EXHIBIT 10(e)(2)
DEED OF AMENDMENT AND ACKNOWLEDGMENT
DATED: 31ST DECEMBER 1996
BETWEEN
CASE CREDIT AUSTRALIA PTY LIMITED
A.C.N. 069 132 396
AND
CASE CREDIT CORPORATION
AND
NATIONAL AUSTRALIA BANK LIMITED
A.C.N. 004 044 927
DIBBS CROWTHER & OSBORNE
Solicitors
50 Carrington Street
SYDNEY NSW 2000
OX 101 Sydney
Tel: 290-8200
Fax: 290-2964
Ref: RG/PRE
(I)
CONTENTS
1. DEFINITIONS AND INTERPRETATION....................................... -1-
2. CONSIDERATION........................................................ -2-
3. RELEVANT AGREEMENT................................................... -2-
4. CONSENT, CONFIRMATION AND ACKNOWLEDGEMENT............................ -2-
5. AMENDMENT............................................................ -3-
5.1 Letter of Offer dated 28 September, 1996 from the Bank to
Case Credit Australia.......................................... -3-
5.2 Negative Pledge Agreement dated 29 September, 1996
between Case Credit Australia and the Bank..................... -4-
5.3 Guarantee and Indemnity........................................ -5-
6. CONDITIONS PRECEDENT................................................. -5-
7. REPRESENTATIONS AND WARRANTIES....................................... -5-
8. MISCELLANEOUS........................................................ -6-
SCHEDULE TO LETTER OF OFFER..................... -7-
DEED OF AMENDMENT AND ACKNOWLEDGMENT
THIS DEED is made on 31st December 1996,
BETWEEN: CASE CREDIT AUSTRALIA PTY LIMITED A.C.N. 069 132 396 of 31-87
Kurrajong Avenue, St Marys, New South Wales, 2760 ("Case Credit
Australia")
AND: CASE CREDIT CORPORATION of 621 State Street, Racine, Wisconsin, 53404,
United States of America ("Case Credit")
AND: NATIONAL AUSTRALIA BANK LIMITED A.C.N. 004 044 937 of Level 25,
National Australia Bank House, 255 George Street, Sydney, New South
Wales, 2000 ("Bank")
RECITALS:
A. Under the Bank's Letter of Offer, the Bank agreed to make available
financial recommodation to the Customer on the terms and conditions set out
in the Letter of Offer.
B. The Customer and the Bank entered into a Negative Pledge Agreement which,
in addition to the Letter of Offer, set out the Customer's obligations to
the Bank.
C. In support of the Customer's obligations under the Letter of Offer and the
Negative Pledge Agreement, Case Credit provided to the Bank the Guarantee
and Indemnity.
D. The Customer and Case Credit have requested the Bank to vary the terms of
the Facility provided under the terms of the Letter of Offer, the Negative
Pledge Agreement and the Guarantee and Indemnity.
E. The Bank has agreed to that request on the basis that the Customer and Case
Credit deliver to the Bank a deed in the form of this deed.
F. This deed is collateral to and secures the same moneys and obligations
under the Facilities as provided for in the Letter of Offer and in the
Negative Pledge Agreement.
OPERATIVE PROVISIONS:
1. DEFINITIONS AND INTERPRETATION
1.1 Words defined in the Negative Pledge Agreement that are not defined in
this deed have the same meaning given to them in the Negative Pledge
Agreement unless contrary to or inconsistent with the intention or as
the context otherwise requires.
1.2 The provisions of clauses 1.1 (definitions), 1.2 (interpretation),
__(miscellaneous), __ (notices) and 10 (governing law and
jurisdiction) of the Negative Pledge Agreement apply to this deed,
mutatis mutandis, as if they are set out in full in this deed.
1.3 In this deed (including the Recitals), the following expressions have
the following meanings unless inconsistent or contrary to the context.
"Customer" means Case Credit Australia.
"Guarantee and Indemnity" means a Deed of Guarantee and Indemnity
dated September 26, 1996 (unconditional) granted by Case Credit in
favour of the Bank in respect of the obligations of Case Credit
Australia.
"Guarantor" means Case Credit.
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"Letter of Offer" means a Letter of Offer dated 28 September, 1996
from the Bank to Case Credit Australia.
"Negative Pledge Agreement" means a Negative Pledge Agreement dated 29
September, 1996 between Case Credit Australia and the Bank (as varied
by a letter of amendment dated 19 March, 1996).
