<PAGE>
As filed with the Securities and Exchange Commission on February 3, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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CASE 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, Wisconsin 53404
(414) 636-6011
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
--------------
Richard S. Brennan
General Counsel and Secretary
Case Corporation
700 State Street, Racine, Wisconsin 53404
(414) 636-6011
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Elizabeth A. Raymond Gerard M. Meistrell
Mayer, Brown & Platt Cahill Gordon & Reindel
190 South LaSalle Street 80 Pine Street
Chicago, Illinois 60603-3441 New York, New York 10005
(312) 782-0600 (212) 701-3000
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Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<S> <C> <C> <C> <C>
Proposed Maximum
Amount Proposed Maximum Aggregate
Title of Each Class of to be Offering Price Offering Amount of
Securities to be Registered Registered(1) Per Unit(2) Price(2) Registration Fee
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Debt Securities....................... $400,000,000 100% $400,000,000 $111,200
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</TABLE>
(1) If any Debt Securities are issued at an original issue discount, such
greater amount as shall result in an aggregate offering price to the
public which shall not exceed the amount set forth under Proposed Maximum
Aggregate Offering Price, or if Debt Securities are issued in a foreign or
composite currency, an equivalent amount of such foreign or composite
currency.
(2) Estimated solely for the purpose of calculating the registration fee.
--------------
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is not complete and may be changed. We may +
+not sell these securities until the registration statement filed with the +
+Securities and Exchange Commission is effective. This prospectus is not an +
+offer to sell these securities and it is not soliciting an offer to buy these +
+securities in any state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to Completion, Dated February 3, 1999
PROSPECTUS
Case Corporation
700 State Street
Racine, Wisconsin 53404
(414) 636-6011
$400,000,000
Debt Securities
--------------
Case will provide specific terms of these securities in supplements to this
prospectus. You should read this prospectus and any prospectus supplement
carefully before you invest.
--------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
--------------
The date of this prospectus is , 1999.
<PAGE>
You should rely only on the information contained or incorporated by
reference in this prospectus or any prospectus supplement. Case has not
authorized any other person to provide you with different information. If
anyone provides you with different or inconsistent information, you should not
rely on it. Case is not making an offer to sell these securities in any
jurisdiction where the offer or sale is not permitted. You should assume that
the information appearing in this prospectus or any prospectus supplement, as
well as information Case has previously filed with the Securities and Exchange
Commission (the "SEC") and incorporated by reference, is accurate as of the
date on the front of those documents only. Case's business, financial
condition, results of operations and prospects may have changed since such
dates.
WHERE YOU CAN FIND MORE INFORMATION
Case files reports, proxy statements and other information with the SEC.
Case's SEC filings are available over the Internet at the SEC's web site at
http://www.sec.gov. You may also read and copy any document Case files at the
SEC's public reference room at 450 Fifth Street, N.W., Washington, D.C. 20549.
Please call the SEC at 1-800-SEC-0330 to obtain information on the operation of
the public reference room.
Case has filed a registration statement on Form S-3 (the "Registration
Statement") relating to the debt securities with the SEC under the Securities
Act of 1933 (the "Securities Act"). For further information on Case and the
debt securities, you should refer to the Registration Statement and its
exhibits. This prospectus and any related prospectus supplement summarizes
material provisions of contracts and other documents that Case refers you to.
Since the prospectus and any related prospectus supplement may not contain all
the information that you may find important, you should review the full text of
these documents. Case has included copies of these documents as exhibits to the
Registration Statement or incorporated them by reference into this prospectus.
INCORPORATION OF INFORMATION CASE FILES WITH THE SEC
Case is "incorporating by reference" certain information it files with the
SEC into this prospectus, which means:
. incorporated documents are considered part of this prospectus;
. Case can disclose important information to you by referring you to those
documents; and
. information that Case files with the SEC will automatically update and
supersede this prospectus.
Case incorporates by reference the documents listed below, which Case filed
with the SEC under the Securities Exchange Act of 1934 (the "Exchange Act"):
. Annual Report on Form 10-K for the year ended December 31, 1997,
. Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998,
June 30, 1998 and September 30, 1998, and
. Current Reports on Form 8-K dated June 30, 1998, July 10, 1998, September
9, 1998, December 1, 1998, December 16, 1998, December 22, 1998 and
January 28, 1999.
Case also incorporates by reference each of the following documents that Case
will file with the SEC after the date of the initial filing of the Registration
Statement with the SEC and prior to effectiveness of the Registration Statement
or after the date of this prospectus but before the end of the offering of the
debt securities:
. Reports filed under Sections 13(a) and (c) of the Exchange Act,
. Definitive proxy or information statements filed under Section 14 of the
Exchange Act in connection with any subsequent stockholders' meeting, and
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. Any reports filed under Section 15(d) of the Exchange Act.
You may request a copy of any filings referred to above, at no cost, by
writing or telephoning Case at the following address:
Case Corporation
Attention: Kevin J. Hallagan, Associate General Counsel and Assistant
Secretary
700 State Street
Racine, Wisconsin 53404
Telephone: (414) 636-6011
FORWARD-LOOKING STATEMENTS
Case has made forward-looking statements in this prospectus, the accompanying
prospectus supplement and in the documents incorporated by reference in this
prospectus. Forward-looking statements involve risks and uncertainties that
could cause actual results to differ materially from those in the forward-
looking statements. Forward-looking statements are statements (other than
statements of historical facts) that address activities, events or developments
that Case expects or anticipates will or may occur in the future, including
such items as business strategy and measures to implement strategy, competitive
strengths, goals, expansion and growth of Case's business and operations, plans
and references to future success. Forward-looking statements also include any
other statements that include words such as "anticipate," "believe," "plan,"
"estimate," "expect," "intend" and other similar expressions.
Forward-looking statements are based on certain assumptions and analyses Case
has made in light of its experience and its perception of historical trends,
current conditions, expected future developments and other factors Case
believes are appropriate. Whether actual results and developments will conform
with Case's expectations and predictions is subject to a number of risks and
uncertainties, including, among others, the following:
. 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;
. general economic and capital market conditions;
. the cyclical nature of Case's business;
. foreign currency movements;
. Case's access to credit and Case's customers' 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 and labor relations.
All of the forward-looking statements made in this prospectus and the
accompanying prospectus supplement are qualified by these cautionary
statements, and there can be no assurance that the actual results or
developments Case has anticipated will be realized. Even if the results and
developments in Case's forward-
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looking statements are substantially realized, there is no assurance that they
will have the expected consequences to or effects on Case or its business or
operations.
Further information concerning factors that could significantly impact
expected results is included in (a) the "Managements' Discussion and Analysis
of Financial Condition and Results of Operations" sections of Case's Quarterly
Reports on Form 10-Q as filed with the SEC for the quarters ended March 31,
1998, June 30, 1998 and September 30, 1998, (b) Case's Current Reports on Form
8-K as filed with the SEC, (c) the following sections of Case's Form 10-K
Annual report for 1997, as filed with the SEC: 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 and (d) documents Case files with the SEC under the
Exchange Act that are incorporated by reference in this prospectus.
THE COMPANY
Case Corporation ("Case" or the "Company") is a leading worldwide designer,
manufacturer, marketer and distributor of farm equipment and light- to medium-
sized construction equipment and offers a broad array of financial products and
services.
Case's industrial operations ("Case Industrial") manufacture, market and
distribute a full line of farm equipment and light- to medium-sized
construction equipment on a worldwide basis. Case's market position is
particularly significant in several product categories, including
loader/backhoes, skid steer loaders, large, high-horsepower farm tractors and
self-propelled combines. To facilitate the sale of its products, Case
Industrial offers wholesale financing to its dealers. Wholesale financing
consists primarily of floorplan financing and allows dealers to maintain a
representative inventory of products.
Case's financial services operations ("Case Capital Corporation" or "Case
Capital"), and its operating subsidiaries (including Case Credit Corporation)
and joint ventures, provide and administer financing for the retail purchase or
lease of new and used Case and other agricultural and construction equipment.
Case Capital offers various types of retail financing to end-user customers to
facilitate the sale or lease of Case products in the United States, Canada,
Australia, Europe and Uzbekistan. In addition, Case Capital facilitates and
finances the sale of insurance products to retail customers, provides financing
for Case dealers and rental equipment yards and also provides other retail
financing programs in North America, including a private-label credit card used
by customers in North America to purchase parts, service, rentals and small
wholegoods from Case dealers.
USE OF PROCEEDS
Except as otherwise set forth in the prospectus supplement relating to a
specific issuance of debt securities, the net proceeds to be received by Case
from the sale of the debt securities will be used for general corporate
purposes, including repayment of indebtedness, expansion of existing businesses
and investments in related business opportunities as they may arise. Pending
such use, Case may temporarily invest the net proceeds in short-term
instruments.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for Case is set forth below for the
periods indicated.
<TABLE>
<CAPTION>
Nine Months
Ended Year Ended December 31
September 30, --------------------------------------------------------------------------
1998 1997 1996 1995 1994 1993
------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
3.07x 4.15x 3.96x 3.17x 2.45x 1.18x
</TABLE>
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For the computation of the ratio of earnings to fixed charges, "earnings" has
been calculated by adding income (loss) before taxes, cumulative effect of
changes in accounting principles and extraordinary items, interest expense,
fixed charges of unconsolidated subsidiaries and the portion of rents
representative of an interest factor and amortization of capitalized debt
expense. Fixed charges consist of interest expense, interest capitalized, fixed
charges of unconsolidated subsidiaries, the portion of rents representative of
an interest factor and amortization of capitalized debt expense.
DESCRIPTION OF SECURITIES
The Securities will be issued under an Indenture (the "Indenture"), dated as
of July 31, 1995, between Case and The Bank of New York, as Trustee (the
"Trustee"), a copy of which is incorporated by reference into the Registration
Statement. The following summaries of certain provisions of the Indenture do
not purport to be complete and are subject to, and are qualified in their
entirety by reference to, all the provisions of the Indenture, including the
definitions therein of certain terms. Wherever particular sections or defined
terms of the Indenture are referred to, such sections or defined terms are
incorporated herein by reference. As used in this section or in any description
of the Indenture, references to "Case" or "the Company" refer to Case
Corporation and not its subsidiaries.
The following sets forth certain general terms and provisions of the
Securities. The particular terms of the Securities offered by any prospectus
supplement (the "Offered Securities") will be described in the prospectus
supplement relating to such Offered Securities (the "Applicable Prospectus
Supplement").
General
The Indenture does not limit the amount of Securities that may be issued
thereunder. Securities may be issued under the Indenture from time to time in
one or more series. The Securities will be unsecured obligations of Case. They
will rank equally and ratably with Case's other unsecured obligations.
Unless otherwise indicated in the Applicable Prospectus Supplement,
principal, premium, if any, and interest on the Securities will be payable, and
the transfer of Securities will be registrable, at the office or agency to be
maintained by Case in New York, New York, and at any other office or agency
maintained by Case for such purpose. The Securities will be issued only in
fully registered form without coupons and, unless otherwise indicated in the
Applicable Prospectus Supplement, in denominations of $1,000 or integral
multiples thereof. No service charge will be made for any registration of
transfer or exchange of the Securities, but Case may require payment of a sum
sufficient to cover any tax or other governmental charge imposed in connection
therewith.
The Applicable Prospectus Supplement will describe the following terms of the
Offered Securities:
(1) the title of the Offered Securities;
(2) any limit on the aggregate principal amount of the Offered
Securities;
(3) the Person to whom any interest on the Offered Securities will be
payable, if other than the person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of the Offered Securities is
payable;
(5) the rate or rates (which may be fixed or variable) at which the
Offered Securities will bear interest, if any, or the method by which such
rate or rates will be determined, the date or dates from which any such
interest will accrue, the Interest Payment Dates on which any such interest
will be payable and the Regular Record Date for the interest payable on any
Interest Payment Date;
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(6) the place or places where the principal of and any premium and
interest on the Offered Securities will be payable;
(7) the period or periods within which, the price or prices at which and
the terms and conditions upon which the Offered Securities may be redeemed,
in whole or in part, at the option of Case;
(8) the obligation, if any, of Case to redeem, purchase or repay the
Offered Securities pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the period or periods within which,
the price or prices at which and the terms and conditions upon which the
Offered Securities will be redeemed, purchased or repaid, in whole or in
part, pursuant to such obligation;
(9) if other than denominations of $1,000 or any integral multiple
thereof, the denominations in which the Offered Securities shall be
issuable;
(10) the currency, currencies or currency units in which payment of the
principal of and any premium and interest on any Offered Securities will be
payable if other than the currency of the United States of America;
(11) if the amount of payments of principal of or any premium or interest
on any Offered Securities may be determined with reference to an index or
formula, the manner in which such amounts will be determined;
(12) if the principal of or any premium or interest on any Offered
Securities is to be payable, at the election of Case or a Holder thereof,
in one or more currencies or currency units other than that or those in
which the Offered Securities are stated to be payable, the currency,
currencies or currency units in which payment of the principal of and any
premium and interest on the Offered Securities as to which such election is
made will be payable, and the periods within which and the terms and
conditions upon which such election is to be made;
(13) the applicability, if any, of the provisions described under "--
Defeasance and Covenant Defeasance;"
(14) whether the Offered Securities will be issuable, in whole or in
part, in the form of one or more Book-Entry Securities as described under
"Book-Entry Securities," and, in such case, the depository appointed by the
Company with respect to the Offered Securities and the circumstances under
which the Book-Entry Security may be registered for transfer or exchange or
authenticated and delivered in the name of a Person other than such
depository or its nominee;
(15) if other than the principal amount thereof, the portion of the
principal amount of the Offered Securities which will be payable upon
declaration of acceleration of the Maturity thereof; and
(16) any other terms of the Offered Securities.
The Securities may be issued as Original Issue Discount Securities to be
offered and sold at a substantial discount below their stated principal amount.
