AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 17, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CASE CREDIT CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 76-0394710
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
700 STATE STREET
RACINE, WISCONSIN 53404
(414) 636-6011
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
RICHARD S. BRENNAN
GENERAL COUNSEL AND SECRETARY
CASE CORPORATION
700 STATE STREET, RACINE, WISCONSIN 53404
(414) 636-6011
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
ELIZABETH A. RAYMOND GERARD M. MEISTRELL
MAYER, BROWN & PLATT CAHILL GORDON & REINDEL
190 SOUTH LASALLE STREET 80 PINE STREET
CHICAGO, ILLINOIS 60603-3441 NEW YORK, NEW YORK 10005
(312) 782-0600 (212) 701-3000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
AMOUNT PROPOSED MAXIMUM AGGREGATE
TITLE OF EACH CLASS OF TO BE OFFERING PRICE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) PER UNIT(2) PRICE(2) REGISTRATION FEE
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Debt Securities............. $700,000,000(3) 100% $700,000,000(3) $181,819(3)
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(1) If any Debt Securities are issued at an original issue discount, such
greater amount as shall result in an aggregate offering price to the
public which shall not exceed the amount set forth under Proposed Maximum
Aggregate Offering Price, or if Debt Securities are issued in a foreign or
composite currency, an equivalent amount of such foreign or composite
currency.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) Of the $700,000,000 of debt securities registered hereby, $100,000,000
aggregate principal amount of such securities was registered pursuant to
Registration No. 33-80775 and are unissued as of the date hereof. A
registration fee of $20,000 was previously paid with respect to such debt
securities and is not included in the amount set forth under Amount of
Registration Fee.
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus filed
as part of this Registration Statement relates to the securities registered
hereby, including the remaining unsold $100,000,000 principal amount of debt
securities previously registered by the Registrant under its Registration
Statement on Form S-3 (File No. 33-80775).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED SEPTEMBER 17, 1997.
PROSPECTUS
$700,000,000
CASE CREDIT CORPORATION
DEBT SECURITIES
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Case Credit Corporation, a Delaware corporation ("Case Credit" or the
"Company"), intends from time to time to issue its unsecured debt securities
(the "Securities") from which the Company will receive up to an aggregate
amount of $700,000,000 in proceeds (or its equivalent in foreign currencies or
currency units). The Securities will be offered for sale in amounts, at prices
and on terms to be determined when an agreement to sell is made or at the time
of sale, as the case may be. The Securities may be sold for U.S. dollars,
foreign denominated currency or European Currency Units ("ECUs"), and principal
of and any interest on the Securities may likewise be payable in U.S. dollars,
foreign denominated currency or ECUs. For each issue of Securities in respect
of which this Prospectus is being delivered (the "Offered Securities") there is
an accompanying Prospectus Supplement (the "Prospectus Supplement") that sets
forth the title, designation, aggregate principal amount, designated currency
or currency units, rate (which may be fixed or variable) or method of
calculation of interest and dates for payment thereof, maturity, priority,
premium, if any, authorized denominations, initial price, any redemption or
prepayment rights at the option of the Company or the holder, any terms for
sinking fund payments, any listing on a securities exchange and the initial
public offering price, the form of the Securities (which may be in registered
or permanent global form) and other special terms of the Offered Securities,
together with the terms of the offering of the Offered Securities and the net
proceeds to the Company from the sale thereof.
The Securities will be sold directly, through agents designated from time to
time, through underwriters or dealers, or through a combination of those
methods of sale. If any agents of the Company or any underwriters are involved
in the sale of the Offered Securities in respect of which this Prospectus is
being delivered, the names of such agents or underwriters and any applicable
commissions and discounts are set forth in the Prospectus Supplement with
respect to such Offered Securities.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
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THE DATE OF THIS PROSPECTUS IS .
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN OR INCORPORATED BY REFERENCE IN
THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER. NEITHER THIS PROSPECTUS NOR ANY
PROSPECTUS SUPPLEMENT CONSTITUTES AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY ANY SECURITIES OTHER THAN THE REGISTERED SECURITIES TO WHICH IT
RELATES OR AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY SUCH
SECURITIES TO ANY PERSON IN ANY JURISDICTION TO WHOM IT IS UNLAWFUL TO MAKE
SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE
ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY
SINCE THE DATE HEREOF OR THAT THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
AVAILABLE INFORMATION
Case Credit is currently subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Securities
and Exchange Commission (the "Commission"). Although Case Credit may take
action to suspend its obligation to file such reports and other information
with the Commission if any Offered Securities are held of record by fewer than
300 holders at the beginning of any fiscal year beginning January 1, 1998, and
subject to satisfaction of certain other conditions, Case Credit has agreed in
the Indenture not to take any such action so long as any Securities are
outstanding. Such reports and other information filed by the Company can be
inspected and copied at the office of the Commission at Room 1024, Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, as well as at the
Regional Offices of the Commission at Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661-2511, and Seven World Trade
Center, Suite 1300, New York, New York 10048. Copies of such information can
be obtained by mail from the Public Reference Section of the Commission at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. Such information may also be accessed electronically by
means of the Commission's home page on the World Wide Web located at
http://www.sec.gov.
This Prospectus constitutes a part of a registration statement (the
"Registration Statement") filed by the Company with the Commission under the
Securities Act of 1933, as amended (the "Securities Act"). This Prospectus
omits certain of the information contained in the Registration Statement, and
reference is hereby made to the Registration Statement and to the exhibits
thereto for further information with respect to the Company and the
Securities.
The Company is not required, nor does it intend, to provide annual or other
reports to holders of the Securities. However, the Company's Annual Report on
Form 10-K will be available to such holders upon request. See "Documents
Incorporated by Reference."
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed by the Company under the Exchange Act with the
Commission are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996; and
(2) The Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 1997, and June 30, 1997.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of the initial filing of the
Registration Statement with the Commission and prior to effectiveness of the
Registration Statement or after the date of this Prospectus and prior to the
termination of the offering of the Securities offered hereby, shall be deemed
to be incorporated in this Prospectus by reference and to be a part
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hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide, without charge, upon the written or oral request
by any person to whom this Prospectus is delivered, a copy of any or all of
the documents incorporated by reference in this Prospectus, other than
exhibits to such documents (unless such exhibits are specifically incorporated
by reference into such documents). Such requests should be directed to: Kevin
J. Hallagan, Vice President and Secretary, Case Credit Corporation, 700 State
Street, Racine, Wisconsin 53404 (telephone (414) 636-6011).
