SECOND AMENDMENT
SECOND AMENDMENT, dated as of August 25, 1997 (this "Second
Amendment"), to the Credit Agreement, dated as of August 23, 1996 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among CASE CORPORATION, a Delaware corporation (the "U.S. Borrower"), CASE
CANADA CORPORATION/CORPORATION CASE CANADA, a company organized under the laws
of the province of Ontario, Canada (the "Canadian Borrower"), each FOREIGN
SUBSIDIARY BORROWER (as therein defined) (together with the U.S. Borrower and
the Canadian Borrower, the "Borrowers"), the Co-Agents named on the signature
pages thereof (the "Co-Agents"), the Lead Managers named on the signature pages
thereof (the "Lead Managers"), the several banks and other financial
institutions from time to time parties thereto (the "Lenders"), THE BANK OF NOVA
SCOTIA, a Canadian chartered bank (as therein defined, the "Canadian
Administrative Agent"), and THE CHASE MANHATTAN BANK, a New York banking
corporation (as therein defined, the "General Administrative Agent") as
administrative agents for the Lenders thereunder.
W I T N E S S E T H:
-------------------
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make, and have made, certain loans and other extensions of credit to the
Borrowers; and
WHEREAS, the Borrowers have requested, and, upon this Second Amendment
becoming effective, the Majority Lenders have agreed, that certain provisions of
the Credit Agreement be amended in the manner provided for in this Second
Amendment;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Terms defined in the Credit Agreement and not
otherwise defined herein shall have the meanings given to them in the Credit
Agreement.
2. Amendments to Section 1 of the Credit Agreement. Subsection 1.1
of the Credit Agreement is amended by (a) deleting in their entirety the
definitions of "Debt" and "Indebtedness" contained therein and (b) inserting the
following new definitions in the appropriate alphabetical order:
"Case Vendor Financing": financing which is provided by a Person other
than the U.S. Borrower or one of its Subsidiaries or Affiliates to a
customer of the U.S. Borrower or one of its Subsidiaries or Affiliates.
2
"Case Credit Subordinated Debt": any Indebtedness of the U.S. Borrower
or any of its Consolidated Subsidiaries to Case Credit and its Consolidated
Subsidiaries which is subordinated pursuant to subordination provisions in
substantially the form of Annex A to the Second Amendment, dated as of
August 25, 1997, to this Agreement.
"Debt": as at any date of determination with respect to the U.S.
Borrower and its Consolidated Subsidiaries, an amount equal to the excess
of (a) the sum (without duplication) of (i) all Indebtedness (other than
Indebtedness referred to in clauses (e) through (h) of the definition
thereof) of the U.S. Borrower and its Consolidated Subsidiaries which in
accordance with GAAP would be included as a liability on a consolidated
balance sheet (excluding the notes thereto) of the U.S. Borrower and its
Consolidated Subsidiaries as at such date, including, without limitation,
the Aggregate Total Outstandings of all Lenders, and the aggregate
principal amount of all Senior Notes, in each case, as at such date, (ii)
all Guarantee Obligations of the U.S. Borrower and its Consolidated
Subsidiaries in respect of Indebtedness (other than Indebtedness referred
to in clauses (e) through (h) of the definition thereof) as at such date
and (iii) all obligations of the U.S. Borrower or any of its Subsidiaries
incurred in connection with any securitization or other asset-backed
financing of Receivables as at such date to the extent such obligations are
excluded from the definition of Permitted Securitization Obligations as at
such date by operation of the proviso to the definition thereof, over (b)
to the extent included in clause (a) above, the sum (without duplication)
of (i) all Indebtedness of Case Credit and its Subsidiaries as at such
date, (ii) all Guarantee Obligations of the U.S. Borrower or any of its
Subsidiaries in respect of Indebtedness of HFI and CDC, (iii) Guarantee
Obligations of the U.S. Borrower or any of its Subsidiaries (other than
Case Credit and its Subsidiaries) in respect of Indebtedness of Case Credit
and its Subsidiaries, (iv) Permitted Securitization Obligations as at such
date, (v) all Guarantee Obligations of the U.S. Borrower or any of its
Subsidiaries in respect of Indebtedness of Affiliates of the U.S. Borrower
(other than HFI and CDC) to the extent such Guarantee Obligations do not
exceed an aggregate principal amount of $100,000,000 on such date of
determination and (vi) Case Credit Subordinated Debt.