Federal income tax consequences and other special considerations applicable to
Original Issue Discount Securities and any Securities treated as having been
issued with original issue discount for Federal income tax purposes will be
described in the Applicable Prospectus Supplement. "Original Issue Discount
Securities" means any Security which provides for an amount less than the
principal amount to be due and payable upon the declaration of acceleration of
the Maturity thereof upon the occurrence of an Event of Default and the
continuation thereof.
The Indenture does not contain covenants or other provisions designed to
afford holders of the Securities protection in the event of a highly leveraged
transaction, change in credit rating or other similar occurrence.
Book-Entry Securities
Unless otherwise provided in the Applicable Prospectus Supplement, the
Securities will be represented by one or more certificates (the "Global
Securities"). The Global Security representing Securities will be deposited
with, or on behalf of, The Depository Trust Company ("DTC"), or other successor
depository
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appointed by Case (DTC or such other depository being the "Depository") and
registered in the name of the Depository or its nominee. Unless otherwise
provided in the Applicable Prospectus Supplement, Securities will not be issued
in definitive form. If the aggregate principal amount of any issue exceeds $200
million, one certificate will be issued with respect to each $200 million of
principal amount and an additional certificate will be issued with respect to
any remaining principal amount of such issue.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participants ("Participants") deposit with DTC. DTC
also facilitates the settlement among Participants of securities transactions,
such as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Direct Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations. DTC is owned by a number of its
Direct Participants and by the New York Stock Exchange, Inc., the American
Stock Exchange, Inc. and the National Association of Securities Dealers, Inc.
Access to DTC's book entry system is also available to others, such as
securities brokers and dealers, banks and trust companies that clear through or
maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The rules applicable to DTC and its
Participants are on file with the SEC.
Upon the issuance by Case of Securities represented by a Global Security,
purchases of Securities under the DTC system must be made by or through Direct
Participants, which will receive a credit for the Securities on DTC's records.
The ownership interest of each actual purchaser of each Security ("Beneficial
Owner") is in turn to be recorded on the Direct and Indirect Participants'
records. Beneficial Owners will not receive written confirmation from DTC of
their purchase, but Beneficial Owners are expected to receive written
confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Participants acting on behalf of Beneficial Owners. Beneficial Owners will
not receive certificates representing their ownership interests in Securities,
except in the event that use of the book-entry system for the Securities is
discontinued. The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
the Global Security.
So long as the Depository for the Global Security, or its nominee, is the
registered owner of the Global Security, the Depository or its nominee, as the
case may be, will be considered the sole owner or holder of the Securities
represented by such Global Security for all purposes under the Indenture.
Except as provided below, owners of beneficial interests in Securities
represented by the Global Security will not be entitled to have Securities
represented by such Global Security registered in their names, will not receive
or be entitled to receive physical delivery of Securities in definitive form
and will not be considered the owners or holders thereof under the Indenture.
To facilitate subsequent transfers, all Securities deposited by Participants
with DTC are registered in the name of DTC's partnership nominee, Cede & Co.
The deposit of Securities with DTC and their registration in the name of Cede &
Co. effect no change in beneficial ownership. DTC has no knowledge of the
actual Beneficial Owners of the Securities; DTC's records reflect only the
identity of the Direct Participants to whose accounts such Securities are
credited, which may or may not be the Beneficial Owners. The Participants will
remain responsible for keeping account of their holdings on behalf of their
customers. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
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Neither DTC nor Cede & Co. will consent or vote with respect to Securities.
Under its usual procedures, DTC mails an Omnibus Proxy to Case as soon as
possible after the record date. The Omnibus Proxy assigns Cede & Co.'s
consenting or voting rights to those Direct Participants to whose accounts the
Securities are credited on the record date (identified in a listing attached to
the Omnibus Proxy).
Payments of principal, of premium, if any, and interest on the Securities
represented by the Global Security registered in the name of DTC or its nominee
will be made by Case through the Trustee under the Indenture or a paying agent
(the "Paying Agent"), which may also be the Trustee under the Indenture, to DTC
or its nominee, as the case may be, as the registered owner of the Global
Security. Neither Case, the Trustee, nor the Paying Agent will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of the Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Case has been advised that DTC, upon receipt of any payment of principal,
premium, if any, and interest in respect of a Global Security, will credit
Direct Participants' accounts on the payable date in accordance with their
respective holdings shown on DTC's records unless DTC has reason to believe
that it will not receive payment on the payable date. Payments by Participants
to Beneficial Owners will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts of customers in
bearer form or registered in "street name," and will be the responsibility of
such Participant and not of DTC, the Paying Agent or Case, subject to any
statutory or regulatory requirements as may be in effect from time to time.
Payment of principal, premium, if any, and interest to DTC is the
responsibility of Case or the Paying Agent, disbursement of such payments to
Direct Participants shall be the responsibility of DTC, and disbursement of
such payments to the Beneficial Owners shall be the responsibility of Direct
and Indirect Participants.
If the Depository with respect to a Global Security is at any time unwilling
or unable to continue as Depository and a successor Depository is not appointed
by Case within 90 days, Case will issue certificated notes in exchange for the
Securities represented by such Global Security.
Case has been informed by DTC that its management is aware that some computer
applications, systems, and the like for processing data ("Systems") that are
dependent upon calendar dates, including dates before, on, and after January 1,
2000, may encounter "Year 2000 problems." Case has also been informed by DTC
that its has informed its Participants and other members of the financial
community (the "Industry") that it has developed and is implementing a program
so that its Systems, as the same relate to the timely payments of distributions
(including principal and income payments) to securityholders, book-entry
deliveries, and settlement of trades within DTC ("DTC Services"), continue to
function appropriately. According to DTC, this program includes a technical
assessment and a remediation plan, each of which is complete. Additionally, DTC
has informed Case that its plan includes a testing phase, which is expected to
be completed within appropriate time frames.
However, Case has been informed by DTC that its ability to perform properly
its services is also dependent upon other parties, including but not limited to
issuers and their agents, as well as third party vendors from whom DTC licenses
software and hardware, and third party vendors on whom DTC relies for
information or the provisions of services, including telecommunications and
electrical utility service providers, among others. DTC has informed Case that
it is contacting (and will continue to contact) third party vendors from whom
DTC acquires services to: (a) impress upon them the importance of such services
being Year 2000 compliant; and (b) determine the extent of their efforts for
Year 2000 remediation (and, as appropriate, testing) of their services. In
addition, DTC has informed Case that it is in the process of developing such
contingency plans as it deems appropriate.
According to DTC, the foregoing information with respect to DTC has been
provided to the Industry for informational purposes only and is not intended to
serve as a representation, warranty, or contract modification of any kind.
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The information in this section concerning the Depository and the
Depository's book-entry system has been obtained from sources that Case
believes to be reliable, but Case takes no responsibility for the accuracy
thereof.
Certain Covenants of Case
Limitations on Secured Funded Debt. The Indenture provides that Case will
not, nor will it permit any Restricted Subsidiary to, incur, issue, assume,
guarantee or create any Secured Funded Debt, without effectively providing that
the Outstanding Securities (together with, if Case shall so determine, any
other Indebtedness of Case or such Restricted Subsidiary then existing or
thereafter created which is not subordinated to the Outstanding Securities)
will be secured equally and ratably with (or prior to) such Secured Funded
Debt.
This limitation is not applicable if, after giving effect to such Secured
Funded Debt, the sum of the aggregate amount of all outstanding Secured Funded
Debt of Case and its Restricted Subsidiaries together with all Attributable
Debt in respect of sale and leaseback transactions relating to a Principal
Property (with the exception of Attributable Debt which is excluded pursuant to
clauses (1) to (6) inclusive described under "--Restrictions Upon Sales and
Leasebacks" below) would not exceed 15% of Consolidated Net Tangible Assets of
Case and its Restricted Subsidiaries.
Furthermore, this limitation on Secured Funded Debt does not apply to, and
there will be excluded from Secured Funded Debt in any computation under such
restriction, Funded Debt secured by:
(1) Liens on property of any corporation existing at the time such
corporation becomes a Subsidiary;
(2) Liens on property existing at the time of acquisition thereof or
incurred within 180 days of the time of acquisition thereof (including,
without limitation, acquisition through merger or consolidation) by Case or
any Restricted Subsidiary;
(3) Liens on property acquired (or constructed) after the date of the
Indenture by Case or any Restricted Subsidiary and created prior to, at the
time of, or within 270 days after such acquisition (including, without
limitation, acquisition through merger or consolidation) (or the completion
of such construction or commencement of commercial operation of such
property, whichever is later) to secure or provide for the payment of all
or any part of the purchase price (or the construction price) thereof;
(4) Liens in favor of Case or any Restricted Subsidiary;
(5) Liens in favor of the United States of America, any State thereof or
the District of Columbia, or any agency, department or other
instrumentality thereof, to secure partial, progress, advance or other
payments pursuant to any contract or provisions of any statute;
(6) Liens incurred or assumed in connection with an issuance of revenue
bonds the interest on which is exempt from Federal income taxation pursuant
to Section 103(b) of the Internal Revenue Code;
(7) Liens securing the performance of any contract or undertaking not
directly or indirectly in connection with the borrowing of money, the
obtaining of advances or credit or the securing of Funded Debt, if made and
continuing in the ordinary course of business;
(8) Liens incurred (no matter when created) in connection with Case's or
a Restricted Subsidiary's engaging in leveraged or single-investor lease
transactions; provided, however, that the instrument creating or evidencing
any borrowings secured by such Lien will provide that such borrowings are
payable solely out of the income and proceeds of the property subject to
such Lien and are not a general obligation of Case or such Restricted
Subsidiary;
(9) Liens under workers' compensation laws, unemployment insurance laws
or similar legislation, or good faith deposits in connection with bids,
tenders, contracts or deposits to secure public or statutory obligations of
Case or any Restricted Subsidiary, or deposits of cash or obligations of
the United States of
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America to secure surety and appeal bonds to which Case or any Restricted
Subsidiary is a party or in lieu of such bonds, or pledges or deposits for
similar purposes in the ordinary course of business, or Liens imposed by
law, such as laborers' or other employees', carriers', warehousemen's,
mechanics', materialmen's and vendors' Liens and Liens arising out of
judgments or awards against Case or any Restricted Subsidiary with respect
to which Case or such Restricted Subsidiary at the time shall be
prosecuting an appeal or proceedings for review and with respect to which
it shall have secured a stay of execution pending such appeal or
proceedings for review, or Liens for taxes not yet subject to penalties for
nonpayment or the amount or validity of which is being in good faith
contested by appropriate proceedings by Case or any Restricted Subsidiary,
as the case may be, or minor survey exceptions, minor encumbrances,
easements or reservations of, or rights of others for, rights-of-way,
sewers, electric lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions or Liens as to the use of real
properties, which Liens, exceptions, encumbrances, easements, reservations,
rights and restrictions do not, in the opinion of Case, in the aggregate
materially detract from the value of said properties or materially impair
their use in the operation of the business of Case and its Restricted
Subsidiaries;
(10) Liens incurred to finance construction, alteration or repair of any
Principal Property and improvements thereto prior to or within 270 days
after completion of such construction, alteration or repair; or
(11) any extension, renewal, refunding or replacement of the foregoing.
"Attributable Debt" means, as to any particular lease under which either Case
or any Restricted Subsidiary is at the time liable as lessee for a term of more
than 12 months and at any date as of which the amount thereof is to be
determined, the total net obligations of the lessee for rental payments during
the remaining term of the lease (excluding any period for which such lease has
been extended or may, at the option of the lessor, be extended) discounted from
the respective due dates thereof to such determination date. The discount rate
is the rate per annum equivalent to the greater of (a) the weighted-average
Yield to Maturity (as defined in the Indenture) of the Outstanding Securities,
such average being weighted by the principal amount of the Outstanding
Securities of each series or, in the case of Original Issue Discount Securities
(as defined in the Indenture), such amount to be the principal amount of such
outstanding Original Issue Discount Securities that would be due and payable as
of the date of such determination upon a declaration of acceleration of the
maturity thereof pursuant to the Indenture and (b) the interest rate inherent
in such lease (as determined in good faith by Case), both to be compounded
semi-annually.
"Consolidated Industrial Tangible Assets" means, at any date, the total
assets appearing on the most recent industrial consolidated balance sheet of
Case and its Restricted Subsidiaries (other than Credit Subsidiaries) as at the
end of the fiscal quarter of Case ending not more than 135 days prior to such
date, prepared in accordance with generally accepted accounting principles,
less Intangible Assets.
"Consolidated Net Tangible Assets" means, at any date, the total assets
appearing on the most recent consolidated balance sheet of Case and its
Restricted Subsidiaries as at the end of the fiscal quarter of Case ending not
more than 135 days prior to such date, prepared in accordance with generally
accepted accounting principles, less (a) all current liabilities (due within
one year) as shown on such balance sheet, (b) applicable reserves, (c)
investments in and advances to Unrestricted Subsidiaries, which are
Subsidiaries that are consolidated on the consolidated balance sheet of Case
and its Subsidiaries, and (d) Intangible Assets and liabilities relating
thereto.
"Credit Subsidiary" means Case Credit Corporation and its Subsidiaries and
any other Subsidiary (which will include, without limitation, any
Securitization Subsidiary) the principal business of which consists of
financing or assisting in financing (a) Case's dealers or distributors or (b)
the acquisition or disposition of products, directly or indirectly, by dealers,
distributors or retail customers. Credit Subsidiaries will not include Case
Wholesale Receivables Inc. and its successors or assigns and any other
Securitization Subsidiary that is a direct or indirect Subsidiary of Case
Corporation and not of Case Credit Corporation.
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"Funded Debt" means (a) any indebtedness of Case or a Restricted Subsidiary
maturing more than 12 months after the time of computation thereof, (b)
guarantees of Funded Debt or of dividends of others (except guarantees in
connection with the sale or discount of accounts receivable, trade acceptances
and other paper arising in the ordinary course of business), (c) in the case of
any Restricted Subsidiary all preferred stock of such Restricted Subsidiary,
and (d) all Capital Lease Obligations (as defined in the Indenture).
