CONFORMED COPY
NEW SOUTH WALES
STAMP DUTY PAID $2
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DEED POLL
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DEED POLL dated 17 October 1997
BY:
CASE CREDIT AUSTRALIA PTY LIMITED (ACN 069 132 396) of 31-67 Kurrajong Avenue,
St Marys, New South Wales (the ISSUER).
RECITALS
A. The Issuer proposes to issue MTNs denominated in Australian dollars from
time to time under this Deed.
B. The MTNs will be issued in registered form by inscription in the Register.
C. The Issuer enters into this Deed for the benefit of the MTN Holders from
time to time.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
AFFILIATE means, in relation to any person, any other person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with that person. For the purposes of this
definition, CONTROL of a person means the power, directly or indirectly,
either to:
(a) vote 10% or more of the securities or other equity interests having
ordinary voting power for the election of directors or other
governing bodies of that person; or
(b) direct or cause the direction of the management and policies of the
person, whether by contract or otherwise.
AUSTRACLEAR means Austraclear Limited (ACN 002 060 773).
AUSTRACLEAR REGULATIONS means the regulations published by Austraclear.
AUSTRACLEAR SYSTEM means the SYSTEM as defined in the Austraclear
Regulations.
BBSW for an Interest Period means:
(a) the average of the bid/offer rates displayed at or about 10.10am on
the first day of the Interest Period on the Reuters Monitor System
"BBSW" page for bills (which for the purpose of this definition
means bills of exchange of the type specified for the purpose of
quoting on the Reuters Monitor System "BBSW" page) for a term
equivalent to the Interest Period; or
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(b) if the Reuters Monitor System "BBSW" page is not available but has
been replaced by one or more pages generally accepted in the
Australian capital markets as a normal market convention for AUD
bank accepted bills of exchange rate settings, the average of the
bid/offer rates displayed on that replacement page (or if more than
one, the replacement page considered by the Paying Agent to most
closely approximate the replaced "BBSW" page) in a manner
considered by the Paying Agent to most closely approximate the rate
specified above; or
(c) if there are no bid/offer rates for bills for a term equivalent to
the Interest Period displayed on the Reuters Monitor System "BBSW"
page or, in the circumstances of paragraph (b), its equivalent
replacement page, by 10.30am on that day, the rate determined by
the Paying Agent to be the average (rounded to 4 decimal places
with the mid point rounded up) of such bid/offer rates otherwise
quoted by 4 banks to, and on application by, the Paying Agent at or
about 10.30am on that day; or
(d) if for any reason the rate for that Interest Period cannot be
determined in accordance with the preceding paragraphs, the rate as
reasonably determined in good faith by the Paying Agent having
regard to comparable indices then available.
Rates will be expressed as a yield percent per annum to maturity.
BUSINESS DAY means a day (not being a Saturday or Sunday) on which banks
are open for business in Sydney and Melbourne and, where payment is to be
made through an account of Austraclear, on which Austraclear is operating.
BUSINESS DAY CONVENTION means the convention specified in the relevant
Pricing Supplement and recorded in the Register, for adjusting any
relevant date if it would otherwise fall on a day that is not a Business
Day. The following terms, when used in conjunction with the term BUSINESS
DAY CONVENTION and a date, mean that an adjustment will be made if that
date would otherwise fall on a day that is not a Business Day so that:
(a) if FOLLOWING is specified, that date will be the following Business
Day;
(b) if MODIFIED FOLLOWING or MODIFIED is specified, that date will be
the following Business Day in the same calendar month or, if none,
the preceding Business Day; and
(c) if PRECEDING is specified, that date will be the preceding Business
Day.
CASE VENDOR FINANCING means financing which is provided by a person other
than Case Corporation Pty Limited or any of its Subsidiaries or
Affiliates, to a customer of Case Corporation Pty Limited or of any of its
Subsidiaries or Affiliates.
CONDITIONS in relation to an MTN, means the terms and conditions
applicable to that MTN set out in this Deed, as supplemented, modified or
replaced by the relevant Pricing Supplement. It includes the provisions of
that Pricing Supplement.
CONSENT means:
(a) consent of the MTN Holders by Extraordinary Resolution; or
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(b) if Standard & Poors have unconditionally confirmed in writing to
the Programme Manager that the relevant act, matter or thing can be
done without effecting the ratings outlook of the MTNs, then
consent of the MTN Holders by Ordinary Resolution.
DAY COUNT FRACTION means, in respect of the calculation of an Interest
Amount:
(a) if ACTUAL/365 or ACTUAL/ACTUAL is specified in the relevant Pricing
Supplement, the actual number of days in the Interest Period in
respect of which payment is being made (being inclusive of the
first day but exclusive of the last day) divided by 365 (or, if any
portion of that Interest Period falls in a leap year, the sum of
(i) the actual number of days in that portion of the Interest
Period falling in a leap year divided by 366 and (ii) the actual
number of days in that portion of the Interest Period falling in a
non-leap year divided by 365); or
(b) if ACTUAL/365 (FIXED) is specified, the actual number of days in
the Interest Period in respect of which payment is being made
divided by 365.
DEALERSHIP AGREEMENT means the dealership agreement dated on or about the
date of this Deed between the Issuer, National Australia Bank Limited in
its capacity as Programme Manager and I&P Agent and the Dealers named in
it.
EVENT OF DEFAULT means an event or circumstance described in clause 12.1.
EXTRAORDINARY RESOLUTION has the meaning given in annexure B.
FINANCING LEASE means any lease of property, real or personal, in respect
of which the lessee's obligations are required, in accordance with current
accounting practice, to be capitalised on the lessee's balance sheet.
FIXED RATE MTN means an MTN that bears interest at a fixed rate.
FLOATING RATE BASIS means the basis on which interest is calculated in
respect of a Floating Rate MTN, being BBSW or another basis set out in the
relevant Pricing Supplement and recorded in the Register.
FLOATING RATE MTN means an MTN that bears interest at a floating rate.
GOVERNMENT AGENCY means any government or any governmental, semi-
governmental or judicial entity or authority. It also includes any self-
regulatory organisation established under statute or any stock exchange.
GUARANTEE DEED means the guarantee and negative pledge deed poll dated on
or about the date of this Deed by the Guarantor in favour of, among
others, the MTN Holders from time to time.
GUARANTEE OBLIGATION in relation to any person (the GUARANTEEING PERSON)
means, without duplication, any obligation of:
(a) the guaranteeing person; or
(b) another person (including any bank under any letter of credit) the
creation of which was induced by the guaranteeing person issuing a
reimbursement, counter indemnity or similar obligation,
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in either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the PRIMARY OBLIGATIONS) of any
person (the PRIMARY OBLIGOR) in any manner, whether directly or
indirectly. It includes an obligation of the guaranteeing person, whether
or not contingent:
(i) to purchase any such primary obligation or any property
constituting direct or indirect security for it;
(ii) to advance or supply funds for the purchase or payment of any such
primary obligation or to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor;
(iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of the primary
obligation; or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect of it.
It does not include endorsement of instruments for deposit or collection
in the ordinary course of business, or obligations in respect of trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices.
Without limiting the Guarantee Deed, the amount of any Guarantee
Obligation of any GUARANTEEING PERSON will be taken to be the lower of:
(A) an amount equal to the stated or determinable amount of the PRIMARY
OBLIGATION in respect of which the Guarantee Obligation is made;
and
(B) the maximum amount for which the guaranteeing person may be liable
under the terms of the instrument embodying the Guarantee
Obligation,
unless the primary obligation and the maximum amount for which the
guaranteeing person may be liable are not stated or determinable, in which
case the amount of the Guarantee Obligation will be the guaranteeing
person's maximum reasonably anticipated liability in respect of it as
determined by the Issuer in good faith.
GUARANTOR means Case Credit Corporation, a company incorporated in
Delaware with its principal office at 233 Lake Street, Racine, Wisconsin,
53403, USA.
INDEBTEDNESS in relation to any person at any time, means, without
duplication:
(a) all indebtedness of the 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 the person which is evidenced by a note,
bond, debenture or similar instrument;
(c) all obligations of the person as lessee under Financing Leases;
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(d) the discounted amount of all obligations of the person in respect
of acceptances issued or created for the account of the person;
(e) all liabilities secured by any Lien on any property owned by the
person even though the person has not assumed or otherwise become
liable for the payment of it;
(f) all net liabilities of the person in respect of Interest Rate
Agreements;
(g) all Guarantee Obligations in respect of Indebtedness referred to in
the preceding paragraphs of this definition; and
(h) if the person is the Issuer or any of its Subsidiaries, all
obligations of that person incurred in connection with any
securitisation or other asset-backed financing of Receivables, to
the extent those obligations are excluded from the definition of
Permitted Securitisation Obligations by operation of the proviso to
that definition.