This Prospectus and the accompanying Prospectus Supplement include forward-
looking statements that involve risks and uncertainties that could cause
actual results to differ materially from those in the forward looking
statements. All statements, other than statements of historical facts,
included or incorporated by reference in this Prospectus and the Prospectus
Supplement that address activities, events or developments that the Company
expects or anticipates will or may occur in the future, including such items
as business strategy and measures to implement strategy, competitive
strengths, goals, expansion and growth of the Company's and its subsidiaries'
business and operations, plans, references to future success as well as other
statements which include words such as "anticipate," "believe," "plan,"
"estimate," "expect" and "intend" and other similar expressions, constitute
forward-looking statements. These statements are based on certain assumptions
and analyses made by the Company in light of its experience and its perception
of historical trends, current conditions and expected future developments as
well as other factors it believes are appropriate in the circumstances.
However, whether actual results and developments will conform with the
Company's expectations and predictions is subject to a number of risks and
uncertainties, including, among others, any special considerations included or
incorporated by reference in this Prospectus and any Prospectus Supplement;
general economic, market or business conditions; conditions in and policies of
the agricultural, construction, housing and credit industries, risks
associated with investments and operations in foreign jurisdictions and any
future international expansion, including those related to economic, political
and regulatory policies of local governments and laws or policies of the
United States and other countries; changes in governmental laws and
regulations affecting lending, borrowing, taxes and other matters impacting
the Company; the potential impacts of increased competition in the markets the
Company operates within; risk factors reported from time to time in the
reports filed by the Company with the Commission and other factors, many of
which are beyond the control of the Company and its subsidiaries.
Consequently, all of the forward-looking statements made in this Prospectus
and any Prospectus Supplement are qualified by these cautionary statements,
and there can be no assurance that the actual results or developments
anticipated by the Company will be realized or, even if substantially
realized, that they will have the expected consequences to or effects on the
Company and its subsidiaries or their business or operations.
THE COMPANY
Case Credit is a wholly owned finance subsidiary of Case Corporation
("Case"). Case Credit and its wholly owned operating subsidiaries, Case Credit
Ltd. (Canada) and Case Credit Australia Pty Ltd, provide and administer
financing for the retail purchase or lease of new and used Case agricultural
and construction equipment and other new and used agricultural and
construction equipment. Case Credit offers various types of retail financing
to end-use customers to facilitate the sale or lease of Case products in the
United States, Canada and Australia. The Company's business principally
involves purchasing retail installment sales contracts from Case dealers. In
addition, the Company facilitates and finances the sale of insurance products
to retail customers, provides financing for Case dealers and rental equipment
yards, and provides other retail financing programs (including, in the United
States, Case Credit's private-label credit card used by customers to purchase
parts and service from Case dealers) for end-use customers in the United
States and Canada. Case Credit also provides
3
various financing options to dealers for a variety of purposes, including real
estate acquisitions, construction and remodeling, business acquisitions,
dealer systems, service and maintenance equipment, inventory and working
capital.
The Company's business is highly dependent on the ability of Case and its
dealers to generate sales and leasing activity, the willingness of customers
to enter into financing transactions with the Company and the availability of
funds to the Company to finance such transactions. The ability of Case and its
dealers to sell agricultural and construction equipment and thereby generate
retail receivables is affected by numerous factors, including the general
level of activity in the agricultural and construction industries, the rate of
U.S. agricultural production and demand, weather conditions, commodity prices,
consumer confidence, government subsidies for the agricultural sector,
prevailing levels of construction (especially housing starts), and levels of
total industry capacity and equipment inventory. In addition, the Company's
business is affected by changes in market interest rates, which in turn are
related to general economic conditions, demand for credit, inflation,
governmental policies and other factors.
The Company presently obtains funding for operations primarily from banks,
the issuance of public debt, advances and equity capital from Case, earnings
retained in the business, and the issuance of securities in asset-backed
securitization ("ABS") transactions. Over the last several years, the Company
has sold substantial amounts of retail receivables in ABS transactions that
typically involve the sale of a pool of retail installment sales contracts to
limited-purpose business trusts or similar securitization entities. The
Company remains as servicer to such receivables, for which it is typically
paid a servicing fee.
The Company is also exploring expanding its financing business by providing
retail and dealer financing in new geographic regions and for a broader range
of equipment and by offering new financing products to Case dealers, end-use
customers and to others. In 1997, as its asset portfolio has grown, Case
Credit has shifted its asset-management strategy to retain a larger percentage
of assets on balance sheet, as opposed to selling the substantial portion of
such assets in ABS transactions.
The Company was incorporated in Delaware on January 26, 1993. The principal
executive offices of the Company are located at 700 State Street, Racine,
Wisconsin, 53404, and its telephone number is (414) 636-6011.
CASE CORPORATION
Case is a leading worldwide designer, manufacturer, marketer and distributor
of farm equipment and light- and medium-sized construction equipment. Case's
market position is particularly significant in several product categories,
including loader/backhoes, skid steer loaders, large, high-horsepower farm
tractors and self-propelled combines.
Case also manufactures and distributes replacement parts for various models
of its farm and construction equipment, many of which are proprietary, to
support products it has sold. Case distributes these parts to dealers and
distributors through a network of parts depots throughout the world.
RELATIONSHIP WITH CASE CORPORATION
Case provides the Company with certain operational and financial support
which is integral to the conduct of the Company's business. The following is a
description of the support agreement between the Company and Case. Certain
other operational and financial support provided to the Company by Case is
described in certain of the reports filed by the Company with the Commission
pursuant to the Exchange Act.
The Company and Case have entered into a support agreement (the "Support
Agreement") which provides, among other things, that Case will remain,
directly or indirectly, the sole owner of all of the voting stock of the
4
Company, and will make quarterly payments to the Company to the extent
necessary to ensure that the Company's consolidated pre-tax earnings (as
defined) available for fixed charges equal at least 1.10 times its fixed
charges (as defined) in all periods composed of four consecutive fiscal
quarters. The Support Agreement provides that Case is not directly or
indirectly guaranteeing any indebtedness, liability or obligation of the
Company. The Support Agreement may be modified or amended by the parties
thereto or terminated by either party upon 30 days' prior written notice to the
other party, with copies of any such amendment or notice being sent to Moody's
Investors Service, Inc. ("Moody's"), Standard & Poor's Ratings Group ("S&P")
and any other nationally recognized statistical rating organizations then
rating Case Credit debt, if (i) Moody's and S&P confirm in writing that their
ratings on Case Credit debt then rated or capable of being rated by them would
not be downgraded or withdrawn as a result of such modification, amendment or
termination, or (ii) the modification, amendment or notice of termination
provides that the Support Agreement will continue in effect with respect to
debt of Case Credit outstanding on the effective date of the modification,
amendment or termination, or (iii) the holders of at least a majority of the
aggregate unpaid principal amount of all outstanding debt of Case Credit with
an original maturity in excess of 270 days consent in writing, so long as the
holders of debt of Case Credit having an original maturity of 270 days or less
shall continue to have the benefit of the Support Agreement until the maturity
of such debt. For purposes of the Support Agreement, no portion of any debt is
considered to be "outstanding" if such debt is deemed to be discharged and not
outstanding in accordance with the indenture or other governing instrument
defining the rights of the holders of such debt.
