<PAGE>
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-Q
[X]QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE
ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1997
OR
[_]TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
COMMISSION FILE NUMBER 1-13098
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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
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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 75,102,956 shares outstanding as of
September 30, 1997.
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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.................................................. 3
Statements of Cash Flows.............................................. 5
Statements of Changes in Stockholders' Equity......................... 6
Notes to Financial Statements......................................... 7
Management's Discussion and Analysis of Financial Condition and
Results of Operations................................................ 13
Part II--Other Information
Item 1. Legal Proceedings............................................... 22
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................................ 22
</TABLE>
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* 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, 1997, AND DECEMBER 31, 1996
(IN MILLIONS, EXCEPT SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
CONSOLIDATED CASE INDUSTRIAL CASE CREDIT
-------------------------- -------------------------- --------------------------
SEPTEMBER 30, DECEMBER 31, SEPTEMBER 30, DECEMBER 31, SEPTEMBER 30, DECEMBER 31,
ASSETS 1997 1996 1997 1996 1997 1996
------ ------------- ------------ ------------- ------------ ------------- ------------
<S> <C> <C> <C> <C> <C> <C>
Current Assets:
Cash and cash
equivalents........... $ 167 $ 116 $ 122 $ 99 $ 45 $ 17
Accounts and notes
receivable:
Trade.................. 2,002 1,674 1,451 1,302 551 372
Affiliates............. -- -- 8 3 13 13
Other.................. 64 25 49 25 15 --
Inventories............ 1,155 988 1,155 988 -- --
Deferred income taxes.. 165 188 146 171 19 17
Prepayments and other.. 45 62 44 62 1 --
------- ------- ------- ------- ------ ------
Total current assets. 3,598 3,053 2,975 2,650 644 419
------- ------- ------- ------- ------ ------
Long-Term Receivables... 1,324 1,361 166 309 1,144 1,036
Other Assets:
Investments in joint
ventures.............. 83 63 67 63 16 --
Investment in Case
Credit................ -- -- 318 240 -- --
Goodwill and
intangibles........... 304 306 304 306 -- --
Other.................. 359 269 190 185 183 100
------- ------- ------- ------- ------ ------
Total other assets... 746 638 879 794 199 100
------- ------- ------- ------- ------ ------
Property, Plant and
Equipment, at cost..... 1,959 2,075 1,955 2,072 4 3
Accumulated
depreciation.......... (1,054) (1,068) (1,053) (1,067) (1) (1)
------- ------- ------- ------- ------ ------
Net property, plant and
equipment.............. 905 1,007 902 1,005 3 2
------- ------- ------- ------- ------ ------
Total................ $ 6,573 $ 6,059 $ 4,922 $ 4,758 $1,990 $1,557
======= ======= ======= ======= ====== ======
<CAPTION>
LIABILITIES AND EQUITY
----------------------
<S> <C> <C> <C> <C> <C> <C>
Current Liabilities:
Current maturities of
long-term debt........ $ 8 $ 9 $ 8 $ 9 $ -- $ --
Short-term debt........ 1,439 1,002 240 173 1,199 829
Accounts payable....... 603 578 596 564 28 30
Restructuring
liability............. 69 176 69 176 -- --
Other accrued
liabilities........... 713 778 681 735 32 43
------- ------- ------- ------- ------ ------
Total current
liabilities......... 2,832 2,543 1,594 1,657 1,259 902
------- ------- ------- ------- ------ ------
Long-Term Debt.......... 1,100 1,119 690 704 410 415
Other Liabilities:
Pension benefits....... 114 128 114 128 -- --
Other postretirement
benefits.............. 133 115 133 115 -- --
Other postemployment
benefits.............. 40 40 40 40 -- --
Other.................. 149 132 149 132 -- --
------- ------- ------- ------- ------ ------
Total other
liabilities......... 436 415 436 415 -- --
------- ------- ------- ------- ------ ------
Commitments and
Contingencies (Note 8
).....................
Minority Interest...... 3 1 -- 1 3 --
Preferred Stock with
Mandatory Redemption
Provisions............ 77 77 77 77 -- --
Stockholders' Equity:
Common Stock, $0.01 par
value; authorized
200,000,000 shares,
issued 75,560,198,
outstanding,
75,102,956, as of
September 30, 1997.... 1 1 1 1 -- --
Paid-in capital........ 1,297 1,238 1,297 1,238 219 199
Cumulative translation
adjustment............ (77) (14) (77) (14) (10) (6)
Unearned compensation
on restricted stock... (15) (9) (15) (9) -- --
Pension liability
adjustment............ (4) (4) (4) (4) -- --
Retained earnings...... 956 693 956 693 109 47
Treasury stock, 457,242
shares, at cost, as of
September 30, 1997.... (33) (1) (33) (1) -- --
------- ------- ------- ------- ------ ------
Total stockholders'
equity................ 2,125 1,904 2,125 1,904 318 240
------- ------- ------- ------- ------ ------
Total................ $ 6,573 $ 6,059 $ 4,922 $ 4,758 $1,990 $1,557
======= ======= ======= ======= ====== ======
</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>
CASE CORPORATION AND CONSOLIDATED SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
FOR THE THREE AND NINE MONTHS ENDED SEPTEMBER 30, 1997 AND 1996
(IN MILLIONS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
CONSOLIDATED
----------------------------
THREE MONTHS NINE MONTHS
ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------- -------------
1997 1996 1997 1996
------ ------ ------ ------
<S> <C> <C> <C> <C>
Revenues:
Net sales...................................... $1,380 $1,149 $4,103 $3,652
Interest income and other...................... 64 50 174 184
------ ------ ------ ------
1,444 1,199 4,277 3,836
Costs and Expenses:
Cost of goods sold............................. 1,075 880 3,138 2,776
Selling, general and administrative............ 144 134 421 393
Research, development and engineering.......... 49 49 141 140
Interest expense............................... 47 43 126 121
Other, net..................................... 14 6 39 22
------ ------ ------ ------
Income before taxes and extraordinary loss....... 115 87 412 384
Income tax provision............................. 37 25 132 137
------ ------ ------ ------
78 62 280 247
Equity in income--Case Credit.................... -- -- -- --
------ ------ ------ ------
Income before extraordinary loss................. 78 62 280 247
Extraordinary loss............................... -- (11) -- (33)
------ ------ ------ ------
Net income....................................... $ 78 $ 51 $ 280 $ 214
====== ====== ====== ======
Preferred stock dividends........................ 2 2 5 5
------ ------ ------ ------
Net income to common............................. $ 76 $ 49 $ 275 $ 209
====== ====== ====== ======
Per share data:
Primary earnings per share of common stock..... $ 1.00 $ 0.66 $ 3.65 $ 2.83
====== ====== ====== ======
Fully diluted earnings per share of common
stock......................................... $ 0.98 $ 0.66 $ 3.54 $ 2.77
====== ====== ====== ======
</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."
3
<PAGE>
<TABLE>
<CAPTION>
CASE INDUSTRIAL CASE CREDIT
-------------------------------- ------------------------------
THREE MONTHS NINE MONTHS THREE MONTHS NINE MONTHS
ENDED ENDED ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30, SEPTEMBER 30, SEPTEMBER 30,
----------------- ------------- -------------- -------------
1997 1996 1997 1996 1997 1996 1997 1996
------- ------- ------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
$ 1,380 $ 1,149 $4,103 $3,652 $ -- $ -- $ -- $ --
7 16 25 49 75 61 201 186
------- ------- ------ ------ ------ ------ ------ ------
1,387 1,165 4,128 3,701 75 61 201 186
1,075 880 3,138 2,776 -- -- -- --
155 153 451 423 7 8 22 20
49 49 141 140 -- -- -- --
19 21 54 69 28 22 72 53
8 3 23 14 6 3 16 8
------- ------- ------ ------ ------ ------ ------ ------
81 59 321 279 34 28 91 105
26 20 103 100 11 5 29 37
------- ------- ------ ------ ------ ------ ------ ------
55 39 218 179 23 23 62 68
23 23 62 68 -- -- -- --
------- ------- ------ ------ ------ ------ ------ ------
78 62 280 247 23 23 62 68
-- (11) -- (33) -- (3) -- (3)
------- ------- ------ ------ ------ ------ ------ ------
$ 78 $ 51 $ 280 $ 214 $ 23 $ 20 $ 62 $ 65
======= ======= ====== ====== ====== ====== ====== ======
</TABLE>
4
<PAGE>
CASE CORPORATION AND CONSOLIDATED SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1997 AND 1996
(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,
-------------- ---------------- --------------
1997 1996 1997 1996 1997 1996
------ ------ ------- ------- ------ ------
<S> <C> <C> <C> <C> <C> <C>
Operating activities:
Net income.................. $ 280 $ 214 $ 280 $ 214 $ 62 $ 65
Adjustments to reconcile net
income to net cash provided
(used) by operating
activities--
Depreciation and
amortization............... 118 104 102 95 16 9
Deferred income tax expense
(benefit).................. 16 7 18 8 (2) (1)
(Gain) loss on disposal of
fixed assets............... (1) 3 (1) 3 -- --
Extraordinary loss, after
tax........................ -- 33 -- 33 -- 3
Cash paid for
restructuring.............. (104) (51) (104) (51) -- --
Undistributed earnings of
unconsolidated
subsidiaries............... (4) (4) (66) (51) -- --
Changes in components of
working capital--
Increase in receivables.... (455) (257) (260) (69) (198) (188)
Increase in inventories.... (227) (179) (227) (179) -- --
Decrease (increase) in
prepayments and other
current assets............ 15 (13) 15 (14) -- 1
Increase (decrease) in
payables.................. 72 7 79 12 (3) (5)
Increase (decrease) in
accrued liabilities....... (38) (30) (27) (33) (10) 3
Decrease (increase) in
long-term receivables...... 26 196 135 182 (112) 14
Increase in other
liabilities................ 58 12 58 12 -- --
Other, net.................. (42) 14 (8) 14 (33) (1)
------ ------ ------- ------- ------ ------
Net cash provided (used)
by operating
activities............. (286) 56 (6) 176 (280) (100)
------ ------ ------- ------- ------ ------
Investing activities:
Proceeds from sale of
businesses and assets...... 28 15 28 15 -- --
Expenditures for property,
plant and equipment........ (65) (94) (64) (92) (1) (2)
Expenditures for equipment
on operating leases........ (68) (53) -- -- (68) (53)
Acquisitions and
investments................ (28) (80) (12) (80) (16) --
------ ------ ------- ------- ------ ------
Net cash provided (used)
by investing
activities............. (133) (212) (48) (157) (85) (55)
------ ------ ------- ------- ------ ------
Financing activities:
Proceeds from issuance of
long-term debt............. -- 500 -- 300 -- 200
Payment of long-term debt... -- (644) -- (644) -- --
Net increase (decrease) in
short-term debt and
revolving credit
facilities................. 463 219 90 235 373 (16)
Capital contribution........ -- -- (20) -- 20 --
Proceeds from issuance of
common stock............... 45 55 45 55 -- --
Dividends paid (common and
preferred)................. (16) (16) (16) (16) -- (20)
Repurchases of common
stock...................... (32) -- (32) -- -- --
Other, net.................. 13 4 13 3 -- 1
------ ------ ------- ------- ------ ------
Net cash provided (used)
by financing
activities............. 473 118 80 (67) 393 165
------ ------ ------- ------- ------ ------
Effect of foreign exchange
rate changes on cash and
cash equivalents............ (3) (1) (3) (1) -- --
------ ------ ------- ------- ------ ------
Increase (decrease) in cash
and cash equivalents........ $ 51 $ (39) $ 23 $ (49) $ 28 $ 10
Cash and cash equivalents,
beginning of period......... 116 132 99 117 17 15
------ ------ ------- ------- ------ ------
Cash and cash equivalents,
end of period............... $ 167 $ 93 $ 122 $ 68 $ 45 $ 25
====== ====== ======= ======= ====== ======
Cash paid during the period
for interest................ $ 143 $ 136 $ 65 $ 84 $ 78 $ 52
====== ====== ======= ======= ====== ======
Cash paid during the period
for taxes................... $ 125 $ 102 $ 94 $ 55 $ 31 $ 47
====== ====== ======= ======= ====== ======
</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."
5
<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,
1995................... $ 1 $1,154 $(21) $(10) $(2) $399 $ (1) $1,520
Net income............. -- -- -- -- -- 316 -- 316
Dividends declared..... -- -- -- -- -- (22) -- (22)
Translation adjustment. -- -- 7 -- -- -- -- 7
Capital contributions
on stock issuance..... -- 84 -- -- -- -- -- 84
Recognition of
compensation on
restricted stock...... -- -- -- 4 -- -- -- 4
Issuance of restricted
stock................. -- -- -- (3) -- -- -- (3)
Pension liability
adjustment............ -- -- -- -- (2) -- -- (2)
--- ------ ---- ---- --- ---- ---- ------
BALANCE, DECEMBER 31,
1996................... 1 1,238 (14) (9) (4) 693 (1) 1,904
Net income............. -- -- -- -- -- 280 -- 280
Dividends declared..... -- -- -- -- -- (17) -- (17)
Translation adjustment. -- -- (63) -- -- -- -- (63)
Capital contributions
on stock issuance..... -- 48 -- -- -- -- -- 48
Recognition of
compensation on
restricted stock...... -- -- -- 5 -- -- -- 5
Issuance of restricted
stock................. -- 11 (11) -- -- -- --
Acquisition of treasury
stock................. -- -- -- -- -- -- (32) (32)
--- ------ ---- ---- --- ---- ---- ------
BALANCE, SEPTEMBER 30,
1997................... $ 1 $1,297 $(77) $(15) $(4) $956 $(33) $2,125
=== ====== ==== ==== === ==== ==== ======
</TABLE>
The accompanying notes to financial statements are an integral part of
these Statements of Changes in Stockholders' Equity.
6
<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 the
consolidation of Case's 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, 1997, 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 1997 presentation.
(2) EXTRAORDINARY LOSS
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.
As a result of the repurchase, the Company recorded a $22 million
extraordinary, after-tax charge in the first quarter of 1996.
On August 23, 1996, the Company established new credit facilities consisting
of $3.4 billion in lines of credit and liquidity facilities. 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 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.
(3) INVENTORIES
Inventories are stated at the lower of cost or market, generally using the
first-in, first-out (FIFO) method. Inventory cost includes material, labor and
overhead.
Inventories consist of the following (in millions):
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
1997 1996
------------- ------------
<S> <C> <C>
Raw materials.................................. $ 214 $175
Work-in-process................................ 107 147
Finished goods................................. 834 666
------ ----
Total inventories.......................... $1,155 $988
====== ====
</TABLE>
7
<PAGE>
CASE CORPORATION AND CONSOLIDATED SUBSIDIARIES
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
(4) ASSET-BACKED SECURITIZATIONS
In the first nine months of 1997, limited-purpose business trusts organized
by Case Credit issued $1,706 million of asset-backed securities to outside
investors. Case Credit has sold $1,301 million of U.S. and Canadian retail
notes to the trusts in connection with these issuances. In the first nine
months of 1996, Case Credit issued asset-backed securities totaling $1,646
million, selling $1,238 million of U.S. and Canadian retail notes to the
trusts in connection with these issuances. The proceeds from the sale of
retail notes were used to repay outstanding debt and to finance additional
receivables.
(5) INCOME TAXES
On a consolidated basis, the Company's effective income tax rate of 32% for
the first nine months of 1997 was lower than the U.S. statutory tax rate of
35% primarily due to recognition of tax benefits associated with the Company's
foreign sales corporation, research and development tax credits and a
reduction in the tax valuation reserve in certain foreign jurisdictions,
partially offset by state income taxes and foreign income taxed at different
rates. 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 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 in certain foreign
jurisdictions.
(6) FINANCIAL INSTRUMENTS
Derivatives
The Company uses derivative financial instruments to manage its interest
rate and foreign currency exposures. Case does not hold or issue financial
instruments for trading purposes. The notional amounts of these contracts do
not represent amounts exchanged by the parties and, thus, are not a measure of
the Company's risk. The net amounts exchanged are calculated on the basis of
the notional amounts and other terms of the contracts, such as interest rates
or exchange rates, and only represent a small portion of the notional amounts.
The credit and market risk under these agreements is minimized through
diversification among counterparties with high credit ratings.
Depending on the item being hedged, gains and losses on derivative financial
instruments are either recognized in the results of operations as they accrue
or are deferred until the hedged transaction occurs. Derivatives used as
hedges are effective at reducing the risk associated with the exposure being
hedged and are designated as a hedge at the inception of the derivative
contract. Accordingly, changes in the market value of the derivative are
highly correlated with changes in the market value of the underlying hedged
item at the inception of the hedge and over the life of the hedge contract.
Foreign Exchange Contracts
Case enters into foreign exchange forward contracts and swaps to hedge
certain purchase and sale commitments and loans made to foreign subsidiaries
denominated in foreign currencies. Some of these transactions involve two
foreign currencies depending on the local exchange exposures of foreign
subsidiaries. The terms of these contracts is generally one year or less. The
purpose of the Company's foreign currency hedging activities is to protect the
Company from the risk that the eventual cash flows resulting from loan
repayments and inventory purchases will be adversely affected by changes in
exchange rates.
8
<PAGE>
CASE CORPORATION AND CONSOLIDATED SUBSIDIARIES
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
The recognition of gains and losses on contracts entered into to hedge
intercompany debt are deferred and included in net income as an adjustment to
"Interest income and other" on the date the forward contract matures. The
recognition of gains or losses on contracts entered into to hedge purchase and
sale commitments are included in net income as an adjustment to "Cost of goods
sold" as foreign exchange rates change. Gains and losses resulting from the
termination of foreign exchange contracts prior to maturity are also included
in net income.
Case had foreign exchange contracts with a notional value of $233 million at
September 30, 1997. Case had foreign exchange contracts with a notional value
of $652 million at December 31, 1996.
INTEREST RATE SWAPS
Case enters into interest rate swaps to stabilize funding costs by
minimizing the effect of potential interest rate increases on floating-rate
debt in a rising interest rate environment. Under these agreements, the
Company contracts with a counterparty to exchange the difference between a
fixed rate and a floating rate applied to the notional amount of the swap.
Swap contracts are principally between one and four years in duration. The
differential to be paid or received on interest rate swap agreements is
accrued as interest rates change and is recognized in net income as an
adjustment to interest expense.
Gains and losses resulting from terminated interest rate swap agreements are
deferred and recognized in net income over the shorter term of the remaining
contractual life of the swap agreement or the remaining term of the debt
underlying the swap agreement. If swap agreements are terminated due to the
underlying debt being extinguished, any resulting gain or loss is recognized
in net income as an adjustment to interest expense at the time of the
termination.
The weighted-average pay and receive rates for the swaps outstanding at
September 30, 1997, were 6.36% and 5.05%, respectively. The weighted-average
pay and receive rates for the swaps outstanding at December 31, 1996, were
6.80% and 5.00%, respectively.
Back-to-Back Interest Rate Caps
The asset-backed commercial paper liquidity facility (the "Liquidity
Facility") requires a subsidiary of Case Credit to have interest rate cap
agreements in place. Due to the relatively high expense of obtaining such an
instrument, Case Credit sells an identical cap, concurrent with the cap
purchase, to the same counterparty. This effectively minimizes the overall
expense to Case Credit, meets the requirements of the Liquidity Facility and
eliminates any risk of financial loss on the purchased cap. The defined term
of the cap is approximately 48 months.
Premiums paid for interest rate cap agreements purchased and sold are
included in "Other assets" and "Other liabilities," respectively, in the
accompanying Balance Sheets, and are amortized to interest expense over the
terms of the agreements. Amounts receivable or payable under cap agreements
are recognized in net income as adjustments to interest expense over the term
of the related debt. If interest rate cap agreements are terminated due to the
underlying debt being extinguished, any resulting gain or loss is recognized
in net income as an adjustment to "Interest income and other" at the time of
the termination.
At September 30, 1997, Case Credit had a back-to-back cap at a rate of
7.00%, at a notional amount of approximately $31 million. At December 31,
1996, Case Credit had a back-to-back cap at a rate of 7.00%, at a notional
amount of approximately $98 million.
9
<PAGE>
CASE CORPORATION AND CONSOLIDATED SUBSIDIARIES
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
(7) ACQUISITIONS AND INVESTMENTS
During the third quarter of 1997, the Company acquired Gem Sprayers Limited
("Gem"), a U.K.-based manufacturer of self-propelled and trailed/mounted
sprayers for agricultural applications. Gem, with 1996 revenues of
approximately $12 million, is the leading supplier of sprayers in the U.K. In
the first quarter of 1997, the Company acquired bor-mor Inc., a North
American-based manufacturer of directional drilling equipment, with 1996
revenues of approximately $9 million. Also during the first quarter, the
Company acquired Agri-Logic, a leading developer of software for agricultural
applications.
During the third quarter of 1997, Case Credit announced a joint venture with
UFB LOCABAIL, SA, a subsidiary of Compagnie Bancaire, to provide financing for
Case's European dealers and retail customers. The formation of this new
venture, Case Credit Europe S.A.S., establishes the first pan-European finance
organization to serve both the agricultural and construction equipment markets
in the region. Also during the third quarter, Case Credit and Cummins Engine
Company, Inc. ("Cummins") entered into an agreement under which Case Credit
will offer financing to all qualified North American retail purchasers,
dealers and manufacturers of industrial equipment powered by Cummins engines.
(8) 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 the 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.
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.
10
<PAGE>
CASE CORPORATION AND CONSOLIDATED SUBSIDIARIES
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
(9) EARNINGS PER SHARE OF COMMON STOCK
<TABLE>
<CAPTION>
THREE
MONTHS
ENDED NINE MONTHS
SEPTEMBER ENDED
30, SEPTEMBER 30,
----------- -------------
1997 1996 1997 1996
----- ----- ------ ------
<S> <C> <C> <C> <C>
Earnings per average share of Common Stock (shares
in millions):
Primary
- -------
Net earnings after preferred stock dividends and
before extraordinary loss....................... $1.00 $0.81 $ 3.65 $ 3.28
Extraordinary loss............................... -- (0.15) -- (0.45)
----- ----- ------ ------
Net earnings per share of common stock........... $1.00 $0.66 $ 3.65 $ 2.83
===== ===== ====== ======
Average common and common equivalent shares
outstanding..................................... 76 74 75 74
Fully Diluted
- -------------
Net earnings before extraordinary loss........... $0.98 $0.80 $ 3.54 $ 3.20
Extraordinary loss............................... -- (0.14) -- (0.43)
----- ----- ------ ------
Net earnings per share of common stock........... $0.98 $0.66 $ 3.54 $ 2.77
===== ===== ====== ======
Average common and common equivalent shares
outstanding..................................... 79 78 79 77
</TABLE>
In February 1997 the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards ("SFAS") No. 128, "Earnings per Share." Case
will adopt SFAS No. 128 effective for the year ending December 31, 1997. The
pro forma impact of adopting SFAS No. 128 for the three and nine month periods
ended September 30, 1997 and 1996, is as follows:
<TABLE>
<CAPTION>
PRO FORMA PRO FORMA
THREE MONTHS NINE MONTHS
ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------- -------------
1997 1996 1997 1996
------ ------ ------ ------
<S> <C> <C> <C> <C>
Earnings per average share of Common Stock
(shares in millions):
Basic
- -----
Net earnings after preferred stock dividends
and before extraordinary loss................. $ 1.03 $ 0.83 $ 3.72 $ 3.36
Extraordinary loss............................. -- (0.15) -- (0.46)
------ ------ ------ ------
Net earnings per share of common stock......... $ 1.03 $ 0.68 $ 3.72 $ 2.90
====== ====== ====== ======
Average common shares outstanding.............. 74 72 74 72
Diluted
- -------
Net earnings before extraordinary loss......... $ 0.98 $ 0.80 $ 3.54 $ 3.20
Extraordinary loss............................. -- (0.14) -- (0.43)
------ ------ ------ ------
Net earnings per share of common stock......... $ 0.98 $ 0.66 $ 3.54 $ 2.77
====== ====== ====== ======
Average common and common equivalent shares
outstanding................................... 79 78 79 77
</TABLE>
11
<PAGE>
CASE CORPORATION AND CONSOLIDATED SUBSIDIARIES
NOTES TO FINANCIAL STATEMENTS--(CONCLUDED)
(10) SUBSEQUENT EVENTS
In October 1997, the Company announced an agreement to acquire the
outstanding shares of Fortschritt Erntemaschinen GmbH ("Fortschritt"). Based
in Neustadt, Germany, Fortschritt manufactures hay and forage equipment,
including self-propelled forage harvesters, large square balers and
windrowers. Case also agreed to acquire select assets of two other German
companies including intellectual property and production and distribution
rights related to self-propelled forage harvesters and combines. These
acquisitions will provide Case with a broad range of conventional and rotary
combines in Europe and significantly expand the Company's line of harvesting
equipment in that region. Combined sales of the Fortschritt and other products
included in the agreements were approximately $110 million in 1996. The
Company anticipates completion of these acquisitions in the fourth quarter of
1997.
On October 16, 1997, Case Credit issued $150 million aggregate principal
amount of its 6.75% unsecured and unsubordinated notes due 2007 pursuant to a
$700 million shelf registration statement filed with the Securities and
Exchange Commission in September 1997. The net proceeds from the offering will
be used to fund Case Credit's growing portfolio of receivables and for other
corporate purposes, including the repayment of indebtedness.
On October 17, 1997, Case Credit Australia Pty Ltd replaced its A$250
million revolving credit facilities with A$1.0 billion in new credit
facilities. These new facilities are guaranteed by Case Credit Corporation and
are comprised of a A$400 million commercial paper program that is backed by a
syndicated credit facility, and a A$600 million medium-term note program.
Under the terms of the commercial paper program, the principal amount of the
commercial paper outstanding, combined with the amounts outstanding under the
syndicated credit facility, cannot exceed a total of A$400 million.
12
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
ANALYSIS OF RESULTS OF OPERATIONS
Third Quarter 1997 vs. Third Quarter 1996
EARNINGS
The Company recorded net income, before extraordinary items, of $78 million
in the third quarter of 1997 up 26% or $16 million from $62 million in the
same period of 1996. Net income in the third quarter of 1997 was $78 million
with primary earnings per share of $1.00, versus net income and primary
earnings per share of $51 million and $0.66, 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 52% increase
in primary earnings per share reflects the year-over-year increase in net
income partially offset by an increase in the number of common shares
outstanding.
The Company's industrial operations recorded income, before equity income of
Case Credit, of $55 million in the third quarter of 1997 versus $39 million in
the comparable quarter of 1996, an increase of 41% year-over-year. On a pretax
basis, the Company's industrial operations recorded third quarter earnings of
$81 million in comparison to $59 million in 1996, a $22 million or 37%
increase over prior year. The industrial effective income tax rate decreased
from 34% in the third quarter of 1996 to 32% in the third quarter of 1997
primarily due to tax benefits associated with the Company's foreign sales
corporation, research and development tax credits and reductions in the tax
valuation reserves in certain foreign jurisdictions, partially offset by state
income taxes and foreign income taxed at different rates.
Case's operating earnings for the third quarter of 1997 were $123 million
versus $103 million for the same period in 1996. 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 $20 million year-over-year increase in operating earnings is
primarily attributable to pricing gains and higher volumes, along with
contributions from acquisitions and restructuring-related savings, partially
offset by inflationary cost increases and retail store divestitures.
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,
-----------
1997 1996
----- -----
<S> <C> <C>
Income before extraordinary loss............................. $ 78 $ 62
Income tax provision......................................... 26 20
Interest expense............................................. 19 21
----- -----
Operating earnings....................................... $ 123 $ 103
===== =====
</TABLE>
REVENUES
On a consolidated basis, worldwide revenues increased $245 million or 20% in
the third quarter of 1997 to $1,444 million. Net sales of equipment and parts
increased $231 million or 20% to $1,380 million. The increase in net sales
consists primarily of a 25% volume increase and a 2% pricing increase
partially offset by a 5% deterioration as a result of foreign currency and a
2% decrease resulting from retail store divestitures. The year-over-year
volume increase reflects net sales increases in each of Case's four geographic
regions, including incremental sales from acquisitions. Net sales in the third
quarter of 1997 increased 30% in Europe and 13% in North America, as compared
with prior year levels. In addition, net sales in the Company's emerging
markets increased 27% for the third quarter of 1997 as compared to the prior
year, with increases in the Latin America and Asia Pacific regions of 74% and
6%, respectively. Worldwide, third quarter net sales of agricultural equipment
increased 25% over the comparable period in 1996, while third quarter sales of
construction equipment increased 23% over the same period in 1996.
13
<PAGE>
Worldwide net sales of agricultural equipment increased 25% in the third
quarter of 1997 as compared to the same period in 1996. The increase in sales
of agricultural equipment in North America reflects both the success of the new
MX series Maxxum (mid-horsepower) tractors launched earlier this year, as well
as strong increases in sales of MAGNUM(TM) (120-plus horsepower) tractors,
cotton pickers and combines. The increase in sales of agricultural equipment in
Europe reflects a significant increase in sales of combines and high-horsepower
tractors, including higher year-over-year sales of both combines and high-
horsepower tractors to the former Soviet Union, as well as increased sales of
cotton pickers and implements. In Europe, the August 1996 acquisition of Steyr
contributed to the increase in sales of tractors in all horsepower categories,
driven by the combined strength of the Case-Steyr tractor line. In the
Company's Asia Pacific region, the increase in agricultural sales resulted from
strong increases in sales of low and mid-range horsepower tractors, primarily
reflecting strong customer demand for the new MX series tractors, as well as
increased sales of combines. In the Company's Latin America region, the
increase in agricultural sales resulted from strong sales of 40-plus horsepower
tractors, MAGNUM(TM) tractors and implements, along with incremental sales of
sugar cane harvesters as a result of the June 1996 acquisition of Austoft.
Worldwide net sales of construction equipment increased 23% in the third
quarter of 1997 as compared to the third quarter of 1996. The increase in net
sales of construction equipment in North America reflects significant year-
over-year increases in sales of loader/backhoes, wheel loaders, crawlers and
excavators. These increases were partially offset by lower skid steer sales as
a result of the phased launch of the new XT line of high-end skid steers. The
increase in net sales of construction equipment in Europe primarily reflects
increased sales of loader/backhoes, wheel loaders and skid steers as a result
of the October 1996 acquisition of Fermec. In the Company's Asia Pacific
region, sales of construction equipment primarily increased due to higher year-
over-year increases in sales of loader/backhoes and skid steers. In the
Company's Latin American region, sales of construction equipment increased
significantly in all categories, reflecting improvements in the Brazilian and
Mexican economies as compared to 1996.
COSTS AND EXPENSES
Cost of goods sold for the industrial operations increased $195 million to
$1,075 million in the third quarter of 1997 as compared to the same period in
1996, primarily due to the year-over-year volume increase. Cost of goods sold
as a percentage of net sales increased to 77.9% in the third quarter of 1997
from 76.6% in the third quarter of 1996. The year-over-year increase in cost of
goods sold as a percentage of net sales primarily reflects changes in product
and geographic sales mix, including the impact of acquisitions, as well as the
impact of higher new product launch costs and retail store divestitures,
partially offset by pricing actions and the continued success of the Company's
cost reduction initiatives.
Selling, general and administrative expenses for the industrial operations
were $155 million in the third quarter of 1997 as compared to $153 million in
the comparable period of 1996. As a percentage of net sales, selling general
and administrative expenses decreased to 11.2% in the third quarter of 1997 as
compared to 13.3% in the third quarter of 1996. This year-over-year decrease as
a percentage of net sales reflects the impact of the Company's ongoing cost
reduction initiatives including lower retail selling expenses as a result of
restructuring-related sales of company-owned retail stores, the impact of
foreign exchange, and reductions in selling expenses related to low rate and
other sales financing programs. Case Industrial makes payment 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. These payments are included in
selling, general and administrative expenses of Case Industrial and are
eliminated to arrive at consolidated selling, general and administrative
expenses. These decreases were partially offset by incremental selling, general
and administrative costs for the acquisitions of Steyr and Fermec in the third
and fourth quarters of 1996, respectively.
Research, development and engineering expenses were $49 million in both the
third quarter of 1997 and 1996, reflecting the Company's continued investment
in new product development.
14
<PAGE>
Interest expense for Case's industrial operations was $19 million for the
third quarter of 1997, $2 million lower than the same period of 1996. The
decrease in interest expense was due to lower average debt levels during the
third quarter of 1997 as compared to the third quarter of 1996, and also
reflects the impact of new credit facilities that were established in August
1996.
CREDIT OPERATIONS
Case Credit recorded net income, before extraordinary items, of $23 million
in both the third quarter of 1997 and the third quarter of 1996. Net income in
the third quarter of 1997 was $23 million, or $3 million higher than the $20
million of net income recorded in the comparable period of 1996. As compared
to prior year, Case Credit's net income for the third quarter of 1997 reflects
higher earnings as a result of increased levels of on-balance-sheet
receivables and growth in Case Credit's operating lease portfolio, partially
offset by reduced income from asset-backed securitizations. Case Credit also
recorded a $3 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. In addition, Case Credit's net income
in the third quarter of 1997 was adversely impacted by a higher tax rate as
compared to the third quarter of 1996.
Case Credit reported revenues of $75 million for the third quarter of 1997
as compared to revenues of $61 million for the third quarter of 1996. Finance
income earned on retail notes and finance leases increased $11 million in the
third quarter of 1997 as compared to the same period in 1996, primarily due to
increased levels of on-balance-sheet receivables. In addition, year-over-year
third quarter revenues from operating leases increased $5 million, reflecting
the growth in Case Credit's operating lease portfolio. These revenue increases
were offset by lower securitization and servicing fee income. Case Credit
continues to implement its asset-management strategy of retaining a larger
percentage of assets on balance sheet, as opposed to selling those assets
through asset-backed securitizations. Long term, the Company believes this
strategy will generate a more stable earnings performance for Case Credit.
Interest expense for the third quarter of 1997 was $28 million as compared
to $22 million for the third quarter of 1996. The $6 million increase in
interest expense primarily relates to higher average debt levels during the
third quarter of 1997 as compared to the third quarter of 1996, largely due to
the growth in Case Credit's on-balance-sheet receivables and increased
equipment on operating leases.
Operating expenses increased $2 million to a total of $13 million in the
third quarter of 1997 as compared to the third quarter of 1996, primarily due
to additional depreciation expense for equipment on operating leases as a
result of Case Credit's larger operating lease portfolio.
As of September 30, 1997, Case Credit's serviced portfolio of receivables
increased 20% over the same time last year to a record $4.9 billion. Gross
receivables acquired in the third quarter of 1997 increased $795 million or
17% to $2.3 billion versus the same period in 1996.
Nine Months Ended 1997 vs. Nine Months Ended 1996
EARNINGS
The Company recorded income, before extraordinary items, of $280 million in
the first nine months of 1997 as compared to $247 million in the first nine
months of 1996. In January 1996, the Company repurchased for cash all of its
10 1/2% Senior Subordinated Notes. As a result of the repurchase, the Company
recorded a $22 million extraordinary, after-tax loss in the first quarter of
1996. 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. Earnings per share, before
extraordinary items, for the first nine months of 1997 was $3.65 per share
compared to $3.28 per share in the first nine months of 1996.
15
<PAGE>
The Company recorded net income of $280 million for the first nine months of
1997, up $66 million or 31% as compared to the comparable period of 1996.
Primary earnings per share for the first nine months of 1997 was $3.65 per
share compared to $2.83 per share for the first nine months of 1996. The 29%
year-over-year increase in primary earnings per share reflects the year-over-
year increase in net income, partially offset by an increase in the number of
common shares outstanding.
The Company's industrial operations recorded income, before equity income of
Case Credit, of $218 million in the first nine months of 1997 versus $179
million in the comparable period of 1996, an increase of $39 million or 22%
year-over-year. On a pretax basis, the Company's industrial earnings increased
$42 million to $321 million in the first nine months of 1997 as compared to the
prior year. The industrial effective income tax rate decreased from 36% in the
first nine months of 1996 to 32% in the first nine months of 1997, primarily
due to recognition of tax benefits associated with the Company's foreign sales
corporation, research and development tax credits and a reduction in the tax
valuation reserve in certain foreign jurisdictions, partially offset by state
income taxes and foreign income taxed at different rates.
Operating earnings for the first nine months of 1997 were $437 million versus
$416 million for the comparable period in 1996. Case defines operating earnings
as industrial earnings before interest, taxes, changes in accounting principles
and extraordinary items, including the income of Case Credit on an equity
basis. Case's operating earnings for the first nine months of 1997 primarily
reflects the impact of higher price realization and restructuring-related
savings, as well as increased volumes, including the impact of acquisitions.
These increases were partially offset by inflationary cost increases and higher
selling, general and administrative expenses including new product launch costs
and product introduction expenses, as well as incremental selling, general and
administrative expenses from acquisitions. In addition, the year-over-year
improvement in operating earnings was adversely impacted by the transferring of
tractor production in the first quarter of 1997 from the now closed Neuss,
Germany, plant to other Case manufacturing facilities in Racine, Wisconsin, and
Doncaster, England.
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,
-----------
1997 1996
----- -----
<S> <C> <C>
Income before extraordinary loss............................. $ 280 $ 247
Income tax provision......................................... 103 100
Interest expense............................................. 54 69
----- -----
Operating earnings....................................... $ 437 $ 416
===== =====
</TABLE>
REVENUES
On a consolidated basis, worldwide revenues increased $441 million or 11% in
the first nine months of 1997 to $4,277 million. Net sales of equipment and
parts increased $451 million or 12% to $4,103 million. The increase in net
sales consists primarily of a 15% volume increase and a 2% pricing increase,
partially offset by a 3% deterioration resulting from the impact of foreign
exchange and a 2% decrease due to retail store divestitures. The year-over-year
volume increase reflects net sales increases in each of Case's four geographic
regions, including incremental sales from acquisitions. Net sales in the
Company's emerging markets increased 29% in the first nine months of 1997 as
compared to the same period in 1996, with increases in the Latin America and
Asia Pacific regions of 60% and 15%, respectively. Net sales for the first nine
months of 1997 also increased in Europe and North America, with year-over-year
increases of 17% and 7%, respectively. Worldwide net sales of agricultural
equipment increased 18% over the first nine months of 1996, while worldwide
sales of construction equipment increased 8% over the same period in 1996.
16
<PAGE>
Worldwide net sales of agricultural equipment increased 18% in the first nine
months of 1997 as compared to the same period in 1996. The increase in sales of
agricultural equipment in North America reflects both the success of the new MX
series Maxxum (mid-horsepower) tractors launched earlier this year, as well as
strong increases in sales of MAGNUM(TM) (120-plus horsepower) tractors,
combines and implements. The increase in sales of agricultural equipment in
Europe reflects a significant increase in sales of combines and high-horsepower
tractors, including higher year-over-year sales of both combines and high-
horsepower tractors to the former Soviet Union, as well as increased sales of
cotton pickers and implements. In Europe, the August 1996 acquisition of Steyr
contributed to the increase in sales of tractors in all horsepower categories,
driven by the combined strength of the Case-Steyr tractor line. The increase in
sales of agricultural equipment in the Company's Asia Pacific region reflects
strong customer demand for the new MX series tractors, as well as increased
sales of four-wheel drive tractors, combines, cotton pickers and implements. In
addition, the increase in agricultural equipment sales in Case's Asia Pacific
region reflects a strong increase in sales of sugar cane harvesters as a result
of the June 1996 acquisition of Austoft. In the Company's Latin America region,
year-over-year sales of agricultural equipment doubled, reflecting strong
increases in sales of MAGNUM(TM) and 40-plus horsepower tractors, combines,
cotton pickers and implements, along with incremental sales of sugar cane
harvesters.
Worldwide net sales of construction equipment increased 8% in the first nine
months of 1997 versus the first nine months of 1996. The increase in net sales
of construction equipment in Europe primarily reflects increased sales of
loader/backhoes and skid steers as a result of the October 1996 acquisition of
Fermec. In North America, sales of construction equipment in the first nine
months of 1997 were up slightly as compared to prior year, led by higher sales
of loader/backhoes and excavators, partially offset by lower sales of skid
steers as a result of the phased launch of the new XT line of high-end skid
steers. In the Company's Asia Pacific region, higher sales of construction
equipment were led by increases in loader/backhoes, skid steers and excavators.
In the Company's Latin America region, sales of construction equipment
increased in virtually all product lines.
COSTS AND EXPENSES
Cost of goods sold for the industrial operations increased $362 million to
$3,138 million in the first nine months of 1997 as compared to the same period
in 1996, primarily due to the year-over-year volume increase, including the
impact of acquisitions. Cost of goods sold as a percentage of net sales was
76.5% in the first nine months of 1997 versus 76.0% for the comparable period
of 1996. This increase in cost of goods sold as a percentage of net sales
primarily reflects changes in product and geographic sales mix, including the
impact of acquisitions, as well as the impact of higher product launch costs
and retail store divestitures. These increases were partially offset by pricing
actions and cost improvement initiatives from restructuring and other cost
reduction initiatives.
Selling, general and administrative expenses for the industrial operations
were $451 million for the first nine months of 1997 as compared to $423 million
in the comparable period of 1996. As a percentage of net sales, selling general
and administrative expenses decreased to 11.0% in the first nine months of 1997
as compared to 11.6% in the first nine months of 1996. This year-over-year
decrease as a percentage of net sales reflects the impact of the Company's
ongoing cost reduction initiatives including lower retail selling expenses as a
result of restructuring-related sales of company-owned retail stores and the
impact of foreign exchange. These decreases were partially offset by
incremental selling, general and administrative expenses from acquisitions and
higher new product launch costs.
Research, development and engineering expenses increased to $141 million in
the first nine months of 1997 as compared to $140 million in the same period in
1996, reflecting the Company's continued investment in new product development.
During the third quarter of 1997, the Company introduced 17 new models of
agricultural equipment including the 2300 series combine, the CX series
tractor, and the 2555 Cotton Express picker, as well as new large balers,
windrowers and disk harrows. The Company also launched an expansion of its
Advanced Farming Systems line of hardware and software, including new programs
for yield mapping, crop modeling and crop scouting. In addition, new product
introductions of construction equipment include the phased launch of the
Company's new XT line of high-end skid steers. During the third quarter of
1996, the Company introduced more than 20 new agricultural equipment products.
17
<PAGE>
Interest expense for Case's industrial operations was $54 million for the
first nine months of 1997, $15 million lower than the same period of 1996. The
decrease in interest expense primarily reflects lower average debt levels
during the first nine months of 1997 as compared to the same period of 1996,
as well as the impact of new credit facilities that were established in August
1996.