"Indebtedness": of any Person at any date, without duplication, (a)
all indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than trade liabilities
incurred in the ordinary course of business and payable in accordance with
customary practices), (b) any other indebtedness of such Person which is
evidenced by a note, bond, debenture or similar instrument, (c) all
obligations of such Person as lessee under Financing Leases, (d) all
obligations of such Person in respect of acceptances issued or created for
the account of such Person, (e) all liabilities secured by any Lien on any
property owned by such Person even though such Person has not assumed or
otherwise become liable for the payment thereof, (f) all net liabilities of
such Person in respect of Interest Rate Agreements, (g) all Guarantee
Obligations in respect of Indebtedness referred to in
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clauses (a) through (f) (or any of them) of this definition and (h) if such
Person is the U.S. Borrower or any of its Subsidiaries, all obligations of
the U.S. Borrower or any such Subsidiary incurred in connection with any
securitization or other asset-backed financing of Receivables to the extent
such obligations are excluded from the definition of Permitted
Securitization Obligations by operation of the proviso to the definition
thereof; provided, however, notwithstanding the foregoing, Permitted Vendor
Financing Obligations shall not constitute Indebtedness under this
definition.
"Permitted Vendor Financing Obligations": (i) any Guarantee Obligation
of the U.S. Borrower or its Consolidated Subsidiaries in respect of Case
Vendor Financing, but only to the extent that the underlying principal
amount of Indebtedness subject to such Guarantee Obligation is secured or
otherwise funded by the U.S. Borrower or its Consolidated Subsidiaries with
cash or other marketable instruments (including, without limitation,
pledges of deposit accounts, notes, bonds, certificates of deposit, or
other documents or instruments) and (ii) any Guarantee Obligation of the
U.S. Borrower or its Consolidated Subsidiaries in respect of Case Vendor
Financing, where Case Credit or one of its Subsidiaries has a Guarantee
Obligation in respect of the same principal amount and the U.S. Borrower
has an agreement in writing with Case Credit which states that Case Credit
will fully indemnify the U.S. Borrower in the event that the U.S. Borrower
is called upon to provide funds in connection with such Guarantee
Obligation and which agreement is enforceable by the General Administrative
Agent or the Lenders.
"Threshold Amount": U.S.$60,000,000.
3. Amendments to Section 12 of the Credit Agreement. (a) Subsection
12.1(a) of the Credit Agreement is amended by deleting the word "and" at the end
of such subsection and inserting the following proviso in lieu thereof:
"provided, however, notwithstanding the foregoing, in the case of the
Canadian Borrower the financial statements delivered pursuant hereto
shall be unaudited; and"
(b) Subsection 12.2(a) of the Credit Agreement is amended by
inserting the following proviso at the end of such subsection:
"provided, however, notwithstanding the foregoing, in the case of the
Canadian Borrower, no such certificate shall be required;"
(c) Subsection 12.7(c) of the Credit Agreement is amended by deleting
the phrase "$60,000,000 or more" contained therein and inserting in lieu thereof
the phrase "equal to or greater than the Threshold Amount".
