Maturity Date thereof, the interest rate applicable thereto and each
CAF Advance Interest Payment Date applicable thereto, and (ii) the amount of any
sum received by the General Administrative Agent hereunder from the U.S.
Borrower on account of such CAF Advance.
(d) The entries made in the Register and the records of each Lender
maintained pursuant to this subsection 4.4 shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein
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46
recorded; provided, however, that the failure of any Lender or the General
Administrative Agent to maintain the Register or any such record, or any error
therein, shall not in any manner affect the obligation of the Borrower to repay
(with applicable interest) the CAF Advances made by such Lender in accordance
with the terms of this Agreement.
4.5 Certain Restrictions. A CAF Advance Request may request offers
for CAF Advances to be made on not more than one Borrowing Date and to mature on
not more than three CAF Advance Maturity Dates. No CAF Advance Request may be
submitted earlier than five Business Days after submission of any other CAF
Advance Request.
SECTION 5. AMOUNT AND TERMS OF THE CANADIAN
COMMITMENTS
5.1 Canadian Revolving Credit Commitments. Subject to the terms and
conditions hereof, each Canadian Lender severally agrees to make revolving
credit loans (each, a "Canadian Revolving Credit Loan") in Canadian Dollars to
the Canadian Borrower from time to time during the Revolving Credit Commitment
Period so long as after giving effect thereto (i) the Available Canadian
Revolving Credit Commitment of each Canadian Lender is greater than or equal to
zero and (ii) the Aggregate Total Outstandings of all Lenders do not exceed the
Aggregate U.S. Revolving Credit Commitments. During the Revolving Credit
Commitment Period, the Canadian Borrower may use the Canadian Revolving Credit
Commitments by borrowing, repaying the Canadian Revolving Credit Loans in whole
or in part, and reborrowing, all in accordance with the terms and conditions
hereof. The Canadian Revolving Credit Loans shall be Prime Rate Loans.
5.2 Repayment of Canadian Revolving Credit Loans; Evidence of Debt.
(a) The Canadian Borrower hereby unconditionally promises to pay to the
Canadian Administrative Agent for the account of each Canadian Lender the then
unpaid principal amount of each Canadian Revolving Credit Loan of such Canadian
Lender (whether made before or after the termination or expiration of the
Canadian Revolving Credit Commitments) on the Revolving Credit Termination Date
and on such other date(s) and in such other amounts as may be required from time
to time pursuant to this Agreement. The Canadian Borrower hereby further agrees
to pay interest on the unpaid principal amount of the Canadian Revolving Credit
Loans from time to time outstanding until payment thereof in full at the rates
per annum, and on the dates, set forth in subsection 9.1.
(b) Each Canadian Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Canadian Borrower
to such Canadian Lender resulting from each Canadian Revolving Credit Loan of
such Canadian Lender from time to time, including the amounts of principal and
interest payable thereon and paid to such Canadian Lender from time to time
under this Agreement.
(c) The Canadian Administrative Agent (together with the General
Administrative Agent) shall maintain the Register pursuant to subsection
17.6(d), and a subaccount therein for each Canadian Lender, in which shall be
recorded (i) the amount of
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each Canadian Revolving Credit Loan made hereunder, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Canadian Borrower to each Canadian Lender hereunder in respect of the Canadian
Revolving Credit Loans and (iii) both the amount of any sum received by the
Canadian Administrative Agent hereunder from the Canadian Borrower in respect of
the Canadian Revolving Credit Loans and each Canadian Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Canadian Lender maintained pursuant to subsection 5.2(b) shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the Canadian Borrower therein recorded; provided,
however, that the failure of any Canadian Lender or the Administrative Agents to
maintain the Register or any such account, or any error therein, shall not in
any manner affect the obligation of the Canadian Borrower to repay (with
applicable interest) the Canadian Revolving Credit Loans made to the Canadian
Borrower by such Canadian Lender in accordance with the terms of this Agreement.
(e) The Canadian Borrower agrees that, upon the request to the
Canadian Administrative Agent by any Canadian Lender, it will execute and
deliver to such Canadian Lender a promissory note of the Canadian Borrower
evidencing the Canadian Revolving Credit Loans of such Canadian Lender,
substantially in the form of Exhibit B with appropriate insertions as to date
and principal amount (each, a "Canadian Revolving Credit Note"); provided, that
the delivery of such Canadian Revolving Credit Notes shall not be a condition
precedent to the Effective Date.
5.3 Procedure for Canadian Revolving Credit Borrowing. The Canadian
Borrower may borrow under the Canadian Revolving Credit Commitments during the
Revolving Credit Commitment Period on any Business Day, provided that the
Canadian Borrower shall give the Canadian Administrative Agent irrevocable
notice (which notice must be received by the Canadian Administrative Agent prior
to 11:00 a.m., Toronto time, at least one Business Day prior to the requested
Borrowing Date), specifying (i) the amount to be
borrowed and (ii) the requested Borrowing Date. Each borrowing under the
Canadian Revolving Credit Commitments shall be in an amount equal to C$5,000,000
or a whole multiple of C$1,000,000 in excess thereof (or, if the then Aggregate
Available Canadian Revolving Credit Commitments are less than C$5,000,000, such
lesser amount). Upon receipt of any such notice from the Canadian Borrower, the
Canadian Administrative Agent shall promptly notify the General Administrative
Agent and each Canadian Lender thereof. Not later than 12:00 Noon, Toronto
time, on each requested Borrowing Date each Canadian Lender shall make an amount
equal to its Canadian Revolving Credit Commitment Percentage of the principal
amount of Canadian Revolving Credit Loans requested to be made on such Borrowing
Date available to the Canadian Administrative Agent at its office specified in
subsection 17.2 in Canadian Dollars and in immediately available funds. The
Canadian Administrative Agent shall on such date credit the account of the
Canadian Borrower on the books of such office with the aggregate of the amounts
made available to the Canadian Administrative Agent by the Canadian Lenders and
in like funds as received by the Canadian Administrative Agent.
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5.4 Termination or Reduction of Canadian Revolving Credit
Commitments. The Canadian Borrower shall have the right, upon not less than
three Business Days' notice to the Canadian Administrative Agent, to terminate
the Canadian Revolving Credit Commitments or, from time to time, to reduce the
amount of the Canadian Revolving Credit Commitments; provided that no such
termination or reduction shall be permitted (i) unless the U.S. Borrower elects
to terminate or reduce the U.S. Revolving Credit Commitments of the U.S. Common
Lenders by an amount equal to the U.S. Dollar Equivalent of the aggregate
Canadian Revolving Credit Commitments of all Canadian Lenders being reduced or
terminated or (ii) if, after giving effect thereto and to any prepayments of the
Loans made on the effective date thereof, (B) the Available Canadian Revolving
Credit Commitment of any Canadian Lender would be less than zero. Any such
reduction shall be in an amount equal to C$5,000,000 or a whole multiple of
C$1,000,000 in excess thereof and shall reduce permanently the Canadian
Revolving Credit Commitments then in effect.
SECTION 6. AMOUNT AND TERMS OF CANADIAN
ACCEPTANCE FACILITY
6.1 Acceptance Commitments. (a) Subject to the terms and conditions
hereof, each Canadian Lender agrees to create Acceptances for the Canadian
Borrower on any Business Day during the Revolving Credit Commitment Period by
accepting Drafts drawn by the Canadian Borrower; provided that no Canadian
Lender shall be obligated to accept any Draft if, after giving effect to such
acceptance, (i) the Available Canadian Revolving Credit Commitment of any
Canadian Lender would be less than zero or (ii) the Aggregate Total Outstandings
of all Lenders would exceed the Aggregate U.S. Revolving Credit Commitments.
(b) The Canadian Borrower may utilize the Canadian Revolving Credit
Commitments in the manner contemplated by this Section 6 by authorizing each
Canadian Lender in the manner provided for in subsection 6.2(b) to draw Drafts
on such Canadian Lender and having such Drafts accepted pursuant to subsection
6.2, paying its obligations with respect thereto pursuant to subsection 6.5, and
again, from time to time, authorizing Drafts to be drawn on the Canadian Lenders
and having them presented for acceptance, all in accordance with the terms and
conditions of this Section 6.
(c) For the purposes of this Agreement but subject to the provisions
of Part C of Annex A, all Acceptances shall be considered a utilization of the
Canadian Revolving Credit Commitments in an amount equal to the undiscounted
face amount of such Acceptance.
6.2 Creation of Acceptances. (a) The Canadian Borrower may request
the creation of Acceptances hereunder by submitting to the Canadian
Administrative Agent at its office specified in subsection 17.2 prior to 11:00
A.M., Toronto time, one Business Day prior to the requested Borrowing Date, (i)
a request for acceptances (each, a "Request for Acceptances") completed in a
manner and in form and substance reasonably satisfactory to the Canadian
Administrative Agent and specifying, among other things, the Borrowing Date,
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49
maturity and amount of the Drafts to be accepted and discounted, (ii) to the
extent not theretofore supplied to each Canadian Lender, a sufficient number of
Drafts to be drawn on the Canadian Lenders, to be appropriately completed in
accordance with subsection 6.2(d) and (iii) such other certificates, documents
and other papers and information as the Canadian Administrative Agent may
reasonably request. Upon receipt of any such Request for Acceptances, the
Canadian Administrative Agent shall promptly notify each Canadian Lender and the
General Administrative Agent of its receipt thereof.
(b) In connection with each utilization by it of the Canadian
Revolving Credit Commitments by way of Acceptances, the Canadian Borrower hereby
agrees that it shall deliver to the Canadian Administrative Agent on or prior to
the Effective Date, Powers of Attorney substantially in the form annexed hereto
as Exhibit D (the "Powers of Attorney") authorizing each Canadian Lender to draw
Drafts on such Canadian Lender on behalf of the Canadian Borrower and to
complete such Drafts in accordance with the Requests for Acceptances submitted
from time to time pursuant to subsection 6.2(a).
(c) Each Request for Acceptances made by or on behalf of the Canadian
Borrower hereunder shall contain a request for Acceptances denominated in
Canadian Dollars and having an aggregate undiscounted face amount equal to
C$10,000,000 or a whole multiple of C$1,000,000 in excess thereof. Each
Acceptance shall be dated the Borrowing Date specified in the Request for
Acceptances with respect thereto and shall be stated to mature on a Business Day
which is not less than 30 days and not more than 180 days after the date thereof
(and, in any event, prior to the Revolving Credit Termination Date).
(d) Not later than 12:00 Noon, Toronto time, on the Borrowing Date
specified in the relevant Request for Acceptances, and upon fulfillment of the
applicable conditions set forth in subsection 11.2, each Canadian Lender will,
in accordance with such Request for Acceptances, (i) sign each Draft on behalf
of the Canadian Borrower pursuant to the Power of Attorney, (ii) complete the
date, amount and maturity of each Draft to be accepted, (iii) accept such Drafts
and give notice to the Canadian Administrative Agent of such acceptance and (iv)
upon such acceptance, discount such Acceptances to the extent contemplated by
subsection 6.3.
6.3 Discount of Acceptances. (a) Each Canadian Lender hereby
agrees, on the terms and subject to the conditions set forth in this Agreement,
to discount Acceptances created by it on the Borrowing Date with respect thereto
at the applicable Reference Discount Rate by making available to the Canadian
Borrower an amount in immediately available funds equal to the Acceptance
Purchase Price in respect thereof, and to notify the Canadian Administrative
Agent that such Draft has been accepted and discounted by such accepting
Canadian Lender.
(b) In the event that the Canadian Borrower has made a Request for
Acceptances, then (i) prior to 11:00 A.M., Toronto time, on the Borrowing Date
with respect thereto, the Canadian Administrative Agent will notify the General
Administrative Agent, the Canadian Borrower and the Canadian Lenders of the
applicable Reference Discount Rate for such Acceptances and the corresponding
Acceptance Purchase Price and (ii) each Canadian
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50
Lender shall make the Acceptance Purchase Price for such Acceptances discounted
by it available to the Canadian Administrative Agent, for the account of the
Canadian Borrower, at the office of the Canadian Administrative Agent specified
in subsection 17.2 prior to 12:00 Noon, Toronto time, on the Borrowing Date, in
Canadian Dollars and in funds immediately available to the Canadian
Administrative Agent. Such borrowing will then be made available to the Canadian
Borrower by the Canadian Administrative Agent crediting the account of the
Canadian Borrower on the books of such office with the aggregate of the amounts
made available to the Canadian Administrative Agent by the Canadian Lenders and
in like funds as received by the Canadian Administrative Agent.
(c) Acceptances discounted by any Canadian Lender may be held by it
for its own account until maturity or sold by it at any time prior thereto in
the relevant market therefor in Canada in such Canadian Lender's sole
discretion.
6.4 Stamping Fees. On the Borrowing Date with respect to each
Acceptance, the Canadian Borrower shall pay to the Canadian Administrative
Agent, for the account of the Canadian Lenders, a stamping fee at a rate per
annum equal to the Applicable Margin in effect on such Borrowing Date for
Eurodollar Loans, computed for the period from and including the Borrowing Date
with respect to such Acceptance to but not including the maturity of such
Acceptance, on the basis of a 365-day year, of the undiscounted face amount of
such Acceptance.
6.5 Acceptance Reimbursement Obligations. (a) Subject to the
provisions of Part C of Annex A, the Canadian Borrower hereby unconditionally
agrees to pay to the Canadian Administrative Agent for the account of each
Canadian Lender, on the maturity date (whether at stated maturity, by
acceleration or otherwise) for each Acceptance created by such Canadian Lender
for the account of the Canadian Borrower, the aggregate undiscounted face amount
of each such then-maturing Acceptance.
(b) Subject to the provisions of Part C of Annex A, the obligation of
the Canadian Borrower to reimburse the Canadian Lenders for then-maturing
Acceptances may be satisfied by the Canadian Borrower by:
(i) paying to the Canadian Administrative Agent, for the
account of the Canadian Lenders, an amount in Canadian Dollars and in
immediately available funds equal to the aggregate undiscounted face amount
of all Acceptances created for the account of the Canadian Borrower
hereunder which are then maturing by 12:00 Noon, Toronto time, on such
maturity date; provided that the Canadian Borrower shall have given not
less than one Business Day's prior notice to the Canadian Administrative
Agent (which shall promptly notify each Canadian Lender thereof) of its
intent to reimburse the Canadian Lenders in the manner contemplated by this
clause (i);
(ii) having new Drafts accepted and discounted by the Canadian
Lenders in the manner contemplated by subsections 6.2 and 6.3 in
substitution for the then-maturing Acceptances; provided that (A) the
Canadian Borrower shall have delivered to the Canadian Administrative Agent
(which shall promptly provide a copy thereof to
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51
each Canadian Lender) a duly completed Request for Acceptances not later
than 2:00 P.M., Toronto time, one Business Day prior to such maturity date,
together with the documents, instruments, certificates and other papers and
information contemplated by subsections 6.2(a)(ii) and 6.2(a)(iii), (B) if
any Default or Event of Default has occurred and is then continuing, the
Request for Acceptances shall be deemed to be a request for a Canadian
Revolving Credit Loan in an amount equal to the undiscounted face amount of
the Acceptances requested, (C) each Canadian Lender shall either (I) in the
case of maturing Acceptances which are not Existing Acceptances, retain the
Acceptance Purchase Price for the Acceptance created by it and apply such
Acceptance Purchase Price to the Acceptance Reimbursement Obligations of
the Canadian Borrower in respect of the maturing Acceptance created by such
Canadian Lender or (II) in the case of maturing Existing Acceptances,
transfer an amount in Canadian Dollars and immediately available funds
equal to such Acceptance Purchase Price to the Canadian Administrative
Agent not later than 12:00 Noon, Toronto time on the requested Borrowing
Date for application by the Canadian Administrative Agent to the repayment
of such maturing Existing Acceptances pursuant to Part C of Annex A, and
(D) if the Acceptance Purchase Price so retained by such Canadian Lender is
less than the undiscounted face amount of the then-maturing Acceptance, the
Canadian Borrower shall have made arrangements reasonably satisfactory to
such Canadian Lender (and, in the case of maturing Existing Acceptances,
the Canadian Administrative Agent) for payment of such deficiency; or
(iii) to the extent that the Canadian Borrower has not given
to the Canadian Administrative Agent a notice contemplated by clause (i) or
(ii) above, then the Canadian Borrower shall be deemed to have requested a
borrowing pursuant to subsection 5.1 of Canadian Revolving Credit Loans in
an aggregate principal amount equal to the undiscounted face amount of such
then-maturing Acceptance. The Borrowing Date with respect to such
borrowing shall be the maturity date (or such earlier date on which the
Canadian Revolving Credit Commitments shall be terminated) for such
Acceptance. Except to the extent that any of the events contemplated by
clause (i) or (ii) of paragraph (f) of Section 15 with respect to the
Canadian Borrower has occurred and is then continuing (in which case the
Canadian Borrower shall be obligated to pay to each Canadian Lender the
undiscounted face amount of the Acceptances created by such Canadian Lender
which are then maturing or, if applicable, to pay to each Existing Canadian
Lender the undiscounted face amount of the Existing Acceptances created by
such Existing Canadian Lender which are then maturing), each Canadian
Lender shall be obligated to make the Canadian Revolving Credit Loan
contemplated by this subsection 6.5(b)(iii) regardless of whether the
conditions precedent to borrowing set forth in this Agreement are then
satisfied. The proceeds of any Canadian Revolving Credit Loans made
pursuant to this subsection 6.5(b)(iii) shall be retained by the Canadian
Lenders and applied by them to the Acceptance Reimbursement Obligations of
the Canadian Borrower in respect of the then-maturing Acceptance or
Existing Acceptance.
(c) The unpaid amount of any such Acceptance Reimbursement
Obligations shall be treated as a Canadian Revolving Credit Loan for the
purposes hereof and interest
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52
shall accrue on the amount of any such unpaid Acceptance Reimbursement
Obligation from the date such amount becomes due until paid in full at a
fluctuating rate per annum equal to the rate which would then be payable on
Canadian Revolving Credit Loans. Such interest shall be payable by the Canadian
Borrower on demand by the Canadian Administrative Agent.
(d) In no event shall the Canadian Borrower claim from any Canadian
Lender or any Existing Canadian Lender any grace period with respect to the
payment at maturity of any Acceptances created by such Canadian Lender or
Existing Canadian Lender pursuant to this Agreement.
6.6 Converting Canadian Revolving Credit Loans to Acceptances and
Acceptances to Canadian Revolving Credit Loans. (a) Subject to subsection
6.6(b), the Canadian Borrower may at any time and from time to time request that
any then outstanding Canadian Revolving Credit Loan be converted into an
Acceptance by delivering to the Canadian Administrative Agent (which shall
promptly notify the General Administrative Agent and each Canadian Lender of its
receipt thereof) a Request for Acceptances, together with a statement that the
Acceptances so requested are to be created pursuant to this subsection 6.6(a),
such notice to be given not later than one Business Day prior to the requested
conversion date.
(b) In the event that the Canadian Administrative Agent receives such
a Request for Acceptances and the accompanying statement described in subsection
6.6(a), then the Canadian Borrower shall pay on the requested Borrowing Date to
the Canadian Administrative Agent, for the account of the Canadian Lenders, the
principal amount of the then outstanding Canadian Revolving Credit Loans being
so converted, and each Canadian Lender shall accept and discount the Canadian
Borrower's Drafts having an aggregate face amount at least equal to the
principal amount of the Canadian Revolving Credit Loans of such Canadian Lender
which are then being repaid; it being understood and agreed that for the
purposes of this subsection 6.6(b), such payment by the Canadian Borrower of
such outstanding Canadian Revolving Credit Loans may be from the proceeds of
such discounted Drafts; provided that, (i) following the occurrence and during
the continuance of a Default or an Event of Default, no Acceptances may be
created and (ii) no Acceptance which is permitted to be created hereunder shall
have a maturity that extends beyond the Revolving Credit Termination Date.
(c) The creation of Acceptances pursuant to this subsection 6.6 shall
not be subject to the satisfaction of the conditions precedent to borrowing set
forth in this Agreement.
(d) The Canadian Borrower may elect from time to time to convert
outstanding Acceptances to Canadian Revolving Credit Loans by giving the
Canadian Administrative Agent at least one Business Day's irrevocable notice of
such election prior to the maturity of such Acceptances; provided that any such
conversion of Acceptances may only be made on the maturity thereof.
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53
6.7 Acceptances to be Supplemented by Canadian Revolving Credit Loans
in order to be Created Ratably. The Canadian Borrower hereby agrees that each
Request for Acceptances, reimbursement of Acceptances and conversion of Canadian
Revolving Credit Loans to Acceptances shall be made in a manner so that, except
to the extent required by Part C of Annex A with respect to the repayment of
maturing Existing Acceptances, any such Request for Acceptances, reimbursement
or conversion shall apply ratably to all Canadian Lenders in accordance with
their respective Canadian Revolving Credit Commitment Percentages. In the event
that the aggregate undiscounted face amount of Acceptances requested by the
Canadian Borrower to be created by all Canadian Lenders hereunder pursuant to
any Request for Acceptances is an amount which, if divided ratably among the
Canadian Lenders in accordance with their respective Canadian Revolving Credit
Commitment Percentages, would not result in each Canadian Lender accepting a
Draft which has an undiscounted face amount equal to C$100,000 or a whole
multiple of C$100,000 in excess thereof, then each Canadian Lender's ratable
share of such Acceptance shall be rounded downward to an amount which is equal
to C$100,000 or a whole multiple of C$100,000 in excess thereof, and the
Canadian Borrower shall be deemed to have requested that such Canadian Lender
make a Canadian Revolving Credit Loan to the Canadian Borrower (which Canadian
Revolving Credit Loan need not satisfy the minimum borrowing requirements of
subsection 5.3) on the date upon which such Draft is to be accepted in the
amount by which such Canadian Lender's ratable share (determined in accordance
with its Canadian Revolving Credit Commitment Percentage) of the undiscounted
face amount of the Acceptance requested in such Request for Acceptances was
rounded downward. Notwithstanding any provision in this subsection 6.7 to the
contrary, the Canadian Administrative Agent is authorized by the Canadian
Borrower and the Canadian Lenders to allocate among the Canadian Lenders the
Acceptances to be issued in such manner and amounts as the Canadian
Administrative Agent may, in its sole discretion, acting reasonably, consider
necessary, rounding up or down, so as to ensure that no Canadian Lender is
required to accept a Draft for a fraction of $100,000 and, in such event, the
Canadian Lenders' ratable share with respect to such Acceptances shall be
adjusted accordingly.
6.8 Special Provisions Relating to Acceptance Notes. (a) The Canadian
Borrower and each Canadian Lender hereby acknowledge and agree that from time to
time certain Canadian Lenders which are not Canadian chartered banks or which
are Schedule II Canadian Lenders may not be authorized to or may, as a matter of
general corporate policy, elect not to accept Drafts, and the Canadian Borrower
and each Canadian Lender agree that any such Canadian Lender may purchase
Acceptance Notes of the Canadian Borrower in accordance with the provisions of
subsection 6.8(b) in lieu of creating Acceptances for its account.
(b) In the event that any Canadian Lender described in subsection
6.8(a) above is unable to, or elects as a matter of general corporate policy not
to, create Acceptances hereunder, such Canadian Lender shall not create
Acceptances hereunder, but rather, if the Canadian Borrower requests the
creation of such Acceptances, the Canadian Borrower shall deliver to such
Canadian Lender non-interest bearing promissory notes (each, an "Acceptance
Note") of the Canadian Borrower, substantially in the form of Exhibit E, having
the same maturity as the Acceptances to be created and in an aggregate principal
amount equal to the
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54
undiscounted face amount of such Acceptances. Each such Canadian Lender hereby
agrees to purchase Acceptance Notes from the Canadian Borrower at a purchase
price equal to the Acceptance Purchase Price which would have been applicable if
a Draft in the same aggregate face amount as the principal amount of its
Acceptance Notes had been accepted by it (less any stamping fee which would have
been paid pursuant to subsection 5.4 if such Lender had created an Acceptance)
and such Acceptance Notes shall be governed by the provisions of this Section 6
as if they were Acceptances.
SECTION 7. AMOUNT AND TERMS OF MULTICURRENCY
COMMITMENT
7.1 Multicurrency Commitments. Subject to the terms and conditions
hereof, each Multicurrency Lender severally agrees to make revolving credit
loans (each, a "Multicurrency Loan") in any Available Foreign Currency to any
Foreign Subsidiary Borrower from time to time during the Revolving Credit
Commitment Period so long as after giving effect thereto (a) the Available
Multicurrency Commitment of each Multicurrency Lender is greater than or equal
to zero, (b) the aggregate outstanding principal amount of Multicurrency Loans
does not exceed an amount of which the U.S. Dollar Equivalent is $500,000,000
and (c) the Aggregate Total Outstandings of all Lenders do not exceed the
Aggregate U.S. Revolving Credit Commitments. During the Revolving Credit
Commitment Period, any Foreign Subsidiary Borrower may use the Multicurrency
Commitments by borrowing, repaying the Multicurrency Loans in whole or in part,
and reborrowing, all in accordance with the terms and conditions hereof.
7.2 Repayment of Multicurrency Loans; Evidence of Debt. (a) Each
Foreign Subsidiary Borrower hereby unconditionally promises to pay to the
General Administrative Agent for the account of each Multicurrency Lender the
then unpaid principal amount of each Multicurrency Loan of such Multicurrency
Lender to such Foreign Subsidiary Borrower on the Revolving Credit Termination
Date and on such other date(s) and in such other amounts as may be required from
time to time pursuant to this Agreement. Each Foreign Subsidiary Borrower hereby
further agrees to pay interest on the unpaid principal amount of the
Multicurrency Loans advanced to it and from time to time outstanding until
payment thereof in full at the rates per annum, and on the dates, set forth in
subsection 9.1.
(b) Each Multicurrency Lender shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of each Foreign
Subsidiary Borrower to such Multicurrency Lender resulting from each
Multicurrency Loan of such Multicurrency Lender from time to time, including the
amounts of principal and interest payable thereon and paid to such Multicurrency
Lender from time to time under this Agreement.
(c) The General Administrative Agent shall maintain the Register
pursuant to subsection 17.6(d), and a subaccount therein for each Multicurrency
Lender, in which shall be recorded (i) the amount of each Multicurrency Loan
made hereunder, (ii) the amount of any principal or interest due and payable or
to become due and payable from each Foreign Subsidiary Borrower to each
Multicurrency Lender hereunder in respect of the Multicurrency
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55
Loans and (iii) both the amount of any sum received by the General
Administrative Agent hereunder from each Foreign Subsidiary Borrower in respect
of the Multicurrency Loans and each Multicurrency Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Multicurrency Lender maintained pursuant to subsection 7.2(b) shall, to the
extent permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of each Foreign Subsidiary Borrower therein recorded;
provided, however, that the failure of any Multicurrency Lender or the General
Administrative Agent to maintain the Register or any such account, or any error
therein, shall not in any manner affect the obligation of such Foreign
Subsidiary Borrower to repay (with applicable interest) the Multicurrency Loans
made to such Foreign Subsidiary Borrower by such Multicurrency Lender in
accordance with the terms of this Agreement.
7.3 Procedure for Multicurrency Borrowing. Any Foreign Subsidiary
Borrower may request the Multicurrency Lenders to make Multicurrency Loans
during the Revolving Credit Commitment Period on any Business Day by delivering
a Notice of Multicurrency Loan Borrowing. Each borrowing under the Multicurrency
Commitments shall be in an amount in an Available Foreign Currency of which the
U.S. Dollar Equivalent is equal to at least $10,000,000 (or, if the then
Aggregate Available Multicurrency Commitments are less than $10,000,000, such
lesser amount). Upon receipt of any such Notice of Multicurrency Borrowing from
any Foreign Subsidiary Borrower, the General Administrative Agent shall promptly
notify each Multicurrency Lender thereof. Not later than the funding time for
the relevant Available Foreign Currency set forth in the Administrative Schedule
each Multicurrency Lender shall make an amount equal to its Multicurrency
Commitment Percentage of the principal amount of Multicurrency Loans requested
to be made on such Borrowing Date available to the General Administrative Agent
at the funding office for the relevant Available Foreign Currency set forth in
the Administrative Schedule in the relevant Available Foreign Currency and in
immediately available funds. The amounts made available by each Multicurrency
Lender will then be made available to the relevant Foreign Subsidiary Borrower
at the funding office for the relevant Available Foreign Currency set forth in
the Administrative Schedule and in like funds as received by the General
Administrative Agent.
7.4 Termination or Reduction of Multicurrency Commitments. The U.S.
Borrower shall have the right, upon not less than three Business Days' notice to
the General Administrative Agent, to terminate the Multicurrency Commitments or,
from time to time, to reduce the amount of the Multicurrency Commitments;
provided that no such termination or reduction shall be permitted if, after
giving effect thereto and to any prepayments of the Loans made on the effective
date thereof, the Available Multicurrency Commitment of any Multicurrency Lender
would be less than zero. Any such reduction shall be in an amount equal to
U.S.$10,000,000 or a whole multiple of U.S.$1,000,000 in excess thereof and
shall reduce permanently the Multicurrency Commitments then in effect.
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56
SECTION 8. ALTERNATE CURRENCY FACILITIES
8.1 Terms of Alternate Currency Facilities. (a) Subject to the
provisions of this Section 8, the U.S. Borrower may in its discretion from time
to time designate any Subsidiary of the U.S. Borrower organized under the laws
of any jurisdiction outside the United States as an "Alternate Currency
Borrower" and any Qualified Credit Facility to which such Alternate Currency
Borrower and any one or more Lenders (or its affiliates, agencies or branches)
is a party as an "Alternate Currency Facility", with the consent of each such
Lender in its sole discretion, by delivering an Alternate Currency Facility
Addendum to the General Administrative Agent and the Lenders (through the
General Administrative Agent) executed by the U.S. Borrower, each such Alternate
Currency Borrower and each such Lender, provided, that on the effective date of
such designation no Event of Default shall have occurred and be continuing.
Concurrently with the delivery of an Alternate Currency Facility Addendum, the
U.S. Borrower or the relevant Alternate Currency Borrower shall furnish to the
General Administrative Agent copies of all documentation executed and delivered
by any Alternate Currency Borrower in connection therewith, together with, if
applicable, an English translation thereof. Except as otherwise provided in this
Section 8 or in the definition of "Qualified Credit Facility" in subsection 1.1,
the terms and conditions of each Alternate Currency Facility shall be determined
by mutual agreement of the relevant Alternate Currency Borrower(s) and Alternate
Currency Lender(s). The documentation governing each Alternate Currency Facility
shall (i) contain an express acknowledgement that such Alternate Currency
Facility shall be subject to the provisions of this Section 8 and (ii) if more
than one Lender is a party thereto, designate an Alternate Currency Facility
Agent for such Alternate Currency Facility. Each of the U.S. Borrower and, by
agreeing to any Alternate Currency Facility designation as contemplated hereby,
each relevant Alternate Currency Lender (if any) party thereto which is an
affiliate, branch or agency of a Lender, acknowledges and agrees that each
reference in this Agreement to any Lender shall, to the extent applicable, be
deemed to be a reference to such Alternate Currency Lender. In the event of any
inconsistency between the terms of this Agreement and the terms of any Alternate
Currency Facility, the terms of this Agreement shall prevail.
(b) The documentation governing each Alternate Currency Facility
shall set forth (i) the maximum amount (expressed in U.S. Dollars) available to
be borrowed from all Alternate Currency Lenders under such Alternate Currency
Facility (as the same may be reduced from time to time, an "Alternate Currency
Facility Maximum Borrowing Amount") and (ii) with respect to each Alternate
Currency Lender party to such Alternate Currency Facility, the maximum amount
(expressed in U.S. Dollars) available to be borrowed from such Alternate
Currency Lender thereunder (as the same may be reduced from time to time, an
"Alternate Currency Lender Maximum Borrowing Amount").
(c) Except as otherwise required by applicable law, in no event shall
the Alternate Currency Lenders party to an Alternate Currency Facility have the
right to accelerate the Alternate Currency Loans outstanding thereunder, or to
terminate their commitments (if any) to make such Alternate Currency Loans prior
to the earlier of the stated termination date in respect thereof or the
Revolving Credit Termination Date, except, in each case, in connection with an
acceleration of the Loans or a termination of the Commitments
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57
pursuant to Section 15, provided, that nothing in this paragraph (c) shall be
deemed to require any Alternate Currency Lender to make an Alternate Currency
Loan if the applicable conditions precedent to the making of such Alternate
Currency Loan set forth in the documentation governing the relevant Alternate
Currency Facility have not been satisfied. No Alternate Currency Loan may be
made under an Alternate Currency Facility if (i) after giving effect thereto,
the conditions precedent in subsection 11.2 would not be satisfied or (ii) after
giving effect to the making of such Alternate Currency Loan and the simultaneous
application of the proceeds thereof, the Aggregate Total Outstandings of all
Lenders at any time exceeds the Aggregate U.S. Revolving Credit Commitments.
(d) The relevant Alternate Currency Borrower shall furnish to the
General Administrative Agent copies of any amendment, supplement or other
modification (including any change in commitment amounts or in the Alternate
Currency Lenders participating in any Alternate Currency Facility) to the terms
of any Alternate Currency Facility promptly after the effectiveness thereof
(together with, if applicable, an English translation thereof). If any such
amendment, supplement or other modification to an Alternate Currency Facility
shall (i) add an Alternate Currency Lender as an Alternate Currency Lender
thereunder or (ii) change the Alternate Currency Facility Maximum Borrowing
Amount or any Alternate Currency Lender Maximum Borrowing Amount with respect
thereto, the U.S. Borrower shall promptly furnish an appropriately revised
Alternate Currency Facility Addendum, executed by the U.S. Borrower, the
relevant Alternate Currency Borrower and the affected Alternate Currency Lenders
(or any agent acting on their behalf), to the General Administrative Agent and
the Lenders (through the General Administrative Agent).
(e) The U.S. Borrower may terminate its designation of a facility as
an Alternate Currency Facility, with the consent of each Alternate Currency
Lender party thereto in its sole discretion, by written notice to the General
Administrative Agent, which notice shall be executed by the U.S. Borrower, the
relevant Alternate Currency Borrower and each Alternate Currency Lender party to
such Alternate Currency Facility (or any agent acting on their behalf). Once
notice of such termination is received by the General Administrative Agent, such
Alternate Currency Facility and the loans and other obligations outstanding
thereunder shall immediately cease to be subject to the terms of this Agreement.
8.2 Reporting of Alternate Currency Outstandings. (a) On the date
of the making of any Alternate Currency Loan having a maturity of 30 or more
days to an Alternate Currency Borrower and on the last Business Day of each
month on which an Alternate Currency Borrower has any outstanding Alternate
Currency Loans, the Alternate Currency Facility Agent for such Alternate
Currency Borrower shall deliver to the General Administrative Agent a Notice of
Alternate Currency Outstandings. The General Administrative Agent will, at the
request of any Alternate Currency Facility Agent, advise such Alternate Currency
Facility Agent of the Exchange Rate used by the General Administrative Agent in
calculating the U.S. Dollar Equivalent of Alternate Currency Loans under the
related Alternate Currency Facility on any date.
(b) For purposes of any calculation under this Agreement in which the
amount of the Aggregate Alternate Currency Outstandings of any Lender is a
component, the
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General Administrative Agent shall make such calculation on the basis of the
Notices of Alternate Currency Outstandings received by it at least two Business
Days prior to the date of such calculation.
SECTION 9. GENERAL PROVISIONS APPLICABLE TO LOANS
9.1 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such
Interest Period plus the Applicable Margin in effect for such day.
(b) Each ABR Loan shall bear interest for each day on which it is
outstanding at a rate per annum equal to the Alternate Base Rate for such day
plus the Applicable Margin in effect for such day.
(c) Each Prime Rate Loan shall bear interest for each day on which it
is outstanding at a rate per annum equal to the Prime Rate for such day plus the
Applicable Margin in effect for such day.
(d) Each Multicurrency Loan shall bear interest for each day on which
it is outstanding at a rate per annum equal to the applicable Eurocurrency Rate
plus the Applicable Margin in effect for such day.
(e) Each Money Market Rate Swing Line Loan shall bear interest during
the interest period applicable thereto at a rate per annum equal to the
applicable Money Market Rate; provided, that any Money Market Rate Swing Line
Loan in which Lenders purchase participating interests pursuant to the last
sentence of subsection 3.5(a) shall, from and after the date of such purchase,
bear interest until the end of the interest period applicable thereto at a rate
per annum equal to the higher of (i) 2% above the Money Market Rate applicable
thereto and (ii) 2% above the ABR.
(f) If all or a portion of (i) the principal amount of any Loan, (ii)
any interest payable thereon or (iii) any fee or other amount payable hereunder
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum equal to
the rate that would otherwise be applicable thereto pursuant to the foregoing
provisions of this subsection plus 2% or, if higher, (A) in the case of amounts
required to be paid in U.S. Dollars, the rate described in paragraph (b) of this
subsection plus 2%, or (B) in the case of amounts required to be paid in
Canadian Dollars, the rate described in paragraph (c) of this subsection plus
2%.
(g) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (f) of this
subsection shall be payable from time to time on demand.
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9.2 Conversion and Continuation Options. (a) The U.S. Borrower may
elect from time to time to convert outstanding Eurodollar Loans (in whole or in
part) to ABR Loans by giving the General Administrative Agent at least two
Business Days' prior irrevocable notice of such election, provided that any such
conversion of Eurodollar Loans may only be made on the last day of an Interest
Period with respect thereto. The U.S. Borrower may elect from time to time to
convert outstanding ABR Loans (other than Swing Line Loans) (in whole or in
part) to Eurodollar Loans by giving the General Administrative Agent at least
three Business Days' prior irrevocable notice of such election. Any such notice
of conversion to Eurodollar Loans shall specify the length of the initial
Interest Period or Interest Periods therefor. Upon receipt of any such notice
the General Administrative Agent shall promptly notify each U.S. Lender thereof.
All or any part of outstanding Eurodollar Loans and ABR Loans may be converted
as provided herein, provided that (i) no ABR Loan may be converted into a
Eurodollar Loan when any Default or Event of Default has occurred and is
continuing and the General Administrative Agent or the Majority U.S. Lenders
have determined that such conversion is not appropriate, (ii) any such
conversion may only be made if, after giving effect thereto, subsection 9.3
shall not have been violated, (iii) no ABR Loan may be converted into a
Eurodollar Loan after the date that is one month prior to the Revolving Credit
Termination Date and (iv) Swing Line Loans may not be converted to Eurodollar
Loans.
(b) Any Eurodollar Loans may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the U.S. Borrower
giving notice to the General Administrative Agent of the length of the next
Interest Period to be applicable to such Loans determined in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection 1.1,
provided that no Eurodollar Loan may be continued as such (i) when any Default
or Event of Default has occurred and is continuing and the General
Administrative Agent or the Majority U.S. Lenders have determined that such
continuation is not appropriate, (ii) if, after giving effect thereto,
subsection 9.3 would be contravened or (iii) after the date that is one month
prior to the Revolving Credit Termination Date, and provided, further, that if
the U.S. Borrower shall fail to give such notice or if such continuation is not
permitted pursuant to the preceding proviso such Eurodollar Loans shall be
automatically converted to ABR Loans on the last day of such then expiring
Interest Period.
(c) Any Multicurrency Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
relevant Foreign Subsidiary Borrower giving a Notice of Multicurrency Loan
Continuation, provided, that if the relevant Foreign Subsidiary Borrower shall
fail to give such Notice of Multicurrency Loan Continuation, such Multicurrency
Loans shall automatically be continued for an Interest Period of one month.
9.3 Minimum Amounts of Tranches. (a) Except as provided in Annex A,
all borrowings, conversions and continuations of U.S. Revolving Credit Loans and
Multicurrency Loans hereunder and all selections of Interest Periods hereunder
shall be in such amounts and be made pursuant to such elections so that, after
giving effect thereto, (i) the aggregate principal amount of the Eurodollar
Loans comprising each Tranche shall be equal to $20,000,000 or a whole multiple
of $1,000,000 in excess thereof, (ii) the aggregate principal
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amount of the Multicurrency Loans comprising each Tranche shall be in an amount
of which the U.S. Dollar Equivalent is at least $10,000,000 and (iii) there
shall not be more than 20 Tranches at any one time outstanding.
(b) All Acceptances created hereunder, all conversions and
continuations thereof and all selections of maturity dates with respect thereto
shall be made pursuant to such elections so that, after giving effect thereto,
there shall be no more than 20 Acceptance Tranches at any one time outstanding.
9.4 Optional and Mandatory Prepayments. (a) The U.S. Borrower may
at any time and from time to time prepay U.S. Revolving Credit Loans and/or
Swing Line Loans (other than Money Market Rate Swing Line Loans), in whole or in
part, upon at least three Business Days' irrevocable notice to the General
Administrative Agent (in the case of Eurodollar Loans) and at least one Business
Day's irrevocable notice to the General Administrative Agent (in the case of ABR
Loans), specifying the date and amount of prepayment and whether the prepayment
is (i) of U.S. Revolving Credit Loans, Swing Line Loans or a combination thereof
and (ii) of Eurodollar Loans, ABR Loans or a combination thereof, and, in each
case if a combination thereof, the amount allocable to each. Upon the receipt of
any such notice the General Administrative Agent shall promptly notify each U.S.
Lender thereof. If any such notice is given, the amount specified in such notice
shall be due and payable on the date specified therein. Except as provided in
Annex A, partial prepayments of the U.S. Revolving Credit Loans shall be in an
aggregate principal amount of $10,000,000 or a whole multiple of $1,000,000 in
excess thereof. Partial prepayments of the Swing Line Loans shall be in
aggregate principal amount of $1,000,000 or a whole multiple of $1,000,000 in
excess thereof.
(b) The Canadian Borrower may at any time and from time to time
prepay, without premium or penalty, the Canadian Revolving Credit Loans, in
whole or in part, upon at least one Business Day's irrevocable notice to the
Canadian Administrative Agent specifying the date and amount of prepayment. Upon
the receipt of any such notice, the Canadian Administrative Agent shall promptly
notify each Canadian Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified therein.
Except as provided in Annex A, partial prepayments of Canadian Revolving Credit
Loans shall be in an aggregate principal amount of C$5,000,000 or a whole
multiple of C$1,000,000 in excess thereof.
(c) The Foreign Subsidiary Borrowers may at any time and from time to
time prepay, without premium or penalty, the Multicurrency Loans, in whole or in
part, upon at least three Business Days' irrevocable notice to the General
Administrative Agent specifying the date and amount of prepayment. Upon the
receipt of any such notice, the General Administrative Agent shall promptly
notify each Multicurrency Lender thereof. If any such notice is given, the
amount specified in such notice shall be due and payable on the date specified
therein. Partial prepayments of Multicurrency Loans shall be in an aggregate
principal amount of which the U.S. Dollar Equivalent is at least $10,000,000.
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(d) (i) If, at any time during the Revolving Credit Commitment
Period, for any reason the Aggregate Total Outstandings of all Lenders exceed
the Aggregate U.S. Revolving Credit Commitments then in effect, (A) the U.S.
Borrower shall, without notice or demand, immediately prepay the Swing Line
Loans and the U.S. Revolving Credit Loans and/or (B) the Canadian Borrower
shall, without notice or demand, immediately prepay the Canadian Revolving
Credit Loans and cash collateralize any outstanding Acceptance Reimbursement
Obligations (whether or not then due and payable) and/or (C) the Foreign
Subsidiary Borrowers shall, without notice or demand, immediately prepay the
Multicurrency Loans, such that the sum of (I) the aggregate principal amount of
the Swing Line Loans and U.S. Revolving Credit Loans so prepaid, (II) the U.S.
Dollar Equivalent of the sum of (x) the aggregate principal amount of the
Canadian Revolving Credit Loans so prepaid and (y) the aggregate amount of the
Acceptance Reimbursement Obligations so cash collateralized and (III) the U.S.
Dollar Equivalent of the aggregate principal amount of the Multicurrency Loans
so prepaid, equals or exceeds the amount of such excess; provided, however, that
nothing in this subsection shall be construed as requiring the Canadian Borrower
to so prepay or cash collateralize in amounts that would be in violation of, and
its obligations to so prepay or cash collateralize are subject to, the
restrictions on financial assistance set out in the Business Corporations Act
(Ontario); and, provided, further, that the preceding proviso shall not be
construed in any way as limiting or derogating from the obligations of the U.S.
Borrower or the Foreign Subsidiary Borrowers set out in this subsection.
(ii) If, at any time during the Revolving Credit Commitment Period,
for any reason the sum of (A) the Aggregate U.S. Revolving Credit Outstandings
of all U.S. Common Lenders and (B) the U.S. Dollar Equivalent of the Aggregate
Canadian Revolving Credit Outstandings of all Canadian Lenders exceeds the
aggregate U.S. Revolving Credit Commitments of all U.S. Common Lenders then in
effect, (x) the U.S. Borrower shall, without notice or demand, immediately
prepay the Swing Line Loans and the U.S. Revolving Credit Loans and/or (y) the
Canadian Borrower shall, without notice or demand, immediately prepay the
Canadian Revolving Credit Loans and cash collateralize any outstanding
Acceptance Reimbursement Obligations (whether or not then due and payable) in
amounts such that the sum of (i) the aggregate principal amount of the Swing
Line Loans and U.S. Revolving Credit Loans so prepaid and (ii) the U.S. Dollar
Equivalent of the sum of (1) the aggregate principal amount of the Canadian
Revolving Credit Loans so prepaid and (2) the aggregate amount of the Acceptance
Reimbursement Obligations so cash collateralized, equals or exceeds the amount
of such excess.
(iii) If, at any time during the Revolving Credit Commitment Period,
for any reason either (A) the Aggregate Total Outstandings of all Multicurrency
Lenders exceed the aggregate U.S. Revolving Credit Commitments of the
Multicurrency Lenders or (B) the Aggregate Multicurrency Outstandings exceed the
aggregate Multicurrency Commitments, (x) the U.S. Borrower shall, without notice
or demand, immediately prepay the Swing Line Loans and the U.S. Revolving Credit
Loans and/or (y) the Canadian Borrower shall, without notice or demand,
immediately prepay the Canadian Revolving Credit Loans and cash collateralize
any outstanding Acceptance Reimbursement Obligations (whether or not then due
and payable) and/or (z) the Foreign Subsidiary Borrowers shall, without notice
or demand, immediately prepay Multicurrency Loans, in amounts such that the sum
of (i) the aggregate
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principal amount of the Swing Line Loans and U.S. Revolving Credit Loans so
prepaid and (ii) the U.S. Dollar Equivalent of the sum of (A) the aggregate
principal amount of the Canadian Revolving Credit Loans and Multicurrency Loans
so prepaid and (B) the aggregate amount of the Acceptance Reimbursement
Obligations so cash collateralized, equals or exceeds the amount of such excess;
provided, however, that nothing in this subsection shall be construed as
requiring the Canadian Borrower to so prepay or cash collateralize in amounts
that would be in violation of, and its obligations to so prepay or cash
collateralize are subject to, the restrictions on financial assistance set out
in the Business Corporations Act (Ontario); and, provided, further, that the
preceding proviso shall not be construed in any way as limiting or derogating
from the obligations of the U.S. Borrower or the Foreign Subsidiary Borrowers
set out in this subsection.
(e) Each prepayment of Loans pursuant to this subsection 2.4 shall be
accompanied by accrued and unpaid interest on the amount prepaid to the date of
prepayment and any amounts payable under subsection 9.12 in connection with such
prepayment.
(f) Notwithstanding the foregoing, mandatory prepayments of Revolving
Credit Loans or Multicurrency Loans that would otherwise be required pursuant to
this subsection 9.4 solely as a result of fluctuations in Exchange Rates from
time to time shall only be required to be made pursuant to this subsection 9.4
on the last Business Day of each month on the basis of the Exchange Rate in
effect on such Business Day.
(g) Prepayments of the Loans and Acceptance Reimbursement Obligations
pursuant to this subsection 9.4 shall be applied as follows: (i) in the case of
prepayments made by the U.S. Borrower, first, to prepay Swing Line Loans then
outstanding (other than Money Market Rate Swing Line Loans), second, to prepay
ABR Loans (other than Swing Line Loans) then outstanding and third, to prepay
Money Market Rate Swing Line Loans, if any, and Eurodollar Loans then
outstanding, (ii) in the case of prepayments made by the Canadian Borrower,
first, to prepay Canadian Revolving Credit Loans then outstanding and second, to
prepay any Acceptance Reimbursement Obligations then due and payable (or, in the
event of a prepayment of Acceptance Reimbursement Obligations which are not then
due and payable, to cash collateralize such Acceptance Reimbursement Obligations
upon terms and conditions reasonably satisfactory to the Canadian Administrative
Agent), and (iii) in case of prepayments made by a Foreign Subsidiary Borrower,
to prepay Multicurrency Loans borrowed by such Foreign Subsidiary Borrower.
(h) The U.S. Borrower shall prepay all Swing Line Loans then
outstanding (other than Money Market Rate Swing Line Loans) simultaneously with
each borrowing of U.S. Revolving Credit Loans.
9.5 Facility Fees; Other Fees. (a) The U.S. Borrower agrees to pay to
the General Administrative Agent for the account of each U.S. Lender, a facility
fee for the period from and including the Effective Date to but excluding the
Revolving Credit Termination Date (or such earlier date on which the Revolving
Credit Commitments shall terminate as provided herein); each such facility fee
shall be computed at the Facility Fee Rate on the amount of the U.S. Revolving
Credit Commitment of such U.S. Lender during
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the period for which payment is made, payable quarterly in arrears on the last
day of each March, June, September and December and on the Revolving Credit
Termination Date or such earlier date on which the U.S. Revolving Credit
Commitments shall terminate as provided herein, commencing on the first such
date to occur after the date hereof. Each U.S. Common Lender and its Counterpart
Lender may elect, upon notice to the Borrowers and the Administrative Agents, to
have all or a portion of the facility fees owed to such U.S. Common Lender by
the U.S. Borrower paid by the Canadian Borrower in Canadian Dollars directly to
the Canadian Administrative Agent for the account of such U.S. Common Lender's
Counterpart Lender. Each U.S. Common Lender and its Counterpart Lender may make
such election no more often than once in any year. If any such election is made,
amounts otherwise due in U.S. Dollars shall be converted to Canadian Dollars at
the then Exchange Rate on the date which is one Business Day prior the date such
amount is due.
(b) The U.S. Borrower shall pay (without duplication of any other fee
payable under this subsection 9.5) to Chase and CSI, for their respective
accounts, all fees separately agreed to by the U.S. Borrower and Chase or CSI,
as the case may be.
(c) The Canadian Borrower shall (without duplication of any other fee
payable under this subsection 9.5) pay to the Canadian Administrative Agent all
fees separately agreed to by the Canadian Borrower and the Canadian
Administrative Agent.
(d) The U.S. Borrower shall (without duplication of any other fee
payable under this subsection 9.5) pay to the General Administrative Agent all
fees separately agreed to by the U.S. Borrower and the General Administrative
Agent.
9.6 Computation of Interest and Fees. (a) Interest based on the
Eurodollar Rate, the Eurocurrency Rate or a Money Market Rate shall be
calculated on the basis of a 360-day year for the actual days elapsed; and
facility fees and interest (other than interest based upon the Eurodollar Rate
or the Eurocurrency Rate) shall be calculated on the basis of a 365- (or 366-,
as the case may be) day year for the actual days elapsed. The General
Administrative Agent shall as soon as practicable notify the U.S. Borrower and
the U.S. Lenders of each determination of a Eurodollar Rate or a Eurocurrency
Rate. Any change in the interest rate on a Loan resulting from a change in the
Alternate Base Rate or a change in the Prime Rate shall become effective as of
the opening of business on the day on which such change becomes effective. The
General Administrative Agent shall as soon as practicable notify the U.S.
Borrower and the U.S. Lenders of the effective date and the amount of each such
change in the Alternate Base Rate, and the Canadian Administrative Agent shall
as soon as practicable notify the Canadian Borrower and the Canadian Lenders of
each such change in the Prime Rate. For purposes of the Interest Act (Canada),
whenever any interest under this Agreement is calculated using an annual rate
based on a period which is less than the actual number of days in a year (the
"Lesser Period"), such rate determined pursuant to such calculation, when
expressed as an annual rate, is equivalent to (i) the applicable rate based on
such Lesser Period, (ii) multiplied by the actual number of days in the calendar
year in which the period for which such interest is payable ends, and (iii)
divided by the number of days in such Lesser Period. The rates of interest
specified in this Agreement are nominal rates and
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all interest payments and computations are to be made without allowance or
deduction for deemed reinvestment of interest.
(b) Each determination of an interest rate by the General
Administrative Agent or the Canadian Administrative Agent, as the case may be,
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrowers and the Lenders in the absence of manifest error. Each
Administrative Agent shall, at the request of a Borrower, deliver to such
Borrower a statement showing in reasonable detail the calculations used by such
Administrative Agent in determining any interest rate pursuant to subsection
9.1(a).
(c) (i) If any U.S. Reference Lender shall for any reason no longer
have a U.S. Revolving Credit Commitment or any U.S. Revolving Credit Loans, such
U.S. Reference Lender shall thereupon cease to be a U.S. Reference Lender, and
if, as a result, there shall only be one U.S. Reference Lender remaining, the
General Administrative Agent (after consultation with the U.S. Borrower and the
U.S. Lenders) shall, by notice to the U.S. Borrower and the U.S. Lenders,
designate another U.S. Lender as a U.S. Reference Lender so that there shall at
all times be at least two U.S. Reference Lenders.
(ii) If any Canadian Reference Lender shall for any reason no longer
have a Canadian Revolving Credit Commitment or any Canadian Revolving Credit
Loans, such Canadian Reference Lender shall thereupon cease to be a Canadian
Reference Lender, and if, as a result, there shall only be one Schedule I
Canadian Reference Lender or Schedule II Canadian Reference Lender (as the case
may be) remaining, the Canadian Administrative Agent (after consultation with
the Canadian Borrower and the Schedule I Canadian Lenders or the Schedule II
Canadian Lenders, as applicable) shall, by notice to the Canadian Borrower and
the Canadian Lenders, designate another Schedule I Canadian Lender or Schedule
II Canadian Lender, as applicable, as a Schedule I Canadian Reference Lender or
a Schedule II Canadian Reference Lender, as applicable, so that there shall at
all times be at least two Schedule I Canadian Reference Lenders and two Schedule
II Canadian Reference Lenders.
(d) Each U.S. and Canadian Reference Lender shall use its best
efforts to furnish quotations of rates to the applicable Administrative Agent as
contemplated hereby. If any of the U.S. or Canadian Reference Lenders shall be
unable or shall otherwise fail to supply such rates to the applicable
Administrative Agent upon its request, the rate of interest shall, subject to
the provisions of subsection 9.7, be determined on the basis of the quotations
of the remaining U.S. or Canadian Reference Lenders or Reference Lender, as
applicable.
9.7 Inability to Determine Interest Rate. If prior to the first day
of any Interest Period:
(a) the General Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrowers) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate or the
Eurocurrency Rate, as the case may be, for such Interest Period, or
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(b) the General Administrative Agent has received notice from the
Majority U.S. Lenders that the Eurodollar Rate or Eurocurrency Rate, as the
case may be, determined or to be determined for such Interest Period will
not adequately and fairly reflect the cost to such U.S. Lenders of making
or maintaining their Eurodollar Loans or Multicurrency Loans, as the case
may be, during such Interest Period,
the General Administrative Agent shall give telecopy or telephonic notice
thereof to the U.S. Borrower and the U.S. Lenders as soon as practicable
thereafter. If such notice is given (i) any Eurodollar Loans or Multicurrency
Loans, as the case may be, requested to be made on the first day of such
Interest Period shall be made as ABR Loans, (ii) any U.S. Revolving Credit Loans
that were to have been converted on the first day of such Interest Period to or
continued as Eurodollar Loans shall be converted to or continued as ABR Loans,
(iii) any outstanding Eurodollar Loans shall be converted on the first day of
such Interest Period to ABR Loans and (iv) any Multicurrency Loans to which such
Interest Period relates shall be repaid on the first day of such Interest
Period. Until such notice has been withdrawn by the General Administrative
Agent, no further Eurodollar Loans or Multicurrency Loans shall be made or
continued as such, nor shall the U.S. Borrower have the right to convert ABR
Loans to Eurodollar Loans.
9.8 Pro Rata Treatment and Payments. (a) (i) Except as provided in
subsection 2.5, each borrowing of U.S. Revolving Credit Loans by the U.S.
Borrower from the U.S. Lenders hereunder shall be made pro rata according to the
Funding Commitment Percentages of the U.S. Lenders in effect on the date of such
borrowing. Each payment by the U.S. Borrower on account of any facility fee
hereunder shall be allocated by the General Administrative Agent among the U.S.
Lenders in accordance with the respective amounts which such U.S. Lenders are
entitled to receive pursuant to subsection 9.5(a). Any reduction of the U.S.
Revolving Credit Commitments of the U.S. Lenders shall be allocated by the
General Administrative Agent among the U.S. Lenders pro rata according to the
U.S. Revolving Credit Commitment Percentages of the U.S. Lenders. Except as
provided in subsection 2.5, each payment (other than any optional prepayment) by
the U.S. Borrower on account of principal of or interest on the U.S. Revolving
Credit Loans or the CAF Advances shall be allocated by the General
Administrative Agent pro rata according to the respective principal amounts
thereof then due and owing to each U.S. Lender. Each optional prepayment by the
U.S. Borrower on account of principal of or interest on the U.S. Revolving
Credit Loans shall be allocated by the General Administrative Agent pro rata
according to the respective outstanding principal amounts thereof. All payments
(including prepayments) to be made by the U.S. Borrower hereunder, whether on
account of principal, interest, fees or otherwise, shall be made without set-off
or counterclaim and shall be made prior to 12:00 Noon, New York City time, on
the due date thereof to the General Administrative Agent, for the account of the
U.S. Lenders, at the General Administrative Agent's office specified in
subsection 17.2, in Dollars and in immediately available funds. The General
Administrative Agent shall distribute such payments to the U.S. Lenders entitled
to receive the same promptly upon receipt in like funds as received.
(ii) Each borrowing of Canadian Revolving Credit Loans by the
Canadian Borrower from the Canadian Lenders hereunder shall be made, and any
reduction of the
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Canadian Revolving Credit Commitments of the Canadian Lenders shall be allocated
by the Canadian Administrative Agent, pro rata according to the Canadian
Revolving Credit Commitment Percentages of the Canadian Lenders. Each payment
(other than any optional prepayment) by the Canadian Borrower on account of
principal of or interest on the Canadian Revolving Credit Loans shall be
allocated by the Canadian Administrative Agent pro rata according to the
respective principal amounts of the Canadian Revolving Credit Loans then due and
owing to each Canadian Lender. Each optional prepayment by the Canadian Borrower
on account of principal of or interest on the Canadian Revolving Credit Loans
shall be allocated by the Canadian Administrative Agent pro rata according to
the respective outstanding principal amounts thereof. All payments (including
prepayments) to be made by the Canadian Borrower hereunder, whether on account
of principal, interest, fees or otherwise, shall be made without set-off or
counterclaim and shall be made prior to 12:00 Noon, Toronto time, on the due
date thereof to the Canadian Administrative Agent, for the account of the
Canadian Lenders, at the Canadian Administrative Agent's office specified in
subsection 17.2, in Canadian Dollars and in immediately available funds. The
Canadian Administrative Agent shall distribute such payments to the Canadian
Lenders entitled to receive the same promptly upon receipt in like funds as
received.
(iii) Each borrowing of Multicurrency Loans by any Foreign Subsidiary
Borrower shall be made, and any reduction of the Multicurrency Commitments shall
be allocated by the General Administrative Agent, pro rata according to the
Multicurrency Commitment Percentages of the Multicurrency Lenders. Each payment
(including each prepayment) by a Foreign Subsidiary Borrower on account of
principal of and interest on Multicurrency Loans shall be allocated by the
General Administrative Agent pro rata according to the respective principal
amounts of the Multicurrency Loans then due and owning by such Foreign
Subsidiary Borrower to each Multicurrency Lender. All payments (including
prepayments) to be made by a Foreign Subsidiary Borrower hereunder, whether on
account of principal, interest, fees or otherwise, shall be made without set-off
or counterclaim and shall be made at or before the payment time for the currency
of such Multicurrency Loan set forth in the Administrative Schedule, on the due
date thereof to the General Administrative Agent, for the account of the
Multicurrency Lenders, at the payment office for the currency of such
Multicurrency Loan set forth in the Administrative Schedule, in the currency of
such Multicurrency Loan and in immediately available funds. The General
Administrative Agent shall distribute such payments to the Multicurrency Lenders
entitled to receive the same promptly upon receipt in like funds as received.
(iv) If any payment hereunder (other than payments on the Eurodollar
Loans, the Multicurrency Loans and the Acceptances) becomes due and payable on a
day other than a Business Day, the maturity of such payment shall be extended to
the next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension. If any payment on a Eurodollar Loan or a Multicurrency Loan becomes
due and payable on a day other than a Business Day, the maturity of such payment
shall be extended to the next succeeding Business Day (and, with respect to
payments of principal, interest thereon shall be payable at the then applicable
rate during such extension) unless the result of such extension would be to
extend such
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payment into another calendar month, in which event such payment shall be made
on the immediately preceding Business Day. Acceptances may only mature on a
Business Day.
(b) Unless the applicable Administrative Agent shall have been
notified in writing by any Lender prior to a Borrowing Date that such Lender
will not make the amount that would constitute its share of such borrowing
available to such Administrative Agent, such Administrative Agent may assume
that such Lender is making such amount available to such Administrative Agent,
and such Administrative Agent may, in reliance upon such assumption, make
available to the applicable Borrower a corresponding amount. If such amount is
not made available to such Administrative Agent by the required time on the
Borrowing Date therefor, such Lender shall pay to such Administrative Agent, on
demand, such amount with interest thereon at a rate per annum equal to (i) the
daily average Federal Funds Effective Rate (in the case of a borrowing of U.S.
Revolving Credit Loans or CAF Advances), (ii) the Canadian Administrative
Agent's reasonable estimate of its average daily cost of funds (in the case of a
borrowing of Canadian Revolving Credit Loans or Acceptances) and (iii) the
General Administrative Agent's reasonable estimate of its average daily cost of
funds (in the case of a borrowing of Multicurrency Loans), in each case for the
period until such Lender makes such amount immediately available to such
Administrative Agent. A certificate of such Administrative Agent submitted to
any Lender with respect to any amounts owing under this subsection shall be
conclusive in the absence of manifest error. If such Lender's share of such
borrowing is not made available to such Administrative Agent by such Lender
within three Business Days of such Borrowing Date, the applicable Borrower shall
repay such Lender's share of such borrowing (together with interest thereon from
the date such amount was made available to such Borrower (i) at the rate per
annum applicable to ABR Loans hereunder (in the case of amounts made available
to the U.S. Borrower), (ii) at the rate per annum applicable to Prime Rate Loans
hereunder (in the case of amounts made available to the Canadian Borrower) and
(iii) the General Administrative Agent's reasonable estimate of its average
daily cost of funds plus the Applicable Margin applicable to Multicurrency Loans
(in the case of a borrowing of Multicurrency Loans)) to such Administrative
Agent not later than three Business Days after receipt of written notice from
such Administrative Agent specifying such Lender's share of such borrowing that
was not made available to such Administrative Agent. Nothing contained in this
subsection 9.8(b) shall prejudice any claims otherwise available to the
Borrowers against any Lender as a result of such Lender's failure to make its
share of any borrowing available to an Administrative Agent for the account of a
Borrower.
9.9 Illegality. (i) Notwithstanding any other provision herein, if
the adoption of or any change in any Requirement of Law or in the interpretation
or application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans or Multicurrency Loans as contemplated by this Agreement, (a)
the commitment of such Lender hereunder to make Eurodollar Loans or
Multicurrency Loans, continue Eurodollar Loans or Multicurrency Loans as such
and convert ABR Loans to Eurodollar Loans shall forthwith be cancelled until
such time as it shall no longer be unlawful for such Lender to make or maintain
the affected Loans, (b) such Lender's Loans then outstanding as Eurodollar
Loans, if any, shall be converted automatically to ABR Loans on the respective
last days of the then current Interest Periods with respect to such Eurodollar
Loans or within such earlier period as may be
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required by law and (c) such Lender's Multicurrency Loans shall be prepaid on
the last day of the then current Interest Period with respect thereto. If any
such conversion of a Eurodollar Loan occurs on a day which is not the last day
of the then current Interest Period Interest Period with respect thereto, the
U.S. Borrower shall pay to such Lender such amounts, if any, as may be required
pursuant to subsection 9.12.
(ii) Notwithstanding any other provision herein, if the adoption of or
any change in any Requirement of Law or in the interpretation or application
thereof shall make it unlawful for any Canadian Lender to create or maintain
Acceptances as contemplated by this Agreement, (a) the commitment of such
Canadian Lender hereunder to accept Drafts, purchase Acceptances, continue
Acceptances as such and convert Canadian Revolving Credit Loans to Acceptances
shall forthwith be cancelled until such time as it shall no longer be unlawful
for such Canadian Lender to create or maintain Acceptances and (b) such Canadian
Lender's then outstanding Acceptances, if any, shall be converted automatically
to Prime Rate Loans on the respective maturities thereof or within such earlier
period as may be required by law.
9.10 Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or compliance
by any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority, in each case made
subsequent to the date such Lender becomes a Lender:
(i) shall subject such Lender to any tax of any kind whatsoever
with respect to this Agreement, any Note, any Acceptance made by it, any
Eurodollar Loan made by it or any Multicurrency Loan made by it or its
obligation to make any Eurodollar Loan or Multicurrency Loan or create any
Acceptance, or change the basis of taxation of payments to such Lender in
respect thereof (except for taxes covered by subsection 9.11 and changes in
rate of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such U.S. Lender which is not otherwise included in the
determination of the Eurodollar Rate or Eurocurrency Rate hereunder,
including, without limitation, the imposition of any reserves with respect
to Eurocurrency Liabilities under Regulation D of the Board; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making or creating (as
applicable), converting into, continuing or maintaining Eurodollar Loans,
Multicurrency Loans or Acceptances or to reduce any amount receivable hereunder
in respect thereof, then, in any such case, the applicable Borrower shall
promptly pay such Lender, upon its demand, any additional amount or amounts as
will compensate such Lender for such increased cost or reduced amount
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receivable. If any Lender becomes entitled to claim any additional amounts
pursuant to this subsection, it shall as soon as reasonably practicable
thereafter (but in any event within 60 days after such Lender knows thereof)
provide notice to the applicable Borrower (with a copy to the applicable
Administrative Agent) of the event by reason of which it becomes so entitled. A
certificate with reasonable supporting detail as to any additional amounts
payable pursuant to this subsection submitted by such Lender to such Borrower
(with a copy to such Administrative Agent) shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Loans, the Acceptance Reimbursement Obligations, the
Acceptance Notes and all other amounts payable hereunder.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority, in each case, made subsequent to the date hereof, does or shall have
the effect of reducing the rate of return on such Lender's or such corporation's
capital as a consequence of its obligations hereunder to a level below that
which such Lender or such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then from time to time, after submission by such
Lender to the applicable Borrower (with a copy to the applicable Administrative
Agent) of a written request with reasonable supporting detail therefor, such
Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender for such reduction; provided, that such Lender shall
allocate in good faith to such Borrower an amount of the reduction associated
with such adoption, change or compliance.
9.11 Taxes. (a) All payments made by the Borrowers under this
Agreement and any Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding (in the case of payments made in respect of
the Multicurrency Loans and the Alternate Currency Loans) net income taxes,
franchise taxes imposed in lieu of net income taxes, taxes on gross income
imposed by the United Kingdom, France or Germany, surtaxes on any such taxes and
(in the case of all other payments) taxes, in each case imposed on either
Administrative Agent or any Lender as a result of a present or former connection
between such Administrative Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
such Administrative Agent or such Lender having executed, delivered or performed
its obligations or received a payment under, or enforced, this Agreement, any
Notes or any other Loan Document). If any such non-excluded taxes, levies,
imposts, duties, charges, fees, deductions or withholdings ("Non-Excluded
Taxes") are required to be withheld from any amounts payable to either
Administrative Agent or any Lender hereunder or under any Notes, the amounts so
payable to such Administrative Agent or such Lender shall be increased to the
extent necessary to yield to such Administrative Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other amounts payable
hereunder at
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the rates and in the amounts specified in this Agreement, provided, however,
that (i) the U.S. Borrower shall not be required to increase any such amounts
payable to any U.S. Lender if such U.S. Lender fails to comply with the
requirements of paragraph (b) of this subsection, (ii) a Foreign Subsidiary
Borrower shall not be required to increase any such amounts payable to any
Lender if such Lender fails to comply with the requirements of paragraph (c) of
this subsection and (iii) the Canadian Borrower shall not be required to
increase any such amounts payable to the Canadian Administrative Agent (on
behalf of any Canadian Lender) or directly to any Canadian Lender that is not
incorporated under the laws of Canada or a province thereof or is not a resident
of Canada for purposes of the Tax Act. If the Canadian Administrative Agent or
any Canadian Lender is required by law to make any payment on account of Non-
Excluded Taxes on or in relation to any payment received under this Agreement by
the Canadian Administrative Agent or such Canadian Lender or any liability for
Non-Excluded Taxes in respect of any such payment is imposed, levied or assessed
against the Canadian Administrative Agent or any Canadian Lender, the Canadian
Borrower shall pay to the Canadian Administrative Agent or such Canadian Lender
such amounts (referred to herein as "Additional Amounts") which, after
subtraction of any Non-Excluded Taxes payable by the Canadian Administrative
Agent or such Canadian Lender in connection with the receipt or accrual of such
Additional Amounts or required to be deducted or withheld by the Canadian
Borrower from or in respect of the payment of Additional Amounts to the Canadian
Administrative Agent or such Canadian Lender, shall be equal to the amount of
such payment made by the Canadian Administrative Agent or such Canadian Lender
on account of Non-Excluded Taxes or liability for Non-Excluded Taxes. Whenever
any Non-Excluded Taxes are payable by a Borrower, as promptly as possible
thereafter such Borrower shall send to the applicable Administrative Agent for
its own account or for the account of such Lender, as the case may be, a
certified copy of an original official receipt received by such Borrower showing
payment thereof. If a Borrower fails to pay any Non-Excluded Taxes when due to
the appropriate taxing authority or fails to remit to the applicable
Administrative Agent the required receipts or other required documentary
evidence, such Borrower shall indemnify the Administrative Agents and the
Lenders for any incremental taxes, interest or penalties that may become payable
by either Administrative Agent or any Lender as a result of any such failure.
The agreements in this subsection shall survive the termination of this
Agreement and the payment of the Loans, the Acceptance Reimbursement
Obligations, the Acceptance Notes and all other amounts payable hereunder.
(b) Each U.S. Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(i) at least five Business Days before the date of the initial
payment to be made by the U.S. Borrower under this Agreement to such U.S.
Lender, deliver to the U.S. Borrower and the General Administrative Agent
(A) two duly completed copies of United States Internal Revenue Service
Form 1001 or 4224, or successor applicable form, as the case may be,
certifying that it is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes
and (B) an Internal Revenue Service Form W-8 or W-9, or successor
applicable form, as the case may be, certifying that it is entitled to an
exemption from United States backup withholding tax;
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(ii) deliver to the U.S. Borrower and the General Administrative
Agent two further copies of any such form or certification at least five
Business Days before the date that any such form or certification expires
or becomes obsolete and after the occurrence of any event requiring a
change in the most recent form previously delivered by it to the General
Administrative Agent and the U.S. Borrower; and
(iii) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by the U.S. Borrower
or the General Administrative Agent;
and each Lender (or Transferee) that is incorporated or organized under the laws
of the United States of America or a State thereof shall provide two properly
completed and duly executed copies of Form W-9, or successor applicable form, at
the times specified for delivery of forms under paragraph (b)(i) of this
subsection unless an event (including, without limitation, any change in treaty,
law or regulation) has occurred after the date such Person becomes a U.S. Lender
hereunder which renders all such forms inapplicable or which would prevent such
U.S. Lender from duly completing and delivering any such form with respect to it
and such U.S. Lender so advises the U.S. Borrower and the U.S. Administrative
Agent; provided, however, that the U.S. Borrower may rely upon such forms
provided to the U.S. Borrower for all periods prior to the occurrence of such
event. Each Person that shall become a U.S. Lender or a Participant with respect
to the U.S. Revolving Credit Commitments, or the U.S. Revolving Credit Loans
pursuant to subsection 17.6 shall, upon the effectiveness of the related
transfer, be required to provide all of the forms, certifications and statements
required pursuant to this subsection, provided that in the case of such
Participant such Participant shall furnish all such required forms,
certifications and statements to the U.S. Lender from which the related
participation shall have been purchased.
(c) Each Lender that is not incorporated or organized under the laws
of the jurisdiction under which a Foreign Subsidiary Borrower is incorporated or
organized shall, upon request by such Foreign Subsidiary Borrower, within a
reasonable period of time after such request, deliver to such Foreign Subsidiary
Borrower or the applicable governmental or taxing authority, as the case may be,
any form or certificate required in order that any payment by such Foreign
Subsidiary Borrower under this Agreement or any Notes to such Lender may be made
free and clear of, and without deduction or withholding for or on account of any
Non-Excluded Tax (or to allow any such deduction or withholding to be at a
reduced rate) imposed on such payment under the laws of the jurisdiction under
which such Foreign Subsidiary Borrower is incorporated or organized, provided
that such Lender is legally entitled to complete, execute and deliver such form
or certificate and such completion, execution or submission would not materially
prejudice the legal position of such Lender.
9.12 Indemnity. Each Borrower agrees to indemnify each U.S. Lender and
each Canadian Lender, as the case may be, and to hold each U.S. Lender and each
Canadian Lender, as the case may be, harmless from any loss or expense which
such U.S. Lender may sustain or incur as a consequence of (a) default by such
Borrower in payment when due of the principal amount of or interest on any
Eurodollar Loan or Multicurrency Loan, (b) default by such Borrower in making a
borrowing of, conversion into or continuation of Eurodollar
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Loans, Multicurrency Loans or Money Market Rate Swing Line Loans after such
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (c) default by such Borrower in making any
prepayment after such Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (d) the making by such Borrower of a prepayment
of Eurodollar Loans or Multicurrency Loans on a day which is not the last day of
an Interest Period with respect thereto, or the making by such Borrower of a
prepayment of Money Market Rate Swing Line Loans on a day which is not the last
day of the interest period with respect thereto, including, without limitation,
in each case, any such loss or expense arising from the reemployment of funds
obtained by it or from fees payable to terminate the deposits from which such
funds were obtained. Such indemnification may include an amount equal to the
excess, if any, of (i) the amount of interest which would have accrued on the
amount so prepaid, or not so borrowed, converted or continued, for the period
from the date of such prepayment or of such failure to borrow, convert or
continue to the last day of such Interest Period or interest period (or, in the
case of a failure to borrow, convert or continue, the Interest Period or
interest period that would have commenced on the date of such failure) in each
case at the applicable rate of interest for such Loans provided for herein
(excluding, however, the Applicable Margin included therein, if any) over (ii)
the amount of interest (as reasonably determined by such U.S. Lender) which
would have accrued to such U.S. Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. All payments required to be made by any Borrower to any U.S. Lender or
Canadian Lender, as the case may be, under this subsection 9.12 shall be made no
later than 30 days after receipt by such Borrower of a written notice from such
U.S. Lender setting forth in reasonable detail the basis upon which such U.S.
Lender or Canadian Lender, as the case may be, is entitled to receive such
payments. This covenant shall survive the termination of this Agreement and the
payment of the Loans, the Acceptance Reimbursement Obligations, the Acceptance
Notes and all other amounts payable hereunder.
9.13 Change of Lending Office. Each Lender agrees that if it makes any
demand for payment under subsection 9.10 or 9.11(a), or if any adoption or
change of the type described in subsection 9.9 shall occur with respect to it,
it will use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions and so long as such efforts would not be materially
disadvantageous to it, as determined in its sole discretion) to designate a
different lending office if the making of such a designation would reduce or
eliminate the need for the Borrowers to make payments under subsection 9.10 or
9.11(a), or would eliminate or reduce the effect of any adoption or change
described in subsection 9.9.
9.14 Substitution of Lender. (a) In the event any Borrower is, or
would be, required to pay any additional amounts pursuant to subsections 9.10 or
9.11(a), such Borrower may, so long as no Event of Default has occurred and is
continuing, require any Lender claiming such additional amounts, upon five
Business Days' prior written notice from such Borrower, to assign the entire
then outstanding principal amount of the Loans owing to such Lender and the
entire Revolving Credit Commitment (and, if applicable, Multicurrency Commitment
and Alternate Currency Facility commitments) of such Lender to another bank or
financial institution selected by such Borrower and, if such bank or financial
institution is not then a Lender, reasonably satisfactory to the Administrative
Agents. Any such
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assignment shall be effected in accordance with subsection 17.6(c) and, as a
condition to such assignment, such Borrower shall pay all amounts due to such
Lender hereunder on the effective date of such assignment.
(b) In the event that any Multicurrency Lender (including a
Transferee) does not, for any reason, deliver all forms and certificates
required to permit all payments by all Foreign Subsidiary Borrowers hereunder to
be made free and clear of, and without deduction or withholding for or on
account of, any Non-Excluded Taxes, the U.S. Borrower may, so long as no Event
of Default has occurred and is continuing, require such Multicurrency Lender,
upon five Business Days' prior written notice from the U.S. Borrower, to assign
the entire then outstanding principal amount of the Multicurrency Loans owing to
such Multicurrency Lender and the entire Multicurrency Commitment of such
Multicurrency Lender to one or more Lenders selected by the U.S. Borrower which,
after giving effect to such assignment, will have a U.S. Revolving Credit
Commitment in excess of its Multicurrency Commitment. In the case of any such
assignment to another Lender, such assignee Lender shall assign to such assignor
Multicurrency Lender a principal amount of outstanding U.S. Revolving Credit
Loans owing to such assignee Lender equal to the lesser of (i) the U.S. Dollar
Equivalent of the amount of Multicurrency Loans assigned to such assignee Lender
and (ii) the aggregate outstanding principal amount of U.S. Revolving Credit
Loans owing to such assignee Lender. Any such assignments pursuant to the two
precedent sentences shall be effected in accordance with subsection 17.6(c) and,
as a condition to such assignment, simultaneously with such assignment, the U.S.
Borrower shall pay all amounts due to the assignor Multicurrency Lender and the
assignee Lender hereunder on the effective date of such assignments.
9.15 Use of Proceeds. The proceeds of the Loans shall be used (a) as
provided in Annex A, (b) to pay fees and expenses incurred by the Borrowers in
connection with this Agreement and (c) for working capital and other general
corporate purposes of the Borrowers and their Subsidiaries, including
investments and acquisitions.
SECTION 10. REPRESENTATIONS AND WARRANTIES
Each of the U.S. Borrower, the Foreign Subsidiary Borrowers and the
Canadian Borrower (insofar as the representations and warranties set forth below
relate respectively to such Foreign Subsidiary Borrower or Canadian Borrower)
represents and warrants to the Administrative Agents and each Lender that:
10.1 Financial Condition. The balance sheet of the U.S. Borrower and
its Consolidated Subsidiaries as at December 31, 1995, which has heretofore been
delivered to each Lender, fairly presents in all material respects and in
conformity with GAAP the financial position of the U.S. Borrower and its
Consolidated Subsidiaries as at December 31, 1995.
10.2 No Change. Since December 31, 1995, there has been no development
or event which has had or would be reasonably expected to have a Material
Adverse Effect.
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10.3 Corporate Existence; Compliance with Law. Each of the U.S.
Borrower and each Subsidiary of the U.S. Borrower (a) is duly incorporated or
organized and is validly existing as a corporation or other legal entity in good
standing in the jurisdiction of its incorporation or organization, (b) has the
corporate or other power and authority to own, lease and operate its properties
and to conduct the business in which it is currently engaged, (c) is duly
qualified to transact business as a foreign corporation or other legal entity
and is in good standing or otherwise appropriately qualified in each
jurisdiction where its ownership, leasing or operation of property or the
conduct of its business requires such qualification, except to the extent that
any failure to be so qualified and in good standing would not be reasonably
expected to have a Material Adverse Effect, and (d) is in compliance with all
Requirements of Law except to the extent that the failure to comply therewith
would not, in the aggregate, be reasonably expected to have a Material Adverse
Effect.
10.4 Corporate Power; Authorization; Enforceable Obligations. Each
Borrower has the corporate power and authority to make, deliver and perform the
Loan Documents to which it is a party and to borrow hereunder and has taken all
necessary corporate action to authorize the borrowings on the terms and
conditions of this Agreement and to authorize the execution, delivery and
performance of the Loan Documents to which it is a party. No consent or
authorization of, filing with, notice to or other act by or in respect of, any
Governmental Authority or any other Person is required to be obtained or made by
or on behalf of any Borrower in connection with the borrowings hereunder or with
the execution, delivery, performance, validity or enforceability of the Loan
Documents to which any Borrower is a party, except for any of the foregoing
described in Schedule 10.4, all of which have been obtained or made. This
Agreement and each other Loan Document to which any Borrower is, or is to
become, a party has been or will be duly executed and delivered on behalf of
such Borrower. This Agreement and each other Loan Document to which any Borrower
is, or is to become, a party constitutes or will constitute, a legal, valid and
binding obligation of such Borrower enforceable against such Borrower in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
10.5 No Legal Bar. The execution, delivery and performance of the
Loan Documents by each Borrower, the borrowings hereunder and the use of the
proceeds thereof (a) will not violate any Requirement of Law or Contractual
Obligation of any Borrower or any Subsidiary of any Borrower, in each case in
any respect that would reasonably be expected to have a Material Adverse Effect
and (b) will not result in, or require, the creation or imposition of any Lien
on any of its or their respective assets or properties pursuant to any such
Requirement of Law or Contractual Obligation.
10.6 No Material Litigation. There are no actions, suits,
investigations or proceedings of or before any arbitrator or Governmental
Authority pending by or against or affecting any Borrower or any Subsidiary of
any Borrower or, to the best knowledge of any Borrower, threatened by or against
or affecting any Borrower or any Subsidiary of any Borrower or against any
assets or properties of any Borrower or any Subsidiary of any
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Borrower (a) on and as of the Effective Date, with respect to any of the Loan
Documents or any of the transactions contemplated thereby or (b) which would be
reasonably expected to have a Material Adverse Effect.
10.7 No Default. Neither any Borrower nor any Subsidiary of any
Borrower is in default under or with respect to any of its Contractual
Obligations in any respect which would be reasonably expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
10.8 Taxes. All United States federal income tax returns and all
other material tax returns which are required to be filed by, or with respect
to, each Borrower or any Subsidiary of such Borrower have been filed, and all
taxes and assessments due and payable by each Borrower or any Subsidiary of such
Borrower (or for which they could be liable) have been paid other than (i) those
not yet delinquent, (ii) those which, if not paid, would not be reasonably
expected to have a Material Adverse Effect and (iii) those the amount or
validity of which are currently being contested in good faith by appropriate
proceedings diligently conducted and with respect to which reserves in
conformity with GAAP have been provided on the books of such Borrower or such
Subsidiary, as applicable; and no material tax Lien (other than those permitted
by subsection 13.2) has been filed with respect to any such tax, fee or other
charge; and, to the best knowledge of each Borrower, no claim is being asserted
with respect to any such tax, fee or other charge (other than real property
taxes that are not yet delinquent) which, individually or in the aggregate,
would be reasonably expected to have a Material Adverse Effect.
10.9 Federal Regulations. No part of the proceeds of any Loans will
be used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation G or Regulation U of the
Board as now and from time to time hereafter in effect in violation of such
regulations.
10.10 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Single Employer Plan,
and each Plan (other than a Multiemployer Plan) has complied in all material
respects with the applicable provisions of ERISA and the Code, where any such
occurrence or failure to comply has or is reasonably likely to result in a
Material Adverse Effect. No termination of a Single Employer Plan has occurred
(other than a standard termination within the meaning of Section 4041 of ERISA).
There is no outstanding Lien on the assets of the U.S. Borrower or any Commonly
Controlled Entity in favor of the PBGC or a Plan. Neither the U.S. Borrower nor
any Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan, and neither the U.S. Borrower nor any Commonly Controlled
Entity would become subject to any liability under ERISA if the U.S. Borrower or
any such Commonly Controlled Entity were to withdraw completely from all
Multiemployer Plans as of the valuation date most closely preceding the date on
which this representation is made or deemed made, except to the extent that such
complete or partial withdrawal or such liability (or any aggregation thereof)
would
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not be reasonably expected to have a Material Adverse Effect. No such
Multiemployer Plan is in Reorganization or Insolvent.
10.11 Investment Company Act; Other Regulations. The U.S. Borrower is
not an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
No Borrower is subject to regulation under any United States (Federal or state),
Canadian (Federal or provincial) statute or regulation or other Requirement of
Law which limits its ability to incur Indebtedness as contemplated hereby.
10.12 Environmental Matters. Except insofar as any exception to the
following representations and warranties, or any aggregation of such exceptions,
could not reasonably be expected to have a Material Adverse Effect:
(a) To the best knowledge of the U.S. Borrower after due inquiry, the
facilities and properties owned, leased, or operated by the U.S. Borrower
and its Subsidiaries (or any one or more of them) (the "Properties") and
all operations at the Properties are in compliance with all applicable
Environmental Laws, and there is no violation of any Environmental Law with
respect to the Properties or the business operated by the U.S. Borrower or
any of its Subsidiaries (the "Business"), and there are no conditions
relating to the Business or Properties that would be reasonably likely to
give rise to liability under any applicable Environmental Law.
(b) Neither the U.S. Borrower, nor any of its Subsidiaries has
received any written or verbal notice of, or inquiry from any Governmental
Authority concerning, any violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the Properties or
the Business, nor does the U.S. Borrower have knowledge or reason to
believe that any such notice will be received or is being threatened.
(c) To the best knowledge of the U.S. Borrower after due inquiry,
there are no past or present actions, activities, events, conditions or
circumstances that could be reasonably expected to give rise to any
liability or obligation of the U.S. Borrower or any of its Subsidiaries
under any applicable Environmental Law.
SECTION 11. CONDITIONS PRECEDENT
11.1 Conditions to Effectiveness of this Agreement. This Agreement
shall become effective on the date on which the following conditions precedent
have been satisfied or waived:
(a) Execution of Agreement. The Administrative Agents shall have
received this Agreement, executed and delivered by a duly authorized
officer of each Borrower, with a copy for each Lender.
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(b) Consents, Licenses and Approvals. The Administrative Agents shall
have received (and made available to each Lender requesting the same), a
certificate of a Responsible Officer of the U.S. Borrower (i) attaching
copies of all consents, authorizations, notices and filings referred to in
subsection 10.4, and (ii) stating that such consents, authorizations,
notices and filings are in full force and effect.
(c) Legal Opinions. The Administrative Agents shall have received
(with a copy for each Lender) the following executed legal opinions:
(i) the legal opinion of Richard S. Brennan, General
Counsel of the U.S. Borrower, substantially in the form of Exhibit L;
(ii) the legal opinion of Fraser & Beatty, counsel to the
Canadian Borrower, substantially in the Form of Exhibit M; and
(iii) the legal opinion of Mayer, Brown & Platt, special
counsel to the U.S. Borrower and its Subsidiaries, substantially in
the form of Exhibit N.
(d) Corporate Proceedings. The Administrative Agents shall have
received (and made available to each Lender) a copy of the resolutions, in
form and substance reasonably satisfactory to the Administrative Agents and
each Lender, of the Board of Directors of the U.S. Borrower and the
Canadian Borrower authorizing, as applicable, (i) the execution, delivery
and performance of this Agreement and the other Loan Documents to which it
is a party and (ii) the borrowings contemplated hereunder, certified by the
Secretary or an Assistant Secretary of such Person as of the Effective
Date, which certificate shall be in form and substance reasonably
satisfactory to each Lender and shall state that the resolutions thereby
certified have not been amended, modified (except as any later such
resolution may modify any earlier such resolution), revoked or rescinded.
(e) Incumbency Certificates. The Administrative Agents shall have
received (and made available to each Lender), a certificate of each
Borrower, dated the Effective Date, as to the incumbency and signature of
the officers of such Borrower executing this Agreement, reasonably
satisfactory in form and substance to the Administrative Agents and each
Lender, executed by the Secretary or any Assistant Secretary of such
Borrower.
(f) Corporate Documents. The Administrative Agents shall have
received (and made available to each Lender) copies of the certificate of
incorporation and by-laws of the U.S. Borrower and the Canadian Borrower,
certified as of the Effective Date as complete and correct copies thereof
by the Secretary or an Assistant Secretary of such Borrower.
(g) Existing Credit Agreement. All amounts outstanding under the
Existing Credit Agreement shall have been repaid in the manner prescribed
by Annex A.
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(h) Powers of Attorney. The Canadian Administrative Agent shall have
received Powers of Attorney in respect of each Canadian Lender, executed
and delivered by a duly authorized officer of the Canadian Borrower.
(i) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents
shall be satisfactory in form and substance to the Administrative Agents,
and the Administrative Agents shall have received such other documents and
legal opinions in respect of any aspect or consequence of the transactions
contemplated hereby or thereby as they shall reasonably request.
11.2 Conditions to Each Extension of Credit. The agreement of each
Lender to make any Extension of Credit requested to be made by it on any
Borrowing Date (including, without limitation, the Extensions of Credit to be
made on the Effective Date) is subject to the satisfaction or waiver of the
following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the Borrower requesting such Extension of Credit and by
the U.S. Borrower in or pursuant to this Agreement or any other Loan
Document to which it is a party shall, except to the extent that they
relate to a particular date, be true and correct in all material respects
on and as of such Borrowing Date (both before and after giving effect to
the Extension of Credit to be made on such Borrower Date) as if made on and
as of such Borrowing Date; provided, however, that the representations and
warranties set forth in subsection 10.2 shall be made only on the Effective
Date.
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such Borrowing Date, both before and after giving
effect to the Extensions of Credit requested to be made on such Borrowing
Date.
(c) Foreign Subsidiary Opinion. If such requested Extension of Credit
is the initial Multicurrency Loan to be made to any Foreign Subsidiary
Borrower, the General Administrative Agent shall have received (with a copy
for each Lender) a Foreign Subsidiary Opinion in respect of such Foreign
Subsidiary Borrower.
Each Extension of Credit made to a Borrower hereunder shall constitute a
representation and warranty by such Borrower as of the date of such Extension of
Credit that the conditions contained in this subsection 11.2 have been
satisfied.
SECTION 12. AFFIRMATIVE COVENANTS
The U.S. Borrower hereby agrees that, so long as the Commitments (or
any of them) remain in effect, any Loan, Acceptance Reimbursement Obligation or
Acceptance Note remains outstanding and unpaid or any other amount is owing to
any Lender or either Administrative Agent hereunder or under any other Loan
Document, the U.S. Borrower shall
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and (except in the case of (i) delivery of financial information, reports and
notices pursuant to subsection 12.2(b), (c) and (d) which shall only be
delivered by the U.S. Borrower and (ii) delivery of financial information,
reports and notices pursuant to any other subsection of this Section 12 which
shall only be delivered by the U.S. Borrower or the Canadian Borrower, as
applicable) shall cause each of its Subsidiaries to:
12.1 Financial Statements. Furnish to the Administrative Agents
(with a copy for each Lender):
(a) as soon as practicable, but in any event within 120 days after
the end of each fiscal year of such Borrower a copy of the consolidated
balance sheet of such Borrower and its Consolidated Subsidiaries as at the
end of such year and the related consolidated statements of income and
retained earnings and of cash flows for such year, setting forth in each
case in comparative form the figures for the previous year, reported on
without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by independent
certified public accountants of nationally recognized standing selected by
such Borrower; and
(b) as soon as practicable, but in any event not later than 60 days
after the end of each of the first three quarterly periods of each fiscal
year of such Borrower the unaudited consolidated balance sheet of such
Borrower and its Consolidated Subsidiaries as at the end of such quarter
and the related unaudited consolidated statements of income and retained
earnings and of cash flows for such quarter and the portion of the fiscal
year through the end of such quarter, setting forth in the case of such
consolidated financial statements covering any fiscal quarter in
comparative form the figures for the previous year, certified by a
Responsible Officer of such Borrower as being fairly stated in all material
respects (subject to normal year-end audit adjustments).
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
(in the case of the U.S. Borrower) and generally accepted Canadian accounting
principles in effect on the date hereof (in the case of the Canadian Borrower)
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
12.2 Certificates; Other Information. Furnish to the Administrative
Agents (with a copy for each Lender):
(a) concurrently with the delivery of the financial statements
referred to in subsection 12.1(a), a certificate of the independent
certified public accountants reporting on such financial statements stating
that in making the examination necessary therefor no knowledge was obtained
of any Default or Event of Default, except as specified in such
certificate;
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(b) concurrently with the delivery of the financial statements
referred to in subsections 12.1(a) and 12.1(b), a certificate of a
Responsible Officer of the U.S. Borrower, (i) stating that, to the best of
such Officer's knowledge, each Borrower during such period has observed or
performed all of its covenants and other agreements, and satisfied every
condition, contained in this Agreement and the other Loan Documents to
which it is a party to be observed, performed or satisfied by it, and that
such Officer has obtained no knowledge of any Default or Event of Default
except as specified in such certificate and (ii) setting forth (in
reasonable detail) the calculations required to determine compliance with
the covenants set forth in subsection 13.1;
(c) no later than 30 days after the filing thereof with the
Securities and Exchange Commission or any successor or analogous
Governmental Authority (or the delivery of, in the case of statements and
reports sent to stockholders), final copies of all financial statements and
material reports which the U.S. Borrower sends to its stockholders or which
the U.S. Borrower may make to, or file with, such entities and final copies
of all material filings made by the U.S. Borrower with such entities with
respect to the sale of the common stock and/or debt securities of the U.S.
Borrower (including, without limitation, registration statements and
prospectuses and amendments thereto); and
(d) promptly, such additional financial and other information as any
Lender, through the General Administrative Agent, may from time to time
reasonably request.
12.3 Payment of Obligations. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, except where (a) the amount or validity thereof
is currently being contested in good faith by appropriate proceedings and
reserves in conformity with GAAP with respect thereto have been provided on the
books of such Borrower or its Subsidiaries, as the case may be, or (b) the
failure to so pay, discharge or satisfy all such obligations could not, in the
aggregate, have a Material Adverse Effect and would not subject any property of
such Borrower or any of its Subsidiaries to any Lien not permitted by subsection
13.2, 13.3 or 13.4, as applicable.
12.4 Conduct of Business and Maintenance of Existence. Continue to
engage in business of the same general type as now conducted by it and preserve,
renew and keep in full force and effect its corporate existence and take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business; and comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to comply
therewith could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
12.5 Maintenance of Property; Insurance. Keep all property useful
and necessary in its business in good working order and condition; maintain with
financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks (but including
in any event public liability, product
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liability and business interruption) as are usually insured against in the same
general area by companies engaged in the same or a similar business.
12.6 Inspection of Property; Books and Records; Discussions. Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of the Administrative Agents to visit and inspect any of its
properties and examine any of its books and records at any reasonable time and
with reasonable prior notice, and to discuss the business, operations,
properties and financial and other condition of such Borrower and its
Subsidiaries with officers and employees of such Borrower and its Subsidiaries
and with its independent certified public accountants.
12.7 Notices. Promptly (but in any event no later than three days,
or in the case of clause (b), 10 days, or in the case of clause (d) below, 30
days, in each case, after a Responsible Officer of such Borrower knows thereof)
give notice to the Administrative Agents and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of such Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between such
Borrower or any of its Subsidiaries and any Governmental Authority, which
in either case, if not cured or if adversely determined, as the case may
be, could have a Material Adverse Effect;
(c) any litigation or proceeding affecting such Borrower or any of
its Subsidiaries in which the amount involved is $60,000,000 or more and
not covered by insurance or in which injunctive or similar relief is
sought; and
(d) any development or event which has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer of such Borrower setting forth details of the occurrence
referred to therein and stating what action such Borrower and/or its
Subsidiaries propose to take with respect thereto.
12.8 Environmental Laws. (a) Comply with all applicable
Environmental Laws and obtain and comply with and maintain any and all licenses,
approvals, notifications, registrations or permits required by applicable
Environmental Laws except to the extent that the failure to comply with the
foregoing provisions of this paragraph (a) could not reasonably be expected to
have a Material Adverse Effect.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply with all lawful orders and directives of
all Governmental Authorities regarding
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Environmental Laws except to the extent that the same are being contested in
good faith by appropriate proceedings and the pendency of such proceedings could
not reasonably be expected to have a Material Adverse Effect.
12.9 Foreign Subsidiary Opinions. Within 90 days after the Effective
Date (and in any event prior to the initial Extension of Credit to such Foreign
Subsidiary Borrower), deliver to the General Administrative Agent (with a copy
for each Lender) a Foreign Subsidiary Opinion for each Foreign Subsidiary
Borrower that is a party to this Agreement on the Effective Date.
SECTION 13. NEGATIVE COVENANTS
The U.S. Borrower hereby agrees that, so long as the Commitments (or
any of them) remain in effect, any Loan, Acceptance Reimbursement Obligation or
Acceptance Note remains outstanding and unpaid or any other amount is owing to
any Lender or either Administrative Agent hereunder or under any other Loan
Document, the U.S. Borrower shall not, directly or indirectly:
13.1 Financial Condition Covenants.
(a) Debt to Capitalization Ratio. Permit the ratio of (i) Debt of
the U.S. Borrower and its Consolidated Subsidiaries to (ii) the sum of (A) Debt
of the U.S. Borrower and its Consolidated Subsidiaries and (B) Consolidated Net
Worth at any time to be greater than 0.60 to 1.00.
(b) Minimum Adjusted Consolidated Net Worth. Permit the Adjusted
Consolidated Net Worth to be less than $1,200,000,000.