The calculation of pre-tax earnings available for fixed charges under the
Support Agreement differs from the calculation of the ratio of earnings to
fixed charges in accordance with the rules and regulations of the Commission.
Under the Support Agreement all cash extraordinary non-recurring items of
income or expense (other than cash debt defeasance costs) are included whereas
under the Commission's rules and regulations such items are excluded.
USE OF PROCEEDS
Except as otherwise set forth in the Prospectus Supplement relating to the
Offered Securities, the net proceeds to be received by the Company from the
sale of the Securities will be used to fund the Company's finance programs
(including, without limitation, retail finance programs offered by Case Credit
to end-use customers and dealer rental equipment finance programs offered by
the Company) and for other corporate purposes, including the repayment of
indebtedness. Pending such use, the net proceeds may be temporarily invested in
short-term instruments.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for Case Credit is set forth below for
the periods indicated.
SIX MONTHS YEAR ENDED DECEMBER 31,
ENDED JUNE 30, ----------------------------------------------------------------
1997 1996 1995 1994 1993 1992
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2.30x 2.80x 4.34x 2.57x 1.82x 1.62x
For the computation of the ratio of earnings to fixed charges, "earnings" has
been calculated by adding income (loss) before taxes, cumulative effect of
changes in accounting principles and extraordinary loss, interest expense,
fixed charges of unconsolidated subsidiaries, the portion of rentals
representative of an interest factor and amortization of capitalized debt
expense. Fixed charges consist of interest expense, fixed charges of
unconsolidated subsidiaries, the portion of rentals representative of an
interest factor and amortization of capitalized debt expense.
The calculation of pre-tax earnings available for fixed charges under the
Support Agreement differs from the calculation of the ratio of earnings to
fixed charges in accordance with the rules and regulations of the
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Commission as set forth above. Under the Support Agreement, all cash,
extraordinary non-recurring items of income or expense (other than cash debt
defeasance costs) are included, whereas under the Commission's rules and
regulations, such items are excluded.
DESCRIPTION OF SECURITIES
The Securities are to be issued under an Indenture (the "Indenture"), between
the Company and The Bank of New York, as Trustee (the "Trustee"), a copy of
which is filed as an exhibit to the Registration Statement. The following
summaries of certain provisions of the Indenture do not purport to be complete
and are subject to, and are qualified in their entirety by reference to, all
the provisions of the Indenture, including the definitions therein of certain
terms. Wherever particular Sections or defined terms of the Indenture are
referred to, such Sections or defined terms are incorporated herein by
reference. As used in this section or in any description of the Indenture,
references to "Case Credit" or "the Company" refer to Case Credit Corporation
and not its subsidiaries.
The following sets forth certain general terms and provisions of the
Securities offered hereby. The particular terms of the Securities offered by
any Prospectus Supplement (the "Offered Securities") will be described in the
Prospectus Supplement relating to such Offered Securities (the "Applicable
Prospectus Supplement").
GENERAL
The Indenture does not limit the amount of Securities that may be issued
thereunder and Securities may be issued thereunder from time to time in one or
more series. The Securities will be unsecured obligations of the Company and
will rank equally and ratably with other unsecured obligations of the Company.
Unless otherwise indicated in the Applicable Prospectus Supplement,
principal, premium, if any, and interest on the Securities will be payable, and
the transfer of Securities will be registrable, at the office or agency to be
maintained by the Company in Racine, Wisconsin, and at any other office or
agency maintained by the Company for such purpose. The Securities will be
issued only in fully registered form without coupons and, unless otherwise
indicated in the Applicable Prospectus Supplement, in denominations of $1,000
and integral multiples thereof. No service charge will be made for any
registration of transfer or exchange of the Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge imposed in connection therewith.
The Applicable Prospectus Supplement will describe the following terms of the
Offered Securities: (i) the title of the Offered Securities; (ii) any limit on
the aggregate principal amount of the Offered Securities; (iii) the Person to
whom any interest on the Offered Securities shall be payable, if other than the
person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest; (iv) the date or dates on which the principal of the Offered
Securities is payable; (v) the rate or rates (which may be fixed or variable)
at which the Offered Securities shall bear interest, if any, or the method by
which such rate or rates shall be determined, the date or dates from which any
such interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable and the Regular Record Date for the interest payable
on any Interest Payment Date; (vi) the place or places where the principal of
and any premium and interest on the Offered Securities will be payable; (vii)
the period or periods within which, the price or prices at which and the terms
and conditions upon which the Offered Securities may be redeemed, in whole or
in part, at the option of the Company; (viii) the obligation, if any, of the
Company to redeem, purchase or repay the Offered Securities pursuant to any
sinking fund or analogous provisions or at the option of a Holder thereof and
the period or periods within which, the price or prices at which and the terms
and conditions upon which the Offered Securities will be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation; (ix) if other than
denominations of $1,000 and any integral multiple thereof, the denominations in
which the Offered Securities shall be issuable; (x) the currency, currencies or
currency units in which payment of the principal of and any premium and
interest on any Offered Securities will be payable if other than the currency
of the United States of America; (xi) if the amount of payments of principal of
or any premium or
6
interest on any Offered Securities may be determined with reference to an index
or formula, the manner in which such amounts will be determined; (xii) if the
principal of or any premium or interest on any Offered Securities is to be
payable, at the election of the Company or a Holder thereof, in one or more
currencies or currency units other than that or those in which the Offered
Securities are stated to be payable, the currency, currencies or currency units
in which payment of the principal of and any premium and interest on the
Offered Securities as to which such election is made will be payable, and the
periods within which and the terms and conditions upon which such election is
to be made; (xiii) the applicability, if any, of the provisions described under
"Defeasance and Covenant Defeasance;" (xiv) whether the Offered Securities will
be issuable, in whole or in part, in the form of one or more Book-Entry
Securities as described under "Book-Entry Securities," and, in such case, the
depository appointed by the Company with respect to the Offered Securities and
the circumstances under which the Book-Entry Security may be registered for
transfer or exchange or authenticated and delivered in the name of a Person
other than the Depository or its nominee; (xv) if other than the principal
amount thereof, the portion of the principal amount of the Offered Securities
which will be payable upon declaration of acceleration of the Maturity thereof;
and (xvi) any other terms of the Offered Securities.
The Securities may be issued as Original Issue Discount Securities to be
offered and sold at a substantial discount below their stated principal amount.