2. CONSIDERATION
The parties to this deed acknowledge entering into this deed and incurring
obligations and granting rights under this deed for valuable consideration.
3. RELEVANT AGREEMENT
Each of the parties to this deed acknowledges and agrees with the Bank
that:
(a) this deed;
(b) any other document dated on or before the date of this deed which
varies or evidences a facility, or any other financial accommodation
by the Bank to or in favour of the Customer's end
(c) all Security interests granted or to be granted from time to time by
the Customer to or in favour of the Bank,
constitute a "Relevant Agreement" unless otherwise agreed to by the Bank.
4. CONSENT, CONFIRMATION AND ACKNOWLEDGEMENT
4.1 The Customer and the Guarantor unconditionally and irrevocably consent
to their entry into, execution of and performance of the terms of
this deed and the observance by each of them of their respective
obligations under this deed and the Relevant Agreements.
4.2 For the removal of doubt, nothing in this deed affects any rights,
powers or remedies of the Bank which may have accrued to the Bank as a
result of any set, emission, matter or thing occurring before the date
of this deed.
4.3 The Customer and the Guarantor both jointly and severally confirm and
acknowledge:
(a) that the Customer's obligations under the Letter of Offer and
under the Negative Pledge Agreement (as varied by this deed),
and the obligations of each person that is a party to a Relevant
Agreement will continue in full force and affect in accordance
with their terms notwithstanding the execution and performance of
this deed;
(b) their continuing obligations under the Letter of Offer, the
Negative Pledge Agreement and the Guarantee and Indemnity and
acknowledge and agree that, except as varied or supplemented by
this deed, the Customer's obligations and the Guarantor's
obligations under the Relevant Agreements to which they are a
party remain and will continue in full force and effect in
accordance with their terms; and
(c) that the financial accommodation contemplated in the Letter of
Offer (as amended, varied or supplemented from time to time) is
or will be (as the case may be) for the benefit of the Customer
and for the benefit of each person entering into a Relevant
Agreement.
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4.4 The Guarantor acknowledges that all of the terms of the Guarantee and
Indemnity (except as varied by clause 5.3 of this deed) continue in
full force and effect to secure the obligations of the Customer to the
Bank.
5. AMENDMENT
Subject to clause 6 of this deed, from the date of this deed the following
amendments are made in the following manner:
5.1 Letter of Offer dated 28 September, 1995 from the Bank to Case Credit
Australia
(a) the Acceptance and/or Discount Facility
(i) The following words are inserted at the end of the paragraph
entitled "Purpose":
"Otherwise to make funds available to any Group Member on an
intercompany loan account basis in order to maximize the
Group's cash management flexibility."
(ii) The paragraph entitled "Line Fee" and the "Activation Fee"
are deleted and replaced with the following provision:
"While the Bank continues to have the benefit of the
Guarantee and Indemnity given to it by Case Credit
Corporation, the Bank will charge to the Company Line Fees
and Activation Fees as a direct consequence of Case
Corporation's Senior Unsecured Long Term Rating determined
by two nationally recognized rating agencies selected by the
Company (at least one of which shall be Standard & Poor's or
Moody's), in accordance with the pricing grid set out in
the schedule to this letter of offer.
If the ratings of such nationally recognized rating agencies
do not coincide, the Line Fee and Activation Fee set out
opposite the higher of such ratings will apply. If at any
time an event occurs which results in there being no rating
or only one rating in effect, a new Line Fee and Activation
Fee will be determined in a manner to be agreed upon by the
Bank and the Company and until such new Line Fee and
Activation Fee shall be so agreed upon, the relevant fees
will be deemed to be the Line Fee and Activation Fee in
effect immediately prior to the date on which such event
occurs.
As at 15 December, 1996, the Line Fees and the Activation
Fees for this facility are:
Rating Line Fee Activation Fee
BBB/Baa2 0.125% p.a. 0.250% p.a.
Line Fees are payable quarterly in advance on each 18 March,
June, September and December.
Activation Fees are calculated on the face value and
tenor of bills drawn and charged upon activation."
(b) Stand-by Bill Acceptance and/or Discount Facility
(i) The following words are inserted at the end of the paragraph
entitled "Purpose":
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"Otherwise to make funds available to any Group Member on an
Intercompany loan account basis in order to maximise the
Group's cash management flexibility.
(ii) In the paragraph entitled "Drawdown Conditions" the words,
"at least 2 other Banking Days before the day it requires
funds" are deleted and replaced with the following words:
"at least by 6:00 p.m. on the day before it requires
funds".