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4. Amendment to Section 13 of the Credit Agreement. Subsection 13.2
of the Credit Agreement is amended by (a) deleting the word "or" at the end of
paragraph (j) thereof, (b) relettering paragraph (k) thereof to become paragraph
(l) thereof and by deleting the phrase "clauses (a) to (j)" contained in such
paragraph (l) in its entirety and inserting in lieu thereof the phrase "clauses
(a) to (k)" and (c) inserting the following new paragraph (k) thereto:
(k) Liens on funds (including on deposit accounts, notes, bonds,
certificates of deposit, or other documents or instruments evidencing
such funds) in favor of a Person which is providing Case Vendor
Financing where such funds have been provided to such Person directly
or indirectly by the U.S. Borrower or any of its Subsidiaries to fund
such Case Vendor Financing; or
5. Amendment to Section 15 of the Credit Agreement. (a) Section
15(e) of the Credit Agreement is amended by deleting the amount "$60,000,000"
contained therein and inserting in lieu thereof the phrase "equal to the
Threshold Amount".
(b) Section 15(h) of the Credit Agreement is amended by deleting the
phrase "of $60,000,000 or more" contained therein and inserting in lieu thereof
the phrase "in an amount equal to or greater than the Threshold Amount".
6. Conditions to Effectiveness. This Second Amendment shall become
effective on the date (the "Second Amendment Effective Date") on which the
Borrowers, the General Administrative Agent and the Majority Lenders shall have
executed and delivered to the General Administrative Agent this Second
Amendment.
7. Representations and Warranties. The representations and
warranties made by the Borrowers in the Credit Agreement are true and correct in
all material respects on and as of the Second Amendment Effective Date, after
giving effect to the effectiveness of this Second Amendment, as if made on and
as of the Second Amendment Effective Date.
8. No Other Amendments; Confirmation. Except as expressly amended,
modified and supplemented hereby, the provisions of the Credit Agreement are and
shall remain in full force and effect.
9. Governing Law. This Second Amendment and the rights and
obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
10. Counterparts. This Second Amendment may be executed by one or
more of the parties to this Second Amendment on any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Second
Amendment signed by all the parties shall be
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lodged with the U.S. Borrower and the General Administrative Agent. This Second
Amendment may be delivered by facsimile transmission of the relevant signature
pages hereof.
6
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
CASE CORPORATION
By: /s/ ??????????????????????
-------------------------------
Title: Vice President and Treasurer
CASE CANADA CORPORATION/CORPORATION
CASE CANADA
By: /s/ ??????????????????????
-------------------------------
Title: Vice President and Treasurer
THE CHASE MANHATTAN BANK, as General
Administrative Agent and a Lender
By: /s/ Thomas H. Koziack
------------------------
Title: Thomas H. Koziack
Vice President
THE CHASE MANHATTAN BANK OF CANADA
By: /s/ Christine Chan /s/ Arun K. Berry
------------------ -----------------
Title: Christine Chan Arun K. Berry
Vice President Vice President
Title:
7
THE BANK OF NOVA SCOTIA, as
a Lender
By: /s/ F.C.H. Ashby
-----------------------------------
F.C.H. Ashby
Title: Senior Manager Loan Operations
By: /s/ Sharron D. McIntyre
-----------------------------------
Sharron D. McIntyre
Title: Relationship Manager
ABN AMRO BANK N.V. CHICAGO BRANCH
By: /s/ Douglas R. Elliott
-----------------------------------
Douglas R. Elliott
Title: Vice President
By: /s/ John J. Mack
-----------------------------------
John J. Mack
Title: Vice President
ARAB BANKING CORPORATION (B.S.C.)