Federal income tax consequences and other special considerations applicable to
Original Issue Discount Securities and any Securities treated as having been
issued with original issue discount for federal income tax purposes will be
described in the Applicable Prospectus Supplement. "Original Issue Discount
Securities" means any Security which provides for an amount less than the
principal amount thereof to be due and payable upon the declaration of
acceleration of the Maturity thereof upon the occurrence of an Event of Default
and the continuation thereof.
The Indenture does not contain covenants or other provisions designed to
afford holders of the Securities protection in the event of a highly leveraged
transaction, change in credit rating or other similar occurrence. See
"Relationship With Case Corporation" concerning Case's obligation to retain
ownership of all of the voting stock of the Company and Case's obligation to
make support payments to the Company under certain circumstances.
BOOK-ENTRY SECURITIES
Unless otherwise provided in the Prospectus Supplement, the Securities will
be represented by one or more certificates (the "Global Securities"). The
Global Security representing Securities will be deposited with, or on behalf
of, The Depository Trust Company ("DTC"), or other successor depository
appointed by the Company (DTC or such other depository is herein referred to as
the "Depository") and registered in the name of the Depository or its nominee.
Unless otherwise provided in the Prospectus Supplement, Securities will not be
issued in definitive form. If the aggregate principal amount of any issue
exceeds $200 million, one certificate will be issued with respect to each $200
million of principal amount and an additional certificate will be issued with
respect to any remaining principal amount of such issue.
DTC is a limited purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participants ("Participants") deposit with DTC. DTC
also facilitates the settlement among Participants of securities transactions,
such as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Direct Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations. DTC is owned by a number of its
Direct Participants and by the New York Stock Exchange, Inc., the American
Stock Exchange, Inc., and the National Association of Securities Dealers, Inc.
Access to DTC's book-entry system is also available to others, such as
securities brokers and dealers, banks and trust companies that clear through or
maintain a custodial relationship with a Direct
7
Participant, either directly or indirectly ("Indirect Participants"). The Rules
applicable to DTC and its Participants are on file with the Commission.
Upon the issuance by the Company of Securities represented by a Global
Security, purchases of Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Securities on
DTC's records. The ownership interest of each actual purchaser of each Security
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Participants acting on behalf of Beneficial Owners. Beneficial Owners will
not receive certificates representing their ownership interests in Securities,
except in the event that use of the book-entry system for the Securities is
discontinued. The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
the Global Security.
So long as the Depository for the Global Security, or its nominee, is the
registered owner of the Global Security, the Depository or its nominee, as the
case may be, will be considered the sole owner or holder of the Securities
represented by such Global Security for all purposes under the Indenture.
Except as provided below, owners of beneficial interests in Securities
represented by the Global Security will not be entitled to have Securities
represented by such Global Security registered in their names, will not receive
or be entitled to receive physical delivery of Securities in definitive form
and will not be considered the owners or holders thereof under the Indenture.
To facilitate subsequent transfers, all Securities deposited by Participants
with DTC are registered in the name of DTC's partnership nominee, Cede & Co.
The deposit of Securities with DTC and their registration in the name of Cede &
Co. effect no change in beneficial ownership. DTC has no knowledge of the
actual Beneficial Owners of the Securities; DTC's records reflect only the
identity of the Direct Participants to whose accounts such Securities are
credited, which may or may not be the Beneficial Owners. The Participants will
remain responsible for keeping account of their holdings on behalf of their
customers. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Neither DTC nor Cede & Co. will consent or vote with respect to Securities.
Under its usual procedures, DTC mails an Omnibus Proxy to the Company as soon
as possible after the record date. The Omnibus Proxy assigns Cede & Co.'s
consenting or voting rights to those Direct Participants to whose accounts the
Securities are credited on the record date (identified in a listing attached to
the Omnibus Proxy).
Payments of principal, of premium, if any, and interest on the Securities
represented by the Global Security registered in the name of DTC or its nominee
will be made by the Company through the Trustee under the Indenture or a paying
agent (the "Paying Agent"), which may also be the Trustee under the Indenture,
to DTC or its nominee, as the case may be, as the registered owner of the
Global Security. Neither the Company, the Trustee, nor the Paying Agent will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests of the Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
The Company has been advised that DTC, upon receipt of any payment of
principal, premium, if any, and interest in respect of a Global Security, will
credit Direct Participant's accounts payable date in accordance with their
respective holdings shown on DTC's record unless DTC has reason to believe that
it will not receive payment on the payable date. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts of customers in
bearer
8
form or registered in "street name," and will be the responsibility of such
Participant and not of DTC, the Paying Agent or the Company, subject to any
statutory or regulatory requirements as may be in effect from time to time.
Payment of principal, premium, if any, and interest to DTC is the
responsibility of the Company or the Paying Agent, disbursement of such
payments to Direct Participants shall be the responsibility of DTC, and
disbursement of such payments to the Beneficial Owners shall be the
responsibility of Direct and Indirect Participants.
If the Depository with respect to a Global Security is at any time unwilling
or unable to continue as Depository and a successor Depository is not appointed
by the Company within 90 days, the Company will issue certificated notes in
exchange for the Securities represented by such Global Security.
The information in this section concerning the Depository and the
Depository's book-entry system has been obtained from sources that the Company
believes to be reliable, but the Company takes no responsibility for the
accuracy thereof.
CERTAIN COVENANTS OF THE COMPANY
Limitations on Secured Funded Debt. The Indenture provides that the Company
will not, nor will it permit any Restricted Subsidiary to, incur, issue,
assume, guarantee or create any Secured Funded Debt, without effectively
providing concurrently with the incurrence, issuance, assumption, guaranty or
creation of any such Secured Funded Debt that the Outstanding Securities
(together with, if the Company shall so determine, any other Indebtedness of
the Company or such Restricted Subsidiary then existing or thereafter created
which is not subordinated to the Outstanding Securities) will be secured
equally and ratably with (or prior to) such Secured Funded Debt, so long as
such Secured Funded Debt will be secured by a Lien, unless, after giving effect
thereto, the sum of the aggregate amount of all outstanding Secured Funded Debt
of the Company and Restricted Subsidiaries would not exceed an amount equal to
the sum of (i) $20 million and (ii) 15% of Consolidated Net Tangible Assets.