(iii)Following the Bank's annual review of this facility at the
end of 1996, this facility is extended to 30 November 1997.
(iv) The paragraph entitled "Line Fee" is deleted and replaced
with the following:
"Line Fee: 0.10% per annum on the Limit, payable quarterly
in advance on each 15 March, June, September
and December".
5.2 Negative Pledge Agreement dated 29 September, 1995 between Case Credit
Australia and the Bank
(a) The definition of "Third Party Receivables" on page 5 of the
Negative Pledge Agreement is deleted and replaced with the
following:
""Third Party Receivables" means receivables owing to the
Customer by any person other than a Related Body Corporate
excluding any component of such receivable that comprises
unearned finance charges and any provision for bad or
doubtful debts".
(b) In paragraph (?) of the definition of "Permitted Security
Interest" the words, "$100,000 in aggregate" are deleted and
replaced with the following words," "$10,000,000 in
aggregate".
(c) In clause 4.2 "General Undertakings" on page 8 and 9 of
the Negative Pledge Agreement, clause 4.2(d) is deleted and
replaced with the following new clause 4.2(d):-
"(d) net, without first obtaining the Bank's prior written
consent (such consent not to be unreasonably withheld),
to apply any funds available to it under the Facility
for the acquisition of Third Party Receivables where
the debtor and/or the equipment to which the Third
Party Receivables relate are outside Australia except
where the total of the non-Australian Third Party
Receivables does not exceed 10% of the aggregate total
of Third Party Receivables at any time."
(d) In clause 5.1 "financial undertakings" on page 9 of the
Negative Pledge Agreement, clause 5.1(a) is deleted and
replaced with the following new clause 6.1(a):-
"(?) The ratio of Total Liabilities to Shareholders' Funds
shall not exceed ?.1 at any time;"
(e) The reference to the ratio "1.10:1" in paragraph (b) of
clause 6.1 of the Negative Pledge Agreement is deleted and
replaced with the ratio "1.05:1".
(f) Paragraphs (c) and (d) of clause 5.1 of the Negative Pledge
Agreement are deleted.
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(g) Clause 7.1 (g) of the Negative Pledge Agreement is deleted.
(h) Clause 7.4 of the Negative Pledge Agreement is deleted.
5.3 Guarantee and Indemnity
(a) The definition of or reference to the "Revolving Credit
Agreement" in the Guarantee and Indemnity is deleted and replaced
with the following new definition or description:-
""Case Credit Corporation Revolving Credit and Guarantee
Agreement" means a document entitled "US $1,200,000,000 Revolving
Credit and Guarantee Agreement" dated as of August 23, 1996
between Case Credit Corporation, the foreign subsidiary
borrowers, the Co-Agents and the Lead Managers named in that
document and the Chase Manhattan Bank."
(b) All references to sections 7.5 and 10 of the Revolving Credit
Agreement referred to in clause 9 of the Guarantee and Indemnity
are deleted and replaced with references to sections 8, 10 and 11
in the Case Credit Corporation Revolving Credit and Guarantee
Agreement.
6. CONDITIONS PRECEDENT
6.1 The variation of the Letter of Offer, the Negative Pledge Agreement
and the Guarantee and Indemnity contemplated by clause 5 of this deed
is subject to the condition precedent that the Bank has received the
following in form and substance reasonably satisfactory to it:
(a) the execution and delivery of this deed;
(b) a certified copy of each authority under which each party to this
deed (other than the Bank) signs and delivers this deed (or any
other document contemplated by this deed) and if the authority is
a power of attorney, evidence of its stamping (where required by
law) and its registration;
(c) certified extracts evidencing the resolutions of each party to
this deed (where relevant) (other than the Bank) approving the
entry into this deed and authorising execution, delivery and
observance of obligations under this deed; and
(d) such ancillary documents or any other information or document
(whether originals or copies) which the Bank, in its discretion,
may request or reasonably considers necessary or desirable to
examine or hold.
6.2 It is a further condition precedent to the Bank agreeing to amend the
Letter of Offer, the Negative Pledge Agreement and the Guarantee and
Indemnity, as contemplated by clause 6 of this deed, that no Event of
Default or event which with the giving of notice, lapse of time or any
determination would be an Event of Default, has occurred or would be
likely to occur.
7. REPRESENTATIONS AND WARRANTIES
7.1 The Customer repeats the representations and warranties in clause 6 of
the Negative Pledge Agreement for the benefit of the Bank.
