EXHIBIT 10(d)
- -------------------------------------------------------------------------------
SECOND AMENDMENT AND CONSENT
among
CASE EQUIPMENT LOAN TRUST
1994-B,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
BANK OF MONTREAL,
THE BANK OF NEW YORK,
THE BANK OF NOVA SCOTIA,
BANQUE NATIONALE DE PARIS, CHICAGO BRANCH,
CAISSE NATIONALE DE CREDIT AGRICOLE,
CANADIAN IMPERIAL BANK OF COMMERCE,
CITIBANK, N.A.,
COMMERZBANK AG,
CREDIT SUISSE,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
NATIONSBANK OF TEXAS, N.A.,
ROYAL BANK OF CANADA,
THE TORONTO-DOMINION BANK,
U.S. NATIONAL BANK OF OREGON
and
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
Co-Agents, and
THE CHASE MANHATTAN BANK,
as Administrative Agent
DATED AS OF AUGUST 28, 1996
- -------------------------------------------------------------------------------
SECOND AMENDMENT AND CONSENT, dated as of August 28, 1996 (this
"Amendment"), among CASE EQUIPMENT LOAN TRUST 1994-B, a Delaware business trust
(the "Borrower"), the financial institutions listed as Lenders on the signature
pages of this Amendment (individually, a "Lender," and collectively, the
"Lenders") and THE CHASE MANHATTAN BANK, a New York banking corporation, as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent"), amending the Liquidity Agreement, dated as of June 23, 1994, (the
"Liquidity Agreement"), as amended by the First Amendment to the Liquidity
Agreement, dated as of August 1, 1994, among the Borrower, the financial
institutions parties to the Liquidity Agreement on the date hereof (the
"Existing Lenders") and the Administrative Agent.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower has requested the Existing Lenders to agree to
amend the Liquidity Agreement to, among other things, increase the Aggregate
Commitment thereunder to $750,000,000, extend the Expiration Date (as each of
such terms is defined in Appendix A to the Liquidity Agreement) and change
certain pricing provisions thereof as set forth in this Amendment;
WHEREAS, certain of the Existing Lenders are willing to agree to the
amendments requested by the Borrower, and the other Existing Lenders, each of
which is listed as an "Exiting Lender" on Annex A to this Amendment
(individually, an "Exiting Lender", and collectively, the "Exiting Lenders"),
will cease to be Lenders under the Liquidity Agreement on the Effective Date (as
defined in Section 9 of this Amendment); and
WHEREAS, certain financial institutions that are not now Lenders
parties to the Liquidity Agreement, each of which is listed as a "New Lender" on
Annex A to this Amendment (individually, a "New Lender", and collectively, the
"New Lenders"), will become Lenders on the Effective Date, and the amounts of
the Commitments (as defined in Appendix A to the Liquidity Agreement) of certain
of the Existing Lenders under the Liquidity Agreement will change on the
Effective Date;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used in this Amendment shall
have the respective meanings assigned to such terms in Appendix A to the
Liquidity Agreement unless otherwise defined herein.
2. Amendments to the Liquidity Agreement. The Liquidity Agreement is
hereby amended as follows:
(a) Section 2.9 is hereby amended by deleting the reference to ".25%"
in the sixth line of said Section and by inserting ".125%" in lieu thereof;
and
(b) Section 2.13 is hereby amended by deleting the first sentence of
subsection (b) of such Section in its entirety and inserting in lieu
thereof the following new sentence:
"Each ABR Loan shall bear interest at a rate per annum equal to the
ABR plus the Applicable Margin, from and including the date such Loan
(or portion thereof) is made or converted into an ABR Loan to but
excluding the date of payment or conversion into a Eurodollar Loan.";
and
(c) Section 10.6 is hereby amended by deleting the reference to
"$5,000,000" in the twentieth line of subsection (c) of said Section and by
inserting "$10,000,000" in lieu thereof.
3. Amendments to Appendix A to the Liquidity Agreement. Appendix A
to the Liquidity Agreement is hereby amended as follows:
(a) The definition of "Applicable Margin" is hereby amended to read
in its entirety as follows:
"`Applicable Margin' shall mean (i) on any date when the
aggregate principal amount of the Loans outstanding is less than or
equal to 50% of the Aggregate Commitment, with respect to (A) any
Eurodollar Loan, .375% per annum and (B) any ABR Loan, 0% per annum,
and (ii) on any date when the aggregate principal amount of the Loans
outstanding is greater than 50% of the Aggregate Commitment, with
respect to (A) any Eurodollar Loan, .50% per annum and (B) any ABR
Loan, .125% per annum.";
(b) The definition of "Available Purchase Amount" is hereby amended
by deleting the reference to "$625,000,000" in said definition and
inserting "$781,250,000" in lieu thereof;
(c) The definition of "Expiration Date" is hereby amended by deleting
the reference to "July 1997" in said definition and inserting "August 1999"
in lieu thereof;
(d) The definition of "Expiry Date" is hereby amended by deleting the
reference to "July 1997" in said definition and inserting "August 1999" in
lieu thereof;
(e) The definition of "Maximum Aggregate Commitment" is hereby
amended by deleting the reference to "$600,000,000" in said definition and
inserting "$750,000,000" in lieu thereof;
(f) The definition of "Obligor Limit" is hereby amended by deleting
the reference to "$6,000,000" in said definition and inserting "$7,500,000"
in lieu thereof;
(g) The definition of "Reference Banks" is hereby amended to read in
its entirety as follows:
"`Reference Banks' shall mean the principal London offices of The
Chase Manhattan Bank, Morgan Guaranty Trust Company of New York, and
Credit Suisse.";
(h) The definition of "Settlement Date" is hereby amended to read in
its entirety as follows:
"`Settlement Date' shall mean the 13th day of each month or, if
any such day is not a Business Day, the next succeeding Business
Day."; and
(i) The definition of "Wind-Down Event" is hereby amended by deleting
the reference to "$25,000,000" in clause (vii) of said definition and
inserting "$60,000,000" in lieu thereof.
4. Amendment to Schedule I. Schedule I to the Liquidity Agreement
is hereby amended and restated to read in its entirety as set forth on Schedule
I to this Amendment.
5. New Lenders; Exiting Lenders. (a) As of the Effective Date, the
New Lenders shall become Lenders parties to the Liquidity Agreement, and the
terms "Lender" and "Lenders" as used in the Liquidity Agreement shall be deemed
to include each New Lender. Each New Lender (i) hereby appoints and authorizes
the Administrative Agent to take such action as agent on its behalf and to
exercise such powers under the Liquidity Agreement and the other Basic Documents
as provided by the terms thereof and in accordance with Section 9 of the
Liquidity Agreement and (ii) agrees that as of the Effective Date it will
perform in accordance with their terms all of the obligations which by the terms
of the Liquidity Agreement and the other Basic Documents are required to be
performed by it as a Lender. As of the Effective Date, each New Lender shall
have all the rights of a Lender under the Liquidity Agreement.
(b) As of the Effective Date, the Commitments of each of the Exiting
Lenders shall be terminated, and the Exiting Lenders shall no longer be parties
to the Liquidity Agreement, provided that any indemnities or other agreements
under the Liquidity Agreement or any other Basic Document which by their terms
survive repayment of amounts payable thereunder shall survive repayment pursuant
hereto with respect to the Exiting Lenders.
6. No Other Amendments. Except as expressly stated herein, the
provisions of the Liquidity Agreement and the Exhibits, Schedules and Appendices
thereto are and shall remain in full force and effect.
