As filed with the Securities and Exchange Commission on January 29, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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Case Credit Corporation
(Exact name of registrant as specified in its charter)
Delaware 76-0394710
(State of (I.R.S. Employer
incorporation) Identification No.)
233 Lake Avenue
Racine, Wisconsin 53404
(414) 636-6011
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Richard S. Brennan
General Counsel and Secretary
Case Corporation
700 State Street, Racine, Wisconsin 53404
(414) 636-6011
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Elizabeth A. Raymond Gerard M. Meistrell
Mayer, Brown & Platt Cahill Gordon & Reindel
190 South LaSalle Street 80 Pine Street
Chicago, Illinois 60603-3441 New York, New York 10005
(312) 782-0600 (212) 701-3000
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Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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Amount Proposed Maximum Proposed Maximum Amount of
Title of Each Class of to be Offering Price Aggregate Offering Registration
Securities to be Registered Registered(1) Per Unit(2) Price(2) Fee
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Debt Securities.................. $800,000,000(3) 100% $800,000,000(3) $141,502(3)
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(1) If any Debt Securities are issued at an original issue discount, such
greater amount as shall result in an aggregate offering price to the
public which shall not exceed the amount set forth under Proposed Maximum
Aggregate Offering Price, or if Debt Securities are issued in a foreign or
composite currency, an equivalent amount of such foreign or composite
currency.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) Of the $800,000,000 of debt securities registered hereby, $291,000,000
aggregate principal amount of such securities was registered pursuant to
Registration No. 333-52725 and are unissued as of the date hereof. A
registration fee of $85,845 was previously paid with respect to such debt
securities and is not included in the amount set forth under Amount of
Registration Fee.
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus filed
as part of this Registration Statement relates to the securities registered
hereby, including the remaining unsold $291,000,000 principal amount of debt
securities previously registered by the Registrant under its Registration
Statement on Form S-3 (File No. 333-52725).
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The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
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++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is not complete and may be changed. We may +
+not sell these securities until the registration statement filed with the +
+Securities and Exchange Commission is effective. This prospectus is not an +
+offer to sell these securities and it is not soliciting an offer to buy these +
+securities in any state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to Completion, Dated January 29, 1999
PROSPECTUS
Case Credit Corporation
233 Lake Avenue
Racine, Wisconsin 53404
(414) 636-6011
$800,000,000
Debt Securities
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Case Credit will provide specific terms of these securities in supplements to
this prospectus. You should read this prospectus and any prospectus supplement
carefully before you invest.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
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The date of this prospectus is , 1999.
You should rely only on the information contained or incorporated by
reference in this prospectus or any prospectus supplement. The Company has not
authorized any other person to provide you with different information. If
anyone provides you with different or inconsistent information, you should not
rely on it. Case Credit is not making an offer to sell these securities in any
jurisdiction where the offer or sale is not permitted. You should assume that
the information appearing in this prospectus or any prospectus supplement, as
well as information the Company has previously filed with the Securities and
Exchange Commission (the "SEC") and incorporated by reference, is accurate as
of the date on the front of those documents only. Case Credit's business,
financial condition, results of operations and prospects may have changed since
such dates.
WHERE YOU CAN FIND MORE INFORMATION
Case Credit files reports and other information with the SEC. Case Credit's
SEC filings are available over the Internet at the SEC's web site at
http://www.sec.gov. You may also read and copy any document Case Credit files
at the SEC's public reference room at 450 Fifth Street, N.W., Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 to obtain information on the
operation of the public reference room.
The Company has filed a registration statement on Form S-3 (the "Registration
Statement") relating to the debt securities with the SEC under the Securities
Act of 1933 (the "Securities Act"). For further information on Case Credit
Corporation and the debt securities, you should refer to the Registration
Statement and its exhibits. This prospectus and any related prospectus
supplement summarizes material provisions of contracts and other documents that
the Company refers you to. Since the prospectus and any related prospectus
supplement may not contain all the information that you may find important, you
should review the full text of these documents. The Company has included copies
of these documents as exhibits to the Registration Statement or incorporated
them by reference into this prospectus.
INCORPORATION OF INFORMATION CASE CREDIT FILES WITH THE SEC
Case Credit is "incorporating by reference" certain information it files with
the SEC into this prospectus, which means:
. incorporated documents are considered part of this prospectus;
. the Company can disclose important information to you by referring you to
those documents; and
. information that the Company files with the SEC will automatically update
and supersede this prospectus.
The Company incorporates by reference the documents listed below, which the
Company filed with the SEC under the Securities Exchange Act of 1934 (the
"Exchange Act"):
. Annual Report on Form 10-K for the year ended December 31, 1997;
. Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998,
June 30, 1998 and September 30, 1998; and
. Current Report on Form 8-K dated October 15, 1998.
The Company also incorporates by reference each of the following documents
that the Company will file with the SEC after the date of the initial filing of
the Registration Statement with the SEC and prior to effectiveness of the
Registration Statement or after the date of this prospectus but before the end
of the offering of the debt securities:
. Reports filed under Sections 13(a) and (c) of the Exchange Act;
. Definitive proxy or information statements filed under Section 14 of the
Exchange Act in connection with any subsequent stockholders' meeting; and
2
. Any reports filed under Section 15(d) of the Exchange Act.
You may request a copy of any filings referred to above, at no cost, by
writing or telephoning the Company at the following address:
Case Credit Corporation
Attention: Kevin J. Hallagan, Vice President and Secretary
700 State Street
Racine, Wisconsin 53404
Telephone: (414) 636-6011
FORWARD-LOOKING STATEMENTS
The Company has made forward-looking statements in this prospectus, the
accompanying prospectus supplement and in the documents incorporated by
reference in this prospectus. Forward-looking statements involve risks and
uncertainties that could cause actual results to differ materially from those
in the forward-looking statements. Forward-looking statements are statements
(other than statements of historical facts) that address activities, events or
developments that the Company expects or anticipates will or may occur in the
future, including such items as business strategy and measures to implement
strategy, competitive strengths, goals, expansion and growth of the Company's
business and operations, plans and references to future success. Forward-
looking statements also include any other statements that include words such as
"anticipate," "believe," "plan," "estimate," "expect," "intend" and other
similar expressions.
Forward-looking statements are based on certain assumptions and analyses the
Company has made in light of its experience and its perception of historical
trends, current conditions, expected future developments and other factors the
Company believes are appropriate. Whether actual results and developments will
conform with the Company's expectations and predictions is subject to a number
of risks and uncertainties, including, among others, the following:
. general economic, market or business conditions;
. conditions in and policies of the agricultural, construction, housing and
credit industries;
. risks associated with investments and operations in foreign jurisdictions
and any future international expansion, including those related to
economic, political and regulatory policies of local governments and laws
or policies of the United States and other countries;
. changes in governmental laws and regulations affecting lending,
borrowing, taxes and other matters impacting the Company; and
. the potential impacts of increased competition in the markets in which
the Company operates.
