EXHIBIT 10(a)
[CONFORMED COPY]
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CASE CREDIT CORPORATION
THE FOREIGN SUBSIDIARY BORROWERS
__________________________
$1,200,000,000
REVOLVING CREDIT AND GUARANTEE AGREEMENT
Dated as of August 23, 1996
_______________________________
THE CO-AGENTS AND
LEAD MANAGERS NAMED HEREIN,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS..................................................... 1
1.1 Defined Terms................................................... 1
1.2 Other Definitional Provisions................................... 27
SECTION 2. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS................ 28
2.1 Revolving Credit Commitments.................................... 28
2.2 Repayment of Revolving Credit Loans; Evidence of Debt........... 28
2.3 Procedure for Revolving Credit Borrowing........................ 29
2.4 Termination or Reduction of Revolving Credit Commitments........ 30
2.5 Borrowings of Revolving Credit Loans and Refunding of Loans..... 30
SECTION 3. AMOUNT AND TERMS OF SWINGLINE COMMITMENTS....................... 32
3.1 Swing Line Commitments.......................................... 32
3.2 Procedure for Swing Line Borrowings; Interest Rate.............. 32
3.3 Repayment of Swing Line Loans; Evidence of Debt................. 33
3.4 Refunding of Swing Line Borrowings.............................. 33
3.5 Participating Interests......................................... 34
3.6 No Swing Line Loans After Notice of Default..................... 35
SECTION 4. AMOUNT AND TERMS OF CAF ADVANCES................................ 35
4.1 CAF Advances.................................................... 35
4.2 Procedure for CAF Advance Borrowing............................. 35
4.3 CAF Advance Payments............................................ 38
4.4 Evidence of Debt................................................ 39
4.5 Certain Restrictions............................................ 39
SECTION 5. AMOUNT AND TERMS OF MULTICURRENCY COMMITMENT.................... 40
5.1 Multicurrency Commitments....................................... 40
5.2 Repayment of Multicurrency Loans; Evidence of Debt.............. 40
5.3 Procedure for Multicurrency Borrowing........................... 41
5.4 Termination or Reduction of Multicurrency Commitments........... 41
SECTION 6. ALTERNATE CURRENCY FACILITIES................................... 41
6.1 Terms of Alternate Currency Facilities.......................... 41
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6.2 Reporting of Alternate Currency Outstandings................... 43
SECTION 7. GENERAL PROVISIONS APPLICABLE TO LOANS......................... 44
7.1 Interest Rates and Payment Dates............................... 44
7.2 Conversion and Continuation Options............................ 44
7.3 Minimum Amounts of Tranches.................................... 45
7.4 Optional and Mandatory Prepayments............................. 45
7.5 Facility Fees; Other Fees...................................... 47
7.6 Computation of Interest and Fees............................... 47
7.7 Inability to Determine Interest Rate........................... 48
7.8 Pro Rata Treatment and Payments................................ 49
7.9 Illegality..................................................... 51
7.10 Requirements of Law............................................ 51
7.11 Taxes.......................................................... 52
7.12 Indemnity...................................................... 54
7.13 Change of Lending Office....................................... 55
7.14 Substitution of Lender......................................... 55
7.15 Use of Proceeds................................................ 56
SECTION 8. REPRESENTATIONS AND WARRANTIES................................. 56
8.1 Financial Condition............................................ 56
8.2 No Change...................................................... 57
8.3 Corporate Existence; Compliance with Law....................... 57
8.4 Corporate Power; Authorization; Enforceable Obligations........ 57
8.5 No Legal Bar................................................... 57
8.6 No Material Litigation......................................... 58
8.7 No Default..................................................... 58
8.8 Taxes.......................................................... 58
8.9 Federal Regulations............................................ 58
8.10 ERISA.......................................................... 58
8.11 Investment Company Act; Other Regulations...................... 59
SECTION 9. CONDITIONS PRECEDENT........................................... 59
9.1 Conditions to Effectiveness of this Agreement.................. 59
9.2 Conditions to Each Extension of Credit......................... 61
SECTION 10. AFFIRMATIVE COVENANTS.......................................... 61
10.1 Financial Statements........................................... 62
10.2 Certificates; Other Information................................ 62
10.3 Payment of Obligations......................................... 63
10.4 Conduct of Business and Maintenance of Existence............... 63
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10.5 Maintenance of Property; Insurance............................. 63
10.6 Inspection of Property; Books and Records; Discussions......... 63
10.7 Notices........................................................ 64
10.8 Foreign Subsidiary Opinions.................................... 64
SECTION 11. NEGATIVE COVENANTS............................................. 64
11.1 Financial Condition Covenants.................................. 65
11.2 Limitation on Liens............................................ 65
11.3 Limitation on Fundamental Changes.............................. 66
11.4 Limitation on Lines of Business................................ 66
SECTION 12. GUARANTEE...................................................... 67
12.1 Guarantee...................................................... 67
12.2 Right of Set-off............................................... 67
12.3 No Subrogation................................................. 68
12.4 Amendments, etc. with respect to the Obligations; Waiver of
Rights......................................................... 68
12.5 Guarantee Absolute and Unconditional........................... 69
12.6 Reinstatement.................................................. 70
12.7 Payments....................................................... 70
SECTION 13. EVENTS OF DEFAULT.............................................. 70
SECTION 14. THE ADMINISTRATIVE AGENT; THE CO-AGENTS
AND LEAD MANAGERS; THE SWING LINE
LENDERS........................................................ 73
14.1 Appointment.................................................... 73
14.2 Delegation of Duties........................................... 73
14.3 Exculpatory Provisions......................................... 74
14.4 Reliance by Administrative Agent............................... 74
14.5 Notice of Default.............................................. 74
14.6 Non-Reliance on Administrative Agent and Other Lender.......... 75
14.7 Indemnification................................................ 75
14.8 Administrative Agent in its Individual Capacity................ 76
14.9 Successor Administrative Agent................................. 76
14.10 The Co-Agents and Lead Managers................................ 76
14.11 Swing Line Lenders............................................. 76
SECTION 15. MISCELLANEOUS.................................................. 77
15.1 Amendments and Waivers......................................... 77
15.2 Notices........................................................ 79
15.3 No Waiver; Cumulative Remedies................................. 80
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15.4 Survival of Representations and Warranties..................... 80
15.5 Payment of Expenses and Taxes.................................. 80
15.6 Successors and Assigns; Participations and Assignments......... 81
15.7 Adjustments; Set-Off........................................... 84
15.8 Loan Conversion/Participations................................. 85
15.9 Counterparts................................................... 86
15.10 Severability................................................... 86
15.11 Integration.................................................... 86
15.12 GOVERNING LAW.................................................. 86
15.13 Submission To Jurisdiction; Waivers............................ 87
15.14 Acknowledgements............................................... 87
15.15 WAIVERS OF JURY TRIAL.......................................... 88
15.16 Power of Attorney.............................................. 88
15.17 Existing Credit Agreement...................................... 88
15.18 Judgment....................................................... 88
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ANNEXES:
A Refunding Mechanics
SCHEDULES:
I Commitments; Addresses
II Foreign Subsidiary Borrowers
III Administrative Schedule
8.4 Consents
11.2 Existing Liens
EXHIBITS:
A Form of Revolving Credit Note
B Form of CAF Advance Request
C Form of CAF Advance Offer
D Form of CAF Advance Confirmation
E Form of Joinder Agreement
F Form of Alternate Currency Facility Addendum
G Form of Assignment and Acceptance
H Form of Opinion of Richard S. Brennan, Esq.
I Form of Opinion of Mayer, Brown & Platt
J Matters to be Covered by Foreign Subsidiary Opinion
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REVOLVING CREDIT AND GUARANTEE AGREEMENT, dated as of August 23, 1996,
among CASE CREDIT CORPORATION, a Delaware corporation (the "U.S. Borrower"),
each FOREIGN SUBSIDIARY BORROWER (as hereinafter defined) (together with the
U.S. Borrower, the "Borrowers"), the Co-Agents named on the signature pages
hereof (the "Co-Agents"), the Lead Managers named on the signature pages hereof
(the "Lead Managers"), the several banks and other financial institutions from
time to time parties hereto (the "Lenders") and THE CHASE MANHATTAN BANK, a New
York banking corporation (as hereinafter defined, the "Administrative Agent"),
as administrative agent for the Lenders hereunder.
W I T N E S S E T H :
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WHEREAS, the U.S. Borrower is party to the Amended and Restated
Revolving Credit Agreement, dated as of November 30, 1995, as amended (the
"Existing Credit Agreement") with the several banks and other financial
institutions party thereto (the "Existing Lenders"), the Co-Agents named therein
and The Chase Manhattan Bank (f/k/a Chemical Bank), as the administrative agent
for the Existing Lenders; and
WHEREAS, in accordance with subsection 15.17, the Existing Credit
Agreement shall terminate on the Effective Date (as hereinafter defined);
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"ABR Loans": Revolving Credit Loans or Swing Line Loans the rate
of interest applicable to which is based upon the Alternate Base Rate.
"Adjusted Aggregate Committed Outstandings": with respect to each
Lender, the Aggregate Committed Outstandings of such Lender, plus the
amount of any participating interests purchased by such Lender pursuant to
subsection 15.8, minus the amount of any participating interests sold by
such Lender pursuant to subsection 15.8.
"Administrative Agent": Chase, together with its affiliates, as
arranger of the Commitments and as administrative agent for the Lenders
under this Agreement and the other Loan Documents, and any successor
thereto appointed pursuant to subsection 14.9.
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"Administrative Schedule": Schedule III, which contains interest rate
definitions and administrative information in respect of each Available
Foreign Currency.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. For purposes of this
definition, "control" of a Person means the power, directly or indirectly,
either to (a) vote 10% or more of the securities or other equity interests
having ordinary voting power for the election of directors or other
governing bodies of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Aggregate Alternate Currency Outstandings": as at any date of
determination with respect to any Lender, an amount in the applicable
Alternate Currencies equal to the aggregate unpaid principal amount of such
Lender's Alternate Currency Loans.
"Aggregate Available Multicurrency Commitments": as at any date of
determination with respect to all Multicurrency Lenders, an amount in U.S.
Dollars equal to the Available Multicurrency Commitments of all
Multicurrency Lenders on such date.
"Aggregate Available Revolving Credit Commitments": as at any date
of determination with respect to all Lenders, an amount in U.S. Dollars
equal to the Available Revolving Credit Commitments of all Lenders on such
date.
"Aggregate Committed Outstandings": as at any date of determination
with respect to any Lender, an amount in U.S. Dollars equal to the sum of
(a) the Aggregate Revolving Credit Outstandings of such Lender on such
date, (b) the U.S. Dollar Equivalent of the Aggregate Multicurrency
Outstandings of such Lender on such date and (c) the U.S. Dollar Equivalent
of the Aggregate Alternate Currency Outstandings of such Lender on such
date.
"Aggregate Multicurrency Outstandings": as at any date of
determination with respect to any Lender, an amount in the applicable
Available Foreign Currencies equal to the aggregate unpaid principal amount
of such Lender's Multicurrency Loans.
"Aggregate Revolving Credit Commitments": the aggregate amount of
the Revolving Credit Commitments of all of the Lenders.
"Aggregate Revolving Credit Outstandings": as at any date of
determination with respect to any Lender, an amount in U.S. Dollars equal
to the sum of (a) the aggregate unpaid principal amount of such Lender's
Revolving Credit Loans on such date and (b) such Lender's Revolving Credit
Commitment Percentage of the aggregate unpaid principal amount of all Swing
Line Loans on such date.
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"Aggregate Total Outstandings": as at any date of determination with
respect to any Lender, an amount in U.S. Dollars equal to the sum of (a)
the Aggregate U.S. Outstandings of such Lender on such date, (b) the U.S.
Dollar Equivalent of the Aggregate Multicurrency Outstandings of such
Lender on such date and (c) the U.S. Dollar Equivalent of the Aggregate
Alternate Currency Outstandings of such Lender on such date.
"Aggregate U.S. Outstandings": as at any date of determination
with respect to any Lender, an amount in U.S. Dollars equal to the sum of
(a) the Aggregate Revolving Credit Outstandings of such Lender on such date
and (b) the aggregate unpaid principal amount of such Lender's CAF Advances
on such date.
"Agreement": this Revolving Credit and Guarantee Agreement, as the
same may be amended, supplemented or otherwise modified from time to time.
"Agreement Currency": as defined in subsection 15.18(b).
"Alternate Base Rate": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of:
(a) the U.S. Prime Rate in effect on such day;
(b) the Base CD Rate in effect on such day plus 1%; and
(c) the Federal Funds Effective Rate in effect on such day plus
1/2 of 1%.
For purposes of this definition, the following terms have the
following meanings:
"Base CD Rate": the sum of (a) the product of (i) the Three-
Month Secondary CD Rate and (ii) a fraction, the numerator of which
is one and the denominator of which is one minus the CD Reserve
Percentage and (b) the CD Assessment Rate.
"CD Assessment Rate": for any day as applied to any calculation
of the Base CD Rate, the annual assessment rate (rounded upwards,
if necessary, to the next 1/100 of 1%) in effect on such day which
is payable by a member of the Bank Insurance Fund maintained by the
Federal Deposit Insurance Corporation (the "FDIC") classified as
well-capitalized and within supervisory subgroup "B" (or a
comparable successor assessment risk classification) within the
meaning of 12 C.F.R. (S) 327.3(d) (or any successor provision) to
the FDIC (or any successor) for the FDIC's (or such successor's)
insuring time deposits at offices of such institution in the United
States.
"CD Reserve Percentage": for any day as applied to any
calculation of the Base CD Rate, that percentage (expressed as a
decimal) which is in effect
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on such day, as prescribed by the Board for determining the maximum
reserve requirement for a Depositary Institution (as defined in
Regulation D of the Board) in respect of new non-personal time
deposits in Dollars having a maturity of 30 days or more.
"Federal Funds Effective Rate": for any day, the weighted
average of the rates per annum on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is
not so published for any day which is a Business Day, the average
of the quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized
standing selected by it.
"Three-Month Secondary CD Rate": for any day, the secondary
market rate for three-month certificates of deposit reported as
being in effect on such day (or, if such day is not a Business Day,
the next preceding Business Day) by the Board through the public
information telephone line of the Federal Reserve Bank of New York
(which rate will, under the current practices of the Board, be
published in Federal Reserve Statistical Release H.15(519) during
the week following such day), or, if such rate is not so reported,
the average (rounded upwards to the nearest 1/100 of 1%) of the
secondary market quotations for three-month certificates of deposit
of major money center banks in New York City received at
approximately 10:00 a.m., New York City time, on such day or next
preceding Business Day by the Administrative Agent from three New
York City negotiable certificate of deposit dealers of recognized
standing selected by it.
"U.S. Prime Rate": the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its
prime rate in effect at its principal office in New York City. The
U.S. Prime Rate is not intended to be the lowest rate of interest
charged by the Administrative Agent in connection with extensions
of credit to debtors.
If for any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is unable
to ascertain the Federal Funds Effective Rate or the Base CD Rate for any
reason, including the inability or failure of the Administrative Agent to
obtain sufficient quotations in accordance with the terms thereof, the
Alternate Base Rate shall be determined without regard to clause (b) or (c)
above, or both, as appropriate, until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to a
change in the U.S. Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate shall be effective as of the opening of
business on the effective day of such change in the U.S. Prime Rate, the
Three-Month Secondary CD Rate or the Federal Funds Effective Rate,
respectively.
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"Alternate Currency": Australian Dollars, Italian Lira, Belgian
Francs and any other available and freely convertible non-U.S. Dollar
currency selected by an Alternate Currency Borrower and approved by the
Administrative Agent.
"Alternate Currency Borrower": each Subsidiary of the U.S. Borrower
organized under the laws of a jurisdiction outside the United States that
the U.S. Borrower designates as an "Alternate Currency Borrower" in an
Alternate Currency Facility Addendum.
"Alternate Currency Facility": any Qualified Credit Facility that the
U.S. Borrower designates as an "Alternate Currency Facility" pursuant to an
Alternate Currency Facility Addendum.
"Alternate Currency Facility Addendum": an Alternate Currency Facility
Addendum received by the Administrative Agent, substantially in the form of
Exhibit F, and conforming to the requirements of Section 6.
"Alternate Currency Facility Agent": with respect to each
Alternate Currency Facility, the Alternate Currency Lender acting as agent
for the Alternate Currency Lenders parties thereto (and, in the case of any
Alternate Currency Facility to which only one Lender is a party, such
Lender).
"Alternate Currency Facility Maximum Borrowing Amount": as defined
in subsection 6.1(b).
"Alternate Currency Lender": any Lender (or, if applicable, any
affiliate, branch or agency thereof) party to an Alternate Currency
Facility.
"Alternate Currency Lender Maximum Borrowing Amount": as defined
in subsection 6.1(b).
"Alternate Currency Loan": any loan made pursuant to an Alternate
Currency Facility.
"Applicable Margin": for each Type of Loan the rate per annum,
determined from time to time based upon the Ratings in effect by two then
nationally recognized rating agencies selected by the U.S. Borrower (at
least one of which shall be Moody's or S&P), set forth under the relevant
column heading below opposite such Ratings:
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Applicable Margin
Ratings (in percentages)
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Multicurrency
Loans and
S&P/Moody's* Eurodollar Loans ABR Loans
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A/A2 0.155% 0.00%
A-/A3 0.170% 0.00%
BBB+/Baa1 0.200% 0.00%
BBB/Baa2 0.250% 0.00%
BBB-/Baa3 0.275% 0.00%
BB+/Ba1 0.425% 0.00%
BB/Ba2 (or lower) 0.575% 0.00%
; provided that in the event that the Ratings of such then nationally
recognized rating agencies do not coincide, the Applicable Margin set forth
opposite the higher of such Ratings will apply; provided, further that, if
at any time an event occurs which results in there being no Ratings or only
one Rating in effect, not later than 30 days after the date on which such
event occurs (if only one Rating or no Rating remains in effect), a new
Applicable Margin will be determined in a manner to be mutually agreed upon
by the Administrative Agent and the U.S. Borrower and consented to by the
Lenders, and until such new Applicable Margin shall be so agreed upon, the
Applicable Margin will be deemed to be the Applicable Margin in effect
immediately prior to the date on which such event occurs.
"Assignee": as defined in subsection 15.6(c).
"Attributable Debt": as to any particular lease under which either
the U.S. Borrower or any Restricted Subsidiary is at the time liable as
lessee for a term of more than 12 months and at any date as of which the
amount thereof is to be determined, the total net obligations of the lessee
for rental payments during the remaining term of the lease (excluding any
period for which such lease has been extended or may, at the option of the
lessor, be extended), discounted from the respective due dates thereof to
such determination date at a rate per annum equivalent to the greater of
(a) the weighted-average Yield to Maturity of the Outstanding Securities,
such average being weighted by the principal amount of the Outstanding
Securities of each series or, in the case of Original Issue Discount
Securities, such amount to be the principal amount of such outstanding
Original Issue Discount Securities that would be due and payable as of the
date of such determination upon a declaration of acceleration of the
maturity thereof pursuant to the Indenture and (b) the interest rate
inherent in such lease (as determined in good faith by the U.S. Borrower),
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* With respect to any nationally recognized rating agency other than Moody's
and S&P, such rating agency's Ratings which the U.S. Borrower and the
Administrative Agent agree are the equivalent of the Ratings of S&P and
Moody's set forth in this column.
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both to be compounded semi-annually. The net total obligations of the
lessee for rental payments under any such lease for any such period shall
be the aggregate amount of the rent payable by the lessee with respect to
such period after excluding amounts required to be paid on account of
maintenance and repairs, services, insurance, taxes, assessments, water
rates and similar charges and contingent rents (such as those based on
sales or monetary inflation). If any lease is terminable by the lessee upon
the payment of a penalty and under the terms of the lease the termination
right is not exercisable until after the determination date and the amount
of such penalty discounted to the determination date as provided above is
less than the net amount of rentals payable after the time as of which such
termination could occur (the "termination time") discounted to the
determination date as provided above, then such discounted penalty amount
shall be used instead of such discounted amount of net rentals payable
after the termination time in calculating the Attributable Debt for such
lease. If any lease is terminable by the lessee upon the payment of a
penalty and such termination right is exercisable on the determination date
and the amount of the net rentals payable under such lease after the
determination date discounted to the determination date as provided above
is greater than the amount of such penalty, the "Attributable Debt" for
such lease as of such determination date shall be equal to the amount of
such penalty.
"Available Foreign Currencies": Deutsche Marks, Pounds Sterling,
French Francs and any other available and freely-convertible non-U.S.
Dollar currency selected by the U.S. Borrower and approved by the
Administrative Agent and the Majority Multicurrency Lenders in the manner
described in subsection 15.1(b).
"Available Multicurrency Commitment": as at any date of determination
with respect to any Multicurrency Lender (after giving effect to the making
and payment of any Revolving Credit Loans required to be made on such date
pursuant to subsection 2.5), an amount in U.S. Dollars equal to the lesser
of (a) the excess, if any, of (i) the amount of such U.S. Dollar Equivalent
of the Multicurrency Lender's Multicurrency Commitment in effect on such
date over (ii) the Aggregate Multicurrency Outstandings of such
Multicurrency Lender on such date and (b) the excess, if any, of (i) the
amount of such Lender's Revolving Credit Commitment in effect on such date
over (ii) the Aggregate Committed Outstandings of such Lender on such date.
"Available Revolving Credit Commitment": as at any date of
determination with respect to any Lender (after giving effect to the making
and payment of any Revolving Credit Loans required to be made on such date
pursuant to subsection 2.5), an amount in U.S. Dollars equal to the excess,
if any, of (a) the amount of such Lender's Revolving Credit Commitment in
effect on such date over (b) the Aggregate Committed Outstandings of such
Lender on such date.
"Available Swing Line Participation Commitment": as at any date of
determination with respect to any Lender, an amount in U.S. Dollars equal
to the excess, if any, of (a) the amount of such Lender's Revolving Credit
Commitment in effect on such date, over (b) the sum of (i) the aggregate
unpaid principal amount of
8
such Lender's Revolving Credit Loans on such date, (ii) the U.S. Dollar
Equivalent of the Aggregate Multicurrency Outstandings of such Lender on
such date and (iii) the U.S. Dollar Equivalent of the Aggregate Alternate
Currency Outstandings of such Lender on such date.
"Bank of America Illinois": Bank of America Illinois, an Illinois
banking corporation.
"Benefitted Lender": as defined in subsection 15.7.
"Board": the Board of Governors of the Federal Reserve System (or any
successor thereto).
"Borrowers": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified in a notice pursuant to
subsection 2.3, 3.2, 4.2 or 5.3 as a date on which a Borrower requests the
Lenders to make Loans hereunder or, with respect to Alternate Currency
Loans, the date on which an Alternate Currency Borrower requests Alternate
Currency Lenders to make Alternate Currency Loans to such Alternate
Currency Borrower pursuant to the Alternate Currency Facility to which such
Alternate Currency Borrower and Alternate Currency Lenders are parties.
"Business Day": (a) when such term is used in respect of a day on
which a Loan in an Available Foreign Currency or Alternate Currency is to
be made, a payment is to be made in respect of such Loan, an Exchange Rate
is to be set in respect of such Available Foreign Currency or Alternate
Currency or any other dealing in such Available Foreign Currency or
Alternate Currency is to be carried out pursuant to this Agreement, such
term shall mean a London Banking Day which is also a day on which banks are
open for general banking business in the city which is the principal
financial center of the country of issuance of such Available Foreign
Currency or Alternate Currency, (b) when such term is used to describe a
day on which a borrowing, payment or interest rate determination is to be
made in respect of a LIBO Rate CAF Advance, such day shall be a London
Banking Day and (c) when such term is used in any context in this Agreement
(including as described in the foregoing clauses (a) and (b)), such term
shall mean a day which, in addition to complying with any applicable
requirements set forth in the foregoing clause (a) and (b), is a day other
than a Saturday, Sunday or other day on which commercial banks in New York
City are authorized or required by law to close.
"CAF Advance": each CAF Advance made pursuant to subsection 4.1.
"CAF Advance Availability Period": the period from and including the
Effective Date to and including the date which is 7 days prior to the
Revolving Credit Termination Date.
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"CAF Advance Confirmation": each confirmation by the U.S. Borrower of
its acceptance of CAF Advance Offers, which confirmation shall be
substantially in the form of Exhibit D and shall be delivered to the
Administrative Agent by facsimile transmission.
"CAF Advance Interest Payment Date": as to each CAF Advance, each
interest payment date specified by the U.S. Borrower for such CAF Advance
in the related CAF Advance Request.
"CAF Advance Maturity Date": as to any CAF Advance, the date
specified by the U.S. Borrower pursuant to paragraph 4.2(d)(ii) in its
acceptance of the related CAF Advance Offer.
"CAF Advance Offer": each offer by a Lender to make CAF Advances
pursuant to a CAF Advance Request, which offer shall contain the
information specified in Exhibit C and shall be delivered to the
Administrative Agent by telephone, immediately confirmed by facsimile
transmission.
"CAF Advance Request": each request by the U.S. Borrower for Lenders
to submit bids to make CAF Advances, which request shall contain the
information in respect of such requested CAF Advances specified in Exhibit
B and shall be delivered to the Administrative Agent in writing, by
facsimile transmission, or by telephone, immediately confirmed by facsimile
transmission.
"Case": Case Corporation, a Delaware corporation.
"Case Credit Australia": Case Credit Australia Pty. Ltd., an
Australian corporation and a wholly-owned Subsidiary of the U.S. Borrower.
"Case Credit Canada": Case Credit Ltd., a company organized under the
laws of the province of Alberta, Canada and a wholly-owned Subsidiary of
the U.S. Borrower.
"Case Credit Debt": as at any date of determination with respect to
the U.S. Borrower and its Consolidated Subsidiaries, an amount equal to the
excess of (a) the sum (without duplication) of (i) all Indebtedness (other
than Indebtedness referred to in clauses (e) through (h) of the definition
thereof) of the U.S. Borrower and its Consolidated Subsidiaries which in
accordance with GAAP would be included as a liability on a consolidated
balance sheet (excluding the notes thereto) of the U.S. Borrower and its
Consolidated Subsidiaries as at such date, (ii) all Guarantee Obligations
of the U.S. Borrower and its Consolidated Subsidiaries in respect of
Indebtedness (other than Indebtedness referred to in clauses (e) through
(h) of the definition thereof) as at such date and (iii) all obligations of
the U.S. Borrower or any of its Subsidiaries incurred in connection with
any securitization or other asset-backed financing of Receivables as at
such date to the extent such obligations are excluded from the definition
of Permitted Securitization Obligations as at such date by operation
10
of the proviso to the definition thereof, minus (b) to the extent included
in clause (a) above, the sum (without duplication) of (A) Guarantee
Obligations of the U.S. Borrower or any of its Subsidiaries in respect of
Indebtedness of Subsidiaries of the U.S. Borrower and (B) Permitted
Securitization Obligations as at such date; provided, that Case Credit Debt
shall in any event exclude Excluded Credit Card Guarantee Obligations.
"Chase": The Chase Manhattan Bank, a New York banking corporation.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Commitments": the collective reference to the Revolving Credit
Commitments and the Multicurrency Commitments.
"Committed Outstandings Percentage": on any date with respect to any
Lender, the percentage which the Adjusted Aggregate Committed Outstandings
of such Lender constitutes of the Adjusted Aggregate Committed Outstandings
of all Lenders.
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with the U.S. Borrower within the meaning of
Section 4001 of ERISA or is part of a group which includes the U.S.
Borrower and which is treated as a single employer under Section 414 of the
Code.
"Consolidated Interest Expense": for any period with respect to the
U.S. Borrower and its Consolidated Subsidiaries, the aggregate amount of
interest expense of the U.S. Borrower and its Consolidated Subsidiaries
during such period determined in accordance with GAAP.
"Consolidated Lease Expense": for any period with respect to the U.S.
Borrower and its Consolidated Subsidiaries, all amounts paid or accrued
during such period under operating leases in respect of real property by
the U.S. Borrower and its Consolidated Subsidiaries.
"Consolidated Net Income": with respect to the U.S. Borrower and its
Consolidated Subsidiaries for any period, consolidated net income of the
U.S. Borrower and its Consolidated Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP.
"Consolidated Net Tangible Assets": as at any date of determination,
the total assets appearing on the most recent consolidated balance sheet of
the U.S. Borrower and its Consolidated Subsidiaries as at the end of the
most recent fiscal quarter of the U.S. Borrower ending not more than 135
days prior to such date, determined in accordance with GAAP, minus the
amount of Intangible Assets included in such consolidated balance sheet as
at the end of such fiscal quarter.
11
"Consolidated Net Worth": as at any date of determination with respect
to the U.S. Borrower, all items which in conformity with GAAP would be
included under shareholders' equity on a consolidated balance sheet of the
U.S. Borrower and its Consolidated Subsidiaries as at such date, plus any
amounts included on such consolidated balance sheet in respect of any
preferred stock of the U.S. Borrower and any Preferred Securities
outstanding from time to time (except to the extent that any such preferred
stock is mandatorily redeemable at the option of the holder thereof or upon
the happening of any contingency on or prior to the Revolving Credit
Termination Date).
"Consolidated Subsidiary": with respect to the U.S. Borrower, any
Subsidiary of the U.S. Borrower which in accordance with GAAP would be
consolidated in the financial statements of the U.S. Borrower.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Conversion Date": any date on which either (a) an Event of Default
under Section 13(f) has occurred or (b) the Commitments shall have been
terminated and/or the Loans shall have been declared immediately due and
payable pursuant to Section 13.
"Conversion Sharing Percentage": on any date with respect to any
Lender and any Loans of such Lender outstanding in any currency other than
U.S. Dollars, the percentage of such Loans such that, after giving effect
to the conversion of such Loans to U.S. Dollars and the purchase and sale
by such Lender of participating interests as contemplated by subsection
15.8, the Committed Outstandings Percentage of such Lender will equal such
Lender's Revolving Credit Commitment Percentage on such date (calculated
immediately prior to giving effect to any termination or expiration of the
Revolving Credit Commitments on the Conversion Date).
"Converted Loans: as defined in subsection 15.8(a).
"Credit Card Program": the private label credit card program
sponsored by the U.S. Borrower that is funded and serviced by NationsBank
of Delaware, N.A., pursuant to which the U.S. Borrower provides full
recourse via a letter of credit issued for the benefit of, or otherwise
guarantees, NationsBank of Delaware, N.A. for unpaid amounts owing by the
cardholders thereunder.
"CSI": Chase Securities Inc.
"Dealer": any Person who has been authorized by Case or any of its
Subsidiaries to sell equipment distributed by Case or any of its
Subsidiaries pursuant to a dealer or distributor agreement or any Person
who has executed a rental yard
12
purchase money agreement or other types of financing agreement with Case or
any of its Subsidiaries.
"Default": any of the events specified in Section 13 prior to the
satisfaction of any requirement for the giving of notice, the lapse of
time, or both, or any other condition.
"Dollars", "U.S. Dollars" and "$": dollars in lawful currency of the
United States of America.
"EBIT": for any period with respect to the U.S. Borrower and its
Consolidated Subsidiaries, Consolidated Net Income of the U.S. Borrower and
its Consolidated Subsidiaries for such period, plus, to the extent deducted
in determining such Consolidated Net Income for such period, the sum of (a)
taxes and (b) interest expense, plus or minus, to the extent deducted or
added, respectively, in determining such Consolidated Net Income for such
period, any income, gain or loss of a non-cash nature.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Effective Date": the date on which the conditions precedent put
forth in Subsection 9.1 shall be satisfied.
"Eurocurrency Liabilities": at any time, all reserve requirements in
effect at such time (including, without limitation, basic, supplemental,
marginal and emergency reserves under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto) dealing
with reserve requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board)
maintained by a member bank of the Federal Reserve System.
"Eurocurrency Rate": with respect to each Interest Period pertaining
to a Multicurrency Loan, the Eurocurrency Rate determined for such Interest
Period and the Available Foreign Currency in which such Multicurrency Loan
is denominated in the manner set forth in the Administrative Schedule.
"Eurodollar Loans": Revolving Credit Loans the rate of interest
applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each Interest Period pertaining to
a Eurodollar Loan, the rate per annum equal to the average (rounded upward
to the nearest 1/16th of 1%) of the respective rates notified to the
Administrative Agent by each of the Reference Lenders as the rate at which
such Reference Lender is offered Dollar deposits at or about 10:00 a.m.,
New York City time, two Business Days prior to the beginning of such
Interest Period,
13
(a) in the interbank eurodollar market where the eurodollar and
foreign currency exchange operations in respect of its Eurodollar
Loans then are being conducted,
(b) for delivery on the first day of such Interest Period,
(c) for the number of days contained therein, and
(d) in an amount comparable to the amount of its Eurodollar Loan
to be outstanding during such Interest Period.