The limitation on Secured Funded Debt will not apply to, and there will be
excluded from Secured Funded Debt in any computation under such restriction,
Funded Debt secured by: (i) Liens on real or physical property of any
corporation existing at the time such corporation becomes a Subsidiary; (ii)
Liens on real or physical property existing at the time of acquisition thereof
or incurred within 180 days of the time of acquisition thereof (including,
without limitation, acquisition through merger or consolidation) by the Company
or any Restricted Subsidiary; (iii) Liens on real or physical property
thereafter acquired (or constructed) by the Company or any Restricted
Subsidiary and created prior to, at the time of, or within 270 days after such
acquisition (including, without limitation, acquisition through merger or
consolidation) (or the completion of such construction or commencement of
commercial operation of such property, whichever is later) to secure or provide
for the payment of all or any part of the purchase price (or the construction
price) thereof; (iv) Liens in favor of the Company or any Restricted
Subsidiary; (v) Liens in favor of the United States of America, any State
thereof or the District of Columbia, or any agency, department or other
instrumentality thereof, to secure partial, progress, advance or other payments
pursuant to any contract or provisions of any statute; (vi) Liens incurred or
assumed in connection with the issuance of revenue bonds the interest on which
is exempt from Federal income taxation pursuant to Section 103(b) of the
Internal Revenue Code; (vii) Liens securing the performance of any contract or
undertaking not directly or indirectly in connection with the borrowing of
money, the obtaining of advances or credit or the securing of Funded Debt, if
made and continuing in the ordinary course of business; (viii) Liens incurred
(no matter when created) in connection with the Company's or a Restricted
Subsidiary's engaging in leveraged or single-investor lease transactions;
provided, however, that the instrument creating or evidencing any borrowings
secured by such Lien will provide that such borrowings are payable solely out
of the income and proceeds of the property subject to such Lien and are not a
general obligation of the Company or such Restricted Subsidiary; (ix) Liens
under workers' compensation laws, unemployment insurance laws or similar
legislation, or good faith deposits in connection with bids, tenders, contracts
or deposits to secure public or statutory obligations of the Company or any
Restricted Subsidiary, or deposits of cash or obligations of the United States
9
of America to secure surety, replevin and appeal bonds to which the Company or
any Restricted Subsidiary is a party or in lieu of such bonds, or pledges or
deposits for similar purposes in the ordinary course of business, or Liens
imposed by law, such as laborers' or other employees', carriers',
warehousemen's, mechanics', materialmen's and vendors' Liens and Liens arising
out of judgments or awards against the Company or any Restricted Subsidiary
with respect to which the Company or such Restricted Subsidiary at the time
shall be prosecuting an appeal or proceedings for review and with respect to
which it shall have secured a stay of execution pending such appeal or
proceedings for review, or Liens for taxes not yet subject to penalties for
nonpayment or the amount or validity of which is being in good faith contested
by appropriate proceedings by the Company or any Restricted Subsidiary, as the
case may be, or minor survey exceptions, minor encumbrances, easements or
reservations of, or rights of others for, rights-of-way, sewers, electric
lines, telegraph and telephone lines and other similar purposes, or zoning or
other restrictions or Liens as to the use of real properties, which Liens,
exceptions, encumbrances, easements, reservations, rights and restrictions do
not, in the opinion of the Company, in the aggregate materially detract from
the value of said properties or materially impair their use in the operation of
the business of the Company and its Restricted Subsidiaries; (x) Liens incurred
to finance all or any portion of the cost of construction, alteration or repair
of any real or physical property and improvements thereto prior to or within
270 days after completion of such construction, alteration or repair; (xi)
Liens incurred (no matter when created) in connection with a Securitization
Transaction; (xii) Liens on property (or any Receivable arising in connection
with the lease thereof) acquired by the Company or a Restricted Subsidiary
through repossession, foreclosure or like proceeding and existing at the time
of the repossession, foreclosure, or like proceeding; (xiii) Liens on deposits
of the Company or a Restricted Security with banks (in the aggregate, not
exceeding $50 million), in accordance with customary banking practice, in
connection with the providing by the Company or a Restricted Subsidiary of
financial accommodations to any Person in the ordinary course of business;
(xiv) Liens outstanding on the date of the Indenture; or (xv) any extension,
renewal, refunding or replacement of the foregoing.
"Consolidated Net Tangible Assets" means, at any date, the total assets
appearing on the most recent consolidated balance sheet of the Company and
Restricted Subsidiaries as at the end of the fiscal quarter of the Company
ending not more than 135 days prior to such date, prepared in accordance with
generally accepted accounting principles, less (i) all current liabilities (due
within one year) as shown on such balance sheet, (ii) applicable reserves,
(iii) investments in and advances to Securitization Subsidiaries and
Subsidiaries of Securitization Subsidiaries that are consolidated on the
consolidated balance sheet of the Company and its Subsidiaries, and (iv)
Intangible Assets and liabilities relating thereto.
"Funded Debt" means (i) any indebtedness of the Company or a Restricted
Subsidiary maturing more than 12 months after the time of computation thereof,
(ii) guarantees by the Company or a Restricted Subsidiary of Funded Debt or of
dividends of others (except guarantees in connection with the sale or discount
of accounts receivable, trade acceptances and other paper arising in the
ordinary course of business), (iii) in the case of any Restricted Subsidiary
all preferred stock of such Restricted Subsidiary, and (iv) all Capital Lease
Obligations (as defined in the Indenture) of the Company or a Restricted
Subsidiary.
"Indebtedness" means, at any date, without duplication, (i) all obligations
for borrowed money of the Company or a Restricted Subsidiary or any other
indebtedness of the Company or a Restricted Subsidiary, evidenced by bonds,
debentures, notes or other similar instruments, and (ii) Funded Debt, except
such obligations and other indebtedness of the Company or a Restricted
Subsidiary of the Company and Funded Debt, if any, incurred as a part of a
Securitization Transaction.
"Intangible Assets" means, at any date, the value (net of any applicable
reserves) as shown on or reflected in the most recent consolidated balance
sheet of the Company and the Restricted Subsidiaries as at the end of the
fiscal quarter of the Company ending not more than 135 days prior to such date,
prepared in accordance with generally accepted accounting principles, of: (i)
all trade names, trademarks, licenses, patents, copyrights, service marks,
goodwill and other like intangibles; (ii) organizational and development costs;
(iii) deferred charges (other than prepaid items, such as insurance, taxes,
interest, commissions, rents, deferred interest waiver, compensation
10
and similar items and tangible assets being amortized); and (iv) unamortized
debt discount and expense, less unamortized premium.
"Liens" means pledges, mortgages, security interests and other liens,
including purchase money liens, on any property of the Company or any
Restricted Subsidiary which secure Secured Funded Debt.
"Receivables" means any right of payment from or on behalf of any obligor,
whether constituting an account, chattel paper, instrument, general intangible
or otherwise, arising, either directly or indirectly, from the financing by the
Company or any Subsidiary of the Company of property or services, monies due
thereunder, security interests in the property and services financed thereby
and any and all other related rights.
"Restricted Subsidiary" means each Subsidiary of the Company other than
Securitization Subsidiaries and Subsidiaries of Securitization Subsidiaries.