Despite the above, Permitted Vendor Financing Obligations do not
constitute Indebtedness under this definition.
INTEREST ACCRUAL DATE means the date set out in the relevant Pricing
Supplement and recorded in the Register as the interest accrual date for
an MTN. If no date is set out, it means the Issue Date.
INTEREST AMOUNT means the amount of interest payable in respect of an MTN
for an Interest Period.
INTEREST PAYMENT DATE means each date set out in the relevant Pricing
Supplement and recorded in the Register as an interest payment date for an
MTN.
INTEREST PERIOD in relation to an MTN means the period from and including
an Interest Payment Date of the MTN to but excluding its next Interest
Payment Date, except that the first Interest Period commences on and
includes the Interest Accrual Date and the last Interest Period ends on
but excludes the Maturity Date.
INTEREST RATE:
(a) in the case of a Fixed Rate MTN, means the rate of interest
(expressed as a per cent per annum) payable in respect of that MTN
set out in the Pricing Supplement and recorded in the Register;
(b) in the case of a Floating Rate MTN, means the rate of interest
(expressed as a per cent per annum) payable in respect of that MTN
from time to time calculated in accordance with the applicable
Floating Rate Basis and Conditions; and
(c) in the case of any other interest bearing MTN, means the rate of
interest (expressed as a percent per annum) payable in respect of
that MTN and either set out in the Pricing Supplement and recorded
in the Register or calculated in accordance with the relevant
Pricing Supplement.
INTEREST RATE AGREEMENT means any interest rate protection agreement,
interest rate future, interest rate option, interest rate cap or other
interest rate hedge arrangement.
ISSUE DATE means the date recorded in the Register as the date on which an
MTN was issued.
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ISSUE PRICE means the price set out in the relevant Pricing Supplement and
recorded in the Register as the issue price of an MTN.
LIEN means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatever (including any
conditional sale or other title retention agreement and any Financing
Lease having substantially the same economic effect as any of the above).
MATERIAL SUBSIDIARY means any Subsidiary of the Issuer whose assets or
revenues (excluding intercompany receivables and revenues that would be
eliminated upon consolidation in accordance with current accounting
practice) are, at the time of determination, equal to or greater than 10%
of the assets or revenues (excluding intercompany receivables and revenues
that would be eliminated upon consolidation in accordance with current
accounting practice), respectively, of the Issuer at such time.
MATURITY DATE means the date set out in the relevant Pricing Supplement
and recorded in the Register as the maturity date of an MTN.
MTN means the right of an MTN Holder to be paid certain moneys under this
Deed, title to which is recorded in and evidenced by an inscription in the
Register.
MTN HOLDER means the person whose name is inscribed in the Register from
time to time as the holder of an MTN, or where the MTN is held jointly by
more than one person, the persons whose names appear in the Register as
the joint holders of that MTN.
ORDINARY RESOLUTION has the meaning given in annexure B.
PAYING AGENT means Corporate Registry Services Pty Limited
(ACN 078 279 277) or another person from time to time appointed by the
Issuer to make payments under MTNs on its behalf.
PERMITTED SECURITISATION OBLIGATIONS means obligations of the Issuer or
any of its Subsidiaries incurred in connection with any securitisation or
other asset-backed financing of Receivables; except that, if:
(a) there is recourse to the Issuer or any of its Subsidiaries (other
than a Special Purpose Subsidiary) for failure to pay or otherwise
perform any of those obligations;
(b) that failure arises as a result of credit defaults by the debtors
in respect of those Receivables; and
(c) that recourse is not limited to the Receivables and the Receivables
Related Assets (or undivided or beneficial interests in them) which
are the subject of such securitisation or other asset-backed
financing,
then those obligations will not be considered Permitted Securitisation
Obligations within the meaning of this definition to the extent that, in
accordance with current accounting practice, the obligations would be
required to be included as a liability on a consolidated balance sheet of
the Issuer and its Subsidiaries.
PERMITTED VENDOR FINANCING OBLIGATIONS means any Guarantee Obligation of
the Issuer or any of its Subsidiaries in respect of Case Vendor Financing,
but only to the extent that the underlying
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principal amount of the Indebtedness subject to the Guarantee Obligation
is secured or otherwise funded by the Issuer or any of its Subsidiaries
with cash or other marketable instruments (including pledges of deposit
accounts, notes, bonds, certificates of deposit or other documents or
instruments).
PRICING SUPPLEMENT means the pricing supplement substantially in the form
of annexure A (or another form agreed by the Issuer and the Programme
Manager) prepared in relation to the MTNs of a Tranche and signed by the
Issuer.
PRINCIPAL AMOUNT means the face amount of an MTN as specified in the
relevant Pricing Supplement and recorded in the Register or such other
amount described as the Principal Amount in the relevant Pricing
Supplement.
PROGRAMME MANAGER means National Australia Bank Limited in that capacity.
RECEIVABLES means any right of payment from or on behalf of any obligor,
whether constituting an account, chattel paper, instrument, general
intangible or otherwise, arising from the financing by the Issuer or any
of its Subsidiaries of property or services, and money due under them,
security interests in the property and services financed by them and all
other related rights.
RECEIVABLES RELATED ASSETS means in connection with any securitisation or
other asset-backed financing of, or other sale, transfer or disposition
of, Receivables, the collective reference to:
(a) any rights arising under the documentation governing or relating to
those Receivables (including rights in respect of Liens securing
the Receivables and other credit support in respect of them);
(b) any proceeds of the Receivables and any locked boxes or accounts in
which those proceeds are deposited;
(c) spread accounts and other similar accounts (and any amounts on
deposit in them) established in connection with that securitisation
or asset-backed financing; and
(d) any warranty, indemnity, dilution and other intercompany claim
arising out of the documentation evidencing that securitisation or
asset-backed financing.
REDEMPTION AMOUNT means 100 per cent of the Principal Amount of an MTN or
such other amount as is specified in the relevant Pricing Supplement as a
Redemption Amount in relation to a particular Redemption Date.
REDEMPTION DATE means the Maturity Date of an MTN and any other date for
the payment of part or all of the Principal Amount as specified in the
relevant Pricing Supplement and recorded in the Register.
REGISTER means the register of MTN Holders maintained by the Registrar
under the Registry Services and Paying Agency Agreement.
REGISTRAR means Corporate Registry Services Pty Limited (ACN 078 279 277)
or another person from time to time appointed in that capacity by the
Issuer.
REGISTRY SERVICES AND PAYING AGENCY AGREEMENT means the Registry Services
and Paying Agency Agreement between the Registrar and the Issuer.
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RELEVANT COMPANY means the Issuer, any of its Subsidiaries or the
Guarantor.
REVOLVING CREDIT AGREEMENT means the revolving credit and guarantee
agreement dated as of 23 August 1996 between the Guarantor as a Borrower,
The Chase Manhattan Bank as Administrative Agent and the other Borrowers,
Lenders, Co-Agents and Lead Managers named in it.
SERIES means each original issue of MTNs, and any further issues expressed
in the relevant Pricing Supplement to form a single series with the
original issue, having the same terms except for the Issue Date, Interest
Accrual Date, Issue Price or face amount.
SPECIAL PURPOSE SUBSIDIARY means any wholly owned Subsidiary of the Issuer
which is:
(a) formed for the purpose of effecting a securitisation or other
asset-backed financing of Receivables and engaging in other
reasonably related activities; and
(b) structured as a BANKRUPTCY-REMOTE SUBSIDIARY in accordance with
customary practices in the asset-backed securitisation market.
SUBSIDIARY has the meaning given in the Corporations Law, but an entity
will also be taken to be a Subsidiary of an entity if it is controlled by
that entity (expressions used in this paragraph have the meanings given
for the purposes of Parts 3.6 and 3.7 of the Corporations Law).
TAX ACT means the Income Tax Assessment Act 1936 (Commonwealth).
THRESHOLD AMOUNT means US$60,000,000.
TRANCHE means all MTNs of the same Series having the same Issue Date and
Interest Accrual Date.
TRANSACTION DOCUMENT means this Deed, the Dealership Agreement, the
Registry Services and Paying Agency Agreement, the Guarantee Deed, any MTN
or a document or agreement entered into for the purpose of amending or
novating any of the above.
TRANSFER AND ACCEPTANCE FORM means a form for the transfer of MTNs
substantially in the form of annexure 3 or any other form adopted by the
Registrar in line with then current market practice.
1.2 INTERPRETATION
Headings are for convenience only and do not affect interpretation. The
following rules apply unless the context requires otherwise.
(a) The singular includes the plural and the converse.
(b) A gender includes all genders.