By: /s/ Grant E. McDonald
-----------------------------------
Grant E. McDonald
Title: Vice President
THE ASAHI BANK, LTD., CHICAGO BRANCH
By: /s/ Nobuo Suzuki
-----------------------------------
Nobuo Suzuki
Title: General Manager
8
AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED
By: /s/
----------------------------------
Title: First Vice President
BANK AUSTRIA AKTIENGESELLSCHAFT
By: /s/
----------------------------------
Title: Vice President
By: /s/ Jeanene Ball
----------------------------------
Jeanene Ball
Title: Assistant Vice President
BANCA COMMERCIALE ITALIANA, CHICAGO
BRANCH
By: /s/
----------------------------------
Title: Senior Vice President &
Branch Manager
By: /s/
----------------------------------
Title: Vice President
BANCA COMMERCIALE ITALIANA OF CANADA
By: /s/ John F. Gundy
----------------------------------
John F. Gundy
Title: Senior Vice President - Credit
By: /s/ Massimo Osti
----------------------------------
Massimo Osti
Title: Executive Vice President
9
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION
By: /s/
--------------------------------
Title: Managing Director
BANK OF AMERICA CANADA
By: /s/
--------------------------------
Title: Vice President
BANK OF HAWAII
By: /s/
--------------------------------
Title: Vice President
BANK OF MONTREAL
By: /s/ Peter E. Walsh
-------------------------------
Peter E. Walsh
Title: Director
THE BANK OF NEW YORK
By: /s/ Mark Fonts
-------------------------------
Mark Fonts
Title: Assistant Vice President
THE BANK OF TOKYO - MITSUBISHI LTD., CHICAGO
BRANCH
By: /s/ Hajime Watanabe
-------------------------------
Hajime Watanabe
Title: Deputy General Manager
10
BANQUE NATIONALE DE PARIS
By: /s/ Jo Ellen Bender
--------------------------------
Title: Jo Ellen Bender
Vice President & Manager
CAISSE NATIONALE DE CREDIT AGRICOLE
By: /s/ W. Leroy Startz
--------------------------------
Title: W. Leroy Startz
First Vice President
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Timothy E. Doyle
--------------------------------
Title: Timothy E. Doyle
Managing Director, CIBC Wood Gundy
Securities Corp., as Agent
THE CHUO TRUST & BANKING CO., LTD. NEW YORK AGENCY
By: /s/ Masayuki Sawaguri
--------------------------------
Title: Masayuki Sawaguri
Deputy General Manager
CITIBANK, N.A.
By: /s/ Marjorie Futornick
--------------------------------
Title: Marjorie Futornick
Vice President
11
CITIBANK CANADA
By: /s/ David R. Wingfelder
--------------------------------
Title: David R. Wingfelder
Vice President
COMMERZBANK AKTIENGESELLSCHAFT, CHICAGO BRANCH
By: /s/ Paul Karlin
--------------------------------
Title: Paul Karlin
Assistant Vice President
By: /s/ J. Timothy Shortly
--------------------------------
Title: J. Timothy Shortly
Senior Vice President
COOPERATIVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH
By: /s/ Johannes F. Breukhoven
--------------------------------
Title: Johannes F. Breukhoven
Vice President
By: /s/ W. Pieter C. Kodde
--------------------------------
Title: W. Pieter C. Kodde
Vice President
CREDIT LYONNAIS CHICAGO BRANCH
By: /s/ Sandra E. Horwitz
--------------------------------
Title: Sandra E. Horwitz
Senior Vice President
Branch Manager
12
CREDIT SUISSE FIRST BOSTON
By: /s/ Geoffrey M. Craig
----------------------------
Geoffrey M. Craig
Title: Vice President
By: /s/ Kristinn R. Kristinsson
----------------------------
Kristinn R. Kristinsson
Title: Assistant Vice President
THE DAI-ICHI KANGYO BANK, LTD.
By: /s/ Masayoshi Komaki
----------------------------
Masayoshi Komaki
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ ???????????????
----------------------------
Title: Authorized Agent
THE FUJI BANK, LIMITED
By: /s/ Peter L. Chinnici
----------------------------
Peter L. Chinnici
Title: Joint General Manager
HERITAGE BANK AND TRUST
By: /s/ ???????????????
----------------------------
Title: Vice President
13
THE INDUSTRIAL BANK OF JAPAN, LTD.