7. Consent to First Amendment to the Receivables Purchase Agreement.
Each of the Administrative Agent and the Lenders hereby consents to the terms of
the First Amendment to the Receivables Purchase Agreement substantially in the
form of Exhibit A to this Amendment.
8. Consent to First Amendment to the Loan and Security Agreement.
Each of the Administrative Agent and the Lenders hereby consents to the terms of
the First Amendment to the Loan and Security Agreement substantially in the form
of Exhibit B to this Amendment.
9. Consent to First Amendment to Certificate Purchase Agreement. (a)
Each of the Administrative Agent and the Lenders hereby consents to the terms of
the First Amendment to Certificate Purchase Agreement, dated as of August 23,
1996, among Monte Rosa Capital Corporation, Union Bank of Switzerland, New York
Branch, and Case Receivables II Inc., as Depositor and as Seller, substantially
in the form of Exhibit C-1 to this Amendment.
(b) Each of the Administrative Agent and the Lenders hereby consents
to the terms of the First Amendment to Certificate Purchase Agreement, dated as
of August 23, 1996, among Monte Rosa Capital Corporation, Union Bank of
Switzerland, New York Branch, and Case Receivables II Inc., as Depositor,
substantially in the form of Exhibit C-2 to this Amendment.
10. Conditions Precedent to Effectiveness. This Amendment shall be
effective on and as of the date (the "Effective Date") when this Amendment has
been duly executed and delivered by a duly authorized officer of the Owner
Trustee, on behalf of the Borrower, and duly executed and delivered by the
Administrative Agent and upon the satisfaction of each of the following
conditions precedent:
(a) Amendment. The Administrative Agent shall have received
counterparts of this Amendment, duly executed and delivered by each of the
Lenders;
(b) Confirmation of Ratings. The Administrative Agent shall have
received confirmation from each of the Rating Agencies that the amendments
contemplated by this Amendment will not result in a withdrawal or downgrade
of the ratings of the outstanding Commercial Paper Notes or the Trust
Certificates;
(c) Trust Certificates. Trust Certificates having an Aggregate OTC
Amount at least equal to the Required OTC Amount shall have been issued;
(d) Opinions. The Administrative Agent shall have received (i) an
opinion of Mayer, Brown & Platt, counsel to Case Credit Corporation and
Case Receivables II Inc., dated the Effective Date, in form and substance
satisfactory to the Administrative Agent covering such matters as the
Administrative Agent may reasonably request; (ii) an opinion of Richards,
Layton & Finger, counsel to the Borrower, dated the Effective Date, in form
and substance satisfactory to the Administrative Agent covering such
matters as the Administrative Agent may reasonably request; (iii) an
opinion of Simpson Thacher & Bartlett, special New York counsel to the New
Lenders, dated the Effective Date, substantially to the effect set forth in
Exhibit D to this Amendment; and (iv) an opinion of counsel to each New
Lender which is not a national bank or New York bank (which counsel shall
be satisfactory to each of the Rating Agencies), dated the Effective Date,
substantially to the effect set forth in Exhibit E to this Amendment and,
if such New Lender is a branch of a Person organized under the laws of a
jurisdiction other than the United States of America or any State thereof,
an opinion of counsel to each such New Lender, dated the Effective Date,
substantially to the effect set forth in Exhibit F to this Amendment;
(e) Closing Certificates. The Administrative Agent shall have
received from each Existing Lender a certificate, dated the Effective Date,
duly executed by an authorized officer thereof, substantially in the form
of Exhibit G to this Amendment; and
(f) Proceedings. All corporate and other proceedings and all other
documents and legal matters in connection with the transactions
contemplated by this Amendment shall be satisfactory in form and substance
to the Administrative Agent and its counsel.
The Administrative Agent will notify the Rating Agencies of the effectiveness of
this Amendment.
11. Representations and Warranties. The Borrower represents and
warrants that:
(a) the representations and warranties of the Borrower contained in
the Liquidity Agreement (as amended hereby) are true and correct in all
material respects on and as of the Effective Date as if made on and as of
the Effective Date; and
(b) no Default has occurred and is continuing on and as of the
Effective Date.
12. Governing Law; Counterparts. (a) THIS AMENDMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) This Amendment may be executed in any number of counterparts, all
of which counterparts, taken together, shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered by their respective proper and duly authorized officers
as of the day and year first above written.
CASE EQUIPMENT LOAN TRUST 1994-B
By: The Chase Manhattan Bank (USA),
not in its individual capacity
but solely as Owner Trustee
By:
--------------------------
Title:
THE CHASE MANHATTAN BANK, as Lender and Administrative
Agent
By: /s/ Steve Faliski
-------------------------------
Title:
BANK OF MONTREAL
By: /s/ Michael Pincus
-------------------------------
Title:
THE BANK OF NEW YORK
By: /s/ Mark Farnilo
-------------------------------
Title:
THE BANK OF NOVA SCOTIA
By: /s/ John Malloy
-------------------------------
Title:
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ David Balderach
------------------------------
Title:
CITIBANK, N.A.
By: /s/ Richard Levin
------------------------------
Title:
COMMERZBANK AG
By: /s/ Paul Karlih
------------------------------
Title:
CREDIT SUISSE
By: /s/ Roger Saylor
------------------------------
Title:
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK
By: /s/ Douglas Cruishank
------------------------------
Title:
NATIONSBANK, N.A.
By: /s/ MATTHEW WALTERS
------------------------------
Title:
ROYAL BANK OF CANADA
By: /s/ DENHAM TURTON
------------------------------
Title:
TORONTO DOMINION (TEXAS), INC.
By: /s/ STEVEN WATTS
------------------------------
Title:
THE SANWA BANK, LIMITED, CHICAGO BRANCH
By: /s/ JEFFREY ORR
------------------------------
Title:
CAISSE NATIONALE DE CREDIT AGRICOLE
By: /s/ LAWRENCE GRANT
------------------------------
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD
By: /s/ WAYNE YAMANAKA
------------------------------
Title:
THE NORTHERN TRUST COMPANY
By: /s/ JULIE WIGDALE
------------------------------
Title:
BANQUE NATIONALE DE PARIS, CHICAGO BRANCH
By: /s/ JO ELLEN BENDER
------------------------------
Title:
U.S. NATIONAL BANK OF OREGON
By: /s/ TOM LEE
------------------------------
Title:
WESTDEUTSCHE LANDESBANK GIROZENTRALE
By: /s/ MATT TALLO
------------------------------
Title:
BANK AUSTRIA AKTIENGESELLSCHAFT
By: /s/ JEANINE BALL
------------------------------
Title:
AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED
By: /s/ KEN SCHAEFER
-----------------------------
Title:
BANK OF HAWAII
By: /s/ DONNA PARKER
------------------------------
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED-
CHICAGO BRANCH
By: /s/ STEVE RYAN
------------------------------
Title:
NORDDEUTSCHE LANDESBANK GIROZENTRALE-
CAYMAN ISLANDS BRANCH
By: /s/ PETER FRANK-KITT
------------------------------
Title:
ANNEX A
-------
EXITING LENDERS
AND
NEW LENDERS
Exiting Lenders
- ---------------
Banque Francaise du Commerce Exterieur
The Dai-Ichi Kangyo Bank, Ltd.
Deutsche Bank AG
Dresdner Bank A.G.