"Indebtedness" means, at any date, without duplication, (a) all obligations
for borrowed money of Case or a Restricted Subsidiary of Case or any other
indebtedness of Case or a Restricted Subsidiary of Case, evidenced by bonds,
debentures, notes or other similar instruments, and (b) Funded Debt, except
such obligations and other indebtedness of Case or a Restricted Subsidiary of
Case and Funded Debt, if any, incurred as a part of a Securitization
Transaction.
"Intangible Assets" means, at any date, the value (net of any applicable
reserves) as shown on or reflected in the most recent consolidated balance
sheet of Case and its Restricted Subsidiaries as at the end of the fiscal
quarter of Case ending not more than 135 days prior to such date, prepared in
accordance with generally accepted accounting principles, of: (a) all trade
names, trademarks, licenses, patents, copyrights, service marks, goodwill and
other like intangibles; (b) organizational and development costs; (c) deferred
charges (other than prepaid items, such as insurance, taxes, interest,
commissions, rents, deferred interest waiver, compensation and similar items
and tangible assets being amortized); and (d) unamortized debt discount and
expense, less unamortized premium.
"Liens" means such pledges, mortgages, security interests and other liens on
any Principal Property of Case or a Restricted Subsidiary which secure Secured
Funded Debt.
"Outstanding Securities" means all Securities previously authenticated and
delivered under the Indenture other than (a) Securities that have been canceled
and (b) Securities for whose payment or redemption money in the necessary
amount has been deposited with the Trustee or any Paying Agent. In determining
whether the Holders of the requisite principal amount of the Outstanding
Securities have given any request, demand, authorization, direction, notice,
consent or waiver, Securities owned by Case are deemed not to be outstanding
and special rules under the Indenture are applicable to Original Issue Discount
Securities and Securities not denominated in U.S. Dollars.
"Principal Property" means any manufacturing plant or foundry located in the
United States of America and owned and operated by Case or any Restricted
Subsidiary on or after the date hereof, and any manufacturing equipment (as
defined in the Indenture) owned by Case or any Restricted Subsidiary on or
after the date hereof in such manufacturing plant.
"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 Case or any Subsidiary of Case of
property or services, and monies due thereunder, security interests in the
property and services financed thereby and any and all other related rights.
"Restricted Subsidiary" means each Subsidiary other than Unrestricted
Subsidiaries.
"Secured Funded Debt" means Funded Debt which is secured by any pledge of, or
mortgage, security interest or other lien on, any Principal Property (whether
owned on the date of the Indenture or thereafter acquired or created) of Case
or of a Restricted Subsidiary.
"Securities" means any indebtedness of Case issued under the Indenture.
"Securitization Subsidiary" means a Subsidiary of Case (a) which is formed
for the purpose of effecting one or more Securitization Transactions and
engaging in other activities reasonably related thereto and (b) as to which no
portion of the indebtedness or any other obligations of which (1) is guaranteed
by Case or any
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Restricted Subsidiary, or (2) subjects any property or assets of Case or any
Restricted Subsidiary, directly or indirectly, contingently or otherwise, to
any lien, other than pursuant to representations, warranties and covenants
(including those related to servicing) entered into in the ordinary course of
business in connection with a Securitization Transaction and inter-company
notes and other forms of capital or credit support relating to the transfer or
sale of Receivables or asset-backed securities to such Securitization
Subsidiary and customarily necessary or desirable in connection with such
transactions.
"Securitization Transaction" means any transaction or series of transactions
that have been or may be entered into by Case or any of its Subsidiaries in
connection with or reasonably related to a transaction or series of
transactions in which Case or any of its Subsidiaries may sell, convey or
otherwise transfer to (a) a Securitization Subsidiary or (b) any other Person,
or may grant a security interest in, any Receivables or asset-backed securities
or interest therein (whether such Receivables or securities are then existing
or arising in the future) of Case or any of its Subsidiaries, and any assets
related thereto, including, without limitation, all security interests in the
property or services financed thereby, the proceeds of such Receivables or
asset-backed securities and any other assets which are sold or in respect of
which security interests are granted in connection with securitization
transactions involving such assets.
"Subsidiary" means any corporation of which at least a majority of the
outstanding stock, which under ordinary circumstances (not dependent upon the
happening of a contingency) has voting power to elect a majority of the board
of directors of such corporation, is owned directly or indirectly by Case or by
one or more Subsidiaries of Case, or by Case and one or more Subsidiaries.
"Unrestricted Subsidiary" means each Securitization Subsidiary, Subsidiaries
of each Securitization Subsidiary, and other Subsidiaries designated as
Unrestricted Subsidiaries from time to time by the Board of Directors of Case.
The Board of Directors of Case (a) will not designate as an Unrestricted
Subsidiary any Subsidiary of Case that has a material interest in any Principal
Property, (b) will not continue the designation of any Subsidiary of Case as an
Unrestricted Subsidiary at any time that such Subsidiary has a material
interest in any Principal Property, and (c) will not, nor will it cause or
permit any Restricted Subsidiary to, transfer or otherwise dispose of any
Principal Property to any Unrestricted Subsidiary (unless such Unrestricted
Subsidiary will in connection therewith be redesignated as a Restricted
Subsidiary and any Lien arising in connection with any Indebtedness of such
Unrestricted Subsidiary so redesignated does not extend to such Principal
Property (unless the existence of such Lien would otherwise be permitted under
the Indenture)).
Restrictions Upon Sales and Leasebacks. The Indenture provides that Case will
not, nor will it permit any Restricted Subsidiary to, enter into any
arrangement with any Person providing for the leasing by Case or any Restricted
Subsidiary of any Principal Property of Case or any Restricted Subsidiary,
which Principal Property has been or is to be sold or transferred by Case or
such Restricted Subsidiary to such Person (a "sale and leaseback transaction").
This restriction is not applicable if, after giving effect to the sale and
leaseback transaction, the aggregate amount of all Attributable Debt with
respect to all such sale and leaseback transactions plus all Secured Funded
Debt (with the exception of Funded Debt secured by liens which is excluded
pursuant to clauses (1) to (11) inclusive described under "Limitations on
Secured Funded Debt" above) would not exceed 15% of Consolidated Net Tangible
Assets.
Furthermore, this covenant will not apply to, and there will be excluded from
Attributable Debt in any computation under such restriction or under
"Limitations on Secured Funded Debt" above, Attributable Debt with respect to
any sale and leaseback transaction if:
(1) Case or a Restricted Subsidiary is permitted to create Funded Debt
secured by a Lien pursuant to clauses (1) to (11) inclusive described under
"--Limitations on Secured Funded Debt" above on the Principal Property to
be leased, in an amount equal to the Attributable Debt with respect to such
sale and leaseback transaction, without equally and ratably securing the
Outstanding Securities;
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(2) Case or a Restricted Subsidiary, within 270 days after the sale or
transfer shall have been made, shall apply an amount in cash equal to the
greater of (a) the net proceeds of the sale or transfer of the Principal
Property leased pursuant to such arrangement or (b) the fair market value
of the Principal Property so leased at the time of entering into such
arrangement (as determined by the President, the Chief Financial Officer or
the Treasurer of Case) to the retirement of Secured Funded Debt of Case or
any Restricted Subsidiary (other than Secured Funded Debt owned by Case or
any Restricted Subsidiary);
(3) Case or a Restricted Subsidiary applies the net proceeds of the sale
or transfer of the Principal Property leased pursuant to such transaction
to investment in another Principal Property within 270 days prior or
subsequent to such sale or transfer; provided, however, that this exception
shall apply only if such proceeds invested in such other Principal Property
shall not exceed the total acquisition, repair, alteration and construction
cost of Case or any Restricted Subsidiary in such other Principal Property
less amounts secured by any purchase money or construction mortgages on
such Principal Property;
(4) the effective date of any such arrangement is within 270 days of the
acquisition of the Principal Property (including, without limitation,
acquisition by merger or consolidation) or the completion of construction
and commencement of operation thereof, whichever is later;
(5) the lease in such sale and leaseback transaction is for a period,
including renewals, of not more than three years; and
(6) the sale and leaseback transaction is entered into between Case and a
Restricted Subsidiary or between Restricted Subsidiaries.
Restrictions on Funded Debt of Certain Restricted Subsidiaries. Case will not
permit any Restricted Subsidiary (other than any Credit Subsidiary) to incur,
issue, assume, guarantee or create any Funded Debt. This restriction is not
applicable if, after giving effect to such Funded Debt, the sum of the
aggregate amount of all outstanding Funded Debt of the Restricted Subsidiaries
(other than the Credit Subsidiaries) would not exceed 15% of Consolidated
Industrial Tangible Assets. Also, this restriction will not apply to, and there
will be excluded from, Funded Debt in any computation under this restriction,
(a) Funded Debt of any corporation existing at the time such corporation
becomes a Restricted Subsidiary and (b) Indebtedness among Case and its
Subsidiaries and Indebtedness between Subsidiaries. Furthermore, this
restriction will not prohibit the incurrence of Indebtedness in connection with
any extension, renewal, refinancing, replacement or refunding (including
successive extensions, renewals, refinancings, replacements and refundings), in
whole or in part, of any Indebtedness of the Restricted Subsidiaries (provided
that the principal amount of such Indebtedness being extended, renewed,
refinanced, replaced or refunded is not increased) but any such Indebtedness
shall be included in the computation of Funded Debt under this restriction.
Events of Default
Any one of the following events will constitute an Event of Default under the
Indenture with respect to Securities of any series:
(1) failure to pay any interest on any Security of that series when due,
continued for 30 days;
(2) failure to pay principal of or any premium on any Security of that
series when due;
(3) failure to deposit any sinking fund or other payment, when due, in
respect of any Security of that series;
(4) failure to perform, or breach of, any other covenant or warranty of
Case in the Indenture (other than a covenant included in the Indenture
solely for the benefit of a series of Securities thereunder other than that
series) continued for 60 days after written notice as provided in the
Indenture;
(5) certain events in bankruptcy, insolvency or reorganization of Case;
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(6) a default or defaults under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness (including the Indenture), whether such
Indebtedness exists at the date of the Indenture or shall thereafter be
created, which default or defaults shall have resulted in such
Indebtedness, in an aggregate principal amount exceeding $60 million,
individually or in the aggregate, having been declared due and payable
prior to the date on which it would otherwise have become due and payable,
without such Indebtedness having been discharged, or such acceleration
having been rescinded or annulled, or there having been deposited in trust
a sum of money sufficient to discharge in full such Indebtedness, within a
period of 30 days after there shall have been given, by registered mail, to
Case by the Trustee or to Case and the Trustee by the Holders of at least
25% in aggregate principal amount of the Outstanding Securities of such
series a written notice specifying such default and requiring Case to cause
such Indebtedness to be discharged, cause to be deposited in trust a sum
sufficient to discharge in full such Indebtedness or cause such
acceleration to be rescinded or annulled; or
(7) any other Event of Default provided with respect to Securities of
that series.
If any Event of Default with respect to the Securities of any series at the
time Outstanding occurs and is continuing, either the Trustee or the Holders of
at least 25% in aggregate principal amount of the Outstanding Securities of
that series may declare the principal amount (or, if the Securities of that
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms thereof) of all the Securities of that
series to be due and payable immediately. At any time after a declaration of
acceleration with respect to Securities of any series has been made, but before
a judgment or decree based on acceleration has been obtained, the Holders of a
majority in aggregate principal amount of Outstanding Securities of that series
may, under certain circumstances, rescind and annul such acceleration.
You should review the Applicable Prospectus Supplement relating to any series
of Offered Securities that are Original Issue Discount Securities for the
particular provisions relating to acceleration of the Stated Maturity of a
portion of the principal amount of such series of Original Issue Discount
Securities upon the occurrence of an Event of Default and the continuation
thereof.
The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable indemnity. Subject to such provisions for the
indemnification of the Trustee and to certain other conditions, the Holders of
a majority in aggregate principal amount of the Outstanding Securities of any
series will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Securities of that
series.
No Holder of any series of Securities will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
(a) such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default, (b) the Holders of at least 25% in principal
amount of the Outstanding Securities of that series shall have made written
request, and offered reasonable indemnity, to the Trustee to institute such
proceeding as trustee, and (c) the Trustee shall not have received from the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of that series a direction inconsistent with such request and shall
have failed to institute such proceeding within 60 days. However, such
limitations do not apply to a suit instituted by a Holder of a Security for
enforcement of payment of the principal of and premium, if any, or interest on
such Security on or after the respective due dates expressed in such Security.
Case is required to furnish to the Trustee annually a statement as to the
performance by Case of certain of its obligations under the Indenture and as to
any default in such performance.
Modification and Waiver
Modifications and amendments of the Indenture may be made by Case and the
Trustee with the consent of the Holders of not less than the majority in
aggregate principal amount of the Outstanding Securities of each
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series issued under the Indenture and affected by the modification or
amendment. No such modification or amendment may, without the consent of the
Holders of all Securities affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of
principal of or interest on, any Security;
(2) reduce the principal amount of, or the premium, if any, or (except as
otherwise provided in the Applicable Prospectus Supplement) interest on,
any Security (including, in the case of an Original Issue Discount
Security, the amount payable upon acceleration of the maturity thereof);
(3) change the place or currency of payment of principal of, premium, if
any, or interest on any Security;
(4) impair the right to institute suit for the enforcement of any payment
on any Security on or after the Stated Maturity thereof (or in the case of
redemption, on or after the Redemption Date); or
(5) reduce the percentage in principal amount of Outstanding Securities
of any series, the consent of whose Holders is required for modification or
amendment of the Indenture or for waiver of compliance with certain
provisions of the Indenture or for waiver of certain defaults.
The Holders of at least a majority in aggregate principal amount of the
Outstanding Securities of any series may, on behalf of all Holders of that
series, waive compliance by Case with certain restrictive provisions of the
Indenture. The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series may, on behalf of all
Holders of that series, waive any past default under the Indenture, except a
default in the payment of principal, premium or interest and in respect of a
covenant or provision of the Indenture that cannot be modified or amended
without the consent of the Holder of each Outstanding Security of such series
affected thereby.