All of the forward-looking statements made in this prospectus and the
accompanying prospectus supplement are qualified by these cautionary
statements, and there can be no assurance that the actual results or
developments the Company has anticipated will be realized. Even if the results
and developments in the Company's forward-looking statements are substantially
realized, there is no assurance that they will have the expected consequences
to or effects on the Company or the Company's business or operations.
Further information concerning factors that could significantly impact
expected results is included in (a) the "Management's Analysis of Results of
Operations" section of the Company's Quarterly Reports on Form 10-Q as filed
with the SEC for the quarters ended March 31, 1998, June 30, 1998 and September
30, 1998, (b) the Company's Current Reports on Form 8-K as filed with the SEC,
(c) the following sections of the Company's Form 10-K Annual Report for the
year ended December 31, 1997, as filed with the SEC: Business, Legal
Proceedings and Management's Analysis of Results of Operations and (d)
documents the Company files with the SEC under the Exchange Act that are
incorporated by reference in this prospectus.
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THE COMPANY
Case Credit Corporation ("Case Credit" or the "Company") is a subsidiary of
Case Capital Corporation ("Case Capital"). Case Capital is a subsidiary of Case
Corporation ("Case"). Case Capital was recently created to provide broad-based
financial services for the global marketplace. Case Credit and its operating
subsidiaries and joint ventures provide and administer financing for the retail
purchase or lease of new and used Case and other agricultural and construction
equipment. Case Credit offers various types of retail financing to end-use
customers to facilitate the sale or lease of Case products in the United
States, Canada, Australia, Europe and Uzbekistan. The Company's business
principally involves purchasing retail installment sales contracts from Case
dealers. In addition, the Company facilitates and finances the sale of
insurance products to retail customers, provides financing for Case dealers and
rental equipment yards and also provides other retail financing programs in
North America. In North America, Case Credit's private-label credit card is
used by customers to purchase parts, service, rentals and small wholegoods from
Case dealers. Case Credit also provides financing options to dealers for a
variety of purposes, including inventory, working capital, real estate
acquisitions, construction and remodeling, business acquisitions, dealer
systems and service and maintenance equipment.
The Company's business is highly dependent on the ability of Case and its
dealers to generate sales and leasing activity, the willingness of customers to
enter into financing transactions with the Company and the availability of
funds to the Company to finance such transactions. The ability of Case and its
dealers to sell agricultural and construction equipment and thereby generate
retail receivables is affected by numerous factors, including:
. the general level of activity in the agricultural and construction
industries;
. the rate of North American agricultural production and demand;
. weather conditions;
. commodity prices;
. consumer confidence;
. government subsidies for the agricultural sector;
. prevailing levels of construction (especially housing starts); and
. levels of total industry capacity and equipment inventory.
In addition, the Company's business is affected by changes in market interest
rates, which in turn are related to general economic and capital market
conditions, demand for credit, inflation, governmental policies and other
factors.
The Company obtains funding for its operations primarily from the issuance of
commercial paper, bank revolving credit facilities, medium-term notes and
public debt, the issuance of securities in asset-backed securitization ("ABS")
transactions, earnings retained in the business, and advances and equity
capital from Case. The Company sells substantial amounts of retail receivables
in ABS transactions that typically involve the sale of a pool of retail
installment sales contracts to limited-purpose business trusts or similar
securitization entities. The Company remains as servicer of these receivables,
for which it is typically paid a servicing fee.
The Company continues to expand its financing business by providing retail
and dealer financing in new geographic regions and for a broader range of
equipment, and by offering new financing products to Case dealers, end-use
customers and to others. The Company recently formed the division Soris
Financial ("Soris") to serve its diversified client base in the agricultural,
construction, industrial mobile and other equipment industries. Soris offers a
broad range of retail and wholesale financing products, including equipment and
commercial loans and leases for North American manufacturers, dealers,
distributors and their customers. Soris also facilitates and finances the sale
of insurance products to retail customers.
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CASE CORPORATION
Case is a leading worldwide designer, manufacturer, marketer and distributor
of farm equipment and light- to medium-sized construction equipment. Case's
market position is particularly significant in several product categories
including loader/backhoes, skid steer loaders, large, high-horsepower farm
tractors and self-propelled combines.
RELATIONSHIP WITH CASE CORPORATION
Case provides the Company with certain operational and financial support that
is integral to the conduct of the Company's business. Presented below is a
description of the support agreement between the Company and Case. Other
operational and financial support provided to the Company by Case is described
in reports filed by the Company with the SEC pursuant to the Exchange Act.
The Company and Case have entered into a support agreement (the "Support
Agreement") which provides, among other things, that Case:
(1) will remain, directly or indirectly, the sole owner of all of the
voting stock of the Company; and
(2) will make quarterly payments to the Company to the extent necessary
to ensure that the Company's consolidated pre-tax earnings (as defined in
the Support Agreement) available for fixed charges equal at least 1.10
times its fixed charges (as defined in the Support Agreement) in all
periods composed of four consecutive fiscal quarters.
The Support Agreement provides that Case is not directly or indirectly
guaranteeing any indebtedness, liability or obligation of the Company. The
Support Agreement may be modified or amended by the parties thereto or
terminated by either party upon 30 days' prior written notice to the other
party, with copies of any such amendment or notice being sent to Moody's
Investors Service, Inc. ("Moody's"), Standard & Poor's Ratings Group ("S&P")
and any other nationally recognized statistical rating organizations then
rating Case Credit debt, provided that at least one of the following conditions
is met:
(a) Moody's and S&P confirm in writing that their ratings on Case Credit
debt would not be downgraded or withdrawn as a result of such modification,
amendment or termination; or
(b) the modification, amendment or notice of termination provides that
the Support Agreement will continue in effect with respect to debt of Case
Credit outstanding on the effective date of the modification, amendment or
termination; or
(c) the holders of at least a majority of the aggregate unpaid principal
amount of all outstanding debt of Case Credit with an original maturity in
excess of 270 days consent in writing, so long as the holders of debt of
Case Credit having an original maturity of 270 days or less shall continue
to have the benefit of the Support Agreement until the maturity of such
debt.
For purposes of the Support Agreement, no portion of any debt is considered to
be "outstanding" if such debt is deemed to be discharged and not outstanding in
accordance with the indenture or other governing instrument defining the rights
of the holders of such debt.
The calculation of pre-tax earnings available for fixed charges under the
Support Agreement differs from the calculation of the ratio of earnings to
fixed charges under SEC rules. Under the Support Agreement, all cash
extraordinary non-recurring items of income or expense (other than cash debt
defeasance costs) are included. Under SEC rules, these items are excluded.
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USE OF PROCEEDS
Except as otherwise set forth in the prospectus supplement relating to a
specific issuance of debt securities, the net proceeds to be received by the
Company from the sale of the debt securities will be used to fund the Company's
finance programs (including, without limitation, retail finance programs
offered by Case Credit to end-use customers and dealer rental equipment finance
programs offered by Case Credit) and for other corporate purposes, including
the repayment of indebtedness. Pending such use, the net proceeds may be
temporarily invested in short-term instruments.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for Case Credit is set forth below for
the periods indicated.