13.2 Restrictions on Secured Funded Debt. Incur, issue, assume,
guarantee, create or suffer to exist any Secured Funded Debt, or permit any
Restricted Subsidiary to, incur, issue, assume, guarantee, create or suffer to
exist any Secured Funded Debt, unless, after giving effect thereto, the sum of
the aggregate amount of all outstanding Secured Funded Debt of the U.S. Borrower
and its Restricted Subsidiaries together with all Attributable Debt in respect
of sale and leaseback transactions relating to a Principal Property (with the
exception of Attributable Debt which is excluded pursuant to clauses (a) to (f)
of subsection 13.3), would not exceed 15% of Consolidated Net Tangible Assets of
the U.S. Borrower and its Restricted Subsidiaries; provided, however, that this
subsection 13.2 shall not apply to, and there shall be excluded from Secured
Funded Debt in any computation under this subsection 13.2, Funded Debt secured
by:
(a) Liens on property of any corporation existing at the time such
corporation becomes a Subsidiary;
(b) Liens on property existing at the time of acquisition thereof or
incurred within 180 days of the time of acquisition thereof (including,
without limitation,
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acquisition through merger or consolidation) by the U.S. Borrower or any
Restricted Subsidiary;
(c) Liens on property hereafter acquired (or constructed) by the U.S.
Borrower 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;
(d) Liens in favor of the U.S. Borrower or any Restricted Subsidiary;
(e) 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;
(f) 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 1954, as
amended;
(g) 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;
(h) Liens incurred (no matter when created) in connection with the
U.S. Borrower'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
U.S. Borrower or such Restricted Subsidiary;
(i) 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 U.S. Borrower or any Restricted Subsidiary, or deposits
of cash or obligations of the United States of America to secure surety and
appeal bonds to which the U.S. Borrower 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 U.S. Borrower or any Restricted Subsidiary with respect
to which the U.S. Borrower 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
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for nonpayment or the amount or validity of which is being in good faith
contested by appropriate proceedings by the U.S. Borrower 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 U.S.
Borrower, in the aggregate materially detract from the value of said
properties or materially impair their use in the operation of the business
of the U.S. Borrower and its Restricted Subsidiaries;
(j) Liens incurred to finance construction, alteration or repair of
any Principal Property and improvements thereto prior to or within 270 days
after completion of such construction, alteration or repair; or
(k) 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 (a) to (j), inclusive;
provided, however, that (i) such extension, renewal, refunding or
replacement Lien shall be limited to all or 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.
13.3 Limitation on Sales and Leasebacks. Enter into, or permit any
Restricted Subsidiary to enter into, any arrangement with any Person providing
for the leasing by the U.S. Borrower or any Restricted Subsidiary of any
Principal Property of the U.S. Borrower or any Restricted Subsidiary, which
Principal Property has been or is to be sold or transferred by the U.S. Borrower
or such Restricted Subsidiary to such person (herein referred to as a "sale and
leaseback transaction") unless, after giving effect thereto, the aggregate
amount of all Attributable Debt with respect to all such sale and leaseback
transactions plus all Secured Funded Debt (with the exception of Funded Debt
secured by Liens which is excluded pursuant to clauses (a) to (k) of subsection
13.2) would not exceed 15% of Consolidated Net Tangible Assets of the U.S.
Borrower and its Restricted Subsidiaries. This covenant shall not apply to, and
there shall be excluded from Attributable Debt in any computation under
subsection 13.2 or this subsection 13.3, Attributable Debt with respect to, any
sale and leaseback transaction if:
(a) the U.S. Borrower or a Restricted Subsidiary is permitted to
create Funded Debt secured by a Lien pursuant to clauses (a) to (k) of
subsection 13.2 on the Principal Property to be leased, in an amount equal
to the Attributable Debt with respect to such sale and leaseback
transaction;
(b) the U.S. Borrower or a Restricted Subsidiary, within 270 days
after the sale or transfer shall have been made by the U.S. Borrower or a
Restricted Subsidiary, shall apply an amount in cash equal to the greater
of (i) the net proceeds of the sale or transfer of the Principal Property
leased pursuant to such arrangement or (ii) the fair
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market value of the Principal Property so leased at the time of entering
into such arrangement (as determined by the President, the Chief Financial
Officer or the Treasurer of the U.S. Borrower) to the retirement of Secured
Funded Debt of the U.S. Borrower or any Restricted Subsidiary (other than
Secured Funded Debt owned by the U.S. Borrower or any Restricted
Subsidiary); provided, however, that no retirement referred to in this
clause (b) may be effected by payment at maturity or pursuant to any
mandatory sinking fund payment or any mandatory prepayment provision of
Secured Funded Debt);
(c) the U.S. Borrower or a Restricted Subsidiary applies the net
proceeds of the sale or transfer of the Principal Property leased pursuant
to such transaction to investment in another Principal Property within 270
days prior or subsequent to such sale or transfer, provided, however, that
this exception shall apply only if such proceeds invested in such other
Principal Property shall not exceed the total acquisition, repair,
alteration and construction cost of the U.S. Borrower or any Restricted
Subsidiary in such other Principal Property less amounts secured by any
purchase money or construction mortgages on such Principal Property;
(d) the effective date of any such arrangement is within 270 days of
the acquisition of the Principal Property (including, without limitation,
acquisition by merger or consolidation) or the completion of construction
and commencement of operation thereof, whichever is later;
(e) the lease in such sale and leaseback transaction is for a term,
including renewals, of not more than three years; or
(f) such sale and leaseback transaction is entered into between the
U.S. Borrower and a Restricted Subsidiary or between Restricted
Subsidiaries.
13.4 Restrictions on Funded Debt of Certain Restricted Subsidiaries.
Permit any Restricted Subsidiary (other than any Credit Subsidiary) to incur,
issue, assume, guarantee, create or suffer to exist any Funded Debt, unless
after giving effect thereto, the sum of the aggregate amount of all outstanding
Funded Debt of the Restricted Subsidiaries (other than the Credit Subsidiaries)
would not exceed 15% of Consolidated Industrial Tangible Assets; provided,
however, that this subsection 13.4 shall not apply to, and there shall be
excluded from, Funded Debt in any computation under this subsection 13.4, (i)
Funded Debt of any corporation existing at the time such corporation becomes a
Restricted Subsidiary and (ii) Indebtedness among the U.S. Borrower and its
Subsidiaries and Indebtedness between Subsidiaries; provided, further, that this
subsection 13.4 shall not prohibit the incurrence of Indebtedness in connection
with any extension, renewal, refinancing, replacement or refunding (including
successive extensions, renewals, refinancings, replacements and refunding), in
whole or in part, of any Indebtedness of the Restricted Subsidiaries (provided
that the principal amount of such Indebtedness being extended, renewed,
refinanced, replaced or refunded is not increased) but any such Indebtedness
shall be included in the computation of Funded Debt under this subsection 13.4.
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13.5 Ownership of Case Credit. At any time cease to own, directly or
indirectly, 100% of the common stock of Case Credit.
13.6 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, except any entity may be merged or consolidated with or into the U.S.
Borrower (provided that (a) the U.S. Borrower shall be the continuing or
surviving corporation or (b) the Indebtedness under this Agreement is assumed by
the surviving corporation with the approval of the Majority Lenders).
SECTION 14. GUARANTEE
14.1 Guarantee. (a) The U.S. Borrower hereby unconditionally and
irrevocably guarantees to the General Administrative Agent, for the ratable
benefit of the Administrative Agents and the Lenders and their respective
successors, indorsees, transferees and assigns, the prompt and complete payment
and performance by the Canadian Borrower, the Foreign Subsidiary Borrowers and
any Alternate Currency Borrower when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations.
(b) The U.S. Borrower further agrees to pay any and all expenses
(including, without limitation, all reasonable fees and disbursements of
counsel, provided that the U.S. Borrower shall only be required to pay the fees
and disbursements of (i) one counsel for the General Administrative Agent, (ii)
one counsel for the Canadian Administrative Agent, (iii) one counsel for the
Canadian Lenders, (iv) one counsel for the U.S. Lenders and (v) one counsel for
the General Administrative Agent and the Multicurrency Lenders in the
jurisdiction of each Foreign Subsidiary Borrower) which may be paid or incurred
by the Administrative Agents, or any Lender in enforcing, or obtaining advice of
counsel in respect of, any rights with respect to, or collecting, any or all of
the Obligations and/or enforcing any rights with respect to, or collecting
against, the U.S. Borrower under this Section. This Section shall remain in full
force and effect until the Obligations are paid in full and the Commitments are
terminated, notwithstanding that from time to time prior thereto the Borrowers
may be free from any Obligations.
(c) No payment or payments made by any Borrower or any other Person
or received or collected by the Administrative Agents or any Lender from any
Borrower or any other Person by virtue of any action or proceeding or any set-
off or appropriation or application, at any time or from time to time, in
reduction of or in payment of the Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of the U.S. Borrower hereunder which
shall, notwithstanding any such payment or payments, remain liable hereunder for
the Obligations until the Obligations are paid in full and the Commitments are
terminated.
(d) The U.S. Borrower agrees that whenever, at any time, or from time
to time, it shall make any payment to any Administrative Agent or any Lender on
account of its
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liability hereunder, it will notify such Administrative Agent and such Lender in
writing that such payment is made under this Section for such purpose.
14.2 Right of Set-off. Each Administrative Agent and each Lender is
hereby irrevocably authorized at any time and from time to time without notice
to the U.S. Borrower, any such notice being expressly waived by the U.S.
Borrower, to set off and appropriate and apply any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Administrative Agent or such Lender (or any Affiliates of such
Lender) to or for the credit or the account of the U.S. Borrower, or any part
thereof in such amounts as such Administrative Agent or such Lender may elect,
against or on account of the obligations and liabilities of the U.S. Borrower to
such Administrative Agent or such Lender hereunder which are then due and
payable and claims of every nature and description of such Administrative Agent
or such Lender against the U.S. Borrower, in any currency, whether arising
hereunder, under any other Loan Document or otherwise in connection therewith,
as such Administrative Agent or such Lender may elect, whether or not such
Administrative Agent or such Lender has made any demand for payment. Each
Administrative Agent and each Lender shall notify the U.S. Borrower promptly of
any such set-off and the application made by such Administrative Agent or such
Lender, as the case may be, of the proceeds thereof; provided that the failure
to give such notice shall not affect the validity of such set-off and
application. The rights of each Administrative Agent and each Lender under this
subsection are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which such Administrative Agent or such
Lender may have.
14.3 No Subrogation. Notwithstanding any payment or payments made by
the U.S. Borrower hereunder, or any set-off or application of funds of the U.S.
Borrower by any Administrative Agent or any Lender, the U.S. Borrower shall not
be entitled to be subrogated to any of the rights of any Administrative Agent or
any Lender against the Borrowers or against any collateral security or guarantee
or right of offset held by any Administrative Agent or any Lender for the
payment of the Obligations, nor shall the U.S. Borrower seek or be entitled to
seek any contribution or reimbursement from the Borrowers in respect of payments
made by the U.S. Borrower hereunder, until all amounts owing to the
Administrative Agent and the Lenders by the Borrowers on account of the
Obligations are paid in full and the Commitments are terminated. If any amount
shall be paid to the U.S. Borrower on account of such subrogation rights at any
time when all of the Obligations shall not have been paid in full, such amount
shall be held by the U.S. Borrower in trust for the Administrative Agents and
the Lenders, segregated from other funds of the U.S. Borrower, and shall,
forthwith upon receipt by the U.S. Borrower, be turned over to the General
Administrative Agent in the exact form received by the U.S. Borrower (duly
indorsed by the U.S. Borrower to the General Administrative Agent, if required),
to be applied against the Obligations, whether matured or unmatured, in such
order as General Administrative Agent may determine. The provisions of this
paragraph shall be effective until the date which is 370 days after the
termination of this Agreement and the payment in full of the Obligations and the
termination of the Commitments.
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14.4 Amendments, etc. with respect to the Obligations; Waiver of
Rights. The U.S. Borrower shall remain obligated hereunder notwithstanding that,
without any reservation of rights against the U.S. Borrower, and without notice
to or further assent by the U.S. Borrower, any demand for payment of any of the
Obligations made by any Administrative Agent or any Lender may be rescinded by
such Administrative Agent or such Lender, and any of the Obligations continued,
and the Obligations, or the liability of any other party upon or for any part
thereof, or any collateral security or guarantee therefor or right of offset
with respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released by any Administrative Agent or any Lender, and any Loan Documents and
any other documents executed and delivered in connection therewith may be
amended, modified, supplemented or terminated, in whole or in part, in
accordance with the provisions thereof as the General Administrative Agent (or
the requisite Lenders, as the case may be) may deem advisable from time to time,
and any collateral security, guarantee or right of offset at any time held by
any Administrative Agent or any Lender for the payment of the Obligations may be
sold, exchanged, waived, surrendered or released. None of any Administrative
Agent or any Lender shall have any obligation to protect, secure, perfect or
insure any Lien at any time held by it as security for the Obligations or for
this Agreement or any property subject thereto. When making any demand hereunder
against the U.S. Borrower, any Administrative Agent or any Lender may, but shall
be under no obligation to, make a similar demand on the Borrowers or any other
guarantor, and any failure by any Administrative Agent or any Lender to make any
such demand or to collect any payments from the Borrower or any such other
guarantor or any release of the Borrowers or such other guarantor shall not
relieve the U.S. Borrower of its obligations or liabilities hereunder, and shall
not impair or affect the rights and remedies, express or implied, or as a matter
of law, of any Administrative Agent or any Lender against the U.S. Borrower. For
the purposes hereof "demand" shall include the commencement and continuance of
any legal proceedings.
14.5 Guarantee Absolute and Unconditional. The U.S. Borrower waives
any and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by any Administrative Agent or
any Lender upon this Agreement or acceptance of this Agreement; the Obligations,
and any of them, shall conclusively be deemed to have been created, contracted
or incurred, or renewed, extended, amended or waived, in reliance upon this
Agreement; and all dealings between the Borrowers and the U.S. Borrower, on the
one hand, and the Administrative Agents and the Lenders, on the other, shall
likewise be conclusively presumed to have been had or consummated in reliance
upon this Agreement. The U.S. Borrower waives diligence, presentment, protest,
demand for payment and notice of default or nonpayment to or upon the Borrowers
and the U.S. Borrower with respect to the Obligations. This Section 14 shall be
construed as a continuing, absolute and unconditional guarantee of payment
without regard to (a) the validity, regularity or enforceability of this
Agreement, any other Loan Document, any of the Obligations or any other
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by any Administrative Agent or any
Lender, (b) any defense, set-off or counterclaim (other than a defense of
payment or performance) which may at any time be available to or be asserted by
the Borrowers against any Administrative Agent or any Lender, or (c) any other
circumstance whatsoever (with or without notice to or
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knowledge of the Borrowers or the U.S. Borrower) which constitutes, or
might be construed to constitute, an equitable or legal discharge of the
Borrowers for the Obligations, or of the U.S. Borrower under this Section
14, in bankruptcy or in any other instance. When pursuing its rights and
remedies hereunder against the U.S. Borrower, any Administrative Agent and
any Lender may, but shall be under no obligation to, pursue such rights and
remedies as it may have against the Borrowers or any other Person or
against any collateral security or guarantee for the Obligations or any
right of offset with respect thereto, and any failure by any Administrative
Agent or any Lender to pursue such other rights or remedies or to collect
any payments from the Borrower or any such other Person or to realize upon
any such collateral security or guarantee or to exercise any such right of
offset, or any release of the Borrowers or any such other Person or of any
such collateral security, guarantee or right of offset, shall not relieve
the U.S. Borrower of any liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of any Administrative Agent or any Lender against the U.S.
Borrower. This Section 14 shall remain in full force and effect and be
binding in accordance with and to the extent of its terms upon the U.S.
Borrower and its successors and assigns, and shall inure to the benefit of
the Administrative Agents and the Lenders, and their respective successors,
indorsees, transferees and assigns, until all the Obligations and the
obligations of the U.S. Borrower under this Agreement shall have been
satisfied by payment in full and the Commitments shall be terminated,
notwithstanding that from time to time during the term of this Agreement
the Borrowers may be free from any Obligations.
14.6 Reinstatement. This Section 14 shall continue to be effective,
or be reinstated, as the case may be, if at any time payment, or any part
thereof, of any of the Obligations is rescinded or must otherwise be restored or
returned by any Administrative Agent or any Lender upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of any Borrower or upon
or as a result of the appointment of a receiver, intervenor or conservator of,
or trustee or similar officer for, any Borrower or any substantial part of its
property, or otherwise, all as though such payments had not been made.
14.7 Payments. The U.S. Borrower hereby agrees that all payments
required to be made by it hereunder will be made to the General Administrative
Agent without set-off or counterclaim in accordance with the terms of the
Obligations, including, without limitation, in the currency in which payment is
due.
SECTION 15. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any Loan or any
Acceptance Reimbursement Obligation or any Acceptance Note when due in
accordance with the terms thereof or hereof; or any Borrower shall fail to
pay any interest on any Loan, or any other amount payable hereunder, within
five days after any such interest or other amount becomes due in accordance
with the terms hereof; or
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(b) Any representation or warranty made by any Borrower herein or in
any other Loan Document or which is contained in any certificate, document
or financial or other statement furnished by it at any time under or in
connection with this Agreement or any such other Loan Document shall prove
to have been incorrect in any material respect on or as of the date made or
deemed made; or
(c) Any Borrower shall default in the observance or performance of
any agreement contained in subsection 12.7(a) or Section 13; or the U.S.
Borrower fails to observe or perform any agreement contained in Section 14;
or
(d) Any Borrower shall default in the observance or performance of
any other agreement contained in this Agreement or any other Loan Document
(other than as provided in paragraphs (a) through (c) of this Section), and
such default shall continue unremedied for a period of 30 days; or
(e) Any Borrower or any Subsidiary of any Borrower shall (i) default
in any payment of principal of or interest on any Indebtedness (other than
the Loans) beyond the period of grace (not to exceed 30 days), if any,
provided in the instrument or agreement under which such Indebtedness was
created, if the aggregate amount of the Indebtedness and/or Guarantee
Obligations in respect of which such default or defaults shall have
occurred is at least $60,000,000; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness referred to in clause (i) above or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause, with the giving of notice if required, such Indebtedness to become
due prior to its stated maturity; provided that, for purposes of this
paragraph (e) only, the term "Indebtedness" shall not include (i) Permitted
Securitization Obligations or (ii) any Guarantee Obligations of any
Subsidiary of the U.S. Borrower in respect of Indebtedness of an Affiliate
of the U.S. Borrower (but only if (A) such Subsidiary owns no material
assets other than equity interests in such Affiliate and (B) such Affiliate
is not a Subsidiary of the U.S. Borrower); and provided, further, that with
respect to any Indebtedness in respect of Interest Rate Agreements, the
holder or holders of such Indebtedness shall have required that a
liquidation or termination payment be made;
(f) (i) Any Borrower or any Material Subsidiary shall commence any
case, proceeding or other action (A) under any existing or future law of
any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or
its debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any substantial
part of its assets, or any Borrower or any Material Subsidiary shall make a
general assignment for the
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benefit of its creditors; or (ii) there shall be commenced against any
Borrower or any Material Subsidiary any case, proceeding or other action of
a nature referred to in clause (i) above which (A) results in the entry of
an order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against any Borrower or any Material Subsidiary
any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order for
any such relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof; or (iv) any
Borrower or any Material Subsidiary shall take any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in, any of
the acts set forth in clause (i), (ii), or (iii) above; or (v) any Borrower
or any Material Subsidiary shall generally not, or shall be unable to, or
shall admit in writing its inability to, pay its debts as they become due;
or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of the
U.S. Borrower or any Commonly Controlled Entity, (iii) a Reportable Event
shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or commencement
of proceedings or appointment of a trustee is, in the reasonable opinion of
the Majority Lenders, likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) the U.S. Borrower or any
Commonly Controlled Entity shall, or in the reasonable opinion of the
Majority Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with respect
to a Plan; and in each case in clauses (i) through (vi) above, such event
or condition, together with all other such events or conditions, if any,
could have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against any
Borrower or any Subsidiary of any Borrower involving a liability (not paid
or fully covered by insurance) of $60,000,000 or more in the aggregate for
the U.S. Borrower and its Subsidiaries, and all such judgments or decrees
shall not have been vacated, discharged, stayed or bonded pending appeal
within 60 days from the entry thereof and enforcement proceedings shall
have commenced; or
(i) The U.S. Borrower shall cease to own, directly or indirectly, all
of the common stock of the Canadian Borrower;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of this Section with respect to the U.S.
Borrower or the Canadian
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Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement (including, without limitation, all Acceptance
Reimbursement Obligations, regardless of whether or not such Acceptance
Reimbursement Obligations are then due and payable) shall immediately become due
and payable, and (B) if such event is any other Event of Default, either or both
of the following actions may be taken: (i) with the consent of the Majority
Lenders, the Administrative Agents may, or upon the request of the Majority
Lenders, the Administrative Agents shall, by notice to the Borrowers declare the
Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; and (ii) with the consent of the Majority Lenders, the
Administrative Agents may, or upon the request of the Majority Lenders, the
Administrative Agents shall, by notice to the Borrowers, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement (including, without limitation, all Acceptance Reimbursement
Obligations, regardless of whether or not such Acceptance Reimbursement
Obligations are then due and payable) to be due and payable forthwith, whereupon
the same shall immediately become due and payable.
With respect to all outstanding Acceptance Reimbursement Obligations
in respect of Acceptances which have not matured at the time of an acceleration
pursuant to the preceding paragraph, the Canadian Borrower shall at such time
deposit in a cash collateral account opened by and maintained by the Canadian
Administrative Agent an amount equal to the aggregate undiscounted face amount
of all such unmatured Acceptances. Amounts held in such cash collateral account
shall be applied by the Canadian Administrative Agent to the payment of maturing
Acceptances, and any balance in such account shall be applied to repay other
obligations of the Canadian Borrower hereunder and under any Notes. After all
Acceptance Reimbursement Obligations shall have been satisfied and all other
obligations of the Canadian Borrower hereunder and under any Notes shall have
been paid in full, the balance, if any, in such cash collateral account shall be
returned to the Canadian Borrower.
Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
SECTION 16. THE ADMINISTRATIVE AGENTS; THE CO-AGENTS AND LEAD
MANAGERS; THE SWING LINE LENDERS
16.1 Appointment. Each Lender hereby irrevocably designates and
appoints (a) Chase as the General Administrative Agent and (b) The Bank of Nova
Scotia as the Canadian Administrative Agent of such Lender under this Agreement
and the other Loan Documents, and each such Lender irrevocably authorizes (a)
Chase to act as the General Administrative Agent of such Lender, and (b) The
Bank of Nova Scotia to act as the Canadian Administrative Agent, to take such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the General Administrative Agent and the Canadian Administrative
Agent, respectively, by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
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Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agents shall not have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship with any Lender,
and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against either Administrative Agent.
16.2 Delegation of Duties. Each Administrative Agent may execute any
of its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. Neither Administrative Agent
shall be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
16.3 Exculpatory Provisions. Neither Administrative Agent nor any of
its respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by any Borrower or
other Person or any officer thereof contained in this Agreement or any other
Loan Document or in any certificate, report, statement or other document
referred to or provided for in, or received by such Administrative Agent under
or in connection with, this Agreement or any other Loan Document or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document or for any failure of a Borrower or
any other Person to perform its obligations hereunder or thereunder. Neither
Administrative Agent shall be under any obligation to any Lender to ascertain or
to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document or to
inspect the properties, books or records of the Borrowers.
16.4 Reliance by Administrative Agent. Each Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrowers or any of
them), independent accountants and other experts selected by such Administrative
Agent. Each Administrative Agent may deem and treat the payee of any Note as
the owner thereof for all purposes unless a written notice of assignment or
transfer thereof shall have been filed with such Administrative Agent. Each
Administrative Agent shall be fully justified as between itself and the Lenders
in failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Majority Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
Each Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Majority Lenders, and such request and
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any action taken or failure to act pursuant thereto shall be binding upon all
the Lenders and all future holders of the Loans and the Acceptance Reimbursement
Obligations.
16.5 Notice of Default. Neither Administrative Agent shall be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless such Administrative Agent has received notice from a Lender or
a Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event
that either Administrative Agent receives such a notice, such Administrative
Agent shall give notice thereof to the Lenders. Each Administrative Agent shall
take such action reasonably promptly with respect to such Default or Event of
Default as shall be reasonably directed by the Majority Lenders; provided that
unless and until such Administrative Agent shall have received such directions,
such Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders.
16.6 Non-Reliance on Administrative Agents and Other Lender. Each
Lender expressly acknowledges that neither Administrative Agent nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any representations or warranties to it and that no act by
such Administrative Agent hereinafter taken, including any review of the affairs
of any Borrower, shall be deemed to constitute any representation or warranty by
such Administrative Agent to any Lender. Each Lender represents to each
Administrative Agent that it has, independently and without reliance upon such
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrowers and made its own decision to
make its Extensions of Credit hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon
either Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrowers. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by an Administrative Agent hereunder, such Administrative Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of the Borrowers which
may come into the possession of such Administrative Agent or any of its
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates.
16.7 Indemnification. Each U.S. Lender (together with, in the case
of a U.S. Common Lender, its Counterpart Lender on a joint and several basis)
agrees to indemnify each Administrative Agent in its capacity as such (to the
extent not reimbursed by the Borrowers and without limiting the obligation of
the Borrowers to do so), ratably according to its U.S. Commitment Percentage in
effect on the date on which indemnification is sought
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from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Loans and the Acceptance Reimbursement
Obligations) be imposed on, incurred by or asserted against such Administrative
Agent in any way relating to or arising out of this Agreement, any of the other
Loan Documents or any documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby or any action taken or
omitted by such Administrative Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the gross
negligence or willful misconduct of such Administrative Agent. The agreements in
this subsection shall survive the payment of the Loans, the Acceptance
Reimbursement Obligations and all other amounts payable hereunder.
16.8 Administrative Agents in their Individual Capacity. Each
Administrative Agent and its respective affiliates may make loans to, accept
Drafts, accept deposits from and generally engage in any kind of business with
the Borrowers as though such Administrative Agent was not an Administrative
Agent hereunder and under the other Loan Documents. With respect to the Loans
made or renewed by such Administrative Agent, any Acceptances created by such
Administrative Agent and any Note or Acceptance Note issued to it, such
Administrative Agent shall have the same rights and powers under this Agreement
and the other Loan Documents as any Lender and may exercise the same as though
it were not an Administrative Agent, and the terms "Lender" and "Lenders" shall
include each Administrative Agent in its individual capacity.
16.9 Successor Administrative Agents. The General Administrative
Agent may resign as General Administrative Agent, and the Canadian
Administrative Agent may resign as Canadian Administrative Agent, in each case
upon 30 days' notice to the Lenders and the other Administrative Agent. If
either Administrative Agent shall resign as General Administrative Agent or
Canadian Administrative Agent, as the case may be, under this Agreement and the
other Loan Documents, then the Majority Lenders shall appoint from among the
U.S. Lenders (in the case of a resignation of the General Administrative Agent)
or the Canadian Lenders (in the case of a resignation of the Canadian
Administrative Agent) a successor administrative agent for the Lenders, which
successor administrative agent shall be approved by the Borrowers (such approval
not to be unreasonably withheld), whereupon such successor administrative agent
shall succeed to the rights, powers and duties of the resigning Administrative
Agent, and the terms "General Administrative Agent" or "Canadian Administrative
Agent", as the case may be, shall mean such successor administrative agent
effective upon such appointment and approval, and the former Administrative
Agent's rights, powers and duties as either General Administrative Agent or
Canadian Administrative Agent, as the case may be, shall be terminated, without
any other or further act or deed on the part of such former Administrative Agent
or any of the parties to this Agreement or any holders of the Loans. After any
resigning Administrative Agent's resignation as either General Administrative
Agent or Canadian Administrative Agent, as the case may be, the provisions of
this subsection shall inure to its benefit as to any actions taken or omitted to
be taken by it
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while it was either General Administrative Agent or Canadian Administrative
Agent, as the case may be, under this Agreement and the other Loan Documents.
16.10 The Co-Agents and Lead Managers. Each Lender and each Co-Agent
and Lead Manager acknowledge that the Co-Agents and Lead Managers, in such
capacities, shall have no duties or responsibilities, and shall incur no
liabilities, under this Agreement or the other Loan Documents in their
respective capacities as such.
16.11 Swing Line Lenders. The provisions of this Section 16 shall
apply to the Swing Line Lenders in their respective capacities as such to the
same extent that such provisions apply to the Administrative Agents.
SECTION 17. MISCELLANEOUS
17.1 Amendments and Waivers. (a) Neither this Agreement or any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented, waived or modified except in accordance with the provisions of
this subsection 17.1. The Majority Lenders may, or, with the written consent of
the Majority Lenders, the Administrative Agents may, from time to time, (i)
enter into with the Borrowers written amendments, supplements or modifications
hereto and to the other Loan Documents for the purpose of adding any provisions
to this Agreement or the other Loan Documents or changing in any manner the
rights or obligations of the Lenders or of the Borrowers hereunder or thereunder
or (ii) waive at the Borrowers' request, on such terms and conditions as the
Majority Lenders or the Administrative Agents, as the case may be, may specify
in such instrument, any of the requirements of this Agreement or the other Loan
Documents or any Default or Event of Default and its consequences; provided,
however, that no such waiver and no such amendment, supplement or modification
shall:
(A) reduce the amount or extend the scheduled date of maturity
of any Loan or any Acceptance or any Acceptance Note or of any scheduled
installment thereof, or reduce the stated rate of any interest or fee
payable hereunder or extend the scheduled date of any payment thereof or
increase the amount or extend the expiration date of any Lender's Canadian
Revolving Credit Commitment, Multicurrency Commitment or U.S. Revolving
Credit Commitment, in each case without the consent of each Lender affected
thereby;
(B) amend, supplement, modify or waive any provision of this
subsection 17.1 or reduce the percentages specified in the definition of
"Majority Lenders" or consent to the assignment or transfer by any Borrower
of any of its rights and obligations under this Agreement and the other
Loan Documents, in each case without the consent of all the Lenders or
reduce the percentages specified in the definitions of (I) "Majority U.S.
Lenders" without the consent of all of the U.S. Lenders or (II) "Majority
Canadian Lenders" without the consent of all of the Canadian Lenders;
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(C) amend, supplement, modify or waive any provision of Section
16 or any other provision of this Agreement governing the respective rights
or obligations of the Swing Line Lenders, the General Administrative Agent
or the Canadian Administrative Agent without the written consent of the
Swing Line Lenders and the then Administrative Agents, respectively; or
(D) amend, supplement, modify or waive any provision of Section 3
or any other provision of this Agreement governing the rights and
obligations of the Swing Line Lenders or the definitions used therein
without the written consent of the Swing Line Lenders.
Any waiver and any amendment, supplement or modification pursuant to this
subsection 17.1 shall apply to each of the Lenders and shall be binding upon the
Borrowers, the Lenders, the General Administrative Agent, the Canadian
Administrative Agent and all future holders of the Loans and the Acceptance
Reimbursement Obligations. In the case of any waiver, the Borrowers, the
Lenders, the General Administrative Agent and the Canadian Administrative Agent
shall be restored to their former positions and rights hereunder and under the
other Loan Documents, and any Default or Event of Default waived shall be deemed
to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right consequent
thereon.
(b) In addition to amendments effected pursuant to the foregoing
paragraph (a), Schedules II and III may be amended as follows:
(i) Schedule II will be amended to add Subsidiaries of the U.S.
Borrower as additional Foreign Subsidiary Borrowers upon (A) execution and
delivery by the U.S. Borrower, any such Foreign Subsidiary Borrower and the
General Administrative Agent, of a Joinder Agreement providing for any such
Subsidiary to become a Foreign Subsidiary Borrower, and (B) delivery to the
General Administrative Agent of (I) a Foreign Subsidiary Opinion in respect
of such additional Foreign Subsidiary Borrower and (II) such other
documents with respect thereto as the Administrative Agent shall reasonably
request.
(ii) Schedule II will be amended to remove any Subsidiary as a
Foreign Subsidiary Borrower upon (A) execution and delivery by the U.S.
Borrower of a written amendment providing for such amendment and (B)
repayment in full of all outstanding Loans of such Foreign Subsidiary
Borrower.
(iii) Schedule III will be amended (A) to change administrative
information contained therein (other than any interest rate definition,
funding time, payment time or notice time contained therein) or (B) to add
Available Foreign Currencies (and related interest rate definitions and
administrative information) with the approval of the Majority Multicurrency
Lenders, in each case, upon execution and delivery by the U.S. Borrower and
the General Administrative Agent of a written amendment providing for such
amendment.
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98
(iv) Schedule III will be amended to conform any funding time,
payment time or notice time contained therein to then-prevailing market
practices, upon execution and delivery by the U.S. Borrower, the Majority
Lenders and the General Administrative Agent of a written amendment
providing for such amendment.
(v) Schedule III will be amended to change any interest rate
definition contained therein, upon execution and delivery by the U.S.
Borrower, all the Multicurrency Lenders and the General Administrative
Agent of a written amendment providing for such amendment.
(c) The Administrative Agent shall give prompt notice to each U.S.
Lender of any amendment effect pursuant to subsection 17.1(b).
(d) Notwithstanding the provisions of this subsection 17.1, any
Alternate Currency Facility may be amended, supplemented or otherwise modified
in accordance with its terms so long as after giving effect thereto either (i)
such Alternate Currency Facility ceases to be an "Alternate Currency Facility"
and the U.S. Borrower so notifies the General Administrative Agent or (ii) the
Alternate Currency Facility continues to meet the requirements of an Alternate
Currency Facility set forth herein.
17.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered by hand, or three days
after being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, or, in the case of delivery by a nationally recognized
overnight courier, when received, addressed as follows in the case of the
Borrowers, the General Administrative Agent and the Canadian Administrative
Agent, and as set forth in Schedule I in the case of the other parties hereto,
or to such other address as may be hereafter notified by the respective parties
hereto and any future holders of the Notes:
The U.S. Borrower: Case Corporation
700 State Street
Racine, Wisconsin 53404
Attention: Treasurer
Telephone: (414) 636-6011
Telecopy: (414) 636-6590/0483
The Canadian Borrower: Case Canada Corporation
c/o Case Corporation
700 State Street
Racine, Wisconsin 53404
Attention: Treasurer
Telephone: (414) 636-6011
Telecopy: (414) 636-6590/0483
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99
The Foreign
Subsidiary Borrowers: c/o Case Corporation
700 State Street
Racine, Wisconsin 53404
Attention: Treasurer
Telephone: (414) 636-6011
Telecopy: (414) 636-6590/0483
The General
Administrative Agent: The Chase Manhattan Bank
140 East 45th Street
29th Floor
New York, New York 10017
Attention: Chris Consomer
Telephone: (212) 622-8779
Telecopy: (212) 622-0122
with a copy to:
Chase Securities Inc.
Ten South LaSalle Street
Suite 2300
Chicago, Illinois 60603
Attention: Cynthia Berkshire
Telephone: (312) 807-4029
Telecopy: (312) 807-4077
The Canadian
Administrative Agent: The Bank of Nova Scotia
44 King Street West
16th Floor
Toronto, Ontario
Canada M5H 1H1
Attention: John Hall
Telephone: (416) 933-2320
Telecopy: (416) 866-2009
provided that any notice, request or demand to or upon (i) the Administrative
Agents or the Lenders pursuant to subsection 2.3, 3.2, 4.2, 5.3, 6.2, 7.3, 9.2,
9.4, 9.7 or 9.11 or (ii) either Swing Line Lender pursuant to Section 3, shall
not be effective until received.
17.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of any Borrower, the General Administrative
Agent, the Canadian Administrative Agent or any Lender, any right, remedy, power
or privilege hereunder or under the other Loan Documents shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or
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100
further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
17.4 Survival of Representations and Warranties. All representations
and warranties made hereunder and in the other Loan Documents (or in any
amendment, modification or supplement hereto or thereto) and in any certificate
delivered pursuant hereto or such other Loan Documents shall survive the
execution and delivery of this Agreement and the Notes and the making of the
Loans hereunder.
17.5 Payment of Expenses and Taxes. Each Borrower agrees (a) to pay or
reimburse the General Administrative Agent and the Canadian Administrative Agent
for all their respective reasonable out-of-pocket costs and expenses incurred in
connection with the preparation, execution and delivery of, and any amendment,
supplement, waiver or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions (including the
syndication of the Commitments) contemplated hereby and thereby, including,
without limitation, the reasonable fees and disbursements of counsel (and any
special or local counsel retained by such counsel to assist it) to each
Administrative Agent, (b) to pay or reimburse each Lender and each
Administrative Agent for all its reasonable costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any such other documents; provided that
the Borrowers shall only be required to pay or reimburse the Lenders and the
Administrative Agents for the fees and disbursements of (i) one counsel for the
General Administrative Agent, (ii) one counsel for the Canadian Administrative
Agent, (iii) one counsel for the Canadian Lenders, (iv) one counsel for the U.S.
Lenders pursuant to this clause (b) and (v) one counsel to the General
Administrative Agent and the Multicurrency Lenders in the jurisdiction of each
Foreign Subsidiary Borrower, (c) to pay, indemnify, and hold each Lender and
each Administrative Agent harmless from, any and all recording and filing fees
and any and all liabilities with respect to, or resulting from any delay in
paying, stamp, excise and other similar taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Loan Documents and any such other
documents, and (d) to pay, indemnify, and hold each Lender and each
Administrative Agent (and their respective directors, officers, employees,
agents, affiliates and successors) harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever (whether or
not caused by any Lender's or either Administrative Agent's or any of their
respective directors', officers', employees', agents', successors', affiliates'
or assigns' negligence (other than gross negligence) and including, without
limitation, the reasonable fees and disbursements of the respective counsels to
each Administrative Agent and each Lender, including, without duplication, the
allocated costs of staff counsel to any such Administrative Agent or Lender)
with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any such other
documents (regardless of whether either Administrative Agent
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101
or any Lender is a party to the litigation or other proceeding giving rise
thereto), including, without limitation, any of the foregoing relating to the
violation of, noncompliance with or liability under, any Environmental Laws or
any orders, requirements or demands of Governmental Authorities related thereto
applicable to the operations of the U.S. Borrower, any of its Subsidiaries or
any of the Properties (all the foregoing in this clause (d), collectively, the
"indemnified liabilities"), provided, that the Borrowers shall have no
obligation hereunder to the Administrative Agents or any Lender with respect to
indemnified liabilities to the extent such indemnified liabilities arise solely
from (i) the gross negligence or willful misconduct of the General
Administrative Agent, the Canadian Administrative Agent or any such Lender (or
any of their respective directors, officers, employees, agents, affiliates or
successors) or (ii) legal proceedings commenced against the General
Administrative Agent, the Canadian Administrative Agent or any such Lender by
any securityholder or creditor of the General Administrative Agent, the Canadian
Administrative Agent or any such Lender arising out of and based upon rights
afforded any such securityholder or creditor solely in its capacity as such;
provided, however, that nothing in this subsection shall be construed as
requiring the Canadian Borrower to so indemnify in amounts that would be in
violation of, and its obligations to so indemnify are subject to, the
restrictions on financial assistance set out in the Business Corporations Act
(Ontario); and, provided, further, that the preceding proviso shall not be
construed in any way as limiting or derogating from the obligations of the other
Borrowers set out in this subsection. The agreements in this subsection shall
survive repayment of the Loans, the Acceptance Reimbursement Obligations and all
other amounts payable hereunder.
17.6 Successors and Assigns; Participations and Assignments. (a) This
Agreement shall be binding upon and inure to the benefit of the Borrowers, the
Lenders, the Administrative Agents, all future holders of the Loans and the
Acceptance Reimbursement Obligations and their respective successors and
assigns, except that no Borrower may assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or more
banks or other entities ("Participants") participating interests in any Loan
owing to such Lender, any Commitment of such Lender or any other interest of
such Lender hereunder and under the other Loan Documents; provided that, in the
case of participations granted by a Canadian Lender, such Participant must be a
resident of Canada for purposes of the Tax Act unless such participation is
granted pursuant to subsection 17.8. In the event of any such sale by a Lender
of a participating interest to a Participant, such Lender's obligations under
this Agreement to the other parties to this Agreement shall remain unchanged,
such Lender shall remain solely responsible for the performance thereof, such
Lender shall remain the holder of any such Loan for all purposes under this
Agreement and the other Loan Documents, and the Borrowers and the Administrative
Agents shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement and the other
Loan Documents. Any agreement pursuant to which any Lender shall sell any such
participating interest shall provide that such Lender shall retain the sole
right and responsibility to exercise such Lender's rights and enforce the
Borrowers' obligations
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102
hereunder, including the right to consent to any amendment, supplement,
modification or waiver of any provision of this Agreement or any of the other
Loan Documents, provided that such participation agreement may provide that such
Lender will not agree to any amendment, supplement, modification or waiver
described in clause (A) or (B) of the proviso to the second sentence of
subsection 17.1(a) without the consent of the Participant. Each Borrower agrees
that if amounts outstanding under this Agreement are due or unpaid, or shall
have been declared or shall have become due and payable upon the occurrence of
an Event of Default, each Participant shall be deemed to have the right of
setoff in respect of its participating interest in amounts owing under this
Agreement to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under this Agreement; provided that, in
purchasing such participating interest, such Participant shall be deemed to have
agreed to share with the Lenders the proceeds thereof as provided in subsection
17.7(a) as fully as if it were a Lender hereunder. Each Borrower agrees that
each Participant shall be entitled to the benefits of subsections 9.10, 9.11,
9.12, 9.13 and 17.6 with respect to its participation in the Commitments and the
Loans outstanding from time to time hereunder as if it was a Lender.
(c) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time and from time to
time assign to any Lender or any Affiliate thereof or, with the prior written
consent of the U.S. Borrower (such consent not to be unreasonably withheld) and
the Administrative Agents (such consent not to be unreasonably withheld), to an
additional bank or financial institution (an "Assignee") all or any part of its
rights and obligations under this Agreement and the other Loan Documents
including, without limitation, its Commitments, Loans and Acceptance
Reimbursement Obligations, pursuant to an Assignment and Acceptance,
substantially in the form of Exhibit K, executed by such Assignee, such
assigning Lender (and, in the case of an Assignee that is not then a Lender or
an Affiliate thereof, by the U.S. Borrower and the Administrative Agents) and
delivered to the Administrative Agents for their acceptance and recording in the
Register; provided that (i) if any Lender assigns a part of its rights and
obligations in respect of Revolving Credit Loans and/or Revolving Credit
Commitment under this Agreement to an Assignee, such Lender and such Lender's
Counterpart Lender (if any) shall each assign proportionate interests in their
respective Revolving Credit Commitment and Revolving Credit Loans and other
related rights and obligations hereunder to such Assignee and a Counterpart
Lender for such Assignee designated by it, (ii) if any U.S. Lender assigns a
part of its rights and obligations under this Agreement in respect of its U.S.
Revolving Credit Loans and/or U.S. Revolving Credit Commitment to an Assignee,
such U.S. Lender shall assign proportionate interests in (A) its participations
in the Swing Line Loans and other rights and obligations hereunder in respect of
the Swing Line Loans to such Assignee and (B) Multicurrency Loans and
Multicurrency Commitments, (iii) in the case of any such assignment to an
additional bank or financial institution, the aggregate amount of any U.S.
Revolving Credit Commitment (or, if the U.S. Revolving Credit Commitments have
terminated or expired, the aggregate principal amount of any U.S. Revolving
Credit Loans) being assigned, or the U.S. Dollar Equivalent of the aggregate
amount of the Canadian Revolving Credit Commitment (or if the Canadian Revolving
Credit Commitments have terminated or expired, the aggregate amount of Canadian
Revolving Credit Loans and Acceptance Reimbursement Obligations) being assigned
shall not be less than $10,000,000 (or
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(i) if less, the then outstanding amount of such Commitments, Loans and/or
Acceptance Reimbursement Obligations or (ii) such lesser amount as may be agreed
by the Borrowers and the Administrative Agents) and (iv) in the case of any such
assignment made by a Canadian Lender, such Assignee must be a resident of Canada
for purposes of the Tax Act unless such assignment is made pursuant to 17.8.
Upon such execution, delivery, acceptance and recording, from and after the
effective date determined pursuant to such Assignment and Acceptance, (I) the
Assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
with Commitments, rights in respect of Acceptance Reimbursement Obligations and
Loans as set forth therein, and (II) the assigning Lender thereunder shall be
released from its obligations under this Agreement to the extent that such
obligations shall have been expressly assumed by the Assignee pursuant to such
Assignment and Acceptance (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Lender's rights and
obligations under this Agreement, such assigning Lender shall cease to be a
party hereto).
(d) The Administrative Agents, on behalf of the Borrowers, shall
maintain at their respective addresses referred to in subsection 17.2 a copy of
each Assignment and Acceptance delivered to it and a register (the "Register")
for the recordation of (i) the names and addresses of the Lenders and the
Commitments of, and principal amounts of the Loans and Acceptances owing to,
each Lender from time to time and (ii) the other information required from time
to time pursuant to subsection 3.1 in respect of Swing Line Loans. The entries
in the Register shall constitute prima facie evidence of the information
recorded therein, and the Borrowers, the Administrative Agents and the Lenders
may (and, in the case of any Loan, Acceptance or other obligation hereunder not
evidenced by a Note, shall) treat each Person whose name is recorded in the
Register as the owner of a Loan, Acceptance or other obligation hereunder as the
owner thereof for all purposes of this Agreement and the other Loan Documents,
notwithstanding any notice to the contrary. Any assignment of any Loan,
Acceptance or other obligation hereunder not evidenced by a Note shall be
effective only upon appropriate entries with respect thereto being made in the
Register. The Register shall be available for inspection by the Borrowers or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an Affiliate thereof, executed by the Borrowers and the
Administrative Agents), together with payment to the Administrative Agents of a
registration and processing fee of $2,500, the Administrative Agents shall (i)
promptly accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register and give prompt notice of such acceptance and recordation to the
Lenders and the Borrowers.
(f) Each Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee
any and all financial information in such Lender's possession concerning such
Borrower and its Affiliates which has been delivered to such Lender by or on
behalf of such Borrower pursuant to this
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104
Agreement or which has been delivered to such Lender by or on behalf of such
Borrower in connection with such Lender's credit evaluation of such Borrower and
its Affiliates prior to becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this subsection concerning assignments of Loans and Notes
relate only to absolute assignments and that such provisions do not prohibit
assignments creating security interests, including, without limitation, any
pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank
in accordance with applicable law.
(h) If, pursuant to this subsection, any interest in this Agreement
or any Loan is transferred to any Transferee (which is a U.S. Lender) which is
organized under the laws of any jurisdiction other than the United States or any
state thereof, the transferor Lender shall cause such Transferee, concurrently
with the effectiveness of such transfer, to agree (for the benefit of the
transferor Lender, the General Administrative Agent and the U.S. Borrower) to
provide the transferor Lender (and, in the case of any Transferee registered in
the Register, the General Administrative Agent and the U.S. Borrower) the tax
forms and other documents required to be delivered pursuant to subsection
9.11(b) and to comply from time to time with all applicable U.S. laws and
regulations with regard to such withholding tax exemption.
(i) If, pursuant to this subsection, any interest in this Agreement
or any Loan is transferred to any Transferee, the transferor Lender shall cause
such Transferee, concurrently with the effectiveness of such transfer, to agree
(for the benefit of the transferor Lender, the General Administrative Agent and
the Foreign Subsidiary Borrowers) to provide the transferor Lender, the General
Administrative Agent and the Foreign Subsidiary Borrowers the tax forms and
other documents required to be delivered pursuant to subsection 9.11(c) and to
comply from time to time with all applicable laws and regulations with regard to
such withholding tax exemption.
17.7 Adjustments; Set-Off. (a) If any Lender (a "Benefitted
Lender") shall at any time receive any payment of all or part of its Loans or
Acceptance Reimbursement Obligations then due and owing to it, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 15(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Loans or Acceptance Reimbursement Obligations then due
and owing to it, or interest thereon, such Benefitted Lender shall purchase for
cash from the other Lenders a participating interest in such portion of each
such other Lender's Loans or Acceptance Reimbursement Obligations owing to it,
or shall provide such other Lenders with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause such Benefitted Lender to
share the excess payment or benefits of such collateral or proceeds ratably with
each of the Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such Benefitted Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest.
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105
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to any Borrower, any
such notice being expressly waived by the Borrowers to the extent permitted by
applicable law, upon any amount becoming due and payable hereunder (whether at
the stated maturity thereof, by acceleration or otherwise) to set-off and
appropriate and apply against such amount any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch, agency or Affiliate thereof to or for the
credit or the account of any Borrower. Each Lender agrees promptly to notify
the Borrowers and the Administrative Agents after any such set-off and
application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application.
17.8 Loan Conversion/Participations. (a) (i) On any Conversion
Date, to the extent not otherwise prohibited by a Requirement of Law or
otherwise, all Loans outstanding in any currency other than U.S. Dollars ("Loans
to be Converted") shall be converted into U.S. Dollars (calculated on the basis
of the relevant Exchange Rates as of the Business Day immediately preceding the
Conversion Date) ("Converted Loans"), (ii) on each date on or after the
Conversion Date on which any Acceptances or Acceptance Notes shall mature such
Acceptances and Acceptance Notes ("Acceptances to be Converted") shall be
converted into Canadian Revolving Credit Loans denominated in U.S. Dollars
(calculated on the basis of the Exchange Rate as of the Business Day immediately
preceding such maturity date) ("Converted Acceptances") and (iii) on the
Conversion Date (with respect to Loans described in the foregoing clause (i)),
and on the respective maturity date (with respect to Acceptances and Acceptance
Notes described in the foregoing clause (ii)) (A) each U.S. Lender severally,
unconditionally and irrevocably agrees that it shall purchase in U.S. Dollars a
participating interest in such Converted Loans and Converted Acceptances in an
amount equal to its Conversion Sharing Percentage of (x) the outstanding
principal amount of the Converted Loans and (y) the face amount of matured
Acceptances and Acceptance Notes, as applicable, and (B) to the extent necessary
to cause the Committed Outstandings Percentage of each U.S. Lender, after giving
effect to the purchase and sale of participating interests under the foregoing
clause (iii), to equal its U.S. Revolving Credit Commitment Percentage
(calculated immediately prior to the termination or expiration of the U.S.
Revolving Credit Commitments), each U.S. Lender severally, unconditionally and
irrevocably agrees that it shall purchase or sell a participating interest in
U.S. Revolving Credit Loans then outstanding. Each U.S. Lender will immediately
transfer to the appropriate Administrative Agent, in immediately available
funds, the amounts of its participation(s), and the proceeds of such
participation(s) shall be distributed by such Administrative Agent to each
Lender from which a participating interest is being purchased in the amount(s)
provided for in the preceding sentence. All Converted Loans and Converted
Acceptances (which shall have been converted into Canadian Revolving Credit
Loans denominated in Dollars) shall bear interest at the rate which would
otherwise be applicable to ABR Loans.
(b) If, for any reason, the Loans to be Converted or Acceptances to
be Converted, as the case may be, may not be converted into U.S. Dollars in the
manner contemplated by paragraph (a) of this subsection 17.8, (i) the General
Administrative Agent
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shall determine the U.S. Dollar Equivalent of the Loans to be Converted or
Acceptances to be Converted, as the case may be, (calculated on the basis of the
Exchange Rate as of the Business Day immediately preceding the date on which
such conversion would otherwise occur pursuant to paragraph (a) of this
subsection 17.8), (ii) effective on such Conversion Date, each Lender severally,
unconditionally and irrevocably agrees that it shall purchase in U.S. Dollars a
participating interest in such Loans to be Converted or Acceptances to be
Converted, as the case may be, in an amount equal to its Conversion Sharing
Percentage of such Loans to be Converted or Acceptances to be Converted, as the
case may be, and (iii) each U.S. Lender shall purchase or sell participating
interests as provided in paragraph (a)(iv) of this subsection 17.8. Each U.S.
Lender will immediately transfer to the appropriate Administrative Agent, in
immediately available funds, the amount(s) of its participation(s), and the
proceeds of such participation(s) shall be distributed by such Administrative
Agent to each relevant Lender in the amount(s) provided for in the preceding
sentence.
(c) To the extent any Non-Excluded Taxes are required to be withheld
from any amounts payable by a Lender to another Lender in connection with its
participating interest in any Converted Loan or Converted Acceptance, each
Borrower, with respect to the relevant Loans made to it, shall be required to
pay increased amounts to the Lender receiving such payments to the same extent
they would be required under subsection 9.11 if such Borrower were making
payments directly to such Lender.
(d) To the extent not prohibited by any Requirement of Law or
otherwise, at any time after the actions contemplated by paragraphs (a) or (b)
of this subsection 17.8 have been taken, upon the notice of any U.S. Lender to
the Borrowers the following shall occur: (i) the U.S. Borrower (through the
guarantee contained in Section 14) shall automatically be deemed to have assumed
the Converted Loans and Converted Acceptances in which such U.S. Lender holds a
participation, (ii) any Acceptances and Loans outstanding in any currency other
than U.S. Dollars shall be converted into U.S. Dollars on the dates of such
assumption (calculated on the basis of the Exchange Rate on the Business Day
immediately preceding such date of assumption) and such Loans shall bear
interest at the rate which would otherwise be applicable to ABR Loans and (iii)
such Loans and obligations in respect of Acceptances shall be assigned by the
relevant Lender holding such Loans or obligations to the U.S. Lender who gave
the notice requesting such assumption by the U.S. Borrower.
17.9 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be delivered to the Borrowers and the
Administrative Agents.
17.10 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
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17.11 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrowers, the Administrative Agents and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Borrowers, the Administrative
Agents or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.
17.12 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
17.13 Submission To Jurisdiction; Waivers. (a) Each party hereto
hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the Courts of
the State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have
to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and agrees
not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to U.S. Borrowers, the applicable Lender or the applicable
Administrative Agent, as the case may be, at the address specified in
subsection 17.2 or the signature pages hereof, or at such other address of
which the Administrative Agents and the Borrowers shall have been notified
pursuant thereto;
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction; and
(v) waives, to the maximum extent permitted by law, any right
it may have to claim or recover in any legal action or proceeding referred
to in this subsection any punitive damages.
(b) Each of the Canadian Borrower and each Foreign Subsidiary
Borrower hereby irrevocably appoints the U.S. Borrower as its agent for service
of process in any proceeding referred to in subsection 17.13(a) and agrees that
service of process in any such proceeding may be made by mailing or delivering a
copy thereof to it care of U.S. Borrower at its address for notice set forth in
subsection 17.2.
<PAGE>
108
17.14 Acknowledgements. Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) none of either Administrative Agent or any Lender has any
fiduciary relationship with or duty to such Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between the Administrative Agents and the Lenders, on the one
hand, and the Borrowers, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the Lenders or among the Borrowers and the Lenders.
17.15 WAIVERS OF JURY TRIAL. THE BORROWERS, THE ADMINISTRATIVE
AGENTS AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
17.16 Power of Attorney. Each Foreign Subsidiary Borrower hereby
grants to U.S. Borrower an irrevocable power of attorney to act as its attorney-
in-fact with regard to matters relating to this Agreement and each other Loan
Document, including, without limitation, execution and delivery of any
amendments, supplements, waivers or other modifications hereto or thereto,
receipt of any notices hereunder or thereunder and receipt of service of process
in connection herewith or therewith. Each Foreign Subsidiary Borrower hereby
explicitly acknowledges that the Administrative Agents and each Lender have
executed and delivered this Agreement and each other Loan Document to which it
is a party, and has performed its obligations under this Agreement and each
other Loan Document to which it is a party, in reliance upon the irrevocable
grant of such power of attorney pursuant to this subsection. The power of
attorney granted by each Foreign Subsidiary Borrower hereunder is coupled with
an interest.
17.17 Existing Credit Agreement. The Existing Credit Agreement shall
terminate as of the Effective Date. The Majority Lenders, the Majority U.S.
Lenders and the Majority Canadian Lenders (as each such term is defined in the
Existing Credit Agreement) hereby consent to the termination of the Existing
Credit Agreement as provided herein and hereby waive any notice requirements of
the Existing Credit Agreement relating to prepayment or termination of
commitments to occur on the Effective Date as provided herein.
17.18 Judgment. (a) If for the purpose of obtaining judgment in any
court it is necessary to convert a sum due hereunder in one currency into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the General
<PAGE>
109
Administrative Agent could purchase the first currency with such other currency
in the city in which it normally conducts its foreign exchange operation for the
first currency on the Business Day preceding the day on which final judgment is
given.
(b) The obligation of each Borrower in respect of any sum due from it
to any Lender hereunder shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than that in which such sum is denominated in
accordance with the applicable provisions of this Agreement (the "Agreement
Currency"), be discharged only to the extent that on the Business Day following
receipt by such Lender of any sum adjudged to be so due in the Judgment Currency
such Lender may in accordance with normal banking procedures purchase the
Agreement Currency with the Judgment Currency; if the amount of Agreement
Currency so purchased is less than the sum originally due to such Lender in the
Agreement Currency, such Borrower agrees notwithstanding any such judgment to
indemnify such Lender against such loss, and if the amount of the Agreement
Currency so purchased exceeds the sum originally due to any Lender, such Lender
agrees to remit to such Borrower such excess.
<PAGE>
110
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
CASE CORPORATION
By: /S/ BENSON K. WOO
-----------------------------------
Title: Vice President & Treasurer
CASE CANADA CORPORATION/CORPORATION
CASE CANADA
By: /S/ BENSON K. WOO
-----------------------------------
Title: Vice President & Treasurer
THE CHASE MANHATTAN BANK, as General
Administrative Agent and a Lender
By: /S/ TIMOTHY J. STORMS
-----------------------------------
Title: Managing Director
THE CHASE MANHATTAN BANK OF CANADA
By: /S/ OWEN ROBERTS
-----------------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA, as Canadian
Administrative Agent and a Lender
By: /S/ M.G. LOCKE
-----------------------------------
Title: Vice President
By: /S/ JUDY MCKAY
-----------------------------------
Title Relationship Manager
By: /S/ F.C.H. ASHBY
-----------------------------------
Title: Senior Manager Loan Operations
<PAGE>
111
ABN AMRO BANK N.V., CHICAGO BRANCH
By: /S/ DAVID C. SAGERS
-------------------------------------------
Title: Vice President
By: /S/ LAURIE D. FLOM
-------------------------------------------
Title: Vice President
ARAB BANKING CORPORATION (B.S.C.)
By: /S/ GRANT E. MCDONALD
-------------------------------------------
Title: Vice President
THE ASAHI BANK, LTD., CHICAGO BRANCH
By: /S/ MINORU ONODA
-------------------------------------------
Title: Senior Deputy General Manager
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
By: /S/ GEOFF PACK
-------------------------------------------
Title: Senior Vice President
BANK AUSTRIA AKTIENGESELLSCHAFT
By: /S/ J. ANTHONY SEAY
-------------------------------------------
Title: Vice President
By: /S/ JEANINE BALL
-------------------------------------------
Title: Assistant Vice President
<PAGE>
112
BANCA COMMERCIALE ITALIANA, CHICAGO BRANCH
By: /S/ JULIAN M. TEODORI
--------------------------------------------------
Title: Senior Vice President & Branch Manager
By: /S/ MARK D. MOONEY
--------------------------------------------------
Title: Vice President
BANCA COMMERCIALE ITALIANA OF CANADA
By: /S/ PIETRO CORDOVA
--------------------------------------------------
Title: Department Manager
By: /S/ MASSIMO OSTI
--------------------------------------------------
Title: Executive Vice President
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as a Co-Agent
and a Lender
By: /S/ W. THOMAS BARNETT
--------------------------------------------------
Title: Vice President
BANK OF AMERICA CANADA
By: /S/ D. B. LINKLETTER
--------------------------------------------------
Title: Vice President & Manager
BANK OF HAWAII
By: /S/ JOSEPH T. DONALSON
--------------------------------------------------
Title: Vice President
<PAGE>
113
BANK OF MONTREAL, as a Co-Agent
and a Lender
By: /S/ ERIN M. KEYSER
--------------------------------------------------
Title: Director
THE BANK OF NEW YORK, as a Co-Agent
and a Lender
By: /S/ MARK T. FAMILO
--------------------------------------------------
Title: Assistant Vice President
THE BANK OF TOKYO - MITSUBISHI LTD., CHICAGO
BRANCH
By: /S/ MINORU WADA
--------------------------------------------------
Title: Deputy Geneal Manager
BANQUE NATIONALE DE PARIS
By: /S/ FREDERICK H. MORYL, JR.
--------------------------------------------------
Title: Senior Vice President
CAISSE NATIONALE DE CREDIT AGRICOLE
By: /S/ W. LEROY STARTZ
--------------------------------------------------
Title: First Vice President
<PAGE>
114
CANADIAN IMPERIAL BANK OF COMMERCE,
as a Co-Agent and a Lender
By: /S/ GARY C. GASKILL
--------------------------------------------
Title: Authorized Signatory
By: /S/ ALEKSANDRA DYMANUS
--------------------------------------------
Title: Authorized Signatory
THE CHUO TRUST & BANKING CO., LTD. NEW YORK AGENCY
By: /S/ SADAO TERUYAMA
--------------------------------------------
Title: Deputy General Manager
CITIBANK, N.A., as a Co-Agent
and a Lender
By: /S/ MARJORIE FUTORNICK
--------------------------------------------
Title: Vice President
CITIBANK CANADA
By: /S/ DAVID R. WINGFELDER
--------------------------------------------
Title: Vice President
COMMERZBANK AKTIENGESELLSCHAFT, CHICAGO BRANCH, as
a Co-Agent and a Lender
By: /S/ HELMUT TOELLNER
--------------------------------------------
Title: Executive Vice President
By: /S/ PAUL KARLIN
--------------------------------------------
Title: Assistant Treasurer
<PAGE>
115
COOPERATIVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH
By: /S/ W. JEFFREY VOLLACK
----------------------------------------
Title: Vice President, Manager
By: /S/ ANGELA R. REILLY
----------------------------------------
Title: Vice President
CREDIT LYONNAIS CHICAGO BRANCH,
as a Co-Agent and a Lender
By: /S/ MARY ANN KLEMM
----------------------------------------
Title: Vice President and Group Head
CREDIT SUISSE, as a Co-Agent
and a Lender
By: /S/ WILLIAM P. MURRAY
----------------------------------------
Title: Member of Senior Management
By: /S/ KRISTINN R. KRISTINSSON
----------------------------------------
Title: Associate
THE DAI-ICHI KANGYO BANK, LTD.
By: /S/ MITSUAKI YAMAZAKI
----------------------------------------
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
as a Co-Agent and a Lender
By: /S/ SARAH FAULKNER PAGLIONE
----------------------------------------
Title: Authorized Agent
<PAGE>
116
THE FUJI BANK, LIMITED, as a Co-Agent
and a Lender
By: /S/ PETER L. CHINNICI
---------------------------------
Title: Joint General Manager
HERITAGE BANK AND TRUST
By: /S/ SUSAN P. JENSEN
---------------------------------
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN, LTD.,
as a Co-Agent and a Lender
By: /S/ HIROAKI NAKAMURA
---------------------------------
Title: Joint General Manager
ISTITUTO BANCARIO SAN PAOLO DI TORINO
SPA
By: /S/ WENDELL JONES
---------------------------------
Title: Vice President
By: /S/ WILLIAM J. DE ANGELO
---------------------------------
Title: First Vice President
THE LTCB TRUST COMPANY, NEW YORK,
as a Co-Agent and a Lender
By: /S/ JOHN SULLIVAN
---------------------------------
Title: Executive Vice President
<PAGE>
117
MELLON BANK, N.A.
By: /S/ J. M. ANDERSON
--------------------------------------------------
Title: Vice President
THE MITUSI TRUST AND BANKING COMPANY, LTD. - NEW
YORK BRANCH
By: /S/ SHIGERU TSUJIMOTO
--------------------------------------------------
Title: Senior Vice President & Manager Corporate
Affairs
MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as a
Co-Agent and a Lender
By: /S/ LAURA E. REIM
--------------------------------------------------
Title: Vice President
J.P. MORGAN CANADA
By: /S/ CHRISTOPHER B. LUE
--------------------------------------------------
Title: Vice President
NATIONAL AUSTRALIA BANK LIMITED, as a
Lead Manager and a Lender
By: /S/ SUSAN R. JULIEN
--------------------------------------------------
Title: Vice President
NATIONSBANK, N.A., as a Co-Agent
and a Lender
By: /S/ MARY CAROL DALY
--------------------------------------------------
Title: Vice President
<PAGE>
118
NORDDEUTSCHE LANDESBANK GIROZENTRALE NEW YORK
BRANCH AND/OR CAYMAN ISLANDS BRANCH
By: /S/ PETRA FRANK-WITT
--------------------------------------------------
Title: Vice President
By: /S/ STEPHEN K. HUNT
--------------------------------------------------
Title: Senior Vice President
THE NORTHERN TRUST COMPANY
By: /S/ LISA M. TAYLOR
--------------------------------------------------
Title: Officer
PT. BANK NEGARA INDONESIA (PERSERO)
By: /S/ DEWA SUTHAPA
--------------------------------------------------
Title: General Manager
ROYAL BANK OF CANADA, as a Co-Agent
and a Lender
By: /S/ PRESTON D. JONES
--------------------------------------------------
Title: Senior Manager, Corporate Banking
THE SAKURA BANK, LIMITED, as a Lead Manager and a
Lender
By: /S/ SHUNJI SAKURAI
--------------------------------------------------
Title: Joint General Manager
<PAGE>
119
THE SANWA BANK, LIMITED, CHICAGO BRANCH, as a Lead
Manager and a Lender
By: /S/ GORDON R. HOLTBY
---------------------------------------------
Title: Vice-President & Manager
SOCIETE GENERALE
By: /S/ SETH F. ASOFSKY
---------------------------------------------
Title: Vice President
THE SUMITOMO BANK, LTD., CHICAGO BRANCH
By: /S/ KEN-ICHIRO KOBAYASHI
---------------------------------------------
Title: Joint General Manager
THE SUMITOMO TRUST & BANKING CO., LTD. NEW YORK
BRANCH
By: /S/ SURAJ P. BHATIA
--------------------------------------------
Title: Senior Vice President
THE TOKAI BANK, LIMITED CHICAGO BRANCH
By: /S/ TATSUO ITO
--------------------------------------------
Title: Joint General Manager
TORONTO DOMINION (TEXAS), INC., as a
Co-Agent and a Lender
By: /S/ LISA ALLISON
--------------------------------------------
Title: Vice President
<PAGE>
120
THE TORONTO-DOMINION BANK
By: /S/ DAVID PANKHURST
---------------------------------------------
Title: Manager
By: /S/ JANO MOTT
---------------------------------------------
Title: Manager Credit Admin.
UNION BANK OF CALIFORNIA, N.A.
By: /S/ PATRICIA SAMSON
---------------------------------------------
Title: Credit Officer
By: /S/ CARY MOORE
---------------------------------------------
Title: Vice President
WACHOVIA BANK OF GEORGIA, N.A.
By: /S/ MICHAEL J. BROWN
---------------------------------------------
Title: Vice President
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK
BRANCH
By: /S/ SALVATORE BATTINELLI
---------------------------------------------
Title: Vice President, Credit Department
By: /S/ C. D. ROCKEY
---------------------------------------------
Title: Associate
<PAGE>
121
THE YASUDA TRUST & BANKING COMPANY, LTD.
By: /S/ JOSEPH C. MEEK
---------------------------------------------
Title: Deputy General Manager
<PAGE>
ANNEX A
-------
REFUNDING MECHANICS
Subject to the fulfillment or waiver of the conditions precedent set
forth in Section 11 of this Agreement on or prior to the Effective Date, each of
the following provisions shall apply:
Part A. Refunding of U.S. Revolving Credit Loans. Each U.S. Lender
agrees to make a U.S. Revolving Credit Loan to the U.S. Borrower on the
Effective Date in an amount equal to its Funding Commitment Percentage
(determined after giving effect to the actions to be taken on the Effective Date
pursuant to, and the provisions of, Parts B and C of this Annex A) of the
aggregate principal amount of the Existing U.S. Revolving Credit Loans and the
Existing Swing Line Loans. Such U.S. Revolving Credit Loans shall be made in
accordance with the procedures set forth in subsection 2.3 except that, upon
receipt by the U.S. Administrative Agent of proceeds of such U.S. Revolving
Credit Loans, the U.S. Administrative Agent shall apply such proceeds to the
prepayment of the outstanding principal amounts of the Existing U.S. Revolving
Credit Loans and the Existing Swing Line Loans by crediting the respective
accounts of the Existing U.S. Lenders and the Existing Swing Lenders maintained
at the office of the General Administrative Agent specified in subsection 17.2.
Not later than 12:00 Noon, New York City time on the Effective Date, the U.S.
Borrower shall pay to the U.S. Administrative Agent for the account of each
Existing U.S. Lender and each Existing Swing Line Lender (i) all unpaid interest
which has accrued on the Existing U.S. Revolving Credit Loans of such Existing
U.S. Lender or the Existing Swing Line Loans of such Existing Swing Line Lender,
as the case may be, to the Effective Date and (ii) all unpaid commitment fees
which have accrued for the account of such Existing U.S. Lender pursuant to
subsection 6.5 of the Existing Credit Agreement to the Effective Date.
For purposes of this Part A, the following terms have the following
meanings:
"Existing Swing Line Lenders": each bank or other financial
institution holding any Existing Swing Line Loan immediately prior to the
Effective Date.
"Existing Swing Line Loans": the Swing Line Loans (as defined in the
Existing Credit Agreement) outstanding under the Existing Credit Agreement
immediately prior to the Effective Date.
"Existing U.S. Lenders": each bank or other financial institution
holding any Existing U.S. Revolving Credit Loan immediately prior to the
Effective Date.
"Existing U.S. Revolving Credit Loans": the U.S. Revolving Credit
Loans (as defined in the Existing Credit Agreement) outstanding under the
Existing Credit Agreement immediately prior to the Effective Date.
<PAGE>
2
Part B. Refunding of Canadian Revolving Credit Loans. Each Canadian
Lender agrees to make a Canadian Revolving Credit Loan to the Canadian Borrower
on the Effective Date in an amount equal to its Canadian Revolving Credit
Commitment Percentage of the aggregate principal amount of the Existing Canadian
Revolving Credit Loans. Such Canadian Revolving Credit Loans shall be made in
accordance with the procedures set forth in subsection 5.3 except that, upon
receipt by the Canadian Administrative Agent of the proceeds of such Canadian
Revolving Credit Loans from the Canadian Lenders, the Canadian Administrative
Agent shall apply such proceeds to the prepayment of the outstanding principal
amounts of the Existing Canadian Revolving Credit Loans by crediting the
respective accounts of the Existing Canadian Lenders. Not later than 12:00 Noon,
Toronto time on the Effective Date, the Canadian Borrower shall pay to the
Canadian Administrative Agent for the account of each Existing Canadian Lender
all unpaid interest which has accrued on the Existing Canadian Revolving Credit
Loans of such Existing Canadian Lender to the Effective Date.
For purposes of this Part B, the following terms have the following
meanings:
"Existing Canadian Lenders": each bank or other financial institution
holding any Existing Canadian Revolving Credit Loan immediately prior to
the Effective Date.
"Existing Canadian Revolving Credit Loans": the principal amount of
the Canadian Revolving Credit Loans (as defined in the Existing Credit
Agreement) outstanding under the Existing Credit Agreement immediately
prior to the Effective Date.
Part C. Treatment of Existing Acceptances. Each Existing Acceptance
outstanding on the Effective Date shall remain outstanding hereunder until the
maturity thereof and, except as provided below in this Part C, shall be
considered an Acceptance (or an Acceptance Note, if applicable) outstanding
hereunder for all purposes of this Agreement; upon the maturity of each such
Existing Acceptance, the Canadian Borrower shall pay to the Canadian
Administrative Agent for the account of the Existing Canadian Lender who created
such Existing Acceptance the aggregate face amount thereof, such payment to be
made in accordance with the applicable provisions of Section 6.
Notwithstanding anything to the contrary contained in this Agreement,
(i) Existing Canadian Lenders who are not also Canadian Lenders shall not be
considered to be Canadian Lenders hereunder and (ii) each Canadian Lender shall
be deemed to have outstanding its Canadian Revolving Credit Commitment
Percentage of each Existing Acceptance during the period from the Effective Date
to the date on which such Existing Acceptance matures and is paid in full, in
each case for all purposes of this Agreement except (A) receiving payment of
Existing Acceptances upon the maturity thereof and (B) voting and exercising
remedies upon the occurrence and during the continuance of an Event of Default.
For purposes of this Part C, the following terms shall have the
following meanings:
<PAGE>
3
"Existing Acceptances": each Acceptance or Acceptance Note, to the
extent applicable (each as defined in the Existing Credit Agreement)
outstanding immediately prior to the Effective Date.
"Existing Canadian Lenders": each bank or other financial institution
holding any Existing Acceptance immediately prior to the Effective Date.
<PAGE>
SCHEDULE I
----------
COMMITMENTS; ADDRESSES
A. U.S. Revolving Credit Commitment and Multicurrency Commitment Amounts (U.S.
Dollars)
<TABLE>
<CAPTION>
========================================================================================================
U.S. Revolving Multicurrency
U.S. Lender Credit Commitment Counterpart Lender Commitment
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ABN AMRO Bank N.V. Chicago Branch $10,000,000 $10,000,000
- --------------------------------------------------------------------------------------------------------
Arab Banking Corporation (B.S.C.) $20,000,000
- --------------------------------------------------------------------------------------------------------
The Asahi Bank, Ltd., Chicago Branch $10,000,000
- --------------------------------------------------------------------------------------------------------
Australia and New Zealand Banking Group
Limited $10,000,000
- --------------------------------------------------------------------------------------------------------
Bank Austria Aktiengesellschaft $17,000,000
- --------------------------------------------------------------------------------------------------------
Banca Commerciale
Banca Commerciale Italiana, Chicago Branch $15,000,000 Italiana of Canada
- --------------------------------------------------------------------------------------------------------
Bank of America National Trust and Savings Bank of America
Association $45,000,000 Canada $30,000,000
- --------------------------------------------------------------------------------------------------------
Bank of Hawaii $5,000,000
- --------------------------------------------------------------------------------------------------------
Bank of Montreal $36,300,000 Bank of Montreal $30,000,000
- --------------------------------------------------------------------------------------------------------
The Bank of New York $40,000,000 $35,000,000
- --------------------------------------------------------------------------------------------------------
The Bank of Nova
The Bank of Nova Scotia $40,000,000 Scotia $20,000,000
- --------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
2
<TABLE>
<CAPTION>
========================================================================================================
U.S. Revolving Multicurrency
U.S. Lender Credit Commitment Counterpart Lender Commitment
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
The Bank Tokyo-Mitsubishi Ltd., Chicago
Branch $10,000,000
- --------------------------------------------------------------------------------------------------------
Banque Nationale de Paris $10,000,000 $10,000,000
- --------------------------------------------------------------------------------------------------------
Caisse Nationale De Credit Agricole $10,800,000
- --------------------------------------------------------------------------------------------------------
Canadian Imperial Bank
Canadian Imperial Bank of Commerce $23,200,000 of Commerce
- --------------------------------------------------------------------------------------------------------
The Chase Manhattan
The Chase Manhattan Bank $54,300,000 Bank of Canada $50,000,000
- --------------------------------------------------------------------------------------------------------
The Chuo Trust & Banking Co., Ltd. New
York Agency $10,000,000
- --------------------------------------------------------------------------------------------------------
Citibank, N.A. $40,000,000 Citibank Canada $35,000,000
- --------------------------------------------------------------------------------------------------------
Commerzbank Aktiengesellschaft, Chicago
Branch $25,700,000 $10,000,000
- --------------------------------------------------------------------------------------------------------
Cooperatieve Centrale Raiffeisen-
Boerenleenbank B.A., "Rabobank Nederland",
New York Branch $10,000,000 $10,000,000
- --------------------------------------------------------------------------------------------------------
Credit Lyonnais Chicago Branch $40,000,000 $35,000,000
- --------------------------------------------------------------------------------------------------------
Credit Suisse $40,000,000 $35,000,000
- --------------------------------------------------------------------------------------------------------
The Dai-Ichi Kangyo Bank, Ltd. $10,000,000
- --------------------------------------------------------------------------------------------------------
The First National Bank of Chicago $25,000,000 $15,000,000
- --------------------------------------------------------------------------------------------------------
The Fuji Bank, Limited $40,000,000
- --------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
3
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------
U.S. Revolving Credit Multicurrency
U.S. Lender Commitment Counterpart Lender Commitment
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Heritage Bank and Trust $5,000,000
- ----------------------------------------------------------------------------------------------------
The Industrial Bank of Japan, Ltd. $40,000,000 $10,000,000
- ----------------------------------------------------------------------------------------------------
Istituto Bancario San Paolo di Torino SPA $10,000,000
- ----------------------------------------------------------------------------------------------------
The LTCB Trust Company, New York $40,000,000
- ----------------------------------------------------------------------------------------------------
Mellon Bank, N.A. $10,000,000
- ----------------------------------------------------------------------------------------------------
The Mitsui Trust and Banking Company, Ltd.- $15,400,000
New York Branch
- ----------------------------------------------------------------------------------------------------
Morgan Guaranty Trust Company of New York $40,800,000 J.P. Morgan Canada $40,000,000
- ----------------------------------------------------------------------------------------------------
National Australia Bank Limited $28,100,000
- ----------------------------------------------------------------------------------------------------
NationsBank, N.A. $40,000,000 $35,000,000
- ----------------------------------------------------------------------------------------------------
Norddeutsche Landesbank Girozentrale New
York Branch and/or Cayman Islands Branch $10,000,000 $10,000,000
- ----------------------------------------------------------------------------------------------------
The Northern Trust Company $10,000,000
- ----------------------------------------------------------------------------------------------------
PT. Bank Negara Indonesia (Persero) $10,000,000
- ----------------------------------------------------------------------------------------------------
Royal Bank of Canada $22,700,000 Royal Bank of Canada $20,000,000
- ----------------------------------------------------------------------------------------------------
The Sakura Bank, Limited $25,000,000
- ----------------------------------------------------------------------------------------------------
The Sanwa Bank, Limited, Chicago Branch $30,600,000
- ----------------------------------------------------------------------------------------------------
Societe Generale $20,000,000 $20,000,000
- ----------------------------------------------------------------------------------------------------
The Sumitomo Bank, Ltd. Chicago Branch $20,000,000
- ----------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
4
================================================================================================================
U.S. Revolving Credit Multicurrency
U.S. Lender Commitment Counterpart Lender Commitment
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
The Sumitomo Trust & Banking Co., Ltd.
New York Branch $ 20,000,000
- -----------------------------------------------------------------------------------------------------------------
The Tokai Bank, Limited, Chicago Branch $ 14,000,000
- -----------------------------------------------------------------------------------------------------------------
Toronto Dominion (Texas), Inc. $ 40,000,000 The Toronto-Dominion $ 35,000,000
Bank
- -----------------------------------------------------------------------------------------------------------------
Union Bank of California, N.A. $ 11,100,000 $ 5,000,000
- -----------------------------------------------------------------------------------------------------------------
Wachovia Bank of Georgia, N.A. $ 10,000,000
- -----------------------------------------------------------------------------------------------------------------
Westdeutsche Landesbank Girozentrale,
New York Branch $ 10,000,000
- -----------------------------------------------------------------------------------------------------------------
The Yasuda Trust & Banking Company, LTD. $ 20,000,000
- -----------------------------------------------------------------------------------------------------------------
TOTAL $1,100,000,000 $500,000,000
=================================================================================================================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
5
B. Canadian Commitment Amounts (U.S. Dollars)
=============================================================================================================
Canadian Lender Canadian Revolving Credit Counterpart Lender
Commitment
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Bank of America Canada $ 31,800,000 Bank of America National Trust
and Savings Association
- -------------------------------------------------------------------------------------------------------------
Banca Commerciale Italiana of Canada $ 5,000,000 Banca Commerciale Italiana,
Chicago Branch
- -------------------------------------------------------------------------------------------------------------
Bank of Montreal $ 36,300,000 Bank of Montreal
- -------------------------------------------------------------------------------------------------------------
The Bank of Nova Scotia $ 40,000,000 The Bank of Nova Scotia
- -------------------------------------------------------------------------------------------------------------
Canadian Imperial Bank of Commerce $ 23,200,000 Canadian Imperial Bank of
Commerce
- -------------------------------------------------------------------------------------------------------------
The Chase Manhattan Bank of Canada $ 54,300,000 The Chase Manhattan Bank
- -------------------------------------------------------------------------------------------------------------
Citibank Canada $ 29,133,000 Citibank, N.A.
- -------------------------------------------------------------------------------------------------------------
J.P. Morgan Canada $ 30,000,000 Morgan Guaranty Trust Company
of New York
- -------------------------------------------------------------------------------------------------------------
Royal Bank of Canada $ 22,700,000 Royal Bank of Canada
- -------------------------------------------------------------------------------------------------------------
The Toronto - Dominion Bank $ 40,000,000 Toronto Dominion (Texas), Inc.
TOTAL $312,433,000
=============================================================================================================
</TABLE>
<PAGE>
6
C. Addresses for Notices
ABN AMRO Bank N.V.
Chicago Branch
135 S. LaSalle Street
Suite 625
Chicago, IL 60674-9135
Attn: David C. Sagers
Telecopy: (312) 606-8435
Arab Banking Corporation (B.S.C)
277 Park Avenue, 32nd Floor
New York, NY 10172-3299
Attn: Grant E. McDonald
Telecopy: (212) 583-0921/0922
The Asahi Bank, Ltd., Chicago Branch
190 South LaSalle Street, Suite 2350
Chicago, IL 60603
Attn: Bridget Barnes
Telecopy: (312) 606-1010
Australia and New Zealand Banking Group Limited
1177 Avenue of the Americas
New York, NY 10036
Attn: Ken Schaefer
Telecopy: (212) 801-9131
Bank Austria Aktiengesellschaft
565 Fifth Avenue
New York, NY 10017
Attn: Jeanine Ball
Telecopy: (212) 880-1080
Banca Commerciale Italiana, Chicago Branch
150 North Michigan, Suite 1500
Chicago, IL 60601
Attn: Mark Mooney
Telecopy: (312) 346-5758
<PAGE>
7
Banca Commerciale Italiana of Canada
130 Adelaide Street West
Suite 1800
Toronto, Ontario
Canada M5H 3P5
Attn: Pietro Cordova
Telecopy: (416) 366-2577
Bank of America National Trust and Savings Association
333 Clay Street, Suite 4550
Houston, TX 77002
Attn: W. Thomas Barnett
Telecopy: (713) 651-4841
Bank of America Canada
855 Second Street, South-West
Calgary, Alberta
Canada T2P 4J7
Attn: Douglas Linkletter
Telecopy: (403) 232-8848
Bank of Hawaii
1839 S. Alma School Road, Suite 150
Mesa, AZ 85210
Attn: Donna Parker
Telecopy: (602) 752-8007
Bank of Montreal
U.S. Corporate Banking
115 S. LaSalle Street - 12th Floor
Chicago, IL 60603
Attn: Michael D. Pincus
Telecopy: (312) 750-6057
Bank of Montreal
One First Canadian Place
23rd Floor
100 King Street West
Toronto, Ontario
Canada M5X 1A1
Attn: David Beasant
Telecopy: (416) 867-5818
<PAGE>
8
The Bank of New York
One Wall Street
New York, NY 10286
Attn: Mark T. Familo
Telecopy: (212) 635-1208/1209
The Bank of Nova Scotia
600 Peachtree Street N-E Suite 2700
Atlanta, GA 30308
Attn: Shannon Law
Telecopy: (404) 888-8998
with a copy to:
The Bank of Nova Scotia
181 W. Madison Street, Suite 3700
Chicago, IL 60602
Attn: John P. Malloy
Telecopy: (312) 201-4108
The Bank of Nova Scotia
44 King Street West, 16th Floor
Toronto, Ontario
Canada M5H 1H1
Attn: Judy McKay
Telecopy: (416) 866-2009
The Bank of Tokyo-Mitsubishi Ltd., Chicago Branch
227 W. Monroe Street, Suite 2300
Chicago, IL 60606
Attn: Wayne Yamanaka
Telecopy: (312) 696-4535
Banque Nationale de Paris
209 South LaSalle Street, 5th Floor
Chicago, IL 60604
Attn: Jo Ellen Bender
Telecopy: (312) 977-1380
Caisse National De Credit Agricole
55 East Monroe Street
Chicago, IL 60603-5702
Attn: Theodore D. Tice
Telecopy: (312) 372-3455
<PAGE>
9
Canadian Imperial Bank of Commerce
2 Paces West
2727 Paces Ferry Road, Suite 1200
Atlanta, GA 30339
Attn: Joan Moseley
Telecopy: (770) 319-4950
Canadian Imperial Bank of Commerce
Corporate Client Support Center
Commerce Court West
7th Floor
Toronto, Ontario
Canada M5L 1A2
Attn: Brian Metler
Telecopy: (416) 980-8384
The Chase Manhattan Bank
10 South LaSalle Street
Suite 2300
Chicago, Illinois 60603
Attn: Cynthia Berkshire
Telecopy: (312) 807-4077
The Chase Manhattan Bank of Canada
100 Yonge Street
Suite 900
Canada M5C 2W1
Attn: Owen Roberts
Telecopy: (416) 594-2240
The Chuo Trust & Banking Co., Ltd. New York Agency
Two World Trade Center
Suite 8322
New York, NY 10048
Attn: Eric Seeley
Telecopy: (212) 466-1140
Citibank, N.A.
200 South Wacker Dr.
31st Floor
Chicago, IL 60606
Attn: H. Peter Koesler
Telecopy: (312) 993-1050
<PAGE>
10
Citibank Canada
Citibank Place
123 Front Street West
Toronto, Ontario
Canada M5J 2M3
Attn: Margie Lambert
Telecopy: (416) 947-5674
Commerzbank Aktiengesellschaft, Chicago Branch
311 South Wacker Drive - Suite 5800
Chicago, IL 60606
Attn: Paul Karlin
Telecopy: (312) 435-1486
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
"Rabobank Nederland", New York Branch
245 Park Avenue
New York, NY 10167
Attn: Corporate Services Department
Telecopy: (212) 818-0233
Credit Lyonnais Chicago Branch
227 West Monroe, Suite 3800
Chicago, IL 60606
Attn: Eric Tobin
Telecopy: (312) 641-0527
Credit Suisse
227 West Monroe Street, Suite 4000
Chicago, IL 60606
Attn: John L. Bordes III
Telecopy: (312) 630-0359
The Dai-Ichi Kangyo Bank, Ltd
One World Trade Center, Suite 4911
New York, NY 10048
Attn: Mitsuaki Yamazaki
Telecopy: (212) 432-1879
The First National Bank of Chicago
One First National Plaza
Chicago, IL 60670
Attn: Arthur Littlefield
Telecopy: (312) 732-5296
<PAGE>
11
The Fuji Bank, Limited
225 West Wacker Drive #2000
Chicago, IL 60606
Attn: S. Peca
Telecopy: (312) 621-0539
Heritage Bank and Trust
4061 N. Main Street
Racine, WI 53402
Attn: Susan Jensen
Telecopy: (414) 681-4705
The Industrial Bank of Japan, Ltd.
227 West Monroe, Suite 2600
Chicago, IL 60606
Attn: Steven Ryan
Telecopy: (312) 855-8200
Instituto Bancario San Paolo di Torino SPA
245 Park Avenue
New York, NY 10167
Attn: Davide Scarselli
Telecopy: (212) 599-5303
The LTCB Trust Company, New York
165 Broadway
New York, NY 10002
Attn: Maria Araujo
Telecopy: (212) 608-2371
with a copy to:
The LTCB Trust Company, New York
2200 Ross Ave., Suite 4700W
Dallas, TX 75201
Attn: Doug Whiddon
Telecopy: (214) 969-5357
Mellon Bank, N.A.
55 W. Monroe, Suite 2600
Chicago, IL 60603
Attn: Vice President
Telecopy: (312) 357-3414
<PAGE>
12
The Mitsui Trust and Banking Company, Ltd. - New York Branch
One World Financial Center
200 Liberty Street, Suite 2100
New York, NY 10281
Attn: Diane Boscarino
Telecopy: (212) 945-4170
Morgan Guaranty Trust Company of New York
60 Wall Street
New York, NY 10260-0060
Attn: Charles King
Telecopy: (212) 648-5336
J.P. Morgan Canada
Royal Bank Plaza
P.O. Box 80
Toronto, Ontario
Canada M5J 2V2
Attn: Paul Nash
Telecopy: (416) 981-9279
National Australia Bank Limited
200 Park Avenue, 34th Floor
New York, NY 10166
Attn: Susan R. Julien
Telecopy: (212) 983-1969
NationsBank, N.A.
233 S. Wacker Drive, Suite 2800
Chicago, IL 60606
Attn: Matthew R. Walters
Telecopy: (312) 234-5601
Norddeutsche Landesbank Girozentrale New York Branch
and/or Cayman Islands Branch
1270 Avenue of the Americas, 14th Floor
New York, NY 10020
Attn: Petra Frank-Witt
Telecopy: (212) 332-8660
The Northern Trust Company
50 South LaSalle Street
Chicago, IL 60675
Attn: Julie Wigdale
Telecopy: (312) 444-5055
<PAGE>
13
PT. Bank Negara Indonesia (Persero)
55 Broadway, 5th Floor
One Exchange Place
New York, NY 10006
Attn: Monica Baccari
Telecopy: (212) 344-5723
Royal Bank of Canada (N. Amer #1)
New York Operations Center
One Financial Square
New York, New York 10005
Attn: Manager Loans Admin.
Telecopy: (212) 428-2372
with a copy to:
Royal Bank of Canada
One North Franklin, Suite 700
Chicago, IL 60606
Attn: Preston Jones
Telecopy: (312) 551-0805
Royal Bank of Canada
180 Wellington Street West, 1st Floor
Toronto, Ontario
Canada M5J IJI
Attn: Business Services Group
Liability - Multinational
Telecopy: 416-974-8119
with a copy to:
Royal Bank of Canada
One North Franklin, Suite 700
Chicago, IL 60606
Attn: Preston Jones
Telecopy: (312) 551-0805
The Sakura Bank, Limited
227 West Monroe Street
Suite 4700
Chicago, IL 60606
Attn: Kristin Hayes
Telecopy: (312) 332-5345
<PAGE>
14
The Sanwa Bank, Limited, Chicago Branch
10 South Wacher Drive, Suite 3100
Chicago, IL 60606
Attn: Loan Administration - Patrick McGushin
Telecopy: (312) 346-6677
Societe Generale
181 West Madison Street, Suite 3400
Chicago, IL 60602
Attn: Seth F. Asofsky
Telecopy: (312) 578-5099
The Sumitomo Bank, Ltd., Chicago Branch
233 South Wacker Drive, Suite 4800
Chicago, IL 60606-6448
Attn: John Di Legge
Telecopy: (312) 876-6436
The Sumitomo Trust & Banking Co., Ltd. New York Branch
527 Madison Avenue
New York, NY 10022
Attn: Suraj P. Bhatia
Telecopy: (212) 418-4848
The Tokai Bank, Limited Chicago Branch
181 W. Madison Street, Suite 3600
Chicago, IL 60602
Attn: Michael P. Zoretich
Telecopy: (312) 977-0003
Toronto Dominion (Texas), Inc.
909 Fannin Street, 17th Floor
Houston, Texas 77010
Attn: Kimberly Burleson
Telecopy: (713) 951-9921
The Toronto-Dominion Bank
P.O. Box 1
Toronto Dominion Centre
Toronto Dominion Bank Tower
9th Floor
Toronto, Ontario
Canada M5K 1A2
Attn: David Pankhurst
Telecopy: (416) 944-5630
<PAGE>
15
Union Bank of California, N.A.
350 California Street
11th Floor, H - 1114
San Francisco, CA 94104
Attn: N. Brusati-Dias
Telecopy: (415) 705-7046
with a copy to:
Union Bank of California, N.A.
455 S. Figueroa Street, 16th Floor
Los Angeles, CA 90071
Attn: Patricia Samson
Telecopy: (213) 236-7814
Wachovia Bank of Georgia, N.A.
70 West Madison Street, Suite 2440
Chicago, IL 60602
Attn: Donna Johnson
Telecopy: (312) 853-0693
Westdeutsche Landesbank Girozentrale, New York Branch
1211 Avenue of the Americas
New York, NY 10036
Attn: Craig D. Rockey
Telecopy: (212) 852-6121
with a copy to:
Westdeutsche Landesbank Girozentrale, New York Branch
181 West Madison Street,
Chicago, IL 60602
Attn: John B. Hall
Telecopy: (312) 553-1608
The Yasuda Trust & Banking Company, LTD.
181 West Madison Street, Suite 4500
Chicago, IL 60602
Attn: Timothy Fossa
Telecopy: (312) 683-3899
<PAGE>
SCHEDULE II
-----------
FOREIGN SUBSIDIARY BORROWER
Jurisdiction of
Name and Address Incorporation
- ---------------- -------------
-None-
<PAGE>
SCHEDULE III
------------
ADMINISTRATIVE SCHEDULE
I. MULTICURRENCY LOANS
A. Interest Rates for Each Currency
Deutsche Marks:
for any Interest Period in respect of any Tranche, the rate for
deposits in Deutsche Marks for a period beginning on the first
day of such Interest Period and ending on the last day of such
Interest Period which appears on the Telerate Page 3750 (or, if
no such quotation appears on such Telerate Page, on the
appropriate Reuters Screen) as of 11:00 a.m., London time, on the
Quotation Day for such Interest Period.
French Francs:
for any Interest Period in respect of any Tranche, the rate for
deposits in French Francs for a period beginning on the first day
of such Interest Period and ending on the last day of such
Interest Period which appears on the Telerate Page 3740 (or, if
no such quotation appears on such Telerate Page, on the
appropriate Reuters Screen) as of 11:00 a.m., London time, on the
Quotation Day for such Interest Period.
Sterling:
for any Interest Period in respect of any Tranche, the rate per
annum equal to the average (rounded upward to the nearest 1/16th
of 1%) of the rates at which Chase is offered deposits in
Sterling in the Paris interbank market at or about 11:00 A.M.,
Paris time, on the Quotation Day for such Interest Period for
delivery on the first day of such Interest Period for the number
of days comprised therein and in an amount comparable to Chase's
Multicurrency Commitment Percentage of the applicable
Multicurrency Loan.
<PAGE>
2
B. Funding Office, Funding Time, Payment Office, Payment Time for Each
Currency.
Deutsche Marks:
--------------
1. Funding Office:
Account of: Chase Manhattan International Limited
Account No: 101-080002101
Chase Bank AG Frankfurt
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: Chase Manhattan International Limited
Account No: 101-080002101
Chase Bank AG Frankfurt
4. Payment Time: 11:00 A.M., local time.
French Francs:
-------------
1. Funding Office:
Account of: Chase Manhattan International Limited
Account No: 020.359.541100
Credit Commercial deFrance, Paris
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: 020.359.541100
Credit Commercial deFrance, Paris
4. Payment Time: 11:00 A.M., local time.
Sterling:
--------
1. Funding Office:
Account of: Chase Manhattan International Limited
Account No: CHAPS 40 52 06
Chase Manhattan Bank
125 London Wall
London EC2Y 5AJ
2. Funding Time: 11:00 A.M., local time.
<PAGE>
3
3. Payment Office:
Account of: Chase Manhattan International Limited
Account No: CHAPS 40 52 06
Chase Manhattan Bank
125 London Wall
London EC2Y 5AJ
4. Payment Time: 11:00 A.M., local time.
C. Notice of Multicurrency Loan Borrowing:
1. Deliver to: Chase Manhattan International Limited
Trinity Tower
9 Thomas More Street
London E1 9YT
Attention: Steve Clark
Telephone No: 44-171-777-2353
Fax No: 44-171-777-2360/2085
2. Time:
Not later than 11:00 A.M., London time, on the last Business Day
preceding the Quotation Day in respect of such Borrowing Date.
3. Information Required:
Name of Foreign Subsidiary Borrower, amount to be borrowed, and
Interest Periods.
D. Notice of Multicurrency Loan Continuation; Notice of Prepayment:
1. Deliver to: Chase Manhattan International Limited
Trinity Tower
9 Thomas More Street
London E1 9YT
Attention: Steve Clark
Telephone No: 44-171-777-2353
Fax No: 44-171-777-2360/2085
2. Time:
Not later than 11:00 A.M., London time, on the last Business Day
preceding the Quotation Day for the next Interest Period.
3. Information Required:
Name of Foreign Subsidiary Borrower, amount to be continued or
prepaid, as the case may be, and Interest Periods.
<PAGE>
4
II. NOTICE OF ALTERNATE CURRENCY OUTSTANDINGS
-----------------------------------------
1. Deliver to: Chase Manhattan International Limited
Trinity Tower
9 Thomas More Street
London E1 9YT
Attention: Steve Clark
Telephone No: 44-171-777-2353
Fax No: 44-171-777-2360/2085
with a copy to:
The Chase Manhattan Bank
140 East 45th Street
29th Floor
New York, New York 10017
Attention: Chris Consomer
Telephone No.: 212-622-8779
Fax No.: 212-622-0122
2. Delivery time: By close of business in London on the
date of making of each Alternate Currency Loan and on
the last Business Day of each month on which the
applicable Alternate Currency Borrower has outstanding
any Alternate Currency Loans.
3. Information to be set forth:
Name of Foreign Subsidiary Borrower
Amount and currency of outstanding Alternate Currency Loans
<PAGE>
SCHEDULE 10.4
-------------
CONSENTS
-None-
<PAGE>
EXHIBIT A
---------
FORM OF
U.S. REVOLVING CREDIT NOTE
U.S.$ ___________________ New York, New York
____________, 1996
FOR VALUE RECEIVED, the undersigned, CASE CORPORATION, a Delaware
corporation (the "U.S. Borrower"), hereby unconditionally promises to pay to the
order of ________________ (the "U.S. Lender") at the office of The Chase
Manhattan Bank, located at 270 Park Avenue, New York, New York 10017, in lawful
money of the United States of America and in immediately available funds, on the
Revolving Credit Termination Date (as defined in the Credit Agreement referred
to below) the principal amount of (a) ________________ U.S. DOLLARS
(U.S.$__________), or, if less, (b) the aggregate unpaid principal amount of all
U.S. Revolving Credit Loans made by the U.S. Lender to the U.S. Borrower
pursuant to subsection 2.1 or 2.5 of such Credit Agreement. The U.S. Borrower
further agrees to pay interest in like money at such office on the unpaid
principal amount hereof from time to time outstanding at the rates and on the
dates specified in subsection 9.1 of such Credit Agreement.