"Secured Funded Debt" means Funded Debt of the Company which is secured by
any pledge, mortgage, security interest or other lien on any property (whether
owned on the date of the Indenture or thereafter created) of the Company or of
a Restricted Subsidiary.
"Securitization Subsidiary" means a Subsidiary of the Company (i) which is
formed for the purpose of effecting one or more Securitization Transactions and
engaging in other activities reasonably related thereto and (ii) as to which no
portion of the indebtedness or any other obligations of which (a) is guaranteed
by the Company or any Restricted Subsidiary, or (b) subjects any property or
assets of the Company or any Restricted Subsidiary, directly or indirectly,
contingently or otherwise, to any lien, other than pursuant to representations,
warranties and covenants (including those related to servicing) entered into in
the ordinary course of business in connection with a Securitization Transaction
and inter-company notes and other forms of capital or credit support relating
to the transfer or sale of Receivables or asset-backed securities to such
Securitization Subsidiary and customarily necessary or desirable in connection
with such transactions.
"Securitization Transaction" means any transaction or series of transactions
that have been or may be entered into by the Company or any of its Subsidiaries
in connection with or reasonably related to a transaction or series of
transactions in which the Company or any of its Subsidiaries may sell, convey
or otherwise transfer to (i) a Securitization Subsidiary or (ii) 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 Company or any of its Subsidiaries,
and any assets related thereto, including, without limitation, all security
interests in the property or services financed thereby, the proceeds of such
Receivables or asset-backed securities and any other assets which are sold or
in respect of which security interests are granted in connection with
securitization transactions involving such assets.
"Subsidiary" means any corporation of which at least a majority of the
outstanding stock, which under ordinary circumstances (not dependent upon the
happening of a contingency) has voting power to elect a majority of the board
of directors of such corporation (or similar management body), is owned
directly or indirectly by the Company or by one or more Subsidiaries of the
Company, or by the Company and one or more Subsidiaries.
EVENTS OF DEFAULT
Any one of the following events will constitute an Event of Default under the
Indenture with respect to Securities of any series: (i) failure to pay any
interest on any Security of that series when due, continued for 30 days; (ii)
failure to pay principal of or any premium on any Security of that series when
due; (iii) failure to deposit any sinking fund or other payment, when due, in
respect of any Security of that series; (iv) failure to perform, or breach of,
any other covenant or warranty of the Company in the Indenture (other than a
covenant included in the Indenture solely for the benefit of a series of
Securities thereunder other than that series) continued for 60 days after
written notice as provided in the Indenture; (v) certain events in bankruptcy,
insolvency or reorganization of the Company; (vi) a default or defaults under
any mortgage, indenture or
11
instrument under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or a Restricted
Subsidiary (including the Indenture), whether such Indebtedness exists at the
date of the Indenture or shall thereafter be created, which default or defaults
shall have resulted in such Indebtedness, in an aggregate principal amount
exceeding $60 million, individually or in the aggregate, having been declared
due and payable prior to the date on which it would otherwise have become due
and payable, without such Indebtedness having been discharged, or such
acceleration having been rescinded or annulled, or there having been deposited
in trust a sum of money sufficient to discharge in full such Indebtedness,
within a period of 30 days after there shall have been given, by registered
mail, to the Company by the Trustee or to the Company and the Trustee by the
Holder or Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of such series a written notice specifying such default
and requiring the Company to cause such Indebtedness to be discharged, cause to
be deposited in trust a sum sufficient to discharge in full such Indebtedness
or cause such acceleration to be rescinded or annulled; or (vii) any other
Event of Default provided with respect to Securities of that series.
If any Event of Default with respect to the Securities of any series at the
time Outstanding occurs and is continuing, either the Trustee or the Holders of
at least 25% in aggregate principal amount of the Outstanding Securities of
that series may declare the principal amount (or, if the Securities of that
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms thereof) of all the Securities of that
series to be due and payable immediately. At any time after a declaration of
acceleration with respect to Securities of any series has been made, but before
a judgment or decree based on acceleration has been obtained, the Holders of a
majority in aggregate principal amount of Outstanding Securities of that series
may, under certain circumstances, rescind and annul such acceleration.
Reference is made to the Applicable Prospectus Supplement relating to any
series of Offered Securities that are Original Issue Discount Securities for
the particular provisions relating to acceleration of the Stated Maturity of a
portion of the principal amount of such series of Original Issue Discount
Securities upon the occurrence of an Event of Default and the continuation
thereof.
The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable indemnity. Subject to such provisions for the
indemnification of the Trustee and to certain other conditions, the Holders of
a majority in aggregate principal amount of the Outstanding Securities of any
series will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Securities of that
series.
No Holder of any series of Securities will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default and unless the Holders of at least 25% in principal
amount of the Outstanding Securities of that series shall have made written
request, and offered reasonable indemnity, to the Trustee to institute such
proceeding as trustee, and the Trustee shall not have received from the Holders
of a majority in aggregate principal amount of the Outstanding Securities of
that series a direction inconsistent with such request and shall have failed to
institute such proceeding within 60 days. However, such limitations do not
apply to a suit instituted by a Holder of a Security for enforcement of payment
of the principal of and premium, if any, or interest on such Security on or
after the respective due dates expressed in such Security.
The Company is required to furnish to the Trustee annually a statement as to
the performance by the Company of certain of its obligations under the
Indenture and as to any default in such performance.
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company and
the Trustee with the consent of the Holders of not less than the majority in
aggregate principal amount of the Outstanding Securities
12
of each series issued under the Indenture and affected by the modification or
amendment; provided, however, that no such modification or amendment may,
without the consent of the Holders of all Securities affected thereby, (i)
change the Stated Maturity of the principal of, or any installment of principal
of or interest on, any Security; (ii) reduce the principal amount of, or the
premium, if any, or (except as otherwise provided in the Applicable Prospectus
Supplement) interest on, any Security (including, in the case of an Original
Issue Discount Security, the amount payable upon acceleration of the maturity
thereof); (iii) change the place or currency of payment of principal of,
premium, if any, or interest on any Security; (iv) impair the right to
institute suit for the enforcement of any payment on any Security on or after
the Stated Maturity thereof (or in the case of redemption, on or after the
Redemption Date); or (v) reduce the percentage in principal amount of
Outstanding Securities of any series, the consent of whose Holders is required
for modification or amendment of the Indenture or for waiver of compliance with
certain provisions of the Indenture or for waiver of certain defaults.