Nine
Months
Ended Year Ended December 31
September 30, --------------------------------------------------------------------------
1998 1997 1996 1995 1994 1993
------------- ---- ---- ---- ---- ----
1.92x 2.23x 2.80x 4.34x 2.57x 1.82x
For the computation of the ratio of earnings to fixed charges, "earnings" has
been calculated by adding income (loss) before taxes, cumulative effect of
changes in accounting principles and extraordinary loss, interest expense,
fixed charges of unconsolidated subsidiaries, the portion of rentals
representative of an interest factor and amortization of capitalized debt
expense. Fixed charges consist of interest expense, fixed charges of
unconsolidated subsidiaries, the portion of rentals representative of an
interest factor and amortization of capitalized debt expense.
The calculation of pre-tax earnings available for fixed charges under the
Support Agreement differs from the calculation of the ratio of earnings to
fixed charges under SEC rules as set forth above. Under the Support Agreement,
all cash extraordinary non-recurring items of income or expense (other than
cash debt defeasance costs) are included. Under SEC rules, these items are
excluded.
DESCRIPTION OF SECURITIES
The Securities will be issued under an Indenture (the "Indenture"), between
the Company and The Bank of New York, as Trustee (the "Trustee"), dated as of
October 1, 1997, a copy of which is incorporated by reference into the
Registration Statement. The following summaries of certain provisions of the
Indenture do not purport to be complete and are subject to, and are qualified
in their entirety by reference to, all the provisions of the Indenture,
including the definitions therein of certain terms. Wherever particular
sections or defined terms of the Indenture are referred to, such sections or
defined terms are incorporated herein by reference. As used in this section or
in any description of the Indenture, references to "Case Credit" or "the
Company" refer to Case Credit Corporation and not its subsidiaries.
The following sets forth certain general terms and provisions of the
Securities. The particular terms of the Securities offered by any prospectus
supplement (the "Offered Securities") will be described in the prospectus
supplement relating to such Offered Securities (the "Applicable Prospectus
Supplement").
General
The Indenture does not limit the amount of securities that may be issued
thereunder. Securities may be issued under the Indenture from time to time in
one or more series. The Securities will be unsecured obligations of the
Company. They will rank equally and ratably with Case Credit's other unsecured
obligations.
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Unless otherwise indicated in the Applicable Prospectus Supplement,
principal, premium, if any, and interest on the Securities will be payable, and
the transfer of Securities will be registrable, at the office or agency to be
maintained by the Company in New York, New York, and at any other office or
agency maintained by the Company for such purpose. The Securities will be
issued only in fully registered form without coupons and, unless otherwise
indicated in the Applicable Prospectus Supplement, in denominations of $1,000
and integral multiples thereof. No service charge will be made for any
registration of transfer or exchange of the Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge imposed in connection therewith.
The Applicable Prospectus Supplement will describe the following terms of the
Offered Securities:
(1) the title of the Offered Securities;
(2) any limit on the aggregate principal amount of the Offered Securities;
(3) the person to whom any interest on the Offered Securities will be
payable, if other than the person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest;
(4) the date or dates on which the principal of the Offered Securities is
payable;
(5) the rate or rates (which may be fixed or variable) at which the Offered
Securities will bear interest, if any, or the method by which such rate or
rates will be determined, the date or dates from which any such interest will
accrue, the Interest Payment Dates on which any such interest will be payable
and the Regular Record Date for the interest payable on any Interest Payment
Date;
(6) the place or places where the principal of and any premium and interest
on the Offered Securities will be payable;
(7) the period or periods within which, the price or prices at which and the
terms and conditions upon which the Offered Securities may be redeemed, in
whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem, purchase or repay the
Offered Securities pursuant to any sinking fund or analogous provisions or at
the option of a Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon which the Offered
Securities will be redeemed, purchased or repaid, in whole or in part, pursuant
to such obligation;
(9) if other than denominations of $1,000 and any integral multiple thereof,
the denominations in which the Offered Securities shall be issuable;
(10) the currency, currencies or currency units in which payment of the
principal of and any premium and interest on any Offered Securities will be
payable if other than the currency of the United States of America;
(11) if the amount of payments of principal of or any premium or interest on
any Offered Securities may be determined with reference to an index or formula,
the manner in which such amounts will be determined;
(12) if the principal of or any premium or interest on any Offered Securities
is to be payable, at the election of the Company or a Holder thereof, in one or
more currencies or currency units other than that or those in which the Offered
Securities are stated to be payable, the currency, currencies or currency units
in which payment of the principal of and any premium and interest on the
Offered Securities as to which such election is made will be payable, and the
periods within which and the terms and conditions upon which such election is
to be made;
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(13) the applicability, if any, of the provisions described under "Defeasance
and Covenant Defeasance;"
(14) whether the Offered Securities will be issuable, in whole or in part, in
the form of one or more Book-Entry Securities as described under "--Book-Entry
Securities," and, in such case, the depository appointed by the Company with
respect to the Offered Securities and the circumstances under which the Book-
Entry Security may be registered for transfer or exchange or authenticated and
delivered in the name of a person other than the Depository or its nominee;
(15) if other than the principal amount thereof, the portion of the principal
amount of the Offered Securities which will be payable upon declaration of
acceleration of the Maturity thereof; and
(16) any other terms of the Offered Securities.
The Securities may be issued as Original Issue Discount Securities to be
offered and sold at a substantial discount below their stated principal amount.
Federal income tax consequences and other special considerations applicable to
Original Issue Discount Securities and any Securities treated as having been
issued with original issue discount for Federal income tax purposes will be
described in the Applicable Prospectus Supplement. "Original Issue Discount
Securities" means any Security which provides for an amount less than the
principal amount thereof to be due and payable upon the declaration of
acceleration of the Maturity thereof upon the occurrence of an Event of Default
and the continuation thereof.
The Indenture does not contain covenants or other provisions designed to
afford holders of the Securities protection in the event of a highly leveraged
transaction, change in credit rating or other similar occurrence. See
"Relationship With Case Corporation" concerning Case's obligation to retain
ownership of all of the voting stock of the Company and Case's obligation to
make support payments to the Company under certain circumstances.
Book-Entry Securities
Unless otherwise provided in the Applicable Prospectus Supplement, the
Securities will be represented by one or more certificates (the "Global
Securities"). The Global Security representing Securities will be deposited
with, or on behalf of, The Depository Trust Company ("DTC"), or other successor
depository appointed by the Company (DTC or such other depository being the
"Depository") and registered in the name of the Depository or its nominee.
Unless otherwise provided in the Applicable Prospectus Supplement, Securities
will not be issued in definitive form. If the aggregate principal amount of any
issue exceeds $200 million, one certificate will be issued with respect to each
$200 million of principal amount and an additional certificate will be issued
with respect to any remaining principal amount of such issue.