(c) Where a word or phrase is defined, its other grammatical forms have
a corresponding meaning.
(d) A reference to a person, corporation, trust, partnership,
unincorporated body or other entity includes any of them.
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(e) A reference to a clause, annexure or schedule is a reference to a
clause of, or annexure or schedule to, this Deed.
(f) A reference to a party to this Deed or another agreement or
document includes the party's successors and permitted substitutes
or assigns.
(g) A reference to legislation or to a provision of legislation
includes a modification or re-enactment of it, a legislative
provision substituted for it and a regulation or statutory
instrument issued under it.
(h) A reference to WRITING includes a facsimile transmission and any
means of reproducing words in a tangible and permanently visible
form.
(i) A reference to CONDUCT includes an omission, statement or
undertaking, whether or not in writing.
(j) Mentioning anything after INCLUDE, INCLUDES or INCLUDING does not
limit what else might be included.
(k) A reference to any time is a reference to Sydney time.
(l) A reference to DOLLARS or $ is a reference to Australian currency.
(m) A reference to REGISTRATION or RECORDING includes inscription, and
TRANSFER includes transmission.
(n) A reference to CURRENT ACCOUNTING PRACTICE is to accounting
principles and practices applying by law or otherwise generally
accepted in Australia, consistently applied.
2. THE MTNS
2.1 CREATION OF MTNS
(a) MTNs are issued in registered form. Subject to the Dealership
Agreement, the Issuer may create MTNs at any time by procuring the
Registrar to inscribe the details of those MTNs in the Register.
(b) The execution of a Pricing Supplement does not constitute the
creation of an MTN, the acknowledgement of a debt or any promise to
pay by the Issuer. No MTN will be created except in accordance with
paragraph (a).
(c) The Issuer may create further MTNs so as to form a single Series
with any Tranche of MTNs.
2.2 CONSTITUTION AND TITLE
(a) The MTNs are constituted by this Deed. Each MTN is a separate debt
of the Issuer and may be transferred separately from any other MTN.
(b) Entitlement to an MTN is conclusively determined by inscription in
the Register. The making of, or giving effect to, a manifest error
in an inscription in the Register will not
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avoid the creation or transfer of an MTN. The Issuer will
procure the Registrar to rectify any manifest error of which it
becomes aware.
(c) No certificate or other document of title will be issued to
evidence title to an MTN unless that is required by applicable law
or the Issuer determines that certificates should be made
available.
2.3 TYPES
MTNs may be:
(a) Floating Rate MTNs;
(b) Fixed Rate MTNs; or
(c) any other MTN as may be specified in the relevant Pricing
Supplement.
2.4 DENOMINATION
(a) Each MTN must be denominated in Australian dollars. Subject to
paragraph (b), the face amount of each MTN on inscription must be a
minimum of $1,000,000 and an integral multiple of $100,000.
(b) A lower face amount may be specified in the relevant Pricing
Supplement if the consideration payable to the Issuer by the MTN
Holder is at least $500,000, or the offer or invitation and issue
is otherwise EXCLUDED within the meaning of the Corporations Law.
(c) MTNs are divisible on transfer into whole multiples of $100,000,
subject to clause 5.
2.5 STATUS
(a) The MTNs are direct, unconditional, unsecured and unsubordinated
obligations of the Issuer. They rank without preference or priority
among themselves and at least equally with all present and future
unsubordinated and unsecured obligations of the Issuer (except
liabilities mandatorily preferred by law and subject to laws and
principles of equity generally affecting creditors' rights). The
ranking of MTNs is not affected by the date of inscription in the
Register.
(b) The MTNs are issued with the benefit of the Guarantee Deed.
2.6 ISSUER TO INFORM REGISTRAR AND PAYING AGENT
On or before the Issue Date of an MTN the Issuer must give the Registrar
and the Paying Agent a copy of the relevant Pricing Supplement including
the information contemplated by annexure A (to the extent applicable) and,
to the extent not included in that Pricing Supplement, notify the
Registrar and the Paying Agent of the following details of that MTN:
(a) the name, address and, if advised to the Issuer by the initial MTN
Holder, tax file number of the initial MTN Holder or the basis on
which the initial MTN Holder is exempt from the need to advise the
Issuer of its tax file number;
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(b) the payment instructions notified by the initial MTN Holder; and
(c) any other information required by applicable law.
3. RIGHTS AND OBLIGATIONS OF MTN HOLDERS
3.1 RIGHTS OF MTN HOLDERS
An MTN Holder is entitled, in respect of each MTN for which that person's
name is inscribed in the Register, to the payment of principal and
interest in accordance with the Conditions applicable to that MTN,
together with the other benefits given to MTN Holders under this Deed. The
Issuer irrevocably undertakes to make all those payments on the due date.
3.2 DEED POLL
This Deed is a deed poll. Accordingly, each MTN Holder and any person
claiming through an MTN Holder has the benefit of this Deed even though it
is not a party to, or is not in existence at the time of execution and
delivery of, this Deed.
3.3 ENFORCEMENT
Each MTN Holder may enforce its rights under this Deed independently from
the Registrar and each other MTN Holder.
3.4 MTN HOLDERS BOUND
Each MTN Holder, and any person claiming through an MTN Holder, who
asserts an interest in an MTN is bound by this Deed.
3.5 LODGEMENT WITH REGISTRAR
(a) The Issuer shall keep an executed counterpart of this Deed and the
Guarantee Deed with the Registrar for the benefit of MTN Holders as
more particularly set out in the Registry Services and Paying
Agency Agreement.
(b) Each MTN Holder is taken to have irrevocably appointed and
authorised the Registrar to hold this Deed and the Guarantee Deed
in the Australian Capital Territory on behalf of that MTN Holder,
with the powers expressly delegated to the Registrar under the
Registry Services and Paying Agency Agreement and other powers
reasonably incidental to those powers.
(c) The Registrar has no duties or responsibilities in that capacity
except those expressly set out in the Registry Services and Paying
Agency Agreement.
3.6 INCORPORATION OF ANNEXURES AND CONDITIONS
(a) The MTNs are issued on and subject to:
(i) the Conditions applicable to those MTNs;
(ii) the terms relating to those MTNs set out in the Register;
and
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(iii) the provisions for meetings contained in annexure B,
each of which is incorporated in this Deed as if it were set out in
this Deed and so as to bind the Issuer and the MTN Holders who
assert an interest in the MTNs.
(b) If there is any inconsistency between this Deed and a Pricing
Supplement, the Pricing Supplement will prevail.
3.7 PAYING AGENT AND PROGRAMME MANAGER
Each MTN Holder is taken to acknowledge that:
(a) the Paying Agent is the Issuer's agent, not theirs;
(b) the Programme Manager is not, by reason of any Transaction
Document, an agent of or trustee for the benefit of, the Issuer or
any MTN Holder; and
(c) neither the Paying Agent nor the Programme Manager owes any
fiduciary duty to any MTN Holder.
4. REGISTER
4.1 ESTABLISH AND MAINTAIN
The Issuer shall procure that the Registrar does the following things:
(a) establish and maintain, in accordance with the Registry Services
and Paying Agency Agreement, a register in Canberra or another
Australian city approved by the Issuer; and
(b) enter or cause to be entered in the Register in respect of each
MTN:
(i) the information contemplated by annexure A (to the extent
applicable);
(ii) the name and address of the initial MTN Holder and each
subsequent MTN Holder;
(iii) the date on which a person becomes an MTN Holder;
(iv) the payment instructions notified by the MTN Holder;
(v) the MTN Holder's tax file number (if provided by it) or the
basis on which the MTN Holder is exempt from the need to
disclose its tax file number;
(vi) the date on which a person ceases to be an MTN Holder;
(vii) the date on which the MTN is redeemed or is purchased and
cancelled; and
(viii) any other information required by applicable law.
4.2 MULTIPLE MTN HOLDERS
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(a) Two or more people registered as MTN Holders of an MTN are taken to
be joint holders with right of survivorship between them.
(b) If there are more than 4 holders of an MTN, the names of only 4 of
them will be entered in the Register. If more than 4 names are
notified to the Registrar, it will record the first 4 noted.
(c) If there is more than one holder of an MTN, the address of only one
of them will be entered in the Register. If more than one address
is notified to the Registrar, it will record the address of the MTN
Holder whose name appears first in the Register.
4.3 REGISTER IS PARAMOUNT
(a) The person whose name appears in the Register will be recognised by
the Issuer and the Registrar as the absolute owner of the MTNs
inscribed in the Register in its name, without regard to any other
record or instrument (including any Transfer and Acceptance Form).
(b) No notice of any trust or other interest in an MTN will be entered
on the Register. Neither the Issuer nor the Registrar need take
notice of any other interest in or claim to an MTN, except as
ordered by a court of competent jurisdiction or required by law.