"Event of Default": any of the events specified in Section 13,
provided that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"Exchange Rate": with respect to any non-U.S. Dollar currency on any
date, the rate at which such currency may be exchanged into U.S. Dollars,
as set forth on such date on the relevant Reuters currency page at or about
11:00 A.M., London time, on such date. In the event that such rate does not
appear on any Reuters currency page, the "Exchange Rate" with respect to
such non-U.S. Dollar currency shall be determined by reference to such
other publicly available service for displaying exchange rates as may be
agreed upon by the Administrative Agent and the U.S. Borrower or, in the
absence of such agreement, such "Exchange Rate" shall instead be the
Administrative Agent's spot rate of exchange in the interbank market where
its foreign currency exchange operations in respect of such non-U.S. Dollar
currency are then being conducted, at or about 10:00 A.M., local time, on
such date for the purchase of U.S. Dollars with such non-U.S. Dollar
currency, for delivery two Business Days later; provided, that if at the
time of any such determination, no such spot rate can reasonably be quoted,
the Administrative Agent may use any reasonable method as it deems
applicable to determine such rate, and such determination shall be
conclusive absent manifest error.
"Excluded Credit Card Guarantee Obligations": as at any date of
determination, 93% of the outstanding amount of obligations of cardholders
under the Credit Card Program with respect to which there is recourse to
the U.S. Borrower pursuant to the Credit Card Program.
"Existing Credit Agreement": as defined in the recitals hereto.
"Existing Lenders": as defined in the recitals hereto.
"Existing Revolving Credit Loans": as defined in Part A of Annex A.
"Extension of Credit": as to any Lender, the making of a Loan by such
Lender. It is expressly understood and agreed that the following do not
constitute Extensions of Credit for purposes of this Agreement: (a) the
conversions and
14
continuations of Revolving Credit Loans as or to Eurodollar Loans or ABR
Loans pursuant to subsection 7.2, (b) the continuation of Multicurrency
Loans for additional Interest Periods and (c) the continuation of Alternate
Currency Loans for additional interest periods.
"Facility Fee Rate": the rate per annum, determined from time to time
based upon the Ratings in effect by two then nationally recognized rating
agencies selected by the U.S. Borrower (at least one of which shall be
Moody's or S&P), set forth under the column heading below opposite such
Ratings:
Ratings
------- Facility Fee Rate
S&P/Moody's/*/ (in percentages)
-------------- -----------------
A/A2 (or higher) 0.070%
A-/A3 0.080%
BBB+/Baa1 0.100%
BBB/Baa2 0.125%
BBB-/Baa3 0.175%
BB+/Ba1 0.250%
BB/Ba2 (or lower) 0.300%
; provided that, in the event that the Ratings of such then nationally
recognized rating agencies do not coincide, the Facility Fee Rate set forth
opposite the higher of such Ratings will apply; provided, further, that if
at any time an event occurs which results in there being no Ratings or only
one Rating in effect, not later than 30 days after the date on which such
event occurs (if only one Rating or no Rating remains in effect), a new
Facility Fee Rate will be determined in a manner to be mutually agreed upon
by the Administrative Agent and the U.S. Borrower and consented to by the
Lenders, and until such new Facility Fee Rate shall be so agreed upon, the
Facility Fee Rate will be deemed to be the Facility Fee Rate in effect
immediately prior to the date on which such event occurs.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"Fixed Charge Coverage Ratio": for any period, the ratio of (a) EBIT
of the U.S. Borrower and its Consolidated Subsidiaries for such period plus
Consolidated Lease Expense (but only to the extent the amount of such
Consolidated Lease Expense was deducted in calculating EBIT) of the U.S.
Borrower and its Consolidated Subsidiaries for such period to (b) the sum
of (i) Consolidated Interest Expense for
- ----------------
/*/ With respect to any nationally recognized rating agency other than Moody's
and S&P, such rating agency's Ratings which the U.S. Borrower and the
Administrative Agents agree are the equivalent of the Ratings of S&P and
Moody's set forth in this column.
15
such period, (ii) Consolidated Lease Expense for such period and (iii) all
amounts paid by the U.S. Borrower or any of its Subsidiaries to Case during
such period in respect of income taxes.
"Fixed Rate CAF Advance": any CAF Advance made pursuant to a Fixed
Rate CAF Advance Request.
"Fixed Rate CAF Advance Request": any CAF Advance Request requesting
the Lenders to offer to make CAF Advances at a fixed rate (as opposed to a
rate composed of the LIBO Rate plus (or minus) a margin).
"Foreign Subsidiary Borrower": each Subsidiary of the U.S. Borrower
organized under the laws of a jurisdiction outside the United States listed
as a Foreign Subsidiary Borrower in Schedule II as amended from time to
time in accordance with subsection 15.1(b)(i).
"Foreign Subsidiary Opinion": with respect to any Foreign Subsidiary
Borrower, a legal opinion of counsel to such Foreign Subsidiary Borrower
addressed to the Administrative Agent and the Lenders concluding that such
Foreign Subsidiary Borrower and the Loan Documents to which it is a party
substantially comply with the matters listed on Exhibit J, with such
assumptions, qualifications and deviations therefrom as the Administrative
Agent shall approve (such approval not to be unreasonably withheld).
"Funding Commitment Percentage": as at any date of determination
(after giving effect to the making and payment of any Loans made on such
date pursuant to subsection 2.5), with respect to any Lender, that
percentage which the Available Revolving Credit Commitment of such Lender
then constitutes of the Aggregate Available Revolving Credit Commitments.
"GAAP": generally accepted accounting principles in the United States
of America in effect on the date hereof.
"Governmental Authority": any nation or government, any state,
province or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of
or pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
without duplication, any obligation of (a) the guaranteeing person or (b)
another Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has issued
a reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or other obligations (the "primary obligations") of any other third Person
(the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any such obligation of the guaranteeing
person, whether or not contingent, (i) to purchase any such primary
16
obligation or any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (A) for the purchase or payment
of any such primary obligation or (B) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless the
owner of any such primary obligation against loss in respect thereof;
provided, however, that the term Guarantee Obligation shall not include (i)
endorsements of instruments for deposit or collection in the ordinary
course of business, (ii) obligations in respect of trade liabilities
incurred in the ordinary course of business and payable in accordance with
customary practices or (iii) Excluded Credit Card Guarantee Obligations.
The amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (a) an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such guaranteeing
person may be liable pursuant to the terms of the instrument embodying such
Guarantee Obligation, unless such primary obligation and the maximum amount
for which such guaranteeing person may be liable are not stated or
determinable, in which case the amount of such Guarantee Obligation shall
be such guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by the U.S. Borrower in good faith.
"Indebtedness": of any Person at any date, without duplication, (a)
all indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than trade liabilities
incurred in the ordinary course of business and payable in accordance with
customary practices), (b) any other indebtedness of such Person which is
evidenced by a note, bond, debenture or similar instrument, (c) all
obligations of such Person under Financing Leases, (d) all obligations of
such Person in respect of acceptances issued or created for the account of
such Person, (e) all liabilities secured by any Lien on any property owned
by such Person even though such Person has not assumed or otherwise become
liable for the payment thereof, (f) all net liabilities of such Person in
respect of Interest Rate Agreements, (g) all Guarantee Obligations in
respect of Indebtedness referred to in clauses (a) through (f) (or any of
them) of this definition and (h) if such Person is the U.S. Borrower or any
of its Subsidiaries, all obligations of the U.S. Borrower or any such
Subsidiary incurred in connection with any securitization or other asset-
backed financing of Receivables to the extent such obligations are excluded
from the definition of Permitted Securitization Obligations by operation of
the proviso to the definition thereof. The parties hereto agree that the
amount of any Indebtedness which is issued at a discount to the face amount
thereof shall be equal to the accreted value of such Indebtedness from time
to time.
"Indenture": the indenture dated as of February 1, 1996, between the
U.S. Borrower, Case and The Bank of New York, as trustee.
17
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intangible Assets": at any date of determination, the value (net of
any applicable reserves) as shown on or reflected in the most recent
consolidated balance sheet of the U.S. Borrower and its Consolidated
Subsidiaries as at the end of the most recent fiscal quarter of the U.S.
Borrower ending not more than 135 days prior to such date, prepared in
accordance with GAAP, of (a) all trade names, trademarks, licenses,
patents, copyrights, service marks, goodwill and other like intangibles;
(b) organizational and development costs; (c) deferred charges (other than
prepaid items, such as insurance, taxes, interest, commissions, rents,
deferred interest waiver, deferred financing fees, compensation and similar
items and tangible assets being amortized); and (d) unamortized debt
discount and expense, less unamortized premium.
"Interest Payment Date": (a) as to any ABR Loan, the last day of each
March, June, September and December to occur while such Loan is
outstanding, (b) as to any Eurodollar Loan or Multicurrency Loan having an
Interest Period of three months or less, the last day of such Interest
Period, (c) as to any Eurodollar Loan or Multicurrency Loan having an
Interest Period longer than three months, (i) each day which is three
months, or a whole multiple thereof, after the first day of such Interest
Period and (ii) the last day of such Interest Period and (d) as to any
Money Market Rate Swing Line Loan, the last day of the interest period with
respect thereto selected by the U.S. Borrower and the relevant Swing Line
Lender.
"Interest Period": with respect to any Eurodollar Loan or
Multicurrency Loan:
(a) initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such Eurodollar Loan or
Multicurrency Loan and ending one, two, three or six months thereafter, as
selected by the relevant Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto; and
(b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan or
Multicurrency Loan and ending one, two, three or six months thereafter, as
selected by the relevant Borrower by irrevocable notice to the
Administrative Agent not less than three Business Days prior to the last
day of the then current Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest Periods
are subject to the following:
(i) if any Interest Period pertaining to a Eurodollar Loan
or Multicurrency Loan would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day
18
unless the result of such extension would be to carry such Interest
Period into another calendar month in which event such Interest Period
shall end on the immediately preceding Business Day;
(ii) any Interest Period applicable to a Eurodollar Loan or
Multicurrency Loan that would otherwise extend beyond the Revolving
Credit Termination Date shall end on the Revolving Credit Termination
Date;
(iii) any Interest Period pertaining to a Eurodollar Loan
or Multicurrency Loan that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
(iv) each Borrower shall select Interest Periods so as not
to require a payment or prepayment of any Eurodollar Loan or
Multicurrency Loan during an Interest Period for such Eurodollar Loan
or Multicurrency Loan.
"Interest Rate Agreement": any interest rate protection agreement,
interest rate future, interest rate option, interest rate cap or other
interest rate hedge arrangement, to or under which the U.S. Borrower or any
Subsidiary thereof is a party or a beneficiary.
"Judgment Currency": as defined in subsection 15.18(b).
"Lenders": as defined in the preamble hereto.
"LIBO Rate": in respect of any LIBO Rate CAF Advance, the London
interbank offered rate for deposits in Dollars for the period commencing on
the date of such CAF Advance and ending on the CAF Advance Maturity Date
with respect thereto which appears on Telerate Page 3750 as of 11:00 A.M.,
London time, two Business Days prior to the beginning of such period.
"LIBO Rate CAF Advance": any CAF Advance made pursuant to a LIBO Rate
CAF Advance Request.
"LIBO Rate CAF Advance Request": any CAF Advance Request requesting
the Lenders to offer to make CAF Advances at an interest rate equal to the
LIBO Rate plus (or minus) a margin.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention agreement
and any Financing Lease having substantially the same economic effect as
any of the foregoing).
19
"Loan Documents": the collective reference to this Agreement, any
Revolving Credit Note and any document or instrument evidencing or
governing any Alternate Currency Facility.
"Loans": the collective reference to the Revolving Credit Loans, the
Swing Line Loans, the CAF Advances, the Multicurrency Loans and the
Alternate Currency Loans.
"Loans to be Converted": as defined in subsection 15.8(a).
"London Banking Day": any day on which banks in London are open for
general banking business, including dealings in foreign currency and
exchange.
"Majority Lenders": (a) at any time prior to the termination of the
Revolving Credit Commitments, Lenders, the Revolving Credit Commitment
Percentages of which aggregate at least 51%; and (b) at any time after the
termination of the Revolving Credit Commitments, Lenders whose Aggregate
Total Outstandings aggregate at least 51% of the Aggregate Total
Outstandings of all Lenders; provided that for purposes of this definition
the Aggregate Total Outstandings of each Lender shall be adjusted up or
down so as to give effect to any participations purchased or sold pursuant
to subsection 15.8.
"Majority Multicurrency Lenders": at any time, Multicurrency Lenders
the Multicurrency Commitment Percentages of which aggregate at least 51%.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise) of the
U.S. Borrower and its Consolidated Subsidiaries taken as a whole or (b) the
ability of the U.S. Borrower to perform its obligations under this
Agreement or any of the other Loan Documents or the rights or remedies of
the Administrative Agent or the Lenders hereunder or thereunder.
"Material Subsidiary": any Subsidiary of the U.S. Borrower the assets
or revenues (excluding inter-company receivables and revenues that would be
eliminated upon consolidation in accordance with GAAP) of which are, at the
time of determination, equal to or greater than ten percent of the assets
or revenues (excluding inter-company receivables and revenues that would be
eliminated upon consolidation in accordance with GAAP), respectively, of
the U.S. Borrower at such time.
"Money Market Rate": as defined in subsection 3.2(b).
"Money Market Rate Swing Line Loan": as defined in subsection 3.2(b).
"Moody's": Moody's Investors Service, Inc. or any successor thereto.
20
"Multicurrency Commitment": as to any Multicurrency Lender at any
time, its obligation to make Multicurrency Loans to Foreign Subsidiary
Borrowers in an aggregate amount in Available Foreign Currencies of which
the U.S. Dollar Equivalent does not exceed at any time outstanding the
amount set forth opposite such Multicurrency Lender's name in Schedule I
under the heading "Multicurrency Commitment", as such amount may be reduced
from time to time as provided in subsection 5.4 and the other applicable
provisions hereof.
"Multicurrency Commitment Percentage": as to any Multicurrency Lender
at any time, the percentage which such Multicurrency Lender's Multicurrency
Commitment then constitutes of the aggregate Multicurrency Commitments (or,
if the Multicurrency Commitments have terminated or expired, the percentage
which (a) the U.S. Dollar Equivalent of the Aggregate Multicurrency
Outstandings of such Multicurrency Lender at such time constitutes of (b)
the U.S. Dollar Equivalent of the Aggregate Multicurrency Outstandings of
all Multicurrency Lenders at such time).
"Multicurrency Lender": each Lender having an amount greater than
zero set forth opposite such Lender's name in Schedule I under the heading
"Multicurrency Commitment."
"Multicurrency Loans": as defined in subsection 5.1.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Non-Excluded Taxes": as defined in subsection 7.11(a).
"Non-Multicurrency Lender": each Lender which is not a Multicurrency
Lender.
"Notice of Alternate Currency Outstandings": with respect to each
Alternate Currency Facility Agent, a notice from such Alternate Currency
Facility Agent containing the information, delivered to the Person, in the
manner and by the time, specified for a Notice of Alternate Currency
Outstandings in the Administrative Schedule.
"Notice of Multicurrency Loan Borrowing": with respect to a
Multicurrency Loan, a notice from the Foreign Subsidiary Borrower in
respect of such Loan, containing the information in respect of such Loan
and delivered to the Person, in the
21
manner and by the time, specified for a Notice of Multicurrency Loan
Borrowing in respect of the currency of such Loan in the Administrative
Schedule.
"Notice of Multicurrency Loan Continuation": with respect to a
Multicurrency Loan, a notice from the Foreign Subsidiary Borrower in
respect of such Loan, containing the information in respect of such Loan
and delivered to the Person, in the manner and by the time, specified for a
Notice of Multicurrency Loan Continuation in respect of the currency of
such Loan in the Administrative Schedule.
"Obligations": collectively, the unpaid principal of and interest on
the Loans and all other obligations and liabilities of (a) each Foreign
Subsidiary Borrower under this Agreement and the other Loan Documents and
(b) each Alternate Currency Borrower under any Alternate Currency Facility
to which it is a party and under this Loan Agreement and the other Loan
Documents (including, without limitation, interest accruing at the then
applicable rate provided in this Agreement or any other applicable Loan
Document after the maturity of the Loans and interest accruing at the then
applicable rate provided in this Agreement or any other applicable Loan
Document after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating
to the U.S. Borrower, whether or not a claim for post-filing or post-
petition interest is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with,
this Agreement, the Revolving Credit Notes, the other Loan Documents or any
other document made, delivered or given in connection therewith, in each
case whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Administrative
Agent or to the Lenders that are required to be paid by any Borrower
pursuant to the terms of this Agreement or any other Loan Document).
"Outstanding Securities": as defined in the Indenture.
"Original Issue Discount Security": as defined in the Indenture.
"Participants": as defined in subsection 15.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA.
"Permitted Securitization Obligations": obligations of the U.S.
Borrower or any of its Subsidiaries incurred in connection with any
securitization or other asset-backed financing of Receivables; provided
that, if (a) there is recourse to the U.S. Borrower or any of its
Subsidiaries (other than a Special Purpose Subsidiary) for failures to pay
or otherwise perform any such obligations, (b) such failures arise as a
result of credit defaults by the debtors in respect of such Receivables and
(c) such recourse is not limited to the Receivables and the Receivables
Related Assets (or undivided or beneficial interests in such Receivables
and Receivables Related Assets) which are the subject of such
securitization or other asset-backed financing, then such obligations shall
not be considered "Permitted Securitization Obligations" within the meaning
of this definition to the extent that, in accordance with GAAP, such
obligations would be required to be included as a liability on a
consolidated balance sheet of the U.S. Borrower and its Consolidated
Subsidiaries.
22
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the U.S. Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Preferred Securities": any preferred securities issued by a
financing entity (i.e. partnership, trust, limited liability company, etc.)
used exclusively to raise capital for the U.S. Borrower having the
following structural characteristics: (a) the financing entity lends the
proceeds from the issuance of preferred securities to the U.S. Borrower in
exchange for subordinated debt securities (which debt securities are
subordinated to all Indebtedness of the U.S. Borrower of the types
described in clauses (a) and (b) of the definition of Indebtedness set
forth in subsection 1.1, (b) the subordinated debt securities issued by the
U.S. Borrower and corresponding preferred securities issued by the
financing entity have a maturity of at least ten years, (c) interest
payments on the subordinated debt securities may be deferred at the U.S.
Borrower's discretion, and (d) neither the subordinated debt securities nor
the corresponding preferred securities shall contain cross-default or
cross-acceleration provisions to Indebtedness of the U.S. Borrower of the
types described in clauses (a) and (b) of the definition of Indebtedness
set forth in subsection 1.1.
"Qualified Credit Facility": a credit facility (a) providing for one
or more Alternate Currency Lenders to make loans denominated in an
Alternate Currency to an Alternate Currency Borrower, (b) providing for
such loans to bear interest at a rate or rates determined by the U.S.
Borrower and such Alternate Currency Lender or Alternate Currency Lenders
and (c) otherwise conforming to the requirements of Section 6.
"Quotation Day": in respect of the determination of the Eurocurrency
Rate for any Interest Period for Multicurrency Loans in any Available
Foreign Currency, the day on which quotations would ordinarily be given by
prime banks in the London interbank market (or, if such Available Foreign
Currency is Sterling, in the Paris interbank market) for deposits in such
Available Foreign Currency for delivery on the first day of such Interest
Period; provided, that if quotations would ordinarily be given on more than
one date, the Quotation Day for such Interest Period shall be the last of
such dates. On the date hereof, the Quotation Day in respect of any
Interest Period for any Available Foreign Currency is customarily the last
London Business Day prior to the beginning of such Interest Period which is
(a) at least two London Banking Days prior to the beginning of such
Interest Period and (b) a day on which banks are open for general banking
business in the city which is the principal financial center of the country
of issue of such Available Foreign Currency (and, in the case of Sterling,
in Paris).
23
"Ratings": the actual or implied senior long-term unsecured non-
credit-enhanced debt ratings of the U.S. Borrower in effect from time to
time by Moody's, S&P or any other then nationally recognized rating agency.
"Receivable": any right of payment from or on behalf of any obligor,
whether constituting an account, chattel paper, instrument, general
intangible or otherwise, arising from the financing by the U.S. Borrower or
any of its Subsidiaries of property or services, and monies due thereunder,
security interests in the property and services financed thereby and any
and all other related rights.
"Receivables Related Assets": in connection with any securitization
or other asset-backed financing of, or other sale, transfer or disposition
of, Receivables, the collective reference to: (a) any rights arising under
the documentation governing or relating to such Receivables (including
rights in respect of Liens securing such Receivables and other credit
support in respect of such Receivables), (b) any proceeds of such
Receivables and any lockboxes or accounts in which such proceeds are
deposited, (c) spread accounts and other similar accounts (and any amounts
on deposit therein) established in connection with such securitization or
asset-backed financing and (d) any warranty, indemnity, dilution and other
intercompany claim arising out of the documentation evidencing such
securitization or asset-backed financing.
"Reference Lenders": Chase, Morgan Guaranty Trust Company of New York
and Credit Suisse.
"Refunded Swing Line Loans": as defined in subsection 3.4.
"Register": as defined in subsection 15.6(d).
"Regulation U": Regulation U of the Board as in effect from time to
time.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the notice period is waived
under any of subsections .11 through .23 of PBGC Reg. (S) 4043 or any
successor regulation thereto.
"Requested Alternate Currency Loans": as defined in subsection
2.5(b).
"Requested Multicurrency Loans": as defined in subsection 2.5(a).
"Requirement of Law": as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule, guideline or regulation or
determination of an arbitrator or a court or other Governmental Authority,
in each case applicable to or binding upon such Person or
24
any of its material property or to which such Person or any of its material
property is subject.
"Responsible Officer": with respect to a Borrower, the President or
any Vice President of such Borrower or, with respect to financial matters,
the Chief Financial Officer, the Treasurer, the Controller, any Assistant
Treasurer or any Assistant Controller of such Borrower.
"Restricted Subsidiary" means each Subsidiary of the Company other
than Securitization Subsidiaries and Subsidiaries of Securitization
Subsidiaries.
"Revolving Credit Commitment": as to any Lender at any time, its
obligation to make Revolving Credit Loans to, and/or participate in Swing
Line Loans made to, the U.S. Borrower in an aggregate amount not to exceed
at any time outstanding the U.S. Dollar amount set forth opposite such
Lender's name in Schedule I under the heading "Revolving Credit
Commitment", as such amount may be reduced from time to time pursuant to
subsection 2.4 and the other applicable provisions hereof.
"Revolving Credit Commitment Percentage": as to any Lender at any
time, the percentage which such Lender's Revolving Credit Commitment then
constitutes of the aggregate Revolving Credit Commitments of all Lenders
(or, if the Revolving Credit Commitments have terminated or expired, the
percentage which (a) the Aggregate Revolving Credit Outstandings of such
Lender at such time then constitutes of (b) the Aggregate Revolving Credit
Outstandings of all Lenders at such time).
"Revolving Credit Commitment Period": the period from and including
the Effective Date to but not including the Revolving Credit Termination
Date, or such earlier date on which the Revolving Credit Loans shall
terminate as provided herein.
"Revolving Credit Loan": as defined in subsection 2.1.
"Revolving Credit Note": as defined in subsection 2.2(e).
"Revolving Credit Termination Date": the date which is five years
after the Effective Date.
"Securities Act": the Securities Act of 1933, as amended.
"Securitization Subsidiary": a Subsidiary of the U.S. Borrower (a)
which is formed for the purpose of effecting one or more Securitization
Transactions and engaging in other activities reasonably related thereto
and (b) as to which no portion of the indebtedness or any other obligations
of which (i) is guaranteed by the U.S. Borrower or any Restricted
Subsidiary, or (ii) subjects any property or assets of the U.S. Borrower or
any Restricted Subsidiary, directly or indirectly, contingently or
otherwise, to any lien, other than pursuant to representations, warranties
and covenants (including those related to servicing) entered into in the
ordinary course of business in
25
connection with a Securitization Transaction and inter-company notes and
other forms of capital or credit support relating to the transfer or sale
of Receivables or asset-backed securities to such Securitization Subsidiary
and customarily necessary or desirable in connection with such
transactions.
"Securitization Transaction": any transaction or series of
transactions that have been or may be entered into by the U.S. Borrower or
any of its Subsidiaries in connection with or reasonably related to a
transaction or series of transactions in which the U.S. Borrower or any of
its Subsidiaries may sell, convey or otherwise transfer to (a) a
Securitization Subsidiary or (b) any other Person, or may grant a security
interest in, any Receivables or asset-backed securities or interest therein
(whether such Receivables or securities are then existing or arising in the
future) of the U.S. Borrower or any of its Subsidiaries, and any assets
related thereto, including, without limitation, all security interests in
the property or services financed thereby, the proceeds of such Receivables
or asset-backed securities and any other assets which are sold or in
respect of which security interests are granted in connection with
securitization transactions involving such assets.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"S&P": Standard & Poor's Ratings Group or any successor thereto.
"Special Purpose Subsidiary": any wholly-owned Subsidiary of the U.S.
Borrower (other than Case Credit Canada and Case Credit Australia) which
(a) is formed for the purpose of effecting any securitization or other
asset-backed financing of Receivables and engaging in other activities
reasonably related thereto and (b) is structured as a "bankruptcy-remote
subsidiary" in accordance with customary practices in the asset-backed
securitization market.
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through
one or more intermediaries, or both, by such Person. Unless otherwise
qualified, all references to a "Subsidiary" or to "Subsidiaries" in this
Agreement shall refer to a Subsidiary or Subsidiaries of the U.S. Borrower.
"Support Agreement": the Support Agreement, dated January 10, 1996,
between Case and the U.S. Borrower (without giving effect to any
modifications thereto unless otherwise agreed to by the Majority Lenders).
"Swing Line Commitment": as to each Swing Line Lender, in its
capacity as a Swing Line Lender, its obligation to make Swing Line Loans to
the U.S. Borrower in
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an aggregate principal amount not to exceed, at any one time outstanding,
the difference between (a) U.S.$75,000,000 and (b) the outstanding
principal amount of all Swing Line Loans of the other Swing Line Lender.
"Swing Line Lenders": the collective reference to Chase and Bank of
America Illinois, in their respective capacities as providers of the Swing
Line Loans.
"Swing Line Loans" and "Swing Line Loan": as defined in subsection
3.1.
"Swing Line Participation Percentage": as at any date of
determination with respect to any Lender, that percentage which the
Available Swing Line Participation Commitment of such Lender then
constitutes of the sum of the Available Swing Line Participation
Commitments of all Lenders.
"Tranche": the collective reference to Eurodollar Loans or
Multicurrency Loans the then current Interest Periods with respect to all
of which begin on the same date and end on the same later date (whether or
not such Loans shall originally have been made on the same day).
"Transferee": as defined in subsection 15.6(f).
"Type": as to any Revolving Credit Loan, its nature as an ABR Loan or
a Eurodollar Loan.
"U.S. Borrower": as defined in the preamble hereto.
"U.S. Dollar Equivalent": with respect to an amount denominated in
any currency other than U.S. Dollars, the equivalent in U.S. Dollars of
such amount determined at the Exchange Rate on the date of determination of
such equivalent. In making any determination of the U.S. Dollar Equivalent
for purposes of calculating the amount of Loans to be borrowed from the
respective Lenders on any Borrowing Date, the Administrative Agent shall
use the relevant Exchange Rate in effect on the date on which the interest
rate for such Loans is determined pursuant to the provisions of this
Agreement and the other Loan Documents.
"Yield to Maturity": as defined in the Indenture.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the Revolving Credit Notes, the other Loan Documents or any
certificate or other document made or delivered pursuant hereto.
(b) As used herein and in the Revolving Credit Notes and any other
Loan Document, and any certificate or other document made or delivered pursuant
hereto or thereto, accounting terms relating to the U.S. Borrower and its
Subsidiaries not defined in
27
subsection 1.1 and accounting terms partly defined in subsection 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF REVOLVING CREDIT
COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit loans
(each, a "Revolving Credit Loan") in U.S. Dollars to the U.S. Borrower from time
to time during the Revolving Credit Commitment Period so long as after giving
effect thereto (i) the Available Revolving Credit Commitment of each Lender is
greater than or equal to zero and (ii) the Aggregate Total Outstandings of all
Lenders do not exceed the Aggregate Revolving Credit Commitments. During the
Revolving Credit Commitment Period the U.S. Borrower may use the Revolving
Credit Commitments by borrowing, prepaying the Revolving Credit Loans in whole
or in part, and reborrowing, all in accordance with the terms and conditions
hereof.
(b) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined
by the U.S. Borrower and notified to the Administrative Agent in accordance with
subsections 2.3 and 7.2, provided that no Revolving Credit Loan shall be made as
a Eurodollar Loan after the day that is one month prior to the Revolving Credit
Termination Date.
2.2 Repayment of Revolving Credit Loans; Evidence of Debt. (a) The
U.S. Borrower hereby unconditionally promises to pay to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Credit Loan of such Lender (whether made before or after the
termination or expiration of the Revolving Credit Commitments) on the Revolving
Credit Termination Date and on such other dates and in such other amounts as may
be required from time to time pursuant to this Agreement. The U.S. Borrower
hereby further agrees to pay interest on the unpaid principal amount of the
Revolving Credit Loans from time to time outstanding until payment thereof in
full at the rates per annum, and on the dates, set forth in subsection 7.1.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the U.S. Borrower to such
Lender resulting from each Revolving Credit Loan of such Lender from time to
time, including the amounts of principal and interest payable thereon and paid
to such Lender from time to time under this Agreement.
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(c) The Administrative Agent shall maintain the Register pursuant to
subsection 15.6(d), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Revolving Credit Loan made hereunder, the Type
thereof and each Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the U.S.
Borrower to each Lender hereunder in respect of the Revolving Credit Loans and
(iii) both the amount of any sum received by the Administrative Agent hereunder
from the U.S. Borrower in respect of the Revolving Credit Loans and each
Lender's share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 2.2(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the U.S. Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the U.S. Borrower to repay (with applicable interest) the
Revolving Credit Loans made to the U.S. Borrower by such Lender in accordance
with the terms of this Agreement.
(e) The U.S. Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the U.S. Borrower will execute and deliver
to such Lender a promissory note of the U.S. Borrower evidencing the Revolving
Credit Loans of such Lender, substantially in the form of Exhibit A with
appropriate insertions as to date and principal amount (each, a "Revolving
Credit Note"); provided, that the delivery of such Revolving Credit Notes shall
not be a condition precedent to the Effective Date.
2.3 Procedure for Revolving Credit Borrowing. The U.S. Borrower may
borrow under the Revolving Credit Commitments during the Revolving Credit
Commitment Period on any Business Day, provided that the U.S. Borrower shall
give the Administrative Agent irrevocable notice (which notice must be received
by the Administrative Agent prior to 11:00 a.m., New York City time, at least
(a) three Business Days prior to the requested Borrowing Date, if all or any
part of the requested Revolving Credit Loans are to be initially Eurodollar
Loans, or (b) one Business Day prior to the requested Borrowing Date,
otherwise), specifying in each case (i) the amount to be borrowed, (ii) the
requested Borrowing Date, (iii) whether the borrowing is to be of Eurodollar
Loans, ABR Loans or a combination thereof and (iv) if the borrowing is to be
entirely or partly of Eurodollar Loans, the amount of such Type of Loan and the
length of the initial Interest Periods therefor. Each borrowing under the
Revolving Credit Commitments (other than a borrowing under subsection 2.5) shall
be in an amount equal to (A) in the case of ABR Loans, except any ABR Loan made
pursuant to subsection 3.4, $10,000,000 or a whole multiple of $1,000,000 in
excess thereof (or, if the then Aggregate Available Revolving Credit Commitments
are less than $10,000,000, such lesser amount) and (B) in the case of Eurodollar
Loans, $10,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon
receipt of any such notice from the U.S. Borrower, the Administrative Agent
shall promptly notify each Lender thereof. Not later than 12:00 Noon, New York
City time, on each requested Borrowing Date each Lender shall make an amount
equal to its Funding Commitment Percentage of the principal amount of the
Revolving Credit Loans requested to be made on such Borrowing Date available to
the Administrative Agent at
29
its office specified in subsection 15.2 in U.S. Dollars and in immediately
available funds. Except as otherwise provided in subsection 2.5 or 3.4 or in
Annex A with respect to Revolving Credit Loans to be made on the Effective Date,
the Administrative Agent shall on such date credit the account of the U.S.
Borrower on the books of such office with the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent.