DTC is a limited purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participants ("Participants") deposit with DTC. DTC
also facilitates the settlement among Participants of securities transactions,
such as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Direct Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations. DTC is owned by a number of its
Direct Participants and by the New York Stock Exchange, Inc., the American
Stock Exchange, Inc., and the National Association of Securities Dealers, Inc.
Access to DTC's book-entry system is also available to others, such as
securities brokers and dealers, banks and trust companies that clear through or
maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The rules applicable to DTC and its
Participants are on file with the SEC.
8
Upon the issuance by the Company of Securities represented by a Global
Security, purchases of Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Securities on
DTC's records. The ownership interest of each actual purchaser of each Security
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Participants acting on behalf of Beneficial Owners. Beneficial Owners will
not receive certificates representing their ownership interests in Securities,
except in the event that use of the book-entry system for the Securities is
discontinued. The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
the Global Security.
So long as the Depository for the Global Security, or its nominee, is the
registered owner of the Global Security, the Depository or its nominee, as the
case may be, will be considered the sole owner or holder of the Securities
represented by such Global Security for all purposes under the Indenture.
Except as provided below, owners of beneficial interests in Securities
represented by the Global Security will not be entitled to have Securities
represented by such Global Security registered in their names, will not receive
or be entitled to receive physical delivery of Securities in definitive form
and will not be considered the owners or holders thereof under the Indenture.
To facilitate subsequent transfers, all Securities deposited by Participants
with DTC are registered in the name of DTC's partnership nominee, Cede & Co.
The deposit of Securities with DTC and their registration in the name of Cede &
Co. effect no change in beneficial ownership. DTC has no knowledge of the
actual Beneficial Owners of the Securities; DTC's records reflect only the
identity of the Direct Participants to whose accounts such Securities are
credited, which may or may not be the Beneficial Owners. The Participants will
remain responsible for keeping account of their holdings on behalf of their
customers. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Neither DTC nor Cede & Co. will consent or vote with respect to Securities.
Under its usual procedures, DTC mails an Omnibus Proxy to the Company as soon
as possible after the record date. The Omnibus Proxy assigns Cede & Co.'s
consenting or voting rights to those Direct Participants to whose accounts the
Securities are credited on the record date (identified in a listing attached to
the Omnibus Proxy).
Payments of principal, of premium, if any, and interest on the Securities
represented by the Global Security registered in the name of DTC or its nominee
will be made by the Company through the Trustee under the Indenture or a paying
agent (the "Paying Agent"), which may also be the Trustee under the Indenture,
to DTC or its nominee, as the case may be, as the registered owner of the
Global Security. Neither the Company, the Trustee, nor the Paying Agent will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests of the Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
The Company has been advised that DTC, upon receipt of any payment of
principal, premium, if any, and interest in respect of a Global Security, will
credit Direct Participants' accounts on the payable date in accordance with
their respective holdings shown on DTC's records unless DTC has reason to
believe that it will not receive payment on the payable date. Payments by
Participants to Beneficial Owners will be governed by standing instructions and
customary practices, as is the case with securities held for the accounts of
customers in bearer form or registered in "street name," and will be the
responsibility of such Participant and not of DTC, the Paying Agent or the
Company, subject to any statutory or regulatory requirements as may be
9
in effect from time to time. Payment of principal, premium, if any, and
interest to DTC is the responsibility of the Company or the Paying Agent,
disbursement of such payments to Direct Participants shall be the
responsibility of DTC, and disbursement of such payments to the Beneficial
Owners shall be the responsibility of Direct and Indirect Participants.
If the Depository with respect to a Global Security is at any time unwilling
or unable to continue as Depository and a successor Depository is not appointed
by the Company within 90 days, the Company will issue certificated notes in
exchange for the Securities represented by such Global Security.
The Company has been informed by DTC that its management is aware that some
computer applications, systems, and the like for processing data ("Systems")
that are dependent upon calendar dates, including dates before, on, and after
January 1, 2000, may encounter "Year 2000 problems." The Company has also been
informed by DTC that its has informed its Participants and other members of the
financial community (the "Industry") that it has developed and is implementing
a program so that its Systems, as the same relate to the timely payments of
distributions (including principal and income payments) to securityholders,
book-entry deliveries, and settlement of trades within DTC ("DTC Services"),
continue to function appropriately. According to DTC, this program includes a
technical assessment and a remediation plan, each of which is complete.
Additionally, DTC has informed the Company that its plan includes a testing
phase, which is expected to be completed within appropriate time frames.
However, the Company has been informed by DTC that its ability to perform
properly its services is also dependent upon other parties, including but not
limited to issuers and their agents, as well as third party vendors from whom
DTC licenses software and hardware, and third party vendors on whom DTC relies
for information or the provisions of services, including telecommunications and
electrical utility service providers, among others. DTC has informed the
Company that it is contacting (and will continue to contact) third party
vendors from whom DTC acquires services to: (a) impress upon them the
importance of such services being Year 2000 compliant; and (b) determine the
extent of their efforts for Year 2000 remediation (and, as appropriate,
testing) of their services. In addition, DTC has informed the Company that it
is in the process of developing such contingency plans as it deems appropriate.
According to DTC, the foregoing information with respect to DTC has been
provided to the Industry for informational purposes only and is not intended to
serve as a representation, warranty, or contract modification of any kind.
The information in this section concerning the Depository and the
Depository's book-entry system has been obtained from sources that the Company
believes to be reliable, but the Company takes no responsibility for the
accuracy thereof.
Certain Covenants of the Company
Limitations on Secured Funded Debt. The Indenture provides that the Company
will not, nor will it permit any Restricted Subsidiary to, incur, issue,
assume, guarantee or create any Secured Funded Debt, without effectively
providing that the Outstanding Securities (as defined below) (together with, if
the Company shall so determine, any other Indebtedness of the Company or such
Restricted Subsidiary then existing or thereafter created which is not
subordinated to the Outstanding Securities) will be secured equally and ratably
with (or prior to) such Secured Funded Debt.
This limitation is not applicable if, after giving effect to such Secured
Funded Debt, the sum of the aggregate amount of all outstanding Secured Funded
Debt of the Company and Restricted Subsidiaries would not exceed an amount
equal to the sum of (i) $20 million and (ii) 15% of Consolidated Net Tangible
Assets.