Peoples Security Life Insurance Company
New Lenders
- -----------
The Industrial Bank of Japan, Limited-Chicago Branch
Norddeutsche Landesbank Girozentrale, Cayman Islands Branch
and/or New York Branch
The Toronto-Dominion Bank
SCHEDULE I
----------
COMMITMENTS
Name and Address Amount of
of Lender Commitment
- ---------------- ------------
THE CHASE MANHATTAN BANK $65,000,000
10 S. LaSalle Street
23rd Floor
Chicago, IL 60603
Cynthia Berkshire
Tel # 312-807-4029
Fax # 312-346-9310
CAISSE NATIONALE DE CREDIT AGRICOLE $50,000,000
55 East Monroe Street
Chicago, IL 60603
Laurence Grant
Tel # 312-917-7456
Fax # 312-372-2830
CREDIT SUISSE $50,000,000
12 East 49th Street
New York, NY 10017
Roger Saylor
Tel # 212-238-5378
Fax # 212-238-5332
MORGAN GUARANTY TRUST COMPANY OF NEW YORK $50,000,000
60 Wall Street - 22nd Floor
New York, NY 10260
Charles King
Tel # 212-648-7138
Fax # 212-648-5336
THE BANK OF NOVA SCOTIA $40,000,000
600 Peachtree Street NE
Suite 2700
Atlanta, GA 30308
Shannon Law
Tel # 404-877-1561
Fax # 404-888-8998
2
Name and Address Amount of
of Lender Commitment
- ---------------- ------------
CANADIAN IMPERIAL BANK OF COMMERCE $40,000,000
909 Fannin Street
Suite 1200
Houston, TX 77010
David Balderach
Tel # 713-655-5218
Fax # 713-650-3727
CITIBANK, N.A. $40,000,000
200 South Wacker Drive
31st Floor
Chicago, IL 60606
Peter Koesler
Tel # 312-993-3226
Fax # 312-993-1050
COMMERZBANK AG $40,000,000
311 South Wacker Drive
Chicago, IL 60606
Helmut Tollner
Tel # 312-435-1000
Fax # 312-436-1485
NATIONSBANK, N.A. $40,000,000
233 South Wacker Drive
Suite 2800
Chicago, IL 60606
Percy L. Berger
Tel # 312-234-5642
Fax # 312-234-5601
U.S. NATIONAL BANK OF OREGON $40,000,000
555 S.W. Oak Street
Suite 400
Portland, OR 97204
Thomas Lee
Tel # 503-275-5381
Fax # 503-275-4267
3
Name and Address Amount of
of Lender Commitment
- ---------------- ------------
WESTDEUTSCHE LANDESBANK GIROZENTRALE $40,000,000
181 West Madison Street
Suite 4850
Chicago, IL 60602
John Hall
Tel # 312-553-1600
Fax # 312-553-1609
BANK OF MONTREAL $35,000,000
115 South LaSalle Street
Chicago, IL 60603
Michael Pincus
Tel # 312-750-1797
Fax # 312-750-6057
THE BANK OF NEW YORK $30,000,000
One Wall Street
19th Floor
New York, NY 10286
Wesley Towns
Tel # 212-635-1197
Fax # 212-635-1208
BANQUE NATIONALE DE PARIS, CHICAGO BRANCH $30,000,000
209 South LaSalle Street
Suite 500
Chicago, IL 60604
Jo Ellen Bender
Tel # 312-977-2225
Fax # 312-977-1380
ROYAL BANK OF CANADA $30,000,000
One Financial Square
New York, NY 10005-3531
Kathleen O'Neill
Tel # 212-428-6284
Fax # 212-428-2304
4
Name and Address Amount of
of Lender Commitment
- ---------------- ------------
THE TORONTO-DOMINION BANK $30,000,000
70 West Madison, Suite 6430
Chicago, IL 60602-4227
Stephen Watts
Tel # 312-993-3407
Fax # 312-993-3414
BANK AUSTRIA AKTIENGESELLSCHAFT $20,000,000
565 Fifth Avenue
28th Floor
New York, NY 10017
Janine Bell
Tel # 212-880-1075
Fax # 212-880-1060
THE BANK OF TOKYO-MITSUBISHI, LTD. $20,000,000
227 West Monroe Street
S-2300
Chicago, IL 60606
Wayne Yamanaka
Tel # 312-696-4664
Fax # 312-696-4535
AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED $10,000,000
1177 Avenue of the Americas
New York, NY 10036-2798
Ken Schaefer
Tel # 212-801-9124
Fax # 212-801-9131
BANK OF HAWAII $10,000,000
1839 S. Alma School Road
Suite 150
Mesa, AZ 85210
Donna Parker
Tel # 602-752-8012
Fax # 602-752-8007
5
Name and Address Amount of
of Lender Commitment
- ---------------- ------------
THE INDUSTRIAL BANK OF JAPAN, LIMITED-
CHICAGO BRANCH $10,000,000
AT&T Corporate Center
227 West Monroe Street
Chicago, IL 60606
Mary Osako
Tel # 312-855-8261
Fax # 312-855-8200
NORDDEUTSCHE LANDESBANK GIROZENTRALE- $10,000,000
CAYMAN ISLANDS BRANCH AND/OR
NEW YORK BRANCH
1270 Avenue of the Americas
14th Floor
New York, NY 10020
(Ms.) Petra Frank-Witt
Tel # 212-332-8608
Fax # 212-332-8660
THE NORTHERN TRUST COMPANY $10,000,000
50 South LaSalle Street
B/11
Chicago, IL 60675
Julie Wigdale
Tel # 312-444-4569
Fax # 312-444-3508
THE SANWA BANK, LIMITED, CHICAGO BRANCH $10,000,000
10 South Wacker Drive
Chicago, IL 60606
Gordon Holtby
Tel # 312-993-4325
Fax # 312-346-6677
------------
Maximum Aggregate Commitment $750,000,000
EXHIBIT A
---------
FIRST AMENDMENT (this "Amendment"), dated as of August __, 1996, to
the Receivables Purchase Agreement, dated as of August 1, 1994 (the "Receivables
Purchase Agreement"), between Case Receivables II Inc. ("CRC") and Case Credit
Corporation ("Case Credit").
W I T N E S S E T H :
-------------------
WHEREAS, Case Credit and CRC are parties to the Receivables Purchase
Agreement and desire to amend certain provisions of the Receivables Purchase
Agreement in the manner and as more fully set forth herein; and
WHEREAS, Case Credit and CRC have received the written consent of the
Administrator, the Administrative Agent and the Majority Lenders to this
Amendment;
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
1. Defined Terms. Capitalized terms used in this Amendment shall
have the respective meanings assigned to such terms in the Receivables Purchase
Agreement unless otherwise defined herein.
2. Amendment of Section 2.7 of the Receivables Purchase Agreement.
Section 2.7 of the Receivables Purchase Agreement is hereby amended by deleting
the reference to ".25" in the fourth line of said Section and inserting ".125"
in lieu thereof.
3. Ratification and Confirmation of the Receivables Purchase
Agreement. Except as so modified pursuant to this Amendment, the Receivables
Purchase Agreement is ratified and confirmed in all respects.
4. Representations and Warranties. Case Credit represents and
warrants that:
(a) the representations and warranties of Case Credit contained in
the Receivables Purchase Agreement (as amended hereby) are true and correct
in all material respects on and as of the Effective Date as if made on and
as of the Effective Date; and
(b) no Termination Event has occurred and is continuing on and as of
the Effective Date.
2
5. Conditions Precedent to Effectiveness. This Amendment shall be
effective on and as of the date (the "Effective Date") when this Amendment has
been duly executed and delivered by duly authorized officers of CRC and Case
Credit and upon effectiveness of the Second Amendment and Consent, dated as of
August __, 1996, to the Liquidity Agreement.