2.4 Termination or Reduction of Revolving Credit Commitments. The
U.S. Borrower shall have the right, upon not less than three Business Days'
notice to the Administrative Agent, to terminate the Revolving Credit
Commitments or, from time to time, to reduce the amount of the Revolving Credit
Commitments; provided that no such termination or reduction shall be permitted
if, after giving effect thereto and to any prepayments of the Loans made on the
effective date thereof, either (a) the Aggregate Available Revolving Credit
Commitments would not be greater than or equal to zero or (b) the Available
Revolving Credit Commitments of any Lender would not be greater than or equal to
zero. Any such reduction shall be in an amount equal to $10,000,000 or a whole
multiple of $1,000,000 in excess thereof and shall reduce permanently the
Revolving Credit Commitments then in effect.
2.5 Borrowings of Revolving Credit Loans and Refunding of Loans. (a)
If on any Borrowing Date on which a Foreign Subsidiary Borrower has requested
the Multicurrency Lenders to make Multicurrency Loans (the "Requested
Multicurrency Loans"), (i) the aggregate principal amount of the Requested
Multicurrency Loans exceeds the Aggregate Available Multicurrency Commitments on
such Borrowing Date (before giving effect to the making and payment of any Loans
required to be made pursuant to this subsection 2.5 on such Borrowing Date) and,
(ii) the U.S. Dollar Equivalent of the amount of such excess is less than or
equal to the aggregate Available Revolving Credit Commitments of all Non-
Multicurrency Lenders (before giving effect to the making and payment of any
Loans pursuant to this subsection 2.5 on such Borrowing Date), each Non-
Multicurrency Lender shall make a Revolving Credit Loan to the U.S. Borrower on
such Borrowing Date, and the proceeds of such Revolving Credit Loans shall be
simultaneously applied to repay outstanding Revolving Credit Loans and/or
Alternate Currency Loans of the Multicurrency Lenders (as directed by the U.S.
Borrower) in each case in amounts such that, after giving effect to (1) such
borrowings and repayments and (2) the borrowing from the Multicurrency Lenders
of the Requested Multicurrency Loans, the Committed Outstanding Percentage of
each U.S. Lender will equal (as nearly as possible) its Revolving Credit
Commitment Percentage. To effect such borrowings and repayments, (x) not later
than 12:00 Noon, New York City time, on such Borrowing Date, the proceeds of
such Revolving Credit Loans shall be made available by each Non-Multicurrency
Lender to the Administrative Agent at its office specified in subsection 15.2 in
U.S. Dollars and in immediately available funds and the Administrative Agent
shall apply the proceeds of such Revolving Credit Loans toward repayment of
outstanding Revolving Credit Loans and/or Alternate Currency Loans of the
Multicurrency Lenders (as directed by the U.S. Borrower) and (y) concurrently
with the repayment of such Loans on such Borrowing Date, (I) the Multicurrency
Lenders shall, in accordance with the applicable provisions hereof, make the
Requested Multicurrency Loans in an aggregate amount equal to the amount so
requested by such Foreign Subsidiary Borrower
30
(but not in any event greater than the Aggregate Available Multicurrency
Commitments after giving effect to the making of such repayment of any Loans on
such Borrowing Date) and (II) the relevant Borrower shall pay to the
Administrative Agent for the account of the Lenders whose Loans to such Borrower
are repaid on such Borrowing Date pursuant to this subsection 2.5 all interest
accrued on the amounts repaid to the date of repayment, together with any
amounts payable pursuant to subsection 7.12 in connection with such repayment.
(b) If on any Borrowing Date on which an Alternate Currency Borrower
has requested Alternate Currency Lenders to make Alternate Currency Loans (the
"Requested Alternate Currency Loans") under an Alternate Currency Facility to
which such Alternate Currency Borrower and Alternate Currency Lenders are
parties (i) the aggregate principal amount of the Requested Alternate Currency
Loans exceeds the aggregate unused portions of the commitments of such Alternate
Currency Lenders under such Alternate Currency Facility on such Borrowing Date
(before giving effect to the making and payment of any Revolving Credit Loans
required to be made pursuant to this subsection 2.5 on such Borrowing Date),
(ii) after giving effect to the Requested Alternate Currency Loans, the U.S.
Dollar Equivalent of the aggregate outstanding principal amount of Alternate
Currency Loans of such Alternate Currency Borrower will be less than or equal to
the aggregate commitments of such Alternate Currency Lenders under such
Alternate Currency Facility and (iii) the U.S. Dollar Equivalent of the amount
of the excess described in clause (i) above is less than or equal to the
Aggregate Available Revolving Credit Commitments of all Lenders other than such
Alternate Currency Lenders (before giving effect to the making and payment of
any Revolving Credit Loans pursuant to this subsection 2.5 on such Borrowing
Date), each such other Lender shall make a Revolving Credit Loan to the U.S.
Borrower, on such Borrowing Date, and the proceeds of such Revolving Credit
Loans shall be simultaneously applied to repay outstanding Revolving Credit
Loans, Multicurrency Loans and/or Alternate Currency Loans of such Alternate
Currency Lenders (as directed by the U.S. Borrower) in each case in amounts such
that, after giving effect to (1) such borrowings and repayments and (2) the
borrowing from such Alternate Currency Lenders of the Requested Alternate
Currency Loans, the Committed Outstandings Percentage of each U.S. Lender will
equal (as nearly as possible) its Revolving Credit Commitment Percentage. To
effect such borrowings and repayments, (x) not later than 12:00 Noon, New York
City time, on such Borrowing Date, the proceeds of such Revolving Credit Loans
shall be made available by each such other Lender to the Administrative Agent at
its office specified in subsection 15.2 in U.S. Dollars and in immediately
available funds and the Administrative Agent shall apply the proceeds of such
Revolving Credit Loans toward the repayment of outstanding Revolving Credit
Loans, Multicurrency Loans and/or Alternate Currency Loans of such Alternate
Currency Lenders (as directed by the U.S. Borrower) and (y) concurrently with
the repayment of such Revolving Credit Loans on such Borrowing Date, (I) such
Alternate Currency Lenders shall, in accordance with the applicable provisions
hereof, make the Requested Alternate Currency Loans in an aggregate amount equal
to the amount so requested by such Foreign Subsidiary Borrower and (II) the
relevant Borrower shall pay to the Administrative Agent for the account of the
Lenders whose Loans to such Borrower are repaid on such Borrowing Date pursuant
to this subsection 2.5 all interest accrued on the amounts repaid to the date of
repayment, together with any amounts payable pursuant to subsection 7.12 in
connection with such repayment.
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(c) If any borrowing of Revolving Credit Loans is required pursuant
to this subsection 2.5, the U.S. Borrower shall notify the Administrative Agent
in the manner provided for Revolving Credit Loans in subsection 2.3, except that
the minimum borrowing amounts set forth in subsection 2.3 shall not be
applicable to the extent that such minimum borrowing amounts exceed the amounts
of Revolving Credit Loans required to be made pursuant to this subsection 2.5.
SECTION 3. AMOUNT AND TERMS OF SWINGLINE
COMMITMENTS
3.1 Swing Line Commitments. Subject to the terms and conditions
hereof, each Swing Line Lender agrees to make swing line loans (individually, a
"Swing Line Loan"; collectively, the "Swing Line Loans") in U.S. Dollars to the
U.S. Borrower from time to time during the Revolving Credit Commitment Period in
an aggregate principal amount at any one time outstanding not to exceed the
difference between (a) $75,000,000 and (b) the outstanding principal amount of
all Swing Line Loans of the other Swing Line Lender, so long as after giving
effect thereto (i) the Available Revolving Credit Commitment of each Lender is
greater than or equal to zero and (ii) the Aggregate Total Outstandings of all
Lenders do not exceed the Aggregate Revolving Credit Commitments. Amounts
borrowed by the U.S. Borrower under this Section 3 may be repaid and, during the
Revolving Credit Commitment Period, reborrowed.
3.2 Procedure for Swing Line Borrowings; Interest Rate. (a) The U.S.
Borrower shall give the Swing Line Lender from which it wishes to request a
Swing Line Loan irrevocable notice (which notice must be received by such Swing
Line Lender prior to 1:00 P.M., New York City time) on the requested Borrowing
Date specifying the amount of the requested Swing Line Loan, which shall be in
an aggregate principal amount of not less than $1,000,000 or a whole multiple of
$1,000,000 in excess thereof. The proceeds of the Swing Line Loan will be made
available by such Swing Line Lender to the U.S. Borrower at the office of such
Swing Line Lender by crediting the account of the U.S. Borrower at such office
with such proceeds in U.S. Dollars. Each Swing Line Lender shall send a copy of
each request for a borrowing of Swing Line Loans from such Swing Line Lender to
the other Swing Line Lender.
(b) Unless otherwise agreed between the U.S. Borrower and the Swing
Line Lender that makes a Swing Line Loan, such Swing Line Loan shall be an ABR
Loan. Any such ABR Loan may not be converted into a Eurodollar Loan. If,
however, the U.S. Borrower and a Swing Line Lender agree that a Swing Line Loan
(a "Money Market Rate Swing Line Loan") shall bear interest at a fixed interest
rate (a "Money Market Rate") for a fixed interest period of up to 7 days, such
Money Market Rate Swing Line Loan shall bear interest for such interest period
at such interest rate so agreed upon. If a Money Market Rate Swing Line Loan is
not repaid on the last day of the interest period with respect thereto, it shall
on such date be converted automatically to an ABR Loan. A Money Market Swing
Line Loan shall not be optionally prepayable prior to the last day of the
interest period with
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respect thereto except with the consent of the Swing Line Lender that made such
Swing Line Loan.
3.3 Repayment of Swing Line Loans; Evidence of Debt. (a) The U.S.
Borrower hereby unconditionally promises to pay to each Swing Line Lender the
then unpaid principal amount of each of its Swing Line Loans on the Revolving
Credit Termination Date and on such other dates and in such other amounts as may
be required from time to time pursuant to this Agreement. The U.S. Borrower
hereby further agrees to pay interest on the unpaid principal amount of the
Swing Line Loans from time to time outstanding until payment thereof in full at
the rates per annum, and on the dates, set forth in subsection 7.1.
(b) Each Swing Line Lender shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of the U.S.
Borrower resulting from each Swing Line Loan made by it from time to time,
including the amounts of principal and interest payable thereon and paid from
time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
subsection 15.6(d), and a subaccount therein for each Swing Line Lender, in
which shall be recorded (i) the amount of each Swing Line Loan made hereunder,
(ii) the amount of each Lender's participating interest in such Swing Line
Loans, (iii) the amount of any principal or interest due and payable or to
become due and payable from the U.S. Borrower hereunder in respect of the Swing
Line Loans and (iv) both the amount of any sum received by the Administrative
Agent hereunder from the U.S. Borrower in respect of the Swing Line Loans, each
Lender's participating interest therein (if any) and the amount thereof payable
to each Swing Line Lender.
(d) The entries made in the Register and the accounts of the Swing
Line Lenders maintained pursuant to this subsection 3.3 shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the U.S. Borrower therein recorded; provided,
however, that the failure of any Swing Line Lender or the Administrative Agent
to maintain the Register or any such account, or any error therein, shall not in
any manner affect the obligation of the U.S. Borrower to repay (with applicable
interest) the Swing Line Loans made to the U.S. Borrower by the Swing Line
Lenders in accordance with the terms of this Agreement.
3.4 Refunding of Swing Line Borrowings. (a) Each Swing Line Lender,
at any time in its sole and absolute discretion may, and, at any time when its
Swing Line Loans are outstanding for more than five Business Days, each Swing
Line Lender shall, on behalf of the U.S. Borrower (which hereby irrevocably
directs and authorizes such Swing Line Lender to act on its behalf), request
each Lender, including Chase and Bank of America Illinois, to make a Revolving
Credit Loan in an amount equal to such Lender's Swing Line Participation
Percentage of the greater of (i) the principal amount of the Swing Line Loans
(the "Refunded Swing Line Loans") outstanding on the date such notice is given
and (ii) $10,000,000; provided that the provisions of this subsection shall not
affect the U.S. Borrower's obligations to repay Swing Line Loans in accordance
with the provisions of subsections 3.3 and 7.4(d) and (f). Unless the Revolving
Credit Commitments shall have expired or terminated (in
33
which event the procedures of subsection 3.5 shall apply), each Lender will make
the proceeds of the Revolving Credit Loan made by it pursuant to the immediately
preceding sentence available to the Administrative Agent at the office of the
Administrative Agent specified in subsection 15.2 prior to 12:00 Noon, New York
City time, in funds immediately available on the Business Day next succeeding
the date such notice is given. The proceeds of such Revolving Credit Loans shall
be immediately made available by the Administrative Agent to the Swing Line
Lenders for application to the payment in full of the Refunded Swing Line Loans;
any proceeds of such Revolving Credit Loans remaining after repayment of the
Refunded Swing Line Loans in full shall be made available to the U.S. Borrower
by the Administrative Agent crediting the account of the U.S. Borrower at its
office specified in subsection 15.2.
3.5 Participating Interests. (a) If the Revolving Credit Commitments
shall expire or terminate at any time while Swing Line Loans are outstanding,
each Lender shall, at the option of the Swing Line Lenders in their sole
discretion, either (i) notwithstanding the expiration or termination of the
Revolving Credit Commitments, make a Revolving Credit Loan or (ii) purchase an
undivided participating interest in the Swing Line Loans of each Swing Line
Lender, in either case in an amount equal to such Lender's Swing Line
Participation Percentage (determined on the date of, and immediately prior to,
expiration or termination of the Revolving Credit Commitments) of the aggregate
principal amount of such Swing Line Loans. Each Lender will make the proceeds of
any Revolving Credit Loan made by it pursuant to the immediately preceding
sentence available to the Administrative Agent for the account of the Swing Line
Lenders at the office of the Administrative Agent specified in subsection 15.2
prior to 12:00 Noon, New York City time, in funds immediately available on the
Business Day next succeeding the date on which the Revolving Credit Commitments
expire or terminate. The proceeds of such Revolving Credit Loans shall be
immediately applied to repay the Swing Line Loans outstanding on the date of
termination or expiration of the Revolving Credit Commitments. In the event that
any of the Lenders purchase undivided participating interests pursuant to the
first sentence of this subsection 3.5(a), each Lender shall immediately transfer
to each Swing Line Lender, in immediately available funds, the amount of its
participation in the Swing Line Loans of such Swing Line Lender and upon receipt
thereof each Swing Line Lender will deliver to any such Lender that so requests
a confirmation of such Lender's undivided participating interest in the Swing
Line Loans of such Swing Line Lender dated the date of receipt of such funds and
in such amount.
(b) Whenever, at any time after either Swing Line Lender has received
payment from any Lender in respect of such Lender's participating interest in a
Swing Line Loan of such Swing Line Lender, such Swing Line Lender receives any
payment on account thereof, such Swing Line Lender will distribute to such
Lender its participating interest in such amount (appropriately adjusted, in the
case of interest payments, to reflect the period of time during which such
Lender's participating interest was outstanding and funded); provided, however,
that in the event that any such payment received by such Swing Line Lender is
required to be returned, such Lender will return to such Swing Line Lender any
portion thereof previously distributed by such Swing Line Lender to it.
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3.6 No Swing Line Loans After Notice of Default. Each Swing Line
Lender agrees that it will not make any Swing Line Loans to the U.S. Borrower
from and after the date on which it receives a written notice from the U.S.
Borrower or any Lender referring to this Agreement and stating that a Default or
an Event of Default has occurred and is continuing hereunder until the date on
which such Default or Event of Default is no longer continuing.
SECTION 4. AMOUNT AND TERMS OF CAF ADVANCES
4.1 CAF Advances. Subject to the terms and conditions of this
Agreement, the U.S. Borrower may borrow CAF Advances in U.S. Dollars from time
to time on any Business Day during the CAF Advance Availability Period. CAF
Advances may be borrowed in amounts such that the Aggregate Total Outstandings
of all the Lenders at any time shall not exceed the Aggregate Revolving Credit
Commitments at such time. Within the limits and on the conditions hereinafter
set forth with respect to CAF Advances, the U.S. Borrower from time to time may
borrow, repay and reborrow CAF Advances.
4.2 Procedure for CAF Advance Borrowing. (a) The U.S. Borrower shall
request CAF Advances by delivering a CAF Advance Request to the Administrative
Agent, not later than 12:00 Noon, New York City time, four Business Days prior
to the proposed Borrowing Date (in the case of a LIBO Rate CAF Advance Request),
and not later than 10:00 A.M., New York City time one Business Day prior to the
proposed Borrowing Date (in the case of a Fixed Rate CAF Advance Request). Each
CAF Advance Request in respect of any Borrowing Date may solicit bids for CAF
Advances on such Borrowing Date in an aggregate principal amount of $5,000,000
or an integral multiple of $1,000,000 in excess thereof and having not more than
three alternative CAF Advance Maturity Dates. The CAF Advance Maturity Date for
each CAF Advance shall be the date set forth therefor in the relevant CAF
Advance Request, which date shall be (i) not less than 7 days nor more than 360
days after the Borrowing Date therefor, in the case of a Fixed Rate CAF Advance,
(ii) one, two, three, six, nine or twelve months after the Borrowing Date
therefor, in the case of a LIBO CAF Advance and (iii) not later than the
Revolving Credit Termination Date, in the case of any CAF Advance. The
Administrative Agent shall notify each Lender promptly by facsimile transmission
of the contents of each CAF Advance Request received by the Administrative
Agent.
(b) In the case of a LIBO Rate CAF Advance Request, upon receipt of
notice from the Administrative Agent of the contents of such CAF Advance
Request, each Lender may elect, in its sole discretion, to offer irrevocably to
make one or more CAF Advances at the applicable LIBO Rate plus (or minus) a
margin determined by such Lender in its sole discretion for each such CAF
Advance. Any such irrevocable offer shall be made by delivering a CAF Advance
Offer to the Administrative Agent, before 10:30 A.M., New York City time, on the
day that is three Business Days before the proposed Borrowing Date, setting
forth:
35
(i) the maximum amount of CAF Advances for each CAF Advance
Maturity Date and the aggregate maximum amount of CAF Advances for all CAF
Advance Maturity Dates which such Lender would be willing to make (which
amounts may, subject to subsection 4.1, exceed such Lender's Revolving
Credit Commitment); and
(ii) the margin above or below the applicable LIBO Rate at which
such Lender is willing to make each such CAF Advance.
The Administrative Agent shall advise the U.S. Borrower before 11:00 A.M., New
York City time, on the date which is three Business Days before the proposed
Borrowing Date of the contents of each such CAF Advance Offer received by it. If
the Administrative Agent, in its capacity as a Lender, shall elect, in its sole
discretion, to make any such CAF Advance Offer, it shall advise the U.S.
Borrower of the contents of its CAF Advance Offer before 10:15 A.M., New York
City time, on the date which is three Business Days before the proposed
Borrowing Date.
(c) In the case of a Fixed Rate CAF Advance Request, upon receipt of
notice from the Administrative Agent of the contents of such CAF Advance
Request, each Lender may elect, in its sole discretion, to offer irrevocably to
make one or more CAF Advances at a rate of interest determined by such Lender in
its sole discretion for each such CAF Advance. Any such irrevocable offer shall
be made by delivering a CAF Advance Offer to the Administrative Agent before
9:30 A.M., New York City time, on the proposed Borrowing Date, setting forth:
(i) the maximum amount of CAF Advances for each CAF Advance
Maturity Date, and the aggregate maximum amount for all CAF Advance
Maturity Dates, which such Lender would be willing to make (which amounts
may, subject to subsection 4.1, exceed such Lender's Revolving Credit
Commitment); and
(ii) the rate of interest at which such Lender is willing to make
each such CAF Advance.
The Administrative Agent shall advise the U.S. Borrower before 10:00 A.M., New
York City time, on the proposed Borrowing Date of the contents of each such CAF
Advance Offer received by it. If the Administrative Agent, in its capacity as a
Lender, shall elect, in its sole discretion, to make any such CAF Advance Offer,
it shall advise the U.S. Borrower of the contents of its CAF Advance Offer
before 9:15 A.M., New York City time, on the proposed Borrowing Date.
(d) Before 11:30 A.M., New York City time, three Business Days before
the proposed Borrowing Date (in the case of CAF Advances requested by a LIBO
Rate CAF Advance Request) and before 10:30 A.M., New York City time, on the
proposed Borrowing Date (in the case of CAF Advances requested by a Fixed Rate
CAF Advance Request), the U.S. Borrower, in its absolute discretion, shall:
36
(i) cancel such CAF Advance Request by giving the Administrative
Agent telephone notice to that effect, or
(ii) by giving telephone notice to the Administrative Agent
(immediately confirmed by delivery to the Administrative Agent of a CAF
Advance Confirmation by facsimile transmission) (A) subject to the
provisions of subsection 4.2(e), accept one or more of the offers made by
any Lender or Lenders pursuant to subsection 4.2(b) or subsection 4.2(c),
as the case may be, and (B) reject any remaining offers made by Lenders
pursuant to subsection 4.2(b) or subsection 4.2(c), as the case may be.
(e) The U.S. Borrower's acceptance of CAF Advances in response to any
CAF Advance Offers shall be subject to the following limitations:
(i) the amount of CAF Advances accepted for each CAF Advance
Maturity Date specified by any Lender in its CAF Advance Offer shall not
exceed the maximum amount for such CAF Advance Maturity Date specified in
such CAF Advance Offer;
(ii) the aggregate amount of CAF Advances accepted for all CAF
Advance Maturity Dates specified by any Lender in its CAF Advance Offer
shall not exceed the aggregate maximum amount specified in such CAF Advance
Offer for all such CAF Advance Maturity Dates;
(iii) the U.S. Borrower may not accept offers for CAF Advances
for any CAF Advance Maturity Date in an aggregate principal amount in
excess of the maximum principal amount requested in the related CAF Advance
Request; and
(iv) if the U.S. Borrower accepts any of such offers, it must
accept offers based solely upon pricing for each relevant CAF Advance
Maturity Date and upon no other criteria whatsoever, and if two or more
Lenders submit offers for any CAF Advance Maturity Date at identical
pricing and the U.S. Borrower accepts any of such offers but does not wish
to (or, by reason of the limitations set forth in subsection 4.1, cannot)
borrow the total amount offered by such Lenders with such identical
pricing, the U.S. Borrower shall accept offers from all of such Lenders in
amounts allocated among them pro rata according to the amounts offered by
such Lenders (with appropriate rounding, in the sole discretion of the U.S.
Borrower, to assure that each accepted CAF Advance is an integral multiple
of $1,000,000); provided that if the number of Lenders that submit offers
for any CAF Advance Maturity Date at identical pricing is such that, after
the U.S. Borrower accepts such offers pro rata in accordance with the
foregoing provisions of this paragraph, the CAF Advance to be made by any
such Lender would be less than $5,000,000 principal amount, the number of
such Lenders shall be reduced by the Administrative Agent by lot until the
CAF Advances to be made by each such remaining Lender would be in a
principal amount of $5,000,000 or an integral multiple of $1,000,000 in
excess thereof.
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(f) If the U.S. Borrower notifies the Administrative Agent that a CAF
Advance Request is cancelled pursuant to subsection 4.2(d)(i), the
Administrative Agent shall give prompt telephone notice thereof to the Lenders.
(g) If the Borrower accepts pursuant to subsection 4.2(d)(ii) one or
more of the offers made by any Lender or Lenders, the Administrative Agent
promptly shall notify each Lender which has made such an offer of (i) the
aggregate amount of such CAF Advances to be made on such Borrowing Date for each
CAF Advance Maturity Date and (ii) the acceptance or rejection of any offers to
make such CAF Advances made by such Lender. Before 12:00 Noon, New York City
time, on the Borrowing Date specified in the applicable CAF Advance Request,
each Lender whose CAF Advance Offer has been accepted shall make available to
the Administrative Agent at its office set forth in subsection 15.2 the amount
of CAF Advances to be made by such Lender, in immediately available funds. The
Administrative Agent will make such funds available to the U.S. Borrower as soon
as practicable on such date at such office of the Administrative Agent. As soon
as practicable after each Borrowing Date, the Administrative Agent shall notify
each Lender of the aggregate amount of CAF Advances advanced on such Borrowing
Date and the respective CAF Advance Maturity Dates thereof.
4.3 CAF Advance Payments. (a) The U.S. Borrower shall pay to the
Administrative Agent, for the account of each Lender which has made a CAF
Advance, on the applicable CAF Advance Maturity Date the then unpaid principal
amount of such CAF Advance. The U.S. Borrower shall not have the right to prepay
any principal amount of any CAF Advance without the consent of the Lender to
which such CAF Advance is owed.
(b) The U.S. Borrower shall pay interest on the unpaid principal
amount of each CAF Advance from the Borrowing Date to applicable CAF Advance
Maturity Date at the rate of interest specified in the CAF Advance Offer
accepted by the Borrower in connection with such CAF Advance (calculated on the
basis of a 360-day year for actual days elapsed), payable on each applicable CAF
Advance Interest Payment Date.
(c) If any principal of, or interest on, any CAF Advance shall not be
paid when due (whether at the stated maturity, by acceleration or otherwise),
such CAF Advance shall, without limiting any rights of any Lender under this
Agreement, bear interest from the date on which such payment was due at a rate
per annum which is 2% above the rate which would otherwise be applicable to such
CAF Advance until the stated CAF Advance Maturity Date of such CAF Advance, and
for each day thereafter at a rate per annum which is 2% above the ABR, in each
case until paid in full (as well after as before judgment). Interest accruing
pursuant to this paragraph (c) shall be payable from time to time on demand.
4.4 Evidence of Debt. (a) The U.S. Borrower unconditionally
promises to pay to the Administrative Agent, for the account of each Lender that
makes a CAF Advance, on the CAF Advance Maturity Date with respect thereto, the
principal amount of such CAF Advance. The U.S. Borrower further unconditionally
promises to pay interest on each such CAF Advance for the period from and
including the Borrowing Date of such CAF Advance
38
on the unpaid principal amount thereof from time to time outstanding at the
applicable rate per annum determined as provided in, and payable as specified
in, subsection 4.3(b).
(b) Each Lender shall maintain in accordance with its usual practice
appropriate records evidencing indebtedness of the U.S. Borrower to such Lender
resulting from each CAF Advance of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time in respect of such CAF Advance.
(c) The Administrative Agent shall maintain the Register pursuant to
subsection 15.6(d), and a record therein for each Lender, in which shall be
recorded (i) the amount of each CAF Advance made by such Lender, the CAF Advance
Maturity Date thereof, the interest rate applicable thereto and each CAF Advance
Interest Payment Date applicable thereto, and (ii) the amount of any sum
received by the Administrative Agent hereunder from the U.S. Borrower on account
of such CAF Advance.
(d) The entries made in the Register and the records of each Lender
maintained pursuant to this subsection 4.4 shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such record, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the CAF Advances
made by such Lender in accordance with the terms of this Agreement.
4.5 Certain Restrictions. A CAF Advance Request may request offers
for CAF Advances to be made on not more than one Borrowing Date and to mature on
not more than three CAF Advance Maturity Dates. No CAF Advance Request may be
submitted earlier than five Business Days after submission of any other CAF
Advance Request.
SECTION 5. AMOUNT AND TERMS OF MULTICURRENCY
COMMITMENT
5.1 Multicurrency Commitments. Subject to the terms and conditions
hereof, each Multicurrency Lender severally agrees to make revolving credit
loans (each, a "Multicurrency Loan") in any Available Foreign Currency to any
Foreign Subsidiary Borrower from time to time during the Revolving Credit
Commitment Period so long as after giving effect thereto (a) the Available
Multicurrency Commitment of each Multicurrency Lender is greater than or equal
to zero, (b) the aggregate outstanding principal amount of Multicurrency Loans
does not exceed an amount of which the U.S. Dollar Equivalent is $500,000,000
and (c) the Aggregate Total Outstandings of all Lenders do not exceed the
Aggregate Revolving Credit Commitments. During the Revolving Credit Commitment
Period, any Foreign Subsidiary Borrower may use the Multicurrency Commitments by
borrowing, repaying the Multicurrency Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
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5.2 Repayment of Multicurrency Loans; Evidence of Debt. (a) Each
Foreign Subsidiary Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Multicurrency Lender the then
unpaid principal amount of each Multicurrency Loan of such Multicurrency Lender
to such Foreign Subsidiary Borrower on the Revolving Credit Termination Date and
on such other date(s) and in such other amounts as may be required from time to
time pursuant to this Agreement. Each Foreign Subsidiary Borrower hereby
further agrees to pay interest on the unpaid principal amount of the
Multicurrency Loans advanced to it and from time to time outstanding until
payment thereof in full at the rates per annum, and on the dates, set forth in
subsection 7.1.
(b) Each Multicurrency Lender shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of each Foreign
Subsidiary Borrower to such Multicurrency Lender resulting from each
Multicurrency Loan of such Multicurrency Lender from time to time, including the
amounts of principal and interest payable thereon and paid to such Multicurrency
Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
subsection 15.6(d), and a subaccount therein for each Multicurrency Lender, in
which shall be recorded (i) the amount of each Multicurrency Loan made
hereunder, (ii) the amount of any principal or interest due and payable or to
become due and payable from each Foreign Subsidiary Borrower to each
Multicurrency Lender hereunder in respect of the Multicurrency Loans and (iii)
both the amount of any sum received by the Administrative Agent hereunder from
each Foreign Subsidiary Borrower in respect of the Multicurrency Loans and each
Multicurrency Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Multicurrency Lender maintained pursuant to subsection 5.2(b) shall, to the
extent permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of each Foreign Subsidiary Borrower therein recorded;
provided, however, that the failure of any Multicurrency Lender or the
Administrative Agent to maintain the Register or any such account, or any error
therein, shall not in any manner affect the obligation of such Foreign
Subsidiary Borrower to repay (with applicable interest) the Multicurrency Loans
made to such Foreign Subsidiary Borrower by such Multicurrency Lender in
accordance with the terms of this Agreement.
5.3 Procedure for Multicurrency Borrowing. Any Foreign Subsidiary
Borrower may request the Multicurrency Lenders to make Multicurrency Loans
during the Revolving Credit Commitment Period on any Business Day by delivering
a Notice of Multicurrency Loan Borrowing. Each borrowing under the
Multicurrency Commitments shall be in an amount in an Available Foreign Currency
of which the U.S. Dollar Equivalent is equal to at least $10,000,000 (or, if the
then Aggregate Available Multicurrency Commitments are less than $10,000,000,
such lesser amount). Upon receipt of any such Notice of Multicurrency Borrowing
from any Foreign Subsidiary Borrower, the Administrative Agent shall promptly
notify each Multicurrency Lender thereof. Not later than the funding time for
the relevant Available Foreign Currency set forth in the Administrative Schedule
each Multicurrency Lender shall make an amount equal to its Multicurrency
Commitment
40
Percentage of the principal amount of Multicurrency Loans requested to be made
on such Borrowing Date available to the Administrative Agent at the funding
office for the relevant Available Foreign Currency set forth in the
Administrative Schedule in the relevant Available Foreign Currency and in
immediately available funds. The amounts made available by each Multicurrency
Lender will then be made available to the relevant Foreign Subsidiary Borrower
at the funding office for the relevant Available Foreign Currency set forth in
the Administrative Schedule and in like funds as received by the Administrative
Agent.
5.4 Termination or Reduction of Multicurrency Commitments. The U.S.
Borrower shall have the right, upon not less than three Business Days' notice to
the Administrative Agent, to terminate the Multicurrency Commitments or, from
time to time, to reduce the amount of the Multicurrency Commitments; provided
that no such termination or reduction shall be permitted if, after giving
effect thereto and to any prepayments of the Loans made on the effective date
thereof, the Available Multicurrency Commitment of any Multicurrency Lender
would be less than zero. Any such reduction shall be in an amount equal to
U.S.$10,000,000 or a whole multiple of U.S.$1,000,000 in excess thereof and
shall reduce permanently the Multicurrency Commitments then in effect.