By: /s/
--------------------------------
Title: Joint General Manager
ISTITUTO BANCARIO SAN PAOLO DI
TORINO SPA
By: /s/
--------------------------------
Title: Deputy General Manager
By: /s/
--------------------------------
Title: Vice President
THE LTCB TRUST COMPANY, NEW YORK
By: /s/ Douglas A. Whiddon
--------------------------------
Douglas A. Whiddon
Title: Senior Vice President
MELLON BANK, N.A.
By: /s/ J. M. Anderson
--------------------------------
J. M. Anderson
Title: Vice President
THE MITUSI TRUST AND BANKING COMPANY,
LTD. - NEW YORK BRANCH
By: /s/
--------------------------------
Title: Vice President
Corporate Finance
14
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK
By: /s/ Charles H. King
----------------------------------
Charles H. King
Title: Vice President
J.P. MORGAN CANADA
By: /s/ John Maynard
----------------------------------
John Maynard
Title: Vice President and Controller
NATIONAL AUSTRALIA BANK LIMITED
By: /s/ Charles H. King
----------------------------------
Charles H. King
Title: Vice President
NATIONSBANK, N.A.
By: /s/ Mary Carol Daly
----------------------------------
Mary Carol Daly
Title: Vice President
NORDDEUTSCHE LANDESBANK GIROZENTRALE
NEW YORK BRANCH AND/OR CAYMAN ISLANDS
BRANCH
By: /s/ Stephen R. Hunter
----------------------------------
Stephen R. Hunter
Title: Senior Vice President
By: /s/ Josef Haas
----------------------------------
Josef Haas
Title: Assistant Vice President
15
THE NORTHERN TRUST COMPANY
By: /s/
-----------------------------------
Title:
PT. BANK NEGARA INDONESIA (PERSERO)
By: /s/ Dewa Suthapa
-----------------------------------
Dewa Suthapa
Title: General Manager
ROYAL BANK OF CANADA
By: /s/ Patrick K. Shields
-----------------------------------
Patrick K. Shields
Title: Senior Manager
THE SAKURA BANK, LIMITED
By: /s/ Shunji Sakurai
-----------------------------------
Shunji Sakurai
Title: Joint General Manager
THE SANWA BANK, LIMITED, CHICAGO BRANCH
By: /s/ Joseph P. Howard
-----------------------------------
Joseph P. Howard
Title: Vice President
16
SOCIETE GENERALE
By: /s/
---------------------------------
Title: Vice President
THE SUMITOMO BANK, LTD., CHICAGO
BRANCH
By: /s/ Hiroyuki Iwami
---------------------------------
Hiroyuki Iwami
Title: Joint General Manager
THE SUMITOMO TRUST & BANKING CO., LTD.
NEW YORK BRANCH
By: /s/ Suraj Bhatia
---------------------------------
Suraj Bhatia
Title: Senior Vice President
THE TOKAI BANK, LIMITED CHICAGO BRANCH
By: /s/ Masanori Nakagawa
---------------------------------
Masanori Nakagawa
Title: Joint General Manager
TORONTO DOMINION (TEXAS), INC.
By: /s/
---------------------------------
Title: Vice President
THE TORONTO-DOMINION BANK
By: /s/
---------------------------------
Title: Manager
17
UNION BANK OF CALIFORNIA, N.A.
By: /s/
---------------------------------
Title: Assistant Vice President
By: /s/
---------------------------------
Title: Assistant Vice President
WACHOVIA BANK OF GEORGIA, N.A.
By: /s/ Elizabeth Schrock
---------------------------------
Elizabeth Schrock
Title: Vice President
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH
By: /s/ Salvatore Battinelli
---------------------------------
Salvatore Battinelli
Title: Vice President
Credit Department
By: /s/ Lisa Walsh
---------------------------------
Lisa Walsh
Title: Associate
THE YASUDA TRUST & BANKING COMPANY, LTD.