7.2 The Guarantor repeats the representations and warranties in the
Guarantee and Indemnity for the benefit of the Bank.
7.3 The Customer acknowledges that the Bank will be entering into this
deed in reliance, inter alia, on all of these representations and
warranties.
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8. MISCELLANEOUS
8.1 Nothing contained in this deed abrogates, prejudices, diminishes or
otherwise adversity affects any rights, powers, remedies, obligations
or liabilities (in any case whether present, future or contingent) in
relation to any act, matter or thing done or effected or otherwise
arising in relation to a Relevant Agreement or any documents to which
the Customer and the Bank are parties before the execution of this
deed.
8.2 This deed binds each of the signatories to it even if one or more
of these persons named in this deed never executes it or that the
execution by any one or more of those persons (other than the persons
sought to be made liable under it) is or may become void or voidable.
8.3 If there is any inconsistency between the terms of this deed and any
prior communications between the Customer and the Bank, the terms of
this deed will prevail and the parties acknowledge that this deed
supersedes in all respects the terms of those prior communications.
8.4 The Customer agrees to pay to the Bank, and to indemnify and keep
indemnified the Bank against all and any costs, charges, fees,
expenses and taxes (including any lost fees or penalties) in relation
to the preparation, negotiation, settlement, attempting, enforcement
or attempted enforcement of this deed now and in the future.
8.5 Each of the covenants of this deed are severable and distinct from one
another and if at any time any one or more of the provisions of this
deed is or becomes invalid, illegal or unenforceable in any respect
under any law, the validity, legality and enforceability of the
remaining provisions will not in any way be affected or impaired.
8.6 This deed is governed by the laws in force in New South Wales and each
party irrevocably and unconditionally submits to the non-exclusive
jurisdiction of the courts of New South Wales and courts of appeal
from them.
8.7 This deed may consist of a number of counterparts and the counterparts
taken together constitute one and the same instrument.
-7-
SCHEDULE TO LETTER OF OFFER
Pricing Grid: Sr. Unsec. L T Rating Line Fee Activation Fee
Standard & Poors/Moody's
A/A2 and above 0.07% p.a. 0.155% p.a.
A-/A3 0.08% p.a. 0.17% p.a.
BBB+/Baa1 0.10% p.a. 0.20% p.a.
BBB/Baa2 0.125% p.a. 0.25% p.a.
BBB-/Baa3 0.175% p.a. 0.275% p.a.
BB+/Ba1 0.25% p.a. 0.425% p.a.
Under BB+/Ba1 0.30% p.a. 0.575% p.a.
- 8 -
EXECUTED as a deed.
The common seal of CASE CREDIT AUSTRALIA PTY LIMITED was affixed in accordance)
with Its articles of association in the presence of: )
)
)
/s/ Andrew Mour )
- ------------------------------------------- )
Signature of authorised person )
)
DIRECTOR )
- ------------------------------------------- )
Office held )
)
/s/ ANDREW MOUR )
- ------------------------------------------- )
Name of authorised person )
(block letters) )
Signed, sealed and delivered for and on behalf of CASE CREDIT CORPORATION by a)
person duly authorized in that regard in the presence of: )
)
)
/s/ Frank A. Anglin )
- ------------------------------------------- )
Signature of Witness )
)
/s/ FRANK A. ANGLIN )
- ------------------------------------------- )
Name of Witness (block letters) )
Signed, sealed and delivered by )
)
for and on behalf of NATIONAL AUSTRALIA BANK LIMITED under power of attorney )
registered book 5834 number 549 in the presence of: )
)
)
/s/ D. Muter )
- ------------------------------------------- )
Signature of witness )
)
/s/ DARREN MUTER )
- ------------------------------------------- )
Name of witness (block letters) )
[CORPORATE SEAL APPEARS HERE]
/s/ Robert A. Wegner
- -------------------------------------------
Signature of authorised person
DIRECTOR
- -------------------------------------------
Office held
/s/ ROBERT A. WEGNER
- -------------------------------------------
Name of authorised person
(block letters)
/s/ Robert A. Wegner
- -------------------------------------------
Signature of authorised person
VICE PRESIDENT
- -------------------------------------------
Office held
/s/ ROBERT A. WEGNER
- -------------------------------------------
Name of authorised person (block letters)
/s/ Warren James Shaw
- -------------------------------------------
By executing this deed the attorney states that the attorney has received no
notice of revocation of the power of attorney