SECTION 6. ALTERNATE CURRENCY FACILITIES
6.1 Terms of Alternate Currency Facilities. (a) Subject to the
provisions of this Section 6, the U.S. Borrower may in its discretion from time
to time designate any Subsidiary of the U.S. Borrower organized under the laws
of any jurisdiction outside the United States as an "Alternate Currency
Borrower" and any Qualified Credit Facility to which such Alternate Currency
Borrower and any one or more Lenders (or its affiliates, agencies or branches)
is a party as an "Alternate Currency Facility", with the consent of each such
Lender in its sole discretion, by delivering an Alternate Currency Facility
Addendum to the Administrative Agent and the Lenders (through the Administrative
Agent) executed by the U.S. Borrower, each such Alternate Currency Borrower and
each such Lender, provided, that on the effective date of such designation no
Event of Default shall have occurred and be continuing. Concurrently with the
delivery of an Alternate Currency Facility Addendum, the U.S. Borrower or the
relevant Alternate Currency Borrower shall furnish to the Administrative Agent
copies of all documentation executed and delivered by any Alternate Currency
Borrower in connection therewith, together with, if applicable, an English
translation thereof. Except as otherwise provided in this Section 6 or in the
definition of "Qualified Credit Facility" in subsection 1.1, the terms and
conditions of each Alternate Currency Facility shall be determined by mutual
agreement of the relevant Alternate Currency Borrower(s) and Alternate Currency
Lender(s). The documentation governing each Alternate Currency Facility shall
(i) contain an express acknowledgement that such Alternate Currency Facility
shall be subject to the provisions of this Section 6 and (ii) if more than one
Lender is a party thereto, designate an Alternate Currency Facility Agent for
such Alternate Currency Facility. Each of the U.S. Borrower and, by agreeing to
any Alternate Currency Facility designation as contemplated hereby, each
relevant Alternate Currency Lender (if any) party thereto which is an affiliate,
branch or agency of a Lender, acknowledges and agrees that each reference in
this Agreement to any Lender shall, to the extent applicable, be deemed to be a
reference to
41
such Alternate Currency Lender. In the event of any inconsistency between the
terms of this Agreement and the terms of any Alternate Currency Facility, the
terms of this Agreement shall prevail.
(b) The documentation governing each Alternate Currency Facility
shall set forth (i) the maximum amount (expressed in U.S. Dollars) available to
be borrowed from all Alternate Currency Lenders under such Alternate Currency
Facility (as the same may be reduced from time to time, an "Alternate Currency
Facility Maximum Borrowing Amount") and (ii) with respect to each Alternate
Currency Lender party to such Alternate Currency Facility, the maximum amount
(expressed in U.S. Dollars) available to be borrowed from such Alternate
Currency Lender thereunder (as the same may be reduced from time to time, an
"Alternate Currency Lender Maximum Borrowing Amount").
(c) Except as otherwise required by applicable law, in no event shall
the Alternate Currency Lenders party to an Alternate Currency Facility have the
right to accelerate the Alternate Currency Loans outstanding thereunder, or to
terminate their commitments (if any) to make such Alternate Currency Loans prior
to the earlier of the stated termination date in respect thereof or the
Revolving Credit Termination Date, except, in each case, in connection with an
acceleration of the Loans or a termination of the Commitments pursuant to
Section 13, provided, that nothing in this paragraph (c) shall be deemed to
require any Alternate Currency Lender to make an Alternate Currency Loan if the
applicable conditions precedent to the making of such Alternate Currency Loan
set forth in the documentation governing the relevant Alternate Currency
Facility have not been satisfied. No Alternate Currency Loan may be made under
an Alternate Currency Facility if (i) after giving effect thereto, the
conditions precedent in subsection 9.2 would not be satisfied or (ii) after
giving effect to the making of such Alternate Currency Loan and the simultaneous
application of the proceeds thereof, the Aggregate Total Outstandings of all
Lenders at any time exceeds the Aggregate Revolving Credit Commitments.
(d) The relevant Alternate Currency Borrower shall furnish to the
Administrative Agent copies of any amendment, supplement or other modification
(including any change in commitment amounts or in the Alternate Currency Lenders
participating in any Alternate Currency Facility) to the terms of any Alternate
Currency Facility promptly after the effectiveness thereof (together with, if
applicable, an English translation thereof). If any such amendment, supplement
or other modification to an Alternate Currency Facility shall (i) add an
Alternate Currency Lender as an Alternate Currency Lender thereunder or (ii)
change the Alternate Currency Facility Maximum Borrowing Amount or any Alternate
Currency Lender Maximum Borrowing Amount with respect thereto, the U.S. Borrower
shall promptly furnish an appropriately revised Alternate Currency Facility
Addendum, executed by the U.S. Borrower, the relevant Alternate Currency
Borrower and the affected Alternate Currency Lenders (or any agent acting on
their behalf), to the Administrative Agent and the Lenders (through the
Administrative Agent).
(e) The U.S. Borrower may terminate its designation of a facility as
an Alternate Currency Facility, with the consent of each Alternate Currency
Lender party thereto in its sole discretion, by written notice to the
Administrative Agent, which notice shall be
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executed by the U.S. Borrower, the relevant Alternate Currency Borrower and each
Alternate Currency Lender party to such Alternate Currency Facility (or any
agent acting on their behalf). Once notice of such termination is received by
the Administrative Agent, such Alternate Currency Facility and the loans and
other obligations outstanding thereunder shall immediately cease to be subject
to the terms of this Agreement.
6.2 Reporting of Alternate Currency Outstandings. (a) On the date of
the making of any Alternate Currency Loan having a maturity of 30 or more days
to an Alternate Currency Borrower and on the last Business Day of each month on
which an Alternate Currency Borrower has any outstanding Alternate Currency
Loans, the Alternate Currency Facility Agent for such Alternate Currency
Borrower, shall deliver to the Administrative Agent a Notice of Alternate
Currency Outstandings. The Administrative Agent will, at the request of any
Alternate Currency Facility Agent, advise such Alternate Currency Facility Agent
of the Exchange Rate used by the Administrative Agent in calculating the U.S.
Dollar Equivalent of Alternate Currency Loans under the related Alternate
Currency Facility on any date.
(b) For purposes of any calculation under this Agreement in which the
amount of the Aggregate Alternate Currency Outstandings of any Lender is a
component, the Administrative Agent shall make such calculation on the basis of
the Notices of Alternate Currency Outstanding received by it at least two
Business Days prior to the date of such calculation.
SECTION 7. GENERAL PROVISIONS APPLICABLE TO LOANS
7.1 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such
Interest Period plus the Applicable Margin in effect for such day.
(b) Each ABR Loan shall bear interest for each day that it is
outstanding at a rate per annum equal to the Alternate Base Rate for such day
plus the Applicable Margin in effect for such day.
(c) Each Multicurrency Loan shall bear interest for each day that it
is outstanding at a rate per annum equal to the applicable Eurocurrency Rate
plus the Applicable Margin in effect for such day.
(d) Each Money Market Rate Swing Line Loan shall bear interest during
the interest period applicable thereto at a rate per annum equal to the
applicable Money Market Rate; provided, that any Money Market Rate Swing Line
Loan in which lenders purchase participating interests pursuant to the last
sentence of subsection 3.5(a) shall, from and after the date of such purchase,
bear interest until the end of the interest period applicable thereto at a rate
per annum equal to the higher of (i) 2% above the Money Market Rate applicable
thereto and (ii) 2% above the ABR.
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(e) If all or a portion of (i) the principal amount of any Loan, (ii)
any interest payable thereon or (iii) any fee or other amount payable hereunder
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum equal to
the rate that would otherwise be applicable thereto pursuant to the foregoing
provisions of this subsection plus 2% or, if higher, in the case of amounts
required to be paid in U.S. Dollars, the rate described in paragraph (b) of this
subsection plus 2%.
(f) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (e) of this
subsection shall be payable from time to time on demand.
7.2 Conversion and Continuation Options. (a) The U.S. Borrower may
elect from time to time to convert outstanding Eurodollar Loans (in whole or in
part) to ABR Loans by giving the Administrative Agent at least two Business
Days' prior irrevocable notice of such election, provided that any such
conversion of Eurodollar Loans may only be made on the last day of an Interest
Period with respect thereto. The U.S. Borrower may elect from time to time to
convert outstanding ABR Loans (other than Swing Line Loans) (in whole or in
part) to Eurodollar Loans by giving the Administrative Agent at least three
Business Days' prior irrevocable notice of such election. Any such notice of
conversion to Eurodollar Loans shall specify the length of the initial Interest
Period or Interest Periods therefor. Upon receipt of any such notice the
Administrative Agent shall promptly notify each Lender thereof. All or any part
of outstanding Eurodollar Loans and ABR Loans may be converted as provided
herein, provided that (i) no ABR Loan may be converted into a Eurodollar Loan
when any Default or Event of Default has occurred and is continuing and the
Administrative Agent or the Majority Lenders have determined that such
conversion is not appropriate, (ii) any such conversion may only be made if,
after giving effect thereto, subsection 7.3 shall not have been violated, (iii)
no ABR Loan may be converted into a Eurodollar Loan after the date that is one
month prior to the Revolving Credit Termination Date and (iv) Swing Line Loans
may not be converted to Eurodollar Loans.
(b) Any Eurodollar Loans may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the U.S. Borrower
giving notice to the Administrative Agent of the length of the next Interest
Period to be applicable to such Loans determined in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection 1.1,
provided that no Eurodollar Loan may be continued as such (i) when any Default
or Event of Default has occurred and is continuing and the Administrative Agent
or the Majority Lenders have determined that such continuation is not
appropriate, (ii) if, after giving effect thereto, subsection 7.3 would be
contravened or (iii) after the date that is one month prior to the Revolving
Credit Termination Date, and provided, further, that if the U.S. Borrower shall
fail to give such notice or if such continuation is not permitted pursuant to
the preceding proviso such Eurodollar Loans shall be automatically converted to
ABR Loans on the last day of such then expiring Interest Period.
(c) Any Multicurrency Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
relevant Foreign Subsidiary
44
Borrower giving a Notice of Multicurrency Loan Continuation, provided, that if
the relevant Foreign Subsidiary Borrower shall fail to give such Notice of
Multicurrency Loan Continuation, such Multicurrency Loans shall automatically be
continued for an Interest Period of one month.
7.3 Minimum Amounts of Tranches. Except as provided in Annex A, all
borrowings, conversions and continuations of Revolving Credit Loans and
Multicurrency Loans hereunder and all selections of Interest Periods hereunder
shall be in such amounts and be made pursuant to such elections so that, after
giving effect thereto, (a) the aggregate principal amount of the Eurodollar
Loans comprising each Tranche shall be equal to $10,000,000 or a whole multiple
of $1,000,000 in excess thereof, (b) the aggregate principal amount of the
Multicurrency Loans comprising each Tranche shall be in an amount of which the
U.S. Dollar Equivalent is at least $10,000,000 and (c) there shall not be more
than 20 Tranches at any one time outstanding.
7.4 Optional and Mandatory Prepayments. (a) The U.S. Borrower may
at any time and from time to time prepay Revolving Credit Loans and/or Swing
Line Loans (other than Money Market Rate Swing Line Loans), in whole or in part,
upon at least three Business Days' irrevocable notice to the Administrative
Agent (in the case of Eurodollar Loans) and at least one Business Day's
irrevocable notice to the Administrative Agent (in the case of ABR Loans),
specifying the date and amount of prepayment and whether the prepayment is (i)
of Revolving Credit Loans, Swing Line Loans or a combination thereof and (ii) of
Eurodollar Loans, ABR Loans or a combination thereof, and, in each case if a
combination thereof, the amount allocable to each. Upon the receipt of any such
notice the Administrative Agent shall promptly notify each Lender thereof. If
any such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein, together with any amounts payable
pursuant to subsection 7.12. Except as provided in Annex A, partial prepayments
of the Revolving Credit Loans shall be in an aggregate principal amount of
$10,000,000 or a whole multiple of $1,000,000 in excess thereof. Partial
prepayments of the Swing Line Loans shall be in aggregate principal amount of
$1,000,000 or a whole multiple of $1,000,000 in excess thereof.
(b) The Foreign Subsidiary Borrowers may at any time and from time to
time prepay, without premium or penalty, the Multicurrency Loans, in whole or in
part, upon at least three Business Days' irrevocable notice to the
Administrative Agent specifying the date and amount of prepayment. Upon the
receipt of any such notice, the Administrative Agent shall promptly notify each
Multicurrency Lender thereof. If any such notice is given, the amount specified
in such notice shall be due and payable on the date specified therein.
Partial prepayments of Multicurrency Loans shall be in an aggregate principal
amount of which the U.S. Dollar Equivalent is at least $10,000,000.
(c) (i) If, at any time during the Revolving Credit Commitment
Period, for any reason the Aggregate Total Outstandings of all Lenders exceed
the aggregate Revolving Credit Commitments then in effect, (A) the U.S. Borrower
shall, without notice or demand, immediately prepay the Swing Line Loans and the
Revolving Credit Loans and/or (B) the Foreign Subsidiary Borrowers shall,
without notice or demand, immediately prepay the
45
Multicurrency Loans such that the sum of (I) the aggregate principal amount of
the Swing Line Loans and Revolving Credit Loans so prepaid and (II) the U.S.
Dollar Equivalent of the aggregate principal amount of the Multicurrency Loans
so prepaid, equals or exceeds the amount of such excess.
(ii) If, at any time during the Revolving Credit Commitment
Period, for any reason either (A) the Aggregate Total Outstandings of all
Multicurrency Lenders exceed the aggregate Revolving Credit Commitments of the
Multicurrency Lenders or (B) the Aggregate Multicurrency Outstandings exceed the
aggregate Multicurrency Commitments, (I) the U.S. Borrower shall, without notice
or demand, immediately prepay the Swing Line Loans and the Revolving Credit
Loans and/or (II) the Foreign Subsidiary Borrowers shall, without notice or
demand, immediately prepay Multicurrency Loans in amounts such that the sum of
(x) the aggregate principal amount of the Swing Line Loans and Revolving Credit
Loans so prepaid and (y) the U.S. Dollar Equivalent of the Multicurrency Loans
so prepaid, equals or exceeds the amount of such excess.
(d) Each prepayment of Loans pursuant to this subsection 7.4 shall be
accompanied by accrued and unpaid interest on the amount prepaid to the date of
prepayment and any amounts payable under subsection 7.12 in connection with such
prepayment.
(e) Notwithstanding the foregoing, mandatory prepayments of Revolving
Credit Loans or Multicurrency Loans that would otherwise be required pursuant to
this subsection 7.4 solely as a result of fluctuations in Exchange Rates from
time to time shall only be required to be made pursuant to this subsection 7.4
on the last Business Day of each month on the basis of the Exchange Rate in
effect on such Business Day.
(f) Prepayments of the Loans pursuant to this subsection 7.4 shall be
applied as follows: (i) in the case of prepayments made by the U.S. Borrower,
first, to prepay Swing Line Loans then outstanding (other than Money Market Rate
Swing Line Loans), second, to prepay ABR Loans (other than Swing Line Loans)
then outstanding and third, to prepay Money Market Rate Swing Line Loans, if
any, and Eurodollar Loans then outstanding and (ii) in case of prepayments made
by a Foreign Subsidiary Borrower, to prepay Multicurrency Loans borrowed by such
Foreign Subsidiary Borrower.
(g) The U.S. Borrower shall prepay all Swing Line Loans then
outstanding (other than Money Market Rate Swing Line Loans) simultaneously with
each borrowing of Revolving Credit Loans.
7.5 Facility Fees; Other Fees. (a) The U.S. Borrower agrees to pay
to the Administrative Agent for the account of each Lender, a facility fee for
the period from and including the Effective Date to but excluding the Revolving
Credit Termination Date (or such earlier date on which the Revolving Credit
Commitments shall terminate as provided herein); each such facility fee shall be
computed at the Facility Fee Rate on the amount of the Revolving Credit
Commitment of such Lender during the period for which payment is made, payable
quarterly in arrears on the last day of each March, June, September and December
and on the Revolving Credit Termination Date or such earlier date on which the
Revolving
46
Credit Commitments shall terminate as provided herein, commencing on the first
such date to occur after the date hereof.
(b) The U.S. Borrower shall pay (without duplication of any other fee
payable under this subsection 7.5) to Chase and CSI, for their respective
accounts, all fees separately agreed to by the U.S. Borrower and Chase or CSI,
as the case may be.
(c) The U.S. Borrower shall (without duplication of any other fee
payable under this subsection 7.5) pay to the Administrative Agent all fees
separately agreed to by the U.S. Borrower and the Administrative Agent.
7.6 Computation of Interest and Fees. (a) Interest based on the
Eurodollar Rate, the Eurocurrency Rate or a Money Market Rate shall be
calculated on the basis of a 360-day year for the actual days elapsed; and
facility fees and interest (other than interest based upon the Eurodollar Rate
or the Eurocurrency Rate) shall be calculated on the basis of a 365- (or 366-,
as the case may be) day year for the actual days elapsed. The Administrative
Agent shall as soon as practicable notify the U.S. Borrower and the Lenders of
each determination of a Eurodollar Rate or a Eurocurrency Rate. Any change in
the interest rate on a Loan resulting from a change in the Alternate Base Rate
or a change in the Prime Rate shall become effective as of the opening of
business on the day on which such change becomes effective. The Administrative
Agent shall as soon as practicable notify the U.S. Borrower and the Lenders of
the effective date and the amount of each such change in the Alternate Base
Rate.
(b) Each determination of an interest rate by the Administrative
Agent, pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrowers and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of a Borrower, deliver to such
Borrower a statement showing in reasonable detail the calculations used by the
Administrative Agent in determining any interest rate pursuant to subsection
7.1(a).
(c) (i) If any Reference Lender shall for any reason no longer have a
Revolving Credit Commitment or any Revolving Credit Loans, such Reference Lender
shall thereupon cease to be a Reference Lender, and if, as a result, there shall
only be one Reference Lender remaining, the Administrative Agent (after
consultation with the U.S. Borrower and the Lenders) shall, by notice to the
U.S. Borrower and the Lenders, designate another Lender as a Reference Lender so
that there shall at all times be at least two Reference Lenders.
(d) Each Reference Lender shall use its best efforts to furnish
quotations of rates to the Administrative Agent as contemplated hereby. If any
of the Lenders shall be unable or shall otherwise fail to supply such rates to
the Administrative Agent upon its request, the rate of interest shall, subject
to the provisions of subsection 7.7, be determined on the basis of the
quotations of the remaining Reference Lenders or Reference Lender, as
applicable.
47
7.7 Inability to Determine Interest Rate. If prior to the first day
of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrowers) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate or the
Eurocurrency Rate, as the case may be, for such Interest Period, or
(b) the Administrative Agent has received notice from the Majority
Lenders that the Eurodollar Rate or Eurocurrency Rate, as the case may be,
determined or to be determined for such Interest Period will not adequately
and fairly reflect the cost to such Lenders of making or maintaining their
Eurodollar Loans or Multicurrency Loans, as the case may be, during such
Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
U.S. Borrower and the Lenders as soon as practicable thereafter. If such notice
is given (i) any Eurodollar Loans or Multicurrency Loans, as the case may be,
requested to be made on the first day of such Interest Period shall be made as
ABR Loans, (ii) any Revolving Credit Loans that were to have been converted on
the first day of such Interest Period to or continued as Eurodollar Loans shall
be converted to or continued as ABR Loans, (iii) any outstanding Eurodollar
Loans shall be converted on the first day of such Interest Period to ABR Loans
and (iv) any Multicurrency Loans to which such Interest Period relates shall be
repaid on the first day of such Interest Period. Until such notice has been
withdrawn by the Administrative Agent, no further Eurodollar Loans or
Multicurrency Loans shall be made or continued as such, nor shall the U.S.
Borrower have the right to convert ABR Loans to Eurodollar Loans.
7.8 Pro Rata Treatment and Payments. (a) (i) Except as provided in
subsection 2.5, each borrowing of Revolving Credit Loans by the U.S. Borrower
from the Lenders hereunder shall be made pro rata according to the Funding
Commitment Percentages of the Lenders in effect on the date of such borrowing.
Each payment by the U.S. Borrower on account of any facility fee hereunder shall
be allocated by the Administrative Agent among the Lenders in accordance with
the respective amounts which such Lenders are entitled to receive pursuant to
subsection 7.5(a). Any reduction of the Revolving Credit Commitments of the
Lenders shall be allocated by the Administrative Agent among the Lenders pro
rata according to the Revolving Credit Commitment Percentages of the Lenders.
Except as provided in subsection 2.5, each payment (other than any optional
prepayment) by the U.S. Borrower on account of principal of the Revolving Credit
Loans or the CAF Advances shall be allocated by the Administrative Agent pro
rata according to the respective principal amounts thereof then due and owing to
each Lender. Each optional prepayment by the U.S. Borrower on account of
principal of or interest on the Revolving Credit Loans shall be allocated by the
Administrative Agent pro rata according to the respective outstanding principal
amounts thereof. All payments (including prepayments) to be made by the U.S.
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without set-off or counterclaim and shall be made prior
to 12:00 Noon, New York City time, on the due date thereof to the Administrative
Agent, for the account of the Lenders, at
48
the Administrative Agent's office specified in subsection 15.2, in Dollars and
in immediately available funds. The Administrative Agent shall distribute such
payments to the Lenders entitled to receive the same promptly upon receipt in
like funds as received.
(ii) Each borrowing of Multicurrency Loans by any Foreign
Subsidiary Borrower shall be made, and any reduction of the Multicurrency
Commitments shall be allocated by the Administrative Agent, pro rata according
to the Multicurrency Commitment Percentages of the Multicurrency Lenders. Each
payment (including each prepayment) by a Foreign Subsidiary Borrower on account
of principal of and interest on Multicurrency Loans shall be allocated by the
Administrative Agent pro rata according to the respective principal amounts of
the Multicurrency Loans then due and owing by such Foreign Subsidiary Borrower
to each Multicurrency Lender. All payments (including prepayments) to be made by
a Foreign Subsidiary Borrower hereunder, whether on account of principal,
interest, fees or otherwise, shall be made without set-off or counterclaim and
shall be made at or before the payment time for the currency of such
Multicurrency Loan set forth in the Administrative Schedule, on the due date
thereof to the Administrative Agent, for the account of the Multicurrency
Lenders, at the payment office for the currency of such Multicurrency Loan set
forth in the Administrative Schedule, in the currency of such Multicurrency Loan
and in immediately available funds. The Administrative Agent shall distribute
such payments to the Multicurrency Lenders entitled to receive the same promptly
upon receipt in like funds as received.
(iii) If any payment hereunder (other than payments on the
Eurodollar Loans or the Multicurrency Loans becomes due and payable on a day
other than a Business Day, the maturity of such payment shall be extended to the
next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension. If any payment on a Eurodollar Loan or a Multicurrency Loan becomes
due and payable on a day other than a Business Day, the maturity of such payment
shall be extended to the next succeeding Business Day (and, with respect to
payments of principal, interest thereon shall be payable at the then applicable
rate during such extension) unless the result of such extension would be to
extend such payment into another calendar month, in which event such payment
shall be made on the immediately preceding Business Day.
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a Borrowing Date that such Lender will not make
the amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the applicable
Borrower a corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate per annum equal to (i) the daily average Federal
Funds Effective Rate (in the case of a borrowing of Revolving Credit Loans or
CAF Advances) and (ii) the Administrative Agent's reasonable estimate of its
average daily cost of funds (in the case of a borrowing of Multicurrency Loans),
in each case for the period until such Lender makes such
49
amount immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this subsection shall be conclusive in the absence of manifest error. If
such Lender's share of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days of such Borrowing
Date, the applicable Borrower shall repay such Lender's share of such borrowing
(together with interest thereon from the date such amount was made available to
such Borrower (i) at the rate per annum applicable to ABR Loans hereunder (in
the case of amounts made available to the U.S. Borrower) and (ii) the
Administrative Agent's reasonable estimate of its average daily cost of funds
plus the Applicable Margin applicable to Multicurrency Loans (in the case of a
borrowing of Multicurrency Loans)) to the Administrative Agent not later than
three Business Days after receipt of written notice from the Administrative
Agent specifying such Lender's share of such borrowing that was not made
available to the Administrative Agent. Nothing contained in this subsection
7.8(b) shall prejudice any claims otherwise available to the Borrowers against
any Lender as a result of such Lender's failure to make its share of any
borrowing available to the Administrative Agent for the account of a Borrower.
7.9 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans or Multicurrency Loans as contemplated by this Agreement, (a)
the commitment of such Lender hereunder to make Eurodollar Loans or
Multicurrency Loans, continue Eurodollar Loans or Multicurrency Loans as such
and convert ABR Loans to Eurodollar Loans shall forthwith be cancelled until
such time as it shall no longer be unlawful for such Lender to make or maintain
the affected Loans, (b) such Lender's Loans then outstanding as Eurodollar
Loans, if any, shall be converted automatically to ABR Loans on the respective
last days of the then current Interest Periods with respect to such Eurodollar
Loans or within such earlier period as may be required by law and (c) such
Lender's Multicurrency Loans shall be prepaid on the last day of the then
current Interest Period with respect thereto. If any such conversion of a
Eurodollar Loan occurs on a day which is not the last day of the then current
Interest Period Interest Period with respect thereto, the U.S. Borrower shall
pay to such Lender such amounts, if any, as may be required pursuant to
subsection 7.12 .
7.10 Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or compliance
by any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority, in each case made
subsequent to the date such Lender becomes a Lender:
(i) shall subject such Lender to any tax of any kind whatsoever
with respect to this Agreement, any Revolving Credit Note, any Eurodollar
Loan made by it or any Multicurrency Loan made by it or its obligation to
make any Eurodollar Loan or Multicurrency Loan or change the basis of
taxation of payments to such Lender in respect thereof (except for taxes
covered by subsection 7.11 and changes in rate of tax on the overall net
income of such Lender);
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(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets held
by, deposits or other liabilities in or for the account of, advances, loans
or other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the Eurodollar Rate, Eurocurrency Rate or Stub Eurodollar Rate
hereunder, including, without limitation, the imposition of any reserves
with respect to Eurocurrency Liabilities under Regulation D of the Board;
or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or Multicurrency Loans or to reduce
any amount receivable hereunder in respect thereof, then, in any such case, the
applicable Borrower shall promptly pay such Lender, upon its demand, any
additional amount or amounts as will compensate such Lender for such increased
cost or reduced amount receivable. If any Lender becomes entitled to claim any
additional amounts pursuant to this subsection, it shall as soon as reasonably
practicable thereafter (but in any event within 60 days after such Lender knows
thereof) provide notice to the applicable Borrower (with a copy to the
Administrative Agent) of the event by reason of which it becomes so entitled. A
certificate with reasonable supporting detail as to any additional amounts
payable pursuant to this subsection submitted by such Lender to such Borrower
(with a copy to the Administrative Agent) shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority, in each case, made subsequent to the date hereof, does or shall have
the effect of reducing the rate of return on such Lender's or such corporation's
capital as a consequence of its obligations hereunder to a level below that
which such Lender or such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then from time to time, after submission by such
Lender to the applicable Borrower (with a copy to the Administrative Agent) of a
written request with reasonable supporting detail therefor, such Borrower shall
pay to such Lender such additional amount or amounts as will compensate such
Lender for such reduction; provided, that such Lender shall allocate in good
faith to such Borrower an amount of the reduction associated with such adoption,
change or compliance.
7.11 Taxes. (a) All payments made by the Borrowers under this
Agreement and any Revolving Credit Note shall be made free and clear of, and
without deduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions
or withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, excluding (in the case of
51
payments made in respect of the Multicurrency Loans and the Alternate Currency
Loans) net income taxes, franchise taxes imposed in lieu of net income taxes,
taxes on gross income imposed by the United Kingdom, France or Germany, surtaxes
on any such taxes and (in the case of all other payments) taxes, in each case
imposed on the Administrative Agent or any Lender as a result of a present or
former connection between the Administrative Agent or such Lender and the
jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Administrative Agent or such Lender having
executed, delivered or performed its obligations or received a payment under, or
enforced, this Agreement, any Revolving Credit Note or any other Loan Document).
If any such non-excluded taxes, levies, imposts, duties, charges, fees,
deductions or withholdings ("Non-Excluded Taxes") are required to be withheld
from any amounts payable to the Administrative Agent or any Lender hereunder or
under any Revolving Credit Note, the amounts so payable to the Administrative
Agent or such Lender shall be increased to the extent necessary to yield to the
Administrative Agent or such Lender (after payment of all Non-Excluded Taxes)
interest or any such other amounts payable hereunder at the rates and in the
amounts specified in this Agreement, provided, however, that (i) the U.S.
Borrower shall not be required to increase any such amounts payable to any
Lender that is not organized under the laws of the United States of America or a
state thereof if such Lender fails to comply with the requirements of paragraph
(b) of this subsection, and (ii) a Foreign Subsidiary Borrower shall not be
required to increase any such amounts payable to any Lender if such Lender fails
to comply with the requirements of paragraph (c) of this subsection. Whenever
any Non-Excluded Taxes are payable by a Borrower, as promptly as possible
thereafter such Borrower shall send to the Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by such Borrower showing payment
thereof. If a Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, such Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure. The agreements in this subsection shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
(i) at least five Business Days before the date of the initial
payment to be made by the U.S. Borrower under this Agreement to such
Lender, deliver to the U.S. Borrower and the Administrative Agent (A) two
duly completed copies of United States Internal Revenue Service Form 1001
or 4224, or successor applicable form, as the case may be, certifying that
it is entitled to receive payments under this Agreement without deduction
or withholding of any United States federal income taxes and (B) an
Internal Revenue Service Form W-8 or W-9, or successor applicable form, as
the case may be, certifying that it is entitled to an exemption from United
States backup withholding tax;
52
(ii) deliver to the U.S. Borrower and the Administrative Agent
two further copies of any such form or certification at least five Business
Days before the date that any such form or certification expires or becomes
obsolete and after the occurrence of any event requiring a change in the
most recent form previously delivered by it to the Administrative Agent and
the U.S. Borrower; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the U.S.
Borrower or the Administrative Agent;
and each Lender (or Transferee) that is incorporated or organized under the laws
of the United States of America or a State thereof shall provide two properly
completed and duly executed copies of Form W-9, or successor applicable form, at
the times specified for delivery of forms under paragraph (b)(i) of this
subsection unless an event (including, without limitation, any change in treaty,
law or regulation) has occurred after the date such Person becomes a Lender
hereunder which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with respect to it and
such Lender so advises the U.S. Borrower and the U.S. Administrative Agent;
provided, however, that the U.S. Borrower may rely upon such forms provided to
the U.S. Borrower for all periods prior to the occurrence of such event. Each
Person that shall become a Lender or a Participant pursuant to subsection 15.6
shall, upon the effectiveness of the related transfer, be required to provide
all of the forms, certifications and statements required pursuant to this
subsection, provided that in the case of such Participant such Participant shall
furnish all such required forms, certifications and statements to the Lender
from which the related participation shall have been purchased.
(c) Each Lender that is not incorporated or organized under the laws
of the jurisdiction under which a Foreign Subsidiary Borrower is incorporated or
organized shall, upon request by such Foreign Subsidiary Borrower, within a
reasonable period of time after such request, deliver to such Foreign Subsidiary
Borrower or the applicable governmental or taxing authority, as the case may be,
any form or certificate required in order that any payment by such Foreign
Subsidiary Borrower under this Agreement or any Notes to such Lender may be made
free and clear of, and without deduction or withholding for or on account of any
Non-Excluded Tax (or to allow any such deduction or withholding to be at a
reduced rate) imposed on such payment under the laws of the jurisdiction under
which such Foreign Subsidiary Borrower is incorporated or organized, provided
that such Lender is legally entitled to complete, execute and deliver such form
or certificate and such completion, execution or submission would not materially
prejudice the legal position of such Lender.
7.12 Indemnity. Each Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of (a) default by such Borrower in payment when due of
the principal amount of or interest on any Eurodollar Loan or Multicurrency
Loan, (b) default by such Borrower in making a borrowing of, conversion into or
continuation of Eurodollar Loans or Money Market Rate Swing Line Loans after
such Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (c) default by such Borrower in making
53
any prepayment after such Borrower has given a notice thereof in accordance with
the provisions of this Agreement or (d) the making by such Borrower of a
prepayment of Eurodollar Loans or Multicurrency Loans on a day which is not the
last day of an Interest Period with respect thereto, or the making by such
Borrower of a prepayment of Money Market Rate Swing Line Loans on a day which is
not the last day of the interest period with respect thereto, including, without
limitation, in each case, any such loss or expense arising from the reemployment
of funds obtained by it or from fees payable to terminate the deposits from
which such funds were obtained. Such indemnification may include an amount equal
to the excess, if any, of (i) the amount of interest which would have accrued on
the amount so prepaid, or not so borrowed, converted or continued, for the
period from the date of such prepayment or of such failure to borrow, convert or
continue to the last day of such Interest Period or interest period (or, in the
case of a failure to borrow, convert or continue, the Interest Period or
interest period that would have commenced on the date of such failure) in each
case at the applicable rate of interest for such Loans provided for herein
(excluding, however, the Applicable Margin included therein, if any) over (ii)
the amount of interest (as reasonably determined by such Lender) which would
have accrued to such Lender on such amount by placing such amount on deposit for
a comparable period with leading banks in the interbank eurodollar market. All
payments required to be made by any Borrower to any Lender under this subsection
7.12 shall be made no later than 30 days after receipt by such Borrower of a
written notice from such Lender setting forth in reasonable detail the basis
upon which such Lender is entitled to receive such payments. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
7.13 Change of Lending Office. Each Lender agrees that if it makes
any demand for payment under subsection 7.10 or 7.11(a), or if any adoption or
change of the type described in subsection 7.9 shall occur with respect to it,
it will use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions and so long as such efforts would not be materially
disadvantageous to it, as determined in its sole discretion) to designate a
different lending office if the making of such a designation would reduce or
eliminate the need for a Borrower to make payments under subsection 7.10 or
7.11(a), or would eliminate or reduce the effect of any adoption or change
described in subsection 7.9.