6. Governing Law; Counterparts. (a) THIS AMENDMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) This Amendment may be executed in any number of counterparts, all
of which counterparts, taken together, shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
CASE CREDIT CORPORATION
By: ____________________________________
Title:
CASE RECEIVABLES II INC.
By: ____________________________________
Title:
Consented to:
CASE CREDIT CORPORATION,
as Administrator
By: _____________________________________
Title:
EXHIBIT B
---------
FIRST AMENDMENT (this "Amendment"), dated as of August __, 1996, to
the Loan and Security Agreement, dated as of August 1, 1994 (the "Loan
Agreement"), between Case Receivables II Inc. ("CRC") and Case Equipment Loan
Trust 1994-B (the "Trust").
W I T N E S S E T H :
-------------------
WHEREAS, CRC and the Trust are parties to the Loan Agreement and
desire to amend certain provisions of the Loan Agreement in the manner and as
more fully set forth herein; and
WHEREAS, CRC and the Trust have received the written consent of the
Administrator, the Administrative Agent and the Majority Lenders to this
Amendment;
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
1. Defined Terms. Capitalized terms used in this Amendment shall
have the respective meanings assigned to such terms in the Loan Agreement unless
otherwise defined herein.
2. Amendment of Section 2.4 of the Loan Agreement. Section 2.4 of
the Loan Agreement is hereby amended by deleting the reference to ".25" in the
fourth line of said Section and inserting ".125" in lieu thereof.
3. Ratification and Confirmation of the Loan Agreement. Except as
so modified pursuant to this Amendment, the Loan Agreement is ratified and
confirmed in all respects.
4. Representations and Warranties. CRC represents and warrants
that:
(a) the representations and warranties of CRC contained in the Loan
Agreement (as amended hereby) are true and correct in all material respects
on and as of the Effective Date as if made on and as of the Effective Date;
and
(b) no CRC Event of Default has occurred and is continuing on and as
of the Effective Date.
3
5. Conditions Precedent to Effectiveness. This Amendment shall be
effective on and as of the date (the "Effective Date") when this Amendment has
been duly executed and delivered by a duly authorized officer of the Owner
Trustee, on behalf of the Trust, and duly executed and delivered by CRC and upon
effectiveness of the Second Amendment and Consent, dated as of August __, 1996,
to the Liquidity Agreement.
6. Governing Law; Counterparts. (a) THIS AMENDMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) This Amendment may be executed in any number of counterparts, all
of which counterparts, taken together, shall constitute one and the same
instrument.
4
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
CASE EQUIPMENT LOAN TRUST 1994-B
--------------------------------
By: The Chase Manhattan Bank (USA),
not in its individual capacity
but solely as Owner Trustee
By: _______________________________________
Title:
CASE RECEIVABLES II INC.
By: _______________________________________
Title:
Consented to:
CASE CREDIT CORPORATION,
as Administrator
By: _____________________________________
Title:
5
EXHIBIT C
FIRST AMENDMENT TO CERTIFICATE PURCHASE AGREEMENT, dated as of August 30,
1996 (this "Amendment"), among MONTE ROSA CAPITAL CORPORATION, as the Purchaser
(herein sometimes called the "Purchaser" and sometimes called "MRCC"), UNION
BANK OF SWITZERLAND, NEW YORK BRANCH, as agent (the "MRCC Agent"), and CASE
RECEIVABLES II INC. ("CRC"), as Depositor ("the "Depositor").
WITNESSETH
WHEREAS, the Purchaser, the MRCC Agent, and CRC as the Depositor and as
Seller (the "Seller") have heretofore entered into a Certificate Purchase
Agreement dated as of October 17, 1994 (the "CRC Certificate Purchase
Agreement"); and
WHEREAS, the Purchaser, the MRCC Agent, the Depositor and the Seller now
desire to amend the CRC Certificate Purchase Agreement in certain respects, as
hereinafter provided;
NOW, THEREFORE, in consideration of the promises and the mutual covenants
herein contained, the parties hereby agree as follows:
SECTION I. DEFINITIONS.
A. Defined Terms. Capitalized terms used in this Amendment shall have
the respective meanings assigned to such terms in the CRC Certificate Purchase
Agreement, unless otherwise defined herein.
SECTION II. AMENDMENTS. Section 2.1(a) of the CRC Certificate Purchase
Agreement is hereby amended by deleting the third sentence thereof and
substituting the following sentence in lieu therefor:
"The Depositor agrees that from and after the date hereof to and including
August 30, 1996 the Applicable OTC Margin with respect to the CRC
Certificate and any Trust Certificate issued in replacement or substitution
therefor shall, subject to Section 2.1(d), be the same as that described in
the immediately preceding sentence, and thereafter the Applicable OTC
Margin with respect thereto shall be .625 per annum for each Accrual Period
commencing prior to September 13, 1999, and .875 per annum for each Accrual
Period commencing on or after September 13, 1999."
SECTION III. CONDITIONS.
6
A. Conditions to Effectiveness. The effectiveness of this Amendment is
conditioned upon (i) the execution and delivery and satisfaction of all
conditions precedent to the Second Amendment to the Liquidity Agreement in
substantially the form of Exhibit A hereto and (ii) the execution and delivery
of this Amendment by each of the Purchaser, the Seller, the Depositor and the
MRCC Agent on or prior to September 3, 1996.
SECTION IV. MISCELLANEOUS.
A. Successors and Assigns. All covenants and agreements contained in
this Amendment by or on behalf of any of the parties hereto shall bind and inure
to the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not; provided that the Purchaser shall not assign or
transfer the MRCC Certificate, or any or all its rights, title or interest
hereunder or thereunder except in compliance with Section 12.9 of the Trust
Agreement and with the prior written consent of the Administrator (which shall
not be unreasonably withheld); provided, however, that the Purchaser shall and
may pledge, or grant a security interest in, or transfer in trust, the Chemical
Certificate or any Trust Certificate issued in substitution or replacement
therefor as set forth in Section 4(a) of the CRC Certificate Purchase Agreement.
B. Counterparts. This Amendment may be executed by one or more of the
parties to this Amendment on any number of counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
C. Severability. Any provision of this Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
D. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
E. Submission To Jurisdiction; Waivers. Each of the parties hereto hereby
irrevocably and unconditionally:
1. submits for itself and its property in any legal action or
proceeding relating to this Amendment, or for recognition and enforcement
of any judgment in
7
respect thereof, to the non-exclusive general jurisdiction of the Courts of
the State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
2. consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
3. agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to it at its
address set forth in subsection 6.2 to the CRC Certificate Purchase
Agreement;
4. agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
5. waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this subsection any special, exemplary, punitive or consequential
damages.
F. WAIVERS OF JURY TRIAL. THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AMENDMENT AND FOR ANY COUNTERCLAIM THEREIN.
G. Ratification of CRC Certificate Purchase Agreement. This Amendment
shall be deemed to be an amendment to the CRC Certificate Purchase Agreement,
and the CRC Certificate Purchase Agreement, as amended hereby, is hereby
ratified, approved and confirmed in each and every respect. All references to
the Certificate Purchase Agreement in any other document, instrument, agreement
or writing shall hereafter be deemed to refer to the Certificate Purchase
Agreement as amended hereby.
8
IN WITNESS WHEREOF, the Purchaser, the Depositor and the MRCC Agent have
executed this Amendment as of the day and year first above written.