4.4 MTN HOLDER CHANGE OF NAME OR ADDRESS
An MTN Holder must promptly notify any change of name or address to the
Registrar.
4.5 CERTIFIED EXTRACTS FROM REGISTER AVAILABLE
The Issuer shall, on request by an MTN Holder, procure that the Registrar
provides the MTN Holder, at the MTN Holder's expense, with a certified
extract of the particulars entered in the Register in relation to the MTN
Holder and the MTNs held by it. That extract is not a document of title.
5. TRANSFERS
5.1 MTNS TRANSFERABLE
MTNs are transferable, in whole or in part, without the consent of the
Issuer or the Registrar.
5.2 METHOD OF TRANSFER
MTNs may be transferred only:
(a) by a Transfer and Acceptance Form complying with clause 5.3 or
through the Austraclear System in accordance with clause 6;
(b) in a total minimum Principal Amount of $500,000 or, if a larger
Principal Amount, an integral multiple of $100,000; and
(c) if the offer or invitation to transfer is EXCLUDED within the
meaning of the Corporations Law.
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5.3 TRANSFER AND ACCEPTANCE FORMS
Transfer and Acceptance Forms are available from the Registrar. Every
Transfer and Acceptance Form in respect of MTNs must be:
(a) signed by the transferor and the transferee;
(b) delivered to the office of the Registrar for registration;
(c) accompanied by such evidence as the Registrar may reasonably
require to prove the title of the transferor or the transferor's
right to transfer those MTNs; and
(d) duly stamped, if necessary.
The Issuer is not obliged to pay stamp duty on any transfer of an MTN.
5.4 EFFECTIVE DATE OF TRANSFERS
The transferor will be taken to remain the owner of the relevant MTNs
until the name of the transferee is inscribed in the Register in respect
of those MTNs.
5.5 NO FEE
No fee or other charge is payable to the Issuer or the Registrar in
respect of the transfer or registration of any MTN.
5.6 CLOSING OF REGISTER
The Register will be closed in respect of an MTN for the purpose of
determining entitlements to payment, at 5pm on the seventh day before each
Interest Payment Date and Redemption Date of the MTN (or any shorter
period agreed by the Issuer and the Registrar). No Transfer and Acceptance
Forms in relation to the MTN will be registered from the time of that
closing until all payments due on the MTN on the relevant date have been
made.
5.7 MARKING OF TRANSFER
The Registrar may mark any Transfer and Acceptance Form in its customary
manner. That marking prohibits a dealing with the relevant MTNs, as
specified in the marking notation, from the date of marking to the
earliest of:
(a) 42 days from the date of marking;
(b) the date the Registrar cancels the marking notation; and
(c) the date the Registrar receives the marked Transfer and Acceptance
Form executed by the transferee.
A marked Transfer and Acceptance Form is not a document of title.
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5.8 TRANSFER ON DEATH, BANKRUPTCY OR LIQUIDATION OF MTN HOLDER
The Registrar is required by the Registry Services and Paying Agency
Agreement to register a transfer of an MTN to or by a person who is
entitled to do so in consequence of:
(a) the death, bankruptcy, liquidation or winding up of an MTN Holder;
or
(b) the making of a vesting order by a court or other judicial or
quasi-judicial body in relation to an MTN Holder,
on receiving the evidence the Registrar requires.
5.9 DESTRUCTION
Any Transfer and Acceptance Form may, with the prior written approval of
the Issuer, be destroyed by the Registrar after the entry in the Register
of the particulars set out in the form.
5.10 DECEASED PEOPLE
The Registrar may decline to give effect to a transfer of any MTNs entered
in the Register in the name of a deceased person who has two or more
personal representatives unless the Transfer and Acceptance Form is
executed by all of them.
6. MTNS LODGED WITH AUSTRACLEAR
If MTNs are lodged into the Austraclear System, the Registrar will enter
Austraclear in the Register as the holder of those MTNs. While those MTNs
remain in the Austraclear System:
(a) all payments and notices required of the Issuer or the Registrar in
relation to those MTNs will be directed into Austraclear; and
(b) all dealings (including transfers and payments) in relation to
those MTNs within the Austraclear System will be governed by the
Austraclear Regulations and need not comply with this Deed to the
extent of any inconsistency.
7. INTEREST ON MTNS
7.1 APPLICATION
The provisions of this clause 7 apply to Floating Rate MTNs, Fixed Rate
MTNs and any other MTNs which are specified in the relevant Pricing
Supplement as being interest bearing.
7.2 ACCRUAL AND PAYMENT
(a) Interest accrues on a daily basis on the Principal Amount of MTNs
to which this clause applies at the applicable Interest Rate from
their Interest Accrual Date until their Maturity Date. This does
not limit clause 14.
(b) Subject to any contrary provision in the relevant Pricing
Supplement, the Interest Amount is calculated by applying the
applicable Interest Rate for the Interest Period to the Principal
Amount of the MTN, multiplying that sum by the relevant Day Count
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Fraction, and rounding the resultant figure to the nearest cent
(half a cent being rounded upwards).
(c) Accrued interest is payable in arrears on each applicable Interest
Payment Date and on the Maturity Date.
7.3 NOTIFICATION OF INTEREST RATE AND INTEREST AMOUNT
The Issuer will, if requested in writing by an MTN Holder, notify the MTN
Holder of the applicable Interest Rate, Interest Amount and Interest
Payment Date or cause the Paying Agent to do so. The Interest Amount and
the Interest Payment Date so notified may be subsequently amended (or
appropriate alternative arrangements made by the Paying Agent by way of
adjustment) without notice if the Interest Period is extended or shortened
in accordance with the applicable Conditions.
8. REDEMPTION AND PURCHASE OF MTNS
8.1 REDEMPTION
The Issuer undertakes to pay to each MTN Holder, in respect of each MTN
for which that person's name is inscribed in the Register and which has
not been previously purchased and cancelled, each Redemption Amount on the
relevant Redemption Date.
8.2 PURCHASE
The Issuer may at any time purchase MTNs:
(a) in the open market;
(b) by tender to all of the MTN Holders; or
(c) by private agreement.
8.3 CANCELLATION
All MTNs redeemed or repurchased by the Issuer must be cancelled promptly
and may not be reissued or resold. All liabilities and obligations of the
Issuer in connection with those MTNs are discharged.
This clause does not prevent the Issuer creating new MTNs.
9. MANNER OF PAYMENTS
9.1 PAYMENTS TO MTN HOLDERS
All payments under or in respect of an MTN must be made by the Issuer or
the Paying Agent on its behalf:
(a) in Australian Dollars;
(b) to an account or an address in Australia which is designated by the
MTN Holder to the Registrar not later than 5pm on the seventh day
before the relevant Interest Payment Date or Redemption Date;
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(c) by cheque drawn on a bank in Australia or, in the case of payments
to be credited to an account, by the Issuer or the Paying Agent
giving irrevocable instructions to effect a transfer of the
relevant funds to that account; and
(d) in accordance with clause 10.
All payments are subject to any applicable fiscal or other laws and
regulations.
9.2 WHEN PAYMENTS TAKEN TO HAVE BEEN MADE
(a) A payment made by posting a cheque is taken to have been made on
the day it is posted, even if the cheque does not actually arrive
on that date.
(b) A payment made by electronic transfer is taken to be made when the
Issuer or Paying Agent gives an irrevocable instruction for that
payment which would reasonably be expected to result, in the
ordinary course of banking business, in the relevant funds reaching
the account of the MTN Holder on the same day as the day on which
the instruction is given.
9.3 GOOD DISCHARGE
(a) If payment of an amount due to an MTN Holder is made in accordance
with the applicable Conditions, that payment is a good discharge to
the Issuer despite any notice it or the Paying Agent may have
(whether express or otherwise) of the right, title, interest or
claim of any other person to or in that money or the MTN under
which the payment is made.
(b) A payment made to a third party on the instructions of the MTN
Holder to whom it is due will constitute a good discharge of the
Issuer's obligation to make that payment to the MTN Holder.
9.4 BUSINESS DAYS
(a) If a payment is due under or in respect of an MTN on a day which is
not a Business Day, the due date for payment will be adjusted
according to the Business Day Convention applicable to that MTN.
(b) If an amount is to be paid to an account on a day on which banks
are not open for business in the city in which the account is
located, the MTN Holder is not entitled to payment of that amount
until the next Business Day on which banks in that city are open
for business and is not entitled to any additional interest or
other payment in respect of that delay.