7.14 Substitution of Lender. (a) In the event any Borrower is
required to pay any additional amounts pursuant to subsections 7.10 or 7.11(a),
such Borrower may, so long as no Event of Default has occurred and is
continuing, require any Lender claiming such additional amounts, upon five
Business Days' prior written notice from such Borrower, to assign the entire
then outstanding principal amount of the Loans owing to such Lender and the
entire Revolving Credit Commitment (and, if applicable, Multicurrency Commitment
and Alternate Currency Facility) of such Lender to another bank or financial
institution selected by such Borrower and, if such bank or financial institution
is not then a Lender, reasonably satisfactory to the Administrative Agent. Any
such assignment shall be effected in accordance with subsection 15.6(c) and, as
a condition to such assignment, such Borrower shall pay all amounts due to such
Lender hereunder on the effective date of such assignment.
54
(b) In the event that any Multicurrency Lender (including a
Transferee) does not, for any reason, deliver all forms and certificates
required to permit all payments by all Foreign Subsidiary Borrowers hereunder to
be made free and clear of, and without deduction or withholding for or on
account of, any Non-Excluded Taxes, the U.S. Borrower may, so long as no Event
of Default has occurred and is continuing, require such Multicurrency Lender,
upon five Business Days' prior written notice from the U.S. Borrower, to assign
the entire then outstanding principal amount of the Multicurrency Loans owing to
such Multicurrency Lender and the entire Multicurrency Commitment of such
Multicurrency Lender to another Lender selected by the U.S. Borrower which,
after giving effect to such assignment, will have a U.S. Revolving Credit
Commitment in excess of its Multicurrency Commitment. In the case of any such
assignment to another Lender, such assignee Lender shall assign to such assignor
Multicurrency Lender a principal amount of outstanding Revolving Credit Loans
owing to such assignee Lender equal to the lesser of (i) the U.S. Dollar
Equivalent of the amount of Multicurrency Loans assigned to such assignee Lender
and (ii) the aggregate outstanding principal amount of Revolving Credit Loans
owing to such assignee Lender. Any such assignments pursuant to the two
precedent sentences shall be effected in accordance with subsection 15.6(c) and,
as a condition to such assignment, simultaneously with such assignment, the U.S.
Borrower shall pay all amounts due to the assignor Multicurrency Lender and the
assignee Lender hereunder on the effective date of such assignments.
7.15 Use of Proceeds. The proceeds of the Loans shall be used (a) as
provided in Annex A, (b) to pay fees and expenses incurred by the Borrowers in
connection with this Agreement and (c) for working capital and other general
corporate purposes of the Borrowers and their Subsidiaries, including
investments and acquisitions.
SECTION 8. REPRESENTATIONS AND WARRANTIES
Each of the U.S. Borrower and the Foreign Subsidiary Borrowers
(insofar as the representations and warranties set forth below relate
respectively to such Foreign Subsidiary Borrower) represents and warrants to the
Administrative Agent and each Lender that:
8.1 Financial Condition. The balance sheet of the U.S. Borrower and
its Consolidated Subsidiaries as at December 31, 1995, which has heretofore been
delivered to each Lender, fairly presents in all material respects and in
conformity with GAAP the financial position of the U.S. Borrower and its
Consolidated Subsidiaries as at December 31, 1995.
8.2 No Change. Since December 31, 1995, there has been no development
or event which has had or would be reasonably expected to have a Material
Adverse Effect.
8.3 Corporate Existence; Compliance with Law. Each of the U.S.
Borrower and each Subsidiary of the U.S. Borrower (a) is duly incorporated or
organized and is validly existing as a corporation or other legal entity in good
standing in the jurisdiction of its
55
incorporation or organization, (b) has the corporate or other power and
authority to own, lease and operate its properties and to conduct the business
in which it is currently engaged, (c) is duly qualified to transact business as
a foreign corporation or other legal entity and is in good standing or otherwise
appropriately qualified in each jurisdiction where its ownership, leasing or
operation of property or the conduct of its business requires such
qualification, except to the extent that any failure to be so qualified and in
good standing would not be reasonably expected to have a Material Adverse
Effect, and (d) is in compliance with all Requirements of Law except to the
extent that the failure to comply therewith would not, in the aggregate, be
reasonably expected to have a Material Adverse Effect.
8.4 Corporate Power; Authorization; Enforceable Obligations. Each
Borrower has the corporate power and authority to make, deliver and perform the
Loan Documents to which it is a party and to borrow hereunder and has taken all
necessary corporate action to authorize the borrowings on the terms and
conditions of this Agreement and to authorize the execution, delivery and
performance of the Loan Documents to which it is a party. No consent or
authorization of, filing with, notice to or other act by or in respect of, any
Governmental Authority or any other Person is required to be obtained or made by
or on behalf of any Borrower in connection with the borrowings hereunder or with
the execution, delivery, performance, validity or enforceability of the Loan
Documents to which any Borrower is a party, except for any of the foregoing
described in Schedule 8.4, all of which have been obtained or made. This
Agreement and each other Loan Document to which any Borrower is, or is to
become, a party has been or will be duly executed and delivered on behalf of
such Borrower. This Agreement and each other Loan Document to which any Borrower
is, or is to become, a party constitutes or will constitute, a legal, valid and
binding obligation of such Borrower enforceable against such Borrower in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
8.5 No Legal Bar. The execution, delivery and performance of the Loan
Documents by each Borrower, the borrowings hereunder and the use of the proceeds
thereof (a) will not violate any Requirement of Law or Contractual Obligation of
any Borrower or any Subsidiary of any Borrower, in each case in any respect that
would reasonably be expected to have a Material Adverse Effect and (b) will not
result in, or require, the creation or imposition of any Lien on any of its or
their respective assets or properties pursuant to any such Requirement of Law or
Contractual Obligation.
8.6 No Material Litigation. There are no actions, suits,
investigations or proceedings of or before any arbitrator or Governmental
Authority pending by or against or affecting any Borrower or any Subsidiary of
any Borrower or, to the best knowledge of any Borrower, threatened by or against
or affecting any Borrower or any Subsidiary of any Borrower or against any
assets or properties of any Borrower or any Subsidiary of any Borrower (a) on
and as of the Effective Date, with respect to any of the Loan Documents or any
of the transactions contemplated thereby or (b) which would be reasonably
expected to have a Material Adverse Effect.
56
8.7 No Default. Neither any Borrower nor any Subsidiary of any
Borrower is in default under or with respect to any of its Contractual
Obligations in any respect which would be reasonably expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
8.8 Taxes. All United States federal income tax returns and all other
material tax returns which are required to be filed by, or with respect to, each
Borrower or any Subsidiary of such Borrower have been filed, and all taxes and
assessments due and payable by each Borrower or any Subsidiary of such Borrower
(or for which they could be liable) have been paid other than (a) those not yet
delinquent, (b) those which, if not paid, would not be reasonably expected to
have a Material Adverse Effect and (c) those the amount or validity of which are
currently being contested in good faith by appropriate proceedings diligently
conducted and with respect to which reserves in conformity with GAAP have been
provided on the books of such Borrower or such Subsidiary, as applicable; and no
material tax Lien (other than those permitted by subsection 11.2) has been filed
with respect to any such tax, fee or other charge; and, to the best knowledge of
each Borrower, no claim is being asserted with respect to any such tax, fee or
other charge (other than real property taxes that are not yet delinquent) which,
individually or in the aggregate, would be reasonably expected to have a
Material Adverse Effect.
8.9 Federal Regulations. No part of the proceeds of any Loans will be
used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation G or Regulation U of the
Board as now and from time to time hereafter in effect in violation of such
regulations.
8.10 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Single Employer Plan,
and each Plan (other than a Multiemployer Plan) has complied in all material
respects with the applicable provisions of ERISA and the Code, where any such
occurrence or failure to comply has or is reasonably likely to result in a
Material Adverse Effect. No termination of a Single Employer Plan has occurred
(other than a standard termination within the meaning of Section 4041 of ERISA).
There is no outstanding Lien on the assets of the U.S. Borrower or any Commonly
Controlled Entity in favor of the PBGC or a Plan. Neither the U.S. Borrower nor
any Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan, and neither the U.S. Borrower nor any Commonly Controlled
Entity would become subject to any liability under ERISA if the U.S. Borrower or
any such Commonly Controlled Entity were to withdraw completely from all
Multiemployer Plans as of the valuation date most closely preceding the date on
which this representation is made or deemed made, except to the extent that such
complete or partial withdrawal or such liability (or any aggregation thereof)
would not be reasonably expected to have a Material Adverse Effect. No such
Multiemployer Plan is in Reorganization or Insolvent.
8.11 Investment Company Act; Other Regulations. The U.S. Borrower is
not an "investment company", or a company "controlled" by an "investment
company", within the
57
meaning of the Investment Company Act of 1940, as amended. No Borrower is
subject to regulation under any United States (Federal or state) or other
Requirement of Law which limits its ability to incur Indebtedness as
contemplated hereby.
SECTION 9. CONDITIONS PRECEDENT
9.1 Conditions to Effectiveness of this Agreement. This Agreement
shall become effective on the date on which the following conditions precedent
have been satisfied or waived:
(a) Execution of Agreement. The Administrative Agent shall have
received this Agreement, executed and delivered by a duly authorized
officer of each Borrower, with a copy for each Lender.
(b) Consents, Licenses and Approvals. The Administrative Agent shall
have received (and made available to each Lender requesting the same), a
certificate of a Responsible Officer of the U.S. Borrower (i) attaching
copies of all consents, authorizations, notices and filings referred to in
subsection 8.4, and (ii) stating that such consents, authorizations,
notices and filings are in full force and effect.
(c) Legal Opinions. The Administrative Agent shall have received
(with a copy for each Lender) the following executed legal opinions:
(i) the legal opinion of Richard S. Brennan, General Counsel
of Case and counsel to the U.S. Borrower, substantially in the form of
Exhibit H; and
(ii) the legal opinion of Mayer, Brown & Platt, special
counsel to the U.S. Borrower and its Subsidiaries, substantially in
the form of Exhibit I.
(d) Corporate Proceedings. The Administrative Agent shall have
received (and made available to each Lender) a copy of the resolutions, in
form and substance reasonably satisfactory to the Administrative Agent and
each Lender, of the Board of
Directors of the U.S. Borrower authorizing, as applicable, (i) the
execution, delivery and performance of this Agreement and the other Loan
Documents to which it is a party and (ii) the borrowings contemplated
hereunder, certified by the Secretary or an Assistant Secretary of such
Person as of the Effective Date, which certificate shall be in form and
substance reasonably satisfactory to each Lender and shall state that the
resolutions thereby certified have not been amended, modified (except as
any later such resolution may modify any earlier such resolution), revoked
or rescinded.
(e) Incumbency Certificates. The Administrative Agent shall have
received (and made available to each Lender), a certificate of each
Borrower, dated the Effective Date, as to the incumbency and signature of
the officers of such Borrower executing this Agreement, reasonably
satisfactory in form and substance to the
58
Administrative Agent and each Lender, executed by the Secretary or any
Assistant Secretary of such Borrower.
(f) Corporate Documents. The Administrative Agent shall have
received (and made available to each Lender) copies of the certificate of
incorporation and by-laws of the U.S. Borrower, certified as of the
Effective Date as complete and correct copies thereof by the Secretary or
an Assistant Secretary of such Borrower.
(g) Existing Credit Agreement. All amounts outstanding under the
Existing Credit Agreement shall have been repaid in the manner prescribed
by Annex A.
(h) Support Agreement. The Administrative Agent shall have received
(and made available to each Lender) a copy of the Support Agreement,
certified by a Responsible Officer of the U.S. Borrower to be a true copy
thereof.
(i) Release of Guarantee. The Administrative Agent shall have
received (and made available to each Lender) a Certificate of a Responsible
Officer of the U.S. Borrower certifying (and setting forth calculations
supporting such certification) that simultaneously with the effectiveness
of this Agreement, the guarantee of Case of the U.S. Borrower's
$200,000,000 aggregate principal notes due February 15, 2003, issued under
the Indenture, dated as of February 1, 1996, among the U.S. Borrower, as
issuer, Case, as guarantor, and The Bank of New York, as trustee, will be
released.
(j) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents
shall be satisfactory in form and substance to the Administrative Agent,
and the Administrative Agent shall have received such other documents and
legal opinions in respect of any aspect or consequence of the transactions
contemplated hereby or thereby as they shall reasonably request.
9.2 Conditions to Each Extension of Credit. The agreement of each
Lender to make any Extension of Credit requested to be made by it on any
Borrowing Date (including, without limitation, the Extensions of Credit to be
made on the Effective Date and each Swing Line Loan) is subject to the
satisfaction or waiver of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the Borrower requesting such Extension of Credit and by
the U.S. Borrower in or pursuant to this Agreement or any other Loan
Document to which it is a party shall, except to the extent that they
relate to a particular date, be true and correct in all material respects
on and as of such Borrowing Date (both before and after giving effect to
the Extension of Credit to be made on such Borrowing Date) as if made on
and as of such Borrowing Date; provided, however, that the representations
and warranties set forth in subsection 8.2 shall be made only on the
Effective Date.
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(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such Borrowing Date, both before and after giving
effect to the Extensions of Credit requested to be made on such Borrowing
Date.
(c) Foreign Subsidiary Opinion. If such requested Extension of
Credit is the initial Multicurrency Loan to be made to any Foreign
Subsidiary Borrower, the Administrative Agent shall have received (with a
copy for each Lender) a Foreign Subsidiary Opinion in respect of such
Foreign Subsidiary Borrower.
Each Extension of Credit made to a Borrower hereunder shall constitute a
representation and warranty by such Borrower as of the date of such Extension of
Credit that the conditions contained in this subsection 9.2 have been satisfied.
SECTION 10. AFFIRMATIVE COVENANTS
The U.S. Borrower hereby agrees that, so long as the Commitments (or
any of them) remain in effect or any Loan remains outstanding and unpaid or any
other amount is owing to any Lender or the Administrative Agent hereunder or
under any other Loan Document, the U.S. Borrower shall and (except in the case
of (i) delivery of financial information, reports and notices pursuant to
subsection 10.2(b), (c) and (d) which shall only be delivered by the U.S.
Borrower and (ii) delivery of financial information, reports and notices
pursuant to any other subsection of this Section 10 which shall only be
delivered by the U.S. Borrower) shall cause each of its Subsidiaries to:
10.1 Financial Statements. Furnish to the Administrative Agent (with
a copy for each Lender):
(a) as soon as practicable, but in any event within 120 days after
the end of each fiscal year of the U.S. Borrower a copy of the consolidated
balance sheet of the U.S. Borrower and its Consolidated Subsidiaries as at
the end of such year and the related consolidated statements of income and
retained earnings and of cash flows for such year, setting forth in each
case in comparative form the figures for the previous year, reported on
without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by independent
certified public accountants of nationally recognized standing selected by
such Borrower; and
(b) as soon as practicable, but in any event not later than 60 days
after the end of each of the first three quarterly periods of each fiscal
year of the U.S. Borrower the unaudited consolidated balance sheet of the
U.S. Borrower and its Consolidated Subsidiaries as at the end of such
quarter and the related unaudited consolidated statements of income and
retained earnings and of cash flows for such quarter and the portion of the
fiscal year through the end of such quarter, setting forth in the case of
such consolidated financial statements covering any fiscal quarter in
comparative form the figures for the previous year, certified by a
Responsible Officer of the U.S.
60
Borrower as being fairly stated in all material respects (subject to normal
year-end audit adjustments).
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
10.2 Certificates; Other Information. Furnish to the Administrative
Agent (with a copy for each Lender):
(a) concurrently with the delivery of the financial statements
referred to in subsection 10.1(a), a certificate of the independent
certified public accountants reporting on such financial statements stating
that in making the examination necessary therefor no knowledge was obtained
of any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 10.1(a) and 10.1(b), a certificate of a
Responsible Officer of the U.S. Borrower, (i) stating that, to the best of
such Officer's knowledge, each Borrower during such period has observed or
performed all of its covenants and other agreements, and satisfied every
condition, contained in this Agreement and the other Loan Documents to
which it is a party to be observed, performed or satisfied by it, and that
such Officer has obtained no knowledge of any Default or Event of Default
except as specified in such certificate and (ii) setting forth (in
reasonable detail) the calculations required to determine compliance with
the covenants set forth in subsection 11.1;
(c) no later than 30 days after the filing thereof with the
Securities and Exchange Commission or any successor or analogous
Governmental Authority, final copies of all financial statements and
material reports which the U.S. Borrower may make to, or file with such
entities and final copies of all filings made by the U.S. Borrower with
such entities with respect to the sale of indebtedness of the U.S. Borrower
to the public or with respect to any asset-backed receivables transaction
entered into by the U.S. Borrower or any of its Subsidiaries (including,
without limitation, registration statements and prospectuses and amendments
thereto); and
(d) promptly, such additional financial and other information as any
Lender, through the Administrative Agent, may from time to time reasonably
request.
10.3 Payment of Obligations. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, except where (a) the amount or validity thereof
is currently being contested in good faith by appropriate proceedings and
reserves in conformity with GAAP with respect thereto have been provided on the
books of such Borrower or its Subsidiaries, as the case may be, or (b) the
failure to so pay, discharge or satisfy all such obligations could not, in the
aggregate,
61
have a Material Adverse Effect and would not subject any property of such
Borrower or any of its Subsidiaries to any Lien not permitted by subsection
11.2.
10.4 Conduct of Business and Maintenance of Existence. Continue to
engage in business of the same general type as now conducted by it and preserve,
renew and keep in full force and effect its corporate existence and take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business; and comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to comply
therewith could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
10.5 Maintenance of Property; Insurance. Keep all property useful
and necessary in its business in good working order and condition; maintain with
financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks (but including
in any event public liability, product liability and business interruption) as
are usually insured against in the same general area by companies engaged in the
same or a similar business.
10.6 Inspection of Property; Books and Records; Discussions. Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of the Administrative Agent to visit and inspect any of its
properties and examine any of its books and records at any reasonable time and
with reasonable prior notice, and to discuss the business, operations,
properties and financial and other condition of such Borrower and its
Subsidiaries with officers and employees of such Borrower and its Subsidiaries
and with its independent certified public accountants.
10.7 Notices. Promptly (but in any event no later than three days,
or in the case of clause (b), 10 days, or in the case of clause (d) below, 30
days, in each case, after a Responsible Officer of such Borrower knows thereof)
give notice to the Administrative Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of such Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between such
Borrower or any of its Subsidiaries and any Governmental Authority, which
in either case, if not cured or if adversely determined, as the case may
be, could have a Material Adverse Effect;
(c) any litigation or proceeding affecting such Borrower or any of
its Subsidiaries in which the amount involved is $60,000,000 or more and
not covered by insurance or in which injunctive or similar relief is
sought; and
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(d) any development or event which has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer of such Borrower setting forth details of the occurrence
referred to therein and stating what action such Borrower and/or its
Subsidiaries propose to take with respect thereto.
10.8 Foreign Subsidiary Opinions. Within 90 days after the Effective
Date (and in any event prior to the initial Extension of Credit to such Foreign
Subsidiary Borrower), deliver to the Administrative Agent (with a copy for each
Lender) a Foreign Subsidiary Opinion for each Foreign Subsidiary Borrower that
is a party to this Agreement on the Effective Date.
SECTION 11. NEGATIVE COVENANTS
The U.S. Borrower hereby agrees that, so long as the Commitments (or
any of them) remain in effect, any Loan or Revolving Credit Note remains
outstanding and unpaid or any other amount is owing to any Lender or the
Administrative Agent hereunder or under any other Loan Document, the U.S.
Borrower shall not, directly or indirectly:
11.1 Financial Condition Covenants.
(a) Case Credit Debt to Consolidated Net Worth Ratio. Permit the
ratio of the Case Credit Debt to Consolidated Net Worth of the U.S. Borrower at
any time to be greater than 8.00 to 1.00.
(b) Fixed Charge Coverage Ratio. Permit, for any period of four
consecutive fiscal quarters ending on the last day of any fiscal quarter of the
U.S. Borrower, the Fixed Charge Coverage Ratio for such period to be less than
1.10 to 1.00.
11.2 Limitation on Liens. Create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes not yet due and payable (or which will be paid
promptly) or which are being contested in good faith by appropriate
proceedings, provided that adequate reserves with respect thereto are
maintained on the books of the U.S. Borrower or its Subsidiaries, as the
case may be, in conformity with GAAP;
(b) Liens on assets of the U.S. Borrower or any Subsidiary of the
U.S. Borrower consisting of pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security legislation
and deposits securing liability to insurance carriers under insurance or
self-insurance arrangements;
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(c) Liens on assets of the U.S. Borrower or any Subsidiary of the
U.S. Borrower consisting of rights of lessees under leases, easements,
rights-of-way, restrictions and other similar encumbrances incurred in the
ordinary course of business which, in the aggregate, are not substantial in
amount and which do not in any case materially detract from the value of
the property subject thereto or materially interfere with the ordinary
conduct of the business of the U.S. Borrower or such Subsidiary;
(d) Liens on assets of the U.S. Borrower or any Subsidiary of the
U.S. Borrower consisting of deposits to secure the performance of leases
(other than Financing Leases), statutory obligations, surety and appeal
bonds and other obligations of a like nature incurred in the ordinary
course of business of the U.S. Borrower or such Subsidiary;
(e) Liens created by the U.S. Borrower in favor of itself;
(f) Liens which are granted pursuant to any securitization or other
asset-based financing of Receivables and Receivables Related Assets, and
which cover only Receivables and Receivables Related Assets or any
undivided or beneficial ownership interest in any Receivables or
Receivables Related Assets;
(g) Liens in existence on the date hereof and listed in Schedule
11.2, provided that (a) no such Lien is extended to cover any additional
property after the date hereof (except to the extent required by the terms
of the Indebtedness secured thereby or any other agreement governing such
Lien as such terms are in effect on the Effective Date), (b) no such Lien
secures any Indebtedness or other obligations other than Indebtedness or
other obligations secured by it on the date hereof and refinancings,
refundings, renewals or extensions of such Indebtedness or other
obligations and (c) the amount of Indebtedness or other obligations secured
by any such Lien is not increased;
(h) Liens on assets of Subsidiaries of the U.S. Borrower which become
Subsidiaries after the Effective Date or Liens on assets acquired by the
U.S. Borrower or any of its Subsidiaries after the Effective Date; provided
that (i) such Liens were in existence at the time such Subsidiary became a
Subsidiary or at the time such assets were acquired and (ii) no such Liens
were created in contemplation of the transaction pursuant to which such
Subsidiary became a Subsidiary or in contemplation of the acquisition of
such assets; and
(i) in addition to Liens permitted by paragraphs (a) through (h) of
this subsection 11.2, Liens on assets of the U.S. Borrower or any of its
Subsidiaries securing Indebtedness of the U.S. Borrower or such Subsidiary;
provided that the aggregate principal amount of all Indebtedness secured by
such Liens, plus the aggregate outstanding amount of all Attributable Debt
in respect of all sale and leaseback transactions to which the U.S.
Borrower or any Restricted Subsidiary is a party, does not exceed at the
time such Liens are granted an amount equal to the sum of (i) $20,000,000
and (ii) 5% of Consolidated Net Tangible Assets of the U.S.
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Borrower and its Consolidated Subsidiaries; provided, that in calculating
the amount of Attributable Debt permitted pursuant to this paragraph (i),
there shall be excluded all Attributable Debt in respect of sale and
leaseback transactions relating to assets of Subsidiaries of the U.S.
Borrower which become Subsidiaries after the Effective Date if such sale
and leaseback transactions were in existence at the time such Subsidiary
became a Subsidiary and were not created in contemplation of the
transaction pursuant to which such Subsidiary became a Subsidiary.
11.3 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets except any entity may be merged or consolidated with or into the U.S.
Borrower (provided that (a) the U.S. Borrower shall be the continuing or
surviving corporation or (b) the Indebtedness under this Agreement is assumed by
the surviving corporation with the approval of the Majority Lenders).
11.4 Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary, except for (a) the financing of
Receivables of Case, its Subsidiaries and their Dealers and customers, (b) other
financial services related to the agricultural and construction business and (c)
other business; provided that the business of the U.S. Borrower and its
Subsidiaries taken as a whole will be limited substantially to the businesses
described in clauses (a) and (b) of this subsection 11.4.
SECTION 12. GUARANTEE
12.1 Guarantee. (a) The U.S. Borrower hereby unconditionally and
irrevocably guarantees to the Administrative Agent, for the ratable benefit of
the Administrative Agent and the Lenders and their respective successors,
indorsees, transferees and assigns, the prompt and complete payment and
performance by the Foreign Subsidiary Borrowers and any Alternate Currency
Borrower when due (whether at the stated maturity, by acceleration or otherwise)
of the Obligations.
(b) The U.S. Borrower further agrees to pay any and all expenses
(including, without limitation, all reasonable fees and disbursements of
counsel, provided that the U.S. Borrower shall only be required to pay the fees
and disbursements of (i) one counsel for the Administrative Agent, (ii) one
counsel for the Lenders and (iii) one counsel for the Administrative Agent and
the Multicurrency Lenders in the jurisdiction of each Foreign Subsidiary
Borrower) which may be paid or incurred by the Administrative Agent, or any
Lender in enforcing, or obtaining advice of counsel in respect of, any rights
with respect to, or collecting, any or all of the Obligations and/or enforcing
any rights with respect to, or collecting against, the U.S. Borrower under this
Section. This Section shall remain in full force and effect until the
Obligations are paid in full and the Commitments are terminated, notwithstanding
that from time to time prior thereto the Borrowers may be free from any
Obligations.
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(c) No payment or payments made by any Borrower or any other Person
or received or collected by the Administrative Agent or any Lender from any
Borrower or any other Person by virtue of any action or proceeding or any set-
off or appropriation or application, at any time or from time to time, in
reduction of or in payment of the Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of the U.S. Borrower hereunder which
shall, notwithstanding any such payment or payments, remain liable hereunder for
the Obligations until the Obligations are paid in full and the Commitments are
terminated.
(d) The U.S. Borrower agrees that whenever, at any time, or from time
to time, it shall make any payment to the Administrative Agent or any Lender on
account of its liability hereunder, it will notify the Administrative Agent and
such Lender in writing that such payment is made under this Section for such
purpose.
12.2 Right of Set-off. The Administrative Agent and each Lender is
hereby irrevocably authorized at any time and from time to time without notice
to the U.S. Borrower, any such notice being expressly waived by the U.S.
Borrower, to set off and appropriate and apply any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by the Administrative Agent or such Lender (or any Affiliate of such
Lender) to or for the credit or the account of the U.S. Borrower, or any part
thereof in such amounts as the Administrative Agent or such Lender may elect,
against or on account of the obligations and liabilities of the U.S. Borrower to
the Administrative Agent or such Lender hereunder which are then due and payable
and claims of every nature and description of the Administrative Agent or such
Lender against the U.S. Borrower, in any currency, whether arising hereunder,
under any other Loan Document or otherwise in connection therewith, as the
Administrative Agent or such Lender may elect, whether or not the Administrative
Agent or such Lender has made any demand for payment. The Administrative Agent
and each Lender shall notify the U.S. Borrower promptly of any such set-off and
the application made by the Administrative Agent or such Lender, as the case may
be, of the proceeds thereof; provided that the failure to give such notice shall
not affect the validity of such set-off and application. The rights of the
Administrative Agent and each Lender under this subsection are in addition to
other rights and remedies (including, without limitation, other rights of set-
off) which the Administrative Agent or such Lender may have.
12.3 No Subrogation. Notwithstanding any payment or payments made by
the U.S. Borrower hereunder, or any set-off or application of funds of the U.S.
Borrower by the Administrative Agent or any Lender, the U.S. Borrower shall not
be entitled to be subrogated to any of the rights of the Administrative Agent or
any Lender against the Borrowers or against any collateral security or guarantee
or right of offset held by the Administrative Agent or any Lender for the
payment of the Obligations, nor shall the U.S. Borrower seek or be entitled to
seek any contribution or reimbursement from the Borrowers in respect of payments
made by the U.S. Borrower hereunder, until all amounts owing to the
Administrative Agent and the Lenders by the Borrowers on account of the
Obligations are paid in full and the Commitments are terminated. If any amount
shall be paid to the U.S. Borrower on account
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of such subrogation rights at any time when all of the Obligations shall not
have been paid in full, such amount shall be held by the U.S. Borrower in trust
for the Administrative Agent and the Lenders, segregated from other funds of the
U.S. Borrower, and shall, forthwith upon receipt by the U.S. Borrower, be turned
over to the Administrative Agent in the exact form received by the U.S. Borrower
(duly indorsed by the U.S. Borrower to the Administrative Agent, if required),
to be applied against the Obligations, whether matured or unmatured, in such
order as Administrative Agent may determine. The provisions of this paragraph
shall be effective until the date which is 370 days after the termination of
this Agreement and the payment in full of the Obligations and the termination of
the Commitments.
12.4 Amendments, etc. with respect to the Obligations; Waiver of
Rights. The U.S. Borrower shall remain obligated hereunder notwithstanding that,
without any reservation of rights against the U.S. Borrower, and without notice
to or further assent by the U.S. Borrower, any demand for payment of any of the
Obligations made by the Administrative Agent or any Lender may be rescinded by
the Administrative Agent or such Lender, and any of the Obligations continued,
and the Obligations, or the liability of any other party upon or for any part
thereof, or any collateral security or guarantee therefor or right of offset
with respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released by the Administrative Agent or any Lender, and any Loan Documents and
any other documents executed and delivered in connection therewith may be
amended, modified, supplemented or terminated, in whole or in part, in
accordance with the provisions thereof as the Administrative Agent (or the
requisite Lenders, as the case may be) may deem advisable from time to time, and
any collateral security, guarantee or right of offset at any time held by the
Administrative Agent or any Lender for the payment of the Obligations may be
sold, exchanged, waived, surrendered or released. None of the Administrative
Agent or any Lender shall have any obligation to protect, secure, perfect or
insure any Lien at any time held by it as security for the Obligations or for
this Agreement or any property subject thereto. When making any demand hereunder
against the U.S. Borrower, the Administrative Agent or any Lender may, but shall
be under no obligation to, make a similar demand on the Borrowers or any other
guarantor, and any failure by the Administrative Agent or any Lender to make any
such demand or to collect any payments from the Borrower or any such other
guarantor or any release of the Borrowers or such other guarantor shall not
relieve the U.S. Borrower of its obligations or liabilities hereunder, and shall
not impair or affect the rights and remedies, express or implied, or as a matter
of law, of the Administrative Agent or any Lender against the U.S. Borrower. For
the purposes hereof "demand" shall include the commencement and continuance of
any legal proceedings.
12.5 Guarantee Absolute and Unconditional. The U.S. Borrower waives
any and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Administrative Agent or
any Lender upon this Agreement or acceptance of this Agreement; the Obligations,
and any of them, shall conclusively be deemed to have been created, contracted
or incurred, or renewed, extended, amended or waived, in reliance upon this
Agreement; and all dealings between the Borrowers and the U.S. Borrower, on the
one hand, and the Administrative Agent and the Lenders, on the other, shall
likewise be conclusively presumed to have been had or consummated in
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reliance upon this Agreement. The U.S. Borrower waives diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon the
Borrowers and the U.S. Borrower with respect to the Obligations. This Section 12
shall be construed as a continuing, absolute and unconditional guarantee of
payment without regard to (a) the validity, regularity or enforceability of this
Agreement, any other Loan Document, any of the Obligations or any other
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the Administrative Agent or any
Lender, (b) any defense, set-off or counterclaim (other than a defense of
payment or performance) which may at any time be available to or be asserted by
the Borrowers against the Administrative Agent or any Lender, or (c) any other
circumstance whatsoever (with or without notice to or knowledge of the Borrowers
or the U.S. Borrower) which constitutes, or might be construed to constitute, an
equitable or legal discharge of the Borrowers for the Obligations, or of the
U.S. Borrower under this Section 12, in bankruptcy or in any other instance.
When pursuing its rights and remedies hereunder against the U.S. Borrower, the
Administrative Agent and any Lender may, but shall be under no obligation to,
pursue such rights and remedies as it may have against the Borrowers or any
other Person or against any collateral security or guarantee for the Obligations
or any right of offset with respect thereto, and any failure by the
Administrative Agent or any Lender to pursue such other rights or remedies or to
collect any payments from the Borrower or any such other Person or to realize
upon any such collateral security or guarantee or to exercise any such right of
offset, or any release of the Borrowers or any such other Person or of any such
collateral security, guarantee or right of offset, shall not relieve the U.S.