Furthermore, this limitation on Secured Funded Debt does not apply to, and
there will be excluded from Secured Funded Debt in any computation under such
restriction, Funded Debt secured by:
10
(1) Liens on real or physical property of any corporation existing at the
time such corporation becomes a Subsidiary;
(2) Liens on real or physical property existing at the time of acquisition
thereof or incurred within 180 days of the time of acquisition thereof
(including, without limitation, acquisition through merger or consolidation) by
the Company or any Restricted Subsidiary;
(3) Liens on real or physical property acquired (or constructed) after the
date of the Indenture by the Company or any Restricted Subsidiary and created
prior to, at the time of, or within 270 days after such acquisition (including,
without limitation, acquisition through merger or consolidation) (or the
completion of such construction or commencement of commercial operation of such
property, whichever is later) to secure or provide for the payment of all or
any part of the purchase price (or the construction price) thereof;
(4) Liens in favor of the Company or any Restricted Subsidiary;
(5) Liens in favor of the United States of America, any State thereof or the
District of Columbia, or any agency, department or other instrumentality
thereof, to secure partial, progress, advance or other payments pursuant to any
contract or provisions of any statute;
(6) Liens incurred or assumed in connection with an issuance of revenue bonds
the interest on which is exempt from Federal income taxation pursuant to
Section 103(b) of the Internal Revenue Code of 1986, as amended;
(7) Liens securing the performance of any contract or undertaking not
directly or indirectly in connection with the borrowing of money, the obtaining
of advances or credit or the securing of Funded Debt, if made and continuing in
the ordinary course of business;
(8) Liens incurred (no matter when created) in connection with the Company's
or a Restricted Subsidiary's engaging in leveraged or single-investor lease
transactions; provided, however, that the instrument creating or evidencing any
borrowings secured by such Lien will provide that such borrowings are payable
solely out of the income and proceeds of the property subject to such Lien and
are not a general obligation of the Company or such Restricted Subsidiary;
(9) Liens under workers' compensation laws, unemployment insurance laws or
similar legislation, or good faith deposits in connection with bids, tenders,
contracts or deposits to secure public or statutory obligations of the Company
or any Restricted Subsidiary, or deposits of cash or obligations of the United
States of America to secure surety, replevin and appeal bonds to which the
Company or any Restricted Subsidiary is a party or in lieu of such bonds, or
pledges or deposits for similar purposes in the ordinary course of business, or
Liens imposed by law, such as laborers' or other employees', carriers',
warehousemen's, mechanics', materialmen's and vendors' Liens and Liens arising
out of judgments or awards against the Company or any Restricted Subsidiary
with respect to which the Company or such Restricted Subsidiary at the time
shall be prosecuting an appeal or proceedings for review and with respect to
which it shall have secured a stay of execution pending such appeal or
proceedings for review, or Liens for taxes not yet subject to penalties for
nonpayment or the amount or validity of which is being in good faith contested
by appropriate proceedings by the Company or any Restricted Subsidiary, as the
case may be, or minor survey exceptions, minor encumbrances, easements or
reservations of, or rights of others for, rights-of-way, sewers, electric
lines, telegraph and telephone lines and other similar purposes, or zoning or
other restrictions or Liens as to the use of real properties, which Liens,
exceptions, encumbrances, easements, reservations, rights and restrictions do
not, in the opinion of the Company, in the aggregate materially detract from
the value of said properties or materially impair their use in the operation of
the business of the Company and its Restricted Subsidiaries;
(10) Liens incurred to finance all or any portion of the cost of
construction, alteration or repair of any real or physical property and
improvements thereto prior to or within 270 days after completion of such
construction, alteration or repair;
(11) Liens incurred (no matter when created) in connection with a
Securitization Transaction;
11
(12) Liens on property (or any Receivable arising in connection with the
lease thereof) acquired by the Company or a Restricted Subsidiary through
repossession, foreclosure or like proceeding and existing at the time of the
repossession, foreclosure, or like proceeding;
(13) Liens on deposits of the Company or a Restricted Subsidiary with banks
(in the aggregate, not exceeding $50 million), in accordance with customary
banking practice, in connection with the providing by the Company or a
Restricted Subsidiary of financial accommodations to any Person in the ordinary
course of business;
(14) Liens outstanding on the date of the Indenture; or
(15) any extension, renewal, refunding or replacement of the foregoing.
"Consolidated Net Tangible Assets" means, at any date, the total assets
appearing on the most recent consolidated balance sheet of the Company and
Restricted Subsidiaries as at the end of the fiscal quarter of the Company
ending not more than 135 days prior to such date, prepared in accordance with
generally accepted accounting principles, less (a) all current liabilities (due
within one year) as shown on such balance sheet, (b) applicable reserves, (c)
investments in and advances to Securitization Subsidiaries and Subsidiaries of
Securitization Subsidiaries that are consolidated on the consolidated balance
sheet of the Company and its Subsidiaries, and (d) Intangible Assets and
liabilities relating thereto.
"Funded Debt" means (a) any indebtedness of the Company or a Restricted
Subsidiary maturing more than 12 months after the time of computation thereof,
(b) guarantees by the Company or a Restricted Subsidiary of Funded Debt or of
dividends of others (except guarantees in connection with the sale or discount
of accounts receivable, trade acceptances and other paper arising in the
ordinary course of business), (c) in the case of any Restricted Subsidiary all
preferred stock of such Restricted Subsidiary, and (d) all Capital Lease
Obligations (as defined in the Indenture) of the Company or a Restricted
Subsidiary.
"Indebtedness" means, at any date, without duplication, (a) all obligations
for borrowed money of the Company or a Restricted Subsidiary or any other
indebtedness of the Company or a Restricted Subsidiary, evidenced by bonds,
debentures, notes or other similar instruments, and (b) Funded Debt, except
such obligations and other indebtedness of the Company or a Restricted
Subsidiary of the Company and Funded Debt, if any, incurred as a part of a
Securitization Transaction.
"Intangible Assets" means, at any date, the value (net of any applicable
reserves) as shown on or reflected in the most recent consolidated balance
sheet of the Company and the Restricted Subsidiaries as at the end of the
fiscal quarter of the Company ending not more than 135 days prior to such date,
prepared in accordance with generally accepted accounting principles, of: (a)
all trade names, trademarks, licenses, patents, copyrights, service marks,
goodwill and other like intangibles; (b) organizational and development costs;
(c) deferred charges (other than prepaid items, such as insurance, taxes,
interest, commissions, rents, deferred interest waiver, compensation and
similar items and tangible assets being amortized); and (d) unamortized debt
discount and expense, less unamortized premium.
"Liens" means pledges, mortgages, security interests and other liens,
including purchase money liens, on any property of the Company or any
Restricted Subsidiary which secure Secured Funded Debt.
"Outstanding Securities" means all Securities previously authenticated and
delivered under the Indenture other than (a) Securities that have been
canceled, (b) Securities for whose payment or redemption money in the necessary
amount has been deposited with the Trustee or any Paying Agent and (c)
Securities that have been defeased pursuant to section 13.2 of the Indenture.
In determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver, Securities owned by the Company are
deemed not to be outstanding and special rules under the Indenture are
applicable to Original Issue Discount Securities and Securities not denominated
in U.S. Dollars.
12
"Receivables" means any right of payment from or on behalf of any obligor,
whether constituting an account, chattel paper, instrument, general intangible
or otherwise, arising, either directly or indirectly, from the financing by the
Company or any Subsidiary of the Company of property or services, and monies
due thereunder, security interests in the property and services financed
thereby and any and all other related rights.
"Restricted Subsidiary" means each Subsidiary of the Company other than
Securitization Subsidiaries and Subsidiaries of Securitization Subsidiaries.