MONTE ROSA CAPITAL CORPORATION,
as Purchaser
By: UNION BANK OF SWITZERLAND,
as Attorney-in-Fact
By:
Title:
By:
Title:
UNION BANK OF SWITZERLAND, NEW YORK
BRANCH, as Agent
By:
Title:
By:
Title:
CASE RECEIVABLES II INC.,
as Depositor and as Seller
By:
Title:
EXHIBIT D
---------
August __, 1996
To the Persons Listed on
Annex I Hereto
Ladies and Gentlemen:
We have acted as special New York counsel to the financial
institutions listed on Schedule A-1 to this opinion letter (the "Foreign
Liquidity Lenders") and to the financial institutions listed on Schedules A-2,
A-3 and A-4 to this opinion letter (the "Domestic Liquidity Lenders"), in
connection with the execution and delivery by certain branches of the Foreign
Liquidity Lenders listed on Schedules A-5, A-6 and A-7 of this opinion letter
(each of such branches being hereinafter referred to as a "Foreign Liquidity
Branch") and by the Domestic Liquidity Lenders of the Second Amendment and
Consent dated as of August __, 1996 (the "Amendment") among Case Equipment Loan
Trust 1994-B, a Delaware business trust (the "Issuer"), the financial
institutions parties thereto, including the Foreign Liquidity Lenders acting
through their respective Foreign Liquidity Branches, and the Domestic Liquidity
Lenders (the "Lenders") and The Chase Manhattan Bank, as administrative agent
(the "Administrative Agent"), amending a Liquidity Agreement dated as of June
23, 1994 (as amended, the "Liquidity Agreement") among the Issuer, the
financial institutions parties thereto and the Administrative Agent.
This opinion is furnished to you pursuant to subsection 9(d) of the
Amendment. Capitalized terms used herein and not otherwise defined shall have
the meanings assigned to such terms in Appendix A to the Liquidity Agreement.
References to Schedules, unless otherwise indicated, refer to the Schedules
appended to this opinion letter.
In so acting, we have examined the executed counterparts of the
Amendment and the Liquidity Agreement and each exhibit and schedule thereto. We
have also examined and relied upon originals or copies, certified or otherwise
identified to our satisfaction, of such other documents, certificates,
corporate records and other
The Persons Listed on
Annex I Hereto -2- August , 1996
instruments, and have made such other and further investigations, as we have
deemed relevant and necessary as a basis for the opinions hereinafter set forth.
As to questions of fact we have relied upon the documents we have
examined or upon certificates and statements of officers of the Foreign
Liquidity Lenders, the Domestic Liquidity Lenders and of public officials. In
our examination we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all documents submitted to us as certified copies or
photocopies and the authenticity of the originals of such latter documents.
With your permission, based in part upon and without any independent
investigation of a certificate of each of the Domestic Liquidity Lenders and the
Foreign Liquidity Branches (a copy of each of which is attached hereto as Annex
II), we have assumed that:
(a) each Domestic Liquidity Lender listed on Schedule A-4 and each
Foreign Liquidity Lender has been duly organized and is validly existing
under the laws of its jurisdiction of organization;
(b) each Domestic Liquidity Lender listed on Schedule A-4 and each
Foreign Liquidity Lender has all requisite power and authority under the
laws of its jurisdiction of organization to execute, deliver and perform
the Liquidity Agreement;
(c) each Domestic Liquidity Lender listed on Schedule A-4 and each
Foreign Liquidity Branch listed on Schedule A-7 is licensed by the
superintendent of banks (or other similar government official) of the state
in which such Domestic Liquidity Lender or such Foreign Liquidity Branch is
located and each such Domestic Liquidity Lender and each such Foreign
Liquidity Branch is qualified to do business as a banking corporation or as
a state branch of the related Foreign Liquidity Lender, respectively, in
accordance with the provisions of the banking law of such state;
(d) the Amendment has been duly authorized, executed and delivered by
each of the parties thereto, including the Foreign Liquidity Lenders acting
through their respective Foreign Liquidity Branches and the Domestic
Liquidity Lenders, and no further corporate action on the part of the
Foreign Liquidity Lenders acting through their respective Foreign Liquidity
Branches
The Persons Listed on
Annex I Hereto -3- August , 1996
or on the part of the Domestic Liquidity Lenders, as the case may be, is
required in connection with the execution, delivery and performance of the
Amendment or the Liquidity Agreement;
(e) the execution, delivery and performance of the Amendment and the
Liquidity Agreement by each Foreign Liquidity Branch and Domestic Liquidity
Lender do not and will not violate the organizational documents of the
related Foreign Liquidity Lender or such Domestic Liquidity Lender, as the
case may be, or any contract or undertaking to which such Foreign Liquidity
Branch or the related Foreign Liquidity Lender or such Domestic Liquidity
Lender, as the case may be, is a party or to which it is bound or the legal
lending limit applicable to such Foreign Liquidity Branch or such Domestic
Liquidity Lender, as the case may be, or any provision of the laws of (i)
the state, if other than New York, wherein the principal banking office of
such Domestic Liquidity Lender is located and (ii) the jurisdiction of
organization of such Foreign Liquidity Lender; and
(f) the obligation of each Foreign Liquidity Branch and of each
Domestic Liquidity Lender listed on Schedule A-4 to make Refunding Loans
under the Liquidity Agreement constitutes the valid and legally binding
obligations of such Foreign Liquidity Branch and the related Foreign
Liquidity Lender and of such Domestic Liquidity Lender, as the case may be,
under the laws of (i) the state, if other than New York, wherein the
principal banking office of such Domestic Liquidity Lender is located and
(ii) the jurisdiction of organization of such Foreign Liquidity Lender.
Based upon the foregoing and subject to the limitations and
qualifications herein set forth, we hereby advise you that in our opinion:
1. Each Domestic Liquidity Lender listed on Schedule A-2 is a national
banking association organized under the laws of the United States.
2. Each Domestic Liquidity Lender listed on Schedule A-3 is licensed
by the Superintendent of Banks of the State of New York and qualified to do
business as a New York banking corporation in accordance with the
provisions of the Banking Law of the State of New York.
3. Each Foreign Liquidity Lender having a Foreign Liquidity Branch
listed on Schedule A-5 has been authorized by the Comptroller of the
The Person Listed on
Annex I Hereto -4- August , 1996
Currency to establish and operate such Foreign Liquidity Branch in
conformity with the laws of the United States.
4. Each Foreign Liquidity Branch listed on Schedule A-6 is licensed by
the Superintendent of Banks of the State of New York and qualified to do
business as a New York branch of the related Foreign Liquidity Lender in
accordance with the provisions of Article V of the Banking Law of the State
of New York.
5. Each Domestic Liquidity Lender listed on Schedule A-2 and each
Foreign Liquidity Branch listed on Schedule A-5 has the power and authority
under title 12 of the United States Code to enter into the Liquidity
Agreement and to make Refunding Loans thereunder.
6. Each Domestic Liquidity Lender listed on Schedule A-3 and each
Foreign Liquidity Branch listed on Schedule A-6 has the power and authority
under the Banking Law of the State of New York to enter into the Liquidity
Agreement and to make Refunding Loans thereunder.