Borrower of any liability hereunder, and shall not impair or affect the rights
and remedies, whether express, implied or available as a matter of law, of the
Administrative Agent or any Lender against the U.S. Borrower. This Section 12
shall remain in full force and effect and be binding in accordance with and to
the extent of its terms upon the U.S. Borrower and its successors and assigns,
and shall inure to the benefit of the Administrative Agent and the Lenders, and
their respective successors, indorsees, transferees and assigns, until all the
Obligations and the obligations of the U.S. Borrower under this Agreement shall
have been satisfied by payment in full and the Commitments shall be terminated,
notwithstanding that from time to time during the term of this Agreement the
Borrowers may be free from any Obligations.
12.6 Reinstatement. This Section 12 shall continue to be effective, or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of any of the Obligations is rescinded or must otherwise be restored or returned
by the Administrative Agent or any Lender upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of any Borrower or upon or as a
result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, any Borrower or any substantial part of its
property, or otherwise, all as though such payments had not been made.
12.7 Payments. The U.S. Borrower hereby agrees that all payments
required to be made by it hereunder will be made to the Administrative Agent
without set-off or counterclaim in accordance with the terms of the Obligations,
including, without limitation, in the currency in which payment is due.
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SECTION 13. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any Loan when due
in accordance with the terms thereof or hereof; or any Borrower shall fail
to pay any interest on any Loan, or any other amount payable hereunder,
within five days after any such interest or other amount becomes due in
accordance with the terms hereof; or
(b) Any representation or warranty made by any Borrower herein or in
any other Loan Document or which is contained in any certificate, document
or financial or other statement furnished by it at any time under or in
connection with this Agreement or any such other Loan Document shall prove
to have been incorrect in any material respect on or as of the date made or
deemed made; or
(c) Any Borrower shall default in the observance or performance of
any agreement contained in subsection 10.7(a) or Section 11; or the U.S.
Borrower fails to observe or perform any agreement contained in Section 12;
or
(d) Any Borrower shall default in the observance or performance of
any other agreement contained in this Agreement or any other Loan Document
(other than as provided in paragraphs (a) through (c) of this Section), and
such default shall continue unremedied for a period of 30 days; or
(e) Any Borrower or any Subsidiary of any Borrower shall (i) default
in any payment of principal of or interest on any Indebtedness (other than
the Loans) beyond the period of grace (not to exceed 30 days), if any,
provided in the instrument or agreement under which such Indebtedness was
created, if the aggregate amount of the Indebtedness and/or Guarantee
Obligations in respect of which such default or defaults shall have
occurred is at least $60,000,000; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness referred to in clause (i) above or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause, with the giving of notice if required, such Indebtedness to become
due prior to its stated maturity; provided that, for purposes of this
paragraph (e) only, the term "Indebtedness" shall not include (i) Permitted
Securitization Obligations or (ii) any Guarantee Obligations of any
Subsidiary of the U.S. Borrower in respect of Indebtedness of an Affiliate
of the U.S. Borrower (but only if (A) such Subsidiary owns no material
assets other than equity interests in such Affiliate and (B) such Affiliate
is not a Subsidiary of the U.S. Borrower); and provided, further, that with
respect to any Indebtedness in respect of Interest Rate Agreements, the
holder or holders of such Indebtedness shall have required that a
liquidation or termination payment be made;
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(f) (i) Any Borrower or any Material Subsidiary shall commence any
case, proceeding or other action (A) under any existing or future law of
any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or
its debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any substantial
part of its assets, or any Borrower or any Material Subsidiary shall make a
general assignment for the benefit of its creditors; or (ii) there shall be
commenced against any Borrower or any Material Subsidiary any case,
proceeding or other action of a nature referred to in clause (i) above
which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced against
any Borrower or any Material Subsidiary any case, proceeding or other
action seeking issuance of a warrant of attachment, execution, distraint or
similar process against all or any substantial part of its assets which
results in the entry of an order for any such relief which shall not have
been vacated, discharged, or stayed or bonded pending appeal within 60 days
from the entry thereof; or (iv) any Borrower or any Material Subsidiary
shall take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause (i),
(ii), or (iii) above; or (v) any Borrower or any Material Subsidiary shall
generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of the
U.S. Borrower or any Commonly Controlled Entity, (iii) a Reportable Event
shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or commencement
of proceedings or appointment of a trustee is, in the reasonable opinion of
the Majority Lenders, likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) the U.S. Borrower or any
Commonly Controlled Entity shall, or in the reasonable opinion of the
Majority Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with respect
to a Plan; and in each case in clauses (i) through (vi) above, such event
or condition, together with all other such events or conditions, if any,
could have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against any
Borrower or any Subsidiary of any Borrower involving a liability (not paid
or fully covered by insurance) of $60,000,000 or more in the aggregate for
the U.S. Borrower and its
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Subsidiaries, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 60 days from
the entry thereof and enforcement proceedings shall have commenced; or
(i) Case shall cease to own, directly or indirectly, all of the
common stock of the U.S. Borrower; or
(j) For any reason the Support Agreement ceases to be in full force
and effect; or Case or the U.S. Borrower shall assert in writing that the
Support Agreement has ceased to be or is not in full force and effect; or
Case or the U.S. Borrower shall fail to perform any of its respective
obligations under the Support Agreement;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of this Section with respect to the U.S.
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement shall immediately become due and payable, and (B) if such
event is any other Event of Default, either or both of the following actions may
be taken: (i) with the consent of the Majority Lenders, the Administrative
Agent may, or upon the request of the Majority Lenders, the Administrative Agent
shall, by notice to the Borrowers declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate; and (ii) with
the consent of the Majority Lenders, the Administrative Agent may, or upon the
request of the Majority Lenders, the Administrative Agent shall, by notice to
the Borrowers, declare the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement to be due and payable forthwith,
whereupon the same shall immediately become due and payable.
Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
SECTION 14. THE ADMINISTRATIVE AGENT; THE CO-AGENTS
AND LEAD MANAGERS; THE SWING LINE
LENDERS
14.1 Appointment. Each Lender hereby irrevocably designates and
appoints Chase as the Administrative Agent and such Lender under this Agreement
and the other Loan Documents, and each such Lender irrevocably authorizes Chase
to act as the Administrative Agent of such Lender, to take such action on its
behalf under the provisions of this Agreement and the other Loan Documents and
to exercise such powers and perform such duties as are expressly delegated to
the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
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14.2 Delegation of Duties. The Administrative Agent may execute any
of its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
be responsible for the negligence or misconduct of any agents or attorneys-in-
fact selected by it with reasonable care.
14.3 Exculpatory Provisions. Neither the Administrative Agent nor
any of its respective officers, directors, employees, agents, attorneys-in-fact
or affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by any Borrower or
other Person or any officer thereof contained in this Agreement or any other
Loan Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent under or
in connection with, this Agreement or any other Loan Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document or for any failure of a Borrower or any
other Person to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document or to inspect the properties, books or records of the Borrowers.
14.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
Revolving Credit Note, writing, resolution, notice, consent, certificate,
affidavit, letter, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to the
Borrowers or any of them), independent accountants and other experts selected by
the Administrative Agent. The Administrative Agent may deem and treat the payee
of any Revolving Credit Note as the owner thereof for all purposes unless a
written notice of assignment or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified as
between itself and the Lenders in failing or refusing to take any action under
this Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Majority Lenders as it deems appropriate or it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
and the other Loan Documents in accordance with a request of the Majority
Lenders, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Loans.
14.5 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or a
Borrower referring to
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this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default". In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give notice thereof to
the Lenders. The Administrative Agent shall take such action reasonably promptly
with respect to such Default or Event of Default as shall be reasonably directed
by the Majority Lenders; provided that unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
14.6 Non-Reliance on Administrative Agent and Other Lender. Each
Lender expressly acknowledges that neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or affiliates has
made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
any Borrower, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrowers and made its own decision to
make its Extensions of Credit hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrowers. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by an Administrative Agent hereunder, the Administrative Agent shall not
have any duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of the Borrowers which may come
into the possession of the Administrative Agent or any of its respective
officers, directors, employees, agents, attorneys-in-fact or affiliates.
14.7 Indemnification. Each Lender agrees to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrowers and without limiting the obligation of the Borrowers to do so),
ratably according to its U.S. Commitment Percentage in effect on the date on
which indemnification is sought from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Loans
be imposed on, incurred by or asserted against the Administrative Agent in any
way relating to or arising out of this Agreement, any of the other Loan
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Administrative Agent under or in connection with any of the foregoing;
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provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or willful
misconduct of the Administrative Agent. The agreements in this subsection shall
survive the payment of the Loans and all other amounts payable hereunder.
14.8 Administrative Agent in its Individual Capacity. The
Administrative Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrowers as though the
Administrative Agent was not the Administrative Agent hereunder and under the
other Loan Documents. With respect to the Loans made or renewed by the
Administrative Agent, and any Revolving Credit Note issued to it, the
Administrative Agent shall have the same rights and powers under this Agreement
and the other Loan Documents as any Lender and may exercise the same as though
it were not an Administrative Agent, and the terms "Lender" and "Lenders" shall
include the Administrative Agent in its individual capacity.
14.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Majority Lenders shall appoint from among
the Lenders a successor administrative agent for the Lenders, which successor
administrative agent shall be approved by the Borrowers (such approval not to be
unreasonably withheld), whereupon such successor administrative agent shall
succeed to the rights, powers and duties of the resigning Administrative Agent,
and the term "Administrative Agent" shall mean such successor administrative
agent effective upon such appointment and approval, and the former
Administrative Agent's rights, powers and duties as the Administrative Agent
shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. After any resigning Administrative Agent's resignation as
the Administrative Agent the provisions of this subsection shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was the
Administrative Agent under this Agreement and the other Loan Documents.
14.10 The Co-Agents and Lead Managers. Each Lender and each Co-Agent
and Lead Manager acknowledge that the Co-Agents and Lead Managers, in such
capacities, shall have no duties or responsibilities, and shall incur no
liabilities, under this Agreement or the other Loan Documents in their
respective capacities as such.
14.11 Swing Line Lenders. The provisions of this Section 14 shall
apply to the Swing Line Lenders in their respective capacities as such to the
same extent that such provisions apply to the Administrative Agent.
SECTION 15. MISCELLANEOUS
15.1 Amendments and Waivers. (a) Neither this Agreement or any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented, waived or
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modified except in accordance with the provisions of this subsection 15.1. The
Majority Lenders may, or, with the written consent of the Majority Lenders, the
Administrative Agent may, from time to time, (i) enter into with the Borrowers
written amendments, supplements or modifications hereto and to the other Loan
Documents for the purpose of adding any provisions to this Agreement or the
other Loan Documents or changing in any manner the rights or obligations of the
Lenders or of the Borrowers hereunder or thereunder or (ii) waive at the
Borrowers' request, on such terms and conditions as the Majority Lenders or the
Administrative Agent, as the case may be, may specify in such instrument, any of
the requirements of this Agreement or the other Loan Documents or any Default or
Event of Default and its consequences; provided, however, that no such waiver
and no such amendment, supplement or modification shall:
(A) reduce the amount or extend the scheduled date of maturity
of any Loan of any scheduled installment thereof, or reduce the stated rate
of any interest or fee payable hereunder or extend the scheduled date of
any payment thereof or increase the amount or extend the expiration date of
any Lender's Multicurrency Commitment or Revolving Credit Commitments, in
each case without the consent of each Lender affected thereby;
(B) amend, supplement, modify or waive any provision of this
subsection 15.1 or reduce the percentages specified in the definition of
"Majority Lenders" or consent to the assignment or transfer by any Borrower
of any of its rights and obligations under this Agreement and the other
Loan Documents, in each case without the consent of all the Lenders;
(C) amend, supplement, modify or waive any provision of Section
14 or any other provision of this Agreement governing the respective rights
or obligations of the Swing Line Lenders or the Administrative Agent
without the written consent of the Swing Line Lenders and the then
Administrative Agents, respectively; or
(D) amend, supplement, modify or waive any provision of Section
3 or any other provision of this Agreement governing the rights and
obligations of the Swing Line Lenders or the definitions used therein
without the written consent of the Swing Line Lenders.
Any waiver and any amendment, supplement or modification pursuant to this
subsection 15.1 shall apply to each of the Lenders and shall be binding upon the
Borrowers, the Lenders, the Administrative Agent, and all future holders of the
Loans. In the case of any waiver, the Borrowers, the Lenders and the
Administrative Agent shall be restored to their former positions and rights
hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
(b) In addition to amendments effected pursuant to the foregoing
paragraph (a), Schedules II and III may be amended as follows:
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(i) Schedule II will be amended to add Subsidiaries of the U.S.
Borrower as additional Foreign Subsidiary Borrowers upon (A) execution and
delivery by the U.S. Borrower, any such Foreign Subsidiary Borrower and the
Administrative Agent, of a Joinder Agreement providing for any such
Subsidiary to become a Foreign Subsidiary Borrower, and (B) delivery to the
Administrative Agent of (I) a Foreign Subsidiary Opinion in respect of such
additional Foreign Subsidiary Borrower and (II) such other documents with
respect thereto as the Administrative Agent shall reasonably request.
(ii) Schedule II will be amended to remove any Subsidiary as a
Foreign Subsidiary Borrower upon (A) execution and delivery by the U.S.
Borrower of a Schedule Amendment providing for such amendment and (B)
repayment in full of all outstanding Loans of such Foreign Subsidiary
Borrower.
(iii) Schedule III will be amended (A) to change administrative
information contained therein (other than any interest rate definition,
funding time, payment time or notice time contained therein) or (B) to add
Available Foreign Currencies (and related interest rate definitions and
administrative information) with the approval of the Majority Multicurrency
Lenders, in each case, upon execution and delivery by the U.S. Borrower and
the Administrative Agent of a written amendment providing for such
amendment.
(iv) Schedule III will be amended to conform any funding time,
payment time or notice time contained therein to then-prevailing market
practices, upon execution and delivery by the U.S. Borrower, the Majority
Lenders and the Administrative Agent of a written amendment providing for
such amendment.
(v) Schedule III will be amended to change any interest rate
definition contained therein, upon execution and delivery by the U.S.
Borrower, all the Multicurrency Lenders and the Administrative Agent of a
written amendment providing for such amendment.
(c) The Administrative Agent shall give prompt notice to each Lender
of any amendment effect pursuant to subsection 15.1(b).
(d) Notwithstanding the provisions of this subsection 15.1, any
Alternate Currency Facility may be amended, supplemented or otherwise modified
in accordance with its terms so long as after giving effect thereto either (i)
such Alternate Currency Facility ceases to be an "Alternate Currency Facility"
and the U.S. Borrower so notifies the Administrative Agent or (ii) the Alternate
Currency Facility continues to meet the requirements of an Alternate Currency
Facility set forth herein.
15.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered by hand, or three days
after being deposited in the mail, postage prepaid, or,
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in the case of telecopy notice, when received, or, in the case of delivery by a
nationally recognized overnight courier, when received, addressed as follows in
the case of the Borrowers and the Administrative Agent, and as set forth in
Schedule I in the case of the other parties hereto, or to such other address as
may be hereafter notified by the respective parties hereto and any future
holders of the Revolving Credit Notes:
The U.S. Borrower: Case Credit Corporation
233 Lake Avenue
Racine, Wisconsin 53403
Attention: Treasurer
Telephone: (414) 636-5529
Telecopy: (414) 636-6284
The Foreign
Subsidiary Borrowers: c/o Case Credit Corporation
233 Lake Avenue
Racine, Wisconsin 53403
Attention: Treasurer
Telephone: (414) 636-5529
Telecopy: (414) 636-6284
The Administrative
Agent: The Chase Manhattan Bank
140 East 45th Street
29th Floor
New York, New York 10017
Attention: Chris Consomer
Telephone: (212) 622-8779
Telecopy: (212) 622-0122
with a copy to:
Chase Securities Inc.
Ten South LaSalle Street
Suite 2300
Chicago, Illinois 60603
Attention: Cynthia Berkshire
Telephone: (312) 807-4029
Telecopy: (312) 807-4077
provided that any notice, request or demand to or upon (i) the Administrative
Agent or the Lenders pursuant to subsection 2.3, 3.2, 4.2, 5.3, 7.2, 7.4, 7.7 or
7.11 or (ii) either Swing Line Lender pursuant to Section 3, shall not be
effective until received.
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15.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of any Borrower, the Administrative Agent or
any Lender, any right, remedy, power or privilege hereunder or under the other
Loan Documents shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
15.4 Survival of Representations and Warranties. All representations
and warranties made hereunder and in the other Loan Documents (or in any
amendment, modification or supplement hereto or thereto) and in any certificate
delivered pursuant hereto or such other Loan Documents shall survive the
execution and delivery of this Agreement and the Revolving Credit Notes and the
making of the Loans hereunder.
15.5 Payment of Expenses and Taxes. Each Borrower agrees (a) to pay
or reimburse the Administrative Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with the preparation, execution and delivery
of, and any amendment, supplement, waiver or modification to, this Agreement and
the other Loan Documents and any other documents prepared in connection herewith
or therewith, and the consummation and administration of the transactions
(including the syndication of the Commitments) contemplated hereby and thereby,
including, without limitation, the reasonable fees and disbursements of counsel
(and any special or local counsel retained by such counsel to assist it) to the
Administrative Agent, (b) to pay or reimburse each Lender and the Administrative
Agent for all its reasonable costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement, the other Loan
Documents and any such other documents; provided that the Borrowers shall only
be required to pay or reimburse the Lenders and the Administrative Agent for the
fees and disbursements of (i) one counsel for the Administrative Agent, (ii) one
counsel for the Lenders pursuant to this clause (b) and (iii) one counsel to the
Administrative Agent and the Multicurrency Lenders in the jurisdiction of each
Foreign Subsidiary Borrower, (c) to pay, indemnify, and hold each Lender and the
Administrative Agent harmless from, any and all recording and filing fees and
any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other similar taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Loan Documents and any such other
documents, and (d) to pay, indemnify, and hold each Lender and the
Administrative Agent (and their respective directors, officers, employees,
agents, affiliates and successors) harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever (whether or
not caused by any Lender's or the Administrative Agent's or any of their
respective directors', officers', employees', agents', successors', affiliates'
or assigns' negligence (other than gross negligence) and including, without
limitation, the reasonable fees and disbursements of the respective counsels to
the Administrative Agent and each Lender, including, without duplication, the
allocated costs of staff counsel to the Administrative Agent
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or Lender) with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any such other
documents (regardless of whether the Administrative Agent or any Lender is a
party to the litigation or other proceeding giving rise thereto), (all the
foregoing in this clause (d), collectively, the "indemnified liabilities"),
provided, that the Borrowers shall have no obligation hereunder to the
Administrative Agent or any Lender with respect to indemnified liabilities to
the extent such indemnified liabilities arise solely from (i) the gross
negligence or willful misconduct of the Administrative Agent or any such Lender
(or any of their respective directors, officers, employees, agents, affiliates
or successors) or (ii) legal proceedings commenced against the Administrative
Agent or any such Lender by any securityholder or creditor of the Administrative
Agent or any such Lender arising out of and based upon rights afforded any such
securityholder or creditor solely in its capacity as such. The agreements in
this subsection shall survive repayment of the Loans and all other amounts
payable hereunder.
15.6 Successors and Assigns; Participations and Assignments. (a)
This Agreement shall be binding upon and inure to the benefit of the Borrowers,
the Lenders, the Administrative Agent, all future holders of the Loans and their
respective successors and assigns, except that no Borrower may assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or more
banks or other entities ("Participants") participating interests in any Loan
owing to such Lender, any Commitment of such Lender or any other interest of
such Lender hereunder and under the other Loan Documents. In the event of any
such sale by a Lender of a participating interest to a Participant, such
Lender's obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Loan for
all purposes under this Agreement and the other Loan Documents, and the
Borrowers and the Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. Any agreement
pursuant to which any Lender shall sell any such participating interest shall
provide that such Lender shall retain the sole right and responsibility to
exercise such Lender's rights and enforce the Borrowers' obligations hereunder,
including the right to consent to any amendment, supplement, modification or
waiver of any provision of this Agreement or any of the other Loan Documents,
provided that such participation agreement may provide that such Lender will not
agree to any amendment, supplement, modification or waiver described in clause
(A) or (B) of the proviso to the second sentence of subsection 15.1 without the
consent of the Participant. Each Borrower agrees that if amounts outstanding
under this Agreement are due or unpaid, or shall have been declared or shall
have become due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement; provided that, in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in subsection 15.7(a) as fully as if
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it were a Lender hereunder. Each Borrower agrees that each Participant shall be
entitled to the benefits of subsections 7.10, 7.11, 7.12, 7.13 and 15.6 with
respect to its participation in the Commitments and the Loans outstanding from
time to time hereunder as if it was a Lender.
(c) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time and from time to
time assign to any Lender or any Affiliate thereof or, with the prior written
consent of the U.S. Borrower (such consent not to be unreasonably withheld) and
the Administrative Agent (such consent not to be unreasonably withheld), to an
additional bank or financial institution (an "Assignee") all or any part of its
rights and obligations under this Agreement and the other Loan Documents
including, without limitation, its Commitments and Loans, pursuant to an
Assignment and Acceptance, substantially in the form of Exhibit G, executed by
such Assignee, such assigning Lender (and, in the case of an Assignee that is
not then a Lender or an Affiliate thereof, by the U.S. Borrower and the
Administrative Agent) and delivered to the Administrative Agent for their
acceptance and recording in the Register; provided that (i) if any Lender
assigns a part of its rights and obligations in respect of Revolving Credit
Loans and/or Revolving Credit Commitment under this Agreement to an Assignee,
such Lender shall assign proportionate interests in their respective Revolving
Credit Loans and Revolving Credit Commitment and other related rights and
obligations hereunder to such Assignee, (ii) if any Lender assigns a part of its
rights and obligations under this Agreement in respect of its Revolving Credit
Loans and/or Revolving Credit Commitments to an Assignee, such Lender shall
assign proportionate interests in (A) its participations in the Swing Line Loans
and other rights and obligations hereunder in respect of the Swing Line Loans to
such Assignee and (B) Multicurrency Loans and Multicurrency Commitments, (iii)
in the case of any such assignment to an additional bank or financial
institution, the aggregate amount of any Revolving Credit Commitment (or, if the
Revolving Credit Commitments have terminated or expired, the aggregate principal
amount of any Revolving Credit Loans) being assigned shall not be less than
$10,000,000 (or (x) if less, the then outstanding amount of such Commitments
and/or Loans or (y) such lesser amount as may be agreed by the Borrowers and the
Administrative Agent). Upon such execution, delivery, acceptance and recording,
from and after the effective date determined pursuant to such Assignment and
Acceptance, (I) the Assignee thereunder shall be a party hereto and, to the
extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder with Commitments, rights in respect of Loans
as set forth therein, and (II) the assigning Lender thereunder shall be released
from its obligations under this Agreement to the extent that such obligations
shall have been expressly assumed by the Assignee pursuant to such Assignment
and Acceptance (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender's rights and obligations under this
Agreement, such assigning Lender shall cease to be a party hereto).
(d) The Administrative Agent, on behalf of the Borrowers, shall
maintain at their respective addresses referred to in subsection 15.2 a copy of
each Assignment and Acceptance delivered to it and a register (the "Register")
for the recordation of (i) the names and addresses of the Lenders and the
Commitments of, and principal amounts of the Loans owing to, each Lender from
time to time and (ii) the other information required from time to
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time pursuant to subsection 3.1 in respect of Swing Line Loans. The entries in
the Register shall constitute prima facie evidence of the information recorded
therein, and the Borrowers, the Administrative Agent and the Lenders may (and,
in the case of any Loan or other obligation hereunder not evidenced by a
Revolving Credit Note, shall) treat each Person whose name is recorded in the
Register as the owner of a Loan or other obligation hereunder as the owner
thereof for all purposes of this Agreement and the other Loan Documents,
notwithstanding any notice to the contrary. Any assignment of any Loan or other
obligation hereunder not evidenced by a Revolving Credit Note shall be effective
only upon appropriate entries with respect thereto being made in the Register.
The Register shall be available for inspection by the Borrowers or any Lender at
any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an Affiliate thereof, executed by the Borrowers and the
Administrative Agent), together with payment to the Administrative Agent of a
registration and processing fee of $2,500, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register and give prompt notice of such acceptance and recordation to the
Lenders and the Borrowers.
(f) Each Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee
any and all financial information in such Lender's possession concerning such
Borrower and its Affiliates which has been delivered to such Lender by or on
behalf of such Borrower pursuant to this Agreement or which has been delivered
to such Lender by or on behalf of such Borrower in connection with such Lender's
credit evaluation of such Borrower and its Affiliates prior to becoming a party
to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this subsection concerning assignments of Loans and
Revolving Credit Notes relate only to absolute assignments and that such
provisions do not prohibit assignments creating security interests, including,
without limitation, any pledge or assignment by a Lender of any Loan or
Revolving Credit Note to any Federal Reserve Bank in accordance with applicable
law.
(h) If, pursuant to this subsection, any interest in this Agreement
or any Loan is transferred to any Transferee (which is a Lender) which is
organized under the laws of any jurisdiction other than the United States or any
state thereof, the transferor Lender shall cause such Transferee, concurrently
with the effectiveness of such transfer, to agree (for the benefit of the
transferor Lender, the Administrative Agent and the U.S. Borrower) to provide
the transferor Lender (and, in the case of any Transferee registered in the
Register, the Administrative Agent and the U.S. Borrower) the tax forms and
other documents required to be delivered pursuant to subsection 7.11(b) and to
comply from time to time with all applicable U.S. laws and regulations with
regard to such withholding tax exemption.
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(i) If, pursuant to this subsection, any interest in this Agreement
or any Loan is transferred to any Transferee, the transferor Lender shall cause
such Transferee, concurrently with the effectiveness of such transfer, to agree
(for the benefit of the transferor Lender, the General Administrative Agent and
the Foreign Subsidiary Borrowers) to provide the transferor Lender, the General
Administrative Agent and the Foreign Subsidiary Borrowers the tax forms and
other documents required to be delivered pursuant to subsection 9.11(c) and to
comply from time to time with all applicable laws and regulations with regard to
such withholding tax exemption.
15.7 Adjustments; Set-Off. (a) If any Lender (a "Benefitted Lender")
shall at any time receive any payment of all or part of its Loans then due and
owing to it, or interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 13(f), or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Loans then due and owing to
it, or interest thereon, such Benefitted Lender shall purchase for cash from the
other Lenders a participating interest in such portion of each such other
Lender's Loans owing to it, or shall provide such other Lenders with the
benefits of any such collateral, or the proceeds thereof, as shall be necessary
to cause such Benefitted Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders; provided, however, that
if all or any portion of such excess payment or benefits is thereafter recovered
from such benefitted Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to any Borrower, any
such notice being expressly waived by the Borrowers to the extent permitted by
applicable law, upon any amount becoming due and payable hereunder (whether at
the stated maturity thereof, by acceleration or otherwise) to set-off and
appropriate and apply against such amount any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch, agency or Affiliate thereof to or for the
credit or the account of any Borrower. Each Lender agrees promptly to notify the
Borrowers and the Administrative Agent after any such set-off and application
made by such Lender, provided that the failure to give such notice shall not
affect the validity of such set-off and application.
15.8 Loan Conversion/Participations. (a) (i) On any Conversion Date,
to the extent not otherwise prohibited by a Requirement of Law or otherwise, all
Loans outstanding in any currency other than U.S. Dollars ("Loans to be
Converted") shall be converted into U.S. Dollars (calculated on the basis of the
relevant Exchange Rates as of the Business Day immediately preceding the
Conversion Date) ("Converted Loans") and (ii) on the Conversion Date (with
respect to Loans described in the foregoing clause (i)) (A) each Lender
severally, unconditionally and irrevocably agrees that it shall purchase in U.S.
Dollars a participating interest in such Converted Loans in an amount equal to
its Conversion Sharing Percentage of the outstanding principal amount of the
Converted Loans and (B) to the extent necessary to
82
cause the Committed Outstandings Percentage of each Lender to equal its
Revolving Credit Commitment Percentage (calculated immediately prior to the
termination or expiration of the Revolving Credit Loans), each Lender severally,
unconditionally and irrevocably agrees that it shall purchase or sell a
participating interest in Revolving Credit Loans then outstanding. Each Lender
will immediately transfer to the Administrative Agent, in immediately available
funds, the amounts of its participation(s), and the proceeds of such
participation(s) shall be distributed by the Administrative Agent to each Lender
from which a participating interest is being purchased in the amount(s) provided
for in the preceding sentence. All Converted Loans shall bear interest at the
rate which would otherwise be applicable to ABR Loans.
(b) If, for any reason, the Loans to be Converted may not be
converted into U.S. Dollars in the manner contemplated by paragraph (a) of this
subsection 15.8, (i) the Administrative Agent shall determine the U.S. Dollar
Equivalent of the Loans to be Converted (calculated on the basis of the Exchange
Rate as of the Business Day immediately preceding the date on which such
conversion would otherwise occur pursuant to paragraph (a) of this subsection
15.8), (ii) effective on such Conversion Date, each Lender severally,
unconditionally and irrevocably agrees that it shall purchase in U.S. Dollars a
participating interest in such Loans to be Converted, as the case may be, in an
amount equal to its Conversion Sharing Percentage of such Loans to be Converted,
and (iii) each Lender shall purchase or sell participating interests as provided
in paragraph (a)(iv) of this subsection 15.8. Each Lender will immediately
transfer to the appropriate Administrative Agent, in immediately available
funds, the amount(s) of its participation(s), and the proceeds of such
participation(s) shall be distributed by the Administrative Agent to each
relevant Lender in the amount(s) provided for in the preceding sentence.
(c) To the extent any Non-Excluded Taxes are required to be withheld
from any amounts payable by a Lender to another Lender in connection with its
participating interest in any Converted Loan, each Borrower, with respect to the
relevant Loans made to it, shall be required to pay increased amounts to the
Lender receiving such payments to the same extent they would be required under
subsection 7.11 if such Borrower were making payments directly to such Lender.
(d) To the extent not prohibited by any Requirement of Law or
otherwise, at any time after the actions contemplated by paragraphs (a) or (b)
of this subsection 15.8 have been taken, upon the notice of any Lender to the
Borrowers the following shall occur: (i) the U.S. Borrower (through the
guarantee contained in Section 12) shall automatically be deemed to have assumed
the Converted Loans in which such Lender holds a participation, and (ii) such
Loans shall be assigned by the relevant Lender holding such Loans or obligations
to the Lender who gave the notice requesting such assumption by the U.S.
Borrower.
15.9 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be delivered to the Borrowers and the
Administrative Agent.
83
15.10 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
15.11 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrowers, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Borrowers, the Administrative
Agent or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.
15.12 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
15.13 Submission To Jurisdiction; Waivers. Each party hereto hereby
irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the Courts of
the State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have
to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and agrees
not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrowers, the applicable Lender or the Administrative
Agent, as the case may be, at the address specified in subsection 15.2 or
the signature pages hereof, or at such other address of which the
Administrative Agents and the Borrowers shall have been notified pursuant
thereto;
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction;
(v) waives, to the maximum extent permitted by law, any right
it may have to claim or recover in any legal action or proceeding referred
to in this subsection any punitive damages; and
84
(vi) each Foreign Subsidiary Borrower hereby irrevocably
appoints the U.S. Borrower as its agent for service of process in any
proceeding referred to in subsection 15.13(a) and agrees that service of
process in any such proceeding may be made by mailing or delivering a copy
thereof to it care of U.S. Borrower at its address for notice set forth in
subsection 15.2.
15.14 Acknowledgements. Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) none of the Administrative Agent or any Lender has any fiduciary
relationship with or duty to such Borrower arising out of or in connection
with this Agreement or any of the other Loan Documents, and the
relationship between the Administrative Agents and the Lenders, on the one
hand, and the Borrowers, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the Lenders or among the Borrowers and the Lenders.
15.15 WAIVERS OF JURY TRIAL. THE BORROWERS, THE ADMINISTRATIVE AGENT
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
15.16 Power of Attorney. Each Foreign Subsidiary Borrower hereby
grants to U.S. Borrower an irrevocable power of attorney to act as its attorney-
in-fact with regard to matters relating to this Agreement and each other Loan
Document, including, without limitation, execution and delivery of any
amendments, supplements, waivers or other modifications hereto or thereto,
receipt of any notices hereunder or thereunder and receipt of service of process
in connection herewith or therewith. Each Foreign Subsidiary Borrower hereby
explicitly acknowledges that the Administrative Agents and each Lender have
executed and delivered this Agreement and each other Loan Document to which it
is a party, and has performed its obligations under this Agreement and each
other Loan Document to which it is a party, in reliance upon the irrevocable
grant of such power of attorney pursuant to this subsection. The power of
attorney granted by each Foreign Subsidiary Borrower hereunder is coupled with
an interest.
