SECOND AMENDMENT
SECOND AMENDMENT, dated as of August 25, 1997 (this "Second
Amendment") to the Revolving Credit Agreement, dated as of August 23, 1996 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement") among CASE CREDIT LTD., a company organized under the laws of the
Province of Alberta (the "Borrower"), the several banks and other financial
institutions from time to time parties thereto (the "Lenders"), the co-agent
named on the signature pages thereof (the "Co-Agent"), and THE BANK OF NOVA
SCOTIA, a Canadian chartered bank (the "Administrative Agent"), as
administrative agent for the Lenders thereunder.
W I T N E S S E T H;
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WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make, and have made, certain loans and other extensions of credit to the
Borrower; and
WHEREAS, the Borrower has requested, and, upon this Second Amendment
becoming effective, the Majority Lenders have agreed, that certain provisions of
the Credit Agreement be amended in the manner provided for in this Second
Amendment;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Terms defined in the Credit Agreement and not otherwise
defined herein shall have the meanings given to them in the Credit Agreement.
2. Amendments to Article 1 of the Credit Agreement. Section 1.1 of the Credit
Agreement is hereby amended by (a) deleting in its entirety the definition of
"Indebtedness" contained therein and (b) inserting the following new definitions
in the appropriate alphabetical order:
"Case Vendor Financing": financing which is provided by a Person
other than Case or one of its Subsidiaries or Affiliates to a customer
of Case or of one of its Subsidiaries or Affiliates.
"Indebtedness": of any Person at any date, without duplication,
(a) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services (other than trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices), (b) any other indebtedness of
such Person which is evidenced by a note, bond, debenture or similar
instrument, (c) all obligations of such Person as lessee under
Financing Leases, (d) the discounted amount of all obligations of such
Person in
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respect of acceptances issued or created for the account of such
Person, (e) all liabilities secured by any Lien on any property owned
by such Person even though such Person has not assumed or otherwise
become liable for the payment thereof, (f) all net liabilities of such
Person in respect of Interest Rate Agreements, (g) all Guarantee
Obligations in respect of Indebtedness referred to in clauses (a)
through (f) (or any of them) of this definition and (h) if such Person
is the Borrower or any of its Subsidiaries, all obligations of the
Borrower or any such Subsidiary incurred in connection with any
securitization or other asset-backed financing of Receivables to the
extent such obligations are excluded from the definition of Permitted
Securitization Obligations by operation of the proviso to the
definition thereof; provided, however, notwithstanding the foregoing,
Permitted Vendor Financing Obligations shall not constitute
Indebtedness under this definition.
"Permitted Vendor Financing Obligations": any Guarantee
Obligation of the Borrower or its Consolidated Subsidiaries in respect
of Case Vendor Financing, but only to the extent that the underlying
principal amount of Indebtedness subject to such Guarantee Obligation
is secured or otherwise funded by the Borrower or its Consolidated
Subsidiaries with cash or other marketable instruments (including,
without limitation, pledges of deposit accounts, notes, bonds,
certificates of deposit, or other documents or instruments evidencing
such funds).
"Threshold Amount": U.S. $60,000,000.
3. Amendment to Section 7.7 of the Credit Agreement: Subsection 7.7(c) of the
Credit Agreement is amended by deleting the phrase "$60,000,000 or more"
contained therein and inserting in lieu thereof the phrase "equal to or greater
than the Threshold Amount".
4. Amendment to Section 8.1 of the Credit Agreement: Section 8.1 of the
Credit Agreement is amended by deleting the Section heading and subsections (a)
and (b) thereof and replacing them with the words "Intentionally Deleted".
5. Amendment to Section 8.2 of the Credit Agreement: Section 8.2 of the
Credit Agreement is amended by deleting the Section heading and subsections (a)
through (i) thereof and replacing them with the words "Intentionally Deleted";
and
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6. Amendment to Article 9 of the Credit Agreement: (a) Subsection 9.1(e) of
the Credit Agreement is amended by deleting the amount "$60,000,000" contained
therein and inserting in lieu thereof the phrase "equal to the Threshold
Amount".