On a consolidated basis, the Company's effective income tax rate of 32% for
the first nine months of 1997 was lower than the U.S. statutory tax rate of
35% primarily due to recognition of tax benefits associated with the Company's
foreign sales corporation, research and development tax credits and a
reduction in the tax valuation reserve in certain foreign jurisdictions,
partially offset by state income taxes and foreign income taxed at different
rates. In the first nine months of 1996, the consolidated effective tax rate
of 36% was slightly higher than the U.S. statutory tax rate 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 the tax
valuation reserves in certain foreign jurisdictions.
RESTRUCTURING PROGRAM
During the third quarter of 1997, the Company continued its restructuring
efforts relative to the closure of its Neuss, Germany, facility, the single
largest step in the Company's long-term restructuring program. Earlier this
year, the Company ceased production and closed the Neuss manufacturing
facility, transferring production of its MX series tractor from Neuss to other
existing Case manufacturing facilities in Racine, Wisconsin, and Doncaster,
England. In addition to the Neuss closure, the Company's 1997 restructuring
activities to date include the closure and sale of its Doncaster, England,
foundry and the sale of a parts depot located in Batley, England. The Company
has also continued its divestiture of company-owned retail stores, having sold
four additional stores in 1997.
CREDIT OPERATIONS
Net income for the first nine months of 1997 was $62 million as compared to
$65 million for the first nine months of 1996. The $3 million decrease in
year-over-year net income primarily reflects lower net operating margins and
reduced income from asset-backed securitizations, partially offset by higher
earnings as a result of increased levels of on-balance-sheet receivables. The
third quarter of 1996 included a $3 million extraordinary, after-tax charge to
write-off unamortized bank fees in conjunction with the refinancing of the
Company's credit facilities in August 1996.
Case Credit reported total revenues of $201 million for the first nine
months of 1997 as compared to revenues of $186 million for the first nine
months of 1996. Finance income earned on retail notes and leases increased to
$75 million in the first nine months of 1997 as compared to $44 million in the
same period in 1996, primarily due to increased levels of on-balance-sheet
receivables. In addition, operating lease revenues increased $13 million in
the first nine months of 1997, reflecting the growth in Case Credit's
operating lease portfolio. These revenue increases were offset by decreases in
net gains on retail notes sold, as well as lower securitization and servicing
fee income. Case Credit continues to implement its asset-management strategy
of retaining a larger percentage of assets on balance sheet, as opposed to
selling those assets through asset-backed securitizations. Long term, the
Company believes this strategy will generate a more stable earnings
performance for Case Credit.
Interest expense for the first nine months of 1997 was $72 million, up $19
million from the $53 million reported in the first nine months of 1996. The
increase in interest expense resulted from higher average debt levels during
the first nine months of 1997 as compared to the first nine months of 1996,
primarily due to the growth in Case Credit's on-balance-sheet receivables and
increased equipment on operating leases.
Operating expenses increased $10 million to a total of $38 million for the
first nine months of 1997 as compared to the first nine months of 1996. This
increase primarily resulted from $8 million of additional depreciation expense
for equipment on operating leases relating to Case Credit's larger operating
lease portfolio.
During the first nine months of 1997, Case Credit's serviced portfolio
increased 20% over the comparable period last year to a record $4.9 billion.
Gross receivables acquired in the first nine months of 1997 were $2.3
18
<PAGE>
billion, an increase of 21% versus the same period in 1996. During the first
nine months of 1997, limited-purpose business trusts organized by Case Credit
issued $1,706 million of asset-backed securities to outside investors. Case
Credit has sold $1,301 million of U.S. and Canadian retail notes to the trusts
in connection with these issuances. In the first nine months of 1996, Case
Credit issued asset-backed securities totaling $1,646 million, selling $1,238
million of U.S. and Canadian retail notes to the trusts in connection with
these issuances. The proceeds from the sale of retail notes were used to repay
outstanding debt and to finance additional receivables.
LIQUIDITY AND CAPITAL RESOURCES
The discussion of liquidity and capital resources focuses on the balance
sheets and statements of cash flows. The Company's operations are capital
intensive and subject to seasonal variations in financing requirements for
dealer receivables and inventories. Whenever necessary, funds provided from
operations are supplemented from external sources.
Cash used by operating activities was $286 million in the first nine months
of 1997. Cash used by the industrial operations was $6 million in the first
nine months of 1997 versus cash provided of $176 million in the first nine
months of 1996. Cash used by Case Credit was $280 million for the first nine
months of 1997 as compared to $100 million in the same period of 1996. The net
cash used from operating activities during the first nine months of 1997
primarily reflects increased inventories and retail receivables, offset by net
income and depreciation and amortization. The year-over-year increase in
inventories includes the impact of the Fermec acquisition in the fourth quarter
of 1996. The increase in retail receivables reflects Case Credit's retention of
a larger percentage of receivables as opposed to selling those receivables
under asset-backed securitization transactions. In addition, the Company also
expended $104 million in the first nine months of 1997 for restructuring-
related activities, including closure costs for the Neuss, Germany, facility.
Cash provided by operating activities was $56 million in the first nine months
of 1996, due to net income and depreciation and amortization, partially offset
by increased inventories and receivables.
Cash used by investing activities was $133 million in the first nine months
of 1997 versus $212 million in the comparable period of 1996. Due to the timing
of capital expenditures in 1997, the Company expended $65 million for property,
plant and equipment, as compared to $94 million for the first nine months of
1996. During the first nine months of 1997, the Company received proceeds of
$28 million from the sale of fixed assets as part of the Company's
restructuring program. Cash used by Case Credit included expenditures of $68
million for the purchase of equipment on operating leases, reflecting the year-
over-year growth in Case Credit's operating lease portfolio.
During the first nine months of 1997, the Company's industrial operations
completed three strategic acquisitions resulting in $12 million of investment.
In the first quarter of 1997, the Company acquired bor-mor, Inc., a North
American-based manufacturer of directional drilling equipment, with annual
sales of approximately $9 million. Also during the first quarter, the Company
acquired Agri-Logic, a leading developer of software for agricultural
applications. During the third quarter of 1997, the Company acquired Gem
Sprayers Limited ("Gem") a U.K.-based manufacturer of self-propelled and
trailed/mounted sprayers for agricultural applications. Gem, with 1996 revenues
of approximately $12 million, is the leading supplier of sprayers in the U.K.
During the first nine months of 1996, the Company completed three strategic
acquisitions: Concord, Inc., Austoft Holdings Limited, and Steyr
Landmaschinentechnik AG. These acquisitions resulted in approximately $80
million of investment and an additional $15 million of non-cash consideration.
During the third quarter of 1997, Case Credit announced a joint venture with
UFB LOCABAIL SA, a subsidiary of Compagnie Bancaire, to provide financing for
Case's European dealers and retail customers. The formation of this new
venture, Case Credit Europe S.A.S., establishes the first pan-European finance
organization to serve both the agricultural and construction equipment markets
in that region. Also during the third quarter, Case Credit and Cummins Engine
Company, Inc. ("Cummins") entered into an agreement under which Case Credit
will offer financing to all qualified North American retail purchasers, dealers
and manufacturers of industrial equipment powered by Cummins engines.
19
<PAGE>
Net cash provided by financing activities was $473 million in the first nine
months of 1997, primarily due to increased short-term borrowings to fund Case
Credit's growing portfolio of receivables. Also in the first quarter of 1997,
Case Industrial provided $20 million of additional capitalization for Case
Credit. During the second quarter of 1997, the Company initiated a stock
repurchase program to acquire up to four million shares of the Company's Common
Stock. The Company has expended approximately $32 million to repurchase shares
under this program. Purchases of Common Stock are at the Company's discretion,
subject to prevailing financial and market conditions.
The Company received proceeds from the issuance of long-term debt of $500
million in the first quarter of 1996. In January 1996, the Company issued $300
million aggregate principal amount of its 7 1/4% unsecured and unsubordinated
notes due 2016. In February 1996, 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 Case
Credit 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. The proceeds from the $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 in the first quarter of 1996.
Total debt at September 30, 1997, was $2,547 million, $1,609 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 53.6% at September
30, 1997, and the Company's industrial debt to capitalization ratio was 29.9%.
The consolidated and industrial ratios at December 31, 1996 were 51.8% and
30.9%, respectively.
FUTURE LIQUIDITY AND CAPITAL RESOURCES
The Company has various sources of future liquidity including public debt
offerings and other available lines of credit, as well as the asset-backed
securitization markets. The Company anticipates that it will continue to pool
retail receivables and issue asset-backed securities in the United States and
Canada. In addition, the Company has a $400 million private, revolving
wholesale (dealer) receivable asset-backed securitization facility that can be
utilized to periodically sell wholesale (dealer) receivables to third party
investors.
During the third quarter of 1997, the Company announced that it plans to
invest approximately $100 million over the next three years to expand its
presence in the Latin American agricultural equipment market, including the
establishment of a manufacturing facility in Brazil. The Company anticipates
that funding for these expenditures will be derived from continuing operations
and from additional borrowings under the Company's existing credit facilities.
In October 1997, the Company announced an agreement to acquire the
outstanding shares of Fortschritt Erntemaschinen GmbH ("Fortschritt"). Based in
Neustadt, Germany, Fortschritt manufactures hay and forage equipment, including
self-propelled forage harvesters, large square balers and windrowers. Case also
agreed to acquire select assets of two other German companies including
intellectual property and production and distribution rights related to self-
propelled forage harvesters and combines. Combined sales of the Fortschritt and
other products included in the agreements were approximately $110 million in
1996. The Company anticipates that funding for these acquisitions will be
derived from continuing operations and from additional borrowings under the
Company's existing credit facilities. The Company anticipates completion of
these acquisitions in the fourth quarter of 1997.
On October 16, 1997, Case Credit issued $150 million aggregate principal
amount of its 6.75% unsecured and unsubordinated notes due 2007 pursuant to a
$700 million shelf registration statement filed with the Securities and
Exchange Commission in September 1997. The net proceeds from the offering will
be used to fund Case Credit's growing portfolio of receivables and for other
corporate purposes, including the repayment of indebtedness.
20
<PAGE>
On October 17, 1997, Case Credit Australia Pty Ltd replaced its A$250
million revolving credit facilities with A$1.0 billion in new credit
facilities. These new facilities are guaranteed by Case Credit Corporation and
are comprised of a A$400 million commercial paper program that is backed by a
syndicated credit facility, and a A$600 million medium-term note program.
Under the terms of the commercial paper program, the principal amount of the
commercial paper outstanding, combined with the amounts outstanding under the
syndicated credit facility, cannot exceed a total of A$400 million. These
facilities support Case Credit's strategy to leverage its financing options
and broaden its access to traditional capital markets.
On May 14, 1997, the Company's Board of Directors authorized the purchase
from time to time of up to four million shares of the Company's Common Stock.
The purchase of Case Common Stock under this program is at the Company's
discretion, subject to prevailing financial and market conditions.
OUTLOOK
Case continues to benefit from strong worldwide markets and economic
conditions for its agricultural and construction equipment and financial
services businesses, however, the worldwide volatility in the capital markets
could impact business conditions in some parts of the world.
Grain stock levels, while improving, are expected to stay at the low range
of normal levels as demand for agricultural commodities continues to grow
around the world, driven by population growth and improving diets within
developing nations. In North America, net farm income is forecasted to be at
sustained levels as a result of an expected good harvest and solid commodity
prices. These same factors are creating a favorable outlook in Europe,
although the U.K. market has been negatively impacted by higher currency
rates, resulting in lower subsidy payments. In the Asia Pacific region, the
1997-1998 growing season could be affected by uncertain weather conditions. In
Latin America, the agricultural business continues to grow rapidly,
particularly in the higher horsepower categories, and the near-term impact of
uncertain economic conditions in Brazil is currently expected to be minimal.
In Case's construction equipment market, the outlook varies by both country
and economic conditions. In North America, current, or even slightly higher,
interest rates are expected to result in continued strong housing starts. In
Europe, economic conditions are favorable on balance, and France and Germany,
which have been weak, are showing signs of improvement. However the
construction sectors are expected to lag that improvement. In the Asia Pacific
region, the Australian housing market continues to show early signs of
recovery, and the impact to Case of worsening economic conditions in southeast
Asia is currently expected to be minimal, however, conditions continue to be
volatile. In Latin America, economic conditions in Mexico continue to improve
and retail sales of construction equipment are expected to be strong year-
over-year. In Brazil, sales of construction equipment to date have been
strong, however, recent economic measures taken by Brazil's government may
impact sales growth in that country.
The information included in the "Outlook" section represents forward-looking
statements and involves risks and uncertainties that could cause actual
results to differ materially from those in the forward-looking statements. 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 and government
spending. Some of the other significant factors for the Company include
general economic and capital market conditions, the cyclical nature of its
business, foreign currency movements, the Company's access to credit,
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 and employee relations. Further
information concerning factors that could significantly impact expected
results is included in the following sections of the Company's Form 10-K
Annual Report for 1996, as filed with the Securities and Exchange Commission:
Business--Employees, Business--Environmental Matters, Business--Significant
International Operations, Business--Seasonality and Production Schedules,
Business--Competition, Legal Proceedings, and Management's Discussion and
Analysis of Financial Condition and Results of Operations.
21
<PAGE>
PART II
OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
For a description of legal proceedings to which the Company is party, see
footnote 8 to the Case 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, 1997.
22
<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
President, Financial Services and
Chief Financial Officer (Principal
Financial Officer and authorized
signatory for Case Corporation)
Date: November 13, 1997
23
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT PAGE
NUMBER DESCRIPTION OF EXHIBITS NUMBER
------- ----------------------- ----------
<C> <S> <C>
4 The Company hereby agrees to furnish to the Securities
and Exchange Commission, upon its request, the instru-
ments with respect to its guaranty of certain indebt-
edness issued by its subsidiaries, which indebtedness
does not exceed 10% of the Company's total consoli-
dated assets.
10(a) --Second Amendment, dated as of August 25, 1997, to
the Revolving Credit and Guarantee Agreement, dated as
of August 23, 1996, among Case Corporation, Case Can-
ada Corporation/Corporation Case Canada, certain for-
eign Subsidiaries from time to time parties thereto,
the Lenders 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.
10(b) --Second Amendment, dated as of August 25, 1997, to
the Revolving Credit and Guarantee Agreement, dated as
of August 23, 1996, among Case Credit Corporation,
certain foreign Subsidiaries from time to time parties
thereto, the Lenders parties thereto, the Co-Agents
and Lead Managers named therein, and The Chase Manhat-
tan Bank, as Administrative Agent.
10(c) --Second Amendment, dated as of August 25, 1997, to
the Revolving Credit Agreement, dated as of August 23,
1996, among Case Credit Ltd., the Lenders parties
thereto, Canadian Imperial Bank of Commerce, as Co-
Agent, and The Bank of Nova Scotia, as Administrative
Agent.
10(d) --Deed of Guarantee and Negative Pledge, dated October
17, 1997, executed by Case Credit Corporation pursuant
to which Case Credit Corporation guarantees certain
indebtedness of Case Credit Australia Pty Ltd.
10(e) --Bill Facility Agreement, dated October 17, 1997, be-
tween Case Credit Australia Pty Ltd, the lenders par-
ties thereto, and National Australia Bank Limited, as
Agent.
10(f) --Deed Poll, dated October 17, 1997, executed by Case
Credit Australia Pty Ltd, pursuant to which Case
Credit Australia Pty Ltd may from time to time issue
medium-term notes.
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>
24
<PAGE>
SECOND AMENDMENT
SECOND AMENDMENT, dated as of August 25, 1997 (this "Second
Amendment"), to the Credit Agreement, dated as of August 23, 1996 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among CASE 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 therein defined) (together with the U.S. Borrower and
the Canadian Borrower, the "Borrowers"), the Co-Agents named on the signature
pages thereof (the "Co-Agents"), the Lead Managers named on the signature pages
thereof (the "Lead Managers"), the several banks and other financial
institutions from time to time parties thereto (the "Lenders"), THE BANK OF NOVA
SCOTIA, a Canadian chartered bank (as therein defined, the "Canadian
Administrative Agent"), and THE CHASE MANHATTAN BANK, a New York banking
corporation (as therein defined, the "General Administrative Agent") as
administrative agents for the Lenders thereunder.
W I T N E S S E T H:
-------------------
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make, and have made, certain loans and other extensions of credit to the
Borrowers; and
WHEREAS, the Borrowers have requested, and, upon this Second Amendment
becoming effective, the Majority Lenders have agreed, that certain provisions of
the Credit Agreement be amended in the manner provided for in this Second
Amendment;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Terms defined in the Credit Agreement and not
otherwise defined herein shall have the meanings given to them in the Credit
Agreement.
2. Amendments to Section 1 of the Credit Agreement. Subsection 1.1
of the Credit Agreement is amended by (a) deleting in their entirety the
definitions of "Debt" and "Indebtedness" contained therein and (b) inserting the
following new definitions in the appropriate alphabetical order:
"Case Vendor Financing": financing which is provided by a Person other
than the U.S. Borrower or one of its Subsidiaries or Affiliates to a
customer of the U.S. Borrower or one of its Subsidiaries or Affiliates.
<PAGE>
2
"Case Credit Subordinated Debt": any Indebtedness of the U.S. Borrower
or any of its Consolidated Subsidiaries to Case Credit and its Consolidated
Subsidiaries which is subordinated pursuant to subordination provisions in
substantially the form of Annex A to the Second Amendment, dated as of
August 25, 1997, to this Agreement.
"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, 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, (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 and (vi) Case Credit Subordinated Debt.
"Indebtedness": of any Person at any date, without duplication, (a)
all indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than trade liabilities
incurred in the ordinary course of business and payable in accordance with
customary practices), (b) any other indebtedness of such Person which is
evidenced by a note, bond, debenture or similar instrument, (c) all
obligations of such Person as lessee under Financing Leases, (d) all
obligations of such Person in respect of acceptances issued or created for
the account of such Person, (e) all liabilities secured by any Lien on any
property owned by such Person even though such Person has not assumed or
otherwise become liable for the payment thereof, (f) all net liabilities of
such Person in respect of Interest Rate Agreements, (g) all Guarantee
Obligations in respect of Indebtedness referred to in
<PAGE>
3
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; provided, however, notwithstanding the foregoing, Permitted Vendor
Financing Obligations shall not constitute Indebtedness under this
definition.
"Permitted Vendor Financing Obligations": (i) any Guarantee Obligation
of the U.S. Borrower or its Consolidated Subsidiaries in respect of Case
Vendor Financing, but only to the extent that the underlying principal
amount of Indebtedness subject to such Guarantee Obligation is secured or
otherwise funded by the U.S. Borrower or its Consolidated Subsidiaries with
cash or other marketable instruments (including, without limitation,
pledges of deposit accounts, notes, bonds, certificates of deposit, or
other documents or instruments) and (ii) any Guarantee Obligation of the
U.S. Borrower or its Consolidated Subsidiaries in respect of Case Vendor
Financing, where Case Credit or one of its Subsidiaries has a Guarantee
Obligation in respect of the same principal amount and the U.S. Borrower
has an agreement in writing with Case Credit which states that Case Credit
will fully indemnify the U.S. Borrower in the event that the U.S. Borrower
is called upon to provide funds in connection with such Guarantee
Obligation and which agreement is enforceable by the General Administrative
Agent or the Lenders.
"Threshold Amount": U.S.$60,000,000.
3. Amendments to Section 12 of the Credit Agreement. (a) Subsection
12.1(a) of the Credit Agreement is amended by deleting the word "and" at the end
of such subsection and inserting the following proviso in lieu thereof:
"provided, however, notwithstanding the foregoing, in the case of the
Canadian Borrower the financial statements delivered pursuant hereto
shall be unaudited; and"
(b) Subsection 12.2(a) of the Credit Agreement is amended by
inserting the following proviso at the end of such subsection:
"provided, however, notwithstanding the foregoing, in the case of the
Canadian Borrower, no such certificate shall be required;"
(c) Subsection 12.7(c) of the Credit Agreement is amended by deleting
the phrase "$60,000,000 or more" contained therein and inserting in lieu thereof
the phrase "equal to or greater than the Threshold Amount".
<PAGE>
4
4. Amendment to Section 13 of the Credit Agreement. Subsection 13.2
of the Credit Agreement is amended by (a) deleting the word "or" at the end of
paragraph (j) thereof, (b) relettering paragraph (k) thereof to become paragraph
(l) thereof and by deleting the phrase "clauses (a) to (j)" contained in such
paragraph (l) in its entirety and inserting in lieu thereof the phrase "clauses
(a) to (k)" and (c) inserting the following new paragraph (k) thereto:
(k) Liens on funds (including on deposit accounts, notes, bonds,
certificates of deposit, or other documents or instruments evidencing
such funds) in favor of a Person which is providing Case Vendor
Financing where such funds have been provided to such Person directly
or indirectly by the U.S. Borrower or any of its Subsidiaries to fund
such Case Vendor Financing; or
5. Amendment to Section 15 of the Credit Agreement. (a) Section
15(e) of the Credit Agreement is amended by deleting the amount "$60,000,000"
contained therein and inserting in lieu thereof the phrase "equal to the
Threshold Amount".
(b) Section 15(h) of the Credit Agreement is amended by deleting the
phrase "of $60,000,000 or more" contained therein and inserting in lieu thereof
the phrase "in an amount equal to or greater than the Threshold Amount".
6. Conditions to Effectiveness. This Second Amendment shall become
effective on the date (the "Second Amendment Effective Date") on which the
Borrowers, the General Administrative Agent and the Majority Lenders shall have
executed and delivered to the General Administrative Agent this Second
Amendment.
7. Representations and Warranties. The representations and
warranties made by the Borrowers in the Credit Agreement are true and correct in
all material respects on and as of the Second Amendment Effective Date, after
giving effect to the effectiveness of this Second Amendment, as if made on and
as of the Second Amendment Effective Date.
8. No Other Amendments; Confirmation. Except as expressly amended,
modified and supplemented hereby, the provisions of the Credit Agreement are and
shall remain in full force and effect.
9. Governing Law. This Second Amendment and the rights and
obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
10. Counterparts. This Second Amendment may be executed by one or
more of the parties to this Second Amendment on any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Second
Amendment signed by all the parties shall be
<PAGE>
5
lodged with the U.S. Borrower and the General Administrative Agent. This Second
Amendment may be delivered by facsimile transmission of the relevant signature
pages hereof.
<PAGE>
6
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
CASE CORPORATION
By: /s/ ??????????????????????
-------------------------------
Title: Vice President and Treasurer
CASE CANADA CORPORATION/CORPORATION
CASE CANADA
By: /s/ ??????????????????????
-------------------------------
Title: Vice President and Treasurer
THE CHASE MANHATTAN BANK, as General
Administrative Agent and a Lender
By: /s/ Thomas H. Koziack
------------------------
Title: Thomas H. Koziack
Vice President
THE CHASE MANHATTAN BANK OF CANADA
By: /s/ Christine Chan /s/ Arun K. Berry
------------------ -----------------
Title: Christine Chan Arun K. Berry
Vice President Vice President
Title:
<PAGE>
7
THE BANK OF NOVA SCOTIA, as
a Lender
By: /s/ F.C.H. Ashby
-----------------------------------
F.C.H. Ashby
Title: Senior Manager Loan Operations
By: /s/ Sharron D. McIntyre
-----------------------------------
Sharron D. McIntyre
Title: Relationship Manager
ABN AMRO BANK N.V. CHICAGO BRANCH
By: /s/ Douglas R. Elliott
-----------------------------------
Douglas R. Elliott
Title: Vice President
By: /s/ John J. Mack
-----------------------------------
John J. Mack
Title: Vice President
ARAB BANKING CORPORATION (B.S.C.)
By: /s/ Grant E. McDonald
-----------------------------------
Grant E. McDonald
Title: Vice President
THE ASAHI BANK, LTD., CHICAGO BRANCH
By: /s/ Nobuo Suzuki
-----------------------------------
Nobuo Suzuki
Title: General Manager
<PAGE>
8
AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED
By: /s/
----------------------------------
Title: First Vice President
BANK AUSTRIA AKTIENGESELLSCHAFT
By: /s/
----------------------------------
Title: Vice President
By: /s/ Jeanene Ball
----------------------------------
Jeanene Ball
Title: Assistant Vice President
BANCA COMMERCIALE ITALIANA, CHICAGO
BRANCH
By: /s/
----------------------------------
Title: Senior Vice President &
Branch Manager
By: /s/
----------------------------------
Title: Vice President
BANCA COMMERCIALE ITALIANA OF CANADA
By: /s/ John F. Gundy
----------------------------------
John F. Gundy
Title: Senior Vice President - Credit
By: /s/ Massimo Osti
----------------------------------
Massimo Osti
Title: Executive Vice President
<PAGE>
9
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION
By: /s/
--------------------------------
Title: Managing Director
BANK OF AMERICA CANADA
By: /s/
--------------------------------
Title: Vice President
BANK OF HAWAII
By: /s/
--------------------------------
Title: Vice President
BANK OF MONTREAL
By: /s/ Peter E. Walsh
-------------------------------
Peter E. Walsh
Title: Director
THE BANK OF NEW YORK
By: /s/ Mark Fonts
-------------------------------
Mark Fonts
Title: Assistant Vice President
THE BANK OF TOKYO - MITSUBISHI LTD., CHICAGO
BRANCH
By: /s/ Hajime Watanabe
-------------------------------
Hajime Watanabe
Title: Deputy General Manager
<PAGE>
10
BANQUE NATIONALE DE PARIS
By: /s/ Jo Ellen Bender
--------------------------------
Title: Jo Ellen Bender
Vice President & Manager
CAISSE NATIONALE DE CREDIT AGRICOLE
By: /s/ W. Leroy Startz
--------------------------------
Title: W. Leroy Startz
First Vice President
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Timothy E. Doyle
--------------------------------
Title: Timothy E. Doyle
Managing Director, CIBC Wood Gundy
Securities Corp., as Agent
THE CHUO TRUST & BANKING CO., LTD. NEW YORK AGENCY
By: /s/ Masayuki Sawaguri
--------------------------------
Title: Masayuki Sawaguri
Deputy General Manager
CITIBANK, N.A.
By: /s/ Marjorie Futornick
--------------------------------
Title: Marjorie Futornick
Vice President
<PAGE>
11
CITIBANK CANADA
By: /s/ David R. Wingfelder
--------------------------------
Title: David R. Wingfelder
Vice President
COMMERZBANK AKTIENGESELLSCHAFT, CHICAGO BRANCH
By: /s/ Paul Karlin
--------------------------------
Title: Paul Karlin
Assistant Vice President
By: /s/ J. Timothy Shortly
--------------------------------
Title: J. Timothy Shortly
Senior Vice President
COOPERATIVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH
By: /s/ Johannes F. Breukhoven
--------------------------------
Title: Johannes F. Breukhoven
Vice President
By: /s/ W. Pieter C. Kodde
--------------------------------
Title: W. Pieter C. Kodde
Vice President
CREDIT LYONNAIS CHICAGO BRANCH
By: /s/ Sandra E. Horwitz
--------------------------------
Title: Sandra E. Horwitz
Senior Vice President
Branch Manager
<PAGE>
12
CREDIT SUISSE FIRST BOSTON
By: /s/ Geoffrey M. Craig
----------------------------
Geoffrey M. Craig
Title: Vice President
By: /s/ Kristinn R. Kristinsson
----------------------------
Kristinn R. Kristinsson
Title: Assistant Vice President
THE DAI-ICHI KANGYO BANK, LTD.
By: /s/ Masayoshi Komaki
----------------------------
Masayoshi Komaki
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ ???????????????
----------------------------
Title: Authorized Agent
THE FUJI BANK, LIMITED
By: /s/ Peter L. Chinnici
----------------------------
Peter L. Chinnici
Title: Joint General Manager
HERITAGE BANK AND TRUST
By: /s/ ???????????????
----------------------------
Title: Vice President
<PAGE>
13
THE INDUSTRIAL BANK OF JAPAN, LTD.
By: /s/
--------------------------------
Title: Joint General Manager
ISTITUTO BANCARIO SAN PAOLO DI
TORINO SPA
By: /s/
--------------------------------
Title: Deputy General Manager
By: /s/
--------------------------------
Title: Vice President
THE LTCB TRUST COMPANY, NEW YORK
By: /s/ Douglas A. Whiddon
--------------------------------
Douglas A. Whiddon
Title: Senior Vice President
MELLON BANK, N.A.
By: /s/ J. M. Anderson
--------------------------------
J. M. Anderson
Title: Vice President
THE MITUSI TRUST AND BANKING COMPANY,
LTD. - NEW YORK BRANCH
By: /s/
--------------------------------
Title: Vice President
Corporate Finance
<PAGE>
14
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK
By: /s/ Charles H. King
----------------------------------
Charles H. King
Title: Vice President
J.P. MORGAN CANADA
By: /s/ John Maynard
----------------------------------
John Maynard
Title: Vice President and Controller
NATIONAL AUSTRALIA BANK LIMITED
By: /s/ Charles H. King
----------------------------------
Charles H. King
Title: Vice President
NATIONSBANK, N.A.
By: /s/ Mary Carol Daly
----------------------------------
Mary Carol Daly
Title: Vice President
NORDDEUTSCHE LANDESBANK GIROZENTRALE
NEW YORK BRANCH AND/OR CAYMAN ISLANDS
BRANCH
By: /s/ Stephen R. Hunter
----------------------------------
Stephen R. Hunter
Title: Senior Vice President
By: /s/ Josef Haas
----------------------------------
Josef Haas
Title: Assistant Vice President
<PAGE>
15
THE NORTHERN TRUST COMPANY
By: /s/
-----------------------------------
Title:
PT. BANK NEGARA INDONESIA (PERSERO)
By: /s/ Dewa Suthapa
-----------------------------------
Dewa Suthapa
Title: General Manager
ROYAL BANK OF CANADA
By: /s/ Patrick K. Shields
-----------------------------------
Patrick K. Shields
Title: Senior Manager
THE SAKURA BANK, LIMITED
By: /s/ Shunji Sakurai
-----------------------------------
Shunji Sakurai
Title: Joint General Manager
THE SANWA BANK, LIMITED, CHICAGO BRANCH
By: /s/ Joseph P. Howard
-----------------------------------
Joseph P. Howard
Title: Vice President
<PAGE>
16
SOCIETE GENERALE
By: /s/
---------------------------------
Title: Vice President
THE SUMITOMO BANK, LTD., CHICAGO
BRANCH
By: /s/ Hiroyuki Iwami
---------------------------------
Hiroyuki Iwami
Title: Joint General Manager
THE SUMITOMO TRUST & BANKING CO., LTD.
NEW YORK BRANCH
By: /s/ Suraj Bhatia
---------------------------------
Suraj Bhatia
Title: Senior Vice President
THE TOKAI BANK, LIMITED CHICAGO BRANCH
By: /s/ Masanori Nakagawa
---------------------------------
Masanori Nakagawa
Title: Joint General Manager
TORONTO DOMINION (TEXAS), INC.
By: /s/
---------------------------------
Title: Vice President
THE TORONTO-DOMINION BANK
By: /s/
---------------------------------
Title: Manager
<PAGE>
17
UNION BANK OF CALIFORNIA, N.A.
By: /s/
---------------------------------
Title: Assistant Vice President
By: /s/
---------------------------------
Title: Assistant Vice President
WACHOVIA BANK OF GEORGIA, N.A.
By: /s/ Elizabeth Schrock
---------------------------------
Elizabeth Schrock
Title: Vice President
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH
By: /s/ Salvatore Battinelli
---------------------------------
Salvatore Battinelli
Title: Vice President
Credit Department
By: /s/ Lisa Walsh
---------------------------------
Lisa Walsh
Title: Associate
THE YASUDA TRUST & BANKING COMPANY, LTD.
By: /s/ Joseph C. Meek
---------------------------------
Joseph C. Meek
Title: Deputy General Manager
<PAGE>
Annex A
-------
FORM OF SUBORDINATION PROVISIONS
1. This Note shall be subordinate and junior in right of payment to
all indebtedness, obligations and liabilities of the Case Corporation (the
"Company") and its subsidiaries (including indebtedness of others guaranteed by
the Company, but excluding trade liabilities incurred in the ordinary course of
business and payable in accordance with customary practices), whether now
existing or hereafter created, including, without limitation, all indebtedness,
obligations and liabilities of the Company arising out of or in connection with
the Revolving Credit and Guarantee Agreement, dated as of August 23, 1996 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Company, Case Canada Corporation/Corporation Case Canada
(the "Canadian Borrower"), the Foreign Subsidiary Borrowers parties thereto, the
Co-Agents named therein, the Lead Managers named therein, the several banks and
other financial institutions from time to time parties thereto (the "Lenders"),
The Bank of Nova Scotia, as Canadian Administrative Agent, and The Chase
Manhattan Bank, as General Administrative Agent, or otherwise, including,
without limitation, principal, interest (including any interest accruing
subsequent to the commencement of bankruptcy, insolvency or similar proceedings
with respect to the Company or any of its subsidiaries whether or not such
interest constitutes an allowed claim in any such proceeding) and commitment and
facility fees (said indebtedness, obligations and liabilities being hereinafter
called the "Superior Indebtedness").
2. As used in this Note the term "subordinate and junior in right of
payment" shall mean that:
(a) No part of this Note shall have any claim to the assets of the
Company or any of its subsidiaries on a parity with or prior to the claim
of the Superior Indebtedness. Unless and until the Superior Indebtedness
shall have been paid in full, the holder of this Note will not take, demand
or receive, and neither the Company nor its subsidiaries will make, give or
permit, directly or indirectly, by set-off, redemption, purchase or in any
other manner, any payment or security for the whole or any part of the
principal of or interest on this Note, provided, however, that so long as
no Default or Event of Default described in the Credit Agreement shall have
occurred and be continuing, or would be in existence immediately after
giving effect thereto, the Company or its subsidiaries may pay principal,
interest and fees on the indebtedness evidenced hereby when and as, and
only when and as, the same becomes due and payable in accordance with the
terms and conditions hereof in effect on the date hereof.
(b) In the event of any distribution, division or application,
partial or complete, voluntary or involuntary, by operation of law or
otherwise, of all or any part of the property, assets or business of the
Company, its Material Subsidiaries (as such term is defined in the Credit
Agreement), or any subsidiary which is a debtor pursuant to the terms
hereof (each a "Debtor Subsidiary"), or the proceeds thereof, to any
creditor or creditors of the Company, its Material Subsidiaries, or any
Debtor
<PAGE>
2
Subsidiary, or upon any indebtedness of the Company, its Material
Subsidiaries or any Debtor Subsidiary, by reason of any liquidation,
dissolution or other winding up of the Company, any Material Subsidiary, or
any Debtor Subsidiary, or their businesses or by reason of any sale,
receivership, insolvency or bankruptcy proceedings or assignment for the
benefit of creditors or any proceeding by or against the Company, any
Material Subsidiary or any Debtor Subsidiary for any relief under any
bankruptcy, reorganization or insolvency law or laws, federal or state, or
any law, federal or state, relating to the relief of debtors, readjustment
of indebtedness, reorganization, composition or extension, or in the event
of the occurrence and during the continuation of any Event of Default
described in the Credit Agreement, then and in any such event, any payment
or distribution of any kind or character, whether in cash, property or
securities which, but for the subordination provisions of this Note, would
otherwise be payable or deliverable upon or in respect of this Note, shall
instead be paid over or delivered to the Lenders for application on account
of the Superior Indebtedness, and the holder of this Note shall not receive
any such payment or distribution or any benefit therefrom.
3. The holder of this Note hereby agrees, under the circumstances
set forth in Paragraph 2(b) hereof, duly and promptly to take such action as may
be requested at any time and from time to time by the Lenders to collect this
Note for the account of the holders of Superior Indebtedness and to file
appropriate proofs of claim in respect thereof, to deliver this Note to the
Lenders on demand therefor, and to execute and deliver such powers of attorney,
assignments or other instruments as may be requested by the Lenders in order to
enable the Lenders to enforce any and all claims upon or in respect of this Note
and to collect and receive any and all payments or distributions which may be
payable or deliverable at any time upon or in respect of this Note.
4. Should any payment or distribution or security, or the proceeds
of any thereof, be collected or received by the holder of this Note in respect
of this Note, and such collection or receipt is not expressly permitted
hereunder prior to the payment in full of the Superior Indebtedness, the holder
hereof will forthwith deliver the same to the Lenders, for the account of the
holders of Superior Indebtedness, in precisely the form received (except for the
indorsement or the assignment of the holder hereof where necessary) and, until
so delivered, the same shall be held in trust by the holder hereof as the
property of the holders of Superior Indebtedness.
5. Subject to the payment in full of the Superior Indebtedness, the
holder of this Note shall be subrogated to the rights of the holder of Superior
Indebtedness to receive payments or distributions of assets of the Company made
on the Superior Indebtedness until the principal of and interest on this Note
shall be paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of Superior Indebtedness of any cash, property or
securities to which the holder of this Note would be entitled except for these
provisions shall, as between the Company and its subsidiaries, its creditors
other than the
<PAGE>
3
holders of Superior Indebtedness and the holder of this Note, be deemed to be a
payment by the Company and its subsidiaries to or on account of Superior
Indebtedness, it being understood that these provisions are and are intended
solely for the purpose of defining the relative rights of the holder of this
Note, on the one hand, and the holders of Superior Indebtedness, on the other
hand.
6. The holder of this Note hereby waives any and all notice of
renewal, extension or accrual of any of the Superior Indebtedness, present or
future, and agrees and consents that without notice to or assent by the holder
hereof:
(i) the obligations and liabilities of the Company and its
subsidiaries or any other party or parties for or upon the Superior
Indebtedness (and/or any promissory note(s), security document or guaranty
evidencing or securing the same) may, from time to time, in whole or in
part, be renewed, extended, modified, amended, accelerated, compromised,
supplemented, terminated, sold, exchanged, waived or released;
(ii) the Lenders may exercise or refrain from exercising any
right, remedy or power granted by the Credit Agreement or any other
document creating, evidencing or otherwise related to the Superior
Indebtedness or at law, in equity, or otherwise, with respect to the
Superior Indebtedness or any collateral security or lien (legal or
equitable) held, given or intended to be given therefor (including, without
limitation, the right to perfect any lien or security interest created in
connection therewith);
(iii) any and all collateral security and/or liens (legal or
equitable) at any time, present or future, held, given or intended to be
given for the Superior Indebtedness, and any rights or remedies of the
Lenders in respect thereof, may, from time to time, in whole or in part, be
exchanged, sold, surrendered, released, modified, waived or extended by the
Lenders; and
(iv) any balance or balances of funds with the Lenders at any
time standing to the credit of the Company or any guarantor of any of the
Superior Indebtedness may, from time to time, in whole or in part, be
surrendered or released;
all as the Lenders may deem advisable and all without impairing, abridging,
diminishing, releasing or affecting the subordination to the Superior
Indebtedness provided for herein.
7. The holder of this Note acknowledges and agrees that the Lenders
have relied upon and will continue to rely upon the subordination provided for
herein in making the loans provided for in the Credit Agreement and in otherwise
extending credit to the Company and its subsidiaries. The holder hereof hereby
waives notice of or proof of reliance hereon and protest, demand for payment and
notice of default.
<PAGE>
4
8. The Lenders shall not be prejudiced in their right to enforce the
subordination contained herein in accordance with the terms hereof by any act or
failure to act on the part of the Company and its subsidiaries.
9. The subordination provisions contained herein are for the benefit
of the Lenders and may not be rescinded, cancelled, amended or modified in any
way without the prior written consent thereto of the Lenders.
<PAGE>
SECOND AMENDMENT
SECOND AMENDMENT, dated as of August 25, 1997 (this "Second
Amendment"), to the Credit Agreement, dated as of August 23, 1996 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among CASE CREDIT CORPORATION, a Delaware corporation (the "U.S. Borrower"),
each FOREIGN SUBSIDIARY BORROWER (as therein defined) (together with the U.S.
Borrower, the "Borrowers"), the Co-Agents named on the signature pages thereof
(the "Co-Agents"), the Lead Managers named on the signature pages thereof (the
"Lead Managers"), the several banks and other financial institutions from time
to time parties thereto (the "Lenders") and THE CHASE MANHATTAN BANK, a New York
banking corporation (as therein defined, the "Administrative Agent"), as
administrative agent for the Lenders thereunder.
W I T N E S S E T H:
-------------------
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make, and have made, certain loans and other extensions of credit to the
Borrowers; and
WHEREAS, the Borrowers have requested, and, upon this Second Amendment
becoming effective, the Majority Lenders have agreed, that certain provisions of
the Credit Agreement be amended in the manner provided for in this Second
Amendment;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Terms defined in the Credit Agreement and not
otherwise defined herein shall have the meanings given to them in the Credit
Agreement.
2. Amendments to Section 1 of the Credit Agreement. Subsection 1.1
of the Credit Agreement is amended by (a) deleting in their entirety the
definitions of "Case Credit Debt" and "Indebtedness" contained therein and (b)
inserting the following new definitions in the appropriate alphabetical order:
"Case Credit Debt": as at any date of determination with respect
to the U.S. Borrower and its Consolidated Subsidiaries, an amount
equal to the excess of (a) the sum (without duplication) of (i) all
Indebtedness (other than Indebtedness referred to in clauses (e)
through (h) of the definition thereof) of the U.S. Borrower and its
Consolidated Subsidiaries which in accordance with
<PAGE>
2
GAAP would be included as a liability on a consolidated balance sheet
(excluding the notes thereto) of the U.S. Borrower and its
Consolidated Subsidiaries as at such date, (ii) all Guarantee
Obligations of the U.S. Borrower and its Consolidated Subsidiaries in
respect of Indebtedness (other than Indebtedness referred to in
clauses (e) through (h) of the definition thereof) as at such date and
(iii) all obligations of the U.S. Borrower or any of its Subsidiaries
incurred in connection with any securitization or other asset-backed
financing of Receivables as at such date to the extent such
obligations are excluded from the definition of Permitted
Securitization Obligations as at such date by operation of the proviso
to the definition thereof, minus (b) to the extent included in clause
(a) above, the sum (without duplication) of (A) Guarantee Obligations
of the U.S. Borrower or any of its Subsidiaries in respect of
Indebtedness of Subsidiaries of the U.S. Borrower and (B) Permitted
Securitization Obligations as at such date; provided, that Case Credit
Debt shall in any event exclude Excluded Credit Card Guarantee
Obligations and Case Subordinated Debt.