15.17 Existing Credit Agreement. The Existing Credit Agreement shall
terminate as of the Effective Date. The Majority Lenders (as each such term is
defined in the Existing Credit Agreement) hereby consent to the termination of
the Existing Credit Agreement as provided herein and hereby waive any notice
requirements of the Existing
85
Credit Agreement relating to prepayment or termination of commitments to occur
on the Effective Date as provided herein.
15.18 Judgment. (a) If for the purpose of obtaining judgment in any
court it is necessary to convert a sum due hereunder in one currency into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the first currency with such other currency in the city in which it
normally conducts its foreign exchange operation for the first currency on the
Business Day preceding the day on which final judgment is given.
(b) The obligation of each Borrower in respect of any sum due from it
to any Lender hereunder shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than that in which such sum is denominated in
accordance with the applicable provisions of this Agreement (the "Agreement
Currency"), be discharged only to the extent that on the Business Day following
receipt by such Lender of any sum adjudged to be so due in the Judgment Currency
such Lender may in accordance with normal banking procedures purchase the
Agreement Currency with the Judgment Currency; if the amount of Agreement
Currency so purchased is less than the sum originally due to such Lender in the
Agreement Currency, such Borrower agrees notwithstanding any such judgment to
indemnify such Lender against such loss, and if the amount of the Agreement
Currency so purchased exceeds the sum originally due to any Lender, such Lender
agrees to remit to such Borrower such excess.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
CASE CREDIT CORPORATION
By: /S/ ROBERT A. WEGNER
-----------------------------------
Title: Vice President, CFO & Treasurer
THE CHASE MANHATTAN BANK, as
Administrative Agent and a Lender
By: /S/ TIMOTHY J. STORMS
-----------------------------------
Title: Managing Director
86
THE ASAHI BANK, LTD., CHICAGO BRANCH
By: /S/ MINORU ONODA
-----------------------------------
Title: Senior Deputy General Manager
AUSTRALIA AND NEW ZEALAND BANKING GROUP
LIMITED
By: /S/ GEOFF PACK
-----------------------------------
Title: Senior Vice President
BANK OF AMERICA ILLINOIS, as a Co-Agent
and a Lender
By: /S/ W. THOMAS BARNETT
-----------------------------------
Title: Vice President
BANK OF HAWAII
By: /S/ JOSEPH T. DONALSON
-----------------------------------
Title: Vice President
BANK OF MONTREAL, as a Co-Agent and a
Lender
By: /S/ ERIN M. KEYSER
-----------------------------------
Title: Director
87
THE BANK OF NEW YORK, as a Co-Agent and
a Lender
By: /S/ MARK T. FAMILO
-----------------------------------
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA, as a Co-Agent
and a Lender
By: /S/ F.C.H. ASHBY
-----------------------------------
Title: Senior Manager Loan Operations
THE BANK OF TOKYO-MITSUBISHI LTD.,
CHICAGO BRANCH, as a Lead Manager and a
Lender
By: /S/ MINORU WADA
-----------------------------------
Title: Deputy General Manager
BANQUE NATIONALE DE PARIS
By: /S/ FREDERICK H. MORYL, JR.
-----------------------------------
Title: Senior Vice President
CAISSE NATIONALE DE CREDIT AGRICOLE, as
a Co-Agent and a Lender
By: /S/ W. LEROY STARTZ
-----------------------------------
Title: First Vice President
88
CANADIAN IMPERIAL BANK OF COMMERCE, as a
Co-Agent and a Lender
By: /S/ GARY C. GASKILL
-----------------------------------
Title: Authorized Signatory
By: /S/ ALEKSANDRA DYMANUS
-----------------------------------
Title: Authorized Signatory
CITIBANK, N.A., as a Co-Agent and a
Lender
By: /S/ MARJORIE FUTORNICK
-----------------------------------
Title: Vice President
COMMERZBANK AKTIENGESELLSCHAFT, CHICAGO
BRANCH, as a Co-Agent and a Lender
By: /S/ HELMUT TOELLNER
-----------------------------------
Title: Executive Vice President
By: /S/ PAUL KARLIN
-----------------------------------
Title: Assistant Treasurer
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By: /S/ W. JEFFREY VOLLACK
-----------------------------------
Title: Vice President, Manager
By: /S/ ANGELA R. REILLY
-----------------------------------
Title: Vice President
89
CREDIT LYONNAIS CHICAGO BRANCH, as a
Co-Agent and a Lender
By: /S/ MARY ANN KLEMM
-----------------------------------
Title: Vice President And Group Head
CREDIT SUISSE, as a Co-Agent and a
Lender
By: /S/ WILLIAM P. MURRAY
-----------------------------------
Title: Member of Senior Management
By: /S/ KRISTINN R. KRISTINSSON
-----------------------------------
Title: Associate
THE FIRST NATIONAL BANK OF CHICAGO, as a
Co-Agent and a Lender
By: /S/ MARY M. HEAD
-----------------------------------
Title: Authorized Agent
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, as a Co-Agent and a Lender
By: /S/ ANN M. DODD
-----------------------------------
Title: Senior Vice President
THE FUJI BANK, LIMITED, as a Lead
Manager and a Lender
By: /S/ PETER L. CHINNICI
-----------------------------------
Title: Joint General Manager
90
THE INDUSTRIAL BANK OF JAPAN, LTD., as a
Lead Manager and a Lender
By: /S/ HIROAKI NAKAMURA
-----------------------------------
Title: Joint General Manager
THE LTCB TRUST COMPANY, NEW YORK, as a
Co-Agent and a Lender
By: /S/ JOHN SULLIVAN
-----------------------------------
Title: Executive Vice President
MELLON BANK, N.A., as a Lead Manager and
a Lender
By: /S/ JEFF M. ANDERSON
-----------------------------------
Title: Vice President
THE MITUSI TRUST & BANKING COMPANY, LTD.
-NEW YORK BRANCH
By: /S/ SHIGERU TSUJIMOTO
-----------------------------------
Title: Senior Vice President and Manager
Corporate Finance
MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, as a Co-Agent and a Lender
By: /S/ LAURA E. REIM
-----------------------------------
Title: Vice President
91
NATIONAL AUSTRALIA BANK LIMITED, as a
Co-Agent and a Lender
By: /S/ SUSAN C. JULIEN
-----------------------------------
Title: Vice President
NATIONSBANK, N.A., as a Co-Agent and a
Lender
By: /S/ MARY CAROL DALY
-----------------------------------
Title: Vice President
NORDDEUTSCHE LANDESBANK GIROZENTRALE NEW
YORK BRANCH AND/OR CAYMAN ISLANDS BRANCH
By: /S/ PETRA FRANK-WITT
-----------------------------------
Title: Vice President
By: /S/ STEPHEN K. HUNTER
-----------------------------------
Title: Senior Vice President
THE NORTHERN TRUST COMPANY
By: /S/ LISA M. TAYLOR
-----------------------------------
Title: Officer
ROYAL BANK OF CANADA, as a Co-Agent and
a Lender
By: /S/ PRESTON D. JONES
-----------------------------------
Title: Senior Manager Corporate Banking
92
THE SAKURA BANK, LIMITED, as a Lead
Manager and a Lender
By: /S/ SHUNJI SAKURAI
-----------------------------------
Title: Joint General Manager
THE SANWA BANK, LIMITED, CHICAGO BRANCH
By: /S/ GORDON R. HOLTBY
-----------------------------------
Title: Vice President & Manager
SOCIETE GENERALE
By: /S/ SETH F. ASOFSKY
-----------------------------------
Title: Vice President
THE SUMITOMO BANK, LTD. CHICAGO BRANCH
By: /S/ KEN-ICHIRO KOBAYASHI
-----------------------------------
Title: Joint General Manager
THE SUMITOMO TRUST & BANKING CO., LTD.
NEW YORK BRANCH
By: /S/ SURAJ P. BHATIA
-----------------------------------
Title: Senior Vice President
93
THE TOKAI BANK, LIMITED CHICAGO BRANCH
By: /S/ TATSUO ITO
-----------------------------------
Title: Joint General Manager
TORONTO DOMINION (TEXAS), INC., as a
Co-Agent and a Lender
By: /S/ LISA ALLISON
-----------------------------------
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /S/ PATRICIA SAMSON
-----------------------------------
Title: Credit Officer
By: /S/ CARY MOORE
-----------------------------------
Title: Vice President
UNION BANK OF SWITZERLAND, NEW YORK
BRANCH, as a Co-Agent and a Lender
By: /S/ JAN BUETTGEN
-----------------------------------
Title: Vice President
By: /S/ JAMES P. KELLEHER
-----------------------------------
Title: Assistant Vice President
WACHOVIA BANK OF GEORGIA, N.A.
By: /S/ MICHAEL J. BROWN
-----------------------------------
Title: Vice President
94
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH, as a Co-Agent and a
Lender
By: /S/ SALVATORE BATTINELLI
-----------------------------------
Title: Vice President Credit Department
By: /S/ C.D. ROCKEY
-----------------------------------
Title: Associate
THE YASUDA TRUST & BANKING COMPANY, LTD.
By: /S/ JOSEPH C. MEEK
-----------------------------------
Title: Joint General Manager
ANNEX A
-------
REFUNDING MECHANICS
Subject to the fulfillment or waiver of the conditions precedent set
forth in Section 9 of this Agreement on or prior to the Effective Date, each of
the following provisions shall apply:
Part A. Refunding of Revolving Credit Loans. Each Lender agrees to
make a Revolving Credit Loan to the U.S. Borrower on the Effective Date in an
amount equal to its Funding Commitment Percentage of the aggregate principal
amount of the Existing Revolving Credit Loans and the Existing Swing Line Loans.
Such Revolving Credit Loans shall be made in accordance with the procedures set
forth in subsection 2.3 except that, upon receipt by the Administrative Agent of
proceeds of such Revolving Credit Loans, the Administrative Agent shall apply
such proceeds to the prepayment of the outstanding principal amounts of the
Existing Revolving Credit Loans, and the Existing Swing Line Loans by crediting
the respective accounts of the Existing Lenders and the Existing Swing Lenders
maintained at the office of the Administrative Agent specified in subsection
15.2. Not later than 12:00 Noon, New York City time on the Effective Date, the
U.S. Borrower shall pay to the Administrative Agent for the account of each
Existing Lender and each Existing Swing Line Lender (i) all unpaid interest
which has accrued on the Existing Revolving Credit Loans of such Existing Lender
or the Existing Swing Line Loans of such Existing Swing Line Lender, as the case
may be, to the Effective Date and (ii) all unpaid commitment fees which have
accrued for the account of such Existing Lender pursuant to subsection 6.5 of
the Existing Credit Agreement to the Effective Date.
For purposes of this Part A, the following terms have the following
meanings:
"Existing Swing Line Lenders": each bank or other financial
institution holding any Existing Swing Line Loan immediately prior to the
Effective Date.
"Existing Swing Line Loans": the Swing Line Loans (as defined in the
Existing Credit Agreement) outstanding under the Existing Credit Agreement
immediately prior to the Effective Date.
"Existing Lenders": each bank or other financial institution holding
any Existing Revolving Credit Loan immediately prior to the Effective Date.
"Existing Revolving Credit Loans": the Revolving Credit Loans (as
defined in the Existing Credit Agreement) outstanding under the Existing
Credit Agreement immediately prior to the Effective Date.
SCHEDULE I
----------
COMMITMENTS; ADDRESSES
A. Revolving Credit Commitment and Multicurrency Commitment Amounts (U.S.
Dollars)
==============================================================================================================
Lender Revolving Credit Commitment Multicurrency Commitment
==============================================================================================================
The Asahi Bank, Ltd., Chicago Branch $10,000,000
- --------------------------------------------------------------------------------------------------------------
Australia and New Zealand Banking $10,000,000
Group Limited
- --------------------------------------------------------------------------------------------------------------
Bank of America Illinois $50,000,000 $25,000,000
- --------------------------------------------------------------------------------------------------------------
Bank of Hawaii $10,000,000
- --------------------------------------------------------------------------------------------------------------
Bank of Montreal $35,000,000 $35,000,000
- --------------------------------------------------------------------------------------------------------------
The Bank of New York $30,000,000 $15,000,000
- --------------------------------------------------------------------------------------------------------------
The Bank of Nova Scotia $40,000,000 $20,000,000
- --------------------------------------------------------------------------------------------------------------
The Bank of Tokyo - Mitsubishi Ltd., Chicago $30,000,000
Branch
- --------------------------------------------------------------------------------------------------------------
Banque Nationale de Paris $10,000,000 $10,000,000
- --------------------------------------------------------------------------------------------------------------
Caisse Nationale De Credit Agricole $50,000,000
- --------------------------------------------------------------------------------------------------------------
Canadian Imperial Bank of Commerce $45,000,000
- --------------------------------------------------------------------------------------------------------------
The Chase Manhattan Bank $65,000,000 $55,000,000
- --------------------------------------------------------------------------------------------------------------
Citibank, N.A. $45,000,000 $20,000,000
- --------------------------------------------------------------------------------------------------------------
Commerzbank Aktiengesellschaft, Chicago Branch $30,000,000 $15,000,000
- --------------------------------------------------------------------------------------------------------------
Cooperatieve Centrale Raiffeisen- $10,000,000 $10,000,000
Boerenleenbank B.A., "Rabobank
Nederland", New York Branch
- --------------------------------------------------------------------------------------------------------------
2
======================================================================================================
Lender Revolving Credit Commitment Multicurrency Commitment
- ------------------------------------------------------------------------------------------------------
Credit Lyonnais Chicago Branch $50,000,000 $35,000,000
- ------------------------------------------------------------------------------------------------------
Credit Suisse $50,000,000 $35,000,000
- ------------------------------------------------------------------------------------------------------
The First National Bank of Chicago $35,000,000 $20,000,000
- ------------------------------------------------------------------------------------------------------
First Union National Bank of North Carolina $40,000,000 $35,000,000
- ------------------------------------------------------------------------------------------------------
The Fuji Bank, Limited $25,000,000
- ------------------------------------------------------------------------------------------------------
The Industrial Bank of Japan, Ltd. $25,000,000 $10,000,000
- ------------------------------------------------------------------------------------------------------
The LTCB Trust Company, New York $50,000,000
- ------------------------------------------------------------------------------------------------------
Mellon Bank, N.A. $30,000,000 $10,000,000
- ------------------------------------------------------------------------------------------------------
The Mitsui Trust and Banking Company, $10,000,000
Ltd.- New York Branch
- ------------------------------------------------------------------------------------------------------
Morgan Guaranty Trust Company $50,000,000 $35,000,000
of New York
- ------------------------------------------------------------------------------------------------------
National Australia Bank Limited $25,000,000
- ------------------------------------------------------------------------------------------------------
NationsBank, N.A. $50,000,000 $35,000,000
- ------------------------------------------------------------------------------------------------------
Norddeutsche Landesbank Girozentrale $10,000,000 $10,000,000
New York Branch and/or Cayman
Islands Branch
- ------------------------------------------------------------------------------------------------------
The Northern Trust Company $15,000,000
- ------------------------------------------------------------------------------------------------------
Royal Bank of Canada $35,000,000
- ------------------------------------------------------------------------------------------------------
The Sakura Bank, Limited $25,000,000
- ------------------------------------------------------------------------------------------------------
The Sanwa Bank, Limited, Chicago Branch $20,000,000
- ------------------------------------------------------------------------------------------------------
3
======================================================================================================
Lender Revolving Credit Commitment Multicurrency Commitment
- ------------------------------------------------------------------------------------------------------
Societe Generale $10,000,000 $10,000,000
- ------------------------------------------------------------------------------------------------------
The Sumitomo Bank, LTD. Chicago Branch $10,000,000
- ------------------------------------------------------------------------------------------------------
Sumitomo Trust & Banking Co., Ltd. $10,000,000
New York Branch
- ------------------------------------------------------------------------------------------------------
The Tokai Bank, Limited Chicago Branch $10,000,000
- ------------------------------------------------------------------------------------------------------
Toronto Dominion (Texas), Inc. $20,000,000 $20,000,000
- ------------------------------------------------------------------------------------------------------
Union Bank of California, N.A. $10,000,000 $5,000,000
- ------------------------------------------------------------------------------------------------------
Union Bank of Switzerland, New York Branch $50,000,000 $35,000,000
- ------------------------------------------------------------------------------------------------------
Wachovia Bank of Georgia, N.A. $10,000,000
- ------------------------------------------------------------------------------------------------------
Westdeutsche Landesbank $40,000,000
Girozentrale, New York Branch
- ------------------------------------------------------------------------------------------------------
The Yasuda Trust & Banking Company, LTD. $15,000,000
- ------------------------------------------------------------------------------------------------------
TOTAL $1,200,000,000 $500,000,000
======================================================================================================
4
B. Addresses for Notices
The Asahi Bank, Ltd., Chicago Branch
190 South LaSalle Street, Suite 2350
Chicago, IL 60603
Attn: Bridget Barnes
Telecopy: (312) 606-1010
Australia and New Zealand Banking Group
Limited
1177 Avenue of the Americas
New York, NY 10036
Attn: Ken Schaefer
Telecopy: (212) 801-9131
Bank of America Illinois
333 Clay Street, Suite 4550
Houston, TX 77002
Attn: W. Thomas Barnett
Telecopy: (713) 651-4841
Bank of Hawaii
1839 S. Alma School Rd., Suite 150
Mesa, AZ 85210
Attn: Donna Parker
Telecopy: (602) 752-8007
Bank of Montreal
U.S. Corporate Banking
115 South LaSalle Street - 12th Floor
Chicago, IL 60603
Attn: Michael D. Pincus
Telecopy: (312) 750-6057
The Bank of New York
One Wall Street
New York, NY 10286
Attn: Mark T. Familo
Telecopy: (212) 635-1208/1209
5
The Bank of Nova Scotia
600 Peachtree Street N-E, Suite 2700
Atlanta, GA 30308
Attn: Shannon Law
Telecopy: (404) 888-8998
with a copy to:
The Bank of Nova Scotia
181 West Madison Street, Suite 3700
Chicago, IL 60602
Attn: John P. Malloy
Telecopy: (312) 201-4108
The Bank of Tokyo-Mitsubishi Ltd.,
Chicago Branch
227 West Monroe Street, Suite 2300
Chicago, IL 60606
Attn: Wayne Yamanaka
Telecopy: (312) 696-6935
Banque Nationale de Paris
209 South LaSalle Street, 5th Floor
Chicago, IL 60604
Attn: Jo Ellen Bender, VP and Manager
Telecopy: (312) 977-1380
Caisse Nationale De Credit Agricole
55 East Monroe Street
Chicago, IL 60603-5702
Attn: Theodore D. Tice
Telecopy: (312) 372-3455
Canadian Imperial Bank of Commerce
2 Paces West
2727 Paces Ferry Road, Suite 1200
Atlanta, GA 30339
Attn: Joan Moseley
Telecopy: (770) 319-4950
with a copy to:
6
Canadian Imperial Bank of Commerce
Canadian Imperial Bank of Commerce
909 Fannin Street, Suite 1200
Houston, TX 77010
Attn: David Balderach
Telecopy: (713) 650-3727
The Chase Manhattan Bank
Ten South LaSalle Street
Suite 2300
Chicago, Illinois 60603
Attn: Cynthia Berkshire
Telecopy: (312) 807-4077
Citibank, N.A.
200 South Wacker Dr.
31st Floor
Chicago, IL 60606
Attn: H. Peter Koesler
Telecopy: (312) 993-1050
Commerzbank Aktiengesellschaft, Chicago
Branch
311 South Wacker Drive, Suite 5800
Chicago, IL 60606
Attn: Mr. Paul Karlin
Telecopy: (312) 435-1486
Cooperatieve Centrale Raiffeisen-
Boerenleenbank B.A.,
"Rabobank Nederland", New York Branch
245 Park Avenue
New York, NY 10167
Attn: Corporate Services Department
Telecopy: (212) 818-0233
Credit Lyonnais Chicago Branch
227 West Monroe, Suite 3800
Chicago, IL 60606
Attn: Eric Tobin
Telecopy: (312) 641-0527
7
Credit Suisse
227 West Monroe, Suite 4000
Chicago, IL 60606
Attn: John L. Bordes III
Telecopy: (312) 630-0359
The First National Bank of Chicago
One First National Plaza
Mail Suite 0084
Chicago, IL 60670-0084
Attn: Todd E. Ritz
Telecopy: (312) 732-6222
First Union National Bank of North Carolina
One First Union Center
301 S. College Street, DC-5
Charlotte, NC 28288-0745
Attn: Lisa Bagwell
Telecopy: (704) 374-2802
The Fuji Bank, Limited
225 West Wacker Drive #2000
Chicago, IL 60606
Attn: S. Peca
Telecopy: (312) 621-0539
The Industrial Bank of Japan, Ltd.
227 West Monroe Street, Suite 2600
Chicago, IL 60606
Attn: Steven Ryan
Telecopy: (312) 855-8200
The LTCB Trust Company, New York
165 Broadway
New York, NY 10002
Attn: Maria Araujo
Telecopy: (212) 608-2371
with a copy to:
The LTCB Trust Company, New York
2200 Ross Avenue, Suite 4700 West
Dallas, TX 75202
Attn: Doug Whiddon
Telecopy: (214) 969-5357
8
Mellon Bank, N.A.
55 West Monroe, Suite 2600
Chicago, IL 60603
Attn: Vice President
Telecopy: (312) 357-3414
The Mitsui Trust and Banking Company, Ltd. -
New York Branch
One World Financial Center
200 Liberty Street, Suite 2100
New York, NY 10281
Attn: Diane Boscarino
Telecopy: (212) 945-4170/4171
Morgan Guaranty Trust Company of New York
60 Wall Street
New York, NY 10260-0060
Attn: Charles King
Telecopy: (212) 648-5336
National Australia Bank Limited
200 Park Avenue, 34th Floor
New York, NY 10166
Attn: Susan Julien
Telecopy: (212) 983-1969
NationsBank, N.A.
233 S. Wacker Drive, Suite 2800
Chicago, IL 60606
Attn: Matthew R. Walters
Telecopy: (312) 234-5601
Norddeutsche Landesbank Girozentrale New
York Branch and/or Cayman Islands Branch
1270 Avenue of the Americas, 14th Floor
New York, NY 10020
Attn: Petra Frank-Witt
Telecopy: (212) 332-8660
9
The Northern Trust Company
50 South LaSalle Street
Chicago, IL 60675
Attn: Julie Wigdale
Telecopy: (312) 444-5055
Royal Bank of Canada
Grand Cayman Branch (N. Amer #1)
New York Operations Center
One Financial Square
New York, New York 10005
Attn: Manager Loans Admin
Telecopy: (212) 428-2372
with copy to:
Royal Bank of Canada
One North Franklin, Suite 700
Chicago, IL 60606
Attn: Preston Jones
Telecopy: (312) 551-0805
The Sakura Bank, Limited
227 West Monroe Street, Suite 4700
Chicago, IL 60606
Attn: Kristin Hayes
Telecopy: (312) 332-5354
The Sanwa Bank, Limited, Chicago Branch
10 South Wacker Drive, Suite 3100
Chicago, IL 60606
Attn: Loan Administration - Patrick McGushin
Telecopy: (312) 346-6677
Societe Generale
181 West Madison Street, Suite 3400
Chicago, IL 60602
Attn: Seth F. Asofsky
Telecopy: (312) 578-5099
The Sumitomo Bank, LTD. Chicago Branch
233 South Wacker Drive, Suite 4800
Chicago, IL 60606-6448
Attn: John Di Legge
Telecopy: (312) 876-6436
10
The Sumitomo Trust & Banking Co., Ltd.
New York Branch
527 Madison Avenue
New York, NY 10022
Attn: Suraj P. Bhatia
Telecopy: (212) 418-4848
The Tokai Bank, Limited Chicago Branch
181 West Madison Street, Suite 3600
Chicago, IL 60602
Attn: Michael P. Zoretich
Telecopy: (312) 977-0003
Toronto Dominion (Texas), Inc.
909 Fanin Street, 17th Floor
Houston, TX 77010
Attn: Kimberly Burleson
Telecopy: (713) 951-9921
Union Bank of California, N.A.
350 California Street, 11th Floor, H-1114
San Francisco, CA 94101
Attn: N. Brusati-Dias
Telecopy: (415) 705-7046
with a copy to:
Union Bank of California, N.A.
445 S. Figueroa Street, 16th Floor
Los Angeles, CA 90071
Attn: Patricia Samson
Telecopy: (213) 236-7814
Union Bank of Switzerland, New York Branch
299 Park Avenue
New York, NY 10171-0026
Attn: Alfred Imholz
Telecopy: (212) 821-5534
Wachovia Bank of Georgia, N.A.
70 West Madison Street, Suite 2440
Chicago, IL 60602
Attn: Donna Johnson
Telecopy: (312) 853-0693
11
Westdeutsche Landesbank Girozentrale, New York Branch
1211 Avenue of the Americas
New York, NY 10036
Attn: Craig D. Rockey
Telecopy: (212) 852-6121
with a copy to:
Westdeutsche Landesbank Girozentrale, New York Branch
181 West Madison Street
Chicago, IL 60602
Attn: John B. Hall
Telecopy: (312) 553-1608
The Yasuda Trust & Banking Company, LTD.
181 West Madison Street, Suite 4500
Chicago, IL 60602
Attn: Timothy Fossa
Telecopy: (312) 683-3899
SCHEDULE II
-----------
FOREIGN SUBSIDIARY BORROWER
Jurisdiction of
Name and Address Incorporation
---------------- -------------
- None -
SCHEDULE III
------------
ADMINISTRATIVE SCHEDULE
I. MULTICURRENCY LOANS
-------------------
A. Interest Rates for Each Currency
Deutsche Marks:
--------------
for any Interest Period in respect of any Tranche, the rate for
deposits in Deutsche Marks for a period beginning on the first
day of such Interest Period and ending on the last day of such
Interest Period which appears on the Telerate Page 3750 (or, if
no such quotation appears on such Telerate Page, on the
appropriate Reuters Screen) as of 11:00 a.m., London time, on the
Quotation Day for such Interest Period.
French Francs:
-------------
for any Interest Period in respect of any Tranche, the rate for
deposits in French Francs for a period beginning on the first day
of such Interest Period and ending on the last day of such
Interest Period which appears on the Telerate Page 3740 (or, if
no such quotation appears on such Telerate Page, on the
appropriate Reuters Screen) as of 11:00 a.m., London time, on the
Quotation Day for such Interest Period.
Sterling:
--------
for any Interest Period in respect of any Tranche, the rate per
annum equal to the average (rounded upward to the nearest 1/16th
of 1%) of the rates at which Chase is offered deposits in
Sterling in the Paris interbank market at or about 11:00 A.M.,
Paris time, on the Quotation Day for such Interest Period for
delivery on the first day of such Interest Period for the number
of days comprised therein and in an amount comparable to Chase's
Multicurrency Commitment Percentage of the applicable
Multicurrency Loan.
2
B. Funding Office, Funding Time, Payment Office, Payment Time for Each
Currency.
Deutsche Marks:
--------------
1. Funding Office:
Account of: Chase Manhattan International Limited
Account No: 101-080002101
Chase Bank AG
Frankfurt
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: Chase Manhattan International Limited
Account No: 0101-080002101
Chase Bank AG
Frankfurt
4. Payment Time: 11:00 A.M., local time.
French Francs:
-------------
1. Funding Office:
Account of: Chase Manhattan International Limited
Account No: 020.359.541100
Credit Commercial de France, Paris
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: Chase Manhattan International Limited
Account No: 020.359.541100
Credit Commercial de France, Paris
4. Payment Time: 11:00 A.M., local time.
3
Sterling:
--------
1. Funding Office:
Account of: Chase Manhattan International Limited
Account No: CHAPS 40 52 06
Chase Manhattan Bank
125 London Wall
London EC2Y 5AJ
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: Chase Manhattan International Limited
Account No: CHAPS 40 52 06
Chase Manhattan Bank
125 London Wall
London EC2Y 5AJ
4. Payment Time: 11:00 A.M., local time.
C. Notice of Multicurrency Loan Borrowing:
1. Deliver to: Chase Manhattan International Limited
Trinity Tower
9 Thomas More Street
London E1 9YT
Attention: Steve Clark
Telephone No: 44-171-777-2353
Fax No: 44-171-777-2360/2085
2. Time:
Not later than 11:00 A.M., London time, on the last Business Day
preceding the Quotation Day in respect of such Borrowing Date.
3. Information Required:
Name of Foreign Subsidiary Borrower, amount to be borrowed, and
Interest Periods.
4
D. Notice of Multicurrency Loan Continuation; Notice of Prepayment:
1. Deliver to: Chase Manhattan International Limited
Trinity Tower
9 Thomas More Street
London E1 9YT
Attention: Steve Clark
Telephone No: 44-171-777-2353
Fax No: 44-171-777-2360/2085
with a copy to:
The Chase Manhattan Bank
140 East 45th Street
29th Floor
New York, New York 10017
Attention: Chris Consomer
Telephone No.: 212-622-8779
Fax No.: 212-622-0122
2. Time:
Not later than 11:00 A.M., London time, on the last Business
Day preceding the Quotation Day for the next Interest Period.
3. Information Required:
Name of Foreign Subsidiary Borrower, amount to be continued or
prepaid, as the case may be, and Interest Periods.
II. NOTICE OF ALTERNATE CURRENCY OUTSTANDINGS
-----------------------------------------
1. Deliver to: Chase Manhattan International Limited
Trinity Tower
9 Thomas More Street
London E1 9YT
Attention: Steve Clark
Telephone No: 44-171-777-2353
Fax No: 44-171-777-2360/2085
2. Delivery time: By close of business in London on the date of
making of each Alternate Currency Loan and on the
last Business Day of each month on which the
applicable Alternate Currency Borrower has
outstanding any Alternate Currency Loans.
5
3. Information to be set forth:
Name of Foreign Subsidiary Borrower
Amount and currency of outstanding Alternate Currency Loans
SCHEDULE 8.4
------------
CONSENTS
- None -
SCHEDULE 11.2
-------------
LIENS
- None -
EXHIBIT A
---------
FORM OF
REVOLVING CREDIT NOTE
U.S. $___________________ New York, New York
___________________, 1996
FOR VALUE RECEIVED, the undersigned, CASE CREDIT CORPORATION, a
Delaware corporation (the "U.S. Borrower"), hereby unconditionally promises to
pay to the order of ________________ (the "U.S. Lender") at the office of The
Chase Manhattan Bank, located at 270 Park Avenue, New York, New York 10017, in
lawful money of the United States of America and in immediately available funds,
on the Revolving Credit Termination Date (as defined in the Credit Agreement
referred to below) the principal amount of (a) ________________ U.S. DOLLARS
(U.S.$__________), or, if less, (b) the aggregate unpaid principal amount of all
U.S. Revolving Credit Loans made by the U.S. Lender to the U.S. Borrower
pursuant to subsection 2.1 or 2.5 of such Credit Agreement. The U.S. Borrower
further agrees to pay interest in like money at such office on the unpaid
principal amount hereof from time to time outstanding at the rates and on the
dates specified in subsection 7.1 of such Credit Agreement.
The holder of this Note is authorized to record on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, Type and amount of each U.S.
Revolving Credit Loan made by the U.S. Lender pursuant to such Credit Agreement
and the date and amount of each payment or prepayment of principal thereof, each
continuation thereof, each conversion of all or a portion thereof to another
Type and, in the case of Eurodollar Loans, the length of each Interest Period
and the applicable Eurodollar Rate with respect thereto. Each such recordation
shall constitute prima facie evidence of the accuracy of the information so
recorded, provided that the failure to make any such recordation or any error in
any such recordation shall not affect the obligations of the U.S. Borrower under
such Credit Agreement or this Note.
This Note (a) is one of the U.S. Revolving Credit Notes referred to in
the Revolving Credit and Guarantee Agreement, dated as of August 23, 1996 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the U.S. Borrower, the Foreign Subsidiary Borrowers parties
thereto, the U.S. Lender, the other banks and financial institutions from time
to time parties thereto, the Co-Agents and Lead Managers named therein and The
Chase Manhattan Bank, as Administrative Agent, (b) is subject to the provisions
of the Credit Agreement and (c) is subject to optional and mandatory prepayment
in whole or in part as provided in the Credit Agreement.