Consolidation, Merger and Sale of Assets
Case may not consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person and may not permit any Person to merge into or consolidate with Case or
convey, transfer or lease its properties and assets substantially as an
entirety to Case, unless:
(1) any successor or purchaser is a corporation, partnership, or trust
organized and validly existing under the laws of the United States of
America, any State or the District of Columbia, and any such successor or
purchaser expressly assumes Case's obligations on the Securities under a
supplemental indenture;
(2) immediately after giving effect to the transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing;
(3) if properties or assets of Case become subject to a mortgage, pledge,
lien, security interest or other encumbrance not permitted by the
Indenture, Case or such successor Person, as the case may be, takes such
steps as shall be necessary effectively to secure the Securities equally
and ratably with (or prior to) all indebtedness secured thereby; and
(4) Case has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel stating compliance with these provisions.
Defeasance and Covenant Defeasance
The Indenture provides that, if such provision is made applicable to the
Securities of any series pursuant to Section 3.1 of the Indenture, Case, at
Case's option:
(1) will be discharged from any and all obligations in respect of the
Securities of any series (except for certain obligations to register the
transfer of or exchange of Securities of such series, replace stolen, lost
or mutilated Securities of such series, maintain paying agencies and hold
moneys for payment in trust); or
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(2) need not comply with certain restrictive covenants of the Indenture,
including those described under "--Certain Covenants of Case,"and the
occurrence of an event described in clause (4) under "--Events of Default"
shall no longer be an Event of Default,
in each case, if Case deposits, in trust, with the Trustee money or U.S.
Government Obligations, which, through the payment of interest thereon and
principal thereof in accordance with their terms, will provide money in an
amount sufficient to pay all the principal of, premium and interest, if any, on
the Securities of such series on the dates such payments are due (which may
include one or more redemption dates designated by Case) in accordance with the
terms of the Securities of such series. Such a trust may be established only
if, among other things:
(a) no Event of Default or event which with the giving of notice or lapse
of time, or both, would become an Event of Default under the Indenture
shall have occurred and be continuing on the date of such deposit or on
such later date specified in the Indenture in the case of certain events in
bankruptcy, insolvency or reorganization of Case;
(b) such deposit will not cause the Trustee to have any conflicting
interest with respect to other securities of Case;
(c) such defeasance will not result in a breach or violation of, or
constitute a default under, the Indenture or any other agreement or
instrument to which Case is a party or by which it is bound; and
(d) Case shall have delivered an Opinion of Counsel to the effect that
the Holders will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit or defeasance and will be subject to
Federal income tax in the same manner as if such defeasance had not
occurred, which Opinion of Counsel, in the case of clause (1) above, must
refer to and be based upon a published ruling of the Internal Revenue
Service, a private ruling of the Internal Revenue Service addressed to
Case, or otherwise a change in applicable federal income tax law occurring
after the date of the Indenture.
In the event Case omits to comply with its remaining obligations under the
Indenture after a defeasance of the Indenture with respect to the Securities of
any series as described under clause (2) above and the Securities of such
series are declared due and payable because of the occurrence of any Event of
Default, the amount of money and U.S. Government Obligations on deposit with
the Trustee may be insufficient to pay amounts due on the Securities of such
series at the time of the acceleration resulting from such Event of Default.
However, Case will remain liable in respect of such payments.
Concerning the Trustee
The Bank of New York is Trustee under the Indenture. The Bank of New York is
also trustee under certain indentures of Case Credit Corporation, a subsidiary
of Case. The Trustee performs services for Case and its affiliates in the
ordinary course of business and is a lender bank under certain credit
facilities of Case and its affiliates. Case has issued under the Indenture
$300,000,000 aggregate principal amount of its 7 1/4% Notes due August 1, 2005,
$300,000,000 aggregate principal amount of its 7 1/4% Notes due 2016, and
$300,000,000 aggregate principal amount of its 6 1/4% Notes due December 1,
2003.
PLAN OF DISTRIBUTION
Case may sell the Securities being offered hereby through agents, through
underwriters and through dealers, and Securities may be sold to other
purchasers directly or through agents or through a combination of any such
methods of sale.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
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Offers to purchase Securities may be solicited by agents designated by Case
from time to time. Any such agent, who may be deemed to be an underwriter, as
that term is defined in the Securities Act, involved in the offer or sale of
the Securities in respect of which this prospectus is delivered will be named,
and any commissions payable by Case to such agent set forth, in the Applicable
Prospectus Supplement. Agents may be entitled under agreements that may be
entered into with Case to indemnification by Case against certain liabilities,
including liabilities under the Securities Act. In addition, such agents or
their affiliates may be customers of, extend credit to, engage in transactions
with, or perform services for, Case and/or its affiliates in the ordinary
course of business. Unless otherwise indicated in the Applicable Prospectus
Supplement, any such agent will be acting on a reasonable efforts basis for the
period of its appointment.
If any underwriters are utilized in the sale, Case will enter into an
underwriting agreement with such underwriters at the time of sale to them, and
the names of the underwriters and the terms of the transaction will be set
forth in the Applicable Prospectus Supplement that will be used by the
underwriters to make resales of the Securities in respect of which this
prospectus is delivered to the public. The underwriters may be entitled under
the relevant underwriting agreement to indemnification by Case against certain
liabilities, including liabilities under the Securities Act. In addition, such
underwriters or their affiliates may be customers of, extend credit to, engage
in transactions with, or perform services for, Case and/or its affiliates in
the ordinary course of business.
If dealers are utilized in the sale of the Securities in respect of which
this prospectus is delivered, Case will sell such Securities to such dealers as
principal. The dealers may then resell such Securities to the public at varying
prices to be determined by such dealers at the time of resale. Dealers may be
entitled to indemnification by Case against certain liabilities, including
liabilities under the Securities Act. In addition, such dealers or their
affiliates may be customers of, extend credit to, engage in transactions with,
or perform services for, Case and/or its affiliates in the ordinary course of
business.
Unless otherwise indicated in the Applicable Prospectus Supplement, the
Securities are not proposed to be listed on a securities exchange, and any
underwriters or dealers will not be obligated to make a market in Securities.
Case cannot predict the activity or liquidity of any trading in the Securities.
If so indicated in an Applicable Prospectus Supplement, Case will authorize
underwriters or agents to solicit offers by certain institutions to purchase
Offered Securities from Case pursuant to delayed delivery contracts,
("Contracts") providing for payment and delivery on the date or dates stated in
such prospectus supplement. Each Contract will be for an amount not less than,
and the aggregate principal amount of Offered Securities sold pursuant to
Contracts shall be not less nor more than, the respective amounts stated in
such prospectus supplement. Institutions with whom Contracts, when authorized,
may be made include commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable institutions and other
institutions, but will in all cases be subject to the approval of Case.
Contracts will not be subject to any conditions except (a) the purchase by an
institution of the Offered Securities covered by its Contracts shall not at the
time of delivery be prohibited under the laws of any jurisdiction in the United
States to which such institution is subject, and (b) if the Offered Securities
are being sold to underwriters, Case shall have sold to such underwriters the
total principal amount of the Offered Securities less the principal amount
thereof covered by Contracts. Agents and underwriters will have no
responsibility in respect of the delivery or performance of Contracts.
LEGAL MATTERS
Unless otherwise indicated in a supplement to this prospectus, certain legal
matters in connection with the Securities offered by this prospectus will be
passed upon for Case by Richard S. Brennan, General Counsel and Secretary of
Case, and by Mayer, Brown & Platt, Chicago, Illinois. In addition to his
positions at Case, Mr. Brennan is also a partner at Mayer, Brown & Platt. Mr.
Brennan has advised Case that, at December 31 1998,
17
<PAGE>
he beneficially owned 34,000 shares of common stock of Case and had options to
purchase 10,000 shares of common stock of Case. Unless otherwise indicated in a
supplement to this prospectus, certain legal matters in connection with the
Securities offered by this prospectus will be passed upon for the underwriters,
dealers and agents, if any, by Cahill Gordon & Reindel (a partnership including
a professional corporation), New York, New York.
EXPERTS
Unless otherwise indicated in a supplement to this prospectus, the audited
financial statements and schedules included or incorporated by reference in
this prospectus, any supplement to this prospectus and elsewhere in the
Registration Statement have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their reports with respect thereto, and are
included or incorporated by reference herein in reliance upon the authority of
said firm as experts in giving said reports.
18
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
1(a) Form of Underwriting Agreement
1(b) Form of Distribution Agreement(1)
4 Indenture, dated as of July 31, 1995, between Case Corporation and The
Bank of New York (including form of security) (2)
5 Opinion of Richard S. Brennan, General Counsel and Secretary of Case
Corporation, as to the legality of the securities being registered
12 Computation of Ratio of Earnings to Fixed Charges
23(a) Consent of Arthur Andersen LLP, Independent Public Accountants for
Case Corporation (Milwaukee, Wisconsin)
23(b) Consent of Richard S. Brennan, General Counsel and Secretary of Case
Corporation (contained in Exhibit 5)
24 Powers of attorney (contained on the signature page to this
Registration Statement)
25 Form T-1 Statement of eligibility under the Trust Indenture Act of
1939 of The Bank of New York
</TABLE>
- --------
(1) To be filed as an exhibit to a current report on Form 8-K pursuant to Item
601 of Regulation S-K.
(2) Filed as Exhibit 4(c) to Case's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1995, and incorporated herein by reference.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The table below sets forth the expenses expected to be incurred in connection
with the issuance and distribution of the securities registered hereby, other
than underwriting discounts and commissions. All amounts are estimated except
the SEC registration fee.
<TABLE>
<S> <C>
SEC registration fee............................................ $111,200
Blue sky fees and expenses...................................... 10,000
Printing and engraving costs.................................... 200,000
Legal fees and expenses......................................... 100,000
Accounting fees and expenses.................................... 15,000
Rating Agencies' fees........................................... 75,000
Trustee fees and expenses....................................... 10,000
Miscellaneous................................................... 18,800
--------
Total....................................................... $540,000
========
</TABLE>
Item 15. Indemnification of Directors and Officers.
Article V of the By-Laws of the Company include the following provisions:
Section 1. Right to Indemnification: The Corporation shall indemnify and
hold harmless, to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation
to provide broader indemnification rights than such law permitted the
Corporation to provide prior to such amendment), any person who was or is
made or is threatened to be made a party or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "proceeding"), by reason of the fact that he or she, or a
person for whom he or she is the legal representative, is or was a director
or officer of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust, enterprise or
nonprofit entity, including service with respect to employee benefit plans
maintained or sponsored by the Corporation, whether the basis of such
proceeding is alleged action in an official capacity as a director,
officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent (an "indemnitee"), against all
expense, liability and loss (including attorneys' fees), judgments, fines,
ERISA excise taxes or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such indemnitee in
connection therewith, and such indemnification shall continue as to a
person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of his or her heirs, executors and
administrators. Subject to Section 3 of this Article V, the Corporation
shall be required to indemnify an indemnitee in connection with a
proceeding (or part thereof) initiated by such indemnitee only if the
initiation of such proceeding (or part thereof) by the indemnitee was
authorized by the Board.
Section 2. Prepayment of Expenses: The right to indemnification conferred
hereunder and all related rights shall be contract rights and shall include
the right to be paid by the Corporation the expenses incurred in defending
any such proceeding in advance of its final disposition, such advances to
be paid by the Corporation promptly after the receipt by the Corporation of
a statement or statements from the claimant requesting such advance or
advances from time to time; provided, however, that if the General
Corporation Law of the State of Delaware so requires, the payment of such
expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or
is rendered by such person while a director or officer, including, without
limitation, service
II-1
<PAGE>
to an employee benefit plan) in advance of the final disposition of a
proceeding, shall be made only upon delivery to the Corporation of an
undertaking by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director
or officer is not entitled to be indemnified hereunder or otherwise.
Section 3. Claims: To obtain indemnification under this Article V, a
claimant shall submit to the Corporation a written request, including
therein or therewith such documentation and information as is reasonably
available to the claimant and is reasonably necessary to determine whether
and to what extent the claimant is entitled to indemnification. Upon
written request by a claimant for indemnification pursuant to the first
sentence of this paragraph, a determination, if required by applicable law,
with respect to the claimant's entitlement thereto shall be made as
follows: (i) if requested by the claimant, by Independent Counsel (as
defined below), or (ii) if no request is made by the claimant for a
determination by Independent Counsel, (a) by the Board by a majority vote
of a quorum consisting of Disinterested Directors (as defined below), or
(b) if a quorum of the Board consisting of Disinterested Directors is not
obtainable or, even if obtainable, such quorum of Disinterested Directors
so directs, by Independent Counsel in a written opinion to the Board, a
copy of which shall be delivered to the claimant, or (c) if a quorum of
Disinterested Directors so directs, by the stockholders of the Corporation.
If the determination of entitlement to indemnification is to be made by
Independent Counsel at the request of the claimant, the Independent Counsel
shall be selected by the Board unless there shall have occurred within two
years prior to the date of the commencement of the action, suit or
proceeding for which indemnification is claimed a "Change-in-Control" as
defined in the Severance Agreements (as defined on page 11 of the
definitive proxy statement of the Corporation dated April 17, 1998), in
which case the Independent Counsel shall be selected by the claimant unless
the claimant shall request that such selection be made by the Board. If it
is so determined that the claimant is entitled to indemnification, payment
to the claimant shall be made promptly after such determination.
If a claim hereunder is not paid in full by the Corporation promptly
after a written claim pursuant hereto has been received by the Corporation,
the claimant may at any time thereafter bring suit against the Corporation
to recover the unpaid amount of the claim and, if successful in whole or in
part, the claimant shall also be paid the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that
the claimant has not met the standard of conduct which makes it permissible
under the General Corporation Law of the State of Delaware for the
Corporation to indemnify the claimant for the amount claimed, but the
burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board, Independent
Counsel or stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper
in the circumstances because he or she has met the applicable standard of
conduct set forth in the General Corporation Law of the State of Delaware,
nor an actual determination by the Corporation (including its Board,
Independent Counsel or stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or create
a presumption that the claimant has not met the applicable standard of
conduct.