(b) Subsection 9.1(g) of the Credit Agreement is amended by deleting the
phrase "of $60,000,000 or more" contained therein and inserting in lieu thereof
the phrase "in an amount equal to or greater than the Threshold Amount".
7. Conditions to Effectiveness. This Second Amendment shall become effective
on the date (the "Second Amendment Effective Date") on which (a) the Borrower,
the Administrative Agent and the Majority Lenders shall have executed and
delivered to the Administrative Agent this Second Amendment and (b) Case Credit
shall have executed and delivered to the Administrative Agent an amendment to
the Case Credit Guarantee, substantially in the form of Exhibit A hereto.
8. Representations and Warranties. The representations and warranties made by
the Borrower in the Credit Agreement are true and correct in all material
respects on and as of the Second Amendment Effective Date, after giving effect
to the effectiveness of this Second Amendment, as if made on and as of the
Second Amendment Effective Date.
9. No Other Amendments; Confirmation. Except as expressly amended, modified
and supplemented hereby, the provisions of the Credit Agreement are and shall
remain in full force and effect.
10. Governing Law. This Second Amendment and the rights and obligations of the
parties hereto shall be governed by, and construed and interpreted in accordance
with, the laws of the Province of Ontario.
11. Counterparts. This Second Amendment may be executed by one or more of the
parties to this Second Amendment on any number of separate counterparts, and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument. A set of the copies of this Second Amendment signed by all of
the parties shall be lodged with the Borrower and the Administrative Agent.
This Second Amendment may be delivered by facsimile transmission of the relevant
signature pages hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
CASE CREDIT LTD.
By:_______________________________
Title:
THE BANK OF NOVA SCOTIA, as Administrative
Agent and a Lender
By: /s/ R.J. Boomhour
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Title: Assistant General Manager
By: /s/ John Hall
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Title: Syndication Officer
BANK OF AMERICA CANADA, as a Lender
By: /s/ David B. Linkletter
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Title: Vice President
By:_______________________________
Title:
BANK OF MONTREAL, as a Lender
By: /s/ Stuart Brannan
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Title: Director
By: /s/ Peter E. Walsh
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Title: Director
CANADIAN IMPERIAL BANK OF
COMMERCE, as Co-Agent and a Lender
By: /s/ Doug Zinkiewich
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Title: Director
By: /s/ Mauro Spagnolo
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Title: Director
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THE CHASE MANHATTAN BANK OF
CANADA, as a Lender
By: /s/ Christine Chan
--------------------------------
Christine Chan
Title: Vice President
By: /s/ Arun K. Bery
--------------------------------
Arun K. Bery
Title: Vice President
CITIBANK CANADA, as a Lender
By: /s/ David R. Wingfelder
--------------------------------
David R. Wingfelder
Title: Vice President
By:
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Title:
FIRST CHICAGO NBD BANK, CANADA,
as a Lender
By: /s/ Colleen Delaney
--------------------------------
Colleen Delaney
Title: Assistant Vice President
By: /s/ Jeremiah A. Haynes III
--------------------------------
Jeremiah A. Haynes III
Title: First Vice President
J.P. MORGAN CANADA, as a Lender
By: /s/ Clarke Herring
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Clarke Herring
Title: Vice President
By:
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Title:
ROYAL BANK OF CANADA, as a Lender
By: /s/ Patrick K. Shields
--------------------------------
Patrick K. Shields
Title: Senior Manager
By:
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Title:
SAKURA BANK (CANADA), as a Lender
By: /s/ E.R. Langley
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E.R. Langley
Title: Vice President
By:
Title:
SANWA BANK CANADA, as a Lender
By: /s/ Hiromi Kobayashi
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Hiromi Kobayashi
Title: Senior Vice President
By:
Title:
SOCIETE GENERALE (CANADA), as a Lender
By: /s/ Eric D'Hoste
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Eric D'Hoste
Title:
By: /s/ Douglas Bache
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Douglas Bache
Title: Senior Relationship Manager
THE SUMITOMO BANK OF CANADA,
as a Lender
By: /s/ Alfred Lee
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Alfred Lee
Title: Vice President
By:
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Title:
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THE TORONTO-DOMINION BANK,
as a Lender
By: /s/ ???????