The holder of this Note is authorized to record on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, Type and amount of each U.S.
Revolving Credit Loan made by the U.S. Lender pursuant to such Credit Agreement
and the date and amount of each payment or prepayment of principal thereof, each
continuation thereof, each conversion of all or a portion thereof to another
Type and, in the case of Eurodollar Loans, the length of each Interest Period
and the applicable Eurodollar Rate with respect thereto. Each such recordation
shall constitute prima facie evidence of the accuracy of the information so
recorded, provided that the failure to make any such recordation or any error in
any such recordation shall not affect the obligations of the U.S. Borrower under
such Credit Agreement or this Note.
This Note (a) is one of the U.S. Revolving Credit Notes referred to in
the Revolving Credit and Guarantee Agreement, dated as of August 23, 1996 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the U.S. Borrower, Case Canada Corporation/Corporation Case
Canada, the Foreign Subsidiary Borrowers parties thereto, the U.S. Lender, the
other banks and financial institutions from time to time parties thereto, the
Co-Agents and Lead Managers named therein and The Chase Manhattan Bank and The
Bank of Nova Scotia, as General Administrative Agent and Canadian Administrative
Agent, respectively, (b) is subject to the provisions of the Credit
Agreement and (c) is subject to optional and mandatory prepayment in whole or in
part as provided in the Credit Agreement.
<PAGE>
2
Upon the occurrence of any one or more Events of Default specified in
the Credit Agreement, all amounts then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, all as provided
in the Credit Agreement.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
CASE CORPORATION
By:
--------------------------------------
Title:
<PAGE>
<TABLE>
<CAPTION>
Schedule A
to Revolving Credit Note
------------------------
ABR LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
- ------------------------------------------------------------------------------------------------------------------------------------
Amount Amount of ABR Loans Unpaid
Converted to Amount of Principal of Converted to Principal Balance
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans of ABR Loans Notation Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Schedule B
to Revolving Credit Note
------------------------
EURODOLLAR LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
- -----------------------------------------------------------------------------------------------------------------------------------
Unpaid
Interest Period Amount of Amount of Principal
Amount Converted and Eurodollar Principal of Eurodollar Loans Balance of
Amount of to Eurodollar Rate with Eurodollar Loans Converted to ABR Eurodollar Notation
Date Eurodollar Loans Loans Respect Thereto Repaid Loans Loans Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT B
---------
FORM OF
CANADIAN REVOLVING CREDIT NOTE
__________, 1996
FOR VALUE RECEIVED, the undersigned, CASE CANADA CORPORATION/
CORPORATION CASE CANADA, a company organized under the laws of the
province of Ontario, Canada (the "Canadian Borrower"), hereby unconditionally
promises to pay to the order of ___________________ (the "Canadian Lender") at
the office of The Bank of Nova Scotia, located at 44 King Street West, Toronto,
Ontario, Canada M5H 1H1, in lawful money of Canada and in immediately available
funds, on the Revolving Credit Termination Date (as defined in the Credit
Agreement referred to below) the aggregate unpaid principal amount of all
Canadian Revolving Credit Loans made by the Canadian Lender to the Canadian
Borrower pursuant to subsection 5.1 of the Credit Agreement (as hereinafter
defined). The Canadian Borrower further agrees to pay interest in like money at
such office on the unpaid principal amount hereof from time to time outstanding
at the rates and on the dates specified in subsection 9.1 of such Credit
Agreement.
The holder of this Note is authorized to record on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date and amount of each Canadian
Revolving Credit Loan made by the Canadian Lender pursuant to such Credit
Agreement and the date and amount of each payment or prepayment of principal
thereof. Each such recordation shall constitute prima facie evidence of the
accuracy of the information so recorded, provided that the failure to make any
such recordation or any error in any such recordation shall not affect the
obligations of the Canadian Borrower under such Credit Agreement or this Note.
This Note (a) is one of the Canadian Revolving Credit Notes referred
to in the Revolving Credit and Guarantee Agreement, dated as of August 23, 1996
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Case Corporation, a Delaware corporation, the Canadian
Borrower, the Foreign Subsidiary Borrowers parties thereto, the Canadian Lender,
the other banks and financial institutions from time to time parties thereto,
the Co-Agents and Lead Managers named therein and The Chase Manhattan Bank and
The Bank of Nova Scotia, as General Administrative Agent and Canadian
Administrative Agent, respectively, (b) is subject to the provisions of the
Credit Agreement and (c) is subject to optional and mandatory prepayment in
whole or in part as provided in the Credit Agreement. This Note is guaranteed as
provided in the Credit Agreement. Reference is hereby made to the Credit
Agreement for a description of the nature and extent of the guarantees, the
terms and conditions upon which the guarantees were granted and the rights of
the holder of this Note in respect thereof.
<PAGE>
2
Upon the occurrence of any one or more Events of Default specified in
the Credit Agreement, all amounts then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, all as provided
in the Credit Agreement.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
CASE CANADA CORPORATION/
CORPORATION CASE CANADA
By:
------------------------
Title:
<PAGE>
Schedule A
to Revolving Credit Note
------------------------
PRIME RATE LOANS AND REPAYMENTS OF PRIME RATE LOANS
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
Amount of Prime Rate Amount of Principal of Unpaid Principal Balance of
Date Loans Prime Rate Loans Repaid Prime Rate Loans Notation Made By
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
=======================================================================================================================
</TABLE>
<PAGE>
EXHIBIT C
---------
FORM OF DRAFT
________________________________________________________________________________
BANKERS' ACCEPTANCE No. ________________
To ____________________________ Due _____________ _________________ 19__
_______________________________ ___________________ days after the date
Address (without grace)
ACCEPTED For value received pay to the order of the
undersigned drawer the sum of $___________
_______________________________ ______________Dollars ____________________
Payable At $
_______________________________ ____________________
_______________________________
Value Received, and Charge to the
For____________________________ Account of:
_______________________________________
_______________________________
Authorized Signature Per:___________________________________
_______________________________ Per:___________________________________
Authorized Signature
FORM 8411 (7-88)
________________________________________________________________________________
Per:____________________________________________________________________________
Per:____________________________ _______________
________________________________________________________________________________
<PAGE>
EXHIBIT D
---------
[NAME OF CANADIAN LENDER]
________________ [BRANCH]
POWER OF ATTORNEY - SPECIFIC
The undersigned hereby appoints [NAME OF CANADIAN LENDER] (hereinafter
called the "Canadian Lender"), acting by any authorized signatory of the
Canadian Lender, the attorney of the undersigned:
(a) to sign for and on behalf and in the name of the undersigned as drawer,
Drafts (as defined in the Credit Agreement referred to below) drawn on the
Canadian Lender payable to the order of the undersigned or payable to the
order of the Canadian Lender;
(b) to fill in the amount, date and maturity date of such Drafts; and
(c) to discount and/or deliver such Drafts which have been accepted by the
Canadian Lender,
provided that such acts in each case are to be undertaken by the Canadian Lender
strictly in accordance with instructions given to the Canadian Lender by the
undersigned as provided in this power of attorney.
Instructions from the undersigned to the Canadian Lender relating to the
execution, completion, endorsement, discount and/or delivery by the Canadian
Lender on behalf of the undersigned of Drafts which the undersigned wishes to
submit to the Canadian Lender for acceptance by the Canadian Lender shall be
communicated by the undersigned in writing to the Canadian Administrative Agent
pursuant to Requests for Acceptances (as those terms are defined in the Credit
Agreement referred to below) (in accordance with the terms of the Revolving
Credit and Guarantee Agreement, dated as of August 23, 1996, among Case
Corporation, Case Canada Corporation/Corporation Case Canada, the Foreign
Subsidiary Borrowers parties thereto, the several banks and other financial
institutions from time to time parties thereto, the Co-Agents and Lead Managers
named therein, The Bank of Nova Scotia as Canadian Administrative Agent, and The
Chase Manhattan Bank, as General Administrative Agent, to which the undersigned
and the Canadian Lender are parties (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement")) and shall specify the
following information:
(a) reference to this power of attorney;
(b) a Canadian Dollar amount, which shall be the aggregate face amount of the
Drafts to be drawn in a particular transaction;
<PAGE>
2
(c) a specified period of time (not less than 30 days or in excess of 180 days)
which shall be the number of days after the date of such Drafts that such
Drafts are to be payable, and the dates of issuance and maturity of such
Drafts; and
(d) discount/payment instructions specifying the account number of the
undersigned and the financial institution at which the proceeds of the
discount of such Drafts are to be credited;
all as set out in the Request for Acceptances (as that term is defined in the
Credit Agreement).
The communication in writing by the undersigned, or on behalf of the
undersigned by the Canadian Administrative Agent, to the Canadian Lender of the
instructions set out in the Request for Acceptances referred to above shall
constitute (a) the authorization and instruction of the undersigned to the
Canadian Lender to complete and/or endorse Drafts in accordance with such
information as set out above and (b) the request of the undersigned to the
Canadian Lender to accept such Drafts and discount the same. The undersigned
acknowledges that the Canadian Lender shall not be obligated to accept any such
Drafts except in accordance with the provisions of the Credit Agreement.
The Canadian Lender shall be and it is hereby authorized to act on behalf
of the undersigned upon and in compliance with instructions communicated to the
Canadian Lender as provided herein if the Canadian Lender reasonably believes
them to be genuine. If the Canadian Lender accepts Drafts pursuant to any such
instructions, the Canadian Lender shall confirm particulars of such instructions
and advise the undersigned that the Canadian Lender has complied therewith by
notice in writing addressed to the undersigned and served personally or sent by
prepaid registered mail or by telecopier in accordance with the provisions of
the Credit Agreement. The Canadian Lender's actions in compliance with such
instructions, confirmed and advised to the undersigned by such notice, shall be
conclusively deemed to have been in accordance with the instructions of the
undersigned unless the undersigned notifies the Canadian Administrative Agent to
the contrary in writing not later than the business day next following receipt
by the undersigned. Notice in writing to the Canadian Administrative Agent as
contemplated hereby shall be delivered in accordance with the provisions of the
Credit Agreement.
The undersigned hereby agrees and promises to pay the Canadian
Administrative Agent for the account of the Canadian Lender, on the maturity
date thereof, the face amount of each draft signed, completed and endorsed as
contemplated herein and accepted by the Canadian Lender, such payment to be made
in accordance with and subject to the terms of the Credit Agreement.
The undersigned agrees to indemnify the Canadian Lender and its directors,
officers, employees, affiliates and agents and to hold it and them harmless from
and against any loss, liability, expense or claim of any kind or nature
whatsoever incurred by any of them as a result of any action or inaction in any
way relating to or arising out of this power of attorney or the acts
contemplated hereby; provided that this indemnity shall not apply to any such
loss,
<PAGE>
3
liability, expense or claim which results from the gross negligence or willful
misconduct of the Canadian Lender or any of its directors, officers, employees,
affiliates or agents.
This power of attorney may be revoked at any time upon not less than 5
business days' written notice served upon the Canadian Administrative Agent,
provided that (i) it shall be replaced with another power of attorney forthwith
in accordance with the requirements of subsection 6.2(b) of the Credit
Agreement; and (ii) no such revocation shall reduce, limit or otherwise affect
the obligations of the undersigned in respect of any Draft executed, completed,
endorsed, discounted and/or delivered in accordance herewith prior to the time
at which such revocation becomes effective.
This power of attorney is in addition to and not in substitution of any
agreement to which the Canadian Lender and the undersigned are parties.
This power of attorney shall be governed in all respects by the laws of the
province of Ontario and the laws of Canada applicable therein and the
undersigned and the Canadian Lender hereby irrevocably attorns to the non-
exclusive jurisdiction of the courts of such jurisdiction in respect of all
matters arising out of this power of attorney.
In the event of a conflict between the provisions of this Power of Attorney
(other than the provisions of the immediately preceding paragraph) and the
Credit Agreement, the Credit Agreement shall prevail.
<PAGE>
4
The undersigned has (have) expressly requested that this document be drawn
up in the English language. Le(s) soussigne(s) a(ont) expressement demande que
ce document soit redige en langue anglaise.
DATED at _______________ this ___ day of
__________________, ________.
CASE CANADA CORPORATION/
CORPORATION CASE CANADA
By:
------------------------
Name:
Title:
<PAGE>
EXHIBIT E
---------
FORM OF
ACCEPTANCE NOTE
C$___________ ______, Ontario
_________, ____
FOR VALUE RECEIVED, the undersigned, CASE CANADA CORPORATION/CORPORATION
CASE CANADA, a corporation incorporated, organized and existing under the laws
of the Province of Ontario, Canada (the "Canadian Borrower"), hereby
unconditionally promises to pay to the order of [INSERT NAME OF LENDER] (the
"Lender") at the office of The Bank of Nova Scotia, located at 44 King Street
West, Toronto, Ontario, Canada M5H 1H1, in lawful money of Canada and in
immediately available funds, the principal amount of [_______________] CANADIAN
DOLLARS (C$_________). The undiscounted principal amount hereof shall be repaid
on ___________ ___, ____/1/. The Canadian Borrower further agrees that interest
shall be paid herein, in advance, by the Lender discounting the face amount of
this Acceptance Note in the manner described in subsections 6.3 and 6.8 of the
Credit Agreement described below (capitalized terms used herein without
definition being defined as set forth therein).
This Acceptance Note (a) is one of the Acceptance Notes referred to in the
Revolving Credit and Guarantee Agreement, dated as of August 23, 1996 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Case Corporation, the Canadian Borrower, the Foreign
Subsidiary Borrowers parties thereto, the several banks and other financial
institutions from time to time parties thereto, the Co-Agents and Lead Managers
named therein and The Chase Manhattan Bank and The Bank of Nova Scotia, as
General Administrative Agent and Canadian Administrative Agent, respectively,
and (b) is subject to the provisions of the Credit Agreement.
This Acceptance Note is guaranteed as provided in the Credit Agreement.
Reference is hereby made to the Credit Agreement for a description of the nature
and extent of the guarantees, the terms and conditions upon which each guarantee
was granted and the rights of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
- ----------------
/1/ Insert maturity date for Acceptances created simultaneously herewith.
<PAGE>
2
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
CASE CANADA CORPORATION/
CORPORATION CASE CANADA
By:
-------------------------
Name:
Title:
<PAGE>
EXHIBIT F
---------
FORM OF
CAF ADVANCE REQUEST
[Date]
The Chase Manhattan Bank, as General Administrative Agent
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Reference is made to the Revolving Credit and Guarantee Agreement,
dated as of August 23, 1996, among the undersigned, Case Canada Corporation/
Corporation Case Canada, the Foreign Subsidiary Borrowers parties thereto, the
banks and financial institutions from time to time parties thereto, the Co-
Agents and Lead Managers named therein and The Chase Manhattan Bank, as General
Administrative Agent, and The Bank of Nova Scotia, as Canadian Administrative
Agent (as the same may be amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"). Terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement.
This is a [Fixed Rate] [LIBO Rate] CAF Advance Request pursuant to
subsection 4.2 of the Credit Agreement requesting offers for the following CAF
Advances:
<TABLE>
<CAPTION>
=========================================================================
Loan 1 Loan 2 Loan 3
- -------------------------------------------------------------------------
<S> <C> <C> <C>
Aggregate Principal Amount $__________ $__________ $__________
- -------------------------------------------------------------------------
Borrowing Date
- -------------------------------------------------------------------------
CAF Advance Maturity Date
- -------------------------------------------------------------------------
CAF Advance Interest Payment
Dates
=========================================================================
</TABLE>
Very truly yours,
CASE CORPORATION
By:__________________________________
Title:
[NOTE: Pursuant to the Credit Agreement, a CAF Advance Request may be
transmitted in writing, by telecopy, or by telephone, immediately confirmed
by telecopy. In any case, a CAF Advance Request shall contain the
information specified in the second paragraph of this form.]
<PAGE>
EXHIBIT G
---------
FORM OF
CAF ADVANCE OFFER
[Date]
The Chase Manhattan Bank, as General Administrative Agent
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Reference is made to the Revolving Credit and Guarantee Agreement,
dated as of August 23, 1996, among the undersigned, Case Canada
Corporation/Corporation Case Canada, the Foreign Subsidiary Borrowers parties
thereto, the banks and financial institutions from time to time parties thereto,
the Co-Agents and Lead Managers named therein and The Chase Manhattan Bank, as
General Administrative Agent, and The Bank of Nova Scotia as Canadian
Administrative Agent (as the same may be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
In accordance with subsection 4.2 of the Credit Agreement, the
undersigned Lender offers to make CAF Advances thereunder in the following
amounts with the following maturity dates:
<TABLE>
<CAPTION>
<S> <C>
================================================================================
Borrowing Date: __________, ____ Aggregate Maximum Amount: $_________
================================================================================
Maturity Date 1: Maximum Amount: $__________
__________, ____ $________ offered at _______*
$________ offered at _______*
================================================================================
Maturity Date 2: Maximum Amount: $__________
__________, ____ $________ offered at _______*
$________ offered at _______*
================================================================================
Maturity Date 3: Maximum Amount: $__________
__________, ____ $________ offered at _______*
$________ offered at _______*
================================================================================
</TABLE>
Very truly yours,
[NAME OF LENDER]
By:___________________________________
Title:
Telephone No.:
Telecopy No.:
[NOTE: Insert the interest rate offered for the specified CAF Advance
where indicated by an asterisk (*). In the case of LIBO Rate CAF Advances,
insert a margin bid. In the case of Fixed Rate CAF Advances, insert a
fixed rate bid.]
<PAGE>
EXHIBIT H
---------
FORM OF
CAF ADVANCE CONFIRMATION
[Date]
The Chase Manhattan Bank, as General Administrative Agent
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Reference is made to the Revolving Credit and Guarantee Agreement,
dated as of August 23, 1996, among the undersigned, Case Canada
Corporation/Corporation Case Canada, the Foreign Subsidiary Borrowers parties
thereto, the banks and financial institutions from time to time parties thereto,
the Co-Agents and Lead Managers named therein and The Chase Manhattan Bank, as
General Administrative Agent, and The Bank of Nova Scotia, as Canadian
Administrative Agent (as the same may be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"). Terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement.
In accordance with subsection 4.2(d) of the Credit Agreement, the
undersigned accepts and confirms the offers by the CAF Advance Lender(s) to make
CAF Advances to the undersigned on __________, _____ under subsection 4.2(d) in
the (respective) amount(s) set forth on the attached list of CAF Advances
offered.
Very truly yours,
CASE CORPORATION
By:__________________________________
Title:
[NOTE: The U.S. Borrower must attach CAF Advance offer list prepared by the
General Administrative Agent with accepted amount entered by the U.S. Borrower
to the right of each CAF Advance offer].
<PAGE>
EXHIBIT I
---------
FORM OF
JOINDER AGREEMENT
JOINDER AGREEMENT, dated as of the date set forth below, entered into
pursuant to the Revolving Credit And Guarantee Agreement, dated as of August 23,
1996 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"; terms defined therein being used herein as therein defined),
among Case Corporation, Case Canada Corporation/Corporation Case Canada, the
Foreign Subsidiary Borrowers parties thereto, the banks and financial
institutions parties thereto, the Co-Agents and Lead Managers named therein, The
Chase Manhattan Bank, as General Administrative Agent, and The Bank of Nova
Scotia, as Canadian Administrative Agent.
W I T N E S E T H:
WHEREAS, the parties to this Joinder Agreement wish to amend Schedule
II to the Credit Agreement in the manner hereinafter set forth; and
WHEREAS, this Joinder Agreement is entered into pursuant to subsection
17.1 of the Credit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto
hereby agree as follows:
1. Each of the undersigned Subsidiaries of the U.S. Borrower hereby
acknowledges that it has received and reviewed a copy (in execution form) of the
Credit Agreement, and agrees to:
(a) join the Credit Agreement as a Foreign Subsidiary Borrower;
(b) be bound by, and hereby confirms, all covenants, agreements, consents,
submissions, appointments and acknowledgements attributable to a
Foreign Subsidiary Borrower in the Credit Agreement; and
(c) perform all obligations required of it by the Credit Agreement.
2. Each of the undersigned Subsidiaries of the U.S. Borrower hereby
represents and warrants that the representations and warranties with respect to
it contained in, or made or deemed made by it in, Section 10 of the Credit
Agreement are true and correct on the date hereof.
3. The address and jurisdiction of incorporation of each undersigned
Subsidiary of the U.S. Borrower is set forth in Annex I to this Joinder
Agreement.
<PAGE>
2
4. The U.S. Borrower hereby agrees that its guarantees contained in
Section 14 of the Credit Agreement shall remain in full force and effect after
giving effect to this Joinder Agreement.
5. THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, each of the undersigned has caused this Joinder
Agreement to be duly executed and delivered in New York, New York by its proper
and duly authorized officer as of the date set forth below.
[NAME OF SUBSIDIARY],
Dated: ___________________________ as a Foreign Subsidiary Borrower
By: _____________________________________
Title:
CASE CORPORATION
By: _____________________________________
Title:
Accepted and Acknowledged:
- -------------------------
THE CHASE MANHATTAN BANK,
as General Administrative Agent
By: _______________________________
Title:
<PAGE>
ANNEX I
-------
ADMINISTRATIVE INFORMATION
[Insert administrative information concerning Foreign Subsidiary Borrower]
<PAGE>
EXHIBIT J
---------
FORM OF
ALTERNATE CURRENCY FACILITY ADDENDUM
To: The Chase Manhattan Bank, as General Administrative Agent
From: Case Corporation
1. This Alternate Currency Facility Addendum is being delivered to you
pursuant to subsection 8.1 of the Revolving Credit and Guarantee Agreement,
dated as of August 23, 1996, among Case Corporation, Case Canada
Corporation/Corporation Case Canada, the Foreign Subsidiary Borrowers parties
thereto, the banks and financial institutions parties thereto, the Co-Agents and
Lead Managers named therein, The Chase Manhattan Bank, as General Administrative
Agent, and The Bank of Nova Scotia, as Canadian Administrative Agent (as the
same may be amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"). Terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
2. The effective date (the "Effective Date") of this Alternate Currency
Facility Addendum will be ______________________ __, ____.
3. Please be advised that, as of the Effective Date, the credit facility
described below is hereby designated as an "Alternate Currency Facility" for the
purposes of the Credit Agreement.
TYPE OF FACILITY:/1/
ADDITIONAL ALTERNATE CURRENC(Y)(IES):
ALTERNATE CURRENCY FACILITY
MAXIMUM BORROWING AMOUNT: $
ALTERNATE CURRENCY BANKS: Local Currency Bank
Name of Lender Maximum Borrowing Amount
-------------- ------------------------
$
- ----------------
/1/ Insert short description of terms of Alternate Currency Facility.
<PAGE>
2
LIST OF DOCUMENTATION GOVERNING
ALTERNATE CURRENCY FACILITY
(THE "DOCUMENTATION"):/2/
4. Case Corporation hereby represents and warrants that (a) the
Documentation complies in all respects with the requirements of Section 8 of the
Credit Agreement and (b) ______________ of ______________/3/ contains an express
acknowledgement that such Alternate Currency Facility shall be subject to the
provisions of Section 8 of the Credit Agreement.
CASE CORPORATION
By:_______________________________
Title:
Accepted and Acknowledged:
THE CHASE MANHATTAN BANK,
as General Administrative Agent
By:_______________________________
Title:
- ----------------
/2/ Copies of the Documentation must accompany the Alternate Currency Facility
Addendum, together with, if applicable, an English translation thereof.
/3/ Provide citation to relevant provision from the Documentation.
<PAGE>
EXHIBIT K
---------
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Revolving Credit and Guarantee Agreement, dated as
of August 23, 1996 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among Case Corporation, a Delaware corporation
(the "U.S. Borrower"), Case Canada Corporation/Corporation Case Canada, a
company organized under the laws of the Province of Ontario, Canada (the
"Canadian Borrower"), the Foreign Subsidiary Borrowers parties thereto (the
"Foreign Subsidiary Borrowers"; and, collectively with the U.S. Borrower and the
Canadian Borrower, the "Borrowers"), the banks and other financial institutions
from time to time parties thereto (the "Lenders"), the Co-Agents and Lead
Managers named therein, and The Chase Manhattan Bank and The Bank of Nova
Scotia, as General Administrative Agent and Canadian Administrative Agent,
respectively, for the Lenders (collectively, the "Administrative Agents").
Unless otherwise defined herein, terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement.
The Assignor identified on Schedule 1 hereto (the "Assignor") and the
Assignee identified on Schedule 1 hereto (the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), the interest set forth on Schedule 1 hereto
(the "Assigned Interest") in and to the Assignor's rights and obligations under
the Credit Agreement with respect to those credit facilities contained in the
Credit Agreement as are set forth on Schedule 1 hereto (individually, an
"Assigned Facility"; collectively, the "Assigned Facilities"), in a principal
amount and/or commitment amount for each Assigned Facility as set forth on
Schedule 1 hereto.
2. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or with respect to the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement, any other Loan Document or any other instrument or
document furnished pursuant thereto, other than that the Assignor has not
created any adverse claim upon the interest being assigned by it hereunder and
that such interest is free and clear of any such adverse claim; (b) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrowers, any of their respective Subsidiaries, any
other Loan Party or any other obligor or the performance or observance by the
Borrowers, any of their respective Subsidiaries, any other Loan Party or any
other obligor of any of their respective obligations under the Credit Agreement
or any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto; and (c) attaches any Notes held
by it evidencing the Assigned
<PAGE>
2
Facilities and (i) requests that the Administrative Agents, upon request by the
Assignee, exchange any attached Notes for a new Note or Notes payable to the
Assignee and (ii) if the Assignor has retained any interest in the Assigned
Facility, requests that the Administrative Agents exchange any attached Notes
for a new Note or Notes payable to the Assignor, in each case in amounts which
reflect the assignment being made hereby (and after giving effect to any other
assignments which have become effective on the Effective Date).
3. The Assignee (a) represents and warrants that it is legally authorized
to enter into this Assignment and Acceptance; (b) confirms that it has received
a copy of the Credit Agreement, together with copies of the financial statements
delivered pursuant to subsection 12.1 thereof, the other Loan Documents and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Acceptance; (c)
agrees that it will, independently and without reliance upon the Assignor, the
Administrative Agents or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement, the
other Loan Documents or any other instrument or document furnished pursuant
hereto or thereto; (d) appoints and authorizes the Administrative Agents to take
such action as agent on its behalf and to exercise such powers and discretion
under the Credit Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto as are delegated to the
Administrative Agents by the terms thereof, together with such powers as are
incidental thereto; and (e) agrees that it will be bound by the provisions of
the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender including, if it is organized under the laws of a
jurisdiction outside the United States, its obligation pursuant to subsection
9.11(b) and (c) of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall be the date
set forth on Schedule 1 hereto (the "Effective Date"). Following the execution
of this Assignment and Acceptance, it will be delivered to the Administrative
Agents for acceptance by them and recording by the Administrative Agents
pursuant to the Credit Agreement, effective as of the Effective Date (which
shall not, unless otherwise agreed to by the Administrative Agents, be earlier
than five Business Days after the date of such acceptance and recording by the
Administrative Agents).
5. Upon such acceptance and recording, from and after the Effective Date,
the Administrative Agents shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) to
the Assignee whether such amounts have accrued prior to the Effective Date or
accrue subsequent to the Effective Date. The Assignor and the Assignee shall
make all appropriate adjustments in payments by the Administrative Agents for
periods prior to the Effective Date or with respect to the making of this
assignment directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall be a party to
the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Loan Documents and shall be bound by the provisions thereof and (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
7. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
<PAGE>
SCHEDULE 1
- --------------------------------------------------------------------------------
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Credit Principal/Commitment Commitment Percentage
Facility Assigned Amount Assigned Assigned/1/
- ----------------- -------------------- ---------------------
$ %
---------- --.----------
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By: By:
------------------------- -------------------------
Title: Title:
Accepted: Consented To:
THE CHASE MANHATTAN BANK, CASE CORPORATION/2/
as General Administrative Agent
By: By:
------------------------- -------------------------
Title: Title:
The Bank of Nova Scotia, as
Canadian Administrative Agent
By:
-------------------------
Title:
- ----------------
/1/ Calculate the Commitment Percentage that is assigned to at least 15 decimal
places and show as a percentage of the aggregate commitments of all
Lenders.
/2/ The U.S. Borrower's consent is required in the event that the Assignee is
not a Lender or an Affiliate of a Lender prior to effectiveness hereof.
<PAGE>
EXHIBIT L
---------
FORM OF OPINION OF RICHARD S. BRENNAN, ESQ.
The Chase Manhattan Bank, as General [Effective Date]
Administrative Agent
270 Park Avenue
New York, New York 10017
The Bank of Nova Scotia, as Canadian
Administrative Agent
[Address]
The Lenders named in Schedule I to the
Credit Agreement referred to below
Ladies and Gentlemen:
I am the Secretary and General Counsel of Case Corporation, a Delaware
corporation (the "U.S. Borrower"), and I or members of my staff have examined or
are otherwise familiar with (a) the Revolving Credit and Guarantee Agreement,
dated as of August 23, 1996 (the "Credit Agreement"), among the U.S. Borrower,
Case Canada Corporation/Corporation Case Canada, the Foreign Subsidiary
Borrowers parties thereto, the lenders parties thereto (the "Lenders"), the Co-
Agents and Lead Managers named therein and The Chase Manhattan Bank and The Bank
of Nova Scotia, as General Administrative Agent and Canadian Administrative
Agent, respectively, for the Lenders (in such capacity, the "Administrative
Agents") and (b) the other Loan Documents referred to in the Credit Agreement.
The opinions expressed below are furnished to you pursuant to subsection
11.1(c) of the Credit Agreement. Unless otherwise defined herein, terms defined
in the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
In arriving at the opinions expressed below, I or members of my staff:
(a) have examined and relied on the originals, or copies certified or
otherwise identified to our satisfaction, of each of the Credit Agreement and
the Revolving Credit Notes (the Credit Agreement and the Revolving Credit Notes
being hereinafter referred to collectively as the "Transaction Documents"); and
(b) have examined such corporate documents and records of the U.S. Borrower
and such other instruments and certificates of public officials, officers and
<PAGE>
2
representatives of the U.S. Borrower and other Persons as I have deemed
necessary or appropriate for the purposes of this opinion.
In arriving at the opinions expressed below, I or members of my staff have
made such investigations of law as we have deemed appropriate as a basis for
such opinions.
In rendering the opinions expressed below, I have assumed, with your
permission, without independent investigation or inquiry, (a) the authenticity
of all documents submitted as originals, (b) the genuineness of all signatures
on all documents that I have examined (other than those of the U.S. Borrower and
officers of the U.S. Borrower) and (c) the conformity to authentic originals of
documents submitted as certified, conformed or photostatic copies.
When the opinions expressed below are stated "to the best of my knowledge,"
I or members of my staff have made reasonable and diligent investigation of the
subject matters of such opinions and have no reason to believe that there exist
any facts or other information that would render such opinions incomplete or
incorrect.
Based upon and subject to the foregoing, I am of the opinion that:
1. The U.S. Borrower is duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation.
2. The U.S. Borrower has the corporate power and authority to own, lease
and operate its properties and to conduct the business in which it is currently
engaged and is duly qualified to transact business as a foreign corporation or
other legal entity and is in good standing or appropriately qualified in each
jurisdiction where its ownership, leasing, or operation of property or the
conduct of its business requires such qualification, except to the extent that
the failure to have such power and authority and the failure to be so qualified
and in good standing could not, in the aggregate, have a Material Adverse
Effect.
3. The U.S. Borrower has the corporate power and authority to make,
deliver and perform its obligations under each Transaction Document and to
borrow under the Credit Agreement. The U.S. Borrower has taken all necessary
corporate action to authorize the borrowings on the terms and conditions of the
Credit Agreement and the other Loan Documents, and to authorize the execution,
delivery and performance of the Credit Agreement and each other Transaction
Document. No consent or authorization of, notice to, filing with or other act by
or in respect of, any Governmental Authority or any other Person is required in
connection with (i) the borrowings by the U.S. Borrower under the Credit
Agreement or (ii) the execution, delivery and performance by the U.S. Borrower,
or the validity or enforceability against the U.S. Borrower, of each Transaction
Document.
4. Each Transaction Document has been duly executed and delivered on
behalf of the U.S. Borrower. Each Transaction Document constitutes a legal,
valid and binding obligation of the U.S. Borrower, enforceable against it in
accordance with its terms.
<PAGE>
3
5. The execution and delivery of each Transaction Document by the U.S.
Borrower, the performance by the U.S. Borrower of its obligations thereunder,
the consummation of the transactions contemplated thereby, the compliance by the
U.S. Borrower with any of the provisions thereof, the borrowings by the U.S.
Borrower under the Credit Agreement and the use of proceeds thereof, all as
provided therein, (a) will not violate (i) any Requirement of Law or (ii) (A)
any Contractual Obligation of the U.S. Borrower or any of its Subsidiaries set
forth in Exhibit A hereto (all such Contractual Obligations set forth in such
Exhibit A being the only material debt instruments of the U.S. Borrower and its
Subsidiaries taken as a whole) or (B) to the best of my knowledge, any other
Contractual Obligation of the U.S. Borrower or of any of its Subsidiaries which
violation, in the case of this clause (ii), would reasonably be expected to have
a Material Adverse Effect, and (b) will not result in, or require, the creation
or imposition of any Lien on any of its or their respective assets or properties
pursuant to any such Requirement of Law or Contractual Obligation.
6. No litigation, investigation or proceeding of or before any arbitrator
or Governmental Authority is pending or, to the best of my knowledge, threatened
by or against the U.S. Borrower or any of its Subsidiaries or against any of its
or their respective properties or revenues (a) with respect to the Credit
Agreement or any of the other Transaction Documents or (b) which would
reasonably be expected to have a Material Adverse Effect.
7. To the best of my knowledge, neither the U.S. Borrower nor any of its
Subsidiaries is in default under or with respect to any Contractual Obligations
in any respect which would reasonably be expected to have a Material Adverse
Effect.
8. The U.S. Borrower is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended. The U.S. Borrower is not subject to regulation
under any Federal or state statute or regulation which limits its ability to
incur Indebtedness.
The opinions set forth in the second sentence of paragraph 4 above are
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law), including, without limitation, concepts of
materiality and reasonableness and an implied covenant of good faith and fair
dealing.
I am a member of the bar of the State of Illinois and the opinions
expressed herein are based upon and are limited to the laws of such state, the
General Corporate Law of the State of Delaware and the Federal laws of the
United States of America. As to all matters governed by the laws of the State of
New York, I have assumed with your permission that the laws of such state are
identical to the laws of the State of Illinois.
This opinion has been rendered solely for your benefit and for the benefit
of your Transferees pursuant to subsection 17.6 of the Credit Agreement in
connection with the Credit Agreement and the other Transaction Documents and the
transactions contemplated thereby and may not be used, circulated, quoted,
relied upon or otherwise referred to for any
<PAGE>
4
other purpose without my prior written consent; provided, however, that this
opinion may be delivered to your regulators, accountants, attorneys and other
professional advisers and may be used in connection with any legal or regulatory
proceeding relating to the subject matter of this opinion.
Very truly yours,
Richard S. Brennan
Secretary and General Counsel
<PAGE>
EXHIBIT A
---------
The Indenture, dated as of July 31, 1995, between the U.S. Borrower and The Bank
of New York, as trustee.
The Liquidity Agreement, dated as of June 23, 1994 (as amended, supplemented or
otherwise modified as of the date of this opinion, the "Liquidity Agreement"),
among Case Equipment Loan Trust 1994-B, the several banks and other financial
institutions party thereto, and Chemical Bank, as Agent.
The Receivables Administration Agreement, the Receivables Certificate Purchase
Agreement, the Receivables Collateral Trust Agreement, the Receivables Purchase
Agreement, the Receivables Trust Agreement and the Receivables Loan and Security
Agreement, as each such agreement is defined in the Liquidity Agreement.
<PAGE>
EXHIBIT M
---------
FORM OF OPINION OF MAYER, BROWN & PLATT
To: The Chase Manhattan Bank, as General [Effective Date]
Administrative Agent under the
Credit Agreement referred to below
The Bank of Nova Scotia, as Canadian
Administrative Agent under the
Credit Agreement referred to below
The Lenders named in Schedule I to the Credit Agreement referred to
below
Ladies and Gentlemen:
We have acted as special New York counsel to Case Corporation, a
Delaware corporation (the "U.S. Borrower"), in connection with the preparation,
execution and delivery of the Revolving Credit and Guarantee Agreement, dated as
of August 23, 1996 (the "Credit Agreement"), among the U.S. Borrower, Case
Canada Corporation/corporation Case Canada (the "Canadian Borrower"), the
Foreign Subsidiary Borrowers parties thereto (the "Foreign Subsidiary
Borrowers"; and collectively with the U.S. Borrower and the Canadian Borrower,
the "Borrowers"), the lenders parties thereto (the "Lenders"), the Co-Agents and
Lead Managers named therein and The Chase Manhattan Bank and The Bank of Nova
Scotia, as General Administrative Agent and Canadian Administrative Agent,
respectively, for the Lenders (in such capacity, the "Agents").
This opinion is delivered to you pursuant to subsection 11.1(c) of the
Credit Agreement. Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
In arriving at the opinions expressed below, we have examined the
following documents:
(a) a copy of the Credit Agreement and the Revolving Credit Notes
signed by the Borrowers, the Lenders and the Agents;
(b) a copy of the opinion letter of Richard S. Brennan, Secretary and
General Counsel of the U.S. Borrower, addressed to you and dated the date
hereof, in respect of the Credit Agreement; and
<PAGE>
2
(c) a copy of the opinion letter of Fraser & Beatty, counsel to the
Canadian Borrower, addressed to you and dated the date hereof, in respect
of the Credit Agreement and the other Loan Documents.
The documents referred to in clause (a) are herein collectively called
the Transaction Documents.
In rendering the opinions expressed below, we have (a) relied as to
certain matters of fact on certificates of the officers of the U.S. Borrower and
(b) assumed, with your permission, without independent investigation or inquiry,
(i) the authenticity of all documents submitted to us as originals, (ii) the
genuineness of all signatures on all documents that we examined and (iii) the
conformity to authentic originals of documents submitted to us as certified,
conformed or photostatic copies.
Insofar as our opinions expressed below relate to the matters set
forth in the above-mentioned opinion letters of Richard S. Brennan and Fraser &
Beatty, we have assumed without independent investigation the correctness of the
matters set forth in (i) paragraphs (1) and (2), the first and second sentences
of paragraph (3), the first sentence of paragraph (4) and clauses (a)(ii) and
(b) of paragraph (5), of the opinion of Richard S. Brennan and (ii) the opinion
of Fraser & Beatty.
We have also assumed that each of the Transaction Documents has been
duly authorized, executed and delivered by all parties thereto, that the
Borrowers are each duly incorporated and validly existing under the laws of
their respective jurisdictions of incorporation and that each such party has the
corporate power and authority and legal right to execute, deliver and perform
its respective obligations thereunder, and that such execution, delivery and
performance by the Borrowers do not contravene their respective certificates of
incorporation or by-laws or similar organizational documents, or violate any
order, writ, injunction or decree applicable to or binding on either Borrower of
any court or other Governmental Authority and do not violate or require any
consent not obtained under, any Contractual Obligation applicable or binding
upon any such parties.
Based upon the foregoing, and subject to the qualifications and
comments set forth below, we are of the opinion that insofar as the law of the
State of New York, the General Corporation Law of the State of Delaware and the
Federal law of the United States is concerned:
1. The Credit Agreement constitutes a legal, valid and binding
obligation of the U.S. Borrower and the Canadian Borrower, enforceable
against the U.S. Borrower and the Canadian Borrower in accordance with its
terms.
2. No consent or authorization of, notice to, filing with or other
act by or in respect of, any Governmental Authority or any other Person is
required in connection with (i) the borrowings by the U.S. Borrower or the
Canadian Borrower under the Credit Agreement or (ii) the execution,
delivery and performance by the U.S. Borrower or the Canadian Borrower, or
the validity or enforceability against the
<PAGE>
3
U.S. Borrower or the Canadian Borrower, of each Transaction Document to
which it is a party.
3. The execution and delivery of each Transaction Document by the
U.S. Borrower and the Canadian Borrower, the performance by the U.S.
Borrower and the Canadian Borrower of their respective obligations
thereunder, the consummation of the transactions contemplated thereby, the
compliance by the U.S. Borrower and the Canadian Borrower with any of the
provisions thereof, the borrowings by the U.S. Borrower and the Canadian
Borrower under the Credit Agreement and the use of proceeds thereof, all as
provided therein, will not violate any Requirement of Law.
4. The U.S. Borrower is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended. The U.S. Borrower is not
subject to regulation under any Federal or New York statute or regulation
which limits its ability to incur Indebtedness.
Our opinions set forth above are subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law), including,
without limitation, concepts of materiality and reasonableness and an implied
covenant of good faith and fair dealing.
Our opinions are also subject to the following additional
qualifications:
(1) We express no opinion as to the provisions of the Credit
Agreement insofar as they relate to the Borrowers' agreement to the
jurisdiction of a particular court (other than the courts of the State of
New York and the appellate courts therefrom), the waiver of the right to a
jury trial or the waiver of inconvenient forum insofar as it relates to a
proceeding in the United States District Court for the Southern District of
New York.
(2) We express no opinion as to the provisions of the Credit
Agreement purporting to grant a right of setoff to participants.
(3) We express no opinion as to any provision of the Transaction
Documents that purports to establish an evidentiary standard for
determinations by the Lenders or the Agents.
(4) We express no opinion as to any indemnification obligations of
the Borrowers under the Transaction Documents to the extent such
obligations might be deemed inconsistent with public policy.
We note that (i) a New York statute provides that with respect to a
foreign currency obligation, a court of the State of New York shall render a
judgment or decree in such foreign currency and such judgment or decree shall be
converted into currency of the
<PAGE>
4
United States at the rate of exchange prevailing on the date of entry of such
judgment or decree and (ii) with respect to a foreign currency obligation, a
United States Federal court in New York may award judgment in United States
dollars, provided that we express no opinion as to the rate of exchange such
court would apply.
We are members of the Bar of the State of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York, the General Corporation law of the State of Delaware and the Federal
law of the United States of America.
This opinion has been rendered solely for your benefit in connection
with the Transaction Documents and the transactions contemplated thereby and may
not be used, circulated, quoted, relied upon or otherwise referred to for any
purpose without our prior written consent; provided, however, that this opinion
may be delivered to your regulators, accountants, attorneys and other
professional advisers and may be used in connection with any legal or regulatory
proceeding relating to the subject matter of this opinion.
Very truly yours,
MAYER, BROWN & PLATT
<PAGE>
EXHIBIT N
---------
FORM OF OPINION OF FRASER & BEATTY
[Effective Date]
The Chase Manhattan Bank, as General Administrative Agent
270 Park Avenue
New York, New York 10017
The Bank of Nova Scotia, as Canadian Administrative Agent
44 King Street West
Toronto, Ontario
Canada M5H 1H1
The Lenders as defined in the Credit Agreement referred to below
Ladies and Gentlemen:
We have acted as counsel in the Province of Ontario to Case Canada
Corporation/Corporation Case Canada, a provincial Ontario corporation (the
"Canadian Borrower"), in connection with the Revolving Credit and Guarantee
Agreement dated as of August 23, 1996 (the "Credit Agreement") among the
Canadian Borrower, Case Corporation, a Delaware corporation, the Foreign
Subsidiary Borrowers parties thereto, the lenders party thereto (the "Lenders"),
the Co-Agents and Lead Managers named therein, The Bank of Nova Scotia as
Canadian Administrative Agent for the Lenders, and The Chase Manhattan Bank, as
General Administrative Agent for the Lenders.
The opinions expressed below are furnished to you pursuant to
subsection 11.1(c) of the Credit Agreement. Terms defined in the Credit
Agreement shall, when used herein, have the meanings given to them in the Credit
Agreement.
For the purposes of giving the opinions set forth below, we have
examined facsimile copies of executed versions of the following (collectively
referred to below as the "Documents"):
(a) the Credit Agreement; and
(b) the Powers of Attorney delivered to the Canadian Administrative
Agent dated ________, 1996 (the "Initial Powers").
We have also examined such corporate documents and records of the
Canadian Borrower and such other instruments and certificates and made such
investigations of law as we have deemed appropriate as a basis for such
opinions.
<PAGE>
2
We have assumed, with your permission and without independent
investigation or inquiry, (i) the authenticity of all documents examined by us,
(ii) the genuiness of all signatures on all documents examined by us (other than
those of the Canadian Borrower and its officers) and (iii) the conformity to
authentic originals of documents submitted as certified, conformed, facsimile or
photostatic copies. We have also assumed that the Documents are the legal, valid
and binding obligations of the parties thereto (other than the Canadian
Borrower), enforceable against them in accordance with their respective terms.
With respect to certain matters of fact, we have relied upon
certificates of the Canadian Borrower or its officers as to such facts. Also, to
the extent our opinions in paragraphs 2, 6 and 9 pertain to the power and
capacity and ability of the Canadian Borrower to incur obligations under the
Credit Agreement which might be restricted by, or subject to, the provisions of
the Business Corporations Act (Ontario) pertaining to the provision by an
Ontario corporation of financial assistance to affiliated corporations, we have
relied solely on a certificate of solvency from an officer of the Canadian
Borrower. Statements of fact set forth in such certificates have not been
independently verified by us. For the purposes of the opinion expressed in
paragraph 1 below, we have relied upon a Certificate of Status dated ________,
1996 with respect to the Canadian Borrower issued by the Ministry of Consumer &
Commercial Relations.
The phrase "to the best of our knowledge" in this opinion is to be
interpreted in accordance with the following express limitations: (i) such
phrase includes only actual knowledge which the members of our firm who have
directly participated in the representation of the Canadian Borrower in the
course of the transactions contemplated by the Credit Agreement have obtained
(those people being Peter Murphy, Graham Torner, Susan Foran and Alex Roberts);
(ii) no special inquiry, investigation or other diligence has been performed to
determine the existence or the absence of the facts qualified by such phrase;
and (iii) no inference as to our knowledge should be drawn from the fact that
certain partners of our firm are officers or directors of the Canadian Borrower.
We note that the Credit Agreement is governed by the laws of the State
of New York and that the General Administrative Agent is located in that
jurisdiction. The scope of our review is restricted to and this opinion is
rendered solely with respect to the laws of the Province of Ontario and the
federal laws of Canada having application therein as of the date hereof
("Ontario Law"). In this opinion, "Ontario Courts" means the courts of the
Province of Ontario and the federal courts constituted by the Parliament of
Canada for the better administration of the laws of Canada, the jurisdiction of
which extends to disputes arising in the Province of Ontario.
Based upon and subject to the foregoing and subject to the
qualifications set forth below, we are of the opinion that:
1. The Canadian Borrower (i) is duly organized and subsisting under
the laws of the Province of Ontario, and (ii) has the corporate power and
authority to own, lease and operate its properties and to conduct the
business in which it is currently engaged.
<PAGE>
3
2. The Canadian Borrower has the corporate power and authority to
execute, deliver and perform its obligations under the Documents and has
taken all necessary corporate action to authorize the execution, delivery
and performance of the Documents. Except for consents, authorizations,
approvals, notices and filings which have been obtained, made or waived and
are in full force and effect, no consent or authorization of, approval by,
notice to, filing with or other act by or in respect of, any Governmental
Authority is required in connection with the execution, delivery and
performance by the Canadian Borrower, or the validity or enforceability
against the Canadian Borrower, of the Documents.
3. The Credit Agreement has been duly executed and delivered by the
Canadian Borrower.
4. The Initial Powers have been duly executed and delivered by the
Canadian Borrower and constitute a legal, valid and binding obligation of
the Canadian Borrower enforceable against the Canadian Borrower in
accordance with their respective terms.
5. The Canadian Borrower has taken all necessary corporate action to
authorize the execution, delivery and performance, from time to time, of
the Canadian Revolving Credit Notes, Drafts, Acceptance Notes and Powers of
Attorney contemplated by the Credit Agreement.
6. The execution and delivery of the Documents, the performance by
the Canadian Borrower of its obligations thereunder, the consummation by
the Canadian Borrower of the transactions contemplated thereby and the
compliance by the Canadian Borrower with the provisions thereof, all as
provided therein, (i) will not violate any requirement of Ontario Law
applicable to the Canadian Borrower, (ii) to the best of our knowledge,
will not violate any Contractual Obligation of the Canadian Borrower in any
respect that would reasonably be expected to have a Material Adverse
Effect, and (iii) will not result in, or require, the creation or
imposition of any Lien on any of its assets or properties pursuant to any
such requirement of Ontario Law or, to the best of our knowledge, any such
Contractual Obligation.
7. No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or threatened by or against
the Canadian Borrower or against any of its properties or revenues (a) with
respect to the Documents, or (b) which would reasonably be expected to have
a Material Adverse Effect.
8. To the best of our knowledge, the Canadian Borrower is not in
default under or with respect to any Contractual Obligation in any respect
which would reasonably be expected to have a Material Adverse Effect.
9. The choice of the parties of the laws of the State of New York to
govern the Credit Agreement will, to the extent specifically pleaded and
proved as a
<PAGE>
4
fact by expert evidence, be recognized and given effect to by the Ontario
Courts, provided that:
(a) the choice of law was freely made by the parties thereto;
(b) the parties have not chosen the laws of the State of New York for
the purpose of evading the provisions of the system of law to
which the transaction contemplated by such Documents are most
closely related, although we are not aware of any facts which
would lead us to believe that the laws of the State of New York
were chosen for any such purpose;
(c) the choice of law will only be effective in regard to substantive
law, and the procedural laws of the jurisdiction in which the
substantive rights are being enforced will apply;
(d) Ontario Courts will not apply those laws of the State of New York
which it characterizes as being of a revenue, expropriatory,
penal or public nature; and
(e) enforcement of any provision of such Documents in the Ontario
Courts will not be contrary to public policy (as that term is
applied by the Ontario Courts) or a statute protecting the
citizens of Ontario, although we are not aware of any such public
policy or statute that would prevent the recognition of and
giving effect to the choice of law.
10. Any final judgment for a definite sum given by any court in the
State of New York (the "foreign court") against the Canadian Borrower in
respect of the Credit Agreement would, in an action to enforce such
judgment in the Ontario Courts, be recognized as conclusive and enforceable
without reconsideration of the merits of the action, provided that:
(a) such judgment was for a sum certain in money;
(b) such judgment was final, conclusive and enforceable where
rendered and does not conflict with another final and conclusive
judgment on the same cause of action and no new admissible
evidence relevant to the action is discovered prior to the
rendering of judgment by the applicable Ontario Court;
(c) such judgment was not obtained by fraud or in a manner contrary
to natural justice;
(d) the foreign court rendering the judgment was impartial and
provided procedures compatible with the due process and natural
justice standards of the Ontario Courts;
<PAGE>
5
(e) the foreign court that rendered the judgment had jurisdiction
over the Canadian Borrower and the subject matter and, if
jurisdiction in the foreign court was based on personal service
alone, the foreign court was not a seriously inconvenient forum
for the trial of the action;
(f) the proceedings in the foreign court were not contrary to an
agreement between the parties under which the dispute in question
was to be settled otherwise than by proceedings in that court;
(g) such judgment is a subsisting judgment and has not been
satisfied,
(h) after the date of judgment in the foreign court, application to
the Ontario Courts to enforce such judgment is made within twenty
(20) years; and
(i) the claim for relief on which the foreign judgment was based is
not repugnant to the public policy of the Province of Ontario, as
that term is applied by the Ontario Courts, although we are not
aware of any reason why a money judgment for amounts payable
under the Credit Agreement would be repugnant to the public
policy of the Province of Ontario save and except that an Ontario
Court might not recognize and enforce a foreign judgment
requiring that the Canadian Borrower pay a higher rate of
interest after default (than before) or requiring the Canadian
Borrower to pay fees, expenses, interest and other amounts which
in aggregate would exceed the "criminal interest rate" provisions
of the Criminal Code of Canada.
The opinions expressed herein with respect to the Initial Powers being
legal, valid, binding and enforceable, are subject to the following
qualifications.
(a) enforcement may be limited by applicable bankruptcy, winding-up,
liquidation, insolvency, fraudulent preference, re-organization,
moratorium or other laws or judicial decisions of whatsoever
nature or kind affecting the enforcement of creditors' rights and
remedies generally (including without limitation the provisions
of section 65.1 of the Bankruptcy and Insolvency Act (Canada)
which inter alia limit rights to claim accelerated payment in
certain circumstances, and the provisions of sections 69(1) and
69.1 of that Act, which inter alia stay certain creditor
proceedings and remedies on the filing of a notice of intention
to make a proposal or of a proposal), or by general principles of
equity which may apply to any proceeding whether in equity or at
law, including, without limitation, the powers of the court to
stay proceedings before them, to stay the execution of judgments
and to relieve from the consequences of default;
<PAGE>
6
(b) equitable remedies, such as specific performance and injunctive
relief, are only available in the discretion of the court, and
accordingly may not be available as a remedy in any particular
circumstance;
(c) the ability to recover certain costs, fees and expenses in
connection with litigation brought before an Ontario Court to
enforce provisions of the Initial Powers is in the discretion of
such court and counsel fees are subject to taxation;
(d) claims may become barred under laws regarding limitation of
actions;
(e) powers of attorney, although expressed to be irrevocable, may in
some circumstances be revoked;
(f) the Currency Act (Canada) precludes a court in Canada from giving
judgment in any currency other than Canadian currency;
(g) determinations, calculations, demands, requests, instructions and
acts made by Lenders in the exercise of a discretion given to
them under the Initial Powers may not be enforceable if made or
performed unreasonably or arbitrarily and may not be treated as
conclusive notwithstanding contrary provisions in the Initial
Powers;
(h) we express no opinion on provisions of the Initial Powers (i)
directly or indirectly purporting to exclude unwritten
variations, amendments, waivers or consents, (ii) dealing with
the waiving by the Canadian Borrower of legal, statutory or
equitable rights or doctrines, (iii) purporting to relieve the
Lenders from any duty or the consequence of their own negligence,
or (iv) which provide or have the effect of providing for the
payment of rates and/or fees which may exceed the "criminal
interest rate" provisions of the Criminal Code (Canada);
(i) enforceability of rights of indemnity may be limited to the
extent that any such indemnity is found by a court to indemnify a
party against the consequences of an unlawful act or is found to
constitute a penalty or be against public policy; and
(j) we express no opinion on the enforceability of particular terms
of the Initial Powers, to the extent that the course of dealings
between the Canadian Lenders, the Canadian Administrative Agent
and the Canadian Borrower pertaining to the communication of
instructions for the completion of Drafts, and to the procedure
for paying, on maturity, the face amount of each Draft and to the
procedure for communicating a revocation of the power of
attorney, is inconsistent with such terms.
<PAGE>
7
This opinion has been rendered solely for your benefit in connection
with the Credit Agreement and for the benefit of your Transferees pursuant to
subsection 17.6 of the Credit Agreement, and the transactions contemplated
thereby and may not be used, circulated, quoted, relied upon or otherwise
referred to for any other purpose without our prior written consent; provided,
however, that copies of this opinion may be delivered to your regulators,
accountants, attorneys and other professional advisors and may be referred to in
connection with any legal or regulatory proceeding relating to the subject
matter of this opinion. This opinion is given as of the date hereof and we
disclaim any obligation or undertaking to advise you or any such Transferee,
regulatory or professional advisor of a change in law or fact affecting or
bearing upon the opinions rendered herein occurring after the date hereof which
may come or be brought to our attention.
Yours very truly,
FRASER & BEATTY
<PAGE>
EXHIBIT O
---------
MATTERS TO BE COVERED BY
OPINIONS RELATING TO THE
FOREIGN SUBSIDIARY BORROWERS
1. The Foreign Subsidiary Borrower is duly organized, validly existing and
in good standing under the laws of __________________ [specify the jurisdiction
of its organization] (the "Jurisdiction").
2. The Foreign Subsidiary Borrower has the power and authority, and the
legal right, to make, deliver and perform its obligations under the Credit
Agreement and to borrow under the Credit Agreement. The Foreign Subsidiary
Borrower has taken all necessary corporate action to authorize the performance
of its obligations as a "Foreign Subsidiary Borrower" under the Credit Agreement
and to authorize the execution, delivery and performance of the Credit
Agreement.
3. Except for consents, authorizations, approvals, notices and filings
described on an attached schedule, all of which have been obtained, made or
waived and are in full force and effect, no consent or authorization of,
approval by, notice to, filing with or other act by or in respect of, any
Governmental Authority is required in connection with the borrowings by the
Foreign Subsidiary Borrower under the Credit Agreement or with the execution,
delivery, performance, validity or enforceability of the Credit Agreement.
4. The Credit Agreement has been duly executed and delivered on behalf of
the Foreign Subsidiary Borrower.
5. The execution and delivery of the Credit Agreement by the Foreign
Subsidiary Borrower, the performance of its obligations thereunder, the
consummation of the transactions contemplated thereby, the compliance by the
Foreign Subsidiary Borrower with any of the provisions thereof, the borrowings
under the Credit Agreement and the use of proceeds thereof, all as provided
therein, (a) will not violate, or constitute a default under, any Requirement of
Law applicable to the Foreign Subsidiary Borrower and (b) will not result in, or
require, the creation or imposition of any Lien on any of its properties or
revenues pursuant to any such Requirement of Law.
6. There are no taxes imposed by the Jurisdiction (a) on or by virtue of
the execution, delivery, enforcement or performance of the Credit Agreement or
(b) on any payment to be made by the Foreign Subsidiary Borrower pursuant to the
Credit Agreement other than any Non-Excluded Taxes payable by the Foreign
Subsidiary Borrower as provided in subsection 9.11 of the Credit Agreement.
7. To ensure the legality, validity, enforceability or admissibility in
evidence of the Credit Agreement, it is not necessary that the Credit Agreement
or any other Loan Documents or any other document be filed, registered or
recorded with, or executed or
<PAGE>
2
notarized before, any court of other authority of the Jurisdiction or that any
registration charge or stamp or similar tax be paid on or in respect of the
Credit Agreement.
8. The Credit Agreement is in proper legal form under the laws of the
Jurisdiction for the enforcement thereof against the Foreign Subsidiary Borrower
under the laws of the Jurisdiction.
9. In any action or proceeding arising out of or relating to the Credit
Agreement in any court in the Jurisdiction, such court would recognize and give
effect to the choice of law provisions in the Credit Agreement wherein the
parties thereto agree that the Credit Agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the State of New York.
10. It is not necessary under the laws of the Jurisdiction (a) in order to
enable the Administrative Agents and the Lenders or any of them to enforce their
respective rights under the Credit Agreement or (b) by reason of the execution
of the Credit Agreement [or the Joinder Agreement to which the Foreign
Subsidiary Borrower is a party] or the performance of the Credit Agreement that
any of them should be licensed, qualified or entitled to carry on business in
the Jurisdiction.
11. Neither either of the Administrative Agents nor any of the Lenders
will be deemed to be resident, domiciled, carrying on business or subject to
taxation in the Jurisdiction merely by reason of the execution of the Credit
Agreement [or the Joinder Agreement to which the Foreign Subsidiary Borrower is
a party] or the performance or enforcement of any thereof. The performance by
the Administrative Agents and the Lenders or any of them of any action required
or permitted under the Credit Agreement will not violate any law or regulation,
or be contrary to the public policy, of the Jurisdiction.
12. If any judgment of a competent court outside the Jurisdiction were
rendered against the Foreign Subsidiary Borrower in connection with any action
arising out of or relating to the Credit Agreement, such judgment would be
recognized and could be sued upon in the courts of the Jurisdiction, and such
courts would grant a judgment which would be enforceable against the Foreign
Subsidiary Borrower in the Jurisdiction without any retrial unless it is shown
that (a) the foreign court did not have jurisdiction in accordance with its
jurisdictional rules, (b) the party against whom the judgment of such foreign
court was obtained had no notice of the proceedings or (iii) the judgment of
such foreign court was obtained through collusion or fraud or was based upon
clear mistake of fact or law.
<PAGE>
EXHIBIT 10(b)
[CONFORMED COPY]
================================================================================
CASE CREDIT CORPORATION
THE FOREIGN SUBSIDIARY BORROWERS
__________________________
$1,200,000,000
REVOLVING CREDIT AND GUARANTEE AGREEMENT
Dated as of August 23, 1996
_______________________________
THE CO-AGENTS AND
LEAD MANAGERS NAMED HEREIN,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS..................................................... 1
1.1 Defined Terms................................................... 1
1.2 Other Definitional Provisions................................... 27
SECTION 2. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS................ 28
2.1 Revolving Credit Commitments.................................... 28
2.2 Repayment of Revolving Credit Loans; Evidence of Debt........... 28
2.3 Procedure for Revolving Credit Borrowing........................ 29
2.4 Termination or Reduction of Revolving Credit Commitments........ 30
2.5 Borrowings of Revolving Credit Loans and Refunding of Loans..... 30
SECTION 3. AMOUNT AND TERMS OF SWINGLINE COMMITMENTS....................... 32
3.1 Swing Line Commitments.......................................... 32
3.2 Procedure for Swing Line Borrowings; Interest Rate.............. 32
3.3 Repayment of Swing Line Loans; Evidence of Debt................. 33
3.4 Refunding of Swing Line Borrowings.............................. 33
3.5 Participating Interests......................................... 34
3.6 No Swing Line Loans After Notice of Default..................... 35
SECTION 4. AMOUNT AND TERMS OF CAF ADVANCES................................ 35
4.1 CAF Advances.................................................... 35
4.2 Procedure for CAF Advance Borrowing............................. 35
4.3 CAF Advance Payments............................................ 38
4.4 Evidence of Debt................................................ 39
4.5 Certain Restrictions............................................ 39
SECTION 5. AMOUNT AND TERMS OF MULTICURRENCY COMMITMENT.................... 40
5.1 Multicurrency Commitments....................................... 40
5.2 Repayment of Multicurrency Loans; Evidence of Debt.............. 40
5.3 Procedure for Multicurrency Borrowing........................... 41
5.4 Termination or Reduction of Multicurrency Commitments........... 41
SECTION 6. ALTERNATE CURRENCY FACILITIES................................... 41
6.1 Terms of Alternate Currency Facilities.......................... 41
<PAGE>
Page
----
6.2 Reporting of Alternate Currency Outstandings................... 43
SECTION 7. GENERAL PROVISIONS APPLICABLE TO LOANS......................... 44
7.1 Interest Rates and Payment Dates............................... 44
7.2 Conversion and Continuation Options............................ 44
7.3 Minimum Amounts of Tranches.................................... 45
7.4 Optional and Mandatory Prepayments............................. 45
7.5 Facility Fees; Other Fees...................................... 47
7.6 Computation of Interest and Fees............................... 47
7.7 Inability to Determine Interest Rate........................... 48
7.8 Pro Rata Treatment and Payments................................ 49
7.9 Illegality..................................................... 51
7.10 Requirements of Law............................................ 51
7.11 Taxes.......................................................... 52
7.12 Indemnity...................................................... 54
7.13 Change of Lending Office....................................... 55
7.14 Substitution of Lender......................................... 55
7.15 Use of Proceeds................................................ 56
SECTION 8. REPRESENTATIONS AND WARRANTIES................................. 56
8.1 Financial Condition............................................ 56
8.2 No Change...................................................... 57
8.3 Corporate Existence; Compliance with Law....................... 57
8.4 Corporate Power; Authorization; Enforceable Obligations........ 57
8.5 No Legal Bar................................................... 57
8.6 No Material Litigation......................................... 58
8.7 No Default..................................................... 58
8.8 Taxes.......................................................... 58
8.9 Federal Regulations............................................ 58
8.10 ERISA.......................................................... 58
8.11 Investment Company Act; Other Regulations...................... 59
SECTION 9. CONDITIONS PRECEDENT........................................... 59
9.1 Conditions to Effectiveness of this Agreement.................. 59
9.2 Conditions to Each Extension of Credit......................... 61
SECTION 10. AFFIRMATIVE COVENANTS.......................................... 61
10.1 Financial Statements........................................... 62
10.2 Certificates; Other Information................................ 62
10.3 Payment of Obligations......................................... 63
10.4 Conduct of Business and Maintenance of Existence............... 63
- ii -
<PAGE>
Page
----
10.5 Maintenance of Property; Insurance............................. 63
10.6 Inspection of Property; Books and Records; Discussions......... 63
10.7 Notices........................................................ 64
10.8 Foreign Subsidiary Opinions.................................... 64
SECTION 11. NEGATIVE COVENANTS............................................. 64
11.1 Financial Condition Covenants.................................. 65
11.2 Limitation on Liens............................................ 65
11.3 Limitation on Fundamental Changes.............................. 66
11.4 Limitation on Lines of Business................................ 66
SECTION 12. GUARANTEE...................................................... 67
12.1 Guarantee...................................................... 67
12.2 Right of Set-off............................................... 67
12.3 No Subrogation................................................. 68
12.4 Amendments, etc. with respect to the Obligations; Waiver of
Rights......................................................... 68
12.5 Guarantee Absolute and Unconditional........................... 69
12.6 Reinstatement.................................................. 70
12.7 Payments....................................................... 70
SECTION 13. EVENTS OF DEFAULT.............................................. 70
SECTION 14. THE ADMINISTRATIVE AGENT; THE CO-AGENTS
AND LEAD MANAGERS; THE SWING LINE
LENDERS........................................................ 73
14.1 Appointment.................................................... 73
14.2 Delegation of Duties........................................... 73
14.3 Exculpatory Provisions......................................... 74
14.4 Reliance by Administrative Agent............................... 74
14.5 Notice of Default.............................................. 74
14.6 Non-Reliance on Administrative Agent and Other Lender.......... 75
14.7 Indemnification................................................ 75
14.8 Administrative Agent in its Individual Capacity................ 76
14.9 Successor Administrative Agent................................. 76
14.10 The Co-Agents and Lead Managers................................ 76
14.11 Swing Line Lenders............................................. 76
SECTION 15. MISCELLANEOUS.................................................. 77
15.1 Amendments and Waivers......................................... 77
15.2 Notices........................................................ 79
15.3 No Waiver; Cumulative Remedies................................. 80
- iii -
<PAGE>
Page
----
15.4 Survival of Representations and Warranties..................... 80
15.5 Payment of Expenses and Taxes.................................. 80
15.6 Successors and Assigns; Participations and Assignments......... 81
15.7 Adjustments; Set-Off........................................... 84
15.8 Loan Conversion/Participations................................. 85
15.9 Counterparts................................................... 86
15.10 Severability................................................... 86
15.11 Integration.................................................... 86
15.12 GOVERNING LAW.................................................. 86
15.13 Submission To Jurisdiction; Waivers............................ 87
15.14 Acknowledgements............................................... 87
15.15 WAIVERS OF JURY TRIAL.......................................... 88
15.16 Power of Attorney.............................................. 88
15.17 Existing Credit Agreement...................................... 88
15.18 Judgment....................................................... 88
- iv -
<PAGE>
ANNEXES:
A Refunding Mechanics
SCHEDULES:
I Commitments; Addresses
II Foreign Subsidiary Borrowers
III Administrative Schedule
8.4 Consents
11.2 Existing Liens
EXHIBITS:
A Form of Revolving Credit Note
B Form of CAF Advance Request
C Form of CAF Advance Offer
D Form of CAF Advance Confirmation
E Form of Joinder Agreement
F Form of Alternate Currency Facility Addendum
G Form of Assignment and Acceptance
H Form of Opinion of Richard S. Brennan, Esq.
I Form of Opinion of Mayer, Brown & Platt
J Matters to be Covered by Foreign Subsidiary Opinion
- v -
<PAGE>
REVOLVING CREDIT AND GUARANTEE AGREEMENT, dated as of August 23, 1996,
among CASE CREDIT CORPORATION, a Delaware corporation (the "U.S. Borrower"),
each FOREIGN SUBSIDIARY BORROWER (as hereinafter defined) (together with the
U.S. Borrower, the "Borrowers"), the Co-Agents named on the signature pages
hereof (the "Co-Agents"), the Lead Managers named on the signature pages hereof
(the "Lead Managers"), the several banks and other financial institutions from
time to time parties hereto (the "Lenders") and THE CHASE MANHATTAN BANK, a New
York banking corporation (as hereinafter defined, the "Administrative Agent"),
as administrative agent for the Lenders hereunder.
W I T N E S S E T H :
-------------------
WHEREAS, the U.S. Borrower is party to the Amended and Restated
Revolving Credit Agreement, dated as of November 30, 1995, as amended (the
"Existing Credit Agreement") with the several banks and other financial
institutions party thereto (the "Existing Lenders"), the Co-Agents named therein
and The Chase Manhattan Bank (f/k/a Chemical Bank), as the administrative agent
for the Existing Lenders; and
WHEREAS, in accordance with subsection 15.17, the Existing Credit
Agreement shall terminate on the Effective Date (as hereinafter defined);
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"ABR Loans": Revolving Credit Loans or Swing Line Loans the rate
of interest applicable to which is based upon the Alternate Base Rate.
"Adjusted Aggregate Committed Outstandings": with respect to each
Lender, the Aggregate Committed Outstandings of such Lender, plus the
amount of any participating interests purchased by such Lender pursuant to
subsection 15.8, minus the amount of any participating interests sold by
such Lender pursuant to subsection 15.8.
"Administrative Agent": Chase, together with its affiliates, as
arranger of the Commitments and as administrative agent for the Lenders
under this Agreement and the other Loan Documents, and any successor
thereto appointed pursuant to subsection 14.9.
<PAGE>
2
"Administrative Schedule": Schedule III, which contains interest rate
definitions and administrative information in respect of each Available
Foreign Currency.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. For purposes of this
definition, "control" of a Person means the power, directly or indirectly,
either to (a) vote 10% or more of the securities or other equity interests
having ordinary voting power for the election of directors or other
governing bodies of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Aggregate Alternate Currency Outstandings": as at any date of
determination with respect to any Lender, an amount in the applicable
Alternate Currencies equal to the aggregate unpaid principal amount of such
Lender's Alternate Currency Loans.
"Aggregate Available Multicurrency Commitments": as at any date of
determination with respect to all Multicurrency Lenders, an amount in U.S.
Dollars equal to the Available Multicurrency Commitments of all
Multicurrency Lenders on such date.
"Aggregate Available Revolving Credit Commitments": as at any date
of determination with respect to all Lenders, an amount in U.S. Dollars
equal to the Available Revolving Credit Commitments of all Lenders on such
date.
"Aggregate Committed Outstandings": as at any date of determination
with respect to any Lender, an amount in U.S. Dollars equal to the sum of
(a) the Aggregate Revolving Credit Outstandings of such Lender on such
date, (b) the U.S. Dollar Equivalent of the Aggregate Multicurrency
Outstandings of such Lender on such date and (c) the U.S. Dollar Equivalent
of the Aggregate Alternate Currency Outstandings of such Lender on such
date.
"Aggregate Multicurrency Outstandings": as at any date of
determination with respect to any Lender, an amount in the applicable
Available Foreign Currencies equal to the aggregate unpaid principal amount
of such Lender's Multicurrency Loans.
"Aggregate Revolving Credit Commitments": the aggregate amount of
the Revolving Credit Commitments of all of the Lenders.
"Aggregate Revolving Credit Outstandings": as at any date of
determination with respect to any Lender, an amount in U.S. Dollars equal
to the sum of (a) the aggregate unpaid principal amount of such Lender's
Revolving Credit Loans on such date and (b) such Lender's Revolving Credit
Commitment Percentage of the aggregate unpaid principal amount of all Swing
Line Loans on such date.
<PAGE>
3
"Aggregate Total Outstandings": as at any date of determination with
respect to any Lender, an amount in U.S. Dollars equal to the sum of (a)
the Aggregate U.S. Outstandings of such Lender on such date, (b) the U.S.
Dollar Equivalent of the Aggregate Multicurrency Outstandings of such
Lender on such date and (c) the U.S. Dollar Equivalent of the Aggregate
Alternate Currency Outstandings of such Lender on such date.
"Aggregate U.S. Outstandings": as at any date of determination
with respect to any Lender, an amount in U.S. Dollars equal to the sum of
(a) the Aggregate Revolving Credit Outstandings of such Lender on such date
and (b) the aggregate unpaid principal amount of such Lender's CAF Advances
on such date.
"Agreement": this Revolving Credit and Guarantee Agreement, as the
same may be amended, supplemented or otherwise modified from time to time.
"Agreement Currency": as defined in subsection 15.18(b).
"Alternate Base Rate": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of:
(a) the U.S. Prime Rate in effect on such day;
(b) the Base CD Rate in effect on such day plus 1%; and
(c) the Federal Funds Effective Rate in effect on such day plus
1/2 of 1%.
For purposes of this definition, the following terms have the
following meanings:
"Base CD Rate": the sum of (a) the product of (i) the Three-
Month Secondary CD Rate and (ii) a fraction, the numerator of which
is one and the denominator of which is one minus the CD Reserve
Percentage and (b) the CD Assessment Rate.
"CD Assessment Rate": for any day as applied to any calculation
of the Base CD Rate, the annual assessment rate (rounded upwards,
if necessary, to the next 1/100 of 1%) in effect on such day which
is payable by a member of the Bank Insurance Fund maintained by the
Federal Deposit Insurance Corporation (the "FDIC") classified as
well-capitalized and within supervisory subgroup "B" (or a
comparable successor assessment risk classification) within the
meaning of 12 C.F.R. (S) 327.3(d) (or any successor provision) to
the FDIC (or any successor) for the FDIC's (or such successor's)
insuring time deposits at offices of such institution in the United
States.
"CD Reserve Percentage": for any day as applied to any
calculation of the Base CD Rate, that percentage (expressed as a
decimal) which is in effect
<PAGE>
4
on such day, as prescribed by the Board for determining the maximum
reserve requirement for a Depositary Institution (as defined in
Regulation D of the Board) in respect of new non-personal time
deposits in Dollars having a maturity of 30 days or more.
"Federal Funds Effective Rate": for any day, the weighted
average of the rates per annum on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is
not so published for any day which is a Business Day, the average
of the quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized
standing selected by it.
"Three-Month Secondary CD Rate": for any day, the secondary
market rate for three-month certificates of deposit reported as
being in effect on such day (or, if such day is not a Business Day,
the next preceding Business Day) by the Board through the public
information telephone line of the Federal Reserve Bank of New York
(which rate will, under the current practices of the Board, be
published in Federal Reserve Statistical Release H.15(519) during
the week following such day), or, if such rate is not so reported,
the average (rounded upwards to the nearest 1/100 of 1%) of the
secondary market quotations for three-month certificates of deposit
of major money center banks in New York City received at
approximately 10:00 a.m., New York City time, on such day or next
preceding Business Day by the Administrative Agent from three New
York City negotiable certificate of deposit dealers of recognized
standing selected by it.
"U.S. Prime Rate": the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its
prime rate in effect at its principal office in New York City. The
U.S. Prime Rate is not intended to be the lowest rate of interest
charged by the Administrative Agent in connection with extensions
of credit to debtors.
If for any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is unable
to ascertain the Federal Funds Effective Rate or the Base CD Rate for any
reason, including the inability or failure of the Administrative Agent to
obtain sufficient quotations in accordance with the terms thereof, the
Alternate Base Rate shall be determined without regard to clause (b) or (c)
above, or both, as appropriate, until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to a
change in the U.S. Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate shall be effective as of the opening of
business on the effective day of such change in the U.S. Prime Rate, the
Three-Month Secondary CD Rate or the Federal Funds Effective Rate,
respectively.
<PAGE>
5
"Alternate Currency": Australian Dollars, Italian Lira, Belgian
Francs and any other available and freely convertible non-U.S. Dollar
currency selected by an Alternate Currency Borrower and approved by the
Administrative Agent.
"Alternate Currency Borrower": each Subsidiary of the U.S. Borrower
organized under the laws of a jurisdiction outside the United States that
the U.S. Borrower designates as an "Alternate Currency Borrower" in an
Alternate Currency Facility Addendum.
"Alternate Currency Facility": any Qualified Credit Facility that the
U.S. Borrower designates as an "Alternate Currency Facility" pursuant to an
Alternate Currency Facility Addendum.
"Alternate Currency Facility Addendum": an Alternate Currency Facility
Addendum received by the Administrative Agent, substantially in the form of
Exhibit F, and conforming to the requirements of Section 6.
"Alternate Currency Facility Agent": with respect to each
Alternate Currency Facility, the Alternate Currency Lender acting as agent
for the Alternate Currency Lenders parties thereto (and, in the case of any
Alternate Currency Facility to which only one Lender is a party, such
Lender).
"Alternate Currency Facility Maximum Borrowing Amount": as defined
in subsection 6.1(b).
"Alternate Currency Lender": any Lender (or, if applicable, any
affiliate, branch or agency thereof) party to an Alternate Currency
Facility.
"Alternate Currency Lender Maximum Borrowing Amount": as defined
in subsection 6.1(b).
"Alternate Currency Loan": any loan made pursuant to an Alternate
Currency Facility.
"Applicable Margin": for each Type of Loan the rate per annum,
determined from time to time based upon the Ratings in effect by two then
nationally recognized rating agencies selected by the U.S. Borrower (at
least one of which shall be Moody's or S&P), set forth under the relevant
column heading below opposite such Ratings:
<PAGE>
6
<TABLE>
<CAPTION>
Applicable Margin
Ratings (in percentages)
- ------- -----------------
Multicurrency
Loans and
S&P/Moody's* Eurodollar Loans ABR Loans
- ------------- ---------------- ---------
<S> <C> <C>
A/A2 0.155% 0.00%
A-/A3 0.170% 0.00%
BBB+/Baa1 0.200% 0.00%
BBB/Baa2 0.250% 0.00%
BBB-/Baa3 0.275% 0.00%
BB+/Ba1 0.425% 0.00%
BB/Ba2 (or lower) 0.575% 0.00%
</TABLE>
; provided that in the event that the Ratings of such then nationally
recognized rating agencies do not coincide, the Applicable Margin set forth
opposite the higher of such Ratings will apply; provided, further that, if
at any time an event occurs which results in there being no Ratings or only
one Rating in effect, not later than 30 days after the date on which such
event occurs (if only one Rating or no Rating remains in effect), a new
Applicable Margin will be determined in a manner to be mutually agreed upon
by the Administrative Agent and the U.S. Borrower and consented to by the
Lenders, and until such new Applicable Margin shall be so agreed upon, the
Applicable Margin will be deemed to be the Applicable Margin in effect
immediately prior to the date on which such event occurs.
"Assignee": as defined in subsection 15.6(c).
"Attributable Debt": as to any particular lease under which either
the U.S. Borrower or any Restricted Subsidiary is at the time liable as
lessee for a term of more than 12 months and at any date as of which the
amount thereof is to be determined, the total net obligations of the lessee
for rental payments during the remaining term of the lease (excluding any
period for which such lease has been extended or may, at the option of the
lessor, be extended), discounted from the respective due dates thereof to
such determination date at a rate per annum equivalent to the greater of
(a) the weighted-average Yield to Maturity of the Outstanding Securities,
such average being weighted by the principal amount of the Outstanding
Securities of each series or, in the case of Original Issue Discount
Securities, such amount to be the principal amount of such outstanding
Original Issue Discount Securities that would be due and payable as of the
date of such determination upon a declaration of acceleration of the
maturity thereof pursuant to the Indenture and (b) the interest rate
inherent in such lease (as determined in good faith by the U.S. Borrower),
- ----------------
* With respect to any nationally recognized rating agency other than Moody's
and S&P, such rating agency's Ratings which the U.S. Borrower and the
Administrative Agent agree are the equivalent of the Ratings of S&P and
Moody's set forth in this column.
<PAGE>
7
both to be compounded semi-annually. The net total obligations of the
lessee for rental payments under any such lease for any such period shall
be the aggregate amount of the rent payable by the lessee with respect to
such period after excluding amounts required to be paid on account of
maintenance and repairs, services, insurance, taxes, assessments, water
rates and similar charges and contingent rents (such as those based on
sales or monetary inflation). If any lease is terminable by the lessee upon
the payment of a penalty and under the terms of the lease the termination
right is not exercisable until after the determination date and the amount
of such penalty discounted to the determination date as provided above is
less than the net amount of rentals payable after the time as of which such
termination could occur (the "termination time") discounted to the
determination date as provided above, then such discounted penalty amount
shall be used instead of such discounted amount of net rentals payable
after the termination time in calculating the Attributable Debt for such
lease. If any lease is terminable by the lessee upon the payment of a
penalty and such termination right is exercisable on the determination date
and the amount of the net rentals payable under such lease after the
determination date discounted to the determination date as provided above
is greater than the amount of such penalty, the "Attributable Debt" for
such lease as of such determination date shall be equal to the amount of
such penalty.
"Available Foreign Currencies": Deutsche Marks, Pounds Sterling,
French Francs and any other available and freely-convertible non-U.S.
Dollar currency selected by the U.S. Borrower and approved by the
Administrative Agent and the Majority Multicurrency Lenders in the manner
described in subsection 15.1(b).
"Available Multicurrency Commitment": as at any date of determination
with respect to any Multicurrency Lender (after giving effect to the making
and payment of any Revolving Credit Loans required to be made on such date
pursuant to subsection 2.5), an amount in U.S. Dollars equal to the lesser
of (a) the excess, if any, of (i) the amount of such U.S. Dollar Equivalent
of the Multicurrency Lender's Multicurrency Commitment in effect on such
date over (ii) the Aggregate Multicurrency Outstandings of such
Multicurrency Lender on such date and (b) the excess, if any, of (i) the
amount of such Lender's Revolving Credit Commitment in effect on such date
over (ii) the Aggregate Committed Outstandings of such Lender on such date.
"Available Revolving Credit Commitment": as at any date of
determination with respect to any Lender (after giving effect to the making
and payment of any Revolving Credit Loans required to be made on such date
pursuant to subsection 2.5), an amount in U.S. Dollars equal to the excess,
if any, of (a) the amount of such Lender's Revolving Credit Commitment in
effect on such date over (b) the Aggregate Committed Outstandings of such
Lender on such date.
"Available Swing Line Participation Commitment": as at any date of
determination with respect to any Lender, an amount in U.S. Dollars equal
to the excess, if any, of (a) the amount of such Lender's Revolving Credit
Commitment in effect on such date, over (b) the sum of (i) the aggregate
unpaid principal amount of
<PAGE>
8
such Lender's Revolving Credit Loans on such date, (ii) the U.S. Dollar
Equivalent of the Aggregate Multicurrency Outstandings of such Lender on
such date and (iii) the U.S. Dollar Equivalent of the Aggregate Alternate
Currency Outstandings of such Lender on such date.
"Bank of America Illinois": Bank of America Illinois, an Illinois
banking corporation.
"Benefitted Lender": as defined in subsection 15.7.
"Board": the Board of Governors of the Federal Reserve System (or any
successor thereto).
"Borrowers": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified in a notice pursuant to
subsection 2.3, 3.2, 4.2 or 5.3 as a date on which a Borrower requests the
Lenders to make Loans hereunder or, with respect to Alternate Currency
Loans, the date on which an Alternate Currency Borrower requests Alternate
Currency Lenders to make Alternate Currency Loans to such Alternate
Currency Borrower pursuant to the Alternate Currency Facility to which such
Alternate Currency Borrower and Alternate Currency Lenders are parties.
"Business Day": (a) when such term is used in respect of a day on
which a Loan in an Available Foreign Currency or Alternate Currency is to
be made, a payment is to be made in respect of such Loan, an Exchange Rate
is to be set in respect of such Available Foreign Currency or Alternate
Currency or any other dealing in such Available Foreign Currency or
Alternate Currency is to be carried out pursuant to this Agreement, such
term shall mean a London Banking Day which is also a day on which banks are
open for general banking business in the city which is the principal
financial center of the country of issuance of such Available Foreign
Currency or Alternate Currency, (b) when such term is used to describe a
day on which a borrowing, payment or interest rate determination is to be
made in respect of a LIBO Rate CAF Advance, such day shall be a London
Banking Day and (c) when such term is used in any context in this Agreement
(including as described in the foregoing clauses (a) and (b)), such term
shall mean a day which, in addition to complying with any applicable
requirements set forth in the foregoing clause (a) and (b), is a day other
than a Saturday, Sunday or other day on which commercial banks in New York
City are authorized or required by law to close.
"CAF Advance": each CAF Advance made pursuant to subsection 4.1.
"CAF Advance Availability Period": the period from and including the
Effective Date to and including the date which is 7 days prior to the
Revolving Credit Termination Date.
<PAGE>
9
"CAF Advance Confirmation": each confirmation by the U.S. Borrower of
its acceptance of CAF Advance Offers, which confirmation shall be
substantially in the form of Exhibit D and shall be delivered to the
Administrative Agent by facsimile transmission.
"CAF Advance Interest Payment Date": as to each CAF Advance, each
interest payment date specified by the U.S. Borrower for such CAF Advance
in the related CAF Advance Request.
"CAF Advance Maturity Date": as to any CAF Advance, the date
specified by the U.S. Borrower pursuant to paragraph 4.2(d)(ii) in its
acceptance of the related CAF Advance Offer.
"CAF Advance Offer": each offer by a Lender to make CAF Advances
pursuant to a CAF Advance Request, which offer shall contain the
information specified in Exhibit C and shall be delivered to the
Administrative Agent by telephone, immediately confirmed by facsimile
transmission.
"CAF Advance Request": each request by the U.S. Borrower for Lenders
to submit bids to make CAF Advances, which request shall contain the
information in respect of such requested CAF Advances specified in Exhibit
B and shall be delivered to the Administrative Agent in writing, by
facsimile transmission, or by telephone, immediately confirmed by facsimile
transmission.
"Case": Case Corporation, a Delaware corporation.
"Case Credit Australia": Case Credit Australia Pty. Ltd., an
Australian corporation and a wholly-owned Subsidiary of the U.S. Borrower.
"Case Credit Canada": Case Credit Ltd., a company organized under the
laws of the province of Alberta, Canada and a wholly-owned Subsidiary of
the U.S. Borrower.
"Case Credit Debt": as at any date of determination with respect to
the U.S. Borrower and its Consolidated Subsidiaries, an amount equal to the
excess of (a) the sum (without duplication) of (i) all Indebtedness (other
than Indebtedness referred to in clauses (e) through (h) of the definition
thereof) of the U.S. Borrower and its Consolidated Subsidiaries which in
accordance with GAAP would be included as a liability on a consolidated
balance sheet (excluding the notes thereto) of the U.S. Borrower and its
Consolidated Subsidiaries as at such date, (ii) all Guarantee Obligations
of the U.S. Borrower and its Consolidated Subsidiaries in respect of
Indebtedness (other than Indebtedness referred to in clauses (e) through
(h) of the definition thereof) as at such date and (iii) all obligations of
the U.S. Borrower or any of its Subsidiaries incurred in connection with
any securitization or other asset-backed financing of Receivables as at
such date to the extent such obligations are excluded from the definition
of Permitted Securitization Obligations as at such date by operation
<PAGE>
10
of the proviso to the definition thereof, minus (b) to the extent included
in clause (a) above, the sum (without duplication) of (A) Guarantee
Obligations of the U.S. Borrower or any of its Subsidiaries in respect of
Indebtedness of Subsidiaries of the U.S. Borrower and (B) Permitted
Securitization Obligations as at such date; provided, that Case Credit Debt
shall in any event exclude Excluded Credit Card Guarantee Obligations.
"Chase": The Chase Manhattan Bank, a New York banking corporation.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Commitments": the collective reference to the Revolving Credit
Commitments and the Multicurrency Commitments.
"Committed Outstandings Percentage": on any date with respect to any
Lender, the percentage which the Adjusted Aggregate Committed Outstandings
of such Lender constitutes of the Adjusted Aggregate Committed Outstandings
of all Lenders.
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with the U.S. Borrower within the meaning of
Section 4001 of ERISA or is part of a group which includes the U.S.
Borrower and which is treated as a single employer under Section 414 of the
Code.
"Consolidated Interest Expense": for any period with respect to the
U.S. Borrower and its Consolidated Subsidiaries, the aggregate amount of
interest expense of the U.S. Borrower and its Consolidated Subsidiaries
during such period determined in accordance with GAAP.
"Consolidated Lease Expense": for any period with respect to the U.S.
Borrower and its Consolidated Subsidiaries, all amounts paid or accrued
during such period under operating leases in respect of real property by
the U.S. Borrower and its Consolidated Subsidiaries.
"Consolidated Net Income": with respect to the U.S. Borrower and its
Consolidated Subsidiaries for any period, consolidated net income of the
U.S. Borrower and its Consolidated Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP.
"Consolidated Net Tangible Assets": as at any date of determination,
the total assets appearing on the most recent consolidated balance sheet of
the U.S. Borrower and its Consolidated Subsidiaries as at the end of the
most recent fiscal quarter of the U.S. Borrower ending not more than 135
days prior to such date, determined in accordance with GAAP, minus the
amount of Intangible Assets included in such consolidated balance sheet as
at the end of such fiscal quarter.
<PAGE>
11
"Consolidated Net Worth": as at any date of determination with respect
to the U.S. Borrower, all items which in conformity with GAAP would be
included under shareholders' equity on a consolidated balance sheet of the
U.S. Borrower and its Consolidated Subsidiaries as at such date, plus any
amounts included on such consolidated balance sheet in respect of any
preferred stock of the U.S. Borrower and any Preferred Securities
outstanding from time to time (except to the extent that any such preferred
stock is mandatorily redeemable at the option of the holder thereof or upon
the happening of any contingency on or prior to the Revolving Credit
Termination Date).
"Consolidated Subsidiary": with respect to the U.S. Borrower, any
Subsidiary of the U.S. Borrower which in accordance with GAAP would be
consolidated in the financial statements of the U.S. Borrower.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Conversion Date": any date on which either (a) an Event of Default
under Section 13(f) has occurred or (b) the Commitments shall have been
terminated and/or the Loans shall have been declared immediately due and
payable pursuant to Section 13.
"Conversion Sharing Percentage": on any date with respect to any
Lender and any Loans of such Lender outstanding in any currency other than
U.S. Dollars, the percentage of such Loans such that, after giving effect
to the conversion of such Loans to U.S. Dollars and the purchase and sale
by such Lender of participating interests as contemplated by subsection
15.8, the Committed Outstandings Percentage of such Lender will equal such
Lender's Revolving Credit Commitment Percentage on such date (calculated
immediately prior to giving effect to any termination or expiration of the
Revolving Credit Commitments on the Conversion Date).
"Converted Loans: as defined in subsection 15.8(a).
"Credit Card Program": the private label credit card program
sponsored by the U.S. Borrower that is funded and serviced by NationsBank
of Delaware, N.A., pursuant to which the U.S. Borrower provides full
recourse via a letter of credit issued for the benefit of, or otherwise
guarantees, NationsBank of Delaware, N.A. for unpaid amounts owing by the
cardholders thereunder.
"CSI": Chase Securities Inc.
"Dealer": any Person who has been authorized by Case or any of its
Subsidiaries to sell equipment distributed by Case or any of its
Subsidiaries pursuant to a dealer or distributor agreement or any Person
who has executed a rental yard
<PAGE>
12
purchase money agreement or other types of financing agreement with Case or
any of its Subsidiaries.
"Default": any of the events specified in Section 13 prior to the
satisfaction of any requirement for the giving of notice, the lapse of
time, or both, or any other condition.
"Dollars", "U.S. Dollars" and "$": dollars in lawful currency of the
United States of America.
"EBIT": for any period with respect to the U.S. Borrower and its
Consolidated Subsidiaries, Consolidated Net Income of the U.S. Borrower and
its Consolidated Subsidiaries for such period, plus, to the extent deducted
in determining such Consolidated Net Income for such period, the sum of (a)
taxes and (b) interest expense, plus or minus, to the extent deducted or
added, respectively, in determining such Consolidated Net Income for such
period, any income, gain or loss of a non-cash nature.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Effective Date": the date on which the conditions precedent put
forth in Subsection 9.1 shall be satisfied.
"Eurocurrency Liabilities": at any time, all reserve requirements in
effect at such time (including, without limitation, basic, supplemental,
marginal and emergency reserves under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto) dealing
with reserve requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board)
maintained by a member bank of the Federal Reserve System.
"Eurocurrency Rate": with respect to each Interest Period pertaining
to a Multicurrency Loan, the Eurocurrency Rate determined for such Interest
Period and the Available Foreign Currency in which such Multicurrency Loan
is denominated in the manner set forth in the Administrative Schedule.
"Eurodollar Loans": Revolving Credit Loans the rate of interest
applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each Interest Period pertaining to
a Eurodollar Loan, the rate per annum equal to the average (rounded upward
to the nearest 1/16th of 1%) of the respective rates notified to the
Administrative Agent by each of the Reference Lenders as the rate at which
such Reference Lender is offered Dollar deposits at or about 10:00 a.m.,
New York City time, two Business Days prior to the beginning of such
Interest Period,
<PAGE>
13
(a) in the interbank eurodollar market where the eurodollar and
foreign currency exchange operations in respect of its Eurodollar
Loans then are being conducted,
(b) for delivery on the first day of such Interest Period,
(c) for the number of days contained therein, and
(d) in an amount comparable to the amount of its Eurodollar Loan
to be outstanding during such Interest Period.
"Event of Default": any of the events specified in Section 13,
provided that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"Exchange Rate": with respect to any non-U.S. Dollar currency on any
date, the rate at which such currency may be exchanged into U.S. Dollars,
as set forth on such date on the relevant Reuters currency page at or about
11:00 A.M., London time, on such date. In the event that such rate does not
appear on any Reuters currency page, the "Exchange Rate" with respect to
such non-U.S. Dollar currency shall be determined by reference to such
other publicly available service for displaying exchange rates as may be
agreed upon by the Administrative Agent and the U.S. Borrower or, in the
absence of such agreement, such "Exchange Rate" shall instead be the
Administrative Agent's spot rate of exchange in the interbank market where
its foreign currency exchange operations in respect of such non-U.S. Dollar
currency are then being conducted, at or about 10:00 A.M., local time, on
such date for the purchase of U.S. Dollars with such non-U.S. Dollar
currency, for delivery two Business Days later; provided, that if at the
time of any such determination, no such spot rate can reasonably be quoted,
the Administrative Agent may use any reasonable method as it deems
applicable to determine such rate, and such determination shall be
conclusive absent manifest error.
"Excluded Credit Card Guarantee Obligations": as at any date of
determination, 93% of the outstanding amount of obligations of cardholders
under the Credit Card Program with respect to which there is recourse to
the U.S. Borrower pursuant to the Credit Card Program.
"Existing Credit Agreement": as defined in the recitals hereto.
"Existing Lenders": as defined in the recitals hereto.
"Existing Revolving Credit Loans": as defined in Part A of Annex A.
"Extension of Credit": as to any Lender, the making of a Loan by such
Lender. It is expressly understood and agreed that the following do not
constitute Extensions of Credit for purposes of this Agreement: (a) the
conversions and
<PAGE>
14
continuations of Revolving Credit Loans as or to Eurodollar Loans or ABR
Loans pursuant to subsection 7.2, (b) the continuation of Multicurrency
Loans for additional Interest Periods and (c) the continuation of Alternate
Currency Loans for additional interest periods.
"Facility Fee Rate": the rate per annum, determined from time to time
based upon the Ratings in effect by two then nationally recognized rating
agencies selected by the U.S. Borrower (at least one of which shall be
Moody's or S&P), set forth under the column heading below opposite such
Ratings:
Ratings
------- Facility Fee Rate
S&P/Moody's/*/ (in percentages)
-------------- -----------------
A/A2 (or higher) 0.070%
A-/A3 0.080%
BBB+/Baa1 0.100%
BBB/Baa2 0.125%
BBB-/Baa3 0.175%
BB+/Ba1 0.250%
BB/Ba2 (or lower) 0.300%
; provided that, in the event that the Ratings of such then nationally
recognized rating agencies do not coincide, the Facility Fee Rate set forth
opposite the higher of such Ratings will apply; provided, further, that if
at any time an event occurs which results in there being no Ratings or only
one Rating in effect, not later than 30 days after the date on which such
event occurs (if only one Rating or no Rating remains in effect), a new
Facility Fee Rate will be determined in a manner to be mutually agreed upon
by the Administrative Agent and the U.S. Borrower and consented to by the
Lenders, and until such new Facility Fee Rate shall be so agreed upon, the
Facility Fee Rate will be deemed to be the Facility Fee Rate in effect
immediately prior to the date on which such event occurs.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"Fixed Charge Coverage Ratio": for any period, the ratio of (a) EBIT
of the U.S. Borrower and its Consolidated Subsidiaries for such period plus
Consolidated Lease Expense (but only to the extent the amount of such
Consolidated Lease Expense was deducted in calculating EBIT) of the U.S.
Borrower and its Consolidated Subsidiaries for such period to (b) the sum
of (i) Consolidated Interest Expense for
- ----------------
/*/ With respect to any nationally recognized rating agency other than Moody's
and S&P, such rating agency's Ratings which the U.S. Borrower and the
Administrative Agents agree are the equivalent of the Ratings of S&P and
Moody's set forth in this column.
<PAGE>
15
such period, (ii) Consolidated Lease Expense for such period and (iii) all
amounts paid by the U.S. Borrower or any of its Subsidiaries to Case during
such period in respect of income taxes.
"Fixed Rate CAF Advance": any CAF Advance made pursuant to a Fixed
Rate CAF Advance Request.
"Fixed Rate CAF Advance Request": any CAF Advance Request requesting
the Lenders to offer to make CAF Advances at a fixed rate (as opposed to a
rate composed of the LIBO Rate plus (or minus) a margin).
"Foreign Subsidiary Borrower": each Subsidiary of the U.S. Borrower
organized under the laws of a jurisdiction outside the United States listed
as a Foreign Subsidiary Borrower in Schedule II as amended from time to
time in accordance with subsection 15.1(b)(i).
"Foreign Subsidiary Opinion": with respect to any Foreign Subsidiary
Borrower, a legal opinion of counsel to such Foreign Subsidiary Borrower
addressed to the Administrative Agent and the Lenders concluding that such
Foreign Subsidiary Borrower and the Loan Documents to which it is a party
substantially comply with the matters listed on Exhibit J, with such
assumptions, qualifications and deviations therefrom as the Administrative
Agent shall approve (such approval not to be unreasonably withheld).