7. The Liquidity Agreement, including the obligation of each Foreign
Liquidity Branch and Domestic Liquidity Lender to make Refunding Loans
thereunder in accordance with the terms thereof, constitutes a valid and
legally binding obligation of such Foreign Liquidity Branch or Domestic
Liquidity Lender, as the case may be, severally and not jointly and only to
the extent of such Foreign Liquidity Branch's or Domestic Liquidity
Lender's Commitment, enforceable against such Foreign Liquidity Branch or
Domestic Liquidity Lender in accordance with its terms, subject to the
effects of bankruptcy, insolvency, receivership, conservatorship,
liquidation, fraudulent conveyance, reorganization, moratorium or other
similar laws relating to or affecting rights of creditors generally or of
creditors of banks the accounts of which are insured by the Federal Deposit
Insurance Corporation, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and
fair dealing and, in the case of such Foreign Liquidity Branch or the
related Foreign Liquidity Lender, the possible judicial application of
foreign laws or foreign governmental action or judicial action affecting
creditors' rights.
Our opinion with respect to the enforceability of the obligation of
each Foreign Liquidity Branch under the Liquidity Agreement relates only to the
enforceability of the same against such Foreign Liquidity Branch. We express no
opinion as to
The Persons Listed on
Annex I Hereto -5- August , 1996
enforceability by the Issuer of its right to receive Refunding Loans in the
event of the Issuer's bankruptcy.
We are members of the Bar of the State of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the federal law of the United States of America.
This opinion is rendered to the persons listed on Annex I hereto in
connection with the above-described transaction. This opinion may not be relied
upon by such persons for any other purpose, or relied upon by or furnished to
any other person, firm or corporation without our prior written consent, except
that copies of this opinion may be furnished to Standard & Poor's Ratings
Service and Moody's Investors Service, each of which may rely upon this opinion
as if it were addressed to it.
Very truly yours,
SIMPSON THACHER & BARTLETT
SCHEDULE A-1
FOREIGN LIQUIDITY LENDERS
SCHEDULE A-2
DOMESTIC LIQUIDITY LENDERS - NATIONAL BANKS
SCHEDULE A-3
DOMESTIC LIQUIDITY LENDERS - NY CHARTERED BANKS
SCHEDULE A-4
DOMESTIC LIQUIDITY LENDERS - STATE (OTHER THAN NY)
CHARTERED BANKS
SCHEDULE A-5
FOREIGN LIQUIDITY BRANCHES - NATIONAL BRANCHES
SCHEDULE A-6
FOREIGN LIQUIDITY BRANCHES - NY CHARTERED BRANCHES
SCHEDULE A-7
FOREIGN LIQUIDITY BRANCHES - STATE (OTHER THAN NY)
CHARTERED BRANCHES
ANNEX I
-------
Standard & Poor's Ratings Services
Structure Finance
26 Broadway, 10th Floor
New York, New York 10004-1064
Attn: Romita Shetty
Telecopy: (212) 412-0225
Moody's Investors Services, Inc.
ABS Monitoring Department
99 Church Street, 4th Floor
New York, New York 10007
Attn: Bruce Fabrikant
Telecopy: (212) 553-0573/3856
Case Equipment Loan Trust 1994-B
c/o The Chase Manhattan Bank (USA)
802 Delaware Avenue, 13th Floor
Wilmington, DE 19801
Attn: John Mack
Senior Vice President
Corporate Trust Department
Telecopy: (302) 575-5467
Case Credit Corporation
233 Lake Avenue
Racine, Wisconsin 53403
Attn: Robert Wegner
Vice President
Telecopy: (414) 636-6284
2
The Chase Manhattan Bank, Administrative Agent
140 East 45th Street, 29th Floor
New York, New York 10017
Attn: Christopher Consomer
Telecopy: (212) 622-0122
Chase Securities Inc.
Banking and Corporate Finance Group
Ten South LaSalle Street
Chicago, Illinois 60603-1097
Attn: Steve Faliski
Telecopy: (312) 443-1964
Norwest Bank Minnesota, National Association
Norwest Center
6th and Marquette
Minneapolis, Minnesota 55479
Attn: Corporate Trust Department
Telecopy: (612) 667-9824
Hopkins & Sutter
Three First National Plaza
Chicago, Illinois 60602
Attn: David Morrow
Telecopy: (312) 558-6538
ANNEX II
--------
CERTIFICATE OF
[DOMESTIC LIQUIDITY LENDER] [FOREIGN LIQUIDITY BRANCH]
Reference is made to that certain Second Amendment and Consent dated
as of August __, 1996 (the "Amendment") among Case Equipment Loan Trust 1994-B,
a Delaware business trust (the "Issuer"), [NAME OF DOMESTIC LIQUIDITY LENDER OR
FOREIGN LIQUIDITY LENDER] [(THE "LENDER")],[ ACTING THROUGH ITS [NAME OF STATE]
BRANCH], the other financial institutions parties thereto and The Chase
Manhattan Bank, as administrative agent (the "Administrative Agent"), amending
the Liquidity Agreement dated as of June 23, 1994 (as amended, the "Liquidity
Agreement"), among the Issuer, the financial institutions parties thereto and
the Administrative Agent.
The Lender does hereby certify to Simpson Thacher & Bartlett, and
hereby authorizes Simpson Thacher & Bartlett to rely on, and make assumptions
with respect to, the following in connection with Simpson Thacher & Bartlett's
issuance of an opinion as special New York counsel to the undersigned in
connection with the execution, delivery and performance by the undersigned of
the Amendment:
(i) The Amendment and the Liquidity Agreement have been duly
authorized by the Lender and the Amendment has been duly executed and
delivered on behalf of the Lender by the person or persons executing the
same, and no further action on the part of the Lender is required in
connection therewith; and
(ii) The execution, delivery and performance of the Amendment and the
Liquidity Agreement by the Lender does not and will not violate the
organizational documents of the Lender or any contract or undertaking to
which such Lender is a party or to which it is bound or the legal lending
limit applicable to such Lender.
IN WITNESS WHEREOF, [NAME(S)], the duly qualified and acting
[TITLE(S)][, RESPECTIVELY,] of the Lender, have hereunto set [HIS] [HER]
[THEIR] hands this ____ day of ________, 1996 in the name of and on behalf of
the Lender.
[LENDER]
By: ______________________________________________
Title:
[BY:
______________________________________________
TITLE:]
EXHIBIT E
---------
[FORM OF OPINION OF COUNSEL TO DOMESTIC LENDERS OR
FOREIGN BRANCHES ORGANIZED OUTSIDE OF NEW YORK]
August __, 1996
The Persons Listed on
Annex I Hereto
Ladies and Gentlemen:
We have acted as special [name of state] counsel to [name of Lender]
(the "Lender") in connection with the execution and delivery by [the Lender] [,
acting through its [name of state] branch of the Lender (the "Branch"),] of the
Second Amendment and Consent, dated as of August __, 1996 (the "Amendment"),
among Case Equipment Loan Trust 1994-B, a Delaware business trust (the
"Issuer"), the Lender [acting through the Branch], the other financial
institutions parties thereto, and The Chase Manhattan Bank, as administrative
agent (the "Administrative Agent"), amending a Liquidity Agreement dated as of
June 23, 1994 (as amended, the "Liquidity Agreement") among the Issuer, the
financial institutions parties thereto and the Administrative Agent.
This opinion is furnished to you pursuant to subsection 9(d) of the
Amendment. Capitalized terms used herein and not otherwise defined shall have
the meanings assigned to such terms in Appendix A to the Liquidity Agreement.
In so acting, we have examined executed counterparts (or photocopies
thereof) of the Amendment and the Liquidity Agreement and each exhibit and
schedule thereto. We have also examined and relied upon originals or copies,
certified or otherwise identified to our satisfaction, of such other documents,
certificates, corporate records and other instruments, and have made such other
and further investigations, as we have deemed relevant and necessary as a basis
for the opinions hereinafter set forth.