"Case Subordinated Debt": any Indebtedness of the U.S. Borrower
or any of its Consolidated Subsidiaries to Case or any of its
Consolidated Subsidiaries (other than Case Credit and its Consolidated
Subsidiaries) which is subordinated pursuant to subordination
provisions in substantially the form of Annex A to the Second
Amendment, dated as of August 25, 1997, to this Agreement.
"Case Vendor Financing": financing which is provided by a Person
other than Case or one of its Subsidiaries or Affiliates to a customer
of Case or one of its Subsidiaries or Affiliates.
"Indebtedness": of any Person at any date, without duplication,
(a) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services (other than trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices), (b) any other indebtedness of
such Person which is evidenced by a note, bond, debenture or similar
instrument, (c) all obligations of such Person as lessee under
Financing Leases, (d) all obligations of such Person in respect of
acceptances issued or created for the account of such Person, (e) all
liabilities secured by any Lien on any property owned by such Person
even though such Person has not assumed or otherwise become liable for
the payment thereof, (f) all net liabilities of such Person in respect
of Interest Rate Agreements, (g) all Guarantee Obligations in respect
of Indebtedness referred to in clauses (a) through (f) (or any of
them) of this definition and (h) if such Person is the U.S. Borrower
or any of its Subsidiaries, all obligations of the U.S. Borrower or
any such Subsidiary incurred in connection with any securitization or
other asset-
<PAGE>
3
backed financing of Receivables to the extent such obligations are
excluded from the definition of Permitted Securitization Obligations
by operation of the proviso to the definition thereof; provided,
however, notwithstanding the foregoing, Permitted Vendor Financing
Obligations shall not constitute Indebtedness under this definition.
"Permitted Vendor Financing Obligations": any Guarantee
Obligation of the U.S. Borrower or its Consolidated Subsidiaries in
respect of Case Vendor Financing, but only to the extent that the
underlying principal amount of Indebtedness subject to such Guarantee
Obligation is secured or otherwise funded by the U.S. Borrower or its
Consolidated Subsidiaries with cash or other marketable instruments
(including, without limitation, pledges of deposit accounts, notes,
bonds certificates of deposit, or other documents or instruments
evidencing such funds).
"Threshold Amount": U.S.$60,000,000.
3. Amendment to Section 10 of the Credit Agreement. Subsection
10.7(c) of the Credit Agreement is amended by deleting the phrase "$60,000,000
or more" contained therein and inserting in lieu thereof the phrase "equal to or
greater than the Threshold Amount".
4. Amendment to Section 11 of the Credit Agreement. Subsection 11.2
of the Credit Agreement is amended by (a) deleting the word "and" at the end of
paragraph (h) thereof, (b) relettering paragraph (i) thereof to become paragraph
(j) thereof and by deleting the phrase "paragraphs (a) through (h)" contained in
such paragraph (j) in its entirety and inserting in lieu thereof the phrase
"paragraphs (a) through (i)" and (c) inserting the following new paragraph (i)
thereto:
(i) Liens on funds (including on deposit accounts, notes, bonds,
certificates of deposit, or other documents or instruments evidencing
such funds) in favor of a Person which is providing Case Vendor
Financing where such funds have been provided to such Person directly
or indirectly by the U.S. Borrower or any of its Subsidiaries to fund
such Case Vendor Financing; and
5. Amendment to Section 13 of the Credit Agreement. (a) Section
13(e) of the Credit Agreement is amended by deleting the amount "$60,000,000"
contained therein and inserting in lieu thereof the phrase "equal to the
Threshold Amount".
(b) Section 13(h) of the Credit Agreement is amended by deleting the
phrase "of $60,000,000 or more" contained therein and inserting in lieu thereof
the phrase "in an amount equal to or greater than the Threshold Amount".
<PAGE>
4
6. Conditions to Effectiveness. This Second Amendment shall become
effective on the date (the "Second Amendment Effective Date") on which the
Borrowers, the Administrative Agent and the Majority Lenders shall have executed
and delivered to the Administrative Agent this Second Amendment.
7. Representations and Warranties. The representations and
warranties made by the Borrowers in the Credit Agreement are true and correct in
all material respects on and as of the Second Amendment Effective Date, after
giving effect to the effectiveness of this Second Amendment, as if made on and
as of the Second Amendment Effective Date.
8. No Other Amendments; Confirmation. Except as expressly amended,
modified and supplemented hereby, the provisions of the Credit Agreement are and
shall remain in full force and effect.
9. Governing Law. This Second Amendment and the rights and
obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
10. Counterparts. This Second Amendment may be executed by one or
more of the parties to this Second Amendment on any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Second
Amendment signed by all the parties shall be lodged with the U.S. Borrower and
the Administrative Agent. This Second Amendment may be delivered by facsimile
transmission of the relevant signature pages hereof.
<PAGE>
5
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
CASE CREDIT CORPORATION
By: /s/ Peter Hong
---------------------------
Peter Hong
Title: Treasurer
THE CHASE MANHATTAN BANK, as
Administrative Agent and a Lender
By: /s/ Thomas H. Kozlark
---------------------------
Thomas H. Kozlark
Title: Vice President
THE ASAHI BANK, LTD., CHICAGO BRANCH
By: /s/ Nobuo Suzuki
---------------------------
Nobuo Suzuki
Title: General Manager
AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED
By: /s/ Robert Stan
---------------------------
Robert Stan
Title: First Vice President
BANK OF AMERICA ILLINOIS
By: /s/ M. Veon?? Bennett
---------------------------
M. Veon?? Bennett
Title: Managing Director
<PAGE>
6
BANK OF HAWAII
By:
---------------------------
Title: Vice President
BANK OF MONTREAL
By: /s/ Peter E. Walsh
---------------------------
Peter E. Walsh
Title: Director
THE BANK OF NEW YORK
By: /s/ Mark Fritz
----------------------------
Mark Fritz
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Ashby
----------------------------------
F.C.H. Ashby
Title: Senior Manager Loan Operations
By:
---------------------------
Title:
THE BANK OF TOKYO-MITSUBISHI LTD., CHICAGO BRANCH
By: /s/ Hajime Watanabe
---------------------------
Hajime Watanabe
Title: Deputy General Manager
<PAGE>
7
BANQUE NATIONALE DE PARIS
By: /s/ Jo Ellen Bender
---------------------------------------------
Jo Ellen Bender
Title: Vice President & Manager
CAISSE NATIONALE DE CREDIT AGRICOLE
By: /s/ W. Leroy Startz
---------------------------------------------
W. Leroy Startz
Title: First Vice President
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Timothy E. Doyle
---------------------------------------------
Timothy E. Doyle
Title: Managing Director, CIBC Wood Gundy
Securities Corp., as Agent
CITIBANK, N.A.
By: /s/ Marjorie Futornick
---------------------------------------------
Marjorie Futornick
Title: Vice President
COMMERZBANK AKTIENGESELLSCHAFT, CHICAGO BRANCH
By: /s/ Paul Karlin
---------------------------------------------
Paul Karlin
Title: Assistant Vice President
By: /s/ J. Timothy Shortly
---------------------------------------------
J. Timothy Shortly
Title: Senior Vice President
<PAGE>
8
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH
By: /s/ Johannes F. Krenkhoven
---------------------------------------------
Johannes F. Krenkhoven
Title: Vice President
By: /s/ W. Pieter C. Kodde
---------------------------------------------
W. Pieter C. Kodde
Title: Vice President
CREDIT LYONNAIS CHICAGO BRANCH
By: /s/ Mary Ann Klemm
---------------------------------------------
Mary Ann Klemm
Title: Vice President
CREDIT SUISSE FIRST BOSTON
By: /s/ Geoffrey M. Craig
---------------------------------------------
Geoffrey M. Craig
Title: Vice President
By: /s/ William P. Murray
---------------------------------------------
William P. Murray
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By:
---------------------------------------------
Title: Authorized Agent
<PAGE>
9
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
By:
---------------------------------------------
Title: Vice President
THE FUJI BANK, LIMITED
By: /s/ Peter L. Chinnici
---------------------------------------------
Peter L. Chinnici
Title: Joint General Manager
THE INDUSTRIAL BANK OF JAPAN, LTD.
By:
---------------------------------------------
Title: Joint General Manager
THE LTCB TRUST COMPANY, NEW YORK
By: /s/ Douglas A. Whiddon
---------------------------------------------
Douglas A. Whiddon
Title: Senior Vice President
MELLON BANK, N.A.
By: /s/ J. M. Anderson
---------------------------------------------
J. M. Anderson
Title: Vice President
THE MITUSI TRUST & BANKING COMPANY, LTD. -
NEW YORK BRANCH
By:
---------------------------------------------
Title: Vice President Corporate Finance
<PAGE>
10
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By: /s/ Charles H. King
---------------------------
Charles H. King
Title: Vice President
NATIONAL AUSTRALIA BANK LIMITED
By: /s/ ?????????
---------------------------
Title: Vice President
NATIONSBANK, N.A.
By: /s/ Charey?? Carol?? Daly
---------------------------
Charey?? Carol?? Daly
Title: Vice President
NORDDEUTSCHE LANDESBANK GIROZENTRALE NEW YORK
BRANCH AND/OR CAYMAN ISLANDS BRANCH
By: /s/ Stephen K. Hunter
---------------------------
Stephen K. Hunter
Title: SVP
By: /s/ Josef Haas
---------------------------
Josef Haas
Title: AVP
THE NORTHERN TRUST COMPANY
By: /s/ ?????????????????????
---------------------------
Title: Officer
<PAGE>
11
ROYAL BANK OF CANADA
By: /s/ Patrick K. Shields
-------------------------
Patrick K. Shields
Title: Senior Manager
THE SAKURA BANK, LIMITED
By: /s/ Shunji Sakurai
-------------------------
Shunji Sakurai
Title: Joint General Manager
THE SANWA BANK, LIMITED, CHICAGO BRANCH
By: /s/ Joseph P. Howard
-------------------------
Joseph P. Howard
Title: Vice President
SOCIETE GENERALE
By: /s/ Beth Young
-------------------------
Beth Young
Title: Vice President
THE SUMITOMO BANK, LTD. CHICAGO BRANCH
By: /s/ Hiroyuki Iwami
--------------------------
Hiroyuki Iwami
Title: Joint General Manager
THE SUMITOMO TRUST & BANKING CO., LTD.
NEW YORK BRANCH
By: /s/ Suraj Phatia
--------------------------
Suraj Phatia
Title: Senior Vice President
<PAGE>
12
THE TOKAI BANK, LIMITED CHICAGO BRANCH
By: /s/ Masanori Nakagawa
___________________________
Masanori Nakagawa
Title: Joint General Manager
TORONTO DOMINION (TEXAS), INC.
By: /s/ Frederic B. Hawley
___________________________
Frederic Hawley
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ ??????????????
___________________________
??????????????
Title: Assistant Vice President
By:___________________________
Title:
UNION BANK OF SWITZERLAND, NEW YORK BRANCH
By: /s/ Christopher C. Glockler
___________________________
Christopher C. Glockler
Title: Director
By: /s/ Mary Turnbach
___________________________
Mary Turnbach
Title: Assistant Treasurer
<PAGE>
13
WACHOVIA BANK OF GEORGIA, N.A.
By: /s/ Elizabeth Schrock
----------------------------
Elizabeth Schrock
Title: Vice President
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK
BRANCH
By: /s/ Salvatore Battinelli
----------------------------
Salvatore Battinelli
Title: Vice President
By: /s/ Lisa Walker
----------------------------
Lisa Walker
Title: Associate
THE YASUDA TRUST & BANKING COMPANY, LTD.
By: /s/ Joseph C. Meek
----------------------------
Joseph C. Meek
Title: Deputy General Manager
<PAGE>
Annex A
-------
FORM OF SUBORDINATION PROVISIONS
1. This Note shall be subordinate and junior in right of payment to
all indebtedness, obligations and liabilities of the Case Credit Corporation
(the "Company") and its subsidiaries (including indebtedness of others
guaranteed by the Company, but excluding trade liabilities incurred in the
ordinary course of business and payable in accordance with customary practices),
whether now existing or hereafter created, including, without limitation, all
indebtedness, obligations and liabilities of the Company arising out of or in
connection with the Revolving Credit and Guarantee Agreement, dated as of August
23, 1996 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Company, the Foreign Subsidiary Borrowers parties
thereto, the Co-Agents named therein, the Lead Managers named therein, the
several banks and other financial institutions from time to time parties thereto
(the "Lenders") and The Chase Manhattan Bank, as Administrative Agent, or
otherwise, including, without limitation, principal, interest (including any
interest accruing subsequent to the commencement of bankruptcy, insolvency or
similar proceedings with respect to the Company or any of its subsidiaries
whether or not such interest constitutes an allowed claim in any such
proceeding) and commitment and facility fees (said indebtedness, obligations and
liabilities being hereinafter called the "Superior Indebtedness").
2. As used in this Note the term "subordinate and junior in right of
payment" shall mean that:
(a) No part of this Note shall have any claim to the assets of the
Company or any of its subsidiaries on a parity with or prior to the claim
of the Superior Indebtedness. Unless and until the Superior Indebtedness
shall have been paid in full, the holder of this Note will not take, demand
or receive, and neither the Company nor its subsidiaries will make, give or
permit, directly or indirectly, by set-off, redemption, purchase or in any
other manner, any payment or security for the whole or any part of the
principal of or interest on this Note, provided, however, that so long as
no Default or Event of Default described in the Credit Agreement shall have
occurred and be continuing, or would be in existence immediately after
giving effect thereto, the Company or its subsidiaries may pay principal,
interest and fees on the indebtedness evidenced hereby when and as, and
only when and as, the same becomes due and payable in accordance with the
terms and conditions hereof in effect on the date hereof.
(b) In the event of any distribution, division or application, partial
or complete, voluntary or involuntary, by operation of law or otherwise, of
all or any part of the property, assets or business of the Company, its
Material Subsidiaries (as such term is defined in the Credit Agreement), or
any subsidiary which is a debtor pursuant to the terms hereof (each a
"Debtor Subsidiary"), or the proceeds thereof, to any creditor or creditors
of the Company, its Material Subsidiaries, or any Debtor Subsidiary, or
upon any indebtedness of the Company, its Material Subsidiaries or any
<PAGE>
2
Debtor Subsidiary, by reason of any liquidation, dissolution or other
winding up of the Company, any Material Subsidiary, or any Debtor
Subsidiary, or their businesses or by reason of any sale, receivership,
insolvency or bankruptcy proceedings or assignment for the benefit of
creditors or any proceeding by or against the Company, any Material
Subsidiary or any Debtor Subsidiary for any relief under any bankruptcy,
reorganization or insolvency law or laws, federal or state, or any law,
federal or state, relating to the relief of debtors, readjustment of
indebtedness, reorganization, composition or extension, or in the event of
the occurrence and during the continuation of any Event of Default
described in the Credit Agreement, then and in any such event, any payment
or distribution of any kind or character, whether in cash, property or
securities which, but for the subordination provisions of this Note, would
otherwise be payable or deliverable upon or in respect of this Note, shall
instead be paid over or delivered to the Lenders for application on account
of the Superior Indebtedness, and the holder of this Note shall not receive
any such payment or distribution or any benefit therefrom.
3. The holder of this Note hereby agrees, under the circumstances
set forth in Paragraph 2(b) hereof, duly and promptly to take such action as may
be requested at any time and from time to time by the Lenders to collect this
Note for the account of the holders of Superior Indebtedness and to file
appropriate proofs of claim in respect thereof, to deliver this Note to the
Lenders on demand therefor, and to execute and deliver such powers of attorney,
assignments or other instruments as may be requested by the Lenders in order to
enable the Lenders to enforce any and all claims upon or in respect of this Note
and to collect and receive any and all payments or distributions which may be
payable or deliverable at any time upon or in respect of this Note.
4. Should any payment or distribution or security, or the proceeds
of any thereof, be collected or received by the holder of this Note in respect
of this Note, and such collection or receipt is not expressly permitted
hereunder prior to the payment in full of the Superior Indebtedness, the holder
hereof will forthwith deliver the same to the Lenders, for the account of the
holders of Superior Indebtedness, in precisely the form received (except for the
indorsement or the assignment of the holder hereof where necessary) and, until
so delivered, the same shall be held in trust by the holder hereof as the
property of the holders of Superior Indebtedness.
5. Subject to the payment in full of the Superior Indebtedness, the
holder of this Note shall be subrogated to the rights of the holder of Superior
Indebtedness to receive payments or distributions of assets of the Company made
on the Superior Indebtedness until the principal of and interest on this Note
shall be paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of Superior Indebtedness of any cash, property or
securities to which the holder of this Note would be entitled except for these
provisions shall, as between the Company and its subsidiaries, its creditors
other than the holders of Superior Indebtedness and the holder of this Note, be
deemed to be a payment by
<PAGE>
3
the Company and its subsidiaries to or on account of Superior Indebtedness, it
being understood that these provisions are and are intended solely for the
purpose of defining the relative rights of the holder of this Note, on the one
hand, and the holders of Superior Indebtedness, on the other hand.
6. The holder of this Note hereby waives any and all notice of
renewal, extension or accrual of any of the Superior Indebtedness, present or
future, and agrees and consents that without notice to or assent by the holder
hereof:
(i) the obligations and liabilities of the Company and its
subsidiaries or any other party or parties for or upon the Superior
Indebtedness (and/or any promissory note(s), security document or guaranty
evidencing or securing the same) may, from time to time, in whole or in
part, be renewed, extended, modified, amended, accelerated, compromised,
supplemented, terminated, sold, exchanged, waived or released;
(ii) the Lenders may exercise or refrain from exercising any
right, remedy or power granted by the Credit Agreement or any other
document creating, evidencing or otherwise related to the Superior
Indebtedness or at law, in equity, or otherwise, with respect to the
Superior Indebtedness or any collateral security or lien (legal or
equitable) held, given or intended to be given therefor (including, without
limitation, the right to perfect any lien or security interest created in
connection therewith);
(iii) any and all collateral security and/or liens (legal or
equitable) at any time, present or future, held, given or intended to be
given for the Superior Indebtedness, and any rights or remedies of the
Lenders in respect thereof, may, from time to time, in whole or in part, be
exchanged, sold, surrendered, released, modified, waived or extended by the
Lenders; and
(iv) any balance or balances of funds with the Lenders at any
time standing to the credit of the Company or any guarantor of any of the
Superior Indebtedness may, from time to time, in whole or in part, be
surrendered or released;
all as the Lenders may deem advisable and all without impairing, abridging,
diminishing, releasing or affecting the subordination to the Superior
Indebtedness provided for herein.
7. The holder of this Note acknowledges and agrees that the Lenders
have relied upon and will continue to rely upon the subordination provided for
herein in making the loans provided for in the Credit Agreement and in otherwise
extending credit to the Company and its subsidiaries. The holder hereof hereby
waives notice of or proof of reliance hereon and protest, demand for payment and
notice of default.
<PAGE>
4
8. The Lenders shall not be prejudiced in their right to enforce the
subordination contained herein in accordance with the terms hereof by any act or
failure to act on the part of the Company and its subsidiaries.
9. The subordination provisions contained herein are for the benefit
of the Lenders and may not be rescinded, cancelled, amended or modified in any
way without the prior written consent thereto of the Lenders.
<PAGE>
SECOND AMENDMENT
SECOND AMENDMENT, dated as of August 25, 1997 (this "Second
Amendment") to the Revolving Credit Agreement, dated as of August 23, 1996 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement") among CASE CREDIT LTD., a company organized under the laws of the
Province of Alberta (the "Borrower"), the several banks and other financial
institutions from time to time parties thereto (the "Lenders"), the co-agent
named on the signature pages thereof (the "Co-Agent"), and THE BANK OF NOVA
SCOTIA, a Canadian chartered bank (the "Administrative Agent"), as
administrative agent for the Lenders thereunder.
W I T N E S S E T H;
--------------------
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make, and have made, certain loans and other extensions of credit to the
Borrower; and
WHEREAS, the Borrower has requested, and, upon this Second Amendment
becoming effective, the Majority Lenders have agreed, that certain provisions of
the Credit Agreement be amended in the manner provided for in this Second
Amendment;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Terms defined in the Credit Agreement and not otherwise
defined herein shall have the meanings given to them in the Credit Agreement.
2. Amendments to Article 1 of the Credit Agreement. Section 1.1 of the Credit
Agreement is hereby amended by (a) deleting in its entirety the definition of
"Indebtedness" contained therein and (b) inserting the following new definitions
in the appropriate alphabetical order:
"Case Vendor Financing": financing which is provided by a Person
other than Case or one of its Subsidiaries or Affiliates to a customer
of Case or of one of its Subsidiaries or Affiliates.
"Indebtedness": of any Person at any date, without duplication,
(a) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services (other than trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices), (b) any other indebtedness of
such Person which is evidenced by a note, bond, debenture or similar
instrument, (c) all obligations of such Person as lessee under
Financing Leases, (d) the discounted amount of all obligations of such
Person in
<PAGE>
-2-
respect of acceptances issued or created for the account of such
Person, (e) all liabilities secured by any Lien on any property owned
by such Person even though such Person has not assumed or otherwise
become liable for the payment thereof, (f) all net liabilities of such
Person in respect of Interest Rate Agreements, (g) all Guarantee
Obligations in respect of Indebtedness referred to in clauses (a)
through (f) (or any of them) of this definition and (h) if such Person
is the Borrower or any of its Subsidiaries, all obligations of the
Borrower or any such Subsidiary incurred in connection with any
securitization or other asset-backed financing of Receivables to the
extent such obligations are excluded from the definition of Permitted
Securitization Obligations by operation of the proviso to the
definition thereof; provided, however, notwithstanding the foregoing,
Permitted Vendor Financing Obligations shall not constitute
Indebtedness under this definition.
"Permitted Vendor Financing Obligations": any Guarantee
Obligation of the Borrower or its Consolidated Subsidiaries in respect
of Case Vendor Financing, but only to the extent that the underlying
principal amount of Indebtedness subject to such Guarantee Obligation
is secured or otherwise funded by the Borrower or its Consolidated
Subsidiaries with cash or other marketable instruments (including,
without limitation, pledges of deposit accounts, notes, bonds,
certificates of deposit, or other documents or instruments evidencing
such funds).
"Threshold Amount": U.S. $60,000,000.
3. Amendment to Section 7.7 of the Credit Agreement: Subsection 7.7(c) of the
Credit Agreement is amended by deleting the phrase "$60,000,000 or more"
contained therein and inserting in lieu thereof the phrase "equal to or greater
than the Threshold Amount".
4. Amendment to Section 8.1 of the Credit Agreement: Section 8.1 of the
Credit Agreement is amended by deleting the Section heading and subsections (a)
and (b) thereof and replacing them with the words "Intentionally Deleted".
5. Amendment to Section 8.2 of the Credit Agreement: Section 8.2 of the
Credit Agreement is amended by deleting the Section heading and subsections (a)
through (i) thereof and replacing them with the words "Intentionally Deleted";
and
<PAGE>
-3-
6. Amendment to Article 9 of the Credit Agreement: (a) Subsection 9.1(e) of
the Credit Agreement is amended by deleting the amount "$60,000,000" contained
therein and inserting in lieu thereof the phrase "equal to the Threshold
Amount".
(b) Subsection 9.1(g) of the Credit Agreement is amended by deleting the
phrase "of $60,000,000 or more" contained therein and inserting in lieu thereof
the phrase "in an amount equal to or greater than the Threshold Amount".
7. Conditions to Effectiveness. This Second Amendment shall become effective
on the date (the "Second Amendment Effective Date") on which (a) the Borrower,
the Administrative Agent and the Majority Lenders shall have executed and
delivered to the Administrative Agent this Second Amendment and (b) Case Credit
shall have executed and delivered to the Administrative Agent an amendment to
the Case Credit Guarantee, substantially in the form of Exhibit A hereto.
8. Representations and Warranties. The representations and warranties made by
the Borrower in the Credit Agreement are true and correct in all material
respects on and as of the Second Amendment Effective Date, after giving effect
to the effectiveness of this Second Amendment, as if made on and as of the
Second Amendment Effective Date.
9. No Other Amendments; Confirmation. Except as expressly amended, modified
and supplemented hereby, the provisions of the Credit Agreement are and shall
remain in full force and effect.
10. Governing Law. This Second Amendment and the rights and obligations of the
parties hereto shall be governed by, and construed and interpreted in accordance
with, the laws of the Province of Ontario.
11. Counterparts. This Second Amendment may be executed by one or more of the
parties to this Second Amendment on any number of separate counterparts, and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument. A set of the copies of this Second Amendment signed by all of
the parties shall be lodged with the Borrower and the Administrative Agent.
This Second Amendment may be delivered by facsimile transmission of the relevant
signature pages hereof.
<PAGE>
-4-
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
CASE CREDIT LTD.
By:_______________________________
Title:
THE BANK OF NOVA SCOTIA, as Administrative
Agent and a Lender
By: /s/ R.J. Boomhour
-------------------------------
Title: Assistant General Manager
By: /s/ John Hall
-------------------------------
Title: Syndication Officer
BANK OF AMERICA CANADA, as a Lender
By: /s/ David B. Linkletter
-------------------------------
Title: Vice President
By:_______________________________
Title:
BANK OF MONTREAL, as a Lender
By: /s/ Stuart Brannan
-------------------------------
Title: Director
By: /s/ Peter E. Walsh
-------------------------------
Title: Director
CANADIAN IMPERIAL BANK OF
COMMERCE, as Co-Agent and a Lender
By: /s/ Doug Zinkiewich
-------------------------------
Title: Director
By: /s/ Mauro Spagnolo
-------------------------------
Title: Director
<PAGE>
-5-
THE CHASE MANHATTAN BANK OF
CANADA, as a Lender
By: /s/ Christine Chan
--------------------------------
Christine Chan
Title: Vice President
By: /s/ Arun K. Bery
--------------------------------
Arun K. Bery
Title: Vice President
CITIBANK CANADA, as a Lender
By: /s/ David R. Wingfelder
--------------------------------
David R. Wingfelder
Title: Vice President
By:
--------------------------------
Title:
FIRST CHICAGO NBD BANK, CANADA,
as a Lender
By: /s/ Colleen Delaney
--------------------------------
Colleen Delaney
Title: Assistant Vice President
By: /s/ Jeremiah A. Haynes III
--------------------------------
Jeremiah A. Haynes III
Title: First Vice President
J.P. MORGAN CANADA, as a Lender
By: /s/ Clarke Herring
--------------------------------
Clarke Herring
Title: Vice President
By:
--------------------------------
Title:
ROYAL BANK OF CANADA, as a Lender
By: /s/ Patrick K. Shields
--------------------------------
Patrick K. Shields
Title: Senior Manager
By:
--------------------------------
Title:
<PAGE>
SAKURA BANK (CANADA), as a Lender
By: /s/ E.R. Langley
----------------------------------------------
E.R. Langley
Title: Vice President
By:
Title:
SANWA BANK CANADA, as a Lender
By: /s/ Hiromi Kobayashi
----------------------------------------------
Hiromi Kobayashi
Title: Senior Vice President
By:
Title:
SOCIETE GENERALE (CANADA), as a Lender
By: /s/ Eric D'Hoste
----------------------------------------------
Eric D'Hoste
Title:
By: /s/ Douglas Bache
----------------------------------------------
Douglas Bache
Title: Senior Relationship Manager
THE SUMITOMO BANK OF CANADA,
as a Lender
By: /s/ Alfred Lee
-----------------------------------------------
Alfred Lee
Title: Vice President
By:
-----------------------------------------------
Title:
<PAGE>
-7-
THE TORONTO-DOMINION BANK,
as a Lender
By: /s/ ???????
-----------------------
Title: Manager
By:
-----------------------
Title:
<PAGE>
EXHIBIT A
----------
FORM OF AMENDMENT TO CASE CREDIT GUARANTEE
GUARANTEE AMENDMENT NO. 1, dated as of August__, 1997, made by CASE
CREDIT CORPORATION, a Delaware corporation (the "Guarantor"), in favour of THE
BANK OF NOVA SCOTIA, a Canadian chartered bank, in its capacity as
administrative agent (the "Administrative Agent"), for the several banks and
other financial institutions (the "Lenders") from time to time parties to the
Revolving Credit Agreement, dated as of August 23, 1996, among Case Credit Ltd.,
a company organized under the laws of Alberta, Canada (the "Borrower"), the
Lenders, the Co-Agent named therein (the "Co-Agent") and the Administrative
Agent (as amended, supplemented and otherwise modified from time to time, the
"Credit Agreement").
W I T N E S S E T H:
-------------------
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally
agreed to make Extensions of Credit to the Borrower upon the terms and subject
to the conditions set forth therein;
WHEREAS, the Borrower has requested, and the Majority Lenders have
agreed, that certain provisions of the Credit Agreement be amended in the manner
provided for in the second amendment dated August__, 1997 (the "Second
Amendment") to the Credit Agreement;
WHEREAS, pursuant to the Credit Agreement, the Guarantor executed and
delivered the Case Credit Guarantee to the Administrative Agent for the benefit
of the Administrative Agent, the Co-Agent and the Lenders;
WHEREAS, it is a condition precedent to the effectiveness of the
Second Amendment that certain provisions of the Case Credit Guarantee be amended
in the manner provided for in, and the Guarantor shall have executed and
delivered to the Administrative Agent for the benefit of the Administrative
Agent, the Co-Agent and the Lenders, this Guarantee Amendment No. 1;
NOW, THEREFORE, in consideration of the Lenders, the Co-Agent and the
Administrative Agent entering into the Second Amendment and agreeing to make
Extensions of Credit to the Borrower under the Credit Agreement and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Guarantor hereby agrees with the Administrative Agent for the
benefit of the Administrative Agent, the Co-Agent and the Lenders as follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms
defined in the Credit Agreement or the Case Credit Guarantee and used herein
shall have the meanings given to them in the Credit Agreement and the Case
Credit Guarantee, respectively.
<PAGE>
-2-
2. Amendment to Paragraph 11 of the Case Credit Guarantee:
Paragraph 11 of the Case Credit Guarantee is hereby deleted in its entirety and
replaced with the following new paragraph 11:
11. Covenants. The Guarantor hereby covenants and agrees with the
Administrative Agent, the Co-Agent and the Lenders that, from and
after the date of this Guarantee until the Obligations are paid in
full and the Commitments are terminated, (i) the Guarantor shall own,
beneficially and of record, directly or indirectly through one or more
wholly-owned Subsidiaries, 100% of the issued and outstanding common
shares of the Borrower, free and clear of any and all Liens; (ii) the
Guarantor shall not modify or amend or agree to modify or amend any
term or provision made or contained in Section 11 of the Case Credit
Credit Agreement without the prior written consent of the Majority
Lenders; and (iii) notwithstanding any termination of the Case Credit
Credit Agreement, the Guarantor shall continue to observe and perform
each and every covenant and agreement made or contained in Section 11
of the Case Credit Credit Agreement and on the part of the Guarantor
to be observed and performed and, for such purposes, such covenants
and agreements shall be incorporated herein by reference and shall be
interpreted as being expressed in favour of and for the benefit of the
Administrative Agent, the Co-Agent and the Lenders.
3. No Other Amendments; Confirmation. Except as expressly amended,
modified and supplemented hereby, the provisions of the Case Credit Guarantee
are and shall remain in full force and effect.
4. GOVERNING LAW. THIS GUARANTEE AMENDMENT NO. 1 SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
WISCONSIN WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
<PAGE>
-3-
IN WITNESS WHEREOF, the undersigned has caused this Guarantee
Amendment No. 1 to be duly executed and delivered by its duly authorized officer
as of the day and year first above written.
CASE CREDIT CORPORATION
By
------------------------------
Title
---------------------------
<PAGE>
CONFORMED COPY
- --------------------------------------------------------------------------------
DEED OF GUARANTEE AND NEGATIVE PLEDGE
- --------------------------------------------------------------------------------
DEED POLL dated 17 October 1997 by:
CASE CREDIT CORPORATION a Delaware corporation having its principal office at
233 Lake Street, Racine, Wisconsin, 53403, USA (the COMPANY).
RECITALS
A. The Borrower is a wholly owned Subsidiary of the Company.
B. The Borrower proposes to enter into a bill acceptance and discount
facility with the Lenders and their agent and to issue MTNs and PNs
denominated in Australian dollars from time to time, all on the security
of this Deed.
C. The Company enters into this Deed for the benefit of the Indemnified
Parties described below.
IT IS AGREED as follow:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
AFFILIATE means, in relation to any person, any other person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with that person. For the purposes of this
definition, CONTROL of a person means the power, directly or indirectly,
either to:
(a) vote 10% or more of the securities or other equity interests having
ordinary voting power for the election of directors or other
governing bodies of that person; or
(b) direct or cause the direction of the management and policies of the
person, whether by contract or otherwise.
AGENT means National Australia Bank Limited (ACN 004 044 937) in its
capacity as Agent under the Bill Facility Agreement.
ATTRIBUTABLE DEBT at any date (the DETERMINATION DATE) means, in relation
to any particular lease under which the Company or any Restricted
Subsidiary is at the time liable as lessee for a term of more than 12
months, the total net obligations of the lessee for rental payments during
the remaining term of the lease (excluding any period for which the lease
has been extended or may, at the option of the lessor, be extended),
discounted from the respective due dates of those rental payments to the
determination date at a rate per annum equivalent to the greater of:
(a) the Company's weighted average cost of debt as determined in good
faith by the Company; and
(b) the interest rate inherent in that lease as determined in good
faith by the Company,
<PAGE>
Page 2
- --------------------------------------------------------------------------------
both to be compounded semi-annually. Those TOTAL NET OBLIGATIONS of
the lessee will be the total amount of the rent payable by the
lessee after excluding amounts required to be paid on account of
maintenance and repairs, services, insurance, taxes, assessments,
water rates and similar charges and contingent rents (such as those
based on sales or monetary inflation). If a lease is terminable by
the lessee on the payment of a penalty and under the terms of the
lease, the termination right is not exercisable until after the
determination date and the amount of that penalty discounted (as
specified above) to the determination date is less than the net
amount of rentals payable after the time as of which that
termination could occur (the TERMINATION TIME) discounted (as
specified above) to the determination date, then the discounted
penalty amount will be used instead of the discounted amount of net
rentals payable after the termination time in calculating the
Attributable Debt for the lease. If a lease is terminable by the
lessee on the payment of a penalty and that termination right is
exercisable on the determination date and the amount of the net
rentals payable under the lease after the determination date
discounted (as specified above) to the determination date is
greater than the amount of the penalty, the Attributable Debt for
that lease as of the determination date will be equal to the amount
of that penalty.
AUTHORISED OFFICER means the President or any Vice President of the
Company or, with respect to financial matters, the Chief Financial
Officer, the Treasurer, the Controller, any Assistant Treasurer or
any Assistant Controller of the Company.
BILL means a BILL OF EXCHANGE as defined in the Bills of Exchange
Act 1909 (Cth) which is, or is to be, accepted or discounted under
the Bill Facility Agreement.
BILL FACILITY AGREEMENT means a bill acceptance and discount
facility agreement dated on or about the date of this Deed between
the Borrower, the Agent and various financial institutions named in
the schedule to that agreement.
BORROWER means Case Credit Australia Pty Limited (ACN 069 132 396).
BUSINESS DAY means a day (not being a Saturday or Sunday) on which
banks are open for business in Sydney.
CASE CREDIT DEBT as at any date of determination with respect to
the Group, means an amount equal to:
(a) the sum (without duplication) of:
(i) all Indebtedness of the Group (other than
Indebtedness referred to in paragraphs (e) to (h) of
that definition) which in accordance with GAAP would
be included as a liability on a consolidated balance
sheet (excluding the notes) of the Group as at that
date;
(ii) all Guarantee Obligations of the Group in respect of
Indebtedness (other than Indebtedness referred to in
paragraphs (e) to (h) of that definition) as at that
date; and
(iii) all obligations of the Company or any of its
Subsidiaries incurred in connection with any
securitisation or other asset-backed financing of
Receivables as at that date, to the extent those
obligations are excluded from the definition of
Permitted Securitisation Obligations by operation of
the proviso to that definition;
<PAGE>
Page 3
- --------------------------------------------------------------------------------
(b) less, to the extent included in paragraph (a) above, the sum
(without duplication) of:
(i) the Guarantee Obligations of the Company or any of
its Subsidiaries in respect of Indebtedness of
Subsidiaries of the Company; and
(ii) Permitted Securitisation Obligations as at that date.
Excluded Credit Card Guarantee Obligations are excluded from all
calculations of Case Credit Debt.
CASE VENDOR FINANCING means financing which is provided by a person
other than the Company or any of its Subsidiaries or Affiliates, to
a customer of the Company or of any of its Subsidiaries or
Affiliates.
CONSOLIDATED INTEREST EXPENSE means, for any period with respect to
the Group, the aggregate amount of interest expense of the Group
during that period determined in accordance with GAAP.
CONSOLIDATED LEASE EXPENSE means, for any period with respect to
the Group, all amounts paid or incurred by the Group during that
period under operating leases in respect of real property.
CONSOLIDATED NET INCOME means, for any period with respect to the
Group, consolidated net income of the Group for that period
determined in accordance with GAAP.
CONSOLIDATED NET TANGIBLE ASSETS means, as at any date of
determination, the total assets appearing on the most recent
consolidated balance sheet of the Group as at the end of the most
recent fiscal quarter of the Company ending not more than 135 days
before that date, determined in accordance with GAAP, minus the
amount of Intangible Assets included in that consolidated balance
sheet as at the end of that fiscal quarter.
CONSOLIDATED NET WORTH means, at any time with respect to the
Company, all items which in conformity with GAAP would be included
under shareholders' equity on a consolidated balance sheet of the
Group at that time plus any amounts included on that consolidated
----
balance sheet in respect of any preferred stock of the Company and
any Preferred Securities outstanding from time to time (except to
the extent that any such preferred stock is mandatorily redeemable
at the option of the holder or on the happening of any contingency
before the later of:
(a) the Repayment Date (as defined in the Bill Facility
Agreement) for any accommodation provided under Tranche B of
that agreement; and
(b) the latest Maturity Date (as defined in the MTN Deed) of any
MTN).
CONSOLIDATED SUBSIDIARY means any Subsidiary of the Company which,
in accordance with GAAP, would be consolidated in the financial
statements of the Company.
CONTRACTUAL OBLIGATION means in relation to any person, any
provision of any security issued by that person or of any
agreement, instrument or other undertaking to which the person is a
party or by which it or any of its property is bound.
DEALER means a person who is a Dealer from time to time under the
Dealership Agreement.
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DEALERSHIP AGREEMENT means the Promissory Note and MTN Dealership
Agreement dated on or about the date of this Deed between the
Borrower, the Programme Manager, the I&P Agent and the dealers
listed in that agreement.
EBIT means, for any period with respect to the Group, Consolidated
Net Income of the Group for that period plus, to the extent
----
deducted in determining that Consolidated Net Income, the sum of
taxes and interest expense, plus or minus, to the extent deducted
-------------
or added respectively in determining that Consolidated Net Income,
any income, gain or loss of a non-cash nature.
EVENT OF DEFAULT means an event of default as defined in any
Transaction Document.
EXCLUDED CREDIT CARD GUARANTEE OBLIGATIONS means, at any time, 93%
of the outstanding amount of obligations of cardholders for which
there is recourse to the Company under the credit card program
sponsored by the Company (funded and serviced by NationsBank of
Delaware, N.A.).
EXTRAORDINARY RESOLUTION has the meaning given in the MTN Deed.
FINANCING LEASE means any lease of property, real or personal, in
respect of which the lessee's obligations are required, in
accordance with GAAP, to be capitalised on a balance sheet of the
lessee.
FIXED CHARGE RATIO means for any period, the ratio of:
(a) EBIT of the Group for that period plus Consolidated Lease
Expense (but only to the extent that was deducted in
calculating EBIT) of the Group for that period;
to:
(b) the sum of Consolidated Interest Expense of the Group for
that period, Consolidated Lease Expense of the Group for
that period and all amounts paid by the Company or any of
its Subsidiaries to Case Corporation during that period in
respect of income tax.
GAAP means generally accepted accounting principles in the United
States of America in effect on the date of this Deed.
GOVERNMENTAL AGENCY means any government or any governmental, semi
governmental or judicial entity or authority. It also includes any
self-regulatory organisation established under statute or any stock
exchange.
GROUP means the Company and its Consolidated Subsidiaries and
includes any one or more of them.
GUARANTEE OBLIGATION in relation to any person (the GUARANTEEING
PERSON) means, without duplication and subject to clause 1.2, any
obligation of:
(a) the guaranteeing person; or
(b) another person (including any bank under any letter of
credit), the creation of which was induced by the
guaranteeing person issuing a reimbursement, counter
indemnity or similar obligation,
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in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the PRIMARY
OBLIGATIONS) of any third person (the PRIMARY OBLIGOR) in any
manner, whether directly or indirectly. It includes an obligation
of the guaranteeing person, whether or not contingent:
(i) to purchase any such primary obligation or any property
constituting direct or indirect security for it;
(ii) to advance or supply funds for the purchase or payment of
any such primary obligation or to maintain working capital
or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor;
(iii) to purchase property, securities or services primarily for
the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make
payment of the primary obligation; or
(iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect of it.
It does not include endorsements of instruments for deposit or
collection in the ordinary course of business; obligations in
respect of trade liabilities incurred in the ordinary course of
business and payable in accordance with customary practices; or
Excluded Credit Card Guarantee Obligations.
INDEBTEDNESS in relation to any person at any time, means, without
duplication:
(a) all indebtedness of the person for borrowed money or for the
deferred purchase price of property or services (other than
trade liabilities incurred in the ordinary course of
business and payable in accordance with customary
practices);
(b) any other indebtedness of the person which is evidenced by a
note, bond, debenture or similar instrument;
(c) all obligations of the person as lessee under Financing
Leases;
(d) all obligations of the person in respect of acceptances
issued or created for the account of the person;
(e) all liabilities secured by any Lien on any property owned by
the person even though the person has not assumed or
otherwise become liable for the payment of it ;
(f) all net liabilities of the person in respect of any interest
rate protection agreement, interest rate future, interest
rate option, interest rate cap or other interest rate hedge
arrangement;
(g) all Guarantee Obligations in respect of Indebtedness
referred to in the preceding paragraphs of this definition;
and
(h) if the person is the Company or any of its Subsidiaries, all
obligations of that person incurred in connection with any
securitisation or other asset-backed financing of
Receivables, to the extent those obligations are excluded
from the definition of Permitted Securitisation Obligations
by operation of the proviso to that definition.
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Despite the above, Permitted Vendor Financing Obligations do not
constitute Indebtedness under this definition.