"Funding Commitment Percentage": as at any date of determination
(after giving effect to the making and payment of any Loans made on such
date pursuant to subsection 2.5), with respect to any Lender, that
percentage which the Available Revolving Credit Commitment of such Lender
then constitutes of the Aggregate Available Revolving Credit Commitments.
"GAAP": generally accepted accounting principles in the United States
of America in effect on the date hereof.
"Governmental Authority": any nation or government, any state,
province or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of
or pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
without duplication, any obligation of (a) the guaranteeing person or (b)
another Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has issued
a reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or other obligations (the "primary obligations") of any other third Person
(the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any such obligation of the guaranteeing
person, whether or not contingent, (i) to purchase any such primary
<PAGE>
16
obligation or any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (A) for the purchase or payment
of any such primary obligation or (B) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless the
owner of any such primary obligation against loss in respect thereof;
provided, however, that the term Guarantee Obligation shall not include (i)
endorsements of instruments for deposit or collection in the ordinary
course of business, (ii) obligations in respect of trade liabilities
incurred in the ordinary course of business and payable in accordance with
customary practices or (iii) Excluded Credit Card Guarantee Obligations.
The amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (a) an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such guaranteeing
person may be liable pursuant to the terms of the instrument embodying such
Guarantee Obligation, unless such primary obligation and the maximum amount
for which such guaranteeing person may be liable are not stated or
determinable, in which case the amount of such Guarantee Obligation shall
be such guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by the U.S. Borrower in good faith.
"Indebtedness": of any Person at any date, without duplication, (a)
all indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than trade liabilities
incurred in the ordinary course of business and payable in accordance with
customary practices), (b) any other indebtedness of such Person which is
evidenced by a note, bond, debenture or similar instrument, (c) all
obligations of such Person under Financing Leases, (d) all obligations of
such Person in respect of acceptances issued or created for the account of
such Person, (e) all liabilities secured by any Lien on any property owned
by such Person even though such Person has not assumed or otherwise become
liable for the payment thereof, (f) all net liabilities of such Person in
respect of Interest Rate Agreements, (g) all Guarantee Obligations in
respect of Indebtedness referred to in clauses (a) through (f) (or any of
them) of this definition and (h) if such Person is the U.S. Borrower or any
of its Subsidiaries, all obligations of the U.S. Borrower or any such
Subsidiary incurred in connection with any securitization or other asset-
backed financing of Receivables to the extent such obligations are excluded
from the definition of Permitted Securitization Obligations by operation of
the proviso to the definition thereof. The parties hereto agree that the
amount of any Indebtedness which is issued at a discount to the face amount
thereof shall be equal to the accreted value of such Indebtedness from time
to time.
"Indenture": the indenture dated as of February 1, 1996, between the
U.S. Borrower, Case and The Bank of New York, as trustee.
<PAGE>
17
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intangible Assets": at any date of determination, the value (net of
any applicable reserves) as shown on or reflected in the most recent
consolidated balance sheet of the U.S. Borrower and its Consolidated
Subsidiaries as at the end of the most recent fiscal quarter of the U.S.
Borrower ending not more than 135 days prior to such date, prepared in
accordance with GAAP, of (a) all trade names, trademarks, licenses,
patents, copyrights, service marks, goodwill and other like intangibles;
(b) organizational and development costs; (c) deferred charges (other than
prepaid items, such as insurance, taxes, interest, commissions, rents,
deferred interest waiver, deferred financing fees, compensation and similar
items and tangible assets being amortized); and (d) unamortized debt
discount and expense, less unamortized premium.
"Interest Payment Date": (a) as to any ABR Loan, the last day of each
March, June, September and December to occur while such Loan is
outstanding, (b) as to any Eurodollar Loan or Multicurrency Loan having an
Interest Period of three months or less, the last day of such Interest
Period, (c) as to any Eurodollar Loan or Multicurrency Loan having an
Interest Period longer than three months, (i) each day which is three
months, or a whole multiple thereof, after the first day of such Interest
Period and (ii) the last day of such Interest Period and (d) as to any
Money Market Rate Swing Line Loan, the last day of the interest period with
respect thereto selected by the U.S. Borrower and the relevant Swing Line
Lender.
"Interest Period": with respect to any Eurodollar Loan or
Multicurrency Loan:
(a) initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such Eurodollar Loan or
Multicurrency Loan and ending one, two, three or six months thereafter, as
selected by the relevant Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto; and
(b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan or
Multicurrency Loan and ending one, two, three or six months thereafter, as
selected by the relevant Borrower by irrevocable notice to the
Administrative Agent not less than three Business Days prior to the last
day of the then current Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest Periods
are subject to the following:
(i) if any Interest Period pertaining to a Eurodollar Loan
or Multicurrency Loan would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day
<PAGE>
18
unless the result of such extension would be to carry such Interest
Period into another calendar month in which event such Interest Period
shall end on the immediately preceding Business Day;
(ii) any Interest Period applicable to a Eurodollar Loan or
Multicurrency Loan that would otherwise extend beyond the Revolving
Credit Termination Date shall end on the Revolving Credit Termination
Date;
(iii) any Interest Period pertaining to a Eurodollar Loan
or Multicurrency Loan that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
(iv) each Borrower shall select Interest Periods so as not
to require a payment or prepayment of any Eurodollar Loan or
Multicurrency Loan during an Interest Period for such Eurodollar Loan
or Multicurrency Loan.
"Interest Rate Agreement": any interest rate protection agreement,
interest rate future, interest rate option, interest rate cap or other
interest rate hedge arrangement, to or under which the U.S. Borrower or any
Subsidiary thereof is a party or a beneficiary.
"Judgment Currency": as defined in subsection 15.18(b).
"Lenders": as defined in the preamble hereto.
"LIBO Rate": in respect of any LIBO Rate CAF Advance, the London
interbank offered rate for deposits in Dollars for the period commencing on
the date of such CAF Advance and ending on the CAF Advance Maturity Date
with respect thereto which appears on Telerate Page 3750 as of 11:00 A.M.,
London time, two Business Days prior to the beginning of such period.
"LIBO Rate CAF Advance": any CAF Advance made pursuant to a LIBO Rate
CAF Advance Request.
"LIBO Rate CAF Advance Request": any CAF Advance Request requesting
the Lenders to offer to make CAF Advances at an interest rate equal to the
LIBO Rate plus (or minus) a margin.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention agreement
and any Financing Lease having substantially the same economic effect as
any of the foregoing).
<PAGE>
19
"Loan Documents": the collective reference to this Agreement, any
Revolving Credit Note and any document or instrument evidencing or
governing any Alternate Currency Facility.
"Loans": the collective reference to the Revolving Credit Loans, the
Swing Line Loans, the CAF Advances, the Multicurrency Loans and the
Alternate Currency Loans.
"Loans to be Converted": as defined in subsection 15.8(a).
"London Banking Day": any day on which banks in London are open for
general banking business, including dealings in foreign currency and
exchange.
"Majority Lenders": (a) at any time prior to the termination of the
Revolving Credit Commitments, Lenders, the Revolving Credit Commitment
Percentages of which aggregate at least 51%; and (b) at any time after the
termination of the Revolving Credit Commitments, Lenders whose Aggregate
Total Outstandings aggregate at least 51% of the Aggregate Total
Outstandings of all Lenders; provided that for purposes of this definition
the Aggregate Total Outstandings of each Lender shall be adjusted up or
down so as to give effect to any participations purchased or sold pursuant
to subsection 15.8.
"Majority Multicurrency Lenders": at any time, Multicurrency Lenders
the Multicurrency Commitment Percentages of which aggregate at least 51%.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise) of the
U.S. Borrower and its Consolidated Subsidiaries taken as a whole or (b) the
ability of the U.S. Borrower to perform its obligations under this
Agreement or any of the other Loan Documents or the rights or remedies of
the Administrative Agent or the Lenders hereunder or thereunder.
"Material Subsidiary": any Subsidiary of the U.S. Borrower the assets
or revenues (excluding inter-company receivables and revenues that would be
eliminated upon consolidation in accordance with GAAP) of which are, at the
time of determination, equal to or greater than ten percent of the assets
or revenues (excluding inter-company receivables and revenues that would be
eliminated upon consolidation in accordance with GAAP), respectively, of
the U.S. Borrower at such time.
"Money Market Rate": as defined in subsection 3.2(b).
"Money Market Rate Swing Line Loan": as defined in subsection 3.2(b).
"Moody's": Moody's Investors Service, Inc. or any successor thereto.
<PAGE>
20
"Multicurrency Commitment": as to any Multicurrency Lender at any
time, its obligation to make Multicurrency Loans to Foreign Subsidiary
Borrowers in an aggregate amount in Available Foreign Currencies of which
the U.S. Dollar Equivalent does not exceed at any time outstanding the
amount set forth opposite such Multicurrency Lender's name in Schedule I
under the heading "Multicurrency Commitment", as such amount may be reduced
from time to time as provided in subsection 5.4 and the other applicable
provisions hereof.
"Multicurrency Commitment Percentage": as to any Multicurrency Lender
at any time, the percentage which such Multicurrency Lender's Multicurrency
Commitment then constitutes of the aggregate Multicurrency Commitments (or,
if the Multicurrency Commitments have terminated or expired, the percentage
which (a) the U.S. Dollar Equivalent of the Aggregate Multicurrency
Outstandings of such Multicurrency Lender at such time constitutes of (b)
the U.S. Dollar Equivalent of the Aggregate Multicurrency Outstandings of
all Multicurrency Lenders at such time).
"Multicurrency Lender": each Lender having an amount greater than
zero set forth opposite such Lender's name in Schedule I under the heading
"Multicurrency Commitment."
"Multicurrency Loans": as defined in subsection 5.1.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Non-Excluded Taxes": as defined in subsection 7.11(a).
"Non-Multicurrency Lender": each Lender which is not a Multicurrency
Lender.
"Notice of Alternate Currency Outstandings": with respect to each
Alternate Currency Facility Agent, a notice from such Alternate Currency
Facility Agent containing the information, delivered to the Person, in the
manner and by the time, specified for a Notice of Alternate Currency
Outstandings in the Administrative Schedule.
"Notice of Multicurrency Loan Borrowing": with respect to a
Multicurrency Loan, a notice from the Foreign Subsidiary Borrower in
respect of such Loan, containing the information in respect of such Loan
and delivered to the Person, in the
<PAGE>
21
manner and by the time, specified for a Notice of Multicurrency Loan
Borrowing in respect of the currency of such Loan in the Administrative
Schedule.
"Notice of Multicurrency Loan Continuation": with respect to a
Multicurrency Loan, a notice from the Foreign Subsidiary Borrower in
respect of such Loan, containing the information in respect of such Loan
and delivered to the Person, in the manner and by the time, specified for a
Notice of Multicurrency Loan Continuation in respect of the currency of
such Loan in the Administrative Schedule.
"Obligations": collectively, the unpaid principal of and interest on
the Loans and all other obligations and liabilities of (a) each Foreign
Subsidiary Borrower under this Agreement and the other Loan Documents and
(b) each Alternate Currency Borrower under any Alternate Currency Facility
to which it is a party and under this Loan Agreement and the other Loan
Documents (including, without limitation, interest accruing at the then
applicable rate provided in this Agreement or any other applicable Loan
Document after the maturity of the Loans and interest accruing at the then
applicable rate provided in this Agreement or any other applicable Loan
Document after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating
to the U.S. Borrower, whether or not a claim for post-filing or post-
petition interest is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with,
this Agreement, the Revolving Credit Notes, the other Loan Documents or any
other document made, delivered or given in connection therewith, in each
case whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Administrative
Agent or to the Lenders that are required to be paid by any Borrower
pursuant to the terms of this Agreement or any other Loan Document).
"Outstanding Securities": as defined in the Indenture.
"Original Issue Discount Security": as defined in the Indenture.
"Participants": as defined in subsection 15.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA.
"Permitted Securitization Obligations": obligations of the U.S.
Borrower or any of its Subsidiaries incurred in connection with any
securitization or other asset-backed financing of Receivables; provided
that, if (a) there is recourse to the U.S. Borrower or any of its
Subsidiaries (other than a Special Purpose Subsidiary) for failures to pay
or otherwise perform any such obligations, (b) such failures arise as a
result of credit defaults by the debtors in respect of such Receivables and
(c) such recourse is not limited to the Receivables and the Receivables
Related Assets (or undivided or beneficial interests in such Receivables
and Receivables Related Assets) which are the subject of such
securitization or other asset-backed financing, then such obligations shall
not be considered "Permitted Securitization Obligations" within the meaning
of this definition to the extent that, in accordance with GAAP, such
obligations would be required to be included as a liability on a
consolidated balance sheet of the U.S. Borrower and its Consolidated
Subsidiaries.
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22
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the U.S. Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Preferred Securities": any preferred securities issued by a
financing entity (i.e. partnership, trust, limited liability company, etc.)
used exclusively to raise capital for the U.S. Borrower having the
following structural characteristics: (a) the financing entity lends the
proceeds from the issuance of preferred securities to the U.S. Borrower in
exchange for subordinated debt securities (which debt securities are
subordinated to all Indebtedness of the U.S. Borrower of the types
described in clauses (a) and (b) of the definition of Indebtedness set
forth in subsection 1.1, (b) the subordinated debt securities issued by the
U.S. Borrower and corresponding preferred securities issued by the
financing entity have a maturity of at least ten years, (c) interest
payments on the subordinated debt securities may be deferred at the U.S.
Borrower's discretion, and (d) neither the subordinated debt securities nor
the corresponding preferred securities shall contain cross-default or
cross-acceleration provisions to Indebtedness of the U.S. Borrower of the
types described in clauses (a) and (b) of the definition of Indebtedness
set forth in subsection 1.1.
"Qualified Credit Facility": a credit facility (a) providing for one
or more Alternate Currency Lenders to make loans denominated in an
Alternate Currency to an Alternate Currency Borrower, (b) providing for
such loans to bear interest at a rate or rates determined by the U.S.
Borrower and such Alternate Currency Lender or Alternate Currency Lenders
and (c) otherwise conforming to the requirements of Section 6.
"Quotation Day": in respect of the determination of the Eurocurrency
Rate for any Interest Period for Multicurrency Loans in any Available
Foreign Currency, the day on which quotations would ordinarily be given by
prime banks in the London interbank market (or, if such Available Foreign
Currency is Sterling, in the Paris interbank market) for deposits in such
Available Foreign Currency for delivery on the first day of such Interest
Period; provided, that if quotations would ordinarily be given on more than
one date, the Quotation Day for such Interest Period shall be the last of
such dates. On the date hereof, the Quotation Day in respect of any
Interest Period for any Available Foreign Currency is customarily the last
London Business Day prior to the beginning of such Interest Period which is
(a) at least two London Banking Days prior to the beginning of such
Interest Period and (b) a day on which banks are open for general banking
business in the city which is the principal financial center of the country
of issue of such Available Foreign Currency (and, in the case of Sterling,
in Paris).
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23
"Ratings": the actual or implied senior long-term unsecured non-
credit-enhanced debt ratings of the U.S. Borrower in effect from time to
time by Moody's, S&P or any other then nationally recognized rating agency.
"Receivable": any right of payment from or on behalf of any obligor,
whether constituting an account, chattel paper, instrument, general
intangible or otherwise, arising from the financing by the U.S. Borrower or
any of its Subsidiaries of property or services, and monies due thereunder,
security interests in the property and services financed thereby and any
and all other related rights.
"Receivables Related Assets": in connection with any securitization
or other asset-backed financing of, or other sale, transfer or disposition
of, Receivables, the collective reference to: (a) any rights arising under
the documentation governing or relating to such Receivables (including
rights in respect of Liens securing such Receivables and other credit
support in respect of such Receivables), (b) any proceeds of such
Receivables and any lockboxes or accounts in which such proceeds are
deposited, (c) spread accounts and other similar accounts (and any amounts
on deposit therein) established in connection with such securitization or
asset-backed financing and (d) any warranty, indemnity, dilution and other
intercompany claim arising out of the documentation evidencing such
securitization or asset-backed financing.
"Reference Lenders": Chase, Morgan Guaranty Trust Company of New York
and Credit Suisse.
"Refunded Swing Line Loans": as defined in subsection 3.4.
"Register": as defined in subsection 15.6(d).
"Regulation U": Regulation U of the Board as in effect from time to
time.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the notice period is waived
under any of subsections .11 through .23 of PBGC Reg. (S) 4043 or any
successor regulation thereto.
"Requested Alternate Currency Loans": as defined in subsection
2.5(b).
"Requested Multicurrency Loans": as defined in subsection 2.5(a).
"Requirement of Law": as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule, guideline or regulation or
determination of an arbitrator or a court or other Governmental Authority,
in each case applicable to or binding upon such Person or
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24
any of its material property or to which such Person or any of its material
property is subject.
"Responsible Officer": with respect to a Borrower, the President or
any Vice President of such Borrower or, with respect to financial matters,
the Chief Financial Officer, the Treasurer, the Controller, any Assistant
Treasurer or any Assistant Controller of such Borrower.
"Restricted Subsidiary" means each Subsidiary of the Company other
than Securitization Subsidiaries and Subsidiaries of Securitization
Subsidiaries.
"Revolving Credit Commitment": as to any Lender at any time, its
obligation to make Revolving Credit Loans to, and/or participate in Swing
Line Loans made to, the U.S. Borrower in an aggregate amount not to exceed
at any time outstanding the U.S. Dollar amount set forth opposite such
Lender's name in Schedule I under the heading "Revolving Credit
Commitment", as such amount may be reduced from time to time pursuant to
subsection 2.4 and the other applicable provisions hereof.
"Revolving Credit Commitment Percentage": as to any Lender at any
time, the percentage which such Lender's Revolving Credit Commitment then
constitutes of the aggregate Revolving Credit Commitments of all Lenders
(or, if the Revolving Credit Commitments have terminated or expired, the
percentage which (a) the Aggregate Revolving Credit Outstandings of such
Lender at such time then constitutes of (b) the Aggregate Revolving Credit
Outstandings of all Lenders at such time).
"Revolving Credit Commitment Period": the period from and including
the Effective Date to but not including the Revolving Credit Termination
Date, or such earlier date on which the Revolving Credit Loans shall
terminate as provided herein.
"Revolving Credit Loan": as defined in subsection 2.1.
"Revolving Credit Note": as defined in subsection 2.2(e).
"Revolving Credit Termination Date": the date which is five years
after the Effective Date.
"Securities Act": the Securities Act of 1933, as amended.
"Securitization Subsidiary": a Subsidiary of the U.S. Borrower (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 U.S. Borrower or any Restricted
Subsidiary, or (ii) subjects any property or assets of the U.S. Borrower 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
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25
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": any transaction or series of
transactions that have been or may be entered into by the U.S. Borrower or
any of its Subsidiaries in connection with or reasonably related to a
transaction or series of transactions in which the U.S. Borrower or any of
its Subsidiaries may sell, convey or otherwise transfer to (a) a
Securitization Subsidiary or (b) any other Person, or may grant a security
interest in, any Receivables or asset-backed securities or interest therein
(whether such Receivables or securities are then existing or arising in the
future) of the U.S. Borrower 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.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"S&P": Standard & Poor's Ratings Group or any successor thereto.
"Special Purpose Subsidiary": any wholly-owned Subsidiary of the U.S.
Borrower (other than Case Credit Canada and Case Credit Australia) which
(a) is formed for the purpose of effecting any securitization or other
asset-backed financing of Receivables and engaging in other activities
reasonably related thereto and (b) is structured as a "bankruptcy-remote
subsidiary" in accordance with customary practices in the asset-backed
securitization market.
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through
one or more intermediaries, or both, by such Person. Unless otherwise
qualified, all references to a "Subsidiary" or to "Subsidiaries" in this
Agreement shall refer to a Subsidiary or Subsidiaries of the U.S. Borrower.
"Support Agreement": the Support Agreement, dated January 10, 1996,
between Case and the U.S. Borrower (without giving effect to any
modifications thereto unless otherwise agreed to by the Majority Lenders).
"Swing Line Commitment": as to each Swing Line Lender, in its
capacity as a Swing Line Lender, its obligation to make Swing Line Loans to
the U.S. Borrower in
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26
an aggregate principal amount not to exceed, at any one time outstanding,
the difference between (a) U.S.$75,000,000 and (b) the outstanding
principal amount of all Swing Line Loans of the other Swing Line Lender.
"Swing Line Lenders": the collective reference to Chase and Bank of
America Illinois, in their respective capacities as providers of the Swing
Line Loans.
"Swing Line Loans" and "Swing Line Loan": as defined in subsection
3.1.
"Swing Line Participation Percentage": as at any date of
determination with respect to any Lender, that percentage which the
Available Swing Line Participation Commitment of such Lender then
constitutes of the sum of the Available Swing Line Participation
Commitments of all Lenders.
"Tranche": the collective reference to Eurodollar Loans or
Multicurrency Loans the then current Interest Periods with respect to all
of which begin on the same date and end on the same later date (whether or
not such Loans shall originally have been made on the same day).
"Transferee": as defined in subsection 15.6(f).
"Type": as to any Revolving Credit Loan, its nature as an ABR Loan or
a Eurodollar Loan.
"U.S. Borrower": as defined in the preamble hereto.
"U.S. Dollar Equivalent": with respect to an amount denominated in
any currency other than U.S. Dollars, the equivalent in U.S. Dollars of
such amount determined at the Exchange Rate on the date of determination of
such equivalent. In making any determination of the U.S. Dollar Equivalent
for purposes of calculating the amount of Loans to be borrowed from the
respective Lenders on any Borrowing Date, the Administrative Agent shall
use the relevant Exchange Rate in effect on the date on which the interest
rate for such Loans is determined pursuant to the provisions of this
Agreement and the other Loan Documents.
"Yield to Maturity": as defined in the Indenture.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the Revolving Credit Notes, the other Loan Documents or any
certificate or other document made or delivered pursuant hereto.
(b) As used herein and in the Revolving Credit Notes and any other
Loan Document, and any certificate or other document made or delivered pursuant
hereto or thereto, accounting terms relating to the U.S. Borrower and its
Subsidiaries not defined in
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27
subsection 1.1 and accounting terms partly defined in subsection 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF REVOLVING CREDIT
COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit loans
(each, a "Revolving Credit Loan") in U.S. Dollars to the U.S. Borrower from time
to time during the Revolving Credit Commitment Period so long as after giving
effect thereto (i) the Available Revolving Credit Commitment of each Lender is
greater than or equal to zero and (ii) the Aggregate Total Outstandings of all
Lenders do not exceed the Aggregate Revolving Credit Commitments. During the
Revolving Credit Commitment Period the U.S. Borrower may use the Revolving
Credit Commitments by borrowing, prepaying the Revolving Credit Loans in whole
or in part, and reborrowing, all in accordance with the terms and conditions
hereof.
(b) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined
by the U.S. Borrower and notified to the Administrative Agent in accordance with
subsections 2.3 and 7.2, provided that no Revolving Credit Loan shall be made as
a Eurodollar Loan after the day that is one month prior to the Revolving Credit
Termination Date.
2.2 Repayment of Revolving Credit Loans; Evidence of Debt. (a) The
U.S. Borrower hereby unconditionally promises to pay to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Credit Loan of such Lender (whether made before or after the
termination or expiration of the Revolving Credit Commitments) on the Revolving
Credit Termination Date and on such other dates and in such other amounts as may
be required from time to time pursuant to this Agreement. The U.S. Borrower
hereby further agrees to pay interest on the unpaid principal amount of the
Revolving Credit Loans from time to time outstanding until payment thereof in
full at the rates per annum, and on the dates, set forth in subsection 7.1.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the U.S. Borrower to such
Lender resulting from each Revolving Credit Loan of such Lender from time to
time, including the amounts of principal and interest payable thereon and paid
to such Lender from time to time under this Agreement.
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28
(c) The Administrative Agent shall maintain the Register pursuant to
subsection 15.6(d), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Revolving Credit Loan made hereunder, the Type
thereof and each Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the U.S.
Borrower to each Lender hereunder in respect of the Revolving Credit Loans and
(iii) both the amount of any sum received by the Administrative Agent hereunder
from the U.S. Borrower in respect of the Revolving Credit Loans and each
Lender's share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 2.2(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the U.S. Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the U.S. Borrower to repay (with applicable interest) the
Revolving Credit Loans made to the U.S. Borrower by such Lender in accordance
with the terms of this Agreement.
(e) The U.S. Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the U.S. Borrower will execute and deliver
to such Lender a promissory note of the U.S. Borrower evidencing the Revolving
Credit Loans of such Lender, substantially in the form of Exhibit A with
appropriate insertions as to date and principal amount (each, a "Revolving
Credit Note"); provided, that the delivery of such Revolving Credit Notes shall
not be a condition precedent to the Effective Date.
2.3 Procedure for Revolving Credit Borrowing. The U.S. Borrower may
borrow under the Revolving Credit Commitments during the Revolving Credit
Commitment Period on any Business Day, provided that the U.S. Borrower shall
give the Administrative Agent irrevocable notice (which notice must be received
by the Administrative Agent prior to 11:00 a.m., New York City time, at least
(a) three Business Days prior to the requested Borrowing Date, if all or any
part of the requested Revolving Credit Loans are to be initially Eurodollar
Loans, or (b) one Business Day prior to the requested Borrowing Date,
otherwise), specifying in each case (i) the amount to be borrowed, (ii) the
requested Borrowing Date, (iii) whether the borrowing is to be of Eurodollar
Loans, ABR Loans or a combination thereof and (iv) if the borrowing is to be
entirely or partly of Eurodollar Loans, the amount of such Type of Loan and the
length of the initial Interest Periods therefor. Each borrowing under the
Revolving Credit Commitments (other than a borrowing under subsection 2.5) shall
be in an amount equal to (A) in the case of ABR Loans, except any ABR Loan made
pursuant to subsection 3.4, $10,000,000 or a whole multiple of $1,000,000 in
excess thereof (or, if the then Aggregate Available Revolving Credit Commitments
are less than $10,000,000, such lesser amount) and (B) in the case of Eurodollar
Loans, $10,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon
receipt of any such notice from the U.S. Borrower, the Administrative Agent
shall promptly notify each Lender thereof. Not later than 12:00 Noon, New York
City time, on each requested Borrowing Date each Lender shall make an amount
equal to its Funding Commitment Percentage of the principal amount of the
Revolving Credit Loans requested to be made on such Borrowing Date available to
the Administrative Agent at
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29
its office specified in subsection 15.2 in U.S. Dollars and in immediately
available funds. Except as otherwise provided in subsection 2.5 or 3.4 or in
Annex A with respect to Revolving Credit Loans to be made on the Effective Date,
the Administrative Agent shall on such date credit the account of the U.S.
Borrower on the books of such office with the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent.
2.4 Termination or Reduction of Revolving Credit Commitments. The
U.S. Borrower shall have the right, upon not less than three Business Days'
notice to the Administrative Agent, to terminate the Revolving Credit
Commitments or, from time to time, to reduce the amount of the Revolving Credit
Commitments; provided that no such termination or reduction shall be permitted
if, after giving effect thereto and to any prepayments of the Loans made on the
effective date thereof, either (a) the Aggregate Available Revolving Credit
Commitments would not be greater than or equal to zero or (b) the Available
Revolving Credit Commitments of any Lender would not be greater than or equal to
zero. Any such reduction shall be in an amount equal to $10,000,000 or a whole
multiple of $1,000,000 in excess thereof and shall reduce permanently the
Revolving Credit Commitments then in effect.
2.5 Borrowings of Revolving Credit Loans and Refunding of Loans. (a)
If on any Borrowing Date on which a Foreign Subsidiary Borrower has requested
the Multicurrency Lenders to make Multicurrency Loans (the "Requested
Multicurrency Loans"), (i) the aggregate principal amount of the Requested
Multicurrency Loans exceeds the Aggregate Available Multicurrency Commitments on
such Borrowing Date (before giving effect to the making and payment of any Loans
required to be made pursuant to this subsection 2.5 on such Borrowing Date) and,
(ii) the U.S. Dollar Equivalent of the amount of such excess is less than or
equal to the aggregate Available Revolving Credit Commitments of all Non-
Multicurrency Lenders (before giving effect to the making and payment of any
Loans pursuant to this subsection 2.5 on such Borrowing Date), each Non-
Multicurrency Lender shall make a Revolving Credit Loan to the U.S. Borrower on
such Borrowing Date, and the proceeds of such Revolving Credit Loans shall be
simultaneously applied to repay outstanding Revolving Credit Loans and/or
Alternate Currency Loans of the Multicurrency Lenders (as directed by the U.S.
Borrower) in each case in amounts such that, after giving effect to (1) such
borrowings and repayments and (2) the borrowing from the Multicurrency Lenders
of the Requested Multicurrency Loans, the Committed Outstanding Percentage of
each U.S. Lender will equal (as nearly as possible) its Revolving Credit
Commitment Percentage. To effect such borrowings and repayments, (x) not later
than 12:00 Noon, New York City time, on such Borrowing Date, the proceeds of
such Revolving Credit Loans shall be made available by each Non-Multicurrency
Lender to the Administrative Agent at its office specified in subsection 15.2 in
U.S. Dollars and in immediately available funds and the Administrative Agent
shall apply the proceeds of such Revolving Credit Loans toward repayment of
outstanding Revolving Credit Loans and/or Alternate Currency Loans of the
Multicurrency Lenders (as directed by the U.S. Borrower) and (y) concurrently
with the repayment of such Loans on such Borrowing Date, (I) the Multicurrency
Lenders shall, in accordance with the applicable provisions hereof, make the
Requested Multicurrency Loans in an aggregate amount equal to the amount so
requested by such Foreign Subsidiary Borrower
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30
(but not in any event greater than the Aggregate Available Multicurrency
Commitments after giving effect to the making of such repayment of any Loans on
such Borrowing Date) and (II) the relevant Borrower shall pay to the
Administrative Agent for the account of the Lenders whose Loans to such Borrower
are repaid on such Borrowing Date pursuant to this subsection 2.5 all interest
accrued on the amounts repaid to the date of repayment, together with any
amounts payable pursuant to subsection 7.12 in connection with such repayment.
(b) If on any Borrowing Date on which an Alternate Currency Borrower
has requested Alternate Currency Lenders to make Alternate Currency Loans (the
"Requested Alternate Currency Loans") under an Alternate Currency Facility to
which such Alternate Currency Borrower and Alternate Currency Lenders are
parties (i) the aggregate principal amount of the Requested Alternate Currency
Loans exceeds the aggregate unused portions of the commitments of such Alternate
Currency Lenders under such Alternate Currency Facility on such Borrowing Date
(before giving effect to the making and payment of any Revolving Credit Loans
required to be made pursuant to this subsection 2.5 on such Borrowing Date),
(ii) after giving effect to the Requested Alternate Currency Loans, the U.S.
Dollar Equivalent of the aggregate outstanding principal amount of Alternate
Currency Loans of such Alternate Currency Borrower will be less than or equal to
the aggregate commitments of such Alternate Currency Lenders under such
Alternate Currency Facility and (iii) the U.S. Dollar Equivalent of the amount
of the excess described in clause (i) above is less than or equal to the
Aggregate Available Revolving Credit Commitments of all Lenders other than such
Alternate Currency Lenders (before giving effect to the making and payment of
any Revolving Credit Loans pursuant to this subsection 2.5 on such Borrowing
Date), each such other Lender shall make a Revolving Credit Loan to the U.S.
Borrower, on such Borrowing Date, and the proceeds of such Revolving Credit
Loans shall be simultaneously applied to repay outstanding Revolving Credit
Loans, Multicurrency Loans and/or Alternate Currency Loans of such Alternate
Currency Lenders (as directed by the U.S. Borrower) in each case in amounts such
that, after giving effect to (1) such borrowings and repayments and (2) the
borrowing from such Alternate Currency Lenders of the Requested Alternate
Currency Loans, the Committed Outstandings Percentage of each U.S. Lender will
equal (as nearly as possible) its Revolving Credit Commitment Percentage. To
effect such borrowings and repayments, (x) not later than 12:00 Noon, New York
City time, on such Borrowing Date, the proceeds of such Revolving Credit Loans
shall be made available by each such other Lender to the Administrative Agent at
its office specified in subsection 15.2 in U.S. Dollars and in immediately
available funds and the Administrative Agent shall apply the proceeds of such
Revolving Credit Loans toward the repayment of outstanding Revolving Credit
Loans, Multicurrency Loans and/or Alternate Currency Loans of such Alternate
Currency Lenders (as directed by the U.S. Borrower) and (y) concurrently with
the repayment of such Revolving Credit Loans on such Borrowing Date, (I) such
Alternate Currency Lenders shall, in accordance with the applicable provisions
hereof, make the Requested Alternate Currency Loans in an aggregate amount equal
to the amount so requested by such Foreign Subsidiary Borrower and (II) the
relevant Borrower shall pay to the Administrative Agent for the account of the
Lenders whose Loans to such Borrower are repaid on such Borrowing Date pursuant
to this subsection 2.5 all interest accrued on the amounts repaid to the date of
repayment, together with any amounts payable pursuant to subsection 7.12 in
connection with such repayment.
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(c) If any borrowing of Revolving Credit Loans is required pursuant
to this subsection 2.5, the U.S. Borrower shall notify the Administrative Agent
in the manner provided for Revolving Credit Loans in subsection 2.3, except that
the minimum borrowing amounts set forth in subsection 2.3 shall not be
applicable to the extent that such minimum borrowing amounts exceed the amounts
of Revolving Credit Loans required to be made pursuant to this subsection 2.5.
SECTION 3. AMOUNT AND TERMS OF SWINGLINE
COMMITMENTS
3.1 Swing Line Commitments. Subject to the terms and conditions
hereof, each Swing Line Lender agrees to make swing line loans (individually, a
"Swing Line Loan"; collectively, the "Swing Line Loans") in U.S. Dollars to the
U.S. Borrower from time to time during the Revolving Credit Commitment Period in
an aggregate principal amount at any one time outstanding not to exceed the
difference between (a) $75,000,000 and (b) the outstanding principal amount of
all Swing Line Loans of the other Swing Line Lender, so long as after giving
effect thereto (i) the Available Revolving Credit Commitment of each Lender is
greater than or equal to zero and (ii) the Aggregate Total Outstandings of all
Lenders do not exceed the Aggregate Revolving Credit Commitments. Amounts
borrowed by the U.S. Borrower under this Section 3 may be repaid and, during the
Revolving Credit Commitment Period, reborrowed.
3.2 Procedure for Swing Line Borrowings; Interest Rate. (a) The U.S.
Borrower shall give the Swing Line Lender from which it wishes to request a
Swing Line Loan irrevocable notice (which notice must be received by such Swing
Line Lender prior to 1:00 P.M., New York City time) on the requested Borrowing
Date specifying the amount of the requested Swing Line Loan, which shall be in
an aggregate principal amount of not less than $1,000,000 or a whole multiple of
$1,000,000 in excess thereof. The proceeds of the Swing Line Loan will be made
available by such Swing Line Lender to the U.S. Borrower at the office of such
Swing Line Lender by crediting the account of the U.S. Borrower at such office
with such proceeds in U.S. Dollars. Each Swing Line Lender shall send a copy of
each request for a borrowing of Swing Line Loans from such Swing Line Lender to
the other Swing Line Lender.
(b) Unless otherwise agreed between the U.S. Borrower and the Swing
Line Lender that makes a Swing Line Loan, such Swing Line Loan shall be an ABR
Loan. Any such ABR Loan may not be converted into a Eurodollar Loan. If,
however, the U.S. Borrower and a Swing Line Lender agree that a Swing Line Loan
(a "Money Market Rate Swing Line Loan") shall bear interest at a fixed interest
rate (a "Money Market Rate") for a fixed interest period of up to 7 days, such
Money Market Rate Swing Line Loan shall bear interest for such interest period
at such interest rate so agreed upon. If a Money Market Rate Swing Line Loan is
not repaid on the last day of the interest period with respect thereto, it shall
on such date be converted automatically to an ABR Loan. A Money Market Swing
Line Loan shall not be optionally prepayable prior to the last day of the
interest period with
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respect thereto except with the consent of the Swing Line Lender that made such
Swing Line Loan.
3.3 Repayment of Swing Line Loans; Evidence of Debt. (a) The U.S.
Borrower hereby unconditionally promises to pay to each Swing Line Lender the
then unpaid principal amount of each of its Swing Line Loans on the Revolving
Credit Termination Date and on such other dates and in such other amounts as may
be required from time to time pursuant to this Agreement. The U.S. Borrower
hereby further agrees to pay interest on the unpaid principal amount of the
Swing Line Loans from time to time outstanding until payment thereof in full at
the rates per annum, and on the dates, set forth in subsection 7.1.
(b) Each Swing Line Lender shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of the U.S.
Borrower resulting from each Swing Line Loan made by it from time to time,
including the amounts of principal and interest payable thereon and paid from
time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
subsection 15.6(d), and a subaccount therein for each Swing Line Lender, in
which shall be recorded (i) the amount of each Swing Line Loan made hereunder,
(ii) the amount of each Lender's participating interest in such Swing Line
Loans, (iii) the amount of any principal or interest due and payable or to
become due and payable from the U.S. Borrower hereunder in respect of the Swing
Line Loans and (iv) both the amount of any sum received by the Administrative
Agent hereunder from the U.S. Borrower in respect of the Swing Line Loans, each
Lender's participating interest therein (if any) and the amount thereof payable
to each Swing Line Lender.
(d) The entries made in the Register and the accounts of the Swing
Line Lenders maintained pursuant to this subsection 3.3 shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the U.S. Borrower therein recorded; provided,
however, that the failure of any Swing Line Lender or the Administrative Agent
to maintain the Register or any such account, or any error therein, shall not in
any manner affect the obligation of the U.S. Borrower to repay (with applicable
interest) the Swing Line Loans made to the U.S. Borrower by the Swing Line
Lenders in accordance with the terms of this Agreement.
3.4 Refunding of Swing Line Borrowings. (a) Each Swing Line Lender,
at any time in its sole and absolute discretion may, and, at any time when its
Swing Line Loans are outstanding for more than five Business Days, each Swing
Line Lender shall, on behalf of the U.S. Borrower (which hereby irrevocably
directs and authorizes such Swing Line Lender to act on its behalf), request
each Lender, including Chase and Bank of America Illinois, to make a Revolving
Credit Loan in an amount equal to such Lender's Swing Line Participation
Percentage of the greater of (i) the principal amount of the Swing Line Loans
(the "Refunded Swing Line Loans") outstanding on the date such notice is given
and (ii) $10,000,000; provided that the provisions of this subsection shall not
affect the U.S. Borrower's obligations to repay Swing Line Loans in accordance
with the provisions of subsections 3.3 and 7.4(d) and (f). Unless the Revolving
Credit Commitments shall have expired or terminated (in
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33
which event the procedures of subsection 3.5 shall apply), each Lender will make
the proceeds of the Revolving Credit Loan made by it pursuant to the immediately
preceding sentence available to the Administrative Agent at the office of the
Administrative Agent specified in subsection 15.2 prior to 12:00 Noon, New York
City time, in funds immediately available on the Business Day next succeeding
the date such notice is given. The proceeds of such Revolving Credit Loans shall
be immediately made available by the Administrative Agent to the Swing Line
Lenders for application to the payment in full of the Refunded Swing Line Loans;
any proceeds of such Revolving Credit Loans remaining after repayment of the
Refunded Swing Line Loans in full shall be made available to the U.S. Borrower
by the Administrative Agent crediting the account of the U.S. Borrower at its
office specified in subsection 15.2.
3.5 Participating Interests. (a) If the Revolving Credit Commitments
shall expire or terminate at any time while Swing Line Loans are outstanding,
each Lender shall, at the option of the Swing Line Lenders in their sole
discretion, either (i) notwithstanding the expiration or termination of the
Revolving Credit Commitments, make a Revolving Credit Loan or (ii) purchase an
undivided participating interest in the Swing Line Loans of each Swing Line
Lender, in either case in an amount equal to such Lender's Swing Line
Participation Percentage (determined on the date of, and immediately prior to,
expiration or termination of the Revolving Credit Commitments) of the aggregate
principal amount of such Swing Line Loans. Each Lender will make the proceeds of
any Revolving Credit Loan made by it pursuant to the immediately preceding
sentence available to the Administrative Agent for the account of the Swing Line
Lenders at the office of the Administrative Agent specified in subsection 15.2
prior to 12:00 Noon, New York City time, in funds immediately available on the
Business Day next succeeding the date on which the Revolving Credit Commitments
expire or terminate. The proceeds of such Revolving Credit Loans shall be
immediately applied to repay the Swing Line Loans outstanding on the date of
termination or expiration of the Revolving Credit Commitments. In the event that
any of the Lenders purchase undivided participating interests pursuant to the
first sentence of this subsection 3.5(a), each Lender shall immediately transfer
to each Swing Line Lender, in immediately available funds, the amount of its
participation in the Swing Line Loans of such Swing Line Lender and upon receipt
thereof each Swing Line Lender will deliver to any such Lender that so requests
a confirmation of such Lender's undivided participating interest in the Swing
Line Loans of such Swing Line Lender dated the date of receipt of such funds and
in such amount.
(b) Whenever, at any time after either Swing Line Lender has received
payment from any Lender in respect of such Lender's participating interest in a
Swing Line Loan of such Swing Line Lender, such Swing Line Lender receives any
payment on account thereof, such Swing Line Lender will distribute to such
Lender its participating interest in such amount (appropriately adjusted, in the
case of interest payments, to reflect the period of time during which such
Lender's participating interest was outstanding and funded); provided, however,
that in the event that any such payment received by such Swing Line Lender is
required to be returned, such Lender will return to such Swing Line Lender any
portion thereof previously distributed by such Swing Line Lender to it.
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3.6 No Swing Line Loans After Notice of Default. Each Swing Line
Lender agrees that it will not make any Swing Line Loans to the U.S. Borrower
from and after the date on which it receives a written notice from the U.S.
Borrower or any Lender referring to this Agreement and stating that a Default or
an Event of Default has occurred and is continuing hereunder until the date on
which such Default or Event of Default is no longer continuing.
SECTION 4. AMOUNT AND TERMS OF CAF ADVANCES
4.1 CAF Advances. Subject to the terms and conditions of this
Agreement, the U.S. Borrower may borrow CAF Advances in U.S. Dollars from time
to time on any Business Day during the CAF Advance Availability Period. CAF
Advances may be borrowed in amounts such that the Aggregate Total Outstandings
of all the Lenders at any time shall not exceed the Aggregate Revolving Credit
Commitments at such time. Within the limits and on the conditions hereinafter
set forth with respect to CAF Advances, the U.S. Borrower from time to time may
borrow, repay and reborrow CAF Advances.
4.2 Procedure for CAF Advance Borrowing. (a) The U.S. Borrower shall
request CAF Advances by delivering a CAF Advance Request to the Administrative
Agent, not later than 12:00 Noon, New York City time, four Business Days prior
to the proposed Borrowing Date (in the case of a LIBO Rate CAF Advance Request),
and not later than 10:00 A.M., New York City time one Business Day prior to the
proposed Borrowing Date (in the case of a Fixed Rate CAF Advance Request). Each
CAF Advance Request in respect of any Borrowing Date may solicit bids for CAF
Advances on such Borrowing Date in an aggregate principal amount of $5,000,000
or an integral multiple of $1,000,000 in excess thereof and having not more than
three alternative CAF Advance Maturity Dates. The CAF Advance Maturity Date for
each CAF Advance shall be the date set forth therefor in the relevant CAF
Advance Request, which date shall be (i) not less than 7 days nor more than 360
days after the Borrowing Date therefor, in the case of a Fixed Rate CAF Advance,
(ii) one, two, three, six, nine or twelve months after the Borrowing Date
therefor, in the case of a LIBO CAF Advance and (iii) not later than the
Revolving Credit Termination Date, in the case of any CAF Advance. The
Administrative Agent shall notify each Lender promptly by facsimile transmission
of the contents of each CAF Advance Request received by the Administrative
Agent.
(b) In the case of a LIBO Rate CAF Advance Request, upon receipt of
notice from the Administrative Agent of the contents of such CAF Advance
Request, each Lender may elect, in its sole discretion, to offer irrevocably to
make one or more CAF Advances at the applicable LIBO Rate plus (or minus) a
margin determined by such Lender in its sole discretion for each such CAF
Advance. Any such irrevocable offer shall be made by delivering a CAF Advance
Offer to the Administrative Agent, before 10:30 A.M., New York City time, on the
day that is three Business Days before the proposed Borrowing Date, setting
forth:
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(i) the maximum amount of CAF Advances for each CAF Advance
Maturity Date and the aggregate maximum amount of CAF Advances for all CAF
Advance Maturity Dates which such Lender would be willing to make (which
amounts may, subject to subsection 4.1, exceed such Lender's Revolving
Credit Commitment); and
(ii) the margin above or below the applicable LIBO Rate at which
such Lender is willing to make each such CAF Advance.
The Administrative Agent shall advise the U.S. Borrower before 11:00 A.M., New
York City time, on the date which is three Business Days before the proposed
Borrowing Date of the contents of each such CAF Advance Offer received by it. If
the Administrative Agent, in its capacity as a Lender, shall elect, in its sole
discretion, to make any such CAF Advance Offer, it shall advise the U.S.
Borrower of the contents of its CAF Advance Offer before 10:15 A.M., New York
City time, on the date which is three Business Days before the proposed
Borrowing Date.
(c) In the case of a Fixed Rate CAF Advance Request, upon receipt of
notice from the Administrative Agent of the contents of such CAF Advance
Request, each Lender may elect, in its sole discretion, to offer irrevocably to
make one or more CAF Advances at a rate of interest determined by such Lender in
its sole discretion for each such CAF Advance. Any such irrevocable offer shall
be made by delivering a CAF Advance Offer to the Administrative Agent before
9:30 A.M., New York City time, on the proposed Borrowing Date, setting forth:
(i) the maximum amount of CAF Advances for each CAF Advance
Maturity Date, and the aggregate maximum amount for all CAF Advance
Maturity Dates, which such Lender would be willing to make (which amounts
may, subject to subsection 4.1, exceed such Lender's Revolving Credit
Commitment); and
(ii) the rate of interest at which such Lender is willing to make
each such CAF Advance.
The Administrative Agent shall advise the U.S. Borrower before 10:00 A.M., New
York City time, on the proposed Borrowing Date of the contents of each such CAF
Advance Offer received by it. If the Administrative Agent, in its capacity as a
Lender, shall elect, in its sole discretion, to make any such CAF Advance Offer,
it shall advise the U.S. Borrower of the contents of its CAF Advance Offer
before 9:15 A.M., New York City time, on the proposed Borrowing Date.
(d) Before 11:30 A.M., New York City time, three Business Days before
the proposed Borrowing Date (in the case of CAF Advances requested by a LIBO
Rate CAF Advance Request) and before 10:30 A.M., New York City time, on the
proposed Borrowing Date (in the case of CAF Advances requested by a Fixed Rate
CAF Advance Request), the U.S. Borrower, in its absolute discretion, shall:
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36
(i) cancel such CAF Advance Request by giving the Administrative
Agent telephone notice to that effect, or
(ii) by giving telephone notice to the Administrative Agent
(immediately confirmed by delivery to the Administrative Agent of a CAF
Advance Confirmation by facsimile transmission) (A) subject to the
provisions of subsection 4.2(e), accept one or more of the offers made by
any Lender or Lenders pursuant to subsection 4.2(b) or subsection 4.2(c),
as the case may be, and (B) reject any remaining offers made by Lenders
pursuant to subsection 4.2(b) or subsection 4.2(c), as the case may be.
(e) The U.S. Borrower's acceptance of CAF Advances in response to any
CAF Advance Offers shall be subject to the following limitations:
(i) the amount of CAF Advances accepted for each CAF Advance
Maturity Date specified by any Lender in its CAF Advance Offer shall not
exceed the maximum amount for such CAF Advance Maturity Date specified in
such CAF Advance Offer;
(ii) the aggregate amount of CAF Advances accepted for all CAF
Advance Maturity Dates specified by any Lender in its CAF Advance Offer
shall not exceed the aggregate maximum amount specified in such CAF Advance
Offer for all such CAF Advance Maturity Dates;
(iii) the U.S. Borrower may not accept offers for CAF Advances
for any CAF Advance Maturity Date in an aggregate principal amount in
excess of the maximum principal amount requested in the related CAF Advance
Request; and
(iv) if the U.S. Borrower accepts any of such offers, it must
accept offers based solely upon pricing for each relevant CAF Advance
Maturity Date and upon no other criteria whatsoever, and if two or more
Lenders submit offers for any CAF Advance Maturity Date at identical
pricing and the U.S. Borrower accepts any of such offers but does not wish
to (or, by reason of the limitations set forth in subsection 4.1, cannot)
borrow the total amount offered by such Lenders with such identical
pricing, the U.S. Borrower shall accept offers from all of such Lenders in
amounts allocated among them pro rata according to the amounts offered by
such Lenders (with appropriate rounding, in the sole discretion of the U.S.
Borrower, to assure that each accepted CAF Advance is an integral multiple
of $1,000,000); provided that if the number of Lenders that submit offers
for any CAF Advance Maturity Date at identical pricing is such that, after
the U.S. Borrower accepts such offers pro rata in accordance with the
foregoing provisions of this paragraph, the CAF Advance to be made by any
such Lender would be less than $5,000,000 principal amount, the number of
such Lenders shall be reduced by the Administrative Agent by lot until the
CAF Advances to be made by each such remaining Lender would be in a
principal amount of $5,000,000 or an integral multiple of $1,000,000 in
excess thereof.
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37
(f) If the U.S. Borrower notifies the Administrative Agent that a CAF
Advance Request is cancelled pursuant to subsection 4.2(d)(i), the
Administrative Agent shall give prompt telephone notice thereof to the Lenders.
(g) If the Borrower accepts pursuant to subsection 4.2(d)(ii) one or
more of the offers made by any Lender or Lenders, the Administrative Agent
promptly shall notify each Lender which has made such an offer of (i) the
aggregate amount of such CAF Advances to be made on such Borrowing Date for each
CAF Advance Maturity Date and (ii) the acceptance or rejection of any offers to
make such CAF Advances made by such Lender. Before 12:00 Noon, New York City
time, on the Borrowing Date specified in the applicable CAF Advance Request,
each Lender whose CAF Advance Offer has been accepted shall make available to
the Administrative Agent at its office set forth in subsection 15.2 the amount
of CAF Advances to be made by such Lender, in immediately available funds. The
Administrative Agent will make such funds available to the U.S. Borrower as soon
as practicable on such date at such office of the Administrative Agent. As soon
as practicable after each Borrowing Date, the Administrative Agent shall notify
each Lender of the aggregate amount of CAF Advances advanced on such Borrowing
Date and the respective CAF Advance Maturity Dates thereof.
4.3 CAF Advance Payments. (a) The U.S. Borrower shall pay to the
Administrative Agent, for the account of each Lender which has made a CAF
Advance, on the applicable CAF Advance Maturity Date the then unpaid principal
amount of such CAF Advance. The U.S. Borrower shall not have the right to prepay
any principal amount of any CAF Advance without the consent of the Lender to
which such CAF Advance is owed.
(b) The U.S. Borrower shall pay interest on the unpaid principal
amount of each CAF Advance from the Borrowing Date to applicable CAF Advance
Maturity Date at the rate of interest specified in the CAF Advance Offer
accepted by the Borrower in connection with such CAF Advance (calculated on the
basis of a 360-day year for actual days elapsed), payable on each applicable CAF
Advance Interest Payment Date.
(c) If any principal of, or interest on, any CAF Advance shall not be
paid when due (whether at the stated maturity, by acceleration or otherwise),
such CAF Advance shall, without limiting any rights of any Lender under this
Agreement, bear interest from the date on which such payment was due at a rate
per annum which is 2% above the rate which would otherwise be applicable to such
CAF Advance until the stated CAF Advance Maturity Date of such CAF Advance, and
for each day thereafter at a rate per annum which is 2% above the ABR, in each
case until paid in full (as well after as before judgment). Interest accruing
pursuant to this paragraph (c) shall be payable from time to time on demand.
4.4 Evidence of Debt. (a) The U.S. Borrower unconditionally
promises to pay to the Administrative Agent, for the account of each Lender that
makes a CAF Advance, on the CAF Advance Maturity Date with respect thereto, the
principal amount of such CAF Advance. The U.S. Borrower further unconditionally
promises to pay interest on each such CAF Advance for the period from and
including the Borrowing Date of such CAF Advance
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on the unpaid principal amount thereof from time to time outstanding at the
applicable rate per annum determined as provided in, and payable as specified
in, subsection 4.3(b).
(b) Each Lender shall maintain in accordance with its usual practice
appropriate records evidencing indebtedness of the U.S. Borrower to such Lender
resulting from each CAF Advance of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time in respect of such CAF Advance.
(c) The Administrative Agent shall maintain the Register pursuant to
subsection 15.6(d), and a record therein for each Lender, in which shall be
recorded (i) the amount of each CAF Advance made by such Lender, the CAF Advance
Maturity Date thereof, the interest rate applicable thereto and each CAF Advance
Interest Payment Date applicable thereto, and (ii) the amount of any sum
received by the Administrative Agent hereunder from the U.S. Borrower on account
of such CAF Advance.
(d) The entries made in the Register and the records of each Lender
maintained pursuant to this subsection 4.4 shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such record, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the CAF Advances
made by such Lender in accordance with the terms of this Agreement.
4.5 Certain Restrictions. A CAF Advance Request may request offers
for CAF Advances to be made on not more than one Borrowing Date and to mature on
not more than three CAF Advance Maturity Dates. No CAF Advance Request may be
submitted earlier than five Business Days after submission of any other CAF
Advance Request.
SECTION 5. AMOUNT AND TERMS OF MULTICURRENCY
COMMITMENT
5.1 Multicurrency Commitments. Subject to the terms and conditions
hereof, each Multicurrency Lender severally agrees to make revolving credit
loans (each, a "Multicurrency Loan") in any Available Foreign Currency to any
Foreign Subsidiary Borrower from time to time during the Revolving Credit
Commitment Period so long as after giving effect thereto (a) the Available
Multicurrency Commitment of each Multicurrency Lender is greater than or equal
to zero, (b) the aggregate outstanding principal amount of Multicurrency Loans
does not exceed an amount of which the U.S. Dollar Equivalent is $500,000,000
and (c) the Aggregate Total Outstandings of all Lenders do not exceed the
Aggregate Revolving Credit Commitments. During the Revolving Credit Commitment
Period, any Foreign Subsidiary Borrower may use the Multicurrency Commitments by
borrowing, repaying the Multicurrency Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
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5.2 Repayment of Multicurrency Loans; Evidence of Debt. (a) Each
Foreign Subsidiary Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Multicurrency Lender the then
unpaid principal amount of each Multicurrency Loan of such Multicurrency Lender
to such Foreign Subsidiary Borrower on the Revolving Credit Termination Date and
on such other date(s) and in such other amounts as may be required from time to
time pursuant to this Agreement. Each Foreign Subsidiary Borrower hereby
further agrees to pay interest on the unpaid principal amount of the
Multicurrency Loans advanced to it and from time to time outstanding until
payment thereof in full at the rates per annum, and on the dates, set forth in
subsection 7.1.
(b) Each Multicurrency Lender shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of each Foreign
Subsidiary Borrower to such Multicurrency Lender resulting from each
Multicurrency Loan of such Multicurrency Lender from time to time, including the
amounts of principal and interest payable thereon and paid to such Multicurrency
Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
subsection 15.6(d), and a subaccount therein for each Multicurrency Lender, in
which shall be recorded (i) the amount of each Multicurrency Loan made
hereunder, (ii) the amount of any principal or interest due and payable or to
become due and payable from each Foreign Subsidiary Borrower to each
Multicurrency Lender hereunder in respect of the Multicurrency Loans and (iii)
both the amount of any sum received by the Administrative Agent hereunder from
each Foreign Subsidiary Borrower in respect of the Multicurrency Loans and each
Multicurrency Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Multicurrency Lender maintained pursuant to subsection 5.2(b) shall, to the
extent permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of each Foreign Subsidiary Borrower therein recorded;
provided, however, that the failure of any Multicurrency Lender or the
Administrative Agent to maintain the Register or any such account, or any error
therein, shall not in any manner affect the obligation of such Foreign
Subsidiary Borrower to repay (with applicable interest) the Multicurrency Loans
made to such Foreign Subsidiary Borrower by such Multicurrency Lender in
accordance with the terms of this Agreement.
5.3 Procedure for Multicurrency Borrowing. Any Foreign Subsidiary
Borrower may request the Multicurrency Lenders to make Multicurrency Loans
during the Revolving Credit Commitment Period on any Business Day by delivering
a Notice of Multicurrency Loan Borrowing. Each borrowing under the
Multicurrency Commitments shall be in an amount in an Available Foreign Currency
of which the U.S. Dollar Equivalent is equal to at least $10,000,000 (or, if the
then Aggregate Available Multicurrency Commitments are less than $10,000,000,
such lesser amount). Upon receipt of any such Notice of Multicurrency Borrowing
from any Foreign Subsidiary Borrower, the Administrative Agent shall promptly
notify each Multicurrency Lender thereof. Not later than the funding time for
the relevant Available Foreign Currency set forth in the Administrative Schedule
each Multicurrency Lender shall make an amount equal to its Multicurrency
Commitment
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Percentage of the principal amount of Multicurrency Loans requested to be made
on such Borrowing Date available to the Administrative Agent at the funding
office for the relevant Available Foreign Currency set forth in the
Administrative Schedule in the relevant Available Foreign Currency and in
immediately available funds. The amounts made available by each Multicurrency
Lender will then be made available to the relevant Foreign Subsidiary Borrower
at the funding office for the relevant Available Foreign Currency set forth in
the Administrative Schedule and in like funds as received by the Administrative
Agent.
5.4 Termination or Reduction of Multicurrency Commitments. The U.S.
Borrower shall have the right, upon not less than three Business Days' notice to
the Administrative Agent, to terminate the Multicurrency Commitments or, from
time to time, to reduce the amount of the Multicurrency Commitments; provided
that no such termination or reduction shall be permitted if, after giving
effect thereto and to any prepayments of the Loans made on the effective date
thereof, the Available Multicurrency Commitment of any Multicurrency Lender
would be less than zero. Any such reduction shall be in an amount equal to
U.S.$10,000,000 or a whole multiple of U.S.$1,000,000 in excess thereof and
shall reduce permanently the Multicurrency Commitments then in effect.
SECTION 6. ALTERNATE CURRENCY FACILITIES
6.1 Terms of Alternate Currency Facilities. (a) Subject to the
provisions of this Section 6, the U.S. Borrower may in its discretion from time
to time designate any Subsidiary of the U.S. Borrower organized under the laws
of any jurisdiction outside the United States as an "Alternate Currency
Borrower" and any Qualified Credit Facility to which such Alternate Currency
Borrower and any one or more Lenders (or its affiliates, agencies or branches)
is a party as an "Alternate Currency Facility", with the consent of each such
Lender in its sole discretion, by delivering an Alternate Currency Facility
Addendum to the Administrative Agent and the Lenders (through the Administrative
Agent) executed by the U.S. Borrower, each such Alternate Currency Borrower and
each such Lender, provided, that on the effective date of such designation no
Event of Default shall have occurred and be continuing. Concurrently with the
delivery of an Alternate Currency Facility Addendum, the U.S. Borrower or the
relevant Alternate Currency Borrower shall furnish to the Administrative Agent
copies of all documentation executed and delivered by any Alternate Currency
Borrower in connection therewith, together with, if applicable, an English
translation thereof. Except as otherwise provided in this Section 6 or in the
definition of "Qualified Credit Facility" in subsection 1.1, the terms and
conditions of each Alternate Currency Facility shall be determined by mutual
agreement of the relevant Alternate Currency Borrower(s) and Alternate Currency
Lender(s). The documentation governing each Alternate Currency Facility shall
(i) contain an express acknowledgement that such Alternate Currency Facility
shall be subject to the provisions of this Section 6 and (ii) if more than one
Lender is a party thereto, designate an Alternate Currency Facility Agent for
such Alternate Currency Facility. Each of the U.S. Borrower and, by agreeing to
any Alternate Currency Facility designation as contemplated hereby, each
relevant Alternate Currency Lender (if any) party thereto which is an affiliate,
branch or agency of a Lender, acknowledges and agrees that each reference in
this Agreement to any Lender shall, to the extent applicable, be deemed to be a
reference to
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41
such Alternate Currency Lender. In the event of any inconsistency between the
terms of this Agreement and the terms of any Alternate Currency Facility, the
terms of this Agreement shall prevail.
(b) The documentation governing each Alternate Currency Facility
shall set forth (i) the maximum amount (expressed in U.S. Dollars) available to
be borrowed from all Alternate Currency Lenders under such Alternate Currency
Facility (as the same may be reduced from time to time, an "Alternate Currency
Facility Maximum Borrowing Amount") and (ii) with respect to each Alternate
Currency Lender party to such Alternate Currency Facility, the maximum amount
(expressed in U.S. Dollars) available to be borrowed from such Alternate
Currency Lender thereunder (as the same may be reduced from time to time, an
"Alternate Currency Lender Maximum Borrowing Amount").
(c) Except as otherwise required by applicable law, in no event shall
the Alternate Currency Lenders party to an Alternate Currency Facility have the
right to accelerate the Alternate Currency Loans outstanding thereunder, or to
terminate their commitments (if any) to make such Alternate Currency Loans prior
to the earlier of the stated termination date in respect thereof or the
Revolving Credit Termination Date, except, in each case, in connection with an
acceleration of the Loans or a termination of the Commitments pursuant to
Section 13, provided, that nothing in this paragraph (c) shall be deemed to
require any Alternate Currency Lender to make an Alternate Currency Loan if the
applicable conditions precedent to the making of such Alternate Currency Loan
set forth in the documentation governing the relevant Alternate Currency
Facility have not been satisfied. No Alternate Currency Loan may be made under
an Alternate Currency Facility if (i) after giving effect thereto, the
conditions precedent in subsection 9.2 would not be satisfied or (ii) after
giving effect to the making of such Alternate Currency Loan and the simultaneous
application of the proceeds thereof, the Aggregate Total Outstandings of all
Lenders at any time exceeds the Aggregate Revolving Credit Commitments.
(d) The relevant Alternate Currency Borrower shall furnish to the
Administrative Agent copies of any amendment, supplement or other modification
(including any change in commitment amounts or in the Alternate Currency Lenders
participating in any Alternate Currency Facility) to the terms of any Alternate
Currency Facility promptly after the effectiveness thereof (together with, if
applicable, an English translation thereof). If any such amendment, supplement
or other modification to an Alternate Currency Facility shall (i) add an
Alternate Currency Lender as an Alternate Currency Lender thereunder or (ii)
change the Alternate Currency Facility Maximum Borrowing Amount or any Alternate
Currency Lender Maximum Borrowing Amount with respect thereto, the U.S. Borrower
shall promptly furnish an appropriately revised Alternate Currency Facility
Addendum, executed by the U.S. Borrower, the relevant Alternate Currency
Borrower and the affected Alternate Currency Lenders (or any agent acting on
their behalf), to the Administrative Agent and the Lenders (through the
Administrative Agent).
(e) The U.S. Borrower may terminate its designation of a facility as
an Alternate Currency Facility, with the consent of each Alternate Currency
Lender party thereto in its sole discretion, by written notice to the
Administrative Agent, which notice shall be
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42
executed by the U.S. Borrower, the relevant Alternate Currency Borrower and each
Alternate Currency Lender party to such Alternate Currency Facility (or any
agent acting on their behalf). Once notice of such termination is received by
the Administrative Agent, such Alternate Currency Facility and the loans and
other obligations outstanding thereunder shall immediately cease to be subject
to the terms of this Agreement.
6.2 Reporting of Alternate Currency Outstandings. (a) On the date of
the making of any Alternate Currency Loan having a maturity of 30 or more days
to an Alternate Currency Borrower and on the last Business Day of each month on
which an Alternate Currency Borrower has any outstanding Alternate Currency
Loans, the Alternate Currency Facility Agent for such Alternate Currency
Borrower, shall deliver to the Administrative Agent a Notice of Alternate
Currency Outstandings. The Administrative Agent will, at the request of any
Alternate Currency Facility Agent, advise such Alternate Currency Facility Agent
of the Exchange Rate used by the Administrative Agent in calculating the U.S.
Dollar Equivalent of Alternate Currency Loans under the related Alternate
Currency Facility on any date.
(b) For purposes of any calculation under this Agreement in which the
amount of the Aggregate Alternate Currency Outstandings of any Lender is a
component, the Administrative Agent shall make such calculation on the basis of
the Notices of Alternate Currency Outstanding received by it at least two
Business Days prior to the date of such calculation.
SECTION 7. GENERAL PROVISIONS APPLICABLE TO LOANS
7.1 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such
Interest Period plus the Applicable Margin in effect for such day.
(b) Each ABR Loan shall bear interest for each day that it is
outstanding at a rate per annum equal to the Alternate Base Rate for such day
plus the Applicable Margin in effect for such day.
(c) Each Multicurrency Loan shall bear interest for each day that it
is outstanding at a rate per annum equal to the applicable Eurocurrency Rate
plus the Applicable Margin in effect for such day.
(d) Each Money Market Rate Swing Line Loan shall bear interest during
the interest period applicable thereto at a rate per annum equal to the
applicable Money Market Rate; provided, that any Money Market Rate Swing Line
Loan in which lenders purchase participating interests pursuant to the last
sentence of subsection 3.5(a) shall, from and after the date of such purchase,
bear interest until the end of the interest period applicable thereto at a rate
per annum equal to the higher of (i) 2% above the Money Market Rate applicable
thereto and (ii) 2% above the ABR.
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(e) If all or a portion of (i) the principal amount of any Loan, (ii)
any interest payable thereon or (iii) any fee or other amount payable hereunder
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum equal to
the rate that would otherwise be applicable thereto pursuant to the foregoing
provisions of this subsection plus 2% or, if higher, in the case of amounts
required to be paid in U.S. Dollars, the rate described in paragraph (b) of this
subsection plus 2%.
(f) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (e) of this
subsection shall be payable from time to time on demand.
7.2 Conversion and Continuation Options. (a) The U.S. Borrower may
elect from time to time to convert outstanding Eurodollar Loans (in whole or in
part) to ABR Loans by giving the Administrative Agent at least two Business
Days' prior irrevocable notice of such election, provided that any such
conversion of Eurodollar Loans may only be made on the last day of an Interest
Period with respect thereto. The U.S. Borrower may elect from time to time to
convert outstanding ABR Loans (other than Swing Line Loans) (in whole or in
part) to Eurodollar Loans by giving the Administrative Agent at least three
Business Days' prior irrevocable notice of such election. Any such notice of
conversion to Eurodollar Loans shall specify the length of the initial Interest
Period or Interest Periods therefor. Upon receipt of any such notice the
Administrative Agent shall promptly notify each Lender thereof. All or any part
of outstanding Eurodollar Loans and ABR Loans may be converted as provided
herein, provided that (i) no ABR Loan may be converted into a Eurodollar Loan
when any Default or Event of Default has occurred and is continuing and the
Administrative Agent or the Majority Lenders have determined that such
conversion is not appropriate, (ii) any such conversion may only be made if,
after giving effect thereto, subsection 7.3 shall not have been violated, (iii)
no ABR Loan may be converted into a Eurodollar Loan after the date that is one
month prior to the Revolving Credit Termination Date and (iv) Swing Line Loans
may not be converted to Eurodollar Loans.
(b) Any Eurodollar Loans may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the U.S. Borrower
giving notice to the Administrative Agent of the length of the next Interest
Period to be applicable to such Loans determined in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection 1.1,
provided that no Eurodollar Loan may be continued as such (i) when any Default
or Event of Default has occurred and is continuing and the Administrative Agent
or the Majority Lenders have determined that such continuation is not
appropriate, (ii) if, after giving effect thereto, subsection 7.3 would be
contravened or (iii) after the date that is one month prior to the Revolving
Credit Termination Date, and provided, further, that if the U.S. Borrower shall
fail to give such notice or if such continuation is not permitted pursuant to
the preceding proviso such Eurodollar Loans shall be automatically converted to
ABR Loans on the last day of such then expiring Interest Period.
(c) Any Multicurrency Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
relevant Foreign Subsidiary
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44
Borrower giving a Notice of Multicurrency Loan Continuation, provided, that if
the relevant Foreign Subsidiary Borrower shall fail to give such Notice of
Multicurrency Loan Continuation, such Multicurrency Loans shall automatically be
continued for an Interest Period of one month.
7.3 Minimum Amounts of Tranches. Except as provided in Annex A, all
borrowings, conversions and continuations of Revolving Credit Loans and
Multicurrency Loans hereunder and all selections of Interest Periods hereunder
shall be in such amounts and be made pursuant to such elections so that, after
giving effect thereto, (a) the aggregate principal amount of the Eurodollar
Loans comprising each Tranche shall be equal to $10,000,000 or a whole multiple
of $1,000,000 in excess thereof, (b) the aggregate principal amount of the
Multicurrency Loans comprising each Tranche shall be in an amount of which the
U.S. Dollar Equivalent is at least $10,000,000 and (c) there shall not be more
than 20 Tranches at any one time outstanding.
7.4 Optional and Mandatory Prepayments. (a) The U.S. Borrower may
at any time and from time to time prepay Revolving Credit Loans and/or Swing
Line Loans (other than Money Market Rate Swing Line Loans), in whole or in part,
upon at least three Business Days' irrevocable notice to the Administrative
Agent (in the case of Eurodollar Loans) and at least one Business Day's
irrevocable notice to the Administrative Agent (in the case of ABR Loans),
specifying the date and amount of prepayment and whether the prepayment is (i)
of Revolving Credit Loans, Swing Line Loans or a combination thereof and (ii) of
Eurodollar Loans, ABR Loans or a combination thereof, and, in each case if a
combination thereof, the amount allocable to each. Upon the receipt of any such
notice the Administrative Agent shall promptly notify each Lender thereof. If
any such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein, together with any amounts payable
pursuant to subsection 7.12. Except as provided in Annex A, partial prepayments
of the Revolving Credit Loans shall be in an aggregate principal amount of
$10,000,000 or a whole multiple of $1,000,000 in excess thereof. Partial
prepayments of the Swing Line Loans shall be in aggregate principal amount of
$1,000,000 or a whole multiple of $1,000,000 in excess thereof.
(b) The Foreign Subsidiary Borrowers may at any time and from time to
time prepay, without premium or penalty, the Multicurrency Loans, in whole or in
part, upon at least three Business Days' irrevocable notice to the
Administrative Agent specifying the date and amount of prepayment. Upon the
receipt of any such notice, the Administrative Agent shall promptly notify each
Multicurrency Lender thereof. If any such notice is given, the amount specified
in such notice shall be due and payable on the date specified therein.
Partial prepayments of Multicurrency Loans shall be in an aggregate principal
amount of which the U.S. Dollar Equivalent is at least $10,000,000.
(c) (i) If, at any time during the Revolving Credit Commitment
Period, for any reason the Aggregate Total Outstandings of all Lenders exceed
the aggregate Revolving Credit Commitments then in effect, (A) the U.S. Borrower
shall, without notice or demand, immediately prepay the Swing Line Loans and the
Revolving Credit Loans and/or (B) the Foreign Subsidiary Borrowers shall,
without notice or demand, immediately prepay the
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45
Multicurrency Loans such that the sum of (I) the aggregate principal amount of
the Swing Line Loans and Revolving Credit Loans so prepaid and (II) the U.S.
Dollar Equivalent of the aggregate principal amount of the Multicurrency Loans
so prepaid, equals or exceeds the amount of such excess.
(ii) If, at any time during the Revolving Credit Commitment
Period, for any reason either (A) the Aggregate Total Outstandings of all
Multicurrency Lenders exceed the aggregate Revolving Credit Commitments of the
Multicurrency Lenders or (B) the Aggregate Multicurrency Outstandings exceed the
aggregate Multicurrency Commitments, (I) the U.S. Borrower shall, without notice
or demand, immediately prepay the Swing Line Loans and the Revolving Credit
Loans and/or (II) the Foreign Subsidiary Borrowers shall, without notice or
demand, immediately prepay Multicurrency Loans in amounts such that the sum of
(x) the aggregate principal amount of the Swing Line Loans and Revolving Credit
Loans so prepaid and (y) the U.S. Dollar Equivalent of the Multicurrency Loans
so prepaid, equals or exceeds the amount of such excess.
(d) Each prepayment of Loans pursuant to this subsection 7.4 shall be
accompanied by accrued and unpaid interest on the amount prepaid to the date of
prepayment and any amounts payable under subsection 7.12 in connection with such
prepayment.
(e) Notwithstanding the foregoing, mandatory prepayments of Revolving
Credit Loans or Multicurrency Loans that would otherwise be required pursuant to
this subsection 7.4 solely as a result of fluctuations in Exchange Rates from
time to time shall only be required to be made pursuant to this subsection 7.4
on the last Business Day of each month on the basis of the Exchange Rate in
effect on such Business Day.
(f) Prepayments of the Loans pursuant to this subsection 7.4 shall be
applied as follows: (i) in the case of prepayments made by the U.S. Borrower,
first, to prepay Swing Line Loans then outstanding (other than Money Market Rate
Swing Line Loans), second, to prepay ABR Loans (other than Swing Line Loans)
then outstanding and third, to prepay Money Market Rate Swing Line Loans, if
any, and Eurodollar Loans then outstanding and (ii) in case of prepayments made
by a Foreign Subsidiary Borrower, to prepay Multicurrency Loans borrowed by such
Foreign Subsidiary Borrower.
(g) The U.S. Borrower shall prepay all Swing Line Loans then
outstanding (other than Money Market Rate Swing Line Loans) simultaneously with
each borrowing of Revolving Credit Loans.
7.5 Facility Fees; Other Fees. (a) The U.S. Borrower agrees to pay
to the Administrative Agent for the account of each Lender, a facility fee for
the period from and including the Effective Date to but excluding the Revolving
Credit Termination Date (or such earlier date on which the Revolving Credit
Commitments shall terminate as provided herein); each such facility fee shall be
computed at the Facility Fee Rate on the amount of the Revolving Credit
Commitment of such Lender during the period for which payment is made, payable
quarterly in arrears on the last day of each March, June, September and December
and on the Revolving Credit Termination Date or such earlier date on which the
Revolving
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46
Credit Commitments shall terminate as provided herein, commencing on the first
such date to occur after the date hereof.
(b) The U.S. Borrower shall pay (without duplication of any other fee
payable under this subsection 7.5) to Chase and CSI, for their respective
accounts, all fees separately agreed to by the U.S. Borrower and Chase or CSI,
as the case may be.
(c) The U.S. Borrower shall (without duplication of any other fee
payable under this subsection 7.5) pay to the Administrative Agent all fees
separately agreed to by the U.S. Borrower and the Administrative Agent.
7.6 Computation of Interest and Fees. (a) Interest based on the
Eurodollar Rate, the Eurocurrency Rate or a Money Market Rate shall be
calculated on the basis of a 360-day year for the actual days elapsed; and
facility fees and interest (other than interest based upon the Eurodollar Rate
or the Eurocurrency Rate) shall be calculated on the basis of a 365- (or 366-,
as the case may be) day year for the actual days elapsed. The Administrative
Agent shall as soon as practicable notify the U.S. Borrower and the Lenders of
each determination of a Eurodollar Rate or a Eurocurrency Rate. Any change in
the interest rate on a Loan resulting from a change in the Alternate Base Rate
or a change in the Prime Rate shall become effective as of the opening of
business on the day on which such change becomes effective. The Administrative
Agent shall as soon as practicable notify the U.S. Borrower and the Lenders of
the effective date and the amount of each such change in the Alternate Base
Rate.
(b) Each determination of an interest rate by the Administrative
Agent, pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrowers and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of a Borrower, deliver to such
Borrower a statement showing in reasonable detail the calculations used by the
Administrative Agent in determining any interest rate pursuant to subsection
7.1(a).
(c) (i) If any Reference Lender shall for any reason no longer have a
Revolving Credit Commitment or any Revolving Credit Loans, such Reference Lender
shall thereupon cease to be a Reference Lender, and if, as a result, there shall
only be one Reference Lender remaining, the Administrative Agent (after
consultation with the U.S. Borrower and the Lenders) shall, by notice to the
U.S. Borrower and the Lenders, designate another Lender as a Reference Lender so
that there shall at all times be at least two Reference Lenders.
(d) Each Reference Lender shall use its best efforts to furnish
quotations of rates to the Administrative Agent as contemplated hereby. If any
of the Lenders shall be unable or shall otherwise fail to supply such rates to
the Administrative Agent upon its request, the rate of interest shall, subject
to the provisions of subsection 7.7, be determined on the basis of the
quotations of the remaining Reference Lenders or Reference Lender, as
applicable.
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47
7.7 Inability to Determine Interest Rate. If prior to the first day
of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrowers) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate or the
Eurocurrency Rate, as the case may be, for such Interest Period, or
(b) the Administrative Agent has received notice from the Majority
Lenders that the Eurodollar Rate or Eurocurrency Rate, as the case may be,
determined or to be determined for such Interest Period will not adequately
and fairly reflect the cost to such Lenders of making or maintaining their
Eurodollar Loans or Multicurrency Loans, as the case may be, during such
Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
U.S. Borrower and the Lenders as soon as practicable thereafter. If such notice
is given (i) any Eurodollar Loans or Multicurrency Loans, as the case may be,
requested to be made on the first day of such Interest Period shall be made as
ABR Loans, (ii) any Revolving Credit Loans that were to have been converted on
the first day of such Interest Period to or continued as Eurodollar Loans shall
be converted to or continued as ABR Loans, (iii) any outstanding Eurodollar
Loans shall be converted on the first day of such Interest Period to ABR Loans
and (iv) any Multicurrency Loans to which such Interest Period relates shall be
repaid on the first day of such Interest Period. Until such notice has been
withdrawn by the Administrative Agent, no further Eurodollar Loans or
Multicurrency Loans shall be made or continued as such, nor shall the U.S.
Borrower have the right to convert ABR Loans to Eurodollar Loans.
7.8 Pro Rata Treatment and Payments. (a) (i) Except as provided in
subsection 2.5, each borrowing of Revolving Credit Loans by the U.S. Borrower
from the Lenders hereunder shall be made pro rata according to the Funding
Commitment Percentages of the Lenders in effect on the date of such borrowing.
Each payment by the U.S. Borrower on account of any facility fee hereunder shall
be allocated by the Administrative Agent among the Lenders in accordance with
the respective amounts which such Lenders are entitled to receive pursuant to
subsection 7.5(a). Any reduction of the Revolving Credit Commitments of the
Lenders shall be allocated by the Administrative Agent among the Lenders pro
rata according to the Revolving Credit Commitment Percentages of the Lenders.
Except as provided in subsection 2.5, each payment (other than any optional
prepayment) by the U.S. Borrower on account of principal of the Revolving Credit
Loans or the CAF Advances shall be allocated by the Administrative Agent pro
rata according to the respective principal amounts thereof then due and owing to
each Lender. Each optional prepayment by the U.S. Borrower on account of
principal of or interest on the Revolving Credit Loans shall be allocated by the
Administrative Agent pro rata according to the respective outstanding principal
amounts thereof. All payments (including prepayments) to be made by the U.S.
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without set-off or counterclaim and shall be made prior
to 12:00 Noon, New York City time, on the due date thereof to the Administrative
Agent, for the account of the Lenders, at
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48
the Administrative Agent's office specified in subsection 15.2, in Dollars and
in immediately available funds. The Administrative Agent shall distribute such
payments to the Lenders entitled to receive the same promptly upon receipt in
like funds as received.
(ii) Each borrowing of Multicurrency Loans by any Foreign
Subsidiary Borrower shall be made, and any reduction of the Multicurrency
Commitments shall be allocated by the Administrative Agent, pro rata according
to the Multicurrency Commitment Percentages of the Multicurrency Lenders. Each
payment (including each prepayment) by a Foreign Subsidiary Borrower on account
of principal of and interest on Multicurrency Loans shall be allocated by the
Administrative Agent pro rata according to the respective principal amounts of
the Multicurrency Loans then due and owing by such Foreign Subsidiary Borrower
to each Multicurrency Lender. All payments (including prepayments) to be made by
a Foreign Subsidiary Borrower hereunder, whether on account of principal,
interest, fees or otherwise, shall be made without set-off or counterclaim and
shall be made at or before the payment time for the currency of such
Multicurrency Loan set forth in the Administrative Schedule, on the due date
thereof to the Administrative Agent, for the account of the Multicurrency
Lenders, at the payment office for the currency of such Multicurrency Loan set
forth in the Administrative Schedule, in the currency of such Multicurrency Loan
and in immediately available funds. The Administrative Agent shall distribute
such payments to the Multicurrency Lenders entitled to receive the same promptly
upon receipt in like funds as received.
(iii) If any payment hereunder (other than payments on the
Eurodollar Loans or the Multicurrency Loans becomes due and payable on a day
other than a Business Day, the maturity of such payment shall be extended to the
next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension. If any payment on a Eurodollar Loan or a Multicurrency Loan becomes
due and payable on a day other than a Business Day, the maturity of such payment
shall be extended to the next succeeding Business Day (and, with respect to
payments of principal, interest thereon shall be payable at the then applicable
rate during such extension) unless the result of such extension would be to
extend such payment into another calendar month, in which event such payment
shall be made on the immediately preceding Business Day.
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a Borrowing Date that such Lender will not make
the amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the applicable
Borrower a corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate per annum equal to (i) the daily average Federal
Funds Effective Rate (in the case of a borrowing of Revolving Credit Loans or
CAF Advances) and (ii) the Administrative Agent's reasonable estimate of its
average daily cost of funds (in the case of a borrowing of Multicurrency Loans),
in each case for the period until such Lender makes such
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49
amount immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this subsection shall be conclusive in the absence of manifest error. If
such Lender's share of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days of such Borrowing
Date, the applicable Borrower shall repay such Lender's share of such borrowing
(together with interest thereon from the date such amount was made available to
such Borrower (i) at the rate per annum applicable to ABR Loans hereunder (in
the case of amounts made available to the U.S. Borrower) and (ii) the
Administrative Agent's reasonable estimate of its average daily cost of funds
plus the Applicable Margin applicable to Multicurrency Loans (in the case of a
borrowing of Multicurrency Loans)) to the Administrative Agent not later than
three Business Days after receipt of written notice from the Administrative
Agent specifying such Lender's share of such borrowing that was not made
available to the Administrative Agent. Nothing contained in this subsection
7.8(b) shall prejudice any claims otherwise available to the Borrowers against
any Lender as a result of such Lender's failure to make its share of any
borrowing available to the Administrative Agent for the account of a Borrower.
7.9 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans or Multicurrency Loans as contemplated by this Agreement, (a)
the commitment of such Lender hereunder to make Eurodollar Loans or
Multicurrency Loans, continue Eurodollar Loans or Multicurrency Loans as such
and convert ABR Loans to Eurodollar Loans shall forthwith be cancelled until
such time as it shall no longer be unlawful for such Lender to make or maintain
the affected Loans, (b) such Lender's Loans then outstanding as Eurodollar
Loans, if any, shall be converted automatically to ABR Loans on the respective
last days of the then current Interest Periods with respect to such Eurodollar
Loans or within such earlier period as may be required by law and (c) such
Lender's Multicurrency Loans shall be prepaid on the last day of the then
current Interest Period with respect thereto. If any such conversion of a
Eurodollar Loan occurs on a day which is not the last day of the then current
Interest Period Interest Period with respect thereto, the U.S. Borrower shall
pay to such Lender such amounts, if any, as may be required pursuant to
subsection 7.12 .
7.10 Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or compliance
by any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority, in each case made
subsequent to the date such Lender becomes a Lender:
(i) shall subject such Lender to any tax of any kind whatsoever
with respect to this Agreement, any Revolving Credit Note, any Eurodollar
Loan made by it or any Multicurrency Loan made by it or its obligation to
make any Eurodollar Loan or Multicurrency Loan or change the basis of
taxation of payments to such Lender in respect thereof (except for taxes
covered by subsection 7.11 and changes in rate of tax on the overall net
income of such Lender);
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(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets held
by, deposits or other liabilities in or for the account of, advances, loans
or other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the Eurodollar Rate, Eurocurrency Rate or Stub Eurodollar Rate
hereunder, including, without limitation, the imposition of any reserves
with respect to Eurocurrency Liabilities under Regulation D of the Board;
or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or Multicurrency Loans or to reduce
any amount receivable hereunder in respect thereof, then, in any such case, the
applicable Borrower shall promptly pay such Lender, upon its demand, any
additional amount or amounts as will compensate such Lender for such increased
cost or reduced amount receivable. If any Lender becomes entitled to claim any
additional amounts pursuant to this subsection, it shall as soon as reasonably
practicable thereafter (but in any event within 60 days after such Lender knows
thereof) provide notice to the applicable Borrower (with a copy to the
Administrative Agent) of the event by reason of which it becomes so entitled. A
certificate with reasonable supporting detail as to any additional amounts
payable pursuant to this subsection submitted by such Lender to such Borrower
(with a copy to the Administrative Agent) shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority, in each case, made subsequent to the date hereof, does or shall have
the effect of reducing the rate of return on such Lender's or such corporation's
capital as a consequence of its obligations hereunder to a level below that
which such Lender or such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then from time to time, after submission by such
Lender to the applicable Borrower (with a copy to the Administrative Agent) of a
written request with reasonable supporting detail therefor, such Borrower shall
pay to such Lender such additional amount or amounts as will compensate such
Lender for such reduction; provided, that such Lender shall allocate in good
faith to such Borrower an amount of the reduction associated with such adoption,
change or compliance.
7.11 Taxes. (a) All payments made by the Borrowers under this
Agreement and any Revolving Credit Note shall be made free and clear of, and
without deduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions
or withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, excluding (in the case of
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51
payments made in respect of the Multicurrency Loans and the Alternate Currency
Loans) net income taxes, franchise taxes imposed in lieu of net income taxes,
taxes on gross income imposed by the United Kingdom, France or Germany, surtaxes
on any such taxes and (in the case of all other payments) taxes, in each case
imposed on the Administrative Agent or any Lender as a result of a present or
former connection between the Administrative Agent or such Lender and the
jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Administrative Agent or such Lender having
executed, delivered or performed its obligations or received a payment under, or
enforced, this Agreement, any Revolving Credit Note or any other Loan Document).
If any such non-excluded taxes, levies, imposts, duties, charges, fees,
deductions or withholdings ("Non-Excluded Taxes") are required to be withheld
from any amounts payable to the Administrative Agent or any Lender hereunder or
under any Revolving Credit Note, the amounts so payable to the Administrative
Agent or such Lender shall be increased to the extent necessary to yield to the
Administrative Agent or such Lender (after payment of all Non-Excluded Taxes)
interest or any such other amounts payable hereunder at the rates and in the
amounts specified in this Agreement, provided, however, that (i) the U.S.
Borrower shall not be required to increase any such amounts payable to any
Lender that is not organized under the laws of the United States of America or a
state thereof if such Lender fails to comply with the requirements of paragraph
(b) of this subsection, and (ii) a Foreign Subsidiary Borrower shall not be
required to increase any such amounts payable to any Lender if such Lender fails
to comply with the requirements of paragraph (c) of this subsection. Whenever
any Non-Excluded Taxes are payable by a Borrower, as promptly as possible
thereafter such Borrower shall send to the Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by such Borrower showing payment
thereof. If a Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, such Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure. The agreements in this subsection shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
(i) at least five Business Days before the date of the initial
payment to be made by the U.S. Borrower under this Agreement to such
Lender, deliver to the U.S. Borrower and the Administrative Agent (A) two
duly completed copies of United States Internal Revenue Service Form 1001
or 4224, or successor applicable form, as the case may be, certifying that
it is entitled to receive payments under this Agreement without deduction
or withholding of any United States federal income taxes and (B) an
Internal Revenue Service Form W-8 or W-9, or successor applicable form, as
the case may be, certifying that it is entitled to an exemption from United
States backup withholding tax;
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52
(ii) deliver to the U.S. Borrower and the Administrative Agent
two further copies of any such form or certification at least five Business
Days before the date that any such form or certification expires or becomes
obsolete and after the occurrence of any event requiring a change in the
most recent form previously delivered by it to the Administrative Agent and
the U.S. Borrower; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the U.S.
Borrower or the Administrative Agent;
and each Lender (or Transferee) that is incorporated or organized under the laws
of the United States of America or a State thereof shall provide two properly
completed and duly executed copies of Form W-9, or successor applicable form, at
the times specified for delivery of forms under paragraph (b)(i) of this
subsection unless an event (including, without limitation, any change in treaty,
law or regulation) has occurred after the date such Person becomes a Lender
hereunder which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with respect to it and
such Lender so advises the U.S. Borrower and the U.S. Administrative Agent;
provided, however, that the U.S. Borrower may rely upon such forms provided to
the U.S. Borrower for all periods prior to the occurrence of such event. Each
Person that shall become a Lender or a Participant pursuant to subsection 15.6
shall, upon the effectiveness of the related transfer, be required to provide
all of the forms, certifications and statements required pursuant to this
subsection, provided that in the case of such Participant such Participant shall
furnish all such required forms, certifications and statements to the Lender
from which the related participation shall have been purchased.
(c) Each Lender that is not incorporated or organized under the laws
of the jurisdiction under which a Foreign Subsidiary Borrower is incorporated or
organized shall, upon request by such Foreign Subsidiary Borrower, within a
reasonable period of time after such request, deliver to such Foreign Subsidiary
Borrower or the applicable governmental or taxing authority, as the case may be,
any form or certificate required in order that any payment by such Foreign
Subsidiary Borrower under this Agreement or any Notes to such Lender may be made
free and clear of, and without deduction or withholding for or on account of any
Non-Excluded Tax (or to allow any such deduction or withholding to be at a
reduced rate) imposed on such payment under the laws of the jurisdiction under
which such Foreign Subsidiary Borrower is incorporated or organized, provided
that such Lender is legally entitled to complete, execute and deliver such form
or certificate and such completion, execution or submission would not materially
prejudice the legal position of such Lender.
7.12 Indemnity. Each Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of (a) default by such Borrower in payment when due of
the principal amount of or interest on any Eurodollar Loan or Multicurrency
Loan, (b) default by such Borrower in making a borrowing of, conversion into or
continuation of Eurodollar Loans or Money Market Rate Swing Line Loans after
such Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (c) default by such Borrower in making
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53
any prepayment after such Borrower has given a notice thereof in accordance with
the provisions of this Agreement or (d) the making by such Borrower of a
prepayment of Eurodollar Loans or Multicurrency Loans on a day which is not the
last day of an Interest Period with respect thereto, or the making by such
Borrower of a prepayment of Money Market Rate Swing Line Loans on a day which is
not the last day of the interest period with respect thereto, including, without
limitation, in each case, any such loss or expense arising from the reemployment
of funds obtained by it or from fees payable to terminate the deposits from
which such funds were obtained. Such indemnification may include an amount equal
to the excess, if any, of (i) the amount of interest which would have accrued on
the amount so prepaid, or not so borrowed, converted or continued, for the
period from the date of such prepayment or of such failure to borrow, convert or
continue to the last day of such Interest Period or interest period (or, in the
case of a failure to borrow, convert or continue, the Interest Period or
interest period that would have commenced on the date of such failure) in each
case at the applicable rate of interest for such Loans provided for herein
(excluding, however, the Applicable Margin included therein, if any) over (ii)
the amount of interest (as reasonably determined by such Lender) which would
have accrued to such Lender on such amount by placing such amount on deposit for
a comparable period with leading banks in the interbank eurodollar market. All
payments required to be made by any Borrower to any Lender under this subsection
7.12 shall be made no later than 30 days after receipt by such Borrower of a
written notice from such Lender setting forth in reasonable detail the basis
upon which such Lender is entitled to receive such payments. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
7.13 Change of Lending Office. Each Lender agrees that if it makes
any demand for payment under subsection 7.10 or 7.11(a), or if any adoption or
change of the type described in subsection 7.9 shall occur with respect to it,
it will use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions and so long as such efforts would not be materially
disadvantageous to it, as determined in its sole discretion) to designate a
different lending office if the making of such a designation would reduce or
eliminate the need for a Borrower to make payments under subsection 7.10 or
7.11(a), or would eliminate or reduce the effect of any adoption or change
described in subsection 7.9.
7.14 Substitution of Lender. (a) In the event any Borrower is
required to pay any additional amounts pursuant to subsections 7.10 or 7.11(a),
such Borrower may, so long as no Event of Default has occurred and is
continuing, require any Lender claiming such additional amounts, upon five
Business Days' prior written notice from such Borrower, to assign the entire
then outstanding principal amount of the Loans owing to such Lender and the
entire Revolving Credit Commitment (and, if applicable, Multicurrency Commitment
and Alternate Currency Facility) of such Lender to another bank or financial
institution selected by such Borrower and, if such bank or financial institution
is not then a Lender, reasonably satisfactory to the Administrative Agent. Any
such assignment shall be effected in accordance with subsection 15.6(c) and, as
a condition to such assignment, such Borrower shall pay all amounts due to such
Lender hereunder on the effective date of such assignment.
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54
(b) In the event that any Multicurrency Lender (including a
Transferee) does not, for any reason, deliver all forms and certificates
required to permit all payments by all Foreign Subsidiary Borrowers hereunder to
be made free and clear of, and without deduction or withholding for or on
account of, any Non-Excluded Taxes, the U.S. Borrower may, so long as no Event
of Default has occurred and is continuing, require such Multicurrency Lender,
upon five Business Days' prior written notice from the U.S. Borrower, to assign
the entire then outstanding principal amount of the Multicurrency Loans owing to
such Multicurrency Lender and the entire Multicurrency Commitment of such
Multicurrency Lender to another Lender selected by the U.S. Borrower which,
after giving effect to such assignment, will have a U.S. Revolving Credit
Commitment in excess of its Multicurrency Commitment. In the case of any such
assignment to another Lender, such assignee Lender shall assign to such assignor
Multicurrency Lender a principal amount of outstanding Revolving Credit Loans
owing to such assignee Lender equal to the lesser of (i) the U.S. Dollar
Equivalent of the amount of Multicurrency Loans assigned to such assignee Lender
and (ii) the aggregate outstanding principal amount of Revolving Credit Loans
owing to such assignee Lender. Any such assignments pursuant to the two
precedent sentences shall be effected in accordance with subsection 15.6(c) and,
as a condition to such assignment, simultaneously with such assignment, the U.S.
Borrower shall pay all amounts due to the assignor Multicurrency Lender and the
assignee Lender hereunder on the effective date of such assignments.
7.15 Use of Proceeds. The proceeds of the Loans shall be used (a) as
provided in Annex A, (b) to pay fees and expenses incurred by the Borrowers in
connection with this Agreement and (c) for working capital and other general
corporate purposes of the Borrowers and their Subsidiaries, including
investments and acquisitions.
SECTION 8. REPRESENTATIONS AND WARRANTIES
Each of the U.S. Borrower and the Foreign Subsidiary Borrowers
(insofar as the representations and warranties set forth below relate
respectively to such Foreign Subsidiary Borrower) represents and warrants to the
Administrative Agent and each Lender that:
8.1 Financial Condition. The balance sheet of the U.S. Borrower and
its Consolidated Subsidiaries as at December 31, 1995, which has heretofore been
delivered to each Lender, fairly presents in all material respects and in
conformity with GAAP the financial position of the U.S. Borrower and its
Consolidated Subsidiaries as at December 31, 1995.
8.2 No Change. Since December 31, 1995, there has been no development
or event which has had or would be reasonably expected to have a Material
Adverse Effect.
8.3 Corporate Existence; Compliance with Law. Each of the U.S.
Borrower and each Subsidiary of the U.S. Borrower (a) is duly incorporated or
organized and is validly existing as a corporation or other legal entity in good
standing in the jurisdiction of its
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55
incorporation or organization, (b) has the corporate or other power and
authority to own, lease and operate its properties and to conduct the business
in which it is currently engaged, (c) is duly qualified to transact business as
a foreign corporation or other legal entity and is in good standing or otherwise
appropriately qualified in each jurisdiction where its ownership, leasing or
operation of property or the conduct of its business requires such
qualification, except to the extent that any failure to be so qualified and in
good standing would not be reasonably expected to have a Material Adverse
Effect, and (d) is in compliance with all Requirements of Law except to the
extent that the failure to comply therewith would not, in the aggregate, be
reasonably expected to have a Material Adverse Effect.
8.4 Corporate Power; Authorization; Enforceable Obligations. Each
Borrower has the corporate power and authority to make, deliver and perform the
Loan Documents to which it is a party and to borrow hereunder and has taken all
necessary corporate action to authorize the borrowings on the terms and
conditions of this Agreement and to authorize the execution, delivery and
performance of the Loan Documents to which it is a party. No consent or
authorization of, filing with, notice to or other act by or in respect of, any
Governmental Authority or any other Person is required to be obtained or made by
or on behalf of any Borrower in connection with the borrowings hereunder or with
the execution, delivery, performance, validity or enforceability of the Loan
Documents to which any Borrower is a party, except for any of the foregoing
described in Schedule 8.4, all of which have been obtained or made. This
Agreement and each other Loan Document to which any Borrower is, or is to
become, a party has been or will be duly executed and delivered on behalf of
such Borrower. This Agreement and each other Loan Document to which any Borrower
is, or is to become, a party constitutes or will constitute, a legal, valid and
binding obligation of such Borrower enforceable against such Borrower in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
8.5 No Legal Bar. The execution, delivery and performance of the Loan
Documents by each Borrower, the borrowings hereunder and the use of the proceeds
thereof (a) will not violate any Requirement of Law or Contractual Obligation of
any Borrower or any Subsidiary of any Borrower, in each case in any respect that
would reasonably be expected to have a Material Adverse Effect and (b) will not
result in, or require, the creation or imposition of any Lien on any of its or
their respective assets or properties pursuant to any such Requirement of Law or
Contractual Obligation.
8.6 No Material Litigation. There are no actions, suits,
investigations or proceedings of or before any arbitrator or Governmental
Authority pending by or against or affecting any Borrower or any Subsidiary of
any Borrower or, to the best knowledge of any Borrower, threatened by or against
or affecting any Borrower or any Subsidiary of any Borrower or against any
assets or properties of any Borrower or any Subsidiary of any Borrower (a) on
and as of the Effective Date, with respect to any of the Loan Documents or any
of the transactions contemplated thereby or (b) which would be reasonably
expected to have a Material Adverse Effect.