The Holders of at least a majority in aggregate principal amount of the
Outstanding Securities of any series may, on behalf of all Holders of that
series, waive compliance by the Company with certain restrictive provisions of
the Indenture. The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series may, on behalf of all
Holders of that series, waive any past default under the Indenture, except a
default in the payment of principal, premium or interest and in respect of a
covenant or provision of the Indenture that cannot be modified or amended
without the consent of the Holder of each Outstanding Security of such series
affected thereby.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an
entirety to any Person and may not permit any Person to merge into or
consolidate with the Company or convey, transfer or lease its properties and
assets substantially as an entirety to the Company, unless (i) any successor or
purchaser is a corporation, partnership, or trust organized and validly
existing under the laws of the United States of America, any State or the
District of Columbia, and any such successor or purchaser expressly assumes the
Company's obligations on Outstanding Securities under a supplemental indenture,
(ii) immediately after giving effect to the transaction, no Event of Default,
and no event which, after notice or lapse of time or both, would become an
Event of Default, shall have occurred and be continuing, (iii) if properties or
assets of the Company become subject to a mortgage not permitted by the
Indenture, the Company or such successor Person, as the case may be, takes such
steps as shall be necessary effectively to secure the Securities equally and
ratably with (or prior to) all indebtedness secured thereby, and (iv) the
Company has delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel stating compliance with these provisions.
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides that, if such provision is made applicable to the
Securities of any series pursuant to Section 3.1 of the Indenture, the Company,
at the Company's option, (i) will be discharged from any and all obligations in
respect of the Securities of any series (except for certain obligations to
register the transfer of or exchange of Securities of such series, replace
stolen, lost or mutilated Securities of such series, maintain paying agencies
and hold moneys for payment in trust) or (ii) need not comply with certain
restrictive covenants of the Indenture, including those described under
"Certain Covenants of the Company," and the occurrence of an event described in
clause (iv) under "Events of Default" shall no longer be an Event of Default,
in each case, if the Company deposits, in trust, with the Trustee money or U.S.
Government Obligations, which through the payment of interest thereon and
principal thereof in accordance with their terms, will provide money in an
amount sufficient to pay all the principal of, premium if any, and interest on
the Securities of such series on the dates such payments are due (which may
include one or more redemption dates designated by the Company) in accordance
with the terms of the Securities of such series. Such a trust may be
established only if, among other things, (a) no Event of Default or event
which, with the giving of notice or lapse of time, or both, would become an
Event of Default under the Indenture shall have occurred and be continuing on
the date of such deposit or on
13
such later date specified in the Indenture in the case of certain events in
bankruptcy, insolvency or reorganization of the Company, (b) such deposit will
not cause the Trustee to have any conflicting interest with respect to other
securities of the Company, (c) such defeasance will not result in a breach or
violation of, or constitute a default under, the Indenture or any other
agreement or instrument to which the Company is a party or by which it is bound
and (d) the Company shall have delivered an Opinion of Counsel to the effect
that the Holders will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit or defeasance and will be subject to
Federal income tax in the same manner as if such defeasance had not occurred,
which Opinion of Counsel, in the case of clause (i) above, must refer to and be
based upon a published ruling of the Internal Revenue Service, a private ruling
of the Internal Revenue Service addressed to the Company, or otherwise a change
in applicable federal income tax law occurring after the date of the Indenture.
In the event the Company omits to comply with its remaining obligations under
the Indenture after a defeasance of the Indenture with respect to the
Securities of any series as described under clause (ii) above and the
Securities of such series are declared due and payable because of the
occurrence of any Event of Default, the amount of money and U.S. Government
Obligations on deposit with the Trustee may be insufficient to pay amounts due
on the Securities of such series at the time of the acceleration resulting from
such Event of Default. However, the Company will remain liable in respect of
such payments.
CONCERNING THE TRUSTEE
The Bank of New York is Trustee under the Indenture. The Trustee performs
services for the Company and Case in the ordinary course of business and is a
lender bank under certain of the Company's credit facilities and Case's credit
facilities. The Trustee is also trustee under an indenture, dated as of
February 1, 1996, between the Company, Case and the Trustee, as trustee. The
Company has issued $200,000,000 aggregate principal amount of its 6 1/8% Notes
due February 15, 2003, under such indenture.
PLAN OF DISTRIBUTION
The Company may sell the Securities being offered hereby through agents,
through underwriters and through dealers, and Securities may be sold to other
purchasers directly or through agents or through a combination of any such
methods of sale.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
Offers to purchase Securities may be solicited by agents designated by the
Company from time to time. Any such agent, who may be deemed to be an
underwriter, as that term is defined in the Securities Act, involved in the
offer or sale of the Securities in respect of which this Prospectus is
delivered will be named, and any commissions payable by the Company to such
agent set forth, in the Applicable Prospectus Supplement. Agents may be
entitled under agreements that may be entered into with the Company to
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act, and such agents or their affiliates may
be customers of, extend credit to or engage in transactions with or perform
services for the Company and/or Case in the ordinary course of business. Unless
otherwise indicated in the Prospectus Supplement, any such agent will be acting
on a reasonable efforts basis for the period of its appointment.
If any underwriters are utilized in the sale, the Company will enter into an
underwriting agreement with such underwriters at the time of sale to them and
the names of the underwriters and the terms of the transaction will be set
forth in the Applicable Prospectus Supplement that will be used by the
underwriters to make resales of the Securities in respect of which this
Prospectus is delivered to the public. The underwriters may be entitled under
the relevant underwriting agreement to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act, and such
underwriters or their affiliates may be customers of, extend credit to or
engage in transactions with or perform services for the Company and/or Case in
the ordinary course of business.
14
If dealers are utilized in the sale of the Securities in respect of which
this Prospectus is delivered, the Company will sell such Securities to such
dealers as principal. The dealers may then resell such Securities to the public
at varying prices to be determined by such dealers at the time of resale.
Dealers may be entitled to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act, and such dealers
or their affiliates may be customers of, extend credit to or engage in
transactions with or perform services for the Company and/or Case in the
ordinary course of business.
Unless otherwise indicated in the Applicable Prospectus Supplement,
Securities are not proposed to be listed on a securities exchange, and any
underwriters or dealers will not be obligated to make a market in Securities.
The Company cannot predict the activity or liquidity of any trading in the
Securities.
If so indicated in an Applicable Prospectus Supplement, the Company will
authorize underwriters or agents to solicit offers by certain institutions to
purchase Offered Securities from the Company pursuant to delayed delivery
contracts ("Contracts") providing for payment and delivery on the date or dates
stated in such Prospectus Supplement. Each Contract will be for an amount not
less than, and the aggregate principal amount of Offered Securities sold
pursuant to Contracts shall be not less nor more than, the respective amounts
stated in such Prospectus Supplement. Institutions with whom Contracts, when
authorized, may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and other institutions, but will in all cases be subject to the
approval of the Company. Contracts will not be subject to any conditions except
(i) the purchase by an institution of the Offered Securities covered by its
Contracts shall not at the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which such institution is subject, and
(ii) if the Offered Securities are being sold to underwriters, the Company
shall have sold to such underwriters the total principal amount of the Offered
Securities less the principal amount thereof covered by Contracts. Agents and
underwriters will have no responsibility in respect of the delivery or
performance of Contracts.