2
Upon the occurrence of any one or more Events of Default specified in
the Credit Agreement, all amounts then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, all as provided
in the Credit Agreement.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
CASE CREDIT CORPORATION
By:
------------------------
Title:
Schedule A
to Revolving Credit Note
------------------------
ABR LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
Amount Amount of ABR Loans
Converted to Amount of Principal of Converted to Unpaid Principal Balance
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans of ABR Loans Notation Made By
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
===================================================================================================================================
Schedule B
to Revolving Credit Note
------------------------
EURODOLLAR LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
- -------------------------------------------------------------------------------------------------------------------------
Interest Period and Amount of Principal of Amount of Eurodollar
Amount of Amount Converted Eurodollar Rate with Eurodollar Loans Loans Converted to
Date Eurodollar Loans to Eurodollar Loans Respect Thereto Repaid ABR Loans
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------
Unpaid Principal
Balance of Eurodollar Notation
Loans Made By
- -------------------------------------
- -------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
EXHIBIT B
---------
FORM OF
CAF ADVANCE REQUEST
[Date]
The Chase Manhattan Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Reference is made to the Revolving Credit and Guarantee Agreement,
dated as of August 23, 1996, among the undersigned, the Foreign Subsidiary
Borrowers parties thereto, the banks and financial institutions from time to
time parties thereto, the Co-Agents and Lead Managers named therein and The
Chase Manhattan Bank, as Administrative Agent (as the same may be amended,
supplemented or otherwise modified from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
This is a [Fixed Rate] [LIBO Rate] CAF Advance Request pursuant to
subsection 4.2 of the Credit Agreement requesting offers for the following CAF
Advances:
=============================================================================
Loan 1 Loan 2 Loan 3
- -----------------------------------------------------------------------------
Aggregate Principal Amount $__________ $__________ $__________
- -----------------------------------------------------------------------------
Borrowing Date
- -----------------------------------------------------------------------------
CAF Advance Maturity Date
- -----------------------------------------------------------------------------
CAF Advance Interest Payment
Dates
=============================================================================
Very truly yours,
CASE CREDIT CORPORATION
By:_____________________________________
Title:
[NOTE: Pursuant to the Credit Agreement, a CAF Advance Request may be
transmitted in writing, by telecopy, or by telephone, immediately
confirmed by telecopy. In any case, a CAF Advance Request shall
contain the information specified in the second paragraph of this
form.]
EXHIBIT C
---------
FORM OF
CAF ADVANCE OFFER
[Date]
The Chase Manhattan Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Reference is made to the Revolving Credit and Guarantee Agreement,
dated as of August 23, 1996, among the undersigned, the Foreign Subsidiary
Borrowers parties thereto, the banks and financial institutions from time to
time parties thereto, the Co-Agents and Lead Managers named therein and The
Chase Manhattan Bank, as Administrative Agent (as the same may be amended,
supplemented or otherwise modified from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
In accordance with subsection 4.2 of the Credit Agreement, the
undersigned Lender offers to make CAF Advances thereunder in the following
amounts with the following maturity dates:
===============================================================================
Borrowing Date: __________, ____ Aggregate Maximum Amount: $_________
===============================================================================
Maturity Date 1: Maximum Amount: $_____________
__________, ____ $________ offered at _______*
$________ offered at _______*
===============================================================================
Maturity Date 2: Maximum Amount: $_____________
__________, ____ $________ offered at _______*
$________ offered at _______*
===============================================================================
Maturity Date 3: Maximum Amount: $_____________
__________, ____ $________ offered at _______*
$________ offered at _______*
===============================================================================
Very truly yours,
[NAME OF LENDER]
By:_____________________________________
Title:
Telephone No.:
Telecopy No.:
[NOTE: Insert the interest rate offered for the specified CAF Advance where
indicated by an asterisk (*). In the case of LIBO Rate CAF Advances, insert
a margin bid. In the case of Fixed Rate CAF Advances, insert a fixed rate
bid.]
EXHIBIT D
---------
FORM OF
CAF ADVANCE CONFIRMATION
[Date]
The Chase Manhattan Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Reference is made to the Revolving Credit and Guarantee Agreement, dated
as of August 23, 1996, among the undersigned, the Foreign Subsidiary Borrowers
parties thereto, the banks and financial institutions from time to time parties
thereto, the Co-Agents and Lead Managers named therein and The Chase Manhattan
Bank, as Administrative Agent (as the same may be amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"). Terms defined in
the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
In accordance with subsection 4.2(d) of the Credit Agreement, the
undersigned accepts and confirms the offers by the CAF Advance Lender(s) to make
CAF Advances to the undersigned on __________, _____ under subsection 4.2(d) in
the (respective) amount(s) set forth on the attached list of CAF Advances
offered.
Very truly yours,
CASE CREDIT CORPORATION
By:
-----------------------------------
Title:
[NOTE: The U.S. Borrower must attach CAF Advance offer list prepared by the
Administrative Agent with accepted amount entered by the U.S. Borrower to the
right of each CAF Advance offer].
EXHIBIT E
---------
FORM OF
JOINDER AGREEMENT
JOINDER AGREEMENT, dated as of the date set forth below, entered into
pursuant to the Revolving Credit And Guarantee Agreement, dated as of August 23,
1996 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"; terms defined therein being used herein as therein defined),
among Case Credit Corporation, the Foreign Subsidiary Borrowers parties thereto,
the banks and financial institutions parties thereto, the Co-Agents and Lead
Managers named therein and The Chase Manhattan Bank, as Administrative Agent.
W I T N E S E T H:
WHEREAS, the parties to this Joinder Agreement wish to amend Schedule
II to the Credit Agreement in the manner hereinafter set forth; and
WHEREAS, this Joinder Agreement is entered into pursuant to subsection
15.1 of the Credit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto
hereby agree as follows:
1. Each of the undersigned Subsidiaries of the U.S. Borrower hereby
acknowledges that it has received and reviewed a copy (in execution form) of the
Credit Agreement, and agrees to:
(a) join the Credit Agreement as a Foreign Subsidiary Borrower;
(b) be bound by, and hereby confirms, all covenants, agreements, consents,
submissions, appointments and acknowledgements attributable to a
Foreign Subsidiary Borrower in the Credit Agreement; and
(c) perform all obligations required of it by the Credit Agreement.
2. Each of the undersigned Subsidiaries of the U.S. Borrower hereby
represents and warrants that the representations and warranties with respect to
it contained in, or made or deemed made by it in, Section 8 of the Credit
Agreement are true and correct on the date hereof.
3. The address and jurisdiction of incorporation of each undersigned
Subsidiary of the U.S. Borrower is set forth in Annex I to this Joinder
Agreement.
2
4. The U.S. Borrower hereby agrees that its guarantees contained in
Section 12 of the Credit Agreement shall remain in full force and effect after
giving effect to this Joinder Agreement.
5. THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, each of the undersigned has caused this Joinder
Agreement to be duly executed and delivered in New York, New York by its proper
and duly authorized officer as of the date set forth below.
[NAME OF SUBSIDIARY],
Dated: as a Foreign Subsidiary Borrower
------------------
By:
---------------------------
Title:
CASE CREDIT CORPORATION
By:
---------------------------
Title:
Accepted and Acknowledged:
- -------------------------
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:
------------------------------
Title:
ANNEX I
-------
ADMINISTRATIVE INFORMATION
[Insert administrative information concerning Foreign Subsidiary Borrower]
EXHIBIT F
---------
FORM OF
ALTERNATE CURRENCY FACILITY ADDENDUM
To: The Chase Manhattan Bank, as Administrative Agent
From: Case Credit Corporation
1. This Alternate Currency Facility Addendum is being delivered
to you pursuant to subsection 6.1 of the Revolving Credit and Guarantee
Agreement, dated as of August 23, 1996, among Case Credit Corporation, the
Foreign Subsidiary Borrowers parties thereto, the banks and financial
institutions parties thereto, the Co-Agents and Lead Managers named therein, and
The Chase Manhattan Bank, as Administrative Agent (as the same may be amended,
supplemented or otherwise modified from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
2. The effective date (the "Effective Date") of this Alternate
Currency Facility Addendum will be ______________________ __, ____.
3. Please be advised that, as of the Effective Date, the credit
facility described below is hereby designated as an "Alternate Currency
Facility" for the purposes of the Credit Agreement.
TYPE OF FACILITY:/1/
ADDITIONAL ALTERNATE CURRENC(Y)(IES):
ALTERNATE CURRENCY FACILITY
MAXIMUM BORROWING AMOUNT: $
ALTERNATE CURRENCY BANKS: Local Currency Bank
Name of Lender Maximum Borrowing Amount
-------------- ------------------------
$
- ----------------------------------
/1/ Insert short description of terms of Alternate Currency Facility.
2
LIST OF DOCUMENTATION GOVERNING
ALTERNATE CURRENCY FACILITY
(THE "DOCUMENTATION"):/2/
-------------
4. Case Credit Corporation hereby represents and warrants that (a)
the Documentation complies in all respects with the requirements of Section 6 of
the Credit Agreement and (b) ______________ of ______________/3/ contains an
express acknowledgement that such Alternate Currency Facility shall be subject
to the provisions of Section 6 of the Credit Agreement.
CASE CREDIT CORPORATION
By:_______________________________
Title:
Accepted and Acknowledged:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:
------------------------
Title:
- ---------------------------
/2/ Copies of the Documentation must accompany the Alternate Currency Facility
Addendum, together with, if applicable, an English translation thereof.
/3/ Provide citation to relevant provision from the Documentation.
EXHIBIT G
---------
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Revolving Credit and Guarantee Agreement,
dated as of August 23, 1996 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among Case Credit Corporation, a Delaware
corporation (the "U.S. Borrower"), the Foreign Subsidiary Borrowers parties
thereto (the "Foreign Subsidiary Borrowers"; and, collectively with the U.S.
Borrower the "Borrowers"), the banks and other financial institutions from time
to time parties thereto (the "Lenders"), the Co-Agents and Lead Managers named
therein, and The Chase Manhattan Bank, as Administrative Agent for the Lenders
(the "Administrative Agent"). Unless otherwise defined herein, terms defined in
the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
The Assignor identified on Schedule 1 hereto (the "Assignor") and the
Assignee identified on Schedule 1 hereto (the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as of
the Effective Date (as defined below), the interest set forth on Schedule 1
hereto (the "Assigned Interest") in and to the Assignor's rights and obligations
under the Credit Agreement with respect to those credit facilities contained in
the Credit Agreement as are set forth on Schedule 1 hereto (individually, an
"Assigned Facility"; collectively, the "Assigned Facilities"), in a principal
amount and/or commitment amount for each Assigned Facility as set forth on
Schedule 1 hereto.
2. The Assignor (a) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or with
respect to the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other Loan Document or any
other instrument or document furnished pursuant thereto, other than that the
Assignor has not created any adverse claim upon the interest being assigned by
it hereunder and that such interest is free and clear of any such adverse claim;
(b) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrowers, any of their respective
Subsidiaries, any other Loan Party or any other obligor or the performance or
observance by the Borrowers, any of their respective Subsidiaries, any other
Loan Party or any other obligor of any of their respective obligations under the
Credit Agreement or any other Loan Document or any other instrument or document
furnished pursuant hereto or thereto; and (c) attaches any U.S. Revolving Credit
Notes held by it evidencing the Assigned Facilities and (i) requests that the
Administrative Agent, upon request by the Assignee, exchange any attached U.S.
Revolving Credit Notes for a new U.S. Revolving Credit Note or U.S. Revolving
Credit Notes payable to the Assignee and (ii) if the
2
Assignor has retained any interest in the Assigned Facility, requests that the
Administrative Agent exchange any attached U.S. Revolving Credit Notes for a new
U.S. Revolving Credit Note or U.S. Revolving Credit Notes payable to the
Assignor, in each case in amounts which reflect the assignment being made hereby
(and after giving effect to any other assignments which have become effective on
the Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to subsection 10.1 thereof, the other
Loan Documents and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (c) agrees that it will, independently and without
reliance upon the Assignor, the Administrative Agent or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; (d) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement, the other Loan Documents
or any other instrument or document furnished pursuant hereto or thereto as are
delegated to the Administrative Agent by the terms thereof, together with such
powers as are incidental thereto; and (e) agrees that it will be bound by the
provisions of the Credit Agreement and will perform in accordance with its terms
all the obligations which by the terms of the Credit Agreement are required to
be performed by it as a Lender including, if it is organized under the laws of a
jurisdiction outside the United States, its obligation pursuant to subsection
7.11(b) and (c) of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall be
the date set forth on Schedule 1 hereto (the "Effective Date"). Following the
execution of this Assignment and Acceptance, it will be delivered to the
Administrative Agent for acceptance by them and recording by the Administrative
Agent pursuant to the Credit Agreement, effective as of the Effective Date
(which shall not, unless otherwise agreed to by the Administrative Agent, be
earlier than five Business Days after the date of such acceptance and recording
by the Administrative Agent).
5. Upon such acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignee whether such amounts have accrued prior to the
Effective Date or accrue subsequent to the Effective Date. The Assignor and the
Assignee shall make all appropriate adjustments in payments by the
Administrative Agent for periods prior to the Effective Date or with respect to
the making of this assignment directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Loan Documents and shall be bound by the provisions thereof and (b) the
Assignor shall, to the extent provided in
3
this Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement.
7. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
SCHEDULE 1
- -----------------------------------------------------------------------------
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Credit Principal/Commitment Commitment Percentage
Facility Assigned Amount Assigned Assigned/1/
- ----------------- -------------------- ---------------------
$ __________ ___._________%
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By: By:
------------------------------ ----------------------------------
Title: Title:
Accepted: Consented To:
THE CHASE MANHATTAN BANK, CASE CREDIT CORPORATION/2/
as Administrative Agent
By: By:
----------------------------- -----------------------------------
Title: Title:
- -------------------
/1/ Calculate the Commitment Percentage that is assigned to at least 15 decimal
places and show as a percentage of the aggregate commitments of all Lenders.
/2/ The U.S. Borrower's consent is required in the event that the Assignee is
not a Lender or an Affiliate of a Lender prior to effectiveness hereof.
EXHIBIT H
---------
FORM OF OPINION OF RICHARD S. BRENNAN, ESQ.
The Chase Manhattan Bank, as General [Effective Date]
Administrative Agent
270 Park Avenue
New York, New York 10017
The Lenders named in Schedule I to the
Credit Agreement referred to below
Ladies and Gentlemen:
I am the Secretary and General Counsel of Case Corporation, a Delaware
corporation ("Case") and Case Credit Corporation, a Delaware corporation (the
"U.S. Borrower"), and I or members of my staff have examined or are otherwise
familiar with (a) the Revolving Credit and Guarantee Agreement, dated as of
August 23, 1996 (the "Credit Agreement"), among the U.S. Borrower, the Foreign
Subsidiary Borrowers parties thereto, the lenders parties thereto (the
"Lenders"), the Co-Agents and Lead Managers named therein and The Chase
Manhattan Bank, as Administrative Agent for the Lenders (in such capacity, the
"Administrative Agent"), (b) the other Loan Documents referred to in the Credit
Agreement and (c) the Support Agreement, dated as of January 10, 1996 (the
"Support Agreement"), between Case and the U.S. Borrower.
The opinions expressed below are furnished to you pursuant to
subsection 9.1(c) of the Credit Agreement. Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
In arriving at the opinions expressed below, I or members of my staff:
(a) have examined and relied on the originals, or copies certified or
otherwise identified to our satisfaction, of each of the Credit Agreement, and
the Support Agreement (the Credit Agreement, the Revolving Credit Notes and the
Support Agreement being hereinafter referred to collectively as the "Transaction
Documents"); and
(b) have examined such corporate documents and records of Case and the
U.S. Borrower and such other instruments and certificates of public officials,
officers and representatives of Case and the U.S. Borrower and other Persons as
I have deemed necessary or appropriate for the purposes of this opinion.
2
In arriving at the opinions expressed below, I or members of my staff
have made such investigations of law as we have deemed appropriate as a basis
for such opinions.
In rendering the opinions expressed below, I have assumed, with your
permission, without independent investigation or inquiry, (a) the authenticity
of all documents submitted as originals, (b) the genuineness of all signatures
on all documents that I have examined (other than those of Case and the U.S.
Borrower and officers of Case and the U.S. Borrower) and (c) the conformity to
authentic originals of documents submitted as certified, conformed or
photostatic copies.
When the opinions expressed below are stated "to the best of my
knowledge," I or members of my staff have made reasonable and diligent
investigation of the subject matters of such opinions and have no reason to
believe that there exist any facts or other information that would render such
opinions incomplete or incorrect.
Based upon and subject to the foregoing, I am of the opinion that:
1. Each of Case and the U.S. Borrower is duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation.
2. Each of Case and the U.S. Borrower has the corporate power and
authority to own, lease and operate its properties and to conduct the business
in which it is currently engaged and is duly qualified to transact business as a
foreign corporation or other legal entity and is in good standing or
appropriately qualified in each jurisdiction where its ownership, leasing, or
operation of property or the conduct of its business requires such
qualification, except to the extent that the failure to have such power and
authority and the failure to be so qualified and in good standing could not, in
the aggregate, have a Material Adverse Effect.
3. Each of Case and the U.S. Borrower has the corporate power and
authority to make, deliver and perform its obligations under each Transaction
Document to which it is a party and, in the case of the U.S. Borrower, to borrow
under the Credit Agreement. The U.S. Borrower has taken all necessary corporate
action to authorize the borrowings on the terms and conditions of the Credit
Agreement and the other Loan Documents, and to authorize the execution, delivery
and performance of the Credit Agreement and each other Transaction Document to
which it is a party. Case has taken all necessary corporate action to authorize
the execution, delivery and performance of the Support Agreement. No consent or
authorization of, notice to, filing with or other act by or in respect of, any
Governmental Authority or any other Person is required in connection with (i)
the borrowings by the U.S. Borrower under the Credit Agreement or (ii) the
execution, delivery and performance by Case and the U.S. Borrower, or the
validity or enforceability against Case and the U.S. Borrower, of each
Transaction Document to which it is a party.
4. Each Transaction Document has been duly executed and delivered on
behalf of the U.S. Borrower. The Support Agreement has been duly executed and
delivered
3
on behalf of Case. Each Transaction Document constitutes a legal, valid and
binding obligation of the U.S. Borrower, enforceable against it in accordance
with its terms. The Support Agreement constitutes a legal, valid and binding
obligation of Case, enforceable against it in accordance with its terms.
5. The execution and delivery by Case and the U.S. Borrower of each
Transaction Document to which it is a party, the performance by Case and the
U.S. Borrower of their respective obligations thereunder, the consummation of
the transactions contemplated thereby, the compliance by Case and the U.S.
Borrower with any of the provisions thereof applicable to it, the borrowings by
the U.S. Borrower under the Credit Agreement and the use of proceeds thereof,
all as provided therein, (a) will not violate (i) any Requirement of Law or (ii)
(A) any Contractual Obligation of Case or the U.S. Borrower or any of its
Subsidiaries set forth in Exhibit A hereto (all such Contractual Obligations set
forth in such Exhibit A being the only material debt instruments of the U.S.
Borrower and its Subsidiaries taken as a whole) or (B) to the best of my
knowledge, any other Contractual Obligation of Case or the U.S. Borrower or of
any of its Subsidiaries which violation, in the case of this clause (ii), would
reasonably be expected to have a Material Adverse Effect, and (b) will not
result in, or require, the creation or imposition of any Lien on any of its or
their respective assets or properties pursuant to any such Requirement of Law or
Contractual Obligation.
6. No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the best of my knowledge,
threatened by or against Case or the U.S. Borrower or any of its Subsidiaries or
against any of its or their respective properties or revenues (a) with respect
to the Credit Agreement or any of the other Transaction Documents or (b) which
would reasonably be expected to have a Material Adverse Effect.
7. To the best of my knowledge, neither Case nor the U.S. Borrower
nor any of its Subsidiaries is in default under or with respect to any
Contractual Obligations in any respect which would reasonably be expected to
have a Material Adverse Effect.
8. Neither Case nor the U.S. Borrower is an "investment company" or
a company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended. Neither Case nor the U.S. Borrower
is subject to regulation under any Federal or state statute or regulation which
limits its ability to incur Indebtedness.
9. The Guarantee of Case contained in Section 14.4 of the Indenture,
dated as of February 1, 1996, between Case, the U.S. Borrower and The Bank of
New York, as Trustee, has been permanently released pursuant to the terms
thereof simultaneous with the occurrence of the Amendment and Restatement
Effective Date.
The opinions set forth in the second sentence of paragraph 4 above are
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law), including, without
4
limitation, concepts of materiality and reasonableness and an implied covenant
of good faith and fair dealing.
I am a member of the bar of the State of Illinois and the opinions
expressed herein are based upon and are limited to the laws of such state, the
General Corporate Law of the State of Delaware and the Federal laws of the
United States of America. As to all matters governed by the laws of the State
of New York, I have assumed with your permission that the laws of such state are
identical to the laws of the State of Illinois.
This opinion has been rendered solely for your benefit and for the
benefit of your Transferees pursuant to subsection 15.6 of the Credit Agreement
in connection with the Credit Agreement and the other Transaction Documents and
the transactions contemplated thereby and may not be used, circulated, quoted,
relied upon or otherwise referred to for any other purpose without my prior
written consent; provided, however, that this opinion may be delivered to your
regulators, accountants, attorneys and other professional advisers and may be
used in connection with any legal or regulatory proceeding relating to the
subject matter of this opinion.
Very truly yours,
/s/ Richard S. Brennan
Richard S. Brennan
Secretary and General Counsel
EXHIBIT A
---------
The Indenture, dated as of February 1, 1996, between the U.S. Borrower, Case
Corporation and The Bank of New York, as trustee.
The Liquidity Agreement, dated as of June 23, 1994 (as amended, supplemented or
otherwise modified as of the date of this opinion, the "Liquidity Agreement"),
among Case Equipment Loan Trust 1994-B, the several banks and other financial
institutions party thereto, and Chemical Bank, as Agent.
The Receivables Administration Agreement, the Receivables Certificate Purchase
Agreement, the Receivables Collateral Trust Agreement, the Receivables Purchase
Agreement, the Receivables Trust Agreement and the Receivables Loan and Security
Agreement, as each such agreement is defined in the Liquidity Agreement.
EXHIBIT I
---------
FORM OF OPINION OF MAYER, BROWN & PLATT
To: The Chase Manhattan Bank, as General [Effective Date]
Administrative Agent under the
Credit Agreement referred to below
The Lenders named in Schedule I to the Credit Agreement referred to below
Ladies and Gentlemen:
We have acted as special New York counsel to Case Corporation, a
Delaware corporation ("Case"), and Case Credit Corporation, a Delaware
corporation (the "U.S. Borrower"), in connection with (i) the preparation,
execution and delivery of the Revolving Credit and Guarantee Agreement, dated as
of August 23, 1996 (the "Credit Agreement"), among the U.S. Borrower, the
Foreign Subsidiary Borrowers parties thereto (the "Foreign Subsidiary
Borrowers"; and collectively with the U.S. Borrower, the "Borrowers"), the
lenders parties thereto (the "Lenders"), the Co-Agents and Lead Managers named
therein and The Chase Manhattan Bank, as Administrative Agent for the Lenders
(in such capacity, the "Agent") and (ii) the Support Agreement, dated as of
January 10, 1996 (the "Support Agreement"), between Case and the U.S. Borrower.
This opinion is delivered to you pursuant to subsection 9.1(c) of the
Credit Agreement. Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
In arriving at the opinions expressed below, we have examined the
following documents:
(a) a copy of the Credit Agreement and the Revolving Credit Notes
signed by the Borrowers, the Lenders and the Agent, and a copy of the Support
Agreement signed by Case and the U.S. Borrower; and
(b) a copy of the opinion letter of Richard S. Brennan, Secretary and
General Counsel of Case and the U.S. Borrower, addressed to you and dated the
date hereof, in respect of the Credit Agreement.
2
The documents referred to in clause (a) are herein collectively called
the Transaction Documents.
In rendering the opinions expressed below, we have (a) relied as to
certain matters of fact on certificates of the officers of Case and the U.S.
Borrower and (b) assumed, with your permission, without independent
investigation or inquiry, (i) the authenticity of all documents submitted to us
as originals, (ii) the genuineness of all signatures on all documents that we
examined and (iii) the conformity to authentic originals of documents submitted
to us as certified, conformed or photostatic copies.
Insofar as our opinions expressed below relate to the matters set
forth in the above-mentioned opinion letter of Richard S. Brennan, we have
assumed without independent investigation the correctness of the matters set
forth in paragraphs (1) and (2), the first and second sentences of paragraph
(3), the first sentence of paragraph (4) and clauses (a)(ii) and (b) of
paragraph (5), of the opinion of Richard S. Brennan.
We have also assumed that each of the Transaction Documents has been
duly authorized, executed and delivered by all parties thereto, that Case and
the Borrowers are each duly incorporated and validly existing under the laws of
their respective jurisdictions of incorporation and that each such party has the
corporate power and authority and legal right to execute, deliver and perform
its respective obligations thereunder, and that such execution, delivery and
performance by Case and the Borrowers do not contravene their respective
certificates of incorporation or by-laws or similar organizational documents, or
violate any order, writ, injunction or decree applicable to or binding on Case
or any Borrower of any court or other Governmental Authority and do not violate
or require any consent not obtained under, any Contractual Obligation applicable
or binding upon any such parties.
Based upon the foregoing, and subject to the qualifications and
comments set forth below, we are of the opinion that insofar as the law of the
State of New York, the General Corporation Law of the State of Delaware and the
Federal law of the United States is concerned:
1. The Credit Agreement constitutes a legal, valid and binding
obligation of each Borrower, enforceable against each Borrower in accordance
with its terms. The Support Agreement constitutes a legal, valid and binding
obligation of Case, enforceable against Case in accordance with its terms.
2. No consent or authorization of, notice to, filing with or
other act by or in respect of, any Governmental Authority or any other Person
is required in connection with (i) the borrowings by the Borrowers under the
Credit Agreement or (ii) the execution, delivery and performance by Case or the
Borrowers, or the validity or enforceability against Case or the Borrowers, of
each Transaction Document to which it is a party.
3. The execution and delivery by Case and each of the Borrowers of
each Transaction Document to which it is a party, the performance by Case and
the Borrowers of their respective obligations thereunder, the consummation of
the transactions contemplated
3
thereby, the compliance by Case and the Borrowers with any of the provisions
thereof applicable to them, the borrowings by the Borrowers under the Credit
Agreement and the use of proceeds thereof, all as provided therein, will not
violate any Requirement of Law.
4. Neither Case nor the U.S. Borrower is an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended. Neither Case nor the U.S. Borrower
is subject to regulation under any Federal or New York statute or regulation
which limits its ability to incur Indebtedness.
Our opinions set forth above are subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law), including,
without limitation, concepts of materiality and reasonableness and an implied
covenant of good faith and fair dealing.
Our opinions are also subject to the following additional
qualifications:
(1) We express no opinion as to the provisions of the Credit Agreement
insofar as they relate to the Borrowers' agreement to the jurisdiction of a
particular court (other than the courts of the State of New York and the
appellate courts therefrom), the waiver of the right to a jury trial or the
waiver of inconvenient forum insofar as it relates to a proceeding in the United
States District Court for the Southern District of New York.
(2) We express no opinion as to the provisions of the Credit Agreement
purporting to grant a right of setoff to participants.
(3) We express no opinion as to any provision of the Transaction
Documents that purports to establish an evidentiary standard for determinations
by the Lenders or the Agent.
(4) We express no opinion as to any indemnification obligations of the
Borrowers under the Transaction Documents to the extent such obligations might
be deemed inconsistent with public policy.
We note that (i) a New York statute provides that with respect to a
foreign currency obligation, a court of the State of New York shall render a
judgment or decree in such foreign currency and such judgment or decree shall be
converted into currency of the United States at the rate of exchange prevailing
on the date of entry of such judgment or decree and (ii) with respect to a
foreign currency obligation, a United States Federal court in New York may award
judgment in United States dollars, provided that we express no opinion as to the
rate of exchange such court would apply.
We are members of the Bar of the State of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York, the
4
General Corporation law of the State of Delaware and the Federal law of the
United States of America.
This opinion has been rendered solely for your benefit in connection
with the Transaction Documents and the transactions contemplated thereby and may
not be used, circulated, quoted, relied upon or otherwise referred to for any
purpose without our prior written consent; provided, however, that this opinion
may be delivered to your regulators, accountants, attorneys and other
professional advisers and may be used in connection with any legal or regulatory
proceeding relating to the subject matter of this opinion.
Very truly yours,
MAYER, BROWN & PLATT
EXHIBIT J
---------
MATTERS TO BE COVERED BY
OPINIONS RELATING TO THE
FOREIGN SUBSIDIARY BORROWERS
1. The Foreign Subsidiary Borrower is duly organized, validly
existing and in good standing under the laws of the ____________ [specify
jurisdiction of its organization] (the "Jurisdiction").
2. The Foreign Subsidiary Borrower has the power and authority, and
the legal right, to make, deliver and perform its obligations under the Credit
Agreement and to borrow under the Credit Agreement. The Foreign Subsidiary
Borrower has taken all necessary corporate action to authorize the performance
of its obligations as a "Foreign Subsidiary Borrower" under the Credit Agreement
and to authorize the execution, delivery and performance of the Credit
Agreement.
3. Except for consents, authorizations, approvals, notices and filings
described on an attached schedule, all of which have been obtained, made or
waived and are in full force and effect, no consent or authorization of,
approval by, notice to, filing with or other act by or in respect of, any
Governmental Authority is required in connection with the borrowings by the
Foreign Subsidiary Borrower under the Credit Agreement or with the execution,
delivery, performance, validity or enforceability of the Credit Agreement.
4. The Credit Agreement has been duly executed and delivered on behalf
of the Foreign Subsidiary Borrower.
5. The execution and delivery of the Credit Agreement by the Foreign
Subsidiary Borrower, the performance of its obligations thereunder, the
consummation of the transactions contemplated thereby, the compliance by the
Foreign Subsidiary Borrower with any of the provisions thereof, the borrowings
under the Credit Agreement and the use of proceeds thereof, all as provided
therein, (a) will not violate, or constitute a default under, any Requirement of
Law applicable to the Foreign Subsidiary Borrower and (b) will not result in, or
require, the creation or imposition of any Lien on any of its properties or
revenues pursuant to any such Requirement of Law.
6. There are no taxes imposed by the Jurisdiction (a) on or by virtue
of the execution, delivery, enforcement or performance of the Credit Agreement
or (b) on any payment to be made by the Foreign Subsidiary Borrower pursuant to
the Credit Agreement other than any Non-Excluded Taxes payable by the Foreign
Subsidiary Borrower as provided in subsection 7.11 of the Credit Agreement.
7. To ensure the legality, validity, enforceability or admissibility
in evidence of the Credit Agreement, it is not necessary that the Credit
Agreement or any other Loan Documents or any other document be filed, registered
or recorded with, or executed or
2
notarized before, any court of other authority of the Jurisdiction or that any
registration charge or stamp or similar tax be paid on or in respect of the
Credit Agreement.
8. The Credit Agreement is in proper legal form under the laws of the
Jurisdiction for the enforcement thereof against the Foreign Subsidiary Borrower
under the laws of the Jurisdiction.
9. In any action or proceeding arising out of or relating to the
Credit Agreement in any court in the Jurisdiction, such court would recognize
and give effect to the choice of law provisions in the Credit Agreement wherein
the parties thereto agree that the Credit Agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the State of New York.
10. It is not necessary under the laws of the Jurisdiction (a) in
order to enable the Administrative Agent and the Lenders or any of them to
enforce their respective rights under the Credit Agreement or (b) by reason of
the execution of the Credit Agreement [or the Joinder Agreement to which the
Foreign Subsidiary Borrower is a party] or the performance of the Credit
Agreement that any of them should be licensed, qualified or entitled to carry on
business in the Jurisdiction.
11. Neither either of the Administrative Agent nor any of the Lenders
will be deemed to be resident, domiciled, carrying on business or subject to
taxation in the Jurisdiction merely by reason of the execution of the Credit
Agreement [or the Joinder Agreement to which the Foreign Subsidiary Borrower is
a party] or the performance or enforcement of any thereof. The performance by
the Administrative Agent and the Lenders or any of them of any action required
or permitted under the Credit Agreement will not violate any law or regulation,
or be contrary to the public policy, of the Jurisdiction.
12. If any judgment of a competent court outside the Jurisdiction were
rendered against the Foreign Subsidiary Borrower in connection with any action
arising out of or relating to the Credit Agreement, such judgment would be
recognized and could be sued upon in the courts of the Jurisdiction, and such
courts would grant a judgment which would be enforceable against the Foreign
Subsidiary Borrower in the Jurisdiction without any retrial unless it is shown
that (a) the foreign court did not have jurisdiction in accordance with its
jurisdictional rules, (b) the party against whom the judgment of such foreign
court was obtained had no notice of the proceedings or (iii) the judgment of
such foreign court was obtained through collusion or fraud or was based upon
clear mistake of fact or law.