INDEMNIFIED PARTY means the Agent, the Programme Manager, a Dealer,
a Lender or a Noteholder.
INTANGIBLE ASSETS means at any date of determination, the value
(net of any applicable reserves) as shown in the most recent
consolidated balance sheet of the Group as at the end of the most
recent fiscal quarter of the Company ending not more than 135 days
before that date, prepared in accordance with GAAP, of:
(a) all trade names, trade marks, licences, patents, copyrights,
service marks, goodwill and other like intangibles;
(b) organisational and development costs;
(c) deferred charges (other than prepaid items, such as
insurance, tax, interest, commissions, rent, deferred
interest waiver, deferred financing fees, compensation and
similar items and tangible assets being amortised); and
(d) unamortised debt discount and expense, less unamortised
premium.
I & P AGREEMENT means an issue and paying agency agreement between
National Australia Bank Limited as the issuing and paying agent and
the Borrower.
LENDER means any financial institution which is a Participant from
time to time under the Bill Facility Agreement.
LIEN means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other
security agreement or preferential arrangement of any kind or any
nature whatever (including any conditional sale or other title
retention agreement and any Financing Lease having substantially
the same economic effect as any of the above).
LIQUIDATION includes receivership, compromise, arrangement,
amalgamation, administration, reconstruction, winding up,
dissolution, assignment for the benefit of creditors, bankruptcy or
death.
MATERIAL ADVERSE EFFECT means a material adverse effect on:
(a) the business, operations, property or condition (financial
or otherwise) of the Group taken as a whole;
(b) the ability of the Company to perform its obligations under
this Deed;
(c) the ability of the Borrower to perform its obligations under
any Transaction Document; or
(d) the rights or remedies of the Indemnified Parties under this
Deed or the Transaction Documents.
MATERIAL SUBSIDIARY means any Subsidiary of the Company whose
assets or revenues (excluding inter-company receivables and
revenues that would be eliminated upon consolidation in accordance
with GAAP) are, at the time of determination, equal to or greater
than 10% of the assets or revenues
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(excluding inter-company receivables and revenues that would be
eliminated on consolidation in accordance with GAAP), respectively,
of the Company at such time.
MTN means a debt instrument created by the Borrower in registered
form, constituted by the MTN Deed, entitling the holder of the MTN
to payment of certain money under the MTN Deed.
MTN DEED means the A$ Domestic MTN Deed Poll by the Borrower dated
on or about the date of this Deed.
MTN HOLDER means a person entitled in accordance with the MTN Deed
to an MTN.
NOTEHOLDER means a holder of a PN or an MTN Holder.
ORDINARY RESOLUTION has the meaning given in the MTN Deed.
PERMITTED SECURITISATION OBLIGATIONS means obligations of the
Company or any of its Subsidiaries incurred in connection with any
securitisation or other asset-backed financing of Receivables;
except that, if:
(a) there is recourse to the Company or any of its Subsidiaries
(other than a Special Purpose Subsidiary) for failure to pay
or otherwise perform any of those obligations;
(b) that failure arises as a result of credit defaults by the
debtors in respect of those Receivables; and
(c) that recourse is not limited to the Receivables and
Receivables Related Assets (or undivided or beneficial
interests in them) which are the subject of the
securitisation or other asset-backed financing,
then those obligations will not be Permitted Securitisation
Obligations to the extent that, in accordance with GAAP, they would
be required to be included as a liability on a consolidated balance
sheet of the Group.
PERMITTED VENDOR FINANCING OBLIGATIONS means:
(a) any Guarantee Obligation of the Group in respect of Case
Vendor Financing, but only to the extent that the underlying
principal amount of the Indebtedness subject to the
Guarantee Obligation is secured or otherwise funded by the
Group with cash or other marketable instruments (including
pledges of deposit accounts, notes, bonds, certificates of
deposit or other documents or instruments); and
(b) any Guarantee Obligation of the Group in respect of Case
Vendor Financing where:
(i) Case Corporation or any of its Subsidiaries or
Affiliates has a Guarantee Obligation in respect of
the same principal amount;
(ii) the Company has a written agreement with Case
Corporation which states that Case Corporation will
fully indemnify the Company if the Company is called
on to provide funds in connection with the Guarantee
Obligation; and
(iii) that agreement is enforceable by any MTN Holder or
the Agent.
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PREFERRED SECURITIES means any preferred securities issued by a
financing entity used exclusively to raise capital for the Company
and which have the following structural characteristics:
(a) the financing entity lends the proceeds from the issue of
preferred securities to the Company in exchange for
subordinated debt securities (which are subordinated to all
Indebtedness of the Company of the type described in
paragraphs (a) and (b) of the definition of Indebtedness);
(b) the subordinated debt securities issued by the Company and
corresponding preferred securities issued by the financing
entity have a maturity of at least 10 years;
(c) interest payments on the subordinated debt securities may be
deferred at the Company's discretion; and
(d) neither the subordinated debt securities nor the
corresponding preferred securities contain cross default or
cross acceleration provisions to Indebtedness of the Company
of the type described in paragraphs (a) and (b) of the
definition of Indebtedness.
PN means a short term promissory note of the Borrower drawn in
accordance with the Bills of Exchange Act 1909 (Cth), issued under
the I&P Agreement.
PROGRAMME MANAGER means National Australia Bank Limited in its
capacity as Programme Manager under the Dealership Agreement.
RECEIVABLES means any right of payment from or on behalf of any
obligor, whether constituting an account, chattel paper,
instrument, general intangible or otherwise, arising from the
financing by the Company or any of its Subsidiaries of property or
services, and money due thereunder, security interests in the
property and services financed thereby and any and all other
related rights.
RECEIVABLES RELATED ASSETS means in connection with any
securitisation or other asset-backed financing of, or other sale,
transfer or disposition of, Receivables:
(a) all rights arising under documentation governing or relating
to those Receivables (including rights in respect of Liens
securing those Receivables and other credit support in
respect of those Receivables);
(b) any proceeds of those Receivables and any locked boxes or
accounts in which those proceeds are deposited;
(c) spread accounts and other similar accounts (and any amounts
on deposit in them) established in connection with that
securitisation or asset-backed financing; and
(d) any warranty, indemnity, dilution and other intercompany
claim arising out of the documentation evidencing that
securitisation or asset-backed financing.
REQUIREMENT OF LAW means, in relation to any person, the
certificate of incorporation and by-laws or other organisational or
governing documents of that person, and any law, treaty, rule,
guideline or regulation or determination of an arbitrator or a
court or other Governmental Agency, in each case applicable to or
binding on that person or any of its material property or to which
that person or any of its material property is subject.
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RESTRICTED SUBSIDIARY means each Subsidiary of the Company other
than Securitisation Subsidiaries and Subsidiaries of Securitisation
Subsidiaries.
SECURED MONEY means all money which the Borrower (whether alone or
with another person) is or at any time may become actually or
contingently liable to pay to or for the account of an Indemnified
Party (whether alone or with another person) for any reason
whatever under or in connection with any Transaction Document.
It includes, without limitation, money by way of principal,
interest, fees, costs, guarantee, indemnities, charges, duties or
expenses or payment of liquidated or unliquidated damages under or
in connection with any Transaction Document or as a result of a
breach of or default under or in connection with any Transaction
Document.
Where the Borrower would have been liable but for its Liquidation,
it will be taken still to be liable.
SECURITISATION SUBSIDIARY means a Subsidiary of the Company which
is formed for the purpose of effecting one or more securitisation
transactions and engaging in other activities reasonably related to
them and none of whose indebtedness or any other obligations:
(a) are guaranteed by the Company or any Restricted Subsidiary;
or
(b) subjects any property or assets of the Company or any
Restricted Subsidiary, directly or indirectly, contingently
or otherwise, to any lien, other than pursuant to
representations, warranties and covenants (including those
related to servicing) entered into in the ordinary course of
business in connection with a securitisation transaction and
intercompany notes and other forms of capital or credit
support relating to the transfer or sale of Receivables or
asset-backed securities to that Securitisation Subsidiary
and customarily necessary or desirable in connection with
such transactions.
SPECIAL PURPOSE SUBSIDIARY means any wholly owned Subsidiary of the
Company (other than Case Credit Canada and the Borrower) which is:
(a) formed for the purpose of effecting a securitisation or
other asset-backed financing of Receivables and engaging in
other activities reasonably related to that; and
(b) structured as a BANKRUPTCY-REMOTE SUBSIDIARY in accordance
with customary practices in the asset-backed securitisation
market.
SUBSIDIARY in relation to any person, means a corporation,
partnership or other entity of which shares or stock or other
ownership interests having ordinary voting power (other than stock
or ownership interests which have such power only by reason of the
happening of a contingency) to elect a majority of the board of
directors or other managers of that corporation, partnership or
other entity are at the time owned, or the management of which is
otherwise controlled (directly or indirectly through one or more
intermediaries, or both), by such person.
THRESHOLD AMOUNT means US$60,000,000.
TRANSACTION DOCUMENT means this Deed, the Bill Facility Agreement,
any PN, any MTN, any Bill, the Dealership Agreement, the I&P
Agreement, the MTN Deed or a document or agreement entered into or
provided under, or for the purpose of amending, any of the above.
1.2 DETERMINATION OF AMOUNT OF GUARANTEE OBLIGATION
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The amount of any Guarantee Obligation of any GUARANTEEING PERSON
will be taken to be the lower of:
(a) an amount equal to the stated or determinable amount of the
PRIMARY OBLIGATION in respect of which the Guarantee
Obligation is made; and
(b) the maximum amount for which the guaranteeing person may be
liable under the terms of the instrument embodying the
Guarantee Obligation,
unless the primary obligation and the maximum amount for which the
guaranteeing person may be liable are not stated or determinable,
in which case the amount of the Guarantee Obligation will be the
guaranteeing person's maximum reasonably anticipated liability in
respect of it as determined by the Company in good faith.
In this clause, words in italics have the meaning given in the
definition of Guarantee Obligation.
1.3 BENEFIT OF DEED
(a) This Deed is a deed poll given for the several benefit of
all Indemnified Parties from time to time. Each Indemnified
Party and any person claiming through an Indemnified Party
has the benefit of this Deed even though it is not a party
to, or is not in existence at the time of execution and
delivery of, this Deed.
(b) Subject to the Transaction Documents, each Indemnified Party
may separately enforce its rights under this Deed
independently of each other Indemnified Party. Nothing done
or omitted to be done in relation to this Deed by any
Indemnified Party in any way affects any other Indemnified
Party.
(c) The rights and remedies of the Lenders under this Deed are
also vested in, and may be exercised by, the Agent. Without
limitation, the Agent may make demands on behalf of the
Lenders.
1.4 INTERPRETATION
Headings are for convenience only and do not affect interpretation.
The following rules apply unless the context requires otherwise.
(a) The singular includes the plural and the converse.
(b) A gender includes all genders.
(c) Where a word or phrase is defined, its other grammatical
forms have a corresponding meaning.
(d) A reference to a person, corporation, trust, partnership,
unincorporated body or other entity includes any of them.
(e) A reference to a clause, annexure or schedule is a reference
to a clause of, or annexure or schedule to, this Deed.
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(f) A reference to an Indemnified Party or a party to another
agreement or document includes the party's successors and
permitted substitutes or assigns.
(g) A reference to legislation or to a provision of legislation
includes a modification or re-enactment of it, a legislative
provision substituted for it and a regulation or statutory
instrument issued under it.
(h) A reference to WRITING includes a facsimile transmission and
any means of reproducing words in a tangible and permanently
visible form.
(i) A reference to CONDUCT includes an omission, statement or
undertaking, whether or not in writing.
(j) Mentioning anything after INCLUDE, INCLUDES or INCLUDING
does not limit what else might be included.
1.5 CONSENT OF MTN HOLDERS
A reference to CONSENT of the MTN Holders to any act, matter or
thing is a reference to:
(a) consent of the MTN Holders by Extraordinary Resolution; or
(b) if Standard & Poors have unconditionally confirmed in
writing to the Programme Manager that the relevant act,
matter or thing can be done without effecting the ratings
outlook of the MTNs, then consent of the MTN Holders by
Ordinary Resolution.
2. GUARANTEE
2.1 GUARANTEE
The Company unconditionally and irrevocably guarantees the due and
punctual payment of the Secured Money. The Company enters into this
Deed for valuable consideration which includes the Indemnified
Parties entering into the Transaction Documents at its request.
2.2 PAYMENT
(a) Within 3 Business Days of demand made from time to time by
any Indemnified Party on or after expiry of any relevant
grace period applicable to the Borrower, the Company shall
pay to that Indemnified Party an amount equal to its Secured
Money then due and payable in the same manner and currency
as the Borrower is required to pay that Secured Money under
the relevant Transaction Document (or would have been but
for its Liquidation).
(b) An Indemnified Party may make multiple demands. A demand
need only specify the amount owing. It need not specify the
basis of calculation of that amount.
2.3 NO DEDUCTION
(a) The Company will make all payments under this Deed without
set-off or counter claim and without deduction, except any
compulsory deduction for tax.
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(b) If the Company is obliged to make a deduction in respect of
any tax from any payment to be made for the account of any
Indemnified Party under this Deed:
(i) it shall promptly pay the amount deducted to the
appropriate Governmental Agency; and
(ii) it shall pay the Indemnified Party on the due date of
the payment any additional amounts necessary to
ensure that the Indemnified Party receives when due a
net amount (after payment of any tax in respect of
those additional amounts) in Australian dollars equal
to the full amount which it would have received had a
deduction not been made.
(c) The obligations of the Company under this clause survive the
repayment of the Secured Money and the termination of this
Deed.
2.4 CURRENCY INDEMNITY
The Company shall indemnify each Indemnified Party on demand
against any deficiency which arises whenever for any reason
(including as a result of a judgment or order or Liquidation but
excluding default of any Indemnified Party):
(a) that Indemnified Party receives or recovers an amount due
from the Company in a currency (the PAYMENT CURRENCY) other
than Australian dollars; and
(b) the amount actually received or recovered by that
Indemnified Party when, in accordance with its normal
practices, it converts the Payment Currency into Australian
dollars is less than the relevant amount of Australian
dollars due.
2.5 UNCONDITIONAL NATURE OF OBLIGATION
Neither this Deed nor the obligations of the Company under this
Deed will be affected by anything which but for this provision
might operate to release, prejudicially affect or discharge them or
in any way relieve the Company from any obligation. This includes
the following:
(a) the grant to any person of any time, waiver or other
indulgence, or the discharge or release of any person;
(b) any transaction or arrangement that may take place between
any Indemnified Party and any person;
(c) the Liquidation of any person;
(d) any Indemnified Party becoming a party to or bound by any
compromise, moratorium, assignment of property, scheme of
arrangement, composition of debts or scheme of
reconstruction by or relating to any person;
(e) any Indemnified Party exercising or delaying or refraining
from exercising or enforcing any document or agreement or
any right, power or remedy conferred on it by law or by any
document or agreement;
(f) all or any part of any document or agreement held by any
Indemnified Party at any time or of any right, obligation,
power or remedy changing, ceasing or being transferred (this
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includes amendment, variation, novation, replacement,
rescission, invalidity, extinguishment, repudiation,
avoidance, unenforceability, frustration, failure, expiry,
termination, loss, release, discharge, abandonment or
assignment);
(g) the taking or perfection of any document or agreement or
failure to take or perfect any document or agreement;
(h) the failure by any person or any Indemnified Party to notify
the Company of any default by any person under any document
or agreement;
(i) any Indemnified Party obtaining a judgment against any
person for the payment of any Secured Money;
(j) any legal limitation, disability, incapacity or other
circumstance relating to any person;
(k) any change in any circumstance (including in the members or
constitution of any person);
(l) any document or agreement is not executed by any person, or
is not valid or binding on any person; or
(m) any increase in the Secured Money for any reason (including
as a result of anything referred to above),
whether with or without the consent of the Company. None of the
above paragraphs limits the generality of any other. A reference to
ANY PERSON includes the Borrower. A reference to ANY DOCUMENT OR
AGREEMENT includes this Deed or any other Transaction Document.
2.6 PRINCIPAL AND INDEPENDENT OBLIGATION
This clause is a principal obligation and shall not be treated as
ancillary or collateral to any other right or obligation. The
Company waives any requirement for demand on or notice to the
Borrower.
2.7 NO MARSHALLING
No Indemnified Party is obliged to marshal or appropriate in favour
of the Company or to exercise, apply or recover any Lien or
guarantee (including any Transaction Document) now or in the future
held by it or any of the funds or assets that it may be entitled to
receive or have a claim on.
2.8 NO COMPETITION
Until the Secured Money has been irrevocably paid and discharged in
full the Company shall not:
(a) be subrogated to any Indemnified Party or claim the benefit
of any Lien or guarantee now or in the future held by any
Indemnified Party for the payment of all or part of the
Secured Money;
(b) either directly or indirectly to prove in, claim or receive
the benefit of any distribution, dividend or payment arising
out of or relating to the Liquidation of the Borrower; or
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(c) unless otherwise required by an Indemnified Party, have or
claim any right of contribution or indemnity from the
Borrower or any other person who gives a guarantee or Lien
in respect of any Secured Money.
The receipt of any distribution, dividend or other payment by an
Indemnified Party out of or relating to that Liquidation will not
prejudice the right of any Indemnified Party to recover the Secured
Money by enforcement of this Deed.
2.9 SUSPENSE ACCOUNT
In the event of the Liquidation of the Borrower, the Company
authorises each Indemnified Party:
(a) to prove for all moneys which the Company has paid under
this Deed for the account of the Indemnified Party; and
(b) to retain and to carry to a suspense account and to
appropriate at the discretion of the Indemnified Party any
dividends received in the Liquidation of the Borrower and
all other moneys received in respect of the Secured Money
(including those received under this clause),
until the Indemnified Party has been paid in full in respect of the
Secured Money.
2.10 RESCISSION OF PAYMENT
Whenever any of the following occurs for any reason (including
under any law relating to Liquidation, fiduciary obligations or the
protection of creditors):
(a) all or part of any transaction of any nature (including any
payment or transfer) made during the term of this Deed which
affects or relates in any way to the Secured Money is void,
set aside or voidable;
(b) any claim that anything contemplated by paragraph (a) is so
is upheld, conceded or compromised; or
(c) any Indemnified Party is required to return or repay any
money or asset received by it under any such transaction or
the equivalent in value of that money or asset,
each Indemnified Party will immediately become entitled against the
Company to all rights in respect of the Secured Money which it
would have had if all or the relevant part of the transaction or
receipt had not taken place. The Company shall indemnify each
Indemnified Party on demand against any resulting loss, cost or
expense. This clause continues after this Deed is discharged.
2.11 INDEMNITY
If any Secured Money (including moneys which would have been
Secured Money if they were recoverable) is not recoverable from the
Borrower for any reason the Company shall indemnify each
Indemnified Party and shall pay that money to the relevant
Indemnified Party within 3 Business Days of demand made from time
to time by the Indemnified Party. The reason may include any legal
limitation, disability, incapacity or thing affecting the Borrower.
This applies whether or not:
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(a) any transaction relating to the Secured Money was void or illegal or
has been subsequently avoided; or
(b) any matter or fact relating to that transaction was or ought to have
been within the knowledge of any Indemnified Party.
2.12 CONTINUING GUARANTEE AND INDEMNITY
This clause:
(a) is a continuing guarantee and indemnity;
(b) will not be taken to be wholly or partially discharged by the
payment at any time of any Secured Money or by any settlement of
account or other matter or thing; and
(c) remains in full force until the Secured Money has been paid in full
and the Company has completely performed its obligations under this
Deed.
2.13 VARIATIONS
This clause covers the Secured Money as varied from time to time including
as a result of:
(a) any amendment to, or waiver under, any Transaction Document; or
(b) the provision of further accommodation to the Borrower,
and whether or not with the consent of or notice to the Company. This does
not limit any other provision.
2.14 JUDGMENT
A judgment obtained against the Borrower will be conclusive against the
Company.
2.15 CONDITIONS PRECEDENT
Any condition or condition precedent to the provision of financial
accommodation is for the benefit of the Indemnified Parties and not the
Company. Any waiver of or failure to satisfy such a condition or condition
precedent will be disregarded in determining whether an amount is part of
the Secured Money.
3. EXPENSES
(a) The Company shall indemnify each Indemnified Party on demand against
any liability, loss, cost or expense (including legal costs on a
full indemnity basis) the Indemnified Party incurs in or as a result
of the actual or contemplated enforcement of this Deed.
(b) The Company shall have no obligation under this clause to the extent
that any liability, loss or expense arises solely from:
(i) the gross negligence or wilful misconduct of the Indemnified
Party (or any of its directors, officers, employees, agents,
affiliates or successors); or
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(ii) legal proceedings commenced against the Indemnified Party by
any security holder or creditor of the Indemnified Party
arising out of and based upon rights afforded any such
security holder or creditor solely in its capacity as such.
4. DEFAULT INTEREST
Interest will accrue each day on each amount which is due but unpaid under
or in respect of this Deed, both before and after judgment. The Company
will pay it on demand. The rate will be 1.5% per annum plus the Reuters
BBSY bid rate for consecutive funding periods of one month, or if there is
none, the rate reasonably selected by the Indemnified Party as equivalent.
5. SET OFF
(a) Each Indemnified Party may apply any credit balance in any currency
(whether or not matured) in any accounts of the Company with the
Indemnified Party towards satisfaction of any sum then due and
payable by the Company to the Indemnified Party under or in
relation to this Deed. An Indemnified Party need not make the
application.
(b) An Indemnified Party may exchange currencies to make that
application.
(c) The Indemnified Party shall notify the Company as soon as
reasonably practicable of any set-off and application under this
clause.
6. REPRESENTATIONS AND WARRANTIES
6.1 REPRESENTATIONS AND WARRANTIES
The Company makes the following representations and warranties.
(a) (FINANCIAL CONDITION) The most recent balance sheet of the Group
fairly presents in all material respects and in conformity with
GAAP the financial position of the Group as at the date to which it
relates. There has been no subsequent development or event which
has had, or would be reasonably expected to have, a Material
Adverse Effect.
(b) (STATUS) The Company and each Subsidiary of the Company is duly
incorporated or organised and is validly existing as a corporation
or other legal entity in good standing in the jurisdiction of its
incorporation or organisation.
(c) (POWER) The Company and each of its Subsidiaries has the corporate
or other power and authority to own, lease and operate its
properties and to conduct the business in which it is currently
engaged. Each of them is duly qualified to transact business as a
foreign corporation or other legal entity and is in good standing
or otherwise appropriately qualified in each jurisdiction where its
ownership, leasing or operation of property or the conduct of its
business requires such qualification, except to the extent that any
failure to be so qualified and in good standing would not be
reasonably expected to have a Material Adverse Effect.
(d) (COMPLIANCE) The Company and each of its Subsidiaries is in
compliance with all applicable Requirements of Law except to the
extent that failure to comply would not, in the aggregate, be
reasonably expected to have a Material Adverse Effect.
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(e) (CORPORATE AUTHORISATIONS) Each of the Company and the Borrower has
the power to enter into and perform its obligations under the
Transaction Documents to which it is expressed to be a party and
has taken all necessary corporate action to authorise the entry
into and performance of those documents and to carry out the
transactions contemplated by them. No consent or authorisation of,
filing with, notice to or other act by or in respect of any
Governmental Agency or any other person is required to be obtained
or made by or on behalf of the Company or the Borrower in
connection with the execution, delivery, performance, validity or
enforceability of those Transaction Documents.
(f) (DOCUMENTS BINDING) Each Transaction Document to which the Borrower
or the Company is expressed to be a party is a valid and binding
obligation of that entity enforceable against it in accordance with
its terms, subject to any necessary stamping and registration and
to applicable bankruptcy, insolvency, reorganisation, moratorium or
similar laws affecting the enforcement of creditors' rights
generally and to general equitable principles.
(g) (NO LEGAL BAR) The execution, delivery and performance of the
Transaction Documents by the Company or the Borrower did not and
will not:
(i) result in, or require, the creation or imposition of any
Lien on any of the Company's or the Borrower's assets or
property pursuant to any Requirement of Law or Contractual
Obligation; or
(ii) violate any Contractual Obligation or any Requirement of Law
applicable to the Borrower or the Company in any respect
that would reasonably be expected to have a Material Adverse
Effect.
(h) (NO MATERIAL LITIGATION) No litigation, arbitration, tax claim,
dispute or administrative or other proceeding is current or pending
or, to its best knowledge, threatened, which would be reasonably
expected to have a Material Adverse Effect.
(i) (NO DEFAULT) Neither the Company nor any of its Subsidiaries is in
default under any of its Contractual Obligations in a respect which
would be reasonably expected to have a Material Adverse Effect. No
Event of Default has occurred and is continuing.
(j) (TAXES) All United States federal income tax returns and all other
material tax returns which are required to be filed by or with
respect to the Company or any of its Subsidiaries have been filed,
and all taxes and assessments due and payable by any of them (or
for which they could be liable) have been paid, other than:
(i) those which are not yet delinquent;
(ii) those which, if not paid, would not be reasonably expected
to have a Material Adverse Effect; and
(iii) those which are currently being contested in good faith by
appropriate proceedings diligently conducted and with
respect to which reserves in conformity with GAAP have been
provided for in the accounts of the relevant entity.
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No material tax Lien (except those permitted by clause 8.2) has
been filed with respect to any such tax, fee or other charge.
(k) (INVESTMENT COMPANY ACT) The Company is not an INVESTMENT COMPANY,
or a company CONTROLLED by an INVESTMENT COMPANY, within the
meaning of the Investment Company Act of 1940. The Company is not
subject to regulation under any United States (Federal or State) or
other Requirement of Law which limits its ability to incur
indebtedness under this Deed.
6.2 RELIANCE ON REPRESENTATIONS AND WARRANTIES
The Company acknowledges that each Indemnified Party will enter into the
Transaction Documents in reliance on the representations and warranties in
this clause.
7. AFFIRMATIVE COVENANTS
The Company undertakes to each Indemnified Party as follows, except to the
extent that the Agent and the MTN Holders consent.
7.1 FINANCIAL STATEMENTS
The Company will deliver to the Agent (with a copy for each Lender) and
the Programme Manager (with a copy for each Dealer):
(a) as soon as practicable (but in event within 120 days) after the end
of each fiscal year of the Company, a copy of the consolidated
balance sheet of the Group as at the end of that year and the
related consolidated statements of income and retained earnings and
of cash flows for that year, setting out in each case in
comparative form the figures for the previous year, reported on in
accordance with clause 7.2(a); and
(b) as soon as practicable (but in any event within 60 days) after the
end of each of the first 3 quarterly periods of each fiscal year of
the Company, the unaudited consolidated balance sheet of the Group
as at the end of that quarter and the related unaudited
consolidated statements of income and retained earnings and of cash
flows for that quarter and for the portion of the fiscal year
through to the end of that quarter, setting out in comparative form
the figures for the previous year, certified by an Authorised
Officer of the Company as being fairly stated in all material
respects (subject to normal year-end audit adjustments).
All those financial statements must be complete and correct in all
material respects and must be prepared in reasonable detail and in
accordance with GAAP applied consistently throughout the periods reflected
in them and with prior periods (except as approved by the reporting
accountants or Authorised Officer, as applicable, and disclosed in them).
7.2 CERTIFICATES AND OTHER INFORMATION
The Company will deliver to the Agent (with a copy for each Lender) and
the Programme Manager (with a copy for each Dealer):
(a) concurrently with the delivery of the financial statements referred
to in clause 7.1(a), a certificate of independent certified public
accountants of nationally recognised standing selected by the
Company:
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(i) reporting on those financial statements without a GOING
CONCERN or like qualification or exception or qualification
arising out of the scope of the audit; and
(ii) stating that, after making the examination necessary for the
report, no knowledge was obtained of any Event of Default,
except as specified in the certificate;
(b) concurrently with the delivery of the financial statements referred
to in clauses 7.1(a) and 7.1(b), a certificate of an Authorised
Officer of the Company which:
(i) states that during the period covered by those financial
statements, the Company has, to the best of that person's
knowledge, observed or performed all its covenants and other
agreements under this Deed, and that the Authorised Officer
has no knowledge of any Event of Default except as specified
in the certificate; and
(ii) sets out in reasonable detail the calculations required to
determine compliance with clause 8.1;
(c) no later than 30 days after they are filed with the Securities and
Exchange Commission or any successor or analogous Governmental
Agency, final copies of all financial statements and material
reports which the Company may make to, or file with those entities
and final copies of all filings made by the Company with those
entities in connection with the sale of indebtedness of the Company
to the public or in connection with any asset-backed receivables
transaction entered into by the Company or its Subsidiaries
(including registration statements and prospectuses and amendments
to them); and
(d) promptly, such additional financial and other information as the
Agent or the Programme Manager may from time to time reasonably
request.
7.3 PAYMENT OF OBLIGATIONS
The Company will pay, discharge or otherwise satisfy at or before maturity
or before they become delinquent, all its obligations of whatever nature
except where:
(a) the amount or validity of the obligation is currently being
contested in good faith by appropriate proceedings and reserves in
conformity with GAAP have been provided in its accounts; or
(b) failure to do so could not, in the aggregate, have a Material
Adverse Effect and would not subject any of its property to a Lien
not permitted by clause 8.2.
7.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE
The Company will continue to engage in business of the same general type
as now conducted by it and preserve, renew and keep in full force its
corporate existence and take all reasonable action to maintain all rights,
privileges and franchises necessary or desirable in the normal conduct of
its business. It will comply with all its Contractual Obligations and
Requirements of Law except to the
<PAGE>
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extent that failure to comply could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
7.5 MAINTENANCE OF PROPERTY AND INSURANCE
The Company will keep all property useful and necessary in its business in
good working order and condition. It will maintain insurance on all its
property, with financially sound and reputable insurance companies, for at
least such amounts and against at least such risks as are usually insured
against in the same general area by companies engaged in the same or
similar business (including, in any event, public liability, product
liability and business interruption insurance).
7.6 INSPECTION OF PROPERTY, BOOKS
The Company will keep proper books of record and account in which full,
true and correct entries, in conformity with GAAP and all applicable
Requirements of Law, will be made of all dealings and transactions in
relation to its business and activities. It will allow representatives of
the Agent and the Programme Manager to visit and inspect any of its
property and examine any of its books and records at any reasonable time
and with reasonable prior notice and it will allow them to discuss the
business, operations, property and financial and other condition of the
Group with its employees, officers and accountants.
7.7 NOTICE
The Company will promptly (but in any event no later than 3 days, or in
the case of paragraph (b), 10 days or in the case of paragraph (d), 30
days, in each case after an Authorised Officer of the Company knows of it)
give notice to the Agent and the Programme Manager of:
(a) the occurrence of any Event of Default;
(b) any:
(i) default or event of default under any Contractual Obligation
of the Company or any of its Subsidiaries; or
(ii) litigation, investigation or proceeding which may exist at
any time between the Company or any of its Subsidiaries and
a Governmental Agency,
which, in either case, if not cured or if adversely determined, as
applicable, could have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Company or any of its
Subsidiaries where the amount involved is the Threshold Amount or
more and not covered by insurance or where injunctive or similar
relief is sought; and
(d) any development or event which has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice under this clause shall be accompanied by a statement of an
Authorised Officer of the Company setting out details of the event
referred to in it and any remedial action taken or proposed.
7.8 SUBSIDIARIES
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The Company will ensure that each of its Material Subsidiaries complies
with clauses 7.3 to 7.7 inclusive as if binding on each of them and as if
references to IT or THE COMPANY were to the Material Subsidiary.
8. NEGATIVE COVENANTS
The Company undertakes to each Indemnified Party as follows, except to the
extent that the Agent and the MTN Holders consent.
8.1 FINANCIAL CONDITION, RATIOS
(a) The Company will ensure that the ratio of Case Credit Debt to
Consolidated Net Worth of the Company is never greater than 8.00 to
1.00.
(b) The Company will ensure that the Fixed Charge Ratio for any period
of four consecutive fiscal quarters ending on the last day of any
fiscal quarter of the Company is never less than 1.10 to 1.00.
8.2 LIMITATION ON LIENS
The Company will not, and it will ensure that each of its Subsidiaries
will not, create, incur, assume or suffer to exist any Lien on any of its
property, assets or revenue, whether now owned or acquired later, other
than:
(a) Liens for taxes not yet due and payable or which are being
contested in good faith by appropriate proceedings, provided it has
set aside adequate reserves in conformity with GAAP;
(b) Liens consisting of pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers
under insurance or self-insurance arrangements;
(c) Liens consisting of rights of lessees under leases, easements,
rights-of-way, restrictions and other similar encumbrances incurred
in the ordinary course of business which, in the aggregate, are not
substantial in amount and which do not in any case materially
detract from the value of the property or materially interfere with
the ordinary conduct of its business;
(d) Liens consisting of deposits to secure the performance of leases
(other than Financing Leases), statutory obligations, surety and
appeal bonds and other obligations of a like nature incurred in the
ordinary course of its business;
(e) Liens created by the Company in favour of itself;
(f) Liens granted pursuant to any securitisation or other asset-based
financing of Receivables and Receivables Related Assets, and which
cover only Receivables and Receivables Related Assets or any
undivided or beneficial ownership interest in any Receivables or
Receivables Related Assets;
(g) Liens in existence on the date of this Deed and listed in the
schedule, provided that:
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(i) no such Lien is extended to cover any additional property
after the date of this Deed (except to the extent required
by the terms of the Indebtedness secured by the Lien, or by
any other agreement governing the Lien, as those terms are
in effect on the date of this Deed);
(ii) no such Lien secures any Indebtedness or other obligations
other than Indebtedness or obligations secured by it on the
date of this Deed and refinancings, refundings, renewals or
extensions of that Indebtedness or obligation; and
(iii) the amount of Indebtedness or other obligations secured by
the Lien is not increased;
(h) Liens on assets of Subsidiaries of the Company which become
Subsidiaries after the date of this Deed or Liens on assets
acquired by the Company or any of its Subsidiaries after the date
of this Deed, provided that:
(i) the Liens were in existence at the time the Subsidiary
became a Subsidiary or at the time the assets were acquired;
and
(ii) the Liens were not created in contemplation of the
transaction pursuant to which the Subsidiary became a
Subsidiary or in contemplation of the acquisition of those
assets; and
(i) in addition to Liens permitted by paragraphs (a) to (h) of this
clause, Liens on assets of the Company or any of its Subsidiaries
securing Indebtedness of the Company or such Subsidiary, provided
that the aggregate principal amount of all Indebtedness secured by
such Liens, plus the aggregate outstanding amount of all
Attributable Debt in respect of all sale and leaseback transactions
to which the Company or any Restricted Subsidiary is a party, does
not exceed at the time such Liens are granted an amount equal to
the sum of:
(i) US$20,000,000; and
(ii) 5% of Consolidated Net Tangible Assets of the Group.
In calculating the amount of Attributable Debt permitted under this
paragraph, there shall be excluded all Attributable Debt in respect
of sale and leaseback transactions relating to assets of
Subsidiaries of the Company which become Subsidiaries after the
date of this Deed if those transactions were in existence at the
time the Subsidiary became a Subsidiary and were not created in
contemplation of the transaction pursuant to which the Subsidiary
became a Subsidiary.
8.3 LIMITATION ON FUNDAMENTAL CHANGES
(a) Subject to paragraph (b), the Company will not enter into any
merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or
convey, sell, lease, assign, transfer or otherwise dispose of, all
or substantially all of its property, business or assets.
(b) An entity may be merged or consolidated with or into the Company
if:
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(i) the Company is the continuing or surviving corporation; or
(ii) the Indebtedness under this Deed is assumed by the surviving
corporation with the approval of the Agent and the MTN
Holders by Extraordinary Resolution.
8.4 LIMITATION ON LINES OF BUSINESS
The Company will not enter into any business, either directly or through
any Subsidiary, other than:
(a) the financing of Receivables of Case Corporation, its Subsidiaries
and their dealers and customers;
(b) other financial services related to the agricultural and
construction business; and
(c) other business, if the business of the Group taken as a whole is
limited substantially to the businesses described in paragraphs (a)
and (b) above.
9. NO WAIVER
No failure to exercise a power, and no delay in exercising a power,
operates as a waiver. Waivers must be in writing.
10. SEVERABILITY OF PROVISIONS
Any provision of this Deed which is prohibited or unenforceable in any
jurisdiction is ineffective as to that jurisdiction to the extent of the
prohibition or unenforceability. That does not invalidate the remaining
provisions of this Deed nor affect the validity or enforceability of that
provision in any other jurisdiction.
11. SURVIVAL OF REPRESENTATIONS
All representations and warranties in this Deed survive its execution and
delivery.
12. INDEMNITY AND REIMBURSEMENT OBLIGATIONS
Unless otherwise stated, each indemnity, reimbursement or similar
obligation in this Deed:
(a) is a continuing obligation;
(b) is a separate and independent obligation;
(c) is payable on demand; and
(d) survives termination or discharge of this Deed.
13. MORATORIUM LEGISLATION
To the full extent permitted by law all legislation which at any time
directly or indirectly:
(a) lessens, varies or affects in favour of the Company any obligation
under this Deed; or
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(b) delays, prevents or prejudicially affects the exercise by an
Indemnified Party of any right, power or remedy conferred by this
Deed,
is excluded from this Deed.
14. ACKNOWLEDGMENT BY COMPANY
The Company confirms that:
(a) it has not entered into this Deed in reliance on, or as a result
of, any statement or conduct of any kind of or on behalf of any
Indemnified Party (including, without limitation, any advice,
warranty, representation or undertaking); and
(b) no Indemnified Party is obliged to do anything (including, without
limitation, disclose anything or give advice), except as expressly
set out in the Transaction Documents or in writing duly signed by
or on behalf of that Indemnified Party.
15. GOVERNING LAW
This Deed is governed by the laws of New South Wales.
16. JURISDICTION
16.1 JURISDICTION
With respect to any legal action or proceedings which may be brought at
any time with respect to this Deed (each a RELEVANT ACTION) the Company
irrevocably:
(a) submits to and accepts, for itself and in respect of its assets,
generally and unconditionally the non-exclusive jurisdiction of all
courts exercising jurisdiction in New South Wales; and
(b) waives any present or future objection to the venue and any present
or future claim that the Relevant Action, if brought in New South
Wales, has been brought in an inconvenient forum.
16.2 PROCESS AGENTS
(a) The Company irrevocably:
(i) nominates the Borrower as its agent to receive service of
process or other documents in any Relevant Action; and
(ii) agrees that service on that agent or any other person
appointed under paragraph (b) will be sufficient service on
it.
(b) The Company shall ensure that the process agent remains authorised
to accept service on its behalf. If any process agent ceases to
have an office in the place specified, the Company shall ensure
that at all times there is another person in that place to receive
process on its behalf. It shall promptly notify the Agent and the
Programme Manager of the appointment of that other person.
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17. COUNTERPARTS
This Deed may be executed in any number of counterparts. All of
counterparts together will be taken to constitute the one instrument.
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SCHEDULE
EXISTING LIENS
(Clause 8.2(g))
None.
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EXECUTED as a deed poll.
Each attorney executing this Deed states that he has no notice of revocation or
suspension of his power of attorney.
SIGNED SEALED AND DELIVERED )
for and on behalf of )
CASE CREDIT CORPORATION )
by its attorney in )
the presence of: ) /s/ Peter Hong (sgd)
-----------------------
Attorney
PETER HONG
-----------------------
Print name
/s/ Andrew Mohr (sgd)
- ------------------------
Witness
ANDREW MOHR
- ------------------------
Print name
<PAGE>
CONFORMED COPY
CASE CREDIT CORPORATION
-------------------------------------
DEED OF GUARANTEE AND NEGATIVE PLEDGE
-------------------------------------
<PAGE>
CONFORMED COPY
NEW SOUTH WALES
STAMP DUTY PAID $2
- --------------------------------------------------------------------------------
BILL FACILITY AGREEMENT
- --------------------------------------------------------------------------------
AGREEMENT dated 17 October 1997 between:
1. CASE CREDIT AUSTRALIA PTY LIMITED (ACN 069 132 396) incorporated in
Victoria, with its principal place of business at 31-67 Kurrajong Avenue,
St Marys, New South Wales (the BORROWER);
2. EACH BANK OR FINANCIAL INSTITUTION named in the schedule (each, a
PARTICIPANT); and
3. NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937) of Level 26, 255 George
Street, Sydney as agent for the Participants (in this capacity, the
AGENT).
RECITAL
The Borrower and the Guarantor have requested the Agent and the Participants to
provide the Borrower with a bill acceptance and discount facility of an amount
up to A$400,000,000.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
ACCOUNTS means profit and loss accounts, balance sheets and cashflow
statements together with any statements, reports (including any directors'
and auditors' reports) and notes attached to or intended to be read with
any of them.
AFFILIATE means, in relation to any person, any other person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with that person. For the purposes of this
definition, control of a person means the power, directly or indirectly,
either to:
(a) vote 10% or more of the securities or other equity interests having
ordinary voting power for the election of directors or other
governing bodies of that person; or
(b) direct or cause the direction of the management and policies of the
person, whether by contract or otherwise.
ASSOCIATE of an entity means a RELATED PARTY as defined in s243F of the
Corporations Law.
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AUTHORISATION includes:
(a) any consent, authorisation, registration, filing, lodgement,
agreement, notarisation, certificate, permission, licence, approval,
authority or exemption from, by or with a Government Agency; or
(b) in relation to anything which will be fully or partly prohibited or
restricted by law if a Government Agency intervenes or acts in any
way within a specified period after lodgement, filing, registration
or notification, the expiry of that period without intervention or
action.
AUTHORISED OFFICER means:
(a) in respect of the Borrower, any director or secretary of the
Borrower, the Treasurer of the Guarantor, or any person from time to
time nominated as an Authorised Officer by the Borrower by a notice
to the Agent accompanied by certified copies of signatures of all
new persons so appointed; and
(b) in respect of the Agent or a Participant, any person whose title or
acting title includes the word MANAGER or PRESIDENT or cognate
expressions, or any secretary or director.
BBR for a period is:
(a) the Reuters screen page BBSY bid rate for that period at about
10.15am on the first day of that period, or if there is none, the
rate selected by the Agent as equivalent; or
(b) in the case of a Participant's participation in any Same Day
Segment, that Participant's bank bill rate for that period on the
first day of that period.
Rates will be rounded upward if necessary to 3 decimal places.
BILL means a BILL OF EXCHANGE as defined in the Bills of Exchange Act 1909
which is, or is to be, accepted or discounted under this Agreement.
BUSINESS DAY means a weekday on which banks are open for business in
Sydney and Melbourne.