As to questions of fact we have relied upon the documents we have
examined or upon certificates and statements of officers of the Lender and of
public officials. In our examination we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity to original documents of all documents submitted to us as
certified or photocopies and the authenticity of the originals of such latter
documents.
The Persons Listed on
Annex I Hereto -2- August__, 1996
[IF A FOREIGN BRANCH: With your permission, based in part upon and
without any independent investigation of a certificate of the Branch (a copy of
which is attached hereto as Annex II), we have assumed that:
(a) the Lender has been duly organized and is validly existing under
the laws of its jurisdiction of organization;
(b) the Lender has all requisite power and authority under the laws
of its jurisdiction of organization to execute, deliver and perform the
Liquidity Agreement;
(c) the Amendment has been duly authorized, executed and delivered by
each of the parties thereto, including the Lender acting through the
Branch, and no further corporate action on the part of the Lender acting
through the Branch is required in connection with the execution, delivery
and performance of the Liquidity Agreement or the Amendment;
(d) the execution, delivery and performance of the Liquidity
Agreement and the Amendment by the Branch does not and will not violate the
organizational documents of the Lender or any contract or undertaking to
which such Branch or the Lender is a party or to which it is bound or any
provision of the laws of the jurisdiction of organization of such Lender;
and
(e) the obligation of the Branch to make Refunding Loans under the
Liquidity Agreement constitutes the legal, valid and binding obligations of
the Branch and the Lender under the laws of the jurisdiction of
organization of the Lender.]
Based upon the foregoing and subject to the limitations and
qualifications herein set forth, we hereby advise you that in our opinion:
[IF A DOMESTIC BANK: 1. The Lender is a banking corporation duly
organized and validly existing in good standing under the laws of [name of
state] and has full corporate power and authority to execute, deliver and
perform its obligations under the Amendment and the Liquidity Agreement.
2. The Amendment has been duly authorized, executed and delivered by
the Lender and no further corporate action on the part of the Lender is
required in connection with the execution, delivery and performance of the
Amendment or the Liquidity Agreement.
The Persons Listed on
Annex I Hereto -3- August__, 1996
3. The execution, delivery and performance of the Amendment and the
Liquidity Agreement by the Lender do not and will not violate the charter
or by-laws of the Lender or any provision of the law of the State of
__________ or, to our knowledge, after due inquiry, any contract or
undertaking to which the Lender is a party or to which it is bound.]
[IF A FOREIGN BRANCH: 1. The Branch is licensed by the [Superintendent
of Banks] of the State of __________ and qualified to do business as a
[name of state] branch of the Lender in accordance with the provisions of
the [Banking Law] of the State of ______________.
2. The Branch has the power and authority under the [Banking Law] of
the State of ___________ to enter into the Amendment and the Liquidity
Agreement and to make Refunding Loans thereunder.]
We are members of the Bar of the State of ________ and we do not
express any opinion herein concerning any law other than the law of the State of
________ and the federal law of the United States of America.
This opinion is rendered to the persons listed on Annex I hereto in
connection with the above-described transaction. This opinion may not be relied
upon by such persons for any other purpose, or relied upon by or furnished to
any other person, firm or corporation without our prior written consent, except
that copies of this opinion may be furnished to Standard & Poor's Ratings
Service and Moody's Investors Service, each of which may rely upon this opinion
as if it were addressed to it.
Very truly yours,
ANNEX I
-------
Standard & Poor's Ratings Services
Structure Finance
26 Broadway, 10th Floor
New York, New York 10004-1064
Attn: Romita Shetty
Telecopy: (212) 412-0225
Moody's Investors Services, Inc.
ABS Monitoring Department
99 Church Street, 4th Floor
New York, New York 10007
Attn: Bruce Fabrikant
Telecopy: (212) 553-0573/3856
Case Equipment Loan Trust 1994-B
c/o The Chase Manhattan Bank (USA)
802 Delaware Avenue, 13th Floor
Wilmington, DE 19801
Attn: John Mack
Senior Vice President
Corporate Trust Department
Telecopy: (302) 575-5467
Case Credit Corporation
233 Lake Avenue
Racine, Wisconsin 53403
Attn: Robert Wegner
Vice President
Telecopy: (414) 636-6284
2
The Chase Manhattan Bank, Administrative Agent
140 East 45th Street, 29th Floor
New York, New York 10017
Attn: Christopher Consomer
Telecopy: (212) 622-0122
Chase Securities Inc.
Banking and Corporate Finance Group
Ten South LaSalle Street
Chicago, Illinois 60603-1097
Attn: Steve Faliski
Telecopy: (312) 443-1964
Norwest Bank Minnesota, National Association
Norwest Center
6th and Marquette
Minneapolis, Minnesota 55479
Attn: Corporate Trust Department
Telecopy: (612) 667-9824
Hopkins & Sutter
Three First National Plaza
Chicago, Illinois 60602
Attn: David Morrow
Telecopy: (312) 558-6538
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
ANNEX II
--------
CERTIFICATE OF [FOREIGN LIQUIDITY BRANCH]
Reference is made to that certain Second Amendment and Consent, dated
as of August __, 1996 (the "Amendment"), among Case Equipment Loan Trust 1994-B,
a Delaware business trust (the "Issuer"), [name of Foreign Liquidity Lender]
(the "Lender"), acting through its [name of state] branch] (the "Branch"), the
other financial institutions parties thereto and The Chase Manhattan Bank, as
administrative agent (the "Administrative Agent"), amending the Liquidity
Agreement, dated as of June 23, 1994 (as amended, the "Liquidity Agreement"),
among the Issuer, the financial institutions parties thereto and the
Administrative Agent.
The Branch does hereby certify to [name of counsel], and hereby
authorizes [name of counsel] to rely on, and make assumptions with respect to,
the following in connection with [name of counsel's] issuance of an opinion as
special [name of state] counsel to the undersigned in connection with the
execution, delivery and performance by the undersigned of the Amendment and the
Liquidity Agreement:
(i) The Amendment and the Liquidity Agreement have been duly
authorized by the Lender, acting through the Branch, and the Amendment has
been duly executed and delivered on behalf of the Lender by the person or
persons executing the same, and no further action on the part of the Lender
or the Branch is required in connection therewith; and
(ii) The execution, delivery and performance of the Amendment and the
Liquidity Agreement by the Lender does not and will not violate the
organizational documents of the Lender or any contract or undertaking to
which such Lender is a party or to which it is bound or the legal lending
limit applicable to such Lender.
IN WITNESS WHEREOF, [NAME(S)], the duly qualified and acting
[TITLE(S)][, respectively,] of the Branch have hereunto set [his] [her] [their]
hands this ____ day of _____ , 1996 in the name of and on behalf of the Branch.
[BRANCH]
By: __________________________
Title:
[By:
__________________________
Title:]
EXHIBIT F
---------
[FORM OF OPINION OF FOREIGN COUNSEL TO A FOREIGN LENDER]
August __, 1996
To the Persons Listed
on Annex I Hereto
Ladies and Gentlemen:
In connection with the Second Amendment and Consent, dated as of
August __, 1996 (the "Amendment"), among Case Equipment Loan Trust 1994-B, a
Delaware business trust (the "Issuer"), [name of foreign lender] (the "Lender"),
acting through its [name of state] branch (the "Branch"), the other financial
institutions parties thereto, and The Chase Manhattan Bank, as administrative
agent (the "Administrative Agent"), amending a Liquidity Agreement, dated as of
June 23, 1994 (as amended, the "Liquidity Agreement"), among the Issuer, the
financial institutions parties thereto and the Administrative Agent, the
undersigned, as counsel for the Lender, has examined such corporate records,
certificates and other documents and such questions of law as I have considered
necessary and appropriate for purposes of this opinion. In my examination, I
have assumed the genuineness of all signatures, the authenticity of all
documents submitted to me as originals and the conformity to authentic, original
documents of all documents submitted to me as certified, conformed or
photostatic copies. No opinion is expressed herein as to the laws of any
jurisdiction other than the laws of [country of organization].