By: /s/ Joseph C. Meek
---------------------------------
Joseph C. Meek
Title: Deputy General Manager
Annex A
-------
FORM OF SUBORDINATION PROVISIONS
1. This Note shall be subordinate and junior in right of payment to
all indebtedness, obligations and liabilities of the Case Corporation (the
"Company") and its subsidiaries (including indebtedness of others guaranteed by
the Company, but excluding trade liabilities incurred in the ordinary course of
business and payable in accordance with customary practices), whether now
existing or hereafter created, including, without limitation, all indebtedness,
obligations and liabilities of the Company arising out of or in connection with
the Revolving Credit and Guarantee Agreement, dated as of August 23, 1996 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Company, Case Canada Corporation/Corporation Case Canada
(the "Canadian Borrower"), the Foreign Subsidiary Borrowers parties thereto, the
Co-Agents named therein, the Lead Managers named therein, the several banks and
other financial institutions from time to time parties thereto (the "Lenders"),
The Bank of Nova Scotia, as Canadian Administrative Agent, and The Chase
Manhattan Bank, as General Administrative Agent, or otherwise, including,
without limitation, principal, interest (including any interest accruing
subsequent to the commencement of bankruptcy, insolvency or similar proceedings
with respect to the Company or any of its subsidiaries whether or not such
interest constitutes an allowed claim in any such proceeding) and commitment and
facility fees (said indebtedness, obligations and liabilities being hereinafter
called the "Superior Indebtedness").
2. As used in this Note the term "subordinate and junior in right of
payment" shall mean that:
(a) No part of this Note shall have any claim to the assets of the
Company or any of its subsidiaries on a parity with or prior to the claim
of the Superior Indebtedness. Unless and until the Superior Indebtedness
shall have been paid in full, the holder of this Note will not take, demand
or receive, and neither the Company nor its subsidiaries will make, give or
permit, directly or indirectly, by set-off, redemption, purchase or in any
other manner, any payment or security for the whole or any part of the
principal of or interest on this Note, provided, however, that so long as
no Default or Event of Default described in the Credit Agreement shall have
occurred and be continuing, or would be in existence immediately after
giving effect thereto, the Company or its subsidiaries may pay principal,
interest and fees on the indebtedness evidenced hereby when and as, and
only when and as, the same becomes due and payable in accordance with the
terms and conditions hereof in effect on the date hereof.
(b) In the event of any distribution, division or application,
partial or complete, voluntary or involuntary, by operation of law or
otherwise, of all or any part of the property, assets or business of the
Company, its Material Subsidiaries (as such term is defined in the Credit
Agreement), or any subsidiary which is a debtor pursuant to the terms
hereof (each a "Debtor Subsidiary"), or the proceeds thereof, to any
creditor or creditors of the Company, its Material Subsidiaries, or any
Debtor
2
Subsidiary, or upon any indebtedness of the Company, its Material
Subsidiaries or any Debtor Subsidiary, by reason of any liquidation,
dissolution or other winding up of the Company, any Material Subsidiary, or
any Debtor Subsidiary, or their businesses or by reason of any sale,
receivership, insolvency or bankruptcy proceedings or assignment for the
benefit of creditors or any proceeding by or against the Company, any
Material Subsidiary or any Debtor Subsidiary for any relief under any
bankruptcy, reorganization or insolvency law or laws, federal or state, or
any law, federal or state, relating to the relief of debtors, readjustment
of indebtedness, reorganization, composition or extension, or in the event
of the occurrence and during the continuation of any Event of Default
described in the Credit Agreement, then and in any such event, any payment
or distribution of any kind or character, whether in cash, property or
securities which, but for the subordination provisions of this Note, would
otherwise be payable or deliverable upon or in respect of this Note, shall
instead be paid over or delivered to the Lenders for application on account
of the Superior Indebtedness, and the holder of this Note shall not receive
any such payment or distribution or any benefit therefrom.