9.5 PAYING AGENT
Subject to any agreement between the Issuer and the Paying Agent, the
Issuer may vary or terminate the appointment of the Paying Agent at any
time. Notice of any such change, or any change in the specified offices of
the Paying Agent, must be given to the MTN Holders in accordance with
clause 17.
10. TAXATION
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10.1 PAYMENTS MADE FREE AND CLEAR
All payments under or in respect of the MTNs must be made free and clear
of, and without deduction for, or by reference to, any present or future
taxes of the Commonwealth of Australia or any political subdivision or
taxing authority of or in Australia unless required by law.
10.2 INTEREST WITHHOLDING TAX
The Issuer or any person making payments on its behalf may deduct interest
withholding tax imposed by the Commonwealth of Australia from payments of
interest or amounts in the nature of interest in respect of MTNs which are
payable to:
(a) non-residents of the Commonwealth of Australia not carrying on
business in the Commonwealth of Australia at or through a permanent
establishment; and
(b) residents of the Commonwealth of Australia carrying on business at
or through a permanent establishment outside the Commonwealth of
Australia,
unless a notice pursuant to section 221YM of the Tax Act is produced to
the Registrar not later than 5pm on the seventh day before the relevant
Interest Payment Date or Redemption Date (as the case may be), and then
only to the extent that the notice relates to the amount payable.
10.3 TAX FILE NUMBER
The Issuer or any person making payments on its behalf may deduct tax-at-
source on payments of interest or amounts in the nature of interest to an
MTN Holder at the rate required by the Tax Act unless the Registrar
receives written notice of the MTN Holder's tax file number or evidence of
any exemption the MTN Holder may have from the need to notify its tax file
number. The tax file number or appropriate evidence (as the case may be)
must be received by the Registrar not later than 5pm on the seventh day
before the relevant Interest Payment Date or Redemption Date.
11. NEGATIVE PLEDGE
The Issuer undertakes to each MTN Holder as follows.
(a) (NO LIENS) It will not, and it will ensure that each of its
Subsidiaries will not, create, incur, assume or allow to exist any
Lien on any of its property, assets or revenue, whether now owned
or acquired later, which would cause the Guarantor to be in breach
of any provision of the Guarantee Deed.
(b) (GUARANTEE DEED) It will not do anything which may cause the
Guarantor to breach the undertakings given by it in the Guarantee
Deed and it will do all things necessary on its part to ensure that
the Guarantor is able duly to perform those undertakings.
(c) (NOTICE) It will promptly notify the Programme Manager and each MTN
Holder of the occurrence of any Event of Default.
12. EVENTS OF DEFAULT
12.1 EVENTS OF DEFAULT
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Each of the following is an Event of Default in relation to all MTNs
(whether or not it is in the control of any Relevant Company).
(a) (OBLIGATIONS UNDER TRANSACTION DOCUMENTS) A Relevant Company fails:
(i) to pay an amount payable by it under a Transaction Document
within 5 Business Days of the amount becoming due; or
(ii) to comply with any of its other obligations under a
Transaction Document and, if that failure can be remedied,
does not remedy the failure within 21 Business Days after
notice in writing to the Issuer from any MTN Holder or the
Programme Manager.
(b) (CROSS DEFAULT)
(i) Indebtedness of a Relevant Company totalling at least the
Threshold Amount or its equivalent:
(A) is not paid when due (or within an applicable grace
period); or
(B) becomes due and payable or capable of being declared due
and payable before its stated maturity or expiry;
(ii) a facility or obligation granted or owed by a person to a
Relevant Company to provide financial accommodation or to
acquire or underwrite Indebtedness totalling at least the
Threshold Amount or its equivalent is prematurely
terminated, except where the Relevant Company exercises an
optional right of termination in the absence of actual,
likely or threatened default or an event of default or
termination event, whatever called; or
(iii) an event of default as defined in the Revolving Credit
Agreement occurs and money owing under that agreement
becomes due and payable before its stated maturity or
expiry.
For the purpose of this paragraph (b) the term INDEBTEDNESS does
not include:
(iv) Guarantee Obligations of any Subsidiary of the Issuer in
respect of Indebtedness of an Affiliate of the Issuer if
that Subsidiary owns no material assets other than equity
interests in the Affiliate and the Affiliate is not a
Subsidiary of the Issuer; and
(v) net liabilities in respect of Interest Rate Agreements
unless the holder or holders of that Indebtedness have
required that a termination payment in respect of the
Interest Rate Agreement be made.
(c) (ADMINISTRATION, WINDING UP, ARRANGEMENTS, INSOLVENCY ETC.)
(i) An administrator of the Issuer, a Material Subsidiary or the
Guarantor is appointed.
(ii) Except for the purpose of a solvent reconstruction or
amalgamation with prior Consent:
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(A) an application or an order is made, proceedings are
commenced or a resolution is passed for:
(1) the winding up, dissolution or administration of the
Issuer, a Material Subsidiary or the Guarantor; or
(2) the Issuer, a Material Subsidiary or the Guarantor
entering into an arrangement, compromise or
composition with or assignment for the benefit of
its creditors or a class of them,
other than an application or proceeding which is being
contested in good faith and which is withdrawn or set
aside within 21 days of first filing; or
(B) the Issuer, a Material Subsidiary or the Guarantor
ceases or suspends the conduct of all or a substantial
part of its business or disposes of a substantial part
of its assets.
(iii) The Issuer, a Material Subsidiary or the Guarantor:
(A) is, or under legislation is presumed or taken to be,
insolvent (other than as the result of a failure to pay
a debt or claim the subject of a good faith dispute); or
(B) stops or suspends payment of all or a class of its
debts.
(d) (ENFORCEMENT AGAINST ASSETS)
(i) A Controller (as defined in the Corporations Law) or similar
officer is appointed to all or any of the assets and
undertaking of the Issuer, a Material Subsidiary or the
Guarantor and not removed (without another being appointed
in its place) within 21 days.
(ii) A distress, attachment or other execution is levied or
enforced over all or any of the assets and undertaking of
the Issuer, a Material Subsidiary or the Guarantor and not
withdrawn or discontinued within 21 days.
(e) (ANALOGOUS PROCESS) Anything analogous to anything referred to in
paragraphs (c) or (d), or which has substantially similar effect,
occurs with respect to the Issuer, a Material Subsidiary or the
Guarantor under any overseas law or any law which commences or is
amended after the date of this Deed.
(f) (VITIATION OF DOCUMENTS) All or any material part of a Transaction
Document is terminated or is or becomes void, illegal, invalid,
unenforceable or of limited force and effect.
(g) (CONTROL OF ISSUER OR GUARANTOR) Without prior Consent:
(i) the Issuer ceases to be a wholly owned subsidiary of the
Guarantor; or
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(ii) the Guarantor ceases to be a wholly owned subsidiary of Case
Corporation.
(h) (SUPPORT AGREEMENT) An event described in paragraph (f) occurs in
relation to the Support Agreement dated 10 January 1996 between Case
Corporation and the Guarantor, or that agreement is amended in a
material respect without prior Consent.
12.2 CONSEQUENCES OF EVENT OF DEFAULT
If an Event of Default occurs (whether or not it is continuing) an MTN
Holder may, by notice to the Issuer, declare its MTNs immediately
redeemable. The Issuer or the Paying Agent on its behalf shall immediately
redeem those MTNs by paying the Principal Amount together with accrued
interest or any other amount payable on redemption in accordance with the
relevant Pricing Supplement.
13. TIME LIMIT FOR CLAIMS
A claim against the Issuer for a payment due to be made under this Deed is
void if made more than 5 years after that payment became due.
14. INTEREST ON OVERDUE AMOUNTS
14.1 ACCRUAL
Interest accrues on each unpaid amount which is due and payable by the
Issuer under or in respect of this Deed (including interest under this
clause):
(a) on a daily basis up to the date of actual payment from (and
including) the due date;
(b) both before and after judgment (as a separate and independent
obligation); and
(c) at the rate specified for this purpose in the relevant Pricing
Supplement.
14.2 PAYMENT
The Issuer shall pay interest accrued under this clause on demand and on
the last Business Day of each calendar quarter.
15. AMENDMENTS
The Registry Services and Paying Agency Agreement and this Deed (other than
this clause 15) may be amended at any time if the amendment is:
(a) to correct a manifest error or ambiguity;
(b) with prior Consent; or
(c) necessary or desirable in the opinion of the Issuer and the Programme
Manager and neither prejudicial nor likely to be prejudicial to the
interests of MTN Holders as a whole.
This does not limit annexure B or the effect of any Pricing Supplement in
relation to MTNs of the Tranche to which it applies.
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16. WAIVERS, REMEDIES CUMULATIVE
(a) No failure to exercise or delay in exercising any right, power or
remedy under this Deed shall operate as a waiver, nor shall any single
or partial exercise of any right, power or remedy preclude any other
or further exercise of that or any other right, power or remedy.