With your permission, based in part upon and without any independent
investigation of an opinion of Simpson Thacher & Bartlett, I have assumed for
the purpose of my opinion hereinafter expressed that the Liquidity Agreement
will constitute the legal, valid and binding obligations of the Lender in
accordance with New York law.
Based on the foregoing, I advise you that, it is my opinion:
1. The Lender is a banking corporation duly organized and validly
existing in good standing under the laws of [name of country] and has full
corporate power and authority to execute, deliver and perform its
obligations under the Amendment and the Liquidity Agreement.
The Persons Listed on
Annex I Hereto -2- August__, 1996
2. The Amendment and the Liquidity Agreement have been duly
authorized by the Lender, through the Branch.
3. The Liquidity Agreement is enforceable in accordance with its
terms against the Lender's head office in [name of country] if the Branch
defaults in its obligations under such Liquidity Agreement or the Lender
ceases to have a presence in the [name of state where Branch is located]
except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or at
law).
4. The choice of the law of the State of New York to govern the
Liquidity Agreement is valid under the laws of [name of country] and a
court in [name of country] would uphold such choice of law in a suit or
other proceeding on the Liquidity Agreement brought in a court of [name of
country], provided that the application of such law to the case would not
result in a contravention of public policy of [name of country].
5. Any final and conclusive judgement for a fixed and definite sum
obtained against the Branch in any competent United States Federal or state
court having jurisdiction over the branch in respect of any suit, action or
proceeding against the Branch for the enforcement of the Liquidity
Agreement will, upon request, be declared valid and enforceable against the
Lender by the competent courts at the legal domicile of the Lender in [name
of country] without relitigation of the matters adjudicated, provided that
its contents are not contrary to, and the judgement has not been rendered
in violation of, public policy of [name of country] and provided that due
process was not denied and the same subject matter was not first brought or
earlier adjudicated in another court.
6. The obligations of the Lender under the Liquidity Agreement rank
pari passu with all deposits and other unsecured obligations of the Lender.
7. No license, consent or approval of, or registration with, any
governmental department, agency, commission or regulatory authority of
[name of country] is required in connection with the execution or
performance of the Liquidity Agreement by the Lender, acting through the
Branch, to make the Liquidity Agreement fully enforceable in accordance
with its terms.
I express no opinion as to the laws of any jurisdiction other than the
laws of the [name of country].
The Persons Listed on
Annex I Hereto -3- August__, 1996
This opinion has been rendered solely for your benefit in connection
with the Liquidity Agreement and the transactions contemplated thereby and may
not be used, circulated, quoted, relied upon or otherwise referred to for any
purpose without our prior written consent, except that copies of this opinion
may be furnished to Standard & Poor's Ratings Service and Moody's Investors
Service, each of which may rely upon this opinion as if it were addressed to it.
Very truly yours,
ANNEX I
-------
Standard & Poor's Ratings Services
Structure Finance
26 Broadway, 10th Floor
New York, New York 10004-1064
Attn: Romita Shetty
Telecopy: (212) 412-0225
Moody's Investors Services, Inc.
ABS Monitoring Department
99 Church Street, 4th Floor
New York, New York 10007
Attn: Bruce Fabrikant
Telecopy: (212) 553-0573/3856
Case Equipment Loan Trust 1994-B
c/o The Chase Manhattan Bank (USA)
802 Delaware Avenue, 13th Floor
Wilmington, DE 19801
Attn: John Mack
Senior Vice President
Corporate Trust Department
Telecopy: (302) 575-5467
Case Credit Corporation
233 Lake Avenue
Racine, Wisconsin 53403
Attn: Robert Wegner
Vice President
Telecopy: (414) 636-6284
2
The Chase Manhattan Bank, Administrative Agent
140 East 45th Street, 29th Floor
New York, New York 10017
Attn: Christopher Consomer
Telecopy: (212) 622-0122
Chase Securities Inc.
Banking and Corporate Finance Group
Ten South LaSalle Street
Chicago, Illinois 60603-1097
Attn: Steve Faliski
Telecopy: (312) 443-1964
Norwest Bank Minnesota, National Association
Norwest Center
6th and Marquette
Minneapolis, Minnesota 55479
Attn: Corporate Trust Department
Telecopy: (612) 667-9824
Hopkins & Sutter
Three First National Plaza
Chicago, Illinois 60602
Attn: David Morrow
Telecopy: (312) 558-6538
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
EXHIBIT G
---------
To the Parties listed on Annex I
Ladies and Gentlemen:
In connection with the SECOND AMENDMENT AND CONSENT, dated as of
August __, 1996, to the Liquidity Agreement, dated as of June 23, 1994 (the
"Liquidity Agreement"), as amended by the First Amendment, dated as of August 1,
1994, thereto among Case Equipment Loan Trust 1994-B, certain lenders from time
to time parties thereto and The Chase Manhattan Bank, as administrative agent
for the Lenders, the undersigned Lender hereby confirms that (i) credit approval
for the increase in the commitment of the undersigned Lender reflected on
Schedule I to such Amendment has been received, (ii) the undersigned Lender has
taken all necessary action in connection with such increased commitment, and
(iii) such increased commitment does not violate any internal exposure limits of
the undersigned Lender for Case Equipment Loan Trust 1994-B or Case Credit
Corporation or violate any internal rules or regulations of the undersigned
Lender, nor is it our belief that it would cause the undersigned Lender to be in
violation of any legal lending limitations or any federal or state law
applicable to the undersigned Lender.
DATED: August , 1996 ____________________________
Name of Lender
By:
------------------------
Title:
By:
------------------------
Title:
ANNEX I
-------
Standard & Poor's Ratings Services
Structure Finance
26 Broadway, 10th Floor
New York, New York 10004-1064
Attn: Romita Shetty
Telecopy: (212) 412-0225
Moody's Investors Services, Inc.
ABS Monitoring Department
99 Church Street, 4th Floor
New York, New York 10007
Attn: Bruce Fabrikant
Telecopy: (212) 553-0573/3856
Case Equipment Loan Trust 1994-B
c/o The Chase Manhattan Bank (USA)
802 Delaware Avenue, 13th Floor
Wilmington, DE 19801
Attn: John Mack
Senior Vice President
Corporate Trust Department
Telecopy: (302) 575-5467
Case Credit Corporation
233 Lake Avenue
Racine, Wisconsin 53403
Attn: Robert Wegner
Vice President
Telecopy: (414) 636-6284
2
The Chase Manhattan Bank, Administrative Agent
140 East 45th Street, 29th Floor
New York, New York 10017
Attn: Christopher Consomer
Telecopy: (212) 622-0122
Chase Securities Inc.
Banking and Corporate Finance Group
Ten South LaSalle Street
Chicago, Illinois 60603-1097
Attn: Steve Faliski
Telecopy: (312) 443-1964
Norwest Bank Minnesota, National Association
Norwest Center
6th and Marquette
Minneapolis, Minnesota 55479
Attn: Corporate Trust Department
Telecopy: (612) 667-9824