CASE VENDOR FINANCING means financing which is provided by a person other
than Case Corporation Pty Limited or any of its Subsidiaries or
Affiliates, to a customer of Case Corporation Pty Limited or of any of its
Subsidiaries or Affiliates.
COMMITMENT in relation to a Participant for Tranche A means the amount
against its name in column 3 of the schedule and for Tranche B means the
amount against its name in column 4 of the schedule, as reduced or
cancelled under this Agreement.
CONTRACTUAL OBLIGATION means, in relation to any person, any provision of
any security issued by that person or of any agreement, instrument or
other undertaking to which the person is a party or by which it or any of
its property is bound.
DRAWDOWN DATE means the date on which any accommodation under this
Agreement is or is to be drawn.
DRAWDOWN NOTICE means a notice under clause 5.
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EVENT OF DEFAULT means any of the events specified in clause 17.1.
FINANCING LEASE means any lease of property, real or personal, in respect
of which the lessee's obligations are required, in accordance with current
accounting practice, to be capitalised on the lessee's balance sheet.
FUNDING PERIOD means the term of the Bills comprising a Segment. That
period commences on the Drawdown Date of that Segment and has a duration
selected under clause 7.
GOVERNMENT AGENCY means any government or any governmental, semi-
governmental or judicial entity or authority. It also includes any self-
regulatory organisation established under statute or any stock exchange.
GROUP means the Borrower and each of its Subsidiaries from time to time.
GROUP MEMBER means any of them.
GUARANTEE means any guarantee, indemnity, letter of comfort or other
assurance against loss. It includes any obligation to be responsible for
the solvency or financial condition of another party, or for payment of
Indebtedness of another party, either directly or indirectly (for example,
by acquiring the Indebtedness).
GUARANTEE DEED POLL means the guarantee and negative pledge deed poll
dated on or about the date of this Agreement by the Guarantor in favour
of, among others, the Indemnified Parties.
GUARANTEE OBLIGATION in relation to any person (the GUARANTEEING PERSON)
means, without duplication, any obligation of:
(a) the guaranteeing person; or
(b) another person (including any bank under any letter of credit) the
creation of which was induced by the guaranteeing person issuing a
reimbursement, counter indemnity or similar obligation,
in either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the PRIMARY OBLIGATIONS) of any
person (the PRIMARY OBLIGOR) in any manner, whether directly or
indirectly. It includes an obligation of the guaranteeing person, whether
or not contingent:
(i) to purchase any such primary obligation or any property
constituting direct or indirect security for it;
(ii) to advance or supply funds for the purchase or payment of any such
primary obligation or to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor;
(iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of the primary
obligation; or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect of it.
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It does not include endorsement of instruments for deposit or collection in
the ordinary course of business or obligations in respect of trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices.
Without limiting any Guarantee given in respect of the Secured Money, the
amount of any Guarantee Obligation of any GUARANTEEING PERSON will be taken
to be the lower of:
(A) an amount equal to the stated or determinable amount of the PRIMARY
OBLIGATION in respect of which the Guarantee Obligation is made; and
(B) the maximum amount for which the guaranteeing person may be liable
under the terms of the instrument embodying the Guarantee
Obligation,
unless the primary obligation and the maximum amount for which the
guaranteeing person may be liable are not stated or determinable, in which
case the amount of the Guarantee Obligation will be the guaranteeing
person's maximum reasonably anticipated liability in respect of it as
determined by the Borrower in good faith.
GUARANTOR means Case Credit Corporation, a company incorporated in Delaware
with its principal office at 233 Lake Street, Racine, Wisconsin, 53403,
USA.
INDEBTEDNESS in relation to any person at any time, means, without
duplication:
(a) all indebtedness of the person for borrowed money or for the
deferred purchase price of property or services (other than trade
liabilities incurred in the ordinary course of business and payable
in accordance with customary practices);
(b) any other indebtedness of the person which is evidenced by a note,
bond, debenture or similar instrument;
(c) all obligations of the person as lessee under Financing Leases;
(d) the discounted amount of all obligations of the person in respect of
acceptances issued or created for the account of the person;
(e) all liabilities secured by any Lien on any property owned by the
person even though the person has not assumed or otherwise become
liable for the payment of it;
(f) all net liabilities of the person in respect of Interest Rate
Agreements;
(g) all Guarantee Obligations in respect of Indebtedness referred to in
the preceding paragraphs of this definition; and
(h) if the person is the Borrower or any of its Subsidiaries, all
obligations of that person incurred in connection with any
securitisation or other asset-backed financing of Receivables, to
the extent those obligations are excluded from the definition of
Permitted Securitisation Obligations by operation of the proviso to
that definition.
Despite the above, Permitted Vendor Financing Obligations do not constitute
Indebtedness under this definition.
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INDEMNIFIED PARTY means the Agent or a Participant.
INTEREST RATE AGREEMENT means any interest rate protection agreement,
interest rate future, interest rate option, interest rate cap or other
interest rate hedge arrangement.
LIEN means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatever (including any
conditional sale or other title retention agreement and any Financing Lease
having substantially the same economic effect as any of the above).
LIQUIDATION includes receivership, compromise, arrangement, amalgamation,
administration, reconstruction, winding up, dissolution, assignment for the
benefit of creditors, bankruptcy or death.
MAJORITY PARTICIPANTS means Participants whose Commitments are two thirds
or more of the sum of the Commitments.
MARGIN:
(a) in respect of Tranche A, means:
(ii) until the first anniversary of the date of this Agreement,
0.185% per annum; and
(iii) afterwards, the same rate per cent per annum as applies from
time to time under paragraph (b);
(b) in respect of Tranche B, will vary depending on the long term debt
rating of the Guarantor by Standard & Poors and Moody's Investors
Service Pty Ltd and will be the figure which corresponds to the
relevant long term debt rating below:
LONG TERM DEBT RATING MARGIN
S&P/MOODY'S
A/A2 0.155%
A-/A3 0.170%
BBB+/Baa1 0.200%
BBB/Baa2 0.250%
BBB-/Baa3 0.275%
BB+/Ba 0.425%
BB/Baa2 or lower 0.575%
Where the ratings of those agencies do not coincide, the Margin
corresponding to the higher of those ratings will apply.
MARKETABLE SECURITY has the meaning given in the Corporations Law, but also
includes a document referred to in the exceptions to the definition of
DEBENTURE in the Corporations Law.
MATERIAL ADVERSE EFFECT means a material adverse effect on:
(a) the business, operations, property or condition (financial or
otherwise) of the Group;
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(b) the ability of the Borrower or the Guarantor to perform its
obligations under this Agreement or any other Transaction Document;
or
(c) the rights or remedies of the Agent or Participants under the
Transaction Documents.
MATERIAL SUBSIDIARY means any Subsidiary of the Borrower whose assets or
revenues (excluding inter-company receivables and revenues that would be
eliminated upon consolidation in accordance with current accounting
practice) are, at the time of determination, equal to or greater than 10%
of the assets or revenues (excluding inter-company receivables and revenues
that would be eliminated upon consolidation in accordance with current
accounting practice), respectively, of the Borrower at such time.
PERMITTED SECURITISATION OBLIGATIONS means obligations of the Borrower or
any of its Subsidiaries incurred in connection with any securitisation or
other asset-backed financing of Receivables; except that, if:
(a) there is recourse to the Borrower or any of its Subsidiaries (other
than a Special Purpose Subsidiary) for failure to pay or otherwise
perform any of those obligations;
(b) that failure arises as a result of credit defaults by the debtors in
respect of those Receivables; and
(c) that recourse is not limited to the Receivables and the Receivables
Related Assets (or undivided or beneficial interests in them) which
are the subject of such securitisation or other asset-backed
financing,
then those obligations will not be considered Permitted Securitisation
Obligations within the meaning of this definition to the extent that, in
accordance with current accounting practice, the obligations would be
required to be included as a liability on a consolidated balance sheet of
the Group.
PERMITTED VENDOR FINANCING OBLIGATIONS means any Guarantee Obligation of
the Group in respect of Case Vendor Financing, but only to the extent that
the underlying principal amount of the Indebtedness subject to the
Guarantee Obligation is secured or otherwise funded by the Group with cash
or other marketable instruments (including pledges of deposit accounts,
notes, bonds, certificates of deposit or other documents or instruments).
POTENTIAL EVENT OF DEFAULT means anything which with notice, time or both
would become an Event of Default.
PRINCIPAL OUTSTANDING means the total principal amount of all outstanding
Segments.
RECEIVABLES means any right of payment from or on behalf of any obligor,
whether constituting an account, chattel paper, instrument, general
intangible or otherwise, arising from the financing by the Borrower or any
of its Subsidiaries of property or services, and money due under them,
security interests in the property and services financed by them and all
other related rights.
RECEIVABLES RELATED ASSETS means in connection with any securitisation or
other asset-backed financing of, or other sale, transfer or disposition of,
Receivables, the collective reference to:
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(a) any rights arising under the documentation governing or relating to
those Receivables (including rights in respect of Liens securing the
Receivables and other credit support in respect of them);
(b) any proceeds of the Receivables and any locked boxes or accounts in
which those proceeds are deposited;
(c) spread accounts and other similar accounts (and any amounts on
deposit in them) established in connection with that securitisation
or asset-backed financing; and
(d) any warranty, indemnity, dilution and other intercompany claim
arising out of the documentation evidencing that securitisation or
asset-backed financing.
RELATED ENTITY means an entity which is related within the meaning of s50
of the Corporations Law, but as if BODY CORPORATE includes any entity.
RELEVANT COMPANY means:
(a) the Borrower or any of its Subsidiaries; or
(b) the Guarantor or another person who gives or creates a Guarantee or
Lien which secures any Secured Money.
REPAYMENT DATE means:
(a) for Tranche A, the date which is 364 days after the date of this
Agreement or any later date agreed from time to time in accordance
with clause 4.4; and
(b) for Tranche B, the fifth anniversary of the date of this Agreement.
REQUIREMENT OF LAW means, in relation to any person, the certificate of
incorporation and by-laws or other organisational or governing documents of
that person, and any law, treaty, rule, guideline or regulation or
determination of an arbitrator or a court or other Government Agency, in
each case applicable to or binding on that person or any of its material
property or to which that person or any of its material property is
subject.
REVOLVING CREDIT AGREEMENT means the revolving credit and guarantee
agreement dated as of 23 August 1996 between the Guarantor as a Borrower,
The Chase Manhattan Bank as Administrative Agent and the other Borrowers,
Lenders, Co-Agents and Lead Managers named in it.
SAME DAY SEGMENT means a Segment of Tranche A which is drawn on a SAME DAY
BASIS as permitted by clause 5.2.
SECURED MONEY means all money which the Borrower (whether alone or not) is
or at any time may become actually or contingently liable to pay to or for
the account of an Indemnified Party (whether alone or not) for any reason
whatever under or in connection with a Transaction Document.
It includes money by way of principal, interest, fees, costs, indemnities,
charges, duties or expenses or payment of liquidated or unliquidated
damages under or in connection with a Transaction Document, or as a result
of a breach of or default under or in connection with a Transaction
Document.
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Where the Borrower would have been liable but for its Liquidation, it will
be taken still to be liable.
SEGMENT means all Bills accepted or to be accepted under this Agreement
which comprise the same Tranche and have the same date and term and all
loans taken to be made under clause 10.2 in relation to those Bills.
SHARE of a Participant, in respect of a Segment, means the proportion of
that Participant's participation in that Segment to the amount of the
Segment. That proportion will be determined under clause 3.2.
SPECIAL PURPOSE SUBSIDIARY means any wholly owned Subsidiary of the
Borrower which is:
(a) formed for the purpose of effecting a securitisation or other asset-
backed financing of Receivables and engaging in other reasonably
related activities; and
(b) structured as a BANKRUPTCY-REMOTE SUBSIDIARY in accordance with
customary practices in the asset-backed securitisation market.
SUBSIDIARY has the meaning given in the Corporations Law, but an entity
will also be taken to be a Subsidiary of an entity if it is controlled by
that entity (expressions used in this paragraph have the meanings given for
the purposes of Parts 3.6 and 3.7 of the Corporations Law) and, without
limitation:
(a) a trust may be a Subsidiary, for the purposes of which a unit or
other beneficial interest will be regarded as a share; and
(b) an entity may be a Subsidiary of a trust if it would have been a
Subsidiary if that trust were a corporation.
SUPPORT AGREEMENT means the Support Agreement dated 10 January 1996 between
Case Corporation and the Guarantor.
TAX means any tax, levy, impost, deduction, charge, rate, duty, compulsory
loan or withholding which is levied or imposed by a Government Agency, and
any related interest, penalty, charge, fee or other amount.
THRESHOLD AMOUNT means US$60,000,000.
TRANCHE means Tranche A or Tranche B.
TRANCHE A means financial accommodation provided or to be provided under
this Agreement which is requested as Tranche A in the relevant Drawdown
Notice.
TRANCHE B means financial accommodation provided or to be provided under
this Agreement which is requested as Tranche B in the relevant Drawdown
Notice.
TRANSACTION DOCUMENT means this Agreement, the Guarantee Deed Poll, any
Bill, any Guarantee or Lien in respect of any of the Secured Money or a
document or agreement entered into or provided under or in connection with,
or for the purpose of amending or novating, any of the above. It includes a
written undertaking by or to a party or its lawyers under or in relation to
any of the above.
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1.2 INTERPRETATION
Headings are for convenience only and do not affect interpretation. The
following rules apply unless the context requires otherwise.
(a) The singular includes the plural and the converse.
(b) A gender includes all genders.
(c) Where a word or phrase is defined, its other grammatical forms have
a corresponding meaning.
(d) A reference to a person, corporation, trust, partnership,
unincorporated body or other entity includes any of them.
(e) A reference to a clause, annexure or schedule is a reference to a
clause of, or annexure or schedule to, this Agreement.
(f) A reference to a party to this Agreement or another agreement or
document includes the party's successors and permitted substitutes
or assigns.
(g) A reference to legislation or to a provision of legislation includes
a modification or re-enactment of it, a legislative provision
substituted for it and a regulation or statutory instrument issued
under it.
(h) A reference to WRITING includes a facsimile transmission and any
means of reproducing words in a tangible and permanently visible
form.
(i) A reference to CONDUCT includes an omission, statement or
undertaking, whether or not in writing.
(j) Mentioning anything after INCLUDE, INCLUDES or INCLUDING does not
limit what else might be included.
(k) A reference to DISCOUNTING a Bill includes selling it as agent for
the Borrower.
(l) A reference to an ASSET includes any real or personal, present or
future, tangible or intangible property or asset (including
intellectual property) and any right, interest, revenue or benefit
in, under or derived from the property or asset.
(m) All references to TIME are to Sydney time.
(n) A reference to an amount for which a person is CONTINGENTLY LIABLE
includes an amount which that person may become actually or
contingently liable to pay if a contingency occurs, whether or not
that liability will actually arise.
1.3 OUTSTANDING BILLS
A reference to an OUTSTANDING BILL is to a Bill which has been accepted or
discounted under this Agreement for which the Borrower has not paid the
face amount or provided cash cover under this Agreement. This applies
whether or not that Bill has matured, been presented for payment or been
paid on presentation by the relevant Participant.
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1.4 PRINCIPAL AMOUNT
A reference to the PRINCIPAL AMOUNT of all or part of a Segment is to the
sum of the face amount of the Bills comprising that Segment or part.
1.5 DOCUMENT OR AGREEMENT
A reference to:
(a) an AGREEMENT includes a Lien, Guarantee, undertaking, deed,
agreement or legally enforceable arrangement whether or not in
writing; and
(b) a DOCUMENT includes an agreement (as so defined) in writing or a
certificate, notice, instrument or document.
A reference to a specific agreement or document includes it as amended,
novated, supplemented or replaced from time to time, except to the extent
prohibited by this Agreement.
1.6 DETERMINATION, STATEMENT AND CERTIFICATE
Except where otherwise provided in this Agreement any determination,
statement or certificate by the Agent or an Authorised Officer of the
Agent provided for in this Agreement is sufficient evidence unless proven
wrong.
1.7 CURRENT ACCOUNTING PRACTICE
A reference to CURRENT ACCOUNTING PRACTICE is to accounting principles and
practices applying by law or otherwise generally accepted in Australia,
consistently applied.
1.8 FAILURE TO NOTIFY
Unless otherwise provided in this Agreement, failure by the Agent to give
notice of anything to the Borrower or a Participant will not affect the
obligations of the Borrower in any way.
2. PURPOSE
The Borrower shall use the net proceeds of all accommodation provided
under this Agreement:
(a) to refinance its existing indebtedness;
(b) to provide liquidity support for the $1,000,000,000 promissory note
and medium term note programme established for the Borrower under a
dealership agreement dated on or about the date of this Agreement;
and
(c) for its general corporate purposes,
but for no other purpose.
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3. COMMITMENT
3.1 COMMITMENTS
(a) Subject to this Agreement each Participant agrees with the Borrower
to accept and discount bills comprising its participation in each
Segment.
(b) A Participant is not obliged to make, accept or discount Bills if as
a result the total face amount of its participation in all
outstanding Segments of a Tranche would exceed its Commitment for
that Tranche.
3.2 ALLOCATION AMONG PARTICIPANTS
(a) Subject to this clause, the Participants shall participate in each
Segment of a Tranche ratably according to their respective
Commitments for that Tranche.
(b) Subject to paragraph (d), the Borrower may request any Participant
to provide more than its ratable share of any Segment of Tranche A.
Without limitation, it may request any Participant to provide the
whole of that Segment. The Participant may, but is not obliged, to
do so.
(c) If agreement is reached between the Borrower and a Participant
under paragraph (b) they shall confirm it in writing and the
Borrower shall promptly notify the Agent. A copy of that agreement
must be attached to the Drawdown Notice for the Segment.
(d) No Participant is obliged to participate in a Segment of Tranche A
for an amount less than its ratable share determined in accordance
with paragraph (a).
(e) If a disproportionate drawing is made under paragraph (b) the
Borrower will use its best endeavours to request further drawings
so that the overall participation of each Participant in Tranche A
accords with paragraph (a).
3.3 OBLIGATIONS SEVERAL
The obligations and rights of each Participant under this Agreement are
several and:
(a) failure of a Participant to carry out its obligations will not
relieve any other Participant of its obligations;
(b) no Participant is responsible for the obligations of any other
Participant or the Agent; and
(c) subject to the provisions of the Transaction Documents each
Participant may separately enforce its rights under any Transaction
Document.
3.4 ENFORCEMENT THROUGH AGENT
Each Participant acknowledges that the rights and remedies of the
Participants under the Transaction Documents are also vested in the Agent,
and a Participant may not:
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(a) exercise those rights and remedies unless the Agent has failed to
exercise those rights and remedies within a reasonable time after
the Majority Participants have instructed it to do so; or
(b) take any proceedings for the Liquidation of the Borrower, unless
the Agent has given a notice under clause 17.2(a).
4. CANCELLATION OF COMMITMENTS - REDUCTION OF PRINCIPAL
OUTSTANDING
4.1 REPAYMENT DATES
The Commitments for Tranche A and Tranche B will be cancelled
automatically on the Repayment Date for the respective Tranches.
4.2 REDUCTION OF PRINCIPAL OUTSTANDING
The Borrower shall reduce the Principal Outstanding to the extent
necessary to ensure that it does not exceed at any time the sum of the
Commitments.
4.3 VOLUNTARY EARLY CANCELLATION
(a) Subject to this clause, the Borrower may cancel all or part of the
Commitments, whether for Tranche A or Tranche B or both at the same
time, by giving at least 30 days' notice to the Agent. That notice
is irrevocable.
(b) The relevant amount of the Commitments are cancelled automatically
on expiry of that notice.
(c) Partial cancellations must be in multiples of A$20,000,000 or any
other amount approved by the Agent.
(d) Cancellations affecting utilised Commitments under this clause may
only be made on the last day of the Funding Period of Segments of a
total principal amount equal to the cancelled utilised Commitments.
4.4 EXTENSION OF TRANCHE A REPAYMENT DATE
(a) The Borrower may request an extension of the Repayment Date for
Tranche A by a period of 364 days.
(b) If the Borrower wishes to make a request under paragraph (a) it
must give the Agent notice of that request not less than 30 days
and not more than 60 days before the Repayment Date.
(c) If the Participants:
(i) approve the requested extension, then the Repayment Date for
Tranche A will be considered to have been extended by a
period of 364 days; or
(ii) do not approve the requested extension, then the Repayment
Date for Tranche A will remain unchanged.
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(d) The Borrower may make requests under paragraph (a) in relation to
successive Repayment Dates but may not make more than one request
in relation to any particular Repayment Date.
4.5 APPLICATION AGAINST COMMITMENTS
Unless the Borrower specifies otherwise, cancellations under this clause
will be applied first against undrawn Commitments and then against
utilised Commitments.
4.6 ALLOCATION AMONG PARTICIPANTS
Cancellations and reductions of Commitments and the Principal Outstanding
under this clause in respect of a Tranche will be applied ratably among
the Participants according to their applicable Commitments and
participations in the Principal Outstanding.
4.7 NOTIFICATION
The Agent shall notify each Participant promptly of any notice received by
it under this clause and of the amount of that Participant's Commitment
which is cancelled or reduced.
5. DRAWDOWN NOTICES
5.1 WHEN NOTICE TO BE GIVEN
(a) To make a drawing the Borrower shall give to the Agent an
irrevocable Drawdown Notice substantially in the form of annexure
A, complying with clause 3.2(c) (to the extent it applies) and
specifying among other things whether the Segment belongs to
Tranche A or Tranche B and the amount and Funding Period of each
Segment.
(b) Subject to clause 5.2, that Drawdown Notice must be received by the
Agent by 10.30am 2 Business Days before the proposed Drawdown Date
(which must be a Business Day).
5.2 FUNDS DRAWN ON SAME DAY BASIS
(a) Subject to this Agreement, the Borrower may request any Segment of
Tranche A on a SAME DAY BASIS. In that case the Drawdown Notice
must specify that the Segment is drawn on that basis and must be
received by the Agent by 2pm on the proposed Drawdown Date (which
must be a Business Day).
(b) The total principal amount of all outstanding Same Day Segments
must not exceed at any time A$50,000,000.
5.3 NOTIFICATION OF PARTICIPANTS
The Agent shall notify each Participant promptly of the contents of each
Drawdown Notice and the amount of each Participant's Share of each Segment
requested.
6. PRINCIPAL AMOUNT OF SEGMENTS
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The Borrower shall ensure that the principal amount of each Segment is a
minimum of A$10,000,000 and a whole multiple of A$1,000,000 or the sum of
the undrawn Commitments for the relevant Tranche, unless the Agent agrees
otherwise.
7. SELECTION OF FUNDING PERIODS
(a) Subject to this clause, the Borrower may only select Funding Periods
of 1, 2, 3 and 6 months.
(b) The Borrower may select any other period which does not exceed 180
days agreed by the Agent.
(c) Should a Funding Period end on a day which is not a Business Day,
that Funding Period will be extended to the next Business Day in the
same calendar month or, if none, the preceding Business Day.
(d) If a Funding Period of a number of months starts on a date in a
month and there is no corresponding date in the month in which it is
to end, it will end on the last Business Day of the latter month.
(e) No Funding Period may extend beyond the Repayment Date for the
relevant Tranche. The Borrower shall select Funding Periods so as
to ensure that the Repayment Date for a Tranche coincides with the
last day of Funding Periods of all outstanding Segments of that
Tranche.
(f) If the Borrower fails to select Funding Periods complying with this
clause the Agent may vary any Drawdown Notice to ensure compliance.
8. PROCEDURE
8.1 PREPARATION OF BILLS
If the Borrower requests a Segment, then:
(a) the Agent shall promptly notify the Participants; and
(b) each Participant shall prepare the Bills comprising the Segment to
be drawn on it (if any) and sign them on behalf of the Borrower as
drawer.
8.2 REQUIREMENTS OF BILLS
Bills prepared under this clause must comply with the following.
(a) The total face amount of the Bills comprising a Segment must equal
the principal amount requested in the relevant Drawdown Notice.
(b) Each Bill must:
(i) to the extent practicable, have a face amount of A$500,000
or any other amount specified by the Agent;
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(ii) be expressed to be drawn by the Borrower on a Participant so
that the total face amount of the Bills drawn on each
Participant will equal its Share (if any) of the principal
amount of the relevant Segment;
(iii) have the Participant on which the Bill is drawn named as payee;
and
(iv) mature on the last day of the relevant Funding Period requested
in the relevant Drawdown Notice.
8.3 AUTHORITY OF PARTICIPANTS TO PREPARE BILLS
The Borrower irrevocably and for value authorises each Participant to
complete, perfect and deliver Bills under this clause. The Participants
may act through their Authorised Officers.
8.4 RESTRICTION ON USE OF BILLS BY AGENT AND PARTICIPANTS
Neither the Agent nor any Participant shall use or deal with any Bill
delivered to it or prepared by it except in accordance with this clause.
8.5 NOTIFICATION OF BBR
(a) By 2.30 pm on each Drawdown Date of a Same Day Segment each
Participant who is required to participate in that Segment shall
notify the Agent and the Borrower of BBR for that Participant's
participation in that Segment.
(b) By 11am on each Drawdown Date the Agent shall notify the Borrower and
each Participant who is required to participate in the relevant
Segment, of BBR for each Segment (other than a Same Day Segment) to be
drawn or continued on that date.
(c) Notification under this clause may be by telephone.
8.6 ACCEPTANCE AND DISCOUNT
Subject to this Agreement, on each Drawdown Date each Participant shall:
(a) accept the Bills drawn on it under this clause; and
(b) discount or procure the discount of those Bills and pay to the Agent
in immediately available funds by 12 noon an amount equal to the total
face amount of those Bills less the sum of:
(i) a discount amount in respect of those Bills which would result
in a yield to maturity calculated at the applicable BBR for the
relevant Funding Period;
(ii) an acceptance fee equal to the applicable Margin on that
Drawdown Date, calculated on a daily basis on the total face
amount of those Bills from and including that Drawdown Date to
their maturity date; and
(iii) any applicable stamp duty or other Tax payable by the Agent or
that Participant in respect of those Bills or in respect of any
payment, receipt or crediting of an account contemplated by
this clause (including financial institutions duty).
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On receipt the Agent shall pay the proceeds to the account nominated by
the Borrower in the relevant Drawdown Notice.
8.7 VARIATION OF PROCEDURES, SAME DAY SEGMENTS
(a) After consultation with the Borrower and the Participants, by
notice to them the Agent may vary any of the times by which
anything is to be done under this and the next clause for the
purpose of ensuring the effective operation of the procedures
contemplated by those clauses.
(b) In the case of any Same Day Segment anything which is to be done
under this clause shall be done on the proposed Drawdown Date as
soon as practicable after the Drawdown Notice is received.
9. INDEMNITY AND CASH COVER
9.1 INDEMNITY
The Borrower shall indemnify each Participant against all liabilities of
that Participant as acceptor or endorser of Bills.
9.2 CASH COVER
As between each Participant and the Borrower, the Borrower is primarily
liable in respect of Bills accepted by that Participant. Accordingly:
(a) the liability of the Borrower with respect to any Bill will not be
taken to have been discharged because that Participant becomes the
holder of that Bill before, on or after its maturity;
(b) on the maturity date of the Bill the Borrower shall pay to the Agent
for the account of that Participant an amount equal to the face
amount of the Bill; and
(c) that payment will be made:
(i) if, and to the extent that, by 12 noon on that date the
Borrower has requested a Same Day Segment, by 2.30 pm on that
date; or
(ii) otherwise by 12 noon on that date.
10. ROLLOVER
10.1 NETTING OFF
Where new Bills are to be drawn and accepted on the maturity date of old
Bills, only the net amount as between the amounts payable on that date:
(a) by the Borrower under clause 9.2 for the account of a Participant;
and
(b) by that Participant for the account of the Borrower under
clause 8.6,
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need be paid.
10.2 OVERDRAFT IF NO ROLLOVER
If:
(a) as a result of a condition precedent in clause 14.2 not being
satisfied or waived a Participant does not provide its participation
in a new Segment requested by the Borrower on the maturity of Bills
accepted by that Participant; and
(b) the Agent has not exercised its powers under clause 17.2(a),
the Borrower will not be obliged to provide cash cover under clause 9.2
for the maturing Bills to the extent of the amount of cash cover that the
Participant determines would have been provided out of the proceeds of its
participation in the new Segment, had that condition precedent been
satisfied. That amount will be taken to have been provided by the
Participant as a loan:
(c) which is repayable:
(i) when the relevant condition precedent is satisfied and the
Borrower is able to draw a new Segment; or
(ii) if earlier, when that Participant's Commitment is cancelled
or reduced (to the extent necessary to ensure the
Participant's participation in the Principal Outstanding
does not exceed, in relation to any Tranche, its Commitment
for that Tranche); and
(d) on which the Borrower shall pay interest calendar monthly in
arrears. The interest will accrue from day to day at a rate equal
to the applicable Margin plus the Participant's overdraft rate for
overdrafts to commercial customers from time to time.
11. FEES
11.1 FACILITY FEE
A facility fee accrues as follows:
(a) for Tranche A, at 0.065% per annum on the daily amount of the
Commitment of each Participant for Tranche A from the date of this
Agreement; and
(b) for Tranche B, at a rate which will vary depending on the long term
debt rating of the Guarantor by Standard & Poors and Moody's
Investors Service Pty Ltd, calculated on the daily amount of the
Commitment of each Participant for Tranche B from the date of this
Agreement. That rate will be the figure which corresponds to the
relevant long term debt rating below:
LONG TERM DEBT RATING RATE
S&P/MOODY'S
A/A2 0.070%
A-/A3 0.080%
BBB+/Baa1 0.100%
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BBB/Baa2 0.125%
BBB-/Baa3 0.175%
BB+/Ba 0.250%
BB/Baa2 or lower 0.300%
Where the ratings of those agencies do not coincide, the rate
corresponding to the higher of those ratings will apply.
11.2 CALCULATION AND PAYMENT
(a) The facility fee is calculated on the actual number of days elapsed.
(b) The Borrower shall pay the facility fee in advance on the fifteenth
Business Day of each calendar quarter and on the date of this
Agreement calculated on the relevant Commitment as at the date of
payment. It is not refundable.
11.3 AGENCY FEE
The Borrower shall pay to the Agent for its own account an agency fee in
the amount and at the times specified in a letter from the Agent to the
Borrower,countersigned by the Borrower, dated on or about the date of this
Agreement.
12. PAYMENTS
12.1 MANNER
The Borrower shall make all payments under any Transaction Document:
(a) by bank cheque delivered to the Agent at its address for service of
notices or by transfer of immediately available funds to the account
specified by the Agent from time to time, in either case, but
subject to clause 9.2(c), by 12 noon on the due date; and
(b) without set-off or counterclaim and without any deduction for any
present or future Taxes.
12.2 PAYMENT TO BE MADE ON BUSINESS DAY
If any payment is due on a day which is not a Business Day, the due date
will be the next Business Day in the same calendar month or, if none, the
preceding Business Day.
12.3 DISTRIBUTION BY AGENT
Unless any Transaction Document expressly provides otherwise, the Agent
shall promptly distribute amounts received under any Transaction Document
for the account of the Participants ratably among them.
12.4 APPROPRIATION WHERE INSUFFICIENT MONEYS AVAILABLE
The Agent may appropriate amounts it receives as between principal,
interest and other amounts then payable as it sees fit. This appropriation
will override any made by the Borrower or the Guarantor. The Agent may
appropriate amounts first in payment of amounts payable to it by way of
indemnity or reimbursement.
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12.5 UNANTICIPATED DEFAULT
(a) (ASSUMPTION AS TO PAYMENT) The Agent may assume that a party (the
PAYER) due to make a payment for the account of another party (the
RECIPIENT) makes that payment when due unless the Payer notifies the
Agent at least 1 Business Day before the due date that the Payer
will not be making the payment.
(b) (RELIANCE ON ASSUMPTION) In reliance on that assumption, the Agent
may make available to the Recipient on the due date an amount equal
to the assumed payment.
(c) (RECOUPMENT) If the Payer does not in fact make the assumed
payment, the Recipient shall repay the Agent the amount on demand.
The Payer will remain liable to make the assumed payment, but until
the Recipient does repay the amount, the Payer's liability will be
to the Agent in the Agent's own right.
(d) (INTEREST) If the Payer is the Borrower any interest on the amount
of the assumed payment accruing before recovery will belong to the
Agent. If the Payer is a Participant that Participant shall pay
interest on the amount of the assumed payment at the rate determined
by the Agent, in line with its usual practice, for advances of
similar duration to financial institutions of the standing of the
Participant.
12.6 ROUNDING
In making any allocation or appropriation under any Transaction Document
the Agent may round amounts to the nearest Australian dollar.
13. CHANGES IN LAW
13.1 ADDITIONAL PAYMENTS
Whenever any Indemnified Party determines that:
(a) the effective cost to the Indemnified Party of making, funding or
maintaining its participation in any Segment or its Commitment is
increased in any way;
(b) any amount paid or payable to the Indemnified Party or received or
receivable by the Indemnified Party, or the effective return to the
Indemnified Party or any of its holding companies, under or in
respect of any Transaction Document is reduced in any way;
(c) the return of the Indemnified Party or any of its holding companies
on the capital which is or becomes directly or indirectly allocated
by the Indemnified Party or the holding company to any Segment or
its Commitment is reduced in any way; or
(d) to the extent any relevant law, official directive or request
relates to or affects its Commitment, any Segment or the Transaction
Documents, the overall return on capital of the Indemnified Party or
any of its holding companies is reduced in any way,
as a result of any change in, any making of, or any change in the
interpretation or application by any Government Agency of, any law,
official directive or request, then:
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(e) (when it has calculated the effect of the above and the amount to be
charged to the Borrower under this clause) that Indemnified Party
shall promptly notify the Borrower and provide reasonable details of
the calculation; and
(f) on demand from time to time the Borrower shall pay for the account
of that Indemnified Party the amount certified by an Authorised
Officer of the Indemnified Party to be necessary to compensate the
Indemnified Party or the relevant holding company (as the case may
be) for the increased cost or the reduction. If the amount to be
charged to the Borrower exceeds A$1,000,000, the Borrower shall pay
that amount within 5 days after demand.
The Indemnified Party's right to demand compensation from the
Borrower as contemplated by this clause is limited to a period of 60
days after the Indemnified Party becomes actually aware of any of
the circumstances described in paragraphs (a) to (d) above.
Without limiting the above in any way, this clause applies:
(g) to any law, official directive or request with respect to Taxation
(except Tax on overall net income) or reserve, liquidity, capital
adequacy, special deposit or similar requirements;
(h) to official directives or requests which do not have the force of
law where it is the practice of responsible bankers or financial
institutions in the country concerned to comply with them; and
(i) where the increased cost or the reduction arises because the
relevant Indemnified Party or any of its holding companies is
restricted in its capacity to enter other transactions, or is
required to make a payment, or forgoes or earns reduced interest or
other return on any capital or on any sum calculated by reference in
any way to the amount of any Segment, its Commitment or to any other
sum paid or payable or received or receivable under any Transaction
Document or allocates capital to any such sum.
In this clause a SEGMENT includes any amount paid on maturity of a Bill
and any loan taken to be made under clause 10.2.
13.2 MINIMISATION
(a) (NO DEFENCE) If the relevant Indemnified Party and (if applicable)
its holding company has acted in good faith it will not be a defence
to any claim by the Indemnified Party under clause 13.1 that any
cost, reduction or payment referred to in that clause could have
been avoided.
(b) (NEGOTIATION) At the request of the Borrower the Agent and any
relevant Participant shall negotiate in good faith with the Borrower
with a view to finding a way of minimising any cost, reduction or
payment.
13.3 SURVIVAL OF OBLIGATIONS
This clause survives the discharge of the Borrower's liabilities in
relation to any relevant Segment and the termination of this Agreement.
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13.4 CANCELLATION ON INCREASED COSTS
(a) Within 60 days after the Borrower receives a notice under clause
13.1(e) the Borrower may notify the relevant Participant through the
Agent that it wishes to cancel that Participant's Commitment and
reduce the Principal Outstanding accordingly.
(b) The notification will be irrevocable. The undrawn Commitment of the
Participant will be cancelled immediately. The utilised Commitments
will be cancelled on the last day of the relevant Funding Period or
Periods current when the notification is given.
14. CONDITIONS PRECEDENT
14.1 CONDITIONS PRECEDENT TO FIRST DRAWDOWN NOTICE
The right of the Borrower to give the first Drawdown Notice and the
obligations of each Participant under this Agreement are subject to the
condition precedent that the Agent receives all of the following in form
and substance satisfactory to the Agent:
(a) (VERIFICATION CERTIFICATE) a certificate in relation to the
Borrower given by a director of the Borrower substantially in the
form of annexure B with the attachments referred to and dated not
earlier than 14 days before the first Drawdown Date;
(b) (TRANSACTION DOCUMENTS) a duly executed counterpart of this
Agreement and the Guarantee Deed Poll;
(c) (US OPINION) an opinion of a suitably qualified in-house lawyer of
the Guarantor in relation to the Guarantor and the Guarantee Deed
Poll, substantially in the form initialled by the Agent on or before
the date of this Agreement;
(d) (BORROWER'S LAWYER'S OPINION) an opinion of Arthur Robinson &
Hedderwicks in relation to the Borrower and this Agreement,
substantially in the form initialled by the Agent on or before the
date of this Agreement; and
(e) (RATING) evidence of the Guarantor's long term debt rating by
Standard & Poors and Moody's Investors Service Pty Ltd.
14.2 CONDITIONS PRECEDENT TO EACH SEGMENT
The obligation of each Participant to make, accept and discount Bills
comprised in each Segment is subject to the further conditions precedent
that:
(a) (REPRESENTATIONS TRUE) the representations and warranties by the
Borrower and the Guarantor in the Transaction Documents are true as
at the date of the relevant Drawdown Notice and the relevant
Drawdown Date as though they had been made at that date in respect
of the facts and circumstances then subsisting, except that the
representation by the Borrower in clause 15.1(f) and the
representation by the Guarantor in clause 6.1(a) of the Guarantee
Deed Poll will not be deemed to be repeated at each Drawdown Date;
(b) (NO DEFAULT) no Event of Default or Potential Event of Default
subsists at the date of the relevant Drawdown Notice and the
relevant Drawdown Date or will result from the acceptance or
discount of the Bills; and
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(c) (AUTHORISATION) all necessary Authorisations for the acceptance or
discount of the Bills have been obtained.
15. REPRESENTATIONS AND WARRANTIES
15.1 REPRESENTATIONS AND WARRANTIES
The Borrower makes the following representations and warranties.
(a) (STATUS) The Borrower and each Subsidiary of the Borrower is duly
incorporated or organised and is validly existing as a corporation
or other legal entity in the jurisdiction of its incorporation.
(b) (POWER) The Borrower and each of its Subsidiaries has the corporate
or other power and authority to own, lease and operate its
properties and to conduct the business in which it is currently
engaged. Each of them is duly qualified to transact business as a
foreign corporation or other legal entity and is in good standing
or otherwise appropriately qualified in each jurisdiction where its
ownership, leasing or operation of property or the conduct of its
business requires such qualification, except to the extent that any
failure to be so qualified and in good standing would not be
reasonably expected to have a Material Adverse Effect .
(c) (COMPLIANCE) The Borrower and each of its Subsidiaries is in
compliance with all applicable Requirements of Law except to the
extent that failure to comply would not, in the aggregate, be
reasonably expected to have a Material Adverse Effect.
(d) (CORPORATE AUTHORISATIONS) The Borrower has the corporate power and
authority to make, deliver and perform the Transaction Documents to
which it is expressed to be a party and to borrow under this
Agreement and has taken all necessary corporate action to authorise
the borrowings on the terms of this Agreement and to authorise the
execution, delivery and performance of the Transaction Documents to
which it is expressed to be a party. No consent or authorisation
of, filing with, notice to or other act by or in respect of, any
Government Agency or any other person is required to be obtained or
made by or on behalf of the Borrower in connection with the
borrowings under this Agreement or with the execution, delivery,
performance, validity or enforceability of the Transaction
Documents to which the Borrower is expressed to be a party. This
Agreement and each other Transaction Document to which the Borrower
is expressed to be a party has been duly executed and delivered on
behalf of the Borrower.
(e) (DOCUMENTS BINDING) This Agreement and each other Transaction
Document to which the Borrower is expressed to be a party is a
legal, valid and binding obligation of the Borrower enforceable
against the Borrower in accordance with its terms, subject to any
necessary stamping and registration and to applicable bankruptcy,
insolvency, reorganisation, moratorium or similar laws affecting
the enforcement of creditors' rights generally and to general
equitable principles.
(f) (ACCOUNTS)
(i) The Borrower's most recent consolidated audited Accounts
give a true and fair view of the matters with which they
deal.
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(ii) There has been no subsequent change in its and its
Subsidiaries' state of affairs since the date to which the
Accounts relate which would reasonably be expected to have a
Material Adverse Effect.
(iii) Those Accounts comply with current accounting practice
except to the extent disclosed in them, and with all
applicable laws.
(iv) No Relevant Company has executed a Guarantee for the purpose
of obtaining an order under s313 of the Corporations Law or
an equivalent provision or for the purpose of complying with
any such order.
(g) (NO LEGAL BAR) The execution, delivery and performance of the
Transaction Documents by the Borrower, the borrowings under this
Agreement and the use of their proceeds did not and will not:
(i) violate any Requirement of Law or Contractual Obligation
of the Borrower or any Subsidiary of the Borrower in any
respect that would reasonably be expected to have a
Material Adverse Effect; or
(ii) result in, or require, the creation or imposition of any
Lien on any of its or their respective assets or
properties pursuant to any Requirement of Law or
Contractual Obligation.
(h) (NO MATERIAL LITIGATION) No litigation, arbitration, Tax claim,
dispute or administrative or other proceeding is current or
pending or, to its best knowledge, threatened, which would be
reasonably expected to have a Material Adverse Effect.
(i) (NO DEFAULT) Neither the Borrower nor any of its Subsidiaries is
in default under any of its Contractual Obligations in any respect
which would be reasonably expected to have a Material Adverse
Effect. No Event of Default or Potential Event of Default has
occurred and is continuing.
(j) (TAXES) All Taxes payable by the Borrower or any Subsidiary of the
Borrower (or for which they could be liable) have been paid, other
than:
(i) those not yet delinquent;
(ii) those which, if not paid, would not be reasonably expected
to have a Material Adverse Effect; and
(iii) those the amount or validity of which are currently being
contested in good faith by appropriate proceedings
diligently conducted and with respect to which reserves in
conformity with current accounting practice have been
provided on the books of the Borrower or the Subsidiary )as
applicable).