LEGAL MATTERS
Unless otherwise indicated in a supplement to this Prospectus, certain legal
matters in connection with the Securities offered hereby will be passed upon
for the Company by Richard S. Brennan, General Counsel and Secretary of Case,
and by Mayer, Brown & Platt, Chicago, Illinois. In addition to his positions at
Case, Mr. Brennan is also a partner at Mayer, Brown & Platt. The Company has
been advised by Mr. Brennan that, at August 31, 1997, he beneficially owned
3,000 shares of common stock of Case and had options to purchase 30,000 shares
of common stock of Case. Unless otherwise indicated in a supplement to this
Prospectus, the legality of the Securities offered hereby will be passed upon
for the underwriters, dealers and agents, if any, by Cahill Gordon & Reindel (a
partnership including a professional corporation), New York, New York.
EXPERTS
The audited financial statements and schedules included or incorporated by
reference in this Prospectus and the Prospectus Supplement and elsewhere in
this Registration Statement have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their reports with respect
thereto, and are included or incorporated by reference herein in reliance upon
the authority of said firm as experts in giving said reports.
15
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses in connection with the
issuance and distribution of the securities registered hereby, other than
underwriting discounts and commissions:
SEC registration fee............................................ $201,819
Blue sky fees and expenses...................................... 12,000
Printing and engraving costs.................................... 250,000
Legal fees and expenses......................................... 125,000
Accounting fees and expenses.................................... 125,000
Trustee fees and expenses....................................... 10,000
Miscellaneous................................................... 26,181
--------
Total....................................................... $750,000
========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The By-Laws of the Company include the following provisions:
Article V, Section 16. Indemnification of Directors and Officers. Each
person who is or was a director or officer of the corporation, or who
serves or may have served at the request of the corporation as a director
or officer of another corporation, partnership, joint venture, trust or
other enterprise (including the heirs, executors, administrators or estate
of such person) and who was or is a party or is threatened to be made a
party to any threatened, pending or completed claim, action, suit or
proceeding, whether criminal, civil, administrative or investigative,
including appeals, shall be indemnified by the corporation as a matter of
right to the full extent permitted or authorized by the Corporation Law of
the state of incorporation of the corporation, as it may from time to time
be amended, against any expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement, actually and reasonably incurred by
him in his capacity as a director or officer, or arising out of his status
as a director or officer. Each person who is or was an employee or agent of
the corporation, or who serves or may have served at the request of the
corporation as an employee or agent of another corporation, partnership,
joint venture, trust or other enterprise (including the heirs, executors,
administrators or estate of such person) may, at the discretion of the
Board, be indemnified by the corporation to the same extent as provided
herein with respect to directors and officers of the corporation.
The corporation may, but shall not be obligated to, maintain insurance at
its expense, to protect itself and any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such. The corporation may, but shall not be obligated to, pay
expenses incurred in defending a civil or criminal action, suit or
proceeding in advance of the final disposition of such action, suit or
proceeding.
The indemnification provided by this Section 16 shall not be exclusive of
any other rights to which those seeking indemnification may be entitled as
a matter of law or under any agreement, vote of stockholders or
disinterested directors or otherwise.
Reference is made to Section 6 of the Underwriting Agreement filed as
Exhibit 1(a) hereto for a description of the indemnification arrangements in
connection with any underwritten offering of securities registered hereby.
II-1
Case has purchased insurance which purports to insure the officers and
directors of Case, and of its subsidiary companies, which includes Case
Credit, against certain liabilities incurred by them in the discharge of their
function as such officers and directors except for liabilities resulting from
their own malfeasance.
ITEM 16. EXHIBITS.
A list of exhibits filed herewith is contained in the index to exhibits
which is incorporated herein by reference.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to section 13 or section
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that
is incorporated by reference in this Registration Statement shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant, pursuant to the provisions described
in Item 15, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission, such indemnification is
against public policy as expressed in the Act and is, therefore,
II-2
unenforceable. In the event that the claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-3
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF RACINE, STATE OF WISCONSIN, ON SEPTEMBER 15, 1997.
THE REGISTRANT ALSO CERTIFIES THAT IT REASONABLY BELIEVES THAT THE SECURITY
RATING REQUIREMENT CONTAINED IN GENERAL INSTRUCTION I.B.2. OF FORM S-3 WILL BE
MET BY THE TIME OF SALE.
Case Credit Corporation
/s/ Kenneth R. Gangl
By: _________________________________
Kenneth R. Gangl
President and Chief Executive
Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Theodore R. French, Kenneth R. Gangl and Robert A. Wegner and each of them,
the true and lawful attorneys-in-fact and agents of the undersigned, with full
power of substitution and resubstitution, for and in the name, place and stead
of the undersigned, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement as well
as any related registration statement (or amendment thereto) filed pursuant to
Rule 462(b) promulgated under the Securities Act of 1933, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done,
as fully to all intents and purposes as the undersigned might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Kenneth R. Gangl President, Chief Executive September 15, 1997
____________________________________ Officer and Director
Kenneth R. Gangl (Principal Executive
Officer)
/s/ Robert A. Wegner Vice President and Chief September 15, 1997
____________________________________ Financial Officer
Robert A. Wegner (Principal Financial
and Accounting Officer)
/s/ Theodore R. French Chairman of the Board and September 15, 1997
____________________________________ Director
Theodore R. French
/s/ Jean-Pierre Rosso Director September 15, 1997
____________________________________
Jean-Pierre Rosso
II-4
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
------- -----------
1(a) Form of Underwriting Agreement
1(b) Form of Distribution Agreement(1)
4 Form of Indenture between Case Credit Corporation and The Bank
of New York (including form of security)
5 Opinion of Richard S. Brennan, General Counsel and Secretary
of Case Corporation, as to the legality of the securities
being registered
12 Computation of Ratio of Earnings to Fixed Charges
23(a) Consent of Arthur Andersen LLP, Independent Public Accountants
for Case Credit Corporation (Milwaukee, Wisconsin)
23(b) Consent of Richard S. Brennan, General Counsel and Secretary
of Case Corporation (contained in Exhibit 5)
24 Powers of attorney (contained on the signature page to this
Registration Statement)
25 Form T-1 Statement of eligibility under the Trust Indenture
Act of 1939 of The Bank of New York
- --------
(1) To be filed as an exhibit to a report on Form 8-K pursuant to Item 601 of
Regulation S-K.