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56
8.7 No Default. Neither any Borrower nor any Subsidiary of any
Borrower is in default under or with respect to any of its Contractual
Obligations in any respect which would be reasonably expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
8.8 Taxes. All United States federal income tax returns and all other
material tax returns which are required to be filed by, or with respect to, each
Borrower or any Subsidiary of such Borrower have been filed, and all taxes and
assessments due and payable by each Borrower or any Subsidiary of such Borrower
(or for which they could be liable) have been paid other than (a) those not yet
delinquent, (b) those which, if not paid, would not be reasonably expected to
have a Material Adverse Effect and (c) those the amount or validity of which are
currently being contested in good faith by appropriate proceedings diligently
conducted and with respect to which reserves in conformity with GAAP have been
provided on the books of such Borrower or such Subsidiary, as applicable; and no
material tax Lien (other than those permitted by subsection 11.2) has been filed
with respect to any such tax, fee or other charge; and, to the best knowledge of
each Borrower, no claim is being asserted with respect to any such tax, fee or
other charge (other than real property taxes that are not yet delinquent) which,
individually or in the aggregate, would be reasonably expected to have a
Material Adverse Effect.
8.9 Federal Regulations. No part of the proceeds of any Loans will be
used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation G or Regulation U of the
Board as now and from time to time hereafter in effect in violation of such
regulations.
8.10 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Single Employer Plan,
and each Plan (other than a Multiemployer Plan) has complied in all material
respects with the applicable provisions of ERISA and the Code, where any such
occurrence or failure to comply has or is reasonably likely to result in a
Material Adverse Effect. No termination of a Single Employer Plan has occurred
(other than a standard termination within the meaning of Section 4041 of ERISA).
There is no outstanding Lien on the assets of the U.S. Borrower or any Commonly
Controlled Entity in favor of the PBGC or a Plan. Neither the U.S. Borrower nor
any Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan, and neither the U.S. Borrower nor any Commonly Controlled
Entity would become subject to any liability under ERISA if the U.S. Borrower or
any such Commonly Controlled Entity were to withdraw completely from all
Multiemployer Plans as of the valuation date most closely preceding the date on
which this representation is made or deemed made, except to the extent that such
complete or partial withdrawal or such liability (or any aggregation thereof)
would not be reasonably expected to have a Material Adverse Effect. No such
Multiemployer Plan is in Reorganization or Insolvent.
8.11 Investment Company Act; Other Regulations. The U.S. Borrower is
not an "investment company", or a company "controlled" by an "investment
company", within the
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meaning of the Investment Company Act of 1940, as amended. No Borrower is
subject to regulation under any United States (Federal or state) or other
Requirement of Law which limits its ability to incur Indebtedness as
contemplated hereby.
SECTION 9. CONDITIONS PRECEDENT
9.1 Conditions to Effectiveness of this Agreement. This Agreement
shall become effective on the date on which the following conditions precedent
have been satisfied or waived:
(a) Execution of Agreement. The Administrative Agent shall have
received this Agreement, executed and delivered by a duly authorized
officer of each Borrower, with a copy for each Lender.
(b) Consents, Licenses and Approvals. The Administrative Agent shall
have received (and made available to each Lender requesting the same), a
certificate of a Responsible Officer of the U.S. Borrower (i) attaching
copies of all consents, authorizations, notices and filings referred to in
subsection 8.4, and (ii) stating that such consents, authorizations,
notices and filings are in full force and effect.
(c) Legal Opinions. The Administrative Agent shall have received
(with a copy for each Lender) the following executed legal opinions:
(i) the legal opinion of Richard S. Brennan, General Counsel
of Case and counsel to the U.S. Borrower, substantially in the form of
Exhibit H; and
(ii) the legal opinion of Mayer, Brown & Platt, special
counsel to the U.S. Borrower and its Subsidiaries, substantially in
the form of Exhibit I.
(d) Corporate Proceedings. The Administrative Agent shall have
received (and made available to each Lender) a copy of the resolutions, in
form and substance reasonably satisfactory to the Administrative Agent and
each Lender, of the Board of
Directors of the U.S. Borrower authorizing, as applicable, (i) the
execution, delivery and performance of this Agreement and the other Loan
Documents to which it is a party and (ii) the borrowings contemplated
hereunder, certified by the Secretary or an Assistant Secretary of such
Person as of the Effective Date, which certificate shall be in form and
substance reasonably satisfactory to each Lender and shall state that the
resolutions thereby certified have not been amended, modified (except as
any later such resolution may modify any earlier such resolution), revoked
or rescinded.
(e) Incumbency Certificates. The Administrative Agent shall have
received (and made available to each Lender), a certificate of each
Borrower, dated the Effective Date, as to the incumbency and signature of
the officers of such Borrower executing this Agreement, reasonably
satisfactory in form and substance to the
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Administrative Agent and each Lender, executed by the Secretary or any
Assistant Secretary of such Borrower.
(f) Corporate Documents. The Administrative Agent shall have
received (and made available to each Lender) copies of the certificate of
incorporation and by-laws of the U.S. Borrower, certified as of the
Effective Date as complete and correct copies thereof by the Secretary or
an Assistant Secretary of such Borrower.
(g) Existing Credit Agreement. All amounts outstanding under the
Existing Credit Agreement shall have been repaid in the manner prescribed
by Annex A.
(h) Support Agreement. The Administrative Agent shall have received
(and made available to each Lender) a copy of the Support Agreement,
certified by a Responsible Officer of the U.S. Borrower to be a true copy
thereof.
(i) Release of Guarantee. The Administrative Agent shall have
received (and made available to each Lender) a Certificate of a Responsible
Officer of the U.S. Borrower certifying (and setting forth calculations
supporting such certification) that simultaneously with the effectiveness
of this Agreement, the guarantee of Case of the U.S. Borrower's
$200,000,000 aggregate principal notes due February 15, 2003, issued under
the Indenture, dated as of February 1, 1996, among the U.S. Borrower, as
issuer, Case, as guarantor, and The Bank of New York, as trustee, will be
released.
(j) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents
shall be satisfactory in form and substance to the Administrative Agent,
and the Administrative Agent shall have received such other documents and
legal opinions in respect of any aspect or consequence of the transactions
contemplated hereby or thereby as they shall reasonably request.
9.2 Conditions to Each Extension of Credit. The agreement of each
Lender to make any Extension of Credit requested to be made by it on any
Borrowing Date (including, without limitation, the Extensions of Credit to be
made on the Effective Date and each Swing Line Loan) is subject to the
satisfaction or waiver of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the Borrower requesting such Extension of Credit and by
the U.S. Borrower in or pursuant to this Agreement or any other Loan
Document to which it is a party shall, except to the extent that they
relate to a particular date, be true and correct in all material respects
on and as of such Borrowing Date (both before and after giving effect to
the Extension of Credit to be made on such Borrowing Date) as if made on
and as of such Borrowing Date; provided, however, that the representations
and warranties set forth in subsection 8.2 shall be made only on the
Effective Date.
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(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such Borrowing Date, both before and after giving
effect to the Extensions of Credit requested to be made on such Borrowing
Date.
(c) Foreign Subsidiary Opinion. If such requested Extension of
Credit is the initial Multicurrency Loan to be made to any Foreign
Subsidiary Borrower, the Administrative Agent shall have received (with a
copy for each Lender) a Foreign Subsidiary Opinion in respect of such
Foreign Subsidiary Borrower.
Each Extension of Credit made to a Borrower hereunder shall constitute a
representation and warranty by such Borrower as of the date of such Extension of
Credit that the conditions contained in this subsection 9.2 have been satisfied.
SECTION 10. AFFIRMATIVE COVENANTS
The U.S. Borrower hereby agrees that, so long as the Commitments (or
any of them) remain in effect or any Loan remains outstanding and unpaid or any
other amount is owing to any Lender or the Administrative Agent hereunder or
under any other Loan Document, the U.S. Borrower shall and (except in the case
of (i) delivery of financial information, reports and notices pursuant to
subsection 10.2(b), (c) and (d) which shall only be delivered by the U.S.
Borrower and (ii) delivery of financial information, reports and notices
pursuant to any other subsection of this Section 10 which shall only be
delivered by the U.S. Borrower) shall cause each of its Subsidiaries to:
10.1 Financial Statements. Furnish to the Administrative Agent (with
a copy for each Lender):
(a) as soon as practicable, but in any event within 120 days after
the end of each fiscal year of the U.S. Borrower a copy of the consolidated
balance sheet of the U.S. Borrower and its Consolidated Subsidiaries as at
the end of such year and the related consolidated statements of income and
retained earnings and of cash flows for such year, setting forth in each
case in comparative form the figures for the previous year, reported on
without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by independent
certified public accountants of nationally recognized standing selected by
such Borrower; and
(b) as soon as practicable, but in any event not later than 60 days
after the end of each of the first three quarterly periods of each fiscal
year of the U.S. Borrower the unaudited consolidated balance sheet of the
U.S. Borrower and its Consolidated Subsidiaries as at the end of such
quarter and the related unaudited consolidated statements of income and
retained earnings and of cash flows for such quarter and the portion of the
fiscal year through the end of such quarter, setting forth in the case of
such consolidated financial statements covering any fiscal quarter in
comparative form the figures for the previous year, certified by a
Responsible Officer of the U.S.
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Borrower as being fairly stated in all material respects (subject to normal
year-end audit adjustments).
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
10.2 Certificates; Other Information. Furnish to the Administrative
Agent (with a copy for each Lender):
(a) concurrently with the delivery of the financial statements
referred to in subsection 10.1(a), a certificate of the independent
certified public accountants reporting on such financial statements stating
that in making the examination necessary therefor no knowledge was obtained
of any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 10.1(a) and 10.1(b), a certificate of a
Responsible Officer of the U.S. Borrower, (i) stating that, to the best of
such Officer's knowledge, each Borrower during such period has observed or
performed all of its covenants and other agreements, and satisfied every
condition, contained in this Agreement and the other Loan Documents to
which it is a party to be observed, performed or satisfied by it, and that
such Officer has obtained no knowledge of any Default or Event of Default
except as specified in such certificate and (ii) setting forth (in
reasonable detail) the calculations required to determine compliance with
the covenants set forth in subsection 11.1;
(c) no later than 30 days after the filing thereof with the
Securities and Exchange Commission or any successor or analogous
Governmental Authority, final copies of all financial statements and
material reports which the U.S. Borrower may make to, or file with such
entities and final copies of all filings made by the U.S. Borrower with
such entities with respect to the sale of indebtedness of the U.S. Borrower
to the public or with respect to any asset-backed receivables transaction
entered into by the U.S. Borrower or any of its Subsidiaries (including,
without limitation, registration statements and prospectuses and amendments
thereto); and
(d) promptly, such additional financial and other information as any
Lender, through the Administrative Agent, may from time to time reasonably
request.
10.3 Payment of Obligations. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, except where (a) the amount or validity thereof
is currently being contested in good faith by appropriate proceedings and
reserves in conformity with GAAP with respect thereto have been provided on the
books of such Borrower or its Subsidiaries, as the case may be, or (b) the
failure to so pay, discharge or satisfy all such obligations could not, in the
aggregate,
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have a Material Adverse Effect and would not subject any property of such
Borrower or any of its Subsidiaries to any Lien not permitted by subsection
11.2.
10.4 Conduct of Business and Maintenance of Existence. Continue to
engage in business of the same general type as now conducted by it and preserve,
renew and keep in full force and effect its corporate existence and take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business; and comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to comply
therewith could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
10.5 Maintenance of Property; Insurance. Keep all property useful
and necessary in its business in good working order and condition; maintain with
financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks (but including
in any event public liability, product liability and business interruption) as
are usually insured against in the same general area by companies engaged in the
same or a similar business.
10.6 Inspection of Property; Books and Records; Discussions. Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of the Administrative Agent to visit and inspect any of its
properties and examine any of its books and records at any reasonable time and
with reasonable prior notice, and to discuss the business, operations,
properties and financial and other condition of such Borrower and its
Subsidiaries with officers and employees of such Borrower and its Subsidiaries
and with its independent certified public accountants.
10.7 Notices. Promptly (but in any event no later than three days,
or in the case of clause (b), 10 days, or in the case of clause (d) below, 30
days, in each case, after a Responsible Officer of such Borrower knows thereof)
give notice to the Administrative Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of such Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between such
Borrower or any of its Subsidiaries and any Governmental Authority, which
in either case, if not cured or if adversely determined, as the case may
be, could have a Material Adverse Effect;
(c) any litigation or proceeding affecting such Borrower or any of
its Subsidiaries in which the amount involved is $60,000,000 or more and
not covered by insurance or in which injunctive or similar relief is
sought; and
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(d) any development or event which has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer of such Borrower setting forth details of the occurrence
referred to therein and stating what action such Borrower and/or its
Subsidiaries propose to take with respect thereto.
10.8 Foreign Subsidiary Opinions. Within 90 days after the Effective
Date (and in any event prior to the initial Extension of Credit to such Foreign
Subsidiary Borrower), deliver to the Administrative Agent (with a copy for each
Lender) a Foreign Subsidiary Opinion for each Foreign Subsidiary Borrower that
is a party to this Agreement on the Effective Date.
SECTION 11. NEGATIVE COVENANTS
The U.S. Borrower hereby agrees that, so long as the Commitments (or
any of them) remain in effect, any Loan or Revolving Credit Note remains
outstanding and unpaid or any other amount is owing to any Lender or the
Administrative Agent hereunder or under any other Loan Document, the U.S.
Borrower shall not, directly or indirectly:
11.1 Financial Condition Covenants.
(a) Case Credit Debt to Consolidated Net Worth Ratio. Permit the
ratio of the Case Credit Debt to Consolidated Net Worth of the U.S. Borrower at
any time to be greater than 8.00 to 1.00.
(b) Fixed Charge Coverage Ratio. Permit, for any period of four
consecutive fiscal quarters ending on the last day of any fiscal quarter of the
U.S. Borrower, the Fixed Charge Coverage Ratio for such period to be less than
1.10 to 1.00.
11.2 Limitation on Liens. Create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes not yet due and payable (or which will be paid
promptly) or which are being contested in good faith by appropriate
proceedings, provided that adequate reserves with respect thereto are
maintained on the books of the U.S. Borrower or its Subsidiaries, as the
case may be, in conformity with GAAP;
(b) Liens on assets of the U.S. Borrower or any Subsidiary of the
U.S. Borrower consisting of pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security legislation
and deposits securing liability to insurance carriers under insurance or
self-insurance arrangements;
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(c) Liens on assets of the U.S. Borrower or any Subsidiary of the
U.S. Borrower consisting of rights of lessees under leases, easements,
rights-of-way, restrictions and other similar encumbrances incurred in the
ordinary course of business which, in the aggregate, are not substantial in
amount and which do not in any case materially detract from the value of
the property subject thereto or materially interfere with the ordinary
conduct of the business of the U.S. Borrower or such Subsidiary;
(d) Liens on assets of the U.S. Borrower or any Subsidiary of the
U.S. Borrower consisting of deposits to secure the performance of leases
(other than Financing Leases), statutory obligations, surety and appeal
bonds and other obligations of a like nature incurred in the ordinary
course of business of the U.S. Borrower or such Subsidiary;
(e) Liens created by the U.S. Borrower in favor of itself;
(f) Liens which are granted pursuant to any securitization or other
asset-based financing of Receivables and Receivables Related Assets, and
which cover only Receivables and Receivables Related Assets or any
undivided or beneficial ownership interest in any Receivables or
Receivables Related Assets;
(g) Liens in existence on the date hereof and listed in Schedule
11.2, provided that (a) no such Lien is extended to cover any additional
property after the date hereof (except to the extent required by the terms
of the Indebtedness secured thereby or any other agreement governing such
Lien as such terms are in effect on the Effective Date), (b) no such Lien
secures any Indebtedness or other obligations other than Indebtedness or
other obligations secured by it on the date hereof and refinancings,
refundings, renewals or extensions of such Indebtedness or other
obligations and (c) the amount of Indebtedness or other obligations secured
by any such Lien is not increased;
(h) Liens on assets of Subsidiaries of the U.S. Borrower which become
Subsidiaries after the Effective Date or Liens on assets acquired by the
U.S. Borrower or any of its Subsidiaries after the Effective Date; provided
that (i) such Liens were in existence at the time such Subsidiary became a
Subsidiary or at the time such assets were acquired and (ii) no such Liens
were created in contemplation of the transaction pursuant to which such
Subsidiary became a Subsidiary or in contemplation of the acquisition of
such assets; and
(i) in addition to Liens permitted by paragraphs (a) through (h) of
this subsection 11.2, Liens on assets of the U.S. Borrower or any of its
Subsidiaries securing Indebtedness of the U.S. Borrower or such Subsidiary;
provided that the aggregate principal amount of all Indebtedness secured by
such Liens, plus the aggregate outstanding amount of all Attributable Debt
in respect of all sale and leaseback transactions to which the U.S.
Borrower or any Restricted Subsidiary is a party, does not exceed at the
time such Liens are granted an amount equal to the sum of (i) $20,000,000
and (ii) 5% of Consolidated Net Tangible Assets of the U.S.
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Borrower and its Consolidated Subsidiaries; provided, that in calculating
the amount of Attributable Debt permitted pursuant to this paragraph (i),
there shall be excluded all Attributable Debt in respect of sale and
leaseback transactions relating to assets of Subsidiaries of the U.S.
Borrower which become Subsidiaries after the Effective Date if such sale
and leaseback transactions were in existence at the time such Subsidiary
became a Subsidiary and were not created in contemplation of the
transaction pursuant to which such Subsidiary became a Subsidiary.
11.3 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets except any entity may be merged or consolidated with or into the U.S.
Borrower (provided that (a) the U.S. Borrower shall be the continuing or
surviving corporation or (b) the Indebtedness under this Agreement is assumed by
the surviving corporation with the approval of the Majority Lenders).
11.4 Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary, except for (a) the financing of
Receivables of Case, its Subsidiaries and their Dealers and customers, (b) other
financial services related to the agricultural and construction business and (c)
other business; provided that the business of the U.S. Borrower and its
Subsidiaries taken as a whole will be limited substantially to the businesses
described in clauses (a) and (b) of this subsection 11.4.
SECTION 12. GUARANTEE
12.1 Guarantee. (a) The U.S. Borrower hereby unconditionally and
irrevocably guarantees to the Administrative Agent, for the ratable benefit of
the Administrative Agent and the Lenders and their respective successors,
indorsees, transferees and assigns, the prompt and complete payment and
performance by the Foreign Subsidiary Borrowers and any Alternate Currency
Borrower when due (whether at the stated maturity, by acceleration or otherwise)
of the Obligations.
(b) The U.S. Borrower further agrees to pay any and all expenses
(including, without limitation, all reasonable fees and disbursements of
counsel, provided that the U.S. Borrower shall only be required to pay the fees
and disbursements of (i) one counsel for the Administrative Agent, (ii) one
counsel for the Lenders and (iii) one counsel for the Administrative Agent and
the Multicurrency Lenders in the jurisdiction of each Foreign Subsidiary
Borrower) which may be paid or incurred by the Administrative Agent, or any
Lender in enforcing, or obtaining advice of counsel in respect of, any rights
with respect to, or collecting, any or all of the Obligations and/or enforcing
any rights with respect to, or collecting against, the U.S. Borrower under this
Section. This Section shall remain in full force and effect until the
Obligations are paid in full and the Commitments are terminated, notwithstanding
that from time to time prior thereto the Borrowers may be free from any
Obligations.
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(c) No payment or payments made by any Borrower or any other Person
or received or collected by the Administrative Agent or any Lender from any
Borrower or any other Person by virtue of any action or proceeding or any set-
off or appropriation or application, at any time or from time to time, in
reduction of or in payment of the Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of the U.S. Borrower hereunder which
shall, notwithstanding any such payment or payments, remain liable hereunder for
the Obligations until the Obligations are paid in full and the Commitments are
terminated.
(d) The U.S. Borrower agrees that whenever, at any time, or from time
to time, it shall make any payment to the Administrative Agent or any Lender on
account of its liability hereunder, it will notify the Administrative Agent and
such Lender in writing that such payment is made under this Section for such
purpose.
12.2 Right of Set-off. The Administrative Agent and each Lender is
hereby irrevocably authorized at any time and from time to time without notice
to the U.S. Borrower, any such notice being expressly waived by the U.S.
Borrower, to set off and appropriate and apply any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by the Administrative Agent or such Lender (or any Affiliate of such
Lender) to or for the credit or the account of the U.S. Borrower, or any part
thereof in such amounts as the Administrative Agent or such Lender may elect,
against or on account of the obligations and liabilities of the U.S. Borrower to
the Administrative Agent or such Lender hereunder which are then due and payable
and claims of every nature and description of the Administrative Agent or such
Lender against the U.S. Borrower, in any currency, whether arising hereunder,
under any other Loan Document or otherwise in connection therewith, as the
Administrative Agent or such Lender may elect, whether or not the Administrative
Agent or such Lender has made any demand for payment. The Administrative Agent
and each Lender shall notify the U.S. Borrower promptly of any such set-off and
the application made by the Administrative Agent or such Lender, as the case may
be, of the proceeds thereof; provided that the failure to give such notice shall
not affect the validity of such set-off and application. The rights of the
Administrative Agent and each Lender under this subsection are in addition to
other rights and remedies (including, without limitation, other rights of set-
off) which the Administrative Agent or such Lender may have.
12.3 No Subrogation. Notwithstanding any payment or payments made by
the U.S. Borrower hereunder, or any set-off or application of funds of the U.S.
Borrower by the Administrative Agent or any Lender, the U.S. Borrower shall not
be entitled to be subrogated to any of the rights of the Administrative Agent or
any Lender against the Borrowers or against any collateral security or guarantee
or right of offset held by the Administrative Agent or any Lender for the
payment of the Obligations, nor shall the U.S. Borrower seek or be entitled to
seek any contribution or reimbursement from the Borrowers in respect of payments
made by the U.S. Borrower hereunder, until all amounts owing to the
Administrative Agent and the Lenders by the Borrowers on account of the
Obligations are paid in full and the Commitments are terminated. If any amount
shall be paid to the U.S. Borrower on account
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of such subrogation rights at any time when all of the Obligations shall not
have been paid in full, such amount shall be held by the U.S. Borrower in trust
for the Administrative Agent and the Lenders, segregated from other funds of the
U.S. Borrower, and shall, forthwith upon receipt by the U.S. Borrower, be turned
over to the Administrative Agent in the exact form received by the U.S. Borrower
(duly indorsed by the U.S. Borrower to the Administrative Agent, if required),
to be applied against the Obligations, whether matured or unmatured, in such
order as Administrative Agent may determine. The provisions of this paragraph
shall be effective until the date which is 370 days after the termination of
this Agreement and the payment in full of the Obligations and the termination of
the Commitments.
12.4 Amendments, etc. with respect to the Obligations; Waiver of
Rights. The U.S. Borrower shall remain obligated hereunder notwithstanding that,
without any reservation of rights against the U.S. Borrower, and without notice
to or further assent by the U.S. Borrower, any demand for payment of any of the
Obligations made by the Administrative Agent or any Lender may be rescinded by
the Administrative Agent or such Lender, and any of the Obligations continued,
and the Obligations, or the liability of any other party upon or for any part
thereof, or any collateral security or guarantee therefor or right of offset
with respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released by the Administrative Agent or any Lender, and any Loan Documents and
any other documents executed and delivered in connection therewith may be
amended, modified, supplemented or terminated, in whole or in part, in
accordance with the provisions thereof as the Administrative Agent (or the
requisite Lenders, as the case may be) may deem advisable from time to time, and
any collateral security, guarantee or right of offset at any time held by the
Administrative Agent or any Lender for the payment of the Obligations may be
sold, exchanged, waived, surrendered or released. None of the Administrative
Agent or any Lender shall have any obligation to protect, secure, perfect or
insure any Lien at any time held by it as security for the Obligations or for
this Agreement or any property subject thereto. When making any demand hereunder
against the U.S. Borrower, the Administrative Agent or any Lender may, but shall
be under no obligation to, make a similar demand on the Borrowers or any other
guarantor, and any failure by the Administrative Agent or any Lender to make any
such demand or to collect any payments from the Borrower or any such other
guarantor or any release of the Borrowers or such other guarantor shall not
relieve the U.S. Borrower of its obligations or liabilities hereunder, and shall
not impair or affect the rights and remedies, express or implied, or as a matter
of law, of the Administrative Agent or any Lender against the U.S. Borrower. For
the purposes hereof "demand" shall include the commencement and continuance of
any legal proceedings.
12.5 Guarantee Absolute and Unconditional. The U.S. Borrower waives
any and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Administrative Agent or
any Lender upon this Agreement or acceptance of this Agreement; the Obligations,
and any of them, shall conclusively be deemed to have been created, contracted
or incurred, or renewed, extended, amended or waived, in reliance upon this
Agreement; and all dealings between the Borrowers and the U.S. Borrower, on the
one hand, and the Administrative Agent and the Lenders, on the other, shall
likewise be conclusively presumed to have been had or consummated in
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reliance upon this Agreement. The U.S. Borrower waives diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon the
Borrowers and the U.S. Borrower with respect to the Obligations. This Section 12
shall be construed as a continuing, absolute and unconditional guarantee of
payment without regard to (a) the validity, regularity or enforceability of this
Agreement, any other Loan Document, any of the Obligations or any other
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the Administrative Agent or any
Lender, (b) any defense, set-off or counterclaim (other than a defense of
payment or performance) which may at any time be available to or be asserted by
the Borrowers against the Administrative Agent or any Lender, or (c) any other
circumstance whatsoever (with or without notice to or knowledge of the Borrowers
or the U.S. Borrower) which constitutes, or might be construed to constitute, an
equitable or legal discharge of the Borrowers for the Obligations, or of the
U.S. Borrower under this Section 12, in bankruptcy or in any other instance.
When pursuing its rights and remedies hereunder against the U.S. Borrower, the
Administrative Agent and any Lender may, but shall be under no obligation to,
pursue such rights and remedies as it may have against the Borrowers or any
other Person or against any collateral security or guarantee for the Obligations
or any right of offset with respect thereto, and any failure by the
Administrative Agent or any Lender to pursue such other rights or remedies or to
collect any payments from the Borrower or any such other Person or to realize
upon any such collateral security or guarantee or to exercise any such right of
offset, or any release of the Borrowers or any such other Person or of any such
collateral security, guarantee or right of offset, shall not relieve the U.S.
Borrower of any liability hereunder, and shall not impair or affect the rights
and remedies, whether express, implied or available as a matter of law, of the
Administrative Agent or any Lender against the U.S. Borrower. This Section 12
shall remain in full force and effect and be binding in accordance with and to
the extent of its terms upon the U.S. Borrower and its successors and assigns,
and shall inure to the benefit of the Administrative Agent and the Lenders, and
their respective successors, indorsees, transferees and assigns, until all the
Obligations and the obligations of the U.S. Borrower under this Agreement shall
have been satisfied by payment in full and the Commitments shall be terminated,
notwithstanding that from time to time during the term of this Agreement the
Borrowers may be free from any Obligations.
12.6 Reinstatement. This Section 12 shall continue to be effective, or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of any of the Obligations is rescinded or must otherwise be restored or returned
by the Administrative Agent or any Lender upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of any Borrower or upon or as a
result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, any Borrower or any substantial part of its
property, or otherwise, all as though such payments had not been made.
12.7 Payments. The U.S. Borrower hereby agrees that all payments
required to be made by it hereunder will be made to the Administrative Agent
without set-off or counterclaim in accordance with the terms of the Obligations,
including, without limitation, in the currency in which payment is due.
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SECTION 13. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any Loan when due
in accordance with the terms thereof or hereof; or any Borrower shall fail
to pay any interest on any Loan, or any other amount payable hereunder,
within five days after any such interest or other amount becomes due in
accordance with the terms hereof; or
(b) Any representation or warranty made by any Borrower herein or in
any other Loan Document or which is contained in any certificate, document
or financial or other statement furnished by it at any time under or in
connection with this Agreement or any such other Loan Document shall prove
to have been incorrect in any material respect on or as of the date made or
deemed made; or
(c) Any Borrower shall default in the observance or performance of
any agreement contained in subsection 10.7(a) or Section 11; or the U.S.
Borrower fails to observe or perform any agreement contained in Section 12;
or
(d) Any Borrower shall default in the observance or performance of
any other agreement contained in this Agreement or any other Loan Document
(other than as provided in paragraphs (a) through (c) of this Section), and
such default shall continue unremedied for a period of 30 days; or
(e) Any Borrower or any Subsidiary of any Borrower shall (i) default
in any payment of principal of or interest on any Indebtedness (other than
the Loans) beyond the period of grace (not to exceed 30 days), if any,
provided in the instrument or agreement under which such Indebtedness was
created, if the aggregate amount of the Indebtedness and/or Guarantee
Obligations in respect of which such default or defaults shall have
occurred is at least $60,000,000; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness referred to in clause (i) above or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause, with the giving of notice if required, such Indebtedness to become
due prior to its stated maturity; provided that, for purposes of this
paragraph (e) only, the term "Indebtedness" shall not include (i) Permitted
Securitization Obligations or (ii) any Guarantee Obligations of any
Subsidiary of the U.S. Borrower in respect of Indebtedness of an Affiliate
of the U.S. Borrower (but only if (A) such Subsidiary owns no material
assets other than equity interests in such Affiliate and (B) such Affiliate
is not a Subsidiary of the U.S. Borrower); and provided, further, that with
respect to any Indebtedness in respect of Interest Rate Agreements, the
holder or holders of such Indebtedness shall have required that a
liquidation or termination payment be made;
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(f) (i) Any Borrower or any Material Subsidiary shall commence any
case, proceeding or other action (A) under any existing or future law of
any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or
its debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any substantial
part of its assets, or any Borrower or any Material Subsidiary shall make a
general assignment for the benefit of its creditors; or (ii) there shall be
commenced against any Borrower or any Material Subsidiary any case,
proceeding or other action of a nature referred to in clause (i) above
which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced against
any Borrower or any Material Subsidiary any case, proceeding or other
action seeking issuance of a warrant of attachment, execution, distraint or
similar process against all or any substantial part of its assets which
results in the entry of an order for any such relief which shall not have
been vacated, discharged, or stayed or bonded pending appeal within 60 days
from the entry thereof; or (iv) any Borrower or any Material Subsidiary
shall take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause (i),
(ii), or (iii) above; or (v) any Borrower or any Material Subsidiary shall
generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of the
U.S. Borrower or any Commonly Controlled Entity, (iii) a Reportable Event
shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or commencement
of proceedings or appointment of a trustee is, in the reasonable opinion of
the Majority Lenders, likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) the U.S. Borrower or any
Commonly Controlled Entity shall, or in the reasonable opinion of the
Majority Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with respect
to a Plan; and in each case in clauses (i) through (vi) above, such event
or condition, together with all other such events or conditions, if any,
could have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against any
Borrower or any Subsidiary of any Borrower involving a liability (not paid
or fully covered by insurance) of $60,000,000 or more in the aggregate for
the U.S. Borrower and its
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Subsidiaries, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 60 days from
the entry thereof and enforcement proceedings shall have commenced; or
(i) Case shall cease to own, directly or indirectly, all of the
common stock of the U.S. Borrower; or
(j) For any reason the Support Agreement ceases to be in full force
and effect; or Case or the U.S. Borrower shall assert in writing that the
Support Agreement has ceased to be or is not in full force and effect; or
Case or the U.S. Borrower shall fail to perform any of its respective
obligations under the Support Agreement;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of this Section with respect to the U.S.
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement shall immediately become due and payable, and (B) if such
event is any other Event of Default, either or both of the following actions may
be taken: (i) with the consent of the Majority Lenders, the Administrative
Agent may, or upon the request of the Majority Lenders, the Administrative Agent
shall, by notice to the Borrowers declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate; and (ii) with
the consent of the Majority Lenders, the Administrative Agent may, or upon the
request of the Majority Lenders, the Administrative Agent shall, by notice to
the Borrowers, declare the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement to be due and payable forthwith,
whereupon the same shall immediately become due and payable.
Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
SECTION 14. THE ADMINISTRATIVE AGENT; THE CO-AGENTS
AND LEAD MANAGERS; THE SWING LINE
LENDERS
14.1 Appointment. Each Lender hereby irrevocably designates and
appoints Chase as the Administrative Agent and such Lender under this Agreement
and the other Loan Documents, and each such Lender irrevocably authorizes Chase
to act as the Administrative Agent of such Lender, to take such action on its
behalf under the provisions of this Agreement and the other Loan Documents and
to exercise such powers and perform such duties as are expressly delegated to
the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
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71
14.2 Delegation of Duties. The Administrative Agent may execute any
of its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
be responsible for the negligence or misconduct of any agents or attorneys-in-
fact selected by it with reasonable care.
14.3 Exculpatory Provisions. Neither the Administrative Agent nor
any of its respective officers, directors, employees, agents, attorneys-in-fact
or affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by any Borrower or
other Person or any officer thereof contained in this Agreement or any other
Loan Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent under or
in connection with, this Agreement or any other Loan Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document or for any failure of a Borrower or any
other Person to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document or to inspect the properties, books or records of the Borrowers.
14.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
Revolving Credit Note, writing, resolution, notice, consent, certificate,
affidavit, letter, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to the
Borrowers or any of them), independent accountants and other experts selected by
the Administrative Agent. The Administrative Agent may deem and treat the payee
of any Revolving Credit Note as the owner thereof for all purposes unless a
written notice of assignment or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified as
between itself and the Lenders in failing or refusing to take any action under
this Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Majority Lenders as it deems appropriate or it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
and the other Loan Documents in accordance with a request of the Majority
Lenders, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Loans.
14.5 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or a
Borrower referring to
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72
this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default". In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give notice thereof to
the Lenders. The Administrative Agent shall take such action reasonably promptly
with respect to such Default or Event of Default as shall be reasonably directed
by the Majority Lenders; provided that unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
14.6 Non-Reliance on Administrative Agent and Other Lender. Each
Lender expressly acknowledges that neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or affiliates has
made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
any Borrower, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrowers and made its own decision to
make its Extensions of Credit hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrowers. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by an Administrative Agent hereunder, the Administrative Agent shall not
have any duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of the Borrowers which may come
into the possession of the Administrative Agent or any of its respective
officers, directors, employees, agents, attorneys-in-fact or affiliates.
14.7 Indemnification. Each Lender agrees to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrowers and without limiting the obligation of the Borrowers to do so),
ratably according to its U.S. Commitment Percentage in effect on the date on
which indemnification is sought from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Loans
be imposed on, incurred by or asserted against the Administrative Agent in any
way relating to or arising out of this Agreement, any of the other Loan
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Administrative Agent under or in connection with any of the foregoing;
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73
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or willful
misconduct of the Administrative Agent. The agreements in this subsection shall
survive the payment of the Loans and all other amounts payable hereunder.
14.8 Administrative Agent in its Individual Capacity. The
Administrative Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrowers as though the
Administrative Agent was not the Administrative Agent hereunder and under the
other Loan Documents. With respect to the Loans made or renewed by the
Administrative Agent, and any Revolving Credit Note issued to it, the
Administrative Agent shall have the same rights and powers under this Agreement
and the other Loan Documents as any Lender and may exercise the same as though
it were not an Administrative Agent, and the terms "Lender" and "Lenders" shall
include the Administrative Agent in its individual capacity.
14.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Majority Lenders shall appoint from among
the Lenders a successor administrative agent for the Lenders, which successor
administrative agent shall be approved by the Borrowers (such approval not to be
unreasonably withheld), whereupon such successor administrative agent shall
succeed to the rights, powers and duties of the resigning Administrative Agent,
and the term "Administrative Agent" shall mean such successor administrative
agent effective upon such appointment and approval, and the former
Administrative Agent's rights, powers and duties as the Administrative Agent
shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. After any resigning Administrative Agent's resignation as
the Administrative Agent the provisions of this subsection shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was the
Administrative Agent under this Agreement and the other Loan Documents.
14.10 The Co-Agents and Lead Managers. Each Lender and each Co-Agent
and Lead Manager acknowledge that the Co-Agents and Lead Managers, in such
capacities, shall have no duties or responsibilities, and shall incur no
liabilities, under this Agreement or the other Loan Documents in their
respective capacities as such.
14.11 Swing Line Lenders. The provisions of this Section 14 shall
apply to the Swing Line Lenders in their respective capacities as such to the
same extent that such provisions apply to the Administrative Agent.
SECTION 15. MISCELLANEOUS
15.1 Amendments and Waivers. (a) Neither this Agreement or any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented, waived or
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74
modified except in accordance with the provisions of this subsection 15.1. The
Majority Lenders may, or, with the written consent of the Majority Lenders, the
Administrative Agent may, from time to time, (i) enter into with the Borrowers
written amendments, supplements or modifications hereto and to the other Loan
Documents for the purpose of adding any provisions to this Agreement or the
other Loan Documents or changing in any manner the rights or obligations of the
Lenders or of the Borrowers hereunder or thereunder or (ii) waive at the
Borrowers' request, on such terms and conditions as the Majority Lenders or the
Administrative Agent, as the case may be, may specify in such instrument, any of
the requirements of this Agreement or the other Loan Documents or any Default or
Event of Default and its consequences; provided, however, that no such waiver
and no such amendment, supplement or modification shall:
(A) reduce the amount or extend the scheduled date of maturity
of any Loan of any scheduled installment thereof, or reduce the stated rate
of any interest or fee payable hereunder or extend the scheduled date of
any payment thereof or increase the amount or extend the expiration date of
any Lender's Multicurrency Commitment or Revolving Credit Commitments, in
each case without the consent of each Lender affected thereby;
(B) amend, supplement, modify or waive any provision of this
subsection 15.1 or reduce the percentages specified in the definition of
"Majority Lenders" or consent to the assignment or transfer by any Borrower
of any of its rights and obligations under this Agreement and the other
Loan Documents, in each case without the consent of all the Lenders;
(C) amend, supplement, modify or waive any provision of Section
14 or any other provision of this Agreement governing the respective rights
or obligations of the Swing Line Lenders or the Administrative Agent
without the written consent of the Swing Line Lenders and the then
Administrative Agents, respectively; or
(D) amend, supplement, modify or waive any provision of Section
3 or any other provision of this Agreement governing the rights and
obligations of the Swing Line Lenders or the definitions used therein
without the written consent of the Swing Line Lenders.
Any waiver and any amendment, supplement or modification pursuant to this
subsection 15.1 shall apply to each of the Lenders and shall be binding upon the
Borrowers, the Lenders, the Administrative Agent, and all future holders of the
Loans. In the case of any waiver, the Borrowers, the Lenders and the
Administrative Agent shall be restored to their former positions and rights
hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
(b) In addition to amendments effected pursuant to the foregoing
paragraph (a), Schedules II and III may be amended as follows:
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75
(i) Schedule II will be amended to add Subsidiaries of the U.S.
Borrower as additional Foreign Subsidiary Borrowers upon (A) execution and
delivery by the U.S. Borrower, any such Foreign Subsidiary Borrower and the
Administrative Agent, of a Joinder Agreement providing for any such
Subsidiary to become a Foreign Subsidiary Borrower, and (B) delivery to the
Administrative Agent of (I) a Foreign Subsidiary Opinion in respect of such
additional Foreign Subsidiary Borrower and (II) such other documents with
respect thereto as the Administrative Agent shall reasonably request.
(ii) Schedule II will be amended to remove any Subsidiary as a
Foreign Subsidiary Borrower upon (A) execution and delivery by the U.S.
Borrower of a Schedule Amendment providing for such amendment and (B)
repayment in full of all outstanding Loans of such Foreign Subsidiary
Borrower.
(iii) Schedule III will be amended (A) to change administrative
information contained therein (other than any interest rate definition,
funding time, payment time or notice time contained therein) or (B) to add
Available Foreign Currencies (and related interest rate definitions and
administrative information) with the approval of the Majority Multicurrency
Lenders, in each case, upon execution and delivery by the U.S. Borrower and
the Administrative Agent of a written amendment providing for such
amendment.
(iv) Schedule III will be amended to conform any funding time,
payment time or notice time contained therein to then-prevailing market
practices, upon execution and delivery by the U.S. Borrower, the Majority
Lenders and the Administrative Agent of a written amendment providing for
such amendment.
(v) Schedule III will be amended to change any interest rate
definition contained therein, upon execution and delivery by the U.S.
Borrower, all the Multicurrency Lenders and the Administrative Agent of a
written amendment providing for such amendment.
(c) The Administrative Agent shall give prompt notice to each Lender
of any amendment effect pursuant to subsection 15.1(b).
(d) Notwithstanding the provisions of this subsection 15.1, any
Alternate Currency Facility may be amended, supplemented or otherwise modified
in accordance with its terms so long as after giving effect thereto either (i)
such Alternate Currency Facility ceases to be an "Alternate Currency Facility"
and the U.S. Borrower so notifies the Administrative Agent or (ii) the Alternate
Currency Facility continues to meet the requirements of an Alternate Currency
Facility set forth herein.
15.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered by hand, or three days
after being deposited in the mail, postage prepaid, or,
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76
in the case of telecopy notice, when received, or, in the case of delivery by a
nationally recognized overnight courier, when received, addressed as follows in
the case of the Borrowers and the Administrative Agent, and as set forth in
Schedule I in the case of the other parties hereto, or to such other address as
may be hereafter notified by the respective parties hereto and any future
holders of the Revolving Credit Notes:
The U.S. Borrower: Case Credit Corporation
233 Lake Avenue
Racine, Wisconsin 53403
Attention: Treasurer
Telephone: (414) 636-5529
Telecopy: (414) 636-6284
The Foreign
Subsidiary Borrowers: c/o Case Credit Corporation
233 Lake Avenue
Racine, Wisconsin 53403
Attention: Treasurer
Telephone: (414) 636-5529
Telecopy: (414) 636-6284
The Administrative
Agent: The Chase Manhattan Bank
140 East 45th Street
29th Floor
New York, New York 10017
Attention: Chris Consomer
Telephone: (212) 622-8779
Telecopy: (212) 622-0122
with a copy to:
Chase Securities Inc.
Ten South LaSalle Street
Suite 2300
Chicago, Illinois 60603
Attention: Cynthia Berkshire
Telephone: (312) 807-4029
Telecopy: (312) 807-4077
provided that any notice, request or demand to or upon (i) the Administrative
Agent or the Lenders pursuant to subsection 2.3, 3.2, 4.2, 5.3, 7.2, 7.4, 7.7 or
7.11 or (ii) either Swing Line Lender pursuant to Section 3, shall not be
effective until received.
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77
15.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of any Borrower, the Administrative Agent or
any Lender, any right, remedy, power or privilege hereunder or under the other
Loan Documents shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
15.4 Survival of Representations and Warranties. All representations
and warranties made hereunder and in the other Loan Documents (or in any
amendment, modification or supplement hereto or thereto) and in any certificate
delivered pursuant hereto or such other Loan Documents shall survive the
execution and delivery of this Agreement and the Revolving Credit Notes and the
making of the Loans hereunder.
15.5 Payment of Expenses and Taxes. Each Borrower agrees (a) to pay
or reimburse the Administrative Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with the preparation, execution and delivery
of, and any amendment, supplement, waiver or modification to, this Agreement and
the other Loan Documents and any other documents prepared in connection herewith
or therewith, and the consummation and administration of the transactions
(including the syndication of the Commitments) contemplated hereby and thereby,
including, without limitation, the reasonable fees and disbursements of counsel
(and any special or local counsel retained by such counsel to assist it) to the
Administrative Agent, (b) to pay or reimburse each Lender and the Administrative
Agent for all its reasonable costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement, the other Loan
Documents and any such other documents; provided that the Borrowers shall only
be required to pay or reimburse the Lenders and the Administrative Agent for the
fees and disbursements of (i) one counsel for the Administrative Agent, (ii) one
counsel for the Lenders pursuant to this clause (b) and (iii) one counsel to the
Administrative Agent and the Multicurrency Lenders in the jurisdiction of each
Foreign Subsidiary Borrower, (c) to pay, indemnify, and hold each Lender and the
Administrative Agent harmless from, any and all recording and filing fees and
any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other similar taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Loan Documents and any such other
documents, and (d) to pay, indemnify, and hold each Lender and the
Administrative Agent (and their respective directors, officers, employees,
agents, affiliates and successors) harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever (whether or
not caused by any Lender's or the Administrative Agent's or any of their
respective directors', officers', employees', agents', successors', affiliates'
or assigns' negligence (other than gross negligence) and including, without
limitation, the reasonable fees and disbursements of the respective counsels to
the Administrative Agent and each Lender, including, without duplication, the
allocated costs of staff counsel to the Administrative Agent
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78
or Lender) with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any such other
documents (regardless of whether the Administrative Agent or any Lender is a
party to the litigation or other proceeding giving rise thereto), (all the
foregoing in this clause (d), collectively, the "indemnified liabilities"),
provided, that the Borrowers shall have no obligation hereunder to the
Administrative Agent or any Lender with respect to indemnified liabilities to
the extent such indemnified liabilities arise solely from (i) the gross
negligence or willful misconduct of the Administrative Agent or any such Lender
(or any of their respective directors, officers, employees, agents, affiliates
or successors) or (ii) legal proceedings commenced against the Administrative
Agent or any such Lender by any securityholder or creditor of the Administrative
Agent or any such Lender arising out of and based upon rights afforded any such
securityholder or creditor solely in its capacity as such. The agreements in
this subsection shall survive repayment of the Loans and all other amounts
payable hereunder.
15.6 Successors and Assigns; Participations and Assignments. (a)
This Agreement shall be binding upon and inure to the benefit of the Borrowers,
the Lenders, the Administrative Agent, all future holders of the Loans and their
respective successors and assigns, except that no Borrower may assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or more
banks or other entities ("Participants") participating interests in any Loan
owing to such Lender, any Commitment of such Lender or any other interest of
such Lender hereunder and under the other Loan Documents. In the event of any
such sale by a Lender of a participating interest to a Participant, such
Lender's obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Loan for
all purposes under this Agreement and the other Loan Documents, and the
Borrowers and the Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. Any agreement
pursuant to which any Lender shall sell any such participating interest shall
provide that such Lender shall retain the sole right and responsibility to
exercise such Lender's rights and enforce the Borrowers' obligations hereunder,
including the right to consent to any amendment, supplement, modification or
waiver of any provision of this Agreement or any of the other Loan Documents,
provided that such participation agreement may provide that such Lender will not
agree to any amendment, supplement, modification or waiver described in clause
(A) or (B) of the proviso to the second sentence of subsection 15.1 without the
consent of the Participant. Each Borrower agrees that if amounts outstanding
under this Agreement are due or unpaid, or shall have been declared or shall
have become due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement; provided that, in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in subsection 15.7(a) as fully as if
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79
it were a Lender hereunder. Each Borrower agrees that each Participant shall be
entitled to the benefits of subsections 7.10, 7.11, 7.12, 7.13 and 15.6 with
respect to its participation in the Commitments and the Loans outstanding from
time to time hereunder as if it was a Lender.
(c) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time and from time to
time assign to any Lender or any Affiliate thereof or, with the prior written
consent of the U.S. Borrower (such consent not to be unreasonably withheld) and
the Administrative Agent (such consent not to be unreasonably withheld), to an
additional bank or financial institution (an "Assignee") all or any part of its
rights and obligations under this Agreement and the other Loan Documents
including, without limitation, its Commitments and Loans, pursuant to an
Assignment and Acceptance, substantially in the form of Exhibit G, executed by
such Assignee, such assigning Lender (and, in the case of an Assignee that is
not then a Lender or an Affiliate thereof, by the U.S. Borrower and the
Administrative Agent) and delivered to the Administrative Agent for their
acceptance and recording in the Register; provided that (i) if any Lender
assigns a part of its rights and obligations in respect of Revolving Credit
Loans and/or Revolving Credit Commitment under this Agreement to an Assignee,
such Lender shall assign proportionate interests in their respective Revolving
Credit Loans and Revolving Credit Commitment and other related rights and
obligations hereunder to such Assignee, (ii) if any Lender assigns a part of its
rights and obligations under this Agreement in respect of its Revolving Credit
Loans and/or Revolving Credit Commitments to an Assignee, such Lender shall
assign proportionate interests in (A) its participations in the Swing Line Loans
and other rights and obligations hereunder in respect of the Swing Line Loans to
such Assignee and (B) Multicurrency Loans and Multicurrency Commitments, (iii)
in the case of any such assignment to an additional bank or financial
institution, the aggregate amount of any Revolving Credit Commitment (or, if the
Revolving Credit Commitments have terminated or expired, the aggregate principal
amount of any Revolving Credit Loans) being assigned shall not be less than
$10,000,000 (or (x) if less, the then outstanding amount of such Commitments
and/or Loans or (y) such lesser amount as may be agreed by the Borrowers and the
Administrative Agent). Upon such execution, delivery, acceptance and recording,
from and after the effective date determined pursuant to such Assignment and
Acceptance, (I) the Assignee thereunder shall be a party hereto and, to the
extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder with Commitments, rights in respect of Loans
as set forth therein, and (II) the assigning Lender thereunder shall be released
from its obligations under this Agreement to the extent that such obligations
shall have been expressly assumed by the Assignee pursuant to such Assignment
and Acceptance (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender's rights and obligations under this
Agreement, such assigning Lender shall cease to be a party hereto).
(d) The Administrative Agent, on behalf of the Borrowers, shall
maintain at their respective addresses referred to in subsection 15.2 a copy of
each Assignment and Acceptance delivered to it and a register (the "Register")
for the recordation of (i) the names and addresses of the Lenders and the
Commitments of, and principal amounts of the Loans owing to, each Lender from
time to time and (ii) the other information required from time to
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time pursuant to subsection 3.1 in respect of Swing Line Loans. The entries in
the Register shall constitute prima facie evidence of the information recorded
therein, and the Borrowers, the Administrative Agent and the Lenders may (and,
in the case of any Loan or other obligation hereunder not evidenced by a
Revolving Credit Note, shall) treat each Person whose name is recorded in the
Register as the owner of a Loan or other obligation hereunder as the owner
thereof for all purposes of this Agreement and the other Loan Documents,
notwithstanding any notice to the contrary. Any assignment of any Loan or other
obligation hereunder not evidenced by a Revolving Credit Note shall be effective
only upon appropriate entries with respect thereto being made in the Register.
The Register shall be available for inspection by the Borrowers or any Lender at
any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an Affiliate thereof, executed by the Borrowers and the
Administrative Agent), together with payment to the Administrative Agent of a
registration and processing fee of $2,500, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register and give prompt notice of such acceptance and recordation to the
Lenders and the Borrowers.
(f) Each Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee
any and all financial information in such Lender's possession concerning such
Borrower and its Affiliates which has been delivered to such Lender by or on
behalf of such Borrower pursuant to this Agreement or which has been delivered
to such Lender by or on behalf of such Borrower in connection with such Lender's
credit evaluation of such Borrower and its Affiliates prior to becoming a party
to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this subsection concerning assignments of Loans and
Revolving Credit Notes relate only to absolute assignments and that such
provisions do not prohibit assignments creating security interests, including,
without limitation, any pledge or assignment by a Lender of any Loan or
Revolving Credit Note to any Federal Reserve Bank in accordance with applicable
law.
(h) If, pursuant to this subsection, any interest in this Agreement
or any Loan is transferred to any Transferee (which is a Lender) which is
organized under the laws of any jurisdiction other than the United States or any
state thereof, the transferor Lender shall cause such Transferee, concurrently
with the effectiveness of such transfer, to agree (for the benefit of the
transferor Lender, the Administrative Agent and the U.S. Borrower) to provide
the transferor Lender (and, in the case of any Transferee registered in the
Register, the Administrative Agent and the U.S. Borrower) the tax forms and
other documents required to be delivered pursuant to subsection 7.11(b) and to
comply from time to time with all applicable U.S. laws and regulations with
regard to such withholding tax exemption.
<PAGE>
81
(i) If, pursuant to this subsection, any interest in this Agreement
or any Loan is transferred to any Transferee, the transferor Lender shall cause
such Transferee, concurrently with the effectiveness of such transfer, to agree
(for the benefit of the transferor Lender, the General Administrative Agent and
the Foreign Subsidiary Borrowers) to provide the transferor Lender, the General
Administrative Agent and the Foreign Subsidiary Borrowers the tax forms and
other documents required to be delivered pursuant to subsection 9.11(c) and to
comply from time to time with all applicable laws and regulations with regard to
such withholding tax exemption.
15.7 Adjustments; Set-Off. (a) If any Lender (a "Benefitted Lender")
shall at any time receive any payment of all or part of its Loans then due and
owing to it, or interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 13(f), or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Loans then due and owing to
it, or interest thereon, such Benefitted Lender shall purchase for cash from the
other Lenders a participating interest in such portion of each such other
Lender's Loans owing to it, or shall provide such other Lenders with the
benefits of any such collateral, or the proceeds thereof, as shall be necessary
to cause such Benefitted Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders; provided, however, that
if all or any portion of such excess payment or benefits is thereafter recovered
from such benefitted Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to any Borrower, any
such notice being expressly waived by the Borrowers to the extent permitted by
applicable law, upon any amount becoming due and payable hereunder (whether at
the stated maturity thereof, by acceleration or otherwise) to set-off and
appropriate and apply against such amount any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch, agency or Affiliate thereof to or for the
credit or the account of any Borrower. Each Lender agrees promptly to notify the
Borrowers and the Administrative Agent after any such set-off and application
made by such Lender, provided that the failure to give such notice shall not
affect the validity of such set-off and application.
15.8 Loan Conversion/Participations. (a) (i) On any Conversion Date,
to the extent not otherwise prohibited by a Requirement of Law or otherwise, all
Loans outstanding in any currency other than U.S. Dollars ("Loans to be
Converted") shall be converted into U.S. Dollars (calculated on the basis of the
relevant Exchange Rates as of the Business Day immediately preceding the
Conversion Date) ("Converted Loans") and (ii) on the Conversion Date (with
respect to Loans described in the foregoing clause (i)) (A) each Lender
severally, unconditionally and irrevocably agrees that it shall purchase in U.S.
Dollars a participating interest in such Converted Loans in an amount equal to
its Conversion Sharing Percentage of the outstanding principal amount of the
Converted Loans and (B) to the extent necessary to
<PAGE>
82
cause the Committed Outstandings Percentage of each Lender to equal its
Revolving Credit Commitment Percentage (calculated immediately prior to the
termination or expiration of the Revolving Credit Loans), each Lender severally,
unconditionally and irrevocably agrees that it shall purchase or sell a
participating interest in Revolving Credit Loans then outstanding. Each Lender
will immediately transfer to the Administrative Agent, in immediately available
funds, the amounts of its participation(s), and the proceeds of such
participation(s) shall be distributed by the Administrative Agent to each Lender
from which a participating interest is being purchased in the amount(s) provided
for in the preceding sentence. All Converted Loans shall bear interest at the
rate which would otherwise be applicable to ABR Loans.
(b) If, for any reason, the Loans to be Converted may not be
converted into U.S. Dollars in the manner contemplated by paragraph (a) of this
subsection 15.8, (i) the Administrative Agent shall determine the U.S. Dollar
Equivalent of the Loans to be Converted (calculated on the basis of the Exchange
Rate as of the Business Day immediately preceding the date on which such
conversion would otherwise occur pursuant to paragraph (a) of this subsection
15.8), (ii) effective on such Conversion Date, each Lender severally,
unconditionally and irrevocably agrees that it shall purchase in U.S. Dollars a
participating interest in such Loans to be Converted, as the case may be, in an
amount equal to its Conversion Sharing Percentage of such Loans to be Converted,
and (iii) each Lender shall purchase or sell participating interests as provided
in paragraph (a)(iv) of this subsection 15.8. Each Lender will immediately
transfer to the appropriate Administrative Agent, in immediately available
funds, the amount(s) of its participation(s), and the proceeds of such
participation(s) shall be distributed by the Administrative Agent to each
relevant Lender in the amount(s) provided for in the preceding sentence.
(c) To the extent any Non-Excluded Taxes are required to be withheld
from any amounts payable by a Lender to another Lender in connection with its
participating interest in any Converted Loan, each Borrower, with respect to the
relevant Loans made to it, shall be required to pay increased amounts to the
Lender receiving such payments to the same extent they would be required under
subsection 7.11 if such Borrower were making payments directly to such Lender.
(d) To the extent not prohibited by any Requirement of Law or
otherwise, at any time after the actions contemplated by paragraphs (a) or (b)
of this subsection 15.8 have been taken, upon the notice of any Lender to the
Borrowers the following shall occur: (i) the U.S. Borrower (through the
guarantee contained in Section 12) shall automatically be deemed to have assumed
the Converted Loans in which such Lender holds a participation, and (ii) such
Loans shall be assigned by the relevant Lender holding such Loans or obligations
to the Lender who gave the notice requesting such assumption by the U.S.
Borrower.
15.9 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be delivered to the Borrowers and the
Administrative Agent.
<PAGE>
83
15.10 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
15.11 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrowers, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Borrowers, the Administrative
Agent or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.
15.12 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
15.13 Submission To Jurisdiction; Waivers. Each party hereto hereby
irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the Courts of
the State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have
to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and agrees
not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrowers, the applicable Lender or the Administrative
Agent, as the case may be, at the address specified in subsection 15.2 or
the signature pages hereof, or at such other address of which the
Administrative Agents and the Borrowers shall have been notified pursuant
thereto;
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction;
(v) waives, to the maximum extent permitted by law, any right
it may have to claim or recover in any legal action or proceeding referred
to in this subsection any punitive damages; and
<PAGE>
84
(vi) each Foreign Subsidiary Borrower hereby irrevocably
appoints the U.S. Borrower as its agent for service of process in any
proceeding referred to in subsection 15.13(a) and agrees that service of
process in any such proceeding may be made by mailing or delivering a copy
thereof to it care of U.S. Borrower at its address for notice set forth in
subsection 15.2.
15.14 Acknowledgements. Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) none of the Administrative Agent or any Lender has any fiduciary
relationship with or duty to such Borrower arising out of or in connection
with this Agreement or any of the other Loan Documents, and the
relationship between the Administrative Agents and the Lenders, on the one
hand, and the Borrowers, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the Lenders or among the Borrowers and the Lenders.
15.15 WAIVERS OF JURY TRIAL. THE BORROWERS, THE ADMINISTRATIVE AGENT
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
15.16 Power of Attorney. Each Foreign Subsidiary Borrower hereby
grants to U.S. Borrower an irrevocable power of attorney to act as its attorney-
in-fact with regard to matters relating to this Agreement and each other Loan
Document, including, without limitation, execution and delivery of any
amendments, supplements, waivers or other modifications hereto or thereto,
receipt of any notices hereunder or thereunder and receipt of service of process
in connection herewith or therewith. Each Foreign Subsidiary Borrower hereby
explicitly acknowledges that the Administrative Agents and each Lender have
executed and delivered this Agreement and each other Loan Document to which it
is a party, and has performed its obligations under this Agreement and each
other Loan Document to which it is a party, in reliance upon the irrevocable
grant of such power of attorney pursuant to this subsection. The power of
attorney granted by each Foreign Subsidiary Borrower hereunder is coupled with
an interest.
15.17 Existing Credit Agreement. The Existing Credit Agreement shall
terminate as of the Effective Date. The Majority Lenders (as each such term is
defined in the Existing Credit Agreement) hereby consent to the termination of
the Existing Credit Agreement as provided herein and hereby waive any notice
requirements of the Existing
<PAGE>
85
Credit Agreement relating to prepayment or termination of commitments to occur
on the Effective Date as provided herein.
15.18 Judgment. (a) If for the purpose of obtaining judgment in any
court it is necessary to convert a sum due hereunder in one currency into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the first currency with such other currency in the city in which it
normally conducts its foreign exchange operation for the first currency on the
Business Day preceding the day on which final judgment is given.
(b) The obligation of each Borrower in respect of any sum due from it
to any Lender hereunder shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than that in which such sum is denominated in
accordance with the applicable provisions of this Agreement (the "Agreement
Currency"), be discharged only to the extent that on the Business Day following
receipt by such Lender of any sum adjudged to be so due in the Judgment Currency
such Lender may in accordance with normal banking procedures purchase the
Agreement Currency with the Judgment Currency; if the amount of Agreement
Currency so purchased is less than the sum originally due to such Lender in the
Agreement Currency, such Borrower agrees notwithstanding any such judgment to
indemnify such Lender against such loss, and if the amount of the Agreement
Currency so purchased exceeds the sum originally due to any Lender, such Lender
agrees to remit to such Borrower such excess.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
CASE CREDIT CORPORATION
By: /S/ ROBERT A. WEGNER
-----------------------------------
Title: Vice President, CFO & Treasurer
THE CHASE MANHATTAN BANK, as
Administrative Agent and a Lender
By: /S/ TIMOTHY J. STORMS
-----------------------------------
Title: Managing Director
<PAGE>
86
THE ASAHI BANK, LTD., CHICAGO BRANCH
By: /S/ MINORU ONODA
-----------------------------------
Title: Senior Deputy General Manager
AUSTRALIA AND NEW ZEALAND BANKING GROUP
LIMITED
By: /S/ GEOFF PACK
-----------------------------------
Title: Senior Vice President
BANK OF AMERICA ILLINOIS, as a Co-Agent
and a Lender
By: /S/ W. THOMAS BARNETT
-----------------------------------
Title: Vice President
BANK OF HAWAII
By: /S/ JOSEPH T. DONALSON
-----------------------------------
Title: Vice President
BANK OF MONTREAL, as a Co-Agent and a
Lender
By: /S/ ERIN M. KEYSER
-----------------------------------
Title: Director
<PAGE>
87
THE BANK OF NEW YORK, as a Co-Agent and
a Lender
By: /S/ MARK T. FAMILO
-----------------------------------
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA, as a Co-Agent
and a Lender
By: /S/ F.C.H. ASHBY
-----------------------------------
Title: Senior Manager Loan Operations
THE BANK OF TOKYO-MITSUBISHI LTD.,
CHICAGO BRANCH, as a Lead Manager and a
Lender
By: /S/ MINORU WADA
-----------------------------------
Title: Deputy General Manager
BANQUE NATIONALE DE PARIS
By: /S/ FREDERICK H. MORYL, JR.
-----------------------------------
Title: Senior Vice President
CAISSE NATIONALE DE CREDIT AGRICOLE, as
a Co-Agent and a Lender
By: /S/ W. LEROY STARTZ
-----------------------------------
Title: First Vice President
<PAGE>
88
CANADIAN IMPERIAL BANK OF COMMERCE, as a
Co-Agent and a Lender
By: /S/ GARY C. GASKILL
-----------------------------------
Title: Authorized Signatory
By: /S/ ALEKSANDRA DYMANUS
-----------------------------------
Title: Authorized Signatory
CITIBANK, N.A., as a Co-Agent and a
Lender
By: /S/ MARJORIE FUTORNICK
-----------------------------------
Title: Vice President
COMMERZBANK AKTIENGESELLSCHAFT, CHICAGO
BRANCH, as a Co-Agent and a Lender
By: /S/ HELMUT TOELLNER
-----------------------------------
Title: Executive Vice President
By: /S/ PAUL KARLIN
-----------------------------------
Title: Assistant Treasurer
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By: /S/ W. JEFFREY VOLLACK
-----------------------------------
Title: Vice President, Manager
By: /S/ ANGELA R. REILLY
-----------------------------------
Title: Vice President
<PAGE>
89
CREDIT LYONNAIS CHICAGO BRANCH, as a
Co-Agent and a Lender
By: /S/ MARY ANN KLEMM
-----------------------------------
Title: Vice President And Group Head
CREDIT SUISSE, as a Co-Agent and a
Lender
By: /S/ WILLIAM P. MURRAY
-----------------------------------
Title: Member of Senior Management
By: /S/ KRISTINN R. KRISTINSSON
-----------------------------------
Title: Associate
THE FIRST NATIONAL BANK OF CHICAGO, as a
Co-Agent and a Lender
By: /S/ MARY M. HEAD
-----------------------------------
Title: Authorized Agent
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, as a Co-Agent and a Lender
By: /S/ ANN M. DODD
-----------------------------------
Title: Senior Vice President
THE FUJI BANK, LIMITED, as a Lead
Manager and a Lender
By: /S/ PETER L. CHINNICI
-----------------------------------
Title: Joint General Manager
<PAGE>
90
THE INDUSTRIAL BANK OF JAPAN, LTD., as a
Lead Manager and a Lender
By: /S/ HIROAKI NAKAMURA
-----------------------------------
Title: Joint General Manager
THE LTCB TRUST COMPANY, NEW YORK, as a
Co-Agent and a Lender
By: /S/ JOHN SULLIVAN
-----------------------------------
Title: Executive Vice President
MELLON BANK, N.A., as a Lead Manager and
a Lender
By: /S/ JEFF M. ANDERSON
-----------------------------------
Title: Vice President
THE MITUSI TRUST & BANKING COMPANY, LTD.
-NEW YORK BRANCH
By: /S/ SHIGERU TSUJIMOTO
-----------------------------------
Title: Senior Vice President and Manager
Corporate Finance
MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, as a Co-Agent and a Lender
By: /S/ LAURA E. REIM
-----------------------------------
Title: Vice President
<PAGE>
91
NATIONAL AUSTRALIA BANK LIMITED, as a
Co-Agent and a Lender
By: /S/ SUSAN C. JULIEN
-----------------------------------
Title: Vice President
NATIONSBANK, N.A., as a Co-Agent and a
Lender
By: /S/ MARY CAROL DALY
-----------------------------------
Title: Vice President
NORDDEUTSCHE LANDESBANK GIROZENTRALE NEW
YORK BRANCH AND/OR CAYMAN ISLANDS BRANCH
By: /S/ PETRA FRANK-WITT
-----------------------------------
Title: Vice President
By: /S/ STEPHEN K. HUNTER
-----------------------------------
Title: Senior Vice President
THE NORTHERN TRUST COMPANY
By: /S/ LISA M. TAYLOR
-----------------------------------
Title: Officer
ROYAL BANK OF CANADA, as a Co-Agent and
a Lender
By: /S/ PRESTON D. JONES
-----------------------------------
Title: Senior Manager Corporate Banking
<PAGE>
92
THE SAKURA BANK, LIMITED, as a Lead
Manager and a Lender
By: /S/ SHUNJI SAKURAI
-----------------------------------
Title: Joint General Manager
THE SANWA BANK, LIMITED, CHICAGO BRANCH
By: /S/ GORDON R. HOLTBY
-----------------------------------
Title: Vice President & Manager
SOCIETE GENERALE
By: /S/ SETH F. ASOFSKY
-----------------------------------
Title: Vice President
THE SUMITOMO BANK, LTD. CHICAGO BRANCH
By: /S/ KEN-ICHIRO KOBAYASHI
-----------------------------------
Title: Joint General Manager
THE SUMITOMO TRUST & BANKING CO., LTD.
NEW YORK BRANCH
By: /S/ SURAJ P. BHATIA
-----------------------------------
Title: Senior Vice President
<PAGE>
93
THE TOKAI BANK, LIMITED CHICAGO BRANCH
By: /S/ TATSUO ITO
-----------------------------------
Title: Joint General Manager
TORONTO DOMINION (TEXAS), INC., as a
Co-Agent and a Lender
By: /S/ LISA ALLISON
-----------------------------------
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /S/ PATRICIA SAMSON
-----------------------------------
Title: Credit Officer
By: /S/ CARY MOORE
-----------------------------------
Title: Vice President
UNION BANK OF SWITZERLAND, NEW YORK
BRANCH, as a Co-Agent and a Lender
By: /S/ JAN BUETTGEN
-----------------------------------
Title: Vice President
By: /S/ JAMES P. KELLEHER
-----------------------------------
Title: Assistant Vice President
WACHOVIA BANK OF GEORGIA, N.A.
By: /S/ MICHAEL J. BROWN
-----------------------------------
Title: Vice President
<PAGE>
94
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH, as a Co-Agent and a
Lender
By: /S/ SALVATORE BATTINELLI
-----------------------------------
Title: Vice President Credit Department
By: /S/ C.D. ROCKEY
-----------------------------------
Title: Associate
THE YASUDA TRUST & BANKING COMPANY, LTD.
By: /S/ JOSEPH C. MEEK
-----------------------------------
Title: Joint General Manager
<PAGE>
ANNEX A
-------
REFUNDING MECHANICS
Subject to the fulfillment or waiver of the conditions precedent set
forth in Section 9 of this Agreement on or prior to the Effective Date, each of
the following provisions shall apply:
Part A. Refunding of Revolving Credit Loans. Each Lender agrees to
make a Revolving Credit Loan to the U.S. Borrower on the Effective Date in an
amount equal to its Funding Commitment Percentage of the aggregate principal
amount of the Existing Revolving Credit Loans and the Existing Swing Line Loans.
Such Revolving Credit Loans shall be made in accordance with the procedures set
forth in subsection 2.3 except that, upon receipt by the Administrative Agent of
proceeds of such Revolving Credit Loans, the Administrative Agent shall apply
such proceeds to the prepayment of the outstanding principal amounts of the
Existing Revolving Credit Loans, and the Existing Swing Line Loans by crediting
the respective accounts of the Existing Lenders and the Existing Swing Lenders
maintained at the office of the Administrative Agent specified in subsection
15.2. Not later than 12:00 Noon, New York City time on the Effective Date, the
U.S. Borrower shall pay to the Administrative Agent for the account of each
Existing Lender and each Existing Swing Line Lender (i) all unpaid interest
which has accrued on the Existing Revolving Credit Loans of such Existing Lender
or the Existing Swing Line Loans of such Existing Swing Line Lender, as the case
may be, to the Effective Date and (ii) all unpaid commitment fees which have
accrued for the account of such Existing Lender pursuant to subsection 6.5 of
the Existing Credit Agreement to the Effective Date.
For purposes of this Part A, the following terms have the following
meanings:
"Existing Swing Line Lenders": each bank or other financial
institution holding any Existing Swing Line Loan immediately prior to the
Effective Date.
"Existing Swing Line Loans": the Swing Line Loans (as defined in the
Existing Credit Agreement) outstanding under the Existing Credit Agreement
immediately prior to the Effective Date.
"Existing Lenders": each bank or other financial institution holding
any Existing Revolving Credit Loan immediately prior to the Effective Date.
"Existing Revolving Credit Loans": the Revolving Credit Loans (as
defined in the Existing Credit Agreement) outstanding under the Existing
Credit Agreement immediately prior to the Effective Date.
<PAGE>
SCHEDULE I
----------
COMMITMENTS; ADDRESSES
A. Revolving Credit Commitment and Multicurrency Commitment Amounts (U.S.
Dollars)
<TABLE>
<CAPTION>
==============================================================================================================
Lender Revolving Credit Commitment Multicurrency Commitment
==============================================================================================================
<S> <C> <C>
The Asahi Bank, Ltd., Chicago Branch $10,000,000
- --------------------------------------------------------------------------------------------------------------
Australia and New Zealand Banking $10,000,000
Group Limited
- --------------------------------------------------------------------------------------------------------------
Bank of America Illinois $50,000,000 $25,000,000
- --------------------------------------------------------------------------------------------------------------
Bank of Hawaii $10,000,000
- --------------------------------------------------------------------------------------------------------------
Bank of Montreal $35,000,000 $35,000,000
- --------------------------------------------------------------------------------------------------------------
The Bank of New York $30,000,000 $15,000,000
- --------------------------------------------------------------------------------------------------------------
The Bank of Nova Scotia $40,000,000 $20,000,000
- --------------------------------------------------------------------------------------------------------------
The Bank of Tokyo - Mitsubishi Ltd., Chicago $30,000,000
Branch
- --------------------------------------------------------------------------------------------------------------
Banque Nationale de Paris $10,000,000 $10,000,000
- --------------------------------------------------------------------------------------------------------------
Caisse Nationale De Credit Agricole $50,000,000
- --------------------------------------------------------------------------------------------------------------
Canadian Imperial Bank of Commerce $45,000,000
- --------------------------------------------------------------------------------------------------------------
The Chase Manhattan Bank $65,000,000 $55,000,000
- --------------------------------------------------------------------------------------------------------------
Citibank, N.A. $45,000,000 $20,000,000
- --------------------------------------------------------------------------------------------------------------
Commerzbank Aktiengesellschaft, Chicago Branch $30,000,000 $15,000,000
- --------------------------------------------------------------------------------------------------------------
Cooperatieve Centrale Raiffeisen- $10,000,000 $10,000,000
Boerenleenbank B.A., "Rabobank
Nederland", New York Branch
- --------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
2
<TABLE>
<CAPTION>
======================================================================================================
Lender Revolving Credit Commitment Multicurrency Commitment
- ------------------------------------------------------------------------------------------------------
<S> <C> <C>
Credit Lyonnais Chicago Branch $50,000,000 $35,000,000
- ------------------------------------------------------------------------------------------------------
Credit Suisse $50,000,000 $35,000,000
- ------------------------------------------------------------------------------------------------------
The First National Bank of Chicago $35,000,000 $20,000,000
- ------------------------------------------------------------------------------------------------------
First Union National Bank of North Carolina $40,000,000 $35,000,000
- ------------------------------------------------------------------------------------------------------
The Fuji Bank, Limited $25,000,000
- ------------------------------------------------------------------------------------------------------
The Industrial Bank of Japan, Ltd. $25,000,000 $10,000,000
- ------------------------------------------------------------------------------------------------------
The LTCB Trust Company, New York $50,000,000
- ------------------------------------------------------------------------------------------------------
Mellon Bank, N.A. $30,000,000 $10,000,000
- ------------------------------------------------------------------------------------------------------
The Mitsui Trust and Banking Company, $10,000,000
Ltd.- New York Branch
- ------------------------------------------------------------------------------------------------------
Morgan Guaranty Trust Company $50,000,000 $35,000,000
of New York
- ------------------------------------------------------------------------------------------------------
National Australia Bank Limited $25,000,000
- ------------------------------------------------------------------------------------------------------
NationsBank, N.A. $50,000,000 $35,000,000
- ------------------------------------------------------------------------------------------------------
Norddeutsche Landesbank Girozentrale $10,000,000 $10,000,000
New York Branch and/or Cayman
Islands Branch
- ------------------------------------------------------------------------------------------------------
The Northern Trust Company $15,000,000
- ------------------------------------------------------------------------------------------------------
Royal Bank of Canada $35,000,000
- ------------------------------------------------------------------------------------------------------
The Sakura Bank, Limited $25,000,000
- ------------------------------------------------------------------------------------------------------
The Sanwa Bank, Limited, Chicago Branch $20,000,000
- ------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
3
<TABLE>
<CAPTION>
======================================================================================================
Lender Revolving Credit Commitment Multicurrency Commitment
- ------------------------------------------------------------------------------------------------------
<S> <C> <C>
Societe Generale $10,000,000 $10,000,000
- ------------------------------------------------------------------------------------------------------
The Sumitomo Bank, LTD. Chicago Branch $10,000,000
- ------------------------------------------------------------------------------------------------------
Sumitomo Trust & Banking Co., Ltd. $10,000,000
New York Branch
- ------------------------------------------------------------------------------------------------------
The Tokai Bank, Limited Chicago Branch $10,000,000
- ------------------------------------------------------------------------------------------------------
Toronto Dominion (Texas), Inc. $20,000,000 $20,000,000
- ------------------------------------------------------------------------------------------------------
Union Bank of California, N.A. $10,000,000 $5,000,000
- ------------------------------------------------------------------------------------------------------
Union Bank of Switzerland, New York Branch $50,000,000 $35,000,000
- ------------------------------------------------------------------------------------------------------
Wachovia Bank of Georgia, N.A. $10,000,000
- ------------------------------------------------------------------------------------------------------
Westdeutsche Landesbank $40,000,000
Girozentrale, New York Branch
- ------------------------------------------------------------------------------------------------------
The Yasuda Trust & Banking Company, LTD. $15,000,000
- ------------------------------------------------------------------------------------------------------
TOTAL $1,200,000,000 $500,000,000
======================================================================================================
</TABLE>
<PAGE>
4
B. Addresses for Notices
The Asahi Bank, Ltd., Chicago Branch
190 South LaSalle Street, Suite 2350
Chicago, IL 60603
Attn: Bridget Barnes
Telecopy: (312) 606-1010
Australia and New Zealand Banking Group
Limited
1177 Avenue of the Americas
New York, NY 10036
Attn: Ken Schaefer
Telecopy: (212) 801-9131
Bank of America Illinois
333 Clay Street, Suite 4550
Houston, TX 77002
Attn: W. Thomas Barnett
Telecopy: (713) 651-4841
Bank of Hawaii
1839 S. Alma School Rd., Suite 150
Mesa, AZ 85210
Attn: Donna Parker
Telecopy: (602) 752-8007
Bank of Montreal
U.S. Corporate Banking
115 South LaSalle Street - 12th Floor
Chicago, IL 60603
Attn: Michael D. Pincus
Telecopy: (312) 750-6057
The Bank of New York
One Wall Street
New York, NY 10286
Attn: Mark T. Familo
Telecopy: (212) 635-1208/1209
<PAGE>
5
The Bank of Nova Scotia
600 Peachtree Street N-E, Suite 2700
Atlanta, GA 30308
Attn: Shannon Law
Telecopy: (404) 888-8998
with a copy to:
The Bank of Nova Scotia
181 West Madison Street, Suite 3700
Chicago, IL 60602
Attn: John P. Malloy
Telecopy: (312) 201-4108
The Bank of Tokyo-Mitsubishi Ltd.,
Chicago Branch
227 West Monroe Street, Suite 2300
Chicago, IL 60606
Attn: Wayne Yamanaka
Telecopy: (312) 696-6935
Banque Nationale de Paris
209 South LaSalle Street, 5th Floor
Chicago, IL 60604
Attn: Jo Ellen Bender, VP and Manager
Telecopy: (312) 977-1380
Caisse Nationale De Credit Agricole
55 East Monroe Street
Chicago, IL 60603-5702
Attn: Theodore D. Tice
Telecopy: (312) 372-3455
Canadian Imperial Bank of Commerce
2 Paces West
2727 Paces Ferry Road, Suite 1200
Atlanta, GA 30339
Attn: Joan Moseley
Telecopy: (770) 319-4950
with a copy to:
<PAGE>
6
Canadian Imperial Bank of Commerce
Canadian Imperial Bank of Commerce
909 Fannin Street, Suite 1200
Houston, TX 77010
Attn: David Balderach
Telecopy: (713) 650-3727
The Chase Manhattan Bank
Ten South LaSalle Street
Suite 2300
Chicago, Illinois 60603
Attn: Cynthia Berkshire
Telecopy: (312) 807-4077
Citibank, N.A.
200 South Wacker Dr.
31st Floor
Chicago, IL 60606
Attn: H. Peter Koesler
Telecopy: (312) 993-1050
Commerzbank Aktiengesellschaft, Chicago
Branch
311 South Wacker Drive, Suite 5800
Chicago, IL 60606
Attn: Mr. Paul Karlin
Telecopy: (312) 435-1486
Cooperatieve Centrale Raiffeisen-
Boerenleenbank B.A.,
"Rabobank Nederland", New York Branch
245 Park Avenue
New York, NY 10167
Attn: Corporate Services Department
Telecopy: (212) 818-0233
Credit Lyonnais Chicago Branch
227 West Monroe, Suite 3800
Chicago, IL 60606
Attn: Eric Tobin
Telecopy: (312) 641-0527
<PAGE>
7
Credit Suisse
227 West Monroe, Suite 4000
Chicago, IL 60606
Attn: John L. Bordes III
Telecopy: (312) 630-0359
The First National Bank of Chicago
One First National Plaza
Mail Suite 0084
Chicago, IL 60670-0084
Attn: Todd E. Ritz
Telecopy: (312) 732-6222
First Union National Bank of North Carolina
One First Union Center
301 S. College Street, DC-5
Charlotte, NC 28288-0745
Attn: Lisa Bagwell
Telecopy: (704) 374-2802
The Fuji Bank, Limited
225 West Wacker Drive #2000
Chicago, IL 60606
Attn: S. Peca
Telecopy: (312) 621-0539
The Industrial Bank of Japan, Ltd.
227 West Monroe Street, Suite 2600
Chicago, IL 60606
Attn: Steven Ryan
Telecopy: (312) 855-8200
The LTCB Trust Company, New York
165 Broadway
New York, NY 10002
Attn: Maria Araujo
Telecopy: (212) 608-2371
with a copy to:
The LTCB Trust Company, New York
2200 Ross Avenue, Suite 4700 West
Dallas, TX 75202
Attn: Doug Whiddon
Telecopy: (214) 969-5357
<PAGE>
8
Mellon Bank, N.A.
55 West Monroe, Suite 2600
Chicago, IL 60603
Attn: Vice President
Telecopy: (312) 357-3414
The Mitsui Trust and Banking Company, Ltd. -
New York Branch
One World Financial Center
200 Liberty Street, Suite 2100
New York, NY 10281
Attn: Diane Boscarino
Telecopy: (212) 945-4170/4171
Morgan Guaranty Trust Company of New York
60 Wall Street
New York, NY 10260-0060
Attn: Charles King
Telecopy: (212) 648-5336
National Australia Bank Limited
200 Park Avenue, 34th Floor
New York, NY 10166
Attn: Susan Julien
Telecopy: (212) 983-1969
NationsBank, N.A.
233 S. Wacker Drive, Suite 2800
Chicago, IL 60606
Attn: Matthew R. Walters
Telecopy: (312) 234-5601
Norddeutsche Landesbank Girozentrale New
York Branch and/or Cayman Islands Branch
1270 Avenue of the Americas, 14th Floor
New York, NY 10020
Attn: Petra Frank-Witt
Telecopy: (212) 332-8660
<PAGE>
9
The Northern Trust Company
50 South LaSalle Street
Chicago, IL 60675
Attn: Julie Wigdale
Telecopy: (312) 444-5055
Royal Bank of Canada
Grand Cayman Branch (N. Amer #1)
New York Operations Center
One Financial Square
New York, New York 10005
Attn: Manager Loans Admin
Telecopy: (212) 428-2372
with copy to:
Royal Bank of Canada
One North Franklin, Suite 700
Chicago, IL 60606
Attn: Preston Jones
Telecopy: (312) 551-0805
The Sakura Bank, Limited
227 West Monroe Street, Suite 4700
Chicago, IL 60606
Attn: Kristin Hayes
Telecopy: (312) 332-5354
The Sanwa Bank, Limited, Chicago Branch
10 South Wacker Drive, Suite 3100
Chicago, IL 60606
Attn: Loan Administration - Patrick McGushin
Telecopy: (312) 346-6677
Societe Generale
181 West Madison Street, Suite 3400
Chicago, IL 60602
Attn: Seth F. Asofsky
Telecopy: (312) 578-5099
The Sumitomo Bank, LTD. Chicago Branch
233 South Wacker Drive, Suite 4800
Chicago, IL 60606-6448
Attn: John Di Legge
Telecopy: (312) 876-6436
<PAGE>
10
The Sumitomo Trust & Banking Co., Ltd.
New York Branch
527 Madison Avenue
New York, NY 10022
Attn: Suraj P. Bhatia
Telecopy: (212) 418-4848
The Tokai Bank, Limited Chicago Branch
181 West Madison Street, Suite 3600
Chicago, IL 60602
Attn: Michael P. Zoretich
Telecopy: (312) 977-0003
Toronto Dominion (Texas), Inc.
909 Fanin Street, 17th Floor
Houston, TX 77010
Attn: Kimberly Burleson
Telecopy: (713) 951-9921
Union Bank of California, N.A.
350 California Street, 11th Floor, H-1114
San Francisco, CA 94101
Attn: N. Brusati-Dias
Telecopy: (415) 705-7046
with a copy to:
Union Bank of California, N.A.
445 S. Figueroa Street, 16th Floor
Los Angeles, CA 90071
Attn: Patricia Samson
Telecopy: (213) 236-7814
Union Bank of Switzerland, New York Branch
299 Park Avenue
New York, NY 10171-0026
Attn: Alfred Imholz
Telecopy: (212) 821-5534
Wachovia Bank of Georgia, N.A.
70 West Madison Street, Suite 2440
Chicago, IL 60602
Attn: Donna Johnson
Telecopy: (312) 853-0693
<PAGE>
11
Westdeutsche Landesbank Girozentrale, New York Branch
1211 Avenue of the Americas
New York, NY 10036
Attn: Craig D. Rockey
Telecopy: (212) 852-6121
with a copy to:
Westdeutsche Landesbank Girozentrale, New York Branch
181 West Madison Street
Chicago, IL 60602
Attn: John B. Hall
Telecopy: (312) 553-1608
The Yasuda Trust & Banking Company, LTD.
181 West Madison Street, Suite 4500
Chicago, IL 60602
Attn: Timothy Fossa
Telecopy: (312) 683-3899
<PAGE>
SCHEDULE II
-----------
FOREIGN SUBSIDIARY BORROWER
Jurisdiction of
Name and Address Incorporation
---------------- -------------
- None -
<PAGE>
SCHEDULE III
------------
ADMINISTRATIVE SCHEDULE
I. MULTICURRENCY LOANS
-------------------
A. Interest Rates for Each Currency
Deutsche Marks:
--------------
for any Interest Period in respect of any Tranche, the rate for
deposits in Deutsche Marks for a period beginning on the first
day of such Interest Period and ending on the last day of such
Interest Period which appears on the Telerate Page 3750 (or, if
no such quotation appears on such Telerate Page, on the
appropriate Reuters Screen) as of 11:00 a.m., London time, on the
Quotation Day for such Interest Period.
French Francs:
-------------
for any Interest Period in respect of any Tranche, the rate for
deposits in French Francs for a period beginning on the first day
of such Interest Period and ending on the last day of such
Interest Period which appears on the Telerate Page 3740 (or, if
no such quotation appears on such Telerate Page, on the
appropriate Reuters Screen) as of 11:00 a.m., London time, on the
Quotation Day for such Interest Period.
Sterling:
--------
for any Interest Period in respect of any Tranche, the rate per
annum equal to the average (rounded upward to the nearest 1/16th
of 1%) of the rates at which Chase is offered deposits in
Sterling in the Paris interbank market at or about 11:00 A.M.,
Paris time, on the Quotation Day for such Interest Period for
delivery on the first day of such Interest Period for the number
of days comprised therein and in an amount comparable to Chase's
Multicurrency Commitment Percentage of the applicable
Multicurrency Loan.
<PAGE>
2
B. Funding Office, Funding Time, Payment Office, Payment Time for Each
Currency.
Deutsche Marks:
--------------
1. Funding Office:
Account of: Chase Manhattan International Limited
Account No: 101-080002101
Chase Bank AG
Frankfurt
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: Chase Manhattan International Limited
Account No: 0101-080002101
Chase Bank AG
Frankfurt
4. Payment Time: 11:00 A.M., local time.
French Francs:
-------------
1. Funding Office:
Account of: Chase Manhattan International Limited
Account No: 020.359.541100
Credit Commercial de France, Paris
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: Chase Manhattan International Limited
Account No: 020.359.541100
Credit Commercial de France, Paris
4. Payment Time: 11:00 A.M., local time.
<PAGE>
3
Sterling:
--------
1. Funding Office:
Account of: Chase Manhattan International Limited
Account No: CHAPS 40 52 06
Chase Manhattan Bank
125 London Wall
London EC2Y 5AJ
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: Chase Manhattan International Limited
Account No: CHAPS 40 52 06
Chase Manhattan Bank
125 London Wall
London EC2Y 5AJ
4. Payment Time: 11:00 A.M., local time.
C. Notice of Multicurrency Loan Borrowing:
1. Deliver to: Chase Manhattan International Limited
Trinity Tower
9 Thomas More Street
London E1 9YT
Attention: Steve Clark
Telephone No: 44-171-777-2353
Fax No: 44-171-777-2360/2085
2. Time:
Not later than 11:00 A.M., London time, on the last Business Day
preceding the Quotation Day in respect of such Borrowing Date.
3. Information Required:
Name of Foreign Subsidiary Borrower, amount to be borrowed, and
Interest Periods.
<PAGE>
4
D. Notice of Multicurrency Loan Continuation; Notice of Prepayment:
1. Deliver to: Chase Manhattan International Limited
Trinity Tower
9 Thomas More Street
London E1 9YT
Attention: Steve Clark
Telephone No: 44-171-777-2353
Fax No: 44-171-777-2360/2085
with a copy to:
The Chase Manhattan Bank
140 East 45th Street
29th Floor
New York, New York 10017
Attention: Chris Consomer
Telephone No.: 212-622-8779
Fax No.: 212-622-0122
2. Time:
Not later than 11:00 A.M., London time, on the last Business
Day preceding the Quotation Day for the next Interest Period.
3. Information Required:
Name of Foreign Subsidiary Borrower, amount to be continued or
prepaid, as the case may be, and Interest Periods.
II. NOTICE OF ALTERNATE CURRENCY OUTSTANDINGS
-----------------------------------------
1. Deliver to: Chase Manhattan International Limited
Trinity Tower
9 Thomas More Street
London E1 9YT
Attention: Steve Clark
Telephone No: 44-171-777-2353
Fax No: 44-171-777-2360/2085
2. Delivery time: By close of business in London on the date of
making of each Alternate Currency Loan and on the
last Business Day of each month on which the
applicable Alternate Currency Borrower has
outstanding any Alternate Currency Loans.
<PAGE>
5
3. Information to be set forth:
Name of Foreign Subsidiary Borrower
Amount and currency of outstanding Alternate Currency Loans
<PAGE>
SCHEDULE 8.4
------------
CONSENTS
- None -
<PAGE>
SCHEDULE 11.2
-------------
LIENS
- None -
<PAGE>
EXHIBIT A
---------
FORM OF
REVOLVING CREDIT NOTE
U.S. $___________________ New York, New York
___________________, 1996
FOR VALUE RECEIVED, the undersigned, CASE CREDIT CORPORATION, a
Delaware corporation (the "U.S. Borrower"), hereby unconditionally promises to
pay to the order of ________________ (the "U.S. Lender") at the office of The
Chase Manhattan Bank, located at 270 Park Avenue, New York, New York 10017, in
lawful money of the United States of America and in immediately available funds,
on the Revolving Credit Termination Date (as defined in the Credit Agreement
referred to below) the principal amount of (a) ________________ U.S. DOLLARS
(U.S.$__________), or, if less, (b) the aggregate unpaid principal amount of all
U.S. Revolving Credit Loans made by the U.S. Lender to the U.S. Borrower
pursuant to subsection 2.1 or 2.5 of such Credit Agreement. The U.S. Borrower
further agrees to pay interest in like money at such office on the unpaid
principal amount hereof from time to time outstanding at the rates and on the
dates specified in subsection 7.1 of such Credit Agreement.
The holder of this Note is authorized to record on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, Type and amount of each U.S.
Revolving Credit Loan made by the U.S. Lender pursuant to such Credit Agreement
and the date and amount of each payment or prepayment of principal thereof, each
continuation thereof, each conversion of all or a portion thereof to another
Type and, in the case of Eurodollar Loans, the length of each Interest Period
and the applicable Eurodollar Rate with respect thereto. Each such recordation
shall constitute prima facie evidence of the accuracy of the information so
recorded, provided that the failure to make any such recordation or any error in
any such recordation shall not affect the obligations of the U.S. Borrower under
such Credit Agreement or this Note.
This Note (a) is one of the U.S. Revolving Credit Notes referred to in
the Revolving Credit and Guarantee Agreement, dated as of August 23, 1996 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the U.S. Borrower, the Foreign Subsidiary Borrowers parties
thereto, the U.S. Lender, the other banks and financial institutions from time
to time parties thereto, the Co-Agents and Lead Managers named therein and The
Chase Manhattan Bank, as Administrative Agent, (b) is subject to the provisions
of the Credit Agreement and (c) is subject to optional and mandatory prepayment
in whole or in part as provided in the Credit Agreement.
<PAGE>
2
Upon the occurrence of any one or more Events of Default specified in
the Credit Agreement, all amounts then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, all as provided
in the Credit Agreement.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
CASE CREDIT CORPORATION
By:
------------------------
Title:
<PAGE>
Schedule A
to Revolving Credit Note
------------------------
ABR LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
<TABLE>
<CAPTION>
Amount Amount of ABR Loans
Converted to Amount of Principal of Converted to Unpaid Principal Balance
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans of ABR Loans Notation Made By
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
===================================================================================================================================
</TABLE>
<PAGE>
Schedule B
to Revolving Credit Note
------------------------
EURODOLLAR LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Interest Period and Amount of Principal of Amount of Eurodollar
Amount of Amount Converted Eurodollar Rate with Eurodollar Loans Loans Converted to
Date Eurodollar Loans to Eurodollar Loans Respect Thereto Repaid ABR Loans
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
- -------------------------------------
Unpaid Principal
Balance of Eurodollar Notation
Loans Made By
<S> <C>
- -------------------------------------
- -------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
</TABLE>
<PAGE>
EXHIBIT B
---------
FORM OF
CAF ADVANCE REQUEST
[Date]
The Chase Manhattan Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Reference is made to the Revolving Credit and Guarantee Agreement,
dated as of August 23, 1996, among the undersigned, the Foreign Subsidiary
Borrowers parties thereto, the banks and financial institutions from time to
time parties thereto, the Co-Agents and Lead Managers named therein and The
Chase Manhattan Bank, as Administrative Agent (as the same may be amended,
supplemented or otherwise modified from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
This is a [Fixed Rate] [LIBO Rate] CAF Advance Request pursuant to
subsection 4.2 of the Credit Agreement requesting offers for the following CAF
Advances:
<TABLE>
<CAPTION>
=============================================================================
Loan 1 Loan 2 Loan 3
- -----------------------------------------------------------------------------
<S> <C> <C> <C>
Aggregate Principal Amount $__________ $__________ $__________
- -----------------------------------------------------------------------------
Borrowing Date
- -----------------------------------------------------------------------------
CAF Advance Maturity Date
- -----------------------------------------------------------------------------
CAF Advance Interest Payment
Dates
=============================================================================
</TABLE>
Very truly yours,
CASE CREDIT CORPORATION
By:_____________________________________
Title:
[NOTE: Pursuant to the Credit Agreement, a CAF Advance Request may be
transmitted in writing, by telecopy, or by telephone, immediately
confirmed by telecopy. In any case, a CAF Advance Request shall
contain the information specified in the second paragraph of this
form.]
<PAGE>
EXHIBIT C
---------
FORM OF
CAF ADVANCE OFFER
[Date]
The Chase Manhattan Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Reference is made to the Revolving Credit and Guarantee Agreement,
dated as of August 23, 1996, among the undersigned, the Foreign Subsidiary
Borrowers parties thereto, the banks and financial institutions from time to
time parties thereto, the Co-Agents and Lead Managers named therein and The
Chase Manhattan Bank, as Administrative Agent (as the same may be amended,
supplemented or otherwise modified from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
In accordance with subsection 4.2 of the Credit Agreement, the
undersigned Lender offers to make CAF Advances thereunder in the following
amounts with the following maturity dates:
<TABLE>
<CAPTION>
===============================================================================
Borrowing Date: __________, ____ Aggregate Maximum Amount: $_________
===============================================================================
<S> <C>
Maturity Date 1: Maximum Amount: $_____________
__________, ____ $________ offered at _______*
$________ offered at _______*
===============================================================================
Maturity Date 2: Maximum Amount: $_____________
__________, ____ $________ offered at _______*
$________ offered at _______*
===============================================================================
Maturity Date 3: Maximum Amount: $_____________
__________, ____ $________ offered at _______*
$________ offered at _______*
===============================================================================
</TABLE>
Very truly yours,
[NAME OF LENDER]
By:_____________________________________
Title:
Telephone No.:
Telecopy No.:
[NOTE: Insert the interest rate offered for the specified CAF Advance where
indicated by an asterisk (*). In the case of LIBO Rate CAF Advances, insert
a margin bid. In the case of Fixed Rate CAF Advances, insert a fixed rate
bid.]
<PAGE>
EXHIBIT D
---------
FORM OF
CAF ADVANCE CONFIRMATION
[Date]
The Chase Manhattan Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Reference is made to the Revolving Credit and Guarantee Agreement, dated
as of August 23, 1996, among the undersigned, the Foreign Subsidiary Borrowers
parties thereto, the banks and financial institutions from time to time parties
thereto, the Co-Agents and Lead Managers named therein and The Chase Manhattan
Bank, as Administrative Agent (as the same may be amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"). Terms defined in
the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
In accordance with subsection 4.2(d) of the Credit Agreement, the
undersigned accepts and confirms the offers by the CAF Advance Lender(s) to make
CAF Advances to the undersigned on __________, _____ under subsection 4.2(d) in
the (respective) amount(s) set forth on the attached list of CAF Advances
offered.
Very truly yours,
CASE CREDIT CORPORATION
By:
-----------------------------------
Title:
[NOTE: The U.S. Borrower must attach CAF Advance offer list prepared by the
Administrative Agent with accepted amount entered by the U.S. Borrower to the
right of each CAF Advance offer].
<PAGE>
EXHIBIT E
---------
FORM OF
JOINDER AGREEMENT
JOINDER AGREEMENT, dated as of the date set forth below, entered into
pursuant to the Revolving Credit And Guarantee Agreement, dated as of August 23,
1996 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"; terms defined therein being used herein as therein defined),
among Case Credit Corporation, the Foreign Subsidiary Borrowers parties thereto,
the banks and financial institutions parties thereto, the Co-Agents and Lead
Managers named therein and The Chase Manhattan Bank, as Administrative Agent.
W I T N E S E T H:
WHEREAS, the parties to this Joinder Agreement wish to amend Schedule
II to the Credit Agreement in the manner hereinafter set forth; and
WHEREAS, this Joinder Agreement is entered into pursuant to subsection
15.1 of the Credit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto
hereby agree as follows:
1. Each of the undersigned Subsidiaries of the U.S. Borrower hereby
acknowledges that it has received and reviewed a copy (in execution form) of the
Credit Agreement, and agrees to:
(a) join the Credit Agreement as a Foreign Subsidiary Borrower;
(b) be bound by, and hereby confirms, all covenants, agreements, consents,
submissions, appointments and acknowledgements attributable to a
Foreign Subsidiary Borrower in the Credit Agreement; and
(c) perform all obligations required of it by the Credit Agreement.
2. Each of the undersigned Subsidiaries of the U.S. Borrower hereby
represents and warrants that the representations and warranties with respect to
it contained in, or made or deemed made by it in, Section 8 of the Credit
Agreement are true and correct on the date hereof.
3. The address and jurisdiction of incorporation of each undersigned
Subsidiary of the U.S. Borrower is set forth in Annex I to this Joinder
Agreement.