(b) The rights, powers and remedies provided under this Deed are
cumulative and not exclusive of any rights, powers or remedies
provided by law.
17. NOTICES
17.1 NOTICES TO THE ISSUER, REGISTRAR OR PAYING AGENT
All notices, requests, demands, consents, approvals, agreements or other
communications (NOTICES) under this Deed to the Issuer or the Paying Agent:
(a) must be in writing;
(b) must be addressed:
(i) if to the Issuer:
Address: Case Credit Australia Pty Ltd
31-67 Kurrajong Avenue
ST MARYS NSW 2760
Facsimile No: 9623 2936
Attention: Director;
with a copy to:
--------------
Address: Case Credit Corporation
233 Lake Avenue
Racine, Illinois
U.S.A. 53403
Attention: Treasurer
Facsimile: 1 414 636 6466
(ii) if to the Registrar:
Address: Corporate Registry Services Pty Limited
Level 2
321 Kent Street
SYDNEY NSW 2000
Facsimile No: 9262 2574
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Attention: Fixed Interest Manager;
(iii) if to the Paying Agent:
Address: Corporate Registry Services Pty Limited
Level 2
321 Kent Street
SYDNEY NSW 2000
Facsimile No: 9262 2574
Attention: Fixed Interest Manager,
or any other address or facsimile number which the addressee may have
notified the sender; and
(c) will be taken to be given or made when delivered, received or left at
that address.
Failure to give a copy of a notice to the Guarantor does not affect
the validity of any notice given to the Issuer.
17.2 NOTICES TO THE MTN HOLDERS
All notices to MTN Holders must be:
(a) published in THE AUSTRALIAN FINANCIAL REVIEW (or another English
language newspaper in general circulation in Australia). Any notice so
published will be taken to be given or made on the date the notice is
first so published; or
(b) delivered by prepaid post or courier to the address of the MTN Holder
specified in the Register, or in the case of an MTN which is
registered in the name of 2 or more people, to the person whose name
appears first in the Register. Any notice so delivered will be taken
to be given or made 2 Business Days after posting or, if delivered by
courier, when left at that address.
18. GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS
18.1 GOVERNING LAW AND JURISDICTION
This Deed is governed by the laws of New South Wales. The Issuer and each
MTN Holder irrevocably and unconditionally submits to the non-exclusive
jurisdiction of the courts exercising jurisdiction there. The Issuer and
each MTN Holder waives any right it has to object to an action being
brought in those courts, to claim that the action has been brought in an
inconvenient forum, or to claim those courts do not have jurisdiction.
18.2 SERVICE OF PROCESS
Without preventing any other mode of service, any document in an action
(including any writ of summons or other originating process or any third or
other party notice) may be served on the Issuer by being delivered to or
left for the Issuer at its address for service of notices under clause 17.
19. CALCULATIONS
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All calculations to be made under this Deed or any Conditions will be made
by the Paying Agent, unless otherwise specified in the applicable Pricing
Supplement. Those calculations will bind the Issuer and the MTN Holders
unless proven wrong.
EXECUTED as a deed poll in Canberra.
Each attorney executing this Deed states that the attorney has no notice of the
revocation or suspension of the power of attorney appointing that attorney.
THE ISSUER
SIGNED SEALED and DELIVERED )
on behalf of )
CASE CREDIT AUSTRALIA PTY )
LIMITED by its attorney )
in the presence of: ) /s/J Grant (sgd)
--------------------
Signature
/s/K Downs (sgd) JAMES GRANT
- -------------------- ------------------
Witness Print name
KAREN DOWNS
- ------------------
Print name
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ANNEXURE A
PRICING SUPPLEMENT
1. IDENTIFICATION
(a) Issuer: Case Credit Australia Pty Limited (ACN 069 132 396)
(b) Guarantor: Case Credit Corporation
(c) Programme Manager: National Australia Bank Limited
(d) Type of MTN:
(e) Series Number:
(f) Tranche Number:
(g) Aggregate Principal Amount of Tranche:
(h) Issue Date:
(i) Denominations:
(j) Settlement: Austraclear/other (specify)
(k) Issue Price:
2. INTEREST
(a) If interest bearing:
(i) Interest Rate
(if Fixed Rate MTN): [*] per cent per annum
(ii) Floating Rate Basis
(if Floating Rate MTN): BBSW/other (specify)
(iii) Interest Accrual Date: day/month/year
(if different from Issue Date)
(iv) Interest Payment Dates:
(v) Business Day Convention: Following
Modified Following/Modified
Preceding
Other (specify)
(vi) Day Count Fraction: Actual/365 or Actual/Actual; Actual/365
(Fixed)
(b) Default interest rate:
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3. OTHER INTEREST DETAILS
(insert details)
4. PRINCIPAL
(a) Maturity Date: day/month/year
(b) Other Redemption Dates: day/month/year
(if any)
(c) Redemption Amounts: (If more than one specify the amount
for each Redemption Date)
5. SPECIAL CONDITIONS OR TERMS
(insert details)
6. ADDITIONS, VARIATIONS OR MODIFICATIONS TO TERMS AND CONDITIONS
(insert details)
_______________________________________
Signed for and on behalf of
CASE CREDIT AUSTRALIA PTY LIMITED
by its Authorised Officer
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ANNEXURE B
PROVISIONS FOR MEETINGS OF MTN HOLDERS
1. INTERPRETATION
In addition to the application of clause 1 of the Deed, in this annexure
the following applies.
(a) The following definitions apply unless the contrary intention appears.
BLOCK VOTING INSTRUCTION means a certificate issued by the Registrar
and dated, in which:
(i) the Registrar certifies that MTNs of a specified Tranche (not
being MTNs in respect of which a Voting Certificate is
outstanding in relation to the meeting specified in the
certificate or any adjournment) are registered in the Register in
the names of specified MTN Holders;
(ii) the Registrar certifies that each of the specified MTN Holders or
its duly authorised agent has instructed the Registrar that:
(A) the votes of that MTN Holder should be cast in a
particular way in relation to each resolution to be put to
the meeting or any adjournment; and
(B) no such instruction is revocable or subject to amendment
in the period from 48 hours before the meeting until the
close of the meeting or, in the case of an adjournment,
from 48 hours before the adjournment until the close of
the adjournment;
(iii) the total number and Tranche number of the MTNs are listed
distinguishing, for each resolution, between those for which
instructions have been duly given to vote in favour of the
resolution and those for which instructions have been duly given
to vote against the resolution; and
(iv) the Registrar authorises and instructs a specified person
(PROXY) to cast the vote attributable to the MTNs so listed in
accordance with the instructions referred to in (ii) and (iii)
above.
EXTRAORDINARY RESOLUTION means:
(i) a resolution adopted at a meeting of MTN Holders held in
accordance with the procedures contained in this annexure by not
less than 75% of the votes cast in respect of that resolution; or
(ii) a resolution made in writing in accordance with paragraph 19(b)
of this annexure.
ORDINARY RESOLUTION means:
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(i) a resolution adopted at a meeting of MTN Holders held in
accordance with the procedures contained in this annexure by more
than 50% of the votes cast in respect of that resolution; or
(ii) a resolution made in writing in accordance with paragraph 19(a)
of this annexure.
VOTING CERTIFICATE means a certificate issued by the Registrar and
dated, in which the Registrar certifies that:
(i) on the date of the certificate MTNs of any Tranche (not being
MTNs in respect of which a Block Voting Instruction is
outstanding in relation to the meeting specified in the Voting
Certificate or any adjournment) are registered in the Register;
and
(ii) the bearer of the certificate is entitled to attend and vote at
that meeting or any adjournment in respect of the MTNs specified
in the certificate.
(b) References to MEETING include, if there is only one MTN Holder or one
holder of an MTN of a particular Series, the attendance (as permitted
by this annexure) of that person on the day and at the place and time
specified in accordance with this annexure.
2. APPOINTMENT OF PROXY
(a) Subject to paragraph 15, an MTN Holder may by a notice in writing in
the form for the time being available from the specified office of the
Registrar (FORM OF PROXY) signed by the MTN Holder or, in the case of
a corporation, executed under its common seal or signed on its behalf
by its duly appointed attorney or a duly authorised officer of the
corporation, appoint any person (also called a PROXY) to attend and
act on that person's behalf in connection with any meeting or proposed
meeting of MTN Holders.
(b) Subject to paragraph 15, the Registrar may, at the request of MTN
Holders of all the MTNs in a Tranche, appoint a proxy for those MTN
Holders by issuing a Block Voting Instruction.
(c) A proxy (including under a Block Voting Instruction) may but need not
be an MTN Holder.