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Title: Manager
By:
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Title:
EXHIBIT A
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FORM OF AMENDMENT TO CASE CREDIT GUARANTEE
GUARANTEE AMENDMENT NO. 1, dated as of August__, 1997, made by CASE
CREDIT CORPORATION, a Delaware corporation (the "Guarantor"), in favour of THE
BANK OF NOVA SCOTIA, a Canadian chartered bank, in its capacity as
administrative agent (the "Administrative Agent"), for the several banks and
other financial institutions (the "Lenders") from time to time parties to the
Revolving Credit Agreement, dated as of August 23, 1996, among Case Credit Ltd.,
a company organized under the laws of Alberta, Canada (the "Borrower"), the
Lenders, the Co-Agent named therein (the "Co-Agent") and the Administrative
Agent (as amended, supplemented and otherwise modified from time to time, the
"Credit Agreement").
W I T N E S S E T H:
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WHEREAS, pursuant to the Credit Agreement, the Lenders have severally
agreed to make Extensions of Credit to the Borrower upon the terms and subject
to the conditions set forth therein;
WHEREAS, the Borrower has requested, and the Majority Lenders have
agreed, that certain provisions of the Credit Agreement be amended in the manner
provided for in the second amendment dated August__, 1997 (the "Second
Amendment") to the Credit Agreement;
WHEREAS, pursuant to the Credit Agreement, the Guarantor executed and
delivered the Case Credit Guarantee to the Administrative Agent for the benefit
of the Administrative Agent, the Co-Agent and the Lenders;
WHEREAS, it is a condition precedent to the effectiveness of the
Second Amendment that certain provisions of the Case Credit Guarantee be amended
in the manner provided for in, and the Guarantor shall have executed and
delivered to the Administrative Agent for the benefit of the Administrative
Agent, the Co-Agent and the Lenders, this Guarantee Amendment No. 1;
NOW, THEREFORE, in consideration of the Lenders, the Co-Agent and the
Administrative Agent entering into the Second Amendment and agreeing to make
Extensions of Credit to the Borrower under the Credit Agreement and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Guarantor hereby agrees with the Administrative Agent for the
benefit of the Administrative Agent, the Co-Agent and the Lenders as follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms
defined in the Credit Agreement or the Case Credit Guarantee and used herein
shall have the meanings given to them in the Credit Agreement and the Case
Credit Guarantee, respectively.
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2. Amendment to Paragraph 11 of the Case Credit Guarantee:
Paragraph 11 of the Case Credit Guarantee is hereby deleted in its entirety and
replaced with the following new paragraph 11:
11. Covenants. The Guarantor hereby covenants and agrees with the
Administrative Agent, the Co-Agent and the Lenders that, from and
after the date of this Guarantee until the Obligations are paid in
full and the Commitments are terminated, (i) the Guarantor shall own,
beneficially and of record, directly or indirectly through one or more
wholly-owned Subsidiaries, 100% of the issued and outstanding common
shares of the Borrower, free and clear of any and all Liens; (ii) the
Guarantor shall not modify or amend or agree to modify or amend any
term or provision made or contained in Section 11 of the Case Credit
Credit Agreement without the prior written consent of the Majority
Lenders; and (iii) notwithstanding any termination of the Case Credit
Credit Agreement, the Guarantor shall continue to observe and perform
each and every covenant and agreement made or contained in Section 11
of the Case Credit Credit Agreement and on the part of the Guarantor
to be observed and performed and, for such purposes, such covenants
and agreements shall be incorporated herein by reference and shall be
interpreted as being expressed in favour of and for the benefit of the
Administrative Agent, the Co-Agent and the Lenders.
3. No Other Amendments; Confirmation. Except as expressly amended,
modified and supplemented hereby, the provisions of the Case Credit Guarantee
are and shall remain in full force and effect.
4. GOVERNING LAW. THIS GUARANTEE AMENDMENT NO. 1 SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
WISCONSIN WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
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IN WITNESS WHEREOF, the undersigned has caused this Guarantee
Amendment No. 1 to be duly executed and delivered by its duly authorized officer
as of the day and year first above written.
CASE CREDIT CORPORATION
By
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Title
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