"Secured Funded Debt" means Funded Debt of the Company which is secured by
any pledge, or mortgage, security interest or other lien on any property
(whether owned on the date of the Indenture or thereafter created) of the
Company or of a Restricted Subsidiary.
"Securities" means any indebtedness of the Company issued under the
Indenture.
"Securitization Subsidiary" means a Subsidiary of the Company (a) which is
formed for the purpose of effecting one or more Securitization Transactions and
engaging in other activities reasonably related thereto and (b) as to which no
portion of the indebtedness or any other obligations of which (1) is guaranteed
by the Company or any Restricted Subsidiary, or (2) subjects any property or
assets of the Company or any Restricted Subsidiary, directly or indirectly,
contingently or otherwise, to any lien, other than pursuant to representations,
warranties and covenants (including those related to servicing) entered into in
the ordinary course of business in connection with a Securitization Transaction
and inter-company notes and other forms of capital or credit support relating
to the transfer or sale of Receivables or asset-backed securities to such
Securitization Subsidiary and customarily necessary or desirable in connection
with such transactions.
"Securitization Transaction" means any transaction or series of transactions
that have been or may be entered into by the Company or any of its Subsidiaries
in connection with or reasonably related to a transaction or series of
transactions in which the Company or any of its Subsidiaries may sell, convey
or otherwise transfer to (a) a Securitization Subsidiary or (b) any other
Person, or may grant a security interest in, any Receivables or asset-backed
securities or interest therein (whether such Receivables or securities are then
existing or arising in the future) of the Company or any of its Subsidiaries,
and any assets related thereto, including, without limitation, all security
interests in the property or services financed thereby, the proceeds of such
Receivables or asset-backed securities and any other assets which are sold or
in respect of which security interests are granted in connection with
securitization transactions involving such assets.
"Subsidiary" means any corporation of which at least a majority of the
outstanding stock, which under ordinary circumstances (not dependent upon the
happening of a contingency) has voting power to elect a majority of the board
of directors of such corporation (or similar management body), is owned
directly or indirectly by the Company or by one or more Subsidiaries of the
Company, or by the Company and one or more Subsidiaries.
Events of Default
Any one of the following events will constitute an Event of Default under the
Indenture with respect to Securities of any series:
(1) failure to pay any interest on any Security of that series when due,
continued for 30 days;
(2) failure to pay principal of or any premium on any Security of that series
when due;
(3) failure to deposit any sinking fund or other payment, when due, in
respect of any Security of that series;
(4) failure to perform, or breach of, any other covenant or warranty of the
Company in the Indenture (other than a covenant included in the Indenture
solely for the benefit of a series of Securities thereunder other than that
series) continued for 60 days after written notice as provided in the
Indenture;
13
(5) certain events in bankruptcy, insolvency or reorganization of the
Company;
(6) a default or defaults under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
Indebtedness (including the Indenture), whether such Indebtedness exists at the
date of the Indenture or shall thereafter be created, which default or defaults
shall have resulted in such Indebtedness, in an aggregate principal amount
exceeding $60 million, individually or in the aggregate, having been declared
due and payable prior to the date on which it would otherwise have become due
and payable, without such Indebtedness having been discharged, or such
acceleration having been rescinded or annulled, or there having been deposited
in trust a sum of money sufficient to discharge in full such Indebtedness,
within a period of 30 days after there shall have been given, by registered
mail, to the Company by the Trustee or to the Company and the Trustee by the
Holder or Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of such series a written notice specifying such default
and requiring the Company to cause such Indebtedness to be discharged, cause to
be deposited in trust a sum sufficient to discharge in full such Indebtedness
or cause such acceleration to be rescinded or annulled; or
(7) any other Event of Default provided with respect to Securities of that
series.
If any Event of Default with respect to the Securities of any series at the
time Outstanding occurs and is continuing, either the Trustee or the Holders of
at least 25% in aggregate principal amount of the Outstanding Securities of
that series may declare the principal amount (or, if the Securities of that
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms thereof) of all the Securities of that
series to be due and payable immediately. At any time after a declaration of
acceleration with respect to Securities of any series has been made, but before
a judgment or decree based on acceleration has been obtained, the Holders of a
majority in aggregate principal amount of Outstanding Securities of that series
may, under certain circumstances, rescind and annul such acceleration.
You should review the Applicable Prospectus Supplement relating to any series
of Offered Securities that are Original Issue Discount Securities for the
particular provisions relating to acceleration of the Stated Maturity of a
portion of the principal amount of such series of Original Issue Discount
Securities upon the occurrence of an Event of Default and the continuation
thereof.
The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable indemnity. Subject to such provisions for the
indemnification of the Trustee and to certain other conditions, the Holders of
a majority in aggregate principal amount of the Outstanding Securities of any
series will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Securities of that
series.
No Holder of any series of Securities will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
(a) such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default, (b) the Holders of at least 25% in principal
amount of the Outstanding Securities of that series shall have made written
request, and offered reasonable indemnity, to the Trustee to institute such
proceeding as trustee, and (c) the Trustee shall not have received from the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of that series a direction inconsistent with such request and shall
have failed to institute such proceeding within 60 days. However, such
limitations do not apply to a suit instituted by a Holder of a Security for
enforcement of payment of the principal of and premium, if any, or interest on
such Security on or after the respective due dates expressed in such Security.
The Company is required to furnish to the Trustee annually a statement as to
the performance by the Company of certain of its obligations under the
Indenture and as to any default in such performance.
14
Modification and Waiver
Modifications and amendments of the Indenture may be made by the Company and
the Trustee with the consent of the Holders of not less than the majority in
aggregate principal amount of the Outstanding Securities of each series issued
under the Indenture and affected by the modification or amendment. No such
modification or amendment may, without the consent of the Holders of all
Securities affected thereby:
(1) change the Stated Maturity of the principal of, or any installment of
principal of or interest on, any Security;
(2) reduce the principal amount of, or the premium, if any, or (except as
otherwise provided in the Applicable Prospectus Supplement) interest on, any
Security (including, in the case of an Original Issue Discount Security, the
amount payable upon acceleration of the maturity thereof);
(3) change the place or currency of payment of principal of, premium, if any,
or interest on any Security;
(4) impair the right to institute suit for the enforcement of any payment on
any Security on or after the Stated Maturity thereof (or in the case of
redemption, on or after the Redemption Date); or
(5) reduce the percentage in principal amount of Outstanding Securities of
any series, the consent of whose Holders is required for modification or
amendment of the Indenture or for waiver of compliance with certain provisions
of the Indenture or for waiver of certain defaults.
The Holders of at least a majority in aggregate principal amount of the
Outstanding Securities of any series may, on behalf of all Holders of that
series, waive compliance by the Company with certain restrictive provisions of
the Indenture. The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series may, on behalf of all
Holders of that series, waive any past default under the Indenture, except a
default in the payment of principal, premium or interest and in respect of a
covenant or provision of the Indenture that cannot be modified or amended
without the consent of the Holder of each Outstanding Security of such series
affected thereby.