<PAGE>
2
4. The U.S. Borrower hereby agrees that its guarantees contained in
Section 12 of the Credit Agreement shall remain in full force and effect after
giving effect to this Joinder Agreement.
5. THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, each of the undersigned has caused this Joinder
Agreement to be duly executed and delivered in New York, New York by its proper
and duly authorized officer as of the date set forth below.
[NAME OF SUBSIDIARY],
Dated: as a Foreign Subsidiary Borrower
------------------
By:
---------------------------
Title:
CASE CREDIT CORPORATION
By:
---------------------------
Title:
Accepted and Acknowledged:
- -------------------------
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:
------------------------------
Title:
<PAGE>
ANNEX I
-------
ADMINISTRATIVE INFORMATION
[Insert administrative information concerning Foreign Subsidiary Borrower]
<PAGE>
EXHIBIT F
---------
FORM OF
ALTERNATE CURRENCY FACILITY ADDENDUM
To: The Chase Manhattan Bank, as Administrative Agent
From: Case Credit Corporation
1. This Alternate Currency Facility Addendum is being delivered
to you pursuant to subsection 6.1 of the Revolving Credit and Guarantee
Agreement, dated as of August 23, 1996, among Case Credit Corporation, the
Foreign Subsidiary Borrowers parties thereto, the banks and financial
institutions parties thereto, the Co-Agents and Lead Managers named therein, and
The Chase Manhattan Bank, as Administrative Agent (as the same may be amended,
supplemented or otherwise modified from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
2. The effective date (the "Effective Date") of this Alternate
Currency Facility Addendum will be ______________________ __, ____.
3. Please be advised that, as of the Effective Date, the credit
facility described below is hereby designated as an "Alternate Currency
Facility" for the purposes of the Credit Agreement.
TYPE OF FACILITY:/1/
ADDITIONAL ALTERNATE CURRENC(Y)(IES):
ALTERNATE CURRENCY FACILITY
MAXIMUM BORROWING AMOUNT: $
ALTERNATE CURRENCY BANKS: Local Currency Bank
Name of Lender Maximum Borrowing Amount
-------------- ------------------------
$
- ----------------------------------
/1/ Insert short description of terms of Alternate Currency Facility.
<PAGE>
2
LIST OF DOCUMENTATION GOVERNING
ALTERNATE CURRENCY FACILITY
(THE "DOCUMENTATION"):/2/
-------------
4. Case Credit Corporation hereby represents and warrants that (a)
the Documentation complies in all respects with the requirements of Section 6 of
the Credit Agreement and (b) ______________ of ______________/3/ contains an
express acknowledgement that such Alternate Currency Facility shall be subject
to the provisions of Section 6 of the Credit Agreement.
CASE CREDIT CORPORATION
By:_______________________________
Title:
Accepted and Acknowledged:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:
------------------------
Title:
- ---------------------------
/2/ Copies of the Documentation must accompany the Alternate Currency Facility
Addendum, together with, if applicable, an English translation thereof.
/3/ Provide citation to relevant provision from the Documentation.
<PAGE>
EXHIBIT G
---------
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Revolving Credit and Guarantee Agreement,
dated as of August 23, 1996 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among Case Credit Corporation, a Delaware
corporation (the "U.S. Borrower"), the Foreign Subsidiary Borrowers parties
thereto (the "Foreign Subsidiary Borrowers"; and, collectively with the U.S.
Borrower the "Borrowers"), the banks and other financial institutions from time
to time parties thereto (the "Lenders"), the Co-Agents and Lead Managers named
therein, and The Chase Manhattan Bank, as Administrative Agent for the Lenders
(the "Administrative Agent"). Unless otherwise defined herein, terms defined in
the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
The Assignor identified on Schedule 1 hereto (the "Assignor") and the
Assignee identified on Schedule 1 hereto (the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as of
the Effective Date (as defined below), the interest set forth on Schedule 1
hereto (the "Assigned Interest") in and to the Assignor's rights and obligations
under the Credit Agreement with respect to those credit facilities contained in
the Credit Agreement as are set forth on Schedule 1 hereto (individually, an
"Assigned Facility"; collectively, the "Assigned Facilities"), in a principal
amount and/or commitment amount for each Assigned Facility as set forth on
Schedule 1 hereto.
2. The Assignor (a) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or with
respect to the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other Loan Document or any
other instrument or document furnished pursuant thereto, other than that the
Assignor has not created any adverse claim upon the interest being assigned by
it hereunder and that such interest is free and clear of any such adverse claim;
(b) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrowers, any of their respective
Subsidiaries, any other Loan Party or any other obligor or the performance or
observance by the Borrowers, any of their respective Subsidiaries, any other
Loan Party or any other obligor of any of their respective obligations under the
Credit Agreement or any other Loan Document or any other instrument or document
furnished pursuant hereto or thereto; and (c) attaches any U.S. Revolving Credit
Notes held by it evidencing the Assigned Facilities and (i) requests that the
Administrative Agent, upon request by the Assignee, exchange any attached U.S.
Revolving Credit Notes for a new U.S. Revolving Credit Note or U.S. Revolving
Credit Notes payable to the Assignee and (ii) if the
<PAGE>
2
Assignor has retained any interest in the Assigned Facility, requests that the
Administrative Agent exchange any attached U.S. Revolving Credit Notes for a new
U.S. Revolving Credit Note or U.S. Revolving Credit Notes payable to the
Assignor, in each case in amounts which reflect the assignment being made hereby
(and after giving effect to any other assignments which have become effective on
the Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to subsection 10.1 thereof, the other
Loan Documents and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (c) agrees that it will, independently and without
reliance upon the Assignor, the Administrative Agent or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; (d) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement, the other Loan Documents
or any other instrument or document furnished pursuant hereto or thereto as are
delegated to the Administrative Agent by the terms thereof, together with such
powers as are incidental thereto; and (e) agrees that it will be bound by the
provisions of the Credit Agreement and will perform in accordance with its terms
all the obligations which by the terms of the Credit Agreement are required to
be performed by it as a Lender including, if it is organized under the laws of a
jurisdiction outside the United States, its obligation pursuant to subsection
7.11(b) and (c) of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall be
the date set forth on Schedule 1 hereto (the "Effective Date"). Following the
execution of this Assignment and Acceptance, it will be delivered to the
Administrative Agent for acceptance by them and recording by the Administrative
Agent pursuant to the Credit Agreement, effective as of the Effective Date
(which shall not, unless otherwise agreed to by the Administrative Agent, be
earlier than five Business Days after the date of such acceptance and recording
by the Administrative Agent).
5. Upon such acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignee whether such amounts have accrued prior to the
Effective Date or accrue subsequent to the Effective Date. The Assignor and the
Assignee shall make all appropriate adjustments in payments by the
Administrative Agent for periods prior to the Effective Date or with respect to
the making of this assignment directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Loan Documents and shall be bound by the provisions thereof and (b) the
Assignor shall, to the extent provided in
<PAGE>
3
this Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement.
7. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
<PAGE>
SCHEDULE 1
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
<S> <C> <C>
Credit Principal/Commitment Commitment Percentage
Facility Assigned Amount Assigned Assigned/1/
- ----------------- -------------------- ---------------------
$ __________ ___._________%
</TABLE>
<TABLE>
<S> <C>
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By: By:
------------------------------ ----------------------------------
Title: Title:
Accepted: Consented To:
THE CHASE MANHATTAN BANK, CASE CREDIT CORPORATION/2/
as Administrative Agent
By: By:
----------------------------- -----------------------------------
Title: Title:
</TABLE>
- -------------------
/1/ Calculate the Commitment Percentage that is assigned to at least 15 decimal
places and show as a percentage of the aggregate commitments of all Lenders.
/2/ The U.S. Borrower's consent is required in the event that the Assignee is
not a Lender or an Affiliate of a Lender prior to effectiveness hereof.
<PAGE>
EXHIBIT H
---------
FORM OF OPINION OF RICHARD S. BRENNAN, ESQ.
The Chase Manhattan Bank, as General [Effective Date]
Administrative Agent
270 Park Avenue
New York, New York 10017
The Lenders named in Schedule I to the
Credit Agreement referred to below
Ladies and Gentlemen:
I am the Secretary and General Counsel of Case Corporation, a Delaware
corporation ("Case") and Case Credit Corporation, a Delaware corporation (the
"U.S. Borrower"), and I or members of my staff have examined or are otherwise
familiar with (a) the Revolving Credit and Guarantee Agreement, dated as of
August 23, 1996 (the "Credit Agreement"), among the U.S. Borrower, the Foreign
Subsidiary Borrowers parties thereto, the lenders parties thereto (the
"Lenders"), the Co-Agents and Lead Managers named therein and The Chase
Manhattan Bank, as Administrative Agent for the Lenders (in such capacity, the
"Administrative Agent"), (b) the other Loan Documents referred to in the Credit
Agreement and (c) the Support Agreement, dated as of January 10, 1996 (the
"Support Agreement"), between Case and the U.S. Borrower.
The opinions expressed below are furnished to you pursuant to
subsection 9.1(c) of the Credit Agreement. Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
In arriving at the opinions expressed below, I or members of my staff:
(a) have examined and relied on the originals, or copies certified or
otherwise identified to our satisfaction, of each of the Credit Agreement, and
the Support Agreement (the Credit Agreement, the Revolving Credit Notes and the
Support Agreement being hereinafter referred to collectively as the "Transaction
Documents"); and
(b) have examined such corporate documents and records of Case and the
U.S. Borrower and such other instruments and certificates of public officials,
officers and representatives of Case and the U.S. Borrower and other Persons as
I have deemed necessary or appropriate for the purposes of this opinion.
<PAGE>
2
In arriving at the opinions expressed below, I or members of my staff
have made such investigations of law as we have deemed appropriate as a basis
for such opinions.
In rendering the opinions expressed below, I have assumed, with your
permission, without independent investigation or inquiry, (a) the authenticity
of all documents submitted as originals, (b) the genuineness of all signatures
on all documents that I have examined (other than those of Case and the U.S.
Borrower and officers of Case and the U.S. Borrower) and (c) the conformity to
authentic originals of documents submitted as certified, conformed or
photostatic copies.
When the opinions expressed below are stated "to the best of my
knowledge," I or members of my staff have made reasonable and diligent
investigation of the subject matters of such opinions and have no reason to
believe that there exist any facts or other information that would render such
opinions incomplete or incorrect.
Based upon and subject to the foregoing, I am of the opinion that:
1. Each of Case and the U.S. Borrower is duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation.
2. Each of Case and the U.S. Borrower has the corporate power and
authority to own, lease and operate its properties and to conduct the business
in which it is currently engaged and is duly qualified to transact business as a
foreign corporation or other legal entity and is in good standing or
appropriately qualified in each jurisdiction where its ownership, leasing, or
operation of property or the conduct of its business requires such
qualification, except to the extent that the failure to have such power and
authority and the failure to be so qualified and in good standing could not, in
the aggregate, have a Material Adverse Effect.
3. Each of Case and the U.S. Borrower has the corporate power and
authority to make, deliver and perform its obligations under each Transaction
Document to which it is a party and, in the case of the U.S. Borrower, to borrow
under the Credit Agreement. The U.S. Borrower has taken all necessary corporate
action to authorize the borrowings on the terms and conditions of the Credit
Agreement and the other Loan Documents, and to authorize the execution, delivery
and performance of the Credit Agreement and each other Transaction Document to
which it is a party. Case has taken all necessary corporate action to authorize
the execution, delivery and performance of the Support Agreement. No consent or
authorization of, notice to, filing with or other act by or in respect of, any
Governmental Authority or any other Person is required in connection with (i)
the borrowings by the U.S. Borrower under the Credit Agreement or (ii) the
execution, delivery and performance by Case and the U.S. Borrower, or the
validity or enforceability against Case and the U.S. Borrower, of each
Transaction Document to which it is a party.
4. Each Transaction Document has been duly executed and delivered on
behalf of the U.S. Borrower. The Support Agreement has been duly executed and
delivered
<PAGE>
3
on behalf of Case. Each Transaction Document constitutes a legal, valid and
binding obligation of the U.S. Borrower, enforceable against it in accordance
with its terms. The Support Agreement constitutes a legal, valid and binding
obligation of Case, enforceable against it in accordance with its terms.
5. The execution and delivery by Case and the U.S. Borrower of each
Transaction Document to which it is a party, the performance by Case and the
U.S. Borrower of their respective obligations thereunder, the consummation of
the transactions contemplated thereby, the compliance by Case and the U.S.
Borrower with any of the provisions thereof applicable to it, the borrowings by
the U.S. Borrower under the Credit Agreement and the use of proceeds thereof,
all as provided therein, (a) will not violate (i) any Requirement of Law or (ii)
(A) any Contractual Obligation of Case or the U.S. Borrower or any of its
Subsidiaries set forth in Exhibit A hereto (all such Contractual Obligations set
forth in such Exhibit A being the only material debt instruments of the U.S.
Borrower and its Subsidiaries taken as a whole) or (B) to the best of my
knowledge, any other Contractual Obligation of Case or the U.S. Borrower or of
any of its Subsidiaries which violation, in the case of this clause (ii), would
reasonably be expected to have a Material Adverse Effect, and (b) will not
result in, or require, the creation or imposition of any Lien on any of its or
their respective assets or properties pursuant to any such Requirement of Law or
Contractual Obligation.
6. No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the best of my knowledge,
threatened by or against Case or the U.S. Borrower or any of its Subsidiaries or
against any of its or their respective properties or revenues (a) with respect
to the Credit Agreement or any of the other Transaction Documents or (b) which
would reasonably be expected to have a Material Adverse Effect.
7. To the best of my knowledge, neither Case nor the U.S. Borrower
nor any of its Subsidiaries is in default under or with respect to any
Contractual Obligations in any respect which would reasonably be expected to
have a Material Adverse Effect.
8. Neither Case nor the U.S. Borrower is an "investment company" or
a company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended. Neither Case nor the U.S. Borrower
is subject to regulation under any Federal or state statute or regulation which
limits its ability to incur Indebtedness.
9. The Guarantee of Case contained in Section 14.4 of the Indenture,
dated as of February 1, 1996, between Case, the U.S. Borrower and The Bank of
New York, as Trustee, has been permanently released pursuant to the terms
thereof simultaneous with the occurrence of the Amendment and Restatement
Effective Date.
The opinions set forth in the second sentence of paragraph 4 above are
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law), including, without
<PAGE>
4
limitation, concepts of materiality and reasonableness and an implied covenant
of good faith and fair dealing.
I am a member of the bar of the State of Illinois and the opinions
expressed herein are based upon and are limited to the laws of such state, the
General Corporate Law of the State of Delaware and the Federal laws of the
United States of America. As to all matters governed by the laws of the State
of New York, I have assumed with your permission that the laws of such state are
identical to the laws of the State of Illinois.
This opinion has been rendered solely for your benefit and for the
benefit of your Transferees pursuant to subsection 15.6 of the Credit Agreement
in connection with the Credit Agreement and the other Transaction Documents and
the transactions contemplated thereby and may not be used, circulated, quoted,
relied upon or otherwise referred to for any other purpose without my prior
written consent; provided, however, that this opinion may be delivered to your
regulators, accountants, attorneys and other professional advisers and may be
used in connection with any legal or regulatory proceeding relating to the
subject matter of this opinion.
Very truly yours,
/s/ Richard S. Brennan
Richard S. Brennan
Secretary and General Counsel
<PAGE>
EXHIBIT A
---------
The Indenture, dated as of February 1, 1996, between the U.S. Borrower, Case
Corporation and The Bank of New York, as trustee.
The Liquidity Agreement, dated as of June 23, 1994 (as amended, supplemented or
otherwise modified as of the date of this opinion, the "Liquidity Agreement"),
among Case Equipment Loan Trust 1994-B, the several banks and other financial
institutions party thereto, and Chemical Bank, as Agent.
The Receivables Administration Agreement, the Receivables Certificate Purchase
Agreement, the Receivables Collateral Trust Agreement, the Receivables Purchase
Agreement, the Receivables Trust Agreement and the Receivables Loan and Security
Agreement, as each such agreement is defined in the Liquidity Agreement.
<PAGE>
EXHIBIT I
---------
FORM OF OPINION OF MAYER, BROWN & PLATT
To: The Chase Manhattan Bank, as General [Effective Date]
Administrative Agent under the
Credit Agreement referred to below
The Lenders named in Schedule I to the Credit Agreement referred to below
Ladies and Gentlemen:
We have acted as special New York counsel to Case Corporation, a
Delaware corporation ("Case"), and Case Credit Corporation, a Delaware
corporation (the "U.S. Borrower"), in connection with (i) the preparation,
execution and delivery of the Revolving Credit and Guarantee Agreement, dated as
of August 23, 1996 (the "Credit Agreement"), among the U.S. Borrower, the
Foreign Subsidiary Borrowers parties thereto (the "Foreign Subsidiary
Borrowers"; and collectively with the U.S. Borrower, the "Borrowers"), the
lenders parties thereto (the "Lenders"), the Co-Agents and Lead Managers named
therein and The Chase Manhattan Bank, as Administrative Agent for the Lenders
(in such capacity, the "Agent") and (ii) the Support Agreement, dated as of
January 10, 1996 (the "Support Agreement"), between Case and the U.S. Borrower.
This opinion is delivered to you pursuant to subsection 9.1(c) of the
Credit Agreement. Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
In arriving at the opinions expressed below, we have examined the
following documents:
(a) a copy of the Credit Agreement and the Revolving Credit Notes
signed by the Borrowers, the Lenders and the Agent, and a copy of the Support
Agreement signed by Case and the U.S. Borrower; and
(b) a copy of the opinion letter of Richard S. Brennan, Secretary and
General Counsel of Case and the U.S. Borrower, addressed to you and dated the
date hereof, in respect of the Credit Agreement.
<PAGE>
2
The documents referred to in clause (a) are herein collectively called
the Transaction Documents.
In rendering the opinions expressed below, we have (a) relied as to
certain matters of fact on certificates of the officers of Case and the U.S.
Borrower and (b) assumed, with your permission, without independent
investigation or inquiry, (i) the authenticity of all documents submitted to us
as originals, (ii) the genuineness of all signatures on all documents that we
examined and (iii) the conformity to authentic originals of documents submitted
to us as certified, conformed or photostatic copies.
Insofar as our opinions expressed below relate to the matters set
forth in the above-mentioned opinion letter of Richard S. Brennan, we have
assumed without independent investigation the correctness of the matters set
forth in paragraphs (1) and (2), the first and second sentences of paragraph
(3), the first sentence of paragraph (4) and clauses (a)(ii) and (b) of
paragraph (5), of the opinion of Richard S. Brennan.
We have also assumed that each of the Transaction Documents has been
duly authorized, executed and delivered by all parties thereto, that Case and
the Borrowers are each duly incorporated and validly existing under the laws of
their respective jurisdictions of incorporation and that each such party has the
corporate power and authority and legal right to execute, deliver and perform
its respective obligations thereunder, and that such execution, delivery and
performance by Case and the Borrowers do not contravene their respective
certificates of incorporation or by-laws or similar organizational documents, or
violate any order, writ, injunction or decree applicable to or binding on Case
or any Borrower of any court or other Governmental Authority and do not violate
or require any consent not obtained under, any Contractual Obligation applicable
or binding upon any such parties.
Based upon the foregoing, and subject to the qualifications and
comments set forth below, we are of the opinion that insofar as the law of the
State of New York, the General Corporation Law of the State of Delaware and the
Federal law of the United States is concerned:
1. The Credit Agreement constitutes a legal, valid and binding
obligation of each Borrower, enforceable against each Borrower in accordance
with its terms. The Support Agreement constitutes a legal, valid and binding
obligation of Case, enforceable against Case in accordance with its terms.
2. No consent or authorization of, notice to, filing with or
other act by or in respect of, any Governmental Authority or any other Person
is required in connection with (i) the borrowings by the Borrowers under the
Credit Agreement or (ii) the execution, delivery and performance by Case or the
Borrowers, or the validity or enforceability against Case or the Borrowers, of
each Transaction Document to which it is a party.
3. The execution and delivery by Case and each of the Borrowers of
each Transaction Document to which it is a party, the performance by Case and
the Borrowers of their respective obligations thereunder, the consummation of
the transactions contemplated
<PAGE>
3
thereby, the compliance by Case and the Borrowers with any of the provisions
thereof applicable to them, the borrowings by the Borrowers under the Credit
Agreement and the use of proceeds thereof, all as provided therein, will not
violate any Requirement of Law.
4. Neither Case nor the U.S. Borrower is an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended. Neither Case nor the U.S. Borrower
is subject to regulation under any Federal or New York statute or regulation
which limits its ability to incur Indebtedness.
Our opinions set forth above are subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law), including,
without limitation, concepts of materiality and reasonableness and an implied
covenant of good faith and fair dealing.
Our opinions are also subject to the following additional
qualifications:
(1) We express no opinion as to the provisions of the Credit Agreement
insofar as they relate to the Borrowers' agreement to the jurisdiction of a
particular court (other than the courts of the State of New York and the
appellate courts therefrom), the waiver of the right to a jury trial or the
waiver of inconvenient forum insofar as it relates to a proceeding in the United
States District Court for the Southern District of New York.
(2) We express no opinion as to the provisions of the Credit Agreement
purporting to grant a right of setoff to participants.
(3) We express no opinion as to any provision of the Transaction
Documents that purports to establish an evidentiary standard for determinations
by the Lenders or the Agent.
(4) We express no opinion as to any indemnification obligations of the
Borrowers under the Transaction Documents to the extent such obligations might
be deemed inconsistent with public policy.
We note that (i) a New York statute provides that with respect to a
foreign currency obligation, a court of the State of New York shall render a
judgment or decree in such foreign currency and such judgment or decree shall be
converted into currency of the United States at the rate of exchange prevailing
on the date of entry of such judgment or decree and (ii) with respect to a
foreign currency obligation, a United States Federal court in New York may award
judgment in United States dollars, provided that we express no opinion as to the
rate of exchange such court would apply.
We are members of the Bar of the State of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York, the
<PAGE>
4
General Corporation law of the State of Delaware and the Federal law of the
United States of America.
This opinion has been rendered solely for your benefit in connection
with the Transaction Documents and the transactions contemplated thereby and may
not be used, circulated, quoted, relied upon or otherwise referred to for any
purpose without our prior written consent; provided, however, that this opinion
may be delivered to your regulators, accountants, attorneys and other
professional advisers and may be used in connection with any legal or regulatory
proceeding relating to the subject matter of this opinion.
Very truly yours,
MAYER, BROWN & PLATT
<PAGE>
EXHIBIT J
---------
MATTERS TO BE COVERED BY
OPINIONS RELATING TO THE
FOREIGN SUBSIDIARY BORROWERS
1. The Foreign Subsidiary Borrower is duly organized, validly
existing and in good standing under the laws of the ____________ [specify
jurisdiction of its organization] (the "Jurisdiction").
2. The Foreign Subsidiary Borrower has the power and authority, and
the legal right, to make, deliver and perform its obligations under the Credit
Agreement and to borrow under the Credit Agreement. The Foreign Subsidiary
Borrower has taken all necessary corporate action to authorize the performance
of its obligations as a "Foreign Subsidiary Borrower" under the Credit Agreement
and to authorize the execution, delivery and performance of the Credit
Agreement.
3. Except for consents, authorizations, approvals, notices and filings
described on an attached schedule, all of which have been obtained, made or
waived and are in full force and effect, no consent or authorization of,
approval by, notice to, filing with or other act by or in respect of, any
Governmental Authority is required in connection with the borrowings by the
Foreign Subsidiary Borrower under the Credit Agreement or with the execution,
delivery, performance, validity or enforceability of the Credit Agreement.
4. The Credit Agreement has been duly executed and delivered on behalf
of the Foreign Subsidiary Borrower.
5. The execution and delivery of the Credit Agreement by the Foreign
Subsidiary Borrower, the performance of its obligations thereunder, the
consummation of the transactions contemplated thereby, the compliance by the
Foreign Subsidiary Borrower with any of the provisions thereof, the borrowings
under the Credit Agreement and the use of proceeds thereof, all as provided
therein, (a) will not violate, or constitute a default under, any Requirement of
Law applicable to the Foreign Subsidiary Borrower and (b) will not result in, or
require, the creation or imposition of any Lien on any of its properties or
revenues pursuant to any such Requirement of Law.
6. There are no taxes imposed by the Jurisdiction (a) on or by virtue
of the execution, delivery, enforcement or performance of the Credit Agreement
or (b) on any payment to be made by the Foreign Subsidiary Borrower pursuant to
the Credit Agreement other than any Non-Excluded Taxes payable by the Foreign
Subsidiary Borrower as provided in subsection 7.11 of the Credit Agreement.
7. To ensure the legality, validity, enforceability or admissibility
in evidence of the Credit Agreement, it is not necessary that the Credit
Agreement or any other Loan Documents or any other document be filed, registered
or recorded with, or executed or
<PAGE>
2
notarized before, any court of other authority of the Jurisdiction or that any
registration charge or stamp or similar tax be paid on or in respect of the
Credit Agreement.
8. The Credit Agreement is in proper legal form under the laws of the
Jurisdiction for the enforcement thereof against the Foreign Subsidiary Borrower
under the laws of the Jurisdiction.
9. In any action or proceeding arising out of or relating to the
Credit Agreement in any court in the Jurisdiction, such court would recognize
and give effect to the choice of law provisions in the Credit Agreement wherein
the parties thereto agree that the Credit Agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the State of New York.
10. It is not necessary under the laws of the Jurisdiction (a) in
order to enable the Administrative Agent and the Lenders or any of them to
enforce their respective rights under the Credit Agreement or (b) by reason of
the execution of the Credit Agreement [or the Joinder Agreement to which the
Foreign Subsidiary Borrower is a party] or the performance of the Credit
Agreement that any of them should be licensed, qualified or entitled to carry on
business in the Jurisdiction.
11. Neither either of the Administrative Agent nor any of the Lenders
will be deemed to be resident, domiciled, carrying on business or subject to
taxation in the Jurisdiction merely by reason of the execution of the Credit
Agreement [or the Joinder Agreement to which the Foreign Subsidiary Borrower is
a party] or the performance or enforcement of any thereof. The performance by
the Administrative Agent and the Lenders or any of them of any action required
or permitted under the Credit Agreement will not violate any law or regulation,
or be contrary to the public policy, of the Jurisdiction.
12. If any judgment of a competent court outside the Jurisdiction were
rendered against the Foreign Subsidiary Borrower in connection with any action
arising out of or relating to the Credit Agreement, such judgment would be
recognized and could be sued upon in the courts of the Jurisdiction, and such
courts would grant a judgment which would be enforceable against the Foreign
Subsidiary Borrower in the Jurisdiction without any retrial unless it is shown
that (a) the foreign court did not have jurisdiction in accordance with its
jurisdictional rules, (b) the party against whom the judgment of such foreign
court was obtained had no notice of the proceedings or (iii) the judgment of
such foreign court was obtained through collusion or fraud or was based upon
clear mistake of fact or law.
<PAGE>
EXHIBIT 10(c)
EXECUTION COPY
================================================================================
$500,000,000
REVOLVING CREDIT AGREEMENT
AMONG
CASE CREDIT LTD.,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
CANADIAN IMPERIAL BANK OF COMMERCE,
AS CO-AGENT, AND
THE BANK OF NOVA SCOTIA,
AS ADMINISTRATIVE AGENT
DATED AS OF AUGUST 23, 1996
================================================================================
<PAGE>
TABLE OF CONTENTS
PAGE NO.
ARTICLE 1
DEFINITIONS
SECTION 1.1 Defined Terms ........................................... 2
ARTICLE 2
AMOUNT AND TERMS OF THE COMMITMENTS
SECTION 2.1 Revolving Credit Loans .................................. 18
SECTION 2.2 Repayment of Revolving Credit Loans; Evidence of Debt ... 19
SECTION 2.3 Procedure for Revolving Credit Borrowing ................ 19
SECTION 2.4 Termination or Reduction of Revolving Credit Loans ...... 20
ARTICLE 3
AMOUNT AND TERMS OF CANADIAN ACCEPTANCE FACILITY
SECTION 3.1 Acceptance Commitments .................................. 20
SECTION 3.2 Creation of Acceptances ................................. 21
SECTION 3.3 Discount of Acceptances ................................. 22
SECTION 3.4 Stamping Fees ........................................... 22
SECTION 3.5 Acceptance Reimbursement Obligations .................... 22
SECTION 3.6 Converting Revolving Credit Loans to Acceptances and
Acceptances to Revolving Credit Loans ................... 24
SECTION 3.7 Acceptances to be Supplemented by Revolving Credit
Loans in order to be Created Ratably .................... 24
SECTION 3.8 Special Provisions Relating to Acceptance Notes ......... 25
ARTICLE 4
GENERAL PROVISIONS APPLICABLE TO LOANS
SECTION 4.1 Interest Rates and Payment Dates ........................ 26
SECTION 4.2 Maximum Number of Tranches .............................. 26
SECTION 4.3 Optional and Mandatory Prepayments ...................... 26
SECTION 4.4 Facility Fees; Other Fees ............................... 27
SECTION 4.5 Computation of Interest and Fees ........................ 27
SECTION 4.6 Pro Rata Treatment and Payments ......................... 28
SECTION 4.7 Illegality .............................................. 29
SECTION 4.8 Requirements of Law ..................................... 29
SECTION 4.9 Taxes ................................................... 30
SECTION 4.10 Change of Lending Office ................................ 31
SECTION 4.11 Substitution of Lender .................................. 32
SECTION 4.12 Use of Proceeds ......................................... 32
<PAGE>
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
SECTION 5.1 Financial Condition ..................................... 32
SECTION 5.2 No Change ............................................... 32
SECTION 5.3 Corporate Existence; Compliance with Law ................ 32
SECTION 5.4 Corporate Power; Authorization; Enforceable Obligations . 33
SECTION 5.5 No Legal Bar ............................................ 33
SECTION 5.6 No Material Litigation .................................. 33
SECTION 5.7 No Default .............................................. 34
SECTION 5.8 Taxes ................................................... 34
SECTION 5.9 Borrowing Restriction ................................... 34
ARTICLE 6
CONDITIONS PRECEDENT
SECTION 6.1 Conditions to Effectiveness of this Agreement ........... 34
SECTION 6.2 Conditions to Each Extension of Credit .................. 36
ARTICLE 7
AFFIRMATIVE COVENANTS
SECTION 7.1 Financial Statements .................................... 37
SECTION 7.2 Certificates; Other Information ......................... 37
SECTION 7.3 Payment of Obligations .................................. 38
SECTION 7.4 Conduct of Business and Maintenance of Existence ........ 38
SECTION 7.5 Maintenance of Property; Insurance ...................... 39
SECTION 7.6 Inspection of Property; Books and Records; Discussions .. 39
SECTION 7.7 Notices ................................................. 39
ARTICLE 8
NEGATIVE COVENANTS
SECTION 8.1 Financial Condition Covenants ........................... 40
SECTION 8.2 Limitation on Liens ..................................... 40
SECTION 8.3 Limitation on Fundamental Changes ....................... 41
SECTION 8.4 Limitation on Lines of Business ......................... 42
ARTICLE 9
EVENTS OF DEFAULT ...................................................... 42
SECTION 9.1 Events of Default ....................................... 42
ARTICLE 10
THE ADMINISTRATIVE AGENT
SECTION 10.1 Appointment ............................................. 45
SECTION 10.2 Delegation of Duties .................................... 45
SECTION 10.3 Exculpatory Provisions .................................. 45
SECTION 10.4 Reliance by Administrative Agent ........................ 46
SECTION 10.5 Notice of Default ....................................... 46
SECTION 10.6 Non-Reliance on Administrative Agent and Other Lenders .. 46
<PAGE>
SECTION 10.7 Indemnification ......................................... 47
SECTION 10.8 Administrative Agent in its Individual Capacity ......... 47
SECTION 10.9 Successor Administrative Agent .......................... 48
SECTION 10.10 The Co-Agent ............................................ 48
ARTICLE 11
MISCELLANEOUS
SECTION 11.1 Amendments and Waivers .................................. 48
SECTION 11.2 Notices ................................................. 49
SECTION 11.3 No Waiver; Cumulative Remedies .......................... 50
SECTION 11.4 Survival of Representations and Warranties .............. 51
SECTION 11.5 Payment of Expenses and Taxes ........................... 51
SECTION 11.6 Successors and Assigns; Participations and Assignments .. 52
SECTION 11.7 Adjustments; Set-Off .................................... 54
SECTION 11.8 Counterparts ............................................ 55
SECTION 11.9 Severability ............................................ 55
SECTION 11.10 Integration ............................................. 55
SECTION 11.11 GOVERNING LAW ........................................... 55
SECTION 11.12 Submission To Jurisdiction; Waivers ..................... 55
SECTION 11.13 Acknowledgements ........................................ 56
SECTION 11.14 Existing Credit Agreement ............................... 56
SECTION 11.15 Judgment ................................................ 57
<PAGE>
-2-
REVOLVING CREDIT AGREEMENT, dated as of August 23, 1996, among CASE
CREDIT LTD., a company organized under the laws of the Province of Alberta (the
"Borrower"), the several banks and other financial institutions from time to
time parties to this Agreement (the "Lenders"), the co-agent named on the
signature pages hereof (the "Co-Agent"), and THE BANK OF NOVA SCOTIA, a Canadian
chartered bank (the "Administrative Agent"), as administrative agent for the
Lenders hereunder.
W I T N E S S E T H:
-------------------
WHEREAS, Case Credit Corporation, a Delaware Corporation ("Case
Credit") owns, beneficially and of record, 100% of the common shares of Case
Credit Ltd., an Alberta corporation (the "Borrower" or "Case Credit Canada");
WHEREAS, the Borrower is party to the Revolving Credit Agreement,
dated as of November 30, 1995 as amended (the "Existing Credit Agreement"), with
the several banks and other financial institutions party thereto (the "Existing
Lenders"), the Co-Agent named therein, and The Bank of Nova Scotia, as
administrative agent (the "Administrative Agent") for the Existing Lenders;
WHEREAS, in accordance with Section 11.14, the Existing Credit
Agreement shall terminate on the Effective Date (as hereinafter defined);
WHEREAS, Case Credit has agreed to guarantee the obligations of the
Borrower hereunder and under the other Loan Documents pursuant to the Case
Credit Guarantee;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"Acceptance Note": as defined in subsection 3.8(b); collectively, the
"Acceptance Notes".
"Acceptance Purchase Price": in respect of an Acceptance of a
specified maturity, the result (rounded to the nearest whole cent, and with
one-half cent being rounded up) obtained by dividing the face amount of
such Acceptance by the sum of (a) one and (b) the product of (i) the
applicable Reference Discount Rate for Acceptances
<PAGE>
-3-
of the same maturity expressed as a decimal and (ii) a fraction, the
numerator of which is the term to maturity of such Acceptance and the
denominator of which is equal to 365.
"Acceptance Reimbursement Obligations": the obligation of the
Borrower to the Lenders (a) to reimburse the Lenders for maturing
Acceptances pursuant to Section 3.5 and (b) to make payments in respect of
the Acceptance Notes in accordance with the terms thereof.
"Acceptances": a Draft drawn by the Borrower and accepted by a Lender
which is (a) denominated in Canadian Dollars, (b) based on availability,
for a term of not less than 7 days nor more than 180 days and which matures
prior to the Termination Date and (c) issuable and payable only in Canada;
provided that, to the extent the context shall require, each Acceptance
Note shall be deemed to be an Acceptance.
"Acceptance Tranches": the collective reference to Acceptances all of
which were created on the same date and have same maturity date.
"Administrative Agent": The Bank of Nova Scotia, together with its
affiliates, as administrative agent for the Lenders under this Agreement
and the other Loan Documents, and any successor thereto appointed pursuant
to Section 10.9.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. For purposes of this
definition, "control" of a Person means the power, directly or indirectly,
either to (a) vote 10% or more of the securities or other equity interests
having ordinary voting power for the election of directors or other
governing bodies of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Aggregate Available Commitments": as at any date of determination
with respect to all Lenders, an amount in Canadian Dollars equal to the
Available Commitments of all Lenders on such date.
"Aggregate Outstandings": as at any date of determination with
respect to any Lender, an amount equal to the sum of (a) the aggregate
unpaid principal amount of such Lender's Revolving Credit Loans on such
date, (b) the aggregate undiscounted face amount of all outstanding
Acceptances of such Lender on such date and (c) the aggregate unpaid
principal amount of such Lender's Acceptance Notes on such date.
"Agreement": this Revolving Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Agreement Currency": as defined in Section 11.15.
<PAGE>
-4-
"Applicable Margin": for Acceptances, the rate per annum, determined
from time to time based upon the Ratings in effect by two then nationally
recognized rating agencies selected by Case Credit and notified by the
Borrower to the Administrative Agent (at least one of which shall be
Moody's or S&P), set forth below opposite such Ratings:
<TABLE>
<CAPTION>
APPLICABLE MARGIN
(IN PERCENTAGES)
RATINGS ACCEPTANCES AND
S&P/MOODY'S/1/ ACCEPTANCE NOTES
<S> <C>
A/A2 (or higher) 0.155%
A-/A3 0.170%
BBB+/Baa1 0.200%
BBB/Baa2 0.250%
BBB-/Baa3 0.275%
BB+/Ba1 0.425%
BB/Ba2 (or lower) 0.575%
</TABLE>
provided that in the event that the Ratings of such then nationally
recognized rating agencies do not coincide, the Applicable Margin set forth
opposite the higher of such Ratings will apply; provided further that, if
at any time an event occurs which results in there being no Ratings or only
one Rating in effect, not later than 30 days after the date on which such
event occurs, (if only one Rating or no Rating remains in effect) a new
Applicable Margin will be determined in a manner to be mutually agreed upon
by the Administrative Agent and the Borrower and consented to by the
Lenders, and until such new Applicable Margin shall be so agreed upon, the
Applicable Margin will be deemed to be the Applicable Margin in effect
immediately prior to the date on which such event occurs.
"Assignee": as defined in subsection 11.6(c).
"Attributable Debt": as to any particular lease under which
either the Borrower or any Restricted Subsidiary is at the time liable as
lessee for a term of more than 12 months and at any date as of which the
amount thereof is to be determined, the total net obligations of the lessee
for rental payments during the remaining term of the lease (excluding any
period for which such lease has been extended or may, at the option of
------------------
/1/ With respect to any nationally recognized rating agency other than
Moody's and S&P, such rating agency's Ratings which the Borrower and
the Administrative Agent agree are equivalent of the Ratings of S&P
and Moody's set forth in this column.
<PAGE>
-5-
the lessor, be extended), discounted from the respective due dates thereof
to such determination date at a rate per annum equivalent to the greater of
(a) the weighted-average Yield to Maturity of the Outstanding Securities,
such average being weighted by the principal amount of the Outstanding
Securities of each series or, in the case of Original Issue Discount
Securities, such amount to be the principal amount of such outstanding
Original Issue Discount Securities that would be due and payable as of the
date of such determination upon a declaration of acceleration of the
maturity thereof pursuant to the Indenture and (b) the interest rate
inherent in such lease (as determined in good faith by the Borrower), both
to be compounded semi-annually. The net total obligations of the lessee for
rental payments under any such lease for any such period shall be the
aggregate amount of the rent payable by the lessee with respect to such
period after excluding amounts required to be paid on account of
maintenance and repairs, services, insurance, taxes, assessments, water
rates and similar charges and contingent rents (such as those based on
sales or monetary inflation). If any lease is terminable by the lessee upon
the payment of a penalty and under the terms of the lease the termination
right is not exercisable until after the determination date and the amount
of such penalty discounted to the determination date as provided above is
less than the net amount of rentals payable after the time as of which such
termination could occur (the "termination time") discounted to the
determination date as provided above, then such discounted penalty amount
shall be used instead of such discounted amount of net rentals payable
after the termination time in calculating the Attributable Debt for such
lease. If any lease is terminable by the lessee upon the payment of a
penalty and such termination right is exercisable on the determination date
and the amount of the net rentals payable under such lease after the
determination date discounted to the determination date as provided above
is greater than the amount of such penalty, the "Attributable Debt" for
such lease as of such determination date shall be equal to the amount of
such penalty.
"Available Commitment": as at any date of determination with
respect to any Lender, an amount equal to the excess, if any, of (a) the
amount of such Lender's Commitment in effect on such date, over (b) the
Aggregate Outstandings of such Lender on such date.
"Bank Act (Canada)": the Bank Act (Canada), as amended from time
to time.
"Benefitted Lender": as defined in Section 11.7.
"Borrower": Case Credit Ltd., its successors and permitted
assigns.
"Borrowing Date": any Business Day specified in a notice
pursuant to Section 2.3 as a date on which the Borrower requests the
Lenders to make Loans hereunder or, with respect to a Request for
Acceptances, the date with respect to which the Borrower has requested the
Lenders to accept Drafts.
<PAGE>
-6-
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York, New York, Calgary, Alberta, Toronto,
Ontario or Montreal, Quebec are authorized or required by law to close.
"Canadian Dollars", "Dollars", "C$" and "$": dollars in the lawful
currency of Canada.
"Case": Case Corporation, a Delaware Corporation.
"Case Credit": as defined in the recitals hereto.
"Case Credit Canada Debt": as at any date of determination with
respect to the Borrower and its Consolidated Subsidiaries, an amount equal
to the excess of (a) the sum without duplication of (i) all Indebtedness
(other than Indebtedness referred to in clauses (e) through (h) of the
definition thereof) of the Borrower and its Consolidated Subsidiaries which
in accordance with GAAP would be included as a liability on a consolidated
balance sheet (excluding the notes thereto) of the Borrower and its
Consolidated Subsidiaries as at such date, (ii) all Guarantee Obligations
of the Borrower and its Consolidated Subsidiaries in respect of
Indebtedness (other than Indebtedness referred to in clauses (e) through
(h) of the definition thereof) as at such date and (iii) all obligations of
the Borrower or any of its Subsidiaries incurred in connection with any
securitization or other asset-backed financing of Receivables as at such
date to the extent such obligations are excluded from the definition of
Permitted Securitization Obligations as at such date by operation of the
proviso to the definition thereof, over (b) to the extent included in
clause (a) above, Permitted Securitization Obligations as at such date.
"Case Credit Credit Agreement": the Revolving Credit and Guarantee
Agreement, dated as of August 23, 1996, among Case Credit, the several
banks and other financial institutions party thereto and The Chase
Manhattan Bank, as administrative agent, as amended, supplemented or
otherwise modified from time to time.
"Case Credit Guarantee": the guarantee to be executed and delivered
by Case Credit, on or prior to the Effective Date, substantially in the
form of Exhibit E, as the same may be amended, supplemented or otherwise
modified from time to time.
"CDOR Rate": that annual rate of interest equal to the average "BA 1
Month" interest rates for Canadian Dollar denominated bankers' acceptances
displayed and identified as such on the "Reuters Screen CDOR Page" (as
defined in the International Swap and Derivatives Association, Inc.
definitions, as modified and amended from time to time) as of 10:00 A.M.
Toronto, Ontario local time on any particular day and, if such day is not a
Business Day, then on the immediately preceding Business Day (as adjusted
by the Administrative Agent after 10:00 A.M. Toronto, Ontario local time to
reflect any error in a posted rate of interest or in the posted average
annual rate of interest). If such
<PAGE>
-7-
rates are not available on the Reuters Screen CDOR Page on any particular
day, then the CDOR Rate on that day shall be calculated as the arithmetic
mean of the 30 day rates applicable to Canadian dollar denominated banker's
acceptances quoted by four major Canadian Schedule I chartered banks as of
10:00 A.M. Toronto, Ontario local time on such day, or if such day is not a
Business Day, then on the immediately preceding Business Day. The four
major Canadian Schedule I chartered banks shall, unless the Borrower and
the Administrative Agent otherwise agree, be The Toronto-Dominion Bank, The
Bank of Nova Scotia, Royal Bank of Canada and Canadian Imperial Bank of
Commerce. The arithmetic average of any rates or quotations to be
calculated hereunder shall be rounded, if necessary, to the nearest 1/100
of one per cent (.01%), with five one thousands of a percentage point
rounded upwards. All dollar amounts used in or resulting from any
calculation based on the CDOR Rate will be rounded to the nearest cent
(with one-half of one cent rounded upwards).
"Co-Agent": Canadian Imperial Bank of Commerce.
"Commitment": as to any Lender at any time, its obligation to make
Revolving Credit Loans to, and/or create Acceptances on behalf of (or, in
lieu thereof, to make loans pursuant to the Acceptance Notes to), the
Borrower, in an aggregate amount not to exceed at any one time outstanding
the amount set forth opposite such Lender's name in Schedule I under the
heading "Commitment", as such amount may be reduced from time to time as
provided in Section 2.4 and the other applicable provisions hereof;
collectively as to all the Lenders, the "Commitments".
"Commitment Percentage": as to any Lender at any time, the percentage
which such Lender's Commitment then constitutes of the aggregate
Commitments of all Lenders (or, if the Commitments have terminated or
expired, the percentage which (a) the Aggregate Outstandings of such Lender
at such time, constitutes of (b) the Aggregate Outstandings of all Lenders
at such time).
"Commitment Period": the period from and including the Effective Date
to but not including the Termination Date, or such earlier date as the
Commitments shall terminate as provided herein.
"Consolidated Interest Expense": for any period with respect to the
Borrower and its Consolidated Subsidiaries, the aggregate amount of
interest expense of the Borrower and its Consolidated Subsidiaries during
such period determined in accordance with GAAP.
"Consolidated Lease Expense": for any period with respect to the
Borrower and its Consolidated Subsidiaries, all amounts paid or accrued
during such period under operating leases in respect of real property by
the Borrower and its Consolidated Subsidiaries.
<PAGE>
-8-
"Consolidated Net Income": with respect to the Borrower and its
Consolidated Subsidiaries for any period, consolidated net income of the
Borrower and its Consolidated Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Tangible Assets": as at any date of determination,
the total assets appearing on the most recent consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as at the end of the most
recent fiscal quarter of the Borrower ending not more than 135 days prior
to such date, determined in accordance with GAAP, minus the amount of
Intangible Assets included in such consolidated balance sheet as at the end
of such fiscal quarter.
"Consolidated Net Worth": as at any date of determination with
respect to the Borrower, all items which in conformity with GAAP would be
included under shareholders' equity on a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as at such date, plus any
amounts included on such consolidated balance sheet in respect of any
preferred stock of the Borrower and any Preferred Securities outstanding
from time to time (except to the extent that any such preferred stock is
mandatorily redeemable at the option of the holder thereof or upon the
happening of any contingency on or prior to the Termination Date).
"Consolidated Subsidiary": with respect to the Borrower, any
Subsidiary of the Borrower which in accordance with GAAP would be
consolidated in the financial statements of the Borrower.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Dealer": any Person who has been authorized by Case or any of its
Subsidiaries to sell equipment distributed by Case or any of its
Subsidiaries pursuant to a dealer or distributor agreement or any Person
who has executed a rental yard purchase money agreement or other type of
financing agreement with Case or any of its Subsidiaries.
"Default": any of the events specified in Section 9.1 prior to the
satisfaction of any requirement for the giving of notice, the lapse of
time, or both, or any other condition.
"Draft": a draft substantially in the form of Exhibit B or in such
other form as the Administrative Agent may from time to time reasonably
request (or to the extent the context shall require, an Acceptance Note,
delivered in lieu of a draft), as the same may be amended, supplemented or
otherwise modified from time to time.
<PAGE>
-9-
"EBIT": for any period with respect to the Borrower and its
Consolidated Subsidiaries, Consolidated Net Income of the Borrower and its
Consolidated Subsidiaries for such period, plus, to the extent deducted in
determining such Consolidated Net Income for such period, the sum of (a)
taxes and (b) interest expense, plus or minus, to the extent deducted or
added, respectively, in determining such Consolidated Net Income for such
period, any income, gain or loss of a non-cash nature.
"Effective Date": the Effective Date as defined in the Case Credit
Credit Agreement.
"Event of Default": any of the events specified in Section 9.1,
provided that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"Existing Credit Agreement": as defined in the recitals hereto.
"Existing Lenders": as defined in the recitals hereto.
"Existing Loans": as defined in Part A of Annex A.
"Extension of Credit": as to any Lender, the making of a Loan by such
Lender or the acceptance of a Draft or an Acceptance Note by such Lender.
It is expressly understood and agreed that the conversions, continuations
and substitutions of maturing Acceptances with new Acceptances, the
conversion of Acceptances to Revolving Credit Loans, and the conversion of
Revolving Credit Loans to Acceptances, pursuant to Sections 3.5 and 3.6
hereof, do not constitute Extensions of Credit for purposes of this
Agreement.
"Facility Fee Rate": the rate per annum, determined from time to time
based upon the Ratings in effect by two then nationally recognized rating
agencies selected by Case Credit (at least one of which shall be Moody's or
S&P), set forth under the column heading below opposite such Ratings:
<TABLE>
<CAPTION>
Ratings Facility Fee Rate
------------------- ------------------
S&P/Moody's/2/ (in percentages)
<S> <C>
A/A2 (or higher) 0.070%
A-/A3 0.080%
</TABLE>
- ----------------------
/2/ With respect to any nationally recognized rating agency other than
Moody's and S&P, such rating agency's Ratings which the Borrower and
the Administrative Agent agree are equivalent of the Ratings of S&P and
Moody's set forth in this column.
<PAGE>
-10-
BBB+/Baa1 0.100%
BBB/Baa2 0.125%
BBB-/Baa3 0.175%
BB+/Ba1 0.250%
BB/Ba2 (or lower) 0.300%
; provided that in the event that the Ratings of such then nationally
recognized rating agencies do not coincide, the Facility Fee Rate set forth
opposite the higher of such Ratings will apply; provided further that, if
at any time an event occurs which results in there being no Ratings or only
one Rating is in effect, not later than 30 days after the date on which
such event occurs (if only one Rating or no Rating remains in effect), a
new Facility Fee Rate will be determined in a manner to be mutually agreed
upon by the Administrative Agent and the Borrower and consented to by the
Lenders, and until such new Facility Fee Rate shall be so agreed upon, the
Facility Fee Rate will be deemed to be the Facility Fee Rate in effect
immediately prior to the date on which such event occurs.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"Fixed Charge Coverage Ratio": for any period, the ratio of (a) EBIT
of the Borrower and its Consolidated Subsidiaries for such period plus
Consolidated Lease Expense (but only to the extent the amount of such
Consolidated Lease Expense was deducted in calculating EBIT) of the
Borrower and its Consolidated Subsidiaries for such period to (b) the sum
of (i) Consolidated Interest Expense for such period, (ii) Consolidated
Lease Expense for such period and (iii) all amounts paid by the Borrower or
any of its Subsidiaries during such period in respect of income taxes.
"Funding Commitment Percentage": as at any date of determination,
with respect to any Lender, that percentage which the Available Commitment
of such Lender then constitutes of the Aggregate Available Commitments.
"GAAP": generally accepted accounting principles in Canada in effect
on the date hereof.
"Governmental Authority": any nation or government, any state,
province or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of
or pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
without duplication, any obligation of (a) the guaranteeing person or (b)
another Person (including, without limitation, any bank under any letter of
credit) to induce the creation
<PAGE>
-11-
of which the guaranteeing person has issued a reimbursement, counter-
indemnity or similar obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other obligations (the
"primary obligations") of any other third Person (the "primary obligor") in
any manner, whether directly or indirectly, including, without limitation,
any such obligation of the guaranteeing person, whether or not contingent,
(i) to purchase any such primary obligation or any property constituting
direct or indirect security therefor, (ii) to advance or supply funds (A)
for the purchase or payment of any such primary obligation or (B) to
maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor,
(iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability
of the primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include (i) endorsements of instruments
for deposit or collection in the ordinary course of business or (ii)
obligations in respect of trade liabilities incurred in the ordinary course
of business and payable in accordance with customary practices. The amount
of any Guarantee Obligation of any guaranteeing person shall be deemed to
be the lower of (a) an amount equal to the stated or determinable amount of
the primary obligation in respect of which such Guarantee Obligation is
made and (b) the maximum amount for which such guaranteeing person may be
liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which
such guaranteeing person may be liable are not stated or determinable, in
which case the amount of such Guarantee Obligation shall be such
guaranteeing person's maximum reasonably anticipated liability in respect
thereof as determined by the Borrower in good faith.
"Indebtedness": of any Person at any date, without duplication, (a)
all indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than trade liabilities
incurred in the ordinary course of business and payable in accordance with
customary practices), (b) any other indebtedness of such Person which is
evidenced by a note, bond, debenture or similar instrument, (c) all
obligations of such Person under Financing Leases, (d) the discounted
amount of all obligations of such Person in respect of acceptances issued
or created for the account of such Person, (e) all liabilities secured by
any Lien on any property owned by such Person even though such Person has
not assumed or otherwise become liable for the payment thereof, (f) all net
liabilities of such Person in respect of Interest Rate Agreements, (g) all
Guarantee Obligations in respect of Indebtedness referred to in clauses (a)
through (f) (or any of them) of this definition and (h) if such Person is
the Borrower or any of its Subsidiaries, all obligations of the Borrower or
any such Subsidiary incurred in connection with any securitization or other
asset-backed financing of Receivables to the extent such obligations are
excluded from the definition of Permitted Securitization Obligations by
operation of the proviso to the definition thereof.
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The parties hereto agree that the amount of any Indebtedness which is
issued at a discount to the face amount thereof shall be equal to the
accreted value of such Indebtedness from time to time.
"Indenture": the indenture dated as of February 1, 1996, between Case
Credit, Case Corporation and The Bank of New York, as trustee.
"Intangible Assets": at any date of determination, the value (net of
any applicable reserves) as shown on or reflected in the most recent
consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as at the end of the most recent fiscal quarter of the
Borrower ending not more than 135 days prior to such date, prepared in
accordance with GAAP, of (a) all trade names, trademarks, licenses,
patents, copyrights, service marks, goodwill and other like intangibles,
(b) organizational and development costs, (c) deferred charges (other than
prepaid items, such as insurance, taxes, interest, commissions, rents,
deferred interest waiver, deferred financing fees, compensation and similar
items and tangible assets being amortized) and (d) unamortized debt
discount and expense, less unamortized premium.
"Interest Payment Date": as to any Prime Rate Loan, the last day of
each March, June, September and December to occur while such Loan is
outstanding.
"Interest Rate Agreement": any interest rate protection agreement,
interest rate future, interest rate option, interest rate cap or other
interest rate hedge arrangement, to or under which a Borrower or any
Subsidiary thereof is a party or a beneficiary.
"Judgment Currency": as defined in Section 11.15
"Lenders": as defined in the preamble hereto and their respective
successors and permitted assigns; individually, a "Lender".
"Leverage Ratio": as at any date of determination, the ratio of Case
Credit Canada Debt as at such date to Consolidated Net Worth of the
Borrower as at such date.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, Quebec Encumbrance, lien (statutory or other),
charge or other security interest or any preference, priority or other
security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other
title retention agreement and any Financing Lease having substantially the
same economic effect as any of the foregoing).
"Loan Documents": the collective reference to this Agreement, any
Revolving Credit Note, the Drafts, the Acceptances, the Acceptance Notes,
the Powers of Attorney and the Case Credit Guarantee.
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"Loan Parties": the collective reference to the Borrower and Case
Credit.
"Loans": the collective reference to the Revolving Credit Loans and
Acceptances or Acceptance Notes and the related Acceptance Reimbursement
Obligations, if any.
"Majority Lenders": (a) at any time prior to the termination of the
Commitments, the Lenders, the Commitment Percentages of which aggregate at
least 51%; and (b) at any time after the termination of the Commitments,
Lenders whose Aggregate Outstandings aggregate at least 51% of the
Aggregate Outstandings of all Lenders; provided that for purposes of this
definition the Aggregate Outstandings of each Lender shall be adjusted up
or down so as to give effect to any participations purchased or sold
pursuant to Section 11.6.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise) of the
Borrower and its Consolidated Subsidiaries taken as a whole, (b) the
ability of the Borrower to perform its obligations under this Agreement or
any of the other Loan Documents, or (c) the rights or remedies of the
Administrative Agent or the Lenders hereunder or thereunder.
"Material Subsidiary": any Subsidiary of the Borrower the assets or
revenues (excluding inter-company receivables and revenues that would be
eliminated upon consolidation in accordance with GAAP) of which are, at the
time of determination, equal to or greater than ten percent of the assets
or revenues (excluding inter-company receivables and revenues that would be
eliminated upon consolidation in accordance with GAAP), respectively, of
the Borrower at such time.
"Moody's": Moody's Investors Service, Inc. or any successor thereto.
"Non-Excluded Taxes": as defined in Section 4.9.
"Outstanding Securities": as defined in the Indenture.
"Original Issue Discount Security": as defined in the Indenture.
"Participants": as defined in subsection 11.6(b).
"Permitted Securitization Obligations": obligations of the Borrower
or any of its Subsidiaries incurred in connection with any securitization
or other asset-backed financing of Receivables; provided that, if (a) there
is recourse to the Borrower or any of its Subsidiaries (other than a
Special Purpose Subsidiary) for failures to pay or otherwise perform any
such obligations, (b) such failures arise as a result of credit defaults by
the debtors in respect of such Receivables and (c) such recourse is not
limited to the Receivables and the Receivables Related Assets (or undivided
or beneficial
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interests in such Receivables and Receivables Related Assets) which are the
subject of such securitization or other asset-backed financing, then such
obligations shall not be considered "Permitted Securitization Obligations"
within the meaning of this definition to the extent that, in accordance
with GAAP, such obligations would be required to be included as a liability
on a consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Powers of Attorney": as defined in subsection 3.2(b).
"Preferred Securities": any preferred securities issued by a
financing entity (i.e. partnership, trust, limited liability company, etc.)
used exclusively to raise capital for the Borrower having the following
structural characteristics: (a) the financing entity lends the proceeds
from the issuance of preferred securities to the Borrower in exchange for
subordinated debt securities (which debt securities are subordinated to all
Indebtedness of the Borrower of the types described in clauses (a), (b) and
(d) of the definition of Indebtedness set forth in Section 1.1, (b) the
subordinated debt securities issued by the Borrower and corresponding
preferred securities issued by the financing entity have a maturity of at
least ten years, (c) interest payments on the subordinated debt securities
may be deferred at the Borrower's discretion, and (d) neither the
subordinated debt securities nor the corresponding preferred securities
shall contain cross-default or cross-acceleration provisions to the
Indebtedness of the Borrower of the types described in clauses (a) and (b)
of the definition of Indebtedness set forth in Section 1.1.
"Prime Rate": at any day, the greater on such day of (a) the rate per
annum designated by the Administrative Agent from time to time (and in
effect on such day) as its prime rate for Canadian Dollar commercial loans
made in Canada and (b) one-half of one percent (1/2%) plus the CDOR Rate
from time to time (and in effect on such day), as advised by the
Administrative Agent to the Borrower from time to time pursuant hereto.
The Prime Rate is not intended to be the lowest rate of interest charged by
the Administrative Agent in connection with extensions of credit in
Canadian Dollars to debtors.
"Prime Rate Loans": Revolving Credit Loans bearing interest at a rate
based upon the Prime Rate.
"Quebec Encumbrance": for Quebec purposes, a legal cause of
preference, a dismemberment of the right of ownership, a special mode of
ownership, a restriction on the right to dispose and a Conventional
Security. For purposes of this definition, a Conventional Security means a
conventional hypothec, a resolutory right, a right of
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redemption, a reservation of ownership, a trust and any security device or
other real right, whether or not capable of registration, granted by
agreement for the purpose of securing the performance of an obligation.
"Ratings": the actual or implied senior long-term unsecured non-
credit-enhanced debt ratings of Case Credit in effect from time to time by
Moody's, S&P or any other then nationally recognized rating agency.
"Receivables": any right of payment from or on behalf of any obligor,
whether constituting an account, chattel paper, instrument, general
intangible or otherwise, arising from the financing by the Borrower or any
of its Subsidiaries of property or services, and monies due thereunder,
security interests in the property and services financed thereby and all
other related rights.
"Receivables Related Assets": in connection with any securitization
or other asset-backed financing of, or other sale, transfer or disposition
of, Receivables, the collective reference to: (a) any rights arising under
the documentation governing or relating to such Receivables (including
rights in respect of Liens securing such Receivables and other credit
support in respect of such Receivables), (b) any proceeds of such
Receivables and any lockboxes or accounts in which such proceeds are
deposited, (c) spread accounts and other similar accounts (and any funds on
deposit therein) established in connection with such securitization or
asset-backed financing and (d) any warranty, indemnity, dilution and other
intercompany claim arising out of the documentation evidencing such
securitization or asset-backed financing.
"Reference Discount Rate": on any date with respect to each Draft
requested to be accepted by a Lender, (a) if such Lender is a Schedule I
Lender, the arithmetic average of the discount rates (expressed as a
percentage calculated on the basis of a year of 365 days) quoted by the
Toronto offices of each of the Schedule I Reference Lenders, at 10:00 A.M.
(Toronto time) on the Borrowing Date as the discount rate at which each
such Schedule I Reference Lender would, in the normal course of its
business, purchase on such date Acceptances having an aggregate face amount
and term to maturity as designated by the Borrower pursuant to Section 3.2
and (b) if such Lender is a Schedule II Lender, the arithmetic average of
the discount rates (expressed as a percentage calculated on the basis of a
year of 365 days) quoted by the Toronto offices of each of the Schedule II
Reference Lenders, at 10:00 A.M. (Toronto time) on the Borrowing Date as
the discount rate at which each such Schedule II Reference Lender would, in
the normal course of its business, purchase on such date Acceptances having
an aggregate face amount and term to maturity as designated by the Borrower
pursuant to Section 3.2. The Administrative Agent shall advise the
Borrower and the Lenders, either in writing or verbally, by 11:00 A.M.
(Toronto time) on the Borrowing Date as to the applicable Reference
Discount Rate and corresponding Acceptance Purchase Price in respect of
Acceptances having the maturities selected by the Borrower for such
Borrowing Date.
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The arithmetic average of any rates or quotations to be calculated
hereunder shall be rounded, if necessary, to the nearest 1/100 of one per
cent (.01%), with five one thousands of a percentage point rounded upwards.
All dollar amounts used or resulting from any calculation based on the
Reference Discount Rate will be rounded to the nearest cent (with one-half
of one cent rounded upwards).
"Reference Lenders": means the collective reference to the Schedule I
Reference Lenders and the Schedule II Reference Lenders.
"Register": as defined in subsection 11.6(d).
"Request for Acceptances": as defined in subsection 3.2(a).
"Requirement of Law": as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule, guideline or regulation or
determination of an arbitrator or a court or other Governmental Authority,
in each case applicable to or binding upon such Person or any of its
material property or to which such Person or any of its material property
is subject.
"Responsible Officer": with respect to the Borrower, the President or
any Vice President or, with respect to financial matters, the Chief
Financial Officer, the Treasurer, the Controller, any Assistant Treasurer,
or any Assistant Controller of the Borrower.
"Restricted Subsidiary": means each Subsidiary of the Borrower other
than Securitization Subsidiaries and Subsidiaries of Securitization
Subsidiaries.
"Revolving Credit Loan": as defined in Section 2.1; collectively, the
"Revolving Credit Loans".
"Revolving Credit Note": as defined in subsection 2.2(e);
collectively, the "Revolving Credit Notes".
"S&P": Standard & Poor's Ratings Group or any successor thereto.
"Schedule I Lender": each Lender listed on Schedule I to the Bank Act
(Canada).
"Schedule I Reference Lenders": The Bank of Nova Scotia, Canadian
Imperial Bank of Commerce, and Royal Bank of Canada.
"Schedule II Lender": each Lender which is not a Schedule I Lender.
"Schedule II Reference Lenders": Bank of America Canada, Chemical
Bank of
<PAGE>
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Canada and Societe Generale (Canada).
"Securitization Subsidiary": a Subsidiary of the Borrower (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 Borrower or any Restricted Subsidiary, or
(ii) subjects any property or assets of the Borrower 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": any transaction or series of
transactions that have been or may be entered into by the Borrower or any
of its Subsidiaries in connection with or reasonably related to a
transaction or series of transactions in which the Borrower or any of its
Subsidiaries may sell, convey or otherwise transfer to (a) a Securitization
Subsidiary or (b) any other Person, or may grant a security interest in,
any Receivables or asset-backed securities or interest therein (whether
such Receivables or securities are then existing or arising in the future)
of the Borrower 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.
"Special Purpose Subsidiary": any wholly-owned Subsidiary of the
Borrower or Case Credit which (a) is formed for the purpose of effecting
any securitization or other asset-backed financing of Receivables and
engaging in other activities reasonably related thereto, and (b) is
structured as a "bankruptcy-remote subsidiary" in accordance with customary
practices in the asset-backed securitization market.
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through
one or more intermediaries, or both, by such Person. Unless otherwise
qualified, all references to a "Subsidiary" or to "Subsidiaries" in this
Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.
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"Tax Act": the Income Tax Act (Canada), as amended from time to time.
"Termination Date": the earlier of the date which is five years after
the Effective Date and the Termination Date as defined in the Case Credit
Credit Agreement.
"Transferee": as defined in subsection 11.6(f).
"Type": as to any Loan, its nature as a Revolving Credit Loan or its
nature as an Acceptance (including an Acceptance Note).
"Yield to Maturity": as defined in the Indenture.
SECTION 1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the Revolving Credit Notes, the other Loan Documents or
any certificate or other document made or delivered pursuant hereto.
(b) As used herein and in the Revolving Credit Notes and any other
Loan Document, and any certificate or other document made or delivered pursuant
hereto or thereto, accounting terms relating to a Borrower and its Subsidiaries
not defined in Section 1.1 and accounting terms partly defined in Section 1.1,
to the extent not defined, shall have the respective meanings given to them
under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
ARTICLE 2
AMOUNT AND TERMS OF THE COMMITMENTS
SECTION 2.1 Revolving Credit Loans. Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit loans
(each, a "Revolving Credit Loan") in Canadian Dollars to the Borrower on the
Effective Date pursuant to Annex A and, thereafter, from time to time during the
Commitment Period so long as after giving effect thereto (a) the Available
Commitment of each Lender is greater than or equal to zero; and (b) the
Aggregate Outstandings of all Lenders do not exceed the aggregate Commitments.
During the Commitment Period the Borrower may use the Commitments by borrowing,
prepaying the
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Revolving Credit Loans in whole or in part, and reborrowing, all in accordance
with the terms and conditions hereof. The Revolving Credit Loans shall be Prime
Rate Loans.
SECTION 2.2 Repayment of Revolving Credit Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally promises to pay to the Administrative
Agent for the account of each Lender the then unpaid principal amount of each
Revolving Credit Loan of such Lender (whether made before or after the
termination or expiration of the Commitments) on the Termination Date and on
such other dates and in such other amounts as may be required from time to time
pursuant to this Agreement. The Borrower hereby further agrees to pay interest
on the unpaid principal amount of the Revolving Credit Loans from time to time
outstanding until payment thereof in full at the rates per annum, and on the
dates, set forth in Section 4.1.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Borrower to such Lender
resulting from each Revolving Credit Loan of such Lender from time to time,
including the amounts of principal and interest payable thereon and paid to such
Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
subsection 11.6(d), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Revolving Credit Loan made hereunder, (ii) the
amount of any principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder in respect of the Revolving Credit
Loans and (iii) both the amount of any sum received by the Administrative Agent
hereunder from the Borrower in respect of the Revolving Credit Loans and each
Lender's share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 2.2(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Revolving
Credit Loans made to the Borrower by such Lender in accordance with the terms of
this Agreement.
(e) The Borrower agrees that, upon the request to the Administrative
Agent by any Lender, the Borrower will execute and deliver to such Lender a
promissory note of the Borrower evidencing the Revolving Credit Loans of such
Lender, substantially in the form of Exhibit A with appropriate insertions as to
date and principal amount (each, a "Revolving Credit Note").
SECTION 2.3 Procedure for Revolving Credit Borrowing. The Borrower
may borrow under the Commitments during the Commitment Period on any Business
Day, provided that the Borrower shall give the Administrative Agent irrevocable
notice (which notice must be received by the Administrative Agent prior to 11:00
a.m., Toronto time, at least one Business
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Day prior to the requested Borrowing Date), specifying (a) the amount to be
borrowed and (b) the requested Borrowing Date. Each borrowing under the
Revolving Credit Loans shall be in an amount equal to $5,000,000 or a whole
multiple of $1,000,000 in excess thereof (or, if the then Aggregate Available
Commitments are less than $5,000,000, such lesser amount). Upon receipt of any
such notice from the Borrower, the Administrative Agent shall promptly notify
each Lender thereof. Not later than 12:00 Noon, Toronto time, on each requested
Borrowing Date and upon fulfilment of the applicable conditions set forth in
Article 6, each Lender shall make an amount equal to its Commitment Percentage
of the principal amount of Revolving Credit Loans requested to be made on such
Borrowing Date available to the Administrative Agent at its office specified in
Section 11.2 in Canadian Dollars and in immediately available funds. Except as
otherwise provided in Annex A with respect to Revolving Credit Loans to be made
on the Effective Date, the Administrative Agent shall on such date credit the
account of the Borrower on the books of such office with the aggregate of the
amounts made available to the Administrative Agent by the Lenders and in like
funds as received by the Administrative Agent.
SECTION 2.4 Termination or Reduction of Revolving Credit Loans. The
Borrower shall have the right, upon not less than three Business Days' notice to
the Administrative Agent, to terminate the Commitments or, from time to time, to
reduce the amount of the Commitments; provided that no such termination or
reduction shall be permitted if, after giving effect thereto and to any
prepayments of the Loans made on the effective date thereof, either (a) the
Aggregate Available Commitments would not be greater than or equal to zero or
(b) the Available Commitments of any Lender would not be greater than or equal
to zero. Any such reduction shall be in an amount equal to $5,000,000 or a
whole multiple of $1,000,000 in excess thereof and shall reduce permanently the
Commitments then in effect.
ARTICLE 3
AMOUNT AND TERMS OF CANADIAN ACCEPTANCE FACILITY
SECTION 3.1 Acceptance Commitments. (a) Subject to the terms and
conditions hereof, each Lender agrees to create Acceptances for the Borrower on
any Business Day during the Commitment Period by accepting Drafts drawn by the
Borrower; provided that no Lender shall be obligated to accept any Draft if,
after giving effect to such acceptance, (i) the Available Commitment of such
Lender would not be greater than or equal to zero or (ii) the Aggregate
Available Commitments of all Lenders would not be greater than or equal to zero.
(b) The Borrower may utilize the Commitments in the manner
contemplated by this Article 3 by authorizing each Lender in the manner provided
for in subsection 3.2(b) to draw Drafts on such Lender and having such Drafts
accepted pursuant to Section 3.2, paying its obligations with respect thereto
pursuant to Section 3.2, and again authorizing Drafts to be drawn on the Lenders
and having them presented for acceptance, all in accordance with the
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terms and conditions of this Article 3.
(c) For the purposes of this Agreement, all Acceptances shall be
considered a utilization of the Commitments in an amount equal to the
undiscounted face amount of such Acceptance.
SECTION 3.2 Creation of Acceptances. (a) The Borrower may request
the creation of Acceptances hereunder by submitting to the Administrative Agent
at its office specified in Section 11.2 prior to 11:00 A.M., Toronto time, one
Business Day prior to the requested Borrowing Date, (i) a request for
acceptances (each, a "Request for Acceptances") completed in a manner and in
form and substance reasonably satisfactory to the Administrative Agent and
specifying, among other things, the Borrowing Date, maturity and amount of the
Drafts to be accepted and discounted, (ii) to the extent not theretofore
supplied to each Lender, a sufficient number of Drafts to be drawn on the
Lenders, to be appropriately completed in accordance with subsection 3.2(d) and
(iii) such other certificates, documents and other papers and information as the
Administrative Agent may reasonably request. Upon receipt of any such Request
for Acceptances, the Administrative Agent shall promptly notify each Lender of
its receipt thereof.
(b) In connection with each utilization by it of the Commitments by
way of Acceptances, the Borrower hereby agrees that it shall deliver to the
Administrative Agent on the Effective Date Powers of Attorney substantially in
the form annexed hereto as Exhibit D (the "Powers of Attorney") authorizing each
Lender to draw Drafts on such Lender on behalf of the Borrower and to complete
such Drafts in accordance with the Requests for Acceptances submitted from time
to time pursuant to subsection 3.2(a) hereof.
(c) Each Request for Acceptances made by or on behalf of the Borrower
hereunder shall contain a request for Acceptances denominated in Canadian
Dollars and having an aggregate undiscounted face amount equal to $10,000,000 or
a whole multiple of $1,000,000 in excess thereof. Each Acceptance shall be
dated the Borrowing Date specified in the Request for Acceptances with respect
thereto and shall be stated to mature on the date specified in the Request for
Acceptances, which date shall be a Business Day which is not less than 7 days
and not more than 180 days after the date thereof (and, in any event, prior to
the Termination Date).
(d) Not later than 12:00 P.M., Toronto time, on the Borrowing Date
specified in the relevant Request for Acceptances, and upon fulfilment of the
applicable conditions set forth in Article 6, each Lender will, in accordance
with such Request for Acceptances, (i) sign each Draft on behalf of the Borrower
pursuant to the Power of Attorney, (ii) complete the date, amount and maturity
of each Draft to be accepted, (iii) accept such Drafts and give notice to the
Administrative Agent of such acceptance and (iv) upon such acceptance, discount
such Acceptances to the extent contemplated by Section 3.3.
(e) The Administrative Agent shall maintain the Register pursuant to
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subsection 11.6(d), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Acceptance created hereunder; (ii) the stamping
fee payable in respect of each Acceptance; and (iii) both the amount of any sum
received by the Administrative Agent hereunder from the Borrower in respect of
each Acceptance and each Lender's share thereof.
SECTION 3.3 Discount of Acceptances. (a) Each Lender hereby agrees,
on the terms and subject to the conditions set forth in this Agreement, to
discount Acceptances created by it on the Borrowing Date with respect thereto at
the applicable Reference Discount Rate by making available to the Borrower an
amount in immediately available funds equal to the Acceptance Purchase Price in
respect thereof, and to notify the Administrative Agent that such Draft has been
accepted and discounted by such accepting Lender.
(b) In the event that the Borrower has made a Request for
Acceptances, then (i) prior to 11:00 A.M., Toronto time, on the Borrowing Date
with respect thereto, the Administrative Agent will notify the Borrower and the
Lenders of the applicable Reference Discount Rate for such Acceptances and the
corresponding Acceptance Purchase Price and (ii) each Lender shall make the
Acceptance Purchase Price for the Acceptance discounted by it available to the
Administrative Agent, for the account of the Borrower, at the office of the
Administrative Agent specified in Section 11.2 prior to 12:00 P.M., Toronto
time, on the Borrowing Date, in Canadian Dollars in funds immediately available
to the Administrative Agent. Such borrowing will then be made available to the
Borrower by the Administrative Agent crediting the account of the Borrower on
the books of such office with the aggregate of the amounts made available to the
Administrative Agent by the Lenders and in like funds as received by the
Administrative Agent.
Acceptances discounted by any Lender may be sold by it at any time
prior to maturity in the relevant market therefor in Canada or, if not so sold,
must be purchased by such Lender for its own account.
SECTION 3.4 Stamping Fees. On the Borrowing Date with respect to each
Acceptance, the Borrower shall pay to the Administrative Agent, for the account
of the Lenders, a stamping fee at a rate per annum equal to the Applicable
Margin in effect on such Borrowing Date, computed for the period from and
including the Borrowing Date with respect to such Acceptance to but not
including the maturity of such Acceptance, on the basis of a 365 or 366 day year
(as the case may be), of the undiscounted face amount of such Acceptance.
SECTION 3.5 Acceptance Reimbursement Obligations. (a) The Borrower
hereby unconditionally agrees to pay to the Administrative Agent for the account
of each Lender, on the maturity date (whether at stated maturity, by
acceleration or otherwise) for each Acceptance created by such Lender for the
account of the Borrower, the aggregate undiscounted face amount of each such
then-maturing Acceptance.
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(b) The obligation of the Borrower to reimburse the Lenders for then-
maturing Acceptances may be satisfied by the Borrower by:
(i) paying to the Administrative Agent, for the account of the
Lenders, an amount in Canadian Dollars and in immediately available funds
equal to the aggregate undiscounted face amount of all Acceptances created
for the account of the Borrower hereunder which are then maturing by 12:00
P.M., Toronto time, on such maturity date; provided that the Borrower shall
have given one Business Day's prior notice to the Administrative Agent
(which shall promptly notify each Lender thereof) of its intent to
reimburse the Lenders in the manner contemplated by this paragraph (i);
(ii) having new Drafts accepted and discounted by the Lenders
in the manner contemplated by Sections 3.2 and 3.3 in substitution for the
then-maturing Acceptances; provided that (A) the Borrower shall have
delivered to the Administrative Agent (which shall promptly provide a copy
thereof to each Lender) a duly completed Request for Acceptances not later
than 11:00 A.M., Toronto time, one Business Day prior to such maturity
date, together with the documents, instruments, certificates and other
papers and information contemplated by paragraphs 3.2(a)(ii) and
3.2(a)(iii), (B) if any Default or Event of Default has occurred and is
then continuing, the Request for Acceptances shall be deemed to be a
request for a Revolving Credit Loan in an amount equal to the undiscounted
face amount of the Acceptances requested, (C) each Lender shall retain the
Acceptance Purchase Price for the Acceptance created by it and apply such
Acceptance Purchase Price to the Acceptance Reimbursement Obligations of
the Borrower in respect of the maturing Acceptance created by such Lender
and (D) if the Acceptance Purchase Price so retained by such Lender is less
than the undiscounted face amount of the then-maturing Acceptance, the
Borrower shall have made arrangements reasonably satisfactory to such
Lender for payment of such deficiency; or
(iii) to the extent that the Borrower has not given to the
Administrative Agent a notice contemplated by paragraphs (i) or (ii) above,
then the Borrower shall be deemed to have requested a borrowing pursuant to
Section 2.1 of Revolving Credit Loans in an aggregate principal amount
equal to the undiscounted face amount of such then-maturing Acceptance.
The Borrowing Date with respect to such borrowing shall be the maturity
date (or such earlier date as the Commitments shall be terminated) for such
Acceptance. Except to the extent that any of the events contemplated by
paragraphs (i) or (ii) of subsection 9.1(f) with respect to the Borrower
has occurred and is then continuing (in which case the Borrower shall be
obligated to pay to each Lender the undiscounted face amount of the
Acceptances created by such Lender which are then maturing), each Lender
shall be obligated to make the Revolving Credit Loan contemplated by this
paragraph 3.5(b)(iii) regardless of whether the conditions precedent to
borrowing set forth in this Agreement are then satisfied. The proceeds of
any Revolving Credit Loans made pursuant to this paragraph 3.5(b)(iii)
shall be retained by the Lenders and applied by them to the Acceptance
Reimbursement Obligations of the
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Borrower in respect of the then-maturing Acceptance.
(c) The unpaid amount of any such Acceptance Reimbursement
Obligations shall be treated as a Revolving Credit Loan for the purposes hereof
and interest shall accrue on the amount of any such unpaid Acceptance
Reimbursement Obligation from the date such amount becomes due until paid in
full at a fluctuating rate per annum equal to the rate which would then be
payable on Revolving Credit Loans. Such interest shall be payable by the
Borrower on demand by the Administrative Agent.
(d) In no event shall the Borrower claim from any Lender any grace
period with respect to the payment at maturity of any Acceptances created by
such Lender pursuant to this Agreement.
SECTION 3.6 Converting Revolving Credit Loans to Acceptances and
Acceptances to Revolving Credit Loans. (a) Subject to subsection 3.6(b), the
Borrower may at any time and from time to time request that any then outstanding
Revolving Credit Loan be converted into an Acceptance by delivering to the
Administrative Agent (which shall promptly notify each Lender of its receipt
thereof) a Request for Acceptances, together with a statement that the
Acceptances so requested are to be created pursuant to this subsection 3.6(a),
such notice to be given not later than three Business Days prior to the
requested conversion date.
(b) In the event that the Administrative Agent receives such a
Request for Acceptances and the accompanying statement described in subsection
3.6(a), then the Borrower shall pay on the requested Borrowing Date to the
Administrative Agent, for the account of the Lenders, the principal amount of
the then outstanding Revolving Credit Loans being so converted, and each Lender
shall accept and discount the Borrower's Drafts having an aggregate face amount
at least equal to the principal amount of the Revolving Credit Loans of such
Lender which are then being repaid; provided that, (i) following the occurrence
and during the continuance of a Default or an Event of Default, no Acceptances
may be created and (ii) no Acceptance which is permitted to be created hereunder
shall have a maturity that extends beyond the Termination Date.
(c) The creation of Acceptances pursuant to this Section 3.6 shall
not be subject to the satisfaction of the conditions precedent to borrowing set
forth in this Agreement.
(d) The Borrower may elect from time to time to convert outstanding
Acceptances to Revolving Credit Loans by giving the Administrative Agent at
least one Business Day's irrevocable notice of such election prior to the
maturity of such Acceptances; provided that any such conversion of Acceptances
may only be made on the maturity thereof.
SECTION 3.7 Acceptances to be Supplemented by Revolving Credit Loans
in order to be Created Ratably. The Borrower hereby agrees that each Request
for Acceptances, reimbursement of Acceptances and conversion of Revolving Credit
Loans to Acceptances shall
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be made in a manner so that any such Request for Acceptances, reimbursement or
conversion shall apply ratably to all Lenders in accordance with their
respective Commitment Percentages and so that, after giving effect to such
Request for Acceptances, reimbursement or conversion, as the case may be, each
Lender shall hold its ratable share (determined in accordance with its
Commitment Percentage) of the aggregate undiscounted face amount of all
Acceptances which mature on the same day. In the event that the aggregate
undiscounted face amount of Acceptances requested by the Borrower to be created
by all Lenders hereunder pursuant to any Request for Acceptances is an amount
which, if divided ratably among the Lenders in accordance with their respective
Commitment Percentages, would not result in each Lender accepting a Draft which
has an undiscounted face amount equal to $100,000 or a whole multiple of
$100,000 in excess thereof, then each Lender's ratable share of such Acceptance
shall be rounded downward to an amount which is equal to $100,000 or a whole
multiple of $100,000 in excess thereof, and the Borrower shall be deemed to have
requested that such Lender make a Revolving Credit Loan to the Borrower (which
Revolving Credit Loan need not satisfy the minimum borrowing requirements of
Section 3.3) on the date upon which such Draft is to be accepted in the amount
by which such Lender's ratable share (determined in accordance with its
Commitment Percentage) of the undiscounted face amount of the Acceptance
requested in such Request for Acceptances was rounded downward. Notwithstanding
any other provision hereof, the Administrative Agent is authorized by the
Borrower and the Lenders to allocate amongst the Lenders the Acceptances to be
issued in such manner and amounts as the Administrative Agent may, in its sole
and unfettered discretion acting reasonably, consider necessary, rounding up or
down, so as to ensure that no Lender is required to accept a Draft for a
fraction of $100,000 and, in such event, the Lenders' rateable share with
respect to such Acceptances shall be adjusted accordingly.
SECTION 3.8 Special Provisions Relating to Acceptance Notes. (a)
The Borrower and each Lender hereby acknowledge and agree that from time to time
certain Lenders which are not Canadian chartered banks or which are Schedule II
Lenders may not be authorized to or may, as a matter of general corporate
policy, elect not to accept Drafts, and the Borrower and each Lender agrees that
any such Lender may purchase Acceptance Notes of the Borrower in accordance with
the provisions of subsection 3.8(b) in lieu of creating Acceptances for its
account.
(b) In the event that any Lender described in subsection 3.8(a) above
is unable to, or elects as a matter of general corporate policy not to, create
Acceptances hereunder, such Lender shall not create Acceptances hereunder, but
rather, if the Borrower requests the creation of such Acceptances, the Borrower
shall deliver to such Lender non-interest bearing promissory notes (each, an
"Acceptance Note") of the Borrower, substantially in the form of Exhibit C,
having the same maturity as the Acceptances to be created and in an aggregate
principal amount equal to the undiscounted face amount of such Acceptances.
Each such Lender hereby agrees to purchase Acceptance Notes from the Borrower at
a purchase price equal to the Acceptance Purchase Price which would have been
applicable if a Draft had been accepted by it (less any stamping fee which would
have been paid pursuant to Section 3.4 if such Lender had
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created an Acceptance) and such Acceptance Notes shall be governed by the
provisions of this Article 3 as if they were Acceptances.
ARTICLE 4
GENERAL PROVISIONS APPLICABLE TO LOANS
SECTION 4.1 Interest Rates and Payment Dates. (a) Each Prime Rate
Loan shall bear interest for each day that it is outstanding at a rate per annum
equal to the Prime Rate for such day.
(b) If all or a portion of (i) the principal amount of any Revolving
Credit Loan, (ii) any interest payable thereon or (iii) any facility fee or
other amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum equal to the Prime Rate plus 2% from the date of such non-
payment until such amount is paid in full (as well after as before judgment).
(c) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to subsection 4.1(b) shall be
payable from time to time on demand.
SECTION 4.2 Maximum Number of Tranches. (a) All Acceptances created
hereunder, all conversions and continuations thereof and all selections of
maturity dates with respect thereto shall be made pursuant to such elections so
that, after giving effect thereto, there shall be no more than 20 Acceptance
Tranches at any one time outstanding.
SECTION 4.3 Optional and Mandatory Prepayments. (a) The Borrower may
at any time and from time to time prepay, without premium or penalty, the
Revolving Credit Loans, in whole or in part, upon at least one Business Day's
irrevocable notice to the Administrative Agent specifying the date and amount of
prepayment. Upon the receipt of any such notice the Administrative Agent shall
promptly notify each Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified therein.
Except as provided in Annex A, partial prepayments under this Section 4.3 shall
be in a minimum aggregate principal amount of $10,000,000 or a whole multiple of
$1,000,000 in excess thereof.
(b) If, at any time during the Commitment Period, for any reason the
Aggregate Outstandings of all Lenders exceed the aggregate Commitments then in
effect, the Borrower shall, without notice or demand, immediately prepay the
Revolving Credit Loans and cash collateralize any outstanding Acceptance
Reimbursement Obligations (whether or not then due and payable), such that the
sum of (1) the aggregate principal amount of the Revolving Credit Loans so
prepaid and (2) the aggregate amount of the Acceptance Reimbursement
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Obligations so paid or cash collateralized, equals or exceeds the amount of such
excess.
(c) Each prepayment of Revolving Credit Loans pursuant to this Section
4.3 shall be accompanied by accrued and unpaid interest on the amount prepaid to
the date of prepayment.
(d) Prepayments of the Loans and Acceptance Reimbursement Obligations
pursuant to this Section 4.3 shall be applied as follows: first, to prepay
Revolving Credit Loans then outstanding and second, to prepay any Acceptance
Reimbursement Obligations then due and payable (or, in the event of a prepayment
of Acceptance Reimbursement Obligations which are not then due and payable, to
cash collateralize such Acceptance Reimbursement Obligations upon terms and
conditions reasonably satisfactory to the Administrative Agent).
SECTION 4.4 Facility Fees; Other Fees. (a) The Borrower agrees to
pay to the Administrative Agent for the account of each Lender, a facility fee
for the period from and including the Effective Date to but excluding the
Termination Date (or such earlier date on which the Commitments shall terminate
as provided herein); each such facility fee shall be computed at the Facility
Fee Rate on the amount of the Commitment of such Lender during the period for
which payment is made, payable quarterly in arrears on the last day of each
March, June, September and December and on the Termination Date or such earlier
date on which the Commitments shall terminate as provided herein, commencing on
the first such date to occur after the date hereof.
(b) The Borrower shall pay (without duplication of any other fee
payable under this Section 4.4) to the Administrative Agent all fees separately
agreed to by the Borrower and the Administrative Agent.
(c) The Borrower shall pay (without duplication of any other fee
payable under this Section 4.4) to each Lender for its respective account all
fees separately agreed to by the Borrower and such Lender.
SECTION 4.5 Computation of Interest and Fees. (a) Facility fees and
interest shall be calculated on the basis of a 365- (or 366-, as the case may
be) day year for the actual days elapsed. Any change in the interest rate on a
Loan resulting from a change in the Prime Rate shall become effective as of the
opening of business on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the Borrower and the
Lenders of each such change in the Prime Rate. The rates of interest specified
in this Agreement are nominal rates and all interest payments and computations
are to be made without allowance or deduction for deemed reinvestment of
interest.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrower and the Lender in the absence of manifest error. The Administrative
Agent shall, at the request
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of the Borrower, deliver to the Borrower a statement showing in reasonable
detail the calculations used by the Administrative Agent in determining any
interest rate pursuant to subsection 4.1(a).
(c) If any Reference Lender shall for any reason no longer have a
Commitment or any Revolving Credit Loans, such Reference Lender shall thereupon
cease to be a Reference Lender, and if, as a result, there shall only be one
Schedule I Reference Lender or Schedule II Reference Lender (as the case may be)
remaining, the Administrative Agent (after consultation with the Borrower and
the Schedule I Lenders or the Schedule II Lenders, as applicable) shall, by
notice to the Borrower and the Lenders, designate another Schedule I Lender or
Schedule II Lender, as applicable, as a Schedule I Reference Lender or a
Schedule II Reference Lender, as applicable, so that there shall at all times be
at least two Schedule I Reference Lenders and two Schedule II Reference Lenders.
(d) Each Reference Lender shall use its best efforts to furnish
quotations of rates to the Administrative Agent as contemplated hereby. If any
of the Lenders shall be unable or shall otherwise fail to supply such rates to
the Administrative Agent upon its request, the rate of interest shall be
determined on the basis of the quotations of the remaining Reference Lenders or
Reference Lender, as applicable.
(e) For the purposes of the Interest Act (Canada), whenever interest
payable pursuant to this Agreement is calculated on the basis of period other
than a calendar year (the "Interest Period"), each rate of interest determined
hereunder to be applicable to the calculation of interest accruing during such
Interest Period, expressed as an annual rate, is the rate as so determined
multiplied by the actual number of days in the calendar year in which the same
is to be ascertained and divided by the number of days in the Interest Period.
SECTION 4.6 Pro Rata Treatment and Payments. (a)(i) Each borrowing
of Revolving Credit Loans by the Borrower from the Lenders hereunder shall be
made, and any reduction of the Commitments of the Lenders shall be allocated by
the Administrative Agent, pro rata according to the Commitment Percentages of
the Lenders. Each optional prepayment by the Borrower on account of principal
of and interest on the Revolving Credit Loans shall be allocated by the
Administrative Agent pro rata according to the respective outstanding principal
amounts thereof. All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without set-off or counterclaim and shall be made prior
to 12:00 Noon, Toronto time, on the due date thereof to the Administrative
Agent, for the account of the Lenders, at the Administrative Agent's office
specified in Section 11.2, in Canadian Dollars and in immediately available
funds. The Administrative Agent shall distribute such payments to the Lenders
promptly upon receipt in like funds as received.
(ii) If any payment hereunder (other than payments on the
Acceptances) becomes due and payable on a day other than a Business
Day, the maturity of
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such payment shall be extended to the next succeeding Business Day,
and, with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension.
Acceptances may only mature on a Business Day.
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a Borrowing Date that such Lender will not make
the amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate per annum equal to the Administrative Agent's
reasonable estimate of its average daily cost of funds (in the case of a
borrowing of Revolving Credit Loans or Acceptances), in each case for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this Section shall be conclusive in the
absence of manifest error. If such Lender's share of such borrowing is not made
available to the Administrative Agent by such Lender within three Business Days
of such Borrowing Date, the Borrower shall repay such Lender's share of such
borrowing (together with interest thereon from the date such amount was made
available to such Borrower at the rate per annum applicable to Prime Rate Loans
hereunder) to the Administrative Agent not later than three Business Days after
receipt of written notice from the Administrative Agent specifying such Lender's
share of such borrowing that was not made available to the Administrative Agent.
Nothing contained in this subsection 4.8(b) shall prejudice any claims otherwise
available to the Borrower against any Lender as a result of such Lender's
failure to make its share of any borrowing available to the Administrative Agent
for the account of the Borrower.
SECTION 4.7 Illegality. Notwithstanding any other provision herein,
if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender to
create or maintain Acceptances as contemplated by this Agreement, (a) the
commitment of such Lender hereunder to accept Drafts, purchase Acceptances,
continue Acceptances as such and convert Revolving Credit Loans to Acceptances
shall forthwith be cancelled until such time as it shall no longer be unlawful
for such Lender to create or maintain Acceptances and (b) such Lender's then
outstanding Acceptances, if any, shall be converted automatically to Prime Rate
Loans on the respective maturities thereof or within such earlier period as may
be required by law.
SECTION 4.8 Requirements of Law. (a) If the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
or compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority, in each
case made subsequent to the date such Lender becomes
<PAGE>
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a Lender:
(i) shall subject such Lender to any tax of any kind whatsoever
with respect to this Agreement, any Revolving Credit Note, any Acceptance
made by it or any Loan made by it or its obligation to make any Loan or
create any Acceptance, or shall change the basis of taxation of payments to
such Lender in respect thereof (except for taxes covered by Section 4.9
which shall be dealt with in accordance with such Section and changes in
rate of tax on the overall net income or capital of such Lender); or
(ii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making or creating (as
applicable), converting into, continuing or maintaining Loans or Acceptances or
to reduce any amount receivable hereunder in respect thereof, then, in any such
case, the Borrower shall promptly pay such Lender, upon its demand, any
additional amount or amounts as will compensate such Lender for such increased
cost or reduced amount receivable. If any Lender becomes entitled to claim any
additional amounts pursuant to this Section, it shall as soon as reasonably
practicable thereafter (but in any event within 60 days after such Lender knows
thereof) provide notice to the Borrower (with a copy to the Administrative
Agent) of the event by reason of which it becomes so entitled, failing which
notice being provided within such period the Borrower shall not be liable to
provide compensation in respect of any costs accruing prior to the 60th day
preceding giving such notice. A certificate with reasonable supporting detail
as to any additional amounts payable pursuant to this Section submitted by such
Lender to the Borrower (with a copy to the Administrative Agent) shall be
conclusive in the absence of manifest error. This covenant shall survive the
termination of this Agreement and the payment of the Loans, the Acceptance
Reimbursement Obligations, the Acceptance Notes and all other amounts payable
hereunder.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority, in each case, made subsequent to the date hereof, does or shall have
the effect of reducing the rate of return on such Lender's or such corporation's
capital as a consequence of its obligations hereunder to a level below that
which such Lender or such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then from time to time, after submission by such
Lender to the Borrower (with a copy to the Administrative Agent) of a written
request with reasonable supporting detail therefor, the Borrower shall pay to
such Lender such additional amount or amounts as will compensate such Lender for
such reduction provided that such Lender shall allocate in good faith to the
Borrower an amount of the reduction associated with such adoption, change or
compliance.
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SECTION 4.9 Taxes. All payments made by the Borrower under this
Agreement and any Revolving Credit Note shall be made free and clear of, and
without deduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions
or withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, excluding taxes imposed on the
Administrative Agent or any Lender as a result of a present or former connection
between the Administrative Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
the Administrative Agent or such Lender having executed, delivered or performed
its obligations or received a payment under, or enforced, this Agreement, any
Revolving Credit Note or any other Loan Document). If any such non-excluded
taxes, levies, imposts, duties, charges, fee, deductions or withholdings ("Non-
Excluded Taxes") are required to be withheld from any amounts payable to the
Administrative Agent or any Lender hereunder or under any Revolving Credit
Notes, the amounts so payable to the Administrative Agent or such Lender shall
be increased to the extent necessary to yield to the Administrative Agent or
such Lender (after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates and in the amounts specified in this
Agreement, provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender that is not incorporated under
the laws of Canada or a province thereof or is not a resident of Canada for
purposes of the Tax Act. If the Administrative Agent or any Lender is required
by law to make any payment on account of Non-Excluded Taxes on or in a relation
to any payment received under this Agreement by the Administrative Agent or such
Lender or any liability for Non-Excluded Taxes in respect of any such payment is
imposed, levied or assessed against the Administrative Agent or any Lender, the
Borrower shall pay to the Administrative Agent or such Lender such amounts
(referred to herein as "Additional Amounts") which, after subtraction of any
Non-Excluded Taxes payable by the Administrative Agent or such Lender in
connection with the receipt or accrual of such Additional Amounts or required to
be deducted or withheld by the Borrower from or in respect of the payment of
Additional Amounts to the Administrative Agent or such Lender, shall be equal to
the amount of such payment made by the Administrative Agent or such Lender on
account of Non-Excluded Taxes or liability for Non-Excluded Taxes. Whenever any
Non-Excluded Taxes are payable by the Borrower, as promptly as possible
thereafter the Borrower shall send to the Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure. The agreements in this Section shall
survive the termination of this Agreement and the payment of the Loans, the
Acceptance Reimbursement Obligations, the Acceptance Notes and all other amounts
payable hereunder.
SECTION 4.10 Change of Lending Office. Each Lender agrees that if it
makes
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any demand for payment under Section 4.8 or Section 4.9, or if any adoption or
change of the type described in Section 4.7 shall occur with respect to it, it
will use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions and so long as such efforts would not be materially
disadvantageous to it, as determined in its sole discretion) to designate a
different lending office if the making of such a designation would reduce or
eliminate the need for the Borrower to make payments under Section 4.8 or
Section 4.9, or would eliminate or reduce the effect of any adoption or change
described in Section 4.7.
SECTION 4.11 Substitution of Lender. In the event the Borrower is
required to pay any additional amounts pursuant to Section 4.8 or Section 4.9,
the Borrower may, so long as no Event of Default has occurred and is continuing,
require any Lender claiming such additional amounts, upon five Business Days'
prior written notice from the Borrower, to assign the entire then outstanding
principal amount of the Loans owing to such Lender and the entire Commitment of
such Lender to another bank or financial institution selected by the Borrower
and, if such bank or financial institution is not then a Lender, reasonably
satisfactory to the Administrative Agent. Any such assignment shall be effected
in accordance with subsection 11.6(c) and, as a condition to such assignment,
the Borrower shall pay all amounts due to such Lender hereunder on the effective
date of such assignment.