If a determination shall have been made pursuant to these By-Laws that
the claimant is entitled to indemnification, the Corporation shall be bound
by such determination in any judicial proceeding commenced pursuant to the
preceding paragraph. The Corporation shall be precluded from asserting in
any judicial proceeding commenced pursuant hereto that the indemnification
procedures and presumptions of this Article V are not valid, binding and
enforceable and shall stipulate in such proceeding that the Corporation is
bound by all the provisions thereof.
Section 4. Nonexclusivity of Rights: The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred herein shall not be exclusive of any other
right which any person may have or hereafter acquire under applicable law,
the
II-2
<PAGE>
Certificate of Incorporation, these By-Laws, agreement, vote of
stockholders or Disinterested Directors or otherwise. No repeal or
modification of this Article V shall in any way diminish or adversely
affect the rights of any director, officer, employee or agent of the
Corporation hereunder in respect of any occurrence or matter arising prior
to any such repeal or modification.
Section 5. Other Indemnification: The Corporation's obligation, if any,
to indemnify or advance expenses to any person who was or is serving at its
request as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, enterprise or nonprofit entity shall be
reduced by any amount such person has collected as indemnification from
such other corporation, partnership, joint venture, trust, enterprise or
nonprofit entity.
Section 6. Amendment or Repeal: Any repeal or modification of the
provisions of this Article V shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission
occurring prior to the time of such repeal or modification.
Section 7. Insurance: The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of
the Corporation or another corporation, partnership, joint venture, trust
or other enterprise against any expense, liability or loss, whether or not
the Corporation would have the power to indemnify such person against such
expense, liability or loss under the General Corporation Law of the State
of Delaware. To the extent that the Corporation maintains any policy or
policies providing such insurance, each such director or officer, and each
such agent or employee to which rights to indemnification have been granted
as provided in Section 8 of this Article V, shall be covered by such policy
or policies in accordance with its or their terms to the maximum extent of
the coverage thereunder for any such director, officer, employee or agent.
Reference is made to the Underwriting Agreement filed as Exhibit 1(a) hereto
and any relevant Distribution Agreement filed as an exhibit to a current report
on Form 8-K of the Corporation for a description of the indemnification
arrangements in connection with any underwritten offering of securities
registered hereby.
Case has purchased insurance which purports to insure the officers and
directors of Case, and of its subsidiary companies, against certain liabilities
incurred by them in the discharge of their function as such officers and
directors except for liabilities resulting from their own malfeasance.
Item 16. Exhibits.
A list of exhibits filed herewith is contained in the index to exhibits which
is incorporated herein by reference.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
II-3
<PAGE>
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to section 13 or section
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that
is incorporated by reference in this Registration Statement shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant, pursuant to the provisions described
in Item 15, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission, such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Racine, State of Wisconsin, on February 3,
1999.
Case Corporation
/s/ Jean-Pierre Rosso
By___________________________________
Jean-Pierre Rosso
Chairman and Chief Executive
Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Theodore
R. French, Richard S. Brennan and Peter Hong, and each of them, the true and
lawful attorneys-in-fact and agents of the undersigned, with full power of
substitution and resubstitution, for and in the name, place and stead of the
undersigned, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement as well as
any related registration statement (or amendment thereto) filed pursuant to
Rule 462(b) promulgated under the Securities Act of 1933, as amended, and to
file the same, with all exhibits thereto, and any and all documents in
connection therewith, with the Securities and Exchange Commission, and hereby
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as the undersigned
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or his or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Jean-Pierre Rosso Chairman and Chief Executive February 3, 1999
____________________________________ Officer and Director
Jean-Pierre Rosso (Principal Executive
Officer)
/s/ Theodore R. French President, Financial February 3, 1999
____________________________________ Services, and Chief
Theodore R. French Financial Officer
(Principal Financial and
Accounting Officer)
/s/ Pei-Yuan Chia Director February 3, 1999
____________________________________
Pei-Yuan Chia
/s/ Ronald E. Goldsberry Director February 3, 1999
____________________________________
Ronald E. Goldsberry
/s/ Jeffrey T. Grade Director February 3, 1999
____________________________________
Jeffrey T. Grade
/s/ Thomas R. Hodgson Director February 3, 1999
____________________________________
Thomas R. Hodgson
</TABLE>
II-5
<PAGE>
<TABLE>
<S> <C> <C>
/s/ Katherine M. Hudson Director February 3, 1999
____________________________________
Katherine M. Hudson
/s/ Gerald Rosenfeld Director February 3, 1999
____________________________________
Gerald Rosenfeld
/s/ Theodore R. Tetzlaff Director February 3, 1999
____________________________________
Theodore R. Tetzlaff
</TABLE>
II-6
<PAGE>
Exhibit 1(a)
CASE CORPORATION
Debt Securities
FORM OF
UNDERWRITING AGREEMENT
[Date]
To the Underwriter or
Underwriters named in
the within mentioned
Terms Agreement
Ladies and Gentlemen:
1. Introductory. Case Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell from time to time certain of its debt
securities registered under the registration statement referred to in Section
2(a) (the "Securities"). The Securities will be issued under an indenture, dated
as of July 31, 1995 (the "Indenture"), between the Company and The Bank of New
York, as Trustee (the "Trustee"), in one or more series, which series may vary
as to interest rates, maturities, redemption provisions, selling prices and
other terms, with all such terms for any particular series of the Securities
being determined at the time of sale. Particular series of the Securities, will
be sold pursuant to a Terms Agreement referred to in Section 3, for resale in
accordance with terms of offering determined at the time of sale.
The Securities involved in any such offering are hereinafter referred
to as the "Offered Securities". The firm or firms which agree to purchase the
Offered Securities are hereinafter referred to as the "Underwriters" of such
Offered Securities, and the representative or representatives of the
Underwriters, if any, specified in a Terms Agreement referred to in Section 3
are hereinafter referred to as the "Representatives"; provided, however, that if
the Terms Agreement does not specify any representative of the Underwriters, the
term "Representatives", as used in this Agreement (other than in Sections 2(b),
5(c) and 6 and the second sentence of Section 3), shall mean the Underwriters.
<PAGE>
2. Representations and Warranties.
The Company, as of the date of each Terms Agreement referred to in
Section 3, represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333-[ ]), including a prospectus,
relating to the Securities has been filed with the Securities and Exchange
Commission ("Commission") and has been declared effective under the
Securities Act of 1933, as amended (collectively with all rules and
regulations of the Commission thereunder, the "Act"). Such registration
statement, as amended at the date of any Terms Agreement referred to in
Section 3 (the "Terms Agreement Date"), including all documents
incorporated therein by reference and all exhibits thereto, is hereinafter
referred to as the "Registration Statement," and the prospectus included in
the registration statement No. 333-[ ], as supplemented as contemplated by
Section 3 to reflect the terms of the applicable Offered Securities and the
terms of offering thereof as most recently filed, or transmitted for
filing, with the Commission pursuant to and in accordance with Rule 424(b)
("Rule 424(b)") under the Act including all material and information
incorporated by reference therein, is hereinafter referred to as the
"Prospectus," except that if any revised prospectus shall be provided to
the Underwriters by the Company for use in connection with the offering of
Securities, which differs from the Prospectus most recently filed, or
transmitted for filing, with the Commission (whether or not such revised
prospectus is required to be filed by the Company pursuant to Rule 424(b)),
the term "Prospectus" shall refer to such revised prospectus from and after
the time it is first provided to the Underwriters for such use, including
all material and information incorporated by reference therein. All
references in this Agreement to financial statements and schedules and
other information that is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (and
all other references of like import) shall be deemed to mean and include
all such financial statements and schedules and other information that are
or are deemed to be incorporated by reference in the Registration Statement
or the Prospectus, as the case may be. Any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration
Statement, any
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<PAGE>
preliminary prospectus or the Prospectus shall be deemed to refer to and
include the filing of any document under the Securities Exchange Act of
1934, as amended (together with all rules and regulations of the Commission
thereunder, the "Exchange Act"), after the effective date of the
Registration Statement, or the issue date of any preliminary prospectus or
the Prospectus, as the case may be, and on or prior to the completion of
the applicable offering and which is deemed to be incorporated therein by
reference. Copies of such Registration Statement and the Prospectus
relating thereto, any such amendment or supplement and all documents
incorporated by reference therein which were filed with the Commission on
or prior to the Terms Agreement Date (including one fully executed copy of
the Registration Statement and of each amendment thereto for counsel for
the Underwriters) have been delivered to each of the Representatives. The
Registration Statement and the Prospectus shall be in all material respects
in the form furnished to the Underwriters prior to the Terms Agreement Date
or, to the extent not completed or required to be amended at the Terms
Agreement Date, shall contain only such additional material information and
other material changes as the Company has advised the Underwriters, a
reasonable time prior to the Terms Agreement Date, is to be included or
made therein and as to which the Underwriters have not reasonably objected.
(b) On the effective date of the Registration Statement relating to
the Registered Securities (the "Effective Date"), such registration
statement conformed as to form in all material respects to the requirements
of the Act, the Trust Indenture Act of 1939, as amended (collectively with
all rules and regulations of the Commission thereunder, "Trust Indenture
Act"), and the other applicable rules and regulations of the Commission
("Rules and Regulations") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and on
the date of each Terms Agreement referred to in Section 3, the Prospectus
will conform as to form in all material respects to the requirements of the
Act, the Trust Indenture Act and the Rules and Regulations, and on such
date the Prospectus will not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the
-3-
<PAGE>
statements therein, in light of the circumstances under which they were
made, not misleading, except that the foregoing does not apply to (a)
statements in or omissions from any of such documents based upon written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein and (b) that part of
the Registration Statement that constitutes the Statement of Eligibility on
Form T-1 of the Trustee under the Trust Indenture Act filed as an exhibit
to the Registration Statement (the "Form T-1").
(c) (A) No stop order suspending the effectiveness of the Registration
Statement is in effect and, to the knowledge of the Company, no proceedings
for that purpose are pending before or threatened by the Commission and (B)
each document, if any, filed or to be filed pursuant to the Exchange Act
and incorporated by reference in the Prospectus complied or will comply
when so filed as to form in all material respects with the Exchange Act and
did not, or will not when so filed, contain an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements made, in the light of the circumstances under which they were
made, not misleading, excluding any statement in any such document that
does not constitute part of the Registration Statement or the Prospectus
pursuant to Rule 412 under the Act; provided, however, that this
representation and warranty shall not apply to any statements in or
omissions from any such documents based upon written information furnished
to the Company by any Underwriter, through the Representatives, if any,
specifically for use therein.
(d) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and the Company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or leasing of property or the conduct
of its business requires such qualification, other than any failure to be
so qualified or in good standing as would not singly or in the aggregate
with all such other failures reasonably be expected to have a material
adverse effect on the assets, liabilities, results of operations or
financial condition of the Company and its consolidated subsidiaries (as
-4-
<PAGE>
defined in Rule 1-02(x) of the Commission's Regulation S-X), taken as a
whole (a "Material Adverse Effect").
(e) Each subsidiary (including, if applicable, partnerships of which
the Company is a general partner) of the Company that meets the conditions
for a "significant subsidiary" set forth in Rule 1-02(w) of the
Commission's Regulation S-X (collectively, the "Subsidiaries") is duly
organized and validly existing as a corporation or partnership in good
standing (if applicable) under the laws of the jurisdiction of its
incorporation or formation, has the corporate or other power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified to transact business as a
foreign corporation or partnership and is in good standing (if applicable)
in each jurisdiction in which the conduct of its business or its ownership,
leasing or operation of property requires such qualification, other than
any failure to be so qualified or in good standing as would not singly or
in the aggregate with all such other failures reasonably be expected to
have a Material Adverse Effect.
(f) The Indenture has been duly authorized by the Company and has been
duly qualified under the Trust Indenture Act; the Indenture complies as to
form in all material respects with the requirements of the Trust Indenture
Act; the Indenture has been duly executed and delivered by the Company and
constitutes the valid and legally binding obligation of the Company in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights,
to public policy considerations and to general equity principles; the
Offered Securities have been duly authorized by the Company; and when the
Offered Securities are delivered and paid for pursuant to the Terms
Agreement on the Closing Date (as defined below) or pursuant to Delayed
Delivery Contracts (as hereinafter defined), such Offered Securities will
have been duly executed, authenticated, issued and delivered by the Company
and will conform in all material respects to the description thereof
contained in the Prospectus, and such Offered Securities will constitute
valid and legally binding obligations of the Company, entitled to the
benefits of the Indenture and enforceable against the Company in accordance
with their
-5-
<PAGE>
terms, subject, as to enforcement, to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights, to public policy
considerations and to general equity principles.
(g) The Offered Securities have been approved for listing on the stock
exchange, if any, indicated in the Terms Agreement, subject to notice of
issuance.
(h) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in connection with the
issuance and sale of the Offered Securities by the Company, except such as
are required under the Act and the Trust Indenture Act and such as may be
required under state securities laws.
(i) The execution, delivery and performance of the Indenture, the
Terms Agreement (including the provisions of this Agreement) and any
Delayed Delivery Contracts and the issuance and sale of the Offered
Securities and compliance with the terms and provisions thereof do not and
will not (i) contravene any provision of the certificate of incorporation,
by-laws or other organizational documents of the Company or of any of the
Subsidiaries, or (ii) conflict with or result in a breach or violation of
any of the terms and provisions of, or constitute a default under
(including, without limitation, any event which with notice or lapse of
time, or both, would constitute a default under), or result in the creation
or imposition of any lien, charge or encumbrance upon any assets or
properties of the Company or of any of the Subsidiaries under, any statute,
rule, regulation, order or decree of any governmental agency or body or any
court having jurisdiction over any of them or any of their respective
properties, assets or operations, or any indenture, mortgage, loan
agreement, note or other agreement or instrument for borrowed money, any
guarantee of any agreement or instrument for borrowed money or any lease,
permit, license or other agreement or instrument to which the Company or
any of the Subsidiaries is a party or by which the Company or any of the
Subsidiaries is bound or to which any of the properties, assets or
operations of any of them is subject, other than any such breach,
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violation, default, lien, charge or encumbrance as would not singly or in
the aggregate with all such other breaches, violations, defaults, liens,
charges or encumbrances reasonably be expected to have a Material Adverse
Effect.