Consolidation, Merger and Sale of Assets
The Company may not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an
entirety to any Person and may not permit any Person to merge into or
consolidate with the Company or convey, transfer or lease its properties and
assets substantially as an entirety to the Company, unless:
(1) any successor or purchaser is a corporation, partnership, or trust
organized and validly existing under the laws of the United States of America,
any State or the District of Columbia, and any such successor or purchaser
expressly assumes the Company's obligations on the Securities under a
supplemental indenture;
(2) immediately after giving effect to the transaction, no Event of Default,
and no event which, after notice or lapse of time or both, would become an
Event of Default, shall have occurred and be continuing;
(3) if properties or assets of the Company become subject to a mortgage,
pledge, lien, security interest or other encumbrance not permitted by the
Indenture, the Company or such successor Person, as the case may be, takes such
steps as shall be necessary effectively to secure the Securities equally and
ratably with (or prior to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel stating compliance with these provisions.
15
Defeasance and Covenant Defeasance
The Indenture provides that, if such provision is made applicable to the
Securities of any series pursuant to Section 3.1 of the Indenture, the Company,
at the Company's option:
(1) will be discharged from any and all obligations in respect of the
Securities of any series (except for certain obligations to register the
transfer of or exchange of Securities of such series, replace stolen, lost or
mutilated Securities of such series, maintain paying agencies and hold moneys
for payment in trust); or
(2) need not comply with certain restrictive covenants of the Indenture,
including those described under "Certain Covenants of the Company," and the
occurrence of an event described in clause (4) under "Events of Default" shall
no longer be an Event of Default,
in each case, if the Company deposits, in trust, with the Trustee money or U.S.
Government Obligations, which through the payment of interest thereon and
principal thereof in accordance with their terms, will provide money in an
amount sufficient to pay all the principal of, premium if any, and interest on
the Securities of such series on the dates such payments are due (which may
include one or more redemption dates designated by the Company) in accordance
with the terms of the Securities of such series. Such a trust may be
established only if, among other things:
(a) no Event of Default or event which, with the giving of notice or
lapse of time, or both, would become an Event of Default under the
Indenture shall have occurred and be continuing on the date of such deposit
or on such later date specified in the Indenture in the case of certain
events in bankruptcy, insolvency or reorganization of the Company;
(b) such deposit will not cause the Trustee to have any conflicting
interest with respect to other securities of the Company;
(c) such defeasance will not result in a breach or violation of, or
constitute a default under, the Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound; and
(d) the Company shall have delivered an Opinion of Counsel to the effect
that the Holders will not recognize income, gain or loss for federal income
tax purposes as a result of such deposit or defeasance and will be subject
to Federal income tax in the same manner as if such defeasance had not
occurred, which Opinion of Counsel, in the case of clause (1) above, must
refer to and be based upon a published ruling of the Internal Revenue
Service, a private ruling of the Internal Revenue Service addressed to the
Company, or otherwise a change in applicable federal income tax law
occurring after the date of the Indenture.
In the event the Company omits to comply with its remaining obligations under
the Indenture after a defeasance of the Indenture with respect to the
Securities of any series as described under clause (2) above and the Securities
of such series are declared due and payable because of the occurrence of any
Event of Default, the amount of money and U.S. Government Obligations on
deposit with the Trustee may be insufficient to pay amounts due on the
Securities of such series at the time of the acceleration resulting from such
Event of Default. However, the Company will remain liable in respect of such
payments.
Concerning the Trustee
The Bank of New York is Trustee under the Indenture. The Trustee performs
services for the Company and Case in the ordinary course of business and is a
lender bank under certain of the Company's credit facilities and Case's credit
facilities. The Company has issued $150,000,000 aggregate principal amount of
its 6 3/4% Notes due October 21, 2007, $100,000,000 aggregate principal amount
of its 6 1/8% Notes due October 15, 2001, $100,000,000 aggregate principal
amount of its Floating Rate Notes due January 21, 2000 and a total of
$279,200,000 of its Series A medium-term notes and a total of $509,000,000 of
its Series B medium-term
16
notes under the Indenture. The Trustee is also trustee under an indenture,
dated as of February 1, 1996, between the Company, Case and the Trustee, as
trustee. The Company has issued $200,000,000 aggregate principal amount of its
6 1/8% Notes due February 15, 2003, under such indenture.
PLAN OF DISTRIBUTION
The Company may sell the Securities being offered hereby through agents,
through underwriters and through dealers, and Securities may be sold to other
purchasers directly or through agents or through a combination of any such
methods of sale.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
Offers to purchase Securities may be solicited by agents designated by the
Company from time to time. Any such agent, who may be deemed to be an
underwriter, as that term is defined in the Securities Act, involved in the
offer or sale of the Securities in respect of which this prospectus is
delivered will be named, and any commissions payable by the Company to such
agent set forth, in the Applicable Prospectus Supplement. Agents may be
entitled under agreements that may be entered into with the Company to
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act. In addition, such agents or their
affiliates may be customers of, extend credit to, engage in transactions with,
or perform services for, the Company and/or Case in the ordinary course of
business. Unless otherwise indicated in the Applicable Prospectus Supplement,
any such agent will be acting on a reasonable efforts basis for the period of
its appointment.
If any underwriters are utilized in the sale, the Company will enter into an
underwriting agreement with such underwriters at the time of sale to them and
the names of the underwriters and the terms of the transaction will be set
forth in the Applicable Prospectus Supplement that will be used by the
underwriters to make resales of the Securities in respect of which this
prospectus is delivered to the public. The underwriters may be entitled under
the relevant underwriting agreement to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act. In
addition, such underwriters or their affiliates may be customers of, extend
credit to, engage in transactions with, or perform services for, the Company
and/or Case in the ordinary course of business.
If dealers are utilized in the sale of the Securities in respect of which
this prospectus is delivered, the Company will sell such Securities to such
dealers as principal. The dealers may then resell such Securities to the public
at varying prices to be determined by such dealers at the time of resale.
Dealers may be entitled to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act. In addition, such
dealers or their affiliates may be customers of, extend credit to, engage in
transactions with, or perform services for, the Company and/or Case in the
ordinary course of business.
Unless otherwise indicated in the Applicable Prospectus Supplement,
Securities are not proposed to be listed on a securities exchange, and any
underwriters or dealers will not be obligated to make a market in Securities.
The Company cannot predict the activity or liquidity of any trading in the
Securities.
If so indicated in an Applicable Prospectus Supplement, the Company will
authorize underwriters or agents to solicit offers by certain institutions to
purchase Offered Securities from the Company pursuant to delayed delivery
contracts ("Contracts") providing for payment and delivery on the date or dates
stated in such prospectus supplement. Each Contract will be for an amount not
less than, and the aggregate principal amount of Offered Securities sold
pursuant to Contracts shall be not less nor more than, the respective amounts
stated in such prospectus supplement. Institutions with whom Contracts, when
authorized, may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and
17
charitable institutions and other institutions, but will in all cases be
subject to the approval of the Company. Contracts will not be subject to any
conditions except (a) the purchase by an institution of the Offered Securities
covered by its Contracts shall not at the time of delivery be prohibited under
the laws of any jurisdiction in the United States to which such institution is
subject, and (b) if the Offered Securities are being sold to underwriters, the
Company shall have sold to such underwriters the total principal amount of the
Offered Securities less the principal amount thereof covered by Contracts.