3. The holder of this Note hereby agrees, under the circumstances
set forth in Paragraph 2(b) hereof, duly and promptly to take such action as may
be requested at any time and from time to time by the Lenders to collect this
Note for the account of the holders of Superior Indebtedness and to file
appropriate proofs of claim in respect thereof, to deliver this Note to the
Lenders on demand therefor, and to execute and deliver such powers of attorney,
assignments or other instruments as may be requested by the Lenders in order to
enable the Lenders to enforce any and all claims upon or in respect of this Note
and to collect and receive any and all payments or distributions which may be
payable or deliverable at any time upon or in respect of this Note.
4. Should any payment or distribution or security, or the proceeds
of any thereof, be collected or received by the holder of this Note in respect
of this Note, and such collection or receipt is not expressly permitted
hereunder prior to the payment in full of the Superior Indebtedness, the holder
hereof will forthwith deliver the same to the Lenders, for the account of the
holders of Superior Indebtedness, in precisely the form received (except for the
indorsement or the assignment of the holder hereof where necessary) and, until
so delivered, the same shall be held in trust by the holder hereof as the
property of the holders of Superior Indebtedness.
5. Subject to the payment in full of the Superior Indebtedness, the
holder of this Note shall be subrogated to the rights of the holder of Superior
Indebtedness to receive payments or distributions of assets of the Company made
on the Superior Indebtedness until the principal of and interest on this Note
shall be paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of Superior Indebtedness of any cash, property or
securities to which the holder of this Note would be entitled except for these
provisions shall, as between the Company and its subsidiaries, its creditors
other than the
3
holders of Superior Indebtedness and the holder of this Note, be deemed to be a
payment by the Company and its subsidiaries to or on account of Superior
Indebtedness, it being understood that these provisions are and are intended
solely for the purpose of defining the relative rights of the holder of this
Note, on the one hand, and the holders of Superior Indebtedness, on the other
hand.
6. The holder of this Note hereby waives any and all notice of
renewal, extension or accrual of any of the Superior Indebtedness, present or
future, and agrees and consents that without notice to or assent by the holder
hereof:
(i) the obligations and liabilities of the Company and its
subsidiaries or any other party or parties for or upon the Superior
Indebtedness (and/or any promissory note(s), security document or guaranty
evidencing or securing the same) may, from time to time, in whole or in
part, be renewed, extended, modified, amended, accelerated, compromised,
supplemented, terminated, sold, exchanged, waived or released;
(ii) the Lenders may exercise or refrain from exercising any
right, remedy or power granted by the Credit Agreement or any other
document creating, evidencing or otherwise related to the Superior
Indebtedness or at law, in equity, or otherwise, with respect to the
Superior Indebtedness or any collateral security or lien (legal or
equitable) held, given or intended to be given therefor (including, without
limitation, the right to perfect any lien or security interest created in
connection therewith);
(iii) any and all collateral security and/or liens (legal or
equitable) at any time, present or future, held, given or intended to be
given for the Superior Indebtedness, and any rights or remedies of the
Lenders in respect thereof, may, from time to time, in whole or in part, be
exchanged, sold, surrendered, released, modified, waived or extended by the
Lenders; and
(iv) any balance or balances of funds with the Lenders at any
time standing to the credit of the Company or any guarantor of any of the
Superior Indebtedness may, from time to time, in whole or in part, be
surrendered or released;
all as the Lenders may deem advisable and all without impairing, abridging,
diminishing, releasing or affecting the subordination to the Superior
Indebtedness provided for herein.
7. The holder of this Note acknowledges and agrees that the Lenders
have relied upon and will continue to rely upon the subordination provided for
herein in making the loans provided for in the Credit Agreement and in otherwise
extending credit to the Company and its subsidiaries. The holder hereof hereby
waives notice of or proof of reliance hereon and protest, demand for payment and
notice of default.
4
8. The Lenders shall not be prejudiced in their right to enforce the
subordination contained herein in accordance with the terms hereof by any act or
failure to act on the part of the Company and its subsidiaries.
9. The subordination provisions contained herein are for the benefit
of the Lenders and may not be rescinded, cancelled, amended or modified in any
way without the prior written consent thereto of the Lenders.