(j) The Terms Agreement (including the provisions of this Agreement)
and any Delayed Delivery Contracts have been duly authorized, executed and
delivered by the Company.
(k) The Company and the Subsidiaries have such certificates, permits,
licenses, franchises, consents, approvals, orders, authorizations and
clearances from appropriate governmental agencies and bodies ("Licenses")
as are necessary to own, lease or operate their properties and to conduct
their businesses in the manner described in the Prospectus, and all such
Licenses are valid and in full force and effect, other than any failure to
have any such License or any failure of any such License to be valid and in
full force and effect as would not singly or in the aggregate with all such
other failures have a Material Adverse Effect.
(l) Except as set forth in the Registration Statement and the
Prospectus, the properties, assets and operations of the Company and the
Subsidiaries are in compliance in all material respects with all applicable
Federal, state, local and foreign laws, rules and regulations, orders,
decrees, judgments, permits and licenses relating to public and worker
health and safety and to the protection and clean-up of the natural
environment and activities or conditions related thereto, including,
without limitation, those relating to the generation, handling, disposal,
transportation or release of hazardous materials (collectively,
"Environmental Laws"), other than any such failure to be in compliance as
would not singly or in the aggregate with all such other failures known to
the Company reasonably be expected to have a Material Adverse Effect. With
respect to such properties, assets and operations, including any previously
owned, leased or operated properties, assets or operations, to the best
knowledge of the Company and except as set forth in the Registration
Statement and the Prospectus, there are no past, present or reasonably
anticipated future events, conditions, circumstances, activities,
practices, incidents, actions or plans of the
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<PAGE>
Company or any of the Subsidiaries that may interfere with or prevent
compliance or continued compliance in all material respects with applicable
Environmental Laws, other than any such interference or prevention as would
not singly or in the aggregate with any such other interference or
prevention known to the Company reasonably be expected to have a Material
Adverse Effect.
(m) Except as set forth in the Registration Statement and the
Prospectus, there are no pending actions, suits, proceedings or
investigations against or affecting the Company or any of the Subsidiaries,
or with respect to which the Company or any of the Subsidiaries is
responsible by way of indemnity or otherwise, that would singly or in the
aggregate with all such other actions, suits, investigations or proceedings
reasonably be expected to have a Material Adverse Effect, or reasonably be
expected to have a material adverse effect on the ability of the Company to
perform its obligations under this Agreement, the Indenture, the Offered
Securities or any Delayed Delivery Contract; and, to the best knowledge of
the Company, except as set forth in the Registration Statement and the
Prospectus, no such actions, suits, proceedings or investigations are
threatened.
(n) Since the date of the latest audited financial statements of the
Company included or incorporated by reference in the Prospectus, except as
disclosed in or contemplated by the Prospectus: (A) Neither the Company nor
any Subsidiary has sustained any material loss or interference with its
consolidated business or properties from fire, flood, windstorm, accident
or other calamity (whether or not covered by insurance); (B) There has been
no material increase in the long-term indebtedness of the Company, no
material change in the capital stock of the Company and no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock not consistent with past practice; and (C) There has
not been or become known any Material Adverse Effect, or any development
that could singly or in the aggregate with all other developments
reasonably be expected to result in a Material Adverse Effect.
(o) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof
as described in the
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Prospectus, will not be an "investment company" as defined in the
Investment Company Act of 1940.
(p) Except as set forth in the Registration Statement and the
Prospectus, no labor disturbance by the employees of the Company or any of
the Subsidiaries exists or, to the best knowledge of the Company, is
threatened, that would singly or in the aggregate with all such other labor
disturbances reasonably be expected to have a Material Adverse Effect.
(q) The audited consolidated financial statements of the Company and
related schedules, if any, and notes included or incorporated by reference
in the Registration Statement and the Prospectus comply in all material
respects with the requirements of the Exchange Act and the Rules and
Regulations, were prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved (except as
otherwise stated therein) and fairly present the consolidated financial
condition, results of operations, cash flows, changes in equity and changes
in stockholders' equity of the Company on a consolidated basis at the dates
and for the periods presented. The unaudited consolidated financial
statements of the Company and the related notes included or incorporated by
reference in the Registration Statement and the Prospectus present fairly
the consolidated financial condition, results of operations, cash flows,
changes in equity and changes in stockholders' equity of the Company at the
dates and for the periods to which they relate, subject to year-end audit
adjustments, have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis (except as otherwise
stated therein) and have been prepared on a basis substantially consistent
with that of the audited financial statements referred to above, except as
otherwise stated therein. The historical financial information and
statistical data, if any, set forth or incorporated by reference in the
Prospectus under the captions "Summary Historical and Pro Forma Financial
Data of the Company," "Selected Historical Financial Data of the Company"
and "Capitalization of the Company" or under any similar caption present
fairly the information shown therein and, except as otherwise stated
therein, have been compiled on a basis consistent with that of the audited
consolidated financial statements of the Company included or incorporated
by reference in the
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<PAGE>
Registration Statement and the Prospectus. If pro forma financial
statements with respect to the Company are included or incorporated by
reference in the Registration Statement and the Prospectus, such pro forma
financial statements and other pro forma financial information included in
the Prospectus present fairly the information shown therein, have been
prepared in all material respects in accordance with the Commission's rules
and guidelines with respect to pro forma financial statements, have been
properly compiled on the pro forma basis described therein and, in the
opinion of the Company, the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect
to the transactions or circumstances referred to therein. No pro forma
financial statements or other pro forma financial information with respect
to the Company is required to be included or incorporated by reference in
the Registration Statement and the Prospectus other than those included or
incorporated by reference therein. The Company's ratios of earnings to
fixed charges (actual and, if any, pro forma) included or incorporated by
reference in the Prospectus under the caption "Ratio of Earnings to Fixed
Charges" and in Exhibit 12 to the Registration Statement have been
calculated in compliance with Item 503(d) of Regulation S-K of the
Commission and the supporting schedules included in the Registration
Statement present fairly the information required to be stated therein.
3. Purchase and Offering of Offered Securities. The obligation of
the Underwriters to purchase the Offered Securities will be evidenced by an
agreement substantially in the form of Annex II attached hereto ("Terms
Agreement") at the time the Company determines to sell the Offered Securities.
The Terms Agreement will incorporate by reference the provisions of this
Agreement, except as otherwise provided therein, and will specify the firm or
firms which will be Underwriters, the names of any Representatives, the
principal amount to be purchased by each Underwriter, the purchase price to be
paid by the Underwriters and the terms of the Offered Securities not already
specified in the Indenture, including, but not limited to, interest rate,
maturity, any redemption provisions and any sinking fund requirements and
whether any of the Offered Securities may be sold to institutional investors
pursuant to Delayed Delivery Contracts (as defined below). The Terms Agreement
will also specify the time and date of delivery and payment (such time and date,
or such other time not later
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<PAGE>
than ten full business days thereafter as the Underwriter first named in the
Terms Agreement (the "Lead Underwriter") and the Company agree as the time for
payment and delivery, being herein and in the Terms Agreement referred to as the
"Closing Date"), the place of delivery and payment and any details of the terms
of offering that should be reflected in the prospectus supplement relating to
the offering of the Offered Securities. The obligations of the Underwriters to
purchase the Offered Securities will be several and not joint. It is understood
that the Underwriters propose to offer the Securities for sale as set forth in
the Prospectus.
If the Terms Agreement provides for sales of Offered Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Offered Securities pursuant to delayed delivery
contracts substantially in the form of Annex I attached hereto ("Delayed
Delivery Contracts") with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. On the
Closing Date the Company will pay, as compensation, to the Lead Underwriter for
the accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the principal amount of Offered Securities to be sold pursuant to
Delayed Delivery Contracts ("Contract Securities"). The Underwriters will not
have any responsibility in respect of the validity or the performance of Delayed
Delivery Contracts. If the Company at its option executes and delivers Delayed
Delivery Contracts, the Contract Securities will be deducted from the Offered
Securities to be purchased by the several Underwriters and the aggregate
principal amount of Offered Securities to be purchased by each Underwriter will
be reduced pro rata in proportion to the principal amount of Offered Securities
set forth opposite each Underwriter's name in such Terms Agreement, except to
the extent that the Lead Underwriter determines that such reduction shall be
otherwise than pro rata and so advises the Company. The Company will advise the
Lead Underwriter not later than the business day prior to the Closing Date of
the principal amount of Contract Securities.
If the Terms Agreement does not specify "Book-Entry Only" settlement,
the Offered Securities delivered to the Underwriters on the Closing Date will be
in definitive fully registered form, in such denominations and registered in
such names as the Lead Underwriter requests.
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<PAGE>
If the Terms Agreement specifies "Book-Entry Only" settlement or
otherwise states that the provisions of this paragraph shall apply, the Company
will deliver against payment of the purchase price the Offered Securities in the
form of one or more permanent global Offered Securities in definitive form (the
"Global Securities") deposited with the Trustee as custodian for The Depository
Trust Company ("DTC") or with DTC and registered in the name of a nominee for
DTC. Interests in any permanent global Offered Securities will be held only in
book-entry form through DTC, except in the limited circumstances described in
the Prospectus. Payment for the Offered Securities shall be made by the
Underwriters in Federal (same day) funds by official check or checks or wire
transfer to an account in New York or Chicago previously designated to the Lead
Underwriter by the Company at a bank reasonably acceptable to the Lead
Underwriter, in each case drawn to the order of Case Corporation at the place of
payment specified in the Terms Agreement on the Closing Date, against delivery
to the Trustee as custodian for DTC or to DTC of the Global Securities
representing all of the Offered Securities.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that in connection with each offering of Offered
Securities:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(1) or (2), as applicable
(or, if applicable and if consented to by the Lead Underwriter (which
consent shall not be unreasonably withheld), subparagraph (4) or (5), as
applicable), not later than the second business day following the execution
and delivery of the Terms Agreement or, if applicable, such later time as
may be permitted by Rule 424.
(b) The Company will advise the Lead Underwriter promptly of any
proposal to amend or supplement the Registration Statement (including any
post-effective amendment) or the Prospectus (including any revised
prospectus which the Company proposes for use by the Underwriters in
connection with the offering of the Offered Securities which differs from
the prospectus most recently filed, or transmitted for filing, with the
Commission, whether or not such revised prospectus is required to be filed
pursuant to Rule 424(b)) and will afford the Lead Underwriter a reasonable
opportunity to comment on any such proposed amendment or supplement and,
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<PAGE>
after the date of the Terms Agreement and prior to the later of the
purchase and payment for the Offered Securities on the Closing Date and the
completion of distribution by the Underwriters of the Offered Securities,
will not effect any such amendment or supplementation without the prior
consent of the Lead Underwriter, which consent shall not be unreasonably
withheld or delayed, unless in the opinion of counsel for the Company such
amendment or supplement is required by law; and the Company will also
advise the Lead Underwriter promptly of (i) the filing of any such
amendment or supplement and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement or of any
part thereof, (ii) of the receipt of any comments from the Commission or of
any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for any
additional information and (iii) of the receipt by the Company of any
notification with respect to any suspension of the qualification of the
Offered Securities for offer and sale in any jurisdiction or the initiation
of any proceeding for such purpose; and to use its best efforts to prevent
the issuance of any such stop order or notification and, if issued, to
obtain as soon as possible the withdrawal thereof.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs, condition exists or
information becomes known as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus to
comply with the Act, the Company promptly will notify the Lead Underwriter
of such event, condition or information and will, subject to paragraph (b)
of this Section 4, promptly prepare and file with the Commission, at its
own expense, an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance. Neither the
Lead Underwriter's consent to, nor the Underwriters' delivery of, any such
amendment or supplement shall constitute a waiver of any of the conditions
set forth in Section 5.
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<PAGE>
(d) As soon as practicable, but not later than 16 months, after the
date of each Terms Agreement, the Company will make generally available to
its securityholders an earnings statement complying with Section 11(a) of
the Act and the Rules and Regulations (including at the option of the
Company Rule 158 under the Act).
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus
and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as the Lead Underwriter reasonably
requests.
(f) The Company will arrange for the qualification of the Offered
Securities under the laws of such jurisdictions as the Lead Underwriter
reasonably designates and will continue such qualifications in effect so
long as required for the distribution; provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction.
(g) During the period of five years after the date of any Terms
Agreement, the Company will furnish to the Representatives upon their
request and, upon request, to each of the other Underwriters, if any, as
soon as practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year if the Company prepares such a report;
and the Company will furnish to the Representatives (i) as soon as
available, a copy of each report and any definitive proxy statement of the
Company filed with the Commission under the Exchange Act or mailed to
stockholders, and (ii) from time to time, such other information concerning
the Company as the Lead Underwriter may reasonably request.