Agents and underwriters will have no responsibility in respect of the delivery
or performance of Contracts.
LEGAL MATTERS
Unless otherwise indicated in a supplement to this prospectus, certain legal
matters in connection with the Securities offered by this prospectus will be
passed upon for the Company by Richard S. Brennan, General Counsel and
Secretary of Case, and by Mayer, Brown & Platt, Chicago, Illinois. In addition
to his positions at Case, Mr. Brennan is also a partner at Mayer, Brown &
Platt. The Company has been advised by Mr. Brennan that, at December 31, 1998,
he beneficially owned 34,000 shares of common stock of Case and had options to
purchase 10,000 shares of common stock of Case. Unless otherwise indicated in a
supplement to this prospectus, certain legal matters in connection with the
Securities offered by this prospectus will be passed upon for the underwriters,
dealers and agents, if any, by Cahill Gordon & Reindel (a partnership including
a professional corporation), New York, New York.
EXPERTS
Unless otherwise indicated in a supplement to this prospectus, the audited
financial statements and schedules included or incorporated by reference in
this prospectus and the prospectus supplement and elsewhere in the Registration
Statement have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their reports with respect thereto, and are
included or incorporated by reference herein in reliance upon the authority of
said firm as experts in giving said reports.
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INDEX TO EXHIBITS
Exhibit
Number Description
------- -----------
1(a) Form of Underwriting Agreement
1(b) Form of Distribution Agreement
4 Indenture, dated as of October 1, 1997, between Case Credit
Corporation and The Bank of New York (including form of security)
(1)
5 Opinion of Richard S. Brennan, General Counsel and Secretary of Case
Corporation, as to the legality of the securities being registered
12 Computation of Ratio of Earnings to Fixed Charges
23(a) Consent of Arthur Andersen LLP, Independent Public Accountants for
Case Credit Corporation (Milwaukee, Wisconsin)
23(b) Consent of Richard S. Brennan, General Counsel and Secretary of Case
Corporation (contained in Exhibit 5)
24 Powers of attorney (contained on the signature page to this
Registration Statement)
25 Form T-1 Statement of eligibility under the Trust Indenture Act of
1939 of The Bank of New York
- --------
(1) Filed as Exhibit 4(a) to the Company's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1997, and incorporated herein by reference.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The table below sets forth the expenses expected to be incurred in connection
with the issuance and distribution of the securities registered hereby, other
than underwriting discounts and commissions. All amounts are estimated except
for the SEC registration fee.
SEC registration fee............................................ $141,502
Blue sky fees and expenses...................................... 10,000
Printing and engraving costs.................................... 200,000
Legal fees and expenses......................................... 100,000
Accounting fees and expenses.................................... 150,000
Rating Agencies' Fees........................................... 200,000
Trustee fees and expenses....................................... 10,000
Miscellaneous................................................... 13,498
--------
Total....................................................... $825,000
========
Item 15. Indemnification of Directors and Officers.
The By-Laws of the Company include the following provisions:
Article V, Section 16. Indemnification of Directors and Officers. Each
person who is or was a director or officer of the corporation, or who
serves or may have served at the request of the corporation as a director
or officer of another corporation, partnership, joint venture, trust or
other enterprise (including the heirs, executors, administrators or estate
of such person) and who was or is a party or is threatened to be made a
party to any threatened, pending or completed claim, action, suit or
proceeding, whether criminal, civil, administrative or investigative,
including appeals, shall be indemnified by the corporation as a matter of
right to the full extent permitted or authorized by the Corporation Law of
the state of incorporation of the corporation, as it may from time to time
be amended, against any expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement, actually and reasonably incurred by
him in his capacity as a director or officer, or arising out of his status
as a director or officer. Each person who is or was an employee or agent of
the corporation, or who serves or may have served at the request of the
corporation as an employee or agent of another corporation, partnership,
joint venture, trust or other enterprise (including the heirs, executors,
administrators or estate of such person) may, at the discretion of the
Board, be indemnified by the corporation to the same extent as provided
herein with respect to directors and officers of the corporation.
The corporation may, but shall not be obligated to, maintain insurance at
its expense, to protect itself and any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such. The corporation may, but shall not be obligated to, pay
expenses incurred in defending a civil or criminal action, suit or
proceeding in advance of the final disposition of such action, suit or
proceeding.
The indemnification provided by this Section 16 shall not be exclusive of
any other rights to which those seeking indemnification may be entitled as
a matter of law or under any agreement, vote of stockholders or
disinterested directors or otherwise.
Reference is made to the Underwriting Agreement, filed as Exhibit 1(a)
hereto, and to the Distribution Agreement, filed as Exhibit 1(b) hereto, for a
description of the indemnification arrangements in connection with any
underwritten offering of securities registered hereby.
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Case has purchased insurance which purports to insure the officers and
directors of Case, and of its subsidiary companies, which includes Case Credit,
against certain liabilities incurred by them in the discharge of their function
as such officers and directors except for liabilities resulting from their own
malfeasance.
Item 16. Exhibits.
A list of exhibits filed herewith is contained in the index to exhibits which
is incorporated herein by reference.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that
is incorporated by reference in this Registration Statement shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant, pursuant to the provisions described
in Item 15, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission, such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the
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payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Racine, State of Wisconsin, on January 29, 1999. The
Registrant also certifies that it reasonably believes that the security rating
requirement contained in General Instruction I.B.2. of Form S-3 will be met by
the time of sale.
Case Credit Corporation
/s/ Kenneth R. Gangl
By: _________________________________
Kenneth R. Gangl
President and Chief Executive
Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Theodore R. French, Kenneth R. Gangl and Robert A. Wegner and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned, with full
power of substitution and resubstitution, for and in the name, place and stead
of the undersigned, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement as well as
any related registration statement (or amendment thereto) filed pursuant to
Rule 462(b) promulgated under the Securities Act of 1933, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, and hereby grants to such attorneys-in-
fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done, as fully to
all intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Kenneth R. Gangl President, Chief Executive January 29, 1999
____________________________________ Officer and Director
Kenneth R. Gangl (Principal Executive
Officer)
/s/ Robert A. Wegner Senior Vice President and January 29, 1999
____________________________________ Chief Financial Officer
Robert A. Wegner (Principal Financial and
Accounting Officer)
/s/ Theodore R. French Chairman of the Board and January 29, 1999
____________________________________ Director
Theodore R. French
/s/ Andrew E. Graves Vice Chairman and Director January 29, 1999
____________________________________
Andrew E. Graves
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