SECTION 4.12 Use of Proceeds. The proceeds of the Loans, Acceptances
and Acceptance Notes shall be used (a) as provided in Annex A and (b) for
working capital and other general corporate purposes of the Borrower and its
Subsidiaries, including investments and acquisitions.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to the Administrative
Agent and each Lender that:
SECTION 5.1 Financial Condition. The balance sheet of the Borrower
and its Consolidated Subsidiaries as at December 31, 1995, which has heretofore
been delivered to each Lender, fairly presents in all material respects and in
conformity with GAAP the financial position of the Borrower and its Consolidated
Subsidiaries as at December 31, 1995.
SECTION 5.2 No Change. Since December 31, 1995, there has been no
development or event which has had or would be reasonably expected to have a
Material Adverse Effect.
SECTION 5.3 Corporate Existence; Compliance with Law. The Borrower
and each Subsidiary of the Borrower (a) is duly incorporated or organized and is
validly existing as
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a corporation or other legal entity in good standing in the jurisdiction of its
incorporation or organization, (b) has the corporate or other power and
authority to own, lease and operate its properties and to conduct the business
in which it is currently engaged, (c) is duly qualified to transact business as
a foreign corporation or other legal entity and is in good standing or otherwise
appropriately qualified in each jurisdiction where its ownership, leasing or
operation of property or the conduct of its business requires such
qualification, except to the extent that any failure to be so qualified and in
good standing would not be reasonably expected to have a Material Adverse
Effect, and (d) is in compliance with all Requirements of Law except to the
extent that the failure to comply therewith would not, in the aggregate, be
reasonably expected to have a Material Adverse Effect.
SECTION 5.4 Corporate Power; Authorization; Enforceable Obligations.
The Borrower has the corporate power and authority to make, deliver and perform
the Loan Documents to which it is a party and to borrow hereunder and has taken
all necessary corporate action to authorize the borrowings on the terms and
conditions of this Agreement and to authorize the execution, delivery and
performance of the Loan Documents to which it is a party. No consent or
authorization of, filing with, notice to or other act by or in respect of, any
Governmental Authority or any other Person is required to be obtained or made by
or on behalf of the Borrower in connection with the borrowings hereunder or with
the execution, delivery, performance, validity or enforceability of the Loan
Documents to which the Borrower is a party, except for any of the foregoing
described in Schedule 5.4, all of which have been obtained or made. This
Agreement and each other Loan Document to which the Borrower is, or is to
become, a party has been or will be duly executed and delivered on behalf of the
Borrower. This Agreement and each other Loan Document to which the Borrower is,
or is to become, a party constitutes or will constitute, a legal, valid and
binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
SECTION 5.5 No Legal Bar. The execution, delivery and performance of
the Loan Documents by the Borrower, the borrowings hereunder and the use of the
proceeds thereof (a) will not violate any Requirement of Law or Contractual
Obligation of the Borrower or any Subsidiary of the Borrower, in each case in
any respect that would reasonably be expected to have a Material Adverse Effect
and (b) will not result in, or require, the creation or imposition of any Lien
on any of its or their respective assets or properties pursuant to any such
Requirement of Law or Contractual Obligation.
SECTION 5.6 No Material Litigation. There are no actions, suits,
investigations or proceedings of or before any arbitrator or Governmental
Authority pending by or against or affecting the Borrower or any Subsidiary of
the Borrower or, to the best knowledge of the Borrower, threatened by or against
or affecting the Borrower or any Subsidiary of the Borrower or against any
assets or properties of the Borrower or any Subsidiary of the Borrower (a) on
and
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as of the Effective Date, with respect to any of the Loan Documents or any of
the transactions contemplated thereby or (b) which would be reasonably expected
to have a Material Adverse Effect.
SECTION 5.7 No Default. Neither the Borrower nor any Subsidiary of
the Borrower is in default under or with respect to any of its Contractual
Obligations in any respect which would be reasonably expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
SECTION 5.8 Taxes. All Canadian federal income tax returns and all
other material tax returns which are required to be filed by, or with respect
to, the Borrower or any Subsidiary of the Borrower have been filed, and all
taxes and assessments due and payable by the Borrower or any Subsidiary of the
Borrower (or for which they could be liable) have been paid, other than (a)
those not yet delinquent, (b) those which, if not paid, would not be reasonably
expected to have a Material Adverse Effect and (c) those the amount or validity
of which are currently being contested in good faith by appropriate proceedings
diligently conducted and with respect to which reserves in conformity with GAAP
have been provided on the books of the Borrower or such Subsidiary, as
applicable; and no material tax Lien (other than those permitted by Section 8.2)
has been filed with respect to any such tax, fee or other charge; and, to the
best knowledge of the Borrower, no claim is being asserted with respect to any
such tax, fee or other charge (other than real property taxes that are not yet
delinquent) which, individually or in the aggregate, would be reasonably
expected to have a Material Adverse Effect.
SECTION 5.9 Borrowing Restriction. The Borrower is not subject to
regulation under any Canadian (Federal or provincial) or other Requirement of
Law which limits its ability to incur Indebtedness as contemplated hereby.
ARTICLE 6
CONDITIONS PRECEDENT
SECTION 6.1 Conditions to Effectiveness of this Agreement. This
Agreement shall become effective on the date on which the following conditions
precedent have been satisfied or waived:
(a) Execution of Agreement. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly authorized officer
of the Borrower, with a copy for each Lender, (ii) for the account of each
Lender, a Power of Attorney from the Borrower, conforming to the requirements
hereof and executed by a duly authorized officer of the Borrower, and (iii) the
Case Credit Guarantee, executed and delivered by a duly authorized officer of
Case Credit, with a copy for each Lender.
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(b) Consents, Licenses and Approvals. The Administrative Agent shall
have received (and made available to each Lender requesting the same), a
certificate of a Responsible Officer of the Borrower (i) attaching copies of all
consents, authorizations, notices and filings referred to in Section 5.4, and
(ii) stating that such consents, authorizations, notices and filings are in full
force and effect.
(c) Legal Opinions. The Administrative Agent shall have received
(with a copy for each Lender), the following executed legal opinions:
(i) the legal opinion of Richard S. Brennan, counsel to Case
Credit and its Subsidiaries, substantially in the form of Exhibit G-1;
(ii) the legal opinion of Milner Fenerty, Alberta counsel to
the Borrower, substantially in the form of Exhibit G-2;
(iii) the legal opinion of Osler, Hoskin & Harcourt, Ontario
counsel to the Borrower, substantially in the form of Exhibit G-3;
(iv) the legal opinion of Foley & Lardner, counsel to Case
Credit, substantially in the form of Exhibit G-4; and
(v) the legal opinion of Aird & Berlis, counsel to the
Administrative Agent, with respect to such matters as the Administrative Agent
shall reasonably request.
(d) Corporate Proceedings. The Administrative Agent shall have
received (with a copy for each Lender), a copy of the resolutions, in form and
substance reasonably satisfactory to the Administrative Agent, of the Board of
Directors of each Loan Party authorizing, as applicable, (i) the execution,
delivery and performance of this Agreement and the other Loan Documents to which
it is a party and (ii) the borrowings contemplated hereunder, certified by the
Secretary or an Assistant Secretary of such Person as of the Effective Date,
which certificate shall be in form and substance reasonably satisfactory to the
Administrative Agent and shall state that the resolutions thereby certified have
not been amended, modified (except as any later such resolution may modify any
earlier such resolution), revoked or rescinded.
(e) Incumbency Certificates. The Administrative Agent shall have
received (with a copy for each Lender), a certificate of each Loan Party, dated
the Effective Date, as to the incumbency and signature of the officers of such
Person executing any Loan Document, reasonably satisfactory in form and
substance to the Administrative Agent, executed by the Secretary or any
Assistant Secretary of such Person.
(f) Corporate Documents. The Administrative Agent shall have
received (with a copy for each Lender) copies of the certificate of
incorporation and by-laws of each Loan
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Party, certified as of the Effective Date as complete and correct copies thereof
by the Secretary or an Assistant Secretary of such Loan Party.
(g) Case Credit Credit Agreement. The Effective Date (under and as
defined in the Case Credit Credit Agreement) shall have occurred.
(h) Existing Credit Agreement. All amounts outstanding under the
Existing Credit Agreement shall have been repaid in the manner prescribed by
Annex A.
(i) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents shall
be satisfactory in form and substance to the Administrative Agent, and the
Administrative Agent shall have received such other documents and legal opinions
in respect of any aspect or consequence of the transactions contemplated hereby
or thereby as it shall reasonably request.
SECTION 6.2 Conditions to Each Extension of Credit. The agreement of
each Lender to make any Extension of Credit requested to be made by it on any
Borrowing Date (including, without limitation, the Extensions of Credit to be
made on the Effective Date) is subject to the satisfaction or waiver of the
following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by any Loan Party in or pursuant to this Agreement or any other
Loan Document to which it is a party shall, except to the extent that they
relate to a particular date, be true and correct in all material respects on and
as of such Borrowing Date (both before and after giving effect to the Extension
of Credit to be made on such Borrowing Date) as if made on and as of such
Borrowing Date; provided, however, that the representations and warranties set
forth in Section 5.2 shall be made only on the Effective Date.
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such Borrowing Date, both before and after giving effect to
the Extensions of Credit requested to be made on such Borrowing Date.
Each Extension of Credit made to the Borrower hereunder shall constitute a
representation and warranty by the Borrower as of the date of such Extension of
Credit that the conditions contained in this Section 6.2 have been satisfied.
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ARTICLE 7
AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments (or any of
them) remain in effect, any Loan, Acceptance Reimbursement Obligation or
Acceptance Note remains outstanding and unpaid or any other amount is owing to
any Lender or the Administrative Agent hereunder or under any other Loan
Document, the Borrower shall and (except in the case of delivery of financial
information, reports and notices which shall only be delivered by the Borrower)
shall cause each of its Subsidiaries to:
SECTION 7.1 Financial Statements. Furnish to the Administrative Agent
(with a copy for each Lender):
(a) as soon as practicable, but in any event within 120 days after
the end of each fiscal year of the Borrower a copy of the consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as at the end of such
year and the related consolidated statements of income and retained earnings and
of cash flows for such year, setting forth in each case in comparative form the
figures for the previous year (commencing with the consolidated financial
statements for the fiscal year ended December 31, 1995), reported on without a
"going concern" or like qualification or exception, or qualification arising out
of the scope of the audit, by independent chartered accountants of nationally
recognized standing selected by the Borrower; and
(b) as soon as practicable, but in any event not later than 60 days
after the end of each of the first three quarterly periods of each fiscal year
of the Borrower, the unaudited consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and retained earnings and of cash
flows for such quarter and the portion of the fiscal year through the end of
such quarter, setting forth in the case of such consolidated financial
statements covering any fiscal quarter in comparative form the figures for the
previous year, certified by a Responsible Officer of the Borrower as being
fairly stated in all material respects (subject to normal year-end audit
adjustments).
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
SECTION 7.2 Certificates; Other Information. Furnish to the
Administrative Agent (with a copy for each Lender):
(a) concurrently with the delivery of the financial statements
referred to in
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subsection 7.1(a), a certificate of the independent chartered accountants
reporting on such financial statements stating that in making the examination
necessary therefor no knowledge was obtained of any Default or Event of Default,
except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 7.1(a) and 7.1(b), a certificate of a Responsible
Officer of the Borrower, (i) stating that, to the best of such Officer's
knowledge, the Borrower during such period has observed or performed all of its
covenants and other agreements, and satisfied every condition, contained in this
Agreement and in the other Loan Documents to which it is a party to be observed,
performed or satisfied by it, and that such Officer has obtained no knowledge of
any Default or Event of Default except as specified in such certificate and (ii)
setting forth (in reasonable detail) the calculations required to determine
compliance with the covenants set forth in Section 8.1;
(c) no later than 30 days after the filing thereof with the
Securities and Exchange Commission or the Ontario Securities Commission or any
successor or analogous Governmental Authority, final copies of all financial
statements and material reports and final copies of all filings made by Case
Credit or the Borrower with such entities with respect to the sale of
indebtedness of Case Credit or the Borrower to the public or with respect to any
asset-backed receivables transaction entered into by the Borrower or any of its
Subsidiaries (including, without limitation, registration statements,
prospectuses, offering memoranda and amendments thereto);
(d) promptly (but in any event no later than 10 days) after the same
are sent to the Case Credit Lenders, copies of the financial statements of Case
Credit required to be delivered pursuant to Section 10.1 of the Case Credit
Credit Agreement; provided that copies of such financial statements need not be
delivered to any Lender which is also a Case Credit Lender; and
(e) promptly, such additional financial and other information as any
Lender, through the Administrative Agent may from time to time reasonably
request.
SECTION 7.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its obligations of whatever nature, except where (a) the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the Borrower or its Subsidiaries, as the case may be,
or (b) the failure to so pay, discharge or satisfy all such obligations could
not, in the aggregate, have a Material Adverse Effect and would not subject any
property of the Borrower or any of its Subsidiaries to any Lien not permitted by
Section 8.2.
SECTION 7.4 Conduct of Business and Maintenance of Existence.
Continue to engage in business of the same general type as now conducted by it
and preserve, renew and keep in full force and effect its corporate existence
and take all reasonable action to maintain all
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rights, privileges and franchises necessary or desirable in the normal conduct
of its business; and comply with all Contractual Obligations and Requirements of
Law except to the extent that failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
SECTION 7.5 Maintenance of Property; Insurance. Keep all property
useful and necessary in its business in good working order and condition;
maintain with financially sound and reputable insurance companies insurance on
all its property in at least such amounts and against at least such risks (but
including in any event public liability, product liability and business
interruption) as are usually insured against in the same general area by
companies engaged in the same or a similar business.
SECTION 7.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and permit
representatives of the Administrative Agent to visit and inspect any of its
properties and examine any of its books and records at any reasonable time and
with reasonable prior notice, and to discuss the business, operations,
properties and financial and other condition of the Borrower and its
Subsidiaries with officers and employees of the Borrower and its Subsidiaries
and with its independent chartered accountants.
SECTION 7.7 Notices. Promptly (but in any event no later than three
days, or in the case of clause (b) below, 10 days, or in the case of clause (d)
below, 30 days, in each case, after a Responsible Officer of the Borrower knows
thereof) give notice to the Administrative Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the Borrower or
any of its Subsidiaries and any Governmental Authority, which in either case, if
not cured or if adversely determined, as the case may be, could have a Material
Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any of its
Subsidiaries in which the amount involved is $60,000,000 or more and not covered
by insurance or in which injunctive or similar relief is sought; and
(d) any development or event which has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating
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what action the Borrower and/or its Subsidiaries propose to take with respect
thereto.
ARTICLE 8
NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments (or any of
them) remain in effect, any Loan, Revolving Credit Note, Acceptance
Reimbursement Obligation or Acceptance Note remains outstanding and unpaid or
any other amount is owing to any Lender or the Administrative Agent hereunder or
under any other Loan Document, the Borrower shall not, directly or indirectly:
SECTION 8.1 Financial Condition Covenants.
(a) Debt to Consolidated Net Worth Ratio. Permit the Leverage Ratio
at any time to be greater than 9.00 to 1.00.
(b) Fixed Charge Coverage Ratio. Permit, for any period of four
consecutive fiscal quarters ending on the last day of any fiscal quarter of the
Borrower, the Fixed Charge Coverage Ratio for such period to be less than 1.05
to 1.00.
SECTION 8.2 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens for taxes not yet due and payable (or which will be paid
promptly) or which are being contested in good faith by appropriate proceedings,
provided that adequate reserves with respect thereto are maintained on the books
of the Borrower or its Subsidiaries, as the case may be, in conformity with
GAAP;
(b) Liens on assets of the Borrower or any Subsidiary of the Borrower
consisting of pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(c) Liens on assets of the Borrower or any Subsidiary of the Borrower
consisting of rights of lessees under leases, easements, rights-of-way,
restrictions and other similar encumbrances incurred in the ordinary course of
business which, in the aggregate, are not substantial in amount and which do not
in any case materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the Borrower
or such Subsidiary;
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(d) Liens on assets of the Borrower or any Subsidiary of the Borrower
consisting of deposits to secure the performance of leases (other than Financing
Leases), statutory obligations, surety and appeal bonds and other obligations of
a like nature incurred in the ordinary course of business of the Borrower or
such Subsidiary;
(e) Liens created by the Borrower in favour of itself;
(f) Liens which are granted pursuant to any securitization or other
asset-based financing of Receivables and Receivables Related Assets, and which
cover only Receivables and Receivables Related Assets or any undivided or
beneficial ownership interest in any Receivables or Receivables Related Assets;
(g) Liens in existence on the date hereof and listed in Schedule
8.2(g), provided that (a) no such Lien is extended to cover any additional
property after the date hereof (except to the extent required by the terms of
the Indebtedness secured thereby or any other agreement governing such Lien as
such terms are in effect on the Effective Date), (b) no such Lien secures any
Indebtedness or other obligations other than Indebtedness or other obligations
secured by it on the date hereof and refinancings, refundings, renewals or
extensions of such Indebtedness or other obligations and (c) the amount of
Indebtedness or other obligations secured by any such Lien is not increased;
(h) Liens on assets of Subsidiaries of the Borrower which become
Subsidiaries after the Effective Date or Liens on assets acquired by the
Borrower or any of its Subsidiaries after the Effective Date; provided that (i)
such Liens were in existence at the time such Subsidiary became a Subsidiary or
at the time such assets were acquired and (ii) no such Liens were created in
contemplation of the transaction pursuant to which such Subsidiary became a
Subsidiary or in contemplation of the acquisition of such assets; and
(i) in addition to Liens permitted by subsections 8.2(a) through (h),
Liens on assets of the Borrower or any of its Subsidiaries securing Indebtedness
of the Borrower or such Subsidiaries; provided that the aggregate principal
amount of all Indebtedness secured by such Liens, plus the aggregate outstanding
amount of all Attributable Debt in respect of all sale and leaseback
transactions to which the Borrower or any Restricted Subsidiary is a party, does
not exceed at the time such Liens are granted an amount equal to the sum of (i)
$5,000,000 and (ii) 5% of Consolidated Net Tangible Assets of the Borrower and
its Consolidated Subsidiaries; provided, that in calculating the amount of
Attributable Debt permitted pursuant to this paragraph (i), there shall be
excluded all Attributable Debt in respect of sale and leaseback transactions
relating to assets of Subsidiaries of the Borrower which become Subsidiaries
after the Effective Date if such sale and leaseback transactions were in
existence at the time such Subsidiary became a Subsidiary and were not created
in contemplation of the transaction pursuant to which such Subsidiary became a
Subsidiary.
SECTION 8.3 Limitation on Fundamental Changes. Enter into any merger,
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consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets except any entity may be merged or consolidated with or into the Borrower
provided that (a) the Borrower shall be the continuing or surviving corporation
or (b) the Indebtedness under this Agreement is assumed by the surviving
corporation, and the Case Credit Guarantee is terminated or amended, with the
approval of the Majority Lenders.
SECTION 8.4 Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary, except for (a) the financing of
Receivables of Case Canada Corporation, its Subsidiaries and their Dealers and
customers, (b) other financial services related to the agricultural and
construction business and (c) other business, provided that the business of the
Borrower and its Subsidiaries taken as a whole will be limited substantially to
the businesses described in clauses (a) and (b) of this Section 8.4.
ARTICLE 9
EVENTS OF DEFAULT
SECTION 9.1 Events of Default. If any of the following events shall
occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan or any
Acceptance Reimbursement Obligation or any Acceptance Note when due in
accordance with the terms thereof or hereof; or the Borrower shall fail to pay
any interest on any Loan, or any other amount payable hereunder, within five
days after any such interest or other amount becomes due in accordance with the
terms hereof; or
(b) Any representation or warranty made by the Borrower or any other
Loan Party herein or in any other Loan Document or which is contained in any
certificate, document or financial or other statement furnished by it at any
time under or in connection with this Agreement or any such other Loan Document
shall prove to have been incorrect in any material respect on or as of the date
made or deemed made; or
(c) The Borrower shall default in the observance or performance of
any agreement contained in Article 8; or Case Credit shall fail to observe or
perform any agreement contained in the Case Credit Guarantee; or
(d) The Borrower shall default in the observance or performance of
any other agreement contained in this Agreement or any other Loan Document
(other than as provided in paragraphs (a) through (c) of this Section), and such
default shall continue unremedied for a period of 30 days; or
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(e) The Borrower, any Subsidiary of the Borrower or Case Credit shall
(i) default in any payment of principal of or interest on any Indebtedness
(other than the Loans, the Acceptances or the Acceptance Notes) beyond the
period of grace (not to exceed 30 days), if any, provided in the instrument or
agreement under which such Indebtedness was created, if the aggregate amount of
the Indebtedness and/or Guarantee Obligations in respect of which such default
or defaults shall have occurred is at least $60,000,000; or (ii) default in the
observance or performance of any other agreement or condition relating to any
such Indebtedness referred to in clause (i) above or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders) to cause, with the
giving of notice if required, such Indebtedness to become due prior to its
stated maturity; provided that, for purposes of this paragraph (e) only, the
term "Indebtedness" shall not include (i) Permitted Securitization Obligations
or (ii) any Guarantee Obligations of any Subsidiary of the Borrower or Case
Credit in respect of Indebtedness of an Affiliate of the Borrower or Case Credit
(but only if (A) such Subsidiary owns no material assets other than equity
interests in such Affiliate and (B) such Affiliate is not a Subsidiary of the
Borrower or Case Credit; and provided, further, that with respect to any
Indebtedness in respect of Interest Rate Agreements, the holder or holders of
such Indebtedness shall have required that a liquidation or termination payment
be made; or
(f)(i) The Borrower, any Material Subsidiary or Case Credit shall
commence any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
assets, or the Borrower, any Material Subsidiary or Case Credit shall make a
general assignment for the benefit of its creditors; or (ii) there shall be
commenced against the Borrower, any Material Subsidiary or Case Credit any case,
proceeding or other action of a nature referred to in clause (i) above which (A)
results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a period of
60 days; or (iii) there shall be commenced against the Borrower, any Material
Subsidiary or Case Credit any case, proceeding or other action seeking issuance
of a warrant of attachment, execution, distraint or similar process against all
or any substantial part of its assets which results in the entry of an order for
any such relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof; or (iv) the
Borrower, any Material Subsidiary or Case Credit shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence in,
any of the acts set forth in clause (i), (ii), or (iii) above; or (v) the
Borrower, any Material Subsidiary or Case Credit shall generally not, or shall
be unable to, or shall admit in writing its inability to, pay its debts as they
become due; or
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(g) One or more judgments or decrees shall be entered against the
Borrower or any Subsidiary of the Borrower involving a liability (not paid or
fully covered by insurance) of $60,000,000 or more in the aggregate for the
Borrower and its Subsidiaries, and all such judgments or decrees shall not have
been vacated, discharged, stayed or bonded pending appeal within 60 days from
the entry thereof and enforcement proceedings shall have commenced; or
(h) Any Event of Default under and as defined in the Case Credit
Credit Agreement shall occur and be continuing; or
(i) Case shall cease to own, directly or indirectly, all of the
common shares of Case Credit; or Case Credit shall cease to own, directly or
indirectly, all of the common shares of the Borrower; or
(j) the Case Credit Guarantee shall cease, for any reason (other than
performance in full by Case Credit of its obligations thereunder), to be in full
force and effect, or Case Credit shall so assert,
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of this Section with respect to the
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement (including, without limitation, all Acceptance
Reimbursement Obligations regardless of whether or not such Acceptance
Reimbursement Obligations are then due and payable) shall immediately become due
and payable, and (B) if such event is any other Event of Default, either or both
of the following actions may be taken: (i) with the consent of the Majority
Lenders, the Administrative Agent may, or upon the request of the Majority
Lenders, the Administrative Agent shall, by notice to the Borrower declare the
Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; and (ii) with the consent of the Majority Lenders, the
Administrative Agent may, or upon the request of the Majority Lender, the
Administrative Agent shall, by notice to the Borrower, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement (including, without limitation, all Acceptance Reimbursement
Obligations regardless of whether or not such Acceptance Reimbursement
Obligations are then due and payable) to be due and payable forthwith, whereupon
the same shall immediately become due and payable.
With respect to all outstanding Acceptance Reimbursement Obligations
in respect of Acceptances which have not matured at the time of an acceleration
pursuant to the preceding paragraph, the Borrower shall at such time deposit in
a cash collateral account opened by and maintained by the Administrative Agent
an amount equal to the aggregate undiscounted face amount of all such unmatured
Acceptances. Amounts held in such cash collateral account shall be applied by
the Administrative Agent to the payment of maturing Acceptances, and any balance
in such account shall be applied to repay other obligations of the Borrower
hereunder and under any Revolving Credit Notes. After all Acceptance
Reimbursement Obligations shall
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have been satisfied and all other obligations of the Borrower hereunder and
under any Revolving Credit Notes shall have been paid in full, the balance, if
any, in such cash collateral account shall be returned to the Borrower.
Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
ARTICLE 10
THE ADMINISTRATIVE AGENT
SECTION 10.1 Appointment. Each Lender hereby irrevocably designates
and appoints The Bank of Nova Scotia as the Administrative Agent and such Lender
irrevocably authorizes The Bank of Nova Scotia to act as the Administrative
Agent, to take such action on its behalf under the provisions of this Agreement
and the other Loan Documents and to exercise such powers and perform such duties
as are expressly delegated to the Administrative Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Administrative Agent shall not have any duties
or responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
SECTION 10.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement and the other Loan Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
SECTION 10.3 Exculpatory Provisions. Neither the Administrative Agent
nor any of its respective officers, directors, employees, agents, attorneys-in-
fact or affiliates shall be (i) liable for any action lawfully taken or omitted
to be taken by it or such Person under or in connection with this Agreement or
any other Loan Document (except for its or such Person's gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by any Loan Party
or other Person or any officer thereof contained in this Agreement or any Loan
Document or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Loan Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document or for any failure of the Borrower or any
Loan Party or any other Person to perform its obligations hereunder or
thereunder. The
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Administrative Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document or to inspect the properties, books or records of the Borrower or any
other Loan Party.
SECTION 10.4 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any Revolving Credit Note, writing, resolution, notice, consent, certificate,
affidavit, letter, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Revolving Credit Note as the owner thereof for all purposes unless a written
notice of assignment or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified as
between itself and the Lenders in failing or refusing to take any action under
this Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Majority Lenders as it deems appropriate or it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
and the other Loan Documents in accordance with a request of the Majority
Lenders, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Loans and the Acceptance Reimbursement Obligations.
SECTION 10.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders. The Administrative Agent shall
take such action reasonably promptly with respect to such Default or Event of
Default as shall be reasonably directed by the Majority Lenders; provided that
unless and until the Administrative Agent shall have received such directions,
the Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders.
SECTION 10.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or affiliates
has made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
the Borrower or any other Loan Party, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each
Lender represents
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to the Administrative Agent that it has, independently and without reliance upon
the Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and the other Loan Parties and
made its own decision to make its Extensions of Credit hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrower and the other Loan Parties. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrower or any other Loan
Party which may come into the possession of the Administrative Agent or any of
its respective officers, directors, employees, agents, attorneys-in-fact or
affiliates.
SECTION 10.7 Indemnification. Each Lender agrees to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower or any other Loan Party and without limiting the obligation of the
Borrower or any other Loan Party to do so), ratably according to its Commitment
Percentage in effect on the date on which indemnification is sought from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any time
following the payment of the Loans and the Acceptance Reimbursement Obligations)
be imposed on, incurred by or asserted against the Administrative Agent in any
way relating to or arising out of this Agreement, any of the other Loan
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Administrative Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the gross negligence or
willful misconduct of the Administrative Agent. The agreements in this Section
shall survive the payment of the Loans, the Acceptance Reimbursement Obligations
and all other amounts payable hereunder.
SECTION 10.8 Administrative Agent in its Individual Capacity. The
Administrative Agent and its affiliates may make loans to, accept Drafts, accept
deposits from and generally engage in any kind of business with the Borrower
and/or the other Loan Parties as though the Administrative Agent was not the
Administrative Agent hereunder and under the other Loan Documents. With respect
to the Loans made or renewed by the Administrative Agent, any Acceptances
created by the Administrative Agent, and any Revolving Credit Note
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or Acceptance Note issued to it, the Administrative Agent shall have the same
rights and powers under this Agreement and the other Loan Documents as any
Lender and may exercise the same as though it were not the Administrative Agent,
and the terms "Lender" and "Lenders" shall include the Administrative Agent in
its individual capacity.
SECTION 10.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 30 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Majority Lenders shall appoint from among
the Lenders a successor administrative agent for the Lenders, which successor
administrative agent shall be approved by the Borrower (such approval not to be
unreasonably withheld), whereupon such successor administrative agent shall
succeed to the rights, powers and duties of the resigning Administrative Agent,
and the term "Administrative Agent" shall mean such successor administrative
agent effective upon such appointment and approval, and the former
Administrative Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. After any resigning Administrative Agent's resignation as
the Administrative Agent the provisions of this Section shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan Documents.
SECTION 10.10 The Co-Agent. Each Lender hereby irrevocably designates
and appoints the Lender designated as the Co-Agent on the signature pages hereof
as the Co-Agent under this Agreement and the other Loan Documents. Each Lender
and the Co-Agent acknowledges that the Co-Agent, in such capacity, shall have no
duties or responsibilities, and shall incur no liabilities, under this Agreement
or the other Loan Documents in their respective capacities as such.
ARTICLE 11
MISCELLANEOUS
SECTION 11.1 Amendments and Waivers. Neither this Agreement or any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented, waived or modified except in accordance with the provisions of
this Section 11.1. The Majority Lenders may, or, with the written consent of
the Majority Lenders, the Administrative Agent may, from time to time, (a) enter
into with the Borrower (or any other Loan Party) written amendments, supplements
or modifications hereto and to the other Loan Documents for the purpose of
adding any provisions to this Agreement or the other Loan Documents or changing
in any manner the rights or obligations of the Lenders or of the Borrower and
the other Loan Parties hereunder or thereunder or (b) waive at the Borrower's
request, on such terms and conditions as the Majority Lenders or the
Administrative Agent, as the case may be, may specify in such instrument, any
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of the requirements of this Agreement or the other Loan Documents or any Default
or Event of Default and its consequences; provided, however, that no such waiver
and no such amendment, supplement or modification shall:
(i) reduce the amount or extend the scheduled date of maturity
of any Loan or any Acceptance or any Acceptance Note or of any scheduled
instalment thereof, or reduce the Applicable Margin or stated rate of any
interest or any fee payable hereunder or extend the scheduled date of any
payment thereof or increase the amount of the Aggregate Available Commitments or
extend the expiration date of any Lender's Commitment, in each case without the
consent of all Lenders;
(ii) amend, supplement, modify or waive any provision of this
Section 11.1 or reduce the percentages specified in the definition of "Majority
Lenders", or consent to the assignment or transfer by the Borrower (or any other
Loan Party) of any of its rights and obligations under this Agreement and the
other Loan Documents in each case without the consent of all the Lenders;
(iii) amend, supplement, modify or waive any provision of
Article 10 or any other provision of this Agreement governing the respective
rights or obligations of the Administrative Agent and the Co-Agent without the
written consent of the then Administrative Agent and the Co-Agent, respectively;
and
(iv) amend, supplement, modify or waive any provision of
subsection 4.3(b) without the consent of all the Lenders.
Any waiver and any amendment, supplement or modification pursuant to this
Section 11.1 shall apply to each of the Lenders and shall be binding upon the
Borrower, the other Loan Parties, the Lenders, the Administrative Agent and all
future holders of the Loans and the Acceptance Reimbursement Obligations. In
the case of any waiver, the Borrower, the other Loan Parties, the Lenders and
the Administrative Agent shall be restored to their former positions and rights
hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
SECTION 11.2 Notices. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered by hand, or three days
after being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, or, in the case of delivery by a nationally recognized
overnight courier, when received, addressed as follows in the case of the
Borrower and the Administrative Agent, and as set forth in Schedule I hereto in
the case of the other parties hereto, or to such other address as may be
hereafter notified by the respective parties hereto and any future holders of
the Revolving Credit Notes:
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The Borrower: CASE CREDIT LTD.
30th Floor
237 - 4th Avenue S.W.
Calgary, Alberta T2P 4X7
Attention: Corporate Secretary
Telephone: (403) 268-7000
Telecopy: (403) 268-3100
With A Copy To: Case Credit Corporation
700 State Street
Racine, Wisconsin 53404
Attention: Corporate Secretary
Telephone: (414) 636-6011
Telecopy: (414) 636-7188
and: Case Credit Corporation
233 Lake Avenue
Racine, Wisconsin 53403
Attention: Vice-President and Controller
Telephone: (414) 636-5529
Telecopy: (414) 636-6284
The Administrative
Agent: THE BANK OF NOVA SCOTIA
44 King Street West, 16th Floor
Toronto, Ontario M5H 1H1
Attention: John Hall
Telephone: (416) 933-2320
Telecopy: (416) 866-2009
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to Sections 2.3, 2.4, 3.2, 3.5, 3.6, 4.3, or 4.10 shall
not be effective until received.
SECTION 11.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Borrower, the Administrative
Agent or any Lender, any right, remedy, power or privilege hereunder or under
the other Loan Documents shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
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SECTION 11.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in the other Loan Documents
(or in any amendment, modification or supplement hereto or thereto) and in any
certificate delivered pursuant hereto or such other Loan Documents shall survive
the execution and delivery of this Agreement and the Revolving Credit Notes and
the making of the Loans hereunder.
SECTION 11.5 Payment of Expenses and Taxes. The Borrower agrees (a)
to pay or reimburse the Administrative Agent for all its reasonable out-of-
pocket costs and expenses incurred in connection with the preparation, execution
and delivery of, and any amendment, supplement, waiver or modification to, this
Agreement and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of the
transactions (including the syndication of the Commitments) contemplated hereby
and thereby, including, without limitation, the reasonable fees and
disbursements of counsel (and any special or local counsel retained by such
counsel to assist it) to the Administrative Agent, (b) to pay or reimburse each
Lender and the Administrative Agent for all its reasonable costs and expenses
incurred in connection with the enforcement or preservation of any rights under
this Agreement, the other Loan Documents and any such other documents,
including, without limitation, the reasonable fees and disbursements of the
respective counsels to the Administrative Agent and each Lender provided that
the Borrower shall only be required to pay or reimburse the Lenders and the
Administrative Agent for the fees and disbursements of (i) one counsel for the
Administrative Agent and (ii) one counsel for the Lenders pursuant to this
clause (b), (c) to pay, indemnify, and hold each Lender and the Administrative
Agent harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other similar taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents, and (d)
to pay, indemnify, and hold each Lender and the Administrative Agent (and their
respective directors, officers, employees, agents, affiliates and successors)
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever (whether or not caused by any Lender's or the
Administrative Agent's or any of their respective directors', officers',
employees', agents', successors', affiliates' or assigns' negligence (other than
gross negligence) and including, without limitation, the reasonable fees and
disbursements of the respective counsels to the Administrative Agent and each
Lender, including, without duplication, the allocated costs of staff counsel to
any such Lender or the Administrative Agent) with respect to the execution,
delivery, enforcement, performance and administration of this Agreement, the
other Loan Documents and any such other documents (regardless of whether the
Administrative Agent or any Lender is a party to the litigation or other
proceeding giving rise thereto), (all the foregoing in this clause (d),
collectively, the "indemnified liabilities"), provided, that the Borrower shall
have no obligation hereunder to the Administrative Agent or any Lender with
respect to indemnified liabilities to the extent such indemnified liabilities
arise solely from (i) the gross negligence or willful
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misconduct of the Administrative Agent or any such Lender (or any of their
respective directors, officers, employees, agents, affiliates or successors) or
(ii) legal proceedings commenced against the Administrative Agent or any such
Lender by any securityholder or creditor of the Administrative Agent or any such
Lender arising out of and based upon rights afforded any such securityholder or
creditor solely in its capacity as such. The agreements in this Section shall
survive repayment of the Loans, the Acceptance Reimbursement Obligations and all
other amounts payable hereunder.
SECTION 11.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Administrative Agent, all future holders of the Loans
and the Acceptance Reimbursement Obligations and their respective successors and
assigns, except that the Borrower may not assign or transfer any of its rights
or obligations under this Agreement without the prior written consent of each
Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to one
or more banks or other entities ("Participants") participating interests in any
Loan owing to such Lender, any Commitment of such Lender or any other interest
of such Lender hereunder and under the other Loan Documents; provided that such
Participant must be a resident of Canada for purposes of the Tax Act and
provided that such participations are in minimum amounts of $10,000,000. In the
event of any such sale by a Lender of a participating interest to a Participant,
such Lender's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of any such
Loan for all purposes under this Agreement and the other Loan Documents, and the
Borrower and the Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement and the other Loan Documents. Any agreement pursuant to which any
Lender shall sell any such participating interest shall provide that such Lender
shall retain the sole right and responsibility to exercise such Lender's rights
and enforce the Borrower's obligations hereunder, including the right to consent
to any amendment, supplement, modification or waiver of any provision of this
Agreement or any of the other Loan Documents, provided that such participation
agreement may provide that such Lender will not agree to any amendment,
supplement, modification or waiver described in clause (a) or (b) of the proviso
to the second sentence of Section 11.1 without the consent of the Participant.
The Borrower agrees that if amounts outstanding under this Agreement are due or
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall be deemed to have
the right of set-off in respect of its participating interest in amounts owing
under this Agreement to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under this Agreement provided
that, in purchasing such participating interest, such Participant shall be
deemed to have agreed to share with the Lenders the proceeds thereof as provided
in subsection 11.7(a) as fully as if it were a Lender hereunder. The Borrower
agrees that each Participant shall be entitled to the benefits of Sections 4.10,
4.11,
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4.12, 4.13 and 11.1 with respect to its participation in the Commitments and the
Loans outstanding from time to time hereunder as if it was a Lender.
(c) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time and from
time to time assign to any Lender or any Affiliate thereof or, with the prior
written consent of the Borrower (such consent not to be unreasonably withheld)
and the Administrative Agent (such consent not to be unreasonably withheld), to
an additional bank or financial institution (an "Assignee") all or any part of
its rights and obligations under this Agreement and the other Loan Documents
including, without limitation, its Commitments, Loans and Acceptance
Reimbursement Obligations, pursuant to an Assignment and Acceptance,
substantially in the form of Exhibit F, executed by such Assignee, such
assigning Lender (and, in the case of an Assignee that is not then a Lender or
an Affiliate thereof, by the Borrower and the Administrative Agent) and
delivered to the Administrative Agent for their acceptance and recording in the
Register; provided (i) in the case of any such assignment to an additional bank
or financial institution, the aggregate amount of any Revolving Credit Loans
(or, if the Revolving Credit Loans have terminated or expired, the aggregate
principal amount of any Revolving Credit Loans and Acceptance Reimbursement
Obligations) being assigned, shall not be less than $5,000,000 (or (x) if less,
the then outstanding amount of such Commitments, Loans and/or Acceptance
Reimbursement Obligations or (y) such lesser amount as may be agreed by the
Borrower and the Administrative Agent) and (z) such Assignee must be a resident
of Canada for purposes of the Tax Act. Upon such execution, delivery, acceptance
and recording, from and after the effective date determined pursuant to such
Assignment and Acceptance, (I) the Assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder with Commitments, rights in respect of
Acceptance Reimbursement Obligations and Loans as set forth therein, and (II)
the assigning Lender thereunder shall be released from its obligations under
this Agreement to the extent that such obligations shall have been expressly
assumed by the Assignee pursuant to such Assignment and Acceptance (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such assigning
Lender shall cease to be a party hereto).
(d) The Administrative Agent, on behalf of the Borrower, shall
maintain at the address of the Administrative Agent referred to in Section 11.2
a copy of each Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of the names and addresses of the Lenders and
the Commitments of, and principal amounts of the Loans and Acceptances owing to,
each Lender from time to time. The entries in the Register shall constitute
prima facie evidence of the information recorded therein and the Borrower, the
Administrative Agent and the Lenders may (and, in the case of any Loan,
Acceptance or other obligation hereunder not evidenced by a Revolving Credit
Note, shall) treat each Person whose name is recorded in the Register as the
owner of a Loan, Acceptance or other obligation hereunder as the owner thereof
for all purposes of this Agreement and the other Loan Documents, notwithstanding
any notice to the contrary. Any assignment of any Loan, Acceptance or other
obligation hereunder not evidenced by a Revolving Credit Note shall be
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effective only upon appropriate entries with respect thereto being made in the
Register. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an Affiliate thereof, executed by the Borrower and the
Administrative Agent), together with payment to the Administrative Agent of a
registration and processing fee of $2,500, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register and give prompt notice of such acceptance and recordation to the
Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee
any and all financial information in such Lender's possession concerning such
Borrower and its Affiliates which has been delivered to such Lender by or on
behalf of the Borrower pursuant to this Agreement or which has been delivered to
such Lender by or on behalf of the Borrower in connection with the Lender's
credit evaluation of the Borrower and its Affiliates prior to becoming a party
to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section concerning assignments of Loans
and Revolving Credit Notes relate only to absolute assignments and that such
provisions do not prohibit assignments creating security interests in accordance
with applicable law.
SECTION 11.7 Adjustments; Set-Off. (a) If any Lender (a "Benefitted
Lender") shall at any time receive any payment of all or part of its Loans or
Acceptance Reimbursement Obligations then due and owing to it, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 9(g), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Loans or Acceptance Reimbursement Obligations then due
and owing to it, or interest thereon, such Benefitted Lender shall purchase for
cash from the other Lenders a participating interest in such portion of each
such other Lender's Loans or Acceptance Reimbursement Obligations owing to it,
or shall provide such other Lenders with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause such Benefitted Lender to
share the excess payment or benefits of such collateral or proceeds ratably with
each of the Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such Benefitted Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided
by law,
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each Lender shall have the right, without prior notice to the Borrower, any such
notice being expressly waived by the Borrower to the extent permitted by
applicable law, upon any amount becoming due and payable hereunder (whether at
the stated maturity thereof, by acceleration or otherwise) to set-off and
appropriate and apply against such amount any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch, agency or Affiliate thereof to or for the
credit or the account of the Borrower. Each Lender agrees promptly to notify
the Borrower and the Administrative Agent after any such set-off and application
made by such Lender, provided that the failure to give such notice shall not
affect the validity of such set-off and application.
SECTION 11.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of
the copies of this Agreement signed by all the parties shall be delivered to the
Borrower and the Administrative Agent.
SECTION 11.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 11.10 Integration. This Agreement and the other Loan
Documents represent the agreement of the Borrower, the Administrative Agent and
the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Borrower, the
Administrative Agent or any Lender relative to the subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.
SECTION 11.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE PROVINCE OF
ONTARIO WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
SECTION 11.12 Submission To Jurisdiction; Waivers. Each party hereto
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the Courts of the Province
of Ontario;
<PAGE>
-56-
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to the Borrower, the
applicable Lender or the Administrative Agent, as the case may be, at the
address specified in Section 11.2 or Schedule I hereof, or at such other address
of which the Administrative Agent and the Borrower shall have been notified
pursuant hereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to sue in any other jurisdiction; and
(e) waives, to the maximum extent permitted by law, any right it
may have to claim or recover in any legal action or proceeding referred to in
this Section any punitive damages.
SECTION 11.13 Acknowledgements. The Borrower hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Loan Documents;
(b) none of the Administrative Agent or any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between the Administrative Agent and the Lenders, on the one hand,
and the Borrower, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrower and the Lenders.
SECTION 11.14 Existing Credit Agreement. The Existing Credit
Agreement shall terminate as of the Effective Date. The Majority Lenders (as
such term is defined in the Existing Credit Agreement) hereby consent to the
termination of the Existing Credit Agreement as provided herein and hereby waive
any notice requirement of the Existing Credit Agreement relating to prepayment
or termination of Commitments to occur on the Effective Date as provided herein.
<PAGE>
-57-
SECTION 11.15 Judgment. (a) If for the purpose of obtaining judgment
in any court it is necessary to convert a sum due hereunder in one currency into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the first currency with such other currency in the city in which it
normally conducts its foreign exchange operation for the first currency on the
Business Day preceding the day on which final judgment is given.
(b) The obligation of the Borrower in respect of any sum due from it to any
Lender hereunder shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than that in which such sum is denominated in
accordance with the applicable provisions of this Agreement (the "Agreement
Currency"), be discharged only to the extent that on the Business Day following
receipt by such Lender of any sum adjudged to be so due in the Judgment Currency
such Lender may in accordance with normal banking procedures purchase the
Agreement Currency with the Judgment Currency; if the amount of Agreement
Currency so purchased is less than the sum originally due to such Lender in the
Agreement Currency, the Borrower agrees notwithstanding any such judgment to
indemnify such Lender against such loss, and if the amount of the Agreement
Currency so purchased exceeds the sum originally due to any Lender, such Lender
agrees to remit to the Borrower such excess.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
CASE CREDIT LTD.
By: /s/ ROBERT A. WEGNER
-------------------------------------
Title: VICE PRESIDENT AND CONTROLLER
THE BANK OF NOVA SCOTIA,
as Administrative Agent and a Lender
By: /s/ JUDY McKAY
-------------------------------------
Title: RELATIONSHIP MANAGER
By: /s/ MICHAEL LOCKE
-------------------------------------
Title: VICE PRESIDENT
BANK OF AMERICA CANADA
as a Lender
By: /s/ D.B. LINKLETTER
-------------------------------------
Title: VICE PRESIDENT
By:
-------------------------------------
Title:
<PAGE>
-58-
BANK OF MONTREAL,
as a Lender
By: /s/ ERIN M. KEYSER
-------------------------------------
Title: DIRECTOR
By:
-------------------------------------
Title:
CANADIAN IMPERIAL BANK OF
COMMERCE, as a Co-Agent and a Lender
By: /s/ R. M. CALLANDER
-------------------------------------
Title: DIRECTOR
By: /s/ MAURO SPAGNOLO
-------------------------------------
Title: DIRECTOR
CHEMICAL BANK OF CANADA,
as a Lender
By: /s/ OWEN G. ROBERTS
-------------------------------------
Title: VICE PRESIDENT
By:
-------------------------------------
Title:
CITIBANK CANADA,
as a Lender
By: /s/ MARGARET E. LAMBERT
-------------------------------------
Title: VICE PRESIDENT
By:
-------------------------------------
Title:
FIRST CHICAGO NBD BANK, CANADA,
as a Lender
By: /s/ COLLEEN DELANY
-------------------------------------
Title: ASSISTANT VICE PRESIDENT
By: /s/ JERRY HYNES
-------------------------------------
Title: VICE PRESIDENT
<PAGE>
-59-
J.P. MORGAN CANADA,
as a Lender
By: /s/ CHRISTOPHER B. LUE
-------------------------------------
Title: VICE PRESIDENT
By:
-------------------------------------
Title:
ROYAL BANK OF CANADA,
as a Lender
By: /s/ PRESTON D. JONES
-------------------------------------
Title: SENIOR MANAGER, CORPORATE BANKING
By:
-------------------------------------
Title:
SAKURA BANK (CANADA)
as a Lender
By: /s/ E. R. LANGLEY
-------------------------------------
Title: VICE PRESIDENT
By:
-------------------------------------
Title:
SANWA BANK CANADA,
as a Lender
By: /s/ SHIGEKI IWASHITA
-------------------------------------
Title: VICE PRESIDENT
By:
-------------------------------------
Title:
SOCIETE GENERALE (CANADA),
as a Lender
By: /s/ D. KAIJI
-------------------------------------
Title: SENIOR MANAGER
By: /s/ ERIC DHOSTE
-------------------------------------
Title: SENIOR VICE PRESIDENT
<PAGE>
-60-
THE SUMITOMO BANK OF CANADA,
as a Lender
By: /s/ KOICHI SASA
-------------------------------------
Title: PRESIDENT
By: /s/ OSAMU OKAHASI
-------------------------------------
Title: SENIOR VICE PRESIDENT
THE TORONTO-DOMINION BANK,
as a Lender
By: /s/ DAVID PARKHURST
-------------------------------------
Title: MANAGER
By:
-------------------------------------
Title:
<PAGE>
ANNEX A TO
REVOLVING CREDIT AGREEMENT
--------------------------
REFUNDING MECHANICS
SUBJECT TO THE FULFILMENT OR WAIVER OF THE CONDITIONS PRECEDENT SET FORTH IN
ARTICLE 6 OF THIS AGREEMENT ON OR PRIOR TO THE EFFECTIVE DATE, EACH OF THE
FOLLOWING PROVISIONS SHALL APPLY:
PART A. 1. Refunding of Revolving Credit Loans. Subject to Section 2 of this
Annex, each Lender agrees to make a Revolving Credit Loan to the Borrower on the
Effective Date in an amount equal to its Funding Commitment Percentage of the
aggregate principal amount of the Existing Revolving Credit Loans. Such
Revolving Credit Loans shall be made in accordance with the procedures set forth
in Sections 2.3 or 3.2 except that, upon receipt by the Administrative Agent of
the proceeds of such Revolving Credit Loans, the Administrative Agent shall
apply such proceeds to the prepayment of the outstanding principal amounts of
the Existing Revolving Credit Loans (other than Acceptances which have not yet
matured) by crediting the respective accounts of the Existing Lenders maintained
at the office of the Administrative Agent specified in Section 11.2. Not later
than 12:00 Noon, Toronto Time on the Effective Date, the Borrower shall pay to
the Administrative Agent for the account of each Existing Lender (i) all unpaid
interest which has accrued on the Existing Revolving Credit Loans of such
Existing Lender to the Effective Date and (ii) all unpaid commitment fees which
have accrued for the account of such Existing Lender pursuant to Section 4.4 of
the Existing Credit Agreement to the Effective Date.
2. On the Effective Date any outstanding acceptances of an Existing Lender
which have not matured shall be deemed to be Acceptances of the Lenders in the
amounts described in Schedule 1 to this Annex A to Revolving Credit Agreement
under the heading "New Syndicate Lenders' Shares of BA's Not Maturing On
Closing" for all purposes of this Agreement. The Administrative Agent shall, on
the Effective Date, distribute fees among the Lenders in the manner described in
Schedule 1 to this Annex A to Revolving Credit Agreement under the heading
"Acceptance Fees to be Paid to New Syndicate Lenders".
3. The Borrower hereby requests that the Lenders extend credit to it by
executing and delivering to the Existing Lenders the form of indemnity set out
in Schedule 2 to this Annex A to Revolving Credit Agreement (the "Indemnity")
and the Lenders agree to do so contemporaneously with the execution and delivery
of this Agreement. Upon such execution and delivery of the Indemnity, the
Lenders shall be deemed to have extended credit to the Borrower under the
Revolving Credit Loan and such credit shall be deemed to be outstanding credit
for all purposes of this Agreement subject to the following:
(a) For the purposes of this Agreement, any reference in this Agreement to
the amount of credit outstanding shall mean, at any particular time, up to and
including December 6, 1996, in the case of the Indemnity, the aggregate
contingent liability of the Lenders under the Indemnity with respect to the
outstanding acceptances of Existing Lenders as at such time and shall mean nil
at any particular time after December 6, 1996.
<PAGE>
-2-
(b) The Borrower shall reimburse each of the Lenders the amount of each and
any demand presented to and paid by the Lender in accordance with the
indemnity.
4. On the Effective Date, the Case Guarantee as defined in the Existing Credit
Agreement shall be terminated and the Existing Lenders shall execute such
further discharges and other instruments as are necessary for the purpose of
terminating the Case Guarantee.
For the purposes of this Part A, the following terms have the following
meanings:
"Existing Lenders": each bank or other financial institution holding any
Existing Revolving Credit Loan immediately prior to the Effective Date.
"Existing Revolving Credit Loans": the Revolving Credit Loans and
Acceptances (or Acceptance Notes) outstanding under the Existing Credit
Agreement immediately prior to the Effective Date.
<PAGE>
SCHEDULE 1 TO
REVOLVING CREDIT AGREEMENT
--------------------------
COMMITMENTS; ADDRESSES
A. COMMITMENT AMOUNTS
LENDER COMMITMENT
Bank of America Canada $15,000,000
Bank of Montreal $50,000,000
The Bank of Nova Scotia $87,500,000
Canadian Imperial Bank of Commerce $77,500,000
Chemical Bank of Canada $20,000,000
Citibank Canada $15,000,000
First Chicago NBD Bank, Canada $15,000,000
J. P. Morgan Canada $15,000,000
Royal Bank of Canada $67,500,000
Sakura Bank (Canada) $25,000,000
Sanwa Bank Canada $15,000,000
Societe Generale (Canada) $15,000,000
The Sumitomo Bank of Canada $15,000,000
The Toronto-Dominion Bank $67,500,000
TOTAL $500,000,000
B. ADDRESSES FOR NOTICES AND FOR FUNDING
BANK OF AMERICA CANADA
- ----------------------
Address for Notices: Address for Funding:
Bank of America Canada Bank of America Canada
1900, 855 - 2nd Street S.W. 1900, 855 - 2nd Street S.W.
Calgary, Alberta T2P 4J7 Calgary, Alberta T2P 4J7
Attn: D.B. Linkletter Attn: Pat Rodriguez
<PAGE>
-2-
Telephone: (403) 269-4909 Telephone: (403) 269-4909
Telecopy: (403) 232-8848 Telecopy: (403) 232-8848
BANK OF MONTREAL
- ----------------
Address for Notices: Address for Funding:
Bank of Montreal Bank of Montreal
First Canadian Place First Canadian Place
Corporate Banking, 24th Floor Corporate Banking, 24th Floor
Toronto, Ontario M5X 1A1 Toronto, Ontario M5X 1A1
Attn: D.L. Beasant Attn: D.L. Beasant
Telephone: (416) 867-4796 Telephone: (416) 867-4796
Telecopy: (416) 867-5818 Telecopy: (416) 867-5818
THE BANK OF NOVA SCOTIA
- -----------------------
Address for Notices: Address for Funding:
The Bank of Nova Scotia The Bank of Nova Scotia
Loan Administration and Loan Administration and
Agency Services Agency Services
44 King Street West, 14th Floor 44 King Street West, 14th Floor
Toronto, Ontario M5H 1H1 Toronto, Ontario M5H 1H1
Attn: Wallace Yeung Attn: Wallace Yeung
Telephone: (416) 866-5901 Telephone: (416) 866-5901
Telecopy: (416) 866-5991 Telecopy: (416) 866-5991
CANADIAN IMPERIAL BANK OF COMMERCE
- ----------------------------------
Address for Notices: Address for Funding:
Canadian Imperial Bank Canadian Imperial Bank
of Commerce of Commerce
Commerce Court West - 501F Commerce Court West - 501F
Toronto, Ontario M5L 1A2 Toronto, Ontario M5L 1A2
Attn: Rob Callander Attn: Mary Ann Tate
Telephone: (416) 980-5282 Telephone: (416) 214-8417
Telecopy: (416) 980-8384 Telecopy: (416) 980-5855
CHEMICAL BANK OF CANADA
- -----------------------
Address for Notices: Address for Funding:
Chemical Bank of Canada Chemical Bank of Canada
100 Yonge Street, Suite 900 100 Yonge Street, Suite 900
Toronto, Ontario M5C 2W1 Toronto, Ontario M5C 2W1
Attn: Owen G. Roberts Attn: Amanda Staff
Telephone: (416) 594-2259 Telephone: (416) 594-2260
Telecopy: (416) 594-2240 Telecopy: (416) 594-2240
<PAGE>
-3-
CITIBANK CANADA
- ---------------
Address for Notices: Address for Funding:
Citibank Canada Citibank Canada
123 Front Street West 123 Front Street West
Toronto, Ontario M5J 2M3 Toronto, Ontario M5J 2M3
Attn: Margie Lambert Attn: Mary Vlahos
Telephone: (416) 947-4194 Telephone: (416) 947-5529
Telecopy: (416) 947-5802 Telecopy: (416) 947-5462
FIRST CHICAGO NBD BANK, CANADA
- ------------------------------
Address for Notices: Address for Funding:
First Chicago NBD Bank, Canada First Chicago NBD Bank, Canada
Suite 4240, 161 Bay Street Suite 4240, 161 Bay Street
Toronto, Ontario M5J 2S1 Toronto, Ontario M5J 2S1
Attn: Colleen H. Delaney Attn: Karen L. Graham
Telephone: (416) 365-5259 Telephone: (416) 365-5250
Telecopy: (416) 363-7574 Telecopy: (416) 363-7574
J.P. MORGAN CANADA
- ------------------
Address for Notices: Address for Funding:
J.P. Morgan Canada J.P. Morgan Canada
Suite 2200, Royal Bank Plaza Suite 2200, Royal Bank Plaza
South Tower South Tower
Toronto, Ontario M5J 2J2 Toronto, Ontario M5J 2J2
Attn: Paul Nash Attn: Gerda Grasshoff
Telephone: (416) 981-9194 Telephone: (416) 981-9173
Telecopy: (416) 981-9278 Telecopy: (416) 981-9279
ROYAL BANK OF CANADA
- --------------------
Address for Notices: Address for Funding:
Royal Bank of Canada Royal Bank of Canada
One North Franklin, Suite 700 Business Services Group
Chicago, Illinois 60606 1st Floor, 180 Wellington Street West
U.S.A. Toronto, Ontario M5J 1J1
Attn: Preston Jones Attn: Liability - Multinational
Telephone: (312) 551-1618 Telephone: (416) 974-5302
Telecopy: (312) 551-0805 Telecopy: (416) 974-8119
SAKURA BANK (CANADA)
- --------------------
Address for Notices: Address for Funding:
<PAGE>
-4-
Sakura Bank (Canada) Sakura Bank (Canada)
Commerce Court West Commerce Court West
Suite 3601, P.O. Box 59 Suite 3601, P.O. Box 59
Toronto, Ontario M5L 1B9 Toronto, Ontario M5L 1B9
Attn: E.R. Langley Attn: Heather Omoto
Telephone: (416) 369-8544 Telephone: (416) 369-8580
Telecopy: (416) 369-0268 Telecopy: (416) 369-0268
SANWA BANK CANADA
- -----------------
Address for Notices: Address for Funding:
Sanwa Bank Canada Sanwa Bank Canada
BCE Place BCE Place
Canada Trust Tower Canada Trust Tower
P.O. Box 525 P.O. Box 525
Suite 4400, 161 Bay Street Suite 4400, 161 Bay Street
Toronto, Ontario M5J 2S1 Toronto, Ontario M5J 2S1
Attn: Shigeki Iwashita Attn: Fanny Man
Telephone: (416) 366-2583 Telephone: (416) 366-2583
Telecopy: (416) 366-8599 Telecopy: (416) 366-8599
SOCIETE GENERALE (CANADA)
- -------------------------
Address for Notices: Address for Funding:
Societe Generale (Canada) Societe Generale (Canada)
Scotia Plaza Scotia Plaza
100 Yonge Street 100 Yonge Street
Toronto, Ontario M5C 2W1 Toronto, Ontario M5C 2W1
Attn: Duncan A. Irvine Attn: Graham Buffam
Telephone: (416) 682-0065 Telephone: (416) 682-0087
Telecopy: (416) 364-9996 Telecopy: (416) 364-9996
THE SUMITOMO BANK OF CANADA
- ---------------------------
Address for Notices: Address for Funding:
The Sumitomo Bank of Canada The Sumitomo Bank of Canada
Suite 1400 Suite 1400
Ernst & Young Tower Ernst & Young Tower
Toronto-Dominion Centre Toronto-Dominion Centre
P.O. Box 172 P.O. Box 172
Toronto, Ontario M5K 1H6 Toronto, Ontario M5K 1H6
(Courier Delivery: 222 Bay Street (Courier Delivery: 222 Bay Street
14th Floor) 14th Floor)
Attn: Alfred Lee Attn: Joan Grimmond
Telephone: (416) 368-4934 Telephone: (416) 368-5602
Telecopy: (416) 367-3565 Telecopy: (416) 367-3565
<PAGE>
-5-
<TABLE>
THE TORONTO-DOMINION BANK
- -------------------------
<S> <C>
Address for Notices: Address for Funding:
The Toronto-Dominion Bank The Toronto-Dominion Bank
31 West 52nd Street 9th Floor, TD Tower
22nd Floor Corporate Investment Banking Group
New York, N.Y. 10019-6101 55 King Street West
U.S.A. Toronto, Ontario M5K 1A2
Attn: William E. Evensen III Attn: Lexanne Williams
Telephone: (212) 468-0593 Telephone: (416) 982-7671
Telecopy: (312) 262-1926 Telecopy: (416) 982-6630
</TABLE>
<PAGE>
-6-
SCHEDULE 5.4
CONSENTS, ETC.
- -----------------------------------------------
None
<PAGE>
SCHEDULE 8.2(g)
EXISTING LIENS ON THE
EFFECTIVE DATE
Ontario
- -------
Registration No. 960422 1904 1529 0777 pursuant to the Personal Property
Security Act in favour of Receivables Credit Corporation.
Collateral - Accounts, Other
Absolute assignment of all collateral and proceeds thereof described pursuant to
a purchase agreement dated as of April 1, 1996 and an assignment agreement dated
as of April 29, 1996 as the same may be amended, modified, supplemented,
replaced or restated from time to time.
Registration No. 950626 1838 1529 4659 pursuant to the Personal Property
Security Act in favour of Case Canada Receivables, Inc.
Collateral - Accounts, Other
Absolute assignment of all collateral and proceeds thereof described pursuant to
a purchase agreement dated as of June 1, 1995 and an assignment dated as of June
29, 1995 as the same may be amended, modified, supplemented, replaced or
restated from time to time.
Alberta
- -------
Registration No. 95012303848 pursuant to the Personal Property Security Act in
favour of Alberta Pacific Leasing Inc.
Collateral - 1 motorola attache 3900 cellular phone
Registration No. 95062711916 pursuant to the Personal Property Security Act in
favour of Case Canada Receivables, Inc.
Collateral: all of the following property transferred to the Secured Party by
the Debtor under a purchase agreement dated as of June 1, 1995 between Debtor
and Secured Party and an Assignment to be dated June 29, 1995 pursuant thereto,
each as amended, modified, supplemented or restated from time to time. All
right, title and interest in and to certain retail instalment sales contracts
secured by new or used agricultural or construction equipment ("financed
equipment") and constituting chattel paper which are listed in the schedule of
receivables to such assignment, each as amended, modified, supplemented or
restated from time to time (the "purchased contracts"). All obligations of the
obligors under the purchased contracts, all monies paid thereunder on or after
May 31, 1995, the security interests in financed equipment granted thereunder,
proceeds of insurance covering such obligors or financed equipment, any proceeds
of the purchased contracts in the form of money, securities, instruments,
chattel paper, accounts and intangible rights or financed equipment and any
other interest of the Debtor in the financed equipment.
Proceeds: accounts, chattel paper, money, intangibles, goods, insurance
proceeds, documents of title, instruments and securities.
Registration No. 96042220150 pursuant to the Personal Property Security Act in
favour of Receivables Credit Corporation.
Collateral: All of the following property transferred to the secured party by
the debtor under a purchase agreement dated as of April 1, 1996 between debtor
and secured party and an
<PAGE>
-2-
assignment to be dated as of April 29, 1996 pursuant thereto, each as amended,
modified, supplemented or restated from time to time.
All right, title and interest in and to certain retail instalment sales
contracts secured by new or used agricultural or construction equipment
("financed equipment") and constituting chattel paper which are listed in the
schedule of receivables to such purchase agreement or to such assignment, each
as amended, modified, supplemented or restated from time to time (the "purchased
contracts").
All obligations of the obligors under the purchased contracts, all moneys paid
thereunder on or after March 31, 1996, the security interest in financed
equipment, granted thereunder, proceeds of insurance covering such obligors or
financed equipment, any proceeds from recourse to dealers with respect to the
receivables other than any interest in dealers' reserve accounts with the
debtor, any proceeds of the purchased contracts in the form of money,
securities, instruments, chattel paper, accounts and intangible rights or
financed equipment and any other interest of the debtor in the financed
equipment.
Proceeds: accounts, chattel paper, money, intangibles, goods, insurance
proceeds, documents of title, instruments and securities.
<PAGE>
EXHIBIT A
TO REVOLVING CREDIT AGREEMENT
-----------------------------
FORM OF REVOLVING CREDIT NOTE
C$___________ Toronto, Ontario
August 23, 1996
FOR VALUE RECEIVED, the undersigned, CASE CREDIT LTD., a company
organized under the laws of the province of Alberta, Canada (the "Borrower"),
hereby unconditionally promises to pay to the order of ___________, (the
"Lender") at the office of The Bank of Nova Scotia, located at 44 King Street
West, 14th Floor, Toronto, Ontario M5H 1H1 Attention: Wallace Yeung, in lawful
money of Canada and in immediately available funds, on the Termination Date (as
defined in the Credit Agreement referred to below) the principal amount of
(a)___________ CANADIAN DOLLARS (C$_________), or, if less, (b) the aggregate
unpaid principal amount of all Revolving Credit Loans made by the Lender to the
Borrower pursuant to subsection 2.1 of the Credit Agreement (as hereinafter
defined). The Borrower further agrees to pay interest in like money at such
office on the unpaid principal amount hereof from time to time outstanding at
the rates and on the dates specified in subsection 4.1 of such Credit Agreement.
The holder of this Note is authorized to record on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date and amount of each Revolving
Credit Loan made by the Lender pursuant to such Credit Agreement and the date
and amount of each payment or prepayment of principal thereof. Each such
recordation shall constitute prima facie evidence of the accuracy of the
information so recorded, provided that the failure to make any such recordation
or any error in any such recordation shall not affect the obligations of the
Borrower under such Credit Agreement or this Note.
This Note (a) is one of the Revolving Credit Notes referred to in the
Revolving Credit Agreement dated as of August ., 1996 (as amended, supplemented
or otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the Lender, the other banks and financial institutions from time to
time parties thereto, the Co-Agent named therein, and The Bank of Nova Scotia,
as administrative agent, (b) is subject to the provisions of the Credit
Agreement and (c) is subject to optional and mandatory prepayment in whole or in
part as provided in the Credit Agreement. This Note is guaranteed as provided in
the Loan Documents (as defined in the Credit Agreement). Reference is hereby
made to such Loan Documents for a description of the nature and extent of the
guarantees, the terms and conditions upon which the guarantees were granted and
the rights of the holder of this Note in respect thereof.
Upon the occurrence of any one or more Events of Default specified in
the Credit Agreement, all amounts then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, all as provided
in the Credit Agreement.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest
<PAGE>
-2-
and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE PROVINCE OF ONTARIO.
CASE CREDIT LTD.
By:___________________________
Name:_________________________
Title:________________________
<PAGE>
SCHEDULE A
TO REVOLVING CREDIT NOTE
------------------------
PRIME RATE LOANS AND REPAYMENTS OF PRIME RATE LOANS
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Amount of Prime Amount of Unpaid Notation Made By
Date Rate Loans Principal of Principal
Prime Rate Balance of
Loans Prime Rate
Repaid Loans
</TABLE>
<PAGE>
EXHIBIT C TO
REVOLVING CREDIT AGREEMENT
--------------------------
FORM OF
ACCEPTANCE NOTE
C$___________, Ontario
____________ ______, 199_
FOR VALUE RECEIVED, the undersigned, CASE CREDIT LTD., a corporation
incorporated, organized and existing under the laws of the Province of Alberta,
Canada (the "Borrower"), hereby unconditionally promises to pay to the order of
[INSERT NAME OF LENDER] (the "Lender") at the office of THE BANK OF NOVA SCOTIA,
located at ________________, Canada _________, in lawful money of Canada and in
immediately available funds, the principal amount of [______] CANADIAN DOLLARS
(C$_______ ). The undiscounted principal amount hereof shall be repaid on ,
199_/3/. The Borrower further agrees that interest shall be paid herein, in
advance, by the Lender discounting the face amount of this Acceptance Note in
the manner described in subsection 3.3 of the Credit Agreement described below
(capitalized terms used herein without definition being defined as set forth
therein).
This Acceptance Note (a) is one of the Acceptance Notes referred to in
the Revolving Credit Agreement dated as of August ., 1996 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among the Borrower, the Lender, the other banks and financial institutions from
time to time parties thereto, the Co-Agent named therein, and The Bank of Nova
Scotia, as administrative agent, and (b) is subject to the provisions of the
Credit Agreement.
This Acceptance Note is guaranteed as provided in the Loan Documents.
Reference is hereby made to the Loan Documents for a description of the nature
and extent of the guarantees, the terms and conditions upon which each guarantee
was granted and the rights of the holder of this Acceptance Note in respect
thereof.
Upon the occurrence of any one or more of the Events of Default
specified in the Credit Agreement, all amounts then remaining unpaid on this
Acceptance Note shall become, or may be declared to be, immediately due and
payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Acceptance
Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
THIS ACCEPTANCE NOTE SHALL BE GOVERNED BY, AND
- --------------------
/3/ Insert maturity date for Acceptances created simultaneously herewith.
<PAGE>
-2-
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE PROVINCE OF
ONTARIO.
CASE CREDIT LTD.
By:________________________
Name:
Title:
<PAGE>
EXHIBIT D TO
REVOLVING CREDIT AGREEMENT
--------------------------
[NAME OF LENDER]
________________________[BRANCH]
POWER OF ATTORNEY - GENERAL
The undersigned hereby appoints [NAME OF LENDER] (hereinafter called
("[NAME OF LENDER]"), acting by any authorized signatory of [NAME OF LENDER],
the attorney of the undersigned:
(a) to sign for and on behalf and in the name of the undersigned as
drawer, Drafts (as defined in the Credit Agreement referred to below)
drawn on [NAME OF LENDER] payable to the order of the undersigned or
payable to the order of [NAME OF LENDER];
(b) to fill in the amount, date and maturity date of such Drafts; and
(c) to discount and/or deliver such Drafts which have been accepted by
[NAME OF LENDER],
provided that such acts in each case are to be undertaken by [NAME OF LENDER] in
accordance with instructions given to [NAME OF LENDER] by the undersigned as
provided in this power of attorney.
Instructions from the undersigned to [NAME OF LENDER] relating to the
execution, completion, endorsement, discount and/or delivery by [NAME OF LENDER]
on behalf of the undersigned of Drafts which the undersigned wishes to submit it
to [NAME OF LENDER] for acceptance by [NAME OF LENDER] shall be communicated to
[NAME OF LENDER] on behalf of the undersigned in writing to [NAME OF LENDER]'s
manager or acting manager at the branch where the undersigned has an account
with [NAME OF LENDER] (in accordance with the terms of the Revolving Credit
Agreement dated as of August ., 1996 among Case Credit Ltd., the several banks
and other financial institutions from time to time parties thereto, the Co-Agent
named therein, and The Bank of Nova Scotia, as administrative agent, to which
the undersigned and [NAME OF LENDER] are parties (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement")) and shall specify
the following information:
(a) reference to this power of attorney;
(b) a Canadian Dollar amount, which shall be the aggregate face
amount of the Drafts to be drawn in a particular transaction;
(c) a specified period of time (not less than 7 days or in excess of
180 days)
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which shall be the number of days after the date of such Drafts
that such Drafts are to be payable, and the dates of issue and
maturity of such Drafts; and
(d) discount/payment instructions specifying the account number of
the undersigned and the financial institution at which the
proceeds of the discount of such Drafts are to be credited.
The communication in writing by the undersigned to [NAME OF LENDER] of
the instructions referred to above shall constitute (a) the authorization and
instruction of the undersigned to [NAME OF LENDER] to complete and/or endorse
Drafts in accordance with such information as set out above and (b) the request
of the undersigned to [NAME OF LENDER] to accept such Drafts and discount the
same. The undersigned acknowledges that [NAME OF LENDER] shall not be obligated
to accept any such Drafts except in accordance with the provisions of the Credit
Agreement.
[NAME OF LENDER] shall be and it is hereby authorized to act on behalf
of the undersigned upon and in compliance with instructions communicated to
[NAME OF LENDER] as provided herein if [NAME OF LENDER] reasonably believes them
to be genuine. If [NAME OF LENDER] accepts Drafts pursuant to any such
instructions, [NAME OF LENDER] shall confirm particulars of such instructions
and advise the undersigned that [NAME OF LENDER] has complied therewith by
notice in writing addressed to the undersigned and served personally or sent by
prepaid registered mail or by telecopier or other form of recorded communication
to the address of the undersigned as shown on the books kept in relation to the
account of the undersigned at the branch of [NAME OF LENDER] from which such
notice is mailed or transmitted by telecopier or other form of recorded
communication. Any notice so given shall be deemed to have been given and
received, if mailed, on the third day next following the mailing thereof; if
transmitted by telecopier or other form of recorded communication when received;
and if served personally on the date of delivery. [NAME OF LENDER]'s actions
confirmed and advised to the undersigned by such notice shall be conclusively
deemed to have been in accordance with the instructions of the undersigned
unless the undersigned notifies [NAME OF LENDER] to the contrary in writing not
later than the business day next following such deemed receipt by the
undersigned. Notice in writing to [NAME OF LENDER] as contemplated hereby may
be delivered by hand at the branch of [NAME OF LENDER] from which the notice
given by [NAME OF LENDER] was mailed or transmitted by telecopier or other form
of recorded communication.
The undersigned hereby agrees and promises to pay [NAME OF LENDER], on
the maturity date thereof, the face amount of each draft signed, completed and
endorsed as contemplated herein and accepted by [NAME OF LENDER], such payment
to be made in immediately available funds in Canadian dollars at the branch of
[NAME OF LENDER] specified above, free and clear of and without deduction by
reason of any taxes or charges whatsoever.
The undersigned agrees to indemnify [NAME OF LENDER] and its
directors, officers, employees, affiliates and agents and to hold it and them
harmless from and against any
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loss, liability, expense or claim of any kind or nature whatsoever incurred by
any of them as a result of any action or inaction in any way relating to or
arising out of this power of attorney or the acts contemplated hereby; provided
that this indemnity shall not apply to any such loss, liability, expense or
claim which results from the gross negligence or willful misconduct of [NAME OF
LENDER] or any of its directors, officers, employees, affiliates or agents.
This power of attorney may be revoked at any time upon not less than 5
business days' written notice served upon [NAME OF LENDER] at its branch
referred to above, provided that (i) it shall be replaced with another power of
attorney forthwith in accordance with the requirements of subsection 4.2(b) of
the Credit Agreement; and (ii) no such revocation shall reduce, limit or
otherwise affect the obligations of the undersigned in respect of any Draft
executed, completed, endorsed, discounted and/or delivered in accordance
herewith prior to the time at which such revocation becomes effective.
This power of attorney is in addition to and not in substitution of
any agreement to which [NAME OF LENDER] and the undersigned are parties.
This power of attorney shall be governed in all respects by the laws
of the Province of Alberta and the laws of Canada applicable therein and each of
the undersigned and [NAME OF LENDER] hereby irrevocably attorns to the
nonexclusive jurisdiction of the courts of such jurisdiction in respect of all
matters arising out of this power of attorney.
In the event of a conflict between the provisions of this Power of
Attorney (other than the provisions of the immediately preceding paragraph) and
the Credit Agreement, the Credit Agreement shall prevail.
The undersigned has (have) expressly requested that this document be
drawn up in the English language. Le(s) soussigne(s) a(ont) expressement
demande que ce document soit redige en langue anglaise.
DATED at ________________ this _________ day of ___________ , 199_
SIGNED SEALED AND DELIVERED Name:
in the presence of
___________________________ By:____________________
(Witness) Name:
Title:
Must be
sealed and
witnessed
if signed
by an
individual
___________________________ By:____________________
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(Witness) Name:
Title:
Note: If the undersigned is a corporation, the corporate seal must be affixed
and this form must be accompanied by a certified copy of a resolution of the
director(s) of the corporation authorizing the execution and delivery of this
form.
Please have the undersigned initial all alterations/deletions made to this form.
<PAGE>
EXHIBIT E
TO REVOLVING CREDIT AGREEMENT
-----------------------------
[FORM OF CASE CREDIT GUARANTEE]
GUARANTEE, dated as of August , 1996, made by CASE CREDIT
CORPORATION, a Delaware corporation (the "Guarantor"), in favour of THE BANK OF
NOVA SCOTIA, a Canadian chartered bank, in its capacity as administrative agent
(the "Administrative Agent"), for the several banks and other financial
institutions (the "Lenders") from time to time parties to the Revolving Credit
Agreement, dated as of August ., 1996, among Case Credit Ltd., a company
organized under the laws of Alberta, Canada (the "Borrower"), the Lenders, the
Co-Agent named therein (the "Co-Agent") and the Administrative Agent (as
amended, supplemented and otherwise modified from time to time, the "Credit
Agreement").
W I T N E S S E T H :
-------------------
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally
agreed to make Extensions of Credit to the Borrower upon the terms and subject
to the conditions set forth therein;
WHEREAS, it is a condition precedent to the Extensions of Credit to be
made by the Lenders under the Credit Agreement that the Guarantor shall have
executed and delivered this Agreement to the Administrative Agent for the
benefit of the Administrative Agent, the Co-Agent and the Lenders;
NOW, THEREFORE, in consideration of the Lenders, the Co-Agent and the
Administrative Agent entering into the Credit Agreement and agreeing to make
Extensions of Credit to the Borrower thereunder and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Guarantor hereby agrees with the Administrative Agent for the benefit of the
Administrative Agent, the Co-Agent and the Lenders as follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given to
them in the Credit Agreement.
(b) As used herein, "Obligations" means the collective reference to
the unpaid principal of and interest on the Loans, the Acceptance Notes, the
Acceptances and the Acceptance Reimbursement Obligations (including, without
limitation, interest accruing at the then applicable rate provided in the Credit
Agreement after the maturity of the Loans, the Acceptance Notes, the Acceptances
and the Acceptance Reimbursement Obligations and interest accruing at the then
applicable rate provided in the Credit Agreement after the filing of any
proposal, notice of intention to file a proposal, assignment, petition, case or
proceeding in bankruptcy, or the commencement of any insolvency, reorganization
or like proceeding, relating to the Borrower, whether or not a claim for post-
filing or post-petition interest is allowed in such proceeding, and all other
obligations and liabilities of the Borrower to the Administrative Agent,
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the Co-Agent and the Lenders, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, the Credit Agreement, the Loans,
the Acceptance Notes, the Acceptances, the Acceptance Reimbursement Obligations,
the other Loan Documents or any other document made, delivered or given in
connection therewith, in each case whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all reasonable fees and disbursements of counsel
to the Administrative Agent or the Lenders for which the Borrower is responsible
under the Credit Agreement).
(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Guarantee shall refer to this Guarantee as a whole and
not to any particular provision of this Guarantee, and section and paragraph
references are to this Guarantee unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Guarantee. (a) The Guarantor hereby unconditionally and
irrevocably guarantees to the Administrative Agent, for the benefit of the
Administrative Agent, the Co-Agent and the Lenders and their respective
successors, endorsees, transferees and assigns, the prompt and complete payment
and performance by the Borrower when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations.
(b) The Guarantor further agrees to pay any and all expenses
(including, without limitation, all reasonable fees and disbursements of
counsel) which may be paid or incurred by the Administrative Agent, the Co-Agent
or any Lender in enforcing, or obtaining advice of counsel in respect of, any
rights with respect to, or collecting, any or all of the Obligations and/or
enforcing any rights with respect to, or collecting against the Guarantor under
this Guarantee. This Guarantee shall remain in full force and effect until the
Obligations are paid in full and the Commitments are terminated, notwithstanding
that from time to time prior thereto the Borrower may be free from any
Obligations.
(c) No payment or payments made by the Borrower or any other Person
or received or collected by the Administrative Agent, the Co-Agent or any Lender
from the Borrower or any other Person by virtue of any action or proceeding or
any set-off or appropriation or application, at any time or from time to time,
in reduction of or in payment of the Obligations shall be deemed to modify,
reduce, release or otherwise affect the liability of the Guarantor hereunder
which shall, notwithstanding any such payment or payments, remain liable
hereunder for the Obligations until the Obligations are paid in full and the
Commitments are terminated.
(d) The Guarantor agrees that whenever, at any time, or from time to
time, it shall make any payment to the Administrative Agent, the Co-Agent or any
Lender on account of its liability hereunder, it will notify the Administrative
Agent, the Co-Agent and such Lender in writing that such payment is made under
this Guarantee for such purpose.
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3. Right of Set-off. The Administrative Agent, the Co-Agent and each
Lender is hereby irrevocably authorized at any time and from time to time
without notice to the Guarantor, any such notice being expressly waived by the
Guarantor, to set off and appropriate and apply any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by the Administrative Agent, the Co-Agent or such Lender to or for the
credit or the account of the Guarantor, or any part thereof in such amounts as
the Administrative Agent, the Co-Agent or such Lender may elect, against or on
account of the obligations and liabilities of the Guarantor to the
Administrative Agent, the Co-Agent or such Lender hereunder which are then due
and payable and claims of every nature and description of the Administrative
Agent, such Co-Agent or such Lender against the Guarantor, in any currency,
whether arising hereunder, under the Credit Agreement, any Revolving Credit
Note, any Acceptance Note, any Acceptance, any other Loan Document or otherwise
in connection therewith, as the Administrative Agent, the Co-Agent or such
Lender may elect, whether or not the Administrative Agent, the Co-Agent or such
Lender has made any demand for payment. The Administrative Agent, the Co-Agent
and each Lender shall notify the Guarantor promptly of any such set-off and the
application made by the Administrative Agent, the Co-Agent or such Lender, as
the case may be, of the proceeds thereof; provided that the failure to give such
notice shall not affect the validity of such set-off and application. The rights
of the Administrative Agent, the Co-Agent and each Lender under this paragraph
are in addition to other rights and remedies (including, without limitation,
other rights of set-off) which the Administrative Agent, the Co-Agent or such
Lender may have.
4. No Subrogation. Notwithstanding anything to the contrary in this
Guarantee, the Guarantor hereby irrevocably waives all rights which may have
arisen in connection with this Guarantee to be subrogated to any of the rights
(whether contractual, under the Bankruptcy Code, including Section 509 thereof,
under common law or otherwise) of the Administrative Agent, the Co-Agent and the
Lenders (or any of them) against the Borrower or against any collateral security
or guarantee or right of offset held by the Administrative Agent, the Co-Agent
and the Lenders (or any of them) for the payment of the Obligations. The
Guarantor hereby further irrevocably waives all contractual, common law,
statutory or other rights of reimbursement, contribution, exoneration or
indemnity (or any similar right) from or against the Borrower or any other
Person which may have arisen in connection with this Guarantee. So long as the
Obligations remain outstanding and the Commitments have not terminated, if any
amount shall be paid by or on behalf of the Borrower to the Guarantor on account
of any of the rights waived in this paragraph, such amount shall be held by the
Guarantor in trust, segregated from other funds of such Guarantor, and shall,
forthwith upon receipt by such Guarantor, be turned over to the Administrative
Agent in the exact form received by the Guarantor (duly endorsed by the
Guarantor to the Administrative Agent, if required), to be applied by the
Administrative Agent against the Obligations, whether matured or unmatured, in
such order as the Administrative Agent may determine. The provisions of this
paragraph shall be effective until the date which is 370 days after the
termination of this Guarantee and the payment in full of the Obligations and the
termination of the Commitments.
5. Amendments, etc. with respect to the Obligations; Waiver of
Rights. The Guarantor shall remain obligated hereunder notwithstanding that,
without any reservation of
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rights against the Guarantor, and without notice to or further assent by the
Guarantor, any demand for payment of any of the Obligations made by the
Administrative Agent, the Co-Agent or any Lender may be rescinded by the
Administrative Agent, the Co-Agent or such Lender, and any of the Obligations
continued, and the Obligations, or the liability of any other party upon or for
any part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Administrative Agent, the Co-Agent or any Lender,
and the Credit Agreement and the other Loan Documents and any other documents
executed and delivered in connection therewith may be amended, modified,
supplemented or terminated, in whole or in part, as the Administrative Agent (or
the requisite Lenders, as the case may be) may deem advisable from time to time,
and any collateral security, guarantee or right of offset at any time held by
the Administrative Agent, the Co-Agent or any Lender for the payment of the
Obligations may be sold, exchanged, waived, surrendered or released. None of the
Administrative Agent, the Co-Agent or any Lender shall have any obligation to
protect, secure, perfect or insure any Lien at any time held by it as security
for the Obligations or for this Guarantee or any property subject thereto. When
making any demand hereunder against the Guarantor, the Administrative Agent, the
Co-Agent or any Lender may, but shall be under no obligation to, make a similar
demand on the Borrower or any other guarantor, and any failure by the
Administrative Agent, the Co-Agent or any Lender to make any such demand or to
collect any payments from the Borrower or any such other guarantor or any
release of the Borrower or such other guarantor shall not relieve the Guarantor
of its obligations or liabilities hereunder, and shall not impair or affect the
rights and remedies, express or implied, or as a matter of law, of the
Administrative Agent, the Co-Agent or any Lender against the Guarantor. For the
purposes hereof "demand" shall include the commencement and continuance of any
legal proceedings.
6. Guarantee Absolute and Unconditional. The Guarantor waives any
and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Administrative Agent, any
Co-Agent or any Lender upon this Guarantee or acceptance of this Guarantee; the
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon this Guarantee; and all dealings between the Borrower and the Guarantor, on
the one hand, and the Administrative Agent, the Co-Agent and the Lenders, on the
other, shall likewise be conclusively presumed to have been had or consummated
in reliance upon this Guarantee. The Guarantor waives diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon the
Borrower and the Guarantor with respect to the Obligations. This Guarantee shall
be construed as a continuing, absolute and unconditional guarantee of payment
without regard to (a) the validity, regularity or enforceability of the Credit
Agreement, any other Loan Document, any of the Obligations or any other
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the Administrative Agent, the
Co-Agent or any Lender, (b) any defense, set-off or counterclaim (other than a
defense of payment or performance) which may at any time be available to or be
asserted by the Borrower against the Administrative Agent, the Co-Agent or any
Lender, or (c) any other circumstance whatsoever (with or without notice to or
knowledge of the Borrower or the Guarantor) which constitutes, or might be
construed to constitute, an equitable or legal discharge of the Borrower for the
Obligations, or of the Guarantor under this
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Guarantee, in bankruptcy or in any other instance. When pursuing its rights and
remedies hereunder against the Guarantor, the Administrative Agent, the Co-Agent
and any Lender may, but shall be under no obligation to, pursue such rights and
remedies as it may have against the Borrower or any other Person or against any
collateral security or guarantee for the Obligations or any right of offset with
respect thereto, and any failure by the Administrative Agent, the Co-Agent or
any Lender to pursue such other rights or remedies or to collect any payments
from either Borrower or any such other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or any
release of the Borrower or any such other Person or of any such collateral
security, guarantee or right of offset, shall not relieve the Guarantor of any
liability hereunder, and shall not impair or affect the rights and remedies,
whether express, implied or available as a matter of law, of the Administrative
Agent, the Co-Agent or any Lender against the Guarantor. This Guarantee shall
remain in full force and effect and be binding in accordance with and to the
extent of its terms upon the Guarantor and its successors and assigns, and shall
inure to the benefit of the Administrative Agent, the Co-Agent and the Lenders,
and their respective successors, endorsees, transferees and assigns, until all
the Obligations and the obligations of the Guarantor under this Guarantee shall
have been satisfied by payment in full and the Commitments shall be terminated,
notwithstanding that from time to time during the term of the Credit Agreement
the Borrower may be free from any Obligations.
7. Reinstatement. This Guarantee shall continue to be effective, or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of any of the Obligations is rescinded or must otherwise be restored or returned
by the Administrative Agent, the Co-Agent or any Lender upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Borrower or upon
or as a result of the appointment of a receiver, intervenor or conservator of,
or trustee or similar officer for, the Borrower or any substantial part of their
respective property, or otherwise, all as though such payments had not been
made.
8. Payments. The Guarantor hereby agrees that all payments required
to be made by it hereunder will be made to the Administrative Agent without set-
off or counterclaim in Canadian Dollars (in the case of obligations payable in
Canadian Dollars) at the office of The Bank of Nova Scotia located at 44 King
Street West, Toronto, Ontario M5H 1H1.
9. Taxes. All payments made by the Guarantor under this Guarantee
shall be made free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority, excluding
taxes imposed on the Administrative Agent, the Co-Agent or any Lender as a
result of a present or former connection between the Administrative Agent, the
Co-Agent or such Lender and the jurisdiction of the Governmental Authority
imposing such tax or any political subdivision or taxing authority thereof or
therein (other than any such connection arising solely from the Administrative
Agent, the Co-Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced, this Guarantee, Credit
Agreement or any other Loan Document). If any such non-excluded taxes, levies,
imposts, duties, charges, fee, deductions or withholdings ("Non-Excluded Taxes")
are required to be withheld from any amounts payable to the Administrative
Agent, the Co-Agent
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or any Lender hereunder, the amounts so payable to such Administrative Agent,
the Co-Agent or such Lender shall be increased to the extent necessary to yield
to the Administrative Agent, the Co-Agent or such Lender (after payment of all
Non-Excluded Taxes) interest or any such other amounts payable hereunder at the
rates and in the amounts specified in this Guarantee, provided, however, that
the Guarantor shall not be required to increase any such amounts payable to any
Lender that is not incorporated under the laws of Canada or a province thereof
or is not a resident of Canada for purposes of the Tax Act. Whenever any Non-
Excluded Taxes are payable by the Guarantor, as promptly as possible thereafter
the Guarantor shall send to the Administrative Agent for its own account or for
the account of such Co-Agent or such Lender, as the case may be, a certified
copy of an original official receipt received by the Guarantor showing payment
thereof. If the Guarantor fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, the Guarantor shall
indemnify the Administrative Agent, the Co-Agent and the Lenders for any
incremental taxes, interest or penalties that may become payable by the
Administrative Agent, the Co-Agent or any Lender as a result of any such
failure. The agreements in this paragraph shall survive the termination of this
Guarantee, the payment of the Obligations and all other amounts payable
hereunder and the termination of the Commitments.
10. Representations and Warranties. The Guarantor represents and
warrants to the Administrative Agent, the Co-Agent and the Lenders that:
(a) the Guarantor has the corporate power and authority to execute
and deliver and perform this Guarantee, and has taken all necessary corporate
action to authorize execution, delivery and performance of this Guarantee; no
consent or authorization of, filing with, notice to or other act by or in
respect of, any arbitrator or Governmental Authority or any other Person is
required to be obtained or made by or on behalf of the Guarantor in connection
with the execution, delivery, performance, validity or enforceability of this
Guarantee;
(b) this Guarantee constitutes a legal, valid and binding obligation
of the Guarantor enforceable against the Guarantor in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law);
(c) the execution, delivery and performance of this Guarantee by the
Guarantor will not violate any provision of (a) any Requirement of Law or
Contractual Obligation of the Guarantor and (b) will not result in or require
the creation or imposition of any Lien on any of the properties or revenues of
the Guarantor pursuant to any Requirement of Law or Contractual Obligation of
the Guarantor;
(d) there are no actions, suits, investigations or proceedings of or
before any arbitrator or Governmental Authority pending by or against or
affecting the Guarantor or any of its Subsidiaries or, to the best knowledge of
the Guarantor, threatened by or against or affecting the Guarantor or any of its
Subsidiaries or against any assets or properties of the Guarantor or any of its
Subsidiaries with respect to any of the Loan Documents or any of the
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transactions contemplated thereby or which would be reasonably expected to have
a Material Adverse Effect;
(e) no consent or authorization of, filing with, notice to or other
act by or in respect of, any arbiter or Governmental Authority or any other
Person is required to be obtained or made by or on behalf of the Guarantor in
connection with execution delivery, performance, validity or enforceability of
this Guarantee;
(f) each of the representations and warranties made by the Guarantor
in the Case Credit Credit Agreement are true; and
(g) the Guarantor is not insolvent and will not be rendered insolvent
by the transactions contemplated hereby, nor, after giving effect to such
transactions will the Guarantor be left with an unreasonably small capital with
which to engage in its anticipated business, nor does the Guarantor intend to or
believe that it will incur debts beyond its ability to pay as they mature.
The Guarantor agrees that the foregoing representations and warranties
(other than those set out in paragraph (g)) shall be deemed to have been made by
the Guarantor on each Borrowing Date under the Credit Agreement on and as of
such Borrowing Date as though made hereunder on and as of such date.
11. Covenants. The Guarantor hereby covenants and agrees with the
Administrative Agent, the Co-Agent and the Lenders that, from and after the date
of this Guarantee until the Obligations are paid in full and the Commitments are
terminated, (i) the Guarantor shall own, beneficially and of record, directly or
indirectly through one or more wholly-owned Subsidiaries, 100% of the issued and
outstanding common shares of the Borrower, free and clear of any and all Liens;
and (ii) the Guarantor shall not modify or amend or agree to modify or amend any
term or provision made or contained in Section 11 of the Case Credit Credit
Agreement without the prior written consent of the Majority Lenders.
12. Authority of the Administrative Agent. The Guarantor
acknowledges that the rights and responsibilities of the Administrative Agent
under this Guarantee with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative Agent of any option,
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Guarantee shall, as between the Administrative
Agent, the Co-Agent and the Lenders, be governed by the Credit Agreement and the
other Loan Documents and by such other agreements with respect thereto as may
exist from time to time among them, but, as between the Administrative Agent and
the Guarantor, the Administrative Agent shall be conclusively presumed to be
acting as agent for the Co-Agent and the Lenders with full and valid authority
so to act or refrain from acting, and the Guarantor shall not be under any
obligation, or entitlement, to make any inquiry respecting such authority.
13. Notices. All notices, requests and demands to or upon the
Administrative Agent, the Co-Agent, any Lender or the Guarantor to be effective
shall be in writing (or by facsimile transmission or similar electronic transfer
confirmed in writing) and shall be deemed
<PAGE>
-8-
to have been duly given or made (i) when delivered by hand, (ii) if given by
mail, three days after being deposited in the mails by certified mail, return
receipt requested, or (iii) if by facsimile transmission or similar electronic
transfer, when sent and receipt has been confirmed, addressed as follows:
(a) if to the Administrative Agent, the Co-Agent or any Lender, at its
address or transmission number for notices provided in subsection 11.2 or
Schedule I of the Credit Agreement;
(b) if to the Guarantor, at its address or transmission number for
notices set forth under its signature below.
The Administrative Agent, the Co-Agent, each Lender and the Guarantor
may change its address and transmission numbers for notices by notice in the
manner provided in this paragraph.
14. Severability. Any provision of this Guarantee which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
15. Integration. This Guarantee represents the agreement of the
Guarantor with respect to the subject matter hereof and there are no promises or
representations by the Administrative Agent, the Co-Agent or any Lender relative
to the subject matter hereof not reflected herein.
16. Amendments in Writing; No Waiver; Cumulative Remedies. (a)
None of the terms or provisions of this Guarantee may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
the Guarantor and the Administrative Agent, provided that any provision of this
Guarantee may be waived by the Administrative Agent, the Co-Agent and the
Lenders in a letter or agreement executed by the Administrative Agent or by
facsimile transmission from the Administrative Agent.
(b) None of the Administrative Agent, the Co-Agent or any Lender shall
by any act (except by a written instrument pursuant to paragraph 16(a) hereof),
delay, indulgence, omission or otherwise be deemed to have waived any right or
remedy hereunder or to have acquiesced in any Default or Event of Default or in
any breach of any of the terms and conditions hereof. No failure to exercise,
nor any delay in exercising, on the part of the Administrative Agent, the Co-
Agent or any Lender, any right, power or privilege hereunder shall operate as a
waiver thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Administrative Agent,
the Co-Agent or any Lender of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which the Administrative
Agent, the Co-Agent or such Lender would otherwise have on any future occasion.
<PAGE>
-9-
(c) The rights and remedies herein provided are cumulative may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
17. Paragraph Headings. The paragraph headings used in this
Guarantee are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
18. Successors and Assigns. This Guarantee shall be binding upon
the successors and assigns of the Guarantor and shall inure to the benefit of
the Administrative Agent, the Co-Agent and the Lenders and their successors and
assigns.
19. Judgment Currency. (a) If for the purpose of obtaining judgment
in any court it is necessary to convert a sum due hereunder in one currency into
another currency, the Guarantor agrees, to the fullest extent that it may
effectively do so, that the rate of exchange used shall be that at which, in
accordance with normal banking procedures, the Administrative Agent could
purchase the first currency with such other currency in the city in which is
located the Administrative Agent account for the first currency on the Business
Day immediately following the day on which final judgment is given.
(b) The obligation of the Guarantor in respect of any sum due
hereunder to the Administrative Agent, the Co-Agent or any Lender shall,
notwithstanding any judgment in a currency (the "judgment currency") other than
that in which such sum is payable in accordance with the applicable provisions
of this Guarantee (the "Guarantee currency"), be discharged only to the extent
that on the Business Day following receipt by the Administrative Agent on behalf
of the Administrative Agent, the Co-Agent or such Lender of any sum adjudged to
be so due in the judgment currency, the Administrative Agent on behalf of the
Administrative Agent, the Co-Agent or such Lender may in accordance with normal
banking procedures purchase the Guarantee currency with the judgment currency;
if the amount of the Guarantee currency so purchased is less than the sum
originally due to the Administrative Agent, the Co-Agent or such Lender in the
Guarantee currency, the Guarantor agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Administrative Agent, the
Co-Agent or such Lender against such loss, and if the amount of the Guarantee
currency so purchased exceeds the sum originally due to the Administrative
Agent, the Co-Agent or any Lender, the Administrative Agent, the Co-Agent or
such Lender agrees to remit to the Guarantor such excess.
20. GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF WISCONSIN
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
<PAGE>
-10-
IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be
duly executed and delivered by its duly authorized officer as of the day and
year first above written.
CASE CREDIT CORPORATION
By _____________________________________
Title __________________________________
Address for Notices:
233 Lake Avenue
Racine, Wisconsin 53403
Attention: Vice-President and Controller
Telex: _________________________________
Fax: (414) 636-6284
<PAGE>
EXHIBIT F TO
REVOLVING CREDIT AGREEMENT
--------------------------
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Revolving Credit Agreement, dated as of
August ., 1996 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among Case Credit Ltd. (the "Borrower"), the
banks and other financial institutions from time to time party thereto (the
"Lenders"), the Co-Agent named therein (the "Co-Agent"), and The Bank of Nova
Scotia, as administrative agent for the Lenders (the "Administrative Agent").
Unless otherwise defined herein, terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement.