(k) (NO MISREPRESENTATION) All information provided by it to the Agent
and the Participants is true in all material respects at the date
of this Agreement or, if later, when provided. Neither that
information nor its conduct and the conduct of anyone on its
behalf in relation to the transactions contemplated by the
Transaction Documents, was or is materially misleading, by
omission or otherwise.
(l) (TITLE)
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(i) The Borrower is the sole beneficial owner of all material
assets included in its latest audited Accounts free of any
other third party right or interest whatever other than as
permitted by clause 16.1(j) .
(ii) None of its or another Group Member's assets is subject to
a Lien which is not permitted by clause 16.1(j).
(m) (CORPORATE TREE) The Guarantor is the sole beneficial owner of all
shares in the Borrower.
15.2 RELIANCE ON REPRESENTATIONS AND WARRANTIES
The Borrower acknowledges that the Agent and the Participants have entered
the Transaction Documents in reliance on the representations and
warranties in this clause.
16. UNDERTAKINGS
16.1 GENERAL UNDERTAKINGS
The Borrower undertakes to each Indemnified Party as follows, except to
the extent that the Agent acting on the instructions of the Majority
Participants consents.
(a) (FINANCIAL STATEMENTS) The Borrower will deliver to the Agent
(with a copy for each Participant):
(i) as soon as practicable (but in any event within 120 days)
after the end of each fiscal year of the Borrower, a copy
of the consolidated balance sheet of the Group as at the
end of that year and the related consolidated statements
of income and retained earnings and of cash flows for that
year, setting out in each case in comparative form the
figures for the previous year, reported on without a going
concern or like qualification or exception, or
qualification arising out of the scope of the audit, by
independent chartered accountants of nationally recognised
standing selected by the Borrower; and
(ii) as soon as practicable (but in any event within 60 days)
after the end of each of the first 3 quarterly periods of
each fiscal year of the Borrower, the unaudited
consolidated balance sheet of the Group as at the end of
that quarter and the related unaudited consolidated
statements of income and retained earnings and of cash
flows for that quarter and for the portion of the fiscal
year through to the end of that quarter, setting out in
comparative form the figures for the previous year,
certified by an Authorised Officer of the Borrower as
being fairly stated in all material respects (subject to
normal year-end audit adjustments).
All those financial statements must be complete and correct in all
material respects and must be prepared in reasonable detail and in
accordance with current accounting practice applied consistently
throughout the periods reflected in them and with prior periods
(except as approved by the reporting accountants or Authorised
Officer, as the case may be, and disclosed in them).
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(b) (CERTIFICATES AND OTHER INFORMATION) The Borrower will deliver to
the Agent (with a copy for each Participant):
(i) concurrently with the delivery of the financial statements
referred to in paragraphs (a)(i) and (ii), a certificate of
an Authorised Officer of the Borrower which states that, to
the best of that person's knowledge, during the period
covered by those financial statements, the Borrower has
observed or performed all its covenants and other agreements
and satisfied every condition under this Agreement and the
other Transaction Documents to which it is a party, and that
the Authorised Officer has obtained no knowledge of any
Event of Default or Potential Event of Default except as
specified in the certificate;
(ii) no later than 30 days after they are filed with the
Securities and Exchange Commission or the Australian
Securities Commission or any successor or analogous
Government Agency, final copies of:
(A) all financial statements and material reports which
the Borrower may make to those entities; and
(B) all filings made by the Guarantor or the Borrower
with those entities with respect to the sale or
creation of indebtedness of the Guarantor or the
Borrower or with respect to any asset-backed
receivables transaction entered into by the Borrower
or any of its Subsidiaries (including registration
statements, prospectuses, offering memoranda and
amendments to them);
(iii) promptly after their delivery (but in any event within 10
days), copies of the financial statements of the Guarantor
delivered under section 10.1 of the Revolving Credit
Agreement, except that copies need not be delivered to any
Participant which has received copies under that section;
and
(iv) promptly, such additional financial and other information as
any Participant through the Agent may from time to time
reasonably request.
(c) (PAYMENT OBLIGATIONS) The Borrower will pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as
the case may be, all its obligations of whatever nature except if:
(i) the amount or validity of the obligation is currently being
contested in good faith by appropriate proceedings, and
reserves in conformity with current accounting practice have
been provided in the books of the Borrower; or
(ii) failure to do so could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(d) (CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE) The Borrower
will continue to engage in business of the same general type as now
conducted by it and preserve, renew and keep in full force its
corporate existence and take all reasonable action to maintain all
Authorisations, rights, privileges and franchises necessary or
desirable in the normal conduct of its business. It will comply
with all its Contractual Obligations and
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Requirements of Law except to the extent that failure to comply
could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(e) (MAINTENANCE OF PROPERTY AND INSURANCE) The Borrower will keep all
property useful and necessary in its business in good working order
and condition. It will maintain with financially sound and
reputable insurance companies insurance on all its property, for at
least such amounts and against at least such risks as are usually
insured against in the same general area by companies engaged in
the same or similar business (including, in any event, public
liability, product liability and business interruption insurance).
(f) (INSPECTION OF PROPERTY, BOOKS) The Borrower will keep proper books
of record and account in which full, true and correct entries, in
conformity with current accounting practice and all Requirements of
Law, will be made of all dealings and transactions in relation to
its business and activities. It will allow representatives of the
Agent to visit and inspect any of its property and examine any of
its books and records at any reasonable time and with reasonable
prior notice and it will allow them to discuss the business,
operations, property and financial and other condition of the Group
with its employees, officers and accountants.
(g) (NOTICE) The Borrower will promptly (but in any event within 3
days, or in the case of sub-paragraph (ii), 10 days, or in the case
of sub-paragraph (iv), 30 days, in each case after an Authorised
Officer of the Borrower becomes aware of it) notify the Agent of:
(i) the occurrence of any Event of Default or Potential Event of
Default;
(ii) any:
(A) default or event of default under any Contractual
Obligation of the Borrower or any of its
Subsidiaries; or
(B) litigation, arbitration, Tax claim, dispute or
administrative or other proceeding which may exist at
any time between the Borrower or any of its
Subsidiaries and a Government Agency,
which, in either case, if not cured or if adversely
determined, as applicable, could have a Material Adverse
Effect;
(iii) any litigation, arbitration, Tax claim, dispute or
administrative or other proceeding affecting the Borrower or
any of its Subsidiaries (other than a claim for workers'
compensation) in which the amount involved is equal to or
greater than the Threshold Amount and is not covered by
insurance or in which injunctive or similar relief is
sought; and
(iv) any development or event which has had or could reasonably
be expected to have a Material Adverse Effect.
Each notice under this clause must be accompanied by a statement of
an Authorised Officer of the Borrower setting out details of the
event referred to in it and stating any remedial action taken or
proposed.
(h) (LIMITATION ON FUNDAMENTAL CHANGES)
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(i) Subject to paragraph (ii), the Borrower will not enter into
any merger, consolidation or amalgamation, transfer its
jurisdiction of incorporation or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution),
or convey, sell, lease, assign, transfer or otherwise
dispose of, all or substantially all of its property,
business or assets.
(ii) An entity may be merged or consolidated with or into the
Borrower if the Borrower is the continuing or surviving
corporation or the Indebtedness under this Agreement is
assumed by the surviving corporation, and the Guarantee Deed
Poll is terminated or amended, with the approval of all
Participants.
(i) (LIMITATION ON LINES OF BUSINESS) The Borrower will not enter into
any business, either directly or through any Subsidiary, other
than:
(i) the financing of Receivables of Case Corporation Pty
Limited, its Subsidiaries and their dealers and customers;
(ii) other financial services related to the agricultural and
construction business; and
(iii) other business, provided that the business of the Group
taken as a whole will be limited substantially to the
businesses described in sub-paragraphs (i) and (ii) above.
(j) (LIMITATION ON LIENS) The Borrower will not, and it will ensure
that each of its Subsidiaries will not, create, incur, assume or
suffer to exist any Lien on any of its property, assets or revenue,
whether now owned or acquired later, which would cause the
Guarantor to be in breach of any provision of the Guarantee Deed
Poll.
(k) (GUARANTEE DEED POLL) The Borrower will not do anything which may
cause the Guarantor to breach the undertakings given by it in the
Guarantee Deed Poll and it will do everything necessary on its part
to ensure that the Guarantor is able duly to perform those
undertakings.
16.2 TERM OF UNDERTAKINGS
Each undertaking in this clause continues from the date of this Agreement
until the Secured Money is fully and finally repaid.
17. EVENTS OF DEFAULT
17.1 EVENTS OF DEFAULT
Each of the following is an Event of Default (whether or not it is in the
control of any Relevant Company).
(a) (OBLIGATIONS UNDER TRANSACTION DOCUMENTS) A Relevant Company fails:
(i) to pay an amount payable by it under a Transaction Document
within 5 Business Days of the amount becoming due; or
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(ii) to comply with any of its other obligations under a
Transaction Document and, if in the opinion of the Agent
that failure can be remedied within 21 Business Days, does
not remedy the failure within that period after notice in
writing from the Agent.
(b) (CROSS DEFAULT)
(i) Indebtedness of a Relevant Company totalling at least the
Threshold Amount or its equivalent:
(A) is not paid when due (or within an applicable grace
period); or
(B) becomes due and payable or capable of being declared due
and payable before its stated maturity or expiry;
(ii) a facility or obligation granted or owed by a person to a
Relevant Company to provide financial accommodation or to
acquire or underwrite Indebtedness totalling at least the
Threshold Amount or its equivalent is prematurely
terminated, except where the Relevant Company exercises an
optional right of termination in the absence of actual,
likely or threatened default or an event of default or
termination event, whatever called; or
(iii) an event of default as defined in the Revolving Credit
Agreement occurs and money owing under that agreement
becomes due and payable before its stated maturity or
expiry.
For the purpose of this paragraph (b) the term INDEBTEDNESS does
not include:
(iv) Guarantee Obligations of any Subsidiary of the Borrower in
respect of Indebtedness of an Affiliate of the Borrower if
that Subsidiary owns no material assets other than equity
interests in the Affiliate and the Affiliate is not a
Subsidiary of the Borrower; and
(v) net liabilities in respect of Interest Rate Agreements
unless the holder or holders of that Indebtedness have
required that a termination payment in respect of the
Interest Rate Agreement be made.
(c) (ADMINISTRATION, WINDING UP, ARRANGEMENTS, INSOLVENCY ETC.)
(i) An administrator of the Borrower, a Material Subsidiary or
the Guarantor or another person who gives or creates a
Guarantee or Lien which secures any Secured Money (each a
RELATED COMPANY) is appointed.
(ii) Except for the purpose of a solvent reconstruction or
amalgamation previously approved by the Agent:
(A) an application or an order is made, proceedings are
commenced or a resolution is passed for:
(1) the winding up, dissolution or administration of a
Related Company; or
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(2) a Related Company entering into an arrangement,
compromise or composition with or assignment for the
benefit of its creditors or a class of them,
other than an application or proceeding which is being
contested in good faith and which is withdrawn or set
aside within 21 days of first filing; or
(B) a Related Company ceases or suspends the conduct of all
or a substantial part of its business or disposes of a
substantial part of its assets.
(iii) A Related Company:
(A) is, or under legislation is presumed or taken to be,
insolvent (other than as the result of a failure to pay
a debt or claim the subject of a good faith dispute); or
(B) stops or suspends payment of all or a class of its
debts.
(d) (ENFORCEMENT AGAINST ASSETS)
(i) A Controller (as defined in the Corporations Law) or similar
officer is appointed to all or any of the assets and
undertaking of a Related Company and not removed (without
another being appointed in its place) within 21 days.
(ii) A distress, attachment or other execution is levied or
enforced over all or any of the assets and undertaking of a
Related Company and not withdrawn or discontinued within 21
days.
(e) (ANALOGOUS PROCESS) Anything analogous to anything referred to in
paragraphs (c) or (d), or which has substantially similar effect,
occurs with respect to a Related Company under any overseas law or
any law which commences or is amended after the date of this A
greement.
(f) (REDUCTION OF CAPITAL) Without the prior consent of the Agent
(which will not be unreasonably withheld), the Borrower:
(i) reduces its capital (including a purchase of its shares but
excluding a redemption of redeemable shares);
(ii) passes a resolution to reduce its capital or to authorise it
to purchase its shares or a resolution under s188(2) or
s205(10) of the Corporations Law or an equivalent provision;
or
(iii) applies to a court to sanction any such resolution or
reduction.
(g) (VITIATION OF DOCUMENTS)
(i) All or any material part of a Transaction Document is
terminated or is or becomes void, illegal, invalid,
unenforceable or of limited force and effect;
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(ii) a party becomes entitled to terminate, rescind or avoid all
or a material part of a Transaction Document; or
(iii) a party other than the Agent or a Participant alleges or
claims that an event described in sub-paragraph (i) has
occurred or that it is entitled as described in sub-
paragraph (ii).
(h) (CONTROL OF BORROWER OR GUARANTOR) Without the prior consent of the
Agent:
(i) the Borrower ceases to be a wholly owned subsidiary of the
Guarantor; or
(ii) the Guarantor ceases to be a wholly owned subsidiary of Case
Corporation.
(i) (SUPPORT AGREEMENT) An event described in paragraph (g) occurs in
relation to the Support Agreement or the Support Agreement is
amended in a material respect without the prior consent of the
Agent.
17.2 CONSEQUENCES
In addition to any other rights provided by law or any Transaction
Document, at any time after an Event of Default (whether or not it is
continuing) the Agent may and shall if the Majority Participants direct do
all or any of the following:
(a) by notice to the Borrower declare all sums actually or contingently
owing under this Agreement immediately due and payable, and the
Borrower shall immediately pay the total face amount of all
outstanding Bills, any amount taken to be lent under clause 10.2
together with accrued interest and fees and all other sums;
(b) by notice to the Borrower cancel the Commitments;
(c) at the cost of the Borrower, appoint a firm of independent
accountants or other experts to review and report to the Agent and
the Participants on the affairs, financial condition and business
of any Relevant Company.
The Borrower will co-operate fully with the review and ensure that
all officers and employees of each Relevant Company do the same.
17.3 CASH COVER FOR BILLS
(a) This clause applies to:
(i) any amount paid to the Agent for the account of a
Participant under clause 17.2(a) in respect of the liability
under any unmatured Bill or in respect of any other sum
contingently owing; and
(ii) interest credited under this clause,
(the outstanding balance of which from time to time is the CASH
COVER AMOUNT).
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(b) (i) The Participant shall apply the Cash Cover Amount in payment
of any amount payable under any Bill when it becomes due and
the obligation of the Borrower under clause 9.2 will be
reduced accordingly.
(ii) The Participant may at any time apply the Cash Cover Amount
in or towards satisfaction of any sum at any time payable by
the Borrower to the Participant under or in relation to any
Transaction Document.
(c) The Cash Cover Amount will accrue and be credited with interest at
a rate and in a manner that the Participant determines would apply
to deposits at call (or of any other term specified by the
Participant) of a similar amount under its normal procedures.
(d) The Cash Cover Amount is only repayable by the Participant to the
extent that on any day it exceeds the amount of the Secured Money
(including the total face amount of the outstanding Bills and all
amounts which are then or may subsequently become contingently
owing). The Participant will promptly pay the Borrower any excess
on demand.
18. INTEREST ON OVERDUE AMOUNTS
18.1 ACCRUAL
Interest accrues on each unpaid amount which is due and payable by the
Borrower under or in respect of any Transaction Document (including
interest payable under this clause):
(a) on a daily basis up to the date of actual payment from (and
including) the due date or, in the case of an amount payable by way
of reimbursement or indemnity, the date of disbursement or loss, if
earlier;
(b) both before and after judgment (as a separate and independent
obligation); and
(c) at the rate determined by the Agent to be the sum of 1.5% per annum
plus the higher of:
(i) the rate (if any) applicable to the unpaid amount
immediately before the due date; and
(ii) the Agent's benchmark lending rate in respect of loans of
A$100,000 and over from time to time, plus the applicable
Margin.
18.2 PAYMENT
The Borrower shall pay interest accrued under this clause on demand by the
Agent and on the last Business Day of each calendar month.
19. INDEMNITY AND COSTS
19.1 INDEMNITY
The Borrower shall indemnify each Indemnified Party against any loss,
cost, charge, liability or expense (including legal costs on a full
indemnity basis) the Indemnified Party (or any officer or employee of the
Indemnified Party) may sustain or incur as a direct or indirect result of:
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(a) the occurrence of any Event of Default or Potential Event of
Default;
(b) any actual or contemplated exercise, preservation or consideration
of any right, power or remedy under any Transaction Document or any
failure to exercise any right, power or remedy;
(c) any statement in, conduct relying on or omission or alleged
omission from any information memorandum or loan proposal prepared
or authorised by it, or any claim in respect of any of the above;
(d) a Segment requested in a Drawdown Notice not being provided for any
reason (including failure to fulfil any condition precedent but
excluding any default by the Indemnified Party which is claiming
under this clause);
(e) the Indemnified Party incurring any liability on or in relation to
any Bill; or
(f) the Indemnified Party or any Authorised Officer of the Indemnified
Party acting on behalf of the Borrower under clause 8.3.
Without limitation the indemnity will cover any amount determined by the
relevant Participant to be incurred because of the liquidation or re-
employment of deposits or other funds acquired or contracted for by the
relevant Participant to fund or maintain any Segment or amount (including
loss of margin) and because of the reversing or termination of any
agreement or arrangement entered into by the relevant Participant to
hedge, fix or limit its effective cost of funding or maintaining any
Segment or amount.
19.2 COSTS
The Borrower will pay the Agent's reasonable legal costs in relation to
the preparation of the Transaction Documents and any amendments of, or
consent or waiver under, them.
20. CONTROL ACCOUNTS
The accounts kept by the Agent constitute sufficient evidence, unless
proven wrong, of the amount at any time due from the Borrower under this
Agreement.
21. STAMP DUTY
Subject to clause 8.6(b)(iii), the Borrower will pay all stamp,
transaction and other similar duties and charges in relation to the
Transaction Documents and any transaction under them.
This includes financial institutions duty and debits tax. The Borrower
will also pay any fines and penalties unless they result from a failure by
an Indemnified Party to lodge a document for stamping in sufficient time,
having received from the Borrower the amount of stamp duty in good time.
22. SET-OFF
(a) If an Event of Default subsists each Indemnified Party may apply
any credit balance in any currency (whether or not matured) in any
account of the Borrower with any branch of that Indemnified Party
towards satisfaction of any sum then due and payable by it to that
Indemnified Party under or in relation to any Transaction Document.
No Indemnified Party need make the application.
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(b) An Indemnified Party may exchange currencies to make that
application.
23. NO WAIVERS
No failure to exercise a power, and no delay in exercising a power,
operates as a waiver. Waivers must be in writing.
24. SEVERABILITY OF PROVISIONS
Any provision of any Transaction Document which is prohibited or
unenforceable in any jurisdiction is ineffective as to that jurisdiction
to the extent of the prohibition or unenforceability. That does not
invalidate the remaining provisions of that Transaction Document nor
affect the validity or enforceability of that provision in any other
jurisdiction.
25. SURVIVAL OF REPRESENTATIONS
All representations and warranties in any Transaction Document survive the
execution and delivery of the Transaction Documents and the provision of
advances and accommodation.
26. INDEMNITIES AND REIMBURSEMENT OBLIGATIONS
Unless otherwise stated, each indemnity, reimbursement or similar
obligation in any Transaction Document:
(a) is a continuing obligation;
(b) is a separate and independent obligation;
(c) is payable on demand; and
(d) survives termination or discharge of the relevant Transaction
Document.
27. MORATORIUM LEGISLATION
To the full extent permitted by law all legislation which at any time
directly or indirectly:
(a) lessens, varies or affects in favour of the Borrower any obligation
under a Transaction Document; or
(b) delays, prevents or prejudicially affects the exercise by any
Indemnified Party of any right, power or remedy conferred by any
Transaction Document,
is excluded from the Transaction Documents.
28. CONSENTS AND OPINIONS
Except where expressly stated any Indemnified Party may give or withhold,
or give conditionally, approvals and consents, may be satisfied or
unsatisfied, may form opinions, and may exercise rights, powers and
remedies at its absolute discretion.
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29. ASSIGNMENTS
29.1 ASSIGNMENT BY BORROWER
The Borrower may not assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of the Agent acting
on the instructions of all Participants.
29.2 ASSIGNMENT BY PARTICIPANTS
A Participant may assign or transfer all or any of its rights or
obligations under the Transaction Documents at any time if:
(a) any necessary prior Authorisation is obtained;
(b) in the case of a transfer of obligations, the transfer is effected
by a substitution in accordance with clause 29.3;
(c) the transferee or assignee is a Related Entity of the Participant
or the Borrower has given its prior consent, which:
(i) it shall not withhold unreasonably; and
(ii) will be taken to have been given if no response is received
within 15 days of the request for consent; and
(d) the Commitment of any Participant will not, as a result of that
assignment or transfer, be less than $10,000,000, or the Borrower
has given its prior consent or has cancelled the Commitments to an
extent such that satisfaction of this test is not practicable.
29.3 SUBSTITUTION CERTIFICATES
(a) If a Participant wishes to substitute a new bank or financial
institution for all or part of its participation under this
Agreement, it and the substitute shall in the Australian Capital
Territory or outside Australia execute and deliver to the Agent 4
counterparts of a certificate substantially in the form of annexure
C.
(b) On receipt of the certificate, if the Agent has received the
registration fee referred to in the certificate and is satisfied
that the substitution complies with clause 29.2, it shall promptly:
(i) notify the Borrower;
(ii) countersign the counterparts on behalf of all other parties
to this Agreement;
(iii) enter the substitution in a register kept by it (which will
be conclusive); and
(iv) retain one counterpart and deliver the others to the
retiring bank or financial institution, the substitute bank
or financial institution and the Borrower.
(c) When the certificate is countersigned by the Agent, the retiring
bank or financial institution will be relieved of its obligations
and the substitute bank or financial institution will be bound by
the Transaction Documents, as stated in the certificate.
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(d) Each other party to this Agreement irrevocably authorises the Agent
to sign each certificate on its behalf.
(e) Unless the Agent otherwise agrees, no substitution may be made
while any Drawdown Notice is current.
29.4 DISCLOSURE
A Participant may disclose to a proposed assignee, transferee or sub-
participant information which relates to any Relevant Company or was
furnished in connection with the Transaction Documents if it first obtains
the consent of the Borrower (who shall not unreasonably withhold or delay
that consent).
29.5 NO INCREASED COSTS
Despite anything to the contrary in this Agreement, if a Participant
assigns its rights under this Agreement, the Borrower will not be required
to pay any net increase in the total amount of costs, Taxes, fees or
charges which is a direct consequence of the assignment and of which the
Participant or its assignee was aware or ought reasonably to have been
aware on the date of the assignment. For this purpose only a substitution
under clause 29.3 will be regarded as an assignment.
30. RELATIONSHIP OF PARTICIPANTS TO AGENT
30.1 AUTHORITY
(a) Subject to clause 30.15 each Participant irrevocably appoints the
Agent to act as its agent under the Transaction Documents. The
Agent has all powers expressly delegated to it by the Transaction
Documents together with all other powers reasonably incidental to
those powers.
(b) The Agent has no duties or responsibilities except those expressly
set out in the Transaction Documents.
30.2 INSTRUCTIONS; EXTENT OF DISCRETION
(a) In the exercise of all its rights, powers and discretions under the
Transaction Documents the Agent shall act in accordance with the
instructions (if any) of the Majority Participants or (where so
specified) of all Participants.
(b) In the absence of those instructions, the Agent need not act but
may act as it sees fit in the best interests of the Participants.
(c) Any action taken by the Agent under the Transaction Documents binds
all the Participants.
(d) The Agent is not obliged to consult with the Participants before
giving any consent, approval or agreement or making any
determination under the Transaction Documents except where this
Agreement expressly provides otherwise.
30.3 NO OBLIGATION TO INVESTIGATE AUTHORITY
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(a) The Borrower need not enquire whether any instructions have been
given to the Agent by all Participants or the Majority Participants
or as to the terms of those instructions.
(b) As between the Borrower on the one hand and the Agent and the
Participants on the other, all action taken by the Agent under the
Transaction Documents will be taken to be authorised.
30.4 AGENT NOT A FIDUCIARY
The Agent will not be taken to owe any fiduciary duty to any Participant,
any Relevant Company or any other person except as expressly provided in a
Transaction Document.
30.5 EXONERATION
Neither the Agent nor any of its directors, officers, employees, agents,
attorneys, Related Entities or successors is responsible to the
Participants for, or will be liable (whether in negligence or on any other
ground whatever) in respect of:
(a) any conduct relating to, contained in or relying on, any loan
proposal or information memorandum, any Transaction Document or any
document or agreement referred to in or received under any
Transaction Document;
(b) the value, validity, effectiveness, genuineness, enforceability or
sufficiency of any loan proposal or information memorandum, any
Transaction Document or any other document or agreement;
(c) any failure by any Relevant Company to perform its obligations; or
(d) any action taken or omitted to be taken by it or them under any
Transaction Document except in the case of its or their own wilful
misconduct or gross negligence.
30.6 DELEGATION
The Agent may employ agents and attorneys.
30.7 RELIANCE ON DOCUMENTS AND EXPERTS
The Agent may rely on:
(a) any document (including any facsimile transmission, telegram or
telex) it believes is genuine and correct; and
(b) advice and statements of lawyers, independent accountants and other
experts selected by the Agent.
30.8 NOTICE OF TRANSFER
The Agent may treat each Participant as the holder of the Participant's
rights under the Transaction Documents until the Agent has received either
a substitution certificate under this Agreement or a notice of assignment
satisfactory to the Agent.
30.9 NOTICE OF DEFAULT
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(a) The Agent will be taken not to have knowledge of the occurrence of
an Event of Default or Potential Event of Default unless the Agent
has received notice from a Participant or Relevant Company stating
that an Event of Default or Potential Event of Default has occurred
and describing it.
(b) If the Agent receives notice or the officers of the Agent having
day to day responsibility for the transaction become aware that an
Event of Default has occurred, the Agent shall notify the
Participants, subject to clause 30.14(c).
30.10 AGENT AS PARTICIPANT AND BANKER
(a) The Agent in its capacity as a Participant has the same rights and
powers under the Transaction Documents as any other Participant. It
may exercise them as if it were not acting as the Agent.
(b) The Agent may engage in any kind of business with any Relevant
Company as if it were not the Agent. It may receive consideration
for services in connection with any Transaction Document and
otherwise without having to account to the Participants.
30.11 INDEMNITY TO AGENT
(a) The Participants shall indemnify the Agent (to the extent not
reimbursed by any Relevant Company under any Transaction Document)
ratably in accordance with their respective Commitments against any
loss, cost, liability, expense or damage the Agent may sustain or
incur directly or indirectly under or in relation to the
Transaction Documents.
(b) No Participant is liable under this sub-clause for any of the above
to the extent that they arise from the Agent's wilful misconduct or
gross negligence.
(c) The Borrower shall indemnify each Participant against any amount
paid under paragraph (a). This does not limit its liability under
any other provision.
30.12 INDEPENDENT INVESTIGATION OF CREDIT
Each Participant confirms that it has made and will continue to make,
independently and without reliance on the Agent or any other Participant:
(a) its own investigations into the affairs of the Relevant Companies;
and
(b) its own analyses and decisions whether to take or not take action
under any Transaction Document.
30.13 NO MONITORING
The Agent is not required to keep itself informed as to the compliance by
any Relevant Company with any Transaction Document or any other document
or agreement or to inspect any property or book of any Relevant Company.
30.14 INFORMATION
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(a) The Agent shall promptly provide each Participant a copy of each
notice, report and other document which is provided to the Agent in
sufficient copies for the Participants under the Transaction
Documents.
(b) The Borrower authorises the Agent to provide any Participant with
any information concerning any Relevant Company's affairs,
financial condition or business which may otherwise come into the
possession of the Agent. The Agent need not do so.
(c) The Agent is not obliged to disclose any information relating to
any Relevant Company if in the opinion of the Agent (on the basis
of the advice of its legal advisers) disclosure would or might
breach a law or a duty of secrecy or confidence.
30.15 REPLACEMENT OF AGENT
(a) Subject to the appointment of a successor Agent as provided in this
clause:
(i) the Agent may resign at any time by giving not less than 30
days notice to the Participants and to the Borrower; and
(ii) all the Participants (other than the Agent) together may
remove the Agent from office by giving not less than 30 days
notice to the Borrower and the Agent.
(b) On notice of resignation or removal the Majority Participants have
the right to appoint a successor Agent approved by the Borrower and
who accepts the appointment.
(c) If no successor Agent is appointed within 30 days after notice, the
retiring Agent may on behalf of the Participants appoint a
successor Agent approved by the Borrower and who accepts the
appointment.
(d) On its appointment the successor Agent will have all the rights,
powers and obligations of the retiring Agent. The retiring Agent
will be discharged from its rights, powers and obligations.
(e) The retiring Agent shall execute and deliver all documents or
agreements which are necessary or in its opinion desirable to
transfer to the successor Agent each Lien and Guarantee held by the
retiring Agent in relation to the Secured Money or to effect the
appointment of the successor Agent.
(f) After any retiring Agent's resignation or removal, this clause will
continue in effect in respect of anything done or omitted to be
done by it while it was acting as Agent.
(g) The Borrower shall not unreasonably withhold its approval of any
proposed successor Agent. It shall respond as soon as practicable
to any request for approval.
(h) The Borrower need not pay the cost of the appointment of a
successor Agent under this clause.
30.16 AMENDMENT OF TRANSACTION DOCUMENTS
Each Participant authorises the Agent to agree with the other parties to
any Transaction Document to amend any Transaction Document if:
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(a) the amendment will not increase the Commitments or other
obligations of the Participants, change the dates or amounts of
payment of any of the Secured Money or amend this sub-clause or any
provision under which the agreement or instructions of all
Participants or the Majority Participants are required; and
(b) (i) the Agent is satisfied that the amendment is made to correct
a manifest error or an error of a minor nature or that the
amendment is of a formal or technical nature only; or
(ii) the Majority Participants have, on request by the Agent,
notified the Agent of their agreement to the amendment.
Each Participant will be bound by any amendment so agreed to by the Agent
as if it were party to the relevant amendment agreement.
31. PROPORTIONATE SHARING
31.1 SHARING
Whenever any Participant receives or recovers any money in respect of any
sum due from a Relevant Company under a Transaction Document in any way
(including by set- off) except through distribution by the Agent under
this Agreement:
(a) the Participant shall immediately notify the Agent;
(b) the Participant shall immediately pay that money to the Agent
(unless the Agent directs otherwise);
(c) the Agent shall treat the payment as if it were a payment by the
Relevant Company on account of all sums then payable to the
Indemnified Parties; and
(d) (i) the payment or recovery will be taken to have been a payment
for the account of the Agent and not to the Participant for
its own account, and to that extent the liability of the
Relevant Company to the Participant will not be reduced by
the recovery or payment, other than to the extent of any
distribution received by the Participant under paragraph
(c); and
(ii) (without limiting sub-paragraph (i)) immediately on the
Participant making or becoming liable to make a payment
under paragraph (b), the Borrower shall indemnify the
Participant on demand against the payment to the extent that
(despite sub-paragraph (i)) its liability has been
discharged by the recovery or payment.
If the Participant is required to disgorge or unwind all or part of the
relevant recovery or payment then the other Participants shall repay to
the Agent for the account of the Participant the amount necessary to
ensure that all the Participants share ratably in the amount of the
recovery or payment retained. Paragraphs (c) and (d) above apply only to
the retained amount.
31.2 REFUSAL TO JOIN IN ACTION
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A Participant who does not accept an invitation to join an action against
the Borrower or the Guarantor or does not share in the costs of the action
(in each case having been given a reasonable opportunity to do so) is not
entitled to share in any amount so recovered.
31.3 SHARING WHEN BILLS REPAID DIRECTLY
Whenever:
(a) a Bill is honoured by another party or cancelled or (except through
payment) discharged; or
(b) the Secured Money is reduced in any manner except through a payment
under this Agreement,
resulting in a greater reduction in the proportion by which a
Participant's participation in the outstanding Bills or the Secured Money
is reduced than that of the Participant whose participation is reduced by
the smallest proportion (except as a result of any rounding or adjustment
of amounts made by the Agent under this Agreement):
(c) the Participant shall promptly notify the Agent;
(d) the Participant shall promptly pay to the Agent an amount equal to
the amount of the excess (unless the Agent directs otherwise);
(e) the Participant's participation in the outstanding Bills will be
taken to be increased by an amount equal to the payment;
(f) the Agent shall treat the payment as if it were a payment by the
Borrower on account of the outstanding Bills; and
(g) on the Participant making or becoming liable to make the payment
under paragraph (d) the Borrower shall indemnify that Participant
against that payment.
If all or part of the relevant transaction which had that result is
subsequently rescinded or must otherwise be restored, and as a result the
Participant's Bill is called on, the Participants shall repay to the Agent
for the account of the Participant the amount which is necessary to ensure
that all the Participants' participations in the outstanding Bills have
been reduced proportionately.
32. AGENT DEALINGS
Except where expressly provided otherwise:
(a) all correspondence under or in relation to the Transaction
Documents between a Participant on the one hand, and the Borrower
on the other, will be addressed to the Agent; and
(b) the Participants and the Borrower severally agree to deal with and
through the Agent in accordance with this Agreement.
33. NOTICES
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All notices, requests, demands, consents, approvals, agreements or other
communications to or by a party to this Agreement:
(a) must be in writing;
(b) must be signed by an Authorised Officer of the sender; and
(c) will be taken to be duly given or made:
(i) (in the case of delivery in person or by post or facsimile
transmission) when delivered, received or left at the
address of the recipient shown in this Agreement or to any
other address which it may have notified the sender; or
(ii) (in the case of a telex) on receipt by the sender of the
answerback code of the recipient at the end of transmission,
but if delivery or receipt is on a day on which business is not
generally carried on in the place to which the communication is
sent or is later than 4pm (local time), it will be taken to have
been duly given or made at the commencement of business on the next
day on which business is generally carried on in that place.
34. AUTHORISED OFFICERS
The Borrower irrevocably authorises each Indemnified Party to rely on a
certificate by any person purporting to be its director or secretary as to
the identity and signatures of its Authorised Officers. The Borrower
warrants that those persons have been authorised to give notices and
communications under or in connection with the Transaction Documents.
35. GOVERNING LAW AND JURISDICTION
This Agreement is governed by the laws of New South Wales. The Borrower
submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there.
36. COUNTERPARTS
This Agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
37. ACKNOWLEDGEMENT BY BORROWER
The Borrower confirms that:
(a) it has not entered into this Agreement in reliance on, or as a
result of, any conduct of any kind of or on behalf of any
Indemnified Party or any Related Entity of any Indemnified Party
(including any advice, warranty, representation or undertaking);
and
(b) neither any Indemnified Party nor any Related Entity of any
Indemnified Party is obliged to do anything (including disclose
anything or give advice),
except as expressly set out in the Transaction Documents.
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EXECUTED in Sydney.
Each attorney executing this Agreement states that he has no notice of
revocation or suspension of his power of attorney.
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BORROWER
SIGNED on behalf of )
CASE CREDIT AUSTRALIA )
PTY LIMITED )
by its attorney )
in the presence of: ) /s/Peter Hong (sgd)
----------------------------------------
Signature
/s/Andrew Mohr (sgd) PETER HONG
- ---------------------------------- ---------------------------------------
Witness Print name
ANDREW MOHR
- ----------------------------------
Print name
AGENT
SIGNED on behalf of )
NATIONAL AUSTRALIA BANK LIMITED )
by its attorney )
in the presence of: ) /s/M A Harvey (sgd)
----------------------------------------
Signature
/s/M Baird (sgd) M A HARVEY
- ---------------------------------- ----------------------------------------
Witness Print name
MICHAEL BAIRD
- ----------------------------------
Print name
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PARTICIPANTS
SIGNED on behalf of )
NATIONAL AUSTRALIA BANK LIMITED )
by its attorney )
in the presence of: ) /s/M A Harvey (sgd)
----------------------------------------
Signature
/s/M Baird (sgd) M A HARVEY
- ---------------------------------- ----------------------------------------
Witness Print name
MICHAEL BAIRD
- ----------------------------------
Print name
SIGNED on behalf of )
CREDIT SUISSE FIRST BOSTON )
by its attorney )
in the presence of: ) /s/M Tierney (sgd)
----------------------------------------
Signature
/s/T Hazelwood (sgd) MICHAEL TIERNEY
- ---------------------------------- ----------------------------------------
Witness Print name
TRICIA HAZELWOOD
- ----------------------------------
Print name
SIGNED for and on behalf of )
UBS AUSTRALIA LIMITED )
by its authorised signatories )
in the presence of: )
/s/Colin Roden (sgd) /s/L Burger (sgd)
- ----------------------------------- ------------------------------------------
Signature Signature
COLIN RODEN LINDA BURGER
- ---------------------------------- ------------------------------------------
Print name Print name
First VP VP
- ---------------------------------- ------------------------------------------
Office Held Office Held
SIGNED on behalf of )
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ROYAL BANK OF CANADA )
by its attorney )
in the presence of: ) /s/J R Secker (sgd)
------------------------------------------
Signature
/s/ P Squires (sgd) JOHN RICHMOND SECKER
- ---------------------------------- ------------------------------------------
Witness Print name
PHILLIP E SQUIRES
- ----------------------------------
Print name
SIGNED on behalf of )
STANDARD CHARTERED BANK )
AUSTRALIA LIMITED )
by its attorney )
in the presence of: ) /s/M Abell (sgd)
------------------------------------------
Signature
/s/G D Smith (sgd) MARK ABELL
- ---------------------------------- ------------------------------------------
Witness Print name
GLENN DOUGLAS SMITH
- ----------------------------------
Print name
SIGNED on behalf of )
FUJI INTERNATIONAL FINANCE )
(AUSTRALIA) LIMITED )
by its attorney )
in the presence of: ) /s/P Akers (sgd)
------------------------------------------
Signature
/s/M Abell (sgd) PAUL AKERS
- ---------------------------------- ------------------------------------------
Witness Print name
MARK ABELL
- ----------------------------------
Print name
<PAGE>
Page 46
- --------------------------------------------------------------------------------
SIGNED on behalf of )
THE FIRST NATIONAL BANK OF )
CHICAGO by its authorised )
signatories in the presence of: )
/s/ Simes (sgd) /s/Paul Shinkfield (sgd)
- ---------------------------------- ------------------------------------------
Witness Signature
ERICA SIMES PAUL SHINKFIELD
- ---------------------------------- ------------------------------------------
Print name Print name
FIRST VICE PRESIDENT
__________________________________ ------------------------------------------
Office held Office held
SIGNED on behalf of )
BA AUSTRALIA LIMITED )
by its attorney )
in the presence of: ) /s/A Cougle (sgd)
------------------------------------------
Signature
/s/E Simes (sgd) ADAM COUGLE
- ---------------------------------- ------------------------------------------
Witness Print name
ERICA SIMES
- ----------------------------------
Print name
<PAGE>
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- --------------------------------------------------------------------------------
SCHEDULE
PARTICIPANTS
<TABLE>
<CAPTION>
1 2 3 4
LEAD MANAGERS ADDRESS FOR TRANCHE A TRANCHE B
CORRESPONDENCE COMMITMENT COMMITMENT
(A)$ (A$)
<S> <C> <C> <C>
National Australia Bank Ltd Level 25, 42,500,000 127,500,000
(ACN 004 044 937) 255 George Street
SYDNEY NSW 2000
Credit Suisse First Boston Level 14,
(ARBN 061 700 712) 101 Collins Street 12,500,000 37,500,000
MELBOURNE VIC 3000
UBS Australia Limited Level 4,
(ACN 003 059 461) 7 Macquarie Place 12,500,000 37,500,000
SYDNEY NSW 2000
MANAGERS
Royal Bank of Canada Level 7 8,750,000 26,250,000
(ARBN 076 940 880) Challis House
4 Martin Place
SYDNEY NSW 2000
Standard Chartered Bank Level 11 7,500,000 22,500,000
Australia Limited 345 George Street
(ACN 008 282 897) SYDNEY NSW 2000
Fuji International Level 28 5,000,000 15,000,000
Finance (Australia) Maritime Centre
Limited 201 Kent Street
(ACN 002 977 111) SYDNEY NSW 2000
The First National Bank Level 32 5,000,000 15,000,000
of Chicago 60 Margaret Street
(ARBN 065 752 918) SYDNEY NSW 2000
BA Australia Limited Level 18 6,250,000 18,750,000
(ACN 004 617 341) 135 King Street
SYDNEY NSW 2000
</TABLE>
<PAGE>
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ANNEXURE A
DRAWDOWN NOTICE
To: [AGENT]
CASE CREDIT AUSTRALIA PTY LTD - DRAWDOWN NOTICE NO. [*]
We refer to the Bill Facility Agreement dated [*] 1997 (the FACILITY AGREEMENT).
Under clause 5 of the Facility Agreement we give you irrevocable notice as
follows:
(1) we wish to draw on [*] 19[*] (the DRAWDOWN DATE) [on a same day basis];
[NOTE:__DATE IS TO BE A BUSINESS DAY.]
(2) the total principal amount to be drawn is [*];
[NOTE:__AMOUNT TO COMPLY WITH THE LIMITS IN CLAUSE 3.]
(3) particulars of each Segment are as follows:
PRINCIPAL AMOUNT FUNDING PERIOD TRANCHE
[NOTE:__AMOUNTS TO COMPLY WITH CLAUSE [6] AND LENGTH OF FUNDING PERIOD TO COMPLY
WITH CLAUSE [7].]
(4) we request that the proceeds be remitted to account number [*] at [*];
[NOTE:__THE ACCOUNT(S) TO BE COMPLETED ONLY IF FUNDS NOT REQUIRED IN
REPAYMENT OF ANY PREVIOUS SEGMENT(S).]
(5) we represent and warrant on behalf of the Borrower that:
(a) [(except as disclosed in paragraph (c)] the representations and
warranties in the Facility Agreement are true as though they had
been made at the date of this Drawdown Notice and the Drawdown Date
specified above in respect of the facts and circumstances then
subsisting, except that no representation is made by the Borrower
under clause 15.1(f)(ii) of the Facility Agreement; [and]
(b) [(except as disclosed in paragraph (c)] no Event of Default or
Potential Event of Default is subsisting or will result from the
drawing; [and]
[(c) details of the exceptions to paragraphs (a) and (b) are as follows:
[*], and we [have taken/propose] the following remedial action
[*][./; and]
[NOTE:__INCLUSION OF A STATEMENT UNDER PARAGRAPH (B) SHALL NOT PREJUDICE
THE CONDITIONS PRECEDENT IN THE AGREEMENT.]