3. VALIDITY AND EFFECT OF VOTING CERTIFICATE, APPOINTMENT OF PROXY
(a) Voting Certificates, Block Voting Instructions and forms of proxy must
be valid only for so long as the relevant MTNs are duly registered in
the name of the MTN Holder certified in that document or, in the case
of a form of proxy, in the name of the appointor.
(b) Despite any other provision of this annexure, during the validity of a
Voting Certificate, Block Voting Instruction or form of proxy, the
bearer or proxy (as applicable) shall be treated as the MTN Holder for
the purposes of any meeting of MTN Holders.
4. CONVENING MEETINGS
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A meeting of MTN Holders:
(a) may be convened at any time by the Issuer; and
(b) must be promptly convened by the Issuer:
(i) if requested to do so by the Programme Manager; or
(ii) if requested to do so by MTN Holders holding in total at least
10% of the Principal Amount of all MTNs.
5. NOTICE OF MEETINGS
(a) Unless otherwise agreed in writing by each MTN Holder, at least 21
days' notice (exclusive of the day on which the notice is given and of
the day on which the meeting is held) specifying the day, time and
place of meeting must be given to MTN Holders in the manner provided
in clause 17 of the Deed. A copy of the notice must be given to the
Registrar.
(b) The notice must specify the terms of the resolutions to be proposed
and must include statements to the effect that Voting Certificates may
be obtained and proxies may be appointed until 48 hours before the
time fixed for the meeting but not after that time. The accidental
omission to give notice to, or the non-receipt of notice by, any MTN
Holder does not invalidate the proceedings at any meeting.
6. CHAIRMAN
A person (who may, but need not, be the Programme Manager or an MTN Holder)
nominated in writing by the Issuer must take the chair at every meeting. If
no such nomination is made, or if the person nominated is not present
within 15 minutes after the time appointed for the holding of the meeting
or is unable or unwilling to chair the meeting, the person or persons
present in person holding MTNs or Voting Certificates or being proxies must
choose one of their number to be chairman.
7. QUORUM
At any such meeting any one or more persons present in person holding MTNs
or Voting Certificates or being proxies representing in total a clear
majority in Principal Amount of MTNs form a quorum for the transaction of
business. No business (other than the choosing of a chairman) may be
transacted at any meeting unless the requisite quorum is present at the
commencement of business.
8. NO QUORUM PRESENT
(a) If within half an hour after the time appointed for a meeting a quorum
is not present the meeting will, if convened on the requisition of MTN
Holders, be dissolved. In any other case it will stand adjourned for
such period, not being less than 14 days nor more than 42 days, and to
such time and place, as the chairman appoints.
(b) At the adjourned meeting the quorum is one or more persons present in
person holding MTNs or Voting Certificates or being proxies and
holding or representing in total at least 25% in Principal Amount of
MTNs. If within half an hour after the time appointed
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for the adjourned meeting that quorum is not present the meeting will
again stand adjourned for such period, not being less than 7 days nor
more than 21 days, and to such time and place, as the chairman
appoints. At the further adjourned meeting the quorum is one or more
persons present in person holding MTNs or Voting Certificates or being
proxies.
9. ADJOURNMENT
The chairman may with the consent of (and must if directed by) any meeting
adjourn the meeting from time to time and from place to place but no
business may be transacted at any adjourned meeting except business which
might validly have been transacted at the meeting from which the
adjournment took place.
10. NOTICE OF ADJOURNMENT
Unless otherwise agreed in writing by each MTN Holder at least 10 days'
notice of any meeting adjourned because of lack of a quorum must be given
in the same manner as of an original meeting and such notice must state the
quorum required at such adjourned meeting. Otherwise, it is not necessary
to give any notice of an adjourned meeting.
11. PERSONS ENTITLED TO BE PRESENT
The Paying Agent, the Programme Manager, the Registrar and the Issuer
(through their respective representatives) and their respective financial
and legal advisers are entitled to attend and speak at any meeting of MTN
Holders. Otherwise, no person may attend or vote at any meeting of MTN
Holders or join with others in requesting the convening of such a meeting
unless that person is the holder of an MTN or of a Voting Certificate, or
is a proxy.
12. CASTING VOTE
In the case of equality of votes the chairman has, both on a show of hands
and on a poll, a casting vote in addition to the vote or votes (if any) to
which the chairman may be entitled as an MTN Holder, a proxy or the holder
of a Voting Certificate.
13. DELETED
14. DELETED
15. NOTICE OF PROXY
(a) Each Block Voting Instruction and each form of proxy, together (if so
required by the Issuer) with proof satisfactory to the Issuer of its
due execution, must be deposited at the specified office in Australia
of the Registrar not less than 48 hours before the time appointed for
holding the meeting. Failing that the Block Voting Instruction or form
of proxy may not be treated as valid unless the chairman of the
meeting decides otherwise before the meeting proceeds to business.
(b) A certified copy of each Block Voting Instruction or form of proxy and
satisfactory proof of due execution must, if required by the Issuer,
be produced by the proxy at the meeting. The Issuer is not obliged to
investigate or be concerned with the validity of, or the authority of
the proxy named in, any Block Voting Instruction or form of proxy.
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(b) Subject to paragraph 16, a Block Voting Instruction or a form of proxy
for a meeting, if expressed to be so, will be valid for any
adjournment of the meeting.
16. REVOCATION OR AMENDMENT OF BLOCK VOTING INSTRUCTION OR FORM OF PROXY
Any vote given in accordance with the terms of a Block Voting Instruction
or form of proxy will be valid despite the previous revocation or amendment
of the Block Voting Instruction or form of proxy or of any instructions
under which the Block Voting Instruction was executed, unless notice in
writing of that revocation or amendment is received at the specified office
of the Registrar at least 48 hours before the commencement of the meeting
or adjournment.
17. MTN HOLDER MAY VOTE IN PERSON OR BY PROXY ETC.
The MTN Holder or, in the case of joint holders, the person whose name
first appears on the Register as one of the holders, is entitled to vote in
respect of the MTN either in person or by proxy or by representative.
18. MANNERS OF VOTING AND VOTE COUNT
(a) Every question submitted to a meeting will be decided by a poll.
(b) Subject to paragraph 12, at a meeting convened for the purpose of
considering a resolution every MTN Holder or bearer of a Voting
Certificate who is present has one vote in respect of each dollar of
Principal Amount of MTNs which that person holds or is represented by
the Voting Certificate or in respect of which that person is a proxy.
(c) Without affecting the obligations of the proxies named in any Block
Voting Instruction or form of proxy, any person entitled to more than
one vote need not use all votes or cast all the votes to which that
person is entitled in the same way.
19. WRITTEN RESOLUTIONS
A resolution of MTN Holders may be passed and adopted without any meeting
being required, by an instrument in writing signed within 1 month after the
date (the RELEVANT DATE) stated in the copies of the instrument sent for
that purpose to MTN Holders:
(a) in the case of an Ordinary Resolution, by MTN Holders holding more
than 50% in Principal Amount of MTNs at the Relevant Date; or
(b) in the case of an Extraordinary Resolution, by MTN Holders holding at
least 75% in Principal Amount of MTNs at the Relevant Date.
A resolution in writing signed by MTN Holders may be contained in one
document or in several documents in like form each signed by one or more
MTN Holders. Any such instrument is effective on presentation to the
Registrar for entry in the records referred to in paragraph 22.
20. POWERS EXERCISABLE BY EXTRAORDINARY RESOLUTION OR WITH CONSENT OF MTN
HOLDERS OF SAME SERIES
The MTN Holders of MTNs of the same Series have, subject to the provisions
contained in the applicable Conditions, in addition to the powers set out
above, but without affecting any powers conferred on other persons by this
annexure:
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(a) the following powers exercisable by or with Consent of those MTN
Holders:
(i) to sanction any proposal by the Issuer for any modification,
abrogation, variation or compromise of, or arrangement in
respect of, the rights of those MTN Holders against the Issuer
whether such rights arise under those MTNs or otherwise;
(ii) to sanction the exchange or substitution for those MTNs of, or
the conversion of those MTNs into, other obligations or
securities of the Issuer or any other body corporate formed or
to be formed;
(iii) to assent to any modification of the applicable Conditions
which is proposed by the Issuer;
(iv) to waive or authorise any breach or proposed breach by the
Issuer of its obligations under the applicable Conditions;
(v) to give any authority, direction or sanction which under the
applicable Conditions is required to be given by Extraordinary
Resolution; and
(b) the following powers exercisable by Extraordinary Resolution of those
MTN Holders:
(i) to authorise any person to concur in and execute and do all
such documents, acts and things as may be necessary to carry
out and give effect to any Extraordinary Resolution;
(ii) to appoint any persons (whether MTN Holders or not) as a
committee or committees to represent the interests of the MTN
Holders of MTNs of that Series and to confer upon that
committee or committees any powers or discretions which the MTN
Holders could themselves exercise by Extraordinary Resolution.