(h) The Company will pay all expenses incident to the performance of
its obligations under the Terms Agreement (including the provisions of this
Agreement), including, without limitation, all costs and expenses (i)
incurred in connection with the preparation, issuance, execution and
delivery of the Offered Securities, (ii) incurred in connection with the
preparation, printing and filing under the Act and the Exchange Act, if
applicable,
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<PAGE>
of the Registration Statement, the Prospectus, any preliminary prospectus
and each prospectus supplement (including in each case all exhibits,
amendments and supplements thereto), (iii) in connection with the listing,
if any, of the Offered Securities on any securities exchange set forth in
the Terms Agreement, (iii) incurred in connection with the engagement of
any qualified independent underwriter as may be required by rules and
regulations of the National Association of Securities Dealers, Inc., (iv)
incurred in connection with the rating of the Offered Securities, (v)
relating to the fees and expenses of the Trustee, including the fees and
expenses of counsel to the Trustee and (vi) relating to or in connection
with the duplication costs and delivery of this Agreement, the Terms
Agreement, the Indenture, any supplemental indenture relating thereto, the
agreement among underwriters, each other document or instrument relating to
the underwriting arrangements and any dealer agreements, and will reimburse
the Underwriters (if and to the extent incurred by them) for any filing
fees or other expenses (including fees and disbursements of counsel)
incurred by them in connection with qualification of the Offered Securities
for sale under the laws of such jurisdictions as the Lead Underwriter may
reasonably designate and the printing of memoranda relating thereto, for
any applicable filing fee of the National Association of Securities
Dealers, Inc. relating to the Offered Securities, for any travel expenses
of the Company's officers and employees and any other expenses of the
Company in connection with attending or hosting meetings with prospective
purchasers of Registered Securities and for expenses incurred in
distributing the Prospectus, any preliminary prospectuses, any preliminary
prospectus supplements or any other amendments or supplements to the
Prospectus to the Underwriters.
(i) The Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to United States dollar-
denominated debt securities issued or guaranteed by the Company and having
a maturity of more than one year from the date of issue, or publicly
disclose the intention to make any such offer, sale, pledge, disposal or
filing, without the prior consent of the Lead Underwriter for a period
beginning at the time of execution of the Terms
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<PAGE>
Agreement and ending the number of days after the Closing Date specified
under "Blackout" in the Terms Agreement.
(j) During the period when the Prospectus is required to be
delivered under the Act or the Exchange Act, the Company will file all
documents required to be filed with the Commission pursuant to Section 13,
14 or 15 of the Exchange Act within the time period required by the
Exchange Act.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Offered
Securities will be subject to the accuracy of the representations and warranties
on the part of the Company herein on and as of the Closing Date as if made on
and as of the Closing Date, to the accuracy of the statements of officers of the
Company made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of delivery
thereof, of Arthur Andersen LLP in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter
for each of the other Underwriters containing statements and information of
the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(b) If any amendment to the Registration Statement filed prior to
the Terms Agreement Date has not been declared effective as of the Terms
Agreement Date, such amendment shall have been declared effective not later
than 5:30 p.m. (New York City time) on the Terms Agreement Date. The
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 4(a) of this Agreement. No stop order
suspending the effectiveness of the Registration Statement or of any part
thereof shall have been issued and be continuing in effect and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or any Underwriter, shall be contemplated by the
Commission. No amendment or supplement to the
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<PAGE>
Prospectus shall have been filed to which the Lead Underwriter shall have
objected pursuant to Section 4(b).
(c) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly, the business or
properties of the Company or its subsidiaries which, in the judgment of a
majority in interest of the Underwriters including any Representatives,
materially impairs the investment quality of the Offered Securities; (ii)
any downgrading in the rating of any debt securities or preferred stock of
the Company by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or review
with possible negative implications its rating of any debt securities or
preferred stock of the Company; (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange, or any suspension
of trading of any securities of the Company on any exchange or in the over-
the-counter market; (iv) any banking moratorium declared by U.S. Federal or
New York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war
by Congress or any other substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the Underwriters
including any Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the sale of and payment for the Offered
Securities.
(d) The Representatives shall have received a signed opinion, dated
the Closing Date and addressed to the Underwriters, of Mayer, Brown &
Platt, special counsel for the Company, or other counsel for the Company
reasonably satisfactory to the Representatives, substantially to the effect
that:
(i) The Company is an existing corporation in good standing
under the laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as described
in the Prospectus; and the Company is duly qualified
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to do business as a foreign corporation in good standing in all other
jurisdictions within the United States of America in which its ownership or
leasing of property or the conduct of its business requires such
qualification and where the failure to be so qualified or in good standing
would have a material adverse effect upon its operations or financial
condition;
(ii) The Indenture has been duly authorized, executed and delivered by
the Company, has been duly qualified under the Trust Indenture Act and
constitutes a valid and legally binding obligation of the Company
enforceable against the Company in accordance with its terms, subject, as
to enforceability, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights, to public policy considerations
and to general equity principles; the Indenture complies as to form in all
material respects with the requirements of the Trust Indenture Act; the
Securities have been duly authorized by the Company; the Offered Securities
(other than any Contract Securities) have been duly executed, authenticated
and delivered by the Company; the Offered Securities other than any
Contract Securities constitute, and any Contract Securities, when executed,
authenticated, issued and delivered in the manner provided in the Indenture
and sold pursuant to Delayed Delivery Contracts, will constitute, valid and
legally binding obligations of the Company enforceable against the Company
in accordance with their terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights,
to public policy considerations and to general equity principles; and the
Offered Securities other than any Contract Securities conform, and any
Contract Securities, when so issued and delivered and sold will conform, in
all material respects to the description thereof contained in the
Prospectus;
(iii) No consent, approval, authorization or order of, or filing with,
any governmental agency or
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body or any court is required for the consummation of the transactions
contemplated by the Terms Agreement (including the provisions of this
Agreement) in connection with the issuance or sale of the Offered
Securities by the Company, except such as are required and have been
obtained and made under the Act and the Trust Indenture Act and such as may
be required under state securities laws (it being understood that such
opinion may be limited to such consents, approvals, authorizations, orders
and filings which, in such counsel's experience, are customarily applicable
to transactions of the type contemplated by this Agreement, the Terms
Agreement and the Indenture);
(iv) The execution, delivery and performance of the Indenture, the
Terms Agreement (including the provisions of this Agreement) and any
Delayed Delivery Contracts and the issuance and sale of the Offered
Securities and compliance with the terms and provisions thereof will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any material statute, rule, regulation or order
of any governmental agency or body or any court having jurisdiction over
the Company, any Subsidiary incorporated in the United States of America or
any of their respective properties known to such counsel, or the charter or
by-laws of the Company, or any such Subsidiary; and the Company has full
power and authority to authorize, issue and sell the Offered Securities as
contemplated by the Terms Agreement (including the provisions of this
Agreement);
(v) The Registration Statement has become effective under the Act,
the Prospectus was filed with the Commission pursuant to the subparagraph
of Rule 424(b) specified in such opinion on the date specified therein,
and, to the best of the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement or any part thereof has
been issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Act, and the registration statement
relating to the Securities, as of its effective date, the Prospectus, as of
the date of the Terms Agreement, and any amendment or supplement
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thereto, as of its date, complied as to form in all material respects with
the requirements of the Act, the Trust Indenture Act and the Rules and
Regulations; such counsel have no reason to believe that such registration
statement, as of its effective date, or any amendment thereto, as of its
date, contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, as of the date of
the Terms Agreement or as of such Closing Date, or any amendment or
supplement thereto, as of its date, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; it being understood that such counsel need
express no opinion as to the financial statements or other financial and
statistical data contained in the Registration Statement or the Prospectus;
(vi) The Terms Agreement (including the provisions of this Agreement)
and any Delayed Delivery Contracts have been duly authorized, executed and
delivered by the Company; and
(vii) Each document filed pursuant to the Exchange Act (other than the
financial statements, schedules and other financial and statistical data
included therein, as to which such counsel need express no opinion) and
incorporated or deemed to be incorporated by reference in the Prospectus
complied as to form in all material respects with the applicable
requirements of the Exchange Act when so filed.
Such counsel in rendering such opinion may rely as to certain matters
of fact on certificates of officers of the Company and of public officials;
provided, however, that such certificates shall have been delivered to the
Representatives on or prior to the Closing Date.
(e) The Representatives shall have received a signed opinion, dated
the Closing Date and addressed to the Underwriters, of Richard S. Brennan,
General Counsel
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and Secretary of the Company, substantially to the effect that:
(i) To the best of his knowledge, no consent, approval or
authorization of any third party is required for the consummation of
the transactions contemplated by the Terms Agreement (including the
provisions of this Agreement) in connection with the issuance or sale
of the Offered Securities by the Company, except such as have been
obtained and made and are in full force and effect and such as may be
required under state securities laws;
(ii) The execution, delivery and performance of the Indenture,
the Terms Agreement (including the provisions of this Agreement) and
any Delayed Delivery Contracts and the issuance and sale of the
Offered Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under (including, without
limitation, any event or condition which, with notice or lapse of
time, or both, would constitute a default under), any material
agreement or instrument known to such counsel to which the Company or
any Subsidiary is a party or by which the Company or any Subsidiary is
bound or to which any of the properties of the Company or any
Subsidiary is subject;
(iii) Except as set forth in the Prospectus, there are no
material pending legal proceedings known to such counsel to which the
Company or any Subsidiary is a party or of which the property of the
Company or any Subsidiary is the subject, and to the best knowledge of
such counsel no such proceeding is contemplated; and
(iv) Such counsel has no reason to believe that the registration
statement relating to the Registered Securities, as of its effective
date, or any amendment thereto, as of its date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as of the date of the
Terms Agreement or as of such Closing Date, or any amendment or
supplement thereto, as of its date
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<PAGE>
or as of the Closing Date, contained or contains any untrue statement
of a material fact or omitted or omits to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; it being
understood that such counsel need express no opinion as to the
financial statements or other financial or statistical data contained
in the Registration Statement or the Prospectus.
Such counsel in rendering such opinion may rely as to certain matters
of fact on certificates of officers of the Company and of public officials;
provided, however, that such certificates shall have been delivered to the
Representatives on or prior to the Closing Date.
(f) The Representatives shall have received from Cahill Gordon &
Reindel, counsel for the Underwriters, or other counsel for the
Underwriters reasonably satisfactory to the Company and the
Representatives, such opinion or opinions, dated the Closing Date, with
respect to the incorporation of the Company, the validity of the Offered
Securities, the Indenture, the Delayed Delivery Contracts, if any, the
Registration Statement, the Prospectus and other related matters as the
Representatives may require, and the Company shall have furnished to such
counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(g) The Representatives shall have received a certificate or
certificates, dated the Closing Date, of the President or any Vice
President and a principal financial or accounting officer of the Company in
which such officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of the
Company in this Agreement are true and correct in all material respects,
that the Company has complied in all material respects with all agreements
and satisfied in all material respects all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date, that no
stop order suspending the effectiveness of the Registration Statement or of
any part thereof has been issued and is in effect and, to such officer's
knowledge, no proceedings for that purpose have been instituted or are
contemplated
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<PAGE>
by the Commission and that, subsequent to the date of the most recent
financial statements in the Prospectus, there has been no material adverse
change in the financial position or results of operations of the Company or
its subsidiaries taken as a whole except as set forth in or contemplated by
the Prospectus or as described in such certificate and reasonably
acceptable to the Lead Underwriter.
(h) The Representatives shall have received a letter, dated the
Closing Date, of Arthur Andersen LLP to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (a) of this
Section, except that the specified date referred to in such subsection will
be a date not more than three days prior to the Closing Date for the
purposes of this subsection.
(i) On the Terms Agreement Date (or as otherwise specified in the
Terms Agreement), the Offered Securities shall have been approved for
listing on the securities exchange set forth in the Terms Agreement upon
notice of issuance.
(j) The Company shall have complied with the provisions of Section
4(e) hereof with respect to the furnishing of Prospectuses.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. The Lead Underwriter may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters under this Agreement and the Terms Agreement.
6. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act and Section 20 of the Exchange Act
as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including any information deemed
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<PAGE>
included in the Registration Statement by virtue of Rule 430A under the Act
or Rule 434 under the Act, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission; provided that
(subject to Section 6(d) below) any such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to the fourth sentence of Section 6(c), the fees and disbursements
of counsel chosen by the Lead Underwriter), reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under subparagraph (i) or (ii)
above;
provided, however, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Lead Underwriter expressly for use in the Registration
Statement (or any amendment thereto), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described as such in the Terms Agreement; provided, further,
however, that the foregoing indemnity with
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respect to any untrue statement in or omission from any preliminary prospectus
or preliminary prospectus supplement shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter) from
whom the person asserting any such losses, claims, damages or liabilities
purchased the Offered Securities if (i) the Company has complied with Section
4(b), (c) and (e) of this Agreement, and (ii) a copy of the Prospectus had not
been sent or given to such person at or prior to the written confirmation of the
sale of such Offered Securities to such person if required by the Act and the
Prospectus would have cured the defect giving rise to such loss, claim, damage
or liability. For purposes of the second proviso to the immediately preceding
sentence, the term "Prospectus" shall not be deemed to include the documents
incorporated therein by reference, and no Underwriter shall be obligated to send
or give any supplement or amendment to any document incorporated by reference in
any preliminary prospectus or the Prospectus to any person.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, its officers who signed the Registration Statement,
and each person if any, who controls the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act against any and all loss,
liability, claim, damage and expense described in the indemnity agreement in
Section 6(a), as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Lead Underwriter expressly for use in the Registration Statement (or
any amendment thereto), or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnification may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the case of parties
indemnified pursuant to Section 6(a) above, counsel to the indemnified parties
shall be selected by the Lead Underwriter, and, in the case of parties
indemnified pursuant to Section 6(b) above, counsel to the indemnified parties
shall be selected by the Company. An indemnifying party may participate
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<PAGE>
at its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld or delayed), settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent
includes an unconditional written release in form and substance satisfactory to
the indemnified parties of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, an indemnifying party shall
not be liable for any settlement of the nature contemplated by Section 6(a)(ii)
effected without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent it reasonably
considers such request to be reasonable and (ii) provides written notice to the
indemnified party substantiating
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<PAGE>
the unpaid balance as unreasonable, in each case prior to the date of such
settlement.