(6) we request that each [relevant] Participant prepare, complete, sign and
deliver the Bills to be comprised in [each/the] Segment on our behalf;
[(7) we attach a copy of the agreement related to this Drawdown Notice as
required by clause 3.2 of the Facility Agreement.]
<PAGE>
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Definitions in the Facility Agreement apply in this Drawdown Notice.
On behalf of CASE CREDIT AUSTRALIA PTY LIMITED
By: [Authorised Officer]
DATED 19[*]
<PAGE>
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ANNEXURE B
VERIFICATION CERTIFICATE
To: [AGENT] for itself and as Agent for the Participants under the Facility
Agreement defined below, and its respective substitutes and assigns.
[*] FACILITY
I [*] am a director of Case Credit Australia Pty Limited of [*] (the COMPANY).
I refer to the Bill Facility Agreement (the FACILITY AGREEMENT) dated [*] 1997
between the Company as Borrower, National Australia Bank Limited as Agent and
the Participants named in it.
Definitions in the Facility Agreement apply in this Certificate.
I CERTIFY as follows.
1. Attached to this Certificate are complete and up to date copies of:
(a) the memorandum and articles of association of the Company (marked
A);
(b) a duly registered power of attorney granted by the Company for the
execution of each Transaction Document to which it is expressed to
be a party (marked B). That power of attorney has not been revoked
or suspended by the Company and remains in full force and effect;
and
(c) the Revolving Credit Agreement and the Support Agreement (marked C
and D respectively).
2. The following are signatures of the Authorised Officers of the Company.
NAME POSITION SIGNATURE
* * ________________________________
* * ________________________________
* * ________________________________
<PAGE>
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Signed: _______________________________
Director
_______________________________
Print name
DATED 1997
<PAGE>
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ANNEXURE C
SUBSTITUTION CERTIFICATE
for a Participation of A$[*]
relating to the Bill Facility Agreement (the FACILITY AGREEMENT) dated [*] 1997
between Case Credit Australia Pty Limited as Borrower, National Australia Bank
Limited as Agent and the Participants named in that agreement between:
1. [NAME] (the SUBSTITUTE PARTICIPANT);
2. [NAME] (the RETIRING PARTICIPANT); and
3. [*] (the AGENT) for itself and on behalf of the other parties to the
Facility Agreement.
IT IS AGREED as follows.
1. DEFINITIONS
1.1 In this Certificate definitions in the Facility Agreement and the
following definitions apply unless the context requires otherwise.
SUBSTITUTED PARTICIPATION means the Commitment of the Retiring Participant
[and the participation in the outstanding Bills drawn under that
Commitment] [in respect of the following Segments:] [NOTE:__TO BE INSERTED
IF ONLY PART OF PARTICIPATION IS BEING SUBSTITUTED.]
DATE FUNDING PERIOD AMOUNT OF TRANCHE
PARTICIPATION
amounting to a principal amount of A$[*].
SUBSTITUTION DATE means the date of countersignature of this Certificate
by the Agent [or [*] whichever is the later]. [NOTE:__INSERT ANY OTHER
DATE OR DATES AS APPROPRIATE.]
1.2 Clause 1.2 of the Facility Agreement applies to this Certificate.
2. SUBSTITUTION
2.1 RELEASE OF RETIRING PARTICIPANT
The Retiring Participant will cease to be entitled to and bound by its
rights and obligations as a Participant under the Transaction Documents
[relating to the Substituted Participation] [NOTE:__INSERT IF ONLY PART OF
COMMITMENT ASSUMED] with effect from and including the
<PAGE>
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Substitution Date. It will remain entitled to and bound by rights and
obligations which accrue up to the Substitution Date.
2.2 ASSUMPTION BY SUBSTITUTE PARTICIPANT
With effect from and including the Substitution Date:
(a) the Substitute Participant and each of the parties to the Facility
Agreement will assume obligations towards each other and acquire
rights against each other which are identical to the rights and
obligations which cease under clause 2.1, except to the extent the
obligations so assumed and rights so acquired relate to the
identity of or location of the Substitute Participant and not to
the identity of or location of the Retiring Participant; and
(b) the Substitute Participant will be taken to be a party to the
Facility Agreement as a Participant with a Commitment [and
participation in the Principal Outstanding] equal to the
Substituted Participation.
3. INDEPENDENT ASSESSMENT BY SUBSTITUTE PARTICIPANT
Without limiting the generality of clause 2 the Substitute Participant
agrees as specified in clauses 30.5 (EXONERATION) and 30.12 (INDEPENDENT
INVESTIGATION OF CREDIT) of the Facility Agreement. Those clauses apply
(subject to any agreement to the contrary) as if references to the Agent
included the Retiring Participant. This Certificate is a Transaction
Document for the purposes of the Facility Agreement.
4. PAYMENTS
From and including the Substitution Date the Agent shall make all payments
due under the Transaction Documents in relation to the Substituted
Participation to the Substitute Participant. The Retiring Participant and
the Substitute Participant will make directly between themselves those
payments and adjustments which they agree with respect to accrued
interest, fees, costs and other amounts attributable to the Substituted
Participation before the Substitution Date.
5. OUTSTANDING BILLS
(a) For the purpose of the Facility Agreement the Substitute
Participant will be taken to have accepted any outstanding Bills
accepted by the Retiring Participant included in the Substituted
Participation. The Substitute Participant shall indemnify
unconditionally the Retiring Participant against any liability of
the Retiring Participant as acceptor of the Bills.
(b) The indemnity of the Borrower under clause 9 of the Facility
Agreement extends to any liability of the Substitute Participant
under this clause.
6. WARRANTY
The Retiring Participant and the Substitute Participant jointly and
severally represent and warrant to the other parties that clause 29.2(c)
and (d) of the Facility Agreement has been complied with in relation to
the Substitute Participant.
7. NOTICES
<PAGE>
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For the purpose of the Facility Agreement, the address for correspondence
of the Substitute Participant is the address set out below.
8. REGISTRATION FEE
A registration fee of A$750 is payable to the Agent on delivery of this
Certificate to the Agent.
9. LAW
This Certificate is governed by the laws of [*].
Signed by the authorised representatives of the parties in the Australian
Capital Territory.
THE RETIRING PARTICIPANT
[NAME]
by: ________________________________
THE SUBSTITUTE PARTICIPANT
[NAME]
by: ________________________________
Address for correspondence:
[Telex No.]
Countersigned by an Authorised Officer of the Agent for itself and for the other
parties to the Facility Agreement.
THE AGENT
[NAME]
by: ________________________________
<PAGE>
CONFORMED COPY
NEW SOUTH WALES
STAMP DUTY PAID $2
CASE CREDIT AUSTRALIA PTY LIMITED
(Borrower)
__________________________________
BILL FACILITY AGREEMENT
__________________________________
A$400,000,000 SYNDICATED FACILITY
GUARANTEED BY CASE CREDIT CORPORATION
- ARRANGED BY -
NATIONAL AUSTRALIA BANK LIMITED
<PAGE>
________________________________________________________________________________
T A B L E O F C O N T E N T S
________________________________________________________________________________
<TABLE>
<S> <C>
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 8
1.3 Outstanding Bills 9
1.4 Principal amount 9
1.5 Document or agreement 9
1.6 Determination, statement and certificate 9
1.7 Current accounting practice 9
1.8 Failure to notify 9
2. PURPOSE 10
3. COMMITMENT 10
3.1 Commitments 10
3.2 Allocation among Participants 10
3.3 Obligations several 10
3.4 Enforcement through Agent 11
4. CANCELLATION OF COMMITMENTS - REDUCTION OF PRINCIPAL 11
4.1 Repayment Dates 11
4.2 Reduction of Principal Outstanding 11
4.3 Voluntary early cancellation 11
4.4 Extension of Tranche A Repayment Date 11
4.5 Application against Commitments 12
4.6 Allocation among Participants 12
4.7 Notification 12
5. DRAWDOWN NOTICES 12
5.1 When notice to be given 12
5.2 Funds drawn on same day basis 12
5.3 Notification of Participants 12
6. PRINCIPAL AMOUNT OF SEGMENTS 12
7. SELECTION OF FUNDING PERIODS 13
8. PROCEDURE 13
8.1 Preparation of Bills 13
8.2 Requirements of Bills 13
8.3 Authority of Participants to prepare Bills 14
8.4 Restriction on use of Bills by Agent and Participants 14
8.5 Notification of BBR 14
8.6 Acceptance and discount 14
8.7 Variation of procedures, Same Day Segments 14
</TABLE>
<PAGE>
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<TABLE>
<S> <C>
9. INDEMNITY AND CASH COVER 15
9.1 Indemnity 15
9.2 Cash cover 15
10. ROLLOVER 15
10.1 Netting off 15
10.2 Overdraft if no rollover 15
11. FEES 16
11.1 Facility fee 16
11.2 Calculation and payment 16
11.3 Agency fee 16
12. PAYMENTS 17
12.1 Manner 17
12.2 Payment to be made on Business Day 17
12.3 Distribution by Agent 17
12.4 Appropriation where insufficient moneys available 17
12.5 Unanticipated default 17
12.6 Rounding 17
13. CHANGES IN LAW 18
13.1 Additional payments 18
13.2 Minimisation 19
13.3 Survival of obligations 19
13.4 Cancellation on increased costs 19
14. CONDITIONS PRECEDENT 19
14.1 Conditions precedent to first Drawdown Notice 19
14.2 Conditions precedent to each Segment 20
15. REPRESENTATIONS AND WARRANTIES 20
15.1 Representations and warranties 20
15.2 Reliance on representations and warranties 22
16. UNDERTAKINGS 22
16.1 General undertakings 22
16.2 Term of undertakings 25
17. EVENTS OF DEFAULT 26
17.1 Events of Default 26
17.2 Consequences 28
</TABLE>
<PAGE>
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<TABLE>
<S> <C>
17.3 Cash cover for Bills 28
18. INTEREST ON OVERDUE AMOUNTS 29
18.1 Accrual 29
18.2 Payment 29
19. INDEMNITY AND COSTS 29
19.1 Indemnity 29
19.2 Costs 30
20. CONTROL ACCOUNTS 30
21. STAMP DUTY 30
22. SET-OFF 30
23. NO WAIVERS 31
24. SEVERABILITY OF PROVISIONS 31
25. SURVIVAL OF REPRESENTATIONS 31
26. INDEMNITIES AND REIMBURSEMENT OBLIGATIONS 31
27. MORATORIUM LEGISLATION 31
28. CONSENTS AND OPINIONS 31
29. ASSIGNMENTS 31
29.1 Assignment by Borrower 31
29.2 Assignment by Participants 32
29.3 Substitution certificates 32
29.4 Disclosure 33
29.5 No increased costs 33
30. RELATIONSHIP OF PARTICIPANTS TO AGENT 33
30.1 Authority 33
30.2 Instructions; extent of discretion 33
30.3 No obligation to investigate authority 33
30.4 Agent not a fiduciary 34
30.5 Exoneration 34
30.6 Delegation 34
30.7 Reliance on documents and experts 34
30.8 Notice of transfer 34
30.9 Notice of default 34
30.10 Agent as Participant and banker 35
30.11 Indemnity to Agent 35
30.12 Independent investigation of credit 35
</TABLE>
<PAGE>
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<TABLE>
<S> <C>
30.13 No monitoring 35
30.14 Information 35
30.15 Replacement of Agent 36
30.16 Amendment of Transaction Documents 36
31. PROPORTIONATE SHARING 37
31.1 Sharing 37
31.2 Refusal to join in action 37
31.3 Sharing when Bills repaid directly 37
32. AGENT DEALINGS 38
33. NOTICES 38
34. AUTHORISED OFFICERS 39
35. GOVERNING LAW AND JURISDICTION 39
36. COUNTERPARTS 39
37. ACKNOWLEDGEMENT BY BORROWER 39
</TABLE>
<PAGE>
CONFORMED COPY
NEW SOUTH WALES
STAMP DUTY PAID $2
- --------------------------------------------------------------------------------
DEED POLL
- --------------------------------------------------------------------------------
DEED POLL dated 17 October 1997
BY:
CASE CREDIT AUSTRALIA PTY LIMITED (ACN 069 132 396) of 31-67 Kurrajong Avenue,
St Marys, New South Wales (the ISSUER).
RECITALS
A. The Issuer proposes to issue MTNs denominated in Australian dollars from
time to time under this Deed.
B. The MTNs will be issued in registered form by inscription in the Register.
C. The Issuer enters into this Deed for the benefit of the MTN Holders from
time to time.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
AFFILIATE means, in relation to any person, any other person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with that person. For the purposes of this
definition, CONTROL of a person means the power, directly or indirectly,
either to:
(a) vote 10% or more of the securities or other equity interests having
ordinary voting power for the election of directors or other
governing bodies of that person; or
(b) direct or cause the direction of the management and policies of the
person, whether by contract or otherwise.
AUSTRACLEAR means Austraclear Limited (ACN 002 060 773).
AUSTRACLEAR REGULATIONS means the regulations published by Austraclear.
AUSTRACLEAR SYSTEM means the SYSTEM as defined in the Austraclear
Regulations.
BBSW for an Interest Period means:
(a) the average of the bid/offer rates displayed at or about 10.10am on
the first day of the Interest Period on the Reuters Monitor System
"BBSW" page for bills (which for the purpose of this definition
means bills of exchange of the type specified for the purpose of
quoting on the Reuters Monitor System "BBSW" page) for a term
equivalent to the Interest Period; or
<PAGE>
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(b) if the Reuters Monitor System "BBSW" page is not available but has
been replaced by one or more pages generally accepted in the
Australian capital markets as a normal market convention for AUD
bank accepted bills of exchange rate settings, the average of the
bid/offer rates displayed on that replacement page (or if more than
one, the replacement page considered by the Paying Agent to most
closely approximate the replaced "BBSW" page) in a manner
considered by the Paying Agent to most closely approximate the rate
specified above; or
(c) if there are no bid/offer rates for bills for a term equivalent to
the Interest Period displayed on the Reuters Monitor System "BBSW"
page or, in the circumstances of paragraph (b), its equivalent
replacement page, by 10.30am on that day, the rate determined by
the Paying Agent to be the average (rounded to 4 decimal places
with the mid point rounded up) of such bid/offer rates otherwise
quoted by 4 banks to, and on application by, the Paying Agent at or
about 10.30am on that day; or
(d) if for any reason the rate for that Interest Period cannot be
determined in accordance with the preceding paragraphs, the rate as
reasonably determined in good faith by the Paying Agent having
regard to comparable indices then available.
Rates will be expressed as a yield percent per annum to maturity.
BUSINESS DAY means a day (not being a Saturday or Sunday) on which banks
are open for business in Sydney and Melbourne and, where payment is to be
made through an account of Austraclear, on which Austraclear is operating.
BUSINESS DAY CONVENTION means the convention specified in the relevant
Pricing Supplement and recorded in the Register, for adjusting any
relevant date if it would otherwise fall on a day that is not a Business
Day. The following terms, when used in conjunction with the term BUSINESS
DAY CONVENTION and a date, mean that an adjustment will be made if that
date would otherwise fall on a day that is not a Business Day so that:
(a) if FOLLOWING is specified, that date will be the following Business
Day;
(b) if MODIFIED FOLLOWING or MODIFIED is specified, that date will be
the following Business Day in the same calendar month or, if none,
the preceding Business Day; and
(c) if PRECEDING is specified, that date will be the preceding Business
Day.
CASE VENDOR FINANCING means financing which is provided by a person other
than Case Corporation Pty Limited or any of its Subsidiaries or
Affiliates, to a customer of Case Corporation Pty Limited or of any of its
Subsidiaries or Affiliates.
CONDITIONS in relation to an MTN, means the terms and conditions
applicable to that MTN set out in this Deed, as supplemented, modified or
replaced by the relevant Pricing Supplement. It includes the provisions of
that Pricing Supplement.
CONSENT means:
(a) consent of the MTN Holders by Extraordinary Resolution; or
<PAGE>
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(b) if Standard & Poors have unconditionally confirmed in writing to
the Programme Manager that the relevant act, matter or thing can be
done without effecting the ratings outlook of the MTNs, then
consent of the MTN Holders by Ordinary Resolution.
DAY COUNT FRACTION means, in respect of the calculation of an Interest
Amount:
(a) if ACTUAL/365 or ACTUAL/ACTUAL is specified in the relevant Pricing
Supplement, the actual number of days in the Interest Period in
respect of which payment is being made (being inclusive of the
first day but exclusive of the last day) divided by 365 (or, if any
portion of that Interest Period falls in a leap year, the sum of
(i) the actual number of days in that portion of the Interest
Period falling in a leap year divided by 366 and (ii) the actual
number of days in that portion of the Interest Period falling in a
non-leap year divided by 365); or
(b) if ACTUAL/365 (FIXED) is specified, the actual number of days in
the Interest Period in respect of which payment is being made
divided by 365.
DEALERSHIP AGREEMENT means the dealership agreement dated on or about the
date of this Deed between the Issuer, National Australia Bank Limited in
its capacity as Programme Manager and I&P Agent and the Dealers named in
it.
EVENT OF DEFAULT means an event or circumstance described in clause 12.1.
EXTRAORDINARY RESOLUTION has the meaning given in annexure B.
FINANCING LEASE means any lease of property, real or personal, in respect
of which the lessee's obligations are required, in accordance with current
accounting practice, to be capitalised on the lessee's balance sheet.
FIXED RATE MTN means an MTN that bears interest at a fixed rate.
FLOATING RATE BASIS means the basis on which interest is calculated in
respect of a Floating Rate MTN, being BBSW or another basis set out in the
relevant Pricing Supplement and recorded in the Register.
FLOATING RATE MTN means an MTN that bears interest at a floating rate.
GOVERNMENT AGENCY means any government or any governmental, semi-
governmental or judicial entity or authority. It also includes any self-
regulatory organisation established under statute or any stock exchange.
GUARANTEE DEED means the guarantee and negative pledge deed poll dated on
or about the date of this Deed by the Guarantor in favour of, among
others, the MTN Holders from time to time.
GUARANTEE OBLIGATION in relation to any person (the GUARANTEEING PERSON)
means, without duplication, any obligation of:
(a) the guaranteeing person; or
(b) another person (including any bank under any letter of credit) the
creation of which was induced by the guaranteeing person issuing a
reimbursement, counter indemnity or similar obligation,
<PAGE>
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in either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the PRIMARY OBLIGATIONS) of any
person (the PRIMARY OBLIGOR) in any manner, whether directly or
indirectly. It includes an obligation of the guaranteeing person, whether
or not contingent:
(i) to purchase any such primary obligation or any property
constituting direct or indirect security for it;
(ii) to advance or supply funds for the purchase or payment of any such
primary obligation or to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor;
(iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of the primary
obligation; or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect of it.
It does not include endorsement of instruments for deposit or collection
in the ordinary course of business, or obligations in respect of trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices.
Without limiting the Guarantee Deed, the amount of any Guarantee
Obligation of any GUARANTEEING PERSON will be taken to be the lower of:
(A) an amount equal to the stated or determinable amount of the PRIMARY
OBLIGATION in respect of which the Guarantee Obligation is made;
and
(B) the maximum amount for which the guaranteeing person may be liable
under the terms of the instrument embodying the Guarantee
Obligation,
unless the primary obligation and the maximum amount for which the
guaranteeing person may be liable are not stated or determinable, in which
case the amount of the Guarantee Obligation will be the guaranteeing
person's maximum reasonably anticipated liability in respect of it as
determined by the Issuer in good faith.
GUARANTOR means Case Credit Corporation, a company incorporated in
Delaware with its principal office at 233 Lake Street, Racine, Wisconsin,
53403, USA.
INDEBTEDNESS in relation to any person at any time, means, without
duplication:
(a) all indebtedness of the person for borrowed money or for the
deferred purchase price of property or services (other than trade
liabilities incurred in the ordinary course of business and payable
in accordance with customary practices);
(b) any other indebtedness of the person which is evidenced by a note,
bond, debenture or similar instrument;
(c) all obligations of the person as lessee under Financing Leases;
<PAGE>
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(d) the discounted amount of all obligations of the person in respect
of acceptances issued or created for the account of the person;
(e) all liabilities secured by any Lien on any property owned by the
person even though the person has not assumed or otherwise become
liable for the payment of it;
(f) all net liabilities of the person in respect of Interest Rate
Agreements;
(g) all Guarantee Obligations in respect of Indebtedness referred to in
the preceding paragraphs of this definition; and
(h) if the person is the Issuer or any of its Subsidiaries, all
obligations of that person incurred in connection with any
securitisation or other asset-backed financing of Receivables, to
the extent those obligations are excluded from the definition of
Permitted Securitisation Obligations by operation of the proviso to
that definition.
Despite the above, Permitted Vendor Financing Obligations do not
constitute Indebtedness under this definition.
INTEREST ACCRUAL DATE means the date set out in the relevant Pricing
Supplement and recorded in the Register as the interest accrual date for
an MTN. If no date is set out, it means the Issue Date.
INTEREST AMOUNT means the amount of interest payable in respect of an MTN
for an Interest Period.
INTEREST PAYMENT DATE means each date set out in the relevant Pricing
Supplement and recorded in the Register as an interest payment date for an
MTN.
INTEREST PERIOD in relation to an MTN means the period from and including
an Interest Payment Date of the MTN to but excluding its next Interest
Payment Date, except that the first Interest Period commences on and
includes the Interest Accrual Date and the last Interest Period ends on
but excludes the Maturity Date.
INTEREST RATE:
(a) in the case of a Fixed Rate MTN, means the rate of interest
(expressed as a per cent per annum) payable in respect of that MTN
set out in the Pricing Supplement and recorded in the Register;
(b) in the case of a Floating Rate MTN, means the rate of interest
(expressed as a per cent per annum) payable in respect of that MTN
from time to time calculated in accordance with the applicable
Floating Rate Basis and Conditions; and
(c) in the case of any other interest bearing MTN, means the rate of
interest (expressed as a percent per annum) payable in respect of
that MTN and either set out in the Pricing Supplement and recorded
in the Register or calculated in accordance with the relevant
Pricing Supplement.
INTEREST RATE AGREEMENT means any interest rate protection agreement,
interest rate future, interest rate option, interest rate cap or other
interest rate hedge arrangement.
ISSUE DATE means the date recorded in the Register as the date on which an
MTN was issued.
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ISSUE PRICE means the price set out in the relevant Pricing Supplement and
recorded in the Register as the issue price of an MTN.
LIEN means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatever (including any
conditional sale or other title retention agreement and any Financing
Lease having substantially the same economic effect as any of the above).
MATERIAL SUBSIDIARY means any Subsidiary of the Issuer whose assets or
revenues (excluding intercompany receivables and revenues that would be
eliminated upon consolidation in accordance with current accounting
practice) are, at the time of determination, equal to or greater than 10%
of the assets or revenues (excluding intercompany receivables and revenues
that would be eliminated upon consolidation in accordance with current
accounting practice), respectively, of the Issuer at such time.
MATURITY DATE means the date set out in the relevant Pricing Supplement
and recorded in the Register as the maturity date of an MTN.
MTN means the right of an MTN Holder to be paid certain moneys under this
Deed, title to which is recorded in and evidenced by an inscription in the
Register.
MTN HOLDER means the person whose name is inscribed in the Register from
time to time as the holder of an MTN, or where the MTN is held jointly by
more than one person, the persons whose names appear in the Register as
the joint holders of that MTN.
ORDINARY RESOLUTION has the meaning given in annexure B.
PAYING AGENT means Corporate Registry Services Pty Limited
(ACN 078 279 277) or another person from time to time appointed by the
Issuer to make payments under MTNs on its behalf.
PERMITTED SECURITISATION OBLIGATIONS means obligations of the Issuer or
any of its Subsidiaries incurred in connection with any securitisation or
other asset-backed financing of Receivables; except that, if:
(a) there is recourse to the Issuer or any of its Subsidiaries (other
than a Special Purpose Subsidiary) for failure to pay or otherwise
perform any of those obligations;
(b) that failure arises as a result of credit defaults by the debtors
in respect of those Receivables; and
(c) that recourse is not limited to the Receivables and the Receivables
Related Assets (or undivided or beneficial interests in them) which
are the subject of such securitisation or other asset-backed
financing,
then those obligations will not be considered Permitted Securitisation
Obligations within the meaning of this definition to the extent that, in
accordance with current accounting practice, the obligations would be
required to be included as a liability on a consolidated balance sheet of
the Issuer and its Subsidiaries.
PERMITTED VENDOR FINANCING OBLIGATIONS means any Guarantee Obligation of
the Issuer or any of its Subsidiaries in respect of Case Vendor Financing,
but only to the extent that the underlying
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principal amount of the Indebtedness subject to the Guarantee Obligation
is secured or otherwise funded by the Issuer or any of its Subsidiaries
with cash or other marketable instruments (including pledges of deposit
accounts, notes, bonds, certificates of deposit or other documents or
instruments).
PRICING SUPPLEMENT means the pricing supplement substantially in the form
of annexure A (or another form agreed by the Issuer and the Programme
Manager) prepared in relation to the MTNs of a Tranche and signed by the
Issuer.
PRINCIPAL AMOUNT means the face amount of an MTN as specified in the
relevant Pricing Supplement and recorded in the Register or such other
amount described as the Principal Amount in the relevant Pricing
Supplement.
PROGRAMME MANAGER means National Australia Bank Limited in that capacity.
RECEIVABLES means any right of payment from or on behalf of any obligor,
whether constituting an account, chattel paper, instrument, general
intangible or otherwise, arising from the financing by the Issuer or any
of its Subsidiaries of property or services, and money due under them,
security interests in the property and services financed by them and all
other related rights.
RECEIVABLES RELATED ASSETS means in connection with any securitisation or
other asset-backed financing of, or other sale, transfer or disposition
of, Receivables, the collective reference to:
(a) any rights arising under the documentation governing or relating to
those Receivables (including rights in respect of Liens securing
the Receivables and other credit support in respect of them);
(b) any proceeds of the Receivables and any locked boxes or accounts in
which those proceeds are deposited;
(c) spread accounts and other similar accounts (and any amounts on
deposit in them) established in connection with that securitisation
or asset-backed financing; and
(d) any warranty, indemnity, dilution and other intercompany claim
arising out of the documentation evidencing that securitisation or
asset-backed financing.
REDEMPTION AMOUNT means 100 per cent of the Principal Amount of an MTN or
such other amount as is specified in the relevant Pricing Supplement as a
Redemption Amount in relation to a particular Redemption Date.
REDEMPTION DATE means the Maturity Date of an MTN and any other date for
the payment of part or all of the Principal Amount as specified in the
relevant Pricing Supplement and recorded in the Register.
REGISTER means the register of MTN Holders maintained by the Registrar
under the Registry Services and Paying Agency Agreement.
REGISTRAR means Corporate Registry Services Pty Limited (ACN 078 279 277)
or another person from time to time appointed in that capacity by the
Issuer.
REGISTRY SERVICES AND PAYING AGENCY AGREEMENT means the Registry Services
and Paying Agency Agreement between the Registrar and the Issuer.
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RELEVANT COMPANY means the Issuer, any of its Subsidiaries or the
Guarantor.
REVOLVING CREDIT AGREEMENT means the revolving credit and guarantee
agreement dated as of 23 August 1996 between the Guarantor as a Borrower,
The Chase Manhattan Bank as Administrative Agent and the other Borrowers,
Lenders, Co-Agents and Lead Managers named in it.
SERIES means each original issue of MTNs, and any further issues expressed
in the relevant Pricing Supplement to form a single series with the
original issue, having the same terms except for the Issue Date, Interest
Accrual Date, Issue Price or face amount.
SPECIAL PURPOSE SUBSIDIARY means any wholly owned Subsidiary of the Issuer
which is:
(a) formed for the purpose of effecting a securitisation or other
asset-backed financing of Receivables and engaging in other
reasonably related activities; and
(b) structured as a BANKRUPTCY-REMOTE SUBSIDIARY in accordance with
customary practices in the asset-backed securitisation market.
SUBSIDIARY has the meaning given in the Corporations Law, but an entity
will also be taken to be a Subsidiary of an entity if it is controlled by
that entity (expressions used in this paragraph have the meanings given
for the purposes of Parts 3.6 and 3.7 of the Corporations Law).
TAX ACT means the Income Tax Assessment Act 1936 (Commonwealth).
THRESHOLD AMOUNT means US$60,000,000.
TRANCHE means all MTNs of the same Series having the same Issue Date and
Interest Accrual Date.
TRANSACTION DOCUMENT means this Deed, the Dealership Agreement, the
Registry Services and Paying Agency Agreement, the Guarantee Deed, any MTN
or a document or agreement entered into for the purpose of amending or
novating any of the above.
TRANSFER AND ACCEPTANCE FORM means a form for the transfer of MTNs
substantially in the form of annexure 3 or any other form adopted by the
Registrar in line with then current market practice.
1.2 INTERPRETATION
Headings are for convenience only and do not affect interpretation. The
following rules apply unless the context requires otherwise.
(a) The singular includes the plural and the converse.
(b) A gender includes all genders.
(c) Where a word or phrase is defined, its other grammatical forms have
a corresponding meaning.
(d) A reference to a person, corporation, trust, partnership,
unincorporated body or other entity includes any of them.
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(e) A reference to a clause, annexure or schedule is a reference to a
clause of, or annexure or schedule to, this Deed.
(f) A reference to a party to this Deed or another agreement or
document includes the party's successors and permitted substitutes
or assigns.
(g) A reference to legislation or to a provision of legislation
includes a modification or re-enactment of it, a legislative
provision substituted for it and a regulation or statutory
instrument issued under it.
(h) A reference to WRITING includes a facsimile transmission and any
means of reproducing words in a tangible and permanently visible
form.
(i) A reference to CONDUCT includes an omission, statement or
undertaking, whether or not in writing.
(j) Mentioning anything after INCLUDE, INCLUDES or INCLUDING does not
limit what else might be included.
(k) A reference to any time is a reference to Sydney time.
(l) A reference to DOLLARS or $ is a reference to Australian currency.
(m) A reference to REGISTRATION or RECORDING includes inscription, and
TRANSFER includes transmission.
(n) A reference to CURRENT ACCOUNTING PRACTICE is to accounting
principles and practices applying by law or otherwise generally
accepted in Australia, consistently applied.
2. THE MTNS
2.1 CREATION OF MTNS
(a) MTNs are issued in registered form. Subject to the Dealership
Agreement, the Issuer may create MTNs at any time by procuring the
Registrar to inscribe the details of those MTNs in the Register.
(b) The execution of a Pricing Supplement does not constitute the
creation of an MTN, the acknowledgement of a debt or any promise to
pay by the Issuer. No MTN will be created except in accordance with
paragraph (a).
(c) The Issuer may create further MTNs so as to form a single Series
with any Tranche of MTNs.
2.2 CONSTITUTION AND TITLE
(a) The MTNs are constituted by this Deed. Each MTN is a separate debt
of the Issuer and may be transferred separately from any other MTN.
(b) Entitlement to an MTN is conclusively determined by inscription in
the Register. The making of, or giving effect to, a manifest error
in an inscription in the Register will not
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avoid the creation or transfer of an MTN. The Issuer will
procure the Registrar to rectify any manifest error of which it
becomes aware.
(c) No certificate or other document of title will be issued to
evidence title to an MTN unless that is required by applicable law
or the Issuer determines that certificates should be made
available.
2.3 TYPES
MTNs may be:
(a) Floating Rate MTNs;
(b) Fixed Rate MTNs; or
(c) any other MTN as may be specified in the relevant Pricing
Supplement.
2.4 DENOMINATION
(a) Each MTN must be denominated in Australian dollars. Subject to
paragraph (b), the face amount of each MTN on inscription must be a
minimum of $1,000,000 and an integral multiple of $100,000.
(b) A lower face amount may be specified in the relevant Pricing
Supplement if the consideration payable to the Issuer by the MTN
Holder is at least $500,000, or the offer or invitation and issue
is otherwise EXCLUDED within the meaning of the Corporations Law.
(c) MTNs are divisible on transfer into whole multiples of $100,000,
subject to clause 5.
2.5 STATUS
(a) The MTNs are direct, unconditional, unsecured and unsubordinated
obligations of the Issuer. They rank without preference or priority
among themselves and at least equally with all present and future
unsubordinated and unsecured obligations of the Issuer (except
liabilities mandatorily preferred by law and subject to laws and
principles of equity generally affecting creditors' rights). The
ranking of MTNs is not affected by the date of inscription in the
Register.
(b) The MTNs are issued with the benefit of the Guarantee Deed.
2.6 ISSUER TO INFORM REGISTRAR AND PAYING AGENT
On or before the Issue Date of an MTN the Issuer must give the Registrar
and the Paying Agent a copy of the relevant Pricing Supplement including
the information contemplated by annexure A (to the extent applicable) and,
to the extent not included in that Pricing Supplement, notify the
Registrar and the Paying Agent of the following details of that MTN:
(a) the name, address and, if advised to the Issuer by the initial MTN
Holder, tax file number of the initial MTN Holder or the basis on
which the initial MTN Holder is exempt from the need to advise the
Issuer of its tax file number;
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(b) the payment instructions notified by the initial MTN Holder; and
(c) any other information required by applicable law.
3. RIGHTS AND OBLIGATIONS OF MTN HOLDERS
3.1 RIGHTS OF MTN HOLDERS
An MTN Holder is entitled, in respect of each MTN for which that person's
name is inscribed in the Register, to the payment of principal and
interest in accordance with the Conditions applicable to that MTN,
together with the other benefits given to MTN Holders under this Deed. The
Issuer irrevocably undertakes to make all those payments on the due date.
3.2 DEED POLL
This Deed is a deed poll. Accordingly, each MTN Holder and any person
claiming through an MTN Holder has the benefit of this Deed even though it
is not a party to, or is not in existence at the time of execution and
delivery of, this Deed.
3.3 ENFORCEMENT
Each MTN Holder may enforce its rights under this Deed independently from
the Registrar and each other MTN Holder.
3.4 MTN HOLDERS BOUND
Each MTN Holder, and any person claiming through an MTN Holder, who
asserts an interest in an MTN is bound by this Deed.
3.5 LODGEMENT WITH REGISTRAR
(a) The Issuer shall keep an executed counterpart of this Deed and the
Guarantee Deed with the Registrar for the benefit of MTN Holders as
more particularly set out in the Registry Services and Paying
Agency Agreement.
(b) Each MTN Holder is taken to have irrevocably appointed and
authorised the Registrar to hold this Deed and the Guarantee Deed
in the Australian Capital Territory on behalf of that MTN Holder,
with the powers expressly delegated to the Registrar under the
Registry Services and Paying Agency Agreement and other powers
reasonably incidental to those powers.
(c) The Registrar has no duties or responsibilities in that capacity
except those expressly set out in the Registry Services and Paying
Agency Agreement.
3.6 INCORPORATION OF ANNEXURES AND CONDITIONS
(a) The MTNs are issued on and subject to:
(i) the Conditions applicable to those MTNs;
(ii) the terms relating to those MTNs set out in the Register;
and
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(iii) the provisions for meetings contained in annexure B,
each of which is incorporated in this Deed as if it were set out in
this Deed and so as to bind the Issuer and the MTN Holders who
assert an interest in the MTNs.
(b) If there is any inconsistency between this Deed and a Pricing
Supplement, the Pricing Supplement will prevail.
3.7 PAYING AGENT AND PROGRAMME MANAGER
Each MTN Holder is taken to acknowledge that:
(a) the Paying Agent is the Issuer's agent, not theirs;
(b) the Programme Manager is not, by reason of any Transaction
Document, an agent of or trustee for the benefit of, the Issuer or
any MTN Holder; and
(c) neither the Paying Agent nor the Programme Manager owes any
fiduciary duty to any MTN Holder.
4. REGISTER
4.1 ESTABLISH AND MAINTAIN
The Issuer shall procure that the Registrar does the following things:
(a) establish and maintain, in accordance with the Registry Services
and Paying Agency Agreement, a register in Canberra or another
Australian city approved by the Issuer; and
(b) enter or cause to be entered in the Register in respect of each
MTN:
(i) the information contemplated by annexure A (to the extent
applicable);
(ii) the name and address of the initial MTN Holder and each
subsequent MTN Holder;
(iii) the date on which a person becomes an MTN Holder;
(iv) the payment instructions notified by the MTN Holder;
(v) the MTN Holder's tax file number (if provided by it) or the
basis on which the MTN Holder is exempt from the need to
disclose its tax file number;
(vi) the date on which a person ceases to be an MTN Holder;
(vii) the date on which the MTN is redeemed or is purchased and
cancelled; and
(viii) any other information required by applicable law.
4.2 MULTIPLE MTN HOLDERS
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(a) Two or more people registered as MTN Holders of an MTN are taken to
be joint holders with right of survivorship between them.
(b) If there are more than 4 holders of an MTN, the names of only 4 of
them will be entered in the Register. If more than 4 names are
notified to the Registrar, it will record the first 4 noted.
(c) If there is more than one holder of an MTN, the address of only one
of them will be entered in the Register. If more than one address
is notified to the Registrar, it will record the address of the MTN
Holder whose name appears first in the Register.
4.3 REGISTER IS PARAMOUNT
(a) The person whose name appears in the Register will be recognised by
the Issuer and the Registrar as the absolute owner of the MTNs
inscribed in the Register in its name, without regard to any other
record or instrument (including any Transfer and Acceptance Form).
(b) No notice of any trust or other interest in an MTN will be entered
on the Register. Neither the Issuer nor the Registrar need take
notice of any other interest in or claim to an MTN, except as
ordered by a court of competent jurisdiction or required by law.
4.4 MTN HOLDER CHANGE OF NAME OR ADDRESS
An MTN Holder must promptly notify any change of name or address to the
Registrar.
4.5 CERTIFIED EXTRACTS FROM REGISTER AVAILABLE
The Issuer shall, on request by an MTN Holder, procure that the Registrar
provides the MTN Holder, at the MTN Holder's expense, with a certified
extract of the particulars entered in the Register in relation to the MTN
Holder and the MTNs held by it. That extract is not a document of title.
5. TRANSFERS
5.1 MTNS TRANSFERABLE
MTNs are transferable, in whole or in part, without the consent of the
Issuer or the Registrar.
5.2 METHOD OF TRANSFER
MTNs may be transferred only:
(a) by a Transfer and Acceptance Form complying with clause 5.3 or
through the Austraclear System in accordance with clause 6;
(b) in a total minimum Principal Amount of $500,000 or, if a larger
Principal Amount, an integral multiple of $100,000; and
(c) if the offer or invitation to transfer is EXCLUDED within the
meaning of the Corporations Law.
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5.3 TRANSFER AND ACCEPTANCE FORMS
Transfer and Acceptance Forms are available from the Registrar. Every
Transfer and Acceptance Form in respect of MTNs must be:
(a) signed by the transferor and the transferee;
(b) delivered to the office of the Registrar for registration;
(c) accompanied by such evidence as the Registrar may reasonably
require to prove the title of the transferor or the transferor's
right to transfer those MTNs; and
(d) duly stamped, if necessary.
The Issuer is not obliged to pay stamp duty on any transfer of an MTN.
5.4 EFFECTIVE DATE OF TRANSFERS
The transferor will be taken to remain the owner of the relevant MTNs
until the name of the transferee is inscribed in the Register in respect
of those MTNs.
5.5 NO FEE
No fee or other charge is payable to the Issuer or the Registrar in
respect of the transfer or registration of any MTN.
5.6 CLOSING OF REGISTER
The Register will be closed in respect of an MTN for the purpose of
determining entitlements to payment, at 5pm on the seventh day before each
Interest Payment Date and Redemption Date of the MTN (or any shorter
period agreed by the Issuer and the Registrar). No Transfer and Acceptance
Forms in relation to the MTN will be registered from the time of that
closing until all payments due on the MTN on the relevant date have been
made.
5.7 MARKING OF TRANSFER
The Registrar may mark any Transfer and Acceptance Form in its customary
manner. That marking prohibits a dealing with the relevant MTNs, as
specified in the marking notation, from the date of marking to the
earliest of:
(a) 42 days from the date of marking;
(b) the date the Registrar cancels the marking notation; and
(c) the date the Registrar receives the marked Transfer and Acceptance
Form executed by the transferee.
A marked Transfer and Acceptance Form is not a document of title.
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5.8 TRANSFER ON DEATH, BANKRUPTCY OR LIQUIDATION OF MTN HOLDER
The Registrar is required by the Registry Services and Paying Agency
Agreement to register a transfer of an MTN to or by a person who is
entitled to do so in consequence of:
(a) the death, bankruptcy, liquidation or winding up of an MTN Holder;
or
(b) the making of a vesting order by a court or other judicial or
quasi-judicial body in relation to an MTN Holder,
on receiving the evidence the Registrar requires.
5.9 DESTRUCTION
Any Transfer and Acceptance Form may, with the prior written approval of
the Issuer, be destroyed by the Registrar after the entry in the Register
of the particulars set out in the form.
5.10 DECEASED PEOPLE
The Registrar may decline to give effect to a transfer of any MTNs entered
in the Register in the name of a deceased person who has two or more
personal representatives unless the Transfer and Acceptance Form is
executed by all of them.
6. MTNS LODGED WITH AUSTRACLEAR
If MTNs are lodged into the Austraclear System, the Registrar will enter
Austraclear in the Register as the holder of those MTNs. While those MTNs
remain in the Austraclear System:
(a) all payments and notices required of the Issuer or the Registrar in
relation to those MTNs will be directed into Austraclear; and
(b) all dealings (including transfers and payments) in relation to
those MTNs within the Austraclear System will be governed by the
Austraclear Regulations and need not comply with this Deed to the
extent of any inconsistency.
7. INTEREST ON MTNS
7.1 APPLICATION
The provisions of this clause 7 apply to Floating Rate MTNs, Fixed Rate
MTNs and any other MTNs which are specified in the relevant Pricing
Supplement as being interest bearing.
7.2 ACCRUAL AND PAYMENT
(a) Interest accrues on a daily basis on the Principal Amount of MTNs
to which this clause applies at the applicable Interest Rate from
their Interest Accrual Date until their Maturity Date. This does
not limit clause 14.
(b) Subject to any contrary provision in the relevant Pricing
Supplement, the Interest Amount is calculated by applying the
applicable Interest Rate for the Interest Period to the Principal
Amount of the MTN, multiplying that sum by the relevant Day Count
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Fraction, and rounding the resultant figure to the nearest cent
(half a cent being rounded upwards).