For this purpose the provisions of this annexure apply with the necessary
modifications as though references in those provisions to MTNs and MTN
Holders are references to MTNs of the Series in question and to the MTN
Holders of those MTNs respectively.
21. RESOLUTIONS BINDING
A resolution, including an Extraordinary Resolution, passed at a meeting of
MTN Holders duly convened and held (or passed by those MTN Holders in
writing) in accordance with this annexure is binding on all MTN Holders,
whether present or not at the meeting (or having signed or not the written
resolution), and each MTN Holder is bound to give effect to it accordingly.
The passing of any such resolution is conclusive evidence that the
circumstances of such resolution justify its passing.
22. MINUTES
(a) The Registrar shall cause minutes of all proceedings at every meeting
of MTN Holders (or resolutions of MTN Holders otherwise passed in
accordance with this annexure) to be made and duly entered, within 1
month after the relevant meeting is held (or resolution otherwise
passed), in books provided for that purpose by the Issuer.
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(b) Any such minutes, if purporting to be signed by the chairman of the
meeting at which such proceedings took place or by the chairman of the
next succeeding meeting (or, where a resolution is passed otherwise
than at a meeting, if purporting to be signed by a director or
secretary of the Registrar or the Issuer), are conclusive evidence of
the matters contained in them.
(c) Until the contrary is proved, where minutes have been made, entered
and signed in that manner for a meeting or a resolution passed
otherwise than at a meeting:
(i) the meeting shall be treated as having been duly convened and
held, and all resolutions passed and other proceedings transacted
at that meeting shall be treated as having been duly passed and
transacted; and
(ii) the resolution shall be treated as having been duly passed.
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ANNEXURE C
TRANSFER AND ACCEPTANCE FORM
Case Credit Australia Pty Limited
ACN 069 132 396
To: The Registrar
Relating to the issue by Case Credit Australia Pty Limited (the ISSUER) of MTNs,
constituted by and issued under the Deed Poll dated [*] 1997 given for the
benefit of MTN Holders from time to time.
TRANSFEROR (SELLER):............................................................
Address:........................................................................
........................................................................
hereby applies to transfer to:
TRANSFEREE (PURCHASER):.........................................................
Address:........................................................................
........................................................................
the following MTN(s):
Type: ..................... (Floating/Fixed/Special Conditions)
Principal Amount:...............................................................
Redemption Date:................................................................
Interest Rate:..................................................................
Special Conditions (if applicable):.............................................
and all its property and interest in and rights to the same and to the interest
accrued thereon for the sum of:
Settlement Amount (in words):...................................................
$..................
TRANSFEROR (SELLER):............................................................
Signature................................. Date:..../..../....
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TRANSFEREE (PURCHASER):.........................................................
Signature:.............................. Date:..../..../..../
TRANSFEREE'S PAYMENT INSTRUCTIONS
Payment of interest and principal should be made (delete (a) or (b) as
appropriate):
(a) by Australian dollar cheque mailed to the address of the Transferee
specified above; or
(b) by telegraphic transfer to the following bank account.
Name of Account.................................................................
Name of Financial Institution...................................................
Branch:.........................................................................
Account No:.....................................................................
Tax File Number.................................................................
I,................................................ a director/secretary of the
Transferee, certify that the persons whose names are set out below hold the
offices set out opposite their respective names, that the signatures appearing
opposite their respective names are the true and correct signature of each
person, and that such persons are, until otherwise notified, authorised to sign
this form and any subsequent Transfer and Acceptance Form relating to any MTN
held by the Transferee.
Director/Secretary of the Transferee:...........................................
Name:.................Office:....................Signature:.....................
Name:.................Office:....................Signature:.....................
NOTES
o The Transferor and the Transferee acknowledge that transfer of the MTN(s)
specified in this Transfer and Acceptance Form shall only take effect on
the entry of the Transferee's name in the Register as the registered owner
of such MTN(s).
o The Transferee agrees to accept the MTN(s) specified in this Transfer and
Acceptance Form subject to the terms and conditions appearing in the
Register in relation to the MTN(s).
o Trustees must sign personally in accordance with relevant authority. The
Application must be completed in the name of the trustee and not in the
name of the trust.
o Where this form is executed by a corporation, it must be executed either
under common seal or under power of attorney (in which case a certified
copy of any such power of attorney must be lodged with this Transfer and
Acceptance Form).
o The Register will be closed for the purpose of determining entitlements to
interest and principal (if applicable) at 5pm (Sydney time) on the seventh
day preceding the relevant date for payment of interest and of principal
(if applicable).
REGISTRAR'S MARKING
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The Registrar certifies solely for the benefit of the Transferee that the
Transferor is inscribed in the Register as the holder of the MTN(s) specified in
this Transfer and Acceptance Form. The Registrar will not register any transfer
of such MTN(s) other than pursuant to this Transfer and Acceptance Form
before...../...../.....(the EXPIRY DATE). This certification is made by the
Registrar in its own right (and not as agent for the Issuer) and is not binding
on the Issuer. This certification expires and will be of no further effect upon
whichever is the earlier of:
(a) registration of this Transfer and Acceptance Form; or
(b) the Expiry Date.
Signature Date:...../...../.....
(Name of Signatory:............................................................)
For the Registrar
CONFORMED COPY
NEW SOUTH WALES
STAMP DUTY PAID $2
CASE CREDIT AUSTRALIA PTY LIMITED
(Issuer)
_______________________________________
A$ DOMESTIC MTN PROGRAMME
DEED POLL
CONFORMED COPY
_______________________________________
(Guaranteed by Case Credit Corporation)
- --------------------------------------------------------------------------------
T A B L E O F C O N T E N T S
- --------------------------------------------------------------------------------
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 8
2. THE MTNS 9
2.1 Creation of MTNs 9
2.2 Constitution and title 9
2.3 Types 9
2.4 Denomination 9
2.5 Status 10
2.6 Issuer to inform Registrar and Paying Agent 10
3. RIGHTS AND OBLIGATIONS OF MTN HOLDERS 10
3.1 Rights of MTN Holders 10
3.2 Deed poll 10
3.3 Enforcement 10
3.4 MTN Holders bound 11
3.5 Lodgement with Registrar 11
3.6 Incorporation of annexures and Conditions 11
3.7 Paying Agent and Programme Manager 11
4. REGISTER 11
4.1 Establish and maintain 11
4.2 Multiple MTN Holders 12
4.3 Register is paramount 12
4.4 MTN Holder change of name or address 12
4.5 Certified extracts from Register available 13
5. TRANSFERS 13
5.1 MTNs transferable 13
5.2 Method of transfer 13
5.3 Transfer and Acceptance Forms 13
5.4 Effective date of transfers 13
5.5 No fee 13
5.6 Closing of Register 14
5.7 Marking of transfer 14
5.8 Transfer on death, bankruptcy or liquidation of MTN Holder 14
5.9 Destruction 14
5.10 Deceased people 14
6. MTNs LODGED WITH AUSTRACLEAR 14
7. INTEREST ON MTNs 15
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7.1 Application 15
7.2 Accrual and payment 15
7.3 Notification of Interest Rate and Interest Amount 15
8. REDEMPTION AND PURCHASE OF MTNs 15
8.1 Redemption 15
8.2 Purchase 15
8.3 Cancellation 15
9. MANNER OF PAYMENTS 16
9.1 Payments to MTN Holders 16
9.2 When payments taken to have been made 16
9.3 Good discharge 16
9.4 Business Days 16
9.5 Paying Agent 17
10. TAXATION 17
10.1 Payments made free and clear 17
10.2 Interest withholding tax 17
10.3 Tax file number 17
11. NEGATIVE PLEDGE 17
12. EVENTS OF DEFAULT 18
12.1 Events of Default 18
12.2 Consequences of Event of Default 20
13. LIMIT FOR CLAIMS 20
14. INTEREST ON OVERDUE AMOUNTS 20
14.1 Accrual 20
14.2 Payment 20
15. AMENDMENTS 20
16. WAIVERS, REMEDIES CUMULATIVE 21
17. NOTICES 21
17.1 Notices to the Issuer, Registrar or Paying Agent 21
17.2 Notices to the MTN Holders 22
18. GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS 22
18.1 Governing law and jurisdiction 22
18.2 Service of process 22
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19. CALCULATIONS 22
1. Identification 1
2. Interest 1
3. Other interest details 1
4. Principal 2
5. Special conditions or terms 2
6. Additions, variations or modifications to terms and conditions 2