(e) If the indemnification provided for in Section 6(a) or (b) hereof
is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Offered
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Offered
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Offered Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 under the Act is used, the corresponding location on the related term
sheet, bear to the aggregate initial public offering price of the Offered
Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
-27-
<PAGE>
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 6(e) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 6(e). The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 6(e) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 6(e), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Offered Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 6(e), each person, if any, who controls
an Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 6(e) are several
in proportion to the principal amount of the Offered Securities set forth
opposite their respective names in Schedule A to the Terms Agreement and not
joint.
7. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered
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<PAGE>
Securities under the Terms Agreement and the aggregate principal amount of
Offered Securities that such defaulting Underwriter or Underwriters agreed but
failed to purchase does not exceed 10% of the total principal amount of Offered
Securities, the Lead Underwriter may make arrangements satisfactory to the
Company for the purchase of such Offered Securities by other persons, including
any of the Underwriters, but if no such arrangements are made by the Closing
Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments under the Terms Agreement (including
the provisions of this Agreement), to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase. If any Underwriter or
Underwriters so default and the aggregate principal amount of Offered Securities
with respect to which such default or defaults occur exceeds 10% of the total
principal amount of Offered Securities and arrangements satisfactory to the Lead
Underwriter and the Company for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, the Terms Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Company, except as provided in Section 8. As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section 7. Nothing herein will relieve a defaulting Underwriter from liability
for its default. The respective commitments of the several Underwriters for the
purposes of this Section 7 shall be determined without regard to reduction in
the respective Underwriters' obligations to purchase the principal amounts of
the Offered Securities set forth opposite their names in the Terms Agreement as
a result of Delayed Delivery Contracts entered into by the Company.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to the Terms Agreement (including the provisions of
this Agreement) will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person of any of them, and will survive
delivery of and payment for the Offered Securities. If the Terms Agreement is
terminated pursuant to Section 7 or if for any reason the purchase of the
Offered Securities by the Underwriters is not consummated, the Company shall
remain
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<PAGE>
responsible for the expenses to be paid or reimbursed by it pursuant to Section
4 and the respective obligations of the Company and the Underwriters pursuant to
Section 6 and the provisions of Section 13 shall remain in effect. If the
purchase of the Offered Securities by the Underwriters is not consummated for
any reason other than solely because of the termination of the Terms Agreement
pursuant to Section 7 or the occurrence of any event specified in clause (iii),
(iv) or (v) of Section 5(c), the Company will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
9. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to them at their address set forth in the Terms Agreement or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at 700
State Street, Racine, Wisconsin 53404, Attention: Treasurer.
10. Successors. The Terms Agreement (including the provisions of
this Agreement) will inure to the benefit of and be binding upon the Company and
such Underwriters as are identified in the Terms Agreement and their respective
successors and the officers and directors and controlling persons referred to in
Section 6, and no other person will have any right or obligation hereunder.
11. Representation of Underwriters. Any Representatives will act for
the several Underwriters in connection with the financing described in the Terms
Agreement, and any action under such Terms Agreement (including the provisions
of this Agreement) taken by the Representatives jointly or by the Lead
Underwriter will be binding upon all the Underwriters.
12. Counterparts. This Agreement and the Terms Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
Agreement.
13. Applicable Law. This Agreement and the Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to principles of conflicts of laws.
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<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return six counterparts hereof.
Very truly yours,
CASE CORPORATION
By:
_____________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written
[NAMES OF UNDERWRITERS]
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<PAGE>
ANNEX I
(Three copies of this Delayed Delivery Contract should
be signed and returned to the address shown below
so as to arrive not later than 9:00 A.M., New York
time, on ..........., 19....*)
DELAYED DELIVERY CONTRACT
-------------------------
[ ], [ ]
CASE CORPORATION
c/o [Insert name of Underwriter]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Case Corporation, a
Delaware corporation ("Company"), and the Company agrees to sell to the
undersigned, [If one delayed closing, insert--as of the date hereof, for
delivery on ____________, 19 ("Delivery Date"),]
$..............
principal amount of the Company's [Insert title of securities] ("Securities"),
offered by the Company's Prospectus dated __________, 19 and a Prospectus
Supplement dated ________________, 19 relating thereto, receipt of copies of
which is hereby acknowledged, at % of the principal amount thereof plus
accrued interest, if any, and on the further terms and conditions set forth in
this Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the principal amounts
set forth below:
- ---------------------
* Insert date that is two full business days prior to Closing Date under
Terms Agreement.
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<PAGE>
Delivery Date Principal Amount
- ------------- ----------------
......................... .............
......................... .............
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase for
delivery on--the--each--Delivery Date shall be made to the Company or its order
by certified or official bank check in --New York--Chicago--Clearing House (next
day) --Federal (same day)-- funds at the office of at .M.
on--the--such--Delivery Date upon delivery to or for the account of the
undersigned of the Securities to be purchased by the undersigned--for delivery
on such Delivery Date--in definitive fully registered form and-- in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to--the--such--Delivery Date.
It is expressly agreed that the provisions for delayed delivery and payment
are for the sole convenience of the undersigned; that the purchase hereunder of
Securities is to be regarded in all respects as a purchase as of the date of
this Contract; that the obligation of the Company to make delivery of and accept
payment for, and the obligation of the undersigned to take delivery of and make
payment for, Securities on--the--each--Delivery Date shall be subject only to
the conditions that (1) investment in the Securities shall not at--the--such--
Delivery Date be prohibited under the laws of any jurisdiction in the United
States to which the undersigned is subject and (2) the Company shall have sold
to the Underwriters the total principal amount of the Securities less the
principal amount thereof covered by this and other similar Contracts. The
undersigned represents that its investment in the Securities is not, as of the
date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject and which governs such investment.
Promptly after completion of the sale to the Underwriters the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by--a copy--copies--of the opinion[s] of
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<PAGE>
counsel for the Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
..............................
(Name of Purchaser)
By
..........................
..............................
(Title of Signatory)
..............................
..............................
(Address of Purchaser)
Accepted, as of the above date.
CASE CORPORATION
By ___________________________
(Insert Title]
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[Form of Terms Agreement]
ANNEX II
CASE CORPORATION
("Company")
Debt Securities
TERMS AGREEMENT
---------------
[ ], 199[ ]
To: The [Representative[s] of the] Underwriters identified herein
Ladies and Gentlemen:
Case Corporation agrees to sell to the several Underwriters named [in
Schedule A hereto] [below] for their respective accounts, on and subject to the
terms and conditions of the document entitled "Case Corporation, Debt
Securities, Underwriting Agreement" dated [ ], [ ] a copy of which is
attached hereto as Annex I ("Underwriting Agreement"), the following securities
("Offered Securities") on the following terms:
Title: [ %] [Floating Rate]--Notes--Debentures--Bonds--Due
.
Principal Amount: $ .
Interest: [ % per annum, from , 19 , payable semiannually
on and , commencing , 19 , to holders of record on
the preceding or , as the case may be.] [Zero coupon.]
[[If Floating Rate Notes, add:]
Interest Rate Basis (Commercial Paper, Prime, LIBOR, Treasury, CD,
Federal Funds, CMT, Other):
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Index Maturity (30, 60, 90 days, 6 months, 1 year, other):
Interest Reset Period (daily, weekly, monthly, quarterly, semiannually,
annually):
Interest Payment Period (monthly, quarterly, semiannually, annually):
Spread:
Spread Multiplier:
Maximum Interest Rate:
Minimum Interest Rate:
Initial Interest Reset Date:
Interest Reset Date:
Interest Determination Dates:
Interest Payment Dates:
Calculation Agent:
Calculation Date:]
Maturity: , .
Optional Redemption:
Sinking Fund:
Listing: [None.] [ Stock Exchange.] [The Nasdaq Stock Market.]
Delayed Delivery Contracts: [None.] [Delivery Date[s] shall be ,
19 . Underwriters' fee % of the principal is amount of the Contract
Securities.]
Purchase Price: % of principal amount, plus accrued interest[, if
any,] from , 19 .
Expected Reoffering Price: % of principal amount, subject to change by
the [Representative[s]] [Underwriters].
Closing: A.M. on , 19 , at the offices of Mayer,
Brown & Platt, 190 S. LaSalle Street, Chicago, Illinois 60603, [[in New York]
[Chicago] Clearing House [Federal (same day)] funds.
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Settlement and Trading: [Physical certificated form.] [Book-Entry Only via
DTC.]
Blackout: Until days after the Closing Date.
[Name[s] and Address[es] of [Representative[s]] [Underwriter[s]]:]
The respective principal amounts of the Offered Securities to be purchased
by each of the Underwriters are set forth opposite their names in Schedule A
hereto.
The provisions of the Underwriting Agreement are incorporated herein by
reference in their entirety and shall be deemed to be a part of this Terms
Agreement to the same extent as if the Underwriting Agreement had been set forth
in full herein. Terms defined in the Underwriting Agreement are used herein as
therein defined.
[The Offered Securities will be made available for checking and
packaging at the office of at least 24 hours prior to the
Closing Date.]
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of [(i)] the following information in the Prospectus
furnished on behalf of each Underwriter: the last paragraph at the bottom of the
prospectus supplement cover page concerning the terms of the offering by the
Underwriters, and the concession and reallowance figures appearing in the
paragraph under the caption "Underwriting" in the prospectus supplement [If
paragraph regarding passive market making is included, insert--and the
information contained in the paragraph under the caption "Underwriting" in the
prospectus supplement] [If applicable, insert--; and (ii) the following
information in the prospectus supplement furnished on behalf of [insert name of
Underwriter]: [insert description of information, such as material relationship
disclosure under the caption "Underwriting" in the prospectus supplement].
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<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon
it will become a binding agreement among the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
CASE CORPORATION
By:
----------------------------
[Insert title]
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<PAGE>
The foregoing Terms Agreement is hereby confirmed and accepted as of the
date first above written.
[If no co-representative, use first confirmation form. If
co-representative, use second.]
[NAMES OF REPRESENTATIVES]
By ____________________________
[Insert title]
[Acting on behalf of itself and as the Representative of the several
Underwriters.]
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<PAGE>
SCHEDULE A
Principal
Underwriter Amount
----------- ---------
$
-----------
Total............................................................ $
===========
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<PAGE>
EXHIBIT 5
[LETTERHEAD OF CASE CORPORATION]
February 3, 1999
Case Corporation
700 State Street
Racine, Wisconsin 53404
Ladies and Gentlemen:
I am the General Counsel and Secretary of Case Corporation, a Delaware
corporation ("Case"), and have advised Case in connection with the proposed sale
of up to $400,000,000 principal amount of Case's debt securities (the
"Securities"). The Securities are to be issued under an Indenture (the
"Indenture") between Case and The Bank of New York, as Trustee, dated as of July
31, 1995, with certain terms of the Securities to be established by certain
officers of Case who have been authorized by its Board of Directors to do so, as
part of the corporate action taken and to be taken (the "Corporate Proceedings")
relating to the issuance of the Securities.
I, or persons under my supervision, have examined or are otherwise familiar with
the Certificate of Incorporation of Case, the By-Laws of Case, the Registration
Statement on Form S-3 (the "Registration Statement") being filed by Case
pursuant to which the Securities are to be registered under the Securities Act
of 1933, as amended, the Corporate Proceedings and such other documents, records
and instruments as I have deemed necessary for the purposes of this opinion.
Based on the foregoing, I am of the opinion that the Indenture is a valid and
binding instrument and that, upon the completion of the Corporate Proceedings
and the authentication, issuance, sale and delivery of the Securities, the
Securities shall be legal, valid and binding obligations of Case, entitled to
the benefits of the Indenture, including such terms as are established pursuant
to the Corporate Proceedings, in accordance with the respective terms thereof
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors' rights
generally from time to time in effect and the general principles of equity).
I hereby consent to the filing of this opinion as an Exhibit to the Registration
Statement and to being named in the related prospectus and any related
prospectus supplement under the caption "Legal Matters" with respect to the
matters stated therein. Further, I hereby consent to the incorporation by
reference of this opinion and consent in any abbreviated registration
statement(s) registering up to an additional 20% aggregate principal amount of
Securities filed subsequent to the date hereof.
Sincerely,
/s/ Richard S. Brennan
Richard S. Brennan
<PAGE>
EXHIBIT 12
----------
Case Corporation
Ratio of Earnings to Fixed Charges*
<TABLE>
<CAPTION>
Year Ended December 31,
----------------------------
9 months 1997 1996 1995 1994 1993
ended
9/30/98
----------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Net 258 403 316 337 131 39
Income
Add:
Interest 170 170 160 174 160 232
Amortization of capitalized debt expense 1 1 4 6
Portion of rentals representative of interest factor 9 12 12 12 11 12
Income tax expense and other taxes on income 120 191 185 81 93 6
Fixed charges of unconsolidated subsidiaries 3 3 3 2 2 2
Extraordinary items (net of taxes) 33 5
Cumulative effect of change in accounting
principles (net of taxes) 9 29
----------------------------------------
Earnings as defined 561 780 713 621 431 291
========================================
Interest 170 170 160 174 160 232
Interest capitalized 2 1 2 3 1
Amortization of capitalized debt expense 1 1 4 6
Portion of rentals representative of interest factor 9 12 12 12 11 12
Fixed charges of unconsolidated subsidiaries 3 3 3 2 2 2
----------------------------------------
Fixed charges as defined 183 188 180 196 176 247
========================================
Ratio of earnings to fixed chareges 3.07 4.15 3.96 3.17 2.45 1.18
*Excludes impact of preferred dividends
</TABLE>
<PAGE>
EXHIBIT 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 20, 1998
included in Case Corporation's Form 10-K for the year ended December 31, 1997
and to all references to our firm included in this registration statement.
ARTHUR ANDERSEN LLP
Milwaukee, Wisconsin
February 1, 1999
<PAGE>
EXHIBIT 25
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
CASE CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 76-0433811
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
700 State Street
Racine, Wisconsin 53404
(Address of principal executive offices) (Zip code)
______________________
Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------
Name Address
<S> <C>
- ----------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 19th day of January, 1999.
THE BANK OF NEW YORK
By: /s/VAN K. BROWN
-------------------------------------
Name: VAN K. BROWN
Title: ASSISTANT VICE PRESIDENT