______________________ (the "Assignor") and ________________________
(the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as of
the Effective Date (as defined below), a _______ % interest (the "Assigned
Interest") in and to the Assignor's rights and obligations under the Credit
Agreement and the other Loan Documents with respect to those credit facilities
contained in the Credit Agreement as are set forth on SCHEDULE 1 (individually,
an "Assigned Facility"; collectively, the "Assigned Facilities"), in a principal
and/or commitment amount for each Assigned Facility as set forth on SCHEDULE 1.
2. The Assignor (a) makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Loan Document or
with respect to the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other Loan Document or any
other instrument or document furnished pursuant thereto, other than that the
Assignor has not created any adverse claim upon the interest being assigned by
it hereunder and that such interest is free and clear of any such adverse claim;
(b) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower, any of its Subsidiaries, any
other Loan Party or any other obligor or the performance or observance by the
Borrower, any of its Subsidiaries, any other Loan Party or any other obligor or
any of their respective obligations under the Credit Agreement or any other Loan
Document or any other instrument or document furnished pursuant hereto or
thereto; and (c) attaches any Revolving Credit Notes held by it evidencing the
Assigned Facilities and (i) requests that the Administrative Agent, upon request
by the Assignee, exchange any attached Revolving Credit Notes for a new
Revolving Credit Note or Revolving Credit Notes payable to the Assignee and (ii)
if the Assignor has retained any interest in any Assigned Facility, requests
that the Administrative Agent exchange any attached Revolving Credit Notes for a
new Revolving Credit Note or Revolving Credit Notes payable to the Assignor, in
each case in amounts which reflect the assignment being made hereby (and after
giving effect to any other assignments which have become effective on the
Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to Section 7.1
<PAGE>
-2-
thereof, the other Loan Documents and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into this Assignment and Acceptance; (c) agrees that it will, independently and
without reliance upon the Assignor, the Administrative Agent, the Co-Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement, the other Loan Documents or any
other instrument or document furnished pursuant hereto or thereto; (d) appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers and discretion under the Credit Agreement,
the other Loan Documents or any other instrument or document furnished pursuant
hereto or thereto as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are incidental thereto; and (e) agrees
that it will be bound by the provisions of the Credit Agreement and will perform
in accordance with its terms all the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Lender.
4. The effective date of this Assignment and Acceptance shall be
_____, 19__ (the "Effective Date"). Following the execution of this Assignment
and Acceptance, it will be delivered to the Administrative Agent for acceptance
by it and recording by the Administrative Agent pursuant to the Credit
Agreement, effective as of the Effective Date (which shall not, unless otherwise
agreed to by the Administrative Agent, be earlier than five Business Days after
the date of such acceptance and recording by the Administrative Agent).
5. Upon such acceptance and recording, from and after the Effective
Date, the Administrative Agent shall make all payments in respect of the
Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignee whether such amounts have accrued prior to the
Effective Date or accrue subsequent to the Effective Date. The Assignor and the
Assignee shall make all appropriate adjustments in payments by the
Administrative Agent for periods prior to the Effective Date or with respect to
the making of this assignment directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Loan Documents and shall be bound by the provisions thereof and (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
7. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the Province of Ontario.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
<PAGE>
SCHEDULE 1
TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE REVOLVING CREDIT AGREEMENT,
DATED AS OF AUGUST __________, 1996,
AMONG
CASE CREDIT, LTD.,
THE LENDERS NAMED THEREIN,
THE CO-AGENT NAMED THEREIN
AND
THE BANK OF NOVA SCOTIA, AS ADMINISTRATIVE AGENT FOR
THE LENDERS (IN SUCH CAPACITY, THE "ADMINISTRATIVE AGENT")
- --------------------------------------------------------------------------------
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Principal/
Credit Commitment Commitment Percentage
Facility Assigned Amount Assigned Assigned/1/
- ----------------- --------------- ---------------------
---
$ . %
-------------- ------- -------------
[Name of Assignee] [Name of Assignor]
By: By:
------------------------------- -------------------------------
Name: Name:
Title: Title:
Accepted: Consented To:
THE BANK OF NOVA SCOTIA, CASE CREDIT LTD.
As Administrative Agent
By: By:
------------------------------- -------------------------------
Name: Name:
Title: Title:
1 Calculate the Commitment Percentage that is assigned to at least 15 decimal
places and show as a percentage of the aggregate commitments of all Lenders.
<PAGE>
EXHIBIT G-1 TO
REVOLVING CREDIT AGREEMENT
--------------------------
[AUGUST ., 1996]
The Bank of Nova Scotia, as Administrative Agent
Executive Offices,
Scotia Plaza,
44 King Street West,
Toronto, Ontario,
M5H 1H1
And each of the Lenders parties to the
Credit Agreement referred below
As counsel to Case Credit Corporation, a Delaware corporation ("Case
Credit"), I am familiar with (a) the Revolving Credit Agreement, dated as of
August ., 1996 (the "Credit Agreement"), among Case Credit Ltd., an Alberta
corporation, (the "Borrower" or "Case Credit Canada"), the lenders parties
thereto (the "Lenders"), the Co-Agent named therein (the "Co-Agent"), and The
Bank of Nova Scotia, as Canadian administrative agent for the Lenders (in such
capacity, the "Administrative Agent"), (b) the other Loan Documents referred to
in the Credit Agreement, and (c) the guarantee executed by Case Credit dated as
of August ., 1996 (the "Case Credit Guarantee").
The opinions expressed below are furnished to you pursuant to subsection
6.1 (c)(i) of the Credit Agreement. Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given to
them in the Credit Agreement.
In arriving at the opinions expressed below,
I have examined and relied on the originals, or copies certified or
otherwise identified to my satisfaction, of each of (1) the Credit Agreement and
the Revolving Credit Notes to be delivered by the Borrower on the Effective Date
and (2) the Case Credit Guarantee (the Credit Agreement, such Revolving Credit
Notes and the Case Credit Guarantee being hereinafter referred to collectively
as the "Transaction Documents"); and
I have examined such corporate documents and records of Case Credit
and such other instruments and certificates of public officials, officers and
representatives of Case Credit and other Persons as I have deemed necessary or
appropriate for the purposes of this opinion.
In arriving at the opinions expressed below, I have made such
investigations of law, in each case as I have deemed appropriate as a basis for
such opinions.
In rendering the opinions expressed below, I have assumed, with your
permission, without independent investigation or inquiry, (a) the authenticity
of all documents submitted as
<PAGE>
-2-
originals, (b) the genuineness of all signatures on all documents that I
examined (other than those of Case Credit and officers of Case Credit) and (c)
the conformity to authentic originals of documents submitted as certified,
conformed or photostatic copies.
When the opinions expressed below are stated "to the best of my knowledge",
I have made reasonable and diligent investigation of the subject matters of such
opinions and have no reason to believe that there exist any facts or other
information that would render such opinions incomplete or incorrect.
Based upon and subject to the foregoing, I am of the opinion that:
Case Credit (a) is duly incorporated or organized and is validly
existing as a corporation or other legal entity in good standing under the laws
of the jurisdiction of its organization or formation, (b) has the corporate or
other power and authority to own, lease and operate its properties and to
conduct the business in which it is currently engaged and (c) is duly qualified
to transact business as a foreign corporation or other legal entity and is in
good standing or appropriately qualified in each jurisdiction where its
ownership, leasing, or operation of property or the conduct of its business
requires such qualification, except to the extent that the failure to be so
qualified and in good standing could not, in the aggregate, have a Material
Adverse Effect.
Case Credit has the corporate power and authority to make, deliver and
perform its obligations under the Case Credit Guarantee. Case Credit has taken
all necessary corporate action to authorize the execution, delivery and
performance of the Case Credit Guarantee and the Case Credit Guarantee has been
duly executed and delivered on behalf of Case Credit.
No consent or authorization of, notice to, filing with or other act by
or in respect of, any Governmental Authority or any other Person is required in
connection with the execution, delivery and performance by Case Credit, of the
Case Credit Guarantee.
The execution and delivery of the Case Credit Guarantee by Case
Credit, the performance by Case Credit of its obligations thereunder and the
compliance by the Case Credit with any of the provisions thereof, all as
provided therein, (a) will not violate any Requirement of Law, (b) will not
violate, to the best of my knowledge, any Contractual Obligation of Case Credit
in any respect that would reasonably be expected to have a material adverse
effect on (i) the business, operations, property or financial condition of Case
Credit and its Subsidiaries taken as a whole, (ii) the validity or
enforceability of the Case Credit Guarantee or (iii) the rights or remedies of
the Lenders under the Case Credit Guarantee, and (c) will not result in, or
require, the creation or imposition of any Lien on any of the assets or
properties of Case Credit pursuant to any such Requirement of Law or Contractual
Obligation.
No litigation, investigation or proceeding of or before any arbitrator
or Governmental Authority is pending or, to the best of my knowledge, threatened
by or against Case Credit or against any of its Subsidiaries or properties or
revenues (a) with respect to the Credit Agreement or any of the other Loan
Documents or (b) which would reasonably be expected to have a Material Adverse
Effect.
<PAGE>
-3-
To the best of my knowledge, none of Case Credit or any of its
Subsidiaries is in default under or with respect to any Contractual Obligations
in any respect which would reasonably be expected to have a Material Adverse
Effect.
I am a member of the bar of the State of Illinois and the opinions
expressed herein are based upon and are limited to the laws of such state, the
general corporate Law of the State of Delaware and the Federal laws of the
United States of America.
This opinion has been rendered solely for your benefit and for the benefit
of your Transferees pursuant to subsection 11.6 of the Credit Agreement in
connection with the Credit Agreement and the other Documents and the
transactions contemplated thereby and may not be used, circulated, quoted,
relied upon or otherwise referred to for any other purpose without my prior
written consent; provided, however, that this opinion may be delivered to your
regulators, accountants, attorneys and other professional advisers and may be
used in connection with any legal or regulatory proceeding relating to the
subject matter of this opinion.
Very truly yours,
<PAGE>
EXHIBIT G-2
TO REVOLVING CREDIT AGREEMENT
-----------------------------
[FORM OF OPINION OF ALBERTA COUNSEL TO BORROWER]
[EFFECTIVE DATE]
TO THE PARTIES LISTED ON
SCHEDULE "A" HERETO
Dear Sirs:
Re: Case Credit Ltd. - Revolving Credit Agreement dated August ., 1996
-----------------------------------------------------------------------
We have acted as counsel in the Province of Alberta to Case Credit Ltd., an
Alberta corporation (the "Borrower"), in connection with the Revolving Credit
Agreement dated as of August ., 1996 (the "Credit Agreement") among the
Borrower, the lenders party thereto (the "Lenders"), the Co-Agent named therein,
and The Bank of Nova Scotia, as administrative agent for the Lenders.
The opinions expressed below are furnished to you pursuant to subsection
6.1(c)(ii) of the Credit Agreement. Terms defined in the Credit Agreement shall,
when used herein, have the meanings given to them in the Credit Agreement.
For the purposes of giving the opinions set forth below, we have examined
originals, or copies certified or otherwise identified to our satisfaction, of
the following (the "Documents"):
the Credit Agreement;
the Revolving Credit Notes in the aggregate principal amount of
$500,000,000 issued pursuant to the Credit Agreement on the date hereof
(the "Initial Notes"); and
(c) the Powers of Attorney delivered to the Lenders on the date
hereof (the "Initial Powers").
We have also examined such corporate documents and records of the Borrower
and such other instruments and certificates and made such investigations of law
as we have deemed appropriate as a basis for such opinions.
We have assumed, with your permission and without independent investigation
or inquiry, (i) the authenticity of all documents submitted as originals, (ii)
the genuineness of all signatures on all documents examined by us (other than
those of the Borrower and officers of the Borrower) and (iii) the conformity to
authentic originals of documents submitted as certified, conformed, facsimile or
photostatic copies. We have also assumed that such documents are the legal,
valid and binding obligations of the parties thereto (other than the Borrower),
enforceable against them in accordance with their respective terms under the
laws by which they are
<PAGE>
-2-
expressed to be governed, and that each such party has complied and will comply
with all laws applicable to it in connection with the Credit Agreement.
With respect to certain matters of fact, we have relied upon certificates
of the Borrower or its officers as to such facts. Statements of fact set forth
in such certificates have not been independently verified by us. For the
purposes of the opinion expressed in paragraph 1 below, we have relied upon a
Certificate of Status of recent date with respect to the Borrower issued by the
Alberta Registrar of Corporations.
The phrase "to the best of our knowledge" in this opinion is to be
interpreted in accordance with the following express limitations: (i) such
phrase includes only actual knowledge which the members of our firm who have
directly participated in the representation of the Borrower in the course of the
transactions contemplated by the Credit Agreement have obtained; (ii) no special
inquiry, investigation or other diligence has been performed to determine the
existence or the absence of the facts qualified by such phrase; and (iii) no
inference as to our knowledge should be drawn from the fact that certain
partners of our firm are officers or directors of the Borrower.
We note that the Credit Agreement is governed by the laws of the Province
of Ontario. We are members of the Bar of the Province of Alberta and do not
practice in any other jurisdiction. The scope of our review is restricted to and
this opinion is rendered solely with respect to the laws of the Province of
Alberta and the federal laws of Canada having application therein as of the date
hereof ("Alberta Law"). In this opinion, "Alberta Courts" means the courts of
the Province of Alberta and the federal courts constituted by the Parliament of
Canada, the jurisdiction of which extends to disputes arising in the Province of
Alberta.
Based upon and subject to the foregoing and subject to the qualifications
set forth below, we are of the opinion that:
The Borrower (i) is duly organized, validly existing and in good standing
under the laws of the Province of Alberta, and (ii) has the corporate power and
authority to own, lease and operate its properties and to conduct the business
in which it is currently engaged.
The Borrower has the corporate power and authority to make, deliver and
perform its obligations under the Documents and has taken all necessary
corporate action to authorize the execution, delivery and performance of the
Documents. Except for consents, authorizations, approvals, notices and filings
which have been obtained, made or waived and are in full force and effect, no
consent or authorization of, approval by, notice to, filing with or other act by
or in respect of, any Governmental Authority or any other Person is required in
connection with the execution, delivery and performance by the Borrower, or the
validity or enforceability against the Borrower, of the Documents.
The Credit Agreement and each of the Initial Notes has been duly executed
and delivered by the Borrower. Assuming that the Credit Agreement and each of
the Initial Notes constitutes a legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its terms, under
the laws of the Province of Ontario, the Credit Agreement and
<PAGE>
-3-
each of the Initial Notes constitutes a legal, valid and binding obligation of
the Borrower, enforceable against the Borrower in accordance with its terms,
under Alberta Law.
Each of the Initial Powers has been duly executed and delivered and
constitutes a legal, valid and binding obligation of the Borrower enforceable
against the Borrower in accordance with its terms.
The Borrower has taken all necessary corporate action to authorize the
execution, delivery and performance, from time to time, of the Revolving Credit
Notes, Drafts, Acceptance Notes and Powers of Attorney contemplated by the
Credit Agreement and, upon the execution and delivery of a Revolving Credit
Note, Draft, Acceptance Note or Power of Attorney (and assuming (except in the
case of a Power of Attorney) the enforceability thereof under the laws of
Ontario), such instrument will constitute a legal, valid and binding obligation
of the Borrower enforceable against the Borrower in accordance with its terms,
under Alberta law.
The execution and delivery of the Documents, the performance by the
Borrower of its obligations thereunder, the consummation of the transactions
contemplated thereby and the compliance by the Borrower with the provisions
thereof, all as provided therein, (i) will not violate any Requirement of Law,
(ii) to the best of our knowledge, will not violate any Contractual Obligation
of the Borrower in any respect that would reasonably be expected to have a
Material Adverse Effect, and (iii) will not result in, or require the creation
or imposition of any Lien on any of its assets or properties pursuant to any
such Requirement of Law or, to the best of our knowledge, any such Contractual
Obligation.
No litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the best of our knowledge, threatened
by or against the Borrower or against any of its properties or revenues (a) with
respect to the Documents, or (b) which would reasonably be expected to have a
Material Adverse Effect.
To the best of our knowledge, the Borrower is not in default under or with
respect to any Contractual Obligations in any respect which would reasonably be
expected to have a Material Adverse Effect.
The opinions expressed herein are subject to the following qualifications:
enforcement of the Credit Agreement may be limited by applicable
bankruptcy, winding-up, liquidation, insolvency, fraudulent preference, re-
organization, moratorium or other laws or judicial decisions of whatsoever
nature or kind affecting the enforcement of creditors' rights and remedies
generally, or by general principles of equity which may apply to any
proceeding, whether in equity or at law, including, without limitation, the
powers of the court to stay proceedings before them, to stay the execution
of judgments and to relieve from the consequences of default;
equitable remedies, such as specific performance and injunctive
relief, are only available in the discretion of the court, and accordingly
may not be available as a remedy in any particular circumstance;
<PAGE>
-4-
the ability to recover certain costs, fees and expenses in
connection with litigation brought before an Alberta Court to enforce
provisions of the Credit Agreement is in the discretion of such court and
counsel fees are subject to taxation;
claims may become barred under laws regarding limitation of
actions;
the Judgment Interest Act (Alberta) limits interest on a judgment
debt;
determinations, calculations, demands, requests, instructions and
acts made by the Administrative Agent, Co-Agent, or Lenders in the exercise
of a discretion given to them under the Credit Agreement, or based upon the
practice or publication of certain rates by them, may not be enforceable if
made or performed unreasonably or arbitrarily, or if such practices or
rates are not ascertainable, and may not be treated as conclusive
notwithstanding contrary provisions in the Credit Agreement;
we express no opinion on provisions of the Credit Agreement (i)
directly or indirectly purporting to exclude unwritten variations,
amendments, waivers or consents, (ii) purporting to allow severance of
invalid, illegal or unenforceable provisions, (iii) dealing with the
waiving by the Borrower of legal, statutory or equitable rights or
doctrines, (iv) purporting to relieve the Administrative Agent, Co-Agents
or Lenders from the consequence of their own negligence, (v) dependent upon
mutual agreement at a later date or conditional on a future event, or (vi)
which provide or have the effect of providing for the payment of rates
and/or fees which may exceed the "criminal interest rate" provisions of the
Criminal Code (Canada);
provisions of the Credit Agreement which result in a higher rate
of interest after than before default may be unenforceable to the extent
that they represent a penalty rather than a genuine pre-estimate of damage;
and
enforceability of rights of indemnity may be limited to the
extent that any such indemnity is found by a court to indemnify a party
against the consequences of an unlawful act or is found to constitute a
penalty or be against public policy.
This opinion has been rendered solely for your benefit, and for the benefit
of your Transferees pursuant to section 11.6 of the Credit Agreement, in
connection with the Credit Agreement and the transactions contemplated thereby
and may not be used, circulated, quoted, relied upon or otherwise referred to
for any other purpose without our prior written consent; provided, however, that
this opinion may be delivered to your regulators, accountants, attorneys and
other professional advisers and may be used in connection with any legal or
regulatory proceeding relating to the subject matter of this opinion. This
opinion is given as of the date hereof and we disclaim any obligation or
undertaking to advise you or any such Transferee, regulator or professional
advisor of a change in law or fact affecting or bearing upon the opinions
rendered herein occurring after the date hereof which may come or be brought to
our attention.
Yours truly,
<PAGE>
EXHIBIT G-3
TO REVOLVING CREDIT AGREEMENT
-----------------------------
[FORM OF OPINION OF ONTARIO COUNSEL TO BORROWER]
[EFFECTIVE DATE]
TO THE PARTIES LISTED ON
SCHEDULE "A" HERETO
Dear Sirs:
Re: Case Credit Ltd. - Revolving Credit Agreement dated August ., 1996
-----------------------------------------------------------------------
We have acted as counsel in the Province of Ontario to Case Credit Ltd., an
Alberta corporation (the "Borrower"), in connection with the Revolving Credit
Agreement dated as of August ., 1996 (the "Credit Agreement") among the
Borrower, the lenders party thereto (the "Lenders"), the Co-Agent named therein,
and The Bank of Nova Scotia, as administrative agent for the Lenders.
The opinions expressed below are furnished to you pursuant to subsection
6.1(c)(iii) of the Credit Agreement. Terms defined in the Credit Agreement
shall, when used herein, have the meanings given to them in the Credit
Agreement.
For the purposes of giving the opinions set forth below, we have examined
originals, or copies certified or otherwise identified to our satisfaction, of
the following (the "Documents"):
the Credit Agreement;
the Revolving Credit Notes in the aggregate principal amount of
$500,000,000 issued pursuant to the Credit Agreement on the date hereof
(the "Initial Notes"); and
the Powers of Attorney delivered to the Lenders on the date
hereof (the "Initial Powers").
We have also examined such corporate documents and records of the Borrower
and such other instruments and certificates and made such investigations of law
as we have deemed appropriate as a basis for such opinions.
We have assumed, with your permission and without independent investigation
or inquiry, (i) the authenticity of all documents submitted as originals, (ii)
the genuineness of all signatures on all documents examined by us and (iii) the
conformity to authentic originals of documents submitted as certified,
conformed, facsimile or photostatic copies. We have also assumed that such
documents are the legal, valid and binding obligations of the parties thereto
(other than the Borrower), enforceable against them in accordance with their
respective terms.
<PAGE>
-2-
With respect to certain matters of fact, we have relied upon certificates
of the Borrower or its officers as to such facts. Statements of fact set forth
in such certificates have not been independently verified by us.
The phrase "to the best of our knowledge" in this opinion is to be
interpreted in accordance with the following express limitations: (i) such
phrase includes only actual knowledge which the members of our firm who have
directly participated in the representation of the Borrower in the course of the
transactions contemplated by the Credit Agreement have obtained; and (ii) no
special inquiry, investigation or other diligence has been performed to
determine the existence or the absence of the facts qualified by such phrase.
We are qualified to render opinions as to the laws of the Province of
Ontario and the laws of Canada applicable therein and, accordingly, except in
the reliance on the Alberta Counsel Opinion (as defined below), we express no
opinions as to the laws of any other jurisdiction. In this opinion, "Ontario
Courts" means the courts of the Province of Ontario and the federal courts
constituted by the Parliament of Canada for the better administration of the
laws of Canada, the jurisdiction of which extends to disputes arising in the
Province of Ontario.
With respect to our opinions as they relate to the Initial Powers which
purport to be governed by the laws of the Province of Alberta and as to certain
matters relating to the Borrower governed by the laws of the Province of
Alberta, we have relied upon the opinion dated today (the "Alberta Counsel
Opinion") of Messrs. Milner Fenerty, Alberta counsel to the Borrower. Such
opinion is in form and scope satisfactory to us and both you and we are
justified in relying thereon. To the extent that the Alberta Counsel Opinion is
based upon any assumption or is made subject to any limitation, qualification or
exception, our opinions given in reliance thereon are based upon such
assumptions and are subject to such limitations, qualifications or exceptions. A
copy of the Alberta Counsel Opinion has been provided to you.
Based upon and subject to the foregoing and subject to the qualifications
set forth below, we are of the opinion that:
The Borrower (i) is duly organized, validly existing and in good standing
under the laws of the Province of Alberta, and (ii) has the corporate power and
authority to own, lease and operate its properties and to conduct the business
in which it is currently engaged.
The Borrower has the corporate power and authority to make, deliver and
perform its obligations under the Documents and has taken all necessary
corporate action to authorize the execution, delivery and performance of the
Documents. Except for consents, authorizations, approvals, notices and filings
which have been obtained, made or waived and are in full force and effect, no
consent or authorization of, approval by, notice to, filing with or other act by
or in respect of, any Governmental Authority or any other Person is required in
connection with the execution, delivery and performance by the Borrower, or the
validity or enforceability against the Borrower, of the Documents.
<PAGE>
-3-
Each of the Documents has been duly executed and delivered by the Borrower
and constitutes a legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms.
The Borrower has taken all necessary corporate action to authorize the
execution, delivery and performance, from time to time, of the Revolving Credit
Notes, Drafts, Acceptance Notes and Powers of Attorney contemplated by the
Credit Agreement and, upon the execution and delivery of a Revolving Credit
Note, Draft, Acceptance Note or Power of Attorney, such instrument will
constitute a legal, valid and binding obligation of the Borrower enforceable
against the Borrower in accordance with its terms.
The execution and delivery of the Documents, the performance by the
Borrower of its obligations thereunder, the consummation of the transactions
contemplated thereby and the compliance by the Borrower with the provisions
thereof, all as provided therein, (i) will not violate any Requirement of Law,
(ii) to the best of our knowledge, will not violate any Contractual Obligation
of the Borrower in any respect that would reasonably be expected to have a
Material Adverse Effect, and (iii) will not result in, or require the creation
or imposition of any Lien on any of its assets or properties pursuant to any
such Requirement of Law or, to the best of our knowledge, any such Contractual
Obligation.
We have not been retained by or on behalf of the Borrower in connection
with any litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority which is pending or threatened by or against the Borrower
or any of its properties or revenues and which could reasonably be expected to
have a Material Adverse Effect and, to the best of our knowledge, the Borrower
is not in default under or in respect of any Contractual Obligation in any
respect which would reasonably be expected to have a Material Adverse Effect.
No litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the best of our knowledge, threatened
by or against the Borrower or against any of its properties or revenues (a) with
respect to the Documents, or (b) which would reasonably be expected to have a
Material Adverse Effect.
To the best of our knowledge, the Borrower is not in default under or with
respect to any Contractual Obligations in any respect which would reasonably be
expected to have a Material Adverse Effect.
The opinions expressed herein are subject to the following qualifications:
enforcement of the Documents may be limited by applicable
bankruptcy, winding-up, liquidation, insolvency, fraudulent preference, re-
organization, moratorium or other laws or judicial decisions of whatsoever
nature or kind affecting the enforcement of creditors' rights and remedies
generally, or by general principles of equity which may apply to any
proceeding, whether in equity or at law, including, without limitation, the
powers of the court to stay proceedings before them, to stay the execution
of judgments and to relieve from the consequences of default;
<PAGE>
-4-
equitable remedies, such as specific performance and injunctive
relief, are only available in the discretion of the court, and accordingly
may not be available as a remedy in any particular circumstance;
the ability to recover certain costs, fees and expenses in
connection with litigation brought before an Ontario Court to enforce
provisions of the Credit Agreement is in the discretion of such court and
counsel fees are subject to taxation;
claims may become barred under laws regarding limitation of
actions;
determinations, calculations, demands, requests, instructions and
acts made by the Administrative Agent, Co-Agent, or Lenders in the exercise
of a discretion given to them under the Credit Agreement, or based upon the
practice or publication of certain rates by them, may not be enforceable if
made or performed unreasonably or arbitrarily, or if such practices or
rates are not ascertainable, and may not be treated as conclusive
notwithstanding contrary provisions in the Credit Agreement;
we express no opinion or provisions of the Credit Agreement (i)
directly or indirectly purporting to exclude unwritten variations,
amendments, waivers or consents, (ii) purporting to allow severance of
invalid, illegal or unenforceable provisions, (iii) dealing with the
waiving by the Borrower of legal, statutory or equitable rights or
doctrines, (iv) purporting to relieve the Administrative Agent, Co-Agents
or Lenders from the consequence of their own negligence, (v) dependent upon
mutual agreement at a later date or conditional on a future event, or (vi)
which provide or have the effect of providing for the payment of rates
and/or fees which may exceed the "criminal interest rate" provisions of the
Criminal Code (Canada);
provisions of the Credit Agreement which result in a higher rate
of interest after than before default may be unforceable to the extent that
they represent a penalty rather than a genuine pre-estimate of damages; and
enforceability of rights of indemnity may be limited to the
extent that any such indemnity is found by a court to indemnify a party
against the consequences of an unlawful act or is found to constitute a
penalty or be against public policy.
This opinion has been rendered solely for your benefit, and for the benefit
of your Transferees pursuant to section 11.6 of the Credit Agreement, in
connection with the Credit Agreement and the transactions contemplated thereby
and may not be used, circulated, quoted, relied upon or otherwise referred to
for any other purpose without our prior written consent; provided, however, that
this opinion may be delivered to your regulators, accountants, attorneys and
other professional advisers and may be used in connection with any legal or
regulatory proceeding relating to the subject matter of this opinion. This
opinion is given as of the date hereof and we disclaim any obligation or
undertaking to advise you or any such Transferee, regulator or professional
advisor of a change in law or fact affecting or bearing upon the
<PAGE>
-5-
opinions rendered herein occurring after the date hereof which may come or be
brought to our attention.
Yours truly,
<PAGE>
EXHIBIT G-4
TO REVOLVING CREDIT AGREEMENT
-----------------------------
[FORM OF OPINION OF COUNSEL TO GUARANTOR]
[EFFECTIVE DATE]
TO: The Bank of Nova Scotia,
as Administrative Agent
under the Credit Agreement
referred to below
The Lenders named in Schedule 1
that are parties to said Credit Agreement
Dear Sirs:
RE: CASE CREDIT LTD. - REVOLVING CREDIT AGREEMENT DATED AUGUST ., 1996
-----------------------------------------------------------------------
We have acted as special Wisconsin counsel to Case Credit Corporation
("Case Credit") in connection with the delivery by Case Credit of the Guarantee
dated as of August ., 1996 by Case Credit in favor of The Bank of Nova Scotia,
as Administrative Agent (as hereinafter defined) (the "Case Credit Guarantee")
pursuant to the Revolving Credit Agreement dated as of August ___, 1996 (the
"Credit Agreement") among Case Credit Ltd., the lenders party thereto (the
"Lenders"), the co-agents named therein, and The Bank of Nova Scotia, as
administrative agent for the Lenders (the "Administrative Agent").
We have not reviewed any of the underlying loan documents and we have
not represented Case Credit in connection with the underlying loan transactions.
This opinion is delivered to you pursuant to subsection 6.1(c)(iv) of
the Credit Agreement. Unless otherwise defined herein, capitalized definitional
terms used herein which are defined in the Credit Agreement shall have the
meanings given to them in the Credit Agreement.
In arriving at the opinions expressed below, we have examined the
following documents:
a copy of the Case Credit Guarantee signed by Case Credit; and
a copy of the opinion letter of Richard S. Brennan, counsel to Case
Credit, addressed to you and dated the date hereof, in respect of the Case
Credit Guarantee.
In rendering the opinions expressed below, we have assumed, with your
permission, without independent investigation or inquiry, (a) the authenticity
of all documents submitted to us as originals, (b) the genuineness of all
signatures on all documents that we examined and (c) the conformity to authentic
originals of documents submitted to us as certified, conformed or photostatic
copies.
<PAGE>
-2-
Insofar as our opinions expressed below relate to the matters set
forth in the above-mentioned opinion letter of Richard S. Brennan, we have
assumed without independent investigation the correctness of the matters set
forth in such opinion and our opinion is subject to the assumptions,
qualifications and limitations set forth in such opinion letter.
We have also assumed that the Case Credit Guarantee has been duly
authorized, executed and delivered by all parties thereto (including Case
Credit), that Case Credit is duly incorporated and validly existing under the
laws of its jurisdiction of incorporation and that Case Credit has the corporate
power and authority and legal right to execute, deliver and perform its
obligations under the Case Credit Guarantee, and that such execution, delivery
and performance by Case Credit do not contravene its certificate of
incorporation or by-laws or similar organizational documents, or violate or
require any consent not obtained under, any applicable law or regulation or any
order, writ, injunction or decree of any court or other Governmental Authority
and do not violate or require any consent not obtained under, any Contractual
Obligation applicable to or binding upon Case Credit.
Based on the foregoing, and subject to the qualifications and comments
set forth below, we are of the opinion that insofar as the laws of the State of
Wisconsin are concerned:
The Case Credit Guarantee constitutes a legal, valid and binding
obligation of Case Credit, enforceable against Case Credit in accordance with
its terms.
Our opinion is subject to and limited by: (i) applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or transfer, and
other similar laws and equitable principles of general application affecting the
rights of creditors; (ii) the availability or efficacy of specific performance,
injunctive relief or any other equitable remedy or principle, and (iii)
applicable laws and judicial decisions of the State of Wisconsin, which may
restrict the enforcement of certain of the waivers, consents, rights, remedies
and other provisions of the Case Credit Guarantee, provided that with respect to
subclause (iii) above the foregoing limitation should not invalidate the Case
Credit Guarantee or, in our opinion, materially interfere with the practical
realization of the rights provided thereby, other than the consequences of delay
arising from the application of such laws or decisions.
Applicable laws and judicial decisions may require the parties to
exercise their rights under the Case Credit Guarantee in good faith and in a
commercially reasonable manner, and a court may not strictly enforce certain
covenants therein if it concludes that such enforcement would be unreasonable
under the existent circumstances.
Monetary obligations expressed to be payable in a foreign currency are
subject to the Uniform Foreign-Money Claims Act, Wis. Stats, (S) 806.30 to
806.44.
We call to your attention that case law suggests that the payment by a
parent corporation of a debt for the benefit of an insolvent subsidiary can be a
fraudulent conveyance. In re Rodriguez, 77 B.R. 939 (Bkrtcy. S.D. Fla. 1987).
The same analysis may apply to a guarantee. Thus, in connection with our
opinions expressed herein, we have assumed, and understand that you have
satisfied yourselves, that (i) Case Credit is not insolvent; (ii) Case
<PAGE>
-3-
Credit will not be rendered insolvent by the transactions contemplated by the
Case Credit Guarantee, or any one of them; (iii) after giving effect to such
transactions, Case Credit will not be left with an unreasonably small capital
with which to engage in its anticipated business; and (iv) Case Credit does not
intend to or believe that it will incur debts beyond its ability to pay as they
mature.
The opinions expressed herein are rendered as of the date hereof and
we assume no obligation to update or supplement this opinion to reflect any
events or state of facts that may hereafter come to our attention, or any
changes in laws or court decisions that may hereafter occur.
With certain exceptions we are members of the Bar of the State of
Wisconsin only and do not hold ourselves out as experts on the laws of any other
state or of any foreign country.
This opinion is solely for the benefit of the addressees hereof and
their Transferees pursuant to Section 11.6 of the Credit Agreement in connection
with the delivery of the Case Credit Guarantee and may not be used for any other
purpose or furnished to, used by, referred to by or relied on by any other
person or entity, or copied, quoted or referred to in any other report or
document, or filed with any governmental authority, without our prior written
consent.
Very truly yours,
FOLEY & LARDNER
<PAGE>
EXHIBIT 10(d)
- -------------------------------------------------------------------------------
SECOND AMENDMENT AND CONSENT
among
CASE EQUIPMENT LOAN TRUST
1994-B,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
BANK OF MONTREAL,
THE BANK OF NEW YORK,
THE BANK OF NOVA SCOTIA,
BANQUE NATIONALE DE PARIS, CHICAGO BRANCH,
CAISSE NATIONALE DE CREDIT AGRICOLE,
CANADIAN IMPERIAL BANK OF COMMERCE,
CITIBANK, N.A.,
COMMERZBANK AG,
CREDIT SUISSE,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
NATIONSBANK OF TEXAS, N.A.,
ROYAL BANK OF CANADA,
THE TORONTO-DOMINION BANK,
U.S. NATIONAL BANK OF OREGON
and
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
Co-Agents, and
THE CHASE MANHATTAN BANK,
as Administrative Agent
DATED AS OF AUGUST 28, 1996
- -------------------------------------------------------------------------------
<PAGE>
SECOND AMENDMENT AND CONSENT, dated as of August 28, 1996 (this
"Amendment"), among CASE EQUIPMENT LOAN TRUST 1994-B, a Delaware business trust
(the "Borrower"), the financial institutions listed as Lenders on the signature
pages of this Amendment (individually, a "Lender," and collectively, the
"Lenders") and THE CHASE MANHATTAN BANK, a New York banking corporation, as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent"), amending the Liquidity Agreement, dated as of June 23, 1994, (the
"Liquidity Agreement"), as amended by the First Amendment to the Liquidity
Agreement, dated as of August 1, 1994, among the Borrower, the financial
institutions parties to the Liquidity Agreement on the date hereof (the
"Existing Lenders") and the Administrative Agent.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower has requested the Existing Lenders to agree to
amend the Liquidity Agreement to, among other things, increase the Aggregate
Commitment thereunder to $750,000,000, extend the Expiration Date (as each of
such terms is defined in Appendix A to the Liquidity Agreement) and change
certain pricing provisions thereof as set forth in this Amendment;
WHEREAS, certain of the Existing Lenders are willing to agree to the
amendments requested by the Borrower, and the other Existing Lenders, each of
which is listed as an "Exiting Lender" on Annex A to this Amendment
(individually, an "Exiting Lender", and collectively, the "Exiting Lenders"),
will cease to be Lenders under the Liquidity Agreement on the Effective Date (as
defined in Section 9 of this Amendment); and
WHEREAS, certain financial institutions that are not now Lenders
parties to the Liquidity Agreement, each of which is listed as a "New Lender" on
Annex A to this Amendment (individually, a "New Lender", and collectively, the
"New Lenders"), will become Lenders on the Effective Date, and the amounts of
the Commitments (as defined in Appendix A to the Liquidity Agreement) of certain
of the Existing Lenders under the Liquidity Agreement will change on the
Effective Date;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used in this Amendment shall
have the respective meanings assigned to such terms in Appendix A to the
Liquidity Agreement unless otherwise defined herein.
2. Amendments to the Liquidity Agreement. The Liquidity Agreement is
hereby amended as follows:
<PAGE>
(a) Section 2.9 is hereby amended by deleting the reference to ".25%"
in the sixth line of said Section and by inserting ".125%" in lieu thereof;
and
(b) Section 2.13 is hereby amended by deleting the first sentence of
subsection (b) of such Section in its entirety and inserting in lieu
thereof the following new sentence:
"Each ABR Loan shall bear interest at a rate per annum equal to the
ABR plus the Applicable Margin, from and including the date such Loan
(or portion thereof) is made or converted into an ABR Loan to but
excluding the date of payment or conversion into a Eurodollar Loan.";
and
(c) Section 10.6 is hereby amended by deleting the reference to
"$5,000,000" in the twentieth line of subsection (c) of said Section and by
inserting "$10,000,000" in lieu thereof.
3. Amendments to Appendix A to the Liquidity Agreement. Appendix A
to the Liquidity Agreement is hereby amended as follows:
(a) The definition of "Applicable Margin" is hereby amended to read
in its entirety as follows:
"`Applicable Margin' shall mean (i) on any date when the
aggregate principal amount of the Loans outstanding is less than or
equal to 50% of the Aggregate Commitment, with respect to (A) any
Eurodollar Loan, .375% per annum and (B) any ABR Loan, 0% per annum,
and (ii) on any date when the aggregate principal amount of the Loans
outstanding is greater than 50% of the Aggregate Commitment, with
respect to (A) any Eurodollar Loan, .50% per annum and (B) any ABR
Loan, .125% per annum.";
(b) The definition of "Available Purchase Amount" is hereby amended
by deleting the reference to "$625,000,000" in said definition and
inserting "$781,250,000" in lieu thereof;
(c) The definition of "Expiration Date" is hereby amended by deleting
the reference to "July 1997" in said definition and inserting "August 1999"
in lieu thereof;
(d) The definition of "Expiry Date" is hereby amended by deleting the
reference to "July 1997" in said definition and inserting "August 1999" in
lieu thereof;
(e) The definition of "Maximum Aggregate Commitment" is hereby
amended by deleting the reference to "$600,000,000" in said definition and
inserting "$750,000,000" in lieu thereof;
<PAGE>
(f) The definition of "Obligor Limit" is hereby amended by deleting
the reference to "$6,000,000" in said definition and inserting "$7,500,000"
in lieu thereof;
(g) The definition of "Reference Banks" is hereby amended to read in
its entirety as follows:
"`Reference Banks' shall mean the principal London offices of The
Chase Manhattan Bank, Morgan Guaranty Trust Company of New York, and
Credit Suisse.";
(h) The definition of "Settlement Date" is hereby amended to read in
its entirety as follows:
"`Settlement Date' shall mean the 13th day of each month or, if
any such day is not a Business Day, the next succeeding Business
Day."; and
(i) The definition of "Wind-Down Event" is hereby amended by deleting
the reference to "$25,000,000" in clause (vii) of said definition and
inserting "$60,000,000" in lieu thereof.
4. Amendment to Schedule I. Schedule I to the Liquidity Agreement
is hereby amended and restated to read in its entirety as set forth on Schedule
I to this Amendment.
5. New Lenders; Exiting Lenders. (a) As of the Effective Date, the
New Lenders shall become Lenders parties to the Liquidity Agreement, and the
terms "Lender" and "Lenders" as used in the Liquidity Agreement shall be deemed
to include each New Lender. Each New Lender (i) hereby appoints and authorizes
the Administrative Agent to take such action as agent on its behalf and to
exercise such powers under the Liquidity Agreement and the other Basic Documents
as provided by the terms thereof and in accordance with Section 9 of the
Liquidity Agreement and (ii) agrees that as of the Effective Date it will
perform in accordance with their terms all of the obligations which by the terms
of the Liquidity Agreement and the other Basic Documents are required to be
performed by it as a Lender. As of the Effective Date, each New Lender shall
have all the rights of a Lender under the Liquidity Agreement.
(b) As of the Effective Date, the Commitments of each of the Exiting
Lenders shall be terminated, and the Exiting Lenders shall no longer be parties
to the Liquidity Agreement, provided that any indemnities or other agreements
under the Liquidity Agreement or any other Basic Document which by their terms
survive repayment of amounts payable thereunder shall survive repayment pursuant
hereto with respect to the Exiting Lenders.
<PAGE>
6. No Other Amendments. Except as expressly stated herein, the
provisions of the Liquidity Agreement and the Exhibits, Schedules and Appendices
thereto are and shall remain in full force and effect.
7. Consent to First Amendment to the Receivables Purchase Agreement.
Each of the Administrative Agent and the Lenders hereby consents to the terms of
the First Amendment to the Receivables Purchase Agreement substantially in the
form of Exhibit A to this Amendment.
8. Consent to First Amendment to the Loan and Security Agreement.
Each of the Administrative Agent and the Lenders hereby consents to the terms of
the First Amendment to the Loan and Security Agreement substantially in the form
of Exhibit B to this Amendment.
9. Consent to First Amendment to Certificate Purchase Agreement. (a)
Each of the Administrative Agent and the Lenders hereby consents to the terms of
the First Amendment to Certificate Purchase Agreement, dated as of August 23,
1996, among Monte Rosa Capital Corporation, Union Bank of Switzerland, New York
Branch, and Case Receivables II Inc., as Depositor and as Seller, substantially
in the form of Exhibit C-1 to this Amendment.
(b) Each of the Administrative Agent and the Lenders hereby consents
to the terms of the First Amendment to Certificate Purchase Agreement, dated as
of August 23, 1996, among Monte Rosa Capital Corporation, Union Bank of
Switzerland, New York Branch, and Case Receivables II Inc., as Depositor,
substantially in the form of Exhibit C-2 to this Amendment.
10. Conditions Precedent to Effectiveness. This Amendment shall be
effective on and as of the date (the "Effective Date") when this Amendment has
been duly executed and delivered by a duly authorized officer of the Owner
Trustee, on behalf of the Borrower, and duly executed and delivered by the
Administrative Agent and upon the satisfaction of each of the following
conditions precedent:
(a) Amendment. The Administrative Agent shall have received
counterparts of this Amendment, duly executed and delivered by each of the
Lenders;
(b) Confirmation of Ratings. The Administrative Agent shall have
received confirmation from each of the Rating Agencies that the amendments
contemplated by this Amendment will not result in a withdrawal or downgrade
of the ratings of the outstanding Commercial Paper Notes or the Trust
Certificates;
(c) Trust Certificates. Trust Certificates having an Aggregate OTC
Amount at least equal to the Required OTC Amount shall have been issued;
<PAGE>
(d) Opinions. The Administrative Agent shall have received (i) an
opinion of Mayer, Brown & Platt, counsel to Case Credit Corporation and
Case Receivables II Inc., dated the Effective Date, in form and substance
satisfactory to the Administrative Agent covering such matters as the
Administrative Agent may reasonably request; (ii) an opinion of Richards,
Layton & Finger, counsel to the Borrower, dated the Effective Date, in form
and substance satisfactory to the Administrative Agent covering such
matters as the Administrative Agent may reasonably request; (iii) an
opinion of Simpson Thacher & Bartlett, special New York counsel to the New
Lenders, dated the Effective Date, substantially to the effect set forth in
Exhibit D to this Amendment; and (iv) an opinion of counsel to each New
Lender which is not a national bank or New York bank (which counsel shall
be satisfactory to each of the Rating Agencies), dated the Effective Date,
substantially to the effect set forth in Exhibit E to this Amendment and,
if such New Lender is a branch of a Person organized under the laws of a
jurisdiction other than the United States of America or any State thereof,
an opinion of counsel to each such New Lender, dated the Effective Date,
substantially to the effect set forth in Exhibit F to this Amendment;
(e) Closing Certificates. The Administrative Agent shall have
received from each Existing Lender a certificate, dated the Effective Date,
duly executed by an authorized officer thereof, substantially in the form
of Exhibit G to this Amendment; and
(f) Proceedings. All corporate and other proceedings and all other
documents and legal matters in connection with the transactions
contemplated by this Amendment shall be satisfactory in form and substance
to the Administrative Agent and its counsel.
The Administrative Agent will notify the Rating Agencies of the effectiveness of
this Amendment.
11. Representations and Warranties. The Borrower represents and
warrants that:
(a) the representations and warranties of the Borrower contained in
the Liquidity Agreement (as amended hereby) are true and correct in all
material respects on and as of the Effective Date as if made on and as of
the Effective Date; and
(b) no Default has occurred and is continuing on and as of the
Effective Date.
12. Governing Law; Counterparts. (a) THIS AMENDMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) This Amendment may be executed in any number of counterparts, all
of which counterparts, taken together, shall constitute one and the same
instrument.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered by their respective proper and duly authorized officers
as of the day and year first above written.
CASE EQUIPMENT LOAN TRUST 1994-B
By: The Chase Manhattan Bank (USA),
not in its individual capacity
but solely as Owner Trustee
By:
--------------------------
Title:
THE CHASE MANHATTAN BANK, as Lender and Administrative
Agent
By: /s/ Steve Faliski
-------------------------------
Title:
BANK OF MONTREAL
By: /s/ Michael Pincus
-------------------------------
Title:
THE BANK OF NEW YORK
By: /s/ Mark Farnilo
-------------------------------
Title:
THE BANK OF NOVA SCOTIA
By: /s/ John Malloy
-------------------------------
Title:
<PAGE>
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ David Balderach
------------------------------
Title:
CITIBANK, N.A.
By: /s/ Richard Levin
------------------------------
Title:
COMMERZBANK AG
By: /s/ Paul Karlih
------------------------------
Title:
CREDIT SUISSE
By: /s/ Roger Saylor
------------------------------
Title:
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK
By: /s/ Douglas Cruishank
------------------------------
Title:
<PAGE>
NATIONSBANK, N.A.
By: /s/ MATTHEW WALTERS
------------------------------
Title:
ROYAL BANK OF CANADA
By: /s/ DENHAM TURTON
------------------------------
Title:
TORONTO DOMINION (TEXAS), INC.
By: /s/ STEVEN WATTS
------------------------------
Title:
THE SANWA BANK, LIMITED, CHICAGO BRANCH
By: /s/ JEFFREY ORR
------------------------------
Title:
CAISSE NATIONALE DE CREDIT AGRICOLE
By: /s/ LAWRENCE GRANT
------------------------------
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD
By: /s/ WAYNE YAMANAKA
------------------------------
Title:
<PAGE>
THE NORTHERN TRUST COMPANY
By: /s/ JULIE WIGDALE
------------------------------
Title:
BANQUE NATIONALE DE PARIS, CHICAGO BRANCH
By: /s/ JO ELLEN BENDER
------------------------------
Title:
U.S. NATIONAL BANK OF OREGON
By: /s/ TOM LEE
------------------------------
Title:
WESTDEUTSCHE LANDESBANK GIROZENTRALE
By: /s/ MATT TALLO
------------------------------
Title:
BANK AUSTRIA AKTIENGESELLSCHAFT
By: /s/ JEANINE BALL
------------------------------
Title:
<PAGE>
AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED
By: /s/ KEN SCHAEFER
-----------------------------
Title:
BANK OF HAWAII
By: /s/ DONNA PARKER
------------------------------
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED-
CHICAGO BRANCH
By: /s/ STEVE RYAN
------------------------------
Title:
NORDDEUTSCHE LANDESBANK GIROZENTRALE-
CAYMAN ISLANDS BRANCH
By: /s/ PETER FRANK-KITT
------------------------------
Title:
<PAGE>
ANNEX A
-------
EXITING LENDERS
AND
NEW LENDERS
Exiting Lenders
- ---------------
Banque Francaise du Commerce Exterieur
The Dai-Ichi Kangyo Bank, Ltd.
Deutsche Bank AG
Dresdner Bank A.G.
Peoples Security Life Insurance Company
New Lenders
- -----------
The Industrial Bank of Japan, Limited-Chicago Branch
Norddeutsche Landesbank Girozentrale, Cayman Islands Branch
and/or New York Branch
The Toronto-Dominion Bank
<PAGE>
SCHEDULE I
----------
COMMITMENTS
<TABLE>
<CAPTION>
Name and Address Amount of
of Lender Commitment
- ---------------- ------------
<S> <C>
THE CHASE MANHATTAN BANK $65,000,000
10 S. LaSalle Street
23rd Floor
Chicago, IL 60603
Cynthia Berkshire
Tel # 312-807-4029
Fax # 312-346-9310
CAISSE NATIONALE DE CREDIT AGRICOLE $50,000,000
55 East Monroe Street
Chicago, IL 60603
Laurence Grant
Tel # 312-917-7456
Fax # 312-372-2830
CREDIT SUISSE $50,000,000
12 East 49th Street
New York, NY 10017
Roger Saylor
Tel # 212-238-5378
Fax # 212-238-5332
MORGAN GUARANTY TRUST COMPANY OF NEW YORK $50,000,000
60 Wall Street - 22nd Floor
New York, NY 10260
Charles King
Tel # 212-648-7138
Fax # 212-648-5336
THE BANK OF NOVA SCOTIA $40,000,000
600 Peachtree Street NE
Suite 2700
Atlanta, GA 30308
Shannon Law
Tel # 404-877-1561
Fax # 404-888-8998
</TABLE>
<PAGE>
2
<TABLE>
<CAPTION>
Name and Address Amount of
of Lender Commitment
- ---------------- ------------
<S> <C>
CANADIAN IMPERIAL BANK OF COMMERCE $40,000,000
909 Fannin Street
Suite 1200
Houston, TX 77010
David Balderach
Tel # 713-655-5218
Fax # 713-650-3727
CITIBANK, N.A. $40,000,000
200 South Wacker Drive
31st Floor
Chicago, IL 60606
Peter Koesler
Tel # 312-993-3226
Fax # 312-993-1050
COMMERZBANK AG $40,000,000
311 South Wacker Drive
Chicago, IL 60606
Helmut Tollner
Tel # 312-435-1000
Fax # 312-436-1485
NATIONSBANK, N.A. $40,000,000
233 South Wacker Drive
Suite 2800
Chicago, IL 60606
Percy L. Berger
Tel # 312-234-5642
Fax # 312-234-5601
U.S. NATIONAL BANK OF OREGON $40,000,000
555 S.W. Oak Street
Suite 400
Portland, OR 97204
Thomas Lee
Tel # 503-275-5381
Fax # 503-275-4267
</TABLE>
<PAGE>
3
<TABLE>
<CAPTION>
Name and Address Amount of
of Lender Commitment
- ---------------- ------------
<S> <C>
WESTDEUTSCHE LANDESBANK GIROZENTRALE $40,000,000
181 West Madison Street
Suite 4850
Chicago, IL 60602
John Hall
Tel # 312-553-1600
Fax # 312-553-1609
BANK OF MONTREAL $35,000,000
115 South LaSalle Street
Chicago, IL 60603
Michael Pincus
Tel # 312-750-1797
Fax # 312-750-6057
THE BANK OF NEW YORK $30,000,000
One Wall Street
19th Floor
New York, NY 10286
Wesley Towns
Tel # 212-635-1197
Fax # 212-635-1208
BANQUE NATIONALE DE PARIS, CHICAGO BRANCH $30,000,000
209 South LaSalle Street
Suite 500
Chicago, IL 60604
Jo Ellen Bender
Tel # 312-977-2225
Fax # 312-977-1380
ROYAL BANK OF CANADA $30,000,000
One Financial Square
New York, NY 10005-3531
Kathleen O'Neill
Tel # 212-428-6284
Fax # 212-428-2304
</TABLE>
<PAGE>
4
<TABLE>
<CAPTION>
Name and Address Amount of
of Lender Commitment
- ---------------- ------------
<S> <C>
THE TORONTO-DOMINION BANK $30,000,000
70 West Madison, Suite 6430
Chicago, IL 60602-4227
Stephen Watts
Tel # 312-993-3407
Fax # 312-993-3414
BANK AUSTRIA AKTIENGESELLSCHAFT $20,000,000
565 Fifth Avenue
28th Floor
New York, NY 10017
Janine Bell
Tel # 212-880-1075
Fax # 212-880-1060
THE BANK OF TOKYO-MITSUBISHI, LTD. $20,000,000
227 West Monroe Street
S-2300
Chicago, IL 60606
Wayne Yamanaka
Tel # 312-696-4664
Fax # 312-696-4535
AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED $10,000,000
1177 Avenue of the Americas
New York, NY 10036-2798
Ken Schaefer
Tel # 212-801-9124
Fax # 212-801-9131
BANK OF HAWAII $10,000,000
1839 S. Alma School Road
Suite 150
Mesa, AZ 85210
Donna Parker
Tel # 602-752-8012
Fax # 602-752-8007
</TABLE>
<PAGE>
5
<TABLE>
<CAPTION>
Name and Address Amount of
of Lender Commitment
- ---------------- ------------
<S> <C>
THE INDUSTRIAL BANK OF JAPAN, LIMITED-
CHICAGO BRANCH $10,000,000
AT&T Corporate Center
227 West Monroe Street
Chicago, IL 60606
Mary Osako
Tel # 312-855-8261
Fax # 312-855-8200
NORDDEUTSCHE LANDESBANK GIROZENTRALE- $10,000,000
CAYMAN ISLANDS BRANCH AND/OR
NEW YORK BRANCH
1270 Avenue of the Americas
14th Floor
New York, NY 10020
(Ms.) Petra Frank-Witt
Tel # 212-332-8608
Fax # 212-332-8660
THE NORTHERN TRUST COMPANY $10,000,000
50 South LaSalle Street
B/11
Chicago, IL 60675
Julie Wigdale
Tel # 312-444-4569
Fax # 312-444-3508
THE SANWA BANK, LIMITED, CHICAGO BRANCH $10,000,000
10 South Wacker Drive
Chicago, IL 60606
Gordon Holtby
Tel # 312-993-4325
Fax # 312-346-6677
------------
Maximum Aggregate Commitment $750,000,000
</TABLE>
<PAGE>
EXHIBIT A
---------
FIRST AMENDMENT (this "Amendment"), dated as of August __, 1996, to
the Receivables Purchase Agreement, dated as of August 1, 1994 (the "Receivables
Purchase Agreement"), between Case Receivables II Inc. ("CRC") and Case Credit
Corporation ("Case Credit").
W I T N E S S E T H :
-------------------
WHEREAS, Case Credit and CRC are parties to the Receivables Purchase
Agreement and desire to amend certain provisions of the Receivables Purchase
Agreement in the manner and as more fully set forth herein; and
WHEREAS, Case Credit and CRC have received the written consent of the
Administrator, the Administrative Agent and the Majority Lenders to this
Amendment;
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
1. Defined Terms. Capitalized terms used in this Amendment shall
have the respective meanings assigned to such terms in the Receivables Purchase
Agreement unless otherwise defined herein.
2. Amendment of Section 2.7 of the Receivables Purchase Agreement.
Section 2.7 of the Receivables Purchase Agreement is hereby amended by deleting
the reference to ".25" in the fourth line of said Section and inserting ".125"
in lieu thereof.
3. Ratification and Confirmation of the Receivables Purchase
Agreement. Except as so modified pursuant to this Amendment, the Receivables
Purchase Agreement is ratified and confirmed in all respects.
4. Representations and Warranties. Case Credit represents and
warrants that:
(a) the representations and warranties of Case Credit contained in
the Receivables Purchase Agreement (as amended hereby) are true and correct
in all material respects on and as of the Effective Date as if made on and
as of the Effective Date; and
(b) no Termination Event has occurred and is continuing on and as of
the Effective Date.
<PAGE>
2
5. Conditions Precedent to Effectiveness. This Amendment shall be
effective on and as of the date (the "Effective Date") when this Amendment has
been duly executed and delivered by duly authorized officers of CRC and Case
Credit and upon effectiveness of the Second Amendment and Consent, dated as of
August __, 1996, to the Liquidity Agreement.
6. Governing Law; Counterparts. (a) THIS AMENDMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) This Amendment may be executed in any number of counterparts, all
of which counterparts, taken together, shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
CASE CREDIT CORPORATION
By: ____________________________________
Title:
CASE RECEIVABLES II INC.
By: ____________________________________
Title:
Consented to:
CASE CREDIT CORPORATION,
as Administrator
By: _____________________________________
Title:
<PAGE>
EXHIBIT B
---------
FIRST AMENDMENT (this "Amendment"), dated as of August __, 1996, to
the Loan and Security Agreement, dated as of August 1, 1994 (the "Loan
Agreement"), between Case Receivables II Inc. ("CRC") and Case Equipment Loan
Trust 1994-B (the "Trust").
W I T N E S S E T H :
-------------------
WHEREAS, CRC and the Trust are parties to the Loan Agreement and
desire to amend certain provisions of the Loan Agreement in the manner and as
more fully set forth herein; and
WHEREAS, CRC and the Trust have received the written consent of the
Administrator, the Administrative Agent and the Majority Lenders to this
Amendment;
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
1. Defined Terms. Capitalized terms used in this Amendment shall
have the respective meanings assigned to such terms in the Loan Agreement unless
otherwise defined herein.
2. Amendment of Section 2.4 of the Loan Agreement. Section 2.4 of
the Loan Agreement is hereby amended by deleting the reference to ".25" in the
fourth line of said Section and inserting ".125" in lieu thereof.
3. Ratification and Confirmation of the Loan Agreement. Except as
so modified pursuant to this Amendment, the Loan Agreement is ratified and
confirmed in all respects.
4. Representations and Warranties. CRC represents and warrants
that:
(a) the representations and warranties of CRC contained in the Loan
Agreement (as amended hereby) are true and correct in all material respects
on and as of the Effective Date as if made on and as of the Effective Date;
and
(b) no CRC Event of Default has occurred and is continuing on and as
of the Effective Date.
<PAGE>
3
5. Conditions Precedent to Effectiveness. This Amendment shall be
effective on and as of the date (the "Effective Date") when this Amendment has
been duly executed and delivered by a duly authorized officer of the Owner
Trustee, on behalf of the Trust, and duly executed and delivered by CRC and upon
effectiveness of the Second Amendment and Consent, dated as of August __, 1996,
to the Liquidity Agreement.
6. Governing Law; Counterparts. (a) THIS AMENDMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) This Amendment may be executed in any number of counterparts, all
of which counterparts, taken together, shall constitute one and the same
instrument.
<PAGE>
4
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
CASE EQUIPMENT LOAN TRUST 1994-B
--------------------------------
By: The Chase Manhattan Bank (USA),
not in its individual capacity
but solely as Owner Trustee
By: _______________________________________
Title:
CASE RECEIVABLES II INC.
By: _______________________________________
Title:
Consented to:
CASE CREDIT CORPORATION,
as Administrator
By: _____________________________________
Title:
<PAGE>
5
EXHIBIT C
FIRST AMENDMENT TO CERTIFICATE PURCHASE AGREEMENT, dated as of August 30,
1996 (this "Amendment"), among MONTE ROSA CAPITAL CORPORATION, as the Purchaser
(herein sometimes called the "Purchaser" and sometimes called "MRCC"), UNION
BANK OF SWITZERLAND, NEW YORK BRANCH, as agent (the "MRCC Agent"), and CASE
RECEIVABLES II INC. ("CRC"), as Depositor ("the "Depositor").
WITNESSETH
WHEREAS, the Purchaser, the MRCC Agent, and CRC as the Depositor and as
Seller (the "Seller") have heretofore entered into a Certificate Purchase
Agreement dated as of October 17, 1994 (the "CRC Certificate Purchase
Agreement"); and
WHEREAS, the Purchaser, the MRCC Agent, the Depositor and the Seller now
desire to amend the CRC Certificate Purchase Agreement in certain respects, as
hereinafter provided;
NOW, THEREFORE, in consideration of the promises and the mutual covenants
herein contained, the parties hereby agree as follows:
SECTION I. DEFINITIONS.
A. Defined Terms. Capitalized terms used in this Amendment shall have
the respective meanings assigned to such terms in the CRC Certificate Purchase
Agreement, unless otherwise defined herein.
SECTION II. AMENDMENTS. Section 2.1(a) of the CRC Certificate Purchase
Agreement is hereby amended by deleting the third sentence thereof and
substituting the following sentence in lieu therefor:
"The Depositor agrees that from and after the date hereof to and including
August 30, 1996 the Applicable OTC Margin with respect to the CRC
Certificate and any Trust Certificate issued in replacement or substitution
therefor shall, subject to Section 2.1(d), be the same as that described in
the immediately preceding sentence, and thereafter the Applicable OTC
Margin with respect thereto shall be .625 per annum for each Accrual Period
commencing prior to September 13, 1999, and .875 per annum for each Accrual
Period commencing on or after September 13, 1999."
SECTION III. CONDITIONS.
<PAGE>
6
A. Conditions to Effectiveness. The effectiveness of this Amendment is
conditioned upon (i) the execution and delivery and satisfaction of all
conditions precedent to the Second Amendment to the Liquidity Agreement in
substantially the form of Exhibit A hereto and (ii) the execution and delivery
of this Amendment by each of the Purchaser, the Seller, the Depositor and the
MRCC Agent on or prior to September 3, 1996.
SECTION IV. MISCELLANEOUS.
A. Successors and Assigns. All covenants and agreements contained in
this Amendment by or on behalf of any of the parties hereto shall bind and inure
to the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not; provided that the Purchaser shall not assign or
transfer the MRCC Certificate, or any or all its rights, title or interest
hereunder or thereunder except in compliance with Section 12.9 of the Trust
Agreement and with the prior written consent of the Administrator (which shall
not be unreasonably withheld); provided, however, that the Purchaser shall and
may pledge, or grant a security interest in, or transfer in trust, the Chemical
Certificate or any Trust Certificate issued in substitution or replacement
therefor as set forth in Section 4(a) of the CRC Certificate Purchase Agreement.
B. Counterparts. This Amendment may be executed by one or more of the
parties to this Amendment on any number of counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
C. Severability. Any provision of this Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
D. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
E. Submission To Jurisdiction; Waivers. Each of the parties hereto hereby
irrevocably and unconditionally:
1. submits for itself and its property in any legal action or
proceeding relating to this Amendment, or for recognition and enforcement
of any judgment in
<PAGE>
7
respect thereof, to the non-exclusive general jurisdiction of the Courts of
the State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
2. consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
3. agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to it at its
address set forth in subsection 6.2 to the CRC Certificate Purchase
Agreement;
4. agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
5. waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this subsection any special, exemplary, punitive or consequential
damages.
F. WAIVERS OF JURY TRIAL. THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AMENDMENT AND FOR ANY COUNTERCLAIM THEREIN.
G. Ratification of CRC Certificate Purchase Agreement. This Amendment
shall be deemed to be an amendment to the CRC Certificate Purchase Agreement,
and the CRC Certificate Purchase Agreement, as amended hereby, is hereby
ratified, approved and confirmed in each and every respect. All references to
the Certificate Purchase Agreement in any other document, instrument, agreement
or writing shall hereafter be deemed to refer to the Certificate Purchase
Agreement as amended hereby.
<PAGE>
8
IN WITNESS WHEREOF, the Purchaser, the Depositor and the MRCC Agent have
executed this Amendment as of the day and year first above written.
MONTE ROSA CAPITAL CORPORATION,
as Purchaser
By: UNION BANK OF SWITZERLAND,
as Attorney-in-Fact
By:
Title:
By:
Title:
UNION BANK OF SWITZERLAND, NEW YORK
BRANCH, as Agent
By:
Title:
By:
Title:
CASE RECEIVABLES II INC.,
as Depositor and as Seller
By:
Title:
<PAGE>
EXHIBIT D
---------
August __, 1996
To the Persons Listed on
Annex I Hereto
Ladies and Gentlemen:
We have acted as special New York counsel to the financial
institutions listed on Schedule A-1 to this opinion letter (the "Foreign
Liquidity Lenders") and to the financial institutions listed on Schedules A-2,
A-3 and A-4 to this opinion letter (the "Domestic Liquidity Lenders"), in
connection with the execution and delivery by certain branches of the Foreign
Liquidity Lenders listed on Schedules A-5, A-6 and A-7 of this opinion letter
(each of such branches being hereinafter referred to as a "Foreign Liquidity
Branch") and by the Domestic Liquidity Lenders of the Second Amendment and
Consent dated as of August __, 1996 (the "Amendment") among Case Equipment Loan
Trust 1994-B, a Delaware business trust (the "Issuer"), the financial
institutions parties thereto, including the Foreign Liquidity Lenders acting
through their respective Foreign Liquidity Branches, and the Domestic Liquidity
Lenders (the "Lenders") and The Chase Manhattan Bank, as administrative agent
(the "Administrative Agent"), amending a Liquidity Agreement dated as of June
23, 1994 (as amended, the "Liquidity Agreement") among the Issuer, the
financial institutions parties thereto and the Administrative Agent.
This opinion is furnished to you pursuant to subsection 9(d) of the
Amendment. Capitalized terms used herein and not otherwise defined shall have
the meanings assigned to such terms in Appendix A to the Liquidity Agreement.
References to Schedules, unless otherwise indicated, refer to the Schedules
appended to this opinion letter.
In so acting, we have examined the executed counterparts of the
Amendment and the Liquidity Agreement and each exhibit and schedule thereto. We
have also examined and relied upon originals or copies, certified or otherwise
identified to our satisfaction, of such other documents, certificates,
corporate records and other
<PAGE>
The Persons Listed on
Annex I Hereto -2- August , 1996
instruments, and have made such other and further investigations, as we have
deemed relevant and necessary as a basis for the opinions hereinafter set forth.
As to questions of fact we have relied upon the documents we have
examined or upon certificates and statements of officers of the Foreign
Liquidity Lenders, the Domestic Liquidity Lenders and of public officials. In
our examination we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all documents submitted to us as certified copies or
photocopies and the authenticity of the originals of such latter documents.
With your permission, based in part upon and without any independent
investigation of a certificate of each of the Domestic Liquidity Lenders and the
Foreign Liquidity Branches (a copy of each of which is attached hereto as Annex
II), we have assumed that:
(a) each Domestic Liquidity Lender listed on Schedule A-4 and each
Foreign Liquidity Lender has been duly organized and is validly existing
under the laws of its jurisdiction of organization;
(b) each Domestic Liquidity Lender listed on Schedule A-4 and each
Foreign Liquidity Lender has all requisite power and authority under the
laws of its jurisdiction of organization to execute, deliver and perform
the Liquidity Agreement;
(c) each Domestic Liquidity Lender listed on Schedule A-4 and each
Foreign Liquidity Branch listed on Schedule A-7 is licensed by the
superintendent of banks (or other similar government official) of the state
in which such Domestic Liquidity Lender or such Foreign Liquidity Branch is
located and each such Domestic Liquidity Lender and each such Foreign
Liquidity Branch is qualified to do business as a banking corporation or as
a state branch of the related Foreign Liquidity Lender, respectively, in
accordance with the provisions of the banking law of such state;
(d) the Amendment has been duly authorized, executed and delivered by
each of the parties thereto, including the Foreign Liquidity Lenders acting
through their respective Foreign Liquidity Branches and the Domestic
Liquidity Lenders, and no further corporate action on the part of the
Foreign Liquidity Lenders acting through their respective Foreign Liquidity
Branches
<PAGE>
The Persons Listed on
Annex I Hereto -3- August , 1996
or on the part of the Domestic Liquidity Lenders, as the case may be, is
required in connection with the execution, delivery and performance of the
Amendment or the Liquidity Agreement;
(e) the execution, delivery and performance of the Amendment and the
Liquidity Agreement by each Foreign Liquidity Branch and Domestic Liquidity
Lender do not and will not violate the organizational documents of the
related Foreign Liquidity Lender or such Domestic Liquidity Lender, as the
case may be, or any contract or undertaking to which such Foreign Liquidity
Branch or the related Foreign Liquidity Lender or such Domestic Liquidity
Lender, as the case may be, is a party or to which it is bound or the legal
lending limit applicable to such Foreign Liquidity Branch or such Domestic
Liquidity Lender, as the case may be, or any provision of the laws of (i)
the state, if other than New York, wherein the principal banking office of
such Domestic Liquidity Lender is located and (ii) the jurisdiction of
organization of such Foreign Liquidity Lender; and
(f) the obligation of each Foreign Liquidity Branch and of each
Domestic Liquidity Lender listed on Schedule A-4 to make Refunding Loans
under the Liquidity Agreement constitutes the valid and legally binding
obligations of such Foreign Liquidity Branch and the related Foreign
Liquidity Lender and of such Domestic Liquidity Lender, as the case may be,
under the laws of (i) the state, if other than New York, wherein the
principal banking office of such Domestic Liquidity Lender is located and
(ii) the jurisdiction of organization of such Foreign Liquidity Lender.
Based upon the foregoing and subject to the limitations and
qualifications herein set forth, we hereby advise you that in our opinion:
1. Each Domestic Liquidity Lender listed on Schedule A-2 is a national
banking association organized under the laws of the United States.
2. Each Domestic Liquidity Lender listed on Schedule A-3 is licensed
by the Superintendent of Banks of the State of New York and qualified to do
business as a New York banking corporation in accordance with the
provisions of the Banking Law of the State of New York.
3. Each Foreign Liquidity Lender having a Foreign Liquidity Branch
listed on Schedule A-5 has been authorized by the Comptroller of the
<PAGE>
The Person Listed on
Annex I Hereto -4- August , 1996
Currency to establish and operate such Foreign Liquidity Branch in
conformity with the laws of the United States.
4. Each Foreign Liquidity Branch listed on Schedule A-6 is licensed by
the Superintendent of Banks of the State of New York and qualified to do
business as a New York branch of the related Foreign Liquidity Lender in
accordance with the provisions of Article V of the Banking Law of the State
of New York.
5. Each Domestic Liquidity Lender listed on Schedule A-2 and each
Foreign Liquidity Branch listed on Schedule A-5 has the power and authority
under title 12 of the United States Code to enter into the Liquidity
Agreement and to make Refunding Loans thereunder.
6. Each Domestic Liquidity Lender listed on Schedule A-3 and each
Foreign Liquidity Branch listed on Schedule A-6 has the power and authority
under the Banking Law of the State of New York to enter into the Liquidity
Agreement and to make Refunding Loans thereunder.
7. The Liquidity Agreement, including the obligation of each Foreign
Liquidity Branch and Domestic Liquidity Lender to make Refunding Loans
thereunder in accordance with the terms thereof, constitutes a valid and
legally binding obligation of such Foreign Liquidity Branch or Domestic
Liquidity Lender, as the case may be, severally and not jointly and only to
the extent of such Foreign Liquidity Branch's or Domestic Liquidity
Lender's Commitment, enforceable against such Foreign Liquidity Branch or
Domestic Liquidity Lender in accordance with its terms, subject to the
effects of bankruptcy, insolvency, receivership, conservatorship,
liquidation, fraudulent conveyance, reorganization, moratorium or other
similar laws relating to or affecting rights of creditors generally or of
creditors of banks the accounts of which are insured by the Federal Deposit
Insurance Corporation, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and
fair dealing and, in the case of such Foreign Liquidity Branch or the
related Foreign Liquidity Lender, the possible judicial application of
foreign laws or foreign governmental action or judicial action affecting
creditors' rights.
Our opinion with respect to the enforceability of the obligation of
each Foreign Liquidity Branch under the Liquidity Agreement relates only to the
enforceability of the same against such Foreign Liquidity Branch. We express no
opinion as to
<PAGE>
The Persons Listed on
Annex I Hereto -5- August , 1996
enforceability by the Issuer of its right to receive Refunding Loans in the
event of the Issuer's bankruptcy.
We are members of the Bar of the State of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the federal law of the United States of America.
This opinion is rendered to the persons listed on Annex I hereto in
connection with the above-described transaction. This opinion may not be relied
upon by such persons for any other purpose, or relied upon by or furnished to
any other person, firm or corporation without our prior written consent, except
that copies of this opinion may be furnished to Standard & Poor's Ratings
Service and Moody's Investors Service, each of which may rely upon this opinion
as if it were addressed to it.
Very truly yours,
SIMPSON THACHER & BARTLETT
<PAGE>
SCHEDULE A-1
FOREIGN LIQUIDITY LENDERS
<PAGE>
SCHEDULE A-2
DOMESTIC LIQUIDITY LENDERS - NATIONAL BANKS
<PAGE>
SCHEDULE A-3
DOMESTIC LIQUIDITY LENDERS - NY CHARTERED BANKS
<PAGE>
SCHEDULE A-4
DOMESTIC LIQUIDITY LENDERS - STATE (OTHER THAN NY)
CHARTERED BANKS
<PAGE>
SCHEDULE A-5
FOREIGN LIQUIDITY BRANCHES - NATIONAL BRANCHES
<PAGE>
SCHEDULE A-6
FOREIGN LIQUIDITY BRANCHES - NY CHARTERED BRANCHES
<PAGE>
SCHEDULE A-7
FOREIGN LIQUIDITY BRANCHES - STATE (OTHER THAN NY)
CHARTERED BRANCHES
<PAGE>
ANNEX I
-------
Standard & Poor's Ratings Services
Structure Finance
26 Broadway, 10th Floor
New York, New York 10004-1064
Attn: Romita Shetty
Telecopy: (212) 412-0225
Moody's Investors Services, Inc.
ABS Monitoring Department
99 Church Street, 4th Floor
New York, New York 10007
Attn: Bruce Fabrikant
Telecopy: (212) 553-0573/3856
Case Equipment Loan Trust 1994-B
c/o The Chase Manhattan Bank (USA)
802 Delaware Avenue, 13th Floor
Wilmington, DE 19801
Attn: John Mack
Senior Vice President
Corporate Trust Department
Telecopy: (302) 575-5467
Case Credit Corporation
233 Lake Avenue
Racine, Wisconsin 53403
Attn: Robert Wegner
Vice President
Telecopy: (414) 636-6284
<PAGE>
2
The Chase Manhattan Bank, Administrative Agent
140 East 45th Street, 29th Floor
New York, New York 10017
Attn: Christopher Consomer
Telecopy: (212) 622-0122
Chase Securities Inc.
Banking and Corporate Finance Group
Ten South LaSalle Street
Chicago, Illinois 60603-1097
Attn: Steve Faliski
Telecopy: (312) 443-1964
Norwest Bank Minnesota, National Association
Norwest Center
6th and Marquette
Minneapolis, Minnesota 55479
Attn: Corporate Trust Department
Telecopy: (612) 667-9824
Hopkins & Sutter
Three First National Plaza
Chicago, Illinois 60602
Attn: David Morrow
Telecopy: (312) 558-6538
<PAGE>
ANNEX II
--------
CERTIFICATE OF
[DOMESTIC LIQUIDITY LENDER] [FOREIGN LIQUIDITY BRANCH]
Reference is made to that certain Second Amendment and Consent dated
as of August __, 1996 (the "Amendment") among Case Equipment Loan Trust 1994-B,
a Delaware business trust (the "Issuer"), [NAME OF DOMESTIC LIQUIDITY LENDER OR
FOREIGN LIQUIDITY LENDER] [(THE "LENDER")],[ ACTING THROUGH ITS [NAME OF STATE]
BRANCH], the other financial institutions parties thereto and The Chase
Manhattan Bank, as administrative agent (the "Administrative Agent"), amending
the Liquidity Agreement dated as of June 23, 1994 (as amended, the "Liquidity
Agreement"), among the Issuer, the financial institutions parties thereto and
the Administrative Agent.
The Lender does hereby certify to Simpson Thacher & Bartlett, and
hereby authorizes Simpson Thacher & Bartlett to rely on, and make assumptions
with respect to, the following in connection with Simpson Thacher & Bartlett's
issuance of an opinion as special New York counsel to the undersigned in
connection with the execution, delivery and performance by the undersigned of
the Amendment:
(i) The Amendment and the Liquidity Agreement have been duly
authorized by the Lender and the Amendment has been duly executed and
delivered on behalf of the Lender by the person or persons executing the
same, and no further action on the part of the Lender is required in
connection therewith; and
(ii) The execution, delivery and performance of the Amendment and the
Liquidity Agreement by the Lender does not and will not violate the
organizational documents of the Lender or any contract or undertaking to
which such Lender is a party or to which it is bound or the legal lending
limit applicable to such Lender.
IN WITNESS WHEREOF, [NAME(S)], the duly qualified and acting
[TITLE(S)][, RESPECTIVELY,] of the Lender, have hereunto set [HIS] [HER]
[THEIR] hands this ____ day of ________, 1996 in the name of and on behalf of
the Lender.
[LENDER]
By: ______________________________________________
Title:
[BY:
______________________________________________
TITLE:]
<PAGE>
EXHIBIT E
---------
[FORM OF OPINION OF COUNSEL TO DOMESTIC LENDERS OR
FOREIGN BRANCHES ORGANIZED OUTSIDE OF NEW YORK]
August __, 1996
The Persons Listed on
Annex I Hereto
Ladies and Gentlemen:
We have acted as special [name of state] counsel to [name of Lender]
(the "Lender") in connection with the execution and delivery by [the Lender] [,
acting through its [name of state] branch of the Lender (the "Branch"),] of the
Second Amendment and Consent, dated as of August __, 1996 (the "Amendment"),
among Case Equipment Loan Trust 1994-B, a Delaware business trust (the
"Issuer"), the Lender [acting through the Branch], the other financial
institutions parties thereto, and The Chase Manhattan Bank, as administrative
agent (the "Administrative Agent"), amending a Liquidity Agreement dated as of
June 23, 1994 (as amended, the "Liquidity Agreement") among the Issuer, the
financial institutions parties thereto and the Administrative Agent.
This opinion is furnished to you pursuant to subsection 9(d) of the
Amendment. Capitalized terms used herein and not otherwise defined shall have
the meanings assigned to such terms in Appendix A to the Liquidity Agreement.
In so acting, we have examined executed counterparts (or photocopies
thereof) of the Amendment and the Liquidity Agreement and each exhibit and
schedule thereto. We have also examined and relied upon originals or copies,
certified or otherwise identified to our satisfaction, of such other documents,
certificates, corporate records and other instruments, and have made such other
and further investigations, as we have deemed relevant and necessary as a basis
for the opinions hereinafter set forth.
As to questions of fact we have relied upon the documents we have
examined or upon certificates and statements of officers of the Lender and of
public officials. In our examination we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity to original documents of all documents submitted to us as
certified or photocopies and the authenticity of the originals of such latter
documents.
<PAGE>
The Persons Listed on
Annex I Hereto -2- August__, 1996
[IF A FOREIGN BRANCH: With your permission, based in part upon and
without any independent investigation of a certificate of the Branch (a copy of
which is attached hereto as Annex II), we have assumed that:
(a) the Lender has been duly organized and is validly existing under
the laws of its jurisdiction of organization;
(b) the Lender has all requisite power and authority under the laws
of its jurisdiction of organization to execute, deliver and perform the
Liquidity Agreement;
(c) the Amendment has been duly authorized, executed and delivered by
each of the parties thereto, including the Lender acting through the
Branch, and no further corporate action on the part of the Lender acting
through the Branch is required in connection with the execution, delivery
and performance of the Liquidity Agreement or the Amendment;
(d) the execution, delivery and performance of the Liquidity
Agreement and the Amendment by the Branch does not and will not violate the
organizational documents of the Lender or any contract or undertaking to
which such Branch or the Lender is a party or to which it is bound or any
provision of the laws of the jurisdiction of organization of such Lender;
and
(e) the obligation of the Branch to make Refunding Loans under the
Liquidity Agreement constitutes the legal, valid and binding obligations of
the Branch and the Lender under the laws of the jurisdiction of
organization of the Lender.]
Based upon the foregoing and subject to the limitations and
qualifications herein set forth, we hereby advise you that in our opinion:
[IF A DOMESTIC BANK: 1. The Lender is a banking corporation duly
organized and validly existing in good standing under the laws of [name of
state] and has full corporate power and authority to execute, deliver and
perform its obligations under the Amendment and the Liquidity Agreement.
2. The Amendment has been duly authorized, executed and delivered by
the Lender and no further corporate action on the part of the Lender is
required in connection with the execution, delivery and performance of the
Amendment or the Liquidity Agreement.
<PAGE>
The Persons Listed on
Annex I Hereto -3- August__, 1996
3. The execution, delivery and performance of the Amendment and the
Liquidity Agreement by the Lender do not and will not violate the charter
or by-laws of the Lender or any provision of the law of the State of
__________ or, to our knowledge, after due inquiry, any contract or
undertaking to which the Lender is a party or to which it is bound.]
[IF A FOREIGN BRANCH: 1. The Branch is licensed by the [Superintendent
of Banks] of the State of __________ and qualified to do business as a
[name of state] branch of the Lender in accordance with the provisions of
the [Banking Law] of the State of ______________.
2. The Branch has the power and authority under the [Banking Law] of
the State of ___________ to enter into the Amendment and the Liquidity
Agreement and to make Refunding Loans thereunder.]
We are members of the Bar of the State of ________ and we do not
express any opinion herein concerning any law other than the law of the State of
________ and the federal law of the United States of America.
This opinion is rendered to the persons listed on Annex I hereto in
connection with the above-described transaction. This opinion may not be relied
upon by such persons for any other purpose, or relied upon by or furnished to
any other person, firm or corporation without our prior written consent, except
that copies of this opinion may be furnished to Standard & Poor's Ratings
Service and Moody's Investors Service, each of which may rely upon this opinion
as if it were addressed to it.
Very truly yours,
<PAGE>
ANNEX I
-------
Standard & Poor's Ratings Services
Structure Finance
26 Broadway, 10th Floor
New York, New York 10004-1064
Attn: Romita Shetty
Telecopy: (212) 412-0225
Moody's Investors Services, Inc.
ABS Monitoring Department
99 Church Street, 4th Floor
New York, New York 10007
Attn: Bruce Fabrikant
Telecopy: (212) 553-0573/3856
Case Equipment Loan Trust 1994-B
c/o The Chase Manhattan Bank (USA)
802 Delaware Avenue, 13th Floor
Wilmington, DE 19801
Attn: John Mack
Senior Vice President
Corporate Trust Department
Telecopy: (302) 575-5467
Case Credit Corporation
233 Lake Avenue
Racine, Wisconsin 53403
Attn: Robert Wegner
Vice President
Telecopy: (414) 636-6284
<PAGE>
2
The Chase Manhattan Bank, Administrative Agent
140 East 45th Street, 29th Floor
New York, New York 10017
Attn: Christopher Consomer
Telecopy: (212) 622-0122
Chase Securities Inc.
Banking and Corporate Finance Group
Ten South LaSalle Street
Chicago, Illinois 60603-1097
Attn: Steve Faliski
Telecopy: (312) 443-1964
Norwest Bank Minnesota, National Association
Norwest Center
6th and Marquette
Minneapolis, Minnesota 55479
Attn: Corporate Trust Department
Telecopy: (612) 667-9824
Hopkins & Sutter
Three First National Plaza
Chicago, Illinois 60602
Attn: David Morrow
Telecopy: (312) 558-6538
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
<PAGE>
ANNEX II
--------
CERTIFICATE OF [FOREIGN LIQUIDITY BRANCH]
Reference is made to that certain Second Amendment and Consent, dated
as of August __, 1996 (the "Amendment"), among Case Equipment Loan Trust 1994-B,
a Delaware business trust (the "Issuer"), [name of Foreign Liquidity Lender]
(the "Lender"), acting through its [name of state] branch] (the "Branch"), the
other financial institutions parties thereto and The Chase Manhattan Bank, as
administrative agent (the "Administrative Agent"), amending the Liquidity
Agreement, dated as of June 23, 1994 (as amended, the "Liquidity Agreement"),
among the Issuer, the financial institutions parties thereto and the
Administrative Agent.
The Branch does hereby certify to [name of counsel], and hereby
authorizes [name of counsel] to rely on, and make assumptions with respect to,
the following in connection with [name of counsel's] issuance of an opinion as
special [name of state] counsel to the undersigned in connection with the
execution, delivery and performance by the undersigned of the Amendment and the
Liquidity Agreement:
(i) The Amendment and the Liquidity Agreement have been duly
authorized by the Lender, acting through the Branch, and the Amendment has
been duly executed and delivered on behalf of the Lender by the person or
persons executing the same, and no further action on the part of the Lender
or the Branch is required in connection therewith; and
(ii) The execution, delivery and performance of the Amendment and the
Liquidity Agreement by the Lender does not and will not violate the
organizational documents of the Lender or any contract or undertaking to
which such Lender is a party or to which it is bound or the legal lending
limit applicable to such Lender.
IN WITNESS WHEREOF, [NAME(S)], the duly qualified and acting
[TITLE(S)][, respectively,] of the Branch have hereunto set [his] [her] [their]
hands this ____ day of _____ , 1996 in the name of and on behalf of the Branch.
[BRANCH]
By: __________________________
Title:
[By:
__________________________
Title:]
<PAGE>
EXHIBIT F
---------
[FORM OF OPINION OF FOREIGN COUNSEL TO A FOREIGN LENDER]
August __, 1996
To the Persons Listed
on Annex I Hereto
Ladies and Gentlemen:
In connection with the Second Amendment and Consent, dated as of
August __, 1996 (the "Amendment"), among Case Equipment Loan Trust 1994-B, a
Delaware business trust (the "Issuer"), [name of foreign lender] (the "Lender"),
acting through its [name of state] branch (the "Branch"), the other financial
institutions parties thereto, and The Chase Manhattan Bank, as administrative
agent (the "Administrative Agent"), amending a Liquidity Agreement, dated as of
June 23, 1994 (as amended, the "Liquidity Agreement"), among the Issuer, the
financial institutions parties thereto and the Administrative Agent, the
undersigned, as counsel for the Lender, has examined such corporate records,
certificates and other documents and such questions of law as I have considered
necessary and appropriate for purposes of this opinion. In my examination, I
have assumed the genuineness of all signatures, the authenticity of all
documents submitted to me as originals and the conformity to authentic, original
documents of all documents submitted to me as certified, conformed or
photostatic copies. No opinion is expressed herein as to the laws of any
jurisdiction other than the laws of [country of organization].
With your permission, based in part upon and without any independent
investigation of an opinion of Simpson Thacher & Bartlett, I have assumed for
the purpose of my opinion hereinafter expressed that the Liquidity Agreement
will constitute the legal, valid and binding obligations of the Lender in
accordance with New York law.
Based on the foregoing, I advise you that, it is my opinion:
1. The Lender is a banking corporation duly organized and validly
existing in good standing under the laws of [name of country] and has full
corporate power and authority to execute, deliver and perform its
obligations under the Amendment and the Liquidity Agreement.
<PAGE>
The Persons Listed on
Annex I Hereto -2- August__, 1996
2. The Amendment and the Liquidity Agreement have been duly
authorized by the Lender, through the Branch.
3. The Liquidity Agreement is enforceable in accordance with its
terms against the Lender's head office in [name of country] if the Branch
defaults in its obligations under such Liquidity Agreement or the Lender
ceases to have a presence in the [name of state where Branch is located]
except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or at
law).
4. The choice of the law of the State of New York to govern the
Liquidity Agreement is valid under the laws of [name of country] and a
court in [name of country] would uphold such choice of law in a suit or
other proceeding on the Liquidity Agreement brought in a court of [name of
country], provided that the application of such law to the case would not
result in a contravention of public policy of [name of country].
5. Any final and conclusive judgement for a fixed and definite sum
obtained against the Branch in any competent United States Federal or state
court having jurisdiction over the branch in respect of any suit, action or
proceeding against the Branch for the enforcement of the Liquidity
Agreement will, upon request, be declared valid and enforceable against the
Lender by the competent courts at the legal domicile of the Lender in [name
of country] without relitigation of the matters adjudicated, provided that
its contents are not contrary to, and the judgement has not been rendered
in violation of, public policy of [name of country] and provided that due
process was not denied and the same subject matter was not first brought or
earlier adjudicated in another court.
6. The obligations of the Lender under the Liquidity Agreement rank
pari passu with all deposits and other unsecured obligations of the Lender.
7. No license, consent or approval of, or registration with, any
governmental department, agency, commission or regulatory authority of
[name of country] is required in connection with the execution or
performance of the Liquidity Agreement by the Lender, acting through the
Branch, to make the Liquidity Agreement fully enforceable in accordance
with its terms.
I express no opinion as to the laws of any jurisdiction other than the
laws of the [name of country].
<PAGE>
The Persons Listed on
Annex I Hereto -3- August__, 1996
This opinion has been rendered solely for your benefit in connection
with the Liquidity Agreement and the transactions contemplated thereby and may
not be used, circulated, quoted, relied upon or otherwise referred to for any
purpose without our prior written consent, except that copies of this opinion
may be furnished to Standard & Poor's Ratings Service and Moody's Investors
Service, each of which may rely upon this opinion as if it were addressed to it.
Very truly yours,
<PAGE>
ANNEX I
-------
Standard & Poor's Ratings Services
Structure Finance
26 Broadway, 10th Floor
New York, New York 10004-1064
Attn: Romita Shetty
Telecopy: (212) 412-0225
Moody's Investors Services, Inc.
ABS Monitoring Department
99 Church Street, 4th Floor
New York, New York 10007
Attn: Bruce Fabrikant
Telecopy: (212) 553-0573/3856
Case Equipment Loan Trust 1994-B
c/o The Chase Manhattan Bank (USA)
802 Delaware Avenue, 13th Floor
Wilmington, DE 19801
Attn: John Mack
Senior Vice President
Corporate Trust Department
Telecopy: (302) 575-5467
Case Credit Corporation
233 Lake Avenue
Racine, Wisconsin 53403
Attn: Robert Wegner
Vice President
Telecopy: (414) 636-6284
<PAGE>
2
The Chase Manhattan Bank, Administrative Agent
140 East 45th Street, 29th Floor
New York, New York 10017
Attn: Christopher Consomer
Telecopy: (212) 622-0122
Chase Securities Inc.
Banking and Corporate Finance Group
Ten South LaSalle Street
Chicago, Illinois 60603-1097
Attn: Steve Faliski
Telecopy: (312) 443-1964
Norwest Bank Minnesota, National Association
Norwest Center
6th and Marquette
Minneapolis, Minnesota 55479
Attn: Corporate Trust Department
Telecopy: (612) 667-9824
Hopkins & Sutter
Three First National Plaza
Chicago, Illinois 60602
Attn: David Morrow
Telecopy: (312) 558-6538
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
<PAGE>
EXHIBIT G
---------
To the Parties listed on Annex I
Ladies and Gentlemen:
In connection with the SECOND AMENDMENT AND CONSENT, dated as of
August __, 1996, to the Liquidity Agreement, dated as of June 23, 1994 (the
"Liquidity Agreement"), as amended by the First Amendment, dated as of August 1,
1994, thereto among Case Equipment Loan Trust 1994-B, certain lenders from time
to time parties thereto and The Chase Manhattan Bank, as administrative agent
for the Lenders, the undersigned Lender hereby confirms that (i) credit approval
for the increase in the commitment of the undersigned Lender reflected on
Schedule I to such Amendment has been received, (ii) the undersigned Lender has
taken all necessary action in connection with such increased commitment, and
(iii) such increased commitment does not violate any internal exposure limits of
the undersigned Lender for Case Equipment Loan Trust 1994-B or Case Credit
Corporation or violate any internal rules or regulations of the undersigned
Lender, nor is it our belief that it would cause the undersigned Lender to be in
violation of any legal lending limitations or any federal or state law
applicable to the undersigned Lender.
DATED: August , 1996 ____________________________
Name of Lender
By:
------------------------
Title:
By:
------------------------
Title:
<PAGE>
ANNEX I
-------
Standard & Poor's Ratings Services
Structure Finance
26 Broadway, 10th Floor
New York, New York 10004-1064
Attn: Romita Shetty
Telecopy: (212) 412-0225
Moody's Investors Services, Inc.
ABS Monitoring Department
99 Church Street, 4th Floor
New York, New York 10007
Attn: Bruce Fabrikant
Telecopy: (212) 553-0573/3856
Case Equipment Loan Trust 1994-B
c/o The Chase Manhattan Bank (USA)
802 Delaware Avenue, 13th Floor
Wilmington, DE 19801
Attn: John Mack
Senior Vice President
Corporate Trust Department
Telecopy: (302) 575-5467
Case Credit Corporation
233 Lake Avenue
Racine, Wisconsin 53403
Attn: Robert Wegner
Vice President
Telecopy: (414) 636-6284
<PAGE>
2
The Chase Manhattan Bank, Administrative Agent
140 East 45th Street, 29th Floor
New York, New York 10017
Attn: Christopher Consomer
Telecopy: (212) 622-0122
Chase Securities Inc.
Banking and Corporate Finance Group
Ten South LaSalle Street
Chicago, Illinois 60603-1097
Attn: Steve Faliski
Telecopy: (312) 443-1964
Norwest Bank Minnesota, National Association
Norwest Center
6th and Marquette
Minneapolis, Minnesota 55479
Attn: Corporate Trust Department
Telecopy: (612) 667-9824
<PAGE>
EXHIBIT 11
CASE CORPORATION AND CONSOLIDATED SUBSIDIARIES
COMPUTATION OF EARNINGS PER SHARE OF COMMON STOCK
(IN MILLIONS, EXCEPT SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS NINE MONTHS
-------------- --------------
ENDED ENDED
-------------- --------------
SEPTEMBER 30, SEPTEMBER 30,
-------------- --------------
1996 1996
-------------- --------------
<S> <C> <C>
Computations for Statements of Income
Primary earnings per share of common stock (average shares outstanding):
Income before cumulative effect of changes in accounting principles and $ 62 $ 247
extraordinary loss..............................................................
Extraordinary loss................................................................ (11) (33)
----------- -----------
Net income........................................................................ 51 214
Preferred stock dividends......................................................... 2 5
----------- -----------
Net income to common.............................................................. $ 49 $ 209
----------- -----------
Average shares of common stock outstanding........................................ 72,468,238 71,925,021
Incremental common shares applicable to restricted common stock based
on the common stock daily average market price during the period................ 205,629 209,052
Incremental common shares applicable to common stock options based on
the common stock daily average market price during the period................... 1,502,639 1,691,363
----------- -----------
Average common stock, as adjusted................................................. 74,176,506 73,825,436
----------- -----------
Earnings per share of common stock (including common stock
equivalents):
Net income after preferred stock dividends and before cumulative
effect of changes in accounting principles and extraordinary loss........... $ 0.81 $ 3.28
Extraordinary loss................................................................ (0.15) (0.45)
----------- -----------
Net earnings per share of common stock............................................ $ 0.66 $ 2.83
Fully diluted earnings per share of common stock: ----------- -----------
Average shares of common stock outstanding........................................ 72,468,238 71,925,021
Incremental common shares applicable to restricted common stock based
on the more dilutive of the common stock ending or daily average
market price during the period.................................................. 209,757 209,733
Incremental common shares applicable to common stock options based on
the more dilutive of the common stock ending or average market price
during the period............................................................... 1,621,505 1,706,061
Average common shares issuable assuming conversion of the Series A
Cumulative Convertible Preferred Stock and the Cumulative
Convertible Second Preferred Stock.............................................. 3,488,711 3,488,711
----------- -----------
Average common shares assuming full dilution...................................... 77,788,211 77,329,526
Fully diluted earnings per average share of common stock, assuming ----------- -----------
conversion of all applicable securities:
Net income before extraordinary loss........................................... $ 0.80 $ 3.20
Extraordinary loss............................................................. (0.14) (0.43)
----------- -----------
Net earnings per share of common stock........................................... $ 0.66 $ 2.77
----------- -----------
</TABLE>
<PAGE>
EXHIBIT 12
CASE CORPORATION AND CONSOLIDATED SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
AND PREFERRED DIVIDENDS
(DOLLARS IN MILLIONS)
(UNAUDITED)
<TABLE>
<CAPTION>
NINE MONTHS
-----------
ENDED
-----
SEPTEMBER 30,
-------------
1996
----
<S> <C>
Net Income.................................................. $ 214
Add:
Interest expense........................................ 121
Amortization of capitalized debt expense................ 3
Portion of rentals representative of interest factor.... 10
Income tax expense and other taxes on income............ 137
Fixed charges of unconsolidated subsidiaries............ 4
Extraordinary loss...................................... 33
-----
Earnings as defined................................ $ 522
-----
Interest expense............................................ $ 121
Amortization of capitalized debt expense.................... 4
Portion of rentals representative of interest factor........ 10
Fixed charges of unconsolidated subsidiaries................ 4
-----
Fixed charges as defined........................... $ 139
-----
Preferred Dividends:
Amount declared......................................... $ 5
Gross-up to pre-tax based on 36% effective rate......... $ 8
Ratio of earnings to fixed charges and preferred dividends. 3.55
-----
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND> THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
THE COMPANY'S FORM 10-Q AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> SEP-30-1996
<CASH> 93
<SECURITIES> 0
<RECEIVABLES> 1,828
<ALLOWANCES> 0
<INVENTORY> 1,098
<CURRENT-ASSETS> 3,339
<PP&E> 1,982
<DEPRECIATION> 1,025
<TOTAL-ASSETS> 5,818
<CURRENT-LIABILITIES> 2,655
<BONDS> 906
<COMMON> 1
77
0
<OTHER-SE> 1,786
<TOTAL-LIABILITY-AND-EQUITY> 5,818
<SALES> 3,652
<TOTAL-REVENUES> 3,836
<CGS> 2,776
<TOTAL-COSTS> 3,309
<OTHER-EXPENSES> 22
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 121
<INCOME-PRETAX> 384
<INCOME-TAX> 137
<INCOME-CONTINUING> 247
<DISCONTINUED> 0
<EXTRAORDINARY> 33
<CHANGES> 0
<NET-INCOME> 214
<EPS-PRIMARY> 2.83
<EPS-DILUTED> 2.77
</TABLE>