(c) Accrued interest is payable in arrears on each applicable Interest
Payment Date and on the Maturity Date.
7.3 NOTIFICATION OF INTEREST RATE AND INTEREST AMOUNT
The Issuer will, if requested in writing by an MTN Holder, notify the MTN
Holder of the applicable Interest Rate, Interest Amount and Interest
Payment Date or cause the Paying Agent to do so. The Interest Amount and
the Interest Payment Date so notified may be subsequently amended (or
appropriate alternative arrangements made by the Paying Agent by way of
adjustment) without notice if the Interest Period is extended or shortened
in accordance with the applicable Conditions.
8. REDEMPTION AND PURCHASE OF MTNS
8.1 REDEMPTION
The Issuer undertakes to pay to each MTN Holder, in respect of each MTN
for which that person's name is inscribed in the Register and which has
not been previously purchased and cancelled, each Redemption Amount on the
relevant Redemption Date.
8.2 PURCHASE
The Issuer may at any time purchase MTNs:
(a) in the open market;
(b) by tender to all of the MTN Holders; or
(c) by private agreement.
8.3 CANCELLATION
All MTNs redeemed or repurchased by the Issuer must be cancelled promptly
and may not be reissued or resold. All liabilities and obligations of the
Issuer in connection with those MTNs are discharged.
This clause does not prevent the Issuer creating new MTNs.
9. MANNER OF PAYMENTS
9.1 PAYMENTS TO MTN HOLDERS
All payments under or in respect of an MTN must be made by the Issuer or
the Paying Agent on its behalf:
(a) in Australian Dollars;
(b) to an account or an address in Australia which is designated by the
MTN Holder to the Registrar not later than 5pm on the seventh day
before the relevant Interest Payment Date or Redemption Date;
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(c) by cheque drawn on a bank in Australia or, in the case of payments
to be credited to an account, by the Issuer or the Paying Agent
giving irrevocable instructions to effect a transfer of the
relevant funds to that account; and
(d) in accordance with clause 10.
All payments are subject to any applicable fiscal or other laws and
regulations.
9.2 WHEN PAYMENTS TAKEN TO HAVE BEEN MADE
(a) A payment made by posting a cheque is taken to have been made on
the day it is posted, even if the cheque does not actually arrive
on that date.
(b) A payment made by electronic transfer is taken to be made when the
Issuer or Paying Agent gives an irrevocable instruction for that
payment which would reasonably be expected to result, in the
ordinary course of banking business, in the relevant funds reaching
the account of the MTN Holder on the same day as the day on which
the instruction is given.
9.3 GOOD DISCHARGE
(a) If payment of an amount due to an MTN Holder is made in accordance
with the applicable Conditions, that payment is a good discharge to
the Issuer despite any notice it or the Paying Agent may have
(whether express or otherwise) of the right, title, interest or
claim of any other person to or in that money or the MTN under
which the payment is made.
(b) A payment made to a third party on the instructions of the MTN
Holder to whom it is due will constitute a good discharge of the
Issuer's obligation to make that payment to the MTN Holder.
9.4 BUSINESS DAYS
(a) If a payment is due under or in respect of an MTN on a day which is
not a Business Day, the due date for payment will be adjusted
according to the Business Day Convention applicable to that MTN.
(b) If an amount is to be paid to an account on a day on which banks
are not open for business in the city in which the account is
located, the MTN Holder is not entitled to payment of that amount
until the next Business Day on which banks in that city are open
for business and is not entitled to any additional interest or
other payment in respect of that delay.
9.5 PAYING AGENT
Subject to any agreement between the Issuer and the Paying Agent, the
Issuer may vary or terminate the appointment of the Paying Agent at any
time. Notice of any such change, or any change in the specified offices of
the Paying Agent, must be given to the MTN Holders in accordance with
clause 17.
10. TAXATION
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10.1 PAYMENTS MADE FREE AND CLEAR
All payments under or in respect of the MTNs must be made free and clear
of, and without deduction for, or by reference to, any present or future
taxes of the Commonwealth of Australia or any political subdivision or
taxing authority of or in Australia unless required by law.
10.2 INTEREST WITHHOLDING TAX
The Issuer or any person making payments on its behalf may deduct interest
withholding tax imposed by the Commonwealth of Australia from payments of
interest or amounts in the nature of interest in respect of MTNs which are
payable to:
(a) non-residents of the Commonwealth of Australia not carrying on
business in the Commonwealth of Australia at or through a permanent
establishment; and
(b) residents of the Commonwealth of Australia carrying on business at
or through a permanent establishment outside the Commonwealth of
Australia,
unless a notice pursuant to section 221YM of the Tax Act is produced to
the Registrar not later than 5pm on the seventh day before the relevant
Interest Payment Date or Redemption Date (as the case may be), and then
only to the extent that the notice relates to the amount payable.
10.3 TAX FILE NUMBER
The Issuer or any person making payments on its behalf may deduct tax-at-
source on payments of interest or amounts in the nature of interest to an
MTN Holder at the rate required by the Tax Act unless the Registrar
receives written notice of the MTN Holder's tax file number or evidence of
any exemption the MTN Holder may have from the need to notify its tax file
number. The tax file number or appropriate evidence (as the case may be)
must be received by the Registrar not later than 5pm on the seventh day
before the relevant Interest Payment Date or Redemption Date.
11. NEGATIVE PLEDGE
The Issuer undertakes to each MTN Holder as follows.
(a) (NO LIENS) It will not, and it will ensure that each of its
Subsidiaries will not, create, incur, assume or allow to exist any
Lien on any of its property, assets or revenue, whether now owned
or acquired later, which would cause the Guarantor to be in breach
of any provision of the Guarantee Deed.
(b) (GUARANTEE DEED) It will not do anything which may cause the
Guarantor to breach the undertakings given by it in the Guarantee
Deed and it will do all things necessary on its part to ensure that
the Guarantor is able duly to perform those undertakings.
(c) (NOTICE) It will promptly notify the Programme Manager and each MTN
Holder of the occurrence of any Event of Default.
12. EVENTS OF DEFAULT
12.1 EVENTS OF DEFAULT
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Each of the following is an Event of Default in relation to all MTNs
(whether or not it is in the control of any Relevant Company).
(a) (OBLIGATIONS UNDER TRANSACTION DOCUMENTS) A Relevant Company fails:
(i) to pay an amount payable by it under a Transaction Document
within 5 Business Days of the amount becoming due; or
(ii) to comply with any of its other obligations under a
Transaction Document and, if that failure can be remedied,
does not remedy the failure within 21 Business Days after
notice in writing to the Issuer from any MTN Holder or the
Programme Manager.
(b) (CROSS DEFAULT)
(i) Indebtedness of a Relevant Company totalling at least the
Threshold Amount or its equivalent:
(A) is not paid when due (or within an applicable grace
period); or
(B) becomes due and payable or capable of being declared due
and payable before its stated maturity or expiry;
(ii) a facility or obligation granted or owed by a person to a
Relevant Company to provide financial accommodation or to
acquire or underwrite Indebtedness totalling at least the
Threshold Amount or its equivalent is prematurely
terminated, except where the Relevant Company exercises an
optional right of termination in the absence of actual,
likely or threatened default or an event of default or
termination event, whatever called; or
(iii) an event of default as defined in the Revolving Credit
Agreement occurs and money owing under that agreement
becomes due and payable before its stated maturity or
expiry.
For the purpose of this paragraph (b) the term INDEBTEDNESS does
not include:
(iv) Guarantee Obligations of any Subsidiary of the Issuer in
respect of Indebtedness of an Affiliate of the Issuer if
that Subsidiary owns no material assets other than equity
interests in the Affiliate and the Affiliate is not a
Subsidiary of the Issuer; and
(v) net liabilities in respect of Interest Rate Agreements
unless the holder or holders of that Indebtedness have
required that a termination payment in respect of the
Interest Rate Agreement be made.
(c) (ADMINISTRATION, WINDING UP, ARRANGEMENTS, INSOLVENCY ETC.)
(i) An administrator of the Issuer, a Material Subsidiary or the
Guarantor is appointed.
(ii) Except for the purpose of a solvent reconstruction or
amalgamation with prior Consent:
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(A) an application or an order is made, proceedings are
commenced or a resolution is passed for:
(1) the winding up, dissolution or administration of the
Issuer, a Material Subsidiary or the Guarantor; or
(2) the Issuer, a Material Subsidiary or the Guarantor
entering into an arrangement, compromise or
composition with or assignment for the benefit of
its creditors or a class of them,
other than an application or proceeding which is being
contested in good faith and which is withdrawn or set
aside within 21 days of first filing; or
(B) the Issuer, a Material Subsidiary or the Guarantor
ceases or suspends the conduct of all or a substantial
part of its business or disposes of a substantial part
of its assets.
(iii) The Issuer, a Material Subsidiary or the Guarantor:
(A) is, or under legislation is presumed or taken to be,
insolvent (other than as the result of a failure to pay
a debt or claim the subject of a good faith dispute); or
(B) stops or suspends payment of all or a class of its
debts.
(d) (ENFORCEMENT AGAINST ASSETS)
(i) A Controller (as defined in the Corporations Law) or similar
officer is appointed to all or any of the assets and
undertaking of the Issuer, a Material Subsidiary or the
Guarantor and not removed (without another being appointed
in its place) within 21 days.
(ii) A distress, attachment or other execution is levied or
enforced over all or any of the assets and undertaking of
the Issuer, a Material Subsidiary or the Guarantor and not
withdrawn or discontinued within 21 days.
(e) (ANALOGOUS PROCESS) Anything analogous to anything referred to in
paragraphs (c) or (d), or which has substantially similar effect,
occurs with respect to the Issuer, a Material Subsidiary or the
Guarantor under any overseas law or any law which commences or is
amended after the date of this Deed.
(f) (VITIATION OF DOCUMENTS) All or any material part of a Transaction
Document is terminated or is or becomes void, illegal, invalid,
unenforceable or of limited force and effect.
(g) (CONTROL OF ISSUER OR GUARANTOR) Without prior Consent:
(i) the Issuer ceases to be a wholly owned subsidiary of the
Guarantor; or
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(ii) the Guarantor ceases to be a wholly owned subsidiary of Case
Corporation.
(h) (SUPPORT AGREEMENT) An event described in paragraph (f) occurs in
relation to the Support Agreement dated 10 January 1996 between Case
Corporation and the Guarantor, or that agreement is amended in a
material respect without prior Consent.
12.2 CONSEQUENCES OF EVENT OF DEFAULT
If an Event of Default occurs (whether or not it is continuing) an MTN
Holder may, by notice to the Issuer, declare its MTNs immediately
redeemable. The Issuer or the Paying Agent on its behalf shall immediately
redeem those MTNs by paying the Principal Amount together with accrued
interest or any other amount payable on redemption in accordance with the
relevant Pricing Supplement.
13. TIME LIMIT FOR CLAIMS
A claim against the Issuer for a payment due to be made under this Deed is
void if made more than 5 years after that payment became due.
14. INTEREST ON OVERDUE AMOUNTS
14.1 ACCRUAL
Interest accrues on each unpaid amount which is due and payable by the
Issuer under or in respect of this Deed (including interest under this
clause):
(a) on a daily basis up to the date of actual payment from (and
including) the due date;
(b) both before and after judgment (as a separate and independent
obligation); and
(c) at the rate specified for this purpose in the relevant Pricing
Supplement.
14.2 PAYMENT
The Issuer shall pay interest accrued under this clause on demand and on
the last Business Day of each calendar quarter.
15. AMENDMENTS
The Registry Services and Paying Agency Agreement and this Deed (other than
this clause 15) may be amended at any time if the amendment is:
(a) to correct a manifest error or ambiguity;
(b) with prior Consent; or
(c) necessary or desirable in the opinion of the Issuer and the Programme
Manager and neither prejudicial nor likely to be prejudicial to the
interests of MTN Holders as a whole.
This does not limit annexure B or the effect of any Pricing Supplement in
relation to MTNs of the Tranche to which it applies.
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16. WAIVERS, REMEDIES CUMULATIVE
(a) No failure to exercise or delay in exercising any right, power or
remedy under this Deed shall operate as a waiver, nor shall any single
or partial exercise of any right, power or remedy preclude any other
or further exercise of that or any other right, power or remedy.
(b) The rights, powers and remedies provided under this Deed are
cumulative and not exclusive of any rights, powers or remedies
provided by law.
17. NOTICES
17.1 NOTICES TO THE ISSUER, REGISTRAR OR PAYING AGENT
All notices, requests, demands, consents, approvals, agreements or other
communications (NOTICES) under this Deed to the Issuer or the Paying Agent:
(a) must be in writing;
(b) must be addressed:
(i) if to the Issuer:
Address: Case Credit Australia Pty Ltd
31-67 Kurrajong Avenue
ST MARYS NSW 2760
Facsimile No: 9623 2936
Attention: Director;
with a copy to:
--------------
Address: Case Credit Corporation
233 Lake Avenue
Racine, Illinois
U.S.A. 53403
Attention: Treasurer
Facsimile: 1 414 636 6466
(ii) if to the Registrar:
Address: Corporate Registry Services Pty Limited
Level 2
321 Kent Street
SYDNEY NSW 2000
Facsimile No: 9262 2574
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Attention: Fixed Interest Manager;
(iii) if to the Paying Agent:
Address: Corporate Registry Services Pty Limited
Level 2
321 Kent Street
SYDNEY NSW 2000
Facsimile No: 9262 2574
Attention: Fixed Interest Manager,
or any other address or facsimile number which the addressee may have
notified the sender; and
(c) will be taken to be given or made when delivered, received or left at
that address.
Failure to give a copy of a notice to the Guarantor does not affect
the validity of any notice given to the Issuer.
17.2 NOTICES TO THE MTN HOLDERS
All notices to MTN Holders must be:
(a) published in THE AUSTRALIAN FINANCIAL REVIEW (or another English
language newspaper in general circulation in Australia). Any notice so
published will be taken to be given or made on the date the notice is
first so published; or
(b) delivered by prepaid post or courier to the address of the MTN Holder
specified in the Register, or in the case of an MTN which is
registered in the name of 2 or more people, to the person whose name
appears first in the Register. Any notice so delivered will be taken
to be given or made 2 Business Days after posting or, if delivered by
courier, when left at that address.
18. GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS
18.1 GOVERNING LAW AND JURISDICTION
This Deed is governed by the laws of New South Wales. The Issuer and each
MTN Holder irrevocably and unconditionally submits to the non-exclusive
jurisdiction of the courts exercising jurisdiction there. The Issuer and
each MTN Holder waives any right it has to object to an action being
brought in those courts, to claim that the action has been brought in an
inconvenient forum, or to claim those courts do not have jurisdiction.
18.2 SERVICE OF PROCESS
Without preventing any other mode of service, any document in an action
(including any writ of summons or other originating process or any third or
other party notice) may be served on the Issuer by being delivered to or
left for the Issuer at its address for service of notices under clause 17.
19. CALCULATIONS
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All calculations to be made under this Deed or any Conditions will be made
by the Paying Agent, unless otherwise specified in the applicable Pricing
Supplement. Those calculations will bind the Issuer and the MTN Holders
unless proven wrong.
EXECUTED as a deed poll in Canberra.
Each attorney executing this Deed states that the attorney has no notice of the
revocation or suspension of the power of attorney appointing that attorney.
THE ISSUER
SIGNED SEALED and DELIVERED )
on behalf of )
CASE CREDIT AUSTRALIA PTY )
LIMITED by its attorney )
in the presence of: ) /s/J Grant (sgd)
--------------------
Signature
/s/K Downs (sgd) JAMES GRANT
- -------------------- ------------------
Witness Print name
KAREN DOWNS
- ------------------
Print name
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ANNEXURE A
PRICING SUPPLEMENT
1. IDENTIFICATION
(a) Issuer: Case Credit Australia Pty Limited (ACN 069 132 396)
(b) Guarantor: Case Credit Corporation
(c) Programme Manager: National Australia Bank Limited
(d) Type of MTN:
(e) Series Number:
(f) Tranche Number:
(g) Aggregate Principal Amount of Tranche:
(h) Issue Date:
(i) Denominations:
(j) Settlement: Austraclear/other (specify)
(k) Issue Price:
2. INTEREST
(a) If interest bearing:
(i) Interest Rate
(if Fixed Rate MTN): [*] per cent per annum
(ii) Floating Rate Basis
(if Floating Rate MTN): BBSW/other (specify)
(iii) Interest Accrual Date: day/month/year
(if different from Issue Date)
(iv) Interest Payment Dates:
(v) Business Day Convention: Following
Modified Following/Modified
Preceding
Other (specify)
(vi) Day Count Fraction: Actual/365 or Actual/Actual; Actual/365
(Fixed)
(b) Default interest rate:
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3. OTHER INTEREST DETAILS
(insert details)
4. PRINCIPAL
(a) Maturity Date: day/month/year
(b) Other Redemption Dates: day/month/year
(if any)
(c) Redemption Amounts: (If more than one specify the amount
for each Redemption Date)
5. SPECIAL CONDITIONS OR TERMS
(insert details)
6. ADDITIONS, VARIATIONS OR MODIFICATIONS TO TERMS AND CONDITIONS
(insert details)
_______________________________________
Signed for and on behalf of
CASE CREDIT AUSTRALIA PTY LIMITED
by its Authorised Officer
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ANNEXURE B
PROVISIONS FOR MEETINGS OF MTN HOLDERS
1. INTERPRETATION
In addition to the application of clause 1 of the Deed, in this annexure
the following applies.
(a) The following definitions apply unless the contrary intention appears.
BLOCK VOTING INSTRUCTION means a certificate issued by the Registrar
and dated, in which:
(i) the Registrar certifies that MTNs of a specified Tranche (not
being MTNs in respect of which a Voting Certificate is
outstanding in relation to the meeting specified in the
certificate or any adjournment) are registered in the Register in
the names of specified MTN Holders;
(ii) the Registrar certifies that each of the specified MTN Holders or
its duly authorised agent has instructed the Registrar that:
(A) the votes of that MTN Holder should be cast in a
particular way in relation to each resolution to be put to
the meeting or any adjournment; and
(B) no such instruction is revocable or subject to amendment
in the period from 48 hours before the meeting until the
close of the meeting or, in the case of an adjournment,
from 48 hours before the adjournment until the close of
the adjournment;
(iii) the total number and Tranche number of the MTNs are listed
distinguishing, for each resolution, between those for which
instructions have been duly given to vote in favour of the
resolution and those for which instructions have been duly given
to vote against the resolution; and
(iv) the Registrar authorises and instructs a specified person
(PROXY) to cast the vote attributable to the MTNs so listed in
accordance with the instructions referred to in (ii) and (iii)
above.
EXTRAORDINARY RESOLUTION means:
(i) a resolution adopted at a meeting of MTN Holders held in
accordance with the procedures contained in this annexure by not
less than 75% of the votes cast in respect of that resolution; or
(ii) a resolution made in writing in accordance with paragraph 19(b)
of this annexure.
ORDINARY RESOLUTION means:
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(i) a resolution adopted at a meeting of MTN Holders held in
accordance with the procedures contained in this annexure by more
than 50% of the votes cast in respect of that resolution; or
(ii) a resolution made in writing in accordance with paragraph 19(a)
of this annexure.
VOTING CERTIFICATE means a certificate issued by the Registrar and
dated, in which the Registrar certifies that:
(i) on the date of the certificate MTNs of any Tranche (not being
MTNs in respect of which a Block Voting Instruction is
outstanding in relation to the meeting specified in the Voting
Certificate or any adjournment) are registered in the Register;
and
(ii) the bearer of the certificate is entitled to attend and vote at
that meeting or any adjournment in respect of the MTNs specified
in the certificate.
(b) References to MEETING include, if there is only one MTN Holder or one
holder of an MTN of a particular Series, the attendance (as permitted
by this annexure) of that person on the day and at the place and time
specified in accordance with this annexure.
2. APPOINTMENT OF PROXY
(a) Subject to paragraph 15, an MTN Holder may by a notice in writing in
the form for the time being available from the specified office of the
Registrar (FORM OF PROXY) signed by the MTN Holder or, in the case of
a corporation, executed under its common seal or signed on its behalf
by its duly appointed attorney or a duly authorised officer of the
corporation, appoint any person (also called a PROXY) to attend and
act on that person's behalf in connection with any meeting or proposed
meeting of MTN Holders.
(b) Subject to paragraph 15, the Registrar may, at the request of MTN
Holders of all the MTNs in a Tranche, appoint a proxy for those MTN
Holders by issuing a Block Voting Instruction.
(c) A proxy (including under a Block Voting Instruction) may but need not
be an MTN Holder.
3. VALIDITY AND EFFECT OF VOTING CERTIFICATE, APPOINTMENT OF PROXY
(a) Voting Certificates, Block Voting Instructions and forms of proxy must
be valid only for so long as the relevant MTNs are duly registered in
the name of the MTN Holder certified in that document or, in the case
of a form of proxy, in the name of the appointor.
(b) Despite any other provision of this annexure, during the validity of a
Voting Certificate, Block Voting Instruction or form of proxy, the
bearer or proxy (as applicable) shall be treated as the MTN Holder for
the purposes of any meeting of MTN Holders.
4. CONVENING MEETINGS
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A meeting of MTN Holders:
(a) may be convened at any time by the Issuer; and
(b) must be promptly convened by the Issuer:
(i) if requested to do so by the Programme Manager; or
(ii) if requested to do so by MTN Holders holding in total at least
10% of the Principal Amount of all MTNs.
5. NOTICE OF MEETINGS
(a) Unless otherwise agreed in writing by each MTN Holder, at least 21
days' notice (exclusive of the day on which the notice is given and of
the day on which the meeting is held) specifying the day, time and
place of meeting must be given to MTN Holders in the manner provided
in clause 17 of the Deed. A copy of the notice must be given to the
Registrar.
(b) The notice must specify the terms of the resolutions to be proposed
and must include statements to the effect that Voting Certificates may
be obtained and proxies may be appointed until 48 hours before the
time fixed for the meeting but not after that time. The accidental
omission to give notice to, or the non-receipt of notice by, any MTN
Holder does not invalidate the proceedings at any meeting.
6. CHAIRMAN
A person (who may, but need not, be the Programme Manager or an MTN Holder)
nominated in writing by the Issuer must take the chair at every meeting. If
no such nomination is made, or if the person nominated is not present
within 15 minutes after the time appointed for the holding of the meeting
or is unable or unwilling to chair the meeting, the person or persons
present in person holding MTNs or Voting Certificates or being proxies must
choose one of their number to be chairman.
7. QUORUM
At any such meeting any one or more persons present in person holding MTNs
or Voting Certificates or being proxies representing in total a clear
majority in Principal Amount of MTNs form a quorum for the transaction of
business. No business (other than the choosing of a chairman) may be
transacted at any meeting unless the requisite quorum is present at the
commencement of business.
8. NO QUORUM PRESENT
(a) If within half an hour after the time appointed for a meeting a quorum
is not present the meeting will, if convened on the requisition of MTN
Holders, be dissolved. In any other case it will stand adjourned for
such period, not being less than 14 days nor more than 42 days, and to
such time and place, as the chairman appoints.
(b) At the adjourned meeting the quorum is one or more persons present in
person holding MTNs or Voting Certificates or being proxies and
holding or representing in total at least 25% in Principal Amount of
MTNs. If within half an hour after the time appointed
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for the adjourned meeting that quorum is not present the meeting will
again stand adjourned for such period, not being less than 7 days nor
more than 21 days, and to such time and place, as the chairman
appoints. At the further adjourned meeting the quorum is one or more
persons present in person holding MTNs or Voting Certificates or being
proxies.
9. ADJOURNMENT
The chairman may with the consent of (and must if directed by) any meeting
adjourn the meeting from time to time and from place to place but no
business may be transacted at any adjourned meeting except business which
might validly have been transacted at the meeting from which the
adjournment took place.
10. NOTICE OF ADJOURNMENT
Unless otherwise agreed in writing by each MTN Holder at least 10 days'
notice of any meeting adjourned because of lack of a quorum must be given
in the same manner as of an original meeting and such notice must state the
quorum required at such adjourned meeting. Otherwise, it is not necessary
to give any notice of an adjourned meeting.
11. PERSONS ENTITLED TO BE PRESENT
The Paying Agent, the Programme Manager, the Registrar and the Issuer
(through their respective representatives) and their respective financial
and legal advisers are entitled to attend and speak at any meeting of MTN
Holders. Otherwise, no person may attend or vote at any meeting of MTN
Holders or join with others in requesting the convening of such a meeting
unless that person is the holder of an MTN or of a Voting Certificate, or
is a proxy.
12. CASTING VOTE
In the case of equality of votes the chairman has, both on a show of hands
and on a poll, a casting vote in addition to the vote or votes (if any) to
which the chairman may be entitled as an MTN Holder, a proxy or the holder
of a Voting Certificate.
13. DELETED
14. DELETED
15. NOTICE OF PROXY
(a) Each Block Voting Instruction and each form of proxy, together (if so
required by the Issuer) with proof satisfactory to the Issuer of its
due execution, must be deposited at the specified office in Australia
of the Registrar not less than 48 hours before the time appointed for
holding the meeting. Failing that the Block Voting Instruction or form
of proxy may not be treated as valid unless the chairman of the
meeting decides otherwise before the meeting proceeds to business.
(b) A certified copy of each Block Voting Instruction or form of proxy and
satisfactory proof of due execution must, if required by the Issuer,
be produced by the proxy at the meeting. The Issuer is not obliged to
investigate or be concerned with the validity of, or the authority of
the proxy named in, any Block Voting Instruction or form of proxy.
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(b) Subject to paragraph 16, a Block Voting Instruction or a form of proxy
for a meeting, if expressed to be so, will be valid for any
adjournment of the meeting.
16. REVOCATION OR AMENDMENT OF BLOCK VOTING INSTRUCTION OR FORM OF PROXY
Any vote given in accordance with the terms of a Block Voting Instruction
or form of proxy will be valid despite the previous revocation or amendment
of the Block Voting Instruction or form of proxy or of any instructions
under which the Block Voting Instruction was executed, unless notice in
writing of that revocation or amendment is received at the specified office
of the Registrar at least 48 hours before the commencement of the meeting
or adjournment.
17. MTN HOLDER MAY VOTE IN PERSON OR BY PROXY ETC.
The MTN Holder or, in the case of joint holders, the person whose name
first appears on the Register as one of the holders, is entitled to vote in
respect of the MTN either in person or by proxy or by representative.
18. MANNERS OF VOTING AND VOTE COUNT
(a) Every question submitted to a meeting will be decided by a poll.
(b) Subject to paragraph 12, at a meeting convened for the purpose of
considering a resolution every MTN Holder or bearer of a Voting
Certificate who is present has one vote in respect of each dollar of
Principal Amount of MTNs which that person holds or is represented by
the Voting Certificate or in respect of which that person is a proxy.
(c) Without affecting the obligations of the proxies named in any Block
Voting Instruction or form of proxy, any person entitled to more than
one vote need not use all votes or cast all the votes to which that
person is entitled in the same way.
19. WRITTEN RESOLUTIONS
A resolution of MTN Holders may be passed and adopted without any meeting
being required, by an instrument in writing signed within 1 month after the
date (the RELEVANT DATE) stated in the copies of the instrument sent for
that purpose to MTN Holders:
(a) in the case of an Ordinary Resolution, by MTN Holders holding more
than 50% in Principal Amount of MTNs at the Relevant Date; or
(b) in the case of an Extraordinary Resolution, by MTN Holders holding at
least 75% in Principal Amount of MTNs at the Relevant Date.
A resolution in writing signed by MTN Holders may be contained in one
document or in several documents in like form each signed by one or more
MTN Holders. Any such instrument is effective on presentation to the
Registrar for entry in the records referred to in paragraph 22.
20. POWERS EXERCISABLE BY EXTRAORDINARY RESOLUTION OR WITH CONSENT OF MTN
HOLDERS OF SAME SERIES
The MTN Holders of MTNs of the same Series have, subject to the provisions
contained in the applicable Conditions, in addition to the powers set out
above, but without affecting any powers conferred on other persons by this
annexure:
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(a) the following powers exercisable by or with Consent of those MTN
Holders:
(i) to sanction any proposal by the Issuer for any modification,
abrogation, variation or compromise of, or arrangement in
respect of, the rights of those MTN Holders against the Issuer
whether such rights arise under those MTNs or otherwise;
(ii) to sanction the exchange or substitution for those MTNs of, or
the conversion of those MTNs into, other obligations or
securities of the Issuer or any other body corporate formed or
to be formed;
(iii) to assent to any modification of the applicable Conditions
which is proposed by the Issuer;
(iv) to waive or authorise any breach or proposed breach by the
Issuer of its obligations under the applicable Conditions;
(v) to give any authority, direction or sanction which under the
applicable Conditions is required to be given by Extraordinary
Resolution; and
(b) the following powers exercisable by Extraordinary Resolution of those
MTN Holders:
(i) to authorise any person to concur in and execute and do all
such documents, acts and things as may be necessary to carry
out and give effect to any Extraordinary Resolution;
(ii) to appoint any persons (whether MTN Holders or not) as a
committee or committees to represent the interests of the MTN
Holders of MTNs of that Series and to confer upon that
committee or committees any powers or discretions which the MTN
Holders could themselves exercise by Extraordinary Resolution.
For this purpose the provisions of this annexure apply with the necessary
modifications as though references in those provisions to MTNs and MTN
Holders are references to MTNs of the Series in question and to the MTN
Holders of those MTNs respectively.
21. RESOLUTIONS BINDING
A resolution, including an Extraordinary Resolution, passed at a meeting of
MTN Holders duly convened and held (or passed by those MTN Holders in
writing) in accordance with this annexure is binding on all MTN Holders,
whether present or not at the meeting (or having signed or not the written
resolution), and each MTN Holder is bound to give effect to it accordingly.
The passing of any such resolution is conclusive evidence that the
circumstances of such resolution justify its passing.
22. MINUTES
(a) The Registrar shall cause minutes of all proceedings at every meeting
of MTN Holders (or resolutions of MTN Holders otherwise passed in
accordance with this annexure) to be made and duly entered, within 1
month after the relevant meeting is held (or resolution otherwise
passed), in books provided for that purpose by the Issuer.
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(b) Any such minutes, if purporting to be signed by the chairman of the
meeting at which such proceedings took place or by the chairman of the
next succeeding meeting (or, where a resolution is passed otherwise
than at a meeting, if purporting to be signed by a director or
secretary of the Registrar or the Issuer), are conclusive evidence of
the matters contained in them.
(c) Until the contrary is proved, where minutes have been made, entered
and signed in that manner for a meeting or a resolution passed
otherwise than at a meeting:
(i) the meeting shall be treated as having been duly convened and
held, and all resolutions passed and other proceedings transacted
at that meeting shall be treated as having been duly passed and
transacted; and
(ii) the resolution shall be treated as having been duly passed.
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ANNEXURE C
TRANSFER AND ACCEPTANCE FORM
Case Credit Australia Pty Limited
ACN 069 132 396
To: The Registrar
Relating to the issue by Case Credit Australia Pty Limited (the ISSUER) of MTNs,
constituted by and issued under the Deed Poll dated [*] 1997 given for the
benefit of MTN Holders from time to time.
TRANSFEROR (SELLER):............................................................
Address:........................................................................
........................................................................
hereby applies to transfer to:
TRANSFEREE (PURCHASER):.........................................................
Address:........................................................................
........................................................................
the following MTN(s):
Type: ..................... (Floating/Fixed/Special Conditions)
Principal Amount:...............................................................
Redemption Date:................................................................
Interest Rate:..................................................................
Special Conditions (if applicable):.............................................
and all its property and interest in and rights to the same and to the interest
accrued thereon for the sum of:
Settlement Amount (in words):...................................................
$..................
TRANSFEROR (SELLER):............................................................
Signature................................. Date:..../..../....
<PAGE>
Page 35
- --------------------------------------------------------------------------------
TRANSFEREE (PURCHASER):.........................................................
Signature:.............................. Date:..../..../..../
TRANSFEREE'S PAYMENT INSTRUCTIONS
Payment of interest and principal should be made (delete (a) or (b) as
appropriate):
(a) by Australian dollar cheque mailed to the address of the Transferee
specified above; or
(b) by telegraphic transfer to the following bank account.
Name of Account.................................................................
Name of Financial Institution...................................................
Branch:.........................................................................
Account No:.....................................................................
Tax File Number.................................................................
I,................................................ a director/secretary of the
Transferee, certify that the persons whose names are set out below hold the
offices set out opposite their respective names, that the signatures appearing
opposite their respective names are the true and correct signature of each
person, and that such persons are, until otherwise notified, authorised to sign
this form and any subsequent Transfer and Acceptance Form relating to any MTN
held by the Transferee.
Director/Secretary of the Transferee:...........................................
Name:.................Office:....................Signature:.....................
Name:.................Office:....................Signature:.....................
NOTES
o The Transferor and the Transferee acknowledge that transfer of the MTN(s)
specified in this Transfer and Acceptance Form shall only take effect on
the entry of the Transferee's name in the Register as the registered owner
of such MTN(s).
o The Transferee agrees to accept the MTN(s) specified in this Transfer and
Acceptance Form subject to the terms and conditions appearing in the
Register in relation to the MTN(s).
o Trustees must sign personally in accordance with relevant authority. The
Application must be completed in the name of the trustee and not in the
name of the trust.
o Where this form is executed by a corporation, it must be executed either
under common seal or under power of attorney (in which case a certified
copy of any such power of attorney must be lodged with this Transfer and
Acceptance Form).
o The Register will be closed for the purpose of determining entitlements to
interest and principal (if applicable) at 5pm (Sydney time) on the seventh
day preceding the relevant date for payment of interest and of principal
(if applicable).
REGISTRAR'S MARKING
<PAGE>
Page 36
- --------------------------------------------------------------------------------
The Registrar certifies solely for the benefit of the Transferee that the
Transferor is inscribed in the Register as the holder of the MTN(s) specified in
this Transfer and Acceptance Form. The Registrar will not register any transfer
of such MTN(s) other than pursuant to this Transfer and Acceptance Form
before...../...../.....(the EXPIRY DATE). This certification is made by the
Registrar in its own right (and not as agent for the Issuer) and is not binding
on the Issuer. This certification expires and will be of no further effect upon
whichever is the earlier of:
(a) registration of this Transfer and Acceptance Form; or
(b) the Expiry Date.
Signature Date:...../...../.....
(Name of Signatory:............................................................)
For the Registrar
<PAGE>
CONFORMED COPY
NEW SOUTH WALES
STAMP DUTY PAID $2
CASE CREDIT AUSTRALIA PTY LIMITED
(Issuer)
_______________________________________
A$ DOMESTIC MTN PROGRAMME
DEED POLL
CONFORMED COPY
_______________________________________
(Guaranteed by Case Credit Corporation)
<PAGE>
- --------------------------------------------------------------------------------
T A B L E O F C O N T E N T S
- --------------------------------------------------------------------------------
<TABLE>
<S> <C>
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 8
2. THE MTNS 9
2.1 Creation of MTNs 9
2.2 Constitution and title 9
2.3 Types 9
2.4 Denomination 9
2.5 Status 10
2.6 Issuer to inform Registrar and Paying Agent 10
3. RIGHTS AND OBLIGATIONS OF MTN HOLDERS 10
3.1 Rights of MTN Holders 10
3.2 Deed poll 10
3.3 Enforcement 10
3.4 MTN Holders bound 11
3.5 Lodgement with Registrar 11
3.6 Incorporation of annexures and Conditions 11
3.7 Paying Agent and Programme Manager 11
4. REGISTER 11
4.1 Establish and maintain 11
4.2 Multiple MTN Holders 12
4.3 Register is paramount 12
4.4 MTN Holder change of name or address 12
4.5 Certified extracts from Register available 13
5. TRANSFERS 13
5.1 MTNs transferable 13
5.2 Method of transfer 13
5.3 Transfer and Acceptance Forms 13
5.4 Effective date of transfers 13
5.5 No fee 13
5.6 Closing of Register 14
5.7 Marking of transfer 14
5.8 Transfer on death, bankruptcy or liquidation of MTN Holder 14
5.9 Destruction 14
5.10 Deceased people 14
6. MTNs LODGED WITH AUSTRACLEAR 14
7. INTEREST ON MTNs 15
</TABLE>
<PAGE>
Page ii
- --------------------------------------------------------------------------------
7.1 Application 15
7.2 Accrual and payment 15
7.3 Notification of Interest Rate and Interest Amount 15
8. REDEMPTION AND PURCHASE OF MTNs 15
8.1 Redemption 15
8.2 Purchase 15
8.3 Cancellation 15
9. MANNER OF PAYMENTS 16
9.1 Payments to MTN Holders 16
9.2 When payments taken to have been made 16
9.3 Good discharge 16
9.4 Business Days 16
9.5 Paying Agent 17
10. TAXATION 17
10.1 Payments made free and clear 17
10.2 Interest withholding tax 17
10.3 Tax file number 17
11. NEGATIVE PLEDGE 17
12. EVENTS OF DEFAULT 18
12.1 Events of Default 18
12.2 Consequences of Event of Default 20
13. LIMIT FOR CLAIMS 20
14. INTEREST ON OVERDUE AMOUNTS 20
14.1 Accrual 20
14.2 Payment 20
15. AMENDMENTS 20
16. WAIVERS, REMEDIES CUMULATIVE 21
17. NOTICES 21
17.1 Notices to the Issuer, Registrar or Paying Agent 21
17.2 Notices to the MTN Holders 22
18. GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS 22
18.1 Governing law and jurisdiction 22
18.2 Service of process 22
<PAGE>
Page iii
- --------------------------------------------------------------------------------
19. CALCULATIONS 22
1. Identification 1
2. Interest 1
3. Other interest details 1
4. Principal 2
5. Special conditions or terms 2
6. Additions, variations or modifications to terms and conditions 2
<PAGE>
EXHIBIT 11
CASE CORPORATION AND CONSOLIDATED SUBSIDIARIES
COMPUTATION OF EARNINGS PER SHARE OF COMMON STOCK
(IN MILLIONS, EXCEPT SHARE AMOUNTS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
---------------------- ----------------------
1997 1996 1997 1996
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
COMPUTATIONS FOR STATEMENTS OF
INCOME
Primary earnings per share of
common stock (average shares
outstanding):
Income before extraordinary
loss...................... $ 78 $ 62 $ 280 $ 247
Extraordinary loss......... -- (11) -- (33)
---------- ---------- ---------- ----------
Net income................. 78 51 280 214
Preferred stock dividends.. (2) (2) (5) (5)
---------- ---------- ---------- ----------
Net income to common....... $ 76 $ 49 $ 275 $ 209
========== ========== ========== ==========
Average shares of common
stock outstanding......... 74,302,625 72,468,238 73,846,807 71,925,021
Incremental common shares
applicable to restricted
common stock based on the
common stock daily average
market price during the
period.................... 168,730 205,629 207,040 209,052
Incremental common shares
applicable to common stock
options based on the
common stock daily average
market price during the
period.................... 1,351,097 1,502,639 1,391,285 1,691,363
---------- ---------- ---------- ----------
Average common stock, as
adjusted.................. 75,822,452 74,176,506 75,445,132 73,825,436
========== ========== ========== ==========
Earnings per share of common
stock (including common
stock equivalents):
Net income after preferred
stock dividends and before
extraordinary loss........ $ 1.00 $ 0.81 $ 3.65 $ 3.28
Extraordinary loss......... -- (0.15) -- (0.45)
---------- ---------- ---------- ----------
Net earnings per share of
common stock.............. $ 1.00 $ 0.66 $ 3.65 $ 2.83
========== ========== ========== ==========
Fully diluted earnings per
share of common stock:
Average shares of common
stock outstanding......... 74,302,625 72,468,238 73,846,807 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......... 169,757 209,757 222,127 209,733
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.................... 1,361,208 1,621,505 1,545,249 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 3,488,711 3,488,711
---------- ---------- ---------- ----------
Average common shares
assuming full dilution.... 79,322,301 77,788,211 79,102,894 77,329,526
========== ========== ========== ==========
Fully diluted earnings per
average share of common
stock, assuming conversion
of all applicable
securities:
Net income before
extraordinary loss........ $ 0.98 $ 0.80 $ 3.54 $ 3.20
Extraordinary loss......... -- (0.14) -- (0.43)
---------- ---------- ---------- ----------
Net earnings per share of
common stock.............. $ 0.98 $ 0.66 $ 3.54 $ 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)
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER
30,
------------
1997 1996
----- -----
<S> <C> <C>
Net Income....................................................... $ 280 $ 214
Add:
Interest....................................................... 126 121
Amortization of capitalized debt expense....................... 1 3
Portion of rentals representative of interest factor........... 8 10
Income tax expense and other taxes on income................... 132 137
Fixed charges of unconsolidated subsidiaries................... 2 4
Extraordinary loss............................................. -- 33
----- -----
Earnings as defined.......................................... $ 549 $ 522
===== =====
Interest......................................................... $ 126 $ 121
Amortization of capitalized debt expense......................... 1 3
Portion of rentals representative of interest factor............. 8 10
Fixed charges of unconsolidated subsidiaries..................... 2 4
----- -----
Fixed charges as defined..................................... $ 137 $ 138
===== =====
Preferred Dividends:
Amount declared................................................ $ 5 $ 5
Gross-up to pre-tax based on effective rates of 32% and 36%,
respectively.................................................. $ 7 $ 8
Ratio of earnings to fixed charges and preferred dividends....... 3.81x 3.58x
===== =====
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from
the company's Form 10Q and is qualified in its entirety by reference to such
financial statements.
</LEGEND>
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> SEP-30-1997
<CASH> 167
<SECURITIES> 0
<RECEIVABLES> 2,066
<ALLOWANCES> 0
<INVENTORY> 1,155
<CURRENT-ASSETS> 3,598
<PP&E> 1,959
<DEPRECIATION> 1,054
<TOTAL-ASSETS> 6,573
<CURRENT-LIABILITIES> 2,832
<BONDS> 1,100
77
0
<COMMON> 1
<OTHER-SE> 2,124
<TOTAL-LIABILITY-AND-EQUITY> 6,573
<SALES> 4,103
<TOTAL-REVENUES> 4,277
<CGS> 3,138
<TOTAL-COSTS> 3,700
<OTHER-EXPENSES> 39
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 126
<INCOME-PRETAX> 412
<INCOME-TAX> 132
<INCOME-CONTINUING> 280
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 280
<EPS-PRIMARY> 3.65
<EPS-DILUTED> 3.54